Ferguson v. Nationwide Mut. Ins. Co.

• Decision Date: 23 January 1970
• Citation: 61 Misc.2d 912,307 N.Y.S.2d 347
• Parties: Thomas FERGUSON, an infant under the age of 14, by his mother and natural guardian, Bernice Hines and Bernice Hines, individually, v. NATIONWIDE MUTUAL INSURANCE COMPANY.
• Court: New York City Court

Page 347

307 N.Y.S.2d 347

61 Misc.2d 912

Thomas FERGUSON, an infant under the age of 14, by his mother and natural guardian, Bernice Hines and Bernice Hines, individually, v. NATIONWIDE MUTUAL INSURANCE COMPANY.

Civil Court of the City of New York, New York County, Trial Term.

Jan. 23, 1970.

Samuel J. Hasson, New York City, for plaintiffs.

Zepnick & Director, New York City (S. Victor Spadaro, New York City, of counsel), for defendant.

MARTIN B. STECHER, Judge.

This is an action brought by an infant and his mother pursuant to the provisions of Section 167 of the Insurance Law to recover the amounts of certain uncollected judgments, previously obtained by them against the defendant carrier's assured.

After trial I find that on April 11, 1964, Thomas Ferguson, then 13 years of age, was struck by an automobile owned and operated by one Miguel Nales, defendant's assured. An ambulance was called, Thomas was hospitalized and a police investigation appears to have been made at the accident scene and at the hospital. A police report was filed identifying the parties to the accident.

Not until November 5, 1965, 19 months later, did Mrs. Hines, the coplaintiff and mother of Thomas retain counsel. Mrs. Hines, however, misled her attorney, reporting to him that the accident had occurred on April 11, 1965. Counsel proceeded diligently to investigate the case; but hampered by an erroneous date, he was unable to discover Nale's identity and that of his insurance carrier until the end of July of 1966. On August 9, 1966, the defendant carrier was given written notice of claim by plaintiffs' attorney. Thus, 28 months elapsed before any notice was given to the carrier, Nales (the assured) apparently having failed to do so.

Nearly two months thereafter, on September 30, 1966, this defendant issued a notice of disclaimer. On December 13, 1966, Nales then a prisoner at Riker's Island, was served with a summons, a copy of which plaintiffs' attorney sent to the defendant. On December 28, 1966, Nales being in default of pleading, a notice of inquest was served on him and on this defendant by mail; and on January 4, 1967, an inquest was taken before a Judge of this court, no one appearing on behalf of Nales or the defendant. On the following day January 5, 1967, judgment was entered for Thomas in the sum of $1328.50 ($1250 damages plus costs and disbursements taxed) and in favor of Mrs. Hines in the sum of $400.

On January 24, 1967, this defendant reaffirmed its disclaimer; and shortly thereafter a judgment was served upon it which it has refused to pay.

The policy issued to Nales, complying with the provisions of Section 167 of the Insurance Law required notice to the carrier of the details of an accident 'as soon as practicable'. There can be no doubt that Mrs. Hines, in waiting 19 months to retain an attorney, utterly failed to comply with the provisions of the policy or Statute (Ins. Law, Secs. 167(1)(c), (d). The defendant's delay of nearly two months in disclaiming coverage will not help Mrs. Hines. Disclaimer notice was given 'as soon as reasonably possible' (Ins. Law Sec. 167(8); and no prejudice was created by this brief delay (State Farm Mutual Auto Ins. Co. v. Brown, 40 Misc.2d 694, 243 N.Y.S.2d 825, rev'd on other grounds, 21 A.D.2d 742, 250 N.Y.S.2d 244).

Mrs. Hines cannot collect her judgment from this defendant (Richter v. Fireman's Fund, 27 A.D.2d 223, 277 N.Y.S.2d 737; Matter of Lloyd v. Motor Vehicle Acc. Indemnification Corp., 23 N.Y.2d 478, 297 N.Y.S.2d 563, 245 N.E.2d 216).

Does Thomas's infancy require a different holding on his judgment?

With the exception of the cases in which the Motor Vehicle Accident Indemnification Corporation is a party, no case in this jurisdiction has come to my attention, either in the briefing of the attorneys or through independent research, which is dispositive of this issue.

Under the MVAIC statute (Ins. Law Sec. 608(c)) the failure to file a timely notice of claim is excused if the delay is due (among other things) to the infancy of the claimant. Section 167(1)(d), enumerates no particular disabilities. Instead the saving clause provides that the failure to give prompt notice of the incident 'shall not invalidate any claim made by the insured or by any other claimant thereunder if it shall be shown not to have been reasonably possible to give such notice within the prescribed time and that notice was given as soon as was reasonably possible'.

I fail to see that the absence of the word 'infancy' from Section 167(1)(d) requires us to ignore the fact of infancy. If by virtue of infancy--or any other disability--it is not 'reasonably possible to give such notice within the prescribed time', the claim is not invalidated.

I find that by virtue of Thomas' age--he was thirteen--and his state of dependency on his mother, it was not 'reasonably possible' for him to secure counsel or determine the identity of Nales' carrier or give any notice whatever to the defendant (Matter of McNulty v. MVAIC, 51 Misc.2d 1, 4, 272 N.Y.S.2d 514, 518; Matter of Raiford v. MVAIC, 29 A.D.2d 883, 288 N.Y.S.2d 577). The saving clause of the statute (Ins. Law § 167(1)(d) was designed to protect people unable to protect their own rights. Thomas was such...