Citation Numbers: 32 A.D.2d 900
Filed Date: 7/3/1969
Status: Precedential
Modified Date: 1/12/2022
Order, entered March 3, 1969, unanimously reversed and vacated, on the law, without costs and without disbursements, and plaintiff’s motion for partial summary judgment denied. Although the insurer (defendant) authorized the insured (plaintiff’s predecessor) to retain the particular Chicago firm of attorneys to defend the action brought by Barias and authorized a settlement of the action for $7,500, there are issues of fact precluding the granting of summary judgment for the total amount of the settlement and for the total fees and expenses charged by the Chicago firm of attorneys for defending the action. The “Lloyd’s Policy ”, upon which this action was based, was issued to cover liability of the insured in connection with the July 26, 1962 registration and prospectus filed with the United States Securities and Exchange Commission concerning certain shares of common stock of Perfect Photo, Inc., and it is clear that the policy did not cover certain of the claims made by Barias that were the subject of his action against the insured and others. The insurer contends that its responsibility to indemnify the insured is limited to the portion of the settlement properly attributable to those claims of Barias covered by the policy and to the reasonable attorneys’ fees and expenses incurred in connection with the defense against such claims. On the other hand, the plaintiff (successor to the rights of the insured) contends that the insurer may not apportion the settlement payment or the legal expenses; that the insurer is liable for the full amount of the settlement since it approved the settlement of the action in the total sum without contending at the time for any apportionment; and that the insured is liable for the full amount of legal expenses incurred in defending the action, the plaintiff relying particularly upon