Western Heritage Insurance Company v. Century Surety Company

Filing 32

OPINION AND ORDER #104472 re: 23 FIRST MOTION for Summary Judgment . filed by Western Heritage Insurance Company. For the foregoing reasons, Western's motion for summary judgment is DENIED. Because there are no fact issues to be t ried, Century is entitled to summary judgment as a matter of law. As such, Century has no obligation to reimburse Western for any money that Western paid in the settlement of the Underlying Action. The Clerk of the Court is directed to close this motion [Docket No. 23] and this case. (Signed by Judge Shira A. Scheindlin on 7/3/2014) (djc) Modified on 7/3/2014 (djc). Modified on 7/3/2014 (ca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------

)(

WESTERN HERITAGE INSURANCE
COMPANY,
Plaintiff,
OPINION AND ORDER
- against 13 Civ. 6907 (SAS)
CENTURY SURETY COMPANY,
Defendant.

------------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Western Heritage Insurance Company ("Western") brings this

diversity action against Century Surety Company ("Century") in connection with a
settlement paid by Western in an underlying personal injury suit ("Underlying
Action"). Both Century's insured and Western' s insured were named as
defendants in the Underlying Action. Western seeks a declaration (1) that Century
breached its obligations under the Century Commercial Lines Policy ("Century
Policy"), (2) that Century must contribute toward the settlement of the Underlying
Action, and (3) that Century must pay Western five hundred thou9.G.nd

dolh~s,

representing Century's pro-rata share of the settlement. In addition, Western asks

1

the Court to dismiss Century's counterclaims.
Now before the Court is Western's motion for summary judgment on
the grounds that certain provisions in both the Century Policy and the Western
Heritage Commercial Policy ("Western Policy") require Century to contribute its
pro-rata share of the settlement in the Underlying Action. 1 Century responds that
those provisions do not entitle Western to contribution because Century and
Western do not share an insured. 2 For the following reasons, Western's motion for
summary judgment is DENIED.

II.

BACKGROUND 3
A.

The Underlying Action
On October 24, 2006, NSBP Realty, LLC ("NSBP"), the owner of a

construction project in Brooklyn, New York (the "Project") entered into a contract

See Western's Memorandum of Law in Support of Its Motion for
Summary Judgment ("Western Mem.") at 5-6.
2

See Memorandum of Law in Further Support of Century's Opposition
to Western's Motion for Summary Judgment ("Century Opp.") at 1-2. At the
Court's direction, Century filed an opposition and sur-reply rather than a crossmotion for summary judgment.
3

All material facts in this case are undisputed. See Joint Statement of
Undisputed Material Facts ("Joint Statement"). The parties dispute only the
interpretation of the relevant provi:sion;s of the We:stern unu Century po1icic~. Jee
CGS Indus., Inc. v. Charter Oak Fire Ins. Co., 720 F.3d 71, 76 (2d Cir. 2013)

(noting that the "interpretation of an insurance agreement is a question of law,"
which is appropriately decided by the court on summary judgment).
2

with Empire Builders and Developers, Inc. ("Empire"). 4 Under the contract,
Empire agreed to serve as a consultant for the Project by helping NSBP select
subcontractors. 5 The contract also included an indemnification provision, stating:
[NSBP] shall indemnify and hold harmless [Empire] and its
employees from and against all claims, damages, loss or expense
caused by any negligent or intentional act or omission of [NSBP]
or sub-contractors, anyone directly or indirectly employed by any
of them or anyone whose acts [make] any ofthe[m] liable. 6
Upon Empire's recommendation, NSBP hired LJ Ironworks, Inc. ("LJ") as a
subcontractor for the Project. 7
On March 10, 2008, Wilmer Castaneda, an employee ofLJ, was
injured in an elevator shaft while working on construction at the Project. 8 On April
8, 2008, Castaneda sued NSBP and Empire in New York Supreme Court. 9 On
May 2, 2008, NSBP informed its insurer, Western, of the Underlying Action, and

4

See Joint Statement ifif 1, 3.

See id. if 2; 10/24/06 NSBP/Empire Contract, Exhibit ("Ex.") 1 to the
5/2/14 Declaration of Denise Marra, counsel for Western ("Marra Deel."), if 2.
5

6

NSBP/Empire Contract if 11.

7

See Joint

8

See id.

9

See Joint Statement if 6.

