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Coverage Pointers - Volume V, No. 12

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FDCC LITIGATION MANAGEMENT COLLEGE

We are pleased to advise you of two superb educational programs available for claims professionals: The 10th Annual FDCC Litigation Management College and the Graduate Program of the FDCC Litigation Management College, and urge you to consider attendance.  You can find additional information and brochures for these two programs, as well as online registration, at the FDCC website: www.thefederation.org.

 
The 10th Annual FDCC Litigation Management College is being held at the J. L. Kellogg Graduate School of Management, Northwestern University in Evanston, Illinois, May 24 - 28, 2004.  It is a program designed exclusively for the Claim Professional to enhance litigation management and negotiation skills. The Litigation Management College is sponsored by the Federation of Defense & Corporate Counsel as a service to claim professionals from the insurance industry and self-insureds organizations. The target group for the College is claim professionals with three to twelve years claims and/or litigation management experience. The college consists of an intensive five-day series of workshops and participatory, interactive educational experiences. It provides a unique opportunity for claim professionals to meet, study, and discuss issues of common interest with the focus on the increasingly important area of litigation management. The curriculum is designed to provide a practical approach to litigation management. Everyone who attends should leave with new and enhanced skills to improve the work of litigation management.

The Graduate Program of the FDCC Litigation Management College is being held at the J. L. Kellogg Graduate School of Management, Northwestern University in Evanston, Illinois, May 24 - 26, 2004.   In response to the demand in the insurance industry for advanced skills training in litigation management, nine years ago the Federation of Defense & Corporate Counsel began an annual five-day intensive course devoted to the advanced study of litigation management. In response to the overwhelming success of the Litigation Management College and also requests from Alumni, the FDCC is pleased to offer its Graduate Program to the Alumni of the Litigation Management College, as well as to any students certified by their employers to have company experience equivalent to the rigors of the College to satisfy the admission prerequisite.   The purpose of the Graduate Program is to build on the solid foundation provided by the Litigation Management College to refine the student’s understanding of advanced coverage issues, strategic litigation tactics, and alternatives for resolution of disputes on favorable terms, while gaining further understanding of the process to allow application of these skills to any litigation challenge that may arise on the job in a cost-effective.

 

Dan Kohane has served on the faculty of the Litigation Management College for the past five years, and is now involved in the planning of the Graduate Program.  If you have any questions about either of these programs, please call him at 716-849-8942.

 

12/29/03          GENERAL ELECTRIC CAPITAL CORP. v VOLCHYOK

New York State Supreme Court, Appellate Division, Second Department

Additional Insured Named in Declarations Page of Policy Entitled to Notice Prior to Policy Cancellation

A vehicle leased by defendant from the plaintiff was stolen and never recovered. In accordance with the terms of the lease, defendant had obtained a policy naming the plaintiff vehicle owner as an additional insured and as loss payee. The insurer denied plaintiff’s claim, asserting that it cancelled the insurance policy for nonpayment of premiums before the loss by mailing a proper notice of cancellation to defendant. Plaintiff asserted a cause of action against Progressive to recover damages for breach of the policy because it failed to provide plaintiff with prior notice of cancellation as required by the terms of the policy. Specifically, the cancellation clause provided that a notice of cancellation was required to be mailed at least 15 days before the effective date of cancellation to the named insured shown on the declarations page. Plaintiff claimed it was entitled to such notice, as it was named as an additional insured on the declarations page. The court agreed, finding as a matter of law that it was the intent of the drafter of the cancellation clause that notice of an impending cancellation be given to those named insureds on the declarations page of the policy. Moreover, the insurer knew that plaintiff was the owner of the vehicle, as plaintiff was named as an insured on the policy. Therefore, the insurer was obligated to notify plaintiff regarding the cancellation of the policy.

 

12/18/03          DURHAM v NEW YORK EAST TRAVEL, INC.

New York State Supreme Court, Appellate Division, Third Department

Expert’s Designation of Numeric Percentage of Loss of Range of Motion Substantiates Claim of “Serious Injury” Where Herniated Disc Established by Objective Medical Evidence

