Nationwide Mutual Insurance v. Vivas

Appellate Division of the Supreme Court of New York

Nationwide Mutual Insurance v. Vivas

267 A.D.2d 105, 699 N.Y.S.2d 410, 1999 N.Y. App. Div. LEXIS 12998

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

DecidedDecember 14, 1999

StatusPublished

This text of 267 A.D.2d 105 (Nationwide Mutual Insurance v. Vivas) 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

Nationwide Mutual Insurance v. Vivas, 267 A.D.2d 105, 699 N.Y.S.2d 410, 1999 N.Y. App. Div. LEXIS 12998 (N.Y. Ct. App. 1999).

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Opinion

—Order and judgment (one paper), Supreme Court, New York County (Harold Tompkins, J.), entered on or about April 15, 1998, which granted the application of petitioner insurer Nationwide Mutual Insurance Company to permanently stay arbitration of respondent insured Vivas’s claim for supplementary uninsured motorist benefits, unanimously affirmed, without costs.

In the aftermath of an automobile accident in which she was allegedly injured, respondent Vivas commenced an action to recover for her injuries against the owner of the car in which she was riding at the time of the accident and the owner and driver of the other vehicle involved in the accident. Respondent, as an insured, also filed a claim for supplementary uninsured motorist benefits under a policy issued by petitioner insurer. The subject policy, however, required as a condition of payment of supplementary uninsured motorist benefits that "[i]f the insured * * * brings any lawsuit against any person or organization legally responsible for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with the lawsuit shall be forwarded immediately to us by the insured or the insured’s legal representative”. As it is clear both that this proviso is devoid of ambiguity and that it was not complied with, petitioner insurer’s application to stay arbitration of respondent’s claim for supplementary uninsured motorist benefits was properly granted. Respondent has oifered no excuse for her failure to comply with the notice provision and “[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy [citations omitted], and the insurer need not show prejudice before it can assert the defense of noncompliance” (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440).

[106]*106We have reviewed respondent’s remaining arguments and find them to be unavailing. Concur — Rosenberger, J. P., Williams, Tom, Mazzarelli and Buckley, JJ.

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—Order and judgment (one paper), Supreme Court, New York County (Harold Tompkins, J.), entered on or about April 15, 1998, which granted the application of petitioner insurer Nationwide Mutual Insurance Company to permanently stay arbitration of respondent insured Vivas’s claim for supplementary uninsured motorist benefits, unanimously affirmed, without costs.

In the aftermath of an automobile accident in which she was allegedly injured, respondent Vivas commenced an action to recover for her injuries against the owner of the car in which she was riding at the time of the accident and the owner and driver of the other vehicle involved in the accident. Respondent, as an insured, also filed a claim for supplementary uninsured motorist benefits under a policy issued by petitioner insurer. The subject policy, however, required as a condition of payment of supplementary uninsured motorist benefits that "[i]f the insured * * * brings any lawsuit against any person or organization legally responsible for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with the lawsuit shall be forwarded immediately to us by the insured or the insured’s legal representative”. As it is clear both that this proviso is devoid of ambiguity and that it was not complied with, petitioner insurer’s application to stay arbitration of respondent’s claim for supplementary uninsured motorist benefits was properly granted. Respondent has oifered no excuse for her failure to comply with the notice provision and “[a]bsent a valid excuse, a failure to satisfy the notice requirement vitiates the policy [citations omitted], and the insurer need not show prejudice before it can assert the defense of noncompliance” (Security Mut. Ins. Co. v Acker-Fitzsimons Corp., 31 NY2d 436, 440).

[106]*106We have reviewed respondent’s remaining arguments and find them to be unavailing. Concur — Rosenberger, J. P., Williams, Tom, Mazzarelli and Buckley, JJ.

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Bluebook (online)

267 A.D.2d 105, 699 N.Y.S.2d 410, 1999 N.Y. App. Div. LEXIS 12998, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nationwide-mutual-insurance-v-vivas-nyappdiv-1999.

Opinion

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