Travelers Cas. & Sur. Co. v Honeywell Intl., Inc.

[*1] Travelers Cas. & Sur. Co. v Honeywell Intl., Inc. 2006 NY Slip Op 52709(U) [26 Misc 3d 1202(A)] Decided on December 7, 2006 Supreme Court, New York County Tolub, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 7, 2006
Supreme Court, New York County

Travelers Casualty and Surety Company, Plaintiff,

against

Honeywell International, Inc., et al., Defendants.



107138/06



Honeywell International Inc.

David S. Versfelt, Esq.

Joanna A. Diakos, Esq.

K & L Gates LLP

599 Lexington Avenue

New York, New York 10022-6030

(212) 536-3991 — Direct Dial (Versfelt)

(212) 536-3900 — Phone

(212) 536-3901 — Fax

Donald E. Seymour, Esq.

Michael J. Lynch, Esq.

John T. Waldron III, Esq.

K & LGates LLP

Henry W. Oliver Building

535 Smithfield Street

Pittsburgh, Pennsylvania 15222

(412) 355-6474 — Direct Dial (Seymour)

(412) 355-6500 - Phone

(412) 355-6501 - Fax

Travelers Casualty and Surety Company f/k/a Aetna Casualty and Surety Company

Andrew Frankel, Esq.

Helena Almeida, Esq.

Simpson Thacher & Bartlett LLP

425 Lexington Avenue

New York, New York 10017

(212) 455-2500 — Phone (212) 455-2502 — Fax

Seth A. Ribner, Esq.

Simpson Thacher & Bartlett LLP

1999 Avenue of the Start

Los Angeles, CA 90067

(310) 407-7515 - Phone

(310) 407-7502 - Fax

Dairyland Insurance Company and Fireman's Fund Insurance Company

Michael E. Buckley. Esq.Rivkin Radler LLP926 Reckson PlazaUniondale, New York 11556-0111(516) 357-3000 — Phone(516) 357-3333 — Fax

Employers Insurance Company of Wausau and National Casualty Company

Dale C. Christensen, Jr., Esq.

Justin M. Garbaccio, Esq.

Seward & Kissel LLP

One Battery Park Plaza

New York, New York 10004

(212) 574-1200 — Phone

(212) 480-8421 — Fax

Of Counsel

John J. Dillon, Esq.

Anthony S. Fernandez, Esq.

Hamilton Altman Canale & Dillon, LLC

4600 East-West Highway, Suite 201

Bethesda, Maryland 20814

(301) 652-7332 — Phone

(301) 652-0836 — Fax

Mutual Marine Office, Inc. as managing general agent and attorney-in-fact for Employers Mutual Casualty Company

Kimberly M. Parson, Esq.Wendy L. Mager, Esq.Steven D. Cantarutti, Esq.Smith, Stratton, Wise, Heher & Brennan, LLP2 Research WayPrinceton, New Jersey 08540(609) 987-2280 — Direct Dial (Parsons)(609) 987—6662 — Direct Dial (Mager)(609) 987-6651 — Fax

Steven D. Cantarutti, Esq.Smith, Stratton, Wise, Heher & Brennan, LLP100 Park Avenue, Suite 1600

New York, NY 10017(212) 768-3878(212) 768-3978 Fax

Evanston Insurance Company

Meryl R. Lieberman, Esq.Robert P. Siegel, Esq.Copernicus T. Gaza, Esq.Traub Lieberman Straus & Shrewsberry LLPMid-Westchester Executive ParkSeven Skyline DriveHawthorne, New York 10532(914) 347-2600 — Phone

(914) 347-8898 — Fax

Century Indemnity Company for itself and as successor in interest to Insurance Company of North America; International Insurance Company (Westchester Fire Insurance Company); Government Employees Insurance Company and Republic Insurance CompanyGregory T. LoCasale, Esq.White and Williams LLP1800 One Liberty Place Philadelphia, PA 19103 (215) 864-6364 — Direct Dial(215) 789-7665 - Direct Fax

Arrowood Indemnity Company formerly known as Royal Indemnity CompanyCynthia Ruggerio, Esq.Christie, Pabarue, Mortensen and Young10th Floor1880 JFK BoulevardPhiladelphia, PA 19103-7424(215) 587-1694 — Phone(215) 587-1699 — FaxMarc D. Portlock, Esq.Christie, Pabarue, Mortensen and YoungSentry Office Plaza, Suite 703

