Dear Coverage Pointers Subscribers:

Mark on Your Calendars: 

DRI 2010 Insurance Coverage and Practice Symposium

November 18 -  19, 2010

Sheraton New York Hotel & Towers

New York City

I bring you greetings from Chicago and the DRI Insurance Coverage and Claims Symposium.  We just finished a lovely dinner with old and new friends at RL, the Ralph Lauren Restaurant and it's time to send out our bi-weekly missive.

It was a fairly quiet week in the coverage world, but considering that this issue is being put to bed at a rather late hour, we are not complaining.  Later in this letter, I include a review of a recent NY municipal liability case by our friend and partner, Paul Suozzi.

Flash (to our friends in the Boston Area):

Buffalo 2, Boston 1.  Enough said.

From Audrey Seeley, the Queen of No Fault:

Welcome from DRI's Insurance Coverage and Claims Institute from Chicago!  Thus far the conference has been great and the weather has been amazing - in the low 80s on Thursday.

The issue in this edition is yet again whether the IME or peer review report which indicates an endpoint in achieving improvement is sufficient under Hobby v. CNA.  This edition there is a well reasoned arbitration decision explaining how one insurer did successfully make the argument that chiropractic care had reached an endpoint and was only palliative and not curative.  It appeared to be extremely persuasive that the chiropractor explained why, in his opinion, the care is only palliative and why the eligible injured person would not receive any further benefit.  Further, the treating chiropractor failed to provide any narrative report for the patient or even rebut the expert chiropractor's opinion.

We will be sure to keep our eyes peeled for more decisions on this emerging and seemingly upstate issue.  If you have any questions or wish to discuss the topic further please feel free to send me an email at [email protected]

Audrey

Important Decision on Municipal Liability

Paul Suozzi heads our Municipal Liability Team as well as our most dedicated golfer has a robust practice representing police agencies, counties, cities, towns, villages and school districts in any number of litigated matters.  Paul wanted to bring to your attention an important Court of Appeals decision that impacts any of you who may handle school district cases:

 

Trupia v. Lake George Central School District,

New York Court of Appeals

April 6, 2010

Paul J. Suozzi

[email protected]

 

The Court of Appeals, in an opinion by Chief Judge Lippman, significantly restricted the assumption of risk doctrine in a case involving a 12-year old, who slid down a banister at school and suffered serious injuries.  Plaintiffs alleged negligent supervision.  The school district argued that the student consented in advance to the risk of falling while sliding down the banister, which had happened to him before.  The Court resolved a conflict in the Appellate Divisions, holding that assumption of risk should be limited to athletic and recreational activities. 

The decision reviews the 1975 legislative abolition of contributory negligence in favor of comparative negligence and the survival of assumption of risk as a bar to recovery where, "by freely assuming a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk."  The Court finds that the doctrine acts like contributory negligence, "culpable conduct on the part of the defendant causally related to a plaintiff's harm is rendered non-actionable by reason of culpable conduct on the plaintiff's part."

Ultimately the Court limits assumption of risk to athletic and recreative activities which "possess enormous social value, even while they involve significantly heightened risk."  The Court reasons that horseplay of the kind involved in the case is not worthy of the protection of assumption of risk, particularly where there is a duty to supervise children who may be expected to act "impulsively or without good judgment."  The Court notes that the child's culpable conduct may still be assessed under comparative negligence rules.

The concurring opinion of Judge Smith chides the majority for raising questions it does not answer, such as: "What exactly is 'athletic or recreative' activity?" and Why doesn't sliding down a banister, presumably done for the actor's amusement, have the same "social value" as sliding down a ski slope or a bobsled run?  As with many cases, this one may create as many questions as it answers.  

From Steve Peiper, the Purveyor of Property and the Potentate of Potpourri:

It has been said that Coverage Pointers always seems to fall on a holiday. As you'll recall, within the last six months we've had issues on Thanksgiving and Christmas.  Today, yet again, is no exception.  No, I am not talking about tax day.  Today, for all of you with any interest, is the Buffalo Sabres opening playoff game.  Yet here I am, during the first intermission no less, finishing my section.  My dedication knows no bounds. 

No cases of interest this week, but please take a look our Legislative Update.  As you'll see, the New York State Legislature has finally closed a loop hole in the Appraisal provision as found within the Standard Fire Policy. It may have taken eight years to address the problem as noted by the Fourth Department in 2002, but hey, we wouldn't want to rush into anything.

That's it for this week.  Well that and the second period is starting.  Best wishes, see you in two weeks.

Steve

[email protected]

One Hundred Years Ago Today, Workers Compensation Debuts in the Steel Industry:

Syracuse Post Standard

April 16, 1910

Page 1

SETS ASIDE MILLIONS

TO TEST RELIEF PLAN

Steel Corporation to Aid Employees Injured While at Work

and Families of Men Killed - Pension Scheme

Being Considered

NEW YORK, April 15.-Following an announcement yesterday of an increase in pay for employees of the United States Steel Corporation and its subsidiaries, estimated at $9,000,000 annually, Elbert H. Gary, chairman of the Executive Committee, made public this, afternoon details of a plan for  the relief of employees injured at work and the families of men killed.

The plan will be put into operation in May for a year's test and, if successful, the company hopes to continue it with such modifications as experience may suggest.  The cost will be several millions a year and employees do not contribute.  For temporary disablement, single men will receive .35 percent of their wages and married men, .50 percent with an additional .5 percent for each of their children under 16 and 2 percent for each year of services above five years.

For permanent injuries lump payments are provided, based, upon the extent to which the injury interferes with employment and the- annual earning capacity of the victim.  Where employees are killed, their families will receive a sum equal to his wages for a year and a half, with an additional 10 percent for each year of service above five years.  In cases of injury a period of ten days must elapse before relief begins.

Announcement is also made that a plan for pensioning disabled or superannuated employees is under consideration and is expected that this will soon be put in to practical effect.

Editor's Note:  Remember that there was no workers compensation legislation in place at the time, so this proposal was surely radical.

It was not until 1910, that the New York State Legislature adopted a scheme of workers compensation, joining a national trend that followed Teddy's Roosevelt's proposal and adoption of the federal legislation protecting government workers from injury (Federal Employer's Liability Act -- FELA) two years earlier. 

On March 24, 1911, the Court of Appeals struck down that New York statute as unconstitutional, holding:

We conclude, therefore, that in its basic and vital features the right given to the employee by this statute, does not preserve to the employer the "due process" of law guaranteed by the Constitutions, for it authorizes the taking of the employer's property without his consent and without his fault. So far as the statute merely creates a new remedy in addition to those which existed before it is not invalid. The state has complete control over the remedies which it offers to suitors in its courts even to the point of making them applicable to rights or equities already in existence.

Ives v. South B. R. Co., 201 N.Y. 271, 298 (N.Y. 1911)

As fate would have it, on March 25, 1911, the day after the Court of Appeals decision, the Triangle Shirt Waist Factory Company Fire in New York, one of the largest industrial disasters in New York history, took the lives of 146 women, mostly between 13 - 23 years old.  The horrible working conditions that led to that disaster became the impetus for major employee safety and workers compensation legislation which was soon thereafter adopted.

