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FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020
NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 INDEX NO.
BIT ASSOCIATES LLC, THE DERMOT COMPANY
LP, and PHILADELPHIA INDEMNITY INSURANCE COMPLAINT
COMPANY, individually and as subrogee of
SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2
BIT ASSOCIATES LLC, and THE DERMOT
COMPANY LP,
Plaintiffs,
- against -
ARCH SPECIALTY INSURANCE CO. and MT.
HAWLEY INSURANCE COMPANY,
Defendants.
Plaintiffs SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES
LLC, THE DERMOT COMPANY LP, and PHILADELPHIA INDEMNITY INSURANCE
COMPANY (Philadelphia), individually and as subrogee of SOULCYCLE, INC. (Soulcycle),
RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES LLC (Riverside), and THE DERMOT
COMPANY LP (Dermot) by and through their attorneys, MARSHALL CONWAY BRADLEY
GOLLUB & WEISSMAN, P.C., as and for their declaratcry judgmcat complaint against
Defendants, ARCH SPECIALTY INSURANCE CO. (Arch) and MT. HAWLEY INSURANCE
COMPANY (Mt. Hawley), allege upon information and belief, as follows:
NATURE OF ACTION
1. This is an action for declaratory judgments. Plaintiffs, Soulcycle, Riverside, and
Dermot (collectively, Insureds) and Philadelphia are entitled to declaratory relief against Arch
and Mt. Hawley relating to insurance coverage in coññêction with a lawsuit captioned, John
Polsinelli v. Riverside Center Parcel 2 Bit Associates LLC, et al., commenced in the Supreme
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Court of the State of New York, County of New York, Index No. 155689/2017 (Polsinelli
Lawsuit), because Philadelphia has paid for the defense of the Insureds in the Polsinelli Lawsuit
despite Arch's and Mt. Hawley's duty to defend the Insureds in that Lawsuit. Arch and Mt.
Hawley have also refused to indemnify the Insureds for any judgment against them in the
defendants'
Polsinelli Lawsuit within the coverage of Arch's and Mt. Hawley's policies. The
failure to defend and to indemnify the Insureds, and reimburse Philadelphia for defense
attorneys'
fees and costs for its defense of the insureds is in derogation of Arch's duties under
the Arch policy issued to I.M.P. Plumbing & Heating Corp. (IMP), and Mt. Hawley's duty under
the Mt. Hawley policies issued to JKT Construction Inc. dba: Corcon (Corcon).
2. The Insureds and Philadelphia seek a declaratory judgment against Arch with
respect to coverage for the Polsine!!i Lawsuit declaring, inter alia: a) that the Insureds are
entitled to additional insured status under Arch policy number DPC0055437-03 (Arch Policy)
issued to IMP on a primary basis; b) that Arch has a duty to defend the Insureds in the Polsinelli
Lawsuit under the Arch Policy; c) that Arch breached itsduty to the Insureds when itrefused to
defend the Insureds in the Polsinelli Lawsuit; d) that Arch has a duty under the Arch Policy to
indemnify the Insureds in the Polsinelli Lawsuit; e) that Arch breached its a duty to indemnify
the Insureds with respect to the Polsinelli Lawsuit by refusing and failing to ackñowledge its
indemnity obligation to the Insureds, on a primary basis.
3. The Insureds and Philadelphia seek a declaratory judgment against Mt. Hawley
with respect to coverage for the Insureds in the Polsinelli Lawsuit under Mt. Hawley policy
number MGL0183977 (Mt. Hawley Primary Policy) issued to Corcon declaring, inter alia: a)
that the Insureds are entitled to insured status under the Mt. Hawley Primary Policy on a primary
basis; b) that Mt. Hawley has a duty to defend the Insureds in the Polsinelli Lawsuit; c) that Mt.
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Hawley bresched itsduty to the Insureds when it refused to defend the Insureds in the Polsinelli
Lawsuit; d) that Mt. Hawley has a duty under to indemnify the Insureds in the Polsinelli
Lawsuit; e) that Mt. Hawley breached its a duty to indemnify the Insureds with respect to the
Polsinelli Lawsuit by refusing and failing to acknowledge its indemnity obligation to the
Insureds, on a primary basis.
4. The Insureds and Philadelphia seek a declaratory judgment against Mt. Hawley
with respect to coverage for the Insureds in the Polsinelli Lawsuit under Mt. Hawley policy
number MXL0423121 (Mt. Hawley Excess Policy) issued to Corcon declaring, inter alia: a) that
the Insureds are entitled to insured status under the Mt. Hawley Excess Policy; b) that Mt.
Hawley has a duty to indemnify the Insureds for any judgment or settlement amount above any
applicable primary insurance in the Polsinelli Lawsuit; c) that Mt. Hawley has breached its duty
to indemnify the Insureds with respect to the Polsinelli Lawsuit by refusing and failing to
acknowledge to the Insureds its duty to indemnify them.
5. Philadelphia seeks a declaratory judgment against Arch declaring a) that Arch
has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all reasonable costs and
Insureds'
expenses Philadelphis has incurred in the defense in the Polsinelli Lawsuit; b) that
Arch has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all reasonable costs
Insureds'
and expenses Philadelphia will incur in the defense in the Polsinelli Lawsuit; and c)
that Arch has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all damages
Philadelphia will incur to satisfy any judgment or settlement against the Insureds in the Po!sinelli
Lawsuit up to the full amount of the Arch Primary Policy.
6. Philadelphia seeks a declaratory judgment against Mt. Hawley declaring a) that
Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all reasonable
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Insureds'
costs and expenses Philadelphia has incurred in the defense in the Polsinelli Lawsuit;
b) that Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all
Insureds'
resscñable costs and expenses Philadelphia will incur in the defense in the Polsinelli
Lawsuit; c) that Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds,
for all damages Philadelphia will incur to satisfy any judgment or settlement agaiñst the Insureds
in the Polsinelli Lawsuit up to the full amount of the Mt. Hawley Primary Policy; and d) that Mt.
Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all damages
Philadelphia will incur to satisfy any judgment or settlement against the Insureds in the Polsinelli
Lawsuit up to the full amount of the Mt. Hawley Excess Policy.
PARTIES
7. Plaintiff Soulcycle is a corporation organized and existing under the laws of the
State of Delaware. Soulcycle's principal place of business is in the State of New York.
8. Plaintiff Riverside is a limited liability organized and existing under the
company
laws of the State of Delaware.
9. Plaintiff Dermot is a limited partnership organized under the laws of the State of
Delaware with itsprincipal place of business in the State of New York.
10. Philadclphia is a corporation incorporated and existing under the laws of the
Commonwealth of Pennsylvania. Philadelphia asistsies its principal place of business at One
Bala Plaza, Suite 100, Bala Cynwyd, PA 19004. Philadelphia is authorized to do an insurance
business in the State of New York.
11. Arch is a corporation organized under the laws of Missouri. Arch maintains its
principal place of business in New Jersey.
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12. Arch does business in New York.
13. Mt. Hawley Insurance Co. is a corporation organized under the laws of the State
of Illinois. Mt. Hawley maintains itsprincipal place of business in Illinois.
14. Mt. Hawley is eligible to write surplus lines business in New York.
15. Mt. Hawley does business in New York.
JURISDICTION AND VENUE
16. Philadelphia, as the real party in interest, is a proper plaintiff herein.
17. This Court has personal jurisdiction over Arch and Mt. Hawley pursuant to CPLR
§ 301 and 302.
18. This Court has jurisdiction over Arch because Arch does business in this County.
19. This Court has jurisdiction over Mt. Hawley because Mt. Hawley does business
in this County and Mt. Hawley is eligible to write surplus lines business in New York.
20. This Court has subject-matter jurisdiction to hear this case pursuant to CPLR
§3001.
21. This Court has exclusive original jurisdiction over the controversy herein in the
State of New York.
FACTUAL BACKGROUND
22. Philadelphia Iñdemñity Insurance Company issued policy no. PHPK1499037 to
Sculcycle Inc. (Soulcycle), effective June 1, 2016 to June 1, 2017.
23. Arch issued policy number DPC0055437-03 to IMP (Arch Policy) in effect on
November 7, 2016.
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24. Mt. Hawley issued policy number MGL0183977 (Mt. Hawley Primary Policy) to
Corcon, effective April 1, 2016 to April 1, 2017.
25. Mt. Hawley issued policy number MXL0423121 (Mt. Hawley Excess Policy) to
Corcon, effective April 1, 2016 to April 1, 2017.
26. On or about August 2, 2016, Soulcycle contracted with Corcon for Corcon to be
the general contractor for construction work at premises located at 21 West End Avenue, New
York, New York.
27. The contract between Soulcycle and Corcon was in effect on November 7, 2016.
28. Under the contract with Soulcycle, Corcon agreed to procure and maintain certain
insurance to cover claims for bodily injury resulting from the construction work at the premises
29. Corcon, as the general contractor for the Soulcycle project, coñtracted with IMP
for IMP to perform plumbing work at the premises.
30. Under the contract with Corcon, IMP agreed to procure and maintain certain
insurance to cover claims for bodily injury against the Insureds resulting from the construction at
the premises.
31. The contract between Corcon and IMP included installation of piping for the
sprinkler fire suppression system at the premises.
32. The contract between Corcon and IMP was in effect on November 7, 2016.
33. On or about November 7, 2016, John Polsinelli, a JKT employee, allegedly fell
from a ladder that he had climbed to inspect IMP's installatioñ of piping for the sprinkler fire
suppression system.
34. Philadelphia timely tendered and re-teñdered the defense of the Insureds to IMP
and its insurer, Arch.
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35. Philadelphia repeatedly demanded that Arch assume the defêñse of the Insureds in
the Polsinelli Lawsuit.
36. Arch repeatedly and wrongfully disclaimed coverage to the Insureds for the
allegations of the Polsinelli Lawsuit and refused to defend the Insureds in that Lawsuit.
37. Philadelphia repeatedly demanded that Arch reimbürse it for the defense
attorneys'
fees and costs ithad expended to defend the Insureds in the Polsinelli Lawsuit.
attorneys'
38. Arch repeatedly refused to reimburse Philedelphis for the defense fees
and costs Philadelphia has expended to date in the Polsinelli Lawsuit.
39. Philadelphia timely tendered and re-tendered the defense of the insureds to
Corcon and its insurer, Mt. Hawley.
40. Philadelphia repeatedly demanded that Mt. Hawley assums the defense of the
Insureds in the Polsinelli Lawsuit.
41. Mt. Hawley repeatedly and wrongfully disclaimed coverage to the Insureds for
the allegations of the Polsinelli Lawsuit under the Mt. Hawley Primary and Excess Policies.
42. Mt. Hawley wrongfully refused to defend the Insureds in the Polsinelli Lawsuit
under the Mt. Hawley Primary Policy.
43. Mt. Hawley wrongfully refused to indemnify the Insureds in the Polsinelli
Lawsuit under the Mt. Hawley Primary Policy.
44. Mt. Hawley wrongfully refused to indemnify the Insureds in the Polsinelli
Lawsuit under the Mt. Hawley Excess Policy.
45. Philadelphia repeatedly demanded M. Hawley reimburse it for the defense
attorneys'
fees and costs ithad expended to defend the Insureds in the Polsinelli Lawsuit.
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46. Mt. Hawley repeatedly refused to reimburse Philadelphia for the defense
attomeys'
fees and costs Philadelphia has expended to date in the Polsinelli Lawsuit.
FIRST CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST ARCH
IN FAVOR OF SOULCYCLE
47. Phintiffs repeat and reallege the allegations of paragraphs 1 through 46 of this
Complaint, as if fully set forth herein.
