|
Commercial General
Liability |
Timely Notice Condition |
|
Requirement To Defend And
Indemnify |
|
Hermitage Insurance Company
(Hermitage) insured premises owned by 120 Whitehall Realty Associates LLC
(Whitehall). Whitehall hired a construction company to perform work at the
premises. Juan Godoy, an employee of the construction company, was injured
while working at the premises. Although Whitehall management knew of the
accident the day it occurred, it did not notify Hermitage for over
two-and-a-half months.
Hermitage denied coverage.
It claimed, among other things, that notice was not timely as the policy
required. Whitehall filed a lawsuit against its insurance agency, the
Grober-Imbey Agency, Inc. (Grober-Imbey), as well as Hermitage. It claimed that
Hermitage was required to defend and indemnify it and that the Grober-Imbey did
not secure an adequate insurance policy. The lower court found in favor of
Hermitage and Grober-Imbey. Whitehall appealed.
On appeal the Supreme Court,
Appellate Division, Second Department, New York, found that Whitehall did not
provide a valid excuse for its delay in notifying Hermitage of the accident.
The court also found that Whitehall's complaint against Grober-Imbey was not
valid, even if it was negligent, because Grober-Imbey's alleged negligence was
not the cause of Whitehall's alleged injuries.
According to the court,
"Where an insurance policy requires that notice of an occurrence be given
promptly, notice must be given within a reasonable time in view of all of the
facts and circumstances." Under the circumstances of this case,
Whitehall's delay of more than two-and-a-half-months was not reasonable. The
court affirmed the decision of the lower court and remitted the matter to it to
enter a judgment declaring that Hermitage was not obligated to defend and
indemnify Whitehall in the underlying action.
120 Whitehall Realty
Associates, LLC vs. Hermitage Insurance Company-Supreme Court, Appellate
Division, Second Department, New York-May 8 2007-835 New York Supplement 2d 715