The Rogak Report: 28 Sept 2007 ** Coverage - Late Notice **
VERBAL NOTICE OF OCCURRENCE IS VALID UNLESS POLICY SPECIFIES WRITTEN NOTICE
Compass Constr. of N. Y. v. Empire Fire & Mar. Co. of Omaha, Neb. 2007 NY Slip Op 06944 Decided on September 25, 2007 Appellate Division, Second Department Edited by Lawrence N. Rogak
After receiving two disclaimers of coverage from Empire based on late notice in two underlying personal injury actions, plaintiff brought two related declaratory judgment actions seeking a declaration that Empire was required to defend and indemnify it. Supreme Court denied plaintiff's motion for summary judgment. The Appellate Division reversed.
The Appellate Division held that "Compass Construction of New York, the plaintiff in Action No. 1 , and Kevin Kelly and Francis Kelly, the plaintiffs in Action No. 2 established their prima facie entitlement to judgment as a matter of law as against [Empire] by demonstrating... that Compass provided notice of the underlying occurrence to Empire through Empire's agent, NPA Associates, Inc.... The record establishes that notice of the occurrence was provided 'as soon as practicable' in accordance with Section IV(2)(a) of the policy, which defined Compass's notice of occurrence obligations, and that Empire's disclaimer of coverage was therefore improper. In opposition, Empire failed to raise a triable issue of fact."
" Contrary to the Supreme Court's finding, oral notice was sufficient to satisfy the notice of occurrence provision in the instant policy since the provision unambiguously did not contain a written notice requirement."