U.S. Underwriters Insurance v. Carson

49 A.D.3d 1061, 853 N.Y.2d 700
CourtAppellate Division of the Supreme Court of the State of New York
DecidedMarch 20, 2008
StatusPublished
Cited by7 cases

This text of 49 A.D.3d 1061 (U.S. Underwriters Insurance v. Carson) 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
U.S. Underwriters Insurance v. Carson, 49 A.D.3d 1061, 853 N.Y.2d 700 (N.Y. Ct. App. 2008).

Opinion

Malone Jr., J.

Defendant Robert Carson is the owner of a bar known as Maria’s Tavern located in the Village of Watkins Glen, Schuyler County. On the evening of April 17, 2002, while Carson was on vacation in Florida, Catrina Decker was bartending and served alcoholic beverages to Timothy Cooke and some of his friends. During the early morning hours of April 18, 2002, approximately [1062]*1062one hour after Cooke had left the bar, he was killed in an automobile accident in Tompkins County when the vehicle he was driving struck a vehicle driven by Gerald Check. Check was also killed in the accident, but his father, who was a passenger in the car, survived.

Later that morning at approximately 6:30 a.m., Decker was informed by her husband, a Watkins Glen police officer, of the fatal accident involving Cooke. Later that day, she was contacted by an investigator with the Schuyler County Sheriffs Department and complied with his request to give a statement about Cooke’s whereabouts and conduct the night before. Shortly thereafter, she advised Carson, who was still in Florida, of the fatal accident and that she had given a statement to police. She had a further conversation with Carson about the incident when he returned from Florida about a week later.

Carson did not hear anything else about the accident until January 9, 2003, when he received a letter from Ransom Reynolds, an attorney for Check’s estate, advising of a potential legal claim. Carson promptly notified his insurance agent, and the letter was eventually forwarded to plaintiff on February 21, 2003. Meanwhile, Reynolds had learned through his own investigation that plaintiff was Carson’s liquor liability insurance carrier and he notified plaintiff by letter dated March 19, 2003 of the potential claim. Plaintiff issued two letters, one on March 28, 2003 and a second on April 7, 2003, both disclaiming coverage based upon Carson’s failure to provide plaintiff with notice of the injury forming the basis for the claim as soon as practicable as required by the policy.

Plaintiff then commenced the instant action against Carson, Check’s estate and Check’s family members seeking a judgment declaring that it had no duty to provide either a defense or indemnification for any personal injuries or wrongful death resulting from the accident. Following joinder of issue, plaintiff moved, among other things, for summary judgment. Carson cross-moved for summary judgment, as did Check’s estate. Carson also sought a ruling that plaintiff’s disclaimer was untimely. Supreme Court found that questions of fact existed as to the timeliness of the notices provided by Carson and Check’s estate, but ruled that plaintiffs disclaimer was not untimely. Consequently, it denied the motion and cross motions, resulting in these cross appeals.

We turn first to plaintiffs contention that Carson failed as a matter of law to comply with the policy provisions requiring him to notify plaintiff “as soon as practicable” of any injury that might result in a claim. We have observed that “ ‘[w]here a [1063]*1063policy of liability insurance requires that notice of an occurrence be given “as soon as practicable,” such notice must be accorded the carrier within a reasonable period of time’ ” (Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d 1117, 1118 [2007], quoting Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743 [2005]). An insured’s delay in providing timely notice, however, may be excused “where the insured has ‘a good-faith belief in nonliability,’ provided that belief is reasonable” (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d at 743, quoting Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 441 [1972]; see Insurance Law § 3420 [a] [4]). “[T]he focus of such an inquiry is its reasonableness under the circumstances, not whether the insured should have anticipated the possibility of a lawsuit” (Spa Steel Prods. Co. v Royal Ins., 282 AD2d 864, 865 [2001]). Significantly, the question of reasonableness is generally a question of fact for a jury (see Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d at 1119; Hudson City School Dist. v Utica Mut. Ins. Co., 241 AD2d 641, 642 [1997]).

The insured, Carson, was first aware of the fatal accident when Decker called him the day after it happened. During this conversation, Decker indicated that she had given a written statement to the police, but was not provided with any details concerning the accident or if alcohol was involved. She further told Carson that Cooke came to the bar at 10:30 p.m. and stayed until 12:45 a.m., during which time she served him four or five beers and one shot of rum. She stated that Cooke did not appear intoxicated when he left the bar and appeared to be on foot. When he returned from Florida approximately one week after the accident, Carson had a brief conversation with Decker and reviewed her written statement, but he was never questioned by law enforcement officials and did not hear any media reports about the accident. In fact, he did not hear anything else about the accident until approximately 10 months later when he received the letter from Reynolds, which he promptly forwarded to his insurance agent.

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Cite This Page — Counsel Stack

Bluebook (online)
49 A.D.3d 1061, 853 N.Y.2d 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/us-underwriters-insurance-v-carson-nyappdiv-2008.