General Acc. Ins. Group v. Cirucci

• Decision Date: 06 February 1979
• Citation: 414 N.Y.S.2d 512,387 N.E.2d 223,46 N.Y.2d 862
• Parties: , 387 N.E.2d 223 GENERAL ACCIDENT INSURANCE GROUP, Respondent, v. Celia CIRUCCI et al., Respondents, and Aetna Life & Casualty Company, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 512

414 N.Y.S.2d 512

46 N.Y.2d 862, 387 N.E.2d 223

GENERAL ACCIDENT INSURANCE GROUP, Respondent, v. Celia CIRUCCI et al., Respondents and Aetna Life & Casualty Company, Appellant.

Court of Appeals of New York.

Feb. 6, 1979.

Steven Di Joseph, J. Robert Morris and Thomas R. Newman, New York City, for appellant.

Jeffrey Silberfeld, Garden City, for General Accident Insurance Group, respondent.

OPINION OF THE COURT

PER CURIAM.

On May 20, 1969 respondents, Celia Cirucci and Katherine Cerchione, were injured as a result of an automobile accident with a vehicle operated by Carlos Rodriguez. Respondents served a demand for arbitration on their insurance carrier, General Accident Insurance Group, under the "uninsured motorist" indorsement of their policy. They also commenced a civil action against Rodriguez.

Aetna, insurance carrier of Rodriguez, was first notified of the accident on November 16, 1971 when respondents mailed it a copy of the summons and complaint from the Rodriguez action. After several unsuccessful attempts to locate Rodriguez, Aetna mailed a disclaimer letter to respondents on March 28, 1972 which stated: "We have disclaimed liability by reason of the facts of insured's failure to report this accident to us and failed to cooperate since we were notified of the accident by you."

General Accident in a special proceeding sought to stay arbitration of the "uninsured motorist" claim against it on the ground that recovery could be sought from Aetna under the policy issued to Rodriguez. The issue is whether Aetna's disclaimer was effective.

We agree with the Appellate Division that lack of cooperation of the insured, as a ground for disclaimer, was not supported by legally sufficient evidence, since no showing was made that the insured willfully obstructed the insurance company's investigation (see Thrasher v. United States Liab. Ins. Co., 19 N.Y.2d 159, 168, 278 N.Y.S.2d 793, 799, 225 N.E.2d 503, 507). Indeed appellant does not now press nonco-operation as a basis for reversal.

The only other ground stated in the insurance company's notice of disclaimer, the "insured's failure to report this accident to us", was likewise not effective against the third-party claimants. As noted by the Appellate Division an injured third party may seek recovery from an insured's carrier despite the failure of the insured to provide timely notice of the accident (Lauritano v. American Fid. Fire Ins. Co., 3 A.D.2d 564, 162 N.Y.S.2d 553, affd. 4...