Coverage Pointers - Volume X, No. 24
Dear Coverage Pointers Subscribers:
Put this One on Your Calendar
FDCC “20/20” Insurance Symposium
The Challenges Facing the Insurance Industry as We Approach the Year 2020”
Registration available at www.thefederation.org
The Federation of Defense and Corporate Counsel is pleased to announce a symposium focused on novel issues that the insurance industry will be facing in the upcoming decade. The conference will take place in New York from September 9-11, 2009.
What will the insurance industry look like in the not-to-distant future? The seminar will touch on some futuristic topics such as:
- Challenges Insurance Claims Departments Will Encounter in the Year 2020
- The Future Regulation of Insurers/Reinsurers
- Dealing With Insurers Who Are Financially at Risk
- One Country Indivisible - The Blurring of State Lines and State Jurisdiction
- The 2020 Courtroom, Leveraging the Technology of Tomorrow
- The Future of Insurance Class Actions
- Extra Contractual/Punitive Damages Claims of the 21st Century: Making the Case to the Jury
- Exposures of the Future including Nano Technology, Micro Insurance, Privacy, Cyber Risk, and Food Safety
- Tomorrows Legal Partnerships: Lawyers and Insurers Facing the Future Together
- Charlie Breitstadt, Director of Government Relations, Nationwide Insurance Companies, 2009 Chair, Guaranty Fund Management Services
- Michael Crowley, President, Specialty Programs Division, Markel Corporation
- Tom Gayner, Chief Investment Officer, Markel Corporation
- Mark Greisiger, CEO, NetDiligence
- Robert Hartwig, Chief Economist, Insurance Information Institute
- Trish Henry, Deputy General Counsel for Government and Industry Affairs, ACE Group Holdings, Inc.
- Gregory Parsons, Ph.D., Chemical & Bimolecular Engineering Department, North Carolina State University
- Kevin Peinkofer, Senior Counsel, Progressive Casualty Insurance Company
- Kelly Ray, Vice President, Legal Strategy, Legal Research Center
- Lisa A. Rickard, President, U.S. Chamber Institute for Legal Reform
- Scott Rickman, Risk Manager, Del Monte Foods
- Paul Stachura, Chief Claims Officer, Fireman’s Fund Insurance Company
- Fran Semaya, Cozen O’Connor, Chair, ABA Task Force on Federal Involvement in Insurance Regulation Modernization
- Pam Woldow, Principal, Altman Weil
- Rick Woollams, President of Property-Casualty Severity Claims and Senior Vice President and Chief Claims Officer, AIG Commercial Insurance Group
Hope your Memorial Day was a peaceful and enjoyable one. We are enjoying the late spring and early summer here in Western New York and Southern Ontario. Audrey is up at the venerable Sagamore speaking before the New York Insurance Association on No Fault claims handling issues (and would love to visit your shop as well). I am spending time in airports. A good deal of our practice in the greater NYC area, so duty calls and I have a special seat in the LaGuardia USAirways Club with my name on it, I think.
I serve as a coverage mediator to help carriers resolve issues of primacy, notice, inclusions, exclusions and the like. Think of it. Problems get resolved for less money, quickly and without the risk of precedent (that might come back to bite on your next case). Contact me if you want to try a different way of resolving simple or complex coverage issues and I can outline how we can assist.
From Steve Peiper, the Prince of Property:
Greetings. A pretty slow couple of weeks in the first party realm. However, procrastinators rejoice, the First Department again shows us that the last day, isn't always the last day, so long as it is a Saturday or Sunday. As we are all too often reminded, just because you have (insert deadline here) to do something, does not mean you have to wait until the last day to do it.
Pointer #2 for this week, the decision in Greenwich Ins. Co. v. Volunteers of America reminds us to read the ENTIRE contract before reaching a decision. Obviously, you'll never know if something was modified unless you actually look at all of the terms.
Okay, enough lecturing for this week. Best wishes until next time.
One Hundred Years Ago:
The nomination of the third woman and the first Hispanic to the United States Supreme Court, is a reflection of the strength and character of not only the nominee but women and minorities in general. Of course, 100 years ago, women’s strength may have been measured and reported slightly differently:
New York Times
May 29, 1909, Page 2, Col 1
WOMEN BEAT SLANDERER.
Drive Him from Town After a Whipping—
His Wife Ill
Special to The New York Times.
Bleeding and begging for mercy, George Englart, an English miner of Manford, two miles north of here, was driven from town last evening by infuriated women. Englart, it is charged, had made remarks reflecting on the character of women in the town. It is believed Englart would have been killed had he not been rescued by citizens, who placed' him aboard a trolley car, with instructions to stay away.
