Coverage Pointers - Volume X, No. 21
Dear Coverage Pointers Subscribers:
It's a wonderful thing, this publication, because I've made such great friends with its subscribers. Wherever I travel, I run into those who have shared a part of their Friday with me, reading our ramblings. It is interesting, of course, that most talk about some abject silliness that I've included in this cover letter rather than the nitty-gritty nuances of waiver, estoppel and quasi in rem jurisdiction. I'll keep offering both with the hope that you can be both educated and entertained.
Editor's Note: The last time I thought seriously about quasi in rem jurisdiction was in late 1976, when I completed my Civil Procedure exam at the conclusion of my first semester in law school. I vow never to discuss it again in Coverage Pointers.
A Coverage Pointers Pointer - Coverage Pointers Search Engine
I want to take this opportunity to provide a tidbit on searching back issues of CP
I had a delightful lunch on Wednesday with a loyal CP subscriber who mentioned that he printed and saved back issues of this publication in case he wanted to refer back to a case mentioned in a past issue. Like my file of federal and state tax returns dating back to the early '70's, I surely understand how people save things. As an aside, as I jammed the copies of 2008 returns into the fireproof box with the other yellowing returns, I was compelled to recall that my starting salary at H&F as a law clerk in 1977 was $3.00/hour and I was surely overpaid then.
However, you need not do that! I want to save you cabinet space and spare a few trees as well. The Hurwitz & Fine website has a search engine that allows you to search through past issues of this publication and every issue of CP produced over the past 10+ years is available and searchable.
How do you get there? Simple.
- Go to our website: www.hurwitzfine.com and click on the NEWSLETTER tab at the top of the page;
- You'll be taken to a page where our two newsletters are introduced. Under Coverage Pointers, click on Previous Issues;
- The page that opens up is the linked list of all previous Coverage Pointers issues and if you scroll down to the bottom of the page, you'll find the search engine.
- So, for example, if you are interested in cases interpreting the Court of Appeals decision in Pecker Iron Works, you can put the case those three words in the search box and click and you'll find the 12 summaries that mention the decision. You will also be taken to the Google search page for our website that allows more sophisticated Boolean searches.
This issue brings you a good late notice case from the First Department, an interesting "temporary employee" opinion from the Second, and a First Department case discussing the impact of the "settlement statute: (General Obligations Law §15-108) on the right of insurer contribution. We thank Patrick J. Feeley of the New York City law firm of Dorsey & Whitney LLP for this summary. He represented one of the successful parties in that litigation and was kind enough to contribute the decision summary.
Oh, Canada - Canadian Beer and Martinis on the Beach
It's spring in Western New York and Southern Ontario and we've opened up the cottage. We're fortunate enough to have a second home on the north shore of Lake Erie, in the Township of Fort Erie, with 70 feet of pristine beachfront. I grew up in Brooklyn, and when I went to high school, my commute to work, by bus and subway, was 45 minutes in each direction. Now, I travel to my cottage each day, crossing an international border which of course includes clearing customs and my commute to work is about 14 minutes.
If any of you are traveling to this part of the country this summer, let me know. While you'll soon need a passport or equivalent to cross back and forth, we'd love to have you over for a cold one. Of course, we can't fit all 1750 of you at the same time, but we'll do our best.
I still find it surprising that carriers are not opting to mediate coverage disputes with more regularity. There are times when insurers wish to resolve complex insurance coverage disputes without the expense and costs of trial and without the risk of potentially adverse judicial precedent. We have encouraged the mediation and/or arbitration of complex insurance coverage claims and our office can assist insurers and insureds in bringing reasoned resolution to coverage disputes.
We offer mediation and arbitration services. Why spend the money and the time to litigate these questions when resolution by mediation or arbitration can bring closure to hotly contested matters in relatively short order for substantially reduced costs.
I have been counseling, litigating and resolving complex insurance coverage matters for over 25 years. For over 20 years, I've has served as an Adjunct Professor of Insurance Law at the Buffalo Law School and am retained as an expert witness in insurance coverage matters throughout the United States, Canada and in the London market. An experienced mediator, arbitrator and trial attorney can assist carriers in resolving disputes by agreement, avoiding unfortunate precedent and saving tens of thousands of dollars in litigation costs. Contact me for information: [email protected] or 716.849.8942.
