134 Misc. 2d 976 | N.Y. Sup. Ct. | 1987
OPINION OF THE COURT
This is a motion by the plaintiff, Employers Insurance of
The defendants oppose the motion and cross-move for an order restricting plaintiff’s recovery to $125,000 plus costs and interest.
The underlying action is a declaratory judgment action brought by plaintiff to determine the rights and liabilities of the parties with respect to settlement of a personal injury action which arose out of an accident occurring on September 30, 1976 when one Frank Rayno was seriously injured while working on a construction site. Rayno was an employee of Sage Garage, the general contractor on the job. Wausau provided workers’ compensation and employer’s liability insurance coverage to Sage Garage while defendants provided general liability insurance coverage.
Rayno commenced a lawsuit against the owner of the premises and several subcontractors. Sage Garage was brought in as a third-party defendant. Wausau insured Sage Garage for employer’s liability coverage under coverage B of its workers’ compensation policy. This coverage has no limits. General Accident insured Sage Garage for general liability with a limit of $500,000. Wausau provided a defense for Sage Garage and notified General Accident of the lawsuit and demanded that General Accident afford coverage to Sage Garage, participate in the defense of the action and in the payment of any settlement or judgment. General Accident retained an attorney who was present each day of the trial and expressly approved the settlement of $500,000. Plaintiff Wausau paid the settlement of $500,000 and brought this declaratory judgment action for the recovery of 50% of its contribution to settlement and defense costs.
Defendants admit being apprisedxof the settlement and that they have contributed nothing toward the settlement, but indicate they are willing to pay a share of the settlement but that 50% would be an unfair result in this case because of the vast difference in the coverages afforded by Wausau as employer’s liability carrier and General Accident as the general liability carrier. They contend that the percentage of payment assessed against them should be 50% of their potential liability, or $125,000.