Recent amendments to Insurance Law § 3420 permits a claimant in an action arising out of personal injury or wrongful death to file suit directly against the tortfeasor’s insurer for declaratory relief where the insurer’s denial is premised upon late notice. Previously, New York law permitted a tort claimant to file a direct action against an insurer only where a judgment against an insured remained unsatisfied for 30 days.
The fourth issue addressed by the OGC was whether a third party may bring a direct cause of action against a New York insurer in a foreign jurisdiction subsequent to the insurer’s denial of coverage on late notice grounds if the policy was delivered in a foreign jurisdiction that requires a judgment against, or settlement with, the insured prior to the initiation of such action. The OGC answered that query in the negative, stating that “Insurance Law § 3104(b) allows a New York insurer to include in any policy of insurance issued for delivery in another jurisdiction any provision required by the laws of such other jurisdiction applicable to such policy.” The OGC added that “[h]owever, if a jurisdiction outside New York prohibits a direct action, Insurance Law § 3104(b) expressly permits a domestic insurer to include in any insurance policy or annuity contract issued for delivery in that jurisdiction and governed by that jurisdiction’s law any provisions required by the laws of that jurisdiction applicable to the insurance policy or annuity contract.”