Upon the following papers read on this motion to reargue ; Notice of Motion and supporting papers 66-136 ; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers 140-141 ; Replying Affidavits and supporting papers 142-143; it is, ORDERED that this motion by the plaintiff for leave to reargue an order of this court dated March 3, 2021, which granted the defendant’s motion to dismiss the complaint and denied the plaintiff’s cross motion for summary judgment, is granted; and it is further ORDERED that, upon reargument, the court adheres to its prior determination. Insurance Law §3420 (d) (2) requires that an insurer intending to disclaim liability under a liability policy “shall given written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant.” The purpose of the statute is to protect the insured, the injured party, and any other interested party who has a real stake in the outcome from prejudice resulting from a belated denial of coverage (Admiral Ins. Co. v. State Farm Fire & Cas. Co., 86 AD3d 486, 488). Insurance Law §3420 (d) (2) was never intended to apply to another insurer, as demonstrated by the statutory language itself and various other provisions of §3420 (see, Bovis Lend Lease LMB, Inc. v. Royal Surplus Lines Ins. Co., 27 AD3d 84, 91). Moreover, the legislative history evinces the Legislature’s intent that §3420 (d) not be applied to insurers. The 30-Day Budget Report on the bill that ultimately became §3420 (d) stated, “The purpose of this bill is to assist a consumer or claimant in obtaining an expeditious resolution to liability claims by requiring insurance companies to give prompt notification when a claim is being denied.” (Id. at 92). It continued: “This bill would prevent insurance companies from deliberately engaging in dilatory practices which inhibit the fair and expeditious resolution of liability claims. By expediting the disclaimer or denial process, the consumer is able to pursue, at an earlier point in time, an alternative method of recovering liability damages.” (Id.) Approval of §3420 (d) was recommended on the ground that it was in the interests of protecting the consumer to prevent undue delay in the adjudication of cases involving liability insurance coverage, particularly where settlement fees are necessary to pay medical and legal expenses (Id.). The notice requirement of §3420 (d) is designed to protect the insured and the injured person or other claimant against the risk, posed by a delay in learning the insurer’s position, of expending energy and resources in an ultimately futile attempt to recover damages from an insurer or of forgoing alternative methods for recovering damages until it is too late to pursue them successfully (Id.). Recognizing that these are not risks to which another insurer is subject, courts have held that §3420 (d) does not apply to claims between insurers, whether those claims are for contribution or for full defense and indemnity (Id.; see also, J.T. Magen v. Hartford Fire Ins. Co., 64 AD3d 266, 271; Zurich Am. Ins. Co., v. Wausau Business Ins. Co., 206 F Supp 3d 818, 827-828 [SDNY]). The plaintiff, New York Bus Operators Compensation Trust (“NYBOCT”), was formed to provide self-insurance to its members, i.e., school-bus and charter-bus companies, for their statutory workers’ compensation liabilities. NYBOCT hedged against self-insurance of those liabilities by obtaining an “Excess Workers Compensation and Employers Liability Policy” from the defendant for losses over $150,000. NYBOCT is a duly qualified self-insurer under the Worker’s Compensation Law. NYBOCT stands in the shoes of the bus companies’ primary workers-compensation insurance carrier for claims up to $150,000 and seeks indemnification from the defendant for claims that go over that amount. The case law is clear, the purpose of §3420 (d) is to protect consumers. It does not apply to contribution and indemnification claims between insurers. The plaintiff, a self-insurer, seeks indemnification from the defendant, an excess insurer. Since both the plaintiff and the defendant are insurers, the court adheres to its prior determination that the plaintiffs’ reliance on Insurance Law §3420 (d) (2) is misplaced. The court also adheres to its prior determination that the plaintiff’s breach-of-contract claim is time-barred. Insurance contracts and other “contracts of indemnity” are treated no differently than other contracts for statute of limitations purposes (Continental Cas. Co. v. Stronghold Ins. Co., Ltd., 866 F Supp 143, 146 [SDNY], affd 77 F3d 16). In the absence of any provision regarding accrual in the contract of insurance, the plaintiff’s claim accrues upon breach (Id. at 145). In the context of insurance contracts, the breach does not occur until an insured party makes a demand upon the insurer and the insurer refuses to pay (Id.). It is only when an insurer declines to pay a covered loss for which the insured has requested payment that the insurer has breached the insurance agreement by failing to perform its contractual obligations (Id.). Thus, whether the insurance policy that is the subject of this action is characterized as a “contract of insurance,” a “contract of indemnity,” or a “contract of reinsurance,” the result is the same. The plaintiff’s claim is time-barred. The plaintiff, relying on the common-law principles of waiver and estoppel, contends that the defendant should not be allowed to assert the statute of limitations as a defense due to its failure to provide NYBOCT with a timely notice of disclaimer. Although this argument is not the same as the plaintiff’s original waiver-and-estoppel argument, the court will consider it. Waiver is the voluntary and intentional relinquishment of a known right (Provencal, LLC v. Tower Ins. Co. of NY, 138 AD3d 732, 734). Nothing in the record suggests that the defendant has waived the statute of limitations as a defense. Under principles of estoppel, an insurer may be precluded from denying coverage upon proof that the insurer, by its conduct, lulled the insured into sleeping on its rights (Id.). Estoppel requires proof that the insured has suffered prejudice by virtue of the insurer’s conduct (Id.). The record reflects that the claim that is the subject of this action was first reported to the defendant on February 27, 2012, and that the defendant denied the claim 80 days later on May 18, 2012. This action was not commenced until 2020. While the plaintiff contends that it has been prejudiced by the defendant’s delay in disclaiming coverage, it alleges no conduct by the defendant on which it relied during the limitations period (see, Penna v. Peerless Ins. Co., 510 F Supp 2d 199, 205 [WDNY]). Accordingly, the court adheres to its prior determination that the common-law principles of waiver and estoppel do not apply. Finally, the court declines to stay the related actions pending determination of the plaintiff’s appeal of the March 3, 2021, order in this case. Dated: June 9, 2021
