# Travelers Property Casualty Company of America v. Hudson Excess Insurance Company

> District Court, S.D. New York · March 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10349284

## Case

- **Court:** District Court, S.D. New York
- **Decided:** March 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10349284

## How later opinions describe it (automated extraction)

- holding that insured’s recovery “should include not only the cost of defending the main claim, but also the costs of pursuing the third-party actions because the filing of the third-party actions was an essential component of the defense of the main action”

## Opinion text

UNITED STATES DISTRICT COURT E DL OE CC #T :R ONIC ALLY FILED
SOUTHERN DISTRICT OF NEW YORK DATE FILED: 3/8/20 23
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA,
1:21-cv-6671 (MKV)
Plaintiff,
OPINION AND ORDER
-against- GRANTING MOTION
FOR PARTIAL
HUDSON EXCESS INSURANCE COMPANY, SUMMARY JUDGMENT
Defendant.
MARY KAY VYSKOCIL, United States District Judge:
Kyle Keys was injured on a job site when he fell into an uncovered trench while walking
backwards. He filed a personal injury lawsuit in New York state court (the “underlying
lawsuit”), naming as defendants the contractor for the job and the City of New York. The
subcontractor who employed Keys was not named as a defendant. However, the contractor and
the City of New York brought third-party claims against the subcontractor for contribution and
indemnification.
The question in this case is which of two insurers bears responsibility for defending the
project contractor and the City in the underlying lawsuit: the plaintiff in this case that insured the
contractor, or the defendant that insured the subcontractor. The plaintiff now moves for partial
summary judgment, asking the Court to declare that the defendant owes a duty to defend, that the
defendant’s policy provides primary coverage, and that the plaintiff’s coverage is excess to that
of the defendant. The plaintiff also seeks an award for all sums it has thus far paid in defending
the underlying lawsuit. For the reasons that follow, the motion for partial summary judgment is
granted.
FACTUAL BACKGROUND1
I. THE ACCIDENT
The accident at issue here happened in connection with a plumbing project. Specifically,
Richards Plumbing and Heating Co. (“Richards”) agreed to provide plumbing services for the
New York City Department of Homeless Services (“DHS”) and, to that end, received a permit
from the City’s Department of Buildings to work at 22 East 119th Street in Manhattan (the

“project site”). Pl. Facts ¶¶ 9, 10. Richards subsequently entered into a subcontract with RVS
Construction Corp. (“RVS”), pursuant to which RVS agreed to work on a sewer line replacement
at the project site, and also agreed to procure commercial general liability insurance that would
include DHS and Richards as additional insureds. Pl. Facts ¶¶ 11-16.
Kevin Keys worked for RVS at the project site. Pl. Facts ¶ 17. One day he was walking
backwards with a wheelbarrow when he fell into an uncovered trench. Pl. Facts ¶ 13. He later
testified that digging trenches was a part of his work, that he was working on the main floor of
the project site at the direction of RVS at the time of the accident, that the trench he fell into was
usually covered by plywood, and that RVS employees were standing near the trench at the time

of his fall. Pl. Facts ¶ 22. He further testified that a plumber—who worked for Richards—had
removed the plywood from the trench at some point before his accident, Def. Facts ¶¶ 37-38, and
that he was not aware of the unprotected trench until it was too late. Pl. Facts ¶ 23.

1 The facts alleged herein are drawn from Plaintiff’s Local Rule 56.1 Statement [ECF No. 19] (“Pl. Facts”), the
Declaration of Amy C. Gross in support of Plaintiff’s motion for partial summary judgment and attached exhibits
[ECF No. 20] (“Gross Decl.”), the Declaration of Christine Dodge in support of Plaintiff’s motion for partial
summary judgment and attached exhibits [ECF No. 21] (“Dodge Decl.”), Defendant’s Counterstatement in response
to Plaintiff’s Local Rule 56.1 Statement [ECF No. 26] (“Def. Facts”), and the Declaration of Michael F. Panayotou
in opposition to Plaintiff’s motion for partial summary judgment and attached exhibits [ECF No. 25] (“Panayotou
Decl.”). Citations to the parties’ Rule 56.1 Statements incorporate by reference the documents cited therein,
including the respective insurance policies. Unless otherwise noted, where only one party’s 56.1 Statement is cited,
the other party does not dispute the fact asserted.
II. THE UNDERLYING LAWSUIT
Keys brought a personal injury lawsuit in New York state court based on theories of
negligence and violations of various statutes and regulations. Pl. Facts ¶¶ 18-19. The named
defendants included (among others) Richards and the City of New York (the “City”). Pl. Facts
¶¶ 18-19. Keys alleged that his injuries were due to the “negligence of the defendants and

