Opinion
13180 Index No. 158095/12 Case No. 2020-03653
02-23-2021
TRUMBULL EQUITIES LLC, et al., Plaintiffs–Appellants, v. MT. HAWLEY INSURANCE COMPANY, Defendant–Respondent.
Kennedys CMK LLP, New York (Max W. Gershweir of counsel), for appellants. Delahunt Law PLLC, Buffalo (Timothy E. Delahunt of counsel), for respondent.
Kennedys CMK LLP, New York (Max W. Gershweir of counsel), for appellants.
Delahunt Law PLLC, Buffalo (Timothy E. Delahunt of counsel), for respondent.
Kapnick, J.P., Webber, Mazzarelli, Oing, JJ.
Judgment, Supreme Court, New York County (Robert R. Reed, J.), entered September 1, 2020, to the extent appealed from as limited by the briefs, granting plaintiff CastlePoint National Insurance Company recovery against defendant Mt. Hawley Insurance Company for indemnity in the underlying actions of $67,500 rather than the sought $102,500, and prejudgment interest on the total award from November 15, 2016, unanimously modified, on the law and in the exercise of discretion, to the extent of awarding prejudgment interest from the "reasonable intermediate date" of June 1, 2014, and otherwise affirmed, without costs.
Although CastlePoint refers to a "self-insured retention" in the Mt. Hawley policy, the relevant endorsement is expressly titled "Deductible Liability Insurance." Specifically, the endorsement states that Mt. Hawley's "obligation ... to pay damages" on its insured's behalf "applies only to the amount of damages in excess of any deductible." The endorsement allowed Mt. Hawley to "pay any part o[r] all of the deductible amount to effect settlement of any claim or ‘suit’ and, upon notification of the action taken, you [the named insured] shall reimburse us for such part of the deductible amount as has been paid by us within 30 days" and permitted Mt. Hawley, at its "sole election upon receipt or notice of any claim or at any time thereafter request you to pay over and deposit with us all or a part of the deductible amount, to be held and applied per the terms of the policy." Based on the policy language, the $35,000 contributed by the named insured was a true deductible, properly subtracted from the policy limits, and not a self-insured retention (see Tokio Mar. & Fire Ins. Co. v. Insurance Co. of N. Am., 262 A.D.2d 103, 693 N.Y.S.2d 520 [1st Dept. 1999] ; New York State Thruway Auth. v. KTA–Tator Eng'g Servs., P.C., 78 A.D.3d 1566, 1567, 913 N.Y.S.2d 438 [4th Dept. 2010] ).
In setting the date from which prejudgment interest accrues, the courts lack discretion to take into account any delay by the plaintiff in prosecuting the action (see Arizona Premium Fin. Co., Inc. v. Employers Ins. of Wausau, of Wausau A.M. Mut. Co., 586 Fed. Appx. 713, 717 [2d Cir.2014] ; Spector v. Mermelstein, 485 F.2d 474, 482–483 [2d Cir.1973] ). Therefore, a "reasonable intermediate date" for prejudgment interest ( CPLR 5001[b] ) is June 1, 2014 (see National Union Fire Ins. Co. of Pittsburgh, PA v. Greenwich Ins. Co., 103 A.D.3d 473, 474, 962 N.Y.S.2d 9 [1st Dept. 2013] ; United States Fire Ins. Co. v. Federal Ins. Co., 858 F.2d 882, 889 [2d Cir.1988], cert denied 490 U.S. 1020, 109 S.Ct. 1744, 104 L.Ed.2d 181 [1989] ).