This Week's Issue Includes:

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • "Designated Premises" Endorsement Means What It Says

MARGO'S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras

[email protected]

  • One Threshold Injury Is Sufficient to Raise Triable Issue of Fact
  • Plaintiff Fails to Submit Any Medical Evidence For 180-Day Period Following Accident
  • Portions of Affidavit Reciting Unsworn Findings of Other Doctors Is Disregarded
  • Conclusion that Restriction Is "Self-Limited" Must Be Explained
  • Affirmed Contemporaneous Report Is Insufficient Where It Fails to Set Forth Objective Tests Performed
  • Plaintiff Fails to Raise Triable Issues Where Submissions Do Not Address MRI Findings
  • Submissions, Based on Subjective Representation, Although Admissible, Are Speculative

AUDREY'S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

  • IME Report Sufficient to Demonstrate Care Not Medically Necessary as Palliative and Not Curative
  • Summary Judgment Denied to All - Review of Burden Shifting in Summary Judgment Motions
  • Plaintiff's Summary Judgment Motion Denied Based on Insufficient Affidavit
  • Plaintiff Failed to Rebut Presumption Resulting in Granting of Insurer's Motion
  • Insurer's Summary Judgment Motion Granted Due to Failure to Rebut Expert Opinion

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

  • Legislature Cures an Oddity With the Appraisal Provision of a Fire Policy 

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

  • When Is the Contractual Limitations Period in an Insurance Policy Triggered?
  • Application of the Business Pursuits Exclusion in a Homeowners' Policy

JEN'S GEMS
Jennifer A. Ehman
[email protected]

  • No Coverage for Genetic Counselor under Physician's Malpractice Policy
  • Notice Required at Two Separate Junctures, Occurrence and Suit
  • Dismissal of Subrogation Claim Brought by Insurer Where Other Party Had No Notice of Water Leak 

LIENING TOWER OF PERLEY

Michael F. Perley

[email protected]


Help Yourself - the Courts Can't
  

EARL'S PEARLS
Earl K. Cantwell

[email protected]

A Lemon Provides a Gem of a Decision on Damages

All for now.  Summer officially starts tomorrow.

Dan

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

NEWSLETTER EDITOR
Dan D. Kohane

[email protected]


INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]
Michael F. Perley
Katherine A. Fijal
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras
Jennifer A. Ehman


FIRE, FIRST-PARTY AND SUBROGATION TEAM
Andrea Schillaci, Team Leader
[email protected]
Jody E. Briandi
Steven E. Peiper


NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]
Tasha Dandridge-Richburg
Margo M. Lagueras

Jennifer A. Ehman

APPELLATE TEAM
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
Jen’s Gems
Liening Tower of Perley
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]

4/6/10 Richner Communications, Inc. v. Tower Insurance Co. of NY
Appellate Division, Second Department
“Designated Premises” Endorsement Means What It Says
Frank was injured in a premises located in Nassau County.  He sued Richner and others and Richner sought coverage from Tower. Tower disclaimed, asserting that the premises were not covered under the policy. A declaratory judgment action ensued.
The policy had a “Designated Premises” endorsement limiting coverage to locations that did not include the one on which Frank was injured.
The insured argued that the Designated Premises endorsement was in conflict with the general grant of coverage that stated  that the insurance applies to bodily injury "caused by an occurrence … that takes place in the coverage territory'."
Giving every policy term meaning clearly removes this accident from the policy coverage.
Editor’s Note:  Attaboy, Max.

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEWYORK NO FAULT
Margo M. Lagueras

[email protected]

4/6/10             Linton v. Nawaz
Court of Appeals
One Threshold Injury Is Sufficient to Raise Triable Issue of Fact

The Court of Appeals answers the certified question from the First Department in the affirmative.  Linton was struck by a taxi producing numerous alleged injuries.  He claimed, under the permanent consequential limitation and/or significant limitation of use categories, injuries to his right shoulder and lumbosacral spine.  The Court held that, because he established that at least some of his injuries met the serious injury threshold, it was unnecessary to consider whether his other injuries would withstand defendants’ motion for summary judgment.
Note:  The First Department’s decision was reported in the May 15, 2009 edition of Coverage Pointers.

4/6/10             Jack v. Acapulco Car Serv., Inc.
Appellate Division, Second Department
Plaintiff Fails to Submit Any Medical Evidence For 180-Day Period Following Accident

And, as a result, the plaintiff’s case is dismissed.  While the plaintiff’s treating chiropractor, during a recent examination, noted significant range-of motion limitations in the plaintiff’s cervical spine, neither he nor the plaintiff submitted any competent medical evidence that was contemporaneous with the accident.  This failure similarly defeated the plaintiff’s 90/180-Day claim because there was no medical evidence in the record concerning that entire period of time.

4/6/10             Gussack v. McCoy
Appellate Division, Second Department
Portions of Affidavit Reciting Unsworn Findings of Other Doctors Is Disregarded

Although the affidavit of the plaintiff’s treating chiropractor, based both on contemporaneous and recent examinations, noted cervical limitations which he stated were permanent, significant and causally related to the accident, the court disregarded portions of it that relied on unsworn findings from other doctors.  Nevertheless, on appeal the trial court is reversed and the defendant’s motion for summary judgment is denied as the Appellate Court finds that the chiropractor’s affidavit raised a trialbe issue of fact based on the chiropractor’s own examinations and quantified findings.

4/6/10             Quiceno v. Mendoza
Appellate Division, Second Department
Conclusion that Restriction Is “Self-Limited” Must Be Explained

Defendants’ examining orthopedist noted significant range-of-motion limitations in the plaintiff’s right shoulder and concluded that that range-of-motion was “self-limited.”  He failed, however, to explain or support that opinion with any objective medical evidence resulting in the defendants’ failure to meet their burden.

3/30/10           Keith v. Duval
Appellate Division, Second Department
Affirmed Contemporaneous Report Is Insufficient Where It Fails to Set Forth Objective Tests Performed

Plaintiff claimed injuries under the permanent consequential limitation and/or the significant limitation of use categories.  However, the hospital records and the final narrative report of her doctor were uncertified and therefore, insufficient.  Additionally, while her doctor’s initial report was contemporaneous, affirmed, and noted “decreased” range-of-motion in her cervical spine, it failed to set forth any objective medical testing performed in arriving at that conclusion.

3/30/10           Singh v. City of New York
Appellate Division, Second Department
Plaintiff Fails to Raise Triable Issues Where Submissions Do Not Address
MRI Findings
Defendants’ radiologist found that the MRI of plaintiff’s spine and shoulder, taken contemporaneously with the accident, revealed only degenerative changes.  Plaintiff’s experts failed to address those findings thus rendering their reports speculative. 

3/30/10           Varveris v. Franco
Appellate Division, Second Department
Submissions, Based on Subjective Representation, Although Admissible, Are Speculative

Many of the plaintiff’s medical reports were inadmissible because they were either unsworn or unaffirmed.  However, even the admissible reports relied only on the plaintiff’s subjective representations that injuries sustained in a prior 2004 accident were asymptomatic at the time of the subject accident.  As such, the opinions contained in those reports were speculative, as were those in reports that failed to address the prior accident.

AUDREY’S ANGLES ON NO-FAULT
Audrey Seeley
[email protected]

4/6/10             Applicant v. Allstate Ins. Co.
Arbitrator Kent Benziger, Erie County
IME Report Sufficient to Demonstrate Care Not Medically Necessary as Palliative and Not Curative
The Applicant, eligible injured person, was involved in a September 12, 2004, motor vehicle accident.  While obtaining evaluation at the accident scene she did not seek medical attention until two days later complaining of low back pain.  The Applicant then came under the care of a chiropractor.

The Applicant sought reimbursement for chiropractic treatment as well as lost wages for one month.  In support of her arbitration, the Applicant submitted few reports from her treating chiropractor.  She also submitted cervical and lumbar spine MRIs.  The lumbar spine MRI revealed an L4/5 disc herniation.

The insurer denied the chiropractic treatment based upon an independent chiropractic examination conducted by Gary Kostek, D.C.  Mr. Kostek’s report revealed that upon examination the Applicant had multiple positive lumbar spine objective findings.  Mr. Kostek opined that the Applicant had a cervical and lumbar spine sprain/strain.  He further noted that the Applicant had undergone 10 months of chiropractic care at three times per week which provided temporary relief.  He further opined that:

It is my experience that a patient has reached an endpoint in care when the treatment rendered only makes them feel better for a few days and then they are the same as they were before the visits.  It is clear feeling better for a few days is only temporary and the patient has more than likely reached the clinical limitations from this type of care being provided.

In addition, any further treatment would only provide very little clinical benefit.  Thus, no further care was warranted.

