Coverage Pointers - Volume VII, No. 15

New Page 1

1/26/06            Chase Manhattan Bank v. New Hampshire Insurance Company

Appellate Division, First Department

Whether “Delivery” of a Motion Picture Occurred Raised a Question of Fact Whether Coverage was Triggered
Pursuant to a Credit and Security Agreement, Chase Manhattan lent Echo Productions $4,287,071 to finance the production of a motion picture entitled Looking for an Echo (the Project). Chase then purchased a Contingent Loss of Revenue Insurance Policy (the Policy) from New Hampshire for indemnification of any portion of the loan that was not repaid by the claim date. The "delivery date" of the Project, a condition precedent to making a claim, was originally set in the Interparty Agreement for December 1, 1998 and subsequently extended to March 1, 1999. The "claim date," originally described in the Policy as "twelve months subsequent to the date of delivery of the Project," was extended to January 1, 2000 "provided that delivery of the Project occurs prior to that date." Under the Policy, the coverage period was 15 months following delivery of the Project or March 31, 2000, whichever came later.

 

Chase brought a timely claim under the Policy and asserted that “delivery” as defined in the agreement was completed by or prior to March 1, 1999. Defendant declined to pay the claim, maintaining that no delivery occurred and that the claim date had expired.  The Court finds a question of fact as the film was screened, in relatively empty movie houses in November 2000, so it was obvious to the Court that delivery did occur at some point, but the Court could not determine as a matter of law the exact date of delivery.

1/20/06            Fabiano v.Oliver

Appellate Division, First Department

When Plaintiff's Doctor Fails to Address Prior Medical Conditions and Defendant’s Expert Opinion, Dismissal is Appropriate on Serious Injury Grounds

Defendant established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not suffer a serious injury. Specifically, defendant submitted the affirmed reports of examining medical doctors, who opined that plaintiff sustained sprains and strains in the motor vehicle accident, and attributed plaintiff's ongoing complaints to unrelated medical conditions. In opposition, plaintiff’s doctor did not account for prior and subsequent injury producing accidents, and did not address the opinion of defendant's experts that plaintiff's symptoms were non-traumatic in origin. In addition, no contemporaneous records of testing and treatment were submitted. Under these circumstances, the conclusions set forth by plaintiff's doctor as to causation and permanence were viewed as speculative by the Court.

 

1/19/06            Kramarik v. Travelers

Appellate Division, Third Department

Bubble Dance Pit Doesn’t Qualify as an “Amusement Device” under Policy Exclusion

Plaintiff owns and operates a disc jockey entertainment company hired to provide a foam pit dance party at the State University of New York at Fredonia in May 1997. A foam pit is a vinyl dance floor with 2½ foot inflatable sides that is filled with a foam bubble liquid. While entering the pit, Karen Zahm fell, hitting her head on the vinyl bottom and fracturing several vertebrae.

Travelers disclaimed coverage for Kramarik on the basis of the policy's exclusion of coverage for injuries arising out of the use of "amusement devices operated by [plaintiff,] including but not limited to [the] aerotrim cross trainer device or similar devices,".  Given the absence of a definition of "amusement device" in the policy, Travelers relied upon the dictionary definitions asserting that any "piece of equipment" that provides a "means of amusing or entertaining" falls within the exclusion.  Travelers also pointed out that Kramarik advertised the foam pit dance party as an amusement activity, calling it a "whacky, wild and wet fun-filled event" and "the most fun you can have with your clothes on."  

The Court holds that the policy was issued to Kramarik in connection with his music/disc jockey business and the purpose of the business is to provide entertainment and amusement and, thus, defendant's proffered interpretation of the term "amusement device" would apply to almost any piece of equipment used in his business.   In the Court’s view, it cannot be said that the policy was clearly and unmistakably intended to exclude injuries arising from the tools of plaintiff's entertainment trade, such as vinyl dance floors.  The Court also noted that a “vinyl dance floor bears no resemblance to the only example of an amusement device listed (in the policy), an "aerotrim cross trainer".   The adoption of an interpretation that excluded coverage for the tools of plaintiff's trade would contradict his reasonable expectations as a businessperson seeking insurance coverage for injuries resulting from the operation of his entertainment business.

