Coverage Pointers - Volume XI, No. 6

Dear Coverage Pointers Subscribers:

With Labor Day behind us, the appellate courts are back in business and we can expect interesting coverage decisions to flow within days. It's still a light load for us, but we're gearing up for the onslaught. But have no fear, I'm sitting at home, with glass of red wine to the right and my necktie tossed over the chair. Will you still respect me without a necktie?

DRI Insurance Coverage and Practice Symposium

While you're waiting, don't forget to sign up for the DRI Insurance Coverage and Practice Symposium being held in NYC from Thursday, November 18, 2010 - Friday, November 19, 2010. The theme is "Autumn in New York" and the keynote speakers are insurance regulators from New York and New Jersey. The offerings including the latest in bad faith (both first and third party), handling SIR's and deductibles, witness preparation for insurance industry personnel, EPLI coverage, construction defect litigation as well as ethics offerings.

Plenty of networking opportunities and we can expect in excess of 400 attendees. Click here for registration information and the program brochure. If you have any questions, contact me. If you are an insurer and would like information about incentives to hold panel counsel meetings, we advise you that there are GREAT benefits to doing so. Again, contact me with questions.

LinkedIn - New York Insurance

For those who like interactive discussions on coverage with some of the nation's top practitioners, we founded and maintain the New York Insurance LinkedIn site. Post a question or answer one. Click here to sign up and join the party.

Teaching, Teaching

One of the fun things we have been doing for some 20 years is serving as an Adjunct Professor of Insurance Law at the Buffalo Law School. The semester has started and with the assistance of Audrey Seeley and the backup of Mike Perley, we spend 45 hours during the semester molding the precious minds of 2nd and 3rd year law students, What makes this semester particularly memorable is that our managing partner's (Ann Evanko) son (who I have known from the moment he was born) is in the class and my son Jacob (who has recently joined the insurance industry and is affectionately known as "GEICO Boy") is monitoring the class.

NYIA Column

Audrey and I were delighted to be asked by the New York Insurance Association to contribute a column for the next issue. Focusing on the most nonsensical coverage decisions over the past few months, we hope to do what we try to do best, educate with a smile. Watch for it.

Insurance Coverage Arbitration & Mediation
Resolving the Complex Without the Substantial Costs of Litigation

There are times, more often recently than not, when insurers wish to resolve complex insurance coverage disputes without the expense and costs of trial and without the risk of potentially adverse judicial precedent. We have encouraged the mediation and/or arbitration of complex insurance coverage claims and our office can assist insurers and insureds in bringing reasoned resolution to coverage disputes.

We offer mediation (and arbitration) services and I regularly serve as a mediator, helping craft resolutions to coverage disputes between and amount insurers. Why spend the money and the time to litigate these questions when resolution by mediation or arbitration can bring closure to hotly contested matters in relatively short order for substantially reduced costs, without risking dangerous precedent?

Having been an active coverage practitioner for 30 years, with formal mediation and arbitration training and lots of practical experience, you might consider that alternative to costly and sometimes dangerous coverage litigation.

The best resolution, sometimes, is the one that is secured efficiently and creatively. Experience, scholarship, practicality and common sense sometimes trump a judicial determination.

For information, contact me at 716.849.8942.

Thanks to Steve Fox
In Kathie Fijal's Federal Focus column you will find a review of a recent Eighth Circuit case applying Minnesota law involving the duty to defend under a "Technology E&O" policy by Buffalo attorney Steven Fox. Steve is an artist with business and law degrees who advises on and litigates over internet, copyrights, trademarks, First Amendment, trade secret and publicity rights. We welcome guest submissions.

One Hundred Years Ago: Short Games and Boneheads

I love baseball stories and always have. Some think that sitting through nine innings is the equivalent of watching paint dry and would like to move the game along. Well, a century ago this week, professional ball players purposely tried to play nine innings in as brief a time as possible, and did so:

Washington Post
September 18, 1910

PLAY FASTEST GAME

Mobile and, Atlanta Go Nine Innings in 32 Minutes.

PLAYERS HUSTLE FOR RECORD
Two Teams Go on the Field and Come to the Bat on the Run
Feat Occurs on Last Day of the Southern League

Atlanta, Sept. 17.-Mobile and Atlanta broke the world's time record for a baseball game here this afternoon, when they played a full nine-inning game in 32 minutes, Mobile winning 2 to 1.

This remarkable record was made possible by the two teams going on the field and coming to bat, on the run. Invariably the first ball delivered to each batter was struck at and usually hit, without any effort to "place" It.

Thirty-five assists in the field tells the story. Nevertheless there were some sensational stops and throws, as well as some clever catches by the outfielders.

It was, from the standpoint of the fans, a snappy game, If not "heady."

Editor's Note: Having read that, I knew you were curious about the shortest Major League game in history. It was the first game of a twin-bill in Cincinnati, on the last day of the 1919 season, just after the Reds had clinched the pennant.

Bridgeport Standard Telegram
September 29, 1919

Alexander Shuts Out New Champs;

Giants Win Pair

Eller Loses Pitching Duel;

Barnes Wins First Game for Giants in Record Time: 51 Minutes
Cubs 2 - Reds 0

CINCINNATI, Ohio Sept. 29 -Chicago shut out the National league champions in the closing games of the season here today. Alexander pitched brilliantly, only one of the Reds reaching second base and he was given perfect support. The Cubs, scored in the third after two were' out on a pass to Magee who stole second and came home on Hollocher's single to right. Their second run came in the eighth on a triple by Herzog and a single by Merkle.

Editor's Note: Fred Merkle, who had the second RBI, is known as "Bonehead Merkle" for a running gaffe that ended up causing the Giants to lose the pennant to the Cubs in 1908. That's a good story, too.

From Steve "The Pied" Peiper of Property and Potpourri:

Another two weeks of nutin'. The Appellate Divisions must be like Punxsutawney Phil seeing their respective shadows, and retreating for two more weeks of summer. No complaining from this author, though. I am sure business will pick up as the leaves begin to change. For now, we have two recent First Department decisions on interpreting contractual obligations. Please peruse at your leisure.

On the training front, a call goes out again for the New York Bar Association's annual Law School for Claims Professionals. If you have any interest in attending what will surely be a useful program, please drop me a line at [email protected]. See you in Oktoberfest.

