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Scotts Company, LLC v. Pacific Employers Insurance Co.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 9, 2009

THE SCOTTS COMPANY, LLC, PLAINTIFF,
v.
PACIFIC EMPLOYERS INSURANCE COMPANY, ET AL., DEFENDANTS. PACIFIC EMPLOYERS INSURANCE COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT, EMPLOYERS INSURANCE OF WAUSAU, ETC., ET AL., THIRD-PARTY DEFENDANTS-RESPONDENTS.

Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 27, 2008, which, to the extent appealed from as limited by the briefs, denied third-party plaintiff's motion to amend its third-party complaint to seek relief enjoining its co-insurers from seeking contribution in this matter as to any claims in any proceeding in any jurisdiction, unanimously affirmed, with costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Sweeny, Catterson, Renwick, JJ.

602712/05

The court properly denied appellant's motion to amend the third-party complaint since the proposed amendment did not state a viable claim for relief. The amendment sought to enjoin appellant's co-insurers from proceeding against appellant for contribution based upon appellant's settlement agreement with the insured and upon General Obligations Law § 15-108. The court correctly found that the settlement agreement's express contemplation of contribution claims by the co-insurers was a waiver of § 15-108's protections (see Mitchell v New York Hosp., 61 NY2d 208, 213 [1984]). Moreover, § 15-108 applies only to joint tortfeasors, not to co-insurers (HRH Constr. Corp. v Commercial Underwriters Ins. Co., 11 AD3d 321, 323 [2004]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090409

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