The assigned arbitrator determined that Mr. Kostek’s report stated that treatment was not necessary due to the care being palliative and not curative as recognized in Gaul case.  Since Mr. Kostek’s examination was thorough and his conclusion was based upon a complete review of his findings and the treating chiropractor’s records.

The treating chiropractor failed to submit any rebuttal or comprehensive narrative report to dispute Mr. Kostek’s findings and opinion.

4/2/10             Quality Psychological Services, PC a/a/o Jems Jerome v. Mercury Ins. Group
Second Department, Appellate Term
Summary Judgment Denied to All – Review of Burden Shifting in Summary Judgment Motions
The insurer’s cross motion for summary judgment was properly denied and the plaintiff’s motion for summary judgment should have been denied.  The insurer established its prima facie case entitlement to summary judgment.  The plaintiff, to rebut the presumption, submitted evidence in the form of a letter of medical necessity sworn to by the treating psychologist thereby creating an issue of fact precluding summary judgment in favor of the insurer.

3/31/10           563 Grand Medical PC a/a/o Omar Rodriguez v. Kemper Auto and Home
Second Department, Appellate Term
Plaintiff’s Summary Judgment Motion Denied Based on Insufficient Affidavit
The plaintiff’s summary judgment motion was properly denied as the affidavit submitted in support of the motion was from an employee that provided billing service for the plaintiff.  This was insufficient to establish that the employee had sufficient personal knowledge of the plaintiff’s practices and procedures for mailing bills to establish plaintiffs’ prima facie case.

3/31/10           Prime Psychological Services, PC a/a/o Brency Paulino v. Mercury Ins. Grp.
Second Department, Appellate Term
Plaintiff Failed to Rebut Presumption Resulting in Granting of Insurer’s Motion
The insurer’s summary judgment motion was properly granted as it submitted a sworn peer review report from its psychologist which set forth a sufficient factual and medical rationale for the opinion of lack of medical necessity.  The plaintiff’s psychologist’s affirmation was insufficient to create an issue of fact as it did not meaningfully refer to let alone rebut the conclusions in the peer review report.

3/31/10           Laperla Supply, Inc. a/a/o Loreen Rigby-King v. Progressive Northwestern Ins. Co.
Second Department, Appellate Term
Insurer’s Summary Judgment Motion Granted Due to Failure to Rebut Expert Opinion
The insurer’s cross motion for summary judgment should have been granted as it submitted the affirmed peer review report which set forth a sufficient factual and medical rationale for the opinion of lack of medical necessity.  The plaintiff failed to rebut the insurer’s prima facie case thereby warranting summary judgment in favor of the insurer.

 

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

Legislative Update:           Governor Approves an Amendment to Insurance Law § 3404, Insurance Law § 3408 and CPLR § 7601.
Legislature Cures an Oddity With the Appraisal Provision of a Fire Policy 
As many of you already know, the oldest form of first party coverage is fire insurance.  In the 19th Century, the New York Legislature adopted and incorporated a standard fire policy which, even today, serves as the template for all homeowners’ coverage issued in New York.  To date, very few changes have been made to the Standard Form Fire Policy which is currently codified at Insurance Law § 3404. 

The Standard Form, as presently constructed, lays out the coverages that must be provided in a fire policy.  Moreover, it also provides that, upon either the insured’s or the insurer’s request, an appraisal will be conducted to ascertain the monetary value of the insured’s damaged or lost property.

For those of you that have never experienced an appraisal, the Standard Fire Policy also addresses how the appraisal is structured.  Essentially, each side selects an appraiser, and the two appraisers select an umpire.  If the two appraisers cannot reach an agreement on value, the claim is the presented to the umpire for a final determination on the value of damaged items.

Pursuant to Insurance Law § 3404(g), the determination of the appraisers or the umpire will be binding upon both the carrier and the insured.  Importantly, the appraisal provision of the Standard Policy only applies to the valuation of loss and cannot be used to determine coverage disputes (see, eg., In re. Delmar Box Co., 309 NY 60 [1955]; Kawa v Nationwide Mut. Fire Ins. Co., 174 Misc.2d 407, 664 NYS2d 430 [Sup. Ct, Erie County, 1997]).

Although the appraisal provision has traditionally been seen as a mechanism to reduce the cost claims handling and remove the expense of litigation, it had one major flaw.  As originally drafted, the appraisal provision could not force parties into the appraisal process.  Although required by the terms of the policy, there was no mechanism in New York law to compel a party to participate in the appraisal process (Farenholz v Sec. Mut. Ins. Co., 291 AD2d 876, 738 NYS2d 623 [4th Dept., 2002]; see also Woodworth v Erie Ins. Co., 2006 US Dist. LEXIS 1509 [WDNY, 2006]).  Without the ability to seek judicial intervention to compel participation, the appraisal process had essentially become toothless.  

On March 30, 2010, Governor Patterson adopted a bill that finally closed the loophole in the appraisal process.  Specifically, the newly minted Insurance Law § 3408(c) now provides that either party may bring an action under Insurance Law § 3408(a) to compel compliance with the appraisal process.  Keeping in line with standing precedent, Insurance Law § 3408(c) provides that the appraisal process may only be used to determine the actual cash value or replace cost of a loss.  It may not be used to determine or resolve coverage disputes.

Moreover, the new law also amends CPLR § 7601 to provide the mechanism by which an action to compel the appraisal process can be started.  As previously drafted, Section 7601 explicitly provided that it would not apply to claims to compel compliance with the appraisal process.  Now, however, CPLR § 7601 provides that the Court has jurisdiction to compel all parties to submit to the appraisal process.  Notably, the new amendment clarifies that actions brought to compel an appraisal will treated as such, and shall not be deemed arbitrations under Article 75 of the CPLR. 

In passing this Legislation, the Governor is effectively closing a loop hole that could have been, and in the past has been, used to avoid mandatory appraisal in fire loss cases.  That said, the new law probably returns the appraisal process back to the position that the Legislature intended when the Standard Fire Policy was first created. 

Again, in summation, with the signing of this law, which became effective immediately, either party may now request an appraisal proceeding.  If any party objects, the party requesting appraisal has a mechanism to compel participation by way of a special proceeding under CPRL § 7601. 

FIJAL’S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

04/6/10           Fabozzi v. Lexington Insurance Company
United States Court of Appeals for the Second Circuit
When Is the Contractual Limitations Period in an Insurance Policy Triggered?
Lexington Insurance issued a homeowners policy to plaintiffs which covered their Oceanside home on Staten Island, New York.  When the house began to collapse as a result of structural damage, they filed a claim with Lexington.  Twenty-six months later Lexington denied coverage and the Fabrozzi’s filed suit in the United States District Court for the Eastern District of New York.  The district court held that under New York law, the “date of loss” was the date the damage occurred, not the date the Fabrozzis’ claim was denied.  As a result the court concluded that the two year contractual limitations period had expired, notwithstanding the fact that Lexington’s investigation lasted more than two years while the plaintiffs’ claim for damages remained pending.  The Fabozzis appealed.

The Fabozzis’ policy required that they bring suit “within two years after the date of loss”.   On appeal, the Fabozzis argue that, under New York law, this language means the date on which the cause of action accrues, i.e., the date on which all conditions precedent to bringing a claim have been satisfied.

Lexington on the other hand, argued that the term “loss” as used in the Lexington insurance policy refers to the time when direct physical loss or damage occurred.

The Second Circuit relying on established precedent, and making a distinction between those policies which use the term “date of loss” and those which use the term  “inception of loss”, agreed with the Fabrozzis.  The court stated that New York courts continue to regard more generic language – such as policy provisions foreclosing suit a certain period “after loss or damage” as triggering the limitations period only “from the time that liability accrues under the provisions of the policy.”  On the other hand, the phrase “after the inception of the loss” is regarded, in essence, as a term of art which fixes the limitations period to the date of the accident.

The court held that for limitations purposes, a claim generally accrues only once the conditions precedent to filing the suit have been satisfied.  The court noted that in many cases, those conditions are met when payment on any claim on the policy becomes due and enforceable.  Since the district court did not consider what conditions were precedent to filing suit and did not determine at what point the breach occurred, the Second Circuit remanded the case to the district court to consider when the Fabrozzis’ claim accrued that therefore, whether the suit was timely.

