A recent New York Law Journal article by Julian D. Ehrlich, “The Attorney Fee Key to Unlocking Additional Insured Coverage” reports on a new decision awarding attorney fees in a declaratory judgment to the party successful in obtaining additional insured coverage which if followed, could change existing risk transfer preferences. This article was posted with permission. The article reads:
The two well-worn paths to risk transfer in tort cases are contractual indemnity and additional insured coverage. Typically, contractual indemnity obligations run to owners and general contractors, often referred to as upstream parties, from tenants or lower tier contractors, the downstream parties. In contrast, additional insured (AI) status can provide coverage to upstream parties to downstream parties’ insurers.
While the paths are not mutually exclusive, many upstream insurers are reluctant to start declaratory judgment (DJ) coverage actions to enforce AI rights because of concerns that their attorney fees will not be recoverable. These insurers prefer instead to rely exclusively on contractual indemnity claims where recovery of attorney fees is thought to be easier. However, there are distinct advantages of AI over contractual indemnity to upstream parties and emerging case law suggests that DJ attorney fees can be recoverable.
Attorney Fees Rules
The American rule is that, win or lose, each side in litigation pays its own attorney fees absent a right in statute or contract. Thus, in U.S. tort litigation, claimants typically pay their own attorney fees. However, recovery of attorney fees between defendants is common. This is because contractual indemnity provisions usually require the downstream party to both defend and indemnify the upstream party. Similarly, additional insured (AI) status on a downstream party’s policy status includes coverage for the upstream parties’ defense. However, the rules for recovering defense costs are convoluted. See, Julian D. Ehrlich, “Recovering Attorneys’ Fees in Construction Site Cases,” NYLJ, (May 25, 2007).
For example, the indemnitee generally is not entitled to reimbursement of its fees for enforcing its contractual indemnity rights, i.e. “no fees for fees.” Hooper Assoc. v. AGC Computers, 74 N.Y.2d 487 (1989). However, there is an exception for costs incurred in “defensive” third party and cross claims against the indemnitor. Springstead v. Ciba-Geigy Corp., 27 A.D.2d 720 (2d Dept. 2006).
Similarly, the general rule is that attorney fees for pursuing AI coverage in a DJ action are not recoverable even if the DJ is ultimately successful, Mighty Midgets Inc. v. Centennial Ins. Co. 47 N.Y.2d 12, 21 (1979). However, an insured is entitled to recover fees if it wins a DJ brought by an insurer seeking to avoid coverage, U.S. Underwriters Insurance Co. v. City Club Hotel LLC, 3 N.Y.2d 592 (2004). However, there is noteworthy reasoning in a new decision awarding attorney fees in a DJ to the party successful in obtaining AI coverage which if followed, could change existing risk transfer preferences.
A New Approach
In Houston Cas. Co. v. Prosight Specialty Ins. Co., 2020 U.S. Dist. LEXIS 927 28 (S.D.N.Y. May 27, 2020), an injured E.J. Electric employee brought a Labor Law claim against the owner, construction manager Turner and Nouveau Elevator Industries alleging a fall due to a misleveled elevator. E.J.’s insurer, Houston Casualty Co. (HCC) accepted AI coverage for the owner and Turner. However, Prosight, the insurer for the elevator contractor, refused to provide AI coverage to those parties. Accordingly, HCC brought a DJ action seeking a declaration that Prosight owed primary non-contributory AI coverage to the owner and Turner. The court in Houston held that Prosight owed primary non-contributory AI coverage and awarded HCC’s attorney fees notwithstanding the American rule and existing caselaw.
Houston relies on a “thoughtful and persuasive” 2019 Report and Recommendation by U.S. Magistrate Judge Paul Davidson which has now been cited in several reported decisions. The report finds that an insureds’ right to D.J. attorney fees can be found in the policy’s coverage grant because an insurer’s duty to defend extends to any action arising out of the occurrence including a defense against the insurer’s coverage suit.
The report notes longstanding case law which permits a prevailing insured to recover attorney fees from an insurer when the latter starts a DJ seeking to free itself of its duty to defend under the policy. The report then suggests that the fortuity of who starts the DJ should not matter for fee recovery if the litigated issue is the insurer’s duty defend an insured in an underlying tort case.
The court in Houston extends this reasoning to award one insurer fees from another insurer which “persistently, reflexively and sequentially” wrongfully denied tenders for AI coverage. If the reasoning in Houston is followed by other courts, risk transfer may be clearer, and settlements facilitated in the future.
Although Houston is a trial level decision and an appeal was filed June 24, 2020, there is now authority in a reported federal case holding that the losing defendant must pay attorney fees to the winning plaintiff insurer in the AI DJ context.
Accordingly, Houston may help ease upstream insurers’ hesitancy to bring DJ’s for AI coverage. Moreover, if downstream insurers realize they may face more severe consequences for unreasonably resisting AI, they may accept more tenders leading to an overall net decrease in coverage litigation.
In addition, AI can have advantages over contractual indemnity to upstream parties. For example, in states like New York upstream parties may insure away via AI coverage active negligence which may not be contracted away due to anti-indemnity statues, see e.g. General Obligations Law § 322.1.
Accordingly, a strategy of foregoing AI coverage can result in an upstream party losing out on rights which contractual indemnity alone cannot provide. Moreover, questions regarding whether the upstream was actively negligent can delay risk transfer and settlements.
Tenders for AI coverage often go answered by downstream insurers and until now have not always been aggressively pursued by upstream insurers. However, arguably, when it is clearer that risk transfer will result in the downstream party being legally and financial responsible in a case, it may also be easier to settle multi-defendant litigation with claimants.
Finally, attorney fees may be substantial and are often the last obstacle to resolve before a settlement can be reached. To the extent Houston streamlines a path to resolutions, it is most welcomed.