Illinois Union Insurance v. Assurance Co. of America , 927 N.Y.2d 339 ( 2011 )

Under California law, which the parties agree governs this action, whether the plaintiff in the underlying action was an “Employee” under the Illinois Union policy is a dispositive issue; if the plaintiff was an employee, then Illinois Union had the duty to defend, but if the plaintiff was not an employee, Illinois Union had no such duty, and thus would be entitled to full reimbursement (see County of San Bernardino v Pacific Indem. Co., 56 Cal App 4th 666, 680, 65 Cal Rptr 2d 657, 665 [1997], Iv denied 1997 Cal LEXIS 6282 [1997]; Devin v United Servs. Auto. Assn., 6 Cal App 4th 1149, 1157, 8 Cal Rptr 2d 263, 268-269 [1992], Iv denied 1992 Cal LEXIS 4241 [1992]). The record establishes that Cronnelly, the plaintiff in the underlying action, was not an “Employee” within the definition of Illinois Union’s policy.

We have considered the remaining contentions and find them unavailing. Concur — Friedman, Catterson and Richter, JJ.