Monday, June 16, 2014

First Department Finds That Notice of Fire Was Not Sufficient To Apprise Insurer That Bodily Injury Claim Was Being Made

In Hermitage Ins. Co. v. Evans floor Specialist, Inc., two Evans' employees were injured in a fire on June 27, 2008, while they were engaged in refinishing the floor of an apartment in the Bronx.  Evans promptly provided notice to its insurer, Hermitage that a fire had occurred, but in a box on the notice of occurrence form regarding the name and address of injured persons or property damage, Evans stated "unknown, sedwick ave bronx."  A year after the incident, the two employees commenced an action against Evans. Hermitage received notice of the bodily injury claim on July 2, 2009.  After conducting an investigation, Hermitage disclaimed coverage on the basis of an "employee exclusion" in its policy and commenced an action against Evans and the injured employees for a declaration that it had no duty to defend or indemnify Evans against the employees' claim.  

The First Department upheld Hermitage's disclaimer on the basis that the notice of occurrence was not sufficient to apprise Hermitage that a claim for bodily injury was being made.  In so holding, the First Department found that Hermitage did not owe an absolute duty to investigate whether anyone was injured in the fire, stating that its earlier decision in GPH Partners, LLC v. American Home Assur. Co. (87 AD3d 843 [1st Dept. 2011]), was "inapposite." Instead, the Court reiterated that "[t]he rule is applied where the claim form provides the insurer with enough information about the nature of the claim to prompt an investigation to determine whether there are grounds to claim an exclusion."    

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