Summary
holding that insured's false statements "prejudiced the insurer" and constituted "`willful and avowed obstruction'"
Summary of this case from New York City Housing v. Housing Auth. RiskOpinion
May 21, 1964
Appeal from the Ontario Trial Term.
Present — Williams, P.J., Goldman, Henry, Noonan and Del Vecchio, JJ.
Judgment unanimously reversed on the law and facts, without costs of this appeal to any party and declaratory judgment granted in favor of plaintiff in accordance with paragraph 3 of the prayer for relief contained in the complaint. Memorandum: In Wallace v. Universal Ins. Co. ( 18 A.D.2d 121, affd. 13 N.Y.2d 978), relied upon by respondent, the insured furnished a written statement of facts which if believed, could exculpate him, verified an answer and discussed the case with insurer's attorney in anticipation of an examination before trial, but the insurer was not diligent in using the information available to locate him to appear as a witness at the examination before trial. Here, in reporting the accident the following day to his insurance agent, who prepared the MV 104, the insured falsely stated that another person was driving the car and that he was a passenger. In his statement to the insurer about six months later he said that his cousin, a soldier stationed in Florida, was the driver. It developed that the alleged driver was a mythical person and that the insured was the driver. Therefore the Wallace case has no application. We conclude that the attitude of the insured was one of "willful and avowed obstruction" ( Coleman v. New Amsterdam Cas. Co., 247 N.Y. 271, 276), that by making false statements concerning the facts of the accident the insured breached the condition of co-operation and seriously prejudiced the insurer in handling the claims and lawsuits arising out of the accident. (See United States Fid. Guar. Co., v. von Bargen, 7 A.D.2d 872, affd. 7 N.Y.2d 932; General Mut. Ins. Co. v. Grempel, 17 A.D.2d 650.)