Opinion
May 30, 1991
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
This is an action by an insurer to recover another insurer's pro rata contribution to a settlement paid in a personal injury action entitled Brown v 44-55 Assocs. (Bronx County Index No. 41929/86), wherein an injured employee brought an action against the owners of the site where he was injured. The defendants brought a third-party claim for indemnification against, inter alia, the injured plaintiff's employer.
The plaintiff Insurance Fund covered that employer on a workers' compensation policy and on a separate employer's liability policy. The defendant herein was a co-insurer on employer's liability coverage, which included a "plain English" exclusion for claims arising out of an employee's injury.
The IAS court properly concluded that there was an ambiguity as to whether or not this exclusion encompassed contribution and indemnity, since the defendant did not provide for the exclusion in clear and unmistakable language (Clarostat Mfg. Co. v Travelers Indem. Co., 115 A.D.2d 386). Ambiguities are to be resolved against the insurer, particularly as to exclusion clauses (see, North Riv. Ins. Co. v United Natl. Ins. Co., 152 A.D.2d 500, lv dismissed 75 N.Y.2d 865). We find no reason not to follow the rules of construction favoring the insured where the exclusion clause is in conformity with the "plain language" requirements of Insurance Law § 3102.
Whether defendant is responsible for half of a workers' compensation lien waived by the plaintiff in the Brown settlement presents no triable issue. There is no liability as a matter of law. This is not a case where a claim for the waived lien is made by a workers' compensation insurer against a co-insurer under workers' compensation (cf., Matter of Bertone v La Cal Causle Corp., 26 N.Y.2d 147).
Concur — Sullivan, J.P., Milonas, Wallach, Ross and Kassal, JJ.