How Late Is Too Late?

280_C046

HOW LATE IS TOO LATE?

Workers Compensation

Default Judgment Action

Failure to Provide Prompt Notice

Unreasonable Delay

 

Kenneth Rosier was replacing garage doors at an automobile repair shop in March 2007 when he fell off a ladder into a deep pit in the garage. Joseph Stoeckeler owned the building that the repair shop occupied. In late October 2008, Rosier’s attorney sent a letter to Stoeckeler regarding the incident. Stoeckeler faxed a copy of the letter to his insurance broker, C.S. Benson & Sons, Inc.(Benson), at the beginning of November. Benson did not inform American Western Home Insurance Company (American), Stoeckeler’s insurer, or American’s agent, LoVullo Associates (LoVullo), of the incident.

 

Rosier and his wife sued Stoeckeler in February 2009. Stoeckeler promptly informed Benson but Benson lost the documents and again failed to notify American Western or LoVullo.

 

At the end of February, American disclaimed coverage, citing failure to provide prompt notice. Stoeckeler filed a default judgment action against Benson and American.

 

The court found in Stoeckeler’s favor with regard to Benson but not with regard to American. According to the court, because the notice given to American was late, it was not obligated to defend or indemnify Stoeckeler. The Rosiers and Stoeckeler appealed.

 

The appellate court noted that the American policy clearly stated that prompt notice was to be given to American or its agent, LoVullo. American did not receive notice of the March 2007 incident until June 1, 2009. It did not matter that Stoeckeler forwarded a copy of the letter from the Rosiers’ attorney to Benson. Benson was a broker, not an agent of American, and was not authorized to receive notice on American’s behalf. The appellate court concluded that the trial court had properly determined that the delay in giving notice to American was unreasonable and affirmed its judgment.

 

Supreme Court, Appellate Division, Third Department, New York. Rosier v. Stoeckeler. December 13, 2012. 101 Appellate Division 3rd 1310