In Tower Insurance Co. of NY v. Ray & Frank Liquor Store, Inc. et al, the insurer sought a declaratory judgment with respect to coverage disclaimed to an insured for a claim in underlying litigation.  The defendant insured had given late notice of the claim, and the plaintiff sent a disclaimer in response. The disclaimer was sent via certified mail return receipt requested.  However, at the bench trial, the insurer only produced the letter – not the signed receipt.  The only witness to testify did not personally mail the letter, and no one was produced to testify regarding mail policies in a more general way.

The matter proceeded to trial and the judge ruled in favor of the insurer, finding that it was not obligated to defend and indemnify the defendants.  However, the First Department reversed the trial court’s decision, finding that the insurer failed to adequately demonstrate that the disclaimer letter was actually mailed. Specifically, the insurer’s failure to produce the return receipt or otherwise provide direct evidence of mailing was fatal to its cause.

The moral of the story is that sending a significant document, such as a disclaimer, by certified mail is only the first step.  In order to prove service, there must be testimony by one with knowledge that the document was actually mailed or, if available, a receipt showing actual service was made  offered in evidence.

Special thanks to Georgia Stagias for her contribution.

For more information, contact Denise Fontana Ricci at .