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May 13, 2014

New York Court of Appeals Affirms Insurer's Liability Disclaimer for Non-Cooperation by Insured

The New York Court of Appeals recently held that an insurer's four-month delay in disclaiming liability for non-cooperation of its insured was reasonable as a matter of law based upon the circumstances of the action. Country-Wide Insurance Co. v. Preferred Trucking Services Corp., et al. N.Y. Court of Appeals, February 18, 2014.

The action arose out of a trucking accident in which Filippo Gallina was injured unloading a vehicle owned by Preferred trucking Service Corp. and operated by its employee, Carlos Arias. Preferred Trucking was insured by Country-Wide Insurance under a business-auto policy. In March, 2006, Gallina and his wife commenced a personal injury action against Preferred Trucking and Arias.

On September 21, 2007, the Gallinas' attorneys filed a motion for a default judgment against Preferred Trucking and Arias. The attorneys provided a copy of the motion to Country-Wide on October 4, 2007, which constituted the first formal notice of the lawsuit to Country-Wide. Country-Wide retained attorneys to defend Preferred and Arias. Throughout 2008, Country-Wide made continuous efforts to obtain the cooperation of the insureds and received very little response. As a result, on November 6, 2008, Country-Wide disclaimed its obligation to defend and indemnify Preferred and Arias as a result of their non-cooperation.

The Gallinas obtained a judgment against the defendants, and damages were ultimately awarded in the sum of $2,550,000.

Country-Wide commenced a declaratory judgment action against Preferred, Arias and the Gallinas for a declaration that it had no obligation to defend and indemnify Preferred and Arias with respect to the underlying action and judgment.

Supreme Court declared that Country-Wide was obligated to indemnify Preferred Trucking in the underlying action up to its policy limit of $500,000, but was not obligated to indemnify Arias. Country-Wide appealed. The Appellate Division, First Department, affirmed the lower court's order, and held that the insurer's disclaimer "was untimely, since it came approximately four months after it learned of the ground for the disclaimer***." On appeal, the New York Court of Appeals reversed, and held that Country-Wide was not obligated to defend and indemnify Preferred Trucking in the underlying action.

The Court of appeals noted that the question of whether an insurer disclaimed "as soon as reasonably possible is necessarily case-specific." However, where the disclaimer is based on non-cooperation by an insured "[a] determination as to whether such a disclaimer was made within a reasonable time is more complex because 'an insured's non-cooperative attitude is often not readily apparent'***." The Court of Appeals emphasized that insurers are encouraged to disclaim for non-cooperation only when further attempts to elicit an insured's cooperation are futile.

Country-Wide contended that in July, 2008, it was not in a position to know that Arias would not cooperate, and it was only on October 13, 2008, when he advised that he did not "care about the EBT date", that it knew that Arias had no intention of cooperating. The Court of Appeals found Country-Wide's argument persuasive, stating:

In these circumstances, in which Arias 'punctuated periods of noncompliance with sporadic cooperation or promises to cooperate'*** we hold that Country-Wide established, as a matter of law, that its delay was reasonable.*** As Country-Wide argues, as long as it was still seeking Arias's cooperation in good faith, it could not disclaim.

This case is an instructive example of what is required in a situation where an insurer is experiencing difficulty in obtaining cooperation from its insured. So long as the insurer is acting in good faith, it will not be precluded from later disclaiming when it has exhausted reasonable efforts to procure the insured's cooperation.

Should you have questions regarding the information presented in this alert, please contact Anthony J. Piazza, Chair of the firm's Insurance Coverage & Regulation Practice Area, at (585) 295-4420 or apiazza@hblaw.com.

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