48. Soulcycle is entitled to insured status under the Arch Policy for the allegãtions of
the Polsinelli Lawsuit.
49. The Arch Policy obligates Arch to defend Soulcycle in the Polsinelli Lawsuit on a
primary basis.
50. Arch has wrongfully refused to defend Soulcycle in the Polsinelli Lawsuit.
51. Soulcycle is entitled to a declaratory judgment declaring that Arch has a duty
to defend it in the Polsinelli Lawsuit on a primary basis under the Arch Policy.
52. The Arch Policy obligates Arch to indemnify its insured(s) for any covered
judgment or settlement in the Polsinelli Lawsuit on a primary basis.
53. Arch has wrongfully refused to indemnify Soutcyclc in the Polsinelli Lawsuit
under the Arch Policy.
54. Soulcycle is entitled to a declaratory judgment declaring that Arch has a duty
to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under the
Arch Policy up to the available limit of that Policy.
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SECOND CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST ARCH
IN FAVOR OF RIVERSIDE
55. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 54 of this
Complaint, as if fully set forth herein.
56. Dermot is entitled to insured status under the Arch Policy for the allegations of
the Polsinelli Lawsuit.
57. The Arch Policy obligates Arch to defend Riverside in the Polsinelli Lawsuit on a
primary basis.
58. Arch has wrongfully refused to defend Riverside in the Polsinelli Lawsuit.
59. Riverside is entitled to a declaratory judgment declaring that Arch has a duty
to defend it in the Polsinelli Lawsuit on a primary basis under the Arch Policy.
60. The Arch Policy obligates Arch to indemnify Riverside for any covered judgment
or settlement against Riverside in the Polsinelli Lawsuit on a primary basis.
61. Arch has wrongfully refused to indemnify Riverside in the Polsinelli Lawsuit
62. Riverside is entitled to a declaratory judgment declaring that Arch has a duty
to indemnify itin the Polsinelli Lawsuit for any judgment or settlement covered under the
Arch Policy up to the available limit of that Policy.
THIRD CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST ARCH
IN FAVOR OF DERMOT
63. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 63 of this
Complaint, as if fully set forth herein.
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64. Dermot is entitled to insured status under the Arch Policy for the allegations of
the Polsinelli Lawsuit.
65. The Arch Policy obligates Arch to defend Dermot in the Polsinelli Lawsuit on a
primary basis.
66. Arch has wrongfully refused to defend Dermot in the Polsinelli Lawsuit.
67. Dermot is entitled to a declaratory judgment declaring that Arch has a duty
to defend it inthe Polsinelli Lawsuit on a primary basis under the Arch Policy.
68. The Arch Policy obligates Arch to pay any covered judgment or settlement
against Dermot in the Polsinelli Lawsuit on a primary basis.
69. Arch has wrongfully refused to indemñify Dermot in the Polsinelli Lawsuit.
70. Dermot is entitled to a declaratory judgment declaring that Arch has a duty to
indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under the
Arch Policy up to the available limit of that Policy.
FOURTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY
INFAVOROFSOULCYCLE
71. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 69 of this
Complaint, as if fully set forth herein.
72. Sou1cycle is entitled to insured status under the Mt. Hawley Primary Policy for
the allegations of the Polsinelli Lawsuit.
73. The Mt. Hawley Primary Policy obligates Mt. Hawley to defend Soutcycle in the
Polsinelli Lawsuit on a primary basis.
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74. Mt. Hawley has wrongfully refused to defend Soulcycle in the Polsinelli Lawsuit
under the Mt. Hawley Primary Policy.
75. Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has
a duty to defend it in the Polsinelli Lawsuit on a primary basis under the Mt. Hawley
Primary Policy.
76. The Mt. Hawley Primary Policy obligates Mt. Hawley to indemnify Soulcycle for
any covered judgment or settlemeñt in the Polsinelli Lawsuit on a primary basis.
77. Mt. Hawley has wrongfully refused to indemnify Soulcycle for any covered
judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy.
78. Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has
a duty to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered
under the Mt. Hawley Primary Policy up to the available limit of that Policy.
FIFTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST MT. HAWLEY EXCESS POLICY
IN FAVOR OF SOULCYCLE
79. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 78Error!
Reference source not found. of this Complaiñt, as if fully set forth herein.
80. Soulcycle is entitled to insured status under the Mt. Hawley Excess Policy for the
allegations of the Polsinelli Lawsuit.
81. The Mt. Hawley Excess Policy obligates Mt. Hawley to indemnify Soulcycle for
any covered judgment or settleent against Soulcycle in the Polsinelli Lawsuit in excess of
applicable primary coverage.
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82. Mt. Hawley has wrongfully refused to indemnify Soulcycle for any covered
judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Excess Policy.
83. Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has
a duty to indemnify Soulcycle under the Mt. Hawley Excess Policy for any covered judgment
or settlement in the Polsinelli Lawsuit in excess of applicable primary coverage Soulcycle is
entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it
under the Mt. Hawley Excess Policy for any covered judgment or settlement in the Polsinelli
Lawsuit in excess of applicable primary coverage up to the available limit of that Policy..
SIXTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY
IN FAVOR OF RIVERSIDE
84. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 83 of this
Complaint, as if fully set forth herein.
85. Riverside is entitled to insured status under the Mt. Hawley Primary Policy for the
allegations of the Polsinelli Lawsuit.
86. The Mt. Hawley Primary Policy obligates Mt. Hawley to defend Riverside in the
Polsinelli Lawsuit on a primary basis.
87. Mt. Hawley has wrongfully refused to defend Riverside in the Polsinelli Lawsuit
under the Mt. Hawley Primary Policy.
88. Riverside is entitled to a declaratory judgment declaring that Mt. Hawley has
a duty to defend it in the Polsinelli Lawsuit on a primary basis under the Mt. Hawley
Primary Policy.
