Investors Insurance of America v. Hartford Fire Insurance

Order and judgment (one paper), Supreme Court, New York County (Lorraine Miller, J.), entered on or about June 28, 1995, which granted plaintiffs motion for summary judgment declaring that defendant must share equally with plaintiff in the settlement of the underlying tort action, including attorney fees, costs and disbursements, and awarded plaintiff $162,500 plus interest, unanimously affirmed, with costs. In this dispute between insurers, "matching clauses, which apparently have become standard in the industry, adequately manifest an intent for the application of contribution by equal shares under the circumstances” (J. P. Realty Trust v Public Serv. Mut. Ins. Co., 102 AD2d 68, 72, affd 64 NY2d 945). Having paid the entire amount of the settlement in the underlying tort action, plaintiff has a valid cause of action for defendant to share therein (see, Zurich-American Ins. Cos. v Atlantic Mut. Ins. Cos., 139 AD2d 379, 387-388, affd 74 NY2d 621). We reject defendant’s claim of estoppel, since it fails to demonstrate reliance on the conduct of plaintiff or any prejudicial change in its position (see, BWA Corp. v Alltrans Express U.S.A., 112 AD2d 850, 853). In view of the foregoing, issues raised by defendant’s motion to disqualify plaintiffs counsel are academic, and we do not reach them. We have considered defendant’s remaining arguments and find them to be without merit. Concur—Murphy, P. J., Milonas, Wallach, Rubin and Mazzarelli, JJ.