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Westchester Fire Insurance Co. v. MCI Communications Corp.

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


June 15, 2010

WESTCHESTER FIRE INSURANCE COMPANY, PLAINTIFF,
v.
MCI COMMUNICATIONS CORPORATION, DEFENDANT-APPELLANT,
THE AETNA CASUALTY & SURETY COMPANY, ETC., ET AL., DEFENDANTS,
CNA INSURANCE COMPANY, ET AL., DEFENDANTS-RESPONDENTS,
CHUBB INDEMNITY INSURANCE COMPANY, ET AL., THIRD-PARTY PLAINTIFFS,
v.
MCI WORLDCOM NETWORK SERVICES, INC., THIRD-PARTY DEFENDANT-APPELLANT.

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered October 22, 2009, which, inter alia, granted CNA Insurance Company's motion for summary judgment declaring that it does not have a duty to pay MCI's "first dollar" defense costs and denied as moot MCI's motion for summary judgment declaring that CNA has a duty to defend it in numerous landowner actions, 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.

Mazzarelli, J.P., Moskowitz, DeGrasse, Abdus-Salaam, Manzanet-Daniels, JJ.

117236/01

The court, in a well-reasoned decision, properly found endorsement 30 in the 1992-95 policies at issue unambiguous in providing that MCI is liable for its own defense costs. Contrary to MCI's contention, the provision is not an exclusion (see Pav-Lak Indus., Inc. v Arch Ins. Co., 56 AD3d 287, 288 [2008]). Absent ambiguity, extrinsic evidence is inadmissible. Nor is there a need to resort to contra proferentum, which, in any event, would be inapplicable to this sophisticated policyholder (see Cummins, Inc. v Atlantic Mut. Ins. Co., 56 AD3d 288, 290 [2008]).

We have considered MCI's other contentions and find them unavailing.

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

20100615

© 1992-2010 VersusLaw Inc.



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