Steve

Highlights of this Week's Issue of Coverage Pointers (attached):

KOHANE'S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • Since "Use and Operation" of a Motor Vehicle Was Conceded in Slip and Fall Case, Exclusion for Motor Vehicle Accidents Applies to Deny Coverage

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

  • Plaintiff's Failure to Address Pre-Existing Degenerative Conditions Warrants Granting of Defendants' Motion

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

  • Instead of Judges and Arbitrators deciding No-Fault issues taking a summer vacation they decided to take an early September vacation. Unfortunately, we have nothing to review this edition.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]

  • Venue Appropriate Where Documents and Parties Were Located Within New York
  • Broad "Promise to Pay" Language Creates a Recovery for Attorneys' Fees

FIJAL'S FEDERAL FOCUS
Katherine A. Fijal

[email protected]

  • Applying Minnesota Law - On-line Eyeblaster widens View of Duty to Defend
  • Applying Wyoming Law - Duty to Defend in Construction Defect Case; and, Insurer's Request to Recoup Defense Costs Paid

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

  • Court Finds Triable Issue of Fact as to the Reasonableness of Plaintiff's Delay in Providing Notice of Claim where Injured Party told Plaintiff that he would only file a Workers' Compensation Claim
  • Court Permits Petitioner to bring an Action against the Motor Vehicle Accident Indemnification Corporation
  • Where Reinsurance Treaty Contains a "Follow the Fortunes" Clause, Reinsurer is not permitted to "Second Guess" Settlement

EARL'S PEARLS
Earl K. Cantwell

[email protected]

Do Arbitrators Decide Arbitrability?

Stay tuned for another exciting newsletter in just two short weeks.

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
Diane F. Bosse

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
Diane F. Bosse

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
Earl’s Pearls
Across Borders

KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]

9/14/10            DMP Construction Corp. v. Essex Insurance Company
Appellate Division, First Department
Since “Use and Operation” of a Motor Vehicle Was Conceded in Slip and Fall Case, Exclusion for Motor Vehicle Accidents Applies to Deny Coverage
The underlying action was a slip and fall case against the property owner, Beechwood.  It was claimed that Beechwood allowed a parking lot to remain in an uneven, snowy and icy condition. The plaintiff’s father claimed that his vehicle remained in its parking spot, and his daughter fell near the passenger door as "she was coming to the car to get in."
Beechwood filed a third-party complaint against the father and DMP, an excavation contractor. Beechwood alleged that the father was negligent because he allowed his vehicle to either move or come into contact with his daughter as she tried to enter it and that DMP was negligent in performing snow removal work. Beechwood also sought contractual indemnification from DMP and damages for DMP's alleged failure to name it as an additional insured on DMP's commercial general liability (CGL) policy with Essex.
Essex disclaimed coverage on the grounds that the CGL policy excluded coverage for snow removal operations and for any personal injuries arising out of the use of "any auto," whether owned by the insured or not, and that there was no coverage pursuant to the policy's "Contractual Liability Limitation" and "Breach of Contract" endorsements. 
Essex has no duty to defend, because the policy's unambiguous "auto exclusion" bars even the potential for coverage of the underlying claim.  Interestingly, DMP conceded that the accident arose out of the use of the father's vehicle but argued that the exclusion was ambiguous.  
The auto exclusion provides:
"This insurance does not apply to bodily injury . . . arising out of, caused by or contributed to by the ownership, non-ownership, maintenance, use or entrustment to others of any auto.' Use includes operation and loading and unloading.'"
The plain meaning of this language, which focuses on the connection between a vehicle and the injury, not between a vehicle and the insured, is that bodily injury occurring as described is not covered, whether or not it is the insured who owned, maintained, used or entrusted to others the subject automobile.
Editor’s Note:  We have to wonder aloud what would have happened if DMP did not concede that this arose out of the use an operation of a motor vehicle.  Did it?

MARGO’S MUSINGS ON SERIOUS INJURY UNDER NEW YORK NO FAULT
Margo M. Lagueras
[email protected]

9/07/10                Farrington v. Go On Time Car Service
Appellate Division, First Department
Plaintiff’s Failure to Address Pre-Existing Degenerative Conditions Warrants Granting of Defendants’ Motion

The trial court is reversed on the law but with a lengthy dissent.  The majority notes that even where there is objective proof of injury, summary judgment may be warranted when contributory factors, such as pre-existing degenerative conditions, interrupt the chain of causation between the injury and the accident.

The plaintiff claimed injuries to her head, neck, back, shoulder and left knee.  In support of their motion, the defendants presented the reports of a neurologist, an orthopedic surgeon, and a radiologist.  All basically noted normal exams, with the exception of degenerative changes “common for a person of her age, physique and preexisting scoliosis.”  Defendants’ experts reviewed cervical, lumbar and left knee MRIs taken two months after the accident, as well as reports from the plaintiff’s treating physicians and did not find evidence of trauma-related injury.  The appellate court determined that the trial court should have dismissed the complaint because the plaintiff’s experts did not address the pre-existing degenerative conditions and because the plaintiff’s own deposition testimony showed she did not sustain an injury under the 90/180-day category.

The two-judge dissent found the defendants’ experts’ reports conclusory, stating that there was no “persuasive” evidence of pre-existing injury and that the plaintiff only complained of pain after the accident.  According to the dissent, the defendants’ experts found “no correlation” between the positive findings in the MRI reports and the examination, and degeneration “consistent” with a pre-existing condition, but did not address other positive findings in the MRIs and their statements regarding correlation and consistency were conclusory.  The dissent opined that conclusory expert affidavits, that a previously asymptomatic plaintiff suffers from degenerative changes which are the cause of her complaints, do not shift the burden to the plaintiff.

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

Instead of Judges and Arbitrators deciding No-Fault issues taking a summer vacation they decided to take an early September vacation.  Unfortunately, we have nothing to review this edition.  However, I would like to take the opportunity again to offer training beginning this fall.  We can provide training on: 

  • The basics of adjusting a No-Fault claim;
  • A more in depth look at verification issues;
  • What to do if the eligible injured person has a pre-existing or subsequently injury;
  • Obtaining a thorough IME or peer review;
  • Drafting a denial;
  • Handling a lost wage claim;
  • Is there lack of cooperation;
  • Preparing arbitration evidence submissions and appearing at an arbitration;
  • Does this claim arise out of the use and operation of motor vehicle; and
  • Current issues and trends in the No-Fault law.

We can always address those issues that are most pressing within the training session.  If you are interested please feel free to email me at [email protected].

Finally, November 18-19 in NYC there is a great DRI, Insurance Law program that our own Dan Kohane put together.  If you need information on how to sign up please feel free to email us.

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

9/07/10                Nama Holdings, LLC v Greenberg Traurig, LLP
Appellate Division, First Department
Venue Appropriate Where Documents and Parties Were Located Within New York
Defendants immediately filed a motion to dismiss in the above-captioned matter.  Apparently, prior to this action, the parties had been engaged in a heated arbitration in California.  Defendants’ relied, in part, on a “forum selection” clause which required that all proceedings arising from the arbitration dispute be litigated somewhere outside of New York (the court doesn’t tell us where).  However, as the First Department ruled that the instant matter was really a plenary, albeit related matter to the arbitration, the forum selection did not apply.

