Fed. Ins. Co. v. Int'l Bus. Machines Corp.

• Decision Date: 09 November 2010
• Citation: 911 N.Y.S.2d 148,78 A.D.3d 763
• Parties: FEDERAL INSURANCE COMPANY, appellant-respondent, v. INTERNATIONAL BUSINESS MACHINES CORPORATION, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 148

78 A.D.3d 763

FEDERAL INSURANCE COMPANY, appellant-respondent,

v.INTERNATIONAL BUSINESS MACHINES CORPORATION, et al., respondents-appellants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 9, 2010.

Stroock & Stroock & Lavan LLP, New York, N.Y. (Michael F. Perlis,Ernst H. Rosenberger, Richard Ray Johnson [pro hac vice], and Rachel Shook [pro hac vice], of counsel), for appellant-respondent.

Jones Day, New York, N.Y. (Thomas H. Sear, Howard F. Sidman, and Victoria Dorfman of counsel), for respondents-appellants.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL and PLUMMER E. LOTT, JJ.

In an action for a judgment declaring that the plaintiff has no obligation to indemnify the defendants for any amounts, including defense costs or settlement payments, that the defendants may have incurred in connection with an action entitled Cooper v. IBM Personal Pension Plan (457 F.3d 636, cert. denied 549 U.S. 1175, 127 S.Ct. 1143, 166 L.Ed.2d 907), the plaintiff appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Westchester County (Rudolph, J.), entered June 30, 2009, as denied its motion for summary judgment and granted that branch of the defendants' cross motion which was for summary judgment on their counterclaim alleging breach of contract, and (2) a judgment of the same court (Scheinkman, J.), dated August 24, 2009, which is in favor of the defendants and against it in the principal sum of $25,000,000, and the defendants cross-appeal from so much of the judgment as, upon an order of the same court also dated August 24, 2009, in effect, denying their application for an award of an attorney's fee, failed to award them an attorney's fee. The plaintiff's notice of appeal from the orderis deemed also to be a notice of appeal from the judgment ( see CPLR 5501[c] ).

ORDERED that the appeal from the order entered June 30, 2009, is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from by the plaintiff, on the law, the plaintiff's motion for summary judgment is granted, that branch of the defendants' cross motion which was for summary judgment on their counterclaim alleging breach of contract is denied, and it is declared that the plaintiff Federal Insurance Company has no obligation to indemnify the defendants International Business Machines Corporation and IBM Personal Pension Plan for any amounts, including defense costs or settlement payments, that the defendants International Business Machines Corporation and IBM Personal Pension Plan may have incurred in connection with an action entitled Cooper v. IBM Personal Pension Plan (457 F.3d 636), and the order entered June 30, 2009, is modified accordingly; and it is further,

ORDERED that the defendants' cross appeal from the judgment is dismissed as academic; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff's appeal from the order entered June 30, 2009, must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from that order are brought up for review and have been considered on its appeal from the judgment ( see CPLR 5501[a][1] ).

The plaintiff, Federal Insurance Company (hereinafter Federal), issued an Executive Protection Excess Insurance Policy (hereinafter the Federal Policy) to the defendant International Business Machines Corporation (hereinafter IBM). IBM is the sponsor of the defendant IBM Personal Pension Plan (hereinafter the Plan), a defined benefit plan within the meaning ofthe Employee Retirement Income Security Act of 1974 (hereinafter ERISA) (29 USC § 1001 et seq.). The Federal Policy provided coverage in excess of and in conformance with the underlying fiduciary liability policy issued by Zurich American Insurance Group (hereinafter the Zurich Policy).

The Zurich Policy's insuring clause provided coverage for "all Loss for which the Insured becomes legally obligated to pay on account of any Claim first made against the Insured ... for a Wrongful Act." The term "Wrongful Act" is defined, in pertinent part, as "any breach of the responsibilities, obligationsor duties by an Insured which are imposed upon a fiduciary of a Benefit Program by the Employee Retirement Income Security Act of 1974 [ERISA], or by the common or statutory law of the United States, or [ERISA equivalent laws] in other jurisdiction[s] anywhere in the world."

A class action was filed in the United States District Court for the Southern District of Illinois (hereinafter the District Court) against IBM and the Plan, alleging that amendments to the Plan made by IBM in 1995 and 1999 violated various provisions of ERISA ( see Cooper v. IBM Personal Pension Plan, 2005 WL 1981501, 2005 U.S. Dist. LEXIS 17071 [S.D.Ill.], revd. in part 457 F.3d 636, cert. denied 549 U.S. 1175, 127 S.Ct. 1143, 166 L.Ed.2d 907). Specifically, the class action (hereinafter the Cooper action) challenged the amendments to the Plan as violative of the age discrimination provisions of ERISA. The...