Court: Supreme Court, New York County
Judge: Judge John J. Kelley
Case Type: Subrogation for Property Damage
Caption: Merrimack Mutual Fire Insurance Company a/s/o 11 East 22nd Street LLC c/o REM Residential v. Associated Fire Protection, Inc.,
Index No.: 160109/17REM
Decision Date: March 5, 2020
Decision: Summary Judgment Was Granted
Sharp attention to detail is why PMT lawyers get outstanding results for our clients day after day. A recent case in which we won summary judgment for our client demonstrates the advantage that PMT brings to each case.
In Merrimack Mutual Fire Insurance Company a/s/o 11 East 22nd Street LLC c/o REM Residential v. Associated Fire Protection, Inc., a subrogation claim, plaintiff insurer sought $200,000 paid to its insured for property damage, which, it alleged, was caused by our client, a plumbing contractor, during a regularly-scheduled test of the subrogor’s sprinkler system. A review of the applicable contract revealed that same contained a Waiver of Subrogation provision.
PMT filed a Motion for Summary Judgment seeking to dismiss all claims based upon this provision. We argued that Courts repeatedly uphold Waiver of Subrogation clauses, finding that they merely allocate risk and don’t seek to exempt a party from liability. “A Waiver of Subrogation provision does not limit a plaintiff’s potential recovery; rather, it ensures that an injured plaintiff will be compensated and merely shifts the burden of compensation to an insurer.” PMT argued that this is exactly what happened in the instant matter: the contract required REM to have insurance, REM was insured by Merrimack, and Merrimack paid for the loss. REM has thus been made whole by its insurer and the Waiver bars the subrogation claim.
In opposition, plaintiff argued that summary judgment was premature and that the Waiver was ambiguous, amongst other things.
The motion was heard by Judge John J. Kelley in Supreme Court, New York County, who granted the motion in its entirety and dismissed the complaint. Judge Kelley found that defendant made a prima facie showing of entitlement to summary judgment and that the Waiver, which applied to any breach of contract, negligence or gross negligence, was not ambiguous.
Wendy Eson, Associate
Pillinger Miller Tarallo, LLP
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