The opinion of the court was delivered by: DUFFY
The plaintiff, Emons Industries, Inc., and the defendant Liberty Mutual Life Insurance Co., have jointly requested that I reconsider my earlier decision, dated October 18, 1979, on the narrow question of the manner in which Liberty's duty to defend the plaintiff and that of its co-defendant, Reserve Insurance Company, will be satisfied. In addition, the Keene Corporation, not a party to the instant action, requested and was granted an opportunity to file an Amicus brief in support of the reargument.
Since it has come to my attention that certain facts upon which my prior decision rested at least in part, were not accurately presented to me earlier, the motion to reargue is granted and the Opinion modified as provided below.
In my earlier Opinion, I found that there was a potential conflict between Liberty and Reserve and permitted Reserve the opportunity to obtain counsel of its choosing to defend plaintiff. This conclusion was based upon the statement of Emons' counsel to the effect that Liberty had chosen plaintiff's counsel. As it developed, however, Emons retained its own counsel and when Liberty recognized its duty to defend the plaintiff, it concurred in the plaintiff's choice of counsel. Thus, there is no indication that any conflict presently exists either between the insured and the insurance companies or between the insurance companies themselves. Nor does a future conflict appear to be likely insofar as the defense of plaintiff is concerned.
In addition, under the circumstances, any delay on the part of Emons or Reserve in making the motion to reargue was excusable and will not defeat this motion.
I turn finally to the Amicus brief filed herein. The brief argues the question of whether "manifestation" or "exposure" should govern an insurer's ultimate liability to an insured. This question, however, is not before me and I must decline the invitation to render an advisory opinion. The case before me only concerns the question of whether the defendants were under a duty to defend the plaintiff in the DES related cases. Having answered this question in the affirmative, I need not speculate as to which of the defendants, if either, will be required to indemnify the plaintiff.
Accordingly, it was inappropriate to permit Reserve to retain independent counsel to defend the plaintiff. This is a choice belonging only to the plaintiff. Prashker v. U. S. Guaranty Co., 1 N.Y.2d 584, 154 N.Y.S.2d 910, 136 N.E.2d 871 (1956). Thus, Reserve is hereby ordered to satisfy its duty to defend plaintiff by contributing its pro-rata share of the current defense costs.
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