defendant’s agents, servants, licenses, contractors, subcontractors, employees and other
affiliates,” for (among other things) allowing “the trench to exist and remain opened and
unprotected,” and for “failing to place warnings and/or barricades about this dangerous and
hazardous condition.” Pl. Facts ¶ 20. While Keys did not name RVS as a defendant,2 Richards
and the City both asserted third-party claims against RVS for (among other things) contribution
and indemnification. Pl. Facts ¶ 21.
RVS moved to dismiss the third-party claims brought against it, but the state court denied
the motion. Pl. Facts ¶ 26. In so doing, the state court concluded that “in the absence of
evidence that anyone other than third party defendant [RVS] was working in the area, plaintiff’s
testimony raises issues whether third party defendant’s negligence caused plaintiff’s injury.” Pl.

Facts ¶ 27. The identified issues included whether RVS “failed to direct, supervise, guide, and
assist plaintiff as he pulled the wheelbarrow down the narrow hallway; provide him adequate
equipment to perform the task, and keep the trench covered or barricaded.” Pl. Facts ¶ 27. Put
differently, the sate court could not rule out the possibility that RVS was at fault for the injury.

2 Keys was not able to name RVS as a defendant due to New York’s Workers’ Compensation law, which prohibits
an employee from filing a personal injury lawsuit against his employer. In New York, the only remedy for an
employee against his employer for injuries during the course of employment is worker’s compensation benefits. See
Weiner v. City of New York, 19 N.Y.3d 852, 854, 970 N.E.2d 427, 428 (2012).
III. THE INSURANCE DISPUTE
While the dispute over liability played out, there was a side dispute over which insurance
companies had the duty to defend Richards and the City in the underlying lawsuit—the insurer of
Richards (the contractor) or the insurer of RVS (the subcontractor). Specifically, Plaintiff
Travelers Property Casualty Company of America (“Travelers”) insured Richards under a

commercial general liability policy. Pl. Facts ¶ 1. Travelers provided a defense for its insured,
Richards, and its additional insured, the City, pursuant to this policy, when the underlying
lawsuit commenced. Pl. Facts ¶ 34. However, Travelers maintained that the duty to defend was
rightfully owed by Hudson Excess Insurance Company (“Hudson”), which provided general
liability insurance to RVS. Pl. Facts ¶ 5.
The Hudson policy covers not only RVS, as the named insured, but also additional
insureds. The Hudson policy expressly extends coverage to any “organization that [RVS]
agree[s] in writing in a contract . . . be added as an additional insured.” Pl. Facts ¶ 7. It also
includes the City of New York, “with respect to operations performed by you [RVS] or on your
behalf for which the state or governmental agency or subdivision or political subdivision has

issued a permit or authorization.” Pl. Facts ¶ 8. Notably, coverage is provided for additional
insureds only with respect to bodily injury “caused, in whole or in part, by” the acts or omissions
of RVS or those acting on behalf of RVS. Pl. Facts ¶ 7.
Both the Travelers policy and the Hudson policy provide coverage for bodily injury that
takes place during the policy period and is caused by an accident. Pl. Facts ¶¶ 2, 9. Under both
policies, the insurers have a duty to defend the insured against any suit seeking damages for a
covered injury. Gross Decl., Ex. B, Hudson Policy at 11 (pdf pagination); Gross Decl., Ex. A,
Travelers Policy at 27. And both policies have “other insurance” clauses, which deal with
situations in which multiple policies cover a single loss by specifying when their coverage is
“primary” as opposed to “excess.”3 Pl. Facts ¶¶ 4, 9.
By letter dated March 14, 2018, Travelers, on behalf of Richards, tendered the defense to
Hudson. Pl. Facts ¶ 29. Hudson denied that tender. Pl. Facts ¶ 30. On January 6, 2021,

Travelers followed up with Hudson and advised that its tender was on behalf of both Richards
and the City. Pl. Facts ¶ 32. Hudson again denied the tender and refused to defend the
underlying lawsuit. Pl. Facts ¶ 33. As a result, Travelers alone has been providing a defense to
Richards and the City in the underlying lawsuit and incurring all associated costs, Pl. Facts
¶¶ 34-35, which, according to the Declaration of Christine L. Dodge, amount to $112,690.88.
Dodge Decl. ¶ 4.
PROCEDURAL HISTORY
Travelers filed this lawsuit [ECF No. 1] (“Compl.”) seeking a declaration that (a) Hudson
owes the City and Richards both a duty to defend and a duty to indemnify in the underlying
lawsuit, and (b) the Hudson policy provides coverage which is primary to the Travelers policy,
which provides excess coverage in connection with the underlying lawsuit. Compl. ¶ 28.

