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ALTHOUGH PLAINTIFF’S COUNSEL SENT A LETTER TO THE INSURED SHORTLY AFTER PLAINTIFF WAS INJURED IN THE INSURED’S HOME REQUESTING THAT THE INSURED NOTIFY HER INSURER, THE INSURER WAS NOT NOTIFIED UNTIL IT RECEIVED THE SUMMONS AND COMPLAINT SIX MONTHS AFTER THE INCIDENT; THE INSURER PROPERLY DISCLAIMED COVERAGE ON THE GROUND IT HAD NOT BEEN TIMELY NOTIFIED (SECOND DEPT).

The Second Department determined defendant insurance company (State Farm) properly disclaimed coverage on the ground it was not notified of the underlying incident (plaintiff was injured in an altercation in the insured’s home) until six months after it occurred. Plaintiff was awarded $715,000 after a non-jury trial. Plaintiff then brought a declaratory judgment action against State Farm:

By letter dated October 31, 2007, the plaintiffs’ counsel requested that [defendant] direct her insurance carrier to contact the plaintiffs’ counsel to discuss the subject occurrence. …

In February 2008, the injured plaintiff, and his wife suing derivatively, commenced a personal injury action (hereinafter the underlying action) against, among others, [the insured] to recover damages arising from the September 2007 occurrence. On or about March 13, 2008, State Farm received a copy of the summons and complaint filed in the underlying action. By letter dated April 3, 2008, State Farm disclaimed coverage to [the insured] on the ground, among others, that notice of the occurrence was untimely. …

“[A]n insurer has the right to demand that it be notified of any loss or accident that is covered under the terms of the insurance policy. The purpose of such a requirement is to afford the insurer an opportunity to protect itself by, for example, investigating claims soon after the underlying events” … . Where, as here, an insurance policy requires that notice of an occurrence or loss be given “as soon as practicable,” such notice constitutes a condition precedent to coverage, and notice must be provided within a reasonable time in view of all of the circumstances … . “Where there is no excuse or mitigating factor, the issue [of reasonableness] poses a legal question for the court, rather than an issue for the trier of fact” … . …

… State Farm established its prima facie entitlement to judgment as a matter of law declaring that it is not obligated to pay the judgment in the underlying action by demonstrating that it did not receive notice of the occurrence giving rise to the underlying action until approximately six months after the occurrence … . In opposition, the plaintiffs failed to raise a triable issue of fact, including as to whether they made a reasonably diligent effort to ascertain the identity of [defendant’s] insurer … . Henaghan v State Farm Fire & Cas. Co., 2019 NY Slip Op 06480, Second Dept 9-11-19

 

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