216 Haddon Avenue

Westmont, NJ 08108

(856) 946-0400 - Phone

(856) 946-0399 — Fax

Hartford Accident & Indemnity Company,

First State Insurance Company, Twin City Fire Insurance Company, and New England Reinsurance CorporationVictoria Zaydman, Esq.Hogan & Hartson LLP875 Third AvenueNew York, New York 10022(212) 918 — 3646 — Phone(212) 918 — 3100 — FaxJames P. Ruggeri, Esq.William J. Bowman, Esq.Edward B. Parks, II, Esq.Lynne M. Baum-Villavicencio, Esq.Hogan & Hartson LLP555 Thirteenth Street, NWWashington, DC 20004-1109(202) 637-6587 — Direct Dial (Parks)(202) 637-5910 — Fax

MidStates Reinsurance Corporation

Perry Kreidman, Esq.

Benjamin L. Schiffman, Esq.

London Fischer LLP

59 Maiden Lane

New York, New York 10038

(212) 972-1000 — Phone

(212) 972-1030 — Fax

Walter B. Tolub, J.

In this action, plaintiff Travelers Casualty and Surety Company (Travelers) seeks declaratory relief regarding its insurance obligations to defendant Honeywell International, Inc. (Honeywell) for asbestos claims arising from the operations of North American Refractories Company (NARCO), a predecessor of Honeywell (the NARCO Claims). Over the last two decades, Honeywell has been sued by claimants alleging, inter alia, bodily injury, personal injury, and/or other damage resulting from exposure to asbestos-containing products allegedly sold or [*2]distributed by NARCO and related predecessors of Honeywell. This action concerns a series of liability insurance contracts issued not to Honeywell, but to two predecessor corporations of Honeywell, Allied Corporation (Allied) and Eltra Corporation (Eltra).

Motion Sequence Nos. 004, 006, 007, 008, 009, 010, 012, 013, 014, and 017 are consolidated for disposition. In Motion Sequence No. 012, Honeywell moves, pursuant to CPLR 3211, 1003 and 2201, for an order dismissing Travelers' claims against 11 defendant insurers with whom Honeywell has reached settlements, or otherwise fully exhausted the products limits of coverage available. In the alternative, Honeywell moves for an order staying those claims pending resolution of an action entitled Honeywell International, Inc. v Travelers Casualty and Surety Company et al., Docket No. L-1498-06, now pending in the Superior Court of New Jersey (the New Jersey action).

In Motion Sequence Nos. 004, 006, 007, 008, 009, 010, 013, 014, and 017, Honeywell moves, pursuant to CPLR 3211, 327 and 2001, for an order dismissing the cross claims of the following defendants: Evanston Insurance Company (Evanston); First State Insurance Company (First State); New England Reinsurance Corporation (New England Reinsurance); Hartford Accident and Indemnity Company (Hartford); Twin City Fire Insurance Company (Twin City); Mid-States ReInsurance Corporation (Mid-States); National Casualty Company (National Casualty); Employers Insurance Company of Wausau (Employers); and Republic Insurance Company (Republic), or, in the alternative, staying those claims pending resolution of the New Jersey action.

For the reasons set forth below, Motion Sequence No. 012 is granted, and Motion Sequence Nos. 004, 006, 007, 008, 009, 010, 013, 014, and 017 are denied.

Motion to Dismiss the Settled Insurers (Motion Sequence No. 12)

Honeywell contends that, in its complaint, Travelers inappropriately named as defendants several insurers that have already settled, or otherwise satisfied, their obligations to Honeywell under numerous policies (the Settled Insurers). According to Honeywell, the term "Settled Insurers" refers to 11 insurer defendants that fall into two separate categories. First, Honeywell asserts that it has reached settlements (or otherwise fully exhausted the product limits of coverage available) relating to all of the policies issued by the following eight insurers to Eltra and Allied, Honeywell's predecessors: (1) Zurich Insurance Company; (2) Federal Insurance Company; (3) American Re-Insurance Company; (4) Mt. McKinley Insurance Company; (5) Everest Reinsurance Company; (6) Boston Old Colony Insurance Company; (7) Columbia Casualty Company; and (8) Continental Casualty Company. Honeywell seeks to completely dismiss these eight insurers as parties in this case. [*3]

Second, Honeywell asserts that it has reached settlements regarding the policies issued to Eltra, but not the policies issued to Allied, by the following three insurers: (1) First State Insurance Company; (2) Hartford Accident and Indemnity Company; and (3) Fireman's Fund Insurance Company. Honeywell seeks to dismiss the claims against these three insurers arising from their Eltra policies. Honeywell does not seek to dismiss these three insurers with respect to their Allied policies, which remain unsettled.

