Coverage Allowed for Sexual Assault by Insured's Employee
NYAT Operating Corp. v GAN National Ins. Co. (NY App., 1st Dept., Dec. 6, 2007)
In an action for defense and indemnity for claims that insured’s employee sexually assaulted claimant, court held that because insured’s liability was based on negligent hiring and retention of employee, not respondeat superior, sexual assault was covered “accident” within meaning of policy, and expected/intended harm exclusion did not apply. Court also held that late notice defense was waived by insurer’s failure to timely notify disclaim coverage. Dismissal of insured’s complaint for its default in opposing insurer’s CPLR 3126 motion did not estop claimant, as intervener, from asserting insured's coverage under policy.
In an action for defense and indemnity for claims that insured’s employee sexually assaulted claimant, court held that because insured’s liability was based on negligent hiring and retention of employee, not respondeat superior, sexual assault was covered “accident” within meaning of policy, and expected/intended harm exclusion did not apply. Court also held that late notice defense was waived by insurer’s failure to timely notify disclaim coverage. Dismissal of insured’s complaint for its default in opposing insurer’s CPLR 3126 motion did not estop claimant, as intervener, from asserting insured's coverage under policy.