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89. The Mt. Hawley Primary Policy obligates Mt. Hawley to indemnify Riverside for
any covered judgment or settlement in the Polsinelli Lawsuit on a primary basis.
90. Mt. Hawley has wrongfully refused to indemnify Riverside for any covered
judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy.
91. Riverside is entitled to a declaratory judgment declaring that Mt. Hawley has
a duty to indemnify it in the Polsinelli Lawsuit for any covered judgment or settlement
under the Mt. Hawley Primary Policy up to the available limit of that Policy.
SEVENTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST MT. HAWLEY EXCESS POLICY
IN FAVOR OF RIVERSIDE
92. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 91of this
Complaint, as if fully set forth herein.
93. Riverside is entitled to insured status under the Mt. Hawley Excess Policy for the
allegations of the Polsinelli Lawsuit.
94. The Mt. Hawley Excess Policy obligates Mt. Hawley to indemñify Riverside for
any covered judgment or settlement against Riverside in the Polsinelli Lawsuit in excess of
applicable primary coverage.
95. Mt. Hawley has wrongfully refused to iñdemnify Riverside in the Polsinelli
Lawsuit under the Mt. Hawley Excess Policy.
96. Riverside is entitled to a declaratory judgment declaring that Mt. Hawley has
a duty to indemnify it under the Mt. Hawley Excess Policy for any covered judgment or
settlement in the Polsinelli Lawsuit in excess of applicable primary coverage.
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EIGHTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY
IN FAVOR OF DERMOT
97. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 96 of this
Complaint, as if fully set forth herein.
98. Dermot is entitled to insured status under the Mt. Hawley Primary Policy for the
allegations of the Polsinelli Lawsuit.
99. The Mt. Hawley Primary Policy obligates Mt. Hawley to defcñd Dermot in the
Polsinelli Lawsuit on a primary basis.
100. Mt. Hawley has wrongfully refused to defend Dermot in the Polsinelli Lawsuit
under the Mt. Hawley Primary Policy.
101. Dermot is entitled to a declaratory judgment declaring that Mt. Hawley has a
duty to defend it inthe Polsinelli Lawsuit on a primary basis under the Mt. Hawley Primary
Policy.
102. The Mt. Hawley Primary Policy obligates Mt. Hawley to indemñify Dermot for a
covered judgncñt or settlement in the Polsinelli Lawsuit on a primary basis.
103. Mt. Hawley has wrongfully refused to indemnify Dermot for a covered jude,.-nent
or settlement in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy.
104. Dermot is entitled to a declaratory judgment declaring that Mt. Hawley has a
duty to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under
the Mt. Hawley Primary Policy up to the available limit of that Policy.
NINTH CAUSE OF ACTION
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DECLARATORY JUDGMENT AGAINST MT. HAWLEY EXCESS POLICY
IN FAVOR OF DERMOT
105. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 104 of this
Complaint, as if fully set forth herein.
106. Dermot is entitled to insured status under the Mt. IIawley Excess Policy for the
allegations of the Polsinelli Lawsuit.
107. The Mt. Hawley Excess Policy obligates Mt. Hawley to indemnify Dermot for a
covered judgment or settlement in the Polsinelli Lawsuit in excess of applicable primary
coverage.
108. Mt. Hawley has wrongfully refused to indemnify Dermot for a covered judgment
or settlement in the Polsinelli Lawsuit under the Mt. Hawley Excess Policy.
109. Dermot is entitled to a declaratory judgment declaring that Mt. Hawley has a
duty to indemnify it under the Mt. Hawley Excess Policy for any covered judgment or
settlement in thePolsinelli Lawsuit in excess of applicable primary coverage.
TENTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST ARCH
IN FAVOR OF PHILADELPHIA
110. Plaintiffs repeat and reallege the allegations of paragrãphs 1 through 109 of this
Complaint, as if fully set forth herein.
111. As a result of Arch's wrongful failure and refusal to defend the Insureds in the
attorneys'
Polsinelli Lawsuit, Philadelphis has incurred all of the fees, costs, and disbursements
to defend the Insureds with no contribution from Arch.
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112. . Philadelphia is entitled to a declaratory judgment declaring that Arch has a
attorneys'
duty under the Arch Policy to reimburse Philadelphia the fees, costs and
disbursementsthatithaspaid, and will pay, to defend theInsureds inthe Polsinelli Lawsuit
113. Arch has a duty under the Arch Policy to indemnify the Insureds for any covered
judgment or settlement in the Polsinelli Lawsuit up to the available limits of that Policy.
114. Arch has refused to indemnify the Insureds under the Arch Policy for any covered
judgment or settlement in the Polsinelli Lawsuit.
115. Philadelphia is entitled to a declaratory judgment declaring that Arch has a
duty under the Arch Policy to reimburse Philadelphia for any covered judgment or
settlement that it pays on behalf of the Insureds in the Poisiñê||i Lawsuit. up to the amount
of the Arch Policy.
ELEVENTH CAUSE OF ACTION
DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY
IN FAVOR OF PHILADELPHIA
116. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 115 of this
Complaint, as if fully set forth herein.
117. As a result of Mt. Hawley's wrongful failure and refusal to defend the Insureds in
attorneys'
the Polsinelli Lawsuit, Philadelphia has incurred all of the fees, costs, and
disbursements to defend the Insureds with no contribution from Mt. Hawley.
118. . Philadelphia is entitled to a declaratory judgment declaring that Mt. Hawley
attorneys'
has a duty under the Mt. Hawley Primary Policy to reimburse it the fees, costs
and disbursements that Philadelphia has paid to defend the Insureds in the Polsinelli
Lawsuit.
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119. Mt. Hawley has a duty under the Mt. Hawley Primary Policy to indemnify the
Insureds for a covered judgment or settlement in the Polsinelli Lawsuit up to the available limits
of that Policy.
120. Mt. Hawley but has failed and refused to indemnify the Insureds under the Mt.
Hawley Primary Policy for a covered judgment or settlement in the Polsine!!i Lawsuit..
