Alterra Am. Ins. Co. v. National Football League

Alterra Am. Ins. Co. v National Football League (2021 NY Slip Op 00900) Alterra Am. Ins. Co. v National Football League 2021 NY Slip Op 00900 Decided on February 11, 2021 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports. Decided and Entered: February 11, 2021 Before: Acosta, P.J., Kapnick, Singh, Mendez, JJ. Index Nos. 652813/12, 652933/12 Appeal No. 13105-13106 Case Nos. 2019-05460, 2019-05461 [*1]Alterra America Insurance Company et al. Plaintiffs, v National Football League et al. Defendants-Respondents, TIG Insurance Company et al., Defendants-Appellants, Allstate Insurance Company, et al., Defendants. Discover Property & Casualty Company, et al., Plaintiffs, v National Football League et al. Defendants-Respondents, TIG Insurance Company et al., Defendants-Appellants, Allstate Insurance Company, et al., Defendants. Kennedys CMK LLP, New York (Heather E. Simpson and Christopher R. Carroll of counsel), for TIG Insurance Company, The North River Insurance Company, United States Fire Insurance Company, and as liaison counsel for Munich Reinsurance America Inc. and American Guarantee and Liability Insurance Company, appellants. Mound Cotton Wollan & Greengrass LLP, New York (Lloyd A. Gura of counsel), for Continental Casualty Company and Continental Insurance Company, appellants. Hardin Kundla, McKeon & Poletto PA, New York (George R. Hardin of counsel), for Bedivere Insurance Company formerly known as OneBeacon America Insurance Company, appellant. Dilworth Paxson LLP, New York (William E. McGrath, Jr. of counsel), for Munich Reinsurance America, Inc., appellant. Coughlin Duffy LLP, New York (Robert W. Muilenburg of counsel), for American Guarantee and Liability Insurance Company, appellant. Troutman Sanders LLP, New York (Matthew J. Aaronson of counsel), for XL Insurance America Inc. and XL Select Insurance Company, appellants. Covington & Burling LLP, New York (ClÉa P.M. Liquard of counsel) and Covington & Burling LLP, Washington, DC (Mitchell F. Dolin, of the bar of the District of Columbia, admitted pro hac vice, of counsel), for respondents. Orders, Supreme Court, New York County (Andrea Masley, J.), entered on or about October 4, 2019, which, to the extent appealed from as limited by the briefs, denied the motions of defendants-insurers to modify orders of a Special Referee denying their motions to compel defendants National Football League and NFL Properties LLC to produce their underlying defense and settlement materials and utilize certain additional search terms for the collection of electronically stored information, unanimously affirmed, with costs. In these insurance coverage actions, the motion court providently exercised its broad discretion in denying the insurers' motions to compel discovery of the NFL's defense and settlement materials from the underlying action. The cooperation clauses in the insurance policies did not operate as waivers of the NFL's attorney-client and work-product privileges (see J.P. Morgan Chase & Co. v Indian Harbor Ins. Co., 98 AD3d 18, 25 [1st Dept 2012], lv denied 20 NY3d 858 [2013]). Nor was there a waiver of the attorney-client privilege merely because the parties had a common interest in the outcome of the underlying actions (see American Re-Insurance Co. v United States Fid. & Guar. Co., 40 AD3d 486, 491 [1st Dept 2007]). Further, by merely seeking coverage, the NFL did not put its privileged and protected information at issue (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63-64 [1st Dept 2007]). The record provides no basis to compel the NFL to produce nonprivileged portions of the defense file, and there is no basis to disturb the court's decision rejecting the insurers' additional proposed electronic discovery search terms. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. ENTERED: February 11, 2021