Commercial Division Blog
Late Notice Defense Not Waived as a Matter of Law by Failing to Include it in Disclaimer Letters
On September 15, 2016, the Court of Appeals issued a decision in Estee Lauder Inc. v. OneBeacon Insurance Group, LLC, 2016 NY Slip Op. 06012, holding that an insurer had not waived a late notice defense by not including it in its disclaimer letters, explaining:
Analyzing the circumstances under the common-law waiver standard, which requires an examination of all factors, defendants cannot be said to have waived their right to assert the late-notice defense as a matter of law by failing to specifically identify late notice in their disclaimer letters. Defendants identified the late-notice defense in early communications with plaintiff before relying on a reservation of rights in two disclaimer letters. Under common-law principles, triable issues of fact exist whether defendants clearly manifested an intent to abandon their late-notice defense.
(Internal quotations and citations omitted).