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Lavaud v. Country-Wide Insurance Company

Appellate Division of the Supreme Court of New York, Second Department
May 16, 2006
29 A.D.3d 745 (N.Y. App. Div. 2006)

Opinion

2005-01253.

May 16, 2006.

In an action to recover damages for the bad faith refusal to settle a personal injury claim, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Kings County (Harkavy, J.), dated October 18, 2004, which granted the defendant's motion for summary judgment dismissing the complaint and denied the plaintiff's cross motion for summary judgment.

Lawrence L. Kaye, P.C. (Seligson, Rothman Rothman, New York, N.Y. [Martin S. Rothman] of counsel), for appellant.

Stephen B. Kahn, Yorktown Heights, N.Y., for respondent.

Before: Schmidt, J.P., Crane, Santucci and Spolzino, JJ., concur.


Ordered that the order and judgment is affirmed, with costs.

"[A]n insurer may be held liable for the breach of its duty of `good faith' in defending and settling claims over which it exercises exclusive control on behalf of its insured" ( Pavia v. State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452). To establish a prima facie case of bad faith refusal to settle, a plaintiff must demonstrate that the insurance carrier's conduct constituted a gross disregard of the insured's interests ( see id. at 453; Vecchione v. Amica Mut. Ins. Co., 274 AD2d 576, 578).

Country-Wide Insurance Company (hereinafter Country-Wide) met its prima facie burden of establishing that it did not breach its duty of acting in good faith. Country-Wide's failure to respond to a time-restricted demand within the full policy limits did not, under the circumstances, constitute a gross disregard of the interests of Don N. Nixon, also known as Donnon N. Nixon, as the insured ( see Pavia v. State Farm Mut. Auto. Ins. Co., supra at 455). In opposition, Keitly Lavaud, as Nixon's assignee, failed to raise a triable issue of fact as to whether Country-Wide acted in bad faith in failing to settle the underlying action ( see Levit v. Allstate Ins. Co., 9 AD3d 417, 417). Accordingly, the Supreme Court properly granted Country-Wide's motion for summary judgment dismissing the complaint and denied the cross motion for summary judgment. [ See 5 Misc 3d 1006(A), 2004 NY Slip Op 51213(U) (2004).]


Summaries of

Lavaud v. Country-Wide Insurance Company

Appellate Division of the Supreme Court of New York, Second Department
May 16, 2006
29 A.D.3d 745 (N.Y. App. Div. 2006)
Case details for

Lavaud v. Country-Wide Insurance Company

Case Details

Full title:KEITLY LAVAUD, as Assignee of DON N. NIXON, Also Known as DONNON N. NIXON…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: May 16, 2006

Citations

29 A.D.3d 745 (N.Y. App. Div. 2006)
2006 N.Y. Slip Op. 3852
815 N.Y.S.2d 680

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