Another Victory by SACS!
SACS Appellate Group won a major victory in the Appellate Division, First Department today in a case involving catastrophic quadriplegia injuries to a 27-year-old worker. The third-party defendant/employer appealed an order denying its motion to dismiss our clients’ third-party action against it for common law indemnity. The appellant employer argued that the third-party action was barred by the antisubrogation rule because all of the parties, including the third-party plaintiffs, were insured under an Owner Controlled Insurance Program (OCIP). Because the underlying plaintiff was gravely injured, however, the employer’s separate Worker’s Compensation/Employer’s Liability (WCEL) policy was implicated. Since this WCEL policy provided unlimited coverage per New York law, the First Department agreed with our position that the “Employer’s Liability Exclusion Endorsement” contained in the excess liability policies excludes coverage for the employer for injuries to its employee (and therefore the antisubrogation rule was not implicated). The Court also found that the third-party plaintiffs were not estopped from denying coverage, regardless of the employer’s (untimely) notice, as the insuring agreement in the excess policies provided that they were not triggered until the other policies were exhausted, which would never occur due to the unlimited coverage provided by the WCEL policy.
Chris Simone, Gerard Rath and Sean Harriton drafted the briefs while Chris Simone argued the appeal.
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