Coverage Pointers - Volume VI, No. 11

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1/27/05            Cortez v. Manhattan Bible Church

Appellate Division, First Department

Disc Bulges and Herniations Alone Just Not Enough Without Evidence of Restrictions

Plaintiff failed to come forward with sufficient proof establishing a triable issue of fact on whether she had sustained a serious injury within the meaning of the Insurance Law § 5102(d). Disc bulges and herniations, standing alone, are simply not enough to meet that threshold . There was no objective proof concerning the extent or degree of any physical limitation, such as an expert's designation of a numeric percentage of plaintiff’s loss of range of motion to demonstrate that plaintiff’s injuries allegedly attributable to the accident restricted her physical abilities and general lifestyle.

 

 

 

1/25/05            Diaz v.  Elrac, Inc.

Appellate Division, First Department
One More Car Rental Case
We know you love car rental cases.  Here, a the renter allowed someone not on the rental agreement to drive the car and an accident occurred (of course).  The car rental agency tried to make a claim against the driver, alleging that the rental agreement allowed indemnification from a non-permissive user.  Courts, as a matter of practice, dislike car rental agencies and this case was no exception.  “Even if plaintiff violated the terms of the rental agreement when he permitted [someone] who was not identified in the agreement as an additional driver, to operate the rental vehicle, Elrac would not be entitled to summary judgment upon its claim for full indemnification because there is a triable question as to whether [the driver’s] use of the vehicle was, under the circumstances, permissive within the meaning of Vehicle and Traffic Law.

 

1/24/05            In re Allstate Insurance Company v. Massre

Appellate Division, Second Department

Permanent Stay of UM Claim Granted Where Injuries Caused By Intentional Act

Denial of request for permanent stay of arbitration of an uninsured motorist benefit claim is reversed where court found the collision was intentional and, in effect, determined that the insurer of the other driver properly disclaimed as it was not an accident as defined by the policy.   Since the petitioner’s injuries were not the result of an accident, she was precluded from recovering uninsured motorist benefits under the Allstate policy.  Finally, State Farm was not required by Insurance Law § 3420(d) to issue a disclaimer because its denial of coverage was based upon a lack of coverage and not a policy exclusion.

 

1/24/05            Sherin v Roda

Appellate Division, Second Department

Unsworn Medical Reports and Lack of Causation in Surgeon Affidavit Insufficient to Defeat Threshold Motion

Defendants established their prima facie entitlement to summary judgment demonstrating that the plaintiff did not sustain a serious injury based on unsworn reports of the plaintiff's.  Plaintiff submitted inadmissible (unsworn) medical reports in opposition.  Further, the affirmations submitted by an orthopedic surgeon, Dr. Moriarty, and an orthopedic physician, Dr. Schwartz, failed to set forth whether the plaintiff's alleged injuries were causally related to the subject motor vehicle accident.

 

1/24/05            Banuchis v, Government Employees Insurance Co.

Appellate Division, Second Department
Notice to In-House Attorney is Notice to Insurance Company; 62 Day Delay in Giving Disclaimer Notice is Too Late
Service upon a carrier’s in-house legal staff of a letter notifying it of a potential excess coverage claim was sufficient to constitute notice of the claim. The attorneys so served were employees of GEICO and handled many of the claims submitted to it. In any event, 62-day delay between notification of the claim and GEICO's notice of disclaimer based on lack of timely notification was unreasonable as a matter of law.

 

1/24/05            Check v Gacevk

Appellate Division, Second Department

Examination Fifteen Months Post Accident Insufficient to Defeat Threshold Motion

Plaintiff’s submission was insufficient to raise a triable issue of fact as to whether plaintiff sustained a serious injury under Insurance Law § 5102(d)  as the conclusions of the plaintiff's expert physician, who examined the plaintiff for the first time approximately 15 months after the accident, were contradicted by the findings and reports of the plaintiff's own treating physicians and failed to take into account the injuries sustained by the plaintiff in two previous motor vehicle accidents.

 

1/24/05            Casella v. New York City Transit Authority
Appellate Division, Second Department
Three Year Gap in Treatment and Failure of Proof on “90-Day Disability” Claim, Leads to Finding of No Serious Injury
The defendants made an initial showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law through the submission of the medical records of the plaintiff's treating physician and an affirmed medical report of their own examining physician. In opposition, the affirmation of the plaintiff's examining physician was insufficient to raise an issue of disputed fact. Significantly, there was no satisfactory explanation for the nearly three-year gap between the conclusion of the plaintiff's medical treatments and the date of the examination by the plaintiff's expert.  No medical proof offered on “90-Day” disability claim either.

 

1/20/05            Senate Insurance Company v. Tamarack American
Appellate Division, Third Department
Under Professional Liability Policy, An “Of Counsel” Attorney is Not Considered a Partner or Associate
Claims made policy provided that claim first made against partner or associate would be covered, but claim first made against “of counsel” attorney would only be covered if that attorney was with firm at time of alleged malpractice.  Argument that “of counsel” attorney should be considered a partner or associate of firm and thus claim ought to be covered, failed, with clearly defined terms in the policy.

