| North Country Ins. Co. v Jandreau |
| 2008 NY Slip Op 03552 [50 AD3d 1429] |
| April 24, 2008 |
| Appellate Division, Third Department |
| North Country Insurance Company, Appellant, v James Jandreau,Respondent. |
—[*1] Cappello, Linden & Ladouceur, Potsdam (Michelle H. Ladouceur of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Demarest, J.), entered April 5, 2007 inSt. Lawrence County, which denied plaintiff's motion for summary judgment.
Defendant was the general contractor on a new home construction project. Paul Dominiquewas an employee of a roofing subcontractor working on the project. On March 30, 2005,defendant was present on the site and informed Dominique's supervisor that no one should go onthe roof due to weather conditions. The supervisor apparently agreed. Soon thereafter, defendantdiscovered that Dominique had fallen off the roof and was taken to the hospital. In a phone callto the subcontractor that night, defendant learned that Dominique was transferred to anotherhospital and the subcontractor would inform his own insurance carrier of the occurrence.Defendant later learned that Dominique underwent leg surgery.
On April 13, 2006, defendant was served with a summons and complaint in the underlyingpersonal injury action commenced by Dominique and his wife against defendant and the propertyowner. That same day, defendant forwarded the pleadings to his insurance agent, whoimmediately provided them to plaintiff, the insurer who issued defendant a general liabilityinsurance policy for the relevant time period. Plaintiff disclaimed coverage based upon, amongother things, defendant's failure to provide timely notice of the occurrence, and then commencedthis action seeking a declaration that plaintiff is not required to defend or indemnify defendant in[*2]the underlying action. Supreme Court denied plaintiff'smotion for summary judgment, prompting this appeal.
We affirm. The relevant provision of the policy states that "[i]n case of an occurrence or ifyou become aware of anything that indicates there might be a claim under this policy, you mustgive us or our agent notice . . . as soon as practicable." While compliance with aninsurance policy's notice provision is required to obtain coverage, "there may be circumstancesthat excuse a failure to give timely notice, such as where the insured has 'a good-faith belief ofnonliability,' provided that belief is reasonable" (Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742, 743[2005], quoting Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436,441 [1972]; see Klersy Bldg. Corp. vHarleysville Worcester Ins. Co., 36 AD3d 1117, 1118 [2007]). The insured bears theburden of establishing a reasonable excuse for the delay in providing notice, but the question ofsuch reasonableness is generally a factual question for a jury (see St. James Mech., Inc. v Royal & Sunalliance, 44 AD3d 1030,1031 [2007]; Klersy Bldg. Corp. v Harleysville Worcester Ins. Co., 36 AD3d at1118-1119).
Here, defendant explained that he did not contact plaintiff because Dominique was workingfor the subcontractor and under the subcontractor's control and supervision at the time of theaccident. The subcontractor had provided proof of liability and workers' compensation coverageprior to commencing work, and informed defendant on the day of the accident that it wassubmitting a claim to its insurer. Defendant did not hear from Dominique or anyone on his behalffrom the date of the accident until defendant was served with the pleadings in the underlyingaction. He further believed that there was no liability because Dominique was acting contrary tohis own advice, and presumably that of Dominique's supervisor, that no one go on the roof.Despite owning a construction company for 12 years, defendant had never been sued for aconstruction site injury and was thus unfamiliar with the nuances of liability. Defendant notifiedplaintiff the same day that he was served process. Under the circumstances, and in light of thepreference for permitting a jury to decide the question of reasonableness, Supreme Court did noterr in denying plaintiff's motion for summary judgment (see Klersy Bldg. Corp. v HarleysvilleWorcester Ins. Co., 36 AD3d at 1119; G.L.G. Contr. Corp. v Aetna Cas. & Sur. Co.,215 AD2d 821, 822 [1995]).
Mercure, J.P., Peters, Rose and Malone Jr., JJ., concur. Ordered that the order is affirmed,with costs.