1/17/06            In the Matter of Utica Mutual Insurance Co. v. Colon
Appellate Division, Second Department

Insurance Code in Police Accident Report Meets Prima Facie Showing and Entitlement to Stay

A party seeking a stay of arbitration of an uninsured motorist claim has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue that would justify the stay.  In this case, the police accident report contained the vehicle's insurance code.  This evidence was sufficient for the petitioner to put forth a prima facie case that the proposed additional respondent (American Independent Insurance Company) insured the offending vehicle.  The burden then shifted to American, which denied that it insured the vehicle at the time of the accident, to establish a lack of coverage. American Independent failed to rebut the petitioner's prima facie showing. Therefore, the Supreme Court erred in denying the petition insofar as asserted against American Independent on the basis of lack of coverage. American Independent also argued that the court lacked personal jurisdiction over it. It did not develop its argument on that point, since the Supreme Court indicated that it was unnecessary to rule on that argument, given its disposition of the coverage issue. In light of that, the Court remitted the case for a new hearing solely on the issue of whether the court has personal jurisdiction over American Independent.

 

Audrey’s Angle on No-Fault

 

In this feature to the newsletter, we highlight recent no-fault arbitration awards.   The compilation and publication of these awards is not at the same level as traditional reported case law.  There is no single source to conduct comprehensive research in the area.  This feature seeks out notable current awards and judicial determinations and provides them to our subscribers.

 

We encourage the submission of no-fault awards, including Master Arbitration awards that address interesting issues.  These can be submitted to Audrey Seeley at [email protected].   With all submissions, we ask that you forward a redacted version of the award omitting the parties’ names and that the document be in PDF format.  For copies of these decisions, contact Audrey.

 

1/25/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Maria G. Schuchmann, Esq. (Suffolk County)

Applicant Failed To Demonstrate Medical Necessity For MRI As No Indication Why Test Being Ordered.

Here is the Angle:      Applicant must demonstrate why the MRI was ordered to establish medical necessity.  We note that in the case the Applicant did submit a letter of medical necessity.

 

The Analysis:              On April 13, 2005, the Applicant was injured in an automobile accident allegedly sustaining upper and lower back pain with radiation into the extremities.  Applicant did have a decreased range of motion and muscle strength, as well as a positive Straight Leg Raise.  Based on those findings, a cervical spine MRI was ordered less than one month after the accident.  Arbitrator Schuchmann noted that there was no indication as to when the Applicant was examined; whether she underwent conservative treatment before the MRI; or the Applicant’s progress since the accident.  The MRI did reveal disc bulges at unspecified levels with osteophyte complex with C3/4 level effacement.

 

The insurer denied the MRI based upon a peer review by Dr. Hassan.  According to Dr. Hassan’s review, the treating physicians’ reports demonstrated that the Applicant was normal neurologically.

 

Arbitrator Schuchmann found in favor of the insurer but noted that the peer review was not very strong.  The main reason for the award in favor of the insurer was because the Applicant’s proof never demonstrated by the MRI was performed.  Further, there was no evidence regarding the Applicant’s treatment between the accident and the MRI, which was conducted less than one month after the accident.

 

1/19/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)

Lost Wages Awarded To Applicant When Employer Testified He Would Not Have Been Terminated Had Physician’s Note Rendering Him Unable To Work Was Received Before Termination Occurred.

Here is the Angle:      The Applicant was awarded lost wages as the Arbitrator found that his termination was related to the motor vehicle accident.  The major reason an award was rendered in Applicant’s favor was because the employer testified that had it received the doctor’s note indicating Applicant’s inability to work as a result of the accident before the termination occurred, it would not have terminated the Applicant.  We note that the insurer subpoenaed the employer for testimony.  A word of advice from this decision – perhaps it is worthwhile, if possible, to speak with the employer before subpoenaing for testimony to ascertain exactly what the employer will testify to.

 

The Analysis:              On October 9, 2004, the Applicant was involved in a motor vehicle accident sustaining a low and mid back injury for which rendered him unable to work at Mibro Group.  The day before Applicant sustained a low back injury at work.  His physician authorized Applicant to return to work on October 9, 2004, with lifting restrictions.  However, Applicant decided he did not want to go to work because of discomfort he was feeling.  So, he traveled to Rochester to visit relatives, which is how he was involved in the motor vehicle accident.

 

The Applicant sought lost wages which were denied by the insurer by a denial dated December 29, 2004, on the basis that Mibro Group terminated him effective November 11, 2004, for reasons other than the motor vehicle accident.