This asbestos coverage dispute arises from the operations of NARCO, which was primarily in the business of designing, manufacturing and distributing refractory products, including products containing asbestos (Complaint, ¶ 14). NARCO was acquired by and eventually merged into Eltra in 1968 (id., ¶ 15). From that time forward, Eltra was insured under various policies, including a number of policies issued by the Settled Insurers, until 1979, when Eltra was acquired by Allied, and integrated into Allied's insurance program (see Coverage Chart depicting the Eltra and Allied insurance programs [Aff. of John T. Waldron, Exh 2]). Thereafter, Allied was insured under policies delivered to its headquarters in New Jersey (Aff. of Lois Fuchs, Honeywell's Assistant Treasurer, Risk Management, ¶¶ 5, 9-10). All of the policies in this case that remain unsettled were issued to Allied, with the exception of the four policies sold by Travelers to Eltra (id., ¶ 5).

Other than those four Travelers policies, all of the Eltra policies in this case are either the subject of settlement agreements between Honeywell and the Settled Insurers, or the full limits of those policies have been paid (id., ¶ 6; see Waldron Aff., Exh 2 [identifying settled/exhausted policies]). As a result, the Settled Insurers have all paid or agreed to pay the full limits of coverage available for NARCO Claims under their settled policies (Fuchs Aff., ¶ 6). Thus, there are no remaining disputes between Honeywell and the Settled Insurers with respect to coverage for NARCO Claims under their settled policies.

Honeywell now moves to dismiss the complaint as to the Settled Insurers, on the ground that the Settled Insurers are not proper parties to this litigation. Honeywell argues that, because Travelers has no contractual relationship with any of the Settled Insurers relating to the policies issued to Eltra and Allied, Travelers can assert only two possible bases for naming the Settled Insurers as parties: (1) that it is entitled to contribution from, or declaratory relief regarding, the Settled Insurers; or (2) that the Settled Insurers are necessary parties to a resolution of Honeywell's rights under Travelers' parties.

As set forth below, the complaint fails to state a valid cause of action against the Settled Insurers for contribution or [*4]declaratory relief. Moreover, the Settled Insurers are neither necessary or even proper parties. As such, the claims asserted against the Settled Insurers arising from their settled policies must be dismissed.

Travelers' complaint fails to assert a contribution claim against the Settled Insurers. In its ninth cause of action — the only cause of action that is against the Settled Insurers — Travelers merely seeks declaratory relief, not contribution or any other claim for damages (see Complaint, ¶ 86 ["Travelers seeks a judicial declaration regarding the proper allocation of insurance coverage among Travelers, the Insurer Defendants, and Honeywell"]).

Moreover, Travelers cannot contend that it has a valid contribution claim against the Settled Insurers. Travelers has not paid any amounts to Honeywell in coverage for the NARCO Claims under its policies at issue (Fuchs Aff., ¶ 7). As such, Travelers cannot seek contrabution.[FN1] (see e.g. Beltrone v General Schuyler & Co., 229 AD2d 857, 858 [3d Dept 1996] ["Plaintiff's claim for contribution is based upon the well-settled equitable principle that a joint obligor who pays more than his proportionate share of a common liability is entitled to contribution from the other joint obligors"]; accord United States Fire Ins. Co. v American Home Assurance Co., 19 AD3d 191 [1st Dept 2005]). Indeed, Travelers' concedes that it has not asserted a claim for contribution against the Settled Insurers (Travelers' Opp Br, at 5, n 4).

Similarly, Travelers' complaint, on its face, fails to assert a claim for declaratory relief regarding any dispute between Travelers and the Settled Insurers. Instead, Travelers seeks declaratory relief regarding the obligations of the Settled Insurers (and the other insurer defendants) to Honeywell, and not with respect to any relief between Travelers and the Settled Insurers (see Complaint, ¶¶ 83-86). Specifically, Travelers requests

an order declaring the amount of Travelers indemnity obligation, if any, to Honeywell, under the Travelers Policies, and the Insurer Defendants' indemnity obligations to Honeywell, if any, under their respective policies, for the settlement of NARCO Asbestos Claims and funding of the NARCO Trust.

