Allstate Ins. Co. v. United International Ins. Co.

Decision Date28 March 2005
Docket Number2003-10446.
Citation2005 NY Slip Op 02419,792 N.Y.S.2d 549,16 A.D.3d 605
PartiesALLSTATE INSURANCE COMPANY et al., Respondents, v. UNITED INTERNATIONAL INSURANCE COMPANY, Appellant.
CourtNew York Supreme Court — Appellate Division

Ordered that the notice of appeal from the decision dated October 16, 2003, is deemed a premature notice of appeal from the judgment entered November 21, 2003 (see CPLR 5520 [c]); and it is further,

Ordered that the judgment is reversed, on the law, with costs, and it is declared that the defendant's disclaimer of coverage is valid and the defendant is not obligated to indemnify Lay-Up Enterprises, Inc., doing business as Sand Bar, in the underlying action entitled Muhs v Lay-Up Enterprises, pending in the Supreme Court, Suffolk County, under index No. 15057/95.

To effectively deny coverage based upon lack of cooperation, an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured's cooperation, (2) that the efforts employed by the insurer were reasonably calculated to obtain the insured's cooperation, and (3) that the attitude of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction (see Thrasher v United States Liab. Ins. Co., 19 NY2d 159 [1967]; Pawtucket Mut. Ins. Co. v Soler, 184 AD2d 498 [1992]). To this end, the defendant carrier was required to sustain the very heavy burden of demonstrating that the insured's alleged failure to cooperate was deliberate (see Mount Vernon Fire Ins. Co. v 170 E. 106th St. Realty Corp., 212 AD2d 419 [1995]). The defendant met that burden in this case.

The record supports a finding that the defendant undertook diligent efforts that were reasonably calculated to bring about the cooperation of the insured, Lay-Up Enterprises, Inc., doing business as Sand Bar (hereinafter Lay-Up), in the underlying action (see State Farm Fire & Cas. Co. v Imeri, 182 AD2d 683 [1992]). The defendant's representatives contacted John Rafferty, who was Lay-Up's principal owner, on more than one occasion to ensure that he would be present on the day of his scheduled testimony, including speaking with him the night before his scheduled testimony.

The record also supports a finding that...

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11 cases
  • Deluca v. RLI Ins. Co.
    • United States
    • New York Supreme Court — Appellate Division
    • October 7, 2020
    ...of the insured, after his or her cooperation was sought, was one of willful and avowed obstruction" ( Allstate Ins. Co. v. United Intl. Ins. Co., 16 A.D.3d 605, 606, 792 N.Y.S.2d 549 ; see Thrasher v. United States Liability Ins. Co., 19 N.Y.2d at 168–169, 278 N.Y.S.2d 793, 225 N.E.2d 503 )......
  • Roc Nation LLC v. HCC Int'l Ins. Co.
    • United States
    • U.S. District Court — Southern District of New York
    • March 4, 2021
    ...defenses. And there is substantial countervailing state law to the contrary. See, e.g., Allstate Ins. Co. v. United Int'l Ins. Co. , 16 A.D.3d 605, 606, 792 N.Y.S.2d 549 (2d Dep't 2005) ("Contrary to the plaintiffs’ contentions, the defendant was not required to show prejudice as a result o......
  • Eagley v. State Farm Ins. Co.
    • United States
    • U.S. District Court — Western District of New York
    • September 29, 2015
    ...and avowed obstruction.Wingates, LLC v. Commonwealth Ins. Co. of Am., 21 F. Supp. 3d at 217-18 (quoting Allstate Ins. Co. v. United Int'l Ins. Co., 16 A.D.3d 605, 606 (2d Dep't), leave appeal denied, 5 N.Y.3d 708 (N.Y. 2005)). Although an insurer seeking to disclaim coverage for breach of a......
  • Guideone Specialty v. Congregation Bais Yisroel
    • United States
    • U.S. District Court — Southern District of New York
    • July 28, 2005
    ...after his or her cooperation was sought, was one of willful and avowed obstruction." Allstate Ins. Co. v. United Int'l Ins. Co., 16 A.D.3d 605, 606, 792 N.Y.S.2d 549, 550-51 (2d Dep't 2005). The insurer alleging violation of the cooperation clause bears a heavy burden to show that the insur......
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1 books & journal articles
  • Chapter Twenty-Two
    • United States
    • New York State Bar Association Insurance Law Practice (NY)
    • Invalid date
    ...Mut. Fire Ins. Co., 232 A.D.2d 405, 648 N.Y.S.2d 306 (2d Dep’t 1996).[2798] . See, e.g., Allstate Ins. Co. v. United Int’l Ins. Co., 16 A.D.3d 605, 792 N.Y.S.2d 549 (2d Dep’t 2005) (in failing to appear to testify at the last minute without explanation despite promising the insurer that he ......

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