 

1/18/05            Brennan Bros. Co., Inc. v. Lumbermens Mutual Casualty Company
Appellate Division, Second Department
An Unexcused Failure to Provide By Insured to Provide Prompt Notice Leads to a Loss of Coverage

Before insurer's is obliged to defend or indemnify, the insured must provide notice of any occurrence to the insurer within a reasonable period of time. Failure to comply with the notice requirement vitiates coverage unless the insured had reasonable belief of nonliability and the insured bears the burden of proving that his belief was reasonable. In this case, the plaintiff failed to prove that its belief in nonliability was reasonable, so as to excuse its failure to comply with the policy's requirement to supply Lumbermans Mutual Casualty Company with notice of the occurrence within a reasonable period of time.

1/18/05            In the Matter of Chubb Group of Insurance Companies v, Williams
Appellate Division, Second Department
Termination of Policy Invalid Without Notice to Motor Vehicle Department, Even During Electronic Blackout Period

Pursuant to the provision of Vehicle and Traffic Law § 313 in effect at the time of the purported cancellation of a policy of insurance providing coverage to James M. Dobbs, Jr Progressive was required to file a notice of cancellation with the Commissioner of the New York State Department of Motor Vehicles. The record establishes that Progressive did not comply with this provision. Thus, the termination of coverage by Progressive was not effective with respect to the claim made by Beverly Williams arising out of an automobile accident which occurred on August 24, 2002 (see Vehicle and Traffic Law § 313[2][a] even during a time when there was a “blackout period” for electronic transmissions. Accordingly, the Supreme Court properly granted the petition to permanently stay arbitration pursuant to the uninsured motorist provision of the policy issued by the petitioner.

1/18/05            In the Matter of Carla Biundo v. New York Central Mutual

Appellate Division, Second Department

Child Is Resident of Parent’s Household While Renovations of Her Home Are Completed

Petitioner was an insured person under the policy as she was a resident of her parents' household on the date of the accident and thus an insured person under the SUM endorsement of their automobile liability policy. Testimony demonstrated that the petitioner and her husband continued to reside with her parents until the extensive renovations to their newly purchased residence were completed. The Court finds that as a result the petitioner actually resided in the insured household on the date of the accident.

 

 

 

 

Across Borders

 

Visit the Hot Cases section of the Federation of Defense & Corporate Counsel website, www.thefederation.org  ranked among the top five legal research websites in an article published in Litigation News, a publication of the Litigation Section of the American Bar Association. Dan Kohane serves as the FDCC’s Website Editor Emeritus.

 



1/21/05            Hobbs v. Hartford Insurance of the Midwest

Illinois Supreme Court

Insureds May Not “Stack” the Limits of Liability for Underinsured-Motorist Coverage Where Multiple Vehicles Are Covered Under One Policy
In a consolidated appeal where the insureds were in accidents with underinsured motorists, the Illinois Supreme Court held that when taken together, the declarations pages and the anti-stacking clauses were unambiguous as to whether the insureds could aggregate their limits of liability. The Court relied upon Zurich Insurance Co. v. Raymark Industries, Inc., stating that an insurance policy must be interpreted from an examination of the complete document. The Court also overruled Hall v. General Casualty Co. of Illinois, which held that the statement "insurance is provided where a premium is shown" was "directly contradictory" to the anti-stacking clause, creating an ambiguity that must be construed to permit stacking.

Submitted by: Dan Boho and Melina T. Hipskind (Hinshaw & Culbertson LLP)

 

 


1/20/05            United States Fire Insurance v. Worcester Insurance Co.

Massachusetts Court of Appeals

Insurer Has A Duty To Use Its Policy Limits Reasonably and In Good Faith To Reduce Insured’s Exposure
The Court of Appeals affirmed the district court’s grant of summary judgment for the primary carrier holding that it had reasonably fulfilled its duty to the insured. The excess carrier argued that the primary carrier had a continuing duty to defend the insured, and sought defense costs incurred as a result of the primary carrier’s withdrawal of its defense once policy limits had been reached. Six separate claims had been brought against the insured. The primary carrier fully settled five and partially settled the sixth claim, thus exhausting its policy limit. The court held that when an insurer is faced with multiple claims against its insured, the insurer has a duty to use its policy limits reasonably and in good faith to settled as many claims as reasonably possible in order to reduce the insured’s exposure. In settling five claims and partially settling the sixth, the court found that there was no disputed fact to support the allegation that the primary carrier did not fulfill its duty.

