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June 22, 1976

DIC-UNDERHILL CONSTRUCTION COMPANY et al., Defendants and Third-Party Plaintiffs, v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Third-Party Defendant

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

 Plaintiff in this diversity action seeks to recover from defendants the value of an air compressor which it allegedly rented to defendants Dic-Underhill on or about August 3, 1973 for their use on the construction site of the World Trade Center in New York, owned by defendant Port Authority. This compressor was not returned to plaintiff, according to defendants, because it was stolen from the construction site. Defendants, in turn, seek indemnity for any possible loss in this action from Dic-Underhill's insurer, St. Paul, with the Port Authority basing its claim upon a subrogation clause in the contract between itself and Dic-Underhill. In response, St. Paul has moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P., and the court grants this motion.

 The facts are not disputed. *fn1" Dic Concrete Corp. and Underhill Construction Corp. were parties to a contract with the Port Authority for the performance of concrete construction in connection with the construction of the World Trade Center. Prior to the date of the alleged theft, St. Paul issued to defendants Dic-Underhill a Contractors' Equipment insurance policy, numbered 365 JD 4974, insuring certain portable equipment *fn2" against "all risks of physical loss or damage from any external cause", with certain enumerated exceptions.

 On or about August 16, 1973, the mobile compressor was allegedly stolen from the World Trade Center jobsite and was never returned. By letter of the same date, Dic-Underhill Joint Venture notified Armitage & Co., Inc. of the loss, since Armitage was the agent for American Home Assurance Co., the insurance carrier of the Port Authority and its contractor, Dic-Underhill, for all work at the World Trade Center. Subsequently, on August 20, 1973, Armitage forwarded the claim to Edward D. Weinstock, Inc. for adjustment.

 From August 16, 1973 until March 31, 1975, Dic-Underhill and the Port Authority believed in good faith that the claim would be covered by American Home Assurance Co. However, by letter dated March 27, 1975 and received March 31, 1975, Dic-Underhill was informed by the Weinstock firm that the loss of the compressor was outside the scope of property covered under defendant's policy of builder's risk insurance, and that the claim would therefore be disallowed.

 On April 29, 1975, Dic-Underhill Joint Venture notified its own insurance broker, John C. Vorbach Company, of the loss. By letter dated April 30, 1975, the Vorbach Company notified St. Paul's agent, The Maloy Agency, Inc., and the agent forwarded the letter of notification to St. Paul, which received it on May 3, 1975.

 On September 2, 1975, St. Paul wrote to Dic-Underhill Joint Venture and informed them that "after careful consideration", St. Paul had concluded that the loss did not fall within the protection of the policy. Finally, on December 2, 1975, the instant suit was commenced by Gardner-Denver.

 On the basis of the above chronology, St. Paul moved for summary judgment, arguing that defendants (Dic-Underhill, as the insured, and the Port Authority, as subrogee) have failed to comply with that provision of their insurance contract which requires that the insured notify St. Paul of any loss "as soon as practicable". *fn3" On the authority of a number of New York cases, St. Paul contends that the interval between the alleged theft in August of 1973 and the notification given to its agent in April of 1975 is unreasonable and amounts to a contractual violation as a matter of law. *fn4"

 It is established New York law that compliance with the notice provision of an insurance contract is a condition precedent to an insurer's liability, and that an insurer need not show prejudice before it can assert the defense of noncompliance. Security Mutual Insurance Company of New York v. Acker-Fitzsimons Corp., 31 N.Y.2d 436, 340 N.Y.S.2d 902, 293 N.E.2d 76 (Ct.App.1972). Absent a valid excuse, a failure to satisfy the notice requirement vitiates the policy. Id. at 905, 293 N.E.2d at 78; Deso v. London & Lancashire Indemnity Company of America, 3 N.Y.2d 127, 164 N.Y.S.2d 689, 691, 143 N.E.2d 889, 890 (Ct. App.1957). A provision that notice be given "as soon as practicable" after an occurrence merely requires that notice be given within a reasonable time under all the circumstances. Id.; Security Mutual, supra, 340 N.Y.S.2d at 906, 293 N.E.2d at 79.

 Since it is not disputed that St. Paul's agent did not receive notice until April 30, 1975, the question is whether this delay of some twenty months after the date of the theft is unreasonable as a matter of law.

 Absent some excuse or mitigating circumstances, courts have passed judgment on the insured's compliance with notice provisions, and have found much shorter delays to be unreasonable. (51 days, Deso, supra ; 27 days, Reina v. United States Casualty Co., 228 App.Div. 108, 239 N.Y.S. 196 (App.Div., 1st Dept. 1930), aff'd 256 N.Y. 537, 177 N.E. 130 (1931); 30 days, Mason v. Allstate Insurance Co., 12 A.D.2d 138, 209 N.Y.S.2d 104 (App.Div., 2d Dept. 1960)). However, "mitigating circumstances may arise if the insured lacks, or is incapable of acquiring, knowledge of the occurrence; or the insured is out of the state; or in good faith reasonably believes there is no policy coverage or that the insured was not liable on the main action. [citations omitted]." Kason v. City of New York, 83 Misc.2d 810, 373 N.Y.S.2d 456, 459 (Sup.Ct., N.Y.Cty. 1975). Where these excuses are asserted by the insured in mitigation of his failure to provide prompt notice to the insurer, the New York courts have apparently allowed the jury to evaluate the reasonableness of the insured's conduct. Deso, supra, 164 N.Y.S.2d at 691, 143 N.E.2d at 890; Allstate Insurance Co. v. Manger, 30 Misc.2d 326, 213 N.Y.S.2d 901, 905 (Sup.Ct., Queens Cty. 1961).

 However, defendants do not rely on any of these accepted mitigating theories. Rather, they argue that their twenty-month delay in notifying St. Paul is excused by their good faith belief that their loss would be reimbursed by the American Home Assurance Company. Although it appears possible that there might be a serious question as to the reasonableness of their delay from the end of March, 1975 to the end of April, 1975 which could properly be entrusted to a jury for decision, defendants have cited no case, nor has the court's research discovered any case, in which notification of the "wrong" insurer has excused a failure to promptly notify the insurer being sued.

 As a matter of fact, the law in New York seems to be that timely notification to another insurer does not excuse failure to notify the insurer being sued as soon as practicable. Mason, supra; Reina, supra. In Mason, the insured had inadvertently notified the wrong insurer concerning an automobile accident, and the proper insurer was not notified until a substantially later time.After reviewing the circumstances which may be legally sufficient to excuse a failure to promptly notify the proper insurer, the Appellate Division found "no extenuating circumstances in the instant case." "Negligence in notifying the wrong insurer does not excuse failure to give notice to the proper one." 209 N.Y.S.2d at 113.

 The facts of this suit seem to present an even stronger case for application of the principle established by Mason and Reina. In this case, there seems to be no doubt that the defendants knew that they had a policy of insurance with St. Paul and suspected that they might be held liable for the compressor's loss. Their decision to look to American Home Assurance for reimbursement was apparently not based on any confusion as to the identity of the insurer, but rather reflected an election between those insurers whose policies might arguably cover the loss. No circumstance has been brought to the attention of the court which would have prevented defendants from notifying St. Paul at the time of ...

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