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In NY, a Tender Requires Support.

August 12, 2011

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In <em>Admiral Ins. Co. v. State Farm Fire &amp; Cas. Co.</em>, the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&amp;K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows.
In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&amp;K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification.
On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&amp;K requesting a copy of the file since it had no information on the accident.
On March 19, 2004, State Farm sent UCS, plaintiff, P&amp;K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&amp;K’s failure to give prompt notice.
Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In <a href="">affirming</a> the trial court's decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&amp;K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later.
The moral of the story is -- if you're pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you're going to be fighting a long legal battle.
Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM's coverage practice, please contact Bob Cosgrove at <a href=""></a>.


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