Opinion
October 9, 1990
Appeal from the Supreme Court, New York County (Diane Lebedeff, J.).
The main action was commenced by Michalak, an employee of Akron, to recover $5,000,000 for personal injuries allegedly sustained in the course of demolition work at Con Edison's Waterside generating facility. Pursuant to the terms of the contract between Con Edison and Akron, it was agreed that Akron would indemnify Con Edison, without limitation, as to losses it might suffer as an outgrowth of the demolition work. To secure the indemnity provisions of the contract, not only was Akron to maintain its statutory workers' compensation insurance, but more specifically the contractor was required to maintain a primary bodily injury liability policy in the face amount of $1,000,000 for each occurrence, which policy was to "include Con Edison as an additional insured." In furtherance of this obligation, Akron obtained a certificate of insurance in the face amount of $1,000,000 with an excess policy in the face amount of $5,000,000, a total of $6,000,000 in coverage, which names both Akron and Con Edison as insureds.
Since Con Edison has not yet paid any claim by the plaintiff Michalak, the causes of action for indemnity are technically premature. (See, McDermott v. City of New York, 50 N.Y.2d 211, 216.) However, the CPLR does allow third-party actions to be commenced in certain circumstances before they are technically ripe, so that all parties may establish their rights and liabilities in one action (see, Mars Assocs. v. New York City Educ. Constr. Fund, 126 A.D.2d 178, 191-192).
Con Edison, ostensibly, has brought this third-party action against Akron asserting a common-law right of indemnity in addition to those rights reserved to Con Edison pursuant to the terms of the contract. As a general rule, there is nothing in a contractual indemnification clause which is inconsistent with the indemnitee's right to common-law indemnity so as to preclude their coexistence (Aetna Cas. Sur. Co. v. Lumbermens Mut. Cas. Co., 136 A.D.2d 246, 248, lv denied 73 N.Y.2d 701; Hunt v. Werner Spitz Constr. Co., 152 A.D.2d 936). However, in the instant case, the nature of the indemnity agreement and public policy preclude the coexistence of the right to both contractual and common-law indemnity. We hold that by requiring the procurement of insurance naming itself as "additional insured", Con Edison has waived any right of common-law indemnity up to the aggregate limits of the combined policies (see, Leaseway of Cent. N.Y. v. Climax Mfg. Co., 81 A.D.2d 1038, affd 54 N.Y.2d 822). The blatant attempt to seek contribution from Akron's primary carrier, the State Insurance Fund, prior to the exhaustion of the coverage afforded by the policies covering the specific liability at issue would allow those carriers a right of subrogation against their own insured for a claim arising from the very risk for which the insured was covered. (See, Pennsylvania Gen. Ins. Co. v. Austin Powder Co., 68 N.Y.2d 465, 468, 472.)
Concur — Murphy, P.J., Kupferman, Ross and Ellerin, JJ.