Second U.S. Circuit Court of Appeals
In Briggs Ave. L.L.C. v. Insurance Corp. of Hannover, ___ F.3d ___, 2008 WL 5220541 (2d Cir. (N.Y.) Dec. 16, 2008), the Second U.S. Circuit Court of Appeals addressed whether a policy's notice of claim condition was breached, therefore forfeiting coverage. In Briggs, the insured asserted that it did not receive actual notice of a lawsuit filed against it because process was served on the secretary of state, who forwarded the summons and complaint to the insured's incorrect address, as the insured had failed to update its address. The Second Circuit, after certifying the question to the New York Court of Appeals, affirmed the district court's dismissal of the insured's declaratory judgment action. The court held that service of process on the secretary of state, who is a designated agent for service under New York law, triggers an insured's duty to notify its insurer regardless of whether the policy expressly states that the duty to notify is triggered by service on the insured's representative.
On cross-motions for summary judgment, the insured argued that it complied with the policy provision requiring notification "as soon as practicable" because notification was "practicable" only after the insured received actual notice of the action.
The district court found, and the Second Circuit affirmed, that the insured could have "practicably" changed its address on file with the secretary of state. The insured's notification of the lawsuit almost eight months after service of process was sent to the secretary of state was not "as soon as practicable."
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