Defendants also moved to dismiss plaintiff’s claims on forum non-conveniens grounds.  In support of its decision, the First Department noted that three of the defendants were residents of New York, several documents relevant to the litigation were located in New York, and no defendant was able to demonstrate prejudice or inconvenience over litigating their dispute before a New York court.  Accordingly, the Court ruled that New York was an appropriate and acceptable place to venue the action.  

9/07/10                Nigri v Liberty Apparel Company, Inc.
Appellate Division, First Department
Broad “Promise to Pay” Language Creates a Recovery for Attorneys’ Fees
Prior to this action, plaintiff and defendant entered into a contract which provided that Nigri would pay for one-half of all defense costs incurred by Liberty in actions “customs matters.”  When Liberty incurred legal fees in defense of a custom matter, it sought reimbursement from Nigri pursuant to the terms of the contract. Nigri, not surprisingly, opposed Liberty’s efforts for reimbursement.

In short, Nigri argued that because the contractual clause at issue did not include a specific reference to attorneys’ fees Liberty had no right of reimbursement.  The First Department was not persuaded by Nigri’s argument, and instead noted that the clause’s reference to “all claims actions, litigations and other liabilities, costs and expenses” was broad enough so as to include attorneys’ fees.  Accordingly, defendant’s counter-claim for attorneys’ fees was granted. 

FIJAL’S FEDERAL FOCUS
Katherine A. Fijal
[email protected]

7/23/10      Eyeblaster, Inc. v. Federal Insurance Company
United States District Court for the Eighth Circuit
Applying Minnesota Law - On-line Eyeblaster Widens View of Duty to Defend

The insurer must defend claims that on-line business damaged a third party's computer, held a Federal Appeal Court, reversing summary judgment.

The insured, Eyeblaster, Inc., creates on-line advertising campaigns for its customers' web sites. JavaScript, Flash and cookies are its main tools.  The plaintiff in the underlying action claimed that Eyeblaster's software (a)
caused his computer to freeze; (b) caused loss of data; and (c) causes repeated pop-ups, slower performance, crashes and browser hijacks.

The insurer denied general liability coverage, arguing that problems with software are not covered because "tangible property" excludes "any software, data or other information that is in electronic form." The Court focused on
allegations that the computer itself froze, slowed, crashed and was hijacked; and thus, concluded property damage, "loss of use of tangible property that is not physically injured," was claimed. 

The insurer argued that notwithstanding property damage, the exclusion for "impaired property" supported its rejection of coverage because harm to the computer was due to damage "aris[ing] out of any defect, deficiency, inadequacy, or dangerous condition in Eyeblaster's product or work."  The Court rejected this argument, noting that to be impaired property, the computer must be able to be restored to use by "the repair, replacement, adjustment or removal of your [Eyeblaster's] product or your work."  Yet, "It is not clear that an Eyeblaster product or Eyeblaster's work ever existed on Sefton's computer, and thus it is equally unclear that such product or work could be removed from the computer."

The Information and Network Technology Errors or Omissions policy covers loss for financial injury caused by a wrongful act that results in the failure of Eyeblaster's product to perform its intended function or to serve its intended purpose. "Financial injury" is defined as economic injury resulting from property that cannot be used or is less useful.  A "wrongful act" is an error, an unintentional omission, or a negligent act.  Thus, the policy covers harm from intentional, non-negligent acts but not from intentionally wrongful conduct. Yes, installing cookies, Flash and JavaScript on a third-party's computer are intentional acts; but, not negligent nor wrongful ones.

This decision reminds us that a general reading of a complaint is insufficient.  The general statements in the underlying action complained of problems with the operating system, the browser, and infected financial data-digital material not covered by insurance.  Yet, claims of a frozen, slowed, crashed and hijacked computer amounted to allegations of covered property damage.
Editor’s Note:  This submission is from Buffalo attorney Steven Fox, of Steven Fox, P.C.  Steven Fox is an artist with business and law degrees who advises on and litigates over internet, copyrights, trademarks, First Amendment, trade secret and publicity rights. 

9/7/10      Employers Mutual Casualty Company v. Bartile Roofs Inc.
United States District Court for the Tenth Circuit
Applying Wyoming Law – Duty to Defend in Construction Defect Case; and,
Insurer’s Request to Recoup Defense Costs Paid
In mid-2001, FS Jackson Hole Development Company, LLC [“Owner”], hired Jacobsen Construction Company [“Jacobsen”] to construct the Four Seasons Resort Jackson Hole in Teton Village, Wyoming.  As the general contractor, Jacobsen subcontracted the roofing work to Bartile.  Bartile began work on the construction project in November 2002 and substantially completed its activities in February 2004.  Bartile finished all of its work on the hotel in October, 2005.

In March, 2004 Jacobsen filed a civil action against the Owner in California state court.  The Owner countered with a cross-complaint against Jacobsen, alleging various defect in the construction.   In October, 2004 Jacobsen filed a cross-complaint against Bartile and other subcontractors.  The project architect also filed a cross-complaint against Bartile in April, 2006, which was amended in July, 2007 alleging essentially the same claims as Jacobsen.

In November, 2004, Bartile requested defense and indemnification against these claims, pursuant to the CGL policies issued by Employers Mutual Casualty Company [“EMC”].  In October, 2005, EMC agreed to provide a defense; however, EMC reserved its right to investigate the claims further and “to deny coverage for part or all of the claimed damage.”  In August, 2007, EMC issued a second letter to Bartile in which it announced that the claims “were not covered by the policy.”  Although EMC stated that it would continue to defend Bartile in this litigation, EMC reserved the right to enforce any rights it may have to recoup defense costs from Bartile should it be determined that EMC had no duty to defend Bartile in this litigation.

In August, 2007, EMC filed a declaratory judgment action in U.S. District Court for the District of Wyoming.  EMC argued it had no duty to defend and that it was entitled to recoupment of attorneys’ fees it had already paid while defending Bartile. In December, 2007, EMC moved for summary judgment. Bartile also moved to dismiss the federal claims for lack of personal jurisdiction and improper venue and, in the alternative, asked the district court to transfer the action to the U.S. District Court for the District of Utah.

In March, 2008, the district court denied Bartile’s motion to dismiss and the motion for transfer venue.  In August, 2008, the district court granted the motion for summary judgment in so much as it agreed that EMC did not owe Bartile a defense; however, denied that part of EMC’s motion which sought recoupment of defense costs.   Bartile filed an appeal and EMC a cross-appeal.

We address only the court’s decision regarding EMC’s motion and subsequent cross-appeal.  In you are interested there is a detailed discussion on Wyoming Choice of Law, venue and forum non conveniens.  The district court applied Wyoming law because it found no actual conflict between the laws of Wyoming and Utah.  The Circuit Court found that although the laws of Wyoming and Utah undeniably did conflict in certain respects, it affirmed the district court’s decision because the conflict was not material and would not produce a different outcome.

