COURT REJECTS INSURER'S DUTY TO COOPERATE DEFENSE ARGUMENT BECAUSE OF INSURER'S OWN DELAY
Insurance policies typically include provisions that require an insured to cooperate with an insurer's investigation of a claim. These provisions are generally enforceable, and an insured's failure to cooperate may provide an insurer with an affirmative defense to coverage where such failure prejudices the insurer.
But a failure to cooperate defense typically raises factual issues that implicate the conduct of the insurer as well as the insured. This reality is illustrated by the January 5, 2010 summary judgment ruling from Judge Robert Bryan of the United States District Court for the Western District of Washington in Coleman v. American Commerce Insurance Company (.pdf). American States sought dismissal because the insured had failed to sit for an examination under oath and had not provided medical records to support the emotional injury claim. But Judge Bryan concluded that there were genuine issues of material fact because, among other things, American Commerce did not request an examination of the insured until several years after the underlying accident and only after the insured had delivered a 20-day notice of intent to sue under Washington's Insurance Fair Conduct Act.
