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COVERAGE AT ISSUE WAS THE SUBJECT OF A POLICY EXCLUSION (WHICH WAS THEN ADDED BACK IN BY AN ENDORSEMENT); BECAUSE THE COVERAGE WAS NOT OUTSIDE THE SCOPE OF THE POLICY A TIMELY DISCLAIMER WAS REQUIRED.

The First Department, reversing Supreme Court, determined the insurance coverage at issue was the subject of a policy exclusion which required a timely disclaimer. The disclaimer was deemed untimely and ineffective. The plaintiff city was an additional insured on a general liability policy issued by defendant insurance company. The city was a defendant in a lawsuit alleging negligence by the Administration for Children’s Services resulting in the abuse and death of decedent. The policy excluded coverage for “abuse or molestation” but an endorsement added that coverage back in. The First Department noted that if “abuse or molestation” was outside the scope of the policy, no disclaimer would have been necessary. However, because “abuse or molestation” coverage was eliminated by a policy exclusion (and then added back in) a timely disclaimer was mandatory:

 

When a claim falls outside the scope of an insurance policy’s coverage portion, a disclaimer of coverage is unnecessary because the policy did not contemplate coverage in the first instance and requiring coverage for a failure to disclaim in such instances “would create coverage where it never existed” … . By contrast, when a refusal to provide coverage is based on a policy exclusion, a timely disclaimer of coverage is necessary to invoke the policy exclusion … . Here, abuse and molestation claims occurring during the policy period but not reported until afterwards were eliminated from coverage by the exclusion but not added back in by the endorsement, and thus required a disclaimer (id. ), which defendant failed to timely provide. City of New York v Granite State Ins. Co., 2016 NY Slip Op 01124, 1st Dept 2-16-16

 

INSURANCE LAW (COVERAGE EXCLUDED FROM POLICY AND ADDED BACK IN BY ENDORSEMENT REQUIRED TIMELY DISCLAIMER)/POLICY EXCLUSION (INSURANCE, COVERAGE EXCLUDED FROM POLICY AND ADDED BACK IN BY ENDORSEMENT REQUIRED TIMELY DISCLAIMER)/DISCLAIMER (INSURANCE, COVERAGE EXCLUDED FROM POLICY AND ADDED BACK IN BY ENDORSEMENT REQUIRED TIMELY DISCLAIMER)

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