121. Philadelphia is entitled to a declaratory judgment declaring that Mt. Hawley
has a duty under the Mt. Hawley Primary Policy to reimburse Philadelphia for any covered
judgment or settlement in the Polsinelli Lawsuit up to the available limits of that
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FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 INDEX NO. BIT ASSOCIATES LLC, THE DERMOT COMPANY LP, and PHILADELPHIA INDEMNITY INSURANCE COMPLAINT COMPANY, individually and as subrogee of SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES LLC, and THE DERMOT COMPANY LP, Plaintiffs, - against - ARCH SPECIALTY INSURANCE CO. and MT. HAWLEY INSURANCE COMPANY, Defendants. Plaintiffs SOULCYCLE INC., RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES LLC, THE DERMOT COMPANY LP, and PHILADELPHIA INDEMNITY INSURANCE COMPANY (Philadelphia), individually and as subrogee of SOULCYCLE, INC. (Soulcycle), RIVERSIDE CENTER PARCEL 2 BIT ASSOCIATES LLC (Riverside), and THE DERMOT COMPANY LP (Dermot) by and through their attorneys, MARSHALL CONWAY BRADLEY GOLLUB & WEISSMAN, P.C., as and for their declaratcry judgmcat complaint against Defendants, ARCH SPECIALTY INSURANCE CO. (Arch) and MT. HAWLEY INSURANCE COMPANY (Mt. Hawley), allege upon information and belief, as follows: NATURE OF ACTION 1. This is an action for declaratory judgments. Plaintiffs, Soulcycle, Riverside, and Dermot (collectively, Insureds) and Philadelphia are entitled to declaratory relief against Arch and Mt. Hawley relating to insurance coverage in coññêction with a lawsuit captioned, John Polsinelli v. Riverside Center Parcel 2 Bit Associates LLC, et al., commenced in the Supreme 1 of 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 Court of the State of New York, County of New York, Index No. 155689/2017 (Polsinelli Lawsuit), because Philadelphia has paid for the defense of the Insureds in the Polsinelli Lawsuit despite Arch's and Mt. Hawley's duty to defend the Insureds in that Lawsuit. Arch and Mt. Hawley have also refused to indemnify the Insureds for any judgment against them in the defendants' Polsinelli Lawsuit within the coverage of Arch's and Mt. Hawley's policies. The failure to defend and to indemnify the Insureds, and reimburse Philadelphia for defense attorneys' fees and costs for its defense of the insureds is in derogation of Arch's duties under the Arch policy issued to I.M.P. Plumbing & Heating Corp. (IMP), and Mt. Hawley's duty under the Mt. Hawley policies issued to JKT Construction Inc. dba: Corcon (Corcon). 2. The Insureds and Philadelphia seek a declaratory judgment against Arch with respect to coverage for the Polsine!!i Lawsuit declaring, inter alia: a) that the Insureds are entitled to additional insured status under Arch policy number DPC0055437-03 (Arch Policy) issued to IMP on a primary basis; b) that Arch has a duty to defend the Insureds in the Polsinelli Lawsuit under the Arch Policy; c) that Arch breached itsduty to the Insureds when itrefused to defend the Insureds in the Polsinelli Lawsuit; d) that Arch has a duty under the Arch Policy to indemnify the Insureds in the Polsinelli Lawsuit; e) that Arch breached its a duty to indemnify the Insureds with respect to the Polsinelli Lawsuit by refusing and failing to ackñowledge its indemnity obligation to the Insureds, on a primary basis. 3. The Insureds and Philadelphia seek a declaratory judgment against Mt. Hawley with respect to coverage for the Insureds in the Polsinelli Lawsuit under Mt. Hawley policy number MGL0183977 (Mt. Hawley Primary Policy) issued to Corcon declaring, inter alia: a) that the Insureds are entitled to insured status under the Mt. Hawley Primary Policy on a primary basis; b) that Mt. Hawley has a duty to defend the Insureds in the Polsinelli Lawsuit; c) that Mt. 2 of 2 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 Hawley bresched itsduty to the Insureds when it refused to defend the Insureds in the Polsinelli Lawsuit; d) that Mt. Hawley has a duty under to indemnify the Insureds in the Polsinelli Lawsuit; e) that Mt. Hawley breached its a duty to indemnify the Insureds with respect to the Polsinelli Lawsuit by refusing and failing to acknowledge its indemnity obligation to the Insureds, on a primary basis. 4. The Insureds and Philadelphia seek a declaratory judgment against Mt. Hawley with respect to coverage for the Insureds in the Polsinelli Lawsuit under Mt. Hawley policy number MXL0423121 (Mt. Hawley Excess Policy) issued to Corcon declaring, inter alia: a) that the Insureds are entitled to insured status under the Mt. Hawley Excess Policy; b) that Mt. Hawley has a duty to indemnify the Insureds for any judgment or settlement amount above any applicable primary insurance in the Polsinelli Lawsuit; c) that Mt. Hawley has breached its duty to indemnify the Insureds with respect to the Polsinelli Lawsuit by refusing and failing to acknowledge to the Insureds its duty to indemnify them. 5. Philadelphia seeks a declaratory judgment against Arch declaring a) that Arch has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all reasonable costs and Insureds' expenses Philadelphis has incurred in the defense in the Polsinelli Lawsuit; b) that Arch has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all reasonable costs Insureds' and expenses Philadelphia will incur in the defense in the Polsinelli Lawsuit; and c) that Arch has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all damages Philadelphia will incur to satisfy any judgment or settlement against the Insureds in the Po!sinelli Lawsuit up to the full amount of the Arch Primary Policy. 6. Philadelphia seeks a declaratory judgment against Mt. Hawley declaring a) that Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all reasonable 3 of3 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 Insureds' costs and expenses Philadelphia has incurred in the defense in the Polsinelli Lawsuit; b) that Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all Insureds' resscñable costs and expenses Philadelphia will incur in the defense in the Polsinelli Lawsuit; c) that Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all damages Philadelphia will incur to satisfy any judgment or settlement agaiñst the Insureds in the Polsinelli Lawsuit up to the full amount of the Mt. Hawley Primary Policy; and d) that Mt. Hawley has a duty to reimburse Philadelphia, as subrogee of the Insureds, for all damages Philadelphia will incur to satisfy any judgment or settlement against the Insureds in the Polsinelli Lawsuit up to the full amount of the Mt. Hawley Excess Policy. PARTIES 7. Plaintiff Soulcycle is a corporation organized and existing under the laws of the State of Delaware. Soulcycle's principal place of business is in the State of New York. 8. Plaintiff Riverside is a limited liability organized and existing under the company laws of the State of Delaware. 