Viacom Inc. v. Philips Electronics North America Corp.

10 Citing cases

  1. Dresser-Rand Co. v. Ingersoll Rand Co.

    14 Civ. 7222 (KPF) (S.D.N.Y. Jul. 14, 2015)   Cited 10 times   1 Legal Analyses
    Finding adjudication of a duty to defend premature when coextensive with an unripe duty to indemnify

    That is to say, such provisions "must be strictly construed to avoid inferring duties that the parties did not intend to create." Bank of N.Y. Tr. Co. v. Franklin Advisers, Inc., 726 F.3d 269, 283-84 (2d Cir. 2013); see also Viacom Inc. v. Philips Elecs. N. Am. Corp., 791 N.Y.S.2d 104, 104 (1st Dep't 2005) (noting that a "contract of indemnity ... [is] strictly construed"); cf. Fieldston Prop. Owners Ass'n, Inc. v. Hermitage Ins. Co., 16 N.Y.3d 257, 264 (2011) ("An insurer's duty to defend is liberally construed and is broader than the duty to indemnify, in order to ensure an adequate defense of the insured without regard to the insured's ultimate likelihood of prevailing on the merits of a claim." (emphasis added, internal quotation marks and citations omitted)).

  2. Bradley v. Earl B. Feiden

    2007 N.Y. Slip Op. 1386 (N.Y. 2007)   Cited 120 times
    Holding no inconsistency in jury verdict rejecting strict products liability claim on whether refrigerator timer caused a fire but finding circumstantial evidenced that fire originated in freezer sufficient for breach of warranty claim, acknowledging Clarke case

    The jury verdict precludes indemnification for defense costs. ( Viacom Inc. v Philips Elecs. N. Am. Corp., 16 AD3d 215; Brasch v Yonkers Constr. Co., 306 AD2d 508; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738; Medina v New York El. Co., 250 AD2d 656; Cannavale v County of Westchester, 158 AD2d 645; State of New York v Syracuse Rigging Co., 249 AD2d 758; International Paper Co. v Continental Cas. Co., 35 NY2d 322; Hotel des Artistes, Inc. v General Ace. Ins. Co. of Am., 9 AD3d 181.) IV The court improperly denied the motion for summary judgment for any claims of indemnity arising after the verdict.

  3. Bradley v. Earl B. Feiden, Inc.

    30 A.D.3d 709 (N.Y. App. Div. 2006)   Cited 3 times

    -South's role was limited to assembling the defrost timer (which was manufactured by third-party defendant North American Sankyo Corporation) into a bracket control assembly. Since the jury specifically rejected the defrost timer as a cause of the fire, there was no basis under the contract to require Mid-South to indemnify GE in any respect ( see generally Hooper Assoc. v. AGS Computers, 74 NY2d 487, 491-492; Viacom Inc. v. Philips Elecs. N. Am. Corp., 16 AD3d 215, 215-216; Szafranski v. Niagara Frontier Transp. Auth., 5 AD3d 1111, 1113; Brasch v. Yonkers Constr. Co., 306 AD2d 508, 510-511). Mugglin, J., concurs.

  4. Pac. W. Bank v. 919 Old Winter Haven Realty, LLC

    2022 N.Y. Slip Op. 31855 (N.Y. Sup. Ct. 2022)

    Defendants are non-insurers and their duty to defend, unlike the duty of an insurer, is not broader than their duty to indemnify (Cuomo v 53rd & 2nd Assocs., LLC, 111 A.D.3d 548, 548 [1st Dept 2013]). The duty of non-insurers to indemnify is strictly construed (Viacom Inc. v Philips Electronics North America Corp., 16 A.D.3d 215, 215 [1st Dept 2005]), while the duty of an insurer is liberally construed (Fieldston Prop. Owners Assn., Inc. v Hermitage Ins. Co., Inc., 16 N.Y.3d 257, 264 [2011]). Although the indemnification provisions in the loan agreements and the guaranty are broad, the court does not construe them to suggest that they place on defendants the same duty as insurers.

  5. Cref 546 W. 44th St., LLC v. Hudson Meridian Constr. Grp.

    69 Misc. 3d 747 (N.Y. Sup. Ct. 2020)   Cited 1 times   1 Legal Analyses

    Thus, indemnity for wrongdoing is barred only where the wrongdoer is alleged (or found) "to have intended the consequences of such conduct." ( Viacom Inc. v. Philips Elecs. N. Am. Corp. , 16 A.D.3d 215, 216, 791 N.Y.S.2d 104 [1st Dept. 2005] [emphasis added].) Conversely, "one whose intentional act causes an unintended injury may be ... indemnified." ( Public Serv. Mut. Ins. Co. v. Goldfarb , 53 N.Y.2d 392, 399, 442 N.Y.S.2d 422, 425 N.E.2d 810 [1981].)

