State Insurance Fund v. Zurich-American Insurance Companies , 704 N.Y.S.2d 217 ( 2000 )

—Order, Supreme Court, New York County (Paula Omansky, J.), entered February 5, 1999, which denied Zurich’s motion for summary judgment dismissing the complaint and granted plaintiff State Insurance Fund’s cross motion for summary judgment awarding it one-half of a settlement in a personal injury action plus one-half of its net Workers’ Compensation lien for a total of $117,820.80, plus interest from February 24, 1989 until the date of entry of judgment, unanimously reversed, on the law, without costs, the cross motion denied, Zurich’s motion for summary judgment granted, and the complaint dismissed. The Clerk is directed to enter judgment in defendant’s favor dismissing the complaint.

The motion court erred in finding that the State Insurance Fund (SIF) was entitled to recover one-half its net Workers’ Compensation lien from Zurich. The stipulation entered in open court on June 21, 1988 was clear and unambiguous in stating the total amount of the settlement ($205,000) and that SIF had “waive[d] its workers’ compensation lien in full”. There is no support whatsoever in the record for the proposition that the waiver of the lien was limited only to the plaintiffs in the underlying personal injury action and that SIF could seek contribution towards the lien from Zurich. To the contrary, the record establishes that Zurich and SIF agreed to pay their insured’s share of the settlement, $190,000, and that the only issue between the two throughout the personal injury litigation was what percentage of that amount was owed by each. In any case, SIF was the sole carrier of the Workers’ Compensation insurance herein; thus Zurich had no obligation under that policy or interest in the lien. Once it was adjudicated that the two insurers would share 50-50 liability for their insured’s share of the settlement, Zurich’s subsequent payment to SIF of $95,000 satisfied its financial obligation under the stipulation. Concur — Williams, J. P., Mazzarelli, Rubin, Saxe and Buckley, JJ.