Continental Casualty Co. v. Stradford

In an action for a judgment declaring that the plaintiff is not obligated to defend or indemnify the defendant Terrance D. Stradford in an underlying action entitled Gunaratne v Stradford, pending in the Supreme Court, Richmond County, under index No. 98-13406 and an underlying action entitled Perera v Stradford, pending in the same court, under index No. 98-13407, the defendants Hector Gunaratne, Rose Gunaratne, and Sumandasa Perera, parent and natural guardian of Prashan Perera, appeal from an order of the Supreme Court, Richmond County (Minardo, J.), entered March 31, 2006, which granted [599] the plaintiff’s motion for summary judgment and denied their cross motion for summary judgment. Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the matter is remitted to the Supreme Court, Richmond County, for the entry of a judgment declaring that the plaintiff is obligated to defend and indemnify the defendant Terrance D. Stradford in the underlying actions entitled Gunaratne v Stradford, pending in the Supreme Court, Richmond County, under index No. 98-13406, and Perera v Stradford, pending in the same court under index No. 98-13407. To effectively deny insurance coverage based upon lack of cooperation, “an insurance carrier must demonstrate (1) that it acted diligently in seeking to bring about the insured’s cooperation, (2) that the efforts employed by the carrier were reasonably calculated to obtain the insured’s cooperation, and (3) that the attitude of the insured, after his cooperation was sought, was one of willful and avowed obstruction” (Physicians’ Reciprocal Insurers v Keller, 243 AD2d 547, 547-548 [1997]; see Thrasher v United States Liab. Ins. Co., 19 NY2d 159 [1967]; Hyer v Travelers Ins. Co., 297 AD2d 707 [2002]; Commercial Union Ins. Co. v Burr, 226 AD2d 416 [1996]; Pawtucket Mut. Ins. Co. v Soler, 184 AD2d 498 [1992]). The plaintiff, Continental Casualty Company (hereafter Continental), provided counsel for the defendant Terrance D. Stradford in two underlying actions. During the course of the investigation and defense of both actions, Stradford ignored a series of written correspondence and telephone calls from Continental’s representatives and from defense counsel. In addition, Stradford repeatedly refused to provide requested documents, records, and evidence and unreasonably refused to consent to a recommended settlement based on adverse findings of experts retained to review the underlying actions. Notwithstanding his own request for new counsel, Stradford refused to execute stipulations consenting to a change of attorney. He also failed to appear for scheduled depositions and meetings. On July 8, 2004 Continental’s claims consultant sent Stratford two separate letters advising him that he was in breach of the policy’s cooperation clause and risked a disclaimer of coverage on the underlying actions if he continued to fail to cooperate. Both letters were returned to Continental’s office on August 11, 2004 marked “Unclaimed.” Moreover, the same claims consultant acknowledged that he had been assigned by Continental to handle two other professional liability claims against Stradford (hereafter the [600] O’Halloran/Shields claims). On June 1, 2004 Continental obtained an order signed by Justice Thomas E Aliotta of the Supreme Court, Richmond County (hereafter Justice Aliotta’s order), in a declaratory judgment action relieving it of its obligation to defend and indemnify Stradford in dental malpractice actions arising out of the O’Halloran/Shields claims. Contrary to the suggestion of our dissenting colleagues, the record belies any substantial distinction between Stradford’s willful noncooperation in any of the four claims. Among the documents Continental submitted to establish what its counsel described as “a clear pattern of non-compliance and obstruction on the part of Stradford, and Continental’s reasonable, and indeed quite vigorous efforts to elicit Stradford’s cooperation” are numerous letters sent to Stradford either by Continental, or counsel assigned by Continental to represent Stradford, reminding him of his obligation to cooperate in the investigation and defense of the underlying claims and actions. At least 10 of those letters, sent over a period of time dating back to early 1999, make reference to Stradford’s lack of cooperation in actions involving the O’Halloran/Shields claims in addition to his failure to cooperate in the investigation and defense of the claims of the appellants herein. The record demonstrates that Stradford’s failure to cooperate equally permeated all four claims. In fact, Continental submitted Justice Aliotta’s order in support of its