New York is notoriously strict in requiring insurers to promptly disclaim coverage. In Lloyd’s v. Gray, the insurer delayed 56 days in disclaiming on an apparently air tight exclusion based on bodily injury to any employee of an independent contractor engaged by the insured. The insurer received notice of the suit, engaged an investigator to interview the insured, and disclaimed coverage in a 56 day period. The Appellate Division, First Department held that whether the insurer disclaimed “as soon as is reasonable possible” was a fact question that precluded summary judgment in favor of the insurer.

A life’s lesson for insurers underwriting risks in New York: disclaim promptly and cite all potential grounds that preclude coverage.

http://www.nycourts.gov/reporter/3dseries/2007/2007_08885.htm

New York’s highest court held that a stadium operator owed no duty to protect non patron fans from the risk of being struck by a car on an adjacent street. It seems that the stadium operator held a regular promotion promising free tickets to anyone outside the ball park who returned a foul ball to the box office. Tragically, a young 14 year boy was struck by a drunk driver while running into the street to retrieve a foul ball in the hope of snaring his free tickets. The plaintiff claimed that stadium’s “foul ball” policy created an incentive for young fans to chase foul balls in the neighboring street, making the risk of injury forseeable and the imposition of a duty of care reasonable. The Court of Appeals disagreed, holding that it was difficult to imagine what the stadium operator could have done to prevent the accident.

Strike three, batter out, and case dismissed.

http://www.nycourts.gov/ctapps/decisions/nov07/151opn07.pdf

In the case of Essex Insurance Co. v. RMJC Inc., Essex disclaimed indemnity coverage for a claim arising out of an assault committed by the insured’s bouncer. The insured argued that indemnity coverage was mandated because the underlying plaintiff was proceeding exclusively on a negligence and not assault theory. Chief Judge Bartle disagreed and held that the assault and battery exclusion barred indemnity coverage.

http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1194948244072

The Appellate Division of New York’s Second Department has just issued a ruling that could present issues in proving simple coverage cases.

The Court held that an insured’s statement to the insurer’s investigator, as well as the investigator’s report, were both inadmissible hearsay. It remains unclear why the Court focused its decision on the investigator’s report, rather than the testimony regarding the insured’s apparent admission, but we hope this misguided decision is taken to the Court of Appeals.

http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2007/D16022.pdf