Clarendon Natl. Ins. Co. v Bajwa

[*1] Clarendon Natl. Ins. Co. v Bajwa 2004 NY Slip Op 51648(U) Decided on October 7, 2004 Supreme Court, Kings County Schmidt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 7, 2004
Supreme Court, Kings County

Clarendon National Insurance Company, Plaintiff,

against

Liaqat Bajwa, et al, Defendants.



43712/03

David I. Schmidt, J.

Upon the foregoing papers, plaintiff Clarendon National Insurance Company (Clarendon) moves for an order, pursuant to CPLR 3212, granting summary judgment, declaring that Clarendon is not obligated to defend or indemnify defendant Liaqat Bajwa in an action entitled Boz v Bajwa (the underlying action) pending in this court and bearing index number 29018/01. Defendants Nurali Boz and Sakine Boz cross-move for an order granting them summary judgment dismissing the complaint and declaring that Clarendon [*2]is obligated to defend and indemnify Bajwa in the underlying action.[FN1]

On June 12, 2001, a motor vehicle owned and operated by Bajwa came into contact with a vehicle owned by Michele Shomua and operated by Sahar Shampa. Defendant Sakine Boz and the infant defendant Ferhat Boz, passengers in the Bajwa vehicle, were allegedly seriously injured in that accident. Thereafter, a negligence action was commenced against Bajwa, Shomua and Shampa by Ferhat Boz, (by his father, Nikali Boz), Nikali Boz, and Sakine Boz. Bajwa's vehicle was insured under a policy issued by Clarendon.

Clarendon now moves for summary judgment declaring that it is not obligated to defend or indemnify Bajwa in connection with the underlying action on the ground that Bajwa failed to cooperate with the company as required by the express language of the insurance policy between Clarendon and Bajwa.

Part B of that policy entitled "Duties After an Accident or Loss", states in pertinent part: We [Clarendon] have no duty to provide coverage under this policy unless there has been full compliance with the following duties:B. A person seeking any coverage must:1. Cooperate with us in the investigation, settlement or defense of any claim or suit.

"An insurer who seeks to disclaim liability based on lack of cooperation of the insurer faces a heavy burden since the defense frustrates the public policy that innocent victims of automobile accidents be compensated for their injuries" (Hanover Ins. Co. v DeMato, 143 AD2d 807, 808 [1988]; see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168 [1967]). Thus, to effectively deny insurance coverage on this ground, the 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, 548 [1997]; see also Thrasher, 19 NY2d at 168 ; Hyer v Travelers Ins. Co., 297 AD2d 707, 708 [2002]; Baghaloo-White v Allstate Ins. Co., 270 AD2d 296 [2000]; Commercial Union Ins. Co. v Burr, 226 AD2d 416, 417 [1996]; Pawtucket Mut. Ins. Co. v Soler, 184 AD2d 498, 499 [1992]). Moreover "a very heavy burden is imposed on the insurer to show, in the first instance, that the circumstances support the inference that the insured's failure to cooperate was deliberate" [*3](Mount Vernon Fire Ins. Co. v 170 E. 106th St. Realty Corp., 212 AD2d 419, 420 [1995], lv denied 86 NY2d 707 [1005]; see Matter of Empire Mut. Ins. Co. [Stroud], 36 NY2d 719, 722 [1975]; Ingarra v Gen. Accident/PG Ins. Co., 273 AD2d 766, 767 [2000]; Pawtucket Mut. Ins. Co., 184 AD2d at 499; Hanover Ins. Co. v DeMato, 143 AD2d at 808).

Here, Clarendon has failed to demonstrate that it acted diligently in attempting to contact Bajwa, that the efforts it did make were likely to obtain his cooperation, or that Bajwa's failure to respond to those efforts was either wilful or deliberate. Thus, Clarendon's motion seeking a declaration that it is not obligated to defend or indemnify Bajwa is denied.

Indeed, a short summary of the efforts taken by Clarendon and its agents to locate Bajwa, which are detailed in Clarendon's response to plaintiffs' bill of particulars as well as in various documents submitted with this motion, makes plain that Clarendon has failed, as a matter of law, to satisfy its burden of demonstrating that it took sufficient steps to gain Bajwa's cooperation. Specifically, it is unclear whether the letters sent to Bajwa seeking his cooperation immediately following the accident were sent to an address at which he resided; later correspondence between Professional Claims Service (PCS), retained by Clarendon, and the insurance company list two other "possible" addresses for Bajwa. Moreover, when representatives of PCS visited those two residences some eighteen months after the accident, Bajwa was not present nor was his name listed on the building directory. While Lee Van Orden, a claim representative from PCS, claimed that correspondence addressed to Bajwa was given to someone at one of the addresses who identified herself as Bajwa's wife, it was later revealed that Bajwa may have relocated to Pakistan a year earlier.

As the foregoing evidence makes plain, Clarendon failed to act diligently in seeking Bajwa's cooperation and failed to employ reasonable efforts to locate him. Most egregious was the investigators' utter failure to ascertain Bajwa's actual residence by visiting commercial establishments in the neighborhood, visiting his place of employment,[FN2] requesting information from the Department of Motor Vehicles, Board of Elections, or by requesting that a credit check be performed (see Thrasher, 19 NY2d at 169; State Farm Fire and Cas. Co. v Imeri, 182 AD2d 683 [1992].

Finally, since the evidence does not support a conclusion that Bajwa was aware of the fact that Clarendon was seeking his cooperation, it cannot be said that he wilfully refused to cooperate (see Thrasher, 19 NY2d at 169 -170; Pawtucket Mut. Ins. Co., 184 AD2d at 499).

Accordingly, Clarendon's motion for an order, pursuant to CPLR 3212, granting [*4]summary judgment, and declaring that Clarendon is not obligated to defend or indemnify defendant Liaqat Bajwa in the underlying personal injury action is denied. The cross motion of Nurali Boz and Sakine Boz seeking an order granting them summary judgment dismissing the complaint and declaring that Clarendon is obligated to defend and indemnify Bajwa in granted.

This constitutes the decision, order and judgment of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: In a short form order dated September 9, 2004, this court denied plaintiff's motion and granted defendant's cross-motion, stating that this formal decision was to follow.

Footnote 2: While the investigator stated that he called the taxi cab company at which Bajwa worked and left messages, he failed to visit the site or attempt to obtain his address from employment records.