04/12/10         Safeco Insurance Co. of Amer. v. Hilderbrand
United States Court of Appeals for the Tenth Circuit
Application of the Business Pursuits Exclusion in a Homeowners’ Policy.
This appeal from the United States District Court for the District of Kansas arises out of an accident in which a Siberian tiger attacked and fatally injured a 17 year old high school student, Haley Hilderbrand, during her senior picture photo shoot.  The accident occurred on the property of Keith and Sharon Billingsley, who used their farm to shelter exotic animals.  The Billingsleys ran the Lost Creek Animal Sanctuary, a non-profit foundation designed to rescue exotic animals, an Animal Entertainment Productions [“AEP”] along with their son Doug, a for profit partnership meant to fund the Sanctuary by exhibiting the rescued animals at magic shows and other events.  A Safeco homeowners policy was issued to the Billingsleys and in effect at the time of the incident.

The Billingsleys put in a notice of claim under the homeowners policy and Safeco then filed a declaratory judgment action arguing that it was not required to provide coverage to the Billingsleys, because the incident arose out of the operation of a business, and the Billingsleys’ homeowners policy contained an exclusion for business pursuits.

After a bench trial on the merits the district court concluded that the Safeco homeowners policy did not cover the incident in question.  The Fifth Circuit agreed and affirmed the district court’s ruling.

The Safeco homeowners policy contained language excluding losses for business activities:

            LIABILITY LOSSES WE DO NOT COVER

1.         Coverage E – Personal Liability and Coverage F – Medical Payments to Other do not apply to bodily injury or property damage: . . .

            b.         arising out of business pursuits of any insured . . .

                        This exclusion does not apply to:

(1)       Activities which are ordinarily incident to non-                                           business pursuits[.]

The Fifth Circuit noted that to apply the business pursuits exclusion, Kansas courts adopted a test which is overwhelmingly followed by other state courts.  To constitute a business pursuit, there must be two elements:  first, continuity, and secondly, profit motive.  As to the first element there must be a customary engagement or a stated occupation.  The second element requires a showing of “such activity as a means of livelihood, gainful employment, means of earning a living, procuring subsistence or profit, commercial transactions or engagements.

When addressing continuity the court found that the activities of the Billingsleys met the continuity requirement.  First, the court found that Doug Billingsley held himself out to be a professional animal trainer; AEP paid his salary; and, the extensive training he received indicates that this was more than a mere hobby or occasional pursuit.  Also, although certain aspects of the business, such as magic shows or photo shoots only occurred sporadically, the ownership and maintenance of the exotic animals continued uninterrupted from the establishment of the Sanctuary, through AEP’s founding and up until the death of Haley.  Further, from the time AEP was created, Doug continually attempted to arrange animal performances. Although the court determined that these attempts were largely unsuccessful, they are themselves evidence that the operation of AEO was a “customary engagement”.  The court rejected Mr. Hilderbrand’s arguments that because the Billingsleys’ business activities were part-time they did not qualify as business pursuits.

In analyzing the second prong of the test, profit motive, the court determined that it was clear that the Billingsleys operated AEP with a profit motive, even if no actual profit ever materialized.  The facts established that their intent in creating the company was to generate enough income to sustain the Lost Creek Sanctuary.  Further, the Billingsleys has obtained both state and federal licenses for their business, and Doug actively involved in advertising and promoting AEP’s services. Moreover, at one point the Billingsleys’ obtained an SBA loan, which would eventually need to be repaid.  The court stated that this was an indication that the Billingsleys expected AEP to turn a profit at some point. Other facts which the court determined were important in addressing the issue of profit motive was that Doug held himself out as a professional trainer and that AEP filed tax returns during the period in question, and that the Billingsleys wrote off the business losses of the partnership in their own personal tax returns. Based on these fact, the court held that the district court correctly concluded the Billingsleys operated AEP with a profit motive.

            Accordingly, the court held that the Billingsley’s operated AEP with continuity and with a profit motive, thereby triggering the application of the business pursuits exclusion.

            Finally, Mr. Hilderbrand argued that even if AEP is a business pursuit, Safeco is still required to provide coverage because the accident falls within the “non-business pursuits” exception. Mr. Hilderbrand argued that Haley’s injuries arose in connection with a photo shoot, which he claims is ordinarily a non-business activity, or at least is not a common business pursuit of the Billingsleys. The court stated, however, that under Kansas law the inquiry must extend to a broader assessment of the incident. In this case, the accident arose out the Billingsleys’ exotic animal shelter and entertainment business. The victim was a volunteer at the Sanctuary, and Doug used business property and his expertise as a trainer for the photo shoot.  The court determined that while a photo shoot is not the everyday business of AEP, its animals had been used for photo shoots in the past, and photo shoots were part of AEP’s business. 

Accordingly, the Fifth Circuit agreed with the district court that the photo shoot was not an activity “ordinarily incident to non-business pursuits.”

JEN’S GEMS
Jennifer A. Ehman
[email protected]

4/5/10             Cohen v. Medical Malpractice Ins. Pool of New York State
Supreme Court, New York County
No Coverage for Genetic Counselor under Physician’s Malpractice Policy
This case arises out of a medical malpractice and negligence action.  In the underlying action, patients of Corinthian OB/GYN, Dr. Gardner and plaintiff Sharona Cohen alleged that they sustain injury as a result of the failure of these parties to perform genetic counseling and screening during prenatal care.  Plaintiff, a genetic counselor, commenced this action against Dr. Gardner’s malpractice insurer.  Plaintiff alleged that she was entitled to defense and indemnity under the malpractice policy because she was an employee of Corinthian and Dr. Gardner.  Dr. Gardner’s insurer subsequently denied coverage asserting that Ms. Cohen was not a “Covered Employee” under the policy.

The policy defined “Insured” as “the licensed physician…to whom this [coverage] is issued and any Covered Employee of the Insured.”  The term “Covered Employee” was defined as “any nurse, technician or medical assistant employed by the Insured while acting within the scope of employment for the Insured and includes a Leased Worker or a Temporary Worker.”  The coverage specifically did not extend to “any physician, dentist, nurse-midwife, nurse-anesthetist, nurse-practitioner, podiatrist, chiropractor, radiation therapist, physician’s assistant, specialist’s assistant or acupuncturist employed by (or working as an independent contractor for) the Insured.” 

Further, the insurer asserted that even if Ms. Cohen was a “Covered Employee”, the policy only provided coverage for claims arising out of a “medical incident”.  The policy defined “medical incident” as “any act or omission in the rendering of, or failure to render, Professional Services by the Insured…”  The policy defined “Professional Services” to include “medical and surgical examination and/or treatment of patients” and “medical lecturing, diagnosis, opinion or advice.” 

The court held that Ms. Cohen did not perform Professional Services as defined by the policy.  Pursuant to Ms. Cohen’s own testimony she “did not provide medical advice, medical opinions or medical diagnosis.”  Instead, she gathered information and conveyed that information to the physician.  Moreover, according to the court, even if Ms. Cohen provided Professional Services, she was not an Insured under the policy.  Although a genetic counselor was neither specifically included nor excluded from coverage, the court determined that Ms. Cohen was an independent contractor, not an employee.  The court based its determination of Ms. Cohen’s status on evidence that she set up her own schedule, engaged in other employment, received no fringe benefits, prepared her own materials and was not subject to the doctor’s orders.  Further, the compensation Ms. Cohen received for her work was included under “Non-Employee Compensation” on her tax forms and no payroll roll taxes were withheld.

4/2/10             Scottsdale Ins. Co. v. Plumb Level & Sq. Constr. Inc.
Supreme Court, New York County
Notice Required at Two Separate Junctures, Occurrence and Suit
The owner of property in New York City contracted Plumb Level & Square Construction, Inc. to serve as excavation and foundation contractor in connection with the premises’ renovation.  The owner subsequently brought an action against Plumb alleging breach of contract and fraud in connection with the collapse of the structure’s original foundation.  As Plumb never appeared in the action, the owner took a default judgment.  A copy of the default Order was forwarded to Scottsdale Ins. Co., Plumb’s insurer. 

