SABRE, INC. plf-res, v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA def-ap

3778. SABRE, INC. plf-res, v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA def-ap — Chaffetz Lindsey LLP, New York (Charles J. Scibetta of counsel), for ap — Fish & Richardson, Dallas, TX (Scott C. Thomas of the bar of the State of Texas, admitted pro hac vice, of counsel), and Cohen & Gresser, LLP, New York (Elizabeth F. Bernhardt of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (O. Peter Sherwood, J.), entered December 5, 2016, which, insofar as appealed from, declared that defendants had a duty to defend plaintiffs in the underlying actions and that a conflict of interest precluded them from controlling the defense in those actions, struck the 24th affirmative defense, and denied defendants' motion for summary judgment dismissing the complaint and declaring that they had no duty to defend or indemnify plaintiffs in the underlying actions, unanimously affirmed, withcosts.

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3778. SABRE, INC. plf-res, v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA def-ap — Chaffetz Lindsey LLP, New York (Charles J. Scibetta of counsel), for ap — Fish & Richardson, Dallas, TX (Scott C. Thomas of the bar of the State of Texas, admitted pro hac vice, of counsel), and Cohen & Gresser, LLP, New York (Elizabeth F. Bernhardt of counsel), for res — Order and judgment (one paper), Supreme Court, New York County (O. Peter Sherwood, J.), entered December 5, 2016, which, insofar as appealed from, declared that defendants had a duty to defend plaintiffs in the underlying actions and that a conflict of interest precluded them from controlling the defense in those actions, struck the 24th affirmative defense, and denied defendants’ motion for summary judgment dismissing the complaint and declaring that they had no duty to defend or indemnify plaintiffs in the underlying actions, unanimously affirmed, withcosts.

The pleadings in the underlying actions allege facts within the scope of coverage under the subject insurance policies, giving rise under Texas law to the duty to defend (see GuideOne Elite Ins. Co. v. Fielder Rd. Baptist Church, 197 SW3d 305, 308 [Tex 2006]). Because the facts to be adjudicated in the underlying actions were the same facts upon which coverage depended, a conflict of interest existed that precluded defendants from controlling the defense in those actions (Northern County Mut. Ins. Co. v. Davalos, 140 SW3d 685, 689 [Tex 2004]).

SABRE, INC. plf-res, v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA def-ap

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