Government Emp. Ins. Co. v. Wilson
| Decision Date | 20 April 1972 |
| Citation | 332 N.Y.S.2d 338,69 Misc.2d 1020 |
| Parties | GOVERNMENT EMPLOYEES INSURANCE COMPANY, Plaintiff, v. PHILIP C. WILSON et al., Defendants. |
| Court | New York Supreme Court |
This is an action commenced by the plaintiff on December 1st, 1970 for a judgment declaring that the plaintiff is not obligated to indemnify or defend the defendants with respect to any liability accruing against any one of them by reason of an accident at the defendant, Philip C. Wilson's home on October 24, 1968, and further declaring that a certain homeowners insurance policy, No. 255491, issued to the defendants, Philip C. Wilson and Mary Wilson, his wife, limited comprehensive personal liability coverage at the time of the accident to the amount of $10,000.00.
An agreed statement of facts has been submitted which shows that on October 24, 1968 the infant defendant, Peter Wilson, then four years old, was injured when his brother, Matthew Wilson, who was then eleven or twelve years old, acting at the request of their mother, Mary Wilson, attempted to start a charcoal fire in the garage of their home. Apparently, Matthew used shellac thinner to help commence the fire, and the resulting flare-up or explosion caused burns to Peter Wilson's face.
It is stipulated that on the date of the accident, the adult defendants, that is, the father and mother of Peter and Matthew, were the owners of a policy of insurance issued by the plaintiff, a homeowners policy, No. H--255491, which, on the face or deck sheet of the policy, provided a basic limit of $10,000.00 personal liability coverage for each occurrence.
On September 4, 1970, the injured infant, Peter Wilson, and his father, acting as his natural guardian, notified the plaintiff of the accident, by way of a letter written by the attorney for the injured infant and his father. This was approximately one year and eleven months after the accident and the plaintiff claims that since this first written notice was not timely plaintiff should be relieved from its obligation to defend or indemnify any of the defendants as a result of any claim that arose out of the accident of October 24, 1968.
The insurance policy in question provides that 'when an occurrence takes place, written notice shall be given by on on behalf of the insured to this Company or any of its authorized agents as soon as practicable.' It has been observed, however, that this language does not require instantaneous notice but rather that notice be given with reasonable dispatch, in view of all the facts and circumstances of each particular case. (See Appleman on Insurance, Section 4734.)
The defendants attempt to excuse a portion of the delay by pointing out that at the time of the accident an unemancipated minor could not maintain an action in New York courts against a parent for a non-willful tort. That doctrine was discarded by the New York Court of Appeals approximately two and a half months after the subject occurrence by its decision in Gelbman v. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529, 245 N.E.2d 192 (Jan. 9, 1969). The defendant Philip Wilson, father of the injured infant, alleges that he first became aware of this change in the law on or about September 1, 1970 and that, therefore, the notice given on his and his son's behalf by their attorney on September 4, 1970 was given 'as soon as practicable'. Still this notice itself was not given until nearly one year and eight months after the Gelbman decision; and during that period and for long years before, an unemancipated infant was permitted to maintain an action against an unemancipated sibling for negligent conduct resulting in injury (Rozell v. Rozell, 281 N.Y. 106, 22 N.E.2d 254 (1939)). Therefore, from the date of the accident forward, a cause of action existed on behalf of the injured infant, Peter Wilson, against his brother Matthew as to which no notice was given until some 22 months later. However, even though an assured may have failed to give notice to the carrier, the injured party has the right to do so (Insurance Law, Section 167(1)(c), (d)) and the standards by which the timeliness of such notice is to be judged are not as stringent as those which apply to notice given by an assured, (Lauritano v. American Fidelity and Casualty Company, 3 A.D.2d 564, 162 N.Y.S.2d 553, affd. 4 N.Y.2d 1028, 177 N.Y.S.2d 530, 152 N.E.2d 546).
The passage of time alone does not make delay unreasonable where justifiable lack of knowledge that coverage existed is shown as in Lauritano and in Mason v. Allstate Ins. Co., 12 A.D.2d 138, 209 N.Y.S.2d 104.
If sufficient excuse can be given for the delay in giving timely notice, such notice may be sufficient.
In Ferguson v. Nationwide Mutual Ins. Co., 61 Misc.2d 912, 307 N.Y.S.2d 347, a 19...
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Allstate Ins. Co. v. Furman, 1
...fulfilled. However, relying on Ferguson v. Nationwide Mut. Ins. Co., 61 Misc.2d 912, 307 N.Y.S.2d 347 and Government Employees Ins. Co. v. Wilson, 69 Misc.2d 1020, 332 N.Y.S.2d 338, the court held that the infant plaintiff would not be "barred" by the delay in reporting the accident prior t......
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Mutual of Enumclaw Ins. Co. v. MacPherson Constr. & Design, Inc.
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Mutual of Enumclaw Insurance Company v. Macpherson Construction & Design, Inc., No. 57820-1-I (Wash. App. 7/16/2007)
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