I wrote here about Miles v. Great Northern Ins. Co., 2009 WL 2998529 (D. Mass.), in which on summary judgment the court punted on the question of whether an insured can cure a breach of the duty to cooperate.
After trial the United States District Court held "[o]rdinarily, an insured's failure to cooperate is grounds for denial of coverage only if the insurer makes an affirmative showing of actual prejudice . . However, there is a limited exception to the prejudice requirement in cases of an insured's wilful and unexcused failure to submit to an examination under oath."
The court stated, "an insured's right to cure a breach of the duty of cooperation is limited in scope, particularly in cases of willful failure to submit to an examination under oath." Miles v. Great Northern Ins. Co., __ F.2d __, 2009 WL 4363211 (D. Mass.)
The court held that under the facts of the case before it the insureds' "willful refusal to comply with the terms of their insurance contract resulted in a material dilution of [the insurer's] rights. . . . Accordingly, there is no legal or equitable basis on which to give [the insureds] a second (or third) chance to comply with their contractual obligation."