Daniel J. Amatucci Et Al. v. Maryland Casualty Company

Appeal from a judgment of the Supreme Court, Sullivan County, granted pursuant to section 167 of the Insurance Law and entered on June 12, 1964. As a result of an automobile accident each of the plaintiffs recovered a judgment against Michael A. Salvati. He had disappeared prior to the trial and his insurer, the defendant Maryland Casualty Company, refused to pay the judgments on the ground that Salvati had breached the co-operation clause of his insurance contract. The issue before us is whether or not Salvati's disappearance affords appellant the defense of breach of the co-operation clause. There appears to be no dispute about the facts. The proof shows that following the commencement of the negligence action against Salvati he gave a statement to defendant's representative and later willingly appeared and testified at plaintiffs' examination before trial. He disappeared before signing the transcribed minutes and, in spite of a most thorough search by defendant, has not been seen or heard from since. Defendant's claims manager, its claims adjuster and two of its hired investigators failed to find Mr. Salvati who at that time was 72 years of age. Evidence presented at the trial disclosed that on several occasions he had expressed a desire to commit suicide. Although he was a member of a large family none of them had seen him after his disappearance and he had failed to appear at the funerals of his brother and another relative, Katherine Salvati. A 13-State alarm produced no results. One witness, Charles White, testified that on July 7, 1961 he gave Salvati a ride from a point near Middletown to Newburgh; that during the trip Salvati