CLIFFORD CHANCE LIMITED LIABILITY PARTNERSHIP v. INDIAN HARBOR INSURANCE COMPANY (2007)

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered December 29, 2006, which denied plaintiffs' motion for summary judgment, unanimously affirmed, with costs.

In light of the clear allocation provision in the policy, which had the effect of a partial exclusion (cf. Owens Corning v. National Union Fire Ins. Co. of Pittsburgh, PA, 257 F.3d 484, 492-493 [6th Cir.2001] ), and despite the joint and several liability of the insured and uninsured defendants in the underlying litigation, the insurer is only required to pay a portion of its insured's claim for reimbursement of the settlement amount based on a determination of the insured's and the uninsured's relative exposures in the litigation and the benefits received from the settlement (see PepsiCo, Inc. v. Continental Cas. Co., 640 F.Supp. 656, 661-662 [S.D.N.Y.1986] ).  Level 3 Communications v. Federal Ins. Co, 1999 WL 675295 [N.D.Ill.1999], which involved a more limited allocation provision, does not require otherwise.   We have considered plaintiffs' other contentions and find them unavailing.