Eric Hanson, et al., plaintiffs, v. LLC (2010)

Argued-January 4, 2010

DECISION & ORDER

In an action to recover damages for personal injuries, etc., and a third-party action for a judgment declaring, inter alia, that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, is obligated to defend and indemnify the defendant third-party plaintiff, Turner Construction Company, in the main action, the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, appeals from an order of the Supreme Court, Kings County (Sunshine, Ct.Atty.Ref.), dated February 25, 2009, which, after a framed-issue hearing, in effect, granted that branch of the motion of the defendant third-party plaintiff, Turner Construction Company, which was for summary judgment declaring that it must include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued and that it is obligated to defend and indemnify the defendant third-party plaintiff in the main action, and denied that branch of the cross motion of the third-party defendants which was for summary judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, need not include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued, and that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action.

ORDERED that the order is reversed, on the law, with costs, that branch of the motion of the defendant third-party plaintiff which was for summary judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurenace Company, must include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued and that it is obligated to defend and indemnify the defendant third-party plaintiff in the main action, is denied, and that branch of the cross motion of the third-party defendants which was for summary judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company need not include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued, and that it is not obligated to defend and indemnify the defendant third-party plaintiff in the main action, is granted, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company, need not include the defendant third-party plaintiff as an additional insured under the policy of insurance it issued and is not obligated to defend and indemnify the defendant third-party plaintiff in the main action.

Where, as here, an insurance policy requires an insured to provide notice of an occurrence as soon as practicable, such notice must be provided within a reasonable time in view of all of the circumstances (see Eagle Ins. Co. v. Zuckerman, 301 A.D.2d 493, 495;  Travelers Indem.   Co. v. Worthy, 281 A.D.2d 411).  “While a good-faith belief of nonliability may excuse or explain a failure to give timely notice, the insured bears the burden of demonstrating that the delay in giving notice was reasonable” (Travelers Indem.   Co. v. Worthy, 281 A.D.2d at 412;  see St. James Mech., Inc. v. Royal & Sunalliance, 44 AD3d 1030, 1031).

In this case, the defendant third-party plaintiff, Turner Construction Company (hereinafter Turner), possessed contemporaneous knowledge of the accident and that the injured plaintiff sought treatment at a medical facility for an injury to his back immediately following the accident.   Moreover, the fact that Turner provided a copy of the accident report it prepared to, among others, its “insurance company department,” was inconsistent with Turner's claim of having a good-faith belief in nonliability.   Under the circumstances, Turner's delay of nearly two years in giving notice of the accident was unreasonable (see Fischer v. Centurion Ins. Co., 9 AD3d 381, 382;  Zadrima v. PSM Ins. Cos., 208 A.D.2d 529, 530).

Since the third-party action is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the third-party defendant Sompo Japan Insurance Company, f/k/a Yasuda Fire and Marine Insurance Company need not include Turner as an additional insured under the policy of insurance it issued and is not obligated to defend and indemnify Turner in the main action (see Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

In light of our determination, we need not reach Sompo's remaining contentions.

SKELOS, J.P., SANTUCCI, DICKERSON and ROMAN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court