Justice Richard Braun
Insurer Everest National asserted counterclaims in this declaratory judgment action, disputing that it was only obligated to contribute $1 million in coverage towards a settlement of an underlying action. New York State Insurance Fund (NYSIF) moved for summary judgment declaring that Everest, the excess insurer, was obligated to afford indemnity to non-parties, including the Metropolitan Transit Authority, of $2 million towards the settlement. NYSIF also argued it was entitled to reimbursement from Everest of $500,000 of the $950,000 that NYSIF paid to settle the action. The court noted Everest’s excess policy had its own provisions, stating that the excess insurer itself would provide coverage in the amount agreed to in the subject contract of $2 million. It ruled that based on the unambiguous language in Section II of the contract, the only provision the parties disputed, the average insured could reasonably expect $2 million in coverage under the Everest policy. The court noted in Bovis Lend Lease LMB v. Great Am. Ins. the excess policy specified the amount of coverage for additional insureds was not in excess of the amount agreed to in the contract, stating the instant policy was not written as such. Therefore, the court in a prior decision granted and declared in NYSIF’s favor.
