TRAVELERS CASUALTY AND SURETY COMPANY v. CERTAIN UNDERWRITERS AT LLOYD

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Supreme Court, Appellate Division, First Department, New York.

TRAVELERS CASUALTY AND SURETY COMPANY, etc., Plaintiff-Appellant, v. CERTAIN UNDERWRITERS AT LLOYD'S, et al., Defendants-Respondents.

Decided: July 01, 1999

ROSENBERGER, J.P., WILLIAMS, MAZZARELLI, LERNER and BUCKLEY, JJ. Joseph M. McLaughlin, Mary Kay Vyskocil, for Plaintiff-Appellant. Robert B. Robinson, for Defendants-Respondents.

Order, Supreme Court, New York County (Barry Cozier, J.), entered May 21, 1998, which, in an action by an insurer against reinsurers for breach of reinsurance contracts, insofar as appealed from, denied plaintiff's motion for summary judgment, unanimously affirmed, with costs.

 In the absence of controlling reinsurance case law interpreting the contract language providing for the aggregation of multiple occurrences having a common origin or being traceable to the same act, omission or error, the IAS court properly looked to direct insurance case law interpreting similar contract language, namely, Stonewall Ins. Co. v. Asbestos Claims Mgt. Corp., 73 F.3d 1178, 1213 (2nd Cir.1995), mod. on other grounds 85 F.3d 49, and Johnson Corp. v. Indemnity Ins. Co. of N. Am., 7 N.Y.2d 222, 228-230, 196 N.Y.S.2d 678, 164 N.E.2d 704.   On the basis of such case law, the IAS court correctly rejected plaintiff's argument that aggregation of the disparate pollution occurrences underlying the multiple claims against its insured was necessarily justified by the latter's company-wide policy or practice of ignoring environmental concerns.   We have considered plaintiff's other arguments, including that its aggregation of its insured's losses is justified by the “follow-the-fortunes” doctrine, and find them to be unavailing.

MEMORANDUM DECISION.