State Farm Mut. Auto. Ins. Co. v. Brown
| Decision Date | 21 May 1964 |
| Citation | 250 N.Y.S.2d 244,21 A.D.2d 742 |
| Parties | STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Willie BROWN, also known as James Casey, also known as James Cassion, also known as James Caison, Elaine McAvoy, Eleanor McAvoy, individually and as Guardian ad Litem of Katherine McAvoy, Charles Barth Engert and Ralph H. Engert, Respondents, and Motor Vehicle Accident Indemnity Corporation, Intervenor-Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Bayer & Vogt, Rochester, for appellant (Richard G. Vogt, Rochester, of counsel).
Traynor & Skehan, Rochester, for intervenor-defendant-respondent (J. Frank Traynor, Rochester, of counsel).
Before WILLIAMS, P. J., and GOLDMAN, HENRY, NOONAN and DEL VECCHIO, JJ.
In Wallace v. Universal Insurance Co., 18 A.D.2d 121, 238 N.Y.S.2d 379, affd. 13 N.Y.2d 978, 244 N.Y.S.2d 779, relied upon by respondent, the insured furnished a written statement of facts which if believed could exculpate him, verified an answer and discussed the case with insurer's attorney in anticipation of an examination before trial, but the insurer was not diligent in using the information available to locate him to appear as a witness at the examination before trial. Here, in reporting the accident the following day to his insurance agent, who prepared the MV 104, the insured falsely stated that another person was driving the car and that he was a passenger. In his statement to the insurer about 6 months later he said that his cousin, a soldier stationed in Florida, was the driver. It developed that the alleged driver was a mythical person and that the insured was the driver. Therefore the Wallace case has no application.
We conclude that the attitude of the insured was one of 'willful and avowed obstruction' (Coleman v. New Amsterdam Casualty Co., 247 N.Y. 271, 276, 160 N.E. 367, 369, 72 A.L.R. 1443), that by making false statements concerning the facts of the accident the insured breached the condition of cooperation and seriously prejudiced the insurer in handling the claims and lawsuits arising out of the accident. (See United States Fidelity and Guaranty Company v. Von Bargen, 7 A.D.2d 872, 182 N.Y.S.2d 121, affd. 7 N.Y.2d 932, 197 N.Y.S.2d 736; General Mutual Insurance Company v. Grempel, 17 A.D.2d 650, 230 N.Y.S.2d 652.)
Judgment unanimously reversed on the law and facts without costs of this appeal to any party and declaratory judgment granted in favor of plaintiff in...
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