Opinion
12456 Index No. 155214/18 Case No. 2020-02248
11-24-2020
WESCO INSURANCE COMPANY, Plaintiff–Respondent, v. HELLAS GLASS WORKS CORP. et al., Defendants, Massachusetts Bay Insurance Company, Defendant–Appellant.
Goldberg Segalla LLP, White Plains (Michael P. Kandler of counsel), for appellant. Kennedys CMK LLP, New York (Max W. Gershweir of counsel), for respondent.
Goldberg Segalla LLP, White Plains (Michael P. Kandler of counsel), for appellant.
Kennedys CMK LLP, New York (Max W. Gershweir of counsel), for respondent.
Friedman, J.P., Manzanet–Daniels, Oing, Kennedy, JJ.
Order, Supreme Court, New York County (Julio Rodriguez, III, J.), entered September 25, 2019, which granted plaintiff's (Wesco) motion for summary judgment to the extent of declaring that defendant (MBIC) is obligated to share equally in defense costs in the underlying action, and denied MBIC's cross motion for summary judgment declaring that it has no obligation to defend or indemnify in the underlying action, unanimously affirmed, with costs.
Although the duty to defend is primarily determined by the complaint (see Greenwich Ins. Co. v. City of New York , 122 A.D.3d 470, 471, 997 N.Y.S.2d 32 [1st Dept. 2014] ), "wooden application of the ‘four corners of the complaint’ rule would render the duty to defend narrower than the duty to indemnify" ( Fitzpatrick v. American Honda Motor Co., 78 N.Y.2d 61, 66, 571 N.Y.S.2d 672, 575 N.E.2d 90 [1991] ). Based on the pleadings in the underlying personal injury action and third-party action, as well as documents and testimony, and the fact that discovery and depositions in the underlying action are still ongoing, it cannot be said that there is no possible factual or legal basis on which either Wesco's automobile policy or MBIC's general liability policy might eventually be held to afford indemnity coverage (see Greenwich Ins. Co, 122 A.D.3d at 471, 997 N.Y.S.2d 32 ). Further, "the pro rata sharing of defense costs may be ordered when more than one policy is triggered by a claim" ( Travelers Cas. & Sur. Co. v. Alfa Laval Inc., 100 A.D.3d 451, 452, 954 N.Y.S.2d 23 [1st Dept. 2012] ).