Complaint, at 17, ¶ I [emphasis added]; see also id., ¶ 86 ["an [*5]actual and justiciable controversy exists regarding the extent of Travelers obligation, if any to indemnify Honeywell, and the Insurer Defendants' indemnity obligations to Honeywell, if any, under their respective policies, for the settlement of the NARCO Asbestos Claims and funding of the NARCO Trust"]).

Thus, Travelers does not have standing to bring a claim for declaratory relief as to the Settled Insurers' obligations to Honeywell, because Travelers' rights and obligations under its policies are not affected by the Settled Insurers' obligations under their policies (see Wein v City of New York, 47 AD2d 367, 370 [1st Dept], mod 36 NY2d 610 [1975] [in determining whether a party has standing to seek a declaratory judgment, "it must be shown that the plaintiff's personal or property rights will be directly and specifically affected"]; see also Sabatino v Capco Trading, Inc., 27 AD3d 1019 [3d Dept 2006] [stranger to insurance policy may not bring action for declaratory judgment]; Genesee Hosp. v Allied Office Products, Inc., 193 Misc 2d 225 [Sup Ct, Monroe County 2001] [court may only enter a declaratory judgment in favor of a party who has a substantive claim of right to such relief]).

Moreover, even assuming, arguendo, that Travelers has standing to seek a determination of another insurer's obligation to Honeywell, Travelers is not entitled to declaratory relief regarding the "the [Settled] Insurer Defendants' indemnity obligations to Honeywell," since the settlement forecloses the possibility of any dispute regarding such obligations. First, Travelers has not even alleged that there is a specific dispute between it and the Settled Insurers for which declaratory relief is necessary. Indeed, Travelers cannot even show that there is any dispute between Honeywell and the Settled Insurers, as the settlements resolved any such coverage disputes.

Second, the Settled Insurers have all paid or agreed to pay the full limits of coverage available for the NARCO Claims under their settled policies (see Fuchs Aff., ¶ 6). Thus, because the Settled Insurers cannot be obligated to pay more than their policies require, Travelers cannot obtain any relief, declaratory or otherwise, from them (see e.g. Liberty Mut. Ins. Co. v Aetna Cas. & Sur. Co., 168 AD2d 121, 130 [2d Dept 1991] ["since the only policy issued by Liberty which has any relevance to this case contained an over-all limit of liability in the sum of $1,000,000, it was clearly erroneous to order Liberty to pay $100,000 over and above that amount"]). Accordingly, no dispute exists between Honeywell and the Settled Insurers with respect to the settled policies.

Third, Travelers alleges that New York law applies to the policies and that, under New York law, the relevant policies are only liable for a "pro rata" portion of the NARCO Claims (see Complaint, ¶¶ 12, 60-63; see generally Stonewall Ins. Co. v [*6]Asbestos Claims Mgt. Corp., 73 F3d 1178 [2d Cir 1995] [applying pro rata allocation under New York law]). However, even taking the allegations of Travelers' complaint as true, Travelers would only be liable for whatever pro rata share of the NARCO Claims is determined by the court, and thus would not be entitled to any relief from the Settled Insurers.[FN2]

Finally, Travelers' complaint alleges that Honeywell is liable for amounts allocated to periods of settled insurance (see Complaint, ¶ 61 ["Honeywell is responsible for all payments allocated to periods in which Honeywell was uninsured, underinsured, self-insured, or for which insurance is not available due to insolvency of any insurer, exhaustion of limits, settlement or the inability to identify an insurer"]). Thus, it is clear that Travelers is not seeking any declaratory relief or contribution from the Settled Insurers.

In its opposition to the motion to dismiss, Travelers now argues, notwithstanding the terms of its complaint, that it seeks declaratory relief with respect to Travelers' own claims against the Settled Insurers, which relate to the "proper allocation" of insurance coverage owed by it to Honeywell, and by the Settled Insurers to Honeywell (Travelers Opp Brief, at 5-6). The allocation issue, however, does not provide any basis for declaratory relief between Travelers and the Settled Insurers.

