Sunday, June 8, 2008

Failure to Report Hit-and-Run Accident Within 24 Hours Precludes UM Coverage

Sitbon v. Unitrin Preferred Ins. Co.
(2nd Dept., decided 6/3/2008)

Conditions precedent are ones that insureds must satisfy before the insurer owes coverage. Like paying the premium. Or giving timely notice of an accident. Or, in relation to uninsured motorists (UM) coverage claims stemming from hit-and-run accidents, reporting the accident to the police or other designated public official within 24 hours.

In this case, the insured was injured in a hit-and-run accident but did not report it to the police of Commissioner of DMV. Unitrin denied UM coverage, and the insured commenced this action. Unitrin moved unsuccessfully for summary judgment.

The Second Department REVERSED the lower court's order, finding Unitrin had made a prima facie showing of its entitlement to summary judgment by demonstrating, through the testimony of the plaintiff at an EUO documentation, that timely notice was not provided to either the police or the DMV Commissioner. In response, the plaintiff insured failed to raise a triable issue of fact as to whether he, or anyone on his behalf, provided timely notice, or any notice, of the accident as required.
The plaintiff did not oppose the motion for summary judgment with an affidavit or affirmation from the individual who prepared the original of the unsigned, partially completed, MV-104 form (Report of Motor Vehicle Accident) dated December 20, 2004, attesting to the filing of the report with the Commissioner and when it was filed. The plaintiff's sworn statements as to his knowledge of who prepared the report on his behalf are directly contradictory, with no explanation of the contradiction. Additionally, the Commissioner's form report of a motor vehicle accident specifically provides, in bold lettering, that an accident report is not considered complete and filed unless it is signed.

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