In general, under Wyoming and Utah law, courts determine the scope of an insurer’s duty to defend by comparing the language of the insurance policy with the allegations of the complaint.  The insurer is obligated to afford a defense as song as the alleged claim rationally falls within the policy coverage.

In this action, EMC issued a series of CGL policies to Bartile, covering the period from 11/1/01 to 11/1/04.  The duty to defend clauses in the policies were all the same:  “We will pay those sums that the insured becomes legally obligated to pay as damages because of . . “property damage” to which this insurance applies.  We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against and “suit” seeking damages for. . “property damage” to which this insurance does not apply. 

In finding that EMC had no duty to defend the court determined that neither Wyoming nor Utah law would allow the admission of extrinsic evidence to determine the scope of EMC’s duty to defend. 

In each of the CGL policies, EMC assumes the duty to defend against any “suit” seeking damages because of property damage.  The term “suit” refers to a civil proceeding in which a party alleges the existence of damages within the coverage of the applicable CGL policy.

The Circuit Court also addressed how the courts in Wyoming and Utah would define the word “accident” when determining whether EMC had a duty to defend.   In Wyoming the courts define the term accident as “a fortuitous circumstance, event or happening, an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens, an unusual fortuitous, unexpected, unforeseen or unlooked for event, happening or occurrence;  . .  chance or contingency; fortune; mishap; some sudden and unexpected event taking place without expectation, upon the instant, rather than something which continues, progresses or develops. The focus is on the unexpectedness of the event.

The Court held that even though the underlying complaints pled claims under several labels, the claims all arise out of Bartile’s allegedly negligent roofing work and its alleged breach of its contractual duties to perform roofing work, indemnify the general contractor, and obtain insurance for the general contractor.  The natural results of an insured’s negligent and unworkmanlike construction do not constitute an occurrence triggering coverage under a CGL policy.

As to EMC’s motion to recoupment of costs the district court denied EMC’s motion and the Tenth Circuit affirmed holding that under Wyoming law courts disfavor insurer’s attempts to defend insureds while retaining the right to deny coverage and recoup defense costs at a later date.  The court held that an insurer is not permitted to unilaterally modify and change policy coverage.  Further stating that a reservation of rights letters does not create a contract allowing an insurer to recoup defense costs from its insureds – if an insurance carrier believes that no coverage exists, then it should deny its insured a defense at the beginning instead of defending and later attempting to recoup from its insured the costs of defending the underlying action.

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

9/2/10                  Jaguar Constr. Corp. v. Everest Natl. Ins. Co.
Supreme Court, Nassau County
Court Finds Triable Issue of Fact as to the Reasonableness of Plaintiff’s Delay in Providing Notice of Claim where Injured Party told Plaintiff that he would only file a Workers’ Compensation Claim
This case arises out of a bodily injury action involving Alfonso Salano.  The underlying action alleged that while Salano was employed at a construction site, he was struck by a steel beam that fell on him causing serious injury.  Plaintiff was the general contractor and project manager on the site and hired Testani, Salano’s employer, to perform demolition work. 

After being injured, Salano was taken to the hospital.  Plaintiff alleged that Salano advised it that he would only make a workers’ compensation claim, and would not file a claim against plaintiff.  Immediately thereafter, Salano did file a workers’ compensation claim.  It was not until almost three years later that Salano also filed a lawsuit against plaintiff.  After receiving the summons and complaint, plaintiff forwarded it to its broker who placed defendant, plaintiff’s insurer, on notice of the incident and suit. 

Defendant refused to defend or indemnify plaintiff on the ground that the “loss was not reported to [defendant] as soon as practicable.”  In addition, Testani’s insurer also disclaimed coverage to plaintiff, who qualified as an additional insured under Testani’s policy, based on late notice. 

Plaintiff then commenced this suit and defendant moved for summary judgment.  The court held that defendant made a prima facie showing of entitled to judgment based upon plaintiff’s delay in reporting the underlying occurrence.  However, plaintiff met its burden of creating a triable issue of fact as to the reasonableness of its delay in providing such notice.  Accordingly, defendant’s motion for summary judgment was denied.    

8/31/10                Armstrong v. Motor Veh. Acc. Indem. Corp.
Supreme Court, New York County
Court Permits Petitioner to bring an Action against the Motor Vehicle Accident Indemnification Corporation
In an unopposed motion, the court granted an order permitting petitioner to bring an action against the Motor Vehicle Accident Indemnification Corporation.  The court held that petitioner qualified under applicable Insurance Laws including §5208 by showing that she:  suffered bodily injury; was not insured under any auto policy; was a resident of New York; was struck by a vehicle that she could not, with due diligence, ascertain the owner of; obtained a police report within twenty-four hours; and filed a Notice of Intention to Make Claim within 90 days. 

8/17/10                United States Fidelity & Guaranty Co. v. American Re-Insurance Co. 
Supreme Court, New York County
Where Re-insurance Treaty Contains a “Follow the Fortunes” Clause, Reinsurer is not permitted to “Second Guess” Settlement
Between 1948 and 1960, plaintiff issued a number of liability policies to Western Asbestos Company, a company that sold and distributed insulation products containing asbestos.  Thereafter, Western Asbestos ran into financial trouble and, in turn, most of its assets were purchased by Western MacArthur.  In the late 1970s, individuals injured by asbestos began suing Western MacArthur, on its own, and as successor to Western Asbestos. 

The underlying action to this matter was commenced against plaintiff and two other Western Asbestos insurers seeking a declaration that they had a duty to defend and indemnify Western MacArthur against asbestos-related personal injury claims.  After years of litigation, in June 2002, the parties reached a settlement in which plaintiff agreed to pay $975 million plus interest for asbestos-related claims.  The settlement was allocated to pay prior judgments, current and future claims, all costs and fees associated with the handling and defense of the action, and the injured parties’ counsels’ fees.

With that backdrop, this action involves a May 1956 reinsurance treaty entered into by plaintiff and defendant.  Pursuant to the treaty, defendant agreed to pay plaintiff 50% of the excess over $100,000 for any one loss, up to a limit of $3 million per loss, paid by plaintiff in connection with direct insurance policies in force, issued, or renewed by plaintiff, on or before January 1, 1959.  The reinsurance treaty also contained a “follow the fortunes” clause, which provided, as follows:

All claims in which this reinsurance is involved, when allowed by the Company [plaintiff], shall be binding upon the Reinsurers, which shall be bound to pay or allow, as the case may be, their proportion of such loss…the Company shall have the right to defend, settle or compromise any such claims, suit or proceedings, and such action on the part of the company shall be binding upon the Reinsurers.   

