In my last article in this space, I discussed the recent history of New York’s disclaimer statute, Ins. L. §3420(d)(2), and one of its explicit statutory limitations—the requirement set forth in the statute that the policy being denied or disclaimed be one that was “issued or delivered” in New York. This article continues the discussion of the applicability or inapplicability of the statute by focusing on another explicit statutory limitation—the requirement that the claim at issue be one involving “death or bodily injury”—as well as certain judicially created or recognized limitations or exclusions from the applicability of the disclaimer statute, and, indeed, Ins. L. §3420 as a whole.

‘Death or Bodily Injury’

Notwithstanding the existence—since the 1959 statutory amendment, discussed in part one of this article (see “The Applicability (Inapplicability) of New York’s Disclaimer Statute,” NYLJ, Jan. 31, 2017)—of language specifically limiting application of Ins. L. §3420, to, inter alia, claims involving “death or bodily injury,” several decisions by the Appellate Division, First Department, appeared to and/or were interpreted to ignore that limiting language and apply the provisions of the disclaimer statute to non-bodily injury or death cases. See, e.g., Malca Amit New York v. Excess Ins. Co., 258 A.D.2d 282 (1st Dept. 1999) (involving theft of a gem shipment); Hotel des Artistes v. General Accident Ins. Co. of America, 9 A.D.3d 181 (1st Dept. 2004) (involving a claim of fire damage and loss of business interruption insurance to a restaurant); and Estee Lauder v. OneBeacon Insurance Group, 62 A.D.3d 33 (1st Dept. 2009) (involving a breach of contract and declaratory judgment action arising from a refusal to defend and indemnify certain environmental claims).

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