Sparacino v. Pawtucket Mutual Insurance

50 F.3d 141, 148 L.R.R.M. (BNA) 2838
CourtCourt of Appeals for the Second Circuit
DecidedMarch 13, 1995
DocketNo. 701, Dockets 94-7487L, 94-7609
StatusPublished
Cited by1 cases

This text of 50 F.3d 141 (Sparacino v. Pawtucket Mutual Insurance) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sparacino v. Pawtucket Mutual Insurance, 50 F.3d 141, 148 L.R.R.M. (BNA) 2838 (2d Cir. 1995).

Opinion

HEANEY,' Senior Circuit Judge:

Frank Sparaeino, president of the Newspaper and Mail Deliverers’ Union of New York and Vicinity (“the Union”), sought a declaration that Pawtucket Mutual Insurance Company had a duty to defend and indemnify the Union in a personal injury action. The district court granted summary judgment for Pawtucket, finding that the insurance company had no obligation to defend or indemnify the Union, its insured, because the Union had not given Pawtucket timely notice of the occurrence of the personal injury as required by its insurance contract. We reverse.

The underlying personal injury action arose when union member Robert J. Boyle, who was picketing at a job site, hurled a rock through a bus window. The rock struck Gary Lee Mauney in the skull and severely injured him. Boyle later pleaded guilty to second degree assault and possession of a deadly weapon. Approximately one year after the incident, Mauney brought an action against the Union alleging negligent supervision of the picketers and ratification of Boyle’s assault upon Mauney.

To obtain coverage under its insurance policy, the Union must establish that it complied with Section IV.2 of the policy. Under this section the Union has a duty to notify the insurer “as soon as practicable of an ‘occurrence’ or an offense which may result in a claim.” The Union also has a duty to notify the insurer “as soon as practicable” when “a claim is made or ‘suit’ is brought” against the Union. The latter duty was clearly fulfilled properly and promptly when the Union provided immediate notice to the insurer of Mauney’s suit against the Union.

We focus then on whether the Union notified Pawtucket of the “‘occurrence’ or offense” or was excused from doing so. On appeal the Union argues, first, that actual notice was given to Pawtucket soon after the [143]*143incident and, second, that any delay in providing notice was excused by its reasonable belief that it bore no liability for this incident and, in the alternative, that its insurance policy did not provide coverage for the incident. We need not address the first contention, because we hold that the Union’s delayed notice was reasonable under the circumstances and therefore excused.

The district court granted summary judgment for Pawtucket on the ground that the Union had “no valid excuse for failing to give notice (which was probably due to the belief that there was no coverage, which may in fact be the case)_” Sparacino v. Pawtucket Mut. Ins. Co., 93 Civ. 5014 (GLG), slip op. at 5 (S.D.N.Y. Apr. 12, 1994). The court therefore concluded that the Union “is not entitled to coverage because of its failure to give timely notice.” Id. We review de novo the district court’s grant of summary judgment. Ogden Corp. v. Travelers Indem. Co., 924 F.2d 39, 41 (2d Cir.1991).

Under New York law, compliance with a notice-of-occurrence provision in an insurance policy , is a condition precedent to an insurer’s liability under the policy. Commercial Union Ins. Co. v. International Flavors & Fragrances, Inc., 822 F.2d 267, 271 (2d Cir.1987); Utica Mut. Ins. Co. v. Fireman’s Fund Ins. Cos., 748 F.2d 118, 121 (2d Cir.1984); Security Mut. Ins. Co. v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 904, 293 N.E.2d 76, 78 (1972). An insured’s failure to give timely notice to its insurer may be excused, however, by proof that the insured either lacked knowledge of the occurrence or had a reasonable belief of nonliability. Commercial Union Ins., 822 F.2d at 271; Security Mut. Ins., 340 N.Y.S.2d at 904-05, 293 N.E.2d at 78-79. That is, a delay will be excused if the insured “in good faith reasonably believes there is no policy coverage or that the insured was not liable on the main action.” Kason v. City of New York, 83 Misc.2d 810, 373 N.Y.S.2d 456, 459 (N.Y.Sup.Ct.1975) (citing cases); accord Beach Haven Apartments v. Allcity Ins. Co., 182 A.D.2d 658, 581 N.Y.S.2d 689, 690 (1992) (“[T]he insured’s good-faith belief that it is not liable will excuse a failure to give timely notice if the belief is reasonable under all the circumstances of the case.”). The test for determining whether the notice provision has been triggered is whether the circumstances known to the insured at that time would have suggested to a reasonable person the possibility of a claim. Commercial Union Ins., 822 F.2d at 272; Utica Mut. Ins., 748 F.2d at 121-22. Where the insured’s excuse is not valid, the insurer need not demonstrate prejudice before it can assert the defense of noncompliance by the insured. Security Mut. Ins., 340 N.Y.S.2d at 905, 293 N.E.2d at 78.

We analyze the Union’s asserted excuses along two lines: First, did the Union have a good faith, reasonable belief that it was not covered? Second, and in the alternative, did the Union have a good faith, reasonable belief that it was not liable for an intentional tort (and crime) committed by one of its members?

The Union reported the rock-throwing incident to its insurance broker, Richard Dov-ner, shortly after it occurred. A couple of days later Dovner informed the Union in writing that the policy did not cover any injuries in connection with this incident:

As per our conversation of 6/29/92 the general liability policy with Pawtucket Mutual only covers the Labor union Office for bodily injury and/or property damage. It will not pick up any coverage for the rock throwing incident. The gentleman that is involved may want to contact his Homeowners ins. carrier. There “maybe” coverage afforded under that policy.

Dovner Memo, of July 1, 1992, Jt.App. 171.

As the court recognized in Universal Underwriters Ins. Co. v. Patriot Ambulette, Inc., 149 A.D.2d 500, 539 N.Y.S.2d 981, 982 (1989), it is reasonable for an insured to rely on statements of an insurance broker. In that case the owner of a vehicle involved in an accident immediately contacted his insurance broker, but the broker mistakenly notified the wrong insurance company. Although the insurer did not receive actual notice of the accident until five months later, the court held that the delay in providing notice was not unreasonable under all of the circumstances.

[144]*144The Union here relied on its broker’s broad and unequivocal statement that “the general liability policy with Pawtucket Mutual only covers the Labor union Office for bodily injury and/or property damage” and “will not pick up any coverage for the rock throwing incident.” Although the broker was apparently mistaken in his interpretation of the scope of the insurance contract, it was reasonable for the Union to rely on the statement and to believe that the policy did not cover any aspect of the rock-throwing incident. We conclude that the Union’s belief in noncoverage was reasonable under the circumstances presented here.

We also conclude, in the alternative, that the Union’s delay in notifying Pawtucket is excused by its belief that it bore no liability for this incident. Under New York law, a reasonable belief in nonliability constitutes a valid excuse for failure of or delay in notification. Beach Haven Apartments, 581 N.Y.S.2d at 690.

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50 F.3d 141, 148 L.R.R.M. (BNA) 2838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sparacino-v-pawtucket-mutual-insurance-ca2-1995.