Statement~

4.

ifif 5, 7; Complaint if 8.

3

Western assumed the defense ofNSBP. 10 On May 6, 2008, Empire also informed
its insurer, Century, of the Underlying Action. 11 On September 22, 2008, Empire's
defense counsel tendered Empire's defense to Western. 12 Western accepted
Empire's tender of defense.13
On January 23, 2013, the parties entered mediation. 14 On January 30,
2013, they settled all of Castaneda's claims for two million dollars. 15 Because
NSBP and Century were entitled to contractual indemnity from LJ, LJ's insurer,
Scottsdale Insurance Company, contributed its one million dollar policy limit
toward the settlement. 16 Western also contributed its one million dollar policy
limit toward the settlement on behalf ofNSBP and Empire. 17 Century did not
contribute anything toward the settlement. 18 At both the mediation and the

10

See id.

if 8.

II

See id.

if 9.

12

See id.

if 10.

13

See id.

if 11.

14

See id.

if 16.

15

See id.

if 19.

16

See id.

17

See id.

18

See id.

if 21.
4

settlement, Western reserved its right to seek reimbursement from Century. 19

B.

The Century Policy
1.

Overview

In October 2007, Century issued a Commercial Lines Policy to
Empire, effective October 29, 2007 to October 29, 2008. 20 The Century Policy
lists Empire as the only named insured and 2114 Bedford LLC, an unrelated nonparty, as the only additional insured. 21 Under the policy, Century agreed to pay
"those sums that the insured becomes legally obligated to pay as damages because
of 'bodily injury' or 'property damage' to which this insurance applies." 22 The
Century Policy is limited to one million dollars per occurrence and two million
dollars in the aggregate. 23

2.

Other Insurance Provision

In addition, the Century Policy contains the following Other Insurance
prov1s10n:
If other valid and collectible insurance is available to the insured

ifif 18, 20.

19

See id.

20

See 10/29/07 Century Policy, Ex. 14 to Marra Deel.

21

See id.

22

Id.

23

See id.
5

for a loss we cover ... our obligations are limited as follows:
a.

This insurance is excess over any other insurance
whether the other insurance is stated to be primary,
pro rata, contributory, excess, contingent, umbrella
or on any other basis unless the other insurance is
issued to the Named Insured ... and is written
explicitly to apply in excess of the Limits of
Insurance ... of this [policy].

b.

When this insurance is excess, we will have no duty
... to defend the insured against any "suit" if any
other insurer has a duty to defend the insured against
that "suit" ....

c.

When the insurance is excess over other insurance,
we will pay only our share of the amount of loss, if
any, that exceeds the sum of:
( 1)

(2)

C.

The total amount that all such other insurance
would pay for the loss in the absence of this
insurance; and
The total of all deductible and self-insured
amounts under all that other insurance. 24

The Western Policy
1.

Overview

In March 2007, Western issued NSBP a Commercial Policy, which
included Owners and Contractors Protective Liability. 25 The policy period ran

24

Id.

25

See 3116107 Western Policy, Ex. 15 to Marra Deel.
6

from March 16, 2007 to December 16, 2008. 26 The Western Policy lists NSBP as
the only named insured. 27 Under the policy, Western agrees to pay "those sums
that the insured becomes legally obligated to pay as damages because of 'bodily
injury' or 'property damage' to which this insurance applies." 28 Although the
Western Policy generally excludes "contractual liability," it covers liability
assumed by its insured in an "insured contract." 29 The Western Policy is limited to
one million dollars per occurrence and two million dollars in the aggregate. 30
2.

Other Insurance Provision

The Western Policy contains the following Other Insurance provision:
There is no coverage provided under this policy if, at the time of
the loss or damage, there is any other valid and collectible
insurance which would attach if this insurance had not been
effected, except that this insurance shall apply only as excess and
in no event as contributing insurance and then only after all other
insurance has been exhausted.

26

See id.

27

See id.

28

Id.

29

An "insured contract" is defined as "that part of any other contract or
agreement ... under which [NSBP] assume[ s] the tort liability of another party to
pay for 'bodily injury' or 'property damage' to a third person or organization,
provided that the 'bodily injury' or 'property damage' is caused, in whole or in
part, by [NSBP] or by those acting on [NSBP's] behalf." Id.
30

See id.
7

Whenever this policy becomes excess over any other valid and
collectible insurance, whether primary, excess or contingent
available to the Named Insured, it shall in no way obligate the
Company to provide or furnish investigation, adjustment,
attorneys' fees, or any other expenses in connection with the
defense or handling of any claims. 31
3.

