Aspen Specialty Ins. Co. v. RLI Ins. Co., Inc., 194 A.D.3d 206 (1st Dep’t 2021).
In an issue of first impression, the Appellate Division reversed a trial court decision declaring that a follow form excess insurer was bound by a ruling against the primary insurer in a prior declaratory judgment action regarding the scope of additional insured coverage pursuant to the “law of the case” doctrine. Between the time of the initial DJ action and the second DJ action against the follow form excess insurer, the scope of additional coverage had narrowed in an outcome dispositive manner in light of the Court of Appeals’ landmark ruling in Burlington v. NYC Transit Authority, another case handled by the firm.
The Appellate Division agreed with our arguments that the law of the case doctrine was inapplicable given the plaintiff’s failure to join our client to the prior DJ action, and that the doctrines of res judicata and collateral were also inapplicable. Finally, the Court agreed that the “follow form” language of the excess policy incorporates the language of the underlying policy, but not necessarily the underlying policy’s outcome.