Whether New York or New Jersey allocation law is applied, the relevant policies are liable only for a "pro rata" portion of the NARCO Claims. Under a pro rata allocation scheme, an unsettled insurer cannot be held liable for more than its pro rata share and, therefore, contribution claims against settled insurers are extinguished (see United States Fidelity & Guar. Co. v Treadwell Corp., 58 F Supp 2d 77 [SD NY 1999]). As a result, Travelers would only be liable for whatever pro rata share of the NARCO Claims is determined by the court, and thus would not be entitled to any relief from the Settled Insurers. Indeed, Travelers alleges that Honeywell, not Travelers, is liable for amounts allocated to periods of settled insurance (see Complaint, ¶ 61), and hence, Travelers' complaint cannot be read to allege that the Settled Insurers' pro rata share affects the pro rata share owed by Travelers. Thus, the allocation of [*7]insurance coverage does not provide any basis for a dispute between Travelers and the Settled Insurers for which declaratory relief may be sought.

Travelers also argues, citing Olin Corp. v Insurance Co. of North America (221 F3d 307 [2d Cir 2000]) and Employers Ins. of Wasau v Duplan Corp. (1999 WL 777976 [SD NY 1999]), that it does have standing to bring a claim for relief with respect to the Settled Insurers' obligations to Honeywell, because a declaratory relief claim for allocation among co-insurers is "entirely proper" (Travelers Opp Brief, at 5). However, these two cases do not support the conclusion that Travelers has standing to assert any type of claim against the Settled Insurers, as neither case involved an insurer seeking declaratory relief from another insurer that had settled its obligations to its policyholder, as is the case here.

Moreover, unlike here, where Travelers has conceded that it has not brought a claim for contribution against the Settled Insurers (id. at 5, n 4), the Olin case implicated the insurers' contribution claims against one another. In Olin, the policyholder argued that an "all sums" approach to allocation (as opposed to pro rata allocation) should apply, which allows the policyholder to collect the total liability under one triggered policy, up to that policy's limits. The insurer on that policy would then have the right to seek contribution from an insurance company that had issued any other triggered policies. In contrast, in this case, Travelers cannot have a contribution claim against the Settled Insurers under New Jersey or New York allocation law.

In addition, it is clear that the Settled Insurers are not necessary or proper parties to a determination of the obligations of Travelers to Honeywell under Travelers' policies. CPLR 1001 (a) provides that:

Persons who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action shall be made plaintiffs or defendants.

The Settled Insurers are not persons "who ought to be parties" under CPLR 1001 (a), and thus, are not necessary parties to this action.

First, it is clear that the only parties that are necessary in order for complete relief to be accorded between Travelers and Honeywell are Travelers and Honeywell. No other person is a party to the Travelers insurance policies at issue. Travelers has no rights under the Settled Insurers ' policies, and the Settled Insurers have no rights under Travelers' policies. Indeed, Travelers' complaint does not allege that the presence of the Settled Insurers is necessary for a determination of [*8]Travelers' obligations to Honeywell under Travelers' policies.

Second, the Settled Insurers obviously will not be "inequitably affected by a judgment in the action." The Settled Insurers have all paid or agreed to pay the full limits of coverage available for the NARCO Claims under their settled policies (see Fuchs Aff., ¶ 6). They will not be paying any more, or any less, based on the outcome of this litigation. As such, they are not necessary parties under CPLR 1001 (a).

Although Travelers does not dispute that the Settled Insurers are not necessary parties to this action (see Travelers Opp Brief, at 6, n 5), it nevertheless contends that the Settled Insurers are proper parties, pursuant to CPLR 1002 (b). The Settled Insurers, however, are also not proper parties to this action. CPLR 1002 (b) permits the joining as defendants of "[p]ersons against whom there is asserted any right to relief ... arising out of the same transaction, occurrence, or series of transactions or occurrences ... if any common question of law or fact would arise." However, Travelers does not assert any right to relief from the Settled Insurers, and Honeywell has already resolved the obligations of the Settled Insurers to it. Thus, the Settled Insurers are not proper parties under CPLR 1002 (b).

Travelers also contends that Honeywell lacks standing to move to dismiss the Settled Insurers. However, CPLR 1003 explicitly provides that any party may make a motion to drop any other misjoined party:

Parties may be dropped by the court, on motion of any party or on its own initiative, at any stage of the action and upon such terms as may be just.

CPLR 1003 (emphasis added).

Travelers further argues that Honeywell's motion is premature, because discovery has not yet been commenced, and because the motion relies on facts extrinsic to the complaint. This argument completely lacks merit.