 

The General Manager of Mibro Group, who the insurer subpoenaed, testified that Applicant was hired as a full time order picker.  He was on a 90-day probationary period of employment when this motor vehicle accident occurred.  Applicant’s 90-day review revealed that his attendance, performance, and ability to operate machinery safely were substandard.  On November 11, 2004, Applicant was terminated.

 

Applicant’s reasoning for attendance issues and lack of satisfactory performance was due to pain from the injuries he sustained in the motor vehicle accident.  He claimed that he provided Mibro Group with a note from his physician indicating his inability to return to work.

 

The General Manager testified that she did not receive the physician’s note before the termination date.  More importantly, had she received it Applicant would not have been terminated.  Further, The General Manager testified that had the Applicant shown up at work or called before his termination providing an explanation he would not have been terminated.

 

Arbitrator McCorry concluded that from the General Manager’s testimony it was clear that Mibro Group was unhappy with Applicant’s work performance.  However, as the General Manager indicated, had it been aware of the fact that a physician’s note existed explaining the reasons for his poor work performance then Applicant would not have been terminated.  Accordingly, Arbitrator McCorry found the denial for lost wages inappropriate.

 

1/17/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)

Arbitrator Expresses Concern Over Queens County Physicians Coming to Buffalo To Perform An IME, But Still Finds For Insurer.

Here is the Angle:      For those who handle arbitrations in Erie County, you know that Arbitrator McCorry is fairly new to this area and many are still getting to know him.  One thing we know from this award is that he questions the credibility of IME reports from a physician brought in from downstate to Buffalo to conduct an IME.  We venture to say that had the Applicant submitted a letter of medical necessity the award may have been in Applicant’s favor.

 

The Analysis:             The Applicant, who represented herself, sought reimbursement for chiropractic treatment as a result of a motor vehicle accident.  After a telephonic conference, the Applicant was provided with an additional opportunity to submit a post hearing submission in the form of a letter of medical necessity from her treating chiropractor.  While the treating chiropractor submitted copies of the denials at issue, no letter of medical necessity was submitted.

 

Arbitrator McCorry denied Applicant’s claim based upon the lack of a letter of medical necessity.  However, he made very clear his unhappiness with the insurer’s choice of IME physicians:

 

Respondent for their part submitted a copy of a Blanket denial dated 11/22/04.  That denial was based on the IME exams of Dr’s Katzman and Ferrante.  I find it troubling that Respondent utilizes ‘hired guns’ from Richmond Hills, Queens N.Y. to perform Independent Medical exams (sic) in Buffalo N.Y.  In my opinion it reflects poorly on the credibility of the report.

 

1/13/06            In the Matter of the Arbitration between the Applicant and Respondent

Arbitrator Thomas J. McCorry, Esq. (Erie County)

Applicant Provides Reasonable Justification For Failing To File Claim For No-Fault Benefits Timely.

Here is the Angle:      Applicant’s inability to ascertain the taxi’s insurance carrier coupled with the fact that she allegedly sent the no-fault application before the 30-days ran was reasonable justification for the delay in filing the application in a timely manner.

 

The Analysis:              On December 7, 2004, Applicant, a passenger in a taxi, in the course of her employment, was involved in a motor vehicle accident.  She applied for and received workers’ compensation benefits for her lost wage claim.  However, Applicant sought to recover the difference from the no-fault insurer between what was allowed by the workers’ compensation carrier and her actual wage.

 

The Applicant contacted the no-fault insurer on December 27, 2004, regarding this accident.  On December 31, 2004, Applicant received the application for no-fault benefits which she contended was completed and mailed on January 3, 2005.  The Applicant had until January 7, 2005, to return the application.  The insurer contended that it did not receive the application until January 11, 2005.

 

By denial dated January 18, 2005, the insurer denied Applicant’s claim on the basis that the insurer’s rights were prejudiced as the Applicant did not submit a completed no-fault application within the prescribed timeframe.

 

The Applicant argued that she was reasonably justified for the delay as she could not obtain the taxi company’s cooperation to ascertain the insurer’s identification.  She was only able to obtain the information after the hospital’s billing department assisted her in identifying the taxi’s insurer.

 

Arbitrator McCorry found that Applicant, in this case, demonstrated reasonable justification for the delay in filing.

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.