One Hundred Years Ago Today:
MRS. STRONG'S WILL STANDS
Even If She Did Buy Her Hats on Third
Avenue, as Contestants Testified
New York Times, April 17, 1909, p 16, col.6
Surrogate Cohalan admitted the will of Mrs. Harriett Fleet Strong to probate yesterday; she was the widow of Edward Strong, who left a large fortune. She was wealthy also in her own right, leaving an estate estimated at about $300,000. Mr. Strong died on Jan. 14, 1904, at the age of. 80 and his widow died on Oct. 17, 1908. They had been married for fifty years when Mr. Strong died.
Mrs. Strong left her property to be divided between her husband's nephew and George R. Branson, whom she described as a "friend of my husband and myself." The will was contested by Mrs. Strong's relatives, who contended that she was of unsound mind when she made it.
Several witnesses examined on behalf of the contestants testified that the fact that Mrs. Strong purchased hats and millinery in a Third Avenue department store, which was evidence that she was insane.
Editor's Note: The beneficiary of Mrs. Strong's will, George R. Branson, worked for a public adjusting company and was the person in charge of representing the insurance companies who paid off the property damage claim in the famous Triangle Shirtwaist Fire of 1911. I knew you may have suspected that.
The Duke of Lead Returns
After a short hiatus, Scott Duquin returns, with the assistance of Steve Peiper, in presenting a short piece on insurance coverage triggers.
From Audrey Seeley, Queen of No Fault:
Here is this week's cover note from Audrey Seeley (and the Editor's response, which follows):
The DRI Insurance Coverage and Claims Institute was a success, and for those who are looking for another great seminar, DRI has a Bad Faith Seminar this June. If you would like more information feel free to send me an email at [email protected].
The discussion still remains open on LMK. The recent discussion was regarding attorney's fees and whether an attorney's fee is based upon the aggregate of the bills, per provider or EIP, per action (lawsuit or arbitration) or upon the aggregate of the bills, per provider or EIP, irrespective of the number of actions. If you have any thoughts on it again feel free to send me an email. Building on that issue is whether a court will grant a consolidation motion for multiple suits from the same provider or will merely join the actions for trial. In the event that the fee is based upon each action and the cases are consolidated then only one fee may be provided. Pursuant to CPLR 8104 costs awarded on consolidated actions is as if only one action existed, unless the court ordered otherwise. Yet, if the cases are merely joined then they are still separate actions and separate fees can be awarded. It will be interesting to see what the courts do with this issue and we will be sure to keep you updated.
Audrey did a fabulous job at the Chicago DRI program, just thought I'd mention it.
On the issue of attorneys' fees in No Fault matters, here's my two cents, based on nothing but a feeling based on the Court of Appeals' reasoning
Your editor believes that reason will prevail. Fees (I predict, with all the scientific certainty at my fingertips) will be based on the aggregate of the bills, no matter how many providers and irrespective of the number of actions or causes of action, pending at the time of fee determination. So, if you have 10 providers and 24 bills and six lawsuits and 24 causes of action total, the fee would be based on the aggregate. [Audrey predicts that it will be on the number of suits but we both believe that the Superintendent of Insurance may yet step with additional guidance]. Of course, if new bills come later because of subsequent treatment, etc., another fee might be calculated.
From Steve "Property and Potpourri" Peiper:
Spring, it appears, has finally sprung. Not much else to say this week, as the courts have been quiet in the first-party arena. We do have an interesting decision out of the Third Department on workers' compensation coverage and the role of safety group administrators. Other than that, I would invite everyone to review Scott Duquin's latest offering. He, with a little help from friends, takes a look at some of the more interesting coverage issues in a lead paint case. Lastly, as we mentioned a few weeks ago, we are continuing our review of green energy issues. Coming next issue we will address what green energy law is, what it affects, and most importantly why you should care. Cheers!
A Century Ago
OLYMPIC, 1,000-FOOT LINER
White Star Line Selects Name for Its Leviathan - May Build Sister Ship
New York Times, April 17, 1909, Page 1
The new 1,000 foot steamship the construction of which is to be commenced later in the year for the White Star Line will be named the Olympic. The present intention is to give it a speed of 20 knots. Harland and Wolf of Belfast will build it, and it will be designed exclusively to suit the requirements of the Southampton - New York trade.
