Devereaux v. Agway Insurance

190 A.D.2d 1050, 594 N.Y.S.2d 1009, 1993 N.Y. App. Div. LEXIS 1265

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 5, 1993
• Status: Published

Opinion

— Order unanimously affirmed with costs. Memorandum: Defendant’s motion for summary judgment was properly denied. An insured who accepts a settlement of a claim against a third-party tort-feasor without protecting the insurer’s subrogation rights or complying with the consent to settlement provision of the insurance policy generally is precluded from asserting an underinsured motorist claim against the insurer (see, Weinberg v Transamerica Ins. Co., 62 NY2d 379; Matter of Nationwide Mut. Ins. Co. [Taylor], 177 AD2d 929, lv denied 80 NY2d 751; Matter of CNA Ins. Cos., 170 AD2d 794). Supreme Court properly concluded, however, that there are triable issues of fact regarding whether defendant acted in good faith when it delayed its consent to settlement pending investigation (see, Matter of Nationwide Mut. Ins. Co., supra; Matter of CNA Ins. Cos., supra) and whether defendant’s delay in making its decision was unreasonable (see, Matter of Blee v State Farm Mut. Auto. Ins. Co., 168 AD2d 615; Huth v Nationwide Ins. Co., 148 Misc 2d 1003; Merchants Mut. Cas. Co. v Wildman, 21 Misc 2d 1073, affd 12 AD2d 664, affd 9 NY2d 985). (Appeal from Order of Supreme Court, Herkimer County, Parker, J. — Dismiss Complaint.) Present — Callahan, J. P., Green, Lawton, Boehm and Doerr, JJ.