 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Lorenzo-Martinez v. Safety Insurance Company6/19/2003
te a claim that it did not consider suspect before it made its demand for an examination under oath, in light of Martinez's obligation under the policy to cooperate with Trust's investigation of the claim and Trust's reciprocal obligation to exercise good faith and diligence in securing that cooperation. Imperiali v. Pica, 338 Mass. 494, 498-499 (1959). Once Trust had exhausted its efforts to secure that cooperation (certainly after seven attempts had been made to obtain, without additional expense, a statement to which it was entitled) and was faced on May 10, 1999, with a potential law suit for unfair settlement practices without the prospect of a statement from its claimant, its request for an examination under oath was made within a reasonable time after receipt of notice of the claim in accord with the policy provision. In those circumstances, Martinez's refusal to submit to an examination under oath was both wilful and unexcused, resulting in the forfeiture of coverage of his claim for uninsured benefits under his policy. Summary judgment was appropriate on his claim.
We now turn to the allowance of Safety's motion for summary judgment. Suarez argues that her refusal to submit to an examination under oath was justified because Safety filed its request for such an examination on September 29, 1999, some thirteen months after Safety's receipt of notice of her claim on August 23, 1998. Unlike Trust, which promptly undertook an investigation of its insured's claim and made repeated attempts to secure a statement from its insured, the record does not disclose that Safety made any attempt to contact Suarez or investigate her claim after receipt of her notice of claim until May, 1999. In fact, in June, 1999, Safety was prepared to settle the claim without a statement from Suarez. Thereafter there is nothing on the record that indicates that Safety did anything to investigate the claim until after Suarez had initiated this action. In these circumstances, mindful that an insurer has a reciprocal duty to exercise good faith and diligence in seeking cooperation from its insured, Imperiali v. Pica, 338 Mass. at 498-499, we are of the opinion that Safety's request for an examination under oath some thirteen months after receipt of notice of the claim was not made within a reasonable time and that Suarez's refusal to submit to an examination under oath was justified. For this reason, summary judgment should not have been granted for Safety.
The judgment dismissing Martinez's complaint against Trust is affirmed, and a judgment shall enter on Trust's counterclaim declaring that Martinez is not entitled to uninsured coverage under his motor vehicle insurance policy issued by Trust because of his wilful, unexcused failure to submit to an examination under oath. The judgment dismissing Suarez's complaint is vacated, and a judgment shall enter on Safety's counterclaim declaring that Suarez's refusal to submit to an examination under oath did not constitute a breach of the automobile insurance contract issued by Safety to her which is the subject of this action. The matter is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Page 1 2 3 4 Massachusetts Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|