Coverage Pointers - Volume X, No. 23
Dear Coverage Pointers Subscribers:
We hope you had a very enjoyable Mothers Day and that your spring plantings are beginning to take root. It was a powerfully busy couple of weeks, with plenty of interesting decisions in this week's issue. Happy reading. For our new subscribers, remember that you're reading the cover letter of this week's issue. The "real issue" is attached.
Remember, the interactive VOICE of Coverage Pointers in the New York Insurance group in LinkedIn which yours truly has founded and moderates. Come visit us there and participate: http://www.linkedin.com/groups?gid=1777061.
Tree Alert. Tree Alert:
Because of the quantity of appellate decisions over the past two weeks and the verbosity of our courts, this week's issue exceeds 100 pages in length. I'd suggest not printing it, unless you have an unlimited supply of paper and no regard for trees. If you want to read the substantive summaries, print out pages 1-22 only.
Welcome Aboard New Subscribers:
Kathy Fijal and I presented at a NYS Bar Association conference on "additional insured" issue and then Kathy and Audrey did a little training at a claims office this week on No Fault and "cooperation" issues. We welcome about 30 new subscribers who have joined us as a follow-up to those presentations.
This Week's Issue:
One of the great debates raging within the First Department is whether notice given by one liability carrier to another of an accident, claim or lawsuit triggers the receiving carrier's obligation to disclaim promptly. If carrier tenders accident or suit information, does the carrier placed on notice have a duty under the Insurance Law to send out a disclaimer? Read the J.T. Magen case decided Thursday, yesterday, at the top of the issue.
One Hundred Years Ago Today
I know how many of you enjoy my historical offerings; I get more feedback on those, sometimes, than on anything else in the issue. This week, I offer you a special treat - an opportunity to learn about a father, a grandfather and a man who was committed to his profession, his state and his nation, J. Caleb Boggs.
Some of you may not remember, J.C. Boggs (and frankly, I didn't know a great deal about him), but I happened to discover this very interesting and generous man was born 100 years ago today. The US Senator from Delaware for two terms, and a very popular one, he lost his seat to Joe Biden by fewer than 3200 votes, in the 1972 election.
I tracked down his grandson, a Washington D.C. lawyer, J.C. Boggs, a distinguished partner in the firm of Blank Rome LLP, and I asked him to offer some thoughts on his grandfather's legacy. He was delighted to do so and on your behalf, I thank him for offering this remembrance. Raise a glass, if you would, to J. Caleb Boggs today and wish him a happy birthday:
J. Caleb Boggs of Delaware - Gentleman, Lawyer, Public Servant
Authored by J.C. Boggs
J. Caleb Boggs was born in Kent County, Delaware on May 15, 1909 . He earned a degree from the University of Delaware in 1931, and married his high school sweetheart, Elizabeth "Bess" Muir that same year. He then earned a law degree from Georgetown University Law School in 1937, and after being admitted to the bar, practiced law in Dover, Delaware.
During World War II, Cale Boggs served in the army with distinction, fighting with the 6th Armored Division in Normandy, the Rhineland , the Ardennes and central Europe . He earned a number of honors and awards, including five campaign stars, the Legion of Merit, the Croix de Guerre with palm, and the Bronze Star with cluster.
Upon his return from the war, Cale was appointed a judge in the family court of New Castle County, Delaware. He was soon recruited to run for Congress and was elected to the U.S. House of Representatives in 1947, where he served for three terms.
Cale was then elected Governor of Delaware, where he was able to calm troubled waters during periods of great racial strife in Wilmington. By blending the leadership skills he developed in the Army, with the sense of fairness and equity he acquired as a judge, Cale became one of the State's great conciliators. Upon serving two terms as Governor of Delaware, Cale was elected to the U.S. Senate, where he served another two terms.
By all accounts, Cale Boggs was a man of warm humanity and a gentleman who sought ever to set people at ease through his common touch and deep consideration of other people's feelings. You respected him for his intellect, you admired him for his clarity of thinking and his fairness, but you had that sense of warmth, that feeling of 'I like him.' As one of his Senate colleagues remarked, "Cale Boggs was a man whose friendship one easily sought and, once secured, was long treasured."
Cale was known to be a gentleman in all circumstances. He was pleasant, he was positive; he was one who held strong convictions, but did not advance his convictions at the cost of tearing down the opposition or the people who may have disagreed with him. As then-Senator Biden remarked on the Senate floor shortly after his passing: "J. Caleb Boggs set a standard for all of us who serve in public life. Cale was the quintessential gentleman. He set a standard that all of us are trying to repair to; most of us, like me, do not achieve that standard as well as we would like to."
Thanks JC and Happy Birthday Senator Boggs.
