STRUCTURE TONE INC v. Old Republic Insurance Company, Defendant–Appellant. (2025)

Order, Supreme Court, New York County (Mary V. Rosado, J.), entered on or about April 5, 2024, which denied the motion of defendant Old Republic Insurance Company for summary judgment dismissing all claims and cross-claims as against it and granted the cross-motion of defendant Scottsdale Insurance Company dismissing Old Republic's cross-claim as against Scottsdale, unanimously affirmed, without costs.

Supreme Court properly denied Old Republic's motion for summary judgment because there are questions of fact as to whether the negligence of its named insured, Port Morris Tile & Marble Corp., was a proximate cause of the underlying accident, thus triggering indemnification by Old Republic (see Burlington Ins. Co. v. NYC Tr. Auth., 29 N.Y.3d 313, 322–323, 57 N.Y.S.3d 85, 79 N.E.3d 477 [2017]).  If the injured plaintiff in the underlying action is found to have been a proximate cause of his accident, then respondeat superior would impute that culpability to Port Morris, his employer (see Mercado v. Caithness Long Is. LLC, 104 A.D.3d 576, 578, 961 N.Y.S.2d 424 [1st Dept. 2013]).  Additionally, Port Morris's foreman testified that Port Morris was responsible for ensuring proper lighting and safety for its employees, which also raises a question of fact as to whether Port Morris may be found negligent (see Old Republic Gen. Ins. Corp. v. Consolidated Edison Co. of N.Y. Inc., 193 A.D.3d 595, 597, 146 N.Y.S.3d 620 [1st Dept. 2021]).

Old Republic's reliance on the doctrine of collateral estoppel is unavailing (see Martinez v. New York City Tr. Auth., 203 A.D.3d 87, 91, 162 N.Y.S.3d 11 [1st Dept. 2022];  see also National Union Fire Ins. Co. of Pittsburgh, Pa. v. Hartford Ins. Co. of Midwest, 248 A.D.2d 78, 82, 677 N.Y.S.2d 105 [1st Dept. 1998], affd 93 N.Y.2d 983, 695 N.Y.S.2d 740, 717 N.E.2d 1077 [1999]).  While the claim for indemnification based on common-law negligence against Port Morris was dismissed in the underlying action, that was based on the determination that plaintiff did not suffer a grave injury under Workers’ Compensation Law, not on any finding as to whether Port Morris was or was not negligent.  Nor did this Court resolve the issue in concluding that, on the record before it in that action, there was no evidence of Port Morris's negligence (Cackett v. Gladden Props., LLC, 183 A.D.3d 419, 422, 123 N.Y.S.3d 581 [1st Dept. 2020]).

The court also properly granted Scottsdale's cross-motion for summary judgment.  “Where two or more insurers bind themselves to the same risk and one pays the whole loss, the paying insurer has a right of action against his coinsurers for a ratable portion of the amount paid” (National Union Fire Ins. Co. of Pittsburgh, Pa., 248 A.D.2d at 85, 677 N.Y.S.2d 105).  However, even looking past the issue of whether Old Republic and Scottsdale bound themselves to the same risk, the two are not coinsurers because Old Republic's “other insurance” provision makes it primary, sharing pro rata with other primary policies, while Scottsdale's provision makes it excess.  Therefore, “the coverage under [Scottsdale's] policy containing the excess clause does not come into play, and [its] duty to defend is not triggered, until the coverage under [Old Republic's] policy containing the pro rata clause has been exhausted” (Sport Rock Intl., Inc. v. American Cas. Co. of Reading, Pa., 65 A.D.3d 12,19, 878 N.Y.S.2d 339 [1st Dept. 2009], appeal withdrawn 14 N.Y.3d 796, 899 N.Y.S.2d 130, 925 N.E.2d 934 [2010]).  Thus, at this juncture, Old Republic is not entitled to any contribution from Scottsdale.