SACS Appellate Group Prevails In Appellate Division, First Department on Basis of Waiver of Subrogation and Antisubrogation

Today the SACS Appellate Group prevailed for a second time in an ongoing dispute over which defendant company would bear liability for the death of a construction worker who fell down an elevator shaft. In Wilk v. Columbia University (1st Dep’t, April 18, 2019) the First Department unanimously affirmed, with costs, a grant of summary judgment for our client, fourth third-part defendant Breeze National, Inc., holding that claims brought against Breeze by its asbestos removal subcontractor, ACT, could not maintain its action against Breeze in light of binding waivers of subrogation in the parties' purchase order agreement. Although ACT sought to style its claims as ordinary claims for contribution and indemnification, its insurer, Century Surety, was the real party in interest, as it stood to collect ACT’s potential recovery from Breeze. ACT/Century were therefore bound by the waiver of subrogation. The First Department additionally held that the antisubrogation rule operated to bar the claim, due to our earlier victory in a related declaratory judgment action (Breeze Nat’l, Inc. v. Century Sur. Co., 1st Dep’t, March 26, 2019), in which the First Department had held Breeze was an additional insured under Century’s policy. The two decisions, taken together, constitute a victory for all litigants who seek to have parties who contractually agree to pay the price of a given loss be held to their word, as well as a complete victory for our client on all points.

Kudos to John (Jack) Watkins, who argued the appeal, and drafted the brief with Tim and Gerard Rath.

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