Supplementary Payments Provision

Under the NSBP/Empire contract, NSBP agreed to indemnify
Empire. 32 As such, the Western Policy includes a Supplementary Payments
provision, which provides that Western will pay the defense costs ofNSBP's
contractual indemnitee - Empire - without reducing NSBP' s insurance limit as
long as certain conditions are met. 33 The provision states:
If we defend an insured against a "suit" and an indemnitee of the
insured is also named as a party to the "suit," we will defend that
indemnitee if all of the following conditions are met:

a.

The "suit" against the indemnitee seeks damages for
which the insured has assumed the liability of the
indemnitee in a contract or agreement that is an
"insured contract"·
'

b.

This insurance applies to such liability assumed by
the insured;

c.

The obligation to defend, or the cost of the defense

31

Id.

32

See NSBP/Empire Contract if 11.

33

See Western Policy.
8

of, that indemnitee, has also been assumed by the
insured in the same "insured contract";
d.

The allegations in the "suit" and the information we
know about the "occurrence" are such that no
conflict appears to exist between the interests of the
insured and the interests of the indemnitee;

e.

The indemnitee and the insured ask us to conduct
and control the defense of that indemnitee against
such "suit" and agree that we can assign the same
counsel to defend the insured and the indemnitee;
and

f.

The indemnitee:
(1)

Agrees in writing to:
(a)

Cooperate with us in the investigation,
settlement or defense of the "suit";

(b)

Immediately send us copies of any
demands, notices, summonses or legal
papers received in connection with the
"suit"·
'

(c)

(d)

(2)

Notify any other insurer whose
coverage is available to the indemnitee;
and
Cooperate with us with respect to
coordinating other applicable insurance
available to the indemnitee; and

Provides us with written authorization to:
(a)

Obtain records and other information
related to the "suit"; and
9

(b)

Conduct and control the defense of the
indemnitee in such "suit."

So long as the above conditions are met, attorneys' fees incurred
by us in the defense of that indemnitee, necessary litigation
expenses incurred by us and necessary litigation expenses incurred
by the indemnitee at our request will be paid as Supplementary
Payments ... [S]uch payments will not be deemed to be damages
for "bodily injury" and "property damage" and will not reduce the
limits of insurance. 34

III.

LEGAL STANDARD

Summary judgment is appropriate "only where, construing all the
evidence in the light most favorable to the non-movant and drawing all reasonable
inferences in that party's favor, there is 'no genuine issue as to any material fact
and ... the movant is entitled to judgment as a matter of law. "'35 "A fact is
material if it might affect the outcome of the suit under the governing law, and an
issue of fact is genuine if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." 36
"[T]he moving party has the burden of showing that no genuine issue
of material fact exists and that the undisputed facts entitle him to judgment as a

34

Id.

35

Rivera v. Rochester Genesee Reg'! Transp. Auth., 702 F.3d 685, 692
(2d Cir. 2012) (quoting Fed. R. Civ. P. 56(c)) (other quotations omitted).
Windsor v. United States, 699 F.3d 169, 192 (2d Cir. 2012), ajf'd, 133
S. Ct. 2675 (2013) (quotations and alterations omitted).
36

10

matter oflaw." 37 "When the burden of proof at trial would fall on the non-moving
party, it ordinarily is sufficient for the movant to point to a lack of evidence to go
to the trier of fact on an essential element of the non[-]movant's claim." 38 The
burden then "shifts to the non[-]moving party to present specific evidence showing
a genuine dispute." 39 This requires "'more than simply show[ing] that there is
some metaphysical doubt as to the material facts, "'40 and the non-moving party
cannot "rely on conclusory allegations or unsubstantiated speculation." 41 "A
dispute about a 'genuine issue' exists for summary judgment purposes where the
evidence is such that a reasonable jury could decide in the non-movant's favor." 42
In deciding a motion for summary judgment, "[t]he role of the court is
not to resolve disputed issues of fact but to assess whether there are any factual

37

Coollick v. Hughes, 699 F.3d 211, 219 (2d Cir. 2012) (citations

omitted).
38

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008).

39

Id.

40

Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
41

Id.