application in this declaratory judgment action and argued that the facts which justified the June 2004 order were “absolutely identical” to Stradford’s willful noncooperation in the claims underlying this declaratory judgment action. Moreover, Continental argued that Stradford should be foreclosed from contending otherwise by the doctrine of collateral estoppel. There is no indication that the Supreme Court relied on the doctrine of collateral estoppel in this action. Nevertheless, in view of the numerous letters jointly addressing all four claims and counsel’s assertion that the facts involved in both declaratory judgment actions were “absolutely identical,” there is no basis to now conclude that Stradford’s conduct in the two sets of claims was so distinct as to justify the need for extensive consultation with coverage counsel over a period of two months. Under these circumstances, although Continental carried its burden to establish that it acted diligently in seeking to bring about Stradford’s cooperation, that its efforts were reasonably calculated to obtain Stradford’s cooperation, and that the attitude of Stradford, its insured, after his cooperation was sought, was one of willful and avowed obstruction (see Utica First Ins. Co. v Arken, Inc., 18 AD3d 644 [2005]; Hyer v Travelers Ins. Co., 297 AD2d 707 [2002]), Continental failed to make out a [601] prima facie case that its disclaimer of coverage on that basis was timely (see Insurance Law § 3420 [d]). A cogent argument could be made that in March 2004, when it moved for declaratory relief with respect to the O’Halloran/ Shields claims, Continental had sufficient knowledge of the facts on which it could reasonably disclaim coverage for willful noncooperation in the claims underlying this action as well. Certainly, in June 2004 when Continental received Justice Aliotta’s order granting the requested declaratory relief in actions arising out of the O’Halloran/Shields claims, Continental was in receipt of a judicial imprimatur that Stradford’s conduct permitted a disclaimer. Nevertheless, acknowledging that Continental was continuing to pursue its heavy burden to diligently bring about Stradford’s cooperation in the claims underlying this declaratory judgment action (see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168-169 [1967]) we find that Continental had sufficient information to support a disclaimer of coverage not later than August 11, 2004, the date of the return of the letters marked unclaimed. The lapse of in excess of two months from August 11, 2004, the date it was readily apparent that its efforts to obtain the cooperation of its insured were fruitless, until October 13, 2004, the date Continental sent its disclaimer letter, without adequate explanation, was not “as soon as is reasonably possible” within the contemplation of the statute (Insurance Law § 3420 [d]; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030 [1979]; Matter of Allstate Ins. Co. v Cruz, 30 AD3d 511 [2006]; Utica First Ins. Co. v Arken, Inc., 18 AD3d 644 [2005]; Hyer v Travelers Ins. Co., 297 AD2d 707 [2002]). Other than the undocumented and conclusory assertion that it was consulting with claims counsel to determine whether the six-year-long, well-documented pattern of willful noncooperation warranted a disclaimer of coverage, Continental has offered no evidence to justify its delay. Accordingly, the Supreme Court should not have granted Continental’s motion for summary judgment. Moreover, the appellants, under these circumstances, established their prima facie entitlement to summary judgment declaring that Continental is obligated to defend or indemnify the defendant Terrance D. Stradford in an action entitled Gunaratne v Stradford, pending in the Supreme Court, Richmond County, under index No. 98-13406 and an action entitled Perera v Stradford, pending in the same court, under index No. 98-13407. Continental’s failure to disclaim coverage on the ground of lack of cooperation until October 13, 2004, was unreasonable (see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 [602] [1979]; New York State Ins. Fund v Merchants Ins. Co. of N.H., 5 AD3d 449, 451 [2004]). In opposition, Continental failed to raise a triable issue of fact as to the timeliness of its disclaimer. Accordingly, the Supreme Court should have granted the appellants’ cross motion. Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Richmond County, for the entry of a judgment declaring that the plaintiff is obligated to defend and indemnify the defendant Terrance D. Stradford in the underlying actions (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). Santucci, J.P., Skelos, and Fisher, JJ., concur.