Opinion
May 6, 1999
Appeal from the Supreme Court, New York County (Barry Cozier, J.).
The exclusionary language on which defendant relies defines the term "Insured(s)" to include "any past * * * Directors or Officers of the Company", and provides "The Insurer shall not be liable to make any payment for Loss in connection with any claim or claims made against the Directors or Officers * * * (i) which are brought by any Insured or the Company; or which are brought by any security holder of the Company, whether directly or derivatively, unless such claim(s) is instigated and continued totally independent of, and totally without the solicitation of, or assistance of, or active participation of, or intervention of, any Insured or the Company; provided, however, this exclusion shall not apply to wrongful termination of employment claims brought by a former employee other than a former employee who is or was a Director of the Company." Such language clearly and unambiguously excludes coverage of the derivative and class action claims that were brought against plaintiff by its former director ( see, Levy v. National Union Fire Ins. Co., 889 F.2d 433 [2d Cir.]; accord, Kiewit Diversified Group v. Federal Ins. Co., 999 F. Supp. 1169 [ND Ill]; Voluntary Hosps. v. National Union Fire Ins. Co., 859 F. Supp. 260 [ND Tex], affd 24 F.3d 239 [5th Cir.]; Parker v. Watts, 1987 U.S. Dist LEXIS 6862, 1987 WL 7450 [ED La, Feb. 27, 1987, Schwartz, J.]).
Concur — Sullivan, J. P., Rosenberger, Tom and Wallach, JJ.