Insurance Coverage Can Not be Created by Untimely Disclaimer

by ASchlossberg on November 2, 2017

In an action commenced by plaintiff insurance provider seeking a declaratory judgment that plaintiff was not obligated to defend or indemnify the defendants in connection with a car accident, plaintiff moved for summary judgment.  Defendants opposed the motion by asserting that plaintiff failed to timely disclaim coverage for the accident.  At the time of the accident, defendant Mark Umude (Mark) was driving a vehicle owned by his brother, nonparty Amoghene Umude (Amoghene).  The remaining defendants were passengers in the vehicle.  Prior to the accident, plaintiff issued an insurance policy to Amoghene.  According to its terms, the policy did not cover any accidents arising while the vehicle was being operated without Amoghene’s permission.  In support of its motion, plaintiff submitted a police report which established that upon learning about the accident from a detective, Amoghene told the detective that he had not given Mark permission to use his vehicle.  The report further indicated that Mark was charged with Unauthorized Use of Motor Vehicle in the First Degree.  In addition, plaintiff submitted the transcript of Amogene’s examination under oath wherein he testified that on the night of the accident, he parked his vehicle outside the home he shared with his brother and did not give anyone permission to use the vehicle.  Judge Barbato granted plaintiff’s motion because the accident did “not fall within the ambit of the coverage under the insurance policy” and plaintiff’s failure to timely disclaim could not create coverage where none existed in the first instance.

(internal citations omitted)

American Country Ins. Co. v. Umude, NYLJ 1202792223367, at *1 (Sup. Ct. B. Co. 2017)

The Law Office of Aaron M. Schlossberg, Esq., P.L.L.C.

(This writing is for general information purposes only, should not be construed as legal advice and does not establish an attorney-client relationship)

Aaron Schlossberg focuses on complex commercial and insurance coverage matters involving corporate clients, entrepreneurs and individual policyholders. Mr. Schlossberg drafts and negotiates high-level contract documents and appears frequently in state and federal courts throughout New York State. Mr. Schlossberg earned his Bachelor of Arts Degree in English from The Johns Hopkins University and his Juris Doctorate Degree from the George Washington University Law School. Mr. Schlossberg gained invaluable insight during his post-graduate judicial clerkship and significant experience as an associate with two midtown Manhattan law firms prior to founding the Law Office of Aaron M. Schlossberg, P.C. in June 2012. Mr. Schlossberg is a published author and a seasoned presenter. He is fluent in Spanish, conversational in French and has basic knowledge of Mandarin Chinese and Hebrew. Mr. Schlossberg is a member of the New York State Bar Association and is admitted to the following courts: New York State, Eastern and Southern Districts of New York, United States Court of Appeals for the Second Circuit.

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