Question. Does lack of actual receipt of a summons excuse insured from complying with notice requirement?
Answer. Not where the insured’s failure to keep its address current with the Secretary of State, is why the insured did not actually receive a copy of the underlying personal injury summons.
The subject insurance policy's notice of claim
condition precedent to coverage required the insured to notify the
insurance company of an occurrence which might result in a claim "as
soon as practicable." The receipt of service of a personal injury
summons with notice by the Secretary of State, as insured's designated
agent, constituted receipt by the insured itself. In New York, when you
incorporate you register with the New York Secretary of State. In so
registering you are designating the Secretary of State as your agent for
service of process (i.e. to receive legal notifications). It is your
obligation to keep the Secretary of State notified of any changes in
your address. The fact that the insured did not actually receive a copy
of the summons with notice, due to its failure to keep its address
current with the Secretary of State, does not excuse its noncompliance
with the notice requirements of the policy. As the insured did not
provide notice of the action to its insurer until receipt of a motion
for default judgment some five-and-a-half months after service of
process, the insurance company was entitled to disclaim coverage.