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O'Brien and Slavina win summary judgment for insurance carrier

May 4, 2010

James F. O'Brien (Partner-White Plains) and Jana A. Slavina (Associate-White Plains) obtained summary judgement in the U.S. District Court, Eastern District of New York, on behalf of a client, an insurance carrier, on the issue of late notice of claim.  This insurance dispute arose out of an underlying personal injury lawsuit involving a construction worker who fell from a scaffold.  The general contractor procured general liability insurance with our client for itself, as well as the construction administrator as an additional insured.

Our client received notice of the underlying claim from the construction administrator (the plaintiff in our action) more than 30 months after the incident occurred.  The construction administrator claimed that they did not know earlier that they were insured by our client in regard to the underlying litigation.  The construction administrator also argued that the attorneys for the general contractor told them that the general contractor itself did not have any applicable insurance.  The construction administrator's lawyers apparently assumed that the construction administrator did not have any coverage under our client's policy, either.

Approximately two years after the accident, the attorneys for the construction administrator obtained "certificate of insurance" forms that stated that the construction administrator was an additional insured under our client's policy.  The certificate listed the name of the insurance company, the name and address of the insurance broker, the type of policy and its limits.  However, the construction administrator's lawyers did not give notice of claim to our client until more than a year after they first received the certificate of insurance.  In this litigation, the construction administrator's lawyers claimed that the late notice of claim should be excused, because they relied on the general contractor's representations and their belief there was no coverage for the construction administrator.

The Eastern District agreed with our position that the construction administrator should have further investigated the availability of coverage for them by contacting the broker or the insurance company listed on the certificates of insurance.  As that was not done, the court held that the construction administrator's efforts lacked reasonableness and diligence, and therefore their late notice of claim could not be excused.  Our client's denial of coverage to the construction administrator for the underlying litigation was upheld.

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