Sterner v. Colonial Cooperative Insurance

Judgment unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In this declaratory judgment action seeking a declaration that defendant Colonial Cooperative Insurance Company (Colonial) has an obligation to defend and indemnify defendant Charles E. Balcom in an action brought by plaintiffs against Balcom, plaintiffs moved, and defendant Colonial cross-moved, for summary judgment. In the memorandum decision supporting its order, the court properly found that there was a question of fact requiring a trial on the issue whether Balcom received notice of an exclusion contained in the policy of insurance issued by Colonial. Nevertheless, the court granted partial summary judgment to plaintiffs declaring that Colonial has an obligation to defend Balcom in the underlying action. The order implicitly denied that part of plaintiffs’ motion seeking judgment declaring that Colonial has an obligation to indemnify. Colonial’s motion for summary judgment was also denied.

In their respective briefs on appeal, plaintiffs and Colonial assert in identical language that: "colonial’s contractual obligations of defense and indemnification cannot be separated