Summary
finding that "[n]o ordinarily prudent person could reasonably have felt immune from potential civil liability under these circumstances" where the insured "failed to prove that the injuries suffered by the plaintiff in the main action were so trivial as to justify a reasonable belief that no liability could arise," given that said injuries were serious enough to require the injured party's hospitalization and police intervention in the subject incident also had been necessary
Summary of this case from Gardner v. Phoenix Ins. Co.Opinion
February 28, 1994
Appeal from the Supreme Court, Nassau County (Ain, J.).
Ordered that the judgment is reversed, on the facts, with one bill of costs, and it is declared that the defendant Sterling Insurance Company is not obligated to defend or indemnify Richard Garrett, Jr., in connection with the main action pending in the Supreme Court, Nassau County, bearing Index No. 2647/82.
This Court previously reversed an order granting summary judgment in favor of Richard Garrett, Jr. (see, Winstead v Uniondale Union Free School Dist., 170 A.D.2d 500). In our prior decision and order, we found that Garrett's delay in notifying the appellant of the underlying incident, if unexcused, would be such as to vitiate the coverage afforded to Garrett under the terms of the appellant's policy. This Court specifically noted that in October 1986 Garrett received a copy of a notice of motion for leave to enter a default judgment against him in connection with the underlying negligence action and that, nevertheless, the appellant was not given notice of the underlying incident until February 1987 (see, Winstead v Uniondale Union Free School Dist., supra). The declaratory judgment action has now been tried to conclusion and judgment has been granted in favor of Garrett. In the exercise of our factual review power, we reverse and declare that the appellant is not obligated to defend or indemnify Garrett in connection with the underlying personal injury action.
Garrett bore the burden of proving that his delay in reporting the incident to the appellant was excusable (see, White v. City of New York, 81 N.Y.2d 955; Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 N.Y.2d 436; Eveready Ins. Co. v Levine, 145 A.D.2d 526). However, Garrett failed to prove that the injuries suffered by the plaintiff in the main action were so trivial as to justify a reasonable belief that no liability could arise. On the contrary, his testimony tends to support the conclusion that the plaintiff suffered injuries serious enough to require hospitalization, as well as the conclusion that the aggression itself was serious enough to warrant the intervention of the police. No ordinarily prudent person could reasonably have felt immune from potential civil liability under these circumstances (see generally, Allstate Ins. Co. v. Grant, 185 A.D.2d 911; Greater N.Y. Mut. Ins. Co. v. Farrauto, 158 A.D.2d 514; Peerless Ins. Co. v. Nationwide Ins. Co., 12 A.D.2d 602; Zurick Gen. Acc. Liab. Ins. Co. v. Harbil Rest., 7 A.D.2d 433; cf., Merchants Mut. Ins. Co. v. Hoffman, 86 A.D.2d 779, affd 56 N.Y.2d 799).
Further, Garrett failed to meet his burden of proving that he was justifiably ignorant of the insurance coverage available to him under his father's homeowner's policy. It is true that a justifiable lack of knowledge of insurance coverage may excuse a delay in reporting an occurrence (see, Mighty Midgets v Centennial Ins. Co., 47 N.Y.2d 12; Jarka Corp. v. American Fid. Cas. Co., 19 A.D.2d 141, affd 14 N.Y.2d 714; Padavan v. Clemente, 43 A.D.2d 729). However, in order to prevail on this theory, the insured person must prove not only that he or she was ignorant of the available coverage, but also that he or she made reasonably diligent efforts to ascertain whether coverage existed (see, Matter of Allstate Ins. Co. [Frank], 57 A.D.2d 950, revd on other grounds 44 N.Y.2d 897; Aetna Cas. Sur. Co. v. Pennsylvania Mfrs. Assn. Ins. Co., 57 A.D.2d 982).
In the present case, Garrett failed to demonstrate that he acted with due diligence in order to protect his own interest when, in October 1986 (see, Winstead v. Uniondale Union Free School Dist., 170 A.D.2d 500, supra), he received a document which would have prompted any person of ordinary prudence to consult either an attorney or an insurance broker. Instead, he waited for several more months, until January 6, 1987, when, allegedly for the first time, he became aware of the lawsuit against him. Even then, he delayed for another month before seeking counsel and before notifying the appellant of the underlying incident. This unexplained delay of approximately one month is unreasonable in and of itself (see, Deso v. London Lancashire Indem. Co., 3 N.Y.2d 127 [51-day delay unreasonable]).
Under these and all the circumstances of this case, we conclude that Garrett failed to demonstrate a reasonable excuse for his delay in notifying the appellant of the underlying incident. Bracken, J.P., O'Brien, Copertino and Hart, JJ., concur.