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ERWIN DEMARINO TRUCKING CO. v. JACKSON

December 13, 1993

ERWIN DeMARINO TRUCKING CO., Plaintiff,
v.
ALAN FRANCIS JACKSON and BESLYN ASSOCIATES, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 In this case in which jurisdiction is predicated upon diversity of citizenship, plaintiff Erwin DeMario Trucking Co. ("Trucking") seeks to collect on an insurance policy covering loss of a missing truck, issued by Lloyds of London and assigned to defendant Alan Francis Jackson (the "insurer"). Trucking has also sued the insurance agent it contacted, Beslyn Associates ("Beslyn"). Trucking and the insurer have filed cross-motions for summary judgment against each other, and Trucking seeks a default judgment against Beslyn. I grant the insurer's motion and deny those of Trucking.

 II

 The operative facts, as distinct from legal inferences to be drawn from them, are undisputed. Trucking had suffered an earlier disappearance of a truck, and found it difficult to get theft insurance thereafter. Trucking's principal knew people at Beslyn and asked them to help Trucking obtain a policy. Beslyn contacted Lloyds of London, leading to issuance of a policy by the insurer. Trucking, not the insurer, brought Beslyn into the transaction.

 The insurer routinely required, and received from Beslyn, an application form. The form filed on behalf of Trucking failed to disclose the prior loss although such information was requested by the form. A loss thereafter occurred, Trucking invoked the policy, and the insurer refused to pay.

 II

 Where a claim is "implausible," its proponent must "come forward with more persuasive evidence to support [the] claim than would otherwise be necessary." Matsushita Electric Industrial Co v Zenith, 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Trucking's position is implausible and indeed contrary to ordinary experience, and is not supported by any evidence which would suggest that it could recover on the policy.

 III

 Where an insurer fails to take reasonable precautions to obtain truthful information, or recruits agents who in turn misled applicants as to the necessity of truthful answers to questions on applications, this may estop the carrier from asserting nondisclosures as a defense or a basis for rescinding a policy. See generally Kane v. Aetna Life Ins Co, 893 F.2d 1283 (11th Cir 1990), cert. denied 498 U.S. 890, 112 L. Ed. 2d 192, 111 S. Ct. 232; Parker v. Prudential Ins Co, 900 F.2d 772, 778 n 7-8 (4th Cir 1990); Graham, "Use of Advertising Materials to Determine Insurance Coverage," 57 Defense Counsel J No 3 at 332 (July 1990); Leitner, "Enforcing the Customer's 'Reasonable Expectations' in Interpreting Insurance Contracts," 38 Federation Ins & Corp Counsel Q 379 (1988); Brennan & Hanson, "Misrepresentation in the Application as the Basis for Recission of a Property Insurance Policy," 21 Tort & Ins LJ No 3 at 451 (ABA Spring 1986).

 The current case, however, involves a situation in which the insured was aware that its prior loss experience was an obstacle to coverage and chose to keep it from the insurer, thus forfeiting any claim to the policy. See N.Y. Ins. Law 3105; Mutual Benefit Life Ins Co v. JMR Electronics, 848 F.2d 30 (2d Cir 1988); New York Life Ins Co v. Palmer, 169 A.D.2d 823, 565 N.Y.S.2d 192 (2d Dept 1991).


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