Receipt of the default Order was Scottsdale’s first notice of the lawsuit.  Accordingly, Scottsdale commenced this action seeking a declaration that it owed Plumb no coverage, defense or indemnify because:  (1) Scottsdale was not provided timely notice of suit; (2) the policy procured by Plumb covered only property damage to third parties; and (3) the policy provided no coverage for breach of contract or fraud.

The court held that notice was required at two separate junctures, time of occurrence and commencement of lawsuit.  Although Scottsdale was notified of the wall collapse, and investigated the incident, Scottsdale was not notified of the lawsuit under close to ten months after the action was filed and a default had already been granted.  Thus, Scottsdale had an adequate basis to disclaim coverage.  Further, the policy also excluded coverage for property damage to “that particular part of real property on which you….are performing operations, if the ‘property damage’ arises out of those operations.”  As the damage arose out of Plumb’s work on the foundation, the policy provided no coverage. 

 4/1/10            Admiral Indem. Co. v. Miji Wu Jeng
Supreme Court, New York County
Dismissal of Subrogation Claim Brought by Insurer Where Other Party Had No Notice of Water Leak
This case arises out of a property damage claim that occurred when water leaked from an upper apartment’s Heating, Venting and Air Conditioning system into a lower apartment.  Plaintiff, the apartment building’s insurer, paid the claim and brought this subrogation action against the resident of the upper apartment. 

The court granted the resident’s motion for summary judgment.  It held that plaintiff failed to establish that the resident had notice of a defect in the HVAC unit.  Further, the court noted that the facts presented indicated that there were no prior problems with leaks or complaints of leakage.  Additionally, the source of the leak was not visibly apparent and once the resident of the upper apartment noticed the leak she notified the building superintendent.  

3/31/10           Delos Ins. Co. v. Smith & Laquercia LLP
Supreme Court, New York County
No Cause of Action for Legal Malpractice
In this action, plaintiff, Delos Ins. Co. f/k/a Sirius American Ins. Co. (“Delos”), alleged that defendants committed legal malpractice.  Delos issued a general liability policy to the Dennis Corporation (“Dennis”).  Dennis was hired to serve as construction contractor on a project.  Subsequently, a subcontractor’s employee was injured on the project and brought suit.  Delos retained defendant to represent Dennis in the personal injury action. 

Delos then instructed defendant to commence a declaratory judgment action against the subcontractor’s insurer.  The declaratory judgment action claimed that Dennis was entitled to defense and indemnity as an additional insured under the subcontractor’s insurance policy.  In reply, the subcontractor’s insurer asserted that Dennis was not entitled to coverage based on late notice and the employee exclusion. 

Shortly thereafter, the subcontractor’s insurer commenced its own declaratory judgment action seeking a declaration that it had no duty to defend its insured or Dennis in the underlying action.  The court consolidated both declaratory judgment actions.  The subcontractor’s insurer then moved for summary judgment, and the motion was granted on default.  The court, in turn, dismissed the action brought by Delos Ins./Sirius and determined that the subcontractor’s insurer did not owe its insured a defense or indemnification.

In the underlying action, the employee moved for summary judgment and prevailed on the Labor Law § 240(1) claim against Dennis and the subcontractor.  (Note:  based on these facts, it appears that the subcontractor did not purchase worker’s compensation insurance).  Delos subsequently settled the claim. 

Delos then commenced this action alleging defendant committed malpractice.  Specifically, Delos asserted that it would have settled the underlying action sooner had defendant not told it that Dennis had a valid contractual indemnification claim against the subcontractor and that Dennis was an additional insured under the subcontractor’s policy.  Further, Delos asserted that defendant should not have allowed the motion for summary judgment in the declaratory judgment action to be decided on default. 

The court held that to recover for malpractice Delos needed to demonstrate that defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that defendant’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damage.  The court noted that Delos’ decision to settle the underlying action was a business decision.  The presence or absence of additional insurance under the subcontractor’s policy would not have made any difference because the subcontractor’s policy contained an employee exclusion.  Further, the agreement between Dennis and the subcontractor merely required the subcontractor to hold Dennis harmless.  The agreement contained no insurance procurement provision.  Accordingly, based on the blanket additional insured endorsement contained in the subcontractor’s policy, without a written agreement to provide insurance, Dennis was not an additional insured under the policy.  Lastly, with regard to contractual indemnification, the court noted that Delos was incapable of proving that it would have settled the underlying action sooner had it known of the futility of its contractual indemnification claim. 

LIENING TOWER OF PERLEY

Michael F. Perley
[email protected]

Help Yourself – the Courts Can’t

The single most significant feature of the Medicare Secondary Payer Act lies in the fact that state courts have no jurisdiction over the federal government.  In cases involving state liens and Workers’ Compensation liens, state courts may have been able to exercise jurisdiction and gain some control when the time came to resolve these issues as part of the settlement.  This is most significant in cases involving questionable liability or significant culpable conduct attributable to the plaintiff.  Where the state courts have some measure of control, they are able to assist in resolving these lien issues, in part, based upon the concept that their jurisdiction extends to these agencies.  The federal government will not recognize any determination by a state judge, leaving the parties, their attorneys and the insurance companies to fend for themselves. 

Where there is an expectation of future medical treatment, the parties are likely to address that situation directly, however, where there is an expectation of future medical treatment but the parties do not expect Medicare to become involved, there may be a tendency to do nothing.  At this point, whether knowingly or unknowingly, everyone is taking a significant risk.  In the event that Medicare does become involved and there is no record of the parties expectations at the time of the settlement, everyone’s ability to resist a claim by Medicare for double damages can be severely compromised.  The adjuster who handled the file may have retired or left the company, the attorneys involved may or may not be available and, even if they are, they may have no recollection of their thought process at the time of the settlement.  Thus, in the words of my contract law professor, “If it goes without saying, say it.”  Wherever there is an expectation of future medical expenses, even if Medicare is not involved, it is worth taking the time to document the parties’ understanding at the time of the settlement, thereby creating a record demonstrating that everyone involved reasonably considered the interests of Medicare at that time.  Such documentation should indicate that, even if future medical treatment is expected, the parties have no expectation that Medicare would become involved.  This can be documented on the basis of age, the remote possibility of the plaintiff obtaining Social Security Disability benefits (thereby becoming Medicare eligible at a younger age), or other benefits available in place of Medicare.  In New York, no-fault benefits survive any settlement and, if there are sufficient benefits available to pay the expenses, this would obviate the need for addressing the interests of Medicare at the settlement.   All of this information can be either lost, or forgotten, unless documented at the time of the settlement. 

If plaintiff’s attorneys resist this approach, they should be reminded that this will protect their interests and their client’s interests as well as insurance companies or an uninsured defendant.  It is the proverbial “ounce of prevention” that demonstrates the good faith of all the parties involved and is well worth the effort.

 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

A Lemon Provides a Gem of a Decision on Damages

In assessing claims and potential liability, care must be taken to evaluate the proper measure and standard of damages.  This is the lesson of Armstrong v. Mazda Motor of America, Inc., 2009 Alabama Civil Appeals LEXIS 505 (October 2, 2009).  Armstrong was basically a “Lemon Law” case involving a motor vehicle which is instructive on the importance of paying attention to the legal measure of damages. 

In December 2001, Armstrong purchased a vehicle from Mazda paying $18,806.97 purchase price.  The vehicle developed air-conditioning problems, particularly on long trips, and although the car was returned to the dealer for repairs on several occasions the dealer was unable to repair the air-conditioning system.  Armstrong sued Mazda asserting a claims of breach of express warranty under the Alabama Commercial Code and also under the Magnuson-Moss Federal Lemon Law. 

