New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Civil Procedure2 / ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S...
Civil Procedure, Insurance Law, Labor Law-Construction Law

ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED.

The First Department, over a detailed dissent which lays out the complicated facts, affirming Supreme Court (Reed, J.), determined the action by insurer’s subrogee (Nationwide) against the insured’s subrogee (US Underwriters) in this Labor Law (construction accident) action was barred by collateral estoppel and res judicata. The underlying action had settled for about $1.55 million.

FROM THE DISSENT (THE FACTS):

On or about July 9, 2001, Kerwin Park, an employee of Armadillo Construction Corp., a demolition contractor, sustained personal injuries while working on a construction site. Park commenced the underlying Labor Law action against the general contractor (Artimus) and others. Nationwide, Artimus’s insurer, tendered the defense of the action to Armadillo and Armadillo’s insurer, U.S. Underwriters; Artimus was an additional insured on the U.S. Underwriters policy. By letter dated August 31, 2001, U.S. Underwriters denied coverage to Artimus, copying the broker and Armadillo on the letter, based on late notice of occurrence and various exclusions in the policy. …[T]he underlying action settled for approximately $1.55 million. Nationwide contributed to the settlement on Artimus’s behalf. Artimus also obtained a default judgment on its third-party indemnification claim against Armadillo. … Artimus moved to restore its claims against Armadillo to the active calendar in the declaratory judgment action. In granting the motion, the court (Ramos, J.) cited to Justice Cahn’s earlier decision in the action and observed that no decision had been made concerning Armadillo’s entitlement to coverage. * * * Justice Reed granted U.S. Underwriters’ motion to dismiss the complaint, concluding that Artimus, as Armadillo’s subrogee, was collaterally estopped from bringing the instant action, because it was in privity with Armadillo, and whatever rules of collateral estoppel applied to Armadillo would also apply to Artimus (and its subrogee, Nationwide). The court found that as a consequence, Artimus was bound by Justice Cahn’s order. The court also found that the action was barred by the doctrine of res judicata.

​

FROM THE MAJORITY:

… [T]he parties were afforded a full and fair opportunity to litigate the insurance coverage issues in the prior action. Nationwide is therefore collaterally estopped from litigating the same issues already decided against its subrogor, Artimus, who in turn is estopped from litigating the same issues decided against its subrogor, Armadillo, as a subrogee of the insured.

Moreover, the principles of res judicata favor defendants herein. Nationwide and Artimus seek to enforce the judgment that they were awarded against Armadillo in the third-party personal injury action. However … in the prior action the court found that the coverage exclusion with respect to the personal injury action in U.S. Underwriters policy was applicable. By bringing this action as subrogees of Artimus and Armadillo under Insurance Law § 3420, Nationwide and Artimus are essentially seeking to relitigate Artimus’s claims for coverage. “Res judicata is designed to provide finality in the resolution of disputes, recognizing that [c]onsiderations of judicial economy as well as fairness to the parties mandate, at some point, an end to litigation” … . Nationwide Mut. Ins. Co. v U.S. Underwriters Ins. Co., 2017 NY Slip Op 04774, 1st Dept 6-13-17

 

 

INSURANCE LAW (ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/CIVIL PROCEDURE (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/LABOR LAW-CONSTRUCTION LAW (INSURANCE LAW, CIVIL PROCEDURE, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/COLLATERAL ESTOPPEL (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/RES JUDICATA (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)/PRIVITY (INSURANCE LAW, LABOR LAW-CONSTRUCTION LAW, ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED)

June 13, 2017/by CurlyHost
Tags: First Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 CurlyHost https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png CurlyHost2017-06-13 16:44:542020-02-06 16:06:28ACTION BY PLAINTIFF’S SUBROGEE (INSURER) AGAINST DEFENDANT’S SUBROGEE (INSURER) IN THIS CONSTRUCTION ACCIDENT CASE BARRED BY COLLATERAL ESTOPPEL AND RES JUDICATA, CONCEPTS OF SUBROGATION AND PRIVITY EXPLAINED.
You might also like
HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.
ALLOWING IN EVIDENCE INTERNAL RULES WHICH IMPOSED A HIGHER STANDARD OF CARE THAN REQUIRED BY THE COMMON LAW WAS REVERSIBLE ERROR. 
THE ISSUE WHETHER THE STATUTORY REQUIREMENT THAT OBJECTIONS TO CHILD SUPPORT ORDERS BE RULED ON WITHIN 15 DAYS WAS CONSIDERED ON APPEAL AS AN EXCEPTION TO THE MOOTNESS DOCTRINE; THE 15-DAY RULE IS MANDATORY AND MUST BE ENFORCED; THE MOTHER WAS ENTITLED TO ATTORNEY’S FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT BECAUSE HER ACTION WAS THE CATALYST FOR THIS DECISION (FIRST DEPT).
PLAINTIFF’S EXPERT DID NOT RAISE A QUESTION OF FACT ABOUT WHETHER THE INJURY WAS CAUSED BY THE ACCIDENT, AS OPPOSED TO A DEGENERATIVE DISEASE; TWO-JUSTICE DISSENT.
IN THE CONTEXT OF A LAWSUIT BY THE BOARD MEMBERS OF AN UNINCORPORATED CONDOMINIUM ASSOCIATION AGAINST THE FORMER PRESIDENT OF THE BOARD, NEITHER THE REAL PROPERTY LAW (RPL) NOR THE BUSINESS CORPORATION LAW (BCL) APPLIES TO THE FORMER PRESIDENT’S DEMAND FOR ATTORNEY’S FEES ASSOCIATED WITH DEFENDING THE ACTION; THE BY-LAWS AND THE COMMON LAW RULE THAT THE PARTIES ARE RESPONSIBLE FOR THEIR OWN ATTORNEY’S FEES CONTROL (FIRST DEPT).
PLAINTIFF TRIPPED AND FELL ON AN UNEVEN MAT WHEN SHE STEPPED OFF THE DEFENDANT’S SKATING RINK; THE ACTION AGAINST THE COMPANY WHICH SOLD AND INSTALLED THE MAT SHOULD HAVE BEEN DISMISSED; THERE WAS NO CONTRACT BETWEEN THE OWNER OF THE SKATING RINK AND THE SELLER/INSTALLER OF THE MAT AND THERE WAS NO EVIDENCE THE SELLER/INSTALLER OF THE MAT LAUNCHED AN INSTRUMENT OF HARM (FIRST DEPT).
No Proof of Service of Notice of Entry of Default Judgment; One Year Deadline Never Triggered​
Judge’s Failure to Follow Statutory Requirements for Handling Jury Questions Required Reversal.

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trusts and Estates
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2022 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

PLAINTIFF’S GENDER DISCRIMINATION SUIT SHOULD NOT HAVE BEEN DISMISSED... INSURER WHICH OPTED NOT TO DEFEND THIS CONSTRUCTION ACCIDENT CASE WAS REQUIRED...
Scroll to top