Eveready Ins. Co. v. Chavis

• Citation: 540 N.Y.S.2d 860,150 A.D.2d 332
• Parties: EVEREADY INSURANCE COMPANY, Appellant, v. Julius CHAVIS, et al., Respondents.
• Decision Date: 01 May 1989
• Court: New York Supreme Court — Appellate Division

Page 860

540 N.Y.S.2d 860

150 A.D.2d 332

EVEREADY INSURANCE COMPANY, Appellant, v. Julius CHAVIS, et al., Respondents.

Supreme Court, Appellate Division,

Second Department.

May 1, 1989.

Sweetbaum & Sweetbaum, Floral Park (Marshall D. Sweetbaum, of counsel), for appellant.

Nicholas Scibilia, Brooklyn, for respondent Richard Bucco.

Before THOMPSON, J.P., and BRACKEN, RUBIN, SULLIVAN and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a judgment declaring that the plaintiff Eveready Insurance Company has no obligation to defend or indemnify its insured the defendant Julius Chavis in an underlying action brought against him by the defendant Richard Bucco to recover damages with respect to an accident which occurred in July 1984, Eveready Insurance Company appeals from an order of the Supreme Court, Kings County (Lodato, J.), dated January 14, 1988, which denied its motion for summary judgment.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and it is declared that the plaintiff is not obligated to defend or indemnify Julius Chavis with respect to the accident which occurred in July 1984.

In this declaratory judgment action, the plaintiff Eveready Insurance Company (hereinafter Eveready) seeks a judgment declaring that it is not obligated either to defend or indemnify Julius Chavis in the underlying negligence action brought against him for the injuries suffered by Richard Bucco, when Bucco's motorcycle and a car owned and operated by Chavis collided on the Belt Parkway on July 9 or 10, 1984. On the date of the accident, Chavis's vehicle was insured by Eveready. Eveready disclaimed coverage, relying, inter alia, upon the failure of its insured and/or the injured party to promptly notify it of the accident as required by the insurance policy. The underlying negligence action is being defended by attorneys provided by Eveready.

The first written notice of the accident given to Eveready was a letter from Bucco's attorney dated July 18, 1985. The sole issue on appeal is whether the injured party's notice of the accident to the alleged tort-feasor's insurer was untimely, as a matter of law, and, therefore, constituted a breach of the notice provision of the policy.

It is a well-established principle that the failure to comply with provisions of an insurance policy requiring timely notice of an accident vitiates the contract both as to the insured and to the one injured or damaged by his acts (Deso v. London & Lancashire Ind. Co., 3 N.Y.2d 127, 129, 164 N.Y.S.2d 689, 143 N.E.2d 889; Jenkins v. Burgos, 99 A.D.2d 217, 219, 472 N.Y.S.2d 373). Here, the policy provision required that Eveready "be notified promptly of how, when and where the accident * * * happened". Policy provisions containing like terms, such as "immediate notice", "notice as soon as practicable" and "notice as soon as reasonably possible", have all been interpreted to require that notice be given within a reasonable time under the circumstances (see, Jenkins v. Burgos, supra, at 219, 220, 472 N.Y.S.2d 373). Insurance Law § 3420(a)(3) (formerly Insurance Law § 167[1][c] ), gives the injured party an independent right to give notice of the accident and to satisfy the notice requirement of the policy.

"If the injured person proceeds diligently to ascertain the existence of coverage and to give the required notice to the insurer, he will not be charged with any delay on the part of the assured. In evaluating the timeliness of such notice, it is well established that notice by the injured party is not to be measured by the same standard as notice by the insured, since '[w]hat is reasonably possible for the insured may not be reasonably possible for the person he has injured.' (Lauritano v American Fidelity Fire Ins. Co., 3 AD2d 564, 568, , affd 4 NY2d 1028 [177 N.Y.S.2d 530, 152 N.E.2d 546] ). The sufficiency of notice by an injured person is governed not by mere passage of time but by the means available for such notice" (National Grange Mut. Ins. Co. v. Diaz, 111 A.D.2d 700, 701, 490 N.Y.S.2d 516; see also, Jenkins v. Burgos, supra, 99 A.D.2d at 221, 472 N.Y.S.2d 373).

The injured party has the burden of proving that he or his counsel acted diligently in attempting to ascertain the identity of the insurer and, thereafter, expeditiously notified the insurer (see, Rushing v. Commercial Cas. Ins. Co., 251 N.Y. 302, 167 N.E. 450; National Grange Mut. Ins. Co. v. Diaz, supra; Allstate Ins. Co. v. Manger, 30 Misc.2d 326, 328, 213 N.Y.S.2d 901). Ordinarily, the reasonableness of any delay and the sufficiency of the excuse offered is a matter for trial. However, absent an excuse or mitigating circumstances, the issue poses a legal question for the court (see, Deso v. London & Lancashire Ind. Co., 3 N.Y.2d 127, 129-130, 164 N.Y.S.2d 689, 143 N.E.2d 889, supra; Jenkins v. Burgos, supra; see also, First State Ins. Co. v. J & S United Amusement Corp., 67 N.Y.2d 1044, 1046, 504 N.Y.S.2d 88, 495 N.E.2d 351).

It is conceded on this appeal that counsel was promptly retained for the nonresident injured party and that counsel diligently procured a copy of the police report on or about December 4, 1984. The police report identified the insurance carrier for the alleged tort-feasor by the number "430". Every insurance company authorized to do business in this State is assigned an identification number used by police departments in completing accident reports. The insurance code contained in a police report is admissible proof that the alleged tort-feasor was insured (see, Matter of American Sec. Ins. Co. v. Ferrer, 110 A.D.2d 503, 487 N.Y.S.2d 41), and minimal effort would reveal the name of the insurance carrier. Eveready's insurance code is 430.

Although Bucco's attorney commenced the underlying negligence action against Chavis by service of process on February 20, 1985, in the hope that Chavis would forward the summons with notice to his insurance carrier, counsel did not attempt to ascertain the name of Chavis's insurer until approximately four months after receipt of the police report containing the insurance code. On April 26, 1985, Bucco's attorney asked the New York State Department of Motor Vehicles to conduct an insurance search on Chavis's vehicle. At the time of this request, Chavis had defaulted in appearing in the negligence action and Bucco's attorney had mailed a letter to Chavis's last known residence, advising him to contact his insurer. Within two weeks after the New York State Department of Motor Vehicles informed Bucco's attorney that Eveready insured Chavis, counsel proceeded diligently enough to press Bucco's claim by mailing Eveready written notice of the accident.

Notwithstanding the fact Eveready was promptly notified once the results of the insurance search were revealed, the law requires that an injured party should also be diligent in identifying the insurance carrier (cf., Matter of Nassau Ins. Co. v. Doyle, 114 A.D.2d 899, 900, 495 N.Y.S.2d 72; Matter of Kauffman [Motor Vehicle Acc. Ind. Corp.]., 25 A.D.2d 419, ...