It is possible that the White Star Company will decide to order two boats of this class, instead of one.
Editor's Note: In fact, there were two other boats of that class built by White Star. Launched on 20th October 1910 Olympic was the first of the trio of White Star Liners. Under the command of Captain E.J. Smith (who was later to command one of two sister ship, The Titanic) she sailed on June 14, 1911 on her Maiden voyage to New York.
Are you considering or handling lawsuits against professionals? Earl Cantwell's column discusses the statute of limitations in such claims in his article: For Whom the Statute Tolls: Limits of "Continuous Representation"
In this Week's Issue, Attached:
KOHANE'S COVERAGE CORNER
Dan D. Kohane
- As SUM Claimant did not Exercise Due Diligence in Identifying Insured Status of Other Vehicle, Notice Given 10 Months After Accident Deemed Untimely
- Lateness (73 Days) is Fatal to Disclaimer with Proof of Necessary and Diligent Investigation
- Without Special Relationship, Insurance Agency Not Liable to its Customer for Providing Coverage Requested, when Policy Did Not Cover Risk
- Lack of "Garage Operations: Determined by Insured's Default
- Under Doctrine of "Estoppel," Insurer that Assumes the Defense without Advising that it May Not Have Obligation, Loses Right to Change its Mind Two Years Later
- Section 15-108 Does Not Bar Co-Insurer Contribution Claims
- Ignorance of the Law is an Excuse for Not Submitting to Second SUM IME
- Qualification Established for UM Benefits from MVAIC
- When Property Owner Knows that Infant Claimant has Sustained Burns and Went to Hospital, No Excuse for Not Giving Prompt Notice to Liability Carrier
- The Age-Old Battle Over the Definition of "Temporary Employee" in CGL Policy; In this One, Court Decides that Term "Furnished" is Ambiguous and Includes Person Recommended by Another Employee
- Injured Party Not Charged with Insured's Failure to Timely Notify Insurer of Accident; Injured Party's Diligence Independently Determined
MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras
- Contemporaneous Examination Is Needed To Support Inference Of Causation
- Failure to Establish Causation also Precludes Recovery Under the 90/180-Day Category Alleged in the Second Of Three Accidents
- The Plaintiff's Physicians' Failure to Reconcile their Findings Results in Dismissal of Plaintiff's Complaint
- The Plaintiff Fails to Offer any Contemporaneous or Recent Objective Medical Evidence; Trial Court is Reversed, on the Law
- Minor Limitations in ROM Do Not Amount to Significant or Permanent Limitations
- Doctor's Advise to "Restrict Activities" Is Too General To Support A 90/180-Day Claim
- A "Tailored" Affidavit which Differs from Plaintiff's Deposition Testimony Will Not Defeat Summary Judgment
- A Recent Affirmed Report has No Probative Value if Based on Contemporaneous Unaffirmed Reports
- Portions of an Affirmed Report Based on Unaffirmed Findings is Not Considered
- Once Again, Affirmations Relying On Unsworn Reports Are Out
- Affirmation Must be by a Currently Licensed Doctor
- Physician's Failure to Review Medical Records from a Prior Accident Makes Conclusion that Injuries are Caused Solely by Subject Accident Speculative
- Master Arbitration Award Upheld - Lower Arbitrator Committed Err in Finding Fraud Defense Valid
- Follow-Up Verification Request Premature Rendering Denial Untimely
- Plaintiff's Summary Judgment Motion Denied as Insurer Established Lack of Medical Necessity
- Failure to Submit Proper Affidavit on Mailing Deems Denial Late
- Plaintiff Failed to Submit Proper Affidavit to Establish Prima Facie Case Insurer Could Not Establish Tolling of 30 Days to Pay or Deny to Survive Summary Judgment
Steven E. Peiper
- Despite its Many Attempts, Insured Cannot Excuse its Failure to Read and Understand its Own Policy
That's all the news that fits this week. Rejoice in the warmth and rebirth of springtime, as we are, here in the colder part of the country. Call us if you need us, we're here to help. And if we can't help you, perhaps we can, at least, entertain you.