Discovery is not necessary because the complaint, on its face, makes it clear that there is no dispute between Travelers and the Settled Insurers. When pressed to identify any dispute to which the Settled Insurers are proper parties, Travelers identified only the allocation of coverage issue. With respect to allocation, the complaint alleges that Honeywell, not the Settled Insurers, is liable for amounts allocated to periods of settled insurance (Complaint, ¶ 61). Hence, the complaint cannot be read to allege that the pro rata share allocable to the Settled Insurers affects the pro rata share owed by Travelers. Thus, based on the face of the complaint alone, without resort to any extrinsic evidence, it is clear that there is no dispute between Travelers and the Settled Insurers regarding allocation, and that Travelers has no claim for declaratory relief against [*9]the Settled Insurers.

Notwithstanding the allegations of the complaint, Travelers asserts that it needs three pieces of discovery to support its claim of a dispute between Travelers and the Settled Insurers: "(i) copies of the alleged settlement agreements; (ii) proof that any Eltra Insurer has paid its policy limits; or (iii) proof that any Eltra policy has been exhausted" (Travelers Opp Br, at 8). Travelers does not explain, however, how any of these items has any effect on its pro rata share of liability, and indeed, Travelers does not contend that its liability to Honeywell is affected by the fact of settlement between Honeywell and the Settled Insurers, or by the precise terms of such settlement agreements.[FN3] Likewise, Travelers does not contend that the calculation of its pro rata share varies depending on whether another insurer does or does not actually pay its share or exhaust its coverage. Therefore, no discovery of these items will change the fact that Travelers has no valid claim for declaratory relief against the Settled Insurers.

Accordingly, Honeywell's motion for an order dismissing the claims arising out the settled policies, listed on Exhibit 1 to this decision, that have been asserted against the Settled Insurers, is granted.

Motions to Dismiss the Cross Claims

In response to Travelers' complaint, Honeywell previously filed a motion to dismiss or stay the complaint pursuant to CPLR 327 under the doctrine of forum non conveniens, alleging that the dispute between Honeywell and Travelers has no meaningful connection to New York, and that it should be dismissed in favor of the New Jersey action.

On September 6, 2006, this court denied the motion to dismiss, finding that this action has a substantial nexus to New York because, inter alia: (1) the insurance policies at issue were brokered and issued in New York; (2) the parties would not be unduly burdened by litigating this action in New York, as the witnesses and evidence were primarily located in New York; and (3) although the parties disputed whether New York or New Jersey law applies, the court was capable of applying New Jersey law, if necessary. Accordingly, "[a]fter weighing the private and public [*10]interest factors," this court "conclude[d] that Honeywell has not met its burden of establishing that substantial justice compels this court to dismiss the action for forum non conveniens" (Decision, at 8).

Honeywell now moves to dismiss the cross claims asserted against it by defendant insurers Evanston, First State, New England Reinsurance, Hartford, Twin City, Mid-States, National Casualty, Employers, and Republic. Similar to Travelers' claims against Honeywell, the cross claims seek relief regarding the extent to which policies issued by the defendant insurers to Allied, Honeywell's predecessor, cover Honeywell with respect to its liability for NARCO-related asbestos exposure.

Honeywell's motions to dismiss the cross claims are virtually identical in substance. In these motions, Honeywell argues that the cross claims should be dismissed or stayed for the same reasons that Travelers' claims against Honeywell should be dismissed or stayed, and relies on the same facts and legal arguments relied upon its motion to dismiss the Travelers' complaint. Thus, Honeywell asserts in its memorandum of law, just as it did in seeking to dismiss or stay the Travelers complaint, that the cross claims should be dismissed because the coverage dispute between the other defendant insurers and Honeywell has no substantive contact with New York. In support of the instant motions, Honeywell has not sought to provide any additional facts and/or legal arguments.

Accordingly, there is simply nothing different — neither factually or legally — for this court to consider that it did not previously consider and reject in connection with Honeywell's prior motion. Therefore, the very same reasons and analysis of law that this court articulated in the September 6, 2006 Decision denying Honeywell's prior motion apply to the instant motions, and thus, pursuant to the law of the case doctrine, Honeywell's motions to dismiss or stay the cross claims must be denied.

