The 4th Department concluded there was no duty to defend or indemnify the insured in State Farm v. Whiting, 2008 NY Slip Op 06020 (4th Dept. 2008), distinguishing the Court of Appeals’ decision in Automobile Insurance Co of Hartford v. Cook, 7 NY3d 131. The insured had testified that he intended to hit the claimant who was advancing toward him and that he knew the claimant could be hurt from his punch.

In US Underwriters Insur. Co. v. Ziering decided by the United States District Court for the Eastern District of New York on May 28, 2008, the court held that US Underwriters was obligated to provide litigation guidelines, manuals, reports, correspondence, investigation and reports from underlying counsel to Underwriters relating to the underlying property damage action because the same Underwriters claims examiner was controlling both the underlying litigation as well as the coverage action.

I have had some requests for the text of the bill and so it follows:

A11541 Memo:
BILL NUMBER:A11541

TITLE OF BILL: An act to amend the civil practice law and rules and the
insurance law, in relation to liability insurance policies

Purpose

This bill: (1) permits a party suing an insured in a personal injury or
wrongful death case to commence a simultaneous declaratory judgment
action against the defendant`s insurer, in limited circumstances, to
challenge the insurer`s denial of coverage based on the failure to

In US Underwriters Insur. Co. v. Ziering decided by the United States District Court for the Eastern District of New York on May 28, 2008, the court held that US Underwriters was obligated to provide litigation guidelines, manuals, reports, correspondence, investigation and reports from underlying counsel to Underwriters relating to the underlying property damage action because the same Underwriters claims examiner was controlling both the underlying litigation as well as the coverage action.

We have learned that the prejudice legislation discussed in earlier posts has passed both houses of the New York Legislature and will now await the Governor's signature. For details of the legislation, visit earlier posts or e-mail me at eafitzpatrick@lewisjohs.com

In Young Israel v. Guideone Mutual Insurance Company, 2008 WL 2277599 (1st Dept. 2008), the court reversed the trial court and held that the insured's 40 day delay in notifying the insurer of the accident was unreasonable as a matter of law.

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.