Summary
holding that the lower court "correctly construed" the phrase "total of the applicable limits of the underlying policies listed in Schedule A" as "the total of the amounts specified for each of the policies listed in Schedule A of the category of coverage applicable to the incident for which the parties' insured was sued"
Summary of this case from Utica Mutal Ins. Co. v. Fireman's Fund Ins. Co.Opinion
June 9, 1998
Appeal from the Supreme Court, New York County (Ira Gammerman, J.).
By its terms, defendants policy was to be triggered by a loss in excess of "the retained limit", defined as, inter alia, "the total of the applicable limits of the underlying policies listed in Schedule A hereof, and the applicable limits of any other insurance collectible by the insured". The IAS Court correctly construed this to include the total of the amounts specified for each of the polices listed in Schedule A of the category of coverage applicable to the incident for which the parties insured was sued, regardless of whether such listed policies actually provided coverage ( Fried v. North Riv. Ins. Co., 710 F.2d 1022, 1026, see, Ambassador Assocs. v. Corcoran, 143 Misc.2d 706, affd 168 A.D.2d 281, affd 79 N.Y.2d 871), and, if so, how much. Thus, it does not avail defendant that plaintiffs employers liability policy, listed in Schedule A as having an "applicable limit" of $100,000, may in fact have provided coverage that was unlimited. We have considered defendant's other arguments and find them to be without merit.
Concur — Sullivan, J. P., Rosenberger, Wallach and Andrias, JJ.