The purpose of the law of the case doctrine is to prevent relitigation of legal issues that have already been determined at an earlier stage of the proceeding (Dondi v Jones, 40 NY2d 8 [1976]; Martin v City of Cohoes, 37 NY2d 162 [1975]; Brownrigg v New York City Hous. Auth., 29 AD3d 721 [2d Dept 2006]). The doctrine applies only to legal determinations that were necessarily resolved on the merits in a prior decision (see Thompson v Cooper, 24 AD3d 203 [1st Dept 2005]; Baldasano v Bank of New York, 199 AD2d 184 [1st Dept 1993]). Where a party has been afforded a full and fair opportunity to litigate an issue, a court's decision on that issue becomes the law of the case, precluding further litigation (Hass & Gottlieb v Sook Hi Lee, 11 AD3d 230 [1st Dept 2004]; Shawangunk Conservancy, Inc. v Fink, 305 AD2d 902 [3d Dept 2003]; Gee Tai Chong Realty Corp. v GA Insurance Co. of NY, 283 AD2d 295 [1st Dept 2001]). [*11]

This court's September 6, 2006 Decision denying, in its entirety, Honeywell's prior motion to dismiss or stay the complaint filed by Travelers, necessarily resolved on the merits the issue of whether New York or New Jersey is the more convenient forum in which to litigate the coverage disputes between Travelers, Honeywell, and the remainder of the defendant insurers. It is clear that Honeywell has been provided a full and fair opportunity to litigate this issue. Moreover, there are no significant distinctions between the relief sought by Honeywell vis-á- vis its prior motion and the present one which would allow Honeywell to avoid the bar of the September 6, 2006 Decision, and indeed, Honeywell has not presented any extraordinary circumstances permitting this court to ignore its prior decision. Thus, that decision is now law of the case requiring denial of the motions in which Honeywell similarly seeks to dismiss the cross claims filed against it (see In re Duell, 306 AD2d 223 [1st Dept 2003]; Bernstein v 1995 Associates, 211 AD2d 560 [1st Dept 1995]).

The court has considered the remaining arguments, and finds them to be without merit.

Accordingly, it is

ORDERED that Motion Sequence No. 012 is granted, and the claims arising out of the settled policies, listed on Exhibit 1 to this decision, that have been asserted in this action against the following insurers are dismissed: (1) Zurich American Insurance Company; (2) Federal Insurance Company; American Re-Insurance Company; (4) Mt. McKinley Insurance Company; (5) Everest Reinsurance Company; (6) Boston Old Colony Insurance Company; (7) Columbia Casualty Company; (8) Continental Casualty Company; (9) First State Insurance Company; (10) Hartford Accident and Indemnity Company; and (11) Fireman's Fund Insurance Company; and it is further

ORDERED that Honeywell's motions (Motion Sequence Nos. 004, 006, 007, 008, 009, 010, 013, 014, and 017) to dismiss the cross claims of the following defendants are denied: Evanston Insurance Company; First State Insurance Company; New England Reinsurance Corporation; Hartford Accident and Indemnity Company; Twin City Fire Insurance Company; Mid-States ReInsurance Corporation; National Casualty Company; Employers Insurance Company of Wausau; and Republic Insurance Company; and it is further

ORDERED that the remainder of the action shall continue.

This memorandum opinion constitutes the decision and order of the Court.

Dated: ___________ [*12]

____________________________

HON. WALTER B. TOLUB, J.S.C. Footnotes

Footnote 1:The parties disagree on whether the policies at issue should be interpreted under New Jersey or New York law. However, the parties do not dispute that there is no conflict between New Jersey and New York law with respect to the legal propositions cited in this decision.

Footnote 2:Honeywell disputes Travelers' contention that New York law, as opposed to New jersey law, applies to all of the policies. However, given that New Jersey law also applies a "pro rata" allocation approach (although one that is calculated differently than under New York law), Travelers will only be liable for its pro rata share of the NARCO liabilities, and therefore will not be entitled to relief from Settled Insurers, regardless of how the choice of law dispute is resolved.

Footnote 3:In any event, Travelers already has access to certain of the settlement agreements, as they are part of the public record in the NARCO bankruptcy, in which Travelers is participating (see Aff. of Melissa J. Tea, Exhs 1-2 [attaching copies of the settlement agreements between Honeywell and (1) Federal Insurance Company; and (2) Boston Old Colony Insurance Company and Columbia Casualty Company, which were submitted to the Bankruptcy Court where NARCO's bankruptcy is pending]).