J. P. Realty Trust v. Public Service Mutual Insurance

Murphy, P. J. (dissenting in part).

I agree with the majority that a declaration should be made that Public must defend and indemnify the plaintiffs in the wrongful death action. However, I believe that the contribution between the two insurers should be upon a pro rata basis.

Where the provisions of a policy are clear and unambiguous, they must be given their plain and ordinary meaning. The courts should refrain from rewriting such an agreement (Government Employees Ins. Co. v Kligler, 42 NY2d 863, 864; see, generally, 29 NY Jur, Insurance, §§ 597-598). The “mirroring” language under…