Travelers further seeks an award for all sums it has paid to defend the City and Richards in the
underlying lawsuit. Compl. ¶ 32.
Travelers has now moved for partial summary judgment with respect to the duty to
defend. Specifically, Travelers seeks a judgment that Hudson, and not Travelers, owes a duty to
defend Richards and the City and that Hudson must reimburse Travelers for all sums incurred

3 For the reasons discussed below, see infra Section II, the precise language contained in these “other insurance”
clauses is not necessary to resolve any issues in this case. As such, the Court does not excerpt the relevant language.
while defending the underlying lawsuit. [ECF Nos. 17, 23]. Hudson opposed the motion [ECF
No. 24], and Travelers filed a reply [ECF No. 27].
LEGAL STANDARDS
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be
granted “if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party
bears the initial burden of demonstrating the absence of a dispute. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). The court “may not make credibility determinations or weigh the
evidence,” Jaegly v. Couch, 439 F.3d 149, 151 (2d Cir. 2006), and “must resolve all ambiguities
and draw all permissible inferences in favor of the non-moving party.” Id.
Under New York law,4 the interpretation of a contract “is a matter of law for the court to
decide.” Int’l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 83 (2d Cir. 2002)
(citation omitted). “Insurance policies are, in essence, creatures of contract, and accordingly,
subject to principles of contract interpretation.” Lantheus Med. Imaging, Inc. v. Zurich American
Ins. Co., 650 F. App’x 70, 71 (2d Cir. 2016) (quoting In re Estates of Covert, 97 N.Y.2d 68, 76,

761 N.E.2d 571 (2001)).
DISCUSSION
Travelers seeks a summary judgment (I) declaring that Hudson owes a duty to defend the
underlying action; (II) declaring that Hudson’s policy provides primary coverage, and that the
Travelers coverage is excess to that of Hudson; and (III) granting Travelers an award for all sums
it has paid in defense of the underlying action.

4 The Court applies New York law because the parties’ briefing assumes New York law governs. See Green Tree
Servicing, LLC v. Christodoulakis, 689 F. App’x 66, 70 n.1 (2d Cir. 2017).
I. The Duty to Defend
“An insurer’s duty to defend its insured is exceedingly broad.” Regal Constr. Corp. v.
Nat’l Union Fire Ins. Co., 15 N.Y.3d 34, 37, 930 N.E.2d 259 (2010) (internal quotation marks
omitted). That obligation is separate from and broader than the duty to indemnify. See Colon v.
Aetna Life & Cas. Ins. Co., 66 N.Y.2d 6, 9, 484 N.E.2d 1040 (1985). In the seminal case of

Seaboard Surety Co. v. Gillette Co., 64 N.Y.2d 304, 476 N.E.2d 272 (1984), the New York
Court of Appeals held that an insurer has a duty to defend “whenever the allegations in a
complaint against the insured fall within the scope of the risks undertaken by the insurer,
regardless of how false or groundless those allegations might be.” Id. at 310, 476 N.E.2d 272.
The duty also arises “where the insurer ‘has actual knowledge of facts establishing a reasonable
possibility of coverage.’” Frontier Insulation Contractors v. Merchants Mut. Ins. Co., 91
N.Y.2d 169, 175, 690 N.E.2d 866, 868-69 (1997) (quoting Fitzpatrick v. American Honda Motor
Co., 78 N.Y.2d 61, 67, 575 N.E.2d 90, 93 (1991)); see generally Ostrager & Newman,
Handbook on Insurance Coverage Disputes § 5.02[b] (21st ed. 2022). “This standard applies
equally to additional and named insureds.” Regal Contr., 15 N.Y.3d at 37, 930 N.E.2d 259.

