Long Island Lighting Co. v. Allianz Underwriters Insurance

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered March 17, 2005, which, to the extent appealed from as limited by the briefs, upon granting plaintiffs motion for reargument and renewal, modified an earlier order of the same court (Ira Gammerman, J.), entered on or about December 24, 2003, to deny summary judgment to defendant Continental Casualty Company, affirmed, with costs.

“The supreme court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed” (CFLR 3001). A declaratory judgment action thus “requires an actual controversy between genuine disputants with a stake in the outcome,” and may not be used as “a vehicle for an advisory opinion” (Siegel, Fractice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CFLR C3001:3).

Here, the “potential liability” may reach into Continental’s excess coverage, rendering this controversy justiciable. The Court of Appeals has recognized that, “there are different ways to prorate liability among successive policies” (Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208, 224 [2002]). Furthermore, the worst case or “highest estimate of damages” (id. at 225) may be used to ascertain whether or not a claim is justiciable against a particular excess insurer’s policy (State Farm Fire & Cas. Co. v LiMauro, 103 AD2d 514, 517-518 [1984], affd 65 NY2d 369 [1985]). Our holding in Combustion Eng’g v Travelers Indem. Co. (75 AD2d 777 [1980], affd 53 NY2d 875 [1981]), relied upon by defendant Continental, does not dictate the opposite conclusion. The plaintiff in Combustion Engineering pleaded damages in an amount less than the excess carrier’s policy floor, and thus failed to state a claim that the excess policy could even be reached. Given plaintiffs highest projected damages in the instant case, as established by their expert who took into account, inter alia, new investigations and concomitant remedial recommendations as well as the County’s push for more stringent clean-up measures, there is a question of fact precluding summary judgment and as to whether Continental’s excess insurance policy is implicated. Concur—Nardelli, J.P, Catterson and Malone, JJ.