Lopez v. Government Employees Ins.

QUEENS COUNTY
Insurance Law

New York Law Journal

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Justice Robert McDonald

Insurer GEICO moved to dismiss complaint based on the affirmative defense of lack of standing. Plaintiffs sought a judgment declaring that GEICO was obligated to provide coverage to its insureds, Feliciano and Guerrero, for claims asserted against them by plaintiffs in an underlying negligence action. The court stated an injured party could not bring a declaratory judgment action against a tortfeasor's insurer before obtaining a judgment against the tortfeasor. Here, it was undisputed plaintiffs did not obtain a judgment in the underlying action. A statutory exception permitted a direct suit by an injured party against a tortfeasor's insurer before obtaining a judgment in an underlying action only if the insurer's disclaimer was based on the insured's alleged failure to provide timely notice of the incident. Such exception applied only to policies issued after Jan. 17, 2009, and the court found as the policy herein was issued July 2006, plaintiffs' arguing they had a right to bring such action under the amended statutes for the exception to apply was meritless. Thus, as the injured parties commenced the action without satisfying a condition precedent to suit against the insurer, GEICO's motion to dismiss was granted.

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