Submitted by: Bruce D. Celebrezze and Michelle Y. McIsaac (Sedgwick, Detert, Moran & Arnold LLP)

 


1/20/05            Bianca v. Maine Bonding & Casualty Company

Maine Supreme Judicial Court

Maine Supreme Court Finds Language in Insurance Contract Precluding Coverage for Injuries from "Actual or Threatened Abuse or Molestation" Certainly Includes the Sexual Exploitation of a Minor
In this matter, the Maine Supreme Court for the first time interprets language in an insurance contract precluding coverage for injuries from "actual or threatened abuse or molestation." This coverage action arises from an underlying action where one of two insured motel owners sexually exploited two teenage girls. In the underlying action, plaintiffs alleged negligence, negligent infliction of emotional distress, and other claims. The motel tendered the claim to its insurer, which denied coverage for both defense and indemnity based upon the nature of the alleged conduct, and an exclusion for bodily injury or personal injury arising out of the actual or threatened abuse or molestation by anyone of any person while in the care, custody, or control of any insured. The insurer filed a motion for summary judgment in the coverage action. After initially denying the motion, upon motions for reconsideration, the court allowed the motion, holding that the exclusionary clause applied. On appeal to the Maine Supreme Court, plaintiffs claimed, among other grounds, that the exclusion for "abuse" was "hopelessly broad and ambiguous" and that it was therefore unclear whether the insured motel owners conduct constituted abuse within the policy exclusion. The Maine Supreme Court held that "an ordinary person in the shoes of the plaintiff would understand that 'abuse' includes sexual exploitation of a minor." The Court recognized that the term "abuse" as used in the policy does not limit abuse to sexual or physical activity involving minors. But the Court held, "[r]egardless of what other conduct falls within the scope of the "abuse or molestation" exclsuion, it certainly includes the conduct at issue here.

Notably, this victory was achieved by FDCC members Steve Abarbanel and Daina Kojelis.

Submitted by: Stephen J. Abarbanel (Robinson & Cole LLP) and Daina Kojelis (ZI/USA/Zurich)


1/14/05            PMI Mortgage Insurance Co. v. American International Specialty

Ninth Circuit Court of Appeals

Company's Losses Stemming from Class Action Included in Insurance Policy Provision Providing Coverage for "Arising from Alleged Wrongful Acts in the Rendering of Professional Services"
In December 1999, a putative class of plaintiffs who had obtained mortgage insurance through PMI’s lender clients sued PMI in the Southern District of Georgia (The Baynham action). The Third Amended Class Complaint alleged that PMI was undercharging its lender clients for various insurance products and services in exchange for customer referrals on mortgage insurance. Since the lender clients had not passed these savings on to their customers, plaintiffs claimed that this scheme violated the anti-kickback provisions of the Real Estate Settlement Procedures Act (RESPA). When the Baynham action arose, PMI held a Financial Institution Professional Liability Insurance Policy issued by American International Specialty Lines Insurance Company (AISLIC), which required AISLIC to pay PMI up to $10 million for any loss covered by the policy. PMI had also purchased layers of excess coverage from Columbia Casualty Company (Columbia) and Federal Insurance Company (Federal). The AISLIC insurance policy provides that AISLIC (and hence Columbia and Federal as well) will indemnify PMI for “the Loss of the Insured arising from a Claim . . . for any actual or alleged Wrongful Act of any Insured in the rendering or failure to render Professional Services.” On April 15, 2002, PMI filed a breach of contract and declaratory relief action against AISLIC, Federal and Columbia (the Insurers) alleging that the losses incurred in the Baynham action were covered by the Professional Liability policy issued by AISLIC and, thus, that the Insurers had a legal duty to indemnify PMI for its losses.3 AISLIC denied that PMI’s losses arose from the rendering of professional services as required by the policy, and it made a counterclaim seeking repayment of legal defense costs it had previously advanced to PMI. The district court granted summary judgment to AISLIC. The court of appeals reversed, finding that the plain text of the PMI policy and the basic principles of insurance policy interpretation under California law support a finding of coverage. The Court therefore held that PMI’s losses stemming from the Baynham action are covered by the policy as arising from alleged Wrongful Acts in the rendering of Professional Services as those terms are defined in the policy.

Submitted by: Steve Farrar and Rebecca Zabel (Leatherwood Walker Todd & Mann, P.C.)

 

 

 

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Brennan Bros. Co., Inc. v. Lumbermens Mutual Casualty Company



            In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in two underlying actions to recover damages for personal injuries entitled Midura v 740 Corp., and Midura v I. Grace Co., pending in the Supreme Court, Kings County, under Index Nos. 727/98 and 6144/00, respectively, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated September 22, 2003, as, upon reargument, adhered to so much of a prior order of the same court dated November 15, 2002, as denied its motion for summary judgment and, in effect, vacated so much of that prior order as denied the defendant's cross motion for summary judgment seeking a declaration that it was not obligated to defend or indemnify the plaintiff in the underlying actions, and granted the cross motion.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying actions to recover damages for personal injuries entitled Midura v 740 Corp., and Midura v I. Grace Co., Inc., pending in the Supreme Court, Kings County, under Index No. 727/98 and Index No. 6144/00, respectively. [*2]

