Allstate Ins. Co. v. United International Ins. Co.
Decision Date | 28 March 2005 |
Docket Number | 2003-10446. |
Citation | 2005 NY Slip Op 02419,792 N.Y.S.2d 549,16 A.D.3d 605 |
Parties | ALLSTATE INSURANCE COMPANY et al., Respondents, v. UNITED INTERNATIONAL INSURANCE COMPANY, Appellant. |
Court | New 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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