It was a term of transition for the New York Court of Appeals, with Associate Judge Eugene Pigott Jr., retiring at the end of 2016, Associate Judge Rowan Wilson joining the Court in February 2017, Associate Judge Sheila Abdus-Salaam's death in April 2017, and Associate Judge Paul Feinman joining the Court at the end of June 2017. The recent changes in the composition of the Court and the fact that the most tenured judge (Associate Judge Jenny Rivera) has been on the Court for only four years make it difficult to predict how insurance law cases will be decided in the future. The one thing that can be said about the most significant insurance law cases decided by the Court this past term: They all were decided in favor of the insurance carriers.

'Burlington'

The decision with the most important practical implications for insurance companies and policyholders, Burlington Ins. Co. v. New York City Transit Authority, 2017 N.Y. Slip Op. 04384, came down on June 6, 2017. Judge Rivera wrote the majority decision, in which Chief Judge Janet DiFiore and Judges Michael Garcia and Wilson concurred. Judge Eugene Fahey dissented, in an opinion in which Judge Leslie Stein concurred.

The case arose after an employee of the New York City Transit Authority (NYCTA) fell off an elevated platform at an excavation site as he tried to avoid an explosion that occurred after a Breaking Solutions, Inc. (BSI) machine apparently touched a live electrical cable buried in concrete. The employee and his spouse brought an action against New York City and BSI in federal court, asserting Labor Law claims, negligence, and loss of consortium.

The city tendered its defense in the federal action to The Burlington Insurance Company, which had issued an insurance policy to BSI with an endorsement listing the NYCTA and MTA New York City Transit as “additional insureds.”