Generally, as a condition precedent to an insurer's obligation to defend or indemnify, the insured must provide notice of any occurrence to the insurer within a reasonable period of time (see C.C.R. Realty of Dutchess v New York Cent. Mut. Fire Ins. Co., 1 AD3d 304; Pierre v Providence Wash. Ins. Co., 286 AD2d 139, affd 99 NY2d 222). Failure to comply with the notice requirement vitiates coverage unless the insured had reasonable belief of nonliability (see Viggiano v Encompass Ins. Co./Fireman's Ins. Co. of Newark, N.J., 6 AD3d 695; Pile Found. Constr. Co. v Investors Ins. Co. of Am., 2 AD3d 611, 612-613). The insured bears the burden of proof of demonstrating that such belief was reasonable (see Rondale Bldg. Corp. v Nationwide Prop. and Cas. Ins. Co., 1 AD3d 584; United Talmudical Academy of Kiryas Joel v Cigna Prop. & Cas. Co., 253 AD2d 423, 424; Kreger Truck Renting Co. v American Guar. & Liab. Ins. Co., 213 AD2d 453, 454). In this case, the plaintiff failed to prove that its belief in nonliability was reasonable, so as to excuse its failure to comply with the policy's requirement to supply Lumbermans Mutual Casualty Company with notice of the occurrence within a reasonable period of time.

The plaintiff's remaining contentions are without merit.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying actions (see Lanza v Wagner, 11 NY2d 317, appeal dismissed 371 US 74, cert denied 371 US 901).

In the Matter of Chubb Group of Insurance Companies v, Williams and Progressive Insurance Company

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Progressive Casualty Insurance Company appeals (1) from an order of the Supreme Court, Westchester County (Friedman, J.H.O.), dated October 17, 2003, which, after a hearing, granted the petition and (2), as limited by its brief, from so much of an order of the same court dated December 12, 2003, as, upon reargument and renewal, adhered to the prior determination.

ORDERED that the appeal from the order dated October 17, 2003, is dismissed, as that order was superseded by the order dated December 12, 2003, made upon reargument and renewal; and it is further,

ORDERED that the order dated December 12, 2003, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the petitioner-respondent. [*2]

Pursuant to the provision of Vehicle and Traffic Law § 313 in effect at the time of the purported cancellation of a policy of insurance providing coverage to James M. Dobbs, Jr. (see Vehicle and Traffic Law § 313[2][a]), Progressive Casualty Insurance Company (hereinafter Progressive) was required to file a notice of cancellation with the Commissioner of the New York State Department of Motor Vehicles. The record establishes that Progressive did not comply with this provision. Thus, the termination of coverage by Progressive was not effective with respect to the claim made by Beverly Williams arising out of an automobile accident which occurred on August 24, 2002 (see Vehicle and Traffic Law § 313[2][a]; Matter of AIU Ins. Co. v Mensah, 307 AD2d 921, 922; Matter of Merchants & Bus. Men's Mut. Ins. Co. v Williams, 295 AD2d 614, 615). Accordingly, the Supreme Court properly granted the petition to permanently stay arbitration pursuant to the uninsured motorist provision of the policy issued by the petitioner.

As indicated by our dissenting colleague, during the time period in question, the Department of Motor Vehicles (hereinafter the DMV) had issued certain regulations imposing a "blackout" period for electronic transmissions, including cancellations (see 15 NYCRR 34.7[a]). However, in our opinion, this did not eliminate the requirement imposed under Vehicle and Traffic Law § 313(2)(a). We note that even after the electronic system was converted to the new system and the "blackout" period ended, Progressive never notified the DMV of the purported cancellation of the subject policy prior to the accident at issue in this case. The system conversion process apparently ended in September 2000. The subject accident occurred close to two years thereafter, on August 24, 2002. However, it was not until November 2002, or three months after the accident, that Progressive first informed the DMV that the policy was not in effect.
SCHMIDT, J.P., LUCIANO and RIVERA, JJ., concur.
SANTUCCI, J., dissents, in part, and votes to dismiss the appeal from the order dated October 17, 2003, reverse the order dated December 12, 2003, insofar as appealed from, vacate the order dated October 17, 2003, deny the petition, and dismiss the proceeding, with the following memorandum:

In my opinion, the petition to stay arbitration of an uninsured motorist claim should have been denied. As stated by the majority, Vehicle and Traffic Law § 313(2)(a) requires that an insurer file a notice of termination with the Commissioner of the New York State Department of Motor Vehicles within 30 days following the effective date of cancellation. In the case at bar, the Supreme Court concluded, and the majority agrees, that Progressive Casualty Insurance Company (hereinafter Progressive) did not comply with this provision and thus it did not effectively cancel the subject policy of insurance prior to the date of the accident.

However, during the time period in question, the Department of Motor Vehicles (hereinafter the DMV) was in the process of converting its record-keeping system. In conjunction with converting this system of electronic reporting, the DMV issued certain regulations which stated in pertinent part that the "DMV shall not accept old format FSCP tapes [the prior system] after noon on May 19, 2000" and there "will be a period between FSCP tape cut-off and initial loading where electronic transactions, including cancellations, cannot be submitted by an insurance company or servicing agent to DMV" (15 NYCRR 34.7[a] [emphasis added]). The regulations further stated that "[s]ince IIES [the new system] begins with the reporting of insured policyholders and vehicles, cancellations that may have occurred during the period between the creation date of the last FSCP tape and the creation date of the successful IIES initial load tape shall not be reported to DMV" (15 [*3]NYCRR. 34.7[a][emphasis added]). Indeed, as per the affidavit of a DMV manager: "[i]f the carrier had cancelled a policyholder's policy between the DMV's acceptance of the carrier's last FSCP (old format) tape and the creation date of the carrier's initial load IIES tape, the Insurance carrier was not required to notify DMV" (emphasis added). In this case, Progressive's purported cancellation of the subject policy occurred during the period when, according to the DMV's own regulations, the insurer was not required to notify the DMV of such termination. Accordingly, it was error to grant the petition to stay arbitration pursuant to the uninsured motorist provision of the policy on the ground that Progressive failed to properly cancel in accordance with Vehicle and Traffic Law § 313(a)(2).

