Court Reverses Jury Verdict for Injured Parties on Late Notice DJ Trial

COMMERCIAL AUTO – LATE NOTICE BY INJURED PARTY – INSURANCE LAW § 3420(A)(2) – TIMELY DISCLAIMER
Kiladze v. Countrywide Ins. Co.
(Sup. Ct., New York Co., decided 7/14/2008)

Under New York's Insurance Law, injured parties have an independent right to notify the tortfeasor's liability insurer, but they must act with due diligence to: (1) identify that insurer; and (2) promptly place it on notice once they learns its identify. In this case, although the plaintiffs convinced a jury that they had acted with such diligence, the trial judge disagreed and granted Countrywide's CPLR § 4401 post-trial motion to set aside the verdict.

In setting aside the jury's verdict, New York County Supreme Court Justice Nicholas Figueroa held:

Neither plaintiff nor her attorney provided any explanation of why they waited seven months before giving notice to Countrywide. Therefore, as a matter of law, Countrywide is entitled to judgment dismissing plaintiff’s complaint (St. Nicholas Cathedral of the Russian Orthodox Church In North America v. Travelers Properly Casualty Insurance Company, 45 AD3d 411).

Nor is there legally sufficient evidence in the record to sustain the jury finding that plaintiff and her attorney took reasonable measures to learn that Countrywide was the insurer. Kiladze’s attorney made no attempt to obtain the information from the Department of Motor Vehicles. Rather, he relied on information that he knew came from plaintiff herself, without taking any measurers [sic] to determine if the information was correct. The attorney did not receive any confirmation from Progressive that it was the insurer subsequent to his contact with that carrier; thus, he could not have reasonably believed that Progressive was the carrier. Given the complete lack of proof that either plaintiff or her attorney made reasonable efforts to learn that Countrywide was the insurer, the jury's finding to the contrary was not supported by legally sufficient proof (American Home Assurance Company v. State Farm Mutual Insurance Company, 277 AD2d 409, 410).

Nor is there any merit to plaintiff's contention that she is entitled to recover against Countrywide because it did not timely disclaim coverage. Countrywide's April 13,2000 disclaimer was effective against her (Schlott v. Transcontinental Insurance Company, 41 AD3d 339, 340). That disclaimer, issued only seven days of the Vasquez complaint, as well as the June 29, 2000 disclaimer, sixteen days after receiving the papers from attorney Blau, were timely, as a matter of law (Nationwide Insurance Company v. Lukus, 264 AD2d 778, 779).

From the court's decision, it appears plaintiff's attorney failed to take relatively simple steps to determine Countrywide's identity and then promptly place it on notice, including writing to the New York State DMV to gain the identity of DLM Trucking's insurer.