In a June 9, 2011 decision by Justice Schmidt, the court denied summary judgment to a building contractor who argued that New Jersey or Pennsylvania law applied to an insurance contract which did not contain a choice of law provision. The litigation arose from a personal injury claim filed by a worker while working on renovations to a Pennsylvania nursing home. The contractor first sought coverage (and submitted a notice of claim) after it was sued.The insurer brought a declaratory judgment action seeking an order that it had no duty to defend or indemnify the contractor. The basis for the insurer’s action were: (i) late notice – it was first provided notice 549 days after the accident; (ii) a contractual exclusion for work performed by independent contractors; and (iii) a residential construction work exclusion. The contractor moved for summary judgment arguing that the late notice provision should be interpreted under New Jersey or Pennsylvania law, and therefore, the insurer had to demonstrate prejudice from the late notice. The contractor also argued that the exclusions were inapplicable.

The court denied summary judgment holding that the insured “failed to show that the action lacks substantial connection to New York” so that another’s state’s law should apply in interpreting the late notice provision. Therefore, the insurer did not have to show prejudice from the late notice; as late notice alone would be sufficient to deny the claim. The court also found there were factual issues precluding a finding that the other exclusions were inapplicable.

Aspen Ins. UK Ltd. v East Coast Preserv. Co., LLC, Sup Ct, Kings County, June 9, 2011, Schmidt, J, Index No. 3804/10.