9. Plaintiff Dermot is a limited partnership organized under the laws of the State of Delaware with itsprincipal place of business in the State of New York. 10. Philadclphia is a corporation incorporated and existing under the laws of the Commonwealth of Pennsylvania. Philadelphia asistsies its principal place of business at One Bala Plaza, Suite 100, Bala Cynwyd, PA 19004. Philadelphia is authorized to do an insurance business in the State of New York. 11. Arch is a corporation organized under the laws of Missouri. Arch maintains its principal place of business in New Jersey. 4 of4 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 12. Arch does business in New York. 13. Mt. Hawley Insurance Co. is a corporation organized under the laws of the State of Illinois. Mt. Hawley maintains itsprincipal place of business in Illinois. 14. Mt. Hawley is eligible to write surplus lines business in New York. 15. Mt. Hawley does business in New York. JURISDICTION AND VENUE 16. Philadelphia, as the real party in interest, is a proper plaintiff herein. 17. This Court has personal jurisdiction over Arch and Mt. Hawley pursuant to CPLR § 301 and 302. 18. This Court has jurisdiction over Arch because Arch does business in this County. 19. This Court has jurisdiction over Mt. Hawley because Mt. Hawley does business in this County and Mt. Hawley is eligible to write surplus lines business in New York. 20. This Court has subject-matter jurisdiction to hear this case pursuant to CPLR §3001. 21. This Court has exclusive original jurisdiction over the controversy herein in the State of New York. FACTUAL BACKGROUND 22. Philadelphia Iñdemñity Insurance Company issued policy no. PHPK1499037 to Sculcycle Inc. (Soulcycle), effective June 1, 2016 to June 1, 2017. 23. Arch issued policy number DPC0055437-03 to IMP (Arch Policy) in effect on November 7, 2016. 5 of 5 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 24. Mt. Hawley issued policy number MGL0183977 (Mt. Hawley Primary Policy) to Corcon, effective April 1, 2016 to April 1, 2017. 25. Mt. Hawley issued policy number MXL0423121 (Mt. Hawley Excess Policy) to Corcon, effective April 1, 2016 to April 1, 2017. 26. On or about August 2, 2016, Soulcycle contracted with Corcon for Corcon to be the general contractor for construction work at premises located at 21 West End Avenue, New York, New York. 27. The contract between Soulcycle and Corcon was in effect on November 7, 2016. 28. Under the contract with Soulcycle, Corcon agreed to procure and maintain certain insurance to cover claims for bodily injury resulting from the construction work at the premises 29. Corcon, as the general contractor for the Soulcycle project, coñtracted with IMP for IMP to perform plumbing work at the premises. 30. Under the contract with Corcon, IMP agreed to procure and maintain certain insurance to cover claims for bodily injury against the Insureds resulting from the construction at the premises. 31. The contract between Corcon and IMP included installation of piping for the sprinkler fire suppression system at the premises. 32. The contract between Corcon and IMP was in effect on November 7, 2016. 33. On or about November 7, 2016, John Polsinelli, a JKT employee, allegedly fell from a ladder that he had climbed to inspect IMP's installatioñ of piping for the sprinkler fire suppression system. 34. Philadelphia timely tendered and re-teñdered the defense of the Insureds to IMP and its insurer, Arch. 6 of6 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 35. Philadelphia repeatedly demanded that Arch assume the defêñse of the Insureds in the Polsinelli Lawsuit. 36. Arch repeatedly and wrongfully disclaimed coverage to the Insureds for the allegations of the Polsinelli Lawsuit and refused to defend the Insureds in that Lawsuit. 37. Philadelphia repeatedly demanded that Arch reimbürse it for the defense attorneys' fees and costs ithad expended to defend the Insureds in the Polsinelli Lawsuit. attorneys' 38. Arch repeatedly refused to reimburse Philedelphis for the defense fees and costs Philadelphia has expended to date in the Polsinelli Lawsuit. 39. Philadelphia timely tendered and re-tendered the defense of the insureds to Corcon and its insurer, Mt. Hawley. 40. Philadelphia repeatedly demanded that Mt. Hawley assums the defense of the Insureds in the Polsinelli Lawsuit. 41. Mt. Hawley repeatedly and wrongfully disclaimed coverage to the Insureds for the allegations of the Polsinelli Lawsuit under the Mt. Hawley Primary and Excess Policies. 42. Mt. Hawley wrongfully refused to defend the Insureds in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 43. Mt. Hawley wrongfully refused to indemnify the Insureds in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 44. Mt. Hawley wrongfully refused to indemnify the Insureds in the Polsinelli Lawsuit under the Mt. Hawley Excess Policy. 45. Philadelphia repeatedly demanded M. Hawley reimburse it for the defense attorneys' fees and costs ithad expended to defend the Insureds in the Polsinelli Lawsuit. 7 of7 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 46. Mt. Hawley repeatedly refused to reimburse Philadelphia for the defense attomeys' fees and costs Philadelphia has expended to date in the Polsinelli Lawsuit. FIRST CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST ARCH IN FAVOR OF SOULCYCLE 47. Phintiffs repeat and reallege the allegations of paragraphs 1 through 46 of this Complaint, as if fully set forth herein. 48. Soulcycle is entitled to insured status under the Arch Policy for the allegãtions of the Polsinelli Lawsuit. 49. The Arch Policy obligates Arch to defend Soulcycle in the Polsinelli Lawsuit on a primary basis. 50. Arch has wrongfully refused to defend Soulcycle in the Polsinelli Lawsuit. 