| DRK, LLC v Burlington Ins. Co. |
| 2010 NY Slip Op 05698 [74 AD3d 693] |
| June 29, 2010 |
| Appellate Division, First Department |
| DRK, LLC, et al., Respondents, v The BurlingtonInsurance Company, Appellant. |
—[*1] Zisholtz & Zisholtz, LLP, Mineola (Robert Vadnais of counsel), for respondents.
Order, Supreme Court, New York County (Ira Gammerman, J.H.O.), entered August 7,2009, which, in a declaratory judgment action involving defendant insurer's obligation to defendand indemnify plaintiffs in an underlying action for personal injury, granted defendant's motionfor summary judgment only with respect to the plaintiff that was the underlying plaintiff'semployer and also the subtenant of the accident site, and, insofar as appealed from, denieddefendant's motion with respect to the remaining plaintiffs, namely, the owner and main tenantof the accident site and the latter's managing member, and order, same court and JudicialHearing Officer, entered December 22, 2009, which granted plaintiffs' motion for summaryjudgment in favor of the remaining plaintiffs, unanimously reversed, on the law, without costs,defendant's motion granted in full, plaintiffs' motion denied as academic, and it is declared thatdefendant has no obligation to defend or indemnify any of the plaintiffs herein in the underlyingaction. The Clerk is directed to enter a judgment so declaring.
The "Exclusion-Cross Liability" endorsement states that the subject insurance does not applyto any actual or alleged bodily injury to an employee of "any insured." This Court has held thatsuch language unambiguously excludes coverage even where the injured party was an employeeof another insured under the policy (see Tardy v Morgan Guar. Trust Co. of N.Y., 213AD2d 296 [1995]; Consolidated Edison Co. of N.Y. v United Coastal Ins. Co., 216AD2d 137 [1995], lv denied 87 NY2d 808 [1996]). Neither the general "Separation ofInsureds" provision contained in the policy, nor the separation of insureds doctrine (seeGreaves v Public Serv. Mut. Ins. Co., 5 NY2d 120, 124-125 [1959], explaining Morganv Greater N.Y. Taxpayers Mut. Ins. Assn., 305 NY 243, 247-248 [1953]), renders thisexclusion ambiguous. The separation of insureds provision primarily highlights the namedinsured's separate rights and duties, as well as makes clear that the limits of the policy are to beshared by all of the insureds, i.e, that they are not each able to exhaust the limits of coverage butmust share that limit equally; it does not negate bargained-for exclusions, or otherwise expand,or limit, coverage (see American Wrecking Corp. v Burlington Ins. Co., 400 NJ Super276, 284, 946 A2d 1084, 1089 [App Div 2008]).[*2]
In any event, the cross liability exclusion here clearlystates, in bold and capital letters: "THIS ENDORSEMENT CHANGES THE POLICY.PLEASE READ IT CAREFULLY," and therefore would modify the separation of insuredsprovision to the extent the two clauses were in conflict. Plaintiffs' reading of the cross liabilityexclusion, however, would impermissibly modify it to change "any insured" to "the insured" orto "the insured employer," or other such limiting language that simply is not in the policy(see Bretton v Mutual of Omaha Ins. Co., 110 AD2d 46, 49 [1985], affd 66NY2d 1020 [1985]; RM RealtyHoldings Corp. v Moore, 64 AD3d 434, 437 [2009]). Furthermore, the separation ofinsureds provision is a general provision, while the cross liability exclusion is specific, andtherefore the latter would control to the extent there is a conflict (see Muzak Corp. v HotelTaft Corp., 1 NY2d 42, 46-47 [1956]; see e.g. Greenwich Ins. Co. v Volunteers of Am.-Greater N.Y., Inc., 62AD3d 557 [2009]).
We have examined plaintiffs' remaining arguments and find them to be unavailing.Concur—Andrias, J.P., Saxe, Friedman, Nardelli and Acosta, JJ.