American Manufacturers Mutual Ins. Co. v. Quality King Distributors, Inc.

• Decision Date: 28 March 2005
• Docket Number: 2003-08626.
• Citation: 792 N.Y.S.2d 555,2005 NY Slip Op 02420,16 A.D.3d 607
• Parties: AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Respondent, v. QUALITY KING DISTRIBUTORS, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

16 A.D.3d 607

792 N.Y.S.2d 555

2005 NY Slip Op 02420

AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY, Respondent, v. QUALITY KING DISTRIBUTORS, INC., Appellant.

2003-08626.

Appellate Division of the Supreme Court of the State of New York, Second Department.

March 28, 2005.

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant in an underlying trademark infringement action entitled Procter & Gamble Company v Quality King Distributors, Inc., commenced in the United States District Court for the Eastern District of New York, under index No. CV-95-3113 (ADS), the defendant appeals from so much of an order of the Supreme Court, Suffolk County (Pitts, J.), dated August 20, 2003, as denied that branch of its motion which was for summary judgment declaring that the plaintiff is obligated to indemnify it in the underlying trademark infringement action.

Ordered that the order is affirmed insofar as appealed from, with costs, and upon searching the record, summary judgment is awarded to the plaintiff declaring that it is not obligated to indemnify the defendant in the underlying trademark infringement action entitled Procter & Gamble Company v Quality King Distributors, Inc., commenced in the United States District Court for the Eastern District of New York, under index No. CV-95-3113 (ADS).

The duty to indemnify on the part of an insurer requires a determination that the insured is liable for a loss that is covered by the policy (see Servidone Constr. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419 [1985]; Lehrer McGovern Bovis v Halsey Constr. Corp., 254 AD2d 335 [1998]). Generally, the burden is on the insured to establish coverage in the first instance (see Consolidated Edison Co. of N.Y. v Allstate Ins. Co., 98 NY2d 208 [2002]). Here, the Supreme Court properly denied that branch of the defendant's motion which was for summary judgment declaring that the plaintiff is obligated to indemnify it in the underlying trademark infringement action. Contrary to the defendant's contention, this Court's decision and order determining a prior appeal (see American Mfrs. Mut. Ins. Co. v Quality King Distribs., Inc., 287 AD2d 527 [2001]) did not determine the issue of indemnification. On that prior appeal, we found that the plaintiff had a duty to defend the defendant in the underlying trademark infringement action since the underlying complaint potentially gave rise to a covered claim for which the...