Defendant now contends that, pursuant to the treaty, it has no obligation to reimburse plaintiff for payment to asbestos claimants who received $100,000 or less of plaintiff’s money.  Additionally, the underlying policies plaintiff’s issued only covered losses of up to $200,000 per person.  Thus, defendant has no obligation to pay amounts in excess of $200,000 to any person.  Further, according to defendant, the payments made by plaintiff could go to individuals exposed to asbestos after 1960 (the date the last policy issued by plaintiff expired).  As these payments are beyond the scope anticipated by the reinsurance treaty, the payments are not covered by defendant.  Moreover, defendants lastly assert that in order to recover under the treaty plaintiff must show that the individuals receiving payments were exposed to Western Asbestos’ product, and not one of the other companies that also participated in the settlement. 

After reviewing the facts, the court held that the purpose of the “follow the fortunes” doctrine in reinsurance law is to prevent the reinsurer from “second guessing” the settlement decision of the ceding company.  In other words, it is intended to avoid re-litigating coverage issues under the insured’s policies and to promote good faith settlement of the insured’s claim.  Accordingly, the court reasoned that the treaty of reinsurance addresses losses pursuant to the underlying policy, not the actual recovery by individual claimants.  In addition, under the follow the “follow the fortunes” doctrine, the standard by which a settlement agreement is judged is whether the cedent’s good faith payment is at least arguably within the scope of the insurance coverage that was reinsured.  The court, therefore, denied defendant’s motion for summary judgment.    

(It is noted that the above decision is lengthy and discusses four separate motions.  Accordingly, my review is limited to the central motion decided by the court). 

EARL’S PEARLS
Earl K. Cantwell

[email protected]


DO ARBITRATORS DECIDE ARBITRABILITY?

A recurring question before, during, and after arbitration awards is what happens when there is a dispute as a matter of law or fact on what claims and issues are subject to arbitration, and (to a certain extent) are there certain items or matters the arbitrator may not take into account in rendering a decision or which are not submitted to arbitration.  Many arbitration agreements do not clearly specify whether the arbitrator decides such issues of “arbitrability” or whether the scope and extent of the arbitration should be set by the courts and then turned over to the arbitrator.  Who decides, courts or the arbitrator, whether and what parts of a dispute are arbitrable?  This is supposedly a question resolved based on the parties’ “intent”, as to which there is often very little evidence or indication other than the terms of any arbitration agreement.  This issue recently went as high as the New York Court of Appeals in Life Receivables Trust v. Goshawk Syndicate, 14 N.Y.3d 850 (May 4, 2010).

While Goshawk was an unsigned “memorandum” decision, it does briefly note and address some of the issues and problems if parties do not take time to set out the scope of the arbitration, and if a dispute arises with respect thereto who decides the issue(s).

In Goshawk, the Appellate Division had ruled that the parties in their agreement had given all arbitrability issues to the arbitrator.  The Court of Appeals affirmed this decision through the expedient of noting that the parties had adopted rules of the American Arbitration Association which include a provision authorizing an arbitration panel to “rule on its own jurisdiction”.  Note that this decision was not based on expressed intent of the parties, and not by anything specifically in the arbitration agreement, but by third hand reference to the rules of the selected arbitration forum.

One potentially confusing issue which was addressed in the Appellate Division decision was that the parties’ arbitration agreement also asserted a right to challenge the arbitrators’ determination on grounds that the panel made an error of law.  That provision was found to be not applicable in this case, with the courts finding the issue necessarily included among the arbitrability issues that the parties’ agreement reflected would be decided by the arbitrators.  Without citing any specific negotiations, or terms of the arbitration agreement, the Court of Appeals wrote that there was “clear and unmistakable” evidence that the parties had agreed to arbitrate questions of arbitrability, although this really appeared to be a default situation drilling down to referring to the rules of the arbitration forum absent any better evidence.

The caution and advice is to pay attention in drafting arbitration agreements to define the limits and scope of the matters to be submitted to the arbitrator, and what relief or decisions the arbitrator is being requested to make.  The parties should also express in the arbitration agreement who is to define and decide such questions of arbitrability in the event of a dispute.  For example, if there are threshold legal issues to be considered, are those to be determined by the courts where, for example, there may be a right to appeal, or by the arbitrator where there is very limited appeal.  Another related issue is that, if there are some issues of law the arbitrator will inherently have to decide in rendering a decision in the case, to what extent will the parties seek a court ruling on such issues prior to arbitration or whether the arbitrator is empowered to decide such legal issues, again as to which there is little or no appeal.

Thoughtful consideration of these issues in the first instance and specific provision in any arbitration agreement seems preferable to what occurred in the Goshawk case where the decision was ultimately determined by “default” reference to the particular rules of the arbitration forum. 

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

9/13/10                Positive Software Solutions, Inc. v. New Century Mortgage Corp.
Fifth Circuit Court of Appeals
District Court Does Not Have Inherent Authority To Impose Sanctions On Attorney For Conduct During Arbitration
After granting a motion to compel arbitration pursuant to a contract between the entity parties, the district court, using its inherent authority, sanctioned counsel for one of the parties for conduct during the arbitration. The Court of Appeals for the Fifth Circuit reversed. Reviewing the district court’s invocation of its inherent powers de novo and the sanctions granted for abuse of discretion, the court held that the district court lacked the inherent authority to sanction counsel for her actions during arbitration. The court noted that, under Fifth Circuit precedent, a district court had the inherent authority to impose sanctions “in order to control the litigation before it.” However, the court rejected the district court’s conclusion that the arbitration was not a collateral proceeding and outside the scope of its powers, but instead was an “annex” to litigation. The court noted that allowing the district court to assert its authority in an arbitration would undermine the very purpose of an arbitration –“the provision of a relatively quick, efficient and informal means of private dispute settlement.” The court also rejected appellants argument that the district court had inherent authority over the arbitration because it was court-ordered. The court also stated that the sanctions at issue failed to comport with the Federal Arbitration Act which grants district courts the limited authority to determine (1) whether arbitration should be compelled and (2) whether an arbitration award should be affirmed, vacated or modified. The authority to sanction was thus vested in the arbitrator, not the district court. Finally, the court stated that a sanctions order like the one at issue “threatens unduly to inflate the judiciary’s role in arbitration,” and would turn the court into “a roving commission to supervise a private method of dispute resolution and exert authority that is reserved, by statute, case law, and longstanding practice, to the arbitrator.”
Submitted by: Linda S. Woolf, Goodell, DeVries, Leech & Dann, LLP

