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Facility Invs. LP v. Homeland Ins. Co. of N.Y.

The insurance company waived its right to recoup amounts it paid to resolve claims against the insured that were not covered under the insurance policy when it made the payment with knowledge of the circumstances that gave rise to the coverage defense.

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Homeland Insurance Company of New York filed this action against its insured, Facility Investments d/b/a Westminster Commons hereinafter “Facility” seeking to recover damages for breach of contract, and seeking to recoup amounts it paid to resolve claims against Facility that it contends were not covered under Facility’s insurance policy. Facility filed a motion to dismiss, arguing that Homeland failed to state a claim upon which relief can be granted. The trial court denied Facility’s motion.

We granted Facility’s application for interlocutory appeal to consider the propriety of the trial court’s order. On appeal, Facility contends that 1 the trial court erred in denying its motion to dismiss because Homeland’s claims are barred by the voluntary payment doctrine and the doctrine of waiver, and 2 the trial court erred in creating a cause of action to allow an insurer to recoup money it paid to settle uncovered claims on behalf of its insured. For the reasons that follow, we reverse the trial court’s ruling.

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