On May 8, 1964, a truck driver for a commercial company drove his employer’s truck to a business on Lake Shore Drive in Oswego, New York. Upon his arrival, the truck was being loaded by a crane operated by an employee of the business with scrap metal. One of the pieces of scrap metal struck the commercial company’s truck driver and causing him injury. After the injury, the commercial truck driver notified the business that he was filing a lawsuit for injuries and damages.
Following the notification of a lawsuit, the business notified their Bronx insurance company. The business’ insurance company then notified the insurance company for the commercial motor vehicle that the victim had been driving. They maintained that the loading of the commercial truck was covered under the motor vehicle policy that was under their jurisdiction. Therefore, the insurance company that was responsible for the damages should be the insurance company that covered the truck. The insurance company that covered the truck disagreed. They felt that it was the responsibility of the insurance company that covered the business, their property, and the actions of their employees. The insurance company for the truck was not notified of the truck accident until eight months after the accident in December of 1964.
The insurance company for the truck applied to the court for a motion of summary judgment on the contention that the insurance company for the business had failed, as a matter of law, to comply with the notice provisions of the insurance company for the truck’s policy. The notice of accident as it applies to that policy states:
‘When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place, and circumstances of the accident, the names, and addresses of the injured and of available witnesses.’
The policy also states that “no action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy. In short, the insurance company for the truck claims that by notifying the company eight months after the accident, it is not timely as a matter of law and so by reason of the policy, they are not liable. The court maintains that “to grant summary judgment it must clearly appear that no material and triable issue of fact is presented.” (Di Menna & Sons v. City of New York, 301 N.Y. 118, 92 N.E.2d 918). The court maintains that summary judgment should not be granted where there is any doubt as to the existence of triable fact.
The question involved here being if eight months was short enough of a time period to be considered timely under the insurance company for the truck’s policy. The court maintained that following much discussion of timeliness as defined in numerous other cases, that the insurance company for the business should be held to the same responsibility of timely notification that it demands of its own insured’s and that they should be considered co-carriers and not a separate insured person themselves. The court also feels that it is unreasonable in this day and age of ease of information to believe that the business’ insurance company could not have found out what information it was seeking.
In response, the court finds that timely notice was not given and wrote:
‘The finding of the trial court that notice of the accident was given by the representative of third party plaintiff to third party defendant ‘as soon as practicable’ as required by the policy provision is contrary to the proof. Such representative did not use due diligence in 1960 to ascertain the name of the insurance carrier affording coverage to the truck being unloaded at the time of the accident by plaintiff in the main action. Proof of financial security must be furnished contemporaneously with the registration of a motor vehicle (Vehicle & Traffic Law § 312) and any person may obtain a copy of the certificate of insurance from the Department of Motor Vehicles upon payment of the legal fee (Cf. 1942 Op.Atty.Gen. 194). The lack of diligence on the part of the representative of third party plaintiff is emphasized by the alacrity with which the required information was obtained and notice given to third party defendant some two years later when the main action was commenced.’
The court asks if there were any extenuating circumstances that would have prevented the business’ insurance company from giving written notice to the insurance company for the commercial motor vehicle. The answer was that there was not. The insurance company for the business had knowledge of the accident on May 12, 1964 only four days after the accident. The court feels that because the business’ insurance company is an insurance company, they should have known that the insurance company for the commercial motor vehicle was in play. The court then feels that it would only have been appropriate for one insurance company to provide the other insurance company with timely notification.
Because the insurance company for the commercial motor vehicle was not notified by the business’ insurance company in a timely manner, the court decided to grant the motion for summary judgment dismissing the motion of the business’ insurance company that the insurance company for the commercial motor vehicle is responsible to cover the lawsuit. The court finds that since insurance company for the commercial motor vehicle was not notified in a timely manner by the other insurance company, it cannot be found responsible and is relieved of liability. That being said, the court finds that there is no reason to determine if one insurance company should be considered primary and the other secondary. There is only one company that is liable; the company that represents the business where the incident occurred.
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