Clark v. Utica Mut. Ins. Co.
| Citation | 31 Misc.2d 1005,222 N.Y.S.2d 239 |
| Parties | Claude L. CLARK, Plaintiff, v. UTICA MUTUAL INSURANCE COMPANY, Defendant. |
| Decision Date | 15 December 1961 |
| Court | New York City Municipal Court |
Staves, Craig & Owens, Brooklyn, for plaintiff; Egbert A. Craig, Jr., Brooklyn, of counsel.
MacIntyre, Burke, Smith & Curry, New York City, for defendant; Eugene J. O'Brien, Commack, of counsel.
This is an action against an insurance company to recover the sum of $1551.50, pursuant to the provisions of Sec. 167, subd. 1(b) of the Insurance Law. The plaintiff sustained personal injuries and property damages as a result of an automobile accident and brought an action against one, Wells, who was covered at the time of the accident by an insurance policy issued by the defendant. Plaintiff obtained a judgment against Wells, by inquest, for $1551.50, and now sues the insurance company to recover on that judgment.
The accident occurred on March 28, 1959. The insured promptly reported it to the insurance company. Shortly thereafter, plaintiff's attorneys communicated with and actually conducted negotiations with the company concerning possible settlement of the plaintiff's claim. However, these negotiations and communications between plaintiff's attorneys and the company ceased in July, 1959. There were no further communications between them. Subsequently, on July 30, 1959, the plaintiff commenced his action against the insured by allegedly serving a summons upon him on that date. (I say 'allegedly' advisedly, because the insured's testimony that he was served is contradicted by his signed statement, in evidence, that he was never served.) At any rate, if that summons was served on the insured, he admitted on the stand that he never turned it over to the insurance company or to any of its agents and that he still has it in his possession, at home. Nor did he notify the company that he had been served. On November 30, 1959, plaintiff's attorneys took judgment by inquest against the insured and on December 10, 1959 entered the judgment. They served a copy of the judgment on the insured but never served a copy on the company. The within action was instituted against the defendant insurance company on April 6, 1960.
From the time of the commencement of the action against the insured (July 30, 1959) to the time of the commencement of the present action against the defendant (April 6, 1960), the defendant had no notice of the litigation. It had no knowledge that an action had been brought against the insured or that a judgment had been obtained against the insured. It was only upon service of the summons in the within action that the company first received any inkling that a suit had been started against the insured and that a judgment had been obtained against him.
The insured not only failed to turn over to the insurance company the summons allegedly served upon him or notify it that he had been served, but likewise failed to turn over to the company a copy of the judgment served upon him or notify the company that a judgment had been obtained against him.
Unquestionably, the insured failed to cooperate with the insurance company within the meaning of the statute. The mere fact that he reported the accident was not sufficient. He was required to turn over the summons or at least notify the company that he had been served with a summons. Had he done so, the judgment by inquest, in all likelihood, would not have resulted. The company would have been apprised and would have had an opportunity to defend . The insured was also required to turn over the judgment to the company or at least notify the company that he had been served with a copy of the judgment, in which event, the company would have had an opportunity to make a motion to vacate the default judgment.
How does the insured's failure to cooperate affect the plaintiff, the injured victim?
After receiving the summons in the action in April 1960, the company could have made a motion to vacate the inquest judgment and thus stayed this trial. Instead, they decided to interpose an answer and stand trial. In doing so, the company has surrendered its right to reopen the default judgment and try the original personal injury action. The company therefore stands or falls on the issue of whether the plaintiff's attorneys were required to give the company notice of the litigation before bringing this suit.
Both sides rely on the case of Lauritano v. American Fidelity Fire Insurance Co., 3 A.D.2d 564, 162 N.Y.S.2d 553, 557: aff'd 4 N.Y.2d 1028, 177 N.Y.S.2d 520.
The action or inaction of the plaintiff's attorneys vitally affect the plaintiff's right to now sue the insurance company. The Court said in the Lauritano case, supra: 'the injured person's rights must be judged by the prospects for giving notice that were afforded him * * *.' The plaintiff's attorneys knew shortly after the accident who the insurer was. Admittedly, they conducted negotiations with the...
To continue reading
Request your trial
-
Thrasher v. U.S. Liability Ins. Co.
...275 N.Y.S.2d 265, 221 N.E.2d 807; McNamara v. Allstate Ins. Co., Chicago Ill., 3 A.D.2d 295, 160 N.Y.S.2d 51; Clark v. Utica Mut. Ins. Co., 31 Misc.2d 105, 222 N.Y.S.2d 239; Lang v. Merchants Mut. Cas. Co., 203 Misc. 258, 116 N.Y.S.2d 638). These cases exemplify an improper use of the term ......
-
Cohen v. East Coast Ins. Co.
...28 Misc.2d 723, 212 N.Y.S.2d 698; Century Indemnity Co. v. Hartford Acc. & Ind. Co., Sup., 130 N.Y.S.2d 844; Clark v. Utica Mutual Ins. Co., 31 Misc.2d 1005, 222 N.Y.S.2d 239.) At bar, however, the Insurer has practically conceded that plaintiff not only sought the Insurer's appearance and ......
-
Thrasher v. U.S. Liability Ins. Co.
...against the defendant (McNamara v. Allstate Insurance Company, Chicago, Ill., 3 A.D.2d 295, 160 N.Y.S.2d 51; Clark v. Utica Mutual Insurance Co., 31 Misc.2d 1005, 222 N.Y.S.2d 239). ...