Peiper's Perspective on Property and Potpourri
Here are Steve's words:
Greetings. As Spring inches along toward Summer, let us help you break the mundane. Don't forget that we offer training programs on a variety of issues, including homeowners' and business owners' first party claims. We'll even bring the coffee!!
As always, we've got interesting decisions a plenty in this issue. Check out the Court of Appeals' latest attempt to wrestle with the presumption against suicide, and the policy defenses available under a Life Insurance policy. Also of note, the Second Department rules that the act of procuring an insurance policy through a New York broker opens a company to New York 's long arm statute. The First Department upholds the long standing rule that anything that occurs prior to the disclaimer being issued is subject to discovery. Finally, for the potpourri lovers and products liability lovers, check out the Court of Appeals' holding in Passante, which may result in a manufacturer being held liable for the buyer's decision to forgo offered safety devices. A head scratcher for sure, as Judge Smith eloquently points out.
That sums it up for me this week. Best wishes until next issue.
Earl Cantwell writes today about a lawsuit against (egads) lawyers commenced by people other than clients. Oh my.
Today's Highlights and Headlines
- Split Court holds that Notice Given by One Carrier - on behalf its Insureds - to Another Requires Prompt Disclaimer (Barely) Distinguishing Cases that Held that Notice Given by One Carrier - on its Own Behalf) - to Another Carrier Does Not Require Prompt Disclaimer
- Timing is Everything. Policy Canceled Retroactive to Time Earlier in Day, Does Not Provide Coverage for Accident that Occurs Later in the Day
- "Other Insurance" Clauses Applied as Written
- The Insured's Notice was Late - and Unexcused -- and the Injured Parties Did Not Exercise Their Right to Give Notice
- Collision Carrier Liable for Negligent Inspection?
- Read the Policy. You Weren't Uninsured
- Can "Owned Property" Exclusion be Circumvented by Claim that Insured had to Clean Up its' Property to Protect Adjoining Property? Only in Dire Emergency
- Anti-subrogation Rules Precludes Recovery of Half the Proceeds of Settlement
- Non-Owned Coverage is Excess of Owner's Policy
- Framed Issue Hearing in Underinsured Motorist Matter will Resolve Questions of Intentional Conduct, Passenger Status of Claimant and whether Injuries were Resulted from Scuffle
- In Construction Case, a Lack of Proof of Negligence on the Part of Contractor Precludes Summary Judgment on Contractual Indemnification Claim
- In UM Proceeding, Physical Contact Only Required in Hit & Run
- What's in a Name? To be a Named Insured, One Must be Named as a Named Insured.
MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras
- Plaintiff Missed 3 Months of Work Immediately Following the Accident but Fails to Establish Claim Under the 90/180-Day Category
- Where the Plaintiffs are Young, the Defendants' Claim That MRI Findings are Due to Degenerative Changes Requires "Further Elaboration"
- Plaintiff's Deposition Testimony Undermines 90/180-Day Claim
- Physician's Statements to Plaintiff that She sad Reached Maximum Medical Improvement and That Further Treatment Would Be Merely Palliative Adequately Explain Gap in Treatment
- Chiropractor's Submissions Must Be Either Subscribed Before a Notary or in Affidavit Form
- Chiropractor's Submissions Not in Affidavit Form have No Probative Value
- Another Case of Misplaced Reliance
- A Recent Examination Must Support Claims Under the Significant Limitation of Use and/or the Permanent Consequential Limitations of Use Categories
- Range-of-Motion Reports Must Compare the Findings with What is Normal
- The Failure to Meet the Prima Facie Burden Obviates the Need to Consider the Opposing Papers
- Failure of Treating Neurologist to Reconcile Findings in His Own Reports Dooms the Plaintiff's Claim
- An Example of When Not to Waste Your Time and Money
- "Perfunctory" Claims of Unspecified Clerical Inadvertence and Reassignment of Counsel Are Not Good Cause For Delay in Filing Summary Judgment Motion
- Affirmed Quantified Range-of-Motion Findings from Treating Physician Raises Triable Issues of Fact
AUDREY'S ANGLES ON NO-FAULT
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
- The Issue of Suicide is Not an Issue of Law, but Usually an Issue of Fact that Must be Weighed against all of the Factors Presented at Trial
- Subrogation Rights do not Ripen until Payment is made
- Subpoena for an Investigation File was Proper where Carrier could not Establish it was Prepared Solely in Anticipation of Litigation.
- Court finds a Question of Fact over Whether a Machine was Inherently Dangerous Where the Buyer Specifically Rejected Safety Equipment
- Engaging the Assistance of a New York Insurance Broker is Sufficient Contact to Trigger Long Arm Jurisdiction
Thanks to all for the regular and positive feedback.