Senate Insurance Company v. Tamarack American




Lahtinen, J.

Appeal from an order of the Supreme Court (Keegan, J.), entered October 10, 2003 in Albany County, which granted defendant Tamarack American's motion for summary judgment dismissing the complaint.

This appeal concerns the scope of coverage of a "claims made" professional liability insurance policy. Plaintiff seeks judgment declaring that the policy issued to the law firm of Featherstonhaugh, Conway, Wiley & Clyne, LLP (hereinafter Featherstonhaugh firm) by American National Fire Insurance Company (hereinafter American National) provided coverage for the purported legal malpractice of defendant Randall J. Ezick for legal services he provided to plaintiff in a 1996 real estate transaction.

From August 1995 to April 1997, Ezick was employed full time by the Lawrence [*2]Group, Inc., as that company's general counsel. Lawrence Group was a holding company for various insurance underwriting and agency components, including plaintiff. In 1996, Ezick represented plaintiff when it purchased certain real property in Schenectady County from Barbara Lawrence for $2,600,000. The sale was consummated by quitclaim deed and the seller allegedly loaned the proceeds of the sale to the Lawrence Group rather than paying a substantial mortgage on the property. The Lawrence Group and Barbara Lawrence reportedly later filed for bankruptcy and plaintiff contends that, because of the lien on the property, it was left with nothing in return for its $2,600,000.

In April 1997, Ezick left the Lawrence Group and affiliated with the Featherstonhaugh firm on an "of counsel" basis. In September 1999, plaintiff commenced the underlying malpractice action against Ezick. Notice of that action was provided by Ezick to defendant Tamarack American, a division of Great American Insurance Company, which had issued a "claims made" policy by American National to the Featherstonhaugh firm for the period July 1, 1999 to July 1, 2000. Tamarack denied coverage on two grounds. First, that coverage for an attorney "of counsel" to the firm was provided "only to the extent such lawyer performs services on behalf of the Named Insured." Second, that since Ezick rendered services as an employee of a corporation separate from the named insured, his acts fell within a specific exclusion contained in the policy.

Plaintiff commenced the current declaratory judgment action and stipulated in the underlying malpractice action to, among other things, discontinue that action with prejudice in the event that it failed to establish insurance coverage [FN1]. Tamarack moved for summary judgment dismissing the complaint based upon the two reasons set forth in its initial denial and upon the additional ground that it was not liable since the policy had been issued by American National and not Tamarack. While noting that all Tamarack's arguments were "seemingly meritorious," Supreme Court granted the motion based upon the policy language with respect to an attorney acting "of counsel." Plaintiff appeals.

We affirm. "Where the terms of an insurance policy are clear and unambiguous, interpretation of those terms is a matter of law for the court" (B.U.D. Sheetmetal v Massachusetts Bay Ins. Co., 248 AD2d 856, 857 [1998] [citation omitted]). While "claims made" policies generally provide coverage for acts brought to the attention of the insurer during the policy term regardless of when the event giving rise to the claim occurred (see Oot v Home Ins. Co. of Ind., 244 AD2d 62, 68 [1998]; Frederick v Clark, 150 AD2d 981, 981 [1989], appeal dismissed 74 NY2d 892 [1989]), the current policy makes a specific provision otherwise for an attorney acting "of counsel." Section I of the policy defines an insured to include, among others, "each lawyer acting as 'of counsel,' but only to the extent such lawyer performs services on behalf of the [Featherstonhaugh firm]." It is clear that the alleged acts or omissions of Ezick that form the basis for the malpractice action occurred prior to the time he affiliated with the Featherstonhaugh firm and were not in any fashion performed on behalf of such firm.

Plaintiff, however, argues that, since the term "of counsel" is not separately defined in the policy, it is not clear whether Ezick can be considered to fall within this classification or whether he should come under coverage provided for employees and members of the firm. This state's Code of Professional Responsibility provides that the term "of counsel" may be used "if [*3]there is a continuing relationship with a lawyer or law firm, other than as a partner or associate" (DR 2-102 [A] [4] [22 NYCRR 1200.7 [a] [4] [emphasis added]; see NY St Bar Assn Comm on Prof Ethics Op 773 [2004]). This is in accord with the ordinary and accepted meaning of such term, which is defined as "[a] lawyer who is affiliated with a law firm, though not as a member, partner, or associate" (Black's Law Dictionary 352 [7th ed 1999]). From the time Ezick commenced his affiliation with the Featherstonhaugh firm, he was held out as being "of counsel" in the firm's letterhead and its listings in legal publications. In his affidavit he confirms that his status was "of counsel" when he affiliated with the firm in April 1997 and remained the same thereafter. Finding no ambiguity in the way the term "of counsel" is used in the relevant policy and since the evidence submitted established without contradiction that Ezick acted in that capacity during his entire time with the Featherstonhaugh firm, we agree with Supreme Court's determination.

