Dear Coverage Pointers Subscribers:


Atta Lawyer - Special Kudos to Audrey Seeley

Special congratulations to the Queen of No Fault, Audrey Seeley, who was awarded the prestigious Sheldon Hurwitz Young Lawyer's Award by the Torts, Insurance & Compensation Law Section of the New York State Bar Association at the Bar's Annual Meeting in New York City last week.  Audrey was honored for her outstanding contributions to the field of Insurance Law.  Named after our co-founder, Shelly Hurwitz, this award is presented to a lawyer admitted 10 years or less who has made a significant contribution to the industry.


Audrey has served as a state-wide consultant on No Fault issues for a number of insurers, has lectured at local, state and national programs on a variety of insurance issues and is just a delight to be around.  We're really proud of her and know that Shelly is smiling from his vantage point up above.


Health Insurance Subrogation Changes -- Counseling Points

In our November 28th edition, we discussed the significant changes enacted with respect to health insurance carrier subrogation, by the adoption of General Obligations Law § 5-335. Since we have had so many questions about the changes, we remind you of their importance:

The new law has an immediate effect on pending litigation since it prohibits a plaintiff who has settled with one or more defendants from being charged with violating a health insurer's alleged equitable or contractual subrogation rights.  The New York State Trial Lawyers Association, representing the plaintiffs' bar, pressed hard for these amendments.  According to the sponsors, the new law seeks to prevent health insurers from complicating cases and delaying settlements, and conclusively "presumes" that the settlement does not include compensation for medical expenses (except those subject to statutory liens or are Additional Personal Injury Protection under NY No Fault. 

The new law essentially detracts from and overrules two Court of Appeals decisions, Teichman v. Community Hosp. of Western Suffolk, 87 N.Y.2d 514 (1996), and Fasso v. Doerr, 12 N.Y.3d 80 (2009), to the extent they recognized health coverage subrogation.  The relevant section of the new statute reads, with emphasis added by bold letters and underscores:

§ 5-335. Limitation of non-statutory reimbursement and subrogation claims in personal injury and wrongful death actions. (a) When a plaintiff settles with one or more defendants in an action for personal injuries, medical, dental, or podiatric malpractice, or wrongful death, it shall be conclusively presumed that the settlement does not include any compensation for the cost of health care services, loss of earnings or other economic loss to the extent those losses or expenses have been or are obligated to be paid or reimbursed by a benefit provider, except for those payments as to which there is a statutory right of reimbursement.  By entering into any such settlement, a plaintiff shall not be deemed to have taken an action in derogation of any nonstatutory right of any benefit provider that paid or is obligated to pay those losses or expenses; nor shall a plaintiff's entry into such settlement constitute a violation of any contract between the plaintiff and such benefit provider.  Except where there is a statutory right of reimbursement, no party entering into such a settlement shall be subject to a subrogation claim or claim for reimbursement by a benefit provider and a benefit provider shall have no lien or right of subrogation or reimbursement against any such settling party, with respect to those losses or expenses that have been or are obligated to be paid or reimbursed by said benefit provider.

Now, the new statute does not allow double recovery of these expenses.  If the jury awards medical expenses and they have been covered by health insurance, the court will reduce the award based on that collateral source.  This does not impact Workers Compensation or Social Services liens, which are statutory and there is another section of the bill that preserves APIP subrogation.

The new law seeks to remedy the proliferation of health insurers attempting to intervene in cases to assert equitable or contractual subrogation claims.  Further, the health insurance carrier was also able to recover medical expenses through subrogation rights even though the plaintiff was unable to recover under CPLR § 4545(c) due to the collateral source rule.  The new legislation ends insurance subrogation rights to settlements unless there is a statutory right to reimbursement

Does the Statute Only Apply to Settlements of Lawsuits Commenced or Does it Apply to Settlements Prior to Suit?

With a tip of the hat to Joel Appelbaum and Wayne Richardson from Progressive for raising the issue...

The underscored terms of the new statute, which include the words "action" and "plaintiff" seem to limit the applicability of the law only to settlements of a lawsuit where the person settling is a plaintiff.  Why is that important?  If the courts view this statute narrowly and apply it only to its terms, a settlement of a claim prior to the commencement of a lawsuit would not give the settling parties protection from future subrogation claims by benefit providers.

Now that's darn silly, but that is a reasonable reading of the language of the statute..

What's the remedy?  The Legislature should step in and amend the law and make it clear that it is intended to apply to matters settled before a lawsuit is commenced.