Beyer v. County ofNassau, 524 F. 3d 160, 163 (2d Cir. 2008) (quoting
Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007)).
42

11

issues to be tried." 43 "'Credibility determinations, the weighing of the evidence,
and the drawing of legitimate inferences from the facts are jury functions, not those
of a judge. "' 44 "[A] district court has the ability to grant summary judgment in
favor of a party that has not moved for summary judgment."45 But before doing so,
the district court should "determine that the party against whom summary
judgment is rendered has had a full and fair opportunity to meet the proposition
that there is no genuine issue of material fact to be tried, and that the party for
whom summary judgment is rendered is entitled thereto as a matter of law."46

IV.

APPLICABLE LAW

"Under New York law, insurance policies are interpreted according to
general rules of contract interpretation." 47 Courts must "give effect to the intent of

43

Cuff ex rel. B.C. v. Valley Cent. Sch. Dist., 677 F.3d 109, 119 (2d Cir.

2012).
44

Reddv. New York Div. ofParole, 678 F.3d 166, 174 (2d Cir. 2012)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
45

23-34 94th St. Grocery Corp. v. New York City Bd ofHealth, 685
F.3d 174, 180 n.6 (2d Cir. 2012).
46

Sahu v. Union Carbide Corp., 548 F.3d 59, 69-70 (2d Cir. 2008)
(citing First Fin. Ins. Co. v. Allstate Interior Demolition Corp., 193 F.3d 109, 115
(2d Cir. 1999)).
47

Olin Corp. v. American Home Assurance Co., 704 F.3d 89, 98 (2d Cir.

2012).
12

the parties as expressed in the clear language of their contract. "48 If the terms of a
policy are unambiguous, the court should grant summary judgment on the meaning
of an insurance policy. 49 Policy terms are unambiguous where they provide "a
definite and precise meaning, unattended by danger of misconception in the
purport of the contract itself, and concerning which there is no reasonable basis for
a difference of opinion." 50

IV.

DISCUSSION
A.

The Other Insurance Provisions in Both Policies
Western argues that it is entitled to reimbursement from Century

based on the Other Insurance provisions in the Western and Century policies. 51
Both provisions state that the policies operate in "excess" of all other insurance
available to the insured. 52 Western contends that when two competing policies
contain "excess" Other Insurance provisions, each provision "cancels the other

48

Ment Bros. Iron Works Co., Inc. v. Interstate Fire & Cas. Co., 702
F.3d 118, 122 (2d Cir. 2012).
49

See Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d

Cir. 1992).
50

Olin, 704 F .3d at 99 (citations and internal quotation marks omitted)_

51

See Western Mem. at 11-15.

52

See Western Policy.
13

out." 53 In that case, both insurers must contribute on a primary or pro-rata basis. 54
Century responds that the Other Insurance provisions are irrelevant
here because Century and Western do not share an insured. 55 Under New York
law, Other Insurance provisions create a co-insurance situation only where the two
insurers insure the same insured for the same risk. 56 Century asserts that Empire is
insured only by Century, and NSBP is insured only by Western. 57 Because Empire
is not a Named Insured, Additional Insured, or otherwise an insured under the
Western Policy, the Other Insurance provisions do not require Century to
53

Western Mem. at 11.

54

See id. (citing Macari v. Nationwide Mut. Ins. Co., 745 N.Y.S.2d
191,193 (2d Dep't 2002) ("[S]ince both insurance policies cover the same risk, and
both contain an 'other insurance' provision constituting a standard 'excess
insurance' clause, the clauses negate each other, and each insurance carrier must
contribute its proportionate share of the loss [] in the underlying action."); Bovis
Lend Lease LMB, Inc. v. Great Am. Ins. Co., 855 N.Y.S.2d 459, 471-72 (1st Dep't
2008); Federal Ins. Co. v. Atlantic Nat. Ins. Co., 25 N.Y.2d 71, 75-76 (1969)).
55

See Century Opp. at 1-2.

