Opinion
August 13, 1998
Appeal from the Supreme Court, New York County (Elliott Wilk, J.).
New York has never recognized a cause of action or defense for breach of an insurer's implied covenant of good faith and fair dealing where, as here, it is alleged that an insurer's failure to reasonably investigate claims made against the insured results in an increased retrospective premium (compare, Hartford Acc. Indem. Co. v. Coastal Dry Dock Repair Corp., 97 A.D.2d 724, affd 62 N.Y.2d 924, with Security Officers Serv. v. State Compensation Ins. Fund, 17 Cal.App.4th 887, 896-897, 21 Cal.Rptr.2d 653, review denied 1993 Cal LEXIS 5522 [Sup Ct, Oct. 21, 1993], citing, inter alia, National Sur. Corp. v. Fast Motor Serv., 213 Ill. App.3d 500, 572 N.E.2d 1083), and we decline to do so here. The policy commits the investigation of claims to plaintiff insurer, and the manner in which plaintiff performed this function was a matter of business judgment within the discretion of its management (see, Fidelity Cas. Co. v. Metropolitan Life Ins. Co., 42 Misc.2d 616, 630). In any event, plaintiff was properly granted summary judgment since defendant's opposition was wholly inadequate to raise any issues of fact as to whether plaintiff did not investigate claims in good faith (see, Benton Express v. Royal Ins. Co., 217 Ga. App. 331, 334, 457 S.E.2d 566, 568, cert denied 1995 Ga LEXIS 1018 [Sup Ct, Sept. 5, 1995]). We also agree with the IAS Court that the payment of dividends was within plaintiff's discretion, and that plaintiff was justified in refusing to pay a dividend to defendant based on defendant's failure to meet its obligation to pay the premium. We have considered defendant's other argument. and find them to be without merit.
Concur — Sullivan, J. P., Rosenberger, Ellerin, Nardelli and Andrias, JJ.