| Scotts Co., LLC v Pacific Empls. Ins. Co. |
| 2009 NY Slip Op 02728 [61 AD3d 464] |
| April 9, 2009 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| The Scotts Company, LLC, Plaintiff, v Pacific Employers Insurance Company et al., Defendants. Pacific Employers Insurance Company, Third-Party Plaintiff-Appellant, v Employers Insurance of Wausau et al., Third-Party Defendants-Respondents. |
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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, Cal. (Keith A. Meyer of the California bar, admitted pro hac vice, of counsel), for The Scotts Company, LLC, respondent.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered February 27, 2008, which, to the extent appealed from as limited by the briefs, denied third-party plaintiff's motion to amend its third-party complaint to seek relief enjoining its coinsurers from seeking contribution in this matter as to any claims in any proceeding in any jurisdiction, unanimously affirmed, with costs.
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 [*2]208, 213 [1984]). Moreover, section 15-108 applies only to joint tortfeasors, not to coinsurers (HRH Constr. Corp. v Commercial Underwriters Ins. Co., 11 AD3d 321, 323 [2004]). Concur—Gonzalez, P.J., Tom, Sweeny, Catterson and Renwick, JJ. [See 18 Misc 3d 1139(A), 2008 NY Slip Op 50369(U).]