On April 22, 2008, the Appellate Division 2nd Department decided Desir v. Nationwide Mutual, 2008 N.Y. Slip op. 03578 which involved coverage for an assault. Without providing many of the facts regarding the underlying incident, the court held that the assault did not constitute a covered occurrence and was, in any event, barred by the policy’s intentional act exclusion. Significantly, the court opined that the inclusion of causes of action sounding in negligence and carelessness did not alter the fact that the operative act giving rise to any recovery was the assault, citing Mt.

In Matter of Countrywide v. Henderson, 2008 NY Slip Opinion 03209 (2nd Dept. 2008), the court reversed the trial court and held that the insurer had failed to meet the heavy burden enunciated by the court in Thrasher v. United States Liability Insurance Co. 19 N.Y.2d 159 (1967) necessary to demonstrate a failure to cooperate.

In Kantrow v. Security Mutual Ins. Co., ___ N.Y.S.2d ___, 2008 WL 808953 (2nd Dept. 2008), the court affirmed the insurer’s denial of coverage to the insured parents where, in the underlying action, it was alleged that their minor son had sexually assaulted the plaintiff. The allegations against the parents were of negligent supervision and other negligent acts. Security Mutual moved for summary judgment arguing the conduct did not constitute an "occurrence" and was excluded by the intentional act exclusion to the policy.

In U.S. Underwriters v. Carson, 2008 WL 740337 (3rd Dept. 2008), the court held that questions of fact were presented as to the timeliness of notice provided by the insured and by the injured party. The defendant insured owned a bar. While he was on vacation, one of his employees served a customer, who left the bar and was involved in a motor vehicle accident, killing himself and the operator of another vehicle. The employee gave a statement to police where she indicated she served the deceased several beers and a shot, but did not believe he was intoxicated.

The 2nd Circuit Court of Appeals has certified to the New York Court of Appeals, the question of whether an insurer’s disclaimer should be sustained where the insurer cited the insured’s failure to comply with the policy condition requiring the insured to timely notify the insurer that a suit was commenced, but the insured did not receive the lawsuit until the default motion was made. Briggs Avenue, LLC v. Insurance Corporation of Hanover, (2008).

The long awaited decision of the New York Court of Appeals in Bi-Economy v. Harleysville, 2008 WL 423451 was issued on February 19, 2008. New York’s highest court held that under the circumstances presented, the insured had stated a viable claim for consequential damages in the breach of contract action, a departure from New York law. Previously, only New York’s 1st Department in Acquista v. New York Life Insurance, 285 A.D.2d 73 had recognized the availability of consequential damages for an insurer’s breach of the duty to investigate, bargain and settle claims in good faith.

In Cendant Car Rental Group v. Liberty Mutual, 2008 N.Y. Slip Op 01094, the Appellate Division 2nd Department on February 5, 2008 reversed the trial court and denied plaintiff's motion for summary judgment. Was this because of a novel argument not considred by the trial court? Read on.

Lewis Johs recently successfully litigated the inapplicability of an automobile policy to the acts of the insured in striking a number of pedestrians with his automobile in Manhattan. The insured struck some 27 pedestrians during two rampages with his motor vehicle on February 12 and 14, 2002. Relying upon a statement that the insured had given a detective several days after the incident and his conduct in driving his automobile at high speeds in an area crowded with pedestrians, the court noted that any reasonable person would expect such conduct to result in bodily injury.

In York Speciality Food, Inc. v. Tower Insurance Company of New York, 2008 NY Slip Opinion 00614 decided by New York's Appellate Division, 1st Department on January 31, 2008, the court held that notice by the insured provided 8 months after the loss was untimely as a matter of law, noting that the insurer was not obligated to demonstrate that it was prejudiced by the untimely notice, which as we know, will likely change when New York abandons its status as one of the few states that does not require such a showing by amending Insurance Law 3420.

In a disclaimer premised upon the insured's failure to cooperate in breach of policy conditions, the 2nd Department held the insurer had established its insured's failure to cooperate--no easy feat in New York-- but nonetheless held the carrier was obligated to defend and indemnify its insured in two underlying actions, finding the carrier's delay in disclaiming was unreasonable. In Continental Casualty v. Stradford, 2007 N.Y.