 

In the Matter of Carla Biundo v. New York Central Mutual




 

In a proceeding pursuant to CPLR article 75 to compel arbitration of a underinsured motorist claim, New York Central Mutual appeals, as limited by its brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County (Harkavy, J.), entered June 8, 2004, as, after a hearing, determined that the petitioner was an insured person pursuant to a certain insurance policy issued by it and denied that branch of its motion which was to dismiss the proceeding.

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

The Supreme Court's determination, made after a hearing, that the some degree of permanence and with the intention to remain for an indefinite period of time petitioner was a resident of her parents' household on the date of the accident and thus an insured person under the SUM endorsement of their automobile liability policy was supported by a fair interpretation of the evidence and will not be disturbed (see e.g. Government Empls. Ins. Co. v Paolicelli, 303 AD2d 633; Greenpoint Sav. Bank v Patel, 267 AD2d 204). The testimony at the hearing demonstrated that the petitioner and her husband continued to reside with her parents until the extensive renovations to their newly purchased residence were completed. Thus, on the date of the accident the petitioner actually resided in the insured household with (see Matter of Aetna Life and Cas. Co., 149 Misc 2d 717, [*2]719; see also Matter of Allstate Ins. Co., 7 AD3d 302, 303; cf. New York Cent. Mut. Fire Ins. Co. v Kowalski, 195 AD2d 940, 941; Government Empls. Ins. Co. v Paolicelli, supra).
SCHMIDT, J.P., ADAMS, COZIER and S. MILLER, JJ., concur.

Diaz v.  Elrac, Inc.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered July 14, 2003, which, in this personal injury action, denied defendant-appellant Elrac, Inc.'s motion for summary judgment on its counterclaims for contractual indemnification from plaintiff, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered December 31, 2003, denying Elrac's motion for reargument, unanimously dismissed, without costs, as taken from a nonappealable paper.

Plaintiff was passenger in a vehicle rented from Elrac and driven by defendant Marco Donofrio at the time of the accident. Plaintiff's mother, Iris Diaz, rented the vehicle at plaintiff's request because he did not have a credit card available, and plaintiff was named as an additional driver on the rental agreement. The rental agreement contained a "Renter's Indemnity Provision" pursuant to which the renter agreed to indemnify and hold Elrac harmless from any claims, liabilities, damages, costs and expenses incurred by Elrac in connection with the rental transaction. Elrac contends in its first two counterclaims that since plaintiff made a claim for damages against it based upon an alleged failure to equip the rental vehicle properly, plaintiff must indemnify it for all amounts in excess of the minimum financial responsibility limits in New York State. Contrary to Elrac's contentions, these counterclaims are not amenable to summary adjudication. Issues of fact as to whether plaintiff is bound by the "Renter's Indemnity" were raised by Elrac's own witness, who testified that the renter was responsible for indemnifying Elrac, and that Iris Diaz, not plaintiff, was the renter of the vehicle in question. Summary relief on indemnification would also be inappropriate since there are unresolved issues of fact respecting Elrac's alleged negligence in maintaining the rental vehicle (see Maurillo v Park Slope U-Haul, 194 AD2d 142, 148 [1993]).

Finally, even if plaintiff violated the terms of the rental agreement when he permitted Mr. Donofrio, who was not identified in the agreement as an additional driver, to operate the rental [*2]vehicle, Elrac would not be entitled to summary judgment upon its claim for full indemnification because there is a triable question as to whether Mr. Donofrio's use of the vehicle was, under the circumstances, permissive within the meaning of Vehicle and Traffic Law § 388 (see Murdza v Zimmerman, 99 NY2d 375, 380-381 [2003]; Motor Veh. Acc. Indem. Corp. v Cont. Natl. Am. Group Co., 35 NY2d 260 [1974]).

We have considered Elrac's remaining arguments and find them unavailing.

Banuchis v, Government Employees Insurance Co.



            In an action for a judgment declaring that (1) a disclaimer of coverage issued by the defendant Government Employees Insurance Co. is invalid, and (2) the defendant Government Employees Insurance Co. is required to provide excess coverage up to its policy limits for the defendant Nicole Bonica in an action entitled Banuchis v Bonica, pending in the Supreme Court, Kings County, under Index No. 44473/00, the defendant Government Employees Insurance Co. appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated January 7, 2004, which denied its motion, in effect, for summary judgment declaring that it is not obligated to defend or indemnify any party in connection with that action.

