| New York State Thruway Auth. v KTA-Tator Eng'g Servs., P.C. |
| 2010 NY Slip Op 08234 [78 AD3d 1566] |
| November 12, 2010 |
| Appellate Division, Fourth Department |
| New York State Thruway Authority, Respondent, v KTA-TatorEngineering Services, P.C., Respondent/Third-Party Plaintiff-Respondent. Liberty InsuranceCorporation, Third-Party Defendant-Appellant. Liberty Insurance Corporation, Second Third-PartyPlaintiff-Appellant, v Continental Insurance Company, Second Third-PartyDefendant-Respondent. |
—[*1] Costello, Cooney & Fearon, PLLC, Syracuse (Maureen G. Fatcheric of counsel), for secondthird-party defendant-respondent. Phillips Lytle LLP, Buffalo (William D. Christ of counsel), for defendant-respondent andthird-party plaintiff-respondent. Roach, Brown, McCarthy & Gruber, P.C., Buffalo (Elizabeth G. Adymy of counsel), forplaintiff-respondent.
Appeal from a judgment (denominated decision and order) of the Supreme Court, Erie County(Patrick H. NeMoyer, J.), entered January 8, 2010. The judgment, insofar as appealed from, declared[*2]that Liberty Insurance Corporation is the sole insurer of the costs ofthe defense for KTA-Tator Engineering Services, P.C. in the main action up to the $100,000deductible/SIR in the insurance policy issued by Continental Insurance Company.
It is hereby ordered that the judgment so appealed from is unanimously affirmed without costs.
Memorandum: Third-party defendant and second third-party plaintiff, Liberty InsuranceCorporation (Liberty), contends on appeal that Supreme Court erred in granting that part of the crossmotion of second third-party defendant, Continental Insurance Company (Continental), seeking adeclaration that Libertfy is the sole insurer of the costs of the defense for defendant/third-party plaintif,KTA-Tator Engineering Services, P.C. (KTA), "in the main action up to the $100,000deductible/[self-insured retention (SIR)] set forth in the Continental [insurance] policy." Liberty furthercontends that the court erred in granting that part of Continental's cross motion seeking a declarationthat Liberty and Continental "should share the costs of defense of KTA in the main action on an equal. . . basis following the exhaustion of that $100,000 deductible/SIR." At the outset, weagree with Liberty that the doctrine of law of the case does not apply based on the prior judgment that,inter alia, granted KTA's prior motion for partial summary judgment and granted in part Continental'sprior cross motion seeking a declaration, nor does it apply based on our decision in the prior appealaffirming that judgment (New York StateThruway Auth. v KTA-Tator Eng'g Servs., P.C., 43 AD3d 1405 [2007]). That doctrine"requires that once an issue is judicially determined, it is deemed to be conclusive as to courts ofco-ordinate jurisdiction" (Metropolitan Package Store Assn. v Koch, 89 AD2d 317, 321[1982], appeal dismissed 58 NY2d 1112 [1983], appeal dismissed 464 US 802[1983], reh denied 464 US 1003 [1983]; see Emergency Enclosures, Inc. v National Fire Adj. Co., Inc., 68 AD3d1658, 1663 [2009]). Here, the issue whether Liberty was a coinsurer with Continental was notpreviously judicially determined, either explicitly or implicitly, and Liberty therefore may raise that issueon this appeal.
We nevertheless conclude that the court properly issued the declaration sought by Continental in itscross motion. Although the Continental policy refers to a "deductible," we conclude that the policyactually contains a SIR in the amount of $100,000. "A SIR differs from a deductible in that a SIR is anamount that an insured retains and covers before insurance coverage begins to apply. Once a SIR issatisfied, the insurer is then liable for amounts exceeding the retention. In contrast, a deductible is anamount that an insurer subtracts from a policy amount, reducing the amount of insurance" (In reSeptember 11th Liab. Ins. Coverage Cases, 333 F Supp 2d 111, 124 n 7 [2004]; see TokioMar. & Fire Ins. Co. v Insurance Co. of N. Am., 262 AD2d 103 [1999]).
It is well settled that a contract must be read as a whole to give effect and meaning to every term(see Village of Hamburg v American Ref-Fuel Co. of Niagara, 284 AD2d 85, 89 [2001],lv denied 97 NY2d 603 [2001]). Indeed, "[a] contract should be interpreted in a way [that]reconciles all [of] its provisions, if possible" (Green Harbour Homeowners' Assn., Inc. v G.H. Dev. & Constr., Inc., 14AD3d 963, 965 [2005]; see Village of Hamburg, 284 AD2d at 89). Here, the Continentalpolicy provided that the policy limit and $100,000 "deductible" included claim expenses, which weredefined to include defense costs. The policy further provided that the policy limit "applies as excessover any deductible amount." Inasmuch as the policy explicitly provided that the $100,000 would notreduce the policy limit, it cannot be said that the policy contained a deductible that would be subtractedfrom the policy limits. We thus conclude that the Continental policy contained a SIR and that Libertywas obligated to provide sole primary coverage to KTA for its defense costs up to $100,000 (see New York State Dormitory Auth. vScottsdale Ins. Co., 27 AD3d 1102 [2006]).[*3]
The court properly determined that Liberty and Continentalshould share equally in KTA's defense costs in excess of $100,000. The Liberty policy providedcoverage for general liability and excluded coverage for professional liability, whereas the Continentalpolicy provided coverage only for professional liability. "Thus, while the two policies provided coveragefor the same insured, the policies did not insure the same risk" (Pennsylvania Manufacturers' Assn. Ins. Co. v Liberty Mut. Ins. Co., 39AD3d 1161, 1162 [2007], lv denied 9 NY3d 810 [2007]; see HRH Constr. Corp. v CommercialUnderwriters Ins. Co., 11 AD3d 321, 323 [2004], lv denied 5 NY3d 705 [2005]).We therefore reject Liberty's contention that the court should have ordered Liberty and Continental toshare the defense costs on a pro rata basis pursuant to their different policy limits (cf. Great N. Ins.Co. v Mount Vernon Fire Ins. Co., 92 NY2d 682, 687 [1999]; Federal Ins. Co. v EmpireMut. Ins. Co., 181 AD2d 568, 569-570 [1992]). Present—Centra, J.P., Fahey, Peradotto,Lindley and Green, JJ.