There is a recent case in New York1 regarding the proof of loss requirement — an issue we have discussed in recent posts. The case involved a situation where the carrier denied the fire claim by a deli/grocery store on the basis of fraud and filed a motion requesting the trial court grant judgment in its favor, asserting the policyholder never filed a proof of loss.

The County Fire Investigation Division conducted an investigation shortly after the fire and issued a report concluding the fire was accidental and originated on the premises. The Fire Investigation Division later revised its determination from accidental to undetermined. The carrier asserted the fire was incendiary and the result of an intentional act.

The policyholder contended it provided notice of the loss, submitted all required documentation, and completed all necessary examinations under oath. The Court noted in the opinion there were two notices where the carrier demanded proof of loss from the policyholder and the letters contained the following instruction: “Send us a signed, sworn statement of loss containing the information we request to investigate the claim. You must do this within 60 days after our request. We will supply you with the necessary forms.” The letters quoted the policy provision regarding the proof of loss.

The Court noted that the record before it contained no evidence that the carrier provided the policyholder with the form for submission of the proof of loss. The Court noted that the policyholder had “diligently” completed the only form ever provided by the carrier; a contents claim worksheet.

The Court held that the carrier’s failure to provide the policyholder with the form for submission of the proof of loss was grounds for denying the carrier’s motion, and the case was able to proceed as to damages and coverage.

The case demonstrates how carriers may be required to provide New York policyholders the claim forms necessary for submission of the proof of loss.

1 Nishiewat v. Preferred Mutual Insurance Company, Slip Copy, 37 Misc.3d 1227(A), 2012 WL 6031883 (N.Y. Sup. December 5, 2012).