ORDERED that the order is affirmed; and it is further,

ORDERED that, upon searching the record (see CPLR 3212 [b]), summary judgment is awarded to the plaintiff, and the matter is remitted to the Supreme Court, Kings County, for entry [*2]of a judgment declaring that the notice of disclaimer issued by the defendant Government Employees Insurance Co. was untimely and invalid, and that the defendant is obligated to provide excess coverage up to its policy limits for the defendant Nicole Bonica in the action entitled Banuchis v Bonica, pending in the Supreme Court, Kings County, under Index No. 44473/00; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

Contrary to the contentions of the defendant Government Employees Insurance Co. (hereinafter GEICO), service upon its in-house legal staff of a letter notifying it of a potential excess coverage claim was sufficient to constitute notice of the claim (see generally Price v Lawrence-Van Voast, Inc., 58 AD2d 727; see also Vogemann v American Dock & Trust Co., 131 App Div 216, affd 198 NY 586). It is undisputed that the attorneys so served were employees of GEICO and handled many of the claims submitted to it. Additionally, the GEICO policy at issue failed to prescribe any specific manner of notification of a claim or to designate a particular individual or department to which such notice should be directed. Thus, a general authority on the part of the attorney-employee to receive notice on behalf of GEICO in the ordinary course of their employment may be inferred (see generally Rendeiro v State-Wide Ins. Co., 8 AD3d 253). Moreover, the record demonstrates that the 62-day delay between notification of the claim and GEICO's notice of disclaimer based on lack of timely notification was unreasonable as a matter of law (see First Fin. Ins. Co. v Jetco Contr. Corp., 1 NY3d 64; Uptown Whole Foods v Liberty Mut. Fire Ins. Co.., 302 AD2d 592; Matter of Colonial Penn Ins. Co. v Pevzner, 266 AD2d 391; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507). Accordingly, the Supreme Court properly denied GEICO's motion for summary judgment. Additionally, upon searching the record (see CPLR 3212 [b]), summary judgment is granted in favor of the plaintiff awarding her the declaratory relief requested in her complaint.

Casella v. New York City Transit Authority

In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Walter Miller appeal and the defendant Khalid Amir separately appeals, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated November 21, 2003, as denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with one bill of costs to the appellants appearing separately and filing separate briefs, the motions are granted, and the complaint is dismissed.

The defendants made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of the medical records of the plaintiff's treating physician and an affirmed medical report of their own examining physician (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; see also Hodges v Jones, 238 AD2d 962; Pagano v Kingsbury, 182 AD2d 268, 271; Gleason v Huber, 188 AD2d 581). In opposition, the affirmation of the plaintiff's examining physician was insufficient to raise a triable [*2]issue of fact. Significantly, there was no satisfactory explanation in admissible form for the nearly three-year gap between the conclusion of the plaintiff's medical treatments and the date of the examination by the plaintiff's expert (see Jimenez v Kambli, 272 AD2d 581; Smith v Askew, 264 AD2d 834).

Moreover, the plaintiff failed to submit any competent medical evidence to support a claim that she was unable to perform substantially all of her daily activities for not less than 90 of the 180 days immediately following the accident, as a result of the subject accident (see Sainte-Aime v Ho, 274 AD2d 569; Jackson v New York City Tr. Auth., 273 AD2d 200; Greene v Miranda, 272 AD2d 441; Arshad v Gomer, 268 AD2d 450; Bennet v Reed, 263 AD2d 800; DiNunzio v County of Suffolk, 256 AD2d 498, 499).

Check v Gacevk


            In an action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Lewis, J.), dated April 23, 2004, as denied his cross motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is granted, and the complaint is dismissed.

The defendant made a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) through the submission of the plaintiff's deposition testimony, the records of the plaintiff's treating physicians, and the affirmed medical reports of the defendant's examining physicians (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955; Fragale v Geiger, 288 AD2d 431; Hodges v Jones, 238 AD2d 962). The submissions of the plaintiff in opposition to the cross motion were insufficient to raise a triable issue of fact. The conclusions of the plaintiff's expert physician, who examined the plaintiff for the first time approximately 15 months after the accident, were contradicted by the findings and reports of the plaintiff's own treating physicians and failed to take into account the injuries sustained by the plaintiff in two previous motor vehicle accidents. [*2]

Accordingly, the cross motion for summary judgment dismissing the complaint should have been granted.
FLORIO, J.P., ADAMS, GOLDSTEIN, RIVERA and SPOLZINO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

 

Sherin v Roda



            In an action to recover damages for personal injuries, the defendants Aileen A. Lauer and Joseph Lauer appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated January 13, 2004, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in causing the subject accident, and the defendants Amy Louise Roda and William J. Gamble cross-appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs, the motions are granted, and the complaint and all cross claims are dismissed.

On the evening of January 13, 2000, on Route 107 in Bethpage, Nassau County, a [*2]motor vehicle operated by the plaintiff was struck in the rear by a motor vehicle operated by the defendant William J. Gamble and owned by the defendant Amy Louise Roda. As a result of the impact, the plaintiff's vehicle struck the rear of the vehicle which was owned by the defendant Aileen A. Lauer and operated by the defendant Joseph Lauer. At the time of impact, the Lauers' car was stopped at a red light in front of the plaintiff's vehicle.

