92 A.D.3d 761
N.Y. App. Div.2012Background
- Flooding in 2006-2007 damaged two St. John’s University buildings, triggering insurance claims under two Lloyd’s IPI policies covering losses from July 1, 2006, to July 1, 2008.
- Lloyd’s paid the plaintiff $2.7 million under the IPI policies for the flood losses.
- Plaintiff sued SkanskaUSA Building, Inc. for contractual and negligent breaches related to construction management of the Taffner Field House and to damages at Carnesecca Hall.
- Skanska asserted antisubrogation (third) and waiver-of-subrogation defenses, and joined Phase I Group for indemnification.
- The trial court granted summary judgment dismissing claims to the extent Lloyd’s paid for Taffner Field House damages and concluded the waiver potentially covered post-construction losses, but factual issues remained on Carnesecca Hall.
- The issue on appeal is whether the waiver of subrogation in Sections 11.4.5 and 11.4.7 of the contract bars Lloyd’s-subrogation claims, and whether the IPI policies constitute applicable property insurance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the waiver of subrogation bar Lloyd’s subrogation claims against Skanska? | Plaintiff (Lloyd’s) not an insured; waiver not applicable to IPI policy claims. | Waiver applies to damages covered by property insurance, including IPI post-construction losses. | Summary judgment for plaintiff on antisubrogation defense; waiver not applicable to IPI claims as limited by context. |
Key Cases Cited
- North Star Reins. Corp. v Continental Ins. Co., 82 NY2d 281 (1993) (subrogation principles and risk allocation)
- Pennsylvania Gen. Ins. Co. v Austin Powder Co., 68 NY2d 465 (1986) (insurer cannot subrogate against insured for same risk)
- Utica Mut. Ins. Co. v Brooklyn Navy Yard Dev. Corp., 52 AD3d 821 (2008) (subrogation against insured limitations in context)
- Insurance Corp. of N.Y. v Cohoes Realty Assoc., L.P., 50 AD3d 1228 (2008) (subrogation against insureds and waiver scope)
- Glens Falls Ins. Co. v City of New York, 293 AD2d 568 (2002) (interpretation of waiver language and insurer-subrogation)