THE INSURER IN THIS PERSONAL INJURY CASE DID NOT MEET ITS HEAVY BURDEN TO DEMONSTRATE ITS INSURED’S NON-COOPERATION SUCH THAT THE INSURER WAS NOT OBLIGATED TO INDEMNIFY THE INSURED; CRITERIA EXPLAINED (SECOND DEPT).

The Second Department determined the defendant insurer, Utica. did not meet its heavy burden to demonstrate its insured’s (J & R’s) non-cooperation such that the insurer was entitled to a default judgment declaring that it is not obligated to indemnify J & R in the underlying personal injury action in which the injured plaintiff was awarded nearly $700,000. Despite numerous scheduled depositions, J & R’s principal, Singh, never appeared to be deposed and his answer was ultimately stricken:

“To effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured’s cooperation, (2) that the efforts employed by the insured were reasonably calculated to obtain the insured’s cooperation, and (3) that the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction” … . ” [M]ere efforts by the insurer and mere inaction on the part of the insured, without more, are insufficient to establish non-cooperation'” … .

Here, Utica failed to meet its “heavy” burden of demonstrating J & R’s non-cooperatin … . In support of its motion, Utica established that between January 2009 and April 2009, more than one year before J & R’s answer was stricken, it made diligent efforts, through written correspondence, numerous telephone calls, and visits to Singh’s home, that were reasonably calculated to bring about J & R’s cooperation. Utica’s submissions, however, failed to demonstrate that the conduct of J & R constituted “willful and avowed obstruction” … . Foddrell v Utica First Ins. Co., 2019 NY Slip Op 08991, Second Dept 12-18-19