Under its subcontract with Yonkers, Romano agreed to (1) indemnify and hold harmless the City and Yonkers from any claims arising from or in connection with any acts or omissions in the performance of Romano's work and (2) procure all necessary and adequate insurance naming the City and Yonkers as additional insureds. The City and Yonkers were additional insureds under both the Royal and Indemnity Insurance Co. policies. St. Paul insured Yonkers and the City as an additional insureds, under a commercial policy with general liability coverage of $1 million and umbrella coverage of $5 million. Yonkers was never named as a party in the underlying personal injury suit. 

Following the settlement, Indemnity Insurance commenced an action against St. Paul and Yonkers, seeking to recoup the $2 million it had paid to settle the underlying action. The Appellate Division held, "We conclude that IICNA (Indemnity Insurance Co.) is not entitled to reimbursement from St. Paul because St. Paul neither participated in the settlement negotiations nor agreed to the amount of the settlement.

In AIU Ins. Co. v. Valley Forge Ins. Co.(303 A.D.2d 325 [2003], this Court found that where the insurer did not take part in settlement negotiations or agree to the settlement of an underlying personal injury action, it was not required to contribute to that settlement. Similarly here, IICNA, which orchestrated the underlying settlement, did not have the authority to bind St. Paul. We also note that the St. Paul insurance policy prohibited the City from assuming any financial obligation without St. Paul's consent (see Royal Zenith Corp. v. New York Mar. Mgrs, 192 A.D.2d 390 [1993]).  

Since it is undisputed that St. Paul did not consent to the settlement, IICNA may not seek reimbursement from St. Paul." The claim of Indemnity Insurance against Yonkers was barred by the provisions of the antisubrogation rule. Under the antisubrogation rule, an insurer "has no right of subrogation against its own insured for a claim arising from the very risk for which the insured was covered" (North Star Reins. Corp. v. Continental Ins. Co., 82 N.Y.2d 281, 294 [1993]). Yonkers was an additional insured under an excess policy issued by Indemnity Insurance Co. The excess policy included as an insured any entity included as an additional insured under the underlying Royal policy. The Royal policy, in turn, provides that "[a]ny person or organization [Romano is] required by written contract ... to name as an insured is an insured but only with respect to liability arising out of ... '[Romano's] work' performed for that insured.

Here the additional insured clause was the undoing of an otherwise viable claim for indemnification. It may take an army of men to build the bridge, but a skilled Insurance Defense Counsel is needed to check the Insurance Indemnification clauses.

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Fantasy baseball camps are the "Field of Dreams" for aging Varsity and College athletes. For a hefty price they are out on the diamond with their heroes of youth. A popular way to reach a milestone birthday or that one gift you always wanted. The Ultimate Driver's School event at Watkins Glen, provides the same type of experience for fantasy race car drivers. The plaintiff in Stephan v Clarendon National Insurance Co. , decided by Judge Kennedy in New York County Civil Court (023687/08) on March 8, 2010, was driving his 1989 BMW around this famous racetrack when he was involved in an accident. Clarendon disclaimed coverage based on the policy exclusion regarding a "Loss to any auto or trailer while inside any racing facility for the purpose of practicing for, preparing for, or participating in any prearranged or organized racing or speeding contest." The issue presented before the Court at trial was whether plaintiff's operation of a vehicle during an automobile club sponsored driver's school event located at a racing facility constituted "practicing for, preparing for, or participating in any prearranged or organized racing or speeding contest" as defined by the terms of defendant's policy. The Court dismissed the complaint against Clarendon on the coverage exclusion stating, "Although it appears that no court in this state has ruled on this issue, the Court adopts the reasoning set forth by the Superior Court of Massachusetts in Metropolitan Prop. and Cas. Ins. Co. v. Stevens (10 Mass. L. Rptr. 729 [Mass Super 1999]) and by the Court of Appeals of Georgia in Progressive American Ins. Co. v. Horde (259 Ga. App 769, 577 N.E. 2d 835 [2003]) and concludes that defendant met its burden in establishing that plaintiff's loss fell within defendant's policy exclusion."

The plaintiff argued (1) the purpose of the driver's school was "awareness" and not speed; (2) racing was prohibited at the event; (3) no timing devices were utilized; and (4) no vehicles were in close proximity to plaintiff's BMW at the time of the accident. Nevertheless, the Court felt the activity was clearly an organized race or speed contest and coverage under the Clarendon policy was not available.

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Magic Recovery Medical & Surgical Supply Inc. v. State Farm Mutual Auto. Ins. 2010 N.Y. Slip Op. 20130 decided on April 9, 2010 by the Appellate Term for the 2nd, 11th and 13th Judicial Districts is memorable for Judge Golia's quote in his dissent "Prior to addressing this issue, it is important to note the specific circumstances herein. In the case at bar, the indicia of fraud are so significant and unabashed that it is difficult to relegate them to the level of a "founded belief." Even the most cursory examination of the facts of this case should elicit the reaction, "Are you kidding?"

Judge Golia discussed the No-Fault phenomenon where the eligible injured person and the medical provider share the same identity in a no-fault claim for medical services. Two different Supreme Court Justices independently found that each of these collisions which were the subject matter of the PIP claims were part of a scheme to defraud the insurance carrier. Both Supreme Court Justices determined that the underlying policies were null and void as regards the collisions, and declared that all the individuals allegedly involved therein were not eligible injured persons. Despite that finding the majority of the Appellate Term found, "Plaintiff herein was neither named nor served in the declaratory judgment actions nor, at the time, was it in privity with someone who was, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in those proceedings.

Accordingly, the judgments do not collaterally estop plaintiff from recovering in this action (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Mid Atl. Med., P.C. v Victoria Select Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51758[U] [App Term, 2d & 11th Jud Dists 2008]; see also Green v Santa Fe Indus., 70 NY2d 244, 253 [1987]). Moreover, as the declaratory judgments were obtained on default, there was no actual litigation of the issues and, therefore, no identity of issues (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456-457 [1985];Zimmerman v Tower Ins. Co. of NY, 13 AD3d 137, 139-140 [2004]; Chambers v City of New York, 309 AD2d 81, 85-86 [2003]; Holt v Holt, 262 AD2d 530, 530 [1999]).

Judge Golia, in our opinion, hit the nail on the head when he stated the collateral estoppel distinctions made by the majority were wrong. "I submit that this set of circumstances could not be possible in the realities of a no-fault claim. The simple fact is that a filed claim could not exist prior to the assignment of that claim. It would, therefore, be impossible for an action to be commenced prior to the assignment of a claim that had not yet come into existence."