

New York State Ins. Fund v Everest Natl. Ins. Co. (2015 NY Slip Op 01564)





New York State Ins. Fund v Everest Natl. Ins. Co.


2015 NY Slip Op 01564


Decided on February 24, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on February 24, 2015

Tom, J.P., Renwick, Andrias, Richter, Gische, JJ.


14299 403198/09

[*1] New York State Insurance Fund, Plaintiff-Respondent,
vEverest National Insurance Company, Defendant-Appellant, Liberty Insurance Underwriters, Inc., et al., Defendants.


Coughlin Duffy LLP, New York (Kevin E. Wolff of counsel), for appellant.
Hurwitz & Fine, P.C., Melville (Elizabeth A. Fitzpatrick of counsel), for respondent.

Judgment, Supreme Court, New York County (Richard F. Braun, J.), entered March 18, 2014, inter alia, declaring that the limit of the commercial excess liability policy issued by defendant Everest National Insurance Company to nonparty El Sol Contracting and Construction Corp. is $2 million, unanimously affirmed, with costs.
The commercial excess liability policy issued by Everest to El Sol unambiguously provided that Everest's obligation was to pay the lesser of the $2 million coverage limit called for under the trade contract between El Sol and nonparty Triborough Bridge and Tunnel Authority or the $10 million limit of the Everest policy. Everest's argument that it is entitled to an off-set of the $1 million paid by the primary insurer towards the underlying claim is unsupported in the policy language at issue. Everest contends that it was left to cover a $1 million shortfall, since the trade contract required minimum insurance coverage limits of only $2 million, and the primary insurer paid $1 million. However, the extent of insurance is governed not by the terms of the underlying trade contracts among the insureds but by the policy terms (see Bovis Lend Lease LMB, Inc. v Great Am. Ins. Co., 53 AD3d 146 [1st Dept 2008]). Everest may not read into unambiguous policy language terms that it failed to include in the policy. Moreover, if the disputed policy language were ambiguous, it would be construed against [*2]Everest, the drafter of the policy, since Everest offered no extrinsic evidence that supports its interpretation (see generally Matter of Mostow v State Farm Ins. Co., 88 NY2d 321 [1996]; QBE Ins. Corp. v Public Serv. Mut. Ins. Co., 102 AD3d 442 [1st Dept 2013]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 24, 2015
CLERK