1/19/06            Martinonis v. Utica National Insurance Group

Massachusetts Court of Appeals

Long History of Relationship With Broker, Regular Reliance on Broker’s Advice and Specific Assurances Regarding Limits of Policy At Issue Create Special Circumstances Sufficient to Defeat Grant of Summary Judgment in Broker’s Favor on Negligence Claim
Defendant Beverly Insurance Brokerage, Inc. (“Beverly”) obtained a homeowners policy for the plaintiffs from Utica National Insurance Group (“Utica”). The plaintiffs’ home was destroyed by a fire. The policy liability limit of $469,000 was paid in full by Utica. The actual covered loss to the plaintiffs was claimed to be $1,164,012.43. The plaintiffs claim that Beverly was negligent in failing to advise them to obtain a higher amount of liability insurance. The trial court awarded summary judgment in Beverly’s favor. The Court of Appeals reversed. Although “there is no general duty of an insurance agent to ensure that insurance policies procured by him provide coverage that is adequate for the needs of the insured … in an action against the agent for negligence, the insured may show that special circumstances prevailed that gave rise to a duty on the part of the agent to ensure that adequate insurance was obtained.” The facts supplied by Mrs. Martinonis regarding her family’s long relationship with the broker, the insurance policies they placed with him for a variety of other properties, the reliance she placed on his review of the adequacy of their insurance coverage on the home after she expressed concerns and the specific assurance by the broker that the limits were proper were sufficient to defeat a motion for summary judgment.

Submitted by: Bruce D. Celebrezze & Erin Meagher (Sedgwick, Detert, Moran & Arnold LLP)


1/16/06            Bulk Pack Inc v. Fidelity & Deposit Company of Maryland

Fifth Circuit Court of Appeals

Employee Dishonesty Occurred in Mexico, Thus No Coverage Under Territorial Exclusion Provision
The Fifth Circuit affirmed the district court’s order granting summary judgment in favor of the insurer denying coverage under a commercial crime insurance policy. The policy covered acts of employee dishonesty occurring in the United States, U.S. Virgin Islands, Puerto Rico, Canal Zone, or Canada. The insured discovered that one of its employees in its Mexican operations embezzled money by inflating weekly requests for money transfers from its Louisiana bank account. The parties disputed the policy’s territorial exclusion provision. The court held that although the funds were transferred from Louisiana, the embezzlement occurred in Mexico, and thus was excluded from coverage.

 

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

 

 

Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of
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Kramarik v. Travelers

 

MEMORANDUM AND ORDER

Calendar Date: November 17, 2005
Before: Mercure, J.P., Peters, Mugglin, Rose and Kane, JJ.


Hiscock & Barclay, L.L.P., Rochester (Anthony J.
Piazza of counsel), for appellant-respondent.
Davidson & O'Mara, P.C., Elmira (Bryan J. Maggs of
counsel), for respondent-appellant.




Mercure, J.P.

(1) Cross appeals from an order of the Supreme Court (Mulvey, J.), entered October 5, 2004 in Chemung County, which, inter alia, granted plaintiff's motion for partial summary judgment, and (2) appeal from the judgment entered thereon.

Plaintiff owns and operates Bobby K Entertainment, a disc jockey entertainment company that was hired to provide a foam pit dance party at the State University of New York at Fredonia in May 1997. A foam pit is a vinyl dance floor with 2½ foot inflatable sides that is filled with a foam bubble liquid. While entering the pit, Karen Zahm fell, hitting her head on the vinyl bottom and fracturing several vertebrae. Thereafter, Zahm commenced a personal injury action in Erie County, which resulted in a judgment against plaintiff of approximately $180,000. Plaintiff submitted a claim to defendant Travelers (hereinafter defendant), its insurer, during the course of that action and defendant disclaimed coverage. In this action, plaintiff seeks damages [*2]for defendant's failure to defend and indemnify him in the Zahm action.

Plaintiff moved for partial summary judgment on his claims against defendant for his defense costs and indemnification, and defendant cross-moved, seeking dismissal of the complaint and a declaration that it had no obligation to defend or indemnify plaintiff. Supreme Court granted plaintiff's motion, denied defendant's cross motion and ordered defendant to pay plaintiff defense costs in the amount of approximately $7,000 and for the amount paid in the judgment entered in the Zahm action, with interest. The court denied plaintiff's request, however, for an award of counsel fees in this action. The parties cross-appeal from the court's order and defendant appeals from a subsequent judgment entered thereon.