"Better Safe than Sorry" Counseling Point:  Until such time as the Legislature steps in and amends the statute or the courts rule that the intention of the statute was for it to apply to matter settled prior to suit, a plaintiff, defendant or insurer that is trying to assure that the settlement of a claim terminates any future subrogation claims under the law should insist that a Summons with Notice is filed in the Clerk's office, officially commencing a lawsuit prior to the settlement.  Once a lawsuit is commenced, the claimant becomes a plaintiff and the statute appears to be triggered.  Call with any questions.

Audrey Seeley's Greetings:

2010 is shaping up to be an auspicious year. 


I was honored and privileged to be awarded the Sheldon Hurwitz Award by the Torts, Insurance and Compensation Section of the New York State Bar Association last week in New York City.  This award is given to a "young lawyer" in recognition of her outstanding contribution to the practice of law in insurance.  This award is named after a founder of Hurwitz & Fine, PC, Shelly Hurwitz, who had such a zeal for the practice of law, and in particular insurance coverage, as well as firmly believing in giving back to the community.  My partner and one of my mentors, Dan Kohane, was its first recipient in 1983.  There is no question that he embodies the aforementioned principles and over the years he has instilled them in me.  It is an honor to be recognized as yet another generation at Hurwitz & Fine that has the same principles Shelly lived by.


In this edition of Coverage Pointers we bring you a number of cases wherein the Appellate Term is taking a careful look at summary judgment motions to ascertain if either party has met its burden.  It is noteworthy that there are many decisions in which the insurer's motion has been granted on appeal as the plaintiff has not sufficiently rebutted the lack of medical necessity.


Please don't forget the DRI Insurance Coverage and Claims Institute in Chicago this April.  It is a great program and for those who focus on professional liability there is an entire half day track devoted solely to professional liability insurance topics.  If you would like the brochure or have any questions please email me at [email protected]


 One Hundred Years Ago Today (and Why Your Editor is $3.00 Poorer):


New York Times

February 5, 1910



Justice Goff Dumfounds Defense by Granting a Perfunctory Motion for a New Trial




Prisoner Had Fared Well, One Stubborn Juror Alone Having Saved Him from the Extreme Penalty


Supreme Court Justice Goff made everybody about the Criminal Court Building gasp yesterday by setting aside the verdict in a murder trial in a manner new to present generation to lawyers to court. In the words of one of the denizens of the corridors, "it was generally felt that the Recorder had put one over on the criminal bar."


After more than seventeen hours' deliberation, the jury announced, shortly before noon yesterday, that it had found Edward F. McGrath, alias Frank Webster, alias Frank Ryan, guilty of murder in the second degree.  From the very first ballot it is understood that eleven jurors stood out for murder in the first degree, but the twelfth man was stubborn, and in the end he triumphed.


Straightaway, as is the custom in such cases, Robert H. Hibbard, counsel for the defense, was on his feet, mumbling perfunctorily the motion for a new trial on the ground that the verdict was against the weight of the evidence.


"Has the District Attorney any objection?" asked Justice Goff, quietly but it seemed as though Frank Moss caught a gleam in the judicial eye. 


"None," he answered for the prosecution.


"The motion is granted."


It was all done in a flash, and it was not a friendly glance which the defendant shot at his gasping counsel.  Mr. Hibbard was for the withdrawal of his motion but he was patiently assured that a granted motion cannot be withdrawn.


"Then I take exception to your Honor's ruling," he said.


"You cannot take exception to the granting of your own motion, said Justice Goff. "The verdict is set aside and the man will have a new trial forthwith."


Five days later, the second trial against Mr. McGrath commenced, and this time he was found guilty of murder in the first degree and sentenced to death in the electric chair for the murder of one Benjamin Rose.  Not happy, Mr. McGrath appealed and the following year, the Court of Appeals reversed the second conviction and reinstated the first verdict, sentencing McGrath to 20 years in Sing Sing. See, People v. McGrath, 202 NY 445 (1911).


Editor's Note: Edward McGrath was paroled 16 years later, and in 1934, he wrote a book of his experiences, which your editor acquired for $3.00 on Amazon, entitled "I Was Condemned to the Chair."  [Your editor would be happy to sell it for $2.00 to anyone who wants it]. It was not Pulitzer Prize material. It begins:


Chapter I

I was to die?


I was to burn!  Eighteen hundred volts of electricity would pass through my body.  It was to strain against the straps that bound it to the chair. Sparks and flame would play about the metal crown on my head.  Suddenly muscles would relax and I would slump forward - dead!


Yes, Chris.  Today is a Holiday:


Chris Potenza accosted me in the hall.  "Now that the ground hog has seen his shadow and Valentine's Day is not for another week or so, you have no holidays to report on in Coverage Pointers.