Significantly, the Uniform Commercial Code at 2-714 provides that the measure of damages for breach of warranty is the difference in value at the time and place of acceptance between the goods as produced and their value had they been as warranted.  At trial, Armstrong testified to the purchase price of the vehicle, and claimed that the car had “no value” to him if the air-conditioning system did not work.  He also testified that he had paid finance charges of $2,500.00 in connection with acquisition of the vehicle. 

The jury returned a verdict in favor of Armstrong and awarded him damages of $2,500.00, plus attorneys’ fees and costs in a lower amount than requested.  Both sides appealed.  Armstrong argued against the reduction in his attorneys’ fees and costs, and Mazda argued that it was entitled to a new trial because of deficient proof with respect to damages.  Mazda’s argument prevailed.

The court went back to the basic measure of damages - the difference between the value of the goods as warranted and the actual value of the goods.  The evidence at trial did establish the purchase price of the vehicle, but the only testimony with respect to the “actual value” was plaintiff’s diatribe that the car was “worthless to him” in its present condition.  Therefore, the court concluded that, if the jury accepted the plaintiff’s testimony, they should have awarded him $18,806.97 (the full purchase price of the vehicle) not $2,500.00 in finance charges.  On the other hand, if the jury rejected Armstrong’s testimony, there was no basis to award him $2,500.00.  The finance charges paid by Armstrong had no relationship to the “difference in the value” of the vehicle as warranted and as valued at the time of acceptance. 

Therefore, the appellate court concluded that the $2,500.00 in damages was without factual support and resulted from improper jury speculation or compromise.  The U.C.C. measure of damages for breach of warranty is the difference in value between the goods or products as warranted as opposed to their alleged actual (and allegedly defective) condition.  Related claims of out of pocket costs to repair, the procurement of substitute goods, etc. may have some relevance or perhaps constitute separate claims under other U.C.C. provisions, but they do not define difference in value.  Therefore, the judgment was reversed and the case was remanded for a new trial.

The lesson to be learned from Armstrong is that, at all phases of the litigation, care must be taken to analyze what is the legal measure of damages, particularly where a case involves contractual and commercial claims such as breach of warranty, limitations of damages, and contractual provisions which may limit or exclude certain damages such as incidental or consequential damages.  In Armstrong, the damages proof should have focused on issues of value such as the initial purchase price of the car, cost of repairs, and resale or trade-in value of the vehicle in its alleged defective condition.

The trial testimony should reflect and be presented in terms of the legal measure of damages.  If the legal measure is difference in value, then the testimony should reflect facts and opinions on what the product was worth as purchased and warranted and what it is worth in its current condition.  But be sure to research and be aware of what the proper measure of damages will be in a given case.  Here, plaintiff’s proof did not focus on the requisite issues of value resulting in a jury verdict that was overturned because it did not have any predicate in the testimony and was not geared to the proper measure of damages. 

ACROSS BORDERS
Courtesy of the FDCC Website
www.thefederation.org

4/12/10           Zurich American Insurance Company v. Tolbert
South Carolina Supreme Court
South Carolina Supreme Court Allows UIM Claim to Stay in Reverse
Zurich brought a declaratory judgment action to determine whether Tolbert was entitled to underinsured motorist coverage (UIM) even though Tolbert was driving a car without UIM coverage when the accident occurred. Tolbert was employed by BMW and was a participant in a lease program with BMW for employees. Tolbert sought to recover under the UIM coverage of a policy carried by BMW for cars that were leased to employees. The trial court granted Zurich's summary judgment motion, but the Court of Appeals reversed, finding that a genuine issue of material fact existed based on the "temporary substitute" vehicle endorsement found in the policy's UIM provision. The Court affirmed, holding that pursuant to South Carolina law, Tolbert presented the requisite mere scintilla of evidence needed to avoid summary judgment. In dissent Chief Justice Toal argued that the “temporary substitute” endorsement required that use of the substitute be temporary but that in this case, Tolbert was the owner of the vehicle he was driving and so his use of the vehicle was not temporary
Submitted by: Paul S. White & Evan B. Sorensen

4/12/10           Safeco Insurance Company v. Hilderbrand
Tenth Circuit Court of Appeals
Tiger Attack Not Covered by Homeowners Policy
A father sued the owners of the Lost Creek Animal Sanctuary, a Kansas shelter for exotic animals, for damages after a Siberian tiger fatally injured his 17 year old daughter at the shelter during a senior photo shoot. The Sanctuary sheltered a variety of exotic animals—including tigers, bears, lions, cougars, monkeys, and alligators—no longer wanted by zoos or circuses. The owners of Lost Creek sought liability coverage from their insurance company and the company denied the claim. Following a bench trial, the U.S. District Court in Kansas found that the claim was not covered and under the homeowners policy. On appeal, the Tenth Circuit affirmed, finding that the “business pursuits” exclusion in the homeowners’ policy applied and thus liability related to the exotic animal rescue and exhibition business was expressly excluded. The Court of Appeals also examined the insureds’ claim that the “non-business pursuits” exception to the exclusion should apply. Applying Kansas law, the Appellate Court found that since the injury “arose out of the [insureds’] exotic animal shelter and entertainment business, the “non-business pursuits” exception did not apply and additionally that no other exception in the policy applied.
Submitted by: Paul S. White & Evan B. Sorensen

REPORTED DECISIONS


Linton v. Nawaz


Submitted by Stacy R. Seldin, for appellants.
Submitted by Peter J. Eliopoulos, for respondents.

MEMORANDUM:
The order of the Appellate Division should be affirmed, with costs, and the certified question answered in the affirmative.
In this personal injury case in which a taxi struck the plaintiff, the evidence plaintiff proffered relating to injuries to his right shoulder and lumbosacral spine raised a triable question of fact as to whether he suffered a serious injury that was causally related to the accident under the permanent consequential limitation of use of a body organ or member and/or significant limitation of a body function or system criteria (see Insurance Law § 5102[d]). Since plaintiff established that at least some of his injuries meet the "No Fault" threshold, it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants' motion for summary judgment.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question answered in the affirmative, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
Decided April 6, 2010

Keith v. Duval


Alexander Dranov, Brooklyn, N.Y., for appellant.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York,
N.Y. (Stacey R. Seldin of counsel),
for respondent Lois Duval.
Richard T. Lau, Jericho, N.Y. (Gene W. Wiggins of counsel),
for respondents Amadou Moussa and
Diallo Abdouerahmane.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Velasquez, J.), entered March 25, 2009, which granted the respective motions of the defendants Lois Duval and Taxi and Lim. Commission, the defendants Amadou Moussa and Diallo Abdouerahmane, and the defendants Saunor Feneleon and Katenka Blaise, for summary judgment dismissing the complaint insofar as asserted against each of them on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
The defendants met their respective prima facie burdens of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact as to whether she sustained a permanent consequential limitation of use of a body organ or member and/or a significant limitation of use of a body function or system within the meaning of Insurance Law § 5102(d). Initially, the plaintiff's hospital records and the final narrative report of Dr. Nitin Narkhede were insufficient to raise a triable issue of fact because the hospital records were uncertified (see Bleszcz v Hiscock, 69 AD3d 890; Singh v Mohamed, 54 AD3d 933; Mejia v DeRose, 35 AD3d 407) and Narkhede's report was unaffirmed (see Grasso v Angerami, 79 NY2d 813; Mora v Riddick, 69 AD3d 591; Patterson v NY Alarm Response Corp., 45 AD3d 656; Verette v Zia, 44 AD3d 747; Nociforo v Penna, 42 AD3d 514; Pagano v Kingsbury, 182 AD2d 268).
The affirmed medical report of Dr. Gary Starkman, the plaintiff's examining neurologist, failed to raise a triable issue of fact as well. While this report set forth significant limitations of the cervical and lumbar regions of the plaintiff's spine that were noted during a recent examination, neither the plaintiff nor Dr. Starkman proffered competent medical evidence that revealed the existence of significant limitations in those regions of the spine that were contemporaneous with the subject accident (see Mensah v Badu, 68 AD3d 945; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). While Narkhede's initial medical report dated March 28, 2006, was affirmed, and noted "decreased" range of motion in the cervical spine, Narkhede failed to set forth the objective medical testing done to arrive at that conclusion (see Knopf v Sinetar, 69 AD3d 809; Spence v Mikelberg, 66 AD3d 765; Sapienza v Ruggiero, 57 AD3d 643; Budhram v Ogunmoyin, 53 AD3d 640, 641; Piperis v Wan, 49 AD3d 840, 841).
The plaintiff's remaining admissible medical submissions merely revealed evidence of bulging discs in the lumbar and cervical regions of her spine, a herniated disc in the lumbar spine, and cervical radiculopathy. The mere existence of a herniated disc, a bulging disc, or radiculopathy is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration (see Casimir v Bailey, 70 AD3d 994; Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712; Niles v Lam Pakie Ho, 61 AD3d 657; Pompey v Carney, 59 AD3d 416). Neither the plaintiff's affidavit nor her other submissions were sufficient to raise a triable issue of fact as to whether these claimed injuries constituted serious injuries within the meaning of Insurance Law § 5102(d) (see Bleszcz v Hiscock, 69 AD3d 890; Rabolt v Park, 50 AD3d 995).


