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Proof of Normal Notification Procedure Sufficient to Demonstrate Defendant Was Notified of Lead-Paint-Injury Exclusion in Policy

Over a two-justice dissent, the Fourth Department determined defendant (Donnelly) was notified of an amendment to his insurance policy which disclaimed coverage for injury related to the presence of lead paint (and therefore plaintiff-insurer was not obligated to defend or indemnify defendant in a lead-paint-injury case).  The court also determined that the lead-paint-injury exclusion did not violate public policy. With respect to the proof defendant was notified of the amendment, the court deemed evidence of the usual notification procedure sufficient:

…[W]e conclude that the documents established as a matter of law that the lead exclusion was properly added to Donnelly’s insurance policy and that Donnelly was notified of that amendment.  Although plaintiff did not submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that Donnelly received the notice … .  …[T]he evidence submitted by plaintiff established that the “office practice [was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly addressed and mailed” … .  Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing.  The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot. Preferred Mutual Insurance Company v Donnelly…, 857, 4th Dept 11-8-13

 

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