PURDUE FREDERICK COMPANY v. Gulf Underwriters Insurance Company, Defendant. (2007)

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered July 26, 2005, which granted the motion and cross motions of defendants to dismiss the amended complaint and declared that none of them had a duty to defend or indemnify plaintiffs in specified underlying actions, and denied plaintiffs' cross motion for summary judgment declaring that they were entitled to such defense, unanimously affirmed, with costs.

 The court relied on two separate grounds for finding that defendants Gulf Underwriters and National Union Fire did not owe plaintiffs a duty to defend or indemnify them in the underlying litigation.   In addition to finding that the underlying claims did not fall within the “ malicious prosecution” provision of the insurance policies, the court noted that “National and Gulf would not be required to defend in any event, as their policies are excess to Steadfast's primary insurance,” citing General Motors Acceptance Corp. v. Nationwide Ins. Co., 4 N.Y.3d 451, 456, 796 N.Y.S.2d 2, 828 N.E.2d 959 [2005], which stands for the proposition that an excess carrier may protect its interest by participating in the defense, but, unlike a primary insurer, has no obligation to do so.   Plaintiff fails to challenge the alternative ground for the court's decision.   Thus, plaintiffs' appeal must fail.

 In any event, plaintiffs seek a defense under the policy coverage for personal injury based on, among other things, the unambiguous tort of malicious prosecution (see QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 773 A.2d 906 [2001] ).   Unlike a general insurance policy, where coverage is stated in broad terms and is subject to clearly defined exceptions, personal injury coverage is designed only for defined risks, and is thus limited to claims actually arising out of the torts enumerated in the policy (see County of Columbia v. Continental Ins. Co., 83 N.Y.2d 618, 612 N.Y.S.2d 345, 634 N.E.2d 946 [1994], affg. 189 A.D.2d 391, 395, 595 N.Y.S.2d 988 [1993] ).

 The elements of malicious prosecution consist of the initiation of a legal action by the defendant against the plaintiff, begun with malice and without probable cause to believe it can succeed, and ending in the accused's favor (Broughton v. State of New York, 37 N.Y.2d 451, 457, 373 N.Y.S.2d 87, 335 N.E.2d 310 [1975], cert. denied sub nom. Schanbarger v. Kellogg, 423 U.S. 929, 96 S.Ct. 277, 46 L.Ed.2d 257 [1975] ).   Such legal action can even be civil in nature, as long as it interferes in some way with the plaintiff's person or property (see O'Brien v. Alexander, 101 F.3d 1479, 1484 [2d Cir.1996] ).   A plaintiff asserting malicious prosecution must also allege and prove special damages (Engel v. CBS, Inc., 93 N.Y.2d 195, 689 N.Y.S.2d 411, 711 N.E.2d 626 [1999] ).   It is further “axiomatic that only a party to the proceeding complained of is entitled to maintain an action for malicious prosecution” (Jackson v. Kessner, 206 A.D.2d 123, 126, 618 N.Y.S.2d 635 [1994], lv. dismissed 85 N.Y.2d 967, 629 N.Y.S.2d 726, 653 N.E.2d 622 [1995] ).

 In the underlying litigations, however, the claims are not for malicious prosecution, which the claimants in those actions would have no standing to bring, but rather for antitrust violations.   That they refer to certain “sham litigation” allegedly brought by plaintiffs herein to maintain their monopoly on the manufacture and sale of the drug OxyContin does not transform the antitrust claims into ones for malicious prosecution (see QSP, Inc. v. Aetna Cas. & Sur. Co., 256 Conn. 343, 773 A.2d 906, supra ).