Wrongo, my friend.  February 5 is National Weatherperson's Day, commemorating the birth of John Jeffries in 1744. Jeffries, one of America's first weather observers, began taking daily weather observations in Boston in 1774 and he took the first balloon observation in 1784. One website tell us that this is an appropriate time to recognize the men and women who collectively provide Americans with the best weather, water and climate forecasts and warning services of any nation.


I mean think of it - weather forecasting is one of the very few professions where one can predict in error time and time again, yet continue to thrive in business.  Well, other than insurance claims professionals and attorneys, I mean.


Valentine's Day (anon):


I received a special request, late today, to reprise my February 8, 2008 historical overview of Valentine's Day and I am delighted to do so:


How do you celebrate Valentine's Day?  Do you do it the modern way and send cards, candy, flowers and gifts?  I would hope not. I thought a little history of the holiday would help you recreate a more traditional approach, steeped in history.


During the third century in Rome, Emperor Claudius II who was only emperor for two short years, by the way (August 268 to January 270) was preparing to fight the Goths.  [Editor's note:  who wouldn't fight the Goths, given the opportunity?]  Anyway, he decided that single men would be better soldiers than married ones so he outlawed marriage for young men.  However, one young priest, Valentine, believing that the Emperor's decree was unjust, continued to perform weddings.  Rumor had it that he had a financial interest in a chapel and later moved to Vegas.   Claudius learned of Valentine's defiance, and had him imprisoned.  While in jail, he fell in love with the jailer's daughter and it is said that before his death, he wrote her a love letter, which he signed "From your Valentine." 


Valentine's feast day was set to commemorate his death in February 270, and that was also used to make it into a Christian holiday, the pagan Lupercalia Festival, which also celebrated the beginning of spring.  That Festival involved the sacrifice of a goat for fertility and a dog for purification.  The goat hide would be sliced into strips, dipped in sacrificial blood, and taken to the streets by young men who would slap women with the strips, apparently making the women more fertile.  Pope Gelasius, seeking to end the pagan holiday but continue the tradition, declared February 14 as St. Valentine's Day around 496 A.D.  So there you go.  Forget the card, forget the candy, and forget the flowers.  Chase your sweetheart around the room and slap him or her with dried goat strips dipped in blood, and you'll be celebrating the holiday the right way.


Just don't tell the PETA people.


In this Week's Issue, Attached:



Dan D. Kohane

[email protected]

  • Town Enjoys Additional Insured Status Under Two Policies.  Until Final Inspections, Operations Considered Ongoing (Under One Policy).  Issuance of Certificates of Insurance Not Critical to Coverage (Under Other Policy)


Margo M. Lagueras

[email protected]

  • Proof of No Serious Injury Meets Burden Under All Categories
  • 90/180-Day Claim Survives
  • Deposition Testimony May Cure Defects in Expert's Report
  • Once Again, Claims in Bill of Particular Must Be Specifically Addressed
  • Permanent Consequential and Significant Limitation of Use Categories Require Findings Contemporaneous with Accident
  • Injury That Affects Ability to Roller or Ice Skate Does Not "Substantially" Impact All Activities of Daily Living
  • Treating Physician Fails to Address Findings by Defendant's Radiologist Rendering His Conclusion Regarding Causation Speculative
  • Defendants Fail to Address 90/180-Day Claim Set Forth in Bill of Particulars
  • Report That Fails to Quantify or Qualify ROM Limitations Fails to Show Limitations Are Insignificant
  • Report That Fails to Compare Limitations with Norm Does Not Support That Limitations Are Mild or Minor
  • Doctor's Medical Submissions Must Be Affirmed
  • Findings That Accident Exacerbated Preexisting Conditions Are Speculative Where Prior Accident Is Not Addressed
  • Affirmation Tailored to Meet Statutory Requirements and Which Relies Solely on Subjective Complaints Is Insufficient
  • Untimely Motion Brought on "Nearly Identical" Grounds as Timely Motion May Properly Be Considered


Audrey Seeley

[email protected]


  • Improper Information Provided to EIP Is Reasonable Justification for Not Appearing for IME
  • Failure to Causally Relate or Even Mention MVA to Support Chiropractic Care for Some 10 Years Fatal to Claim



