Cohen v. East Coast Ins. Co.

Decision Date20 September 1967
Citation54 Misc.2d 813,283 N.Y.S.2d 371
PartiesNathan COHEN, Plaintiff, v. EAST COAST INSURANCE COMPANY et al., Defendants.
CourtNew York Supreme Court
MEMORANDUM

PHILIP M. KLEINFELD, Justice.

In this action, brought by an injured party, for a judgment declaring the rights of the parties arising out of a disclaimer, the principal issue is whether the insurer has established that it exercised diligence and good faith in attempting to locate the assured and obtain her cooperation.

Plaintiff was injured Allegedly because of the assured's negligence, on June 1, 1965. The insurer received notice, from the assured, on June 14, 1965, and set up a file. Insurer's counsel testified, rather vaguely, that the matter 'was assigned', and that 'The next thing that happened here was on September 20th we were notified by the Motor Vehicle Accident Indemnification Corporation that someone had made a claim * * *'. There is no record of any activity, on the part of the insurer between June 14th and September 20th, and no explanation for the absence of such record.

Plaintiff commenced an action against the assured by service of process on June 29, 1965. Insurer's attorney testified that he was advised of this action by telephone in October, 1965. On October 25, 1965, the Insurer retained outside investigator Boxer who testified that he contacted the broker, that he went to the assured's last known address, where he met someone with whom the assured once lived, and that these efforts were fruitless, all of which he reported to the insurer on November 24, 1965 (the insurer's attorney testified he received the report November 18, 1965). On April 12, 1966, Boxer, pursuant to new instructions, resumed the investigation by returning to the last known residence and another residential address. On December 28, 1965, he had made an inquiry as to scofflaw records at the Traffic Court. In the course of his investigation, Boxer found no neighbors from whom he could inquire. There were stores in the vicinity of the last known residence, but he made no inquiries at such stores. He never sought a credit report, and he was not 'supplied with the employment' of the assured.

It is denied, on 'information and belief', in the pleadings, that Plaintiff, on September 18, 1965, notified the Insurer that the action against the assured was pending, gave the insurer copies of the summons, complaint and affidavit of service, and demanded that the Insurer appear and defend. It is admitted that the Insurer disclaimed by letter dated February 9, 1966.

On this record, the court is constrained to find that the disclaimer must be held invalid. It was the duty of the Insurer to exercise diligence and good faith in locating the assured and obtaining her cooperation (Wallace v. Universal Ins., 18 A.D.2d 121, 238 N.Y.S.2d 379; affd. 13 N.Y.2d 978, 244 N.Y.S.2d 779, 194 N.E.2d 688; Thrasher v. United States Liability Insurance Company, 19 N.Y.2d 159, 278 N.Y.S.2d 793, 225 N.E.2d 503). The Insurer's efforts to locate the assured were wholly inadequate. There is no record of...

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4 cases
  • Bailey v. Universal Underwriters Ins. Co.
    • United States
    • Supreme Court of Oregon
    • September 23, 1970
    ...States Liability Insurance Co., 19 N.Y.2d 159, 278 N.Y.S.2d 793, at 808, 225 N.E.2d 503, at 508 (1967); Cohen v. East Coast Insurance Co., 54 Misc.2d 813, 283 N.Y.S.2d 371, 373 (1967); Wallace v. Universal Insurance Co., Supra, 238 N.Y.S.2d at 382--383; Nationwide Mutual Insurance Co. v. Bu......
  • AXA Marine and Aviation Ins. (UK) Ltd. v. Seajet Industries Inc., 1107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • May 24, 1996
    ...cases of this nature. See, e.g., Aetna Ins. Co. v. Millard, 25 A.D.2d 341, 343-44, 269 N.Y.S.2d 588 (1966); Cohen v. East Coast Ins. Co., 54 Misc.2d 813, 815, 283 N.Y.S.2d 371 (1967); Zappia v. Allstate Ins. Co., 28 Misc.2d 723, 724, 212 N.Y.S.2d 698 (1961). These cases hold in substance th......
  • Leventhal v. American Bankers Ins. Co. of Florida
    • United States
    • United States Court of Appeals (Georgia)
    • June 29, 1980
    ...Marcantel (La.) 221 So.2d 557 (1969); Allstate Ins. Co. v. Grillon, 105 N.J.Super. 254, 251 A.2d 777 (1969); Cohen v. East Coast Ins. Co., 54 Misc.2d 813, 283 N.Y.S.2d 371 (1967); Brown v. Donders, 42 Ohio St.2d 133, 326 N.E.2d 647 (1975); Pickering v. American Emp. Ins. Co., 109 R.I. 143, ......
  • People v. Stuck
    • United States
    • New York County Court
    • October 4, 1967

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