Allstate Ins. Co. v. Alford

• Decision Date: 25 October 1960
• Citation: 25 Misc.2d 707,206 N.Y.S.2d 388
• Parties: ALLSTATE INSURANCE COMPANY, an Illinois Corporation, duly authorized to do business in the State of New York, Plaintiff, v. David ALFORD, Executor of the Estate of Effie Bouck, deceased, Charles Butler, John Leger, Ruth Leger, Karl Knecht, Robert Fletcher, Harriet Richtmyer, Evelyn Scholl, F. Theodore School, Evelyn Rifenburg as Administratrix of the goods, chattels and credits of George Rifenburg, deceased, Jeanette Brumaghin and Grant Richtmyer, Defendants.
• Court: New York Supreme Court

Page 388

206 N.Y.S.2d 388

25 Misc.2d 707

ALLSTATE INSURANCE COMPANY, an Illinois Corporation, duly authorized to do business in the State of New York, Plaintiff, v. David ALFORD, Executor of the Estate of Effie Bouck deceased, Charles Butler, John Leger, Ruth Leger, Karl Knecht, Robert Fletcher, Harriet Richtmyer, Evelyn Scholl F. Theodore School, Evelyn Rifenburg as Administratrix of the goods, chattels and credits of George Rifenburg deceased, Jeanette Brumaghin and Grant Richtmyer, Defendants.

Supreme Court, Trial Term, Schoharie County.

Oct. 25, 1960.

Mullarkey & Horigan, Amsterdam (Lewis M. Mullarkey, Amsterdam, of counsel), for plaintiff.

Alford & Lynes, Middleburg (David B. Alford, Middleburg, of counsel), for defendants David Alford, Executor of the Estate of Effie Bouck, deceased, Charles Butler, Evelyn Rifenburg as Administratrix of the goods, chattels and credits of George Rifenburg, deceased, and Jeanette Brumaghin.

Brown & Gallagher, Albany (Neil Hesson, Jr., Albany, of counsel), for defendant Karl Knecht.

James L. Gage, Esperance, for defendants John Leger and Ruth Leger.

Harry J. Donaghy, Jr., New York City, for defendants Harriet Richtmyer and Grant Richtmyer.

Bliss & Bouck, Albany (Francis J. Holloway, Albany, of counsel), for defendants Evelyn Scholl and F. Theodore Scholl.

Robert Fletcher, defendant, not appearing.

HERBERT D. HAMM, Justice.

This is an action for declaratory judgment in which the plaintiff, Allstate Insurance Company, seeks to be relieved of responsibility to defend its assureds, Effie Bouck, the named assured, and Charles Butler, the operator of her automobile, and to be relieved of obligation to pay any judgment which might be returned against them in favor of any of the codefendant claimants. Since the trial of the action David Alford Executor of the Estate of Effie Bouck, deceased, and Evelyn Rifenburg as Administratrix of the goods, chattels and credits of George Rifenburg, deceased, have been substituted respectively in the place and stead of the defendants Effie Bouck and George Rifenburg.

On November 26, 1957, in Schoharie County the defendant Charles Butler, while operating an automobile owned by his grandmother, the former defendant Effie Bouck, was involved in an accident. All defendants are alleged to be claimants except Charles Butler and Effie Bouck's representative. The first report of the accident to the plaintiff was made approximately sixty-five days after the accident. About January 29, 1958, summonses were served on Effie Bouck and Charles Butler in an action brought by the defendants John Leger and Ruth Leger and these summonses were then delivered to an insurance agent and were mailed by the agent to the plaintiff on January 30 or 31, 1958. The summonses were sent to the White Plains office of the plaintiff and where forwarded by the plaintiff from White Plains to its Albany office. The plaintiff's adjuster took statements from Effie Bouck and Charles Butler on February 10, 1958, and about February 19, 1958, returned the summonses to them by registered mail with notice of disclaimer.

The plaintiff issued its policy on May 3, 1957, and it is not disputed that written notice of accident was required (General Accident Fire & Life Assur. Corp. v. Martino, 12 Misc.2d 935, 175 N.Y.S.2d 894).

The pertinent portions of Section 167 of the New York Insurance Law are as follows:

'1. No policy or contract insuring against liability for injury to person, except as stated in subsection three, or against liability for injury to, or destruction of, property shall be issued or delivered in this state, unless it contains in substance the following provisions or provisions which are equally or more favorable to the insured and to judgment creditors so far as such provisions relate to judgment creditors:

* * *

* * *

'(c) A provision that notice given by or on behalf of the insured, or written notice by or on behalf of the injured person or any other claimant, to any licensed agent of the insurer in this state, with particulars sufficient to identify the insured, shall be deemed notice to the insurer.

'(d) A provision that failure to give any notice required to be given by such policy within the time prescribed therein shall not invalidate any claim made by the insured or by any other claimant thereunder if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible.'

The policy issued by the plaintiff contained this provision:

'Notice of Accident--Coverage A, B and C.

'When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.'

The former defendant Effie Bouck at the time of the accident was more than seventy years of age. She was confined to a wheel chair as the result of a stroke suffered four years previously. She testified that she 'left everything up to' her grandson, the defendant Charles Butler, as she 'wasn't around to do anything' and thought he would take care of it. Charles gave as his reason for delay in reporting: 'I didn't think I had to because the car hit me from behind and I had no doubt that the other car's insurance company had to settle the damage on our car and the other car and I wasn't told any different.' He was an infant approximately nineteen years of age at the time of the accident and at the time notice was given; his precise age does not appear.

In Deso v. London & Lancashire Indem. Co., 3 N.Y.2d 127, 164 N.Y.S.2d 689, it was held that the insured's unexcused delay of about fifty-one days in giving notice constituted a breach of the condition as a matter of Law. In Zurich General Acc. & Liability Ins. Co. v. Harbil Restaurant, 7 A.D.2d 433, 184 N.Y.S.2d 51, a delay of approximately two months after cognizance of the possibility of a claim was held unreasonable as a matter of law. However, the reasonableness of the delay where there are mitigating circumstances has been regarded as a question of fact for the jury or the trier of the facts (Melcher v. Ocean Accident & Guarantee Corp., 226 N.Y. 51, 123 N.E. 81; Greaves v. Public Service Mut. Ins. Co., 4 A.D.2d 609, 168 N.Y.S.2d 107, affirmed 5 N.Y.2d 120, 181 N.Y.S.2d 489; Gluck v. London & Lancashire Indemnity Company of America, 2 A.D.2d 751, 153 N.Y.S.2d 518, affirmed 2 N.Y.2d 953, 162 N.Y.S.2d 357; Zurich Insurance Company v. Martinez, 24 Misc.2d 437, 201 N.Y.S.2d 810; Jamestown Mut. Ins. Co. v. Valentin, 10 Misc.2d 606, 172 N.Y.S.2d 9). I observed at the trial that Mrs. Bouck was not only disabled but also ill. In all the circumstances including the fact that Mrs. Bouck was a septuagenarian restricted to a wheel chair I find that the notice, which was required by the policy to be given 'as soon as practicable', was as to her not untimely. Moreover, I find as to Charles, her grandson, that the fact of his infancy contributed substantially to his delay in giving notice and constituted a reasonable excuse. On receipt of the summonses in its Albany office the plaintiff without delay took statement from the assureds at their common residence. The evidence establishes that the...