Plaintiff commenced this action to recover for personal injuries she sustained when her motor vehicle was rear-ended by another. Defendants moved for summary judgment, contending that plaintiff did not sustain a serious injury under Insurance Law §5102 (d). Supreme Court found that the affidavit of plaintiff’s treating physician was insufficient to raise a question of fact as to whether she had suffered a serious injury because his objective finding of a herniated cervical disc was unsupported by further objective medical evidence of observed limitations. The lower court granted defendants summary judgment dismissing the complaint. On appeal, plaintiff contended she met her burden by proffering evidence that plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories. Specifically, an orthopedist who had been treating plaintiff averred that an MRI taken one month after the accident revealed a “moderate to large” disc herniation in her cervical spine that was not present on a CT scan performed two months before the accident, and opined that the accident caused the herniated disc. In an examination two years after the accident, he conducted unspecified range of motion tests and determined that plaintiff had only 50% of the normal range of motion in her neck. The orthopedist concluded that this loss of range of motion was permanent because it existed two years after the accident and, thus, plaintiff had suffered a permanent consequential and significant limitation of use of her neck and cervical spine. Court held that proof of a herniated or bulging disc, by itself, is insufficient to establish a serious injury. However, once a herniated disc has been established by objective medical evidence, such as an MRI, CT scan or X ray, “an expert’s designation of a numeric percentage of a plaintiff’s loss of range of motion can be used to substantiate a claim of serious injury.” The court explained that while it has repeatedly held that a finding of reduced range of motion alone is insufficient to support a finding of serious injury because such a determination is based on subjective complaints of pain, the cases which so held were devoid of any independent objective medical evidence of a serious injury. Accordingly, the court held that plaintiff’s physician was not required to identify further objective medical evidence of the herniated disc, and the 50% reduction in range of motion. There was independent objective medical evidence of an injury, namely, a postaccident MRI showing a herniated cervical disc. While the orthopedist’s affirmation parroted the statutory language and included several conclusory assertions regarding the seriousness of disc herniations, he did opine that the accident caused the disc herniation in plaintiff’s cervical spine and that the resulting 50% loss of range of motion was permanent. This medical evidence, when coupled with the MRI showing the herniated disc, raised a question of fact sufficient to survive defendants’ motions for summary judgment.

 

 

 

Across Borders

 

Visit the HOT CASES section of the Federation of Defense and Corporate Counsel website for cases covering a broad range of legal issues from other jurisdictions.

 

01/15/04          MOTORISTS MUT. INS. CO. v HAMMOND

Sixth Circuit (applying Kentucky law)

Used Car Dealer, as Constructive Titleholder, Was Owner and Defendant’s Daughter Therefore an Insured under Garage Policy

Albin Used Cars, Inc. was the constructive titleholder, and thus an owner, of the car that defendant’s daughter was occupying at the time of the accident. The daughter was therefore an insured pursuant to Albin’s “garage coverage” policy with plaintiff, and was entitled to underinsured motorist benefits thereunder.

 

01/14/04          CAROLINA CAS. INS. CO. v BURBACH

Eighth Circuit (applying Minnesota law)

No Need to Examine Intent if “Other Insurance” Clauses are Clear

The district court erred in looking to policy insuring intent to resolve the question of primary coverage where there was no conflict between the “other insurance” clauses in the policies at issue.

 

01/14/04          VISION FINANCIAL GROUP, INC. v MIDWEST FAMILY MUT. INS. COMPANY

Seventh Circuit

Loss Payee subject to Same Exclusions as Insured

Vision Financial Group, Inc. sued Midwest Family Mutual Insurance Company to recover for stolen computer equipment under an insurance policy that designated Vision Financial as loss payee. In May 2001, Vision Financial leased computer equipment and furniture to Mufti Hospitality Group. A few days after delivery of the equipment, Mufti's president, Muhammad Arshad, stole the equipment and the furniture. Vision Financial, as loss payee, filed a claim with Midwest to recoup the value of the stolen property, which Midwest denied. The Court found that the equipment was covered property under the policy, but the “dishonesty” and “false pretense” policy exclusions are applicable. The loss payable provision dictates that the policy's exclusions be applied to the loss payee and the insured equally. A contrary decision would afford the loss payee greater protection under the policy than the insured.

Robert Cooper and Charlie Shah, Christian & Small

 

01/12/04          CASCO INDEMNITY CO. v GONSALVES

Rhode Island Supreme Court

Junk Motor Vehicle Carcass Not Motor Vehicle for Purposes of Uninsured Motorist Claim

At the time Gonsalves contracted with Casco he could not, nor would any “ordinary reader,” understand the uninsured motorist provision of his policy to cover damages or injuries incurred from an automobile that has been sold for parts and scrap metal, is missing several important parts, and is found stationed on top of two other similar automobile hulks. Gonsalves argues that the Horizon was a motor vehicle because it could have been restored. Taking the facts in the light most favorable to Gonsalves, the Horizon could have become a motor vehicle again at some point. It is clear, however, that at the time of the accident the Horizon was used for spare parts, not for transportation “mainly on public roads.” The Horizon could not have been operated legally on a public highway and Gonsalves was reaching toward the Horizon because he wanted to “use” the car as a cadaver for a part he needed for another vehicle. Accordingly, the motion justice did not err in finding that the Horizon was not a motor vehicle, but, rather, “junk.”

 

01/12/04          THE UPPER DECK CO., LLC v FED. INS. CO.