51. Soulcycle is entitled to a declaratory judgment declaring that Arch has a duty to defend it in the Polsinelli Lawsuit on a primary basis under the Arch Policy. 52. The Arch Policy obligates Arch to indemnify its insured(s) for any covered judgment or settlement in the Polsinelli Lawsuit on a primary basis. 53. Arch has wrongfully refused to indemnify Soutcyclc in the Polsinelli Lawsuit under the Arch Policy. 54. Soulcycle is entitled to a declaratory judgment declaring that Arch has a duty to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under the Arch Policy up to the available limit of that Policy. 8 of 8 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 SECOND CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST ARCH IN FAVOR OF RIVERSIDE 55. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 54 of this Complaint, as if fully set forth herein. 56. Dermot is entitled to insured status under the Arch Policy for the allegations of the Polsinelli Lawsuit. 57. The Arch Policy obligates Arch to defend Riverside in the Polsinelli Lawsuit on a primary basis. 58. Arch has wrongfully refused to defend Riverside in the Polsinelli Lawsuit. 59. Riverside is entitled to a declaratory judgment declaring that Arch has a duty to defend it in the Polsinelli Lawsuit on a primary basis under the Arch Policy. 60. The Arch Policy obligates Arch to indemnify Riverside for any covered judgment or settlement against Riverside in the Polsinelli Lawsuit on a primary basis. 61. Arch has wrongfully refused to indemnify Riverside in the Polsinelli Lawsuit 62. Riverside is entitled to a declaratory judgment declaring that Arch has a duty to indemnify itin the Polsinelli Lawsuit for any judgment or settlement covered under the Arch Policy up to the available limit of that Policy. THIRD CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST ARCH IN FAVOR OF DERMOT 63. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 63 of this Complaint, as if fully set forth herein. 9 of 9 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 64. Dermot is entitled to insured status under the Arch Policy for the allegations of the Polsinelli Lawsuit. 65. The Arch Policy obligates Arch to defend Dermot in the Polsinelli Lawsuit on a primary basis. 66. Arch has wrongfully refused to defend Dermot in the Polsinelli Lawsuit. 67. Dermot is entitled to a declaratory judgment declaring that Arch has a duty to defend it inthe Polsinelli Lawsuit on a primary basis under the Arch Policy. 68. The Arch Policy obligates Arch to pay any covered judgment or settlement against Dermot in the Polsinelli Lawsuit on a primary basis. 69. Arch has wrongfully refused to indemñify Dermot in the Polsinelli Lawsuit. 70. Dermot is entitled to a declaratory judgment declaring that Arch has a duty to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under the Arch Policy up to the available limit of that Policy. FOURTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY INFAVOROFSOULCYCLE 71. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 69 of this Complaint, as if fully set forth herein. 72. Sou1cycle is entitled to insured status under the Mt. Hawley Primary Policy for the allegations of the Polsinelli Lawsuit. 73. The Mt. Hawley Primary Policy obligates Mt. Hawley to defend Soutcycle in the Polsinelli Lawsuit on a primary basis. 10 of10 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 74. Mt. Hawley has wrongfully refused to defend Soulcycle in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 75. Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to defend it in the Polsinelli Lawsuit on a primary basis under the Mt. Hawley Primary Policy. 76. The Mt. Hawley Primary Policy obligates Mt. Hawley to indemnify Soulcycle for any covered judgment or settlemeñt in the Polsinelli Lawsuit on a primary basis. 77. Mt. Hawley has wrongfully refused to indemnify Soulcycle for any covered judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 78. Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under the Mt. Hawley Primary Policy up to the available limit of that Policy. FIFTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST MT. HAWLEY EXCESS POLICY IN FAVOR OF SOULCYCLE 79. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 78Error! Reference source not found. of this Complaiñt, as if fully set forth herein. 80. Soulcycle is entitled to insured status under the Mt. Hawley Excess Policy for the allegations of the Polsinelli Lawsuit. 81. The Mt. Hawley Excess Policy obligates Mt. Hawley to indemnify Soulcycle for any covered judgment or settleent against Soulcycle in the Polsinelli Lawsuit in excess of applicable primary coverage. 11 11 of 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 82. Mt. Hawley has wrongfully refused to indemnify Soulcycle for any covered judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Excess Policy. 83. Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify Soulcycle under the Mt. Hawley Excess Policy for any covered judgment or settlement in the Polsinelli Lawsuit in excess of applicable primary coverage Soulcycle is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it under the Mt. Hawley Excess Policy for any covered judgment or settlement in the Polsinelli Lawsuit in excess of applicable primary coverage up to the available limit of that Policy.. SIXTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY IN FAVOR OF RIVERSIDE 84. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 83 of this Complaint, as if fully set forth herein. 85. Riverside is entitled to insured status under the Mt. Hawley Primary Policy for the allegations of the Polsinelli Lawsuit. 86. The Mt. Hawley Primary Policy obligates Mt. Hawley to defend Riverside in the Polsinelli Lawsuit on a primary basis. 87. Mt. Hawley has wrongfully refused to defend Riverside in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 88. Riverside is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to defend it in the Polsinelli Lawsuit on a primary basis under the Mt. Hawley Primary Policy. 12 of12 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 89. The Mt. Hawley Primary Policy obligates Mt. Hawley to indemnify Riverside for any covered judgment or settlement in the Polsinelli Lawsuit on a primary basis. 