Opinion
Decided October 19, 1982
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, FRANK R. BAYGER, J.
Howard V. Burke for appellant.
Frank G. Godson for Hartford Insurance Group, respondent.
James E. Kehoe for Blue Bird Coach Lines, Inc., respondent.
MEMORANDUM.
The order appealed from and the order brought up for review should be reversed and judgment granted declaring that Hartford and Jefferson are to contribute in amounts in accordance with their settlement agreement. Mutual excess policies covering the same risk cancel each other out ( Federal Ins. Co. v Atlantic Nat. Ins. Co., 25 N.Y.2d 71). Here, neither clause contains language specifically making one an excess insurer over all other excess insurers covering the same risk, and neither one contains language the plain meaning of which would be distorted by the application of the general rule (contrast Lumbermens Mut. Cas. Co. v Allstate Ins. Co., 51 N.Y.2d 651, with Public Serv. Mut. Ins. Co. v Firemen's Fund Amer. Ins. Cos., 55 N.Y.2d 868). Accordingly, the insurers have presented no basis upon which to alter the terms of their settlement agreement.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
On review of submissions pursuant to rule 500.2 (b) of the Rules of the Court of Appeals (22 N.Y.CRR 500.2 [g]), order appealed from and order brought up for review reversed, with costs, and judgment granted in accordance with the memorandum herein.