Gemini Insurance Co. v. Indian Harbor Insurance Co.

MEMORANDUM

Indian Harbor Insurance Company (“Indian Harbor”) appeals the district court’s judgment in favor of Gemini Insurance Company (“Gemini”). As the parties are familiar with the facts and procedural history, we do not repeat them here. Having jurisdiction under 28 U.S.C. § 1291 , we reverse and remand for further proceedings consistent with this disposition.

We disagree with the district court’s conclusion that the Gemini and Indian Harbor policies insure against different risks. The policies provided overlapping coverage for risk of loss from property damage or bodily injury due to pollution. See Cont’l Ins. Co. v. Commercial Union Ins. Co., 27 A.D.2d 333 , 278 N.Y.S.2d 995, 998 (1967); see also Aetna Cas. & Sur. Co. v. Merchs. Mut. Ins. Co., 100 A.D.2d 318 , 475 N.Y.S.2d 517, 518 (1984). Thus, pursuant to each policy’s “other insurance” clause, Indian Harbor’s policy was excess to Gemini’s. See Sport Rock Int'l, Inc. v. Am. Cas. Co. of Reading, PA, 65 A.D.3d 12 , 878 N.Y.S.2d 389, 344-45 (2009) [hereinafter Sport Rock ]. The plain language of Indian Harbor’s policy and the policy’s purpose — evidenced by the stated coverage and premium paid — further support a…