Sevenson Environmental Services, Inc. v. Sirius America Insurance Company
| Decision Date | 10 July 2009 |
| Docket Number | CA 08-02260. |
| Citation | 2009 NY Slip Op 05820,883 N.Y.S.2d 423,64 A.D.3d 1234 |
| Parties | SEVENSON ENVIRONMENTAL SERVICES, INC., et al., Respondents, v. SIRIUS AMERICA INSURANCE COMPANY, Also Known as SIRIUS INSURANCE COMPANY, Appellant, and THOMAS JOHNSON, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Appeal from a judgment (denominated order) of the Supreme Court, Niagara County (Ralph A. Boniello, III, J.), entered August 13, 2008 in a declaratory judgment action. The judgment, insofar as appealed from, granted in part the motion of defendant Thomas Johnson, Inc. for summary judgment and declared that defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is obligated to defend and indemnify defendant Thomas Johnson, Inc. in an underlying action, denied the cross motion of defendant Sirius America Insurance Company, also known as Sirius Insurance Company, for summary judgment, and granted the cross motion of plaintiffs to compel defendant Sirius America Insurance Company, also known as Sirius Insurance Company, to provide complete responses to all outstanding discovery requests.
It is hereby ordered that the judgment insofar as appealed from is unanimously reversed on the law without costs, the motion of defendant Thomas Johnson, Inc. is denied in its entirety and the declaration is vacated, the cross motion of defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is granted and judgment is granted in its favor as follows: It is adjudged and declared that defendant Sirius America Insurance Company, also known as Sirius Insurance Company, is not obligated to defend or indemnify defendant Thomas Johnson, Inc. in the underlying action, and the matter is remitted to Supreme Court, Niagara County, for further proceedings in accordance with the following memorandum: Plaintiffs, Sevenson Environmental Services, Inc. (Sevenson) and The Goodyear Tire and Rubber Company (Goodyear), commenced this action seeking, inter alia, a declaration that defendant Sirius America Insurance Company, also known as Sirius Insurance Company (Sirius), is obligated to defend and indemnify them in an underlying personal injury action. Defendant Thomas Johnson, Inc. (TJI) likewise cross-claimed for a declaration that Sirius is obligated to defend and indemnify it in the underlying action, and thereafter moved for that relief, as well as other relief. Sirius contends on appeal that Supreme Court erred in granting the motion of TJI insofar as it sought that declaration and denying the cross motion of Sirius for summary judgment declaring that it has no such obligation with respect to TJI. We agree, inasmuch as we conclude that Sirius established as a matter of law that it validly disclaimed coverage based on TJI's late notice of the accident.
Pursuant to the terms of its insurance policy with Sirius, TJI was required to notify Sirius of any accident or occurrence "which may result in a claim" as soon as practicable. Compliance with that requirement is a condition precedent to coverage (see Matter of Travelers Ins. Co. [DeLosh], 249 AD2d 924 [1998]) and, "[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy" (Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]). Here, TJI's employee, the plaintiff in the underlying action, was injured in a construction accident on October 6, 2003. TJI learned of the injury within days after the accident but failed to notify Sirius of the accident until December 31, 2004. The excuse of TJI for that delay of nearly 15 months, i.e., that it believed that its employee intended to assert only a workers' compensation claim, is unreasonable as a matter of law (see generally DeLosh, 249 AD2d at 925).
We further conclude that Sirius provided TJI with timely written notice of its disclaimer, in accordance with Insurance Law §...
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