| Matter of State Farm Indem. Co. v Moore |
| 2009 NY Slip Op 00038 [58 AD3d 429] |
| January 6, 2009 |
| Appellate Division, First Department |
| In the Matter of State Farm Indemnity Co.,Appellant, v Troy Moore et al., Respondents, and New York Central Mutual FireInsurance Co. et al., Proposed Respondents. |
—[*1] Russo, Keane & Toner, LLP, New York (David S. Gould of counsel), for New York CentralMutual Fire Ins. Co., proposed respondent.
Order, Supreme Court, Bronx County (Patricia A. Williams, J.), entered on or about April28, 2008, which denied the petition brought pursuant CPLR article 75 to permanently stayarbitration of a claim for uninsured motorist benefits, unanimously affirmed, without costs.
Respondents Troy Moore and Rashod Cowan sustained injuries in an accident between anautomobile owned and operated by Moore and in which Cowan was a passenger, and a vehicleowned by Alnardo Perez. Moore's vehicle was insured by petitioner and records showed thatPerez's car was insured by respondent New York Central Mutual Fire Insurance Co. (Central).Central, upon being notified of the accident, commenced an investigation during which itunsuccessfully attempted to contact Perez. Due to Perez's lack of cooperation, Central disclaimedcoverage and Moore and Cowan commenced an arbitration proceeding seeking recovery ofuninsured motorist benefits.
"When an insured deliberately fails to cooperate with its insurer in the investigation of acovered incident as required by the policy, the insurer may disclaim coverage" (Matter of New York Cent. Mut. Fire Ins.Co. [Salomon], 11 AD3d 315, 316 [2004]). To meet its "very heavy burden"(id.), the insurer must establish that it diligently acted in seeking the cooperation of theinsured, that its efforts were reasonably calculated to bring about the insured's cooperation, andthat the insured's attitude "was one of 'willful and avowed obstruction' " (Thrasher v UnitedStates Liab. Ins. Co., 19 NY2d 159, 168 [1967], quoting Coleman v New AmsterdamCas. Co., 247 NY 271, 276 [1928]). Although it is not required of the insurer to show thatthe insured openly avowed an intent to obstruct the investigation of the claim, "the facts mustsupport an inference that the failure to cooperate was deliberate" (Matter of Liberty Mut. Ins. Co. vRoland-Staine, 21 AD3d 771, 773 [2005]).[*2]
The court properly denied the petition to permanentlystay the arbitration, as Central provided sufficient grounds for disclaiming coverage. Theevidence demonstrates that upon being informed of the subject accident, Central promptlycommenced a detailed investigation and diligently followed up on it. In addition to numeroustelephone calls being made to the number Perez provided in the subject insurance policy, lettersvia certified or registered mail were sent to the address provided by Perez, and Central providedevidence that Perez signed for one of the letters. Furthermore, visits were made to Perez'saddress and his mother maintained that she did not know his whereabouts. In light of theseunsuccessful efforts that were reasonably calculated to obtain Perez's cooperation, the inferencethat Perez deliberately chose not to cooperate is compelling. Concur—Saxe, J.P., Nardelli,Buckley, Moskowitz and Renwick, JJ.