The threshold question framed by Travelers’ motion is whether Hudson’s duty to defend
extends to both Richards and the City as additional insureds.
A. Richards

Travelers claims that Hudson has a duty to defend Richards and the City in the
underlying lawsuit because they are additional insureds under the policy issued to RVS and
because the Hudson policy covers additional insureds where a bodily injury is “caused, in whole
or in part, by” the acts or omissions of the named insured, RVS. New York courts have held that
such causation language provides coverage for injuries “proximately caused by the named
insured,” Burlington Ins. Co. v. NYC Transit Auth., 29 N.Y.3d 313, 317, 79 N.E.3d 477 (2017),
meaning that the named insured “was a ‘substantial cause’ of the events creating the injury,” Was
NJ-2, LLC v. JFB Const. & Dev., 111 F. Supp. 3d 434, 457 (S.D.N.Y. 2015) (quoting
Maheshwari v. City of New York, 2 N.Y.3d 288, 295, 810 N.E.2d 894 (2004)). Thus, since the
motion before the Court involves the duty to defend, the dispositive issue in this case is whether

the complaint in the underlying lawsuit, or extrinsic evidence from that suit, establishes the
possibility that the injury at issue was proximately caused by RVS.
Travelers begins with the underlying complaint. It argues that the complaint creates the
possibility that RVS was a proximate cause of the injury because it states, among other things,
that Keys’ injury was caused by the “negligence of the defendants and defendant’s agents,
servants, licenses, contractors, subcontractors, employees and other affiliates,” for (among other
things) allowing “the trench to exist and remain opened and unprotected,” and for “failing to
place warnings and/or barricades about this dangerous and hazardous condition.” Pl. Facts ¶ 20
(emphasis added). As a factual matter, RVS was a subcontractor and so fits within the language
of the underlying complaint. As a practical matter, however, Keys did not name RVS as a

defendant, and the complaint’s passing reference to unnamed “subcontractors” appears in
boilerplate language which is intended to cast as wide a net as possible. Such language, without
more, “is simply too vague and conclusory to raise a reasonable possibility of coverage.”
Travelers Indem. Co. v. Accredited Sur. & Cas. Co., No. 21-cv-3412, 2022 WL 16722107, at *5
(S.D.N.Y. Nov. 4, 2022).
However, the underlying complaints’ failure to level allegations against RVS is not
dispositive of the duty to defend. That is because an insurer may have a duty to defend
irrespective of what is contained in the complaint if there is extrinsic evidence showing that “the
insurer ‘ha[d] actual knowledge of facts establishing a reasonable possibility of coverage.’”
Frontier Insulation, 91 N.Y.S.2d at 175, 690 N.E.2d 866 (quoting Fitzpatrick, 78 N.Y.2d at 67,
575 N.E.2d 90) (emphasis added). Travelers argues that Hudson had such knowledge as a result
of the state court’s order which concluded that there are factual issues, stemming from Keys’
deposition testimony, regarding whether RVS “failed to direct, supervise, guide, and assist

plaintiff as he pulled the wheelbarrow down the narrow hallway; provide him adequate
equipment to perform the task, and keep the trench covered or barricaded.” Pl. Facts ¶ 27.
In response, Hudson relies on a single argument: given Keys’ testimony that an employee
of Richards removed the plywood from the trench before his fall, it must have been Richards,
and not RVS, that proximately caused his injury. But the fact that Richards may have also
proximately caused the injury does not alter the analysis. It is well settled, after all, that “there
may be multiple proximate causes for an injury,” Travelers Indemnity, No. 21-cv-3412, 2022
WL 16722107, at *6, and that fault by one does not necessarily absolve another of liability.
Here, the Court finds it dispositive that the state court, which is undeniably closer to the
underlying lawsuit, considered all the available evidence and nonetheless denied RVS’s motion

to dismiss the third-party complaint. Such a ruling establishes that there is at least a possibility
that RVS proximately caused the injury suffered by Keys, and that, once Travelers re-tendered
the defense to Hudson after the state court ruling, Hudson had actual knowledge of this
possibility.
Because there is a reasonable possibility that RVS proximately caused (even if it was not
the proximate cause of) Keys’ injury, Hudson had a duty to defend the additional insureds in the
underlying lawsuit. See Fitzpatrick v. Am. Honda Motor Co., 78 N.Y.2d 61, 65, 575 N.E.2d 90,
91-92 (1991). Travelers has failed to establish that such a duty existed when it first tendered
defense of the underlying lawsuit to Hudson on March 14, 2018, which pre-dates the state court
ruling. See Massachusetts Bay Ins. Co. v. Penny Preville, Inc., No. 95-cv-4845, 1996 WL
389266, at *5 (S.D.N.Y. July 10, 1996) (“[A]n examination of whether an insurer has a duty to
defend must focus on the information made available to the insurer and the insurer’s actual
knowledge at the time a request for a defense was tendered in light of the language of the

