New York Appellate Division: Second Department Contradicts First Department, Denying Insurer's Recoupment of Defense Costs for Uncovered Claims

Businessman holding money in hands

In American Western Home Insurance Co. v. Gjonaj Realty & Mgt. Co., the insurer was not entitled to recoup defense costs, even where it was determined that the claim was not covered under the insurance policy.

March 1, 2021
Jasjeet K. Sahani - Saxe Doernberger & Vita, P.C.

New York law has historically allowed insurers to recoup defense costs paid on behalf of an insured if there is ultimately no coverage for the underlying action, provided that the insurer reserved its rights to seek reimbursement. On December 30, 2020, the New York Appellate Division, Second Department declined to follow this longstanding principle in American Western Home Insurance Co. v. Gjonaj Realty & Mgt. Co.,1 by holding that the insurer was not entitled to recoup defense costs, even where it was determined that the claim was not covered under the insurance policy.

In American W. Home Ins. Co., the insureds were named as defendants in an underlying personal injury action. More than four years after the accident, and a $900,000 default judgment against the insureds, they tendered the lawsuit to their commercial general liability insurer, American Western Home Insurance Company (“American”). American denied coverage based on untimely notice, but after the default judgment was subsequently vacated, it agreed to defend the underlying action subject to a reservation of rights. The reservation of rights specifically reserved American’s right to deny coverage if the vacatur of the default judgment against the insureds was reversed. Further, American reserved its right to recover the costs of defending the underlying litigation.

Mr. Sahani may be contacted at JSahani@sdvlaw.com



714.701.9180

Arrange No Cost Consultation

 

Construction Defect Journal is aggregated from a variety of news sources, article submissions, contributors, and information from industry professionals.

No content on this site should be construed as legal advice or expert opinion. By viewing this site you agree to be bound by its terms and conditions

 

Copyright 2021 - Construction Defect Journal – All Rights Reserved