Opinion
2644/2007.
Decided on January 24, 2008.
Carroll, McNulty Kull, LLC.
Hammill, O'Brien, Croutier, Dempsey Pender, PC.
The plaintiff moves for an order pursuant to CPLR § 3212 for summary judgement. Plaintiff submits a Memorandum of Law in support of plaintiff's motion. The defendant cross-moves for an order pursuant to CPLR § 3212 granting summary judgment in favor of the defendant. The plaintiff submits an affidavit in opposition to the cross-motion and in further support of plaintiff's motion. The defendant submits a reply affirmation.
In this declaratory judgment action, plaintiff seeks a declaration that the excess general liability policy issued to the defendant, Fred L. Gold, does not provide coverage to the defendant with respect to the underlying wrongful death action pending in the Supreme Court, County of Queens, entitled Colin Jones, as Administrator of the Estate of Marcia E. Jones, Colin Jones, Jr., an infant by his father and natural guardian, Colin Jones and Colin Jones, Individually v. Fred Gold, bearing Index No. 23922/06. The defendant seeks a declaration that the policy provides excess insurance coverage in the aforementioned underlying action.
On December 26, 2005, Marcia E. Jones, a pedestrian, was struck by the defendant's vehicle at or near an intersection located in East Meadow, New York. Ms. Jones was transported to the hospital where she lapsed into a coma and eventually died.
The plaintiff insurer herein, Transcontinental, disclaimed coverage to the defendant on the ground of late notice. While plaintiff argues that Transcontinental issued its disclaimer thirty-four days after receiving the defendant's notice and claim, Transcontinental maintains that its disclaimer was issued thirty days after receiving the defendant's claim. Transcontinental submits that its delay in issuing its disclaimer is reasonable as Transcontinental needed additional information regarding the limits of the Allstate policy, the erosion of the limits and the facts concerning the accident as this information is critical to determine whether excess coverage is even potentially triggered.
Where there is a delay in providing written notice of a disclaimer of coverage, which is required to be given as soon as reasonably possible, the burden rests on the insurance company to explain the delay. ( Quincy Mutual Insurance Company v. Uribe, 845 NYS2d 434). It is well established that an insurance carrier will be estopped from disclaiming coverage based on a policy exclusion when it has delayed unreasonably in issuing its disclaimer. ( In re Allstate Ins. Co. v. Ferrone, 232 AD2d 479). The reasonableness of any delay in disclaiming coverage must be judged from the time that the carrier is aware of sufficient facts to issue a disclaimer ( Id.). A thirty-day delay is unreasonable as a matter of law where the sole ground on which coverage is disclaimed is obvious from the face of the notice of claim and the accompanying complaint, and there existed no need to conduct an investigation before determining whether to disclaim. ( W.16th St. Tenants Corp. v. Public Service Mutual Ins. Co., 290 AD2d 278).
An insurer's explanation of its delay in disclaiming coverage is insufficient as a matter of law where the basis for denying coverage was, or should have been, readily apparent before the onset of the delay. ( First Financial Insurance Co. v. Jetco Contracting Corp., 1 NY3d 64). An insurer's failure to provide notice of disclaimer as soon as is reasonably possible precludes effective disclaimer, even though the policyholder's own notice of the incident to its insurer is untimely. ( Id.; Quincy Mutual Fire Insurance Company v. Uribe, 845 NYS2d 434).
Here, the plaintiff's disclaimer was on the sole ground of late notice, which would have been readily apparent upon examination of the notice of claim. Thus, there was no need to conduct an investigation into whether Allstate's policy was exhausted in order to arrive at the conclusion upon which the insurer herein based its disclaimer, to wit, late notice of the claim, as the ground of late notice is obvious from the face of the notice of claim. Therefore, the defendant's delay in disclaiming coverage, whether the delay is thirty-four-days or thirty-days, is unreasonable as a matter of law.
To the extent that the plaintiff failed to disclaim its coverage on the basis of late notice, this court need not address plaintiff's contention that the defendant's notice was late. As already provided, an insurer's failure to provide notice of disclaimer as soon as possible precludes effective disclaimer, even when a policyholder's own notice of the incident to its insurer is untimely. ( First Financial Insurance Co. v. Jetco Contracting Corp., supra; Quincy Mutual Fire Insurance Company v. Uribe, supra).
In light of the foregoing, the plaintiff's motion for summary judgment is denied, the defendant's cross-motion for summary judgement is granted.
Therefore, this Court declares that the excess general liability policy issued to the defendant, Fred L. Gold, by the plaintiff, Transcontinental, provides coverage to the defendant with respect to the underlying wrongful death action pending in the Supreme Court, County of Queens, entitled Colin Jones, as Administrator of the Estate of Marcia E. Jones, Colin Jones, Jr., an infant by his father and natural guardian, Colin Jones and Colin Jones, Individually v. Fred Gold, bearing Index No. 23922/06.