Ninth Circuit (applying California law)

No Duty to Defend RICO Claims

Insurance policies covering claims for bodily injury did not obligate defendant to defend plaintiff against RICO claims. Neither the RICO complaint nor the extrinsic evidence available at the time of tender could be construed as giving rise to a claim to bodily injury as defined in the policies.

 

01/12/04          GRAY CARY WARE & FREIDENRICH v VIGILANT INS. COMPANY

California Court of Appeal

“Cumis Counsel” Not Required for Arbitration over Fees

Civil Code section 2860 (all undesignated statutory references are to this code) requires that an insurer provide independent counsel to its insured in certain conflict situations and subdivision (c) of this section requires the arbitration of “any dispute concerning attorney[] fees . . . .” In this appeal court addresses the question of whether this section encompasses disputes between an insurer and its insured over the insurer’s responsibility for defense expenses incurred by the insured's independent counsel. Section 2860 does not require the arbitration of disputes regarding defense costs and the court affirmed the trial court’s denial of a petition to compel arbitration under section 2860.

 

01/09/04          AMERICAN FAMILY MUT. INS. CO. v AMERICAN GIRL, INC.

Wisconsin Supreme Court

Exclusion for Contractual Liability does not Preclude Coverage for all Breach of Contract Liability

A soil engineering subcontractor gave faulty advice to a general contractor in connection with construction of a warehouse. As a result, there was excessive settlement of the soil after the building was completed, causing the foundation to sink and crack, as well as significant damage to the rest of the structure. Ultimately the building had to be torn down. The general contractor notified its insurance carrier of the loss, and a dispute over coverage ensued. While the trial court found coverage, the court of appeals concluded the “contractual liability” exclusion excluded coverage. The Wisconsin Supreme Court held that the sinking, buckling, and cracking of a warehouse was clearly physical injury to tangible property as defined by the contractor’s CGL policy. Furthermore, it was accidental and unintentional, so it was covered as an occurrence. Finally, the contractual liability exclusion on which the appeals court relied to preclude coverage did not exclude coverage for breaches of contract, but rather for instances where the insured assumed the liability of another by contract, such as an indemnification or hold harmless agreement. As a result, there was coverage for the damage under the CGL policy.

Bruce D. Celebrezze and Erin Adrian, Sedgwick, Detert, Moran & Arnold LLP

 

01/07/04          AMERICAN TRAVELERS LIFE INS. CO. v AIG LIFE INS. CO.

Eighth Circuit

Insurer who Purchases Insurance Contracts from Another Insurer is Required to Defend Selling Insurer on Breach of Contract Claim by Insured as well as Additional Claims Arising Out of Contractual Relationship

An insured purchased a long-term nursing home healthcare insurance policy with a provision that it only covered care in the event the nursing home stay was preceded by a hospital stay of at least three consecutive days. Shortly thereafter, North Dakota passed a law prohibiting such a requirement. The insurer, AIG, sold its book of long-term nursing home healthcare business to Conseco. When the insured was admitted to a nursing home, Conseco denied coverage based on the fact that she had not had the required hospital stay prior to her admittance. The insured sued AIG and Conseco for bad faith and fraud. AIG filed a cross-claim against Conseco, arguing that under the purchase agreement, Conseco had a duty to defend them in the insured’s action. Conseco argued that, under the purchase agreement, they were only required to defend and indemnify AIG in simple breach of contract suits. The court held that, even though it was not stated as such, this was a simple breach of contract suit because the insured alleged that both AIG and Conseco had failed to pay benefits under the agreement. Furthermore, Conseco was also required to defend and indemnify against claims in addition to breach of contract because they arose out of the contractual relationship between the insured and AIG, which Conseco assumed.

Bruce D. Celebrezze and Erin Adrian, Sedgwick, Detert, Moran & Arnold LLP)

 

01/07/04          ANDERSON GAS & PROPANE, INC. v WESTPORT INS. CORP.

Arkansas Court of Appeals

Pollution Exclusion is Ambiguous as to Whether or Not it Includes Gasoline Leak

Owners of a lodge discovered a gasoline leak in an underground pipe, which leaked gasoline that migrated to the wells of adjoining landowners. The landowners sued the lodge and Anderson Gas for bodily injury and property damage. Anderson made a claim on its CGL policy with Westport, but the insurer denied based on the pollution exclusion. The trial court granted summary judgment in favor of the insurer, Westport. On appeal, Anderson argued that, under the policy’s definition of pollution, gas was not included because it was meant to cover industrial pollutants. Westport argued that the pollution exclusion was intended to cover just such a situation. The court held that the definition was ambiguous, and as a result, summary judgment was inappropriate.

Bruce D. Celebrezze and Erin Adrian, Sedgwick, Detert, Moran & Arnold LLP

 

01/07/04          TERRY v METROPOLITAN LIFE INS. CO. v LAGROIS, ET AL.

