Executive Risk Indemnity, Inc. v. Cigna Corp.

DISSENTING STATEMENT by

McEWEN, P.J.E.:

¶ 1 While the memorandum of the majority reveals a thorough analysis and presents a perceptive expression of rationale, I am impelled to this dissent. As I see it, Cigna, having entered into an agreement in the prior litigation not to classify their conduct as violative of the RICO statute,¹ can not now label and seek coverage for those actions as being wrongful RICO based conduct. Thus, Cigna’s election of an expedient remedy in the prior litigation estops it from asserting a contrary claim here. Consequently, its liability to its policy holders in the prior litigation necessarily rested upon its denial of legitimate claims, which is not a covered loss under the Executive Risk policy.

¶ 2 Therefore, I would affirm the decision rendered by learned Judge Mark I. Bernstein.

1 . The "RICO” statute is formally known as the Racketeer Influenced and Corrupt Organi-zationsAct, 18 U.S.C. §§ 1961-1968.