also selected a law firm to represent Karl. See id. at P 14. Aetna did not participate in the action throughout the course of discovery. See id. at P 16.
In November 1989, a suit negotiator for National advised Aetna that National would not settle the aforesaid action unless Aetna contributed fifty percent to a proposed settlement. See id. at P 21. Aetna maintained that the third-party action was improperly brought by National against Karl since Karl was its own insured, but in order to facilitate settlement, agreed to pay twenty-five percent without prejudice to a subsequent action between the respective insurance companies, to determine whether, and to what extent, Aetna was liable for a share of the settlement. See id. at P 22.
It is well settled that an insurer has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered. Pennsylvania General Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 502 N.E.2d 982, 510 N.Y.S.2d 67 (1986). In Pennsylvania General, the insurer, after settling a personal injury action under a basic automobile policy on behalf of the owner of a truck that had exploded, interposed a cross-claim for contract indemnification against the renter of the truck, who was also named as an additional insured under the same basic policy. The New York Court of Appeals, expressly relying on public policy concerns arising out of the potential for conflict of interest inherent in such situations, held that the cross-claim could not be sustained.
Id. at 472, 502 N.E.2d at 986, 510 N.Y.S.2d at 71.
In that case, as here, the interests of the insured-indemnitor could only be protected through the vigorous defense of the insured-indemnitee in the underlying personal injury action. Yet if indemnification could be had here from the indemnitor through a separate insurance policy maintained by the indemnitor with another insurer, the insurer would have no incentive to defend the indemnitee on the issue of liability because it would have no economic interest in doing so. Id. Thus, allowing the indemnification claim here would place National's own interests at variance with those of the MTA.
Indeed, the facts of this case amply demonstrate that National did in fact place its own interests ahead of its insured's. National, which controlled MTA's defense, chose not to assert the MTA's contract indemnification claim against Karl, which it was in MTA's interest to assert, for the specific purpose, as was conceded at Oral Argument, of triggering Aetna's liability under Karl's workers' compensation policy which excluded coverage for contract indemnification claims. This is especially evident since the reports of the law firms appointed to represent the MTA and Karl indicated the existence of a "very strong contractual indemnification provision" in the MTA wrecking contract, and National's own files indicated a "very valid hold harmless clause."See Stip. at Ex. L. Clearly, the omission of the contractual indemnification claim, on this record, was not in the best interests of the MTA and leads to the inescapable conclusion that National was orchestrating the litigation so as to shift its liability to Aetna.
This conclusion is supported by Covert v. City of Binghamton, 117 Misc. 2d 1075, 459 N.Y.S.2d 721 (Sup. Ct. 1983), which this Court finds persuasive. In that case, where the same insurer insured both the contractor and the owner, the court interpreted the underlying contract to provide that the contract indemnification clause superseded the owner's right of common law indemnification, so as "to prevent the inequitable situation where . . . [the insurer] takes advantage of its control of the owner's third-party action so as to bring the third-party claim outside the scope of its coverage by manipulating the theories of indemnity." Id. at 1079, 459 N.Y.S.2d at 724. The court stated that where the same insurer provides coverage for the owner and contractor, "the insurer owes a duty of fair dealing and the attorneys provided by the insurer representing the owner are equitably precluded from bringing a third-party action based upon common-law rather than contractual indemnification." Id. at 1080, 459 N.Y.S.2d at 724. See United States Steel Corp. v. Hartford Accident & Indem. Co., 511 F.2d 96 (7th Cir. 1975); Feller v. Sano-Rubin Constr. Co., 82 Misc. 2d 890, 370 N.Y.S.2d 349 (Sup. Ct. 1975).
Finally, plaintiff's reliance on Hartford Accident v. Michigan Mutual Ins. Co., 61 N.Y.2d 569, 463 N.E.2d 608, 475 N.Y.S.2d 267 (1984), is misplaced. Indeed, that case supports Aetna's position here. In Hartford, the Court held that a primary insurer owes the same duty of good faith to the excess carrier that it owes to its own insureds, and that therefore a question of fact existed as to whether the primary carrier, by failing to implead an affiliated company, was properly acting to protect its insured, or whether it was improperly acting in its own interests by manipulating the litigation so that the excess carrier's policy would be activated and the primary carrier would not have to share in or substitute for that liability. Id. at 574, 463 N.E.2d at 610, 475 N.Y.S.2d at 269. Since there is no question in the instant case that National was in fact manipulating the litigation for its own benefit and not for the benefit of either of its insureds, the public policy concerns expressed in Pennsylvania General dictate that National's contentions be rejected.
Accordingly, for the reasons given above, National's request for declaratory relief shall be and hereby is denied. The Clerk of the Court is directed to close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
May 21, 1992
John E. Sprizzo
United States District Court