Coverage Pointers - Volume I, No. 1

7/6/99: NATIONAL UNION FIRE INS. CO. OF PITTSBURGH P.A. v. HARTFORD INS. CO. OF THE MIDWEST
New York Court of Appeals
Collateral Estoppel Does Not Preclude Action for Contribution Against Co-Insurer
An insurer is not collaterally estopped from maintaining an action for contribution against a non-party co-insurer based on a determination of the insurer’s obligation to defend and indemnify its insured because there is no identity of issues.
[Available upon request]

7/1/99: ARGENTINA v. EMERY WORLDWIDE DELIVERY CORP.
New York Court of Appeals
Owner of Vehicle Can Be Held Vicariously Liable Even if Vehicle Not Proximate Cause of Injury.
In its broadest interpretation of Vehicle & Traffic Law §388 yet, the New York Court of Appeals determined that "loading and unloading" of a vehicle constitutes "use and operation" for purposes of the vicarious liability statute and, unlike the No Fault law, the vehicle need not be the proximate cause of the injury before the vehicle’s owner may be held vicariously liable.
http://www.law.cornell.edu/ny/ctap/I99_0108.htm
 

7/1/99: BRYANT v. NEW YORK CITY HEALTH AND HOSPITALS CORP.
New York Court of Appeals
New York Court of Appeals Wrestles with CPLR Article 50-B – Again.
These consolidated cases presented "three nuts-and-bolts questions" relating to the calculation of damages. First, the Court was asked whether the proper basis for the "annual payments" is the future or present value of the remaining future damages award and concluded that it is the undiscounted future value of the award that is payable over time. Second, the four- percent statutory additur is to be included in the damage award prior to determining attorney’s fees. Finally, plaintiff’s recovery is to be offset by social security survivor benefits.
http://www.law.cornell.edu/ny/ctap/I99_0109.htm

7/1/99: KASSIS v. TEACHER’S INSURANCE & ANNUITY ASSOCIATION
New York Court of Appeals
"Chinese Wall" Does Not Avoid Law Firm Disqualification.
An associate who had handled a litigated matter in one law firm, and who acquired consequential client confidences, joined another firm involved in the same litigation. Although the second firm erected a "Chinese Wall" to assure that the associate was not involved in the litigation, the Court of Appeals held that the second law firm was nevertheless disqualified. If the attorney holds material confidences, screening measures to isolate the attorney are irrelevant and disqualification of the firm is required as a matter of law.
http://www.law.cornell.edu/ny/ctap/I99_0110.htm
 

6/29/99: SOMERSTEIN CATERERS OF LAWRENCE, INC. v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA
New York State Supreme Court, Appellate Division, First Department
Fire Insurance – Cooperation Clause.
The insured’s refusal to present its treasurer or bookkeeper for examination under oath for loss claimed under its fire policy constituted a material breach of the policy's cooperation clause and, as such, precluded the insured’s recovery of policy proceeds.
[Available upon request]
 

6/21/99: PERSAUD V. RAHMAN
New York State Supreme Court, Appellate Division, Second Department
No-Fault Insurance – 90-day Written Notice: Attorney’s Letter that Failed to Include Time, Place and Circumstances of Accident Does Not Comply with Written Notice Requirements.
In an action to recover damages for personal injuries and to recover unpaid no-fault insurance benefits, the Appellate Division held that plaintiff’s attorney’s letter requesting no-fault benefit applications sent several days following the accident was insufficient to constitute proper written notice because it failed to set forth "reasonably obtainable information regarding the time, place and circumstances of the accident" as required by 11 NYCRR 65.11(m)(2). Since the plaintiff failed to file the written notice within the 90-day period and failed to submit "written proof that it was impossible to comply with such time limitation due to the specific circumstances beyond [his] control" (11 NYCRR 65.11(m)(2)), the court properly dismissed the action.
[Available upon request]
 

6/18/99: GARRETT v. AMERICAN MANUFACTURERS MUTUAL INSURANCE COMPANY
New York State Supreme Court, Appellate Division, Fourth Department
Adult Daughter May Be Resident of Both Parents’ Households For Purposes of SUM Endorsement.
There is an issue of fact whether plaintiff’s 25-year-old daughter may be deemed a resident of plaintiff’s household for purposes of the supplementary uninsured motorists (SUM) endorsement of plaintiff’s policy of automobile. Although it is undisputed that plaintiff’s daughter resided primarily with her father, there is conflicting evidence whether she also resided with plaintiff within the meaning of the SUM endorsement (see, Nationwide Ins. Co. v Allstate Ins. Co., 181 AD2d 1022). The Court rejected the insurer’s contention that the daughter’s age is a determinative factor inasmuch as the policy has no age restrictions.
[Available upon request]