56

See Great N Ins. Co. v. Mount Vernon Fire Ins. Co., 92 N.Y.2d 682,
686-87 (1999); Pennsylvania Mfrs. Ass 'n Ins. Co. v. Liberty Mut. Ins. Co., 837
N.Y.S.2d 445, 446 (4th Dep't 2007) ("[W]here insurance policies provide coverage
for the same interest and against the same risk, concurrent coverage exists and two
or more primary insurers will be held to be coinsurers."); Medical Malpractice Ins.
Ass 'n. v. Medical Liability Mut. Ins. Co., 450 N.Y.S.2d 191, 193 (1st Dept. 1982)
(holding that an insurer of one policy may enforce a right of contribution against
another insurer only when the insurance provided by each covers "the same interest
and against the same risk").
57

See Century Opp. at 2.
14

reimburse Western. 58
Yet, Western contends that the Other Insurance provisions determine
priority of coverage for Empire regardless of whether Western and Century are coinsurers. 59 However, the Court of Appeals has held that the Other Insurance
provisions apply only "where two or more insurance policies cover the same risk in
the name of, or for the benefit of, the same person. " 60 Likewise, in Liberty Mutual
Insurance v. Hartford Insurance Company of Midwest -

a case cited by Western,

the court interpreted the Other Insurance provisions of two insurance policies only
"to the extent that the policies cover the same loss and the same insureds .... " 61
Under the unambiguous terms of the policies, Western insures only NSBP, and
Empire insures only Century. 62 Moreover, each Other Insurance provision limits
58

See id. at 5.

59

See Western's Reply Memorandum of Law in Further Support of Its
Motion for Summary Judgment ("Western Reply") at 3.
60

Great N Ins. Co., 92 N.Y.2d at 686-87 (emphasis added).

61

811 N.Y.S.2d 716, 721 (2d Dep't 2006). Western also relies heavily
on National Union Fire Insurance Company ofPittsburgh v. Hartford Insurance
Company of the Midwest, which held that a subcontractor's insurer, National
Union, was entitled to contribution from a general contractor's insurer, Hartford,
based on the Other Insurance provisions in the policies. 677 N.Y.S.2d 105, 111
(1st Dep't 1998), aff'd, 93 N.Y.2d 983 (1999). But there, the National Union and
Hartford policies both named the general contractor as an insured. See id. at 107.
62

Western does not dispute the fact that Empire is not named as an
insured under its policy.
15

coverage to the policy's insured. The Western Policy provides excess coverage
only when there is no other "valid and collectible insurance ... available to the
Named lnsured." 63 Similarly, the Century Policy provides excess coverage only

when no other "valid and collectible insurance is available to the insured . ... " 64
Thus, because Western and Century are not co-insurers, Western is not entitled to
contribution for its settlement payment.

B.

Supplementary Payments Provision in the Western Policy
Next, Western argues that the Supplementary Payments provision in

the Western Policy "dictates the scope of coverage" available to Empire as NSBP's
"contractual indemnitee. " 65 Western asserts that the Supplementary Payments
provision "specifically contemplates contribution from other insurance available to
any contractual indemnitee as part of its defense." 66
Based on this provision, quoted in full above, 67 Western asserts that
Empire was required to coordinate its available insurance with Century as a

63

Western Policy (emphasis added).

64

Century Policy (emphasis added).

65

Western Mem. at 21.

66

Id.

67

See supra note 34 and accompanying text.
16

"precondition of [receiving] coverage" from Western. 68 Although Western paid
the settlement on Empire's behalf, Empire failed to fulfill its obligation by
coordinating with Century. 69 As such, Western contends it is entitled to
reimbursement from Century. 70
However, the plain language of the Supplementary Payments
provision belies Western's argument. The Supplementary Payments provision
does not provide liability coverage to Empire or transform Empire into an
"insured" under the Western policy. Instead, if all of the conditions of the
provision are met, Western will pay the defense costs of a contractual indemnitee
- Empire -

as a "Supplementary Payment[]," without "reduc[ing] the limits of

insurance." 71 If any of the conditions are not met, the provision no longer applies.
Western may still pay Empire's defense costs, but it will reduce the limits of
insurance available to NSBP. 72
Here, Western assumed Empire's defense costs without attempting to
68

Western Mem. at 24.

69

See id.

70

See id.

71

Western Policy.

