In re the Arbitration between Nationwide Mutual Insurance & Tarsia

Appellate Division of the Supreme Court of New York

In re the Arbitration between Nationwide Mutual Insurance & Tarsia

265 A.D.2d 936, 695 N.Y.S.2d 811, 1999 N.Y. App. Div. LEXIS 10088

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 1, 1999

StatusPublished

This text of 265 A.D.2d 936 (In re the Arbitration between Nationwide Mutual Insurance & Tarsia) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re the Arbitration between Nationwide Mutual Insurance & Tarsia, 265 A.D.2d 936, 695 N.Y.S.2d 811, 1999 N.Y. App. Div. LEXIS 10088 (N.Y. Ct. App. 1999).

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Opinion

—Judgment insofar as appealed from unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in denying petitioner’s application for a permanent stay of arbitration. Respondent commenced an action seeking damages for injuries he sustained when he was struck by a car. He thereafter entered into a settlement of that action and executed a general release in favor of the driver of the car and the driver’s insurance carrier. In doing so, respondent breached his contract with petitioner, his own insurance carrier, by failing to provide notice of the action or settlement and failing to protect petitioner’s subrogation rights (see, Weinberg v Transamerica Ins. Co., 62 NY2d 379; Matter of Travelers Ins. Co. [Magyar], 217 AD2d 954). Petitioner properly disclaimed coverage under the supplemental uninsured motorists (SUM) endorsement based upon respondent’s failure to provide notice of the action and the settlement thereof (see, Burke v Liberty Mut. Ins. Co., 201 AD2d 773; Matter of Travelers Ins. Co. [Magyar], supra; Matter of Allstate Ins. Co. v Bruzzano, 212 AD2d 528). The disclaimer is required to be made “as soon as is reasonably possible” (Insurance Law § 3420 [d]) after “the point in time when the insurer is possessed of sufficient facts upon which to base a denial or disclaimer” (State Farm Mut. Auto. Ins. Co. v Clift, 249 AD2d 800, 801). The letter of respondent advising petitioner that respondent was injured in an accident and might have a potential claim under the SUM endorsement to the policy was insufficient to apprise petitioner of the pendency and settlement of the action. Petitioner’s disclaimer of coverage, made one day after petitioner learned of the action and settlement, was timely (cf., Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, rearg denied 47 NY2d 951). (Appeal from Judgment of Supreme Court, Onondaga County, Elliott, J.—

[937]*937Arbitration.) Present — Lawton, J. P., Hayes, Pigott, Jr., Hurl-butt and Scudder, JJ.

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—Judgment insofar as appealed from unanimously reversed on the law without costs and petition granted. Memorandum: Supreme Court erred in denying petitioner’s application for a permanent stay of arbitration. Respondent commenced an action seeking damages for injuries he sustained when he was struck by a car. He thereafter entered into a settlement of that action and executed a general release in favor of the driver of the car and the driver’s insurance carrier. In doing so, respondent breached his contract with petitioner, his own insurance carrier, by failing to provide notice of the action or settlement and failing to protect petitioner’s subrogation rights (see, Weinberg v Transamerica Ins. Co., 62 NY2d 379; Matter of Travelers Ins. Co. [Magyar], 217 AD2d 954). Petitioner properly disclaimed coverage under the supplemental uninsured motorists (SUM) endorsement based upon respondent’s failure to provide notice of the action and the settlement thereof (see, Burke v Liberty Mut. Ins. Co., 201 AD2d 773; Matter of Travelers Ins. Co. [Magyar], supra; Matter of Allstate Ins. Co. v Bruzzano, 212 AD2d 528). The disclaimer is required to be made “as soon as is reasonably possible” (Insurance Law § 3420 [d]) after “the point in time when the insurer is possessed of sufficient facts upon which to base a denial or disclaimer” (State Farm Mut. Auto. Ins. Co. v Clift, 249 AD2d 800, 801). The letter of respondent advising petitioner that respondent was injured in an accident and might have a potential claim under the SUM endorsement to the policy was insufficient to apprise petitioner of the pendency and settlement of the action. Petitioner’s disclaimer of coverage, made one day after petitioner learned of the action and settlement, was timely (cf., Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, rearg denied 47 NY2d 951). (Appeal from Judgment of Supreme Court, Onondaga County, Elliott, J.—

[937]*937Arbitration.) Present — Lawton, J. P., Hayes, Pigott, Jr., Hurl-butt and Scudder, JJ.

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265 A.D.2d 936, 695 N.Y.S.2d 811, 1999 N.Y. App. Div. LEXIS 10088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-arbitration-between-nationwide-mutual-insurance-tarsia-nyappdiv-1999.

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