| Citizens Ins. Co. of Am. v Illinois Union Ins. Co. |
| 2013 NY Slip Op 03039 [105 AD3d 679] |
| April 30, 2013 |
| Appellate Division, First Department |
| Citizens Insurance Company of America,Appellant, v Illinois Union Insurance Company, Respondent, et al.,Defendant. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Eric D. Suben of counsel),for respondent.
Order, Supreme Court, New York County (Donna M. Mills, J.), entered May 10,2012, which granted defendant Illinois Union Insurance Company's motion for summaryjudgment dismissing the complaint as against it, denied, in part, plaintiff's cross motionfor summary judgment, and declared, among other things, that the limit of IllinoisUnion's indemnity obligation on behalf of Northside Tower Realty, LLC and NorthsideTower Enterprises (Northside) for the underlying personal injury action was $100,000,unanimously affirmed, with costs.
Based upon the plain language of the Illinois Union insurance policy (see P.J.P. Mech. Corp. vCommerce & Indus. Ins. Co., 65 AD3d 195, 198 [1st Dept 2009]), the motioncourt properly found that the sub-limit endorsement contained in that policy, which onlyimposes conditions upon the "named insured," yet provides that coverage for "any suchloss" will be reduced to $100,000 if the "named insured" breaches any of the conditions,also automatically will reduce the policy limit of an "additional insured." Even applyingthe separation of insureds doctrine, which provides that "each individual. . . insured although not named as an insured in the policy must be treatedas if separately covered by the policy" (Greaves v Public Serv. Mut. Ins. Co., 5NY2d 120, 124 [1959]), the sub-limit endorsement language still applies to all insureds,named or additional.
Citizens' argument, that under Insurance Law § 3420 (d), Illinois Union isestopped from relying on its sub-limit endorsement because of a purported delay inasserting same, is unavailing because there is no showing of prejudice to the insured byreason of the sub-limit (seeFederated Dept. Stores, Inc. v Twin City Fire Ins. Co., 28 AD3d 32, 38 [1stDept 2006]). Here, Illinois Union provided Northside with a full defense in theunderlying action and full payment of the [*2]sub-limitcoverage, and there was no excess exposure to the insured because the Citizens coverageapplied as excess and paid the balance of the settlement. There is no prejudice toadditional insured Northside on these facts, and thus no basis for an estoppel.Concur—Acosta, J.P., Moskowitz, Renwick, Freedman and Clark, JJ. [PriorCase History: 2012 NY Slip Op 31236(U).]