Preisch v. Continental Cas. Co., s. 1
| Decision Date | 17 December 1976 |
| Docket Number | Nos. 1,2,s. 1 |
| Citation | 389 N.Y.S.2d 700,55 A.D.2d 117 |
| Parties | Rose M. PREISCH, Individually and as Administratrix of the Goods, Chattels and Credits of the Estate of Richard O. Preisch, Deceased, Respondent, v. CONTINENTAL CASUALTY COMPANY, Appellant, and Harvey H. Pfennig, Inc. and Clarence D. Wagner, Respondents. Rose M. PREISCH, Individually and as Administratrix of the Goods, Chattels and Credits of the Estate of Richard O. Preisch, Deceased, Respondent, v. CONTINENTAL CASUALTY COMPANY, Respondent, and Harvey H. Pfennig, Inc. and Clarence D. Wagner, Appellants. |
| Court | New York Supreme Court — Appellate Division |
O'Shea, Adamson, Reynolds & Napier, Buffalo (Philip J. O'Shea, Buffalo, of counsel), for Continental Casualty Co.
Jaeckle, Fleischmann & Mugel, Buffalo (J. Edmund DeCastro, Jr., Buffalo, of counsel), for Harvey H. Pfennig, Inc. and Clarence D. Wagner.
Terry D. Smith, Buffalo, for Rose M. Preisch.
Before MARSH, P.J., and MOULE, CARDAMONE, SIMONS and MAHONEY, JJ.
This is an appeal from two orders of the Supreme Court, Niagara County which (1) granted judgment in favor of plaintiff, Rose M. Preisch, against defendant, Continental Casualty Company (Continental), declaring Continental's disclaimer of liability invalid and directing it to pay plaintiff the sum of $366,781.05 with interest and (2) denied summary judgment against Continental which had been sought by the defendants, Harvey H. Pfennig, Inc. (Pfennig Inc.) and Clarence D. Wagner (Wagner). This action was commenced by a summons and complaint dated May 20, 1975, the pertinent allegations of which were that the plaintiff was the widow and administratrix of Richard O. Preisch who died as the result of injuries sustained in an automobile accident on November 8, 1971 when his vehicle collided with another owned by Pfennig, Inc. and operated by Wagner; that prior to the date of the accident Continental issued an endorsement to a policy of insurance entitled 'Umbrella Excess Third Party Liability Policy' naming, among others, Pfennig, Inc. as a named insured; that said policy was excess insurance over and above a policy of insurance issued to defendant Pfennig, Inc. by Lumbermen's Casualty Company (Lumbermen's). An action was commenced by plaintiff against Pfennig, Inc. and Wagner seeking damages for the wrongful death of Richard O. Preisch, which action resulted in a jury verdict on December 5, 1973 in favor of plaintiff and against both defendants in the sum of $401,320.00. Thereafter, judgment was entered in favor of the plaintiff against both Pfennig, Inc. and Wagner on March 22, 1974 in the total sum of $466,781.05 and a copy of said judgment with notice of entry was served by mail on the attorneys for the defendants. An appeal was taken by the defendants and the judgment was affirmed by us on October 18, 1974 (Preisch v. Harvey H. Pfennig, Inc., 46 A.D.2d 741, 362 N.Y.S.2d 437). Pursuant to the terms of its policy, Lumbermen's partially satisfied the judgment to the extent of $128,583.70, leaving unsatisfied a judgment of $338,197.35. Continental asserts effective disclaimer of liability to defendant Pfennig, Inc., alleging that it did not receive timely and proper notice of the accident or of the lawsuit which sought to recover damages. Continental received written notice of the accident and suit no later than December 7, 1973 but has not yet given written notice of such disclaimer to plaintiff or to the infants or their guardians. The only written notice of disclaimer ever given to any of the attorneys for plaintiff by Continental was in a letter to plaintiff's attorney dated April 7, 1975. On March 24, 1975 a copy of the aforementioned judgment was served on Continental; more than 30 days have elapsed since said service; and the balance of the judgment remains unsatisfied. Because of the failure of Continental to give written notice of the disclaimer pursuant to Insurance Law, § 167, plaintiff asks for judgment in the amount stated.
