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Rare NY Court of Appeals Reversal
K2, located on the border between Pakistan and China, is the second-highest mountain in the world behind Mount Everest. Despite its secondary status, however, it is commonly regarded as the most dangerous peak to climb. It is perhaps an ironic coincidence, then, that in the widely reported decision K2 Investment Group, LLC v. American Guarantee & Liability Ins. Co., 21 N.Y.3d 384 (2013) (“K2-I“), the New York Court of Appeals placed in the path of insurers a very high and potentially dangerous new legal standard. Specifically, in the K2-I decision, New York's highest court transformed that state's insurance landscape when it held that an insurer who breaches its duty to defend is precluded from later relying on its policy exclusions in litigation over its indemnity obligation.
Less than three months after rendering its decision, however, the Court of Appeals retraced its path and agreed to rehear K2-I. Upon rehearing, the court found that K2-I improperly departed from well-established New York insurance law and could not be reconciled with existing precedent. Thus, in a rare self-reversal, the court has corrected its decision and returned New York insurance law to its previous state of more level ground. As a result, insurers no longer face potentially automatic liability if they breach their duty to defend a policyholder.
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