REALM NATIONAL INSURANCE COMPANY v. HERMITAGE INSURANCE COMPANY (2004)

Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered on or about October 15, 2003, which, in this action seeking declaratory relief, inter alia, granted defendant's motion to dismiss the complaint, unanimously modified, on the law, to declare in defendant's favor that it is not obligated to defend, indemnify, or otherwise reimburse plaintiff in connection with the underlying personal injury action, and otherwise affirmed, with costs in favor of defendant, payable by plaintiff.

 Plaintiff workers' compensation carrier sues to compel defendant general liability carrier to contribute to the defense and indemnification of the parties' insured in an underlying third-party action, in which common-law and contractual indemnification is sought from the insured for liability incurred to the insured's employee by reason of personal injuries sustained by the employee in the course of his employment.   The subject general liability policy issued by defendant, however, specifically excludes both coverage for bodily injury to an employee of the insured arising out of or in the course of employment, and coverage for “any obligation [of the insured] to share damages with or repay someone else who must pay damages because of the [employee's] injury” (see Monteleone v. Crow Constr. Co., 242 A.D.2d 135, 673 N.Y.S.2d 408, lv. denied 92 N.Y.2d 818, 684 N.Y.S.2d 489, 707 N.E.2d 444;  N. Star Reins. Corp. v. Contl. Ins. Co., 185 A.D.2d 187, 585 N.Y.S.2d 436, affd. 82 N.Y.2d 281, 604 N.Y.S.2d 510, 624 N.E.2d 647).   Contrary to plaintiff's argument, defendant's disclaimer was not untimely pursuant to Insurance Law § 3420(d), nor did defendant otherwise waive reliance upon the applicable exclusionary language.   The original disclaimer letter, which clearly cited the relied upon exclusion, promptly apprised the claimant with a high degree of specificity of the grounds upon which the disclaimer was predicated (cf.   Matter of Aetna Cas. & Sur. Co. v. Rodriguez, 115 A.D.2d 418, 496 N.Y.S.2d 956).   The disclaimer was not rendered ineffective by defendant's quotation of only part of the relevant exclusion, especially since the claim of ineffectiveness is being raised not by the insured but by a coinsurer seeking contribution (see Tops Mkts., Inc. v. Maryland Cas., 267 A.D.2d 999, 1000, 700 N.Y.S.2d 325).

We modify only to declare in defendant's favor (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670, cert. denied 371 U.S. 901, 83 S.Ct. 205, 9 L.Ed.2d 164).