Defendant asserts that pursuant to an exclusion in the policy at issue, it had no duty to defend and indemnify plaintiff. Specifically, defendant contends that the policy's exclusion of coverage for injuries arising out of the use of "amusement devices operated by [plaintiff,] including but not limited to [the] aerotrim cross trainer device or similar devices," is applicable here. It is well settled that an insurance policy must be read "in light of 'common speech' and the reasonable expectations of a businessperson" (Belt Painting Corp. v TIG Ins. Co., 100 NY2d 377, 383 [2003]; see Milbin Print. v Lumbermen's Mut. Cas. Ins. Co., 283 AD2d 467, 468 [2001]). Any ambiguity in a policy exclusion is resolved against the insurer and, therefore, to negate coverage, "'an insurer must establish that the exclusion is stated in clear and unmistakable language, is subject to no other reasonable interpretation, and applies in the particular case'" (Belt Painting Corp. v TIG Ins. Co., supra at 383, quoting Continental Cas. Co. v Rapid-Am. Corp., 80 NY2d 640, 652 [1993]; see Westview Assoc. v Guaranty Natl. Ins. Co., 95 NY2d 334, 340 [2000]).

With respect to the "amusement device" provision at issue here, given the absence of a definition in the policy, defendant relies upon dictionary definitions in asserting that any "piece of equipment" that provides a "means of amusing or entertaining" falls within the exclusion. Defendant further notes that plaintiff himself advertised the foam pit dance party as an amusement activity, calling it a "whacky, wild and wet fun-filled event" and "the most fun you can have with your clothes on." Defendant concedes, however, that the policy was issued to plaintiff in connection with his music/disc jockey business. The very purpose of this business is to provide entertainment and amusement and, thus, as plaintiff asserts, defendant's proffered interpretation of the term "amusement device" would apply to almost any piece of equipment used in his business. In our view, it cannot be said that the policy was clearly and unmistakably intended to exclude injuries arising from the tools of plaintiff's entertainment trade, such as vinyl dance floors (see Belt Painting Corp. v TIG Ins. Co., supra at 387). We note that a vinyl dance floor bears no resemblance to the only example of an amusement device listed, the "aerotrim cross trainer," a mechanical gyro device in which the participant's arms and legs are extended and bound inside a sphere that spins in all directions. Moreover, adoption of an interpretation that excluded coverage for the tools of plaintiff's trade would contradict his reasonable expectations as a businessperson seeking insurance coverage for injuries resulting from the operation of his entertainment business (see id. at 383).[FN1] [*3]

Turning to the parties' remaining arguments, we agree with defendant that Supreme Court erred in failing to dismiss plaintiff's claim for punitive damages inasmuch as defendant had an arguable basis for the denial of coverage and there is no suggestion of any action on its part that rose to the level of morally culpable conduct (see Gordon v Nationwide Mut. Ins. Co., 30 NY2d 427, 437 [1972], cert denied 410 US 931 [1973]; Walker v Sheldon, 10 NY2d 401, 404 [1972]; see also Zurich Ins. Co. v Texasgulf, Inc., 233 AD2d 180, 181 [1996]). Moreover, pursuant to long-settled precedent, "plaintiff is not entitled to recover fees incurred in seeking to compel [defendant] to comply with its duty to defend" and indemnify (Williams v Associated Mut. Ins. Co., 211 AD2d 865, 867 [1995]; see Mighty Midgets v Centennial Ins. Co., 47 NY2d 12, 21 [1979]). Conversely, when an insurer compels an insured to defend in an action for a declaration that the insurer has no duty to defend or indemnify, the insured may recover counsel fees if successful (see U.S. Underwriters Ins. Co. v City Club Hotel, 3 NY3d 592, 597-598 [2004]; Mighty Midgets v Centennial Ins. Co., supra at 22). The rationale for this exception to the general rule that a prevailing party may not recover counsel fees is that, pursuant to the parties' insurance contract, "an insurer's responsibility to defend reaches the defense of any actions arising out of the occurrence" (Mighty Midgets v Centennial Ins. Co., supra at 21 [emphasis in original]; see U.S. Underwriters Ins. Co. v City Club Hotel, supra at 597-598). When "it is the insured [himself] that has taken the offensive," however, the exception to the general rule does not apply and counsel fees may not be recovered (Mighty Midgets v Centennial Ins. Co., supra at 22; see e.g. New York Univ. v Continental Ins. Co., 87 NY2d 308, 324 [1995]; Chapel v Mitchell, 84 NY2d 345, 348-349 [1994]; Chase Manhattan Bank v Each Individual Underwriter Bound to Lloyd's Policy No. 790/004A89005, 258 AD2d 1, 4-5 [1999]).

