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General non-cooperation denial held to be timely despite it being issued quite untimelyFebruary 21, 2014

Country-Wide Ins. Co. v Preferred Trucking Servs. Corp., 2014 NY Slip Op 01099 (2014)

“The present appeal, on the other hand, involves disclaimer for noncooperation by an insured. A determination as to whether such a disclaimer was made within a reasonable time is more complex because “an insured’s noncooperative attitude is often not readily apparent” (Continental Cas. Co. v Stradford, 11 NY3d 443, 449 [2008]). We have emphasized that “insurers must be encouraged to disclaim for noncooperation only after it is clear that further reasonable attempts to elicit their insured’s cooperation will be futile” (id. at 450).

The primary reason that we allow a longer period for disclaimer for noncooperation lies in a well-established principle of our case law, which is intended to facilitate the full compensation of injured victims suing for damages. This is the requirement that an insurer may not properly disclaim for noncooperation unless it has satisfied its burden, described in the precedent as “a heavy one indeed,” of showing “that it acted diligently in seeking to bring about the insured’s co-operation; that the efforts employed by the insurer were reasonably calculated to obtain the insurer’s co-operation; and that the attitude of the insured, after his co-operation was sought, was one of willful and avowed obstruction” (Thrasher v United States Liability Ins. Co., 19 NY2d 159, 168 [1967] [internal quotation marks and citations omitted]).”

In these circumstances, in which Arias “punctuated periods of noncompliance with sporadic cooperation or promises to cooperate” (Stradford, 11 NY3d at 450), we hold that Country-Wide established as a matter of law that its delay was reasonable. The Gallinas fail to raise a triable issue of fact regarding whether Country-Wide knew or should have known that it would disclaim coverage as soon as it became clear that Markos would not cooperate.”

This has two corollaries in no-fault.  The first is the Park v. Long Island Ins. Co. defense.  This would be the Claimant who refuses to answer and is told that his/her refusal to answer will result in a disclaimer.  This could possibly be a Unitrin defense since this would violate a condition precedent to coverage.

The second is the Simmons v. State Farm non-cooperation defense.  This occurs when a Claimant refuses to engage in vocational training.  On this defense, Preferred Trucking could be illustrative.

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