policy.”). But the duty to defend clearly existed at the time of the second tender on January 6,
2021. That duty extends to Richards, who is indisputably an additional insured.
B. The City of New York
Hudson claims that the City of New York does not qualify as an additional insured under
the terms of its policy and that, as a result, the City is entitled to no coverage for the accident.
Hudson first argues that the subcontract entered into by Richards and RVS provides only that
Richards and the New York City Department of Homeless Services (“DHS”) will be named as
additional insureds; the subcontract says nothing about the City itself. As a result, Hudson
argues that the City does not qualify as an “organization that [RVS] agree[d] in writing in a
contract . . . be added as an additional insured.” In response, Travelers argues that DHS is an
agency of the City and that naming DHS as an additional insured has the same effect as naming

the City itself. The Court need not resolve this (seemingly novel) issue, however, as the City
clearly qualifies as an additional insured through a different provision of the Hudson policy.
The Hudson policy separately provides that the City of New York will qualify as an
additional insured “with respect to operations performed by you [RVS] or on your behalf for
which the state or governmental agency or subdivision or political subdivision has issued a
permit or authorization.” Pl. Facts ¶ 8. Hudson contends the plain reading of this endorsement
is that additional insureds will be covered only to the extent the operations were performed by
RVS and RVS received a permit for such operations. Because the work permit was issued to
Richards, and not RVS, Hudson claims that the City does not qualify as an additional insured.
However, Hudson’s interpretation of the endorsement is strained.
In the endorsement, the prepositional phrase “for which the [the government] has issued a
permit” clearly modifies the phrase “operations performed by you [RVS].” Thus, all that matters

is whether a permit was issued for the operations being performed by RVS. There is no
requirement that the permit was issued to RVS. Here, Richards was issued a work permit to
perform operations on the sewer line at 22 East 119th Street in Manhattan, and it then entered
into a subcontract in which RVS agreed to perform certain permitted operations (i.e., sewer line
replacement) at that location. Under the circumstances, the Hudson policy potentially provides
coverage to the City for the underlying lawsuit and, as a result, Hudson has a duty to defend the
City in that action.
II. Primary and Excess Coverage
There is no dispute that Travelers too has a duty to defend. Gross Decl., Ex. A, Travelers
Policy at 27. But the possibility of dual coverage by both Travelers and Hudson does not mean
that both insurers are equally obligated to defend the underlying lawsuit. “Where the same risk

is covered by two or more policies, each of which was sold to provide the same level of coverage
(as is the case here), priority of coverage . . . is determined by comparison of their respective
‘other insurance’ clauses . . . .” Sport Rock Intern., Inc. v. American Cas. Co., 65 A.D.3d 12, 18,
878 N.Y.S.2d 339, 344 (1st Dep’t 2009); see also Ostrager & Newman § 6.03 (21st ed. 2022).
These clauses can be used to establish which policy operates to provide primary coverage and
which policy’s coverage is excess. “The primary insurance must pay out first and excess
insurance need only be paid out when the primary insurance has been exhausted up to the policy
limit.” Liberty Mut. Ins. Corp. v. New York Marine & Gen. Ins. Co., 505 F. Supp. 3d 260, 276
(S.D.N.Y. 2020).
Travelers seeks partial summary judgment declaring that the Hudson policy is primary to
any coverage available to Richards and the City under the subject Travelers policy. As discussed
above, Hudson disputes that it owes any coverage to Richards or the City as additional insureds.
However, Hudson failed to address in its opposition Travelers’ argument that the Hudson

coverage is primary. As a result, Hudson has conceded the issue through silence. See Jones v.
Cuomo, 542 F. Supp. 3d 207, 216 n.2 (S.D.N.Y. 2021) (“Plaintiff’s briefing fails to respond to
Defendants’ arguments in favor of the dismissal of his vagueness and money damages claims,
and the Court will thus consider those claims conceded.”); In re UBS AG Secs. Litig., No. 07-cv-
11225, 2012 WL 4471265 (S.D.N.Y. Sept. 28, 2012) (recognizing that a party “concedes through
silence” arguments made by its opponent that it fails to address). As such, Travelers is entitled
to judgment that Hudson’s duty to defend Richards and the City in the underlying lawsuit is
primary and attaches before the duty Travelers owes under its policy.
III. Reimbursement of Defense Costs
“[I]n the event of a breach of the insurer’s duty to defend, the insured’s damages are the
expenses reasonably incurred by it in defending the action after the carrier’s refusal to do so.”