The parties' remaining arguments have been considered and found to be lacking in merit.

Peters, Mugglin, Rose and Kane, JJ., concur.

ORDERED that the order and judgment are modified, on the law, without costs, by reversing so much thereof as denied the cross motion of defendant Travelers for summary judgment on the issue of punitive damages; motion granted and said claim dismissed; and, as so modified, affirmed.

Footnotes



Footnote 1: In its brief, defendant asserts that an exclusion of coverage for injuries arising out of "athletic, exercise, or sports activities [plaintiff] sponsor[s] or which are conducted on premises [plaintiff] own[s], rent[s] or control[s]" also applies. This assertion is lacking in merit inasmuch as there is no evidence that Zahm was engaged in any excluded activity at the time of the accident, a point conceded by defendant at oral argument.     

 


In the Matter of Utica Mutual Insurance Co. v. Colon



Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W.
Benton and Brian C. McCarthy of counsel), for appellant.
Freiberg & Peck, LLP, New York, N.Y. (Matthew E. Schaefer
of counsel), for proposed additional
respondent-respondent.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of an uninsured motorist claim, the petitioner appeals from an order of the Supreme Court, Kings County (Harkavy, J.), dated July 30, 2004, which, after a hearing, denied the petition insofar as asserted against the proposed additional respondent American Independent Insurance Company.

ORDERED that the order is reversed, on the law, with costs, the petition insofar as asserted against the proposed additional respondent American Independent Insurance Company is reinstated, and the matter is remitted to the Supreme Court, Kings County, for further proceedings in accordance herewith.

A party seeking a stay of arbitration of an uninsured motorist claim has the burden of showing the existence of sufficient evidentiary facts to establish a preliminary issue that would justify the stay (see Matter of Eagle Ins. Co. v Viera, 236 AD2d 612). In this matter, by producing the police accident report containing the vehicle's insurance code, the petitioner showed, prima facie, that the proposed additional respondent American Independent Insurance Company (hereinafter American Independent) insured the offending vehicle (see Matter of Eagle Ins. Co. v Rodriguez, 15 AD3d 399; Matter of Liberty Mut. Ins. Co. v McDonald, 6 AD3d 614, 615; Matter of Eagle Ins. Co. [*2]v Beauvil, 297 AD2d 736). The burden then shifted to American Independent, which denied that it insured the vehicle at the time of the accident, to establish a lack of coverage. American Independent failed to rebut the petitioner's prima facie showing (see Matter of Eagle Ins. Co. v Rodriguez, supra). Therefore, the Supreme Court erred in denying the petition insofar as asserted against American Independent on the basis of lack of coverage.

During the framed issue hearing, American Independent also argued that the court lacked personal jurisdiction over it. It did not develop its argument on that point, since the Supreme Court indicated that it was unnecessary to rule on that argument, given its disposition of the coverage issue. In light of the fact that the court erred in determining the coverage issue, we remit the matter to the Supreme Court, Kings County, for a new hearing and determination solely on the issue of whether the court has personal jurisdiction over American Independent (see Matter of Eagle Ins. Co. v Guttierrez-Guzman, 21 AD3d 489; Matter of New York Cent. Mut. Ins. Co. v Johnson, 260 AD2d 638).

The petitioner's remaining contentions are not properly before this court.
PRUDENTI, P.J., H. MILLER, MASTRO and LUNN, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

Fabiano v.Oliver

 

Plaintiff appeals from an order of the Civil Court, New York County (Arthur F. Engoron, J.), entered July 1, 2004, which granted defendant's motion for summary judgment dismissing the complaint.

 

PER CURIAM:

Order (Arthur F. Engoron, J.), entered July 1, 2004, affirmed, with $10 costs.

