7.24 - B. Excuses

JurisdictionNew York

b. Excuses

In refusing to appear at the EUO or to respond to certain questions, the insured may attempt to justify noncompliance with the following excuses:

failed to answer on Fifth Amendment grounds1956

insured’s illness1957

insured unavailable due to incarceration1958

voluntary absence from geographic area1959

involuntary absence from geographic area1960

Perhaps one of the most interesting excuses occurs when the insured makes a belated offer to answer the questions or to appear at the EUO. In Allstate Insurance Co. v. Longwell,1961 the court held that a belated offer does not cure the breach of the cooperation:

Longwell waited nearly nine months before offering to answer the disputed questions and more than fourteen months after the fire. Accordingly, we find as a matter of law that the defendant cannot cure his default by his belated offer to answer the questions and his belated signing and return of the transcript. 1962

Courts in other jurisdictions have held that a belated offer after an initial refusal does not constitute a material breach.1963

Insureds also have attempted to hide behind the advice of counsel and have asserted that the refusal to appear, answer questions or sign the transcript on the advice of counsel should not constitute a material breach. This strategy failed in at least one case. In Evans v. International Insurance Co.,1964 the court noted:

The plaintiffs were warned repeatedly that their refusal to provide material documentation might lead to a disclaimer under the policy by the defendant. Plaintiffs’ continued failure, without reasonable explanation or excuse, to provide the requested information constituted a material breach of the
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