Singh v. City of New York
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y.
(The Sullivan Law Firm [Timothy M. Sullivan], of counsel), for
appellants.
The Law Firm of Silvia M. Surdez, P.C., Astoria, N.Y. (Kevin J.
Perez of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries and injury to property, the defendants Sadiq Fazel and JDR Taxi appeal from an order of the Supreme Court, Queens County (Flug, J.), entered July 1, 2009, which denied their motion, in effect, for summary judgment dismissing the cause of action to recover damages for personal injuries insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Sadiq Fazel and JDR Taxi, in effect, for summary judgment dismissing the cause of action to recover damages for personal injuries insofar as asserted against them is granted.
The defendants Sadiq Fazel and JDR Taxi met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-967).
In opposition to the motion, the plaintiff failed to raise a triable issue of fact. Of the submissions which were in admissible evidentiary form, the affirmation of Dr. Sawhey Harhash, and the affidavits and report of Dr. Coral Elcock, were insufficient to raise a triable issue of fact because they did not address the finding of the defendants' radiologist that magnetic resonance imagings of the plaintiff's cervical spine, lumbar spine, and left shoulder, taken shortly after the accident, revealed only degenerative changes which were not caused by the subject accident. Thus, the conclusions of the plaintiff's experts that the injuries and limitations they noted during their respective examinations were the result of the subject accident were speculative (see Casimir v Bailey, 70 AD3d 994; Nicholson v Allen, 62 AD3d 766, 767; Chery v Jones, 62 AD3d 742, 743; Shmerkovitch v Sitar Corp., 61 AD3d 843; Pamphile v Bastien, 61 AD3d 659, 660). Furthermore, the plaintiff's own affidavit was insufficient to raise a triable issue of fact (see Acosta v Alexandre,AD3d, 2010 NY Slip Op 00909 [2d Dept 2010]; Maffei v Santiago, 63 AD3d 1011, 1012; Luizzi-Schwenk v Singh, 58 AD3d 811, 812; Sealy v Riteway-1, Inc., 54 AD3d 1018).
The plaintiff also failed to submit competent medical evidence that the injuries he allegedly sustained in the subject accident rendered him unable to perform substantially all of his usual and customary activities for not less than 90 days of the first 180 days subsequent to the accident (see Casimir v Bailey, 70 AD3d 994; Shmerkovitch v Sitar Corp., 61 AD3d at 842; Sainte-Aime v Ho, 274 AD2d 569).

Varveris v. Franco
Sacco & Fillas, LLP, Whitestone, N.Y. (Lamont K. Rodgers of
counsel), for appellant.
Richard T. Lau, Jericho, N.Y. (Marcella Gerbasi Crewe of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Taylor, J.), dated January 8, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
The defendant established her prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avid Rent-A-Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-57). In opposition, the plaintiff failed to raise a triable issue of fact.
Many of the medical reports submitted by the plaintiff were inadmissible, as they were unaffirmed and/or unsworn (see Grasso v Angerami, 79 NY2d 813; Maffei v Santiago, 63 AD3d 1011; Niles v Lam Pakie Ho, 61 AD3d 657), or they relied upon unaffirmed and/or unsworn reports of others (see Gastaldi v Chen, 56 AD3d 420; Williams v Clark, 54 AD3d 942; Zarate v McDonald, 31 AD3d 632).
The submissions of Dr. Fokion Avgerinos, while admissible, relied upon the plaintiff's subjective representation that her neck and back injuries from a 2004 accident were asymptomatic at the time of the instant accident, rendering his opinions of cervical and lumbar limitations speculative (see Penaloza v Chavez, 48 AD3d 654; Vidor v Davila, 37 AD3d 826). Further, Dr. Avgerinos's findings of limited flexion of the plaintiff's right knee indicated, at best, an insignificant limitation (see Acosta v Alexandre, 70 AD3d 735; Cabri v Park, 260 AD2d 525). The report of Dr. Thomas Scilaris was speculative, as it failed to address the plaintiff's 2004 accident (see Joseph v A and H Livery, 58 AD3d 688; Penaloza v Chavez, 48 AD3d at 654). Moreover, that report contained no objective evidence regarding limitations to the plaintiff's right knee and right shoulder (see LaMarre v Michelle Taxi, Inc., 60 AD3d 911; Sapienza v Ruggiero, 57 AD3d 643).
The plaintiff also failed to submit competent medical evidence that her injuries rendered her unable to perform substantially all of her usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the accident (see Rabolt v Park, 50 AD3d 995; Roman v Fast Lane Car Serv., Inc., 46 AD3d 535).
The plaintiff's remaining contentions are without merit.



Richner Communications, Inc. v. Tower Insurance Company of New York


Max W. Gershweir, New York, N.Y., for appellant-respondent.
Hammill, O'Brien, Croutier, Dempsey, Pender & Koehler,
P.C., Syosset, N.Y. (Anton Piotroski
of counsel), for respondent-appellant.

DECISION & ORDER
In an action, inter alia, for a judgment declaring that the defendant is obligated to defend and indemnify the plaintiff in an underlying action entitled Giampetruzzi v Richner Communications, Inc., pending in the Supreme Court, Queens County, under Index No. 12600/07, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered June 29, 2009, as denied its motion for summary judgment declaring that it is not so obligated, and the plaintiff cross-appeals, as limited by its brief, from so much of the same order as denied its cross motion for summary judgment.
ORDERED that the order is reversed insofar as appealed from, on the law, the defendant's motion for summary judgment is granted, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying action entitled Giampetruzzi v Richner Communications, Inc., pending in the Supreme Court, Queens County, under Index No. 12600/07; and it is further,
ORDERED that the order is affirmed insofar as cross- appealed from; and it is further,
ORDERED that one bill of costs is awarded to the defendant.
In October 2005 Frank Giampetruzzi allegedly sustained personal injuries at certain premises located in Nassau County (hereinafter the subject premises). Giampetruzzi commenced an action (hereinafter the underlying action) in the Supreme Court, Queens County, against, among others, the plaintiff. The plaintiff sought coverage and legal representation in the underlying action from the defendant, its insurance carrier. The defendant disclaimed coverage and refused to defend the plaintiff on the ground, among others, that the subject premises were not covered under the policy. Thereafter, the plaintiff commenced the instant action, inter alia, for a judgment declaring that the defendant was obligated to defend and indemnify it the underlying action. The defendant moved, and the plaintiff cross-moved, for summary judgment. The Supreme Court denied both the motion and the cross motion, finding the existence of triable issues of fact. We reverse the order insofar as it denied the defendant's motion for summary judgment.
"As with the construction of contracts generally, unambiguous provisions of an insurance contract must be given their plain and ordinary meaning, and the interpretation of such provisions is a question of law for the court'" (Vigilant Ins. Co. v Bear Stearns Cos., Inc., 10 NY3d 170, 177, quoting White v Continental Cas. Co., 9 NY3d 264, 267; see Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864). A policy is read as a whole and "in construing an endorsement to an insurance policy, the endorsement and the policy must be read together, and the words of the policy remain in full force and effect except as altered by the words of the endorsement" (County of Columbia v Continental Ins. Co., 83 NY2d 618, 628). "An insurance contract should not be read so that some provisions are rendered meaningless" (id. at 628).
Here, the defendant established, as a matter of law, that it was not obligated to defend and indemnify the plaintiff in the underlying action (see Gordon & Jack v Royal Indem. Co., 219 AD2d 617, 617-618). In this regard, the subject policy contained an endorsement that expressly limited coverage to certain "Designated Premises" shown in the "Declarations" page of the policy. It is undisputed that, as of the time of Giampetruzzi's alleged accident, the subject premises were not listed on that "Declarations" page.
We reject the plaintiff's contention that the policy was rendered ambiguous by a provision that stated "[t]his insurance applies" to bodily injury "caused by an occurrence' that takes place in the coverage territory'" (see Ten Seventy One Home Corp. v Liberty Mut. Fire Ins. Co., 2008 WL 2464187, 2008 US Dist LEXIS 47328 [SD NY 2008]). Further, we find that the plaintiff's reliance upon Mazzuoccolo v Cinelli (245 AD2d 245) is misplaced because there is no indication that the policy addressed therein contained a "Designated Premises" endorsement such as the one at issue in the instant case.
Accordingly, the plaintiff having failed to raise a triable issue of fact in opposition to the defendant's motion for summary judgment, the Supreme Court should have granted the defendant's motion. In light of the above, the plaintiff's cross motion for summary judgment was properly denied.
Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of a judgment declaring that the defendant is not obligated to defend and indemnify the plaintiff in the underlying action (see Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901).