Englart, whose wife is seriously ill, is said to have been warned to stop his alleged slighting remarks. Yesterday the women decided to banish him. As they approached the Englart house, he ran. He was intercepted and beaten. He broke away, and, with his pursuers on his track, started for Meadowlands, two miles away. Two hundred women, it is reported, followed.
Pick handles, clubs, umbrellas, and table legs are said to have been used as weapons. Englart was repeatedly knocked down. Fearing he would be killed the men took a hand. They drove a buggy among the yelling women and succeeded in wresting the victim from his assailants. Englart was put aboard a Cannonsburg trolley car. He is said to have left, the car a short distance out of Meadowlands and disappeared.
Word of the affair did not reach Washington until today, and so far, no arrests have been made.
Englart's friends threaten trouble. The women say they will not allow him to return.
Earl Cantwell offers another look at the Twombley decision and the subtle changes in pleading rules.
Audrey Seeley Brings Greetings:
Greetings from The Sagamore! I was asked to speak at the New York Insurance Association ("NYIA") Annual Meeting on the topic of tips for conducting an effective IME/Peer Review in liability and no-fault cases.
The Courts are pretty quiet but the arbitration tribunal is active. There are some interesting decisions for your review on whether denials of medical expenses based upon an IME or Peer Review will be upheld as they indicate lack of medical necessity. Again, we are seeing that the lack of the words lack of medical necessity results in the denial not being upheld.
One Hundred Years Ago Today (speaking of airports)
The first sale of an airplane to a non-military buyer took place when the G.H. Curtiss Manufacturing Co. delivered its Curtiss No. 1, nicknamed the Golden Flyer, to the New York Aeronautical Society to complete a $5,000 purchase. Glenn Curtiss eventually merged his company with that formed by Wilbur and Orille Wright to create what is the present day Curtiss-Wright Corporation. The Golden Flyer was 33 feet, 6 inches long, had a wingspan of just under 29 meet and could travel at a blazing top spped of 45 mpg powered by a 25 horsepower, four cylinder engine.
This Week’s Issue Includes:
KOHANE’S COVERAGE CORNER
Dan D. Kohane
- 51 Day Delay in Disclaiming is Too Long
- Party Claiming Insured Status has Right to Sue Insurer for Declaratory Relief
- Since Driver was Not Permissive User, No Need for Court to Determine who Insures Him
- Right Idea, Wrong Proof
- Claim Stated Against Broker
MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras
- Failure to Address Prior and Subsequent Accidents Render Causation Speculative \Timely Examination Is Necessary For Claims Under the 90/180-Day Category
- Dot Your “I”s and Cross Your “T”s
- Orthopedist’s Conclusory Statement Will Not Establish Causation
- Arthroscopic Report and Report Quantifying ROM Restrictions of Plaintiff’s Right Shoulder Are Sufficient to Raise an Issue of Fact as Regards Permanent Serious Injury Category
- The Defendant’s Motion Papers Better Address the Plaintiff’s Claim as Stated in the Bill of Particulars, or Else
- The Treating Physician’s Affirmation Can Be Sufficient
- Award of $435,000 for Multiple Tears of the Meniscus Does Not Deviate From What Is Reasonable
- Examinations Three Years Before the Motion for Summary Judgment Are Insufficient to Raise a Triable Issue of Fact
- Plaintiff’s 90/180-Day Claim Requires Contemporaneous Competent Medical Evidence
- Assertion That an Injury Is Insignificant Rather Than Serious Requires Quantified Findings
- Treating Chiropractor’s Affidavit Fails to Acknowledge Two Prior Accidents
- Another Sufficient Treating Physician Affirmation
AUDREY’S ANGLES ON NO-FAULT
- Peer Review That Provides Solid Discussion on Why Condition Pre-Existed Accident Upheld
- Unpersuasive Chiro IME Coupled With Use of Unusual Denial Form and Cryptic Reasoning Leads to Decision in Applicant’s Favor
- IME Report Does Not State Lack of Medical Necessity for Physical Therapy.
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
- No Coverage for Dishonest Acts of Auctioneer
- Acceptance of Premiums AFTER Learning of Fraud, Estops Carrier’s Action for Rescission
- Specific Clause Limiting Indemnity Obligations for Fire Losses Trumps General Indemnity Provision
- Defendant’s Failure to Record Mortgage for Nearly Nine Months is a Breach of the Mortgage Insurance
Keep those nice notes coming in.