  6. Allergan Fin., LLC v. Pfizer Inc.

    67 Misc. 3d 1206 (N.Y. Sup. Ct. 2020)   Cited 1 times

    It is axiomatic that the right to contractual indemnification depends on the specific language of the contract at issue ( Roldan v. New York Univ. , 81 AD3d 625, 628 [2d Dept 2011] ). Outside of the insurance context, where the duty to defend is exceedingly broad and distinct from the duty to indemnify, contractual defense obligations are generally treated like any other contractual provision (seeViacom Inc. v. Philips Electronics N. Am. Corp. , 16 AD3d 215 [1st Dept 2005] ; Mercolla v. Manmall, LLC , 2008 WL 4699066 [Sup Ct NY Cnty October 14, 2008] ["Although, as often proclaimed, the duty to defend is broader than the duty to indemnify, this rule is generally applicable [only] to insurers").

  7. Pradera Realty Corp. v. Maestro W. Chelsea SPE, LLC

    2017 N.Y. Slip Op. 31356 (N.Y. Sup. Ct. 2017)

    F. SEVENTH CAUSE OF ACTION—CONTRACTUAL INDEMNIFICATION Although the seventh cause of action sufficiently states a cause of action for contractual indemnification (see Viacom Inc. v Philips Elecs. N. Am. Corp., 16 AD3d 215 [1st Dept. 2005]), the indemnification provision relied upon is contained in the ZLDA, but not in the settlement agreement. Hence, the issues raised by the seventh cause of action are subject to arbitration, and that cause of action must be dismissed from this action.

  8. Hoffman v. Biltmore 47 Assocs., LLC

    2012 N.Y. Slip Op. 32543 (N.Y. Sup. Ct. 2012)

    Mass Electric "is not an insurer, and the contract of indemnity to which it is bound, strictly construed, does not impose upon it a defense obligation comparable in breath to that ordinarily borne by an insurer; its duty to defend is no broader than its duty to indemnify [internal citations omitted]." Viacom Inc. v Philips Electronics North America Corp., 16 AD3d 215, 215-216 (1st Dept 2005). In reviewing the insurance documents provided with the papers, the court agrees with Mass Electric that it has purchased the general commercial liability insurance mandated by its agreement with Sweet. "The insurer's refusal to indemnify [defendants/third-party plaintiffs] under the coverage purchased by [Mass Electric] does not alter this conclusion."

  9. 50 Madison Ave., LLC v. Rcdolner, LLC

    2010 N.Y. Slip Op. 30910 (N.Y. Misc. 2010)

    Regarding the scope of the duty to defend, in moving, Samson argues that First Department precedent imposes a broader duty to defend than to indemnify in non-insurance policy cases, and that an indemnitor must defend even if certain claims fall outside of the scope of the indemnification obligation (Samson Memo of Law, at 10-12). In Viacom Inc. v PhilipsElecs. N. Am. Corp. ( 16 AD3d 215, 215-216 [1st Dept 2005]), however, the First Department slated: "[d]efendant is not an insurer, and the contract of indemnity pursuant to which it is bound, strictly construed, does not impose upon it a defense obligation comparable in breadth to that ordinarily borne by an insurer; its duty to defend is no broader than its duty to indemnify [citations omitted]" ( see also Brasch v Yonkers Constr. Co., 306 AD2d 508 [2d Dept 2003]). This clear language does not support Samson's assertion that an indemnitor must defend for claims that fall outside of [he scope of the indemnification obligation.

  10. Mercorella v. Manmall, LLC

    2008 N.Y. Slip Op. 32879 (N.Y. Misc. 2008)

    Although, as often proclaimed, the duty to defend is broader than the duty to indemnify ( Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 310), this rule is generally applicable to insurers. Where the party promising defense is not an insurer, the duty to defend is no broader than its duty to indemnify and is limited by the contractual language ( Viacom, Inc. v Philips Elec. N. Am. Corp., 16 AD3d 215, 215-216 [1st Dept 2005]; Rodriguez v Savoy Boro Park Assoc. Ltd. Partnership, 304 AD2d 738, 739 [2d Dept 2003]). Under the contracts in this case, the subcontractors were to defend and indemnify against damages caused by their own whole or partial negligence.