Gussack v. McCoy
Costantino & Costantino, Copiague, N.Y. (Joseph A. Costantino
of counsel), for appellant.
Martyn, Toher & Martyn (Loccisano & Larkin, Hauppauge,
N.Y. [Erica L. Ingebretsen], of
counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), entered February 20, 2009, which granted the defendant's motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.
The Supreme Court properly determined that the defendant met her prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). However, the Supreme Court erred in determining that the plaintiff failed to raise a triable issue of fact in opposition to that showing.
In opposition to the defendant's motion, the plaintiff relied on the affidavit of her treating chiropractor, Dr. Philip F. Muench. In his affidavit, Muench opined, based upon his contemporaneous and most recent examinations of the plaintiff, that the plaintiff's cervical condition and the limitations of motion he noted were permanent, significant, and causally related to the subject accident. While portions of Muench's affidavit must be disregarded because they recite unsworn findings of other doctors (see Casiano v Zedan, 66 AD3d 730; McNeil v New York City Tr. Auth., 60 AD3d 1018), Muench found, on the basis of his own physical examinations of the plaintiff, made contemporaneously with the subject accident and at the time of his most recent examination of the plaintiff, that the plaintiff had a quantified decreased range of motion in her cervical spine compared to the norm. Thus, Muench's conclusions concerning the plaintiff's cervical injuries were sufficient to raise a triable issue of fact as to whether, as a result of the subject accident, the plaintiff sustained a serious injury to her cervical spine under the significant limitation of use or the permanent consequential limitation of use categories of Insurance Law § 5102(d) (see Casiano v Zedan, 66 AD3d 70; McNeil v New York City Tr. Auth., 60 AD3d 1018).
Contrary to the defendant's assertions, the plaintiff adequately explained the lengthy gap in her treatment (see Pommells v Perez, 4 NY3d 566, 577; Bonilla v Tortoriello, 62 AD3d 637, 639).

Jack v. Acapulco Car Service, Inc.
Baker, McEvoy, Morrisey & Moskovits, P.C., New York, N.Y.
(Colin F. Morrissey of counsel), for appellant.
Jonathan D'Agostino & Associates, P.C., Staten Island, N.Y.
(Glen Devora of counsel), for
respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant Leader Limousine Corp. appeals, as limited by its brief, from so much an order of the Supreme Court, Kings County (Schack, J.), dated March 23, 2009, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant Leader Limousine Corp. for summary judgment dismissing the complaint insofar as asserted against it on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) is granted.
The appellant met its prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In opposition, the plaintiff failed to raise a triable issue of fact.
While Dr. Steven Apicerno, the plaintiff's treating chiropractor, noted significant limitations in the range of motion of the cervical region of the plaintiff's spine in his affidavit based on a recent examination, neither he nor the plaintiff offered competent medical evidence of the existence of significant limitations in that region of the spine that were contemporaneous with the subject accident (see Bleszcz v Hiscock, 69 AD3d 890; Taylor v Flaherty, 65 AD3d 1328; Fung v Uddin, 60 AD3d 992; Gould v Ombrellino, 57 AD3d 608; Kuchero v Tabachnikov, 54 AD3d 729; Ferraro v Ridge Car Serv., 49 AD3d 498). Thus, the plaintiff did not raise a triable issue of fact as to whether she sustained a serious injury under the permanent loss of use, the permanent consequential limitation of use, or the significant limitation of use categories of Insurance Law § 5102(d) (see Bleszcz v Hiscock, 69 AD3d at 891; Taylor v Flaherty, 65 AD3d at 1328-1329; Ferraro v Ridge Car Serv., 49 AD3d at 498).
Further, the plaintiff failed to submit competent medical evidence that the injuries she allegedly sustained in the subject accident rendered her unable to perform substantially all of her usual and customary daily activities for not less than 90 days of the first 180 days subsequent to the subject accident (see Bleszcz v Hiscock, 69 AD3d at 891-892; Sainte-Aime v Ho, 274 AD2d 569). Indeed, the plaintiff submitted no such medical evidence concerning this period of time.

Quiceno v. Mendoza
Baker, McEvoy, Morrisey & Moskovits, P.C., New York, N.Y.
(Timothy M. Sullivan of counsel), for appellants.
Taller & Wizman, P.C., Forest Hills, N.Y. (Y. David Taller
of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Kings County (Ambrosio, J.), dated May 4, 2009, which denied their motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d).
ORDERED that the order is affirmed, with costs.
While we affirm the order appealed from, we do so on grounds different from those relied upon by the Supreme Court. The defendants failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). In support of their motion, the defendants relied on, inter alia, the affirmed medical report of Dr. Michael P. Rafiy, their examining orthopedic surgeon. In his report, Dr. Rafiy noted significant limitations in the range of motion of the plaintiff's right shoulder (see Giacomaro v Wilson, 58 AD3d 802, 803; McGregor v Avellaneda, 50 AD3d 749, 749-750; Wright v AAA Constr. Servs., Inc., 49 AD3d 531). While he concluded that the range of motion was "self-limited," he failed to explain or substantiate, with any objective medical evidence, the basis for his conclusion that the limitations that were noted were self-limited (see Chun Ok Kim v Orourke, 70 AD3d 995; Mondert v Iglesia De Dios Pentecostal Cristo Viene, Inc., 69 AD3d 590, 590-591; Bengaly v Singh, 68 AD3d 1030, 1031; Hi Ock Park-Lee v Voleriaperia, 67 AD3d 734, 734-735; Chang Ai Chung v Levy, 66 AD3d 946, 947; Delacruz v Ostrich Cab Corp., 66 AD3d 818, 819; Cuevas v Compote Cab Corp., 61 AD3d 812; Colon v Chuen Sum Chu, 61 AD3d 805, 806; Torres v Garcia, 59 AD3d 705, 706; Busljeta v Plandome Leasing, Inc., 57 AD3d 469).
Since the defendants failed to meet their prima facie burden, it is unnecessary to consider whether the papers submitted by the plaintiff in opposition to the defendants' motion were sufficient to raise a triable issue of fact (see Chang Ai Chung v Levy, 66 AD3d at 947; Cuevas v Compote Cab Corp., 61 AD3d at 812-813).