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ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT).

The Second Department, in this construction accident case with multiple subcontractors, insurers and insureds, determined that the antisubrogation rule barred plaintiff-insurer’s causes of action:

The nonparty-respondent The New School (hereinafter TNS) entered into a contract with the nonparty-respondent Tishman Construction Corporation of New York (hereinafter Tishman) for the building of a new facility. Pursuant to the agreement, Tishman entered into trade contracts with various subcontractors, including … the defendant subcontractors. Tishman also contracted with nonparty … Geller to provide electrical services.

The defendant subcontractors elected to participate in a Contractor Controlled Insurance Program (hereinafter the CCIP) implemented by Tishman. Geller did not participate in the CCIP, and instead obtained a policy of insurance issued by the plaintiff, Wausau Underwriters Insurance Company … . As required by the trade contract, both TNS and Tishman were named as additional insureds under the Wausau policy.

The nonparty Harripersaud …, an employee of Geller, allegedly was injured when he tripped and fell while working at the construction site. Harripersaud commenced a personal injury action … against TNS and Tishman, alleging negligence and violations of the Labor Law. Tishman’s insurer tendered the complaint to the plaintiff, which accepted the tender and agreed to defend and indemnify Tishman and TNS. Subsequently, the plaintiff, as subrogee for Tishman and TNS, commenced this action against the defendant subcontractors. Tishman and TNS moved for leave to intervene and …to dismiss the complaint. The plaintiff cross-moved to consolidate this action with the Harripersaud personal injury action. …

The antisubrogation rule operates to bar the plaintiff’s causes of action. 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” .. . This rule prevents an insurer from passing its losses to its own insured … . Here, the defendant subcontractors were members of the CCIP, and the CCIP imposed a $500,000 retention obligation on Tishman, as to each occurrence under the policy. Accordingly, the antisubrogation rule bars Tishman and TNS from asserting claims against the defendant subcontractors… . Inasmuch as the antisubrogation rule would bar Tishman and TNS from asserting causes of action against the defendant subcontractors, it bars the plaintiff’s causes of action as well. A subrogee “is subject to any defenses or claims which may be raised against the subrogor. Thus, a subrogee may not acquire any greater rights than the subrogor” … . Wausau Underwriters Ins. Co. v Gamma USA, Inc., 2018 NY Slip Op 08055, Second Dept 11-21-18

INSURANCE LAW (ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))/ANTISUBROGATION RULE (INSURANCE LAW, ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))/NEGLIGENCE (INSURANCE LAW, ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))/LABOR LAW-CONSTRUCTION LAW (INSURANCE LAW, ANTISUBROGATION RULE BARRED PLAINTIFF INSURER’S CAUSES OF ACTION, THE UNDERLYING ACTION ALLEGED NEGLIGENCE AND LABOR LAW VIOLATIONS STEMMING FROM A CONSTRUCTION ACCIDENT (SECOND DEPT))

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