Nat’l Union Fire Ins. Co. v. Greenwich Ins. Co., 103 A.D.3d 473, 475 (1st Dep’t 2013) (internal
quotation marks omitted). Here, Hudson had a duty to defend the City and Richards in the
underlying lawsuit since Travelers tendered to Hudson on January 6, 2021. To date, Hudson has
refused to provide a defense and Travelers, whose obligations in connection with the underlying
lawsuit are excess to those of Hudson, has been providing a defense to Richards and the City.
Hudson must therefore reimburse Travelers “for the defense costs (including reasonable
attorneys’ fees and costs) it has incurred” since the date of the second tender. Arch Specialty Ins.
Co. v. Farm Fam. Cas. Ins. Co., 238 F. Supp. 3d 604, 616 (S.D.N.Y. 2017). While the amount
of costs as of the date of the motion has been set forth in the affidavit of Christine L. Dodge, that
calculation includes defense costs that pre-dated the second tender to Hudson, does not consider
costs incurred since the filing of the affidavit, and is not supported by any original invoices or
other records. As a result, unless the parties are able to reach agreement on the amount of
defense costs, an inquest on damages will be necessary. Hudson does not disagree that an

inquest to fix the amount of damages may be appropriate.
The only point of disagreement on damages concerns the underlying third-party action.
Hudson claims that Travelers is not entitled to recover costs associated with prosecuting the
third-party claims brought by Richards and the City against RVS, as those costs are not
reasonable “defense” costs. But Hudson provides no caselaw in direct support of this
proposition. Indeed, all caselaw on the topic comes to the opposite conclusion. That is, courts
have found that third-party claims and cross claims similar to those at issue here are an “essential
component” of the underlying defense and, as a result, costs associated with those claims qualify
as reimbursable defense costs. Liberty Mutual Ins. Co. v. N.Y. Marine and Gen. Ins. Co., 505 F.
Supp. 3d 260, 275 (S.D.N.Y. 2020); see also Jenel Mgmt. Corp. v. Pac. Ins. Co., 55 A.D.3d 313,

(1st Dep’t 2008) (where plaintiff-insurer initiated a third-party claim against the insured of the
defendant-insurer, holding that the plaintiff-insurer’s “third-party claims against the [insured]
were an essential component of their defense of the main underlying action, and, accordingly,
plaintiff insurer is entitled to reimbursement of the . . . attorneys’ fees it incurred in prosecuting
those claims”); Perchinsky v. State, 232 A.D.2d 34, 660 N.Y.S.2d 177, 181 (3d Dep’t 1997)
(holding that insured’s recovery “should include not only the cost of defending the main claim,
but also the costs of pursuing the third-party actions because the filing of the third-party actions
was an essential component of the defense of the main action”).
The Court concludes that Hudson owes all costs Travelers has incurred defending the
underlying lawsuit since the second tender date, including costs associated with the third-party
claims against RVS.
CONCLUSION
For the reasons discussed above, the Court grants the motion by Travelers for partial
summary judgment. The Court declares that: the City and Richards are additional insureds under
the Hudson Policy; Hudson is obligated to defend those additional insureds with respect to the
underlying lawsuit; Hudson’s policy provides coverage primary to that afforded by Travelers;
and, with respect to the underlying lawsuit, the Travelers coverage is excess to that of Hudson.
The Court also concludes that Travelers is entitled to rermbursement of all defense costs incurred
following its second tender to Hudson in January 2021. The Court will issue a subsequent order
with respect to an inquest on the amount of damages.
The Court further denies as moot Travelers’ letter motion for oral argument. [ECF No.
22]. The Clerk of Court respectfully is requested to close the pending motions at ECF Nos. 17
and 22. By April 7, 2023, the parties shall submit to the Court a joint letter proposing next steps
in this case.

SO ORDERED.

Date: March 8, 2023 K / here
New York, NY a is at ls 4 a
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10349284. Public record. Not legal advice.