Plaintiff, in a second cause of action, alleges that defendant Wagner was an 'insured' under the policy issued by Continental and that he was not given written notice of disclaimer by Continental prior to May 14, 1974; that she received no written notice other than a letter of disclaimer written to her attorney on April 7, 1975; and that Continental did not give notice as soon as reasonably possible, as a result of which it was obligated to pay the unsatisfied judgment against Wagner, and that Continental is similarly obligated relative to Pfennig, Inc. The complaint alleges a fourth and fifth cause of action asserting that the disclaimers of Continental are invalid.
After denying material allegations of the complaint Continental in its answer, which contained a cross-claim against Pfennig, Inc. and Wagner set forth five affirmative defenses, namely (1) that the policy contained certain conditions relative to the obligation of the insured to give written notice of an accident and requiring the forwarding of any notice of claim and summons to it; that compliance with this condition was a precedent to its liability under the policy; that defendan Pfennig, Inc. and Wagner failed to comply and forfeited coverage; that their broker wrote a letter to Continental advising of the impending trial which was not received until after said trial; that plaintiff was bound by the aforementioned acts which resulted in a forfeiture of coverage for Pfennig, Inc. and Wagner precluding recovery and that Continental, as soon as was reasonably possible, notified the insureds in writing that it denied coverage; (2) that failure of plaintiff to protect her rights under Continental's policy amounted to a waiver; (3) that plaintiff's fault caused or contributed to the failure of the named insureds to comply with the conditions of defendant's policy and that Insurance Law, § 167(8) is inapplicable; (4) that plaintiff, in lieu of an undertaking to stay execution of the judgment, was given an assignment of the stock of Pfennig, Inc., or other property which had value in excess of the amount of said judgment still unpaid; that this assignment was conditioned upon said judgment being affirmed on appeal and, since the judgment was affirmed, the plaintiff is not an unsatisfied judgment creditor and lacks standing to maintain this action.
Defendants Pfennig, Inc. and Wagner in answer to the cross-claim admitted that Continental received written notice of said accident, claim and suit no later than December 7, 1973, and further alleged that Continental received notice by or on behalf of the insureds through agents of Continental on November 8, 1971.
On plaintiff's motion for summary...
To continue reading
Request your trial
-
Zappone v. Home Ins. Co.
...or any other claimant.' It is settled law that the subdivision applies whether the policy is primary or excess (Preisch v. Continental Cas. Co., 55 A.D.2d 117, 389 N.Y.S.2d 700, mot. for lv. to app. den. 41 N.Y.2d 802, 393 N.Y.S.2d 1026, 362 N.E.2d 626), that if the subdivision applies it i......
-
Hartford Acc. & Indem. Co. v. J.J. Wicks, Inc.
...Rest., 69 A.D.2d 260, 263, 419 N.Y.S.2d 163; Foremost Ins. Co. v. Sotiriou, 66 A.D.2d 812, 411 N.Y.S.2d 362; Preisch v. Continental Cas. Co., 55 A.D.2d 117, 122, 389 N.Y.S.2d 700). Nor, does the notice to Wicks operate as a disclaimer as to any claimant who has not received proper notice fr......
-
Zappone v. Home Ins. Co.
...is clear and unequivocal, with no exceptions or exclusions, it applies to excess as well as primary insurers (Preisch v. Continental Cas. Co., 55 A.D.2d 117, 121, 389 N.Y.S.2d 700, mot. for lv. to app. den. 41 N.Y.2d 802; cf. Home Ind. Co. v. State Farm Mut. Auto. Ins. Co., 64 A.D.2d 212, 4......
-
Servidone Const. Corp. v. Security Ins. Co. of Hartford
...time, however, the court refrains from making any declaration of Servidone's rights against Continental, Presich v. Continental Cas., 55 A.D.2d 117 at 122, 123, 389 N.Y.S.2d 700. IV. This court holds: (1) it has jurisdiction to entertain this summary judgment motion for a declaratory judgme......