Sixth Circuit

The devil is in the details when it comes to dispersing life insurance benefits

Life insurance benefits are not to be paid to an apparent intended beneficiary when the decedent signed the designation of beneficiary form with only her first name, did not date the form and did not check a box indicating she had signed the form in the presence of two witnesses.

J. Richard Caldwell, Jr. and Michael Forte, Rumberger, Kirk & Caldwell

 

12/24/03          EDWARDS & SONS v CINCINNATI INS. COMPANY

Fourth Circuit

A Two Year "Statute of Limitation" in Insurance Policy is an Affirmative Defense and Therefore Waived if Not Raised in Answer

Cincinnati Insurance Company had a provision in its insurance policy under Commercial Property Conditions that "(n)o one can bring a legal action against us under this coverage part unless ... (t)he action is brought within 2 years after the date on which the direct physical loss or damage occurred." Cincinnati failed to raise in its "grounds for defense" that the action had not been commenced within the two (2) year time period. The Court held that the defense urged by Cincinnati of such a breach of a provision was an affirmative defense under Fed. R. Civ. P. 8(c). The Court held that Cincinnati had waived the defense as a result of its failure to raise it as an affirmative defense and its conduct in responding to the claimant's allegations (in particular, failing to raise the limitation in its denial letter). The Court also found that a product was "damaged" for purposes of triggering policy coverage.

Robert Cooper and Charlie Shah, Christian & Small

 

12/22/03          ADMIRAL INS. CO. v CRESENT HILLS APARTMENTS

Eleventh Circuit

Insurance Company’s Attempt to Send Cancellation Notice by Taping Envelope to Mailbox with Note Asking Letter Carrier to send by Certified Mail Surprisingly Violated Georgia Statute

Admiral Insurance Company issued a commercial property insurance policy covering the Cresent Hills Apartments. Admiral decided to cancel the policy after it was reported the apartments were in deplorable condition. An Admiral underwriting assistant prepared an undated cancellation notice for Cresent stating the policy would be canceled effective November 8, 2000. According to an Admiral employee, she taped the envelope containing the notice of cancellation to the outside of the mailbox in the lobby of their office building on October 5, 2000. Attached to the envelope was a note asking the letter carrier to date and sign or postmark the certified mail receipt with the date it was picked up for delivery. The receipt was returned to Admiral, undated and without a postmark. A Cresent employee signed the receipt, returned the receipt to Admiral and placed the envelope on the desk of the president of the corporation that owns Cresent Apartments. The president did not open the envelope until December 29, 2000. In the interim, a fire destroyed five apartment units on December 27. The Court found that the cancellation was ineffective because it was not in compliance with O.C.G.A. § 33-24-44(b). There was no evidence the notice of cancellation had been mailed at least 30 days before the date of the purported cancellation.

Robert Cooper and Charlie Shah, Christian & Small

 

12/22/03          INDIANA INS. CO. v AUTO-OWNERS INS. CO.

Michigan Court of Appeals

School Bus Insurer has Duty to Indemnify Insured School Bus Operator for Injuries Incurred by 2 Children Kidnapped upon Exiting Bus

Three men contacted the bus operators and convinced them to drop three young girls off at a different bus stop, came onto the bus and physically kidnapped the girls. The girls sued the school district and the case was settled. The school district claimed that the settlement was covered by the no-fault provision of district’s school bus liability policy. Under the policy the insurer promised to defend and indemnify the school district in regard to claims for bodily injury arising out of the ownership, maintenance or use, including the loading and unloading, of its school buses. The court found that the dispositive issue in this appeal is whether a no- fault insurer or a general liability carrier is responsible for insuring injuries resulting from a criminal act that happens to involve a school bus. The court held that a school bus is “used” to ensure the safe delivery of children and, thus, the school bus driver’s failure to deliver the children to the appropriate stop and her allowing the kidnappers to physically remove the protesting girls from the bus arose out of the use of the bus and was covered by the policy.

Bruce D. Celebrezze and Hank Brier, Sedgwick, Detert, Moran & Arnold

 

12/22/03          CANAL INDEMNITY CO. v GREENE ET AL.

Georgia Court of Appeals

Where Insurer Didn’t Make Effort to get Insured’s Cooperation, Genuine Issue of Fact Raised Whether Lack of Cooperation Negated Insurer’s Duty to Defend

Where insured cooperated with the victim’s adjuster and attorneys and was not even contacted directly by his own insurance company, there was a material issue of fact that supported the denial of the insurer’s motion for summary judgment on the claim that it had not duty to defend because the insured breached his duty to cooperate.

Bruce D. Celebrezze and Hank Brier, Sedgwick, Detert, Moran & Arnold

 

12/22/03          DAIRY SOURCE, INC. v BIERY CHEESE CO.

