You are here: / / GENERAL CONTRACTOR’S FAILURE TO TIMELY NOTIFY INSURER OF UNDERLYING...

GENERAL CONTRACTOR’S FAILURE TO TIMELY NOTIFY INSURER OF UNDERLYING LAWSUIT BY INJURED WORKER ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE.

The Third Department, reversing Supreme Court, determined defendant insurer properly disclaimed coverage because the insured, plaintiff general contractor, did not timely notify the insurer of a lawsuit brought by an injured construction worker. Plaintiff was not notified of the suit because it had not appointed a new registered agent for service to replace a defunct agent (not an adequate excuse). The court noted that the “no prejudice” rule applied to the disclaimer, meaning that the insured need not show it was prejudiced by the lack of notice to disclaim:

 

The liability insurance policy at issue here “contain[s] clauses requiring [plaintiff] to provide prompt notice of [both] an occurrence implicating coverage” and any ensuing legal action … . “The insurer’s receipt of such notice is therefore a condition precedent to its liability under the policy,” and a failure to give that notice “may allow an insurer to disclaim its duty to provide coverage” … . At the time the policy here was issued, “[n]o showing of prejudice [was] required” to justify a disclaimer … . The absence of a need to demonstrate prejudice represented “a limited exception to th[e] general rule,” and was justified by a primary “insurer’s need to protect itself from fraud by investigating claims soon after the underlying events; to set reserves; and to take an active, early role in settlement discussions” … .

There is no dispute that plaintiff provided timely notice of the underlying accident, but it is equally clear that plaintiff failed to “[n]otify [defendant] as soon as practicable” that the personal injury action had been commenced. Indeed, plaintiff never gave notice to defendant, although counsel for Speirs did so approximately four months after papers had been served … . That delay, “in the absence of an excuse or mitigating factors, is unreasonable as a matter of law” … . Plaintiff never gave notice because it did not receive the summons and complaint but, inasmuch as its nonreceipt flowed from its failure to appoint a new registered agent for service to replace a defunct one that had been named decades earlier, that explanation was “insufficient as a matter of law” … . Kraemer Bldg. Corp. v Scottsdale Ins. Co., 2016 NY Slip Op 01233, 3rd Dept 2-18-16

 

INSURANCE LAW (FAILURE TO NOTIFY INSURER OF UNDERLYING LAWSUIT ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE)/DISCLAIMER (INSURANCE, FAILURE TO NOTIFY INSURER OF UNDERLYING LAWSUIT ENTITLED INSURER TO DISCLAIM COVERAGE WITHOUT A SHOWING OF PREJUDICE)

/by
You might also like
Easement Grants Only the Right to Ingress and Egress, Not a Right to the Physical Passageway Itself
DEFENDANT WAS THE TARGET OF A STING WHERE THE INVESTIGATOR POSED AS THE STEPFATHER OF A 14-YEAR-OLD GIRL WITH WHOM THE DEFENDANT WAS INVITED TO HAVE SEX; WHEN THE INVESTIGATOR SUMMONED THE STEPDAUGHTER TO MEET THE DEFENDANT, HE GOT UP AND WALKED AWAY; THE ATTEMPTED RAPE, CRIMINAL SEXUAL ACT AND ENDANGERING THE WELFARE OF A CHILD CONVICTIONS WERE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE (THIRD DEPT).
Victim’s Mother Should Not Have Been Allowed to Speak at Sentencing Because Defendant Convicted Only of Possession of Weapon, Not the Killing of the Victim/Failure to Inform Defendant of Pending Criminal Charges Against Prosecution Witnesses Not Error
Backhoe Bucket Not “Falling Object” Within Meaning of Labor Law 240 (1)
Evidence Insufficient to Support Neglect Finding, Criteria Explained/Repetition of Child’s Out-of-Court Statement Does Not Corroborate It
WHETHER THE SCHOOL PRINCIPAL RECEIVED COMPETENT REPRESENTATION AT HER DISCIPLINARY PROCEEDINGS BEFORE THE NYC DEPARTMENT OF EDUCATION WAS RELEVANT TO HER DECERTIFICATION PROCEEDINGS BEFORE THE NYS DEPARTMENT OF EDUCATION; THEREFORE THE MOTION TO QUASH THE SUBPOENA SEEKING THE ATTORNEY’S TESTIMONY SHOULD NOT HAVE BEEN GRANTED (THIRD DEPT).
WHEN DEFENDANT TOLD THE COURT AT HIS FIRST TWO APPEARANCES THAT HE WISHED TO TESTIFY AT THE GRAND JURY, THE COURT SHOULD HAVE RECOGNIZED THAT DEFENDANT WAS ATTEMPTING TO REPRESENT HIMSELF AND CONDUCTED A SEARCHING INQUIRY TO MAKE SURE DEFENDANT UNDERSTOOD THE RISKS (THIRD DEPT).
PLAINTIFFS’ ACTION STEMMING FROM PFOA CONTAMINATION PROPERLY SURVIVED SUMMARY JUDGMENT; THE DOCTRINE OF PRIMARY JURISDICTION DID NOT APPLY; QUESTIONS OF FACT RAISED ABOUT THE DUTY OF CARE, PROXIMATE CAUSE, PRIVATE NUISANCE, TRESPASS AND PUNITIVE DAMAGES (THIRD DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2022 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

QUESTION OF FACT WHETHER A SPECIAL RELATIONSHIP EXISTED WHICH WOULD SUPPORT... AN ADEQUATE WAIVER OF APPELLATE RIGHTS AT SENTENCING DOES NOT REMEDY AN INADEQUATE...