ILIC v. PEERLESS INSURANCE COMPANY (1998)

The Defendants, Peerless Insurance Company, Excelsior Insurance Company, The Netherlands Insurance Company (hereinafter collectively referred to as “Defendants”) submit a motion seeking summary judgment dismissing the Plaintiffs, Peter and Deborah Ilic's, Complaint.   The Defendants' basis for this motion is that the declaratory judgment action of Plaintiffs for first party insurance coverage for property damage was commenced after the policy's two year suit limitation.

The insurance claim is based upon water damage which occurred on February 8, 1993 to unoccupied real property owned by Plaintiffs.   The Plaintiffs commenced suit against the Defendants by filing a summons and complaint on February 7, 1996.

 “Parties, by agreement, may provide for a shorter limitations period than that prescribed by law, which is enforceable, provided it is reasonable and in writing.”  Carat Diamond Corp. v. Underwriters At Lloyd's, London, 123 A.D.2d 544, 546, 506 N.Y.S.2d 708 (1st Dept.1986);  see Benatovich v. Propis Agency, Inc., 224 A.D.2d 998, 637 N.Y.S.2d 551 (4th Dept.1996);  Van Hoesen v. Pennsylvania Millers Mutual Ins. Co., 86 A.D.2d 733, 447 N.Y.S.2d 47 (3rd Dept.1982).   In the instant case the two year limitations period was contained in the written policy.   In insurance policies, agreed to time periods as short as 12 months have been found to be reasonable, valid and enforceable.  Blitman Const. Corp. v. Ins. Co. Of North America, 66 N.Y.2d 820, 498 N.Y.S.2d 349, 489 N.E.2d 236 (1985) (12 month contractual limitation period);  Carat at 546, 506 N.Y.S.2d 708 (12 month contractual limitation period);  Benatovich at 998, 637 N.Y.S.2d 551 (2 year contractual limitation period);  Van Hoesen at 733, 447 N.Y.S.2d 47 (2 year contractual limitation period).

The Defendants have met their initial burden of establishing its defense sufficiently to warrant the Court in directing judgment in favor of Defendants.   The Defendants motion, however, is to “be denied if any party shall show facts sufficient to require a trial of any issue of fact.”  (CPLR 3212(b).)

 The Plaintiffs allege that a question of fact exists as to whether the Defendants waived their rights or are estopped from relying upon the 2 year contractual limitation.   If there are allegations of any representations or conduct by the insurer which could have misled plaintiff into believing that the time limitation in the policy would not be invoked, then summary judgment is not warranted.   See Carat at 546, 506 N.Y.S.2d 708;  see Blitman Constr. at 822-23, 498 N.Y.S.2d 349, 489 N.E.2d 236;  Galligan v. Royal Globe Ins. Co., 119 A.D.2d 987, 500 N.Y.S.2d 993 (4th Dept.1986);  cf. Ampower Semiconductor Corp. v. American Motorists Ins. Co., 159 A.D.2d 268, 552 N.Y.S.2d 269 (1st Dept.1990)

The Court of Appeals has addressed the issue of waiver or estoppel in insurance policies:

Evidence of communications or settlement negotiations between an insured and its insurer either before or after expiration of a limitations period contained in a policy is not, without more, sufficient to prove waiver or estoppel (citations omitted).   Waiver is an intentional relinquishment of a known right and should not be lightly presumed (citations omitted).   Plaintiff offers no evidence from which a clear manifestation of intent by defendant to relinquish the protection of the contractual limitations period could be reasonably inferred (citation omitted).   Nor do the facts show that defendant, by its conduct, otherwise lulled plaintiff into sleeping on its rights under the insurance contract (citation omitted).   Indeed, since the conduct complained of occurred subsequent to expiration of the limitations period, plaintiff could not have relied on that conduct in failing to timely commence its action.

Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 968, 525 N.Y.S.2d 793, 520 N.E.2d 512 (1988).

 In the instant case, the parties had been involved in extensive negotiation and settlement discussions.   This Court recognizes that these negotiations alone are not sufficient to demonstrate a waiver of the insurer's rights under the policy to time bar any action not commenced within the 2 year contractual limitation period.   See Gilbert at 968, 525 N.Y.S.2d 793, 520 N.E.2d 512;  Schunk v. New York Central Mutual Fire Ins. Co., 237 A.D.2d 913, 655 N.Y.S.2d 210 (4th Dept.1997);  Warhoftig v. Allstate Ins. Co., 199 A.D.2d 258, 604 N.Y.S.2d 245 (2d Dept.1993).   However, the conduct of the Defendants, as the insurer, included more than just the investigating and negotiating of a possible settlement;  the insurer made two payments to the Plaintiffs' on their claim.   A check for $25,000.00 was issued on November 8, 1993 with a memo that it was a partial payment.   A second check for $52,040.00 was issued on September 15, 1994 with a memo that it was for repairs, with a breakdown of the amount and a note “ *SUBJECT TO FINAL REVIEW AND SETTLEMENT”.   Thereafter, and still during the two year limitation of time to commence suit, there were additional investigations, negotiations, and discussions between the parties as to the final settlement of the Plaintiffs' claim.

This Court determines that a question of fact exists on whether Defendants waived their right to assert that Plaintiffs' claim is time barred by Defendants conduct in issuing partial payments of the claim, with unequivocal notes on the checks that they are subject to final review and settlement.   The Plaintiffs have submitted proof in evidentiary form which raises an issue of fact as to whether the Defendants “lulled plaintiff into inactivity sufficient for a waiver or estoppel” or lulled Plaintiffs' into sleeping on their rights to commence an action due to the conduct of the insurer in having issued payments on the claim, with notations of a final settlement to follow.   See Carat at 546, 506 N.Y.S.2d 708;  Cardinale v. Genesee Valley Medical Care, 94 A.D.2d 966, 463 N.Y.S.2d 972 (4th Dept.1983);  Dresserville Farms, Inc. v. Firemen's Ins. Co., 54 A.D.2d 1118, 388 N.Y.S.2d 788 (4th Dept.1976);  Pasmear Inn, Inc. v. General Accident Fire & Life Assurance Corp. Ltd., 44 A.D.2d 647, 353 N.Y.S.2d 278 (4th Dept.1974).

The Defendants' motion for summary judgment dismissing the Plaintiffs' Complaint based upon the two year contractual limitation to commence an action against the Defendants is DENIED.

THOMAS A. STANDER, Justice.