Citizens Insurance Company brought a declaratory judgment action against its insured Gerald Ung seeking a declaration that it was not obligated to defend and indemnify Ung’s son under the issued homeowner’s policy for an underlying civil action in which the plaintiff claimed injuries after Ung’s son shot him.  Citizens argued that there was no coverage under the policy because of Ung’s untimely notice of the complaint; the claims did not constitute an occurrence; and the intended or expected exclusion was a bar to coverage.

In response to Citizen’s notice argument, the court concluded that performance of the notice provision only required Ung to substantial comply and any failure to notify needed to be substantial and material.  The court ultimately determined that Ung’s son was not aware that his parents had a homeowner’s policy or that the policy would cover him.  Despite this, the court determined that Citizen was not prejudiced by the delay as it had failed to sufficiently plead how it was prejudiced or how the delay had deprived it of an opportunity for appellate review if an adverse decision was reached in the underlying action.

Additionally, with respect to Citizen’s lack of occurrence/intended or expected exclusion arguments, the court determined that summary judgment could not be granted on this basis as the underlying complaint alleged negligence as well as intentional acts.  Thus, Ung’s son’s negligent acts may have been covered by the policy, thereby triggering Citizen’s obligation to defend.

Special thanks to Colleen Hayes for her contribution to this post.  For more information, please contact Nicole Y. Brown at .