A Connecticut district court recently awarded summary judgment in favor of an insurance company due to the insured’s failure to cooperate in the insurer’s investigation of a claim. Selective Ins. Co. v. Oliveira Building Contractors, LLC, et al., 3:07-CV-00918-JCH (D. Conn. May 18, 2009).
The insured was sued following a incident that resulted in physical injuries to claimants at a construction site at which the insured provided construction-related services. At the time of the incident the insured was covered by a commercial general liability and excess insurance policy that required the insured to cooperate with the insurer in the investigation or settlement of a claim or defense.
The insurer sought a declaration that the insured’s failure to cooperate with the investigation precluded coverage for the insured. The insurer moved for summary judgment, and provided evidence that the insured failed to cooperate with the insurer’s investigation of the incident by ignoring the insurer’s numerous requests for information regarding the incident including telephone calls, written correspondence, a personal visit, and contact with the insured’s insurance agent. Additionally, a representative of the insured failed to appear for a scheduled deposition, and the insurer was unable to serve a notice of deposition on the insured’s principal owner because he was incarcerated. The insured did not set forth any facts in opposition to those of the insurer, and because the stated facts were supported by citations to competent evidence, the court deemed them admitted.
The court awarded summary judgment for the insurer, concluding that the insured’s repeated refusal to cooperate with the insurer constituted a material breach of the policy. The court based its conclusion on the undisputed facts that, with one exception, the insured did not respond to the insurer’s repeated efforts to make contact and obtain cooperation, nor did the insured respond to a properly served deposition notice. The court also concluded that the insurer’s efforts at contact satisfied the “diligent search and inquiry” requirement. The court noted that no insured had attempted to establish that any failure at cooperation did not prejudice the insurer. For those reasons, the court held that the insured forfeited any coverage under the policy that might otherwise have been available.