90. Mt. Hawley has wrongfully refused to indemnify Riverside for any covered judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 91. Riverside is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it in the Polsinelli Lawsuit for any covered judgment or settlement under the Mt. Hawley Primary Policy up to the available limit of that Policy. SEVENTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST MT. HAWLEY EXCESS POLICY IN FAVOR OF RIVERSIDE 92. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 91of this Complaint, as if fully set forth herein. 93. Riverside is entitled to insured status under the Mt. Hawley Excess Policy for the allegations of the Polsinelli Lawsuit. 94. The Mt. Hawley Excess Policy obligates Mt. Hawley to indemñify Riverside for any covered judgment or settlement against Riverside in the Polsinelli Lawsuit in excess of applicable primary coverage. 95. Mt. Hawley has wrongfully refused to iñdemnify Riverside in the Polsinelli Lawsuit under the Mt. Hawley Excess Policy. 96. Riverside is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it under the Mt. Hawley Excess Policy for any covered judgment or settlement in the Polsinelli Lawsuit in excess of applicable primary coverage. 13 13 of 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 EIGHTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY IN FAVOR OF DERMOT 97. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 96 of this Complaint, as if fully set forth herein. 98. Dermot is entitled to insured status under the Mt. Hawley Primary Policy for the allegations of the Polsinelli Lawsuit. 99. The Mt. Hawley Primary Policy obligates Mt. Hawley to defcñd Dermot in the Polsinelli Lawsuit on a primary basis. 100. Mt. Hawley has wrongfully refused to defend Dermot in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 101. Dermot is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to defend it inthe Polsinelli Lawsuit on a primary basis under the Mt. Hawley Primary Policy. 102. The Mt. Hawley Primary Policy obligates Mt. Hawley to indemñify Dermot for a covered judgncñt or settlement in the Polsinelli Lawsuit on a primary basis. 103. Mt. Hawley has wrongfully refused to indemnify Dermot for a covered jude,.-nent or settlement in the Polsinelli Lawsuit under the Mt. Hawley Primary Policy. 104. Dermot is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it in the Polsinelli Lawsuit for any judgment or settlement covered under the Mt. Hawley Primary Policy up to the available limit of that Policy. NINTH CAUSE OF ACTION 14 14 of 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 DECLARATORY JUDGMENT AGAINST MT. HAWLEY EXCESS POLICY IN FAVOR OF DERMOT 105. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 104 of this Complaint, as if fully set forth herein. 106. Dermot is entitled to insured status under the Mt. IIawley Excess Policy for the allegations of the Polsinelli Lawsuit. 107. The Mt. Hawley Excess Policy obligates Mt. Hawley to indemnify Dermot for a covered judgment or settlement in the Polsinelli Lawsuit in excess of applicable primary coverage. 108. Mt. Hawley has wrongfully refused to indemnify Dermot for a covered judgment or settlement in the Polsinelli Lawsuit under the Mt. Hawley Excess Policy. 109. Dermot is entitled to a declaratory judgment declaring that Mt. Hawley has a duty to indemnify it under the Mt. Hawley Excess Policy for any covered judgment or settlement in thePolsinelli Lawsuit in excess of applicable primary coverage. TENTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST ARCH IN FAVOR OF PHILADELPHIA 110. Plaintiffs repeat and reallege the allegations of paragrãphs 1 through 109 of this Complaint, as if fully set forth herein. 111. As a result of Arch's wrongful failure and refusal to defend the Insureds in the attorneys' Polsinelli Lawsuit, Philadelphis has incurred all of the fees, costs, and disbursements to defend the Insureds with no contribution from Arch. 15 of15 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 112. . Philadelphia is entitled to a declaratory judgment declaring that Arch has a attorneys' duty under the Arch Policy to reimburse Philadelphia the fees, costs and disbursementsthatithaspaid, and will pay, to defend theInsureds inthe Polsinelli Lawsuit 113. Arch has a duty under the Arch Policy to indemnify the Insureds for any covered judgment or settlement in the Polsinelli Lawsuit up to the available limits of that Policy. 114. Arch has refused to indemnify the Insureds under the Arch Policy for any covered judgment or settlement in the Polsinelli Lawsuit. 115. Philadelphia is entitled to a declaratory judgment declaring that Arch has a duty under the Arch Policy to reimburse Philadelphia for any covered judgment or settlement that it pays on behalf of the Insureds in the Poisiñê||i Lawsuit. up to the amount of the Arch Policy. ELEVENTH CAUSE OF ACTION DECLARATORY JUDGMENT AGAINST MT. HAWLEY PRIMARY POLICY IN FAVOR OF PHILADELPHIA 116. Plaintiffs repeat and reallege the allegations of paragraphs 1 through 115 of this Complaint, as if fully set forth herein. 117. As a result of Mt. Hawley's wrongful failure and refusal to defend the Insureds in attorneys' the Polsinelli Lawsuit, Philadelphia has incurred all of the fees, costs, and disbursements to defend the Insureds with no contribution from Mt. Hawley. 118. . Philadelphia is entitled to a declaratory judgment declaring that Mt. Hawley attorneys' has a duty under the Mt. Hawley Primary Policy to reimburse it the fees, costs and disbursements that Philadelphia has paid to defend the Insureds in the Polsinelli Lawsuit. 16 16 of 20 FILED: NEW YORK COUNTY CLERK 02/20/2020 02:52 PM INDEX NO. 651606/2020 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 03/11/2020 119. Mt. Hawley has a duty under the Mt. Hawley Primary Policy to indemnify the Insureds for a covered judgment or settlement in the Polsinelli Lawsuit up to the available limits of that Policy. 120. Mt. Hawley but has failed and refused to indemnify the Insureds under the Mt. Hawley Primary Policy for a covered judgment or settlement in the Polsine!!i Lawsuit.. 121. Philadelphia is entitled to a declaratory judgment declaring that Mt. Hawley has a duty under the Mt. Hawley Primary Policy to reimburse Philadelphia for any covered judgment or settlement in the Polsinelli Lawsuit up to the available limits of that