REPORTED DECISIONS


DMP Contracting Corp. v. Essex Insurance Company


VoutÉ, Lohrfink, Magro & Collins, LLP, White Plains (Elliot
A. Cristantello of counsel), for appellant.
Clausen Miller PC, Chicago, IL (Kimberly A. Hartman of the
Bars of the States of Maryland and Illinois admitted pro hac
vice, of counsel), for respondent.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered on or about September 19, 2008, which denied plaintiff's motion for leave to amend the complaint and for summary judgment against defendant Essex Insurance Company, and granted Essex's cross motion for summary judgment dismissing the complaint as against it, unanimously modified, on the law, to declare that Essex is not obligated to defend plaintiff in the underlying personal injury action, and otherwise affirmed.
In the underlying slip and fall action, the property owner Beechwood was sued for negligently allowing a parking lot to remain in an uneven, snowy and icy condition. According to the deposition testimony of the injured plaintiff, the plaintiff's father moved his vehicle out of its parking spot and she slipped as she pulled the handle to open the vehicle's door. While the father claimed that his vehicle remained in its parking spot, he testified similarly that his daughter fell near the passenger door as "she was coming to the car to get in."
Beechwood filed a third-party complaint against the father and DMP, an excavation contractor. Beechwood alleged that the father was negligent because he allowed his vehicle to either move or come into contact with his daughter as she tried to enter it and that DMP was negligent in performing snow removal work. Beechwood also sought contractual indemnification from DMP and damages for DMP's alleged failure to name it as an additional insured on DMP's commercial general liability (CGL) policy with Essex.
Essex disclaimed coverage on the grounds that the CGL policy excluded coverage for snow removal operations and for any personal injuries arising out of the use of "any auto," whether owned by the insured or not, and that there was no coverage pursuant to the policy's "Contractual Liability Limitation" and "Breach of Contract" endorsements. In response, DMP filed this action seeking a declaration that Essex had a duty to defend. Thereafter, DMP's motion for summary judgment dismissing the third-party complaint in the underlying action, based on DMP's claim that it had no duty and did not perform snow removal, was granted on default. When negotiations between DMP and Essex to settle DMP's claim for defense costs failed, the motions that were decided by the order on appeal followed.
A duty to defend exists whenever the allegations in the complaint in the underlying action, construed liberally, suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing such a reasonable possibility (see Automobile Ins. Co. of Hartford v Cook, 7 NY3d 131, 137 [2006]; Frontier Insulation Contrs. v Merchants Mut. Ins. Co., 91 NY2d 169, 175 [1997]). "Any . . . exclusion []
. . . from policy coverage must be specific and clear in order to be enforced" (Seaboard Sur. Co. v Gillette Co., 64 NY2d 304, 311 [1984]), and "an ambiguity in an exclusionary clause must be construed most strongly against the insurer "(Guachichulca v Laszlo N. Tauber & Assoc., LLC, 37 AD3d 760, 761 [2007]).
The test for ambiguity is whether the language of the insurance contract is "susceptible of two reasonable interpretations" (State of New York v Home Indem. Co., 66 NY2d 669, 671 [1985]). In this regard, insurance contracts should be read in light of common speech (Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390, 398 [1983]), and "are to be interpreted according to the reasonable expectations and purposes of ordinary businesspeople when making ordinary business contracts" (City of New York v Evanston Ins. Co., 39 AD3d 153, 156 [2007]). The plain meaning of the policy's language may not be disregarded to find an ambiguity where none exists (see Bassuk Bros. v Utica First Ins. Co., 1 AD3d 470 [2003], lv dismissed 3 NY3d 696 [2004]).
Applying these principles, Essex has no duty to defend, because the policy's unambiguous "auto exclusion" bars even the potential for coverage of the underlying claim (see American Guar. & Liab. Ins. Co. v Hoffman, 61 AD3d 410 [2009]).
Because DMP concedes that the accident arose out of the use of the father's vehicle, we do not decide the issue (compare Mount Vernon Fire. Ins. Co. v Creative Housing Ltd., 88 NY2d 347, 350-51 [1996] ["arising out of" language in an insurance exclusion clause is unambiguous and is to be applied broadly in the form of a "but-for" test in determining coverage] with D'Avilar v Folks Elec. Inc., 67 AD3d 472, 472 [2009] ["the law draws a distinction between a condition that merely sets the occasion for and facilitated an accident and an act that is a proximate cause of the accident"]; see also Cowan Systems, Inc. v Harelysville Mutual Ins. Co., 457 F.3d 368 [4th Cir. 2006]).
DMP does contend that the auto exclusion is unusual, unfair and ambiguous and should be construed in favor of coverage. This argument is without merit.
The auto exclusion provides:
"This insurance does not apply to bodily injury'
. . . arising out of, caused by or contributed to by
the ownership, non-ownership, maintenance, use or entrustment to others of any auto.' Use includes
operation and loading and unloading.'"
The plain meaning of this language, which focuses on the connection between a vehicle and the injury, not between a vehicle and the insured, is that bodily injury occurring as described is not covered, whether or not it is the insured who owned, maintained, used or entrusted to others the subject automobile (see e.g. Allstate Insurance Company v Naai, 684 F Supp 2d 1220, 1230-1231 [Hawaii 2010]; Mosher v Essex Ins. Co., 2009 WL 1693218, *5, 2009 Mich App LEXIS 1342, *12-13 [Mich Ct App 2009]; Essex Ins. Co. v Neely, 2008 WL 619194, *9-10, 2008 US Dist LEXIS 16615, *24-28 [ND WV 2008]). Thus, as the trial court found, "[a] fair reading of the policy and the plain language of the provision should have placed the insured on notice that the provision was applicable to the use' of any auto' regardless of ownership[,] [t]hus[] providing the insured with the opportunity to question or renegotiate coverage."
Plaintiff's allegations of bad faith are unsupported by evidence sufficient to warrant a finding that Essex's disclaimer of coverage constituted "gross disregard" of plaintiff's interests (see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 452—453 [1993]).
We have considered plaintiff's remaining arguments and find them unavailing.
Farrington v. Go On Time Car Service