Defendant established a prima facie entitlement to summary judgment by submitting evidence demonstrating that plaintiff did not suffer a serious injury (Insurance Law §5102[d]). Specifically, defendant submitted the affirmed reports of examining medical doctors, who opined that plaintiff sustained sprains and strains in the motor vehicle accident, and attributed plaintiff's ongoing complaints to unrelated medical conditions. In opposition, plaintiff failed to meet his consequent burden. His doctor did not account for prior and subsequent injury producing accidents, and did not address the opinion of defendant's experts that plaintiff's symptoms were non-traumatic in origin. No contemporaneous records of testing and treatment were submitted. Under these circumstances, the conclusions set forth by plaintiff's doctor as to causation and permanence can only be viewed as speculative (see Montgomery v. Pena, 19 AD3d 288 [2005]).

This constitutes the decision and order of the court. [*2]
Decision Date: January 20, 2006

 

Chase Manhattan Bank v. New Hampshire Insurance Company



Morgan, Lewis & Bockius LLP, New York (Eugene F.
Bannigan of counsel), for appellant.
Mound Cotton Wollan & Greengrass, New York (Daniel
Markewich of counsel), for respondent.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered September 27, 2004, which, to the extent appealed from as limited by the briefs, denied plaintiff's motion for summary judgment and granted defendant's cross motion to dismiss the complaint, unanimously modified, on the law, to deny the cross motion and reinstate the complaint, and otherwise affirmed, without costs.

Pursuant to a Credit and Security Agreement, plaintiff Chase Manhattan Bank lent third-party defendant Echo Productions $4,287,071 to finance the production of a feature-length motion picture entitled Looking for an Echo (the Project). Chase then purchased a Contingent Loss of Revenue Insurance Policy (the Policy) from defendant New Hampshire Insurance Company for indemnification of any portion of the loan that was not repaid by the claim date. The "delivery date" of the Project, a condition precedent to making a claim, was originally set in the Interparty Agreement for December 1, 1998 and subsequently extended to March 1, 1999. The "claim date," originally described in the Policy as "twelve months subsequent to the date of delivery of the Project," was extended to January 1, 2000 "provided that delivery of the Project occurs prior to that date." Under the Policy, the coverage period was 15 months following delivery of the Project or March 31, 2000, whichever came later.

Chase brought a timely written claim under the Policy, asserting that delivery, as defined in the Interparty Agreement, was completed by or prior to March 1, 1999. Defendant declined to pay the claim, maintaining that no delivery occurred and that the claim date had expired.

Pursuant to Section 2.1(a) of the Interparty Agreement, "delivery" of the Project was deemed to have occurred upon (and only upon) (1) the delivery of, or at least access to, certain "delivery items" to third-party defendant Arthur Kananack & Associates (AKA), Echo's sales agent; and (2) AKA's transmission of a certificate (the AKA certificate) to Chase verifying that delivery had occurred. In the alternative, Section 2.1(b) of the Interparty Agreement provided that the first commercial exploitation or exhibition of the Project (i.e., a public screening) would be deemed acceptance of delivery by AKA. In its complaint, Chase alleged, inter alia, that the issuance of the AKA certificate on March 1, 1999 confirmed that timely delivery had occurred [*2]pursuant to Section 2.1(a) of the Interparty Agreement and that alternatively, under Section 2.1(b), delivery should have been deemed delivered on November 10, 2000 when the film opened in movie theaters.

The motion court's dismissal of the complaint, determining that delivery had not occurred, was in error. Since the film was screened, in relatively empty movie houses in November 2000, it is obvious that delivery did occur at some point. However, notwithstanding the March 1, 1999 AKA certificate, it is unclear when delivery actually occurred. If we construe the parties' amendments to the Policy and Interparty Agreement to bar any claims made after January 1, 2000, as argued by defendant, the policy coverage period would be rendered meaningless. Mindful that a contract is to be construed so as to give effect to all of
its provisions (Ruttenberg v Davidge Data Sys. Corp., 215 AD2d 191, 196 [1995]), we cannot resolve this apparent factual issue without extrinsic evidence as to the parties' intention in modifying the Interparty Agreement. Without any reference to, for instance, an underwriter's opinion or an affidavit from the drafter of the Interparty Agreement, defendant's explanation of the parties' intention is insufficient to warrant dismissal of the complaint. Under such circumstances, a factual issue is also raised as to whether defendant's obligations were triggered.

The foregoing renders the parties' remaining arguments academic, and we decline to reach them.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 26, 2006

CLERK

 

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