Opinion
01-17-2017
LIFELOCK, INC., Plaintiff–Appellant, v. CERTAIN UNDERWRITERS AT LLOYD'S, etc., Defendant–Respondent.
Miller Friel, PLLC, New York (Brian G. Friel of counsel), and Mark E. Miller of the bar of the State of Texas and the bar of the District of Columbia, admitted pro hac vice, of counsel, for appellant. Simpson Thacher & Bartlett LLP, New York (Bryce L. Friedman of counsel), for respondent.
Miller Friel, PLLC, New York (Brian G. Friel of counsel), and Mark E. Miller of the bar of the State of Texas and the bar of the District of Columbia, admitted pro hac vice, of counsel, for appellant.
Simpson Thacher & Bartlett LLP, New York (Bryce L. Friedman of counsel), for respondent.
ACOSTA, J.P., MAZZARELLI, MANZANET–DANIELS, WEBBER, GESMER, JJ.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered November 19, 2015, which, to the extent appealed from, granted defendant's motion to dismiss counts one and two of the complaint, unanimously affirmed, with costs.
The insurance policy issued to plaintiff by defendant excludes from coverage claims "[a]rising out of any related or continuing acts, ... where the first such act ... was committed ... prior to the Retroactive Date" (Exclusion L). The policy shows January 8, 2008 as the Retroactive Date. In the underlying action, for which plaintiff seeks defense and indemnification from defendant, six of the eight causes of action are expressly based on allegations of acts performed before 2008, and the remaining two specifically incorporate those allegations. Thus, the underlying complaint in its entirety falls within exclusion L (see Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 137, 818 N.Y.S.2d 176, 850 N.E.2d 1152, 850 N.E.2d 1152 [2006] ; see also Albert J. Schiff Assoc. v. Flack, 73 A.D.2d 329, 332–333, 425 N.Y.S.2d 612 [1st Dept.1980], affd. 51 N.Y.2d 692, 435 N.Y.S.2d 972, 417 N.E.2d 84 [1980] ). It also falls in its entirety within Exclusion I, which excludes coverage for claims arising out of or resulting from unfair trade practices.
It is not necessary to reach defendant's contention that the complaint is untimely.