  • Failure to Have Affiant's Signature on Affidavit Fatal to Summary Judgment Motion
  • Plaintiff's Failure to Rebut Independent Physician's Conclusions Insufficient to Raise Issue of Fact
  • Insurer Not Precluded From Arguing Lack of Coverage Because Denial Not Issued Timely
  • Court Searched Record and Granted Insurer SJ as Bill Paid at Correct Fee
  • Insurer's Partial SJ Motion Should Have Been Granted for Plaintiff's Failure to Rebut
  • Insurer's Affidavit and Peer Review Create Issue of Fact Precluding Summary Judgment
  • Plaintiff's Action Premature Due to Outstanding Verification
  • Plaintiff's Affidavit Insufficient to Establish Prima Facie Case 


Steven E. Peiper

[email protected]

  • Statements of Physician in Confidential Medical Report Cannot Give Rise to Claim for Defamation
  • Single Family Home Exception in Labor Law Protects Defendant Homeowner
  • Plaintiff's Motion Under Labor Law § 240(1) Is Denied Where Plaintiff Could Not Establish That His Injuries Were Proximately Caused by Defendants' Failure to Provide Adequate Protection 


Katherine A. Fijal

[email protected]

  • When Is A Policy Definition An Exclusion?


Earl K. Cantwell

[email protected]

  • Limitation of Liability Clause Sends Plaintiff's Case Down The Drain

Well, I won't see you until after Valentine's Day, so if you're sending chocolate, I prefer the nice dark ones.  In case you were wondering.


All the best.


Hurwitz & Fine, P.C. is a full-service law firm
providing legal services throughout the State of New York
Dan D. Kohane
[email protected]
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras

Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper

Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

Jody E. Briandi, Team Leader
[email protected]
 Scott M. Duquin

Index to Special Columns
Kohane’s Coverage Corner
Margo’s Musings on “Serious Injury”
 Audrey’s Angles on No Fault
Peiper on Property and Potpourri
Fijal’s Federal Focus
Earl’s Pearls
Across Borders

Dan D. Kohane

[email protected]

1/28/10           Town of Fort Ann v. Liberty Mutual Insurance Company
Appellate Division, Third Department
Town Enjoys Additional Insured Status Under Two Policies.  Until Final Inspections, Operations Considered Ongoing (Under One Policy); Issuance of Certificates of Insurance Not Critical to Coverage (Under Other Policy)
The Hadlock Dam failed on July 2, 2005.  Owned by the Town of Fort Ann (“Town”) it had been rebuilt in 2004 and 2005 by Kubricky. In addition to the construction contract with Kubricky, the Town contracted with Heynan for engineering services. When the dam failed, lawsuits ensued.  The Town was insured by NYMIR and the Town and NYMIR sought defense and indemnity from Kubricky’s insurer, Liberty and Heynan’s insurer, Steadfast. The Town claimed additional insured (AI) status under both polices but both carriers denied.
Kubricky's policy with Liberty Mutual extended additional insured status to an entity while ongoing operations were taking place. Work may be considered as ongoing during a short lapse of time necessary to conduct tests designed to assure proper performance where such testing is an essential element of the work by the insured (see Perez v New York City Hous. Auth., 302 AD2d 222, 222 [2003]; cf. 9A Couch on Insurance 3d § 129:24). While major construction by Kubricky had ended one to two months before the dam's failure, inspection of the project by the engineer, which was required before Kubricky's work was considered completed under the contract, had not yet occurred. The inspection was a major part of the process so operations had not yet come to an end.  Liberty was compelled to defend.
With regard to Steadfast, the policy provided that a client of Heynan would be an additional insured when "required by written contract executed and effective before the performance of 'your work' or 'covered operations.'" The written contract between Heynan and the Town was executed before Heynan's work on the project commenced.  Steadfast argued that the contract required that “certificates of insurance will be furnished upon request naming the Town of Fort Ann . . . as additional insured" and since the Town never requested the Certificate, coverage was not afforded. The Court disagreed with Steadfast.  Issuing certificates was not a condition to coverage.  The parties contemplated coverage if required by written contract, irrespective of the certificates being requested or issued.

Margo M. Lagueras

[email protected]

2/4/10             Howard v. Espinosa
Appellate Division, Third Department
Proof of No Serious Injury Meets Burden Under All Categories
The then 76-year old plaintiff was rear-ended in 2005.  The Court noted that it was beyond dispute that he had a significant medical history, including a prior accident in which he sustained back and neck injuries.  Among the defendants’ submissions was the plaintiff’s 2004 application for Veteran’s Administration disability benefits in which his wife stated that he was unable to walk more than 100 feet without pain and that this restricted his daily activities.  In addition, the defendants’ examining physician stated that the plaintiff’s 2005 post-accident MRI and a 2002 MRI were essentially the same and that the slight difference between the two was the “natural progression” of the plaintiff’s long-standing spondylosis.