Opinion
December 7, 1971
Order and judgment (one paper), Supreme Court, New York County, entered on July 10, 1970, granting declaratory judgment for plaintiff, adjudging defendant liable for one half of the settlement and expenses paid by plaintiff and directing an assessment with respect thereto, unanimously modified, on the law, to the extent of adjudging the defendant liable on a pro rata basis, and otherwise affirmed, without costs and without disbursements. The insured, covered under two policies, was a defendant in a wrongful death action. The two carriers for the insured agreed to a settlement of that action in the sum of $50,000, but were unable to agree how the settlement should be shared between them. Plaintiff's liability coverage was limited to $500,000 and defendant's liability coverage to $100,000. Both policies contained excess insurance clauses which effectively canceled each other out, leaving both policies to be treated as primary insurance. Each policy assumed the same risk "and both must contribute, pro rata, toward payment of the cost of settlement and legal fees, and other expenses of the litigation." ( Federal Ins. Co. v. Atlantic Nat. Ins. Co., 25 N.Y.2d 71.) Settle order on notice.
Concur — McGivern, J.P., Markewich, Kupferman, Murphy and McNally, JJ.