The Lauers moved for summary judgment, inter alia, on the issue of liability, and Roda and Gamble also moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). The Supreme Court denied both motions.

The Lauers established their prima facie entitlement to judgment as a matter of law by demonstrating that they were not negligent since their vehicle was stopped at a red light at the time of impact (see Harriott v Pender, 4 AD3d 395, 397; Davis v Quinones, 295 AD2d 394). Neither the plaintiff nor Roda and Gamble raised a triable issue of fact. Therefore, the Supreme Court should have granted the Lauers' motion for summary judgment.

Roda and Gamble also established their prima facie entitlement to summary judgment demonstrating that the plaintiff did not sustain a serious injury based on unsworn reports of the plaintiff's physicians (see Mantila v Luca, 298 AD2d 505; Fragale v Geiger, 288 AD2d 431; Pagano v Kingsbury, 182 AD2d 268, 271).

In opposition, the plaintiff submitted unsworn medical reports, which were inadmissible (see Young v Ryan, 265 AD2d 547, 548). Further, the affirmations submitted by an orthopedic surgeon, Dr. Moriarty, and an orthopedic physician, Dr. Schwartz, failed to set forth whether the plaintiff's alleged injuries were causally related to the subject motor vehicle accident (see Verrelli v Tronolone, 230 AD2d 789). Therefore, since the plaintiff failed to raise a triable issue of fact, the Supreme Court also should have granted Roda and Gamble's motion for summary judgment.
SCHMIDT, J.P., ADAMS, COZIER and S. MILLER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

In re Allstate Insurance Company v. Massre


            In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated February 24, 2004, which, after a hearing, denied the petition and, in effect, dismissed the proceeding.

ORDERED that the order is reversed, on the law, with one bill of costs, the petition is granted, and the arbitration is permanently stayed.

The respondent Arlene S. Massre sustained injuries in a collision between a vehicle she owned and operated and a vehicle allegedly owned by a nonparty, Curol Mars, and insured under a policy issued by the respondent State Farm Mutual Automobile Insurance Company (hereinafter State Farm). State Farm disclaimed coverage of Massre's injuries on the ground, among others, that the collision was intentional. Massre thereafter submitted a claim for uninsured motorist coverage to the petitioner, Allstate Insurance Company (hereinafter Allstate), which insured her vehicle. Allstate also disclaimed coverage and she requested arbitration. After a hearing, the Supreme Court [*2]denied Allstate's petition for a permanent stay of arbitration.

The Supreme Court correctly concluded, based upon a fair interpretation of the credible evidence, that the collision was intentional and, in effect, determined that State Farm's disclaimer was valid. However, since Massre's injuries were not the result of an accident, she is precluded from recovering uninsured motorist benefits under Allstate's policy (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490; Matter of Government Empls. Ins. Co. v Shaulskaya, 302 AD2d 522; Matter of Progressive Northwestern Ins. Co. v Van Dina, 282 AD2d 680; Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751). Moreover, we note that State Farm was not required by Insurance Law § 3420(d) to issue a disclaimer because its denial of coverage was based upon a lack of coverage and not a policy exclusion (see Matter of State Farm Mut. Auto. Ins. Co. v Laguerre, supra at 491; Matter of Metro Med. Diagnostics v Eagle Ins. Co., supra at 752; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201).
FLORIO, J.P., ADAMS, COZIER and MASTRO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Cortez v. Manhattan Bible Church


            Order, Supreme Court, Bronx County (Alan J. Saks, J.), entered November 24, 2003, which granted the motion by defendants Wheels, Inc. and Hickman and the cross motion by defendants Manhattan Bible Church and Rengifo for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff was a passenger in the Church vehicle, operated by Rengifo, when it was struck by the Wheels vehicle, operated by Hickman. She did not seek treatment for her purported injuries until six days later, complaining of pain and nausea. Over the next eight months, all treatment was performed at American Chiropractic in Manhattan, or by referrals to other chiropractors or physicians. Following discovery, summary judgment was granted based on plaintiff's failure to establish a causal relationship between her alleged injuries and the accident.

Defendants met their initial burden on the summary judgment motion. Plaintiff then failed to come forward with sufficient proof establishing a triable issue of fact on whether she had sustained a serious injury within the meaning of the Insurance Law § 5102(d). None of the evidence constituted objective proof that plaintiff's injuries had been caused by the accident (see Vaughan v Baez, 305 AD2d 101 [2003]). "Objective proof of the nature and degree of a plaintiff's injury is required to satisfy the statutory serious injury threshold" (Martin v Schwartz, 308 AD2d 318, 319 [2003]; see also Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 [2002]). Disc bulges and herniations, standing alone, are simply not enough to meet that threshold (see Arjona v Calcano, 7 AD3d 279 [2004]). There is no objective proof concerning the extent or degree of any physical limitation, such as an expert's designation of a numeric percentage of her loss of range of motion (see Toure, 98 NY2d at 350), to demonstrate that
injuries allegedly attributable to the accident have at all restricted her physical abilities and general lifestyle.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. [*2]

ENTERED: JANUARY 27, 2005

CLERK

 

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