THE SCOTTS COMPANY v. PACIFIC EMPLOYERS

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Docket Number

No. 281.

Attorney(S)

Siegal Park, Mt. Laurel, NJ (Brian G. Fox of counsel), for appellant. Dorsey Whitney, LLP, New York (Patrick J. Feeley of counsel), for Employers Insurance of Wausau, respondent. Kantor, Davidoff, Wolfe, Mandelker, Twomey Gallanty, P.C., New York (Michael E. Twomey of counsel), for Liberty Mutual Insurance Company, respondent. Howrey LLP, Los Angeles, CA (Keith A. Meyer of the California Bar, admitted pro hac vice, of counsel), for The Scotts Company, LLC, respondent.

Judges

Peter Tom
Luis A. Gonzalez
Dianne T. Renwick
John W. Sweeny

Acts

Discharge Of Joint Obligors — General Obligations — Modification And Discharge Of Obligations — Release or covenant not to sue

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THE SCOTTS COMPANY, LLC, Plaintiff, v. PACIFIC EMPLOYERS INSURANCE COMPANY et al., Defendants. PACIFIC EMPLOYERS INSURANCE COMPANY, Third-Party Plaintiff-Appellant,

The court properly denied appellant's motion to amend the third-party complaint since the proposed amendment did not state a viable claim for relief. The amendment sought to enjoin appellant's coinsurers from proceeding against appellant for contribution based upon appellant's settlement agreement with the insured and upon General Obligations Law § 15-108. The court correctly found that the settlement agreement's express contemplation of contribution claims by the coinsurers was a waiver of section 15-108's protections ( see Mitchell v New York Hosp., 61 NY2d 208, 213). Moreover, section 15-108 applies only to joint tortfeasors, not to coinsurers ( HRH Constr. Corp. v Commercial Underwriters Ins. Co., 11 AD3d 321, 323).

[ See 18 Misc 3d 1139(A), 2008 NY Slip Op 50369(U).]

THE SCOTTS COMPANY, LLC, Plaintiff, v. PACIFIC EMPLOYERS INSURANCE COMPANY et al., Defendants. PACIFIC EMPLOYERS INSURANCE COMPANY, Third-Party Plaintiff-Appellant,

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