This is consistent with the scope of the Western Policy, which covers
NSBP's contractual liability under its "insured contracts," such as the
NSBP /Western contract. See id.
72

17

enforce the conditions of the provision. Specifically, it defended Empire without
first requiring any written agreement from Empire. Empire never agreed in writing
that it would "[c]ooperate with [Western] with respect to coordinating other
applicable insurance available to [it] ." 73
Nevertheless, Western contends that "because [it made] substantial
payments ... under the Western Heritage Policy, on Empire's behalf, it cannot
logically be argued that Empire is not bound by the very provisions under which
such payments have been made." 74 But "[a]bsent a contractual relationship there
can be no contractual remedy." 75 Empire is not Western's insured and has no
obligations under the Supplementary Payments provision or the Western Policy in
general. Moreover, Western failed to create a contractual relationship with Empire
because it chose to defend Empire without obtaining Empire's written agreement.
As such, Western cannot rely on the Supplementary Payments provision to seek
contribution from Century.

c.

The NSBP/Empire Contract

73

Id. (emphasis added).

74

Western Reply at 6.

Hillside Metro Assocs., LLC v. JPMorgan Chase Bank, NA., 747 F.3d
44, 49 (2d Cir. 2014) (citing Suffolk Cnty. v. Long Island Lighting Co., 728 F .2d
52, 63 (2d Cir. 1984)).
75

18

Finally, Western contends that even though it assumed Empire's
defense under the NSBP/Empire contract, it had no obligation to pay Empire's
liability damages. 76 While Western did, in fact, pay Empire's portion of the
settlement, it maintains that it has a right to reimbursement from Century -

a right

it reserved at mediation and settlement. 77 Specifically, Western argues that it may
still "challeng[ e] the validity of [the NSBP/Empire contract] in a subsequent
action, nor would it necessarily be required to provide coverage to [NSBP], should
NSBP ultimately be liable to Empire for contractual indemnity." 78
As an initial matter, the NSBP/Empire contract is an "insured
contract," and the Western Policy covers liability that NSBP assumes in an
"insured contract." 79 As such, Western paid the full settlement amount because the
Western Policy covers (1) NSBP's liability for Castaneda's injuries, and (2)
NSBP's indemnification of Empire under the "insured contract."80 It is true that
Western could have refused to pay Empire's portion of the settlement. But doing
so would be futile because Empire could simply enforce the indemnification
76

See Western Reply at 7-8.

77

See Joint Statement iii! 18, 20.

78

Western Reply at 8.

79

Western Policy.

80

See id.
19

provision of the NSBP/Empire contract. Western, on behalf ofNSBP, would then
be required to indemnify Empire from all defense costs and settlement expenses. 81
Finally, by accepting Empire's tender of its defense, Western waived
its right to dispute the validity or enforceability of the NSBP/Empire contract.
Under the contract, NSBP agrees to indemnify Empire "from and against all
claims, damages, loss, or expense caused by any negligent or intentional act or
omission of the owner or sub-contractors .... " 82 The contract indemnifies Empire
for both defense expenses and liability damages. In assuming Empire's defense,
Western acknowledged both the validity of the contract and NSBP's obligation to
indemnify Empire for "all claims, damages, loss, or expense .... " 83 Western may
not now claim that the contract is invalid. Thus, Western is not entitled to
reimbursement from Century.

VI.

CONCLUSION

81

See NSBP/Empire Contract if 11.

82

Id.

83

Id. (emphasis added). To the extent that Western claims that it
voluntarily incurred Empire's defense costs and settlement payment without regard
to the NSBP/Empire contract, any recovery is barred by the voluntary payment
doctrine. See Dillon v. U-A Columbia Cablcvi~iiun ofWe;Hc:he:;ste:r, Inc., 100
N.Y.2d 525, 526 (2003) (holding that the voluntary payment doctrine "bars
recovery of payments voluntarily made with full knowledge of the facts, and in the
absence of fraud or mistake of material fact or law").
20

For the foregoing reasons, Western's motion for summary judgment is
DENIED. Because there are no fact issues to be tried, Century is entitled to
summary judgment as a matter of law. As such, Century has no obligation to
reimburse Western for any money that Western paid in the settlement of the
Underlying Action. The Clerk of the Court is directed to close this motion [Docket
No. 23] and this case.

Dated:

New York, New York
July 3, 2014

21

-AppearancesFor Plaintiff:
Andrew Hal Lesnever, Esq.
Carroll McNulty & Kull LLC
120 Mountain View Blvd.
Basking Ridge, NJ 07920
[phone]

For Defendant:
Dan David Kohane, Esq.
Cassandra Anne Kazukenus, Esq.
Hurwitz & Fine, P.C
1300 Liberty Building
Buffalo, NY 14202
[phone]

22