Baker, McEvoy, Morrissey & Moskovits, P.C., New York
(Steven N. Feinman of counsel), for appellant.
Silbowitz, Garafola, Silbowitz & Schatz, New York (David M.
Kert of counsel), for respondent.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about September 16, 2009, which denied defendant Chavez's motion for summary judgment dismissing the complaint, reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against that defendant.
The court properly concluded that defendant, through his medical experts, made a prima facie showing that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) in her accident on January 13, 2008. Indeed, even where there is objective medical proof of an injury, summary dismissal of a serious injury claim may be appropriate when additional contributory factors, such as preexisting conditions, interrupt the chain of causation between the accident and the claimed injury (see Pommells v Perez, 4 NY3d 566, 572 [2005]). Here, plaintiff claims she suffered degenerative disc herniations and disc bulges in her lower back as a result of the accident, as well as injuries to her head, neck, shoulder and left knee. Chavez supported his motion with the reports of three physicians. Neurologist Michael J. Carciente, who examined plaintiff on March 18, 2009, opined that there were no objective findings such as myotomal weakness, dermatomal sensory deficits, asymmetric reflexes or atrophy supporting the presence of a cervical or lumbosacral radiculopathy. Dr. Carciente concluded that there was no evidence of a causally related neurological injury or disability, or the need for any specific neurological treatment in reference to the accident. Orthopedic surgeon John H. Buckner, who also examined plaintiff 14 months after the accident, concluded that her spinal examination was normal except for degenerative changes common for a person of her age, physique and preexisting scoliosis. In particular, Dr. Buckner noted that the ranges of motion of plaintiff's cervical spine were greater than most standard tables, while those of her thoracic and lumbar spine were lower. He attributed the difference to preexisting idiopathic scoliosis unrelated to any injury. Dr. Buckner also opined that MRI findings with respect to plaintiff's left knee were indicative of a preexisting condition. In this respect, he also noted that the first medical report submitted for his review, which is dated a month after the accident, does not mention complaints of left knee pain or injury. David A. Fisher, a radiologist, reviewed MRIs of plaintiff's cervical and lumbar spine and left knee which were taken two months after the accident. As to the spinal MRIs, Dr. Fisher found degenerative changes consistent with a preexisting condition. He further opined that there was no radiographic evidence of recent traumatic or causally related injury to plaintiff's cervical or lumbar spine, or to the left knee. Hardly conclusory, the reports of all of defendants' examining physicians cite cervical, lumbar and left knee MRIs taken two months after the accident. In addition, the reports of Drs. Carciente and Buckner recite a review of reports prepared by plaintiff's treating physicians.
Notwithstanding Chavez's prima facie showing that plaintiff did not suffer a serious injury, the court denied his motion, finding the reports of plaintiff's physicians sufficient to enable her to survive the motion for summary judgment. This was error because plaintiff's physicians did not address the medical
findings of preexisting degenerative conditions (see e.g. Depena v Sylla, 63 AD3d 504, 505 [2009], lv denied 13 NY3d 706 [2009]; Valentin v Pomilla, 59 AD3d 184 [2009]; cf. Linton v Nawaz, 62 AD3d 434 [2009], affd 14 NY3d 821 [2010]). In addition, plaintiff's deposition testimony that she stayed home for a few days after the accident and lost no time from work demonstrates prima facie that she did not sustain a 90/180-day injury (see Cruz v Aponte, 60 AD3d 431, 432 [2009]), and the medical evidence she submitted in opposition to defendant's motion fails to substantiate any qualifying injury or impairment (Nelson v Distant, 308 AD2d 338, 339-340 [2003]).
All concur except Moskowitz and Manzanet-Daniels, JJ. who dissent in part in a memorandum by Manzanet-Daniels, J. as follows:

MANZANET-DANIELS, J. (dissenting in part)
I take issue with the majority's conclusion that plaintiff's medical evidence failed to address defendant's alleged expert opinions that her claimed limitations are the result of preexisting conditions and not attributable to the January 13, 2008 accident.
Defendant's experts merely alleged, in entirely conclusory terms, that plaintiff's injuries were attributable to a "pre-existing condition." In this case there is no "persuasive" evidence of a pre-existing injury of the type described in Pommells v Perez (4 NY3d 566 [2005]). Because I believe these conclusory assertions do not satisfy defendant Chavez's burden on a motion to dismiss for lack of serious physical injury, the burden never shifted to plaintiff. Even assuming the burden had shifted to plaintiff, the affirmations of plaintiff's treating physicians and experts more than sufficed to raise a triable issue of fact. Plaintiff's treating physicians and experts, upon examination and after considering all of the medical records, unequivocally opined that her injuries were caused by the January 13, 2008 accident. Therefore, I respectfully dissent.
The record evidence herein shows that plaintiff, 49 years old, had never suffered prior injuries to her neck, back or left knee. Prior to the accident, she was asymptomatic. Only after the accident did she complain of neck, back and knee pain. She was found, upon examination, to have range-of-motion limitations in the left knee and in the cervical and lumbar spine. A cervical EMG showed the existence of left-sided C-7 radiculopathy and bilateral median sensory entrapment neuropathies at the wrists. MRI studies on March 29, 2008 showed bulging and herniated discs at multiple levels in the cervical (C2-3, C3-4, C4-5, C5-6, C6-7, C-7-T1) and lumbar (L2-3, L3-4, L4-5, L5-S1) spine, with thecal sac and nerve root impingement. The reports noted disc dessication and degenerative endplate changes at L5-S1, but did not describe the numerous other positive findings as degenerative in nature. The radiological reports noted, in passing, that axial images demonstrated counterclockwise rotary scoliosis. An MRI study of the left knee revealed a lateral shift of the patella, with mild arthrosis, a tear of the posterior horn of the medial meniscus, degenerative thinning of the anterior cruciate ligament, and scarring of the medial collateral ligament.
Plaintiff commenced physical therapy immediately after the accident, which she continued until it was determined, in December 2008, that she had reached the maximum medical improvement from conservative management. Approximately six months after the accident, she underwent arthroscopic knee surgery for chondral erosion of the patella femoral joint and a partial thickness tearing of the posterior horn of the lateral meniscus.
Chavez moved for summary judgment, relying, inter alia, on the affirmed medical reports of Dr. Carciente, a neurologist, Dr. Buckner, an orthopedist, and Dr. Fischer, a radiologist. Both Dr. Carciente and Dr. Buckner, in rendering their opinions, reviewed plaintiff's medical records, including the MRI reports, but did not review the MRI films. Dr. Carciente found "no correlation between the findings allegedly found in the spine MRI reports" and plaintiff's examination, which he described as normal, observing that as "is well known, bulges and herniations may also be seen in completely asymptomatic and atraumatic individuals."
Dr. Buckner concluded that plaintiff's spinal examination was normal except for degenerative changes common to a person of her age, physique and pre-existing scoliosis. He opined there were "no reported findings" on the MRI "to suggest recent onset of any of the putative abnormalities," that in fact the " findings' [we]re more consistent with normal findings for a person of her age, habitus and pre-existing scoliosis than with any trauma or injury." With regard to the positive findings on the MRI study of plaintiff's left knee, Dr. Buckner opined that they were "clearly pre-existing." If a knee injury had been related to the accident, plaintiff would have been fitted with an immobolizer and crutches in the emergency room.
Chavez also relied on the report of Dr. Fischer, who reviewed the MRI studies of plaintiff's left knee and cervical and lumbar spine. With respect to the cervical spine, Dr. Fischer opined that the study demonstrated "mild diffuse degenerative changes" consistent with a pre-existing condition, with no evidence of herniations or bulges, and no evidence of recent trauma. With respect to the lumbar spine, Dr. Fischer opined that the study demonstrated degenerative changes at the level of L5/S1 consistent with a preexisting condition, with no herniations and only a "mild" disc bulge at L5/S1 that was compatible with the amount of degenerative change present. He opined that there was no evidence of recent trauma. As to the left knee, Dr. Fischer opined that it showed "[g]rade II signal within the posterior horn of the medial meniscus," and "[m]ild diffuse articular cartilage loss," consistent with a preexisting condition. Dr. Fischer found no discrete meniscal or ligament tear, nor evidence of recent trauma.
In my opinion, defendant's expert affirmations failed to meet defendant's prima facie burden of showing lack of "serious injury" within the meaning of the Insurance Law. The affirmations of defendants' neurologist and orthopedist were entirely conclusory and insufficient to satisfy their burden. Dr. Carciente merely opined, in entirely conclusory terms, that there was "no correlation" between the positive findings in plaintiff's MRI reports and plaintiff's examination, which he described as normal. Dr. Buckner similarly opined, in conclusory fashion, that there were no reported findings in the MRI studies to suggest recent onset of any of the putative abnormalities and that the findings were "more consistent" with normal findings for a person of her age, habitus and pre-existing scoliosis.
Defendants' expert radiologist, Dr. Fischer, opined that the MRI of the cervical spine demonstrated "mild diffuse changes," most pronounced at C5-6 and C6-7, which he does not describe, and which he similarly attributed, in conclusory fashion, to "a preexisting condition." Dr. Fischer opined that the "degenerative changes" at the L5/S1 level shown in the MRI of plaintiff's lumbar spine were "consistent" with a pre-existing condition, but did not address the other positive findings in the lumbar spine. Dr. Fischer opined that plaintiff suffered degenerative changes of the knee, but failed to address the positive findings in the March 2008 report, namely, that in addition to a degenerative thinning of the anterior cruciate ligament, plaintiff had also suffered a "lateral shift of the patella," and a tear of the posterior horn of the medial meniscus. The radiologist further failed to address the various disc herniations and bulges, at multiple levels, clearly identified in the contemporaneous MRI studies of the cervical and lumbar spine, and failed to address the evidence of patella shift and meniscal tear shown in the contemporaneous MRI study of the left knee.
The conclusory assertions of defendants' experts — which, I note, are couched in conditional terms such as "more consistent with" — were insufficient to meet Chavez's prima facie burden. Nowhere do these experts explain how the injuries suffered by plaintiff — who, it is undisputed, was previously asymptomatic and had never been in an accident — were attributable to a "degenerative" condition rather than to the January 13, 2008 accident. Defendant cannot shift the burden of proof merely by submitting expert affidavits that aver, in conclusory terms, that a previously asymptomatic plaintiff, with no history of prior (or subsequent) accidents, suffers from degenerative changes that are the cause of her current complaints.
Even assuming — which I do not concede — that Chavez satisfied his initial burden, plaintiff's submissions raise a triable issue of fact. Plaintiff's treating physicians and experts reviewed the relevant MRI reports, discussing at length the positive findings of the respective MRIs (including, for example, degenerative thinning of the anterior cruciate ligament), yet nonetheless opined that her injuries were attributable to the January 13, 2008 accident, thus refuting the defense experts' contention that the evidence was consistent with pre-existing degenerative changes (see Norfleet v Deme Enter., Inc., 58 AD3d 499 [2009]).
Dr. Alexander Visco, plaintiff's treating physiatrist, examined plaintiff shortly after the accident and noted range-of-motion restrictions in the cervical and lumbar spine, as well as the left knee. Visco opined that plaintiff had suffered these injuries as a result of the January 13, 2008 accident. MRIs taken two months after the accident showed disc bulges and herniations at multiple levels of the cervical and lumbar spine. An MRI of the left knee disclosed a tear of the medial meniscus and a lateral shift of the patella. An April 2, 2008 EMG showed left-sided C7 radiculopathy.
On July 18, 2008, Dr. Dov Berkowitz performed arthroscopic surgery on plaintiff's knee. Dr. Berkowitz found plaintiff, on examination, to have limited range of motion in the knee and attributed her knee injuries to the accident. Dr. Visco's follow-up reports, dated April 1, May 20, July 8, September 16, and December 17, 2008, discussed the positive findings detailed in the respective MRIs of plaintiff's cervical and lumbar spine and left knee, as well as the EMG, noted range-of-motion restrictions, and continued to describe plaintiff as a patient "status post motor vehicle accident on January 13, 2008 with cervical disc herniations and disc bulges, left C7 cervical radiculopathy, lumbar disc herniations and bulges and left knee sprain and internal derangement." In June 2009, plaintiff's expert physiatrist, Dr. Gautam Khakhar, examined plaintiff and noted her still to have significant range-of-motion restrictions. Dr. Khakhar noted that plaintiff suffered from disc herniations and bulges at multiple levels of the cervical and lumbar spine, left-sided C7 radiculopathy, and left knee internal derangement, status post arthroscopic procedure, and opined that her injuries were attributable to the January 13, 2008 accident. Dr. Khakhar, like Dr. Visco, reviewed the relevant MRIs and electrodiagnostic studies.
Their conclusions that plaintiff's symptoms were related to the accident were not speculative or conclusory, but rather, based on physical examinations of the patient made shortly after the onset of her complaints of pain and other symptoms, which she claimed arose after the January 13, 2008 accident. The affirmations of plaintiff's experts raised an issue of triable fact, and a jury was entitled to determine which medical opinion deserved greater weight (see Linton v Nawaz, 62 AD3d 434 [2009], aff'd 14 NY3d 821 [2010]). As we stated in Linton (at 443) there is "no basis on this record to afford more weight to defendants' expert's opinion and there are no magic words' which plaintiff's expert was required to utter to create an issue of fact" concerning whether the injuries alleged were degenerative in nature. "If anything, plaintiff's expert's opinion is entitled to more weight [and] that opinion constituted an unmistakable rejection of defendants' expert's theory."
Plaintiff's experts were clearly aware of the relevant MRI findings, yet ascribed her injuries to the accident. For example, in his July 2009 report, Dr. Khakhar discussed at length the abnormal findings as noted in the relevant studies, attributing these findings to the accident:
"As a result of the accident of January 13, 2008, [plaintiff] has sustained significant injuries to her left knee and cervical and lumbar spine.
"The impact caused by the accident exerted pressure to the structural integrity of the patient's left knee resulting in a meniscal tear causing the patient significant pain and difficulty with the left knee . . .
"Furthermore, the impact caused by the accident exerted tremendous pressure to the structural integrity of the nucleus pulposus, annulus fibrosis and facet joints of the cervical and lumbar spine resulting in multiple cervical (C2-3, C6-7 and C7-