Federal Insurance v. North American Specialty Insurance , 921 N.Y.S.2d 28 ( 2011 )

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered December 15, 2008, which, to the extent appealed from as limited by the briefs, granted plaintiffs cross motion for summary judgment on its cause of action for bad faith, unanimously reversed, on the law, without costs, and the cross motion denied.

Defendant-appellant Allied World Assurance Company (U.S.) Inc., formerly known as Commercial Underwriters Insurance Company (CUIC), insured Galaxy Contracting Corp. (Galaxy) under a commercial general liability (CGL) policy with a limit of $1,000,000. Plaintiff-respondent Federal Insurance Company (Federal) provided Galaxy with excess coverage up to $10,000,000. In addition, pursuant to its contractual indemnity obligation, Galaxy purchased from CUIC, for the property owners’ benefit, a separate owners and contractors protective liability policy (OCP) with a limit of $1,000,000.

The underlying Labor Law action was settled for $3,000,000. This was paid $1,000,000 by CUIC pursuant to the CGL policy and $2,000,000 by Federal pursuant to the excess policy, without prejudice to Federal’s right to recover from CUIC. This action followed and, as is relevant to this appeal, in the second cause of action, Federal alleged that it paid an extra $1,000,000 as a result of CUIC’s bad faith in failing to defend Galaxy against the owners’ indemnification claims on the basis of the antisubrogation rule. In a prior appeal (47 AD3d 52, 64 [2007]), we found that Federal sufficiently stated a cause of action for bad faith.

Under New York law, since an insurer has exclusive control over a claim against its insured once it assumes defense of the suit, it has a duty to act in “good faith” when deciding whether to settle and may be held liable for breach of that duty (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452 [1993]). This duty also applies where an excess insurer is exposed to liability (see Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 61 NY2d 569 [1984]; Elm Ins. Co. v GEICO Direct, 23 AD3d 219 [2005]), and requires a primary insurer to give as much consideration to the excess carrier’s interests as it does to its own (Pavia, 82 NY2d at 453; St. Paul Fire & Mar. Ins. Co. v United States Fid. & Guar. Co., 43 NY2d 977, 978-979 [1978]).

An insurer does not breach its duty of good faith when it makes a mistake in judgment or behaves negligently. To establish bad faith, an excess insurer must show that the primary insurer’s conduct constituted a “gross disregard” of the excess insurer’s interests and that the insurer’s conduct involved a “deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer” (Pavia, 82 NY2d at 453).

There is no formula to determine whether an insurer acted in good faith. The court must assess, among other factors, the “plaintiffs likelihood of success on the issue of liability, the potential damages award, the financial burden on each party if the insurer refuses to settle, whether the claim was properly investigated, the information available to the insurer when the demand for settlement was made, and . . . any other relevant proof tending to establish or negate the insurer’s good faith in refusing to settle” (see Pinto v Allstate Ins. Co., 221 F3d 394, 399 [2d Cir 2000], citing Pavia, 82 NY2d at 454-455).

Given these stringent standards, there remains a material issue of fact as to whether CUIC was merely negligent or whether CUIC and/or its counsel were aware that the antisubrogation rule applied and deliberately failed to assert the defense in order to allow the owners to escape liability, thereby removing the OCP policy from the layer of coverage that had to be exhausted before triggering Federal’s excess coverage. Although the memos and correspondence submitted by plaintiff could conceivably support a bad faith verdict after trial, it is for the finder of fact to determine whether the documents establish a deliberate plan by CUIC or merely reflect discussions of the consequences of a valid indemnity claim by the owner against Galaxy. Concur— Andrias, J.P., Moskowitz, Freedman and Román, JJ.