Opinion
01 Civ. 2272 (GBD)
February 25, 2002
MEMORANDUM OPINION ORDER
Parties insured by Highlands Insurance Company move to intervene in this action and for a preliminary injunction and temporary restraining order enjoining Highlands from cancelling their livery car insurance policies as of March 1, 2002. This Court was contacted by counsel for the insureds on February 20, 2002 requesting a hearing on these motions. The insureds filed and served their papers on February 21, 2002 and oral argument was held on February 22, 2002.
In this Circuit, a preliminary injunction or a temporary restraining order may be granted only if the moving party shows "1) absent injunctive relief, it will suffer irreparable harm, and 2) either a) that it is likely to succeed on the merits, or b) that there are sufficiently serious questions going to the merits to make them fair ground for litigation, and that the balance of hardships tips decidedly in favor of the moving party." Wright v. Giuliani, 230 F.3d 543, 547 (2d Cir. 2000);see also Jackson Dairy, Inc. v. H.P. Hood Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). The proposed intervenors have failed to meet that test.
The proposed intervenors argue that they will suffer irreparable harm because Highlands' cancellation of their insurance will leave them without insurance with no reasonable alternative available coverage. However, the parties have failed to demonstrate that no alternative insurance, rather than a more expensive one, is available. They have failed to further demonstrate that any potential harm alleged is irreparable and cannot be compensated in damages. Moreover, the parties have not demonstrated a likelihood of success on the issue raised regarding Highlands' right to cancel those policies. That issue warrants further litigation. Furthermore, given the tenuous financial condition of Highlands as compared to the alleged serious consequences to the insureds if an injunction does not issue, the balance of hardships does not tip decidedly in their favor.
Additionally, the insureds seek equitable relief because coverage under the policies will expire within days. However, the insureds clearly knew or should have known that the policies would expire on March 1, long before they made the present application to this Court. The insureds' delay in taking action undermines the rationale for granting preliminary injunctions, that is, that "there is an urgent need for speedy action to protect the [insureds'] rights." Citibank, N.A. v. Citytrust, 756 F.2d 273, 276 (2d Cir. 1985). The proposed intervenors have created their own urgency. In fact, some of the insureds made this same application in June 2001, and days later withdrew that application. They alleged at that time that some policies were scheduled to terminate on July 1, 2001 and that all others were being cancelled on March 1, 2002. Despite that knowledge, the parties took no action to litigate or seek any determination and relief on a timely basis. Even for those not directly involved in the previously withdrawn motion, all other insureds were informed of the pending cancellation date by December 14, 2001. No application was made to this Court until February 20, 2002. Based upon these circumstances alone, the granting of the type of equitable relief now sought is unwarranted.
For the foregoing reasons, the insureds motion for a preliminary injunction and temporary restraining order is denied.
SO ORDERED.