Wisconsin Court of Appeals

No Duty to Defend under Exclusion for Intentional Conduct even if Underlying Claims Could Be Proven Without Establishing Intentional Conduct

Insurer had no duty to defend under policy covering personal and advertising injury because allegations in complaint were “Caused by or at the direction of the insured with the knowledge that the act would violate the rights of another and would inflict "personal and advertising injury". The fact that liability for the claims asserted in this complaint might be established without proving conduct that would come within the knowing injury exclusion does not alter the fact that the conduct establishing liability alleged in this complaint indisputably comes within the exclusion. We can see that if this complaint could arguably be read to suggest that Biery Cheese did not do the acts alleged with knowledge that they would violate Dairy's Source's rights and inflict a personal and advertising injury, then Biery Cheese might have liability for conduct that would not come within the exclusion. But we conclude this complaint cannot be read in that manner, even when read most favorably to Biery Cheese. Based on the allegations in this complaint, there is not a possibility of liability for conduct that does not come within the exclusion.

Bruce D. Celebrezze and Hank Brier, Sedgwick, Detert, Moran & Arnold

 

And In defense

 

The Court of Appeals Speaks Out on Labor Law §240: An Analysis of Blake v Neighborhood Housing Services of New York City, Inc.

 

By Michael F. Perley

 

INTRODUCTION:

 

                        On December 23, 2003, the Court of Appeals issued a lengthy decision, during which it addressed the evolving jurisprudence pertaining to Labor Law § 240 (1).  Although the Court could have determined the case on a narrow issue of whether or not the sole defendant, Neighborhood Housing Services of New York City, Inc. (NHS), a financing entity, was an “agent of the owner” under Labor Law § 240 (the Court held, in § D of its opinion, that NHS was such an agent and therefore the case against it should have been dismissed) it chose to elaborate on the nature of § 240 liability, perhaps in an effort to clear the air and to establish some working guidelines among the judicial departments.

 

FACTUAL BACKGROUND:

 

                        Plaintiff, Rupert Blake, operated his own contracting company and was the sole employee of that company on the job site at the time of the accident.  He was hired to perform renovation work on a two-family home in the Bronx, a project financed through Neighborhood Housing Services of New York City, Inc. (NHS), a not-for-profit lender. 

 

                        At the jobsite the plaintiff had set up an extension ladder, which he owned and used frequently.  According to plaintiff’s testimony, the ladder was steady, had rubber shoes and was in proper working condition.  The plaintiff used the ladder for purposes of scraping rust from a portion of the building when the extension ladder suddenly retracted, causing the plaintiff to fall and injure his ankle.

 

                        The plaintiff sued the homeowner and NHS alleging a violation of Labor Law § 240.  The homeowner obtained summary judgment on the basis of the exemption contained in Labor Law § 240 for owners of a single or two-family home that do not direct or control the work.  NHS moved for summary judgment on the grounds that it was not an agent within the meaning of the Labor Law and challenged plaintiff’s § 240 claim as conclusory, citing any lack of evidence of deficiency in the ladder or the worksite.

 

                        The case then proceeded to trial where, again, plaintiff conceded that he could not identify a defect in the ladder and that it was stable and there was no reason to have it steadied during use.  He also revealed that he was not sure if he had locked the extension clips in place before ascending the rungs of the ladder to begin his work.  At the close of the case, the jury was presented with two interrogatories.  The first question was directed to whether NHS “had the authority to direct, supervise and control Mr. Blake’s work,” to which the jury responded “yes.”  The second question to the jury, “Was the ladder used by the plaintiff, Rupert Blake, so constructed and operated as to give proper protection to the plaintiff?” was also answered “yes” by the jury, leading to the conclusion that the accident happened solely as a result of plaintiff’s negligence in the way he used the ladder.

 

EVOLUTION OF “ABSOLUTE LIABILITY”:

 

                        The Court devotes approximately one-third of its opinion to the concept of strict or absolute liability, noting that employers had an “absolute duty” to furnish safe scaffolding and would be liable when they failed to do so and injury resulted.  The phrase “absolute liability” arose in 1958 in Connors v Boorstein, (4 N.Y.2d 172) and has since worked its way into the parlance surrounding § 240 cases.  Blake provided the Court an opportunity to elaborate on the intended meaning of the phrase “absolute liability” in the Labor Law § 240 context and, thereby, distinguish it from the use of the phrase in other area.  The Court noted:

 

It is imperative, therefore, to recognize that the phrase “strict (or absolute) liability” in the Labor Law § 240 (1) context is different from the use of the term elsewhere. 

 

The term means, “liability without fault [cit.], as where a person is automatically liable for causing an injury even though the activity violates no law and is carried out with the utmost care…we also refer to strict liability when discussing products liability arising out of a defective design or failure to warn [cit.].  In this, manufacturers of defective products may be held “strictly liable” for injury caused by those products regardless of privity, foreseeability or reasonable care.

