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In an action for a judgment declaring that the accused Insurance Company

In an action for a judgment declaring that the accused Insurance Company is obligated to defend and indemnify a man in an underlying personal injuryaction commenced in the Kings County Supreme Court. The accused Insurance Company appeals from an order of the Supreme Court granting its application to treat its motion to dismiss the actions asserted against it as one for summary judgment insofar as asserted against it, denied the motion and granted the complainants’ cross motion, in effect, for summary judgment.

Pursuant to Insurance Law, an insurer is required to provide the insured with timely notice of its disclaimer or denial of coverage on the basis of a policy exclusion and will be prevented from disclaiming premises liability or denying coverage if it fails to do so. Timeliness of an insurer’s disclaimer is measured from the point in time when the insurer first learns of the grounds for disclaimer of liability or denial of coverage. It is the responsibility of the insurer to explain its delay, and an unsatisfactory explanation will render the delay unreasonable as a matter of law. An insurer’s explanation 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.
Here, the record demonstrated that the complainant insurer disclaimed coverage 78 days after receiving notice of the facts upon which its disclaimer was based. The Supreme Court properly determined that the insurer’s delay was unreasonable as a matter of law.

Since the action is a declaratory judgment action, the matter must be remitted to the Kings County Supreme Court for the entry of a judgment declaring that the complainant is obligated to defend and indemnify the man in the underlying personal injury action. The appellant’s remaining contention is without merit.

In another personal injury action, the Supreme Court’s order which denied the complainant’s motion for summary judgment was unanimously modified on the law. The court granted the accused person’s summary judgment dismissing the complaint with costs to the accused payable by the complainant. The Court Clerk is directed to enter judgment in favor of the accused.

The instant breach of contract action is based on a purported agreement between the parties to settle a personal injury action that the complainant commenced in Kings County Supreme Court. However, as the settlement was being placed on the record, or immediately thereafter, one of the complainants in the personal injury action, the driver of the offending car, arose and interjected that the person in court that day claiming to be the complainant was not the person who was involved in the car accident. The court then ruled that no settlement had been reached, and directed the parties to trial. The jury, in answer to the first question on the verdict sheet, found the complainant not to be the person who was involved in the car accident, and the case was dismissed. The complainant then moved to set aside the verdict on the ground that a valid settlement agreement had been entered into in open court, and that the court therefore lacked authority to direct the parties to trial, which motion was denied on the grounds that an agreement to settle had never been consummated, or, assuming the contrary, would have been vacated for fraud. On appeal, the Second Department held that complainant’s motion was an inappropriate vehicle for seeking review of proceedings that occurred prior to trial, without prejudice to the complainant’s raising the issue of whether there was a settlement upon a direct appeal from any judgment to be entered in the Kings County action. The complainant man then commenced the instant contract action in New York County Supreme Court, subsequent to which a judgment dismissing the complainant’s personal injury action was entered in the Kings County court.

The purported settlement agreement that the complainant seeks to enforce in this contract action was found to be nonexistent by the Kings County Supreme Court, a finding that the Second Department has indicated may be reviewable on an appeal from the judgment of the Kings County court dismissing the complainant’s action for personal injuries. Thus, the complainant is asking the courts in this Department to review an order of a Kings County court, notwithstanding the existence of a clearly adequate appellate remedy in the Second Department. The court is declined to do. Inasmuch as the complainant has no viable claim herein, upon a search of the record, the court dismissed the complaint.

In yet another personal injury action for a judgment declaring that the accused Insurance Company is liable to the complainant for the amount of a judgment entered against the insured persons in an underlying personal injury action in the Kings County Supreme Court. The Insurance Company entered upon their default in appearing in the action. They appealed from an order of the Supreme Court which denied its motion for summary judgment declaring that it is not so obligated.

The Court ordered to reverse its order, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court for the entry of a judgment declaring that the accused Insurance Company is not liable to the insured complainants for the amount of a judgment entered against the insured persons in an underlying personal injury action.

The complainant woman rented a room in a one-family home owned by her niece and her niece’s husband. The couple maintained a homeowner’s policy with the accused Surety Company. On October 26, 1993, the complainant insured woman sustained injuries when she had a slip and fall accident in the house. In January 1994, she commenced a personal injury action against her niece and her niece’s husband. When the couple failed to appear in the action, a default judgment was entered against them in June 1995.

Meanwhile, on March 30, 1994, the couple informed the Surety Company of the complainant woman’s slip and fall accident. After conducting an investigation, on May 9, 1994 the Surety Company denied coverage on the ground that the policy did not cover the incident because the complainant was a named insured’s aunt and a resident in the household.

The complainant woman commenced the action for a judgment declaring that the Surety Company was obligated to pay her the amount of the judgment entered against the couple on their behalf. The Surety Company moved for summary judgment arguing that the complainant woman’s claims were barred by certain exclusions in the policy, particularly that she was a resident relative of a named insured. The Supreme Court denied the Surety Company’s motion, and the Appellate Court reversed.

The policy specifically excludes coverage for bodily injuries sustained by a resident relative of any named insured as well as medical payments to any person regularly residing at the insured premises. Therefore, the policy of insurance clearly and unambiguously excludes the personal injury incident from coverage. The court concludes that, under the circumstances of the case, the Surety Company’s delay in issuing its disclaimer was reasonable. Accordingly, the Surety Company’s motion for summary judgment is granted, and the matter is remitted for the entry of an appropriate judgment declaring that it is not required to pay to the complainant woman the amount of a judgment entered in the underlying personal injury action.

Negligence often results to accident. If you are a victim of someone else’s negligence, consult a Kings County Personal Injury Lawyer. You can also call a Kings County Slip and Fall Attorney or a Kings County Premises Liability Lawyer from Stephen Bilkis and Associates to help you with your legal battle in court.

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