 

                        The Court then noted that, due to the varying meanings of strict liability within the context of litigation:

 

The terms may have given rise to a mistaken belief that a fall from a scaffold or ladder, in and of itself, results in an award of damages to the injured party.  That is not the law, and we have never held or suggested otherwise.

 

                        Having already noted that a defendant should not be treated as an insurer of the plaintiff’s safety after having provided a safe work place, the Court provided its interpretation of strict or absolute liability within the § 240 context...  Noting that not all accidents that involved scaffolding or such work surfaces give rise to § 240 liability, the Court explained that “strict or absolute liability is necessarily contingent on a violation of § 240 (1).”  According to its decision in Melber v 6333 Main Street, Inc., (91 N.Y.2d 759), the Court restated its definition that “the statute establishes absolute liability for a breach which proximately causes an injury.”  Referring to its decision in Zimmer v Schemung County Performing Arts, Inc. (65 N.Y.2d 513), the Court noted that “the failure to provide any safety devices is such a violation” and, finally, referring to its decision in Duda v (32 N.Y.2d ) the Court noted that the plaintiff “was obligated to show that the violation [of § 240 (1)] was a contributing cause of his fall.”

 

                        Once liability is established under § 240, the comparative fault of the plaintiff is not a defense.  However, the Court took pains to distinguish comparative fault from sole proximate cause which it discussed extensively.

 

SOLE PROXIMATE CAUSE:

 

                        The Court took the opportunity to reaffirm its decision in Weininger v Hagedorn & Co. (91 N.Y.2d 958) which held that it was impermissible for the Supreme Court to direct a verdict in favor of the plaintiff where a jury could conclude that “the plaintiff’s actions were the sole proximate cause of his injuries, and consequently that liability under…did not attach,” noting that:

 

It is conceptually impossible for a statutory violation (which serves as a proximate cause for a plaintiff’s injury) to occupy the same ground as a plaintiff’s sole proximate cause for the injury.  Thus, if a statutory violation is a proximate cause of an injury, the plaintiff cannot be solely to blame for it.  Conversely, if the plaintiff is solely to blame for the injury, it necessarily means that there has been no statutory violation.

 

                        In footnote 10 of the opinion, the Court cited, with apparent approval, a series of Appellate Division cases addressing this issue.  Most of these cases were decided after Weininger  and include Meade v Rock-McGraw, Inc. (307 A.D.2d 156), a First Department case holding that the question of plaintiff’s misuse of the ladder created a question of fact precluding a motion for summary judgment on liability by the plaintiff; a Second Department case, Heffernan v Bais Corp. (294 A.D.2d 401), affirming the denial of summary judgment where an expert affidavit “raised a question of fact as to whether the failure of the scaffold to support the plaintiffs resulted solely from their own conduct;” Gomez v State of New York, (272 A.D.2d 440) (Second Department), affirming a determination by the Court of Claims dismissing plaintiff’s claim on the basis of an experts testimony that “misuse of the ladder was responsible for the incident” when an aluminum extension ladder suddenly began telescoping downward stopping when the claimant’s arm became caught in the rungs; Bahrman v Holtsville Fire District (270 A.D.2d 438) (Second Department), affirming the denial of summary judgment when the Supreme Court determined that a question of fact existed with regard to whether or not plaintiff’s own action was the sole proximate cause.

 

                        Noting that § 240 is to be construed as liberally as may be for the accomplishment of the purpose for which it was framed, the Court noted that it was not the Legislature’s purpose to make owners and contractors “insurers of the workers’ safety”; thus, every § 240 case must be “supported by the evidence, from which the jury could find that defendants had failed to satisfy [their] § 240 (1) responsibilities.”

 

PROCEDURAL GUIDELINES ON MOTIONS FOR SUMMARY JUDGMENT:

 

                        Footnote 8 sets forth the Court’s guidelines for summary judgment motions involving ladders or scaffolds under § 240.  Initially the Court pointed out that:

 

in cases involving ladders or scaffolds that collapse or malfunction for no apparent reason, we have…continued to aid plaintiffs with a presumption that the ladder or scaffolding device was not good enough to afford proper protection.

 

                        Having said that, the Court noted that once the plaintiff makes the prima facie showing the burden shifts to the defendant, who may defeat the plaintiff’s motion for summary judgment:

 

only if there is a plausible view of the evidence – enough to raise a fact question – that there was no statutory violation and that plaintiff’s own acts or omissions were the sole cause of the accident.

 

                        The Court further noted that the plaintiff will be entitled to summary judgment if “defendants assertions in response fail to raise a fact question as to these issues...,” and conversely, that defendant will be entitled to summary judgment, “if the record establishes conclusively that no Labor Law § 240 (1) violation was shown to have been a proximate cause of the accident and that the accident was therefore caused solely by plaintiff’s conduct.”

 

                        Based upon the Court’s apparent approval of several Appellate Division cases, it appears that defendants can use expert testimony, in whole or in part, to establish a question of fact, or in some cases, entitlement to summary judgment dismissing the Labor Law § 240 (1) claim.

 

                        Certainly, the presumption in favor of the plaintiffs is a strong one.  Overcoming this presumption will require strong evidence, either based upon plaintiff’s own testimony, the testimony of eyewitnesses or of experts with respect to plaintiff being the sole proximate cause of his own injury.

 

UNANSWERED QUESTIONS:

 

                        Although the Court of Appeals analysis of liability under Labor Law § 240 is extensive, several unanswered questions remain. 

 

                        First, this case involves a worksite where the plaintiff was solely in control.  In fact, the plaintiff, Blake, appears to be a contractor who is the owner of his own company and may have incorporated his business where he was the sole employee (although this is not explicitly set forth in the record).  Thus, the Court of Appeals does not address the question where there was active supervision or the possibility of supervision at a jobsite by foremen or other supervisory personnel with regard to plaintiff’s activities and whether the existence of such supervision could contribute to a finding of a § 240 violation by eliminating the plaintiff as the “sole proximate cause” of his injury.

 

                        Second, the Court did not address potential liability for failure to provide safety devices, in place of ladders, as a potential §240 violation in situations where ladders are, arguably, not appropriate.  It appears conceded in Blake that the extension ladder was the appropriate device for the plaintiff to use.  In part, this may result from the plaintiff’s status as an alter ego of his own company.  In cases where there is additional supervision, selection of a different device potentially lies with the supervisory personnel giving rise to another avenue of § 240 liability.

 

                        Finally, the Court of Appeals, explicitly limits this case to ladders and, possibly scaffolds.  Other hoists or devices are excluded from the analysis of footnote 8, and by implication, from the analysis within the case.

 

                        While the Blake decision is generally favorable for defendants, as the Court seeks to limit the application of § 240 only to those cases where plaintiff has established a statutory violation, the limitations within the opinion may allow lower court’s to distinguish Blake as controlling authority.

 

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GENERAL ELECTRIC CAPITAL CORP. v VOLCHYOK

 

In an action to recover damages for breach of contract, the defendant Progressive Direct, Inc., a/k/a Progressive, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (G. Aronin, J.), dated November 6, 2002, as granted the plaintiff's motion for summary judgment on the complaint insofar as asserted against it and denied its cross motion to compel discovery.

 

ORDERED that the order is affirmed insofar as appealed from, with costs.

 

On or about August 31, 2000, an automobile leased by the defendant Gennady Volchyok from the plaintiff, General Electric Capital Corporation, was stolen and never recovered. In accordance with the terms of the lease, Volchyok had obtained a policy of insurance from the defendant Progressive Direct, Inc., a/k/a Progressive (hereinafter Progressive), naming the plaintiff vehicle owner as an additional insured and as a loss payee.

 

Progressive denied the plaintiff's claim, asserting that it cancelled the insurance policy for nonpayment of premiums before the loss by mailing a proper notice of cancellation to Volchyok. The plaintiff asserted a cause of action against Progressive to recover damages for breach of the insurance policy because it failed to provide the plaintiff with prior notice of the cancellation as required by the terms of the subject policy. Specifically, the cancellation clause provided that a notice of cancellation was required to be mailed at least 15 days before the effective date of cancellation to the named insured shown on the declarations page. The plaintiff claims it was entitled to such notice, as it was named as an additional insured on the declarations page of the policy. The Supreme Court awarded the plaintiff summary judgment on that cause of action. We affirm.

"It is axiomatic that a contract is to be interpreted so as to give effect to the intention of the parties as expressed in the unequivocal language employed" (Breed v Insurance Co. of North Amer., 46 NY2d 351, 355). Whether or not a writing is ambiguous is a question of law to be resolved by the courts (see W.W.W. Assocs. v Giacontieri, 77 NY2d 157, 162). A determination of the intent of the parties to a contract can be made as a matter of law without a trial where that intent is discernible from the four corners of an unambiguously-worded agreement (see Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169).

The Supreme Court correctly determined as a matter of law that it was the intent of the drafter of the cancellation clause that notice of an impending cancellation be given to those named insureds on the declarations page of the policy. Accordingly, summary judgment was properly awarded to the plaintiff.

Moreover, Progressive knew that the plaintiff was the owner of the vehicle, as the plaintiff was named as an insured on the policy. Therefore, Progressive was obligated to notify the plaintiff regarding the cancellation of the policy on that basis as well (see e.g. Matter of American Cas. Ins. Co. v Walcott, 300 AD2d 478; Government Employees Ins. Co. v Employers Commercial Union Ins. Co., 62 AD2d 123).

The appellant's remaining contention is without merit.

DURHAM v NEW YORK EAST TRAVEL, INC.

 

Appeal from an order of the Supreme Court (Demarest, J.), entered February 3, 2001 in St. Lawrence County, which granted defendants' motions for summary judgment dismissing the complaint.

 

Plaintiff Linda Durham (hereinafter plaintiff) and her husband, derivatively, commenced this action to recover for personal injuries she sustained when her motor vehicle was rear-ended by defendant Gedney J. Gorgrant, who, in turn, had been rear-ended by a van owned by defendant New York East Travel, Inc. and operated by defendant Tai An Kim. Gorgrant moved, and the remaining defendants cross-moved, for summary judgment, contending, among other things, that plaintiff did not sustain a serious injury under Insurance Law _ 5102 (d). As is relevant here, Supreme Court found that the affidavit of plaintiff's treating physician was insufficient to raise a question of fact as to whether she had suffered a serious injury because his objective finding of a herniated cervical disc was unsupported by further objective medical evidence of observed limitations. The court granted defendants summary judgment dismissing the complaint, and plaintiffs appeal.

Plaintiffs concede on this appeal that defendants made prima facie showings of entitlement to summary judgment as a matter of law, so we are concerned only with whether plaintiffs met their shifted burden to raise a triable issue of fact (see Weller v Munson, 309 AD2d 1098, ___, 766 NYS2d 252, 254 [2003]; Serrano v Canton, 299 AD2d 703, 703 [2002]). As limited by their brief, plaintiffs contend that they met this burden by proffering evidence that plaintiff sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories.[1] Specifically, Steven Fish, an orthopedist who has been treating plaintiff since the accident, averred that an MRI taken one month after the accident revealed a “moderate to large” disc herniation in her cervical spine that was not present on a CT scan performed two months before the accident, and he opined that the accident caused the herniated disc. In an examination two years after the accident, Fish conducted unspecified range of motion tests and determined that plaintiff had only 50% of the normal range of motion in her neck. Fish concluded that this loss of range of motion was permanent because it existed two years after the accident and, thus, plaintiff had suffered a permanent consequential and significant limitation of use of her neck and cervical spine.

 

It is well settled that proof of a herniated or bulging disc, by itself, is insufficient to establish a serious injury (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 353 n 4 [2002]; Tornatore v Haggerty, 307 AD2d 522, 523 [2003]). However, once a herniated disc has been established by objective medical evidence, such as an MRI, CT scan or X ray, “an expert's designation of a numeric percentage of a plaintiff's loss of range of motion can be used to substantiate a claim of serious injury” (Toure v Avis Rent A Car Sys., supra at 350). While we have repeatedly held that a finding of reduced range of motion alone is insufficient to support a finding of serious injury because such a determination is based on subjective complaints of pain, the cases which so held were devoid of any independent objective medical evidence of a serious injury (see e.g. McCreesh v Hoehm, 307 AD2d 638 [2003] [X ray and MRI normal]; Temple v Doherty, 301 AD2d 979 [2003] [no abnormalities on postaccident X ray and MRI]; Blanchard v Wilcox, 283 AD2d 821 [2001] [X ray, CAT scan and MRI normal]; Gillick v Knightes, 279 AD2d 752 [2001][X rays, MRI and other tests showed no injuries]; Wiley v Bednar, 261 AD2d 679 [1999] [subjective complaints not corroborated by X ray, MRI or other tests]). Accordingly, we reject defendants' contention that plaintiff's physician was required to identify further objective medical evidence not only of the herniated disc, but also of the 50% reduction in range of motion.

 

Here, there is independent objective medical evidence of an injury, namely, a postaccident MRI showing a herniated cervical disc. While Fish's affirmation parrots the statutory language in places and includes several conclusory assertions regarding the seriousness of disc herniations, he nonetheless does opine, based upon plaintiff's treatment history and his clinical examination, that the accident caused the disc herniation in plaintiff's cervical spine and that the resulting 50% loss of range of motion is permanent. In our view, this medical evidence, when coupled with the MRI showing the herniated disc, raises a question of fact sufficient to survive defendants' motions for summary judgment.

 

Cardona, P.J., Crew III, Rose and Lahtinen, JJ., concur.

 

ORDERED that the order is reversed, on the law, with costs, and motions denied.

 

[1] Because plaintiffs have not briefed their claims under the 90/180-day and permanent loss of use categories under Insurance Law _ 5102 (d), these claims are deemed abandoned (see Mrozinski v St. John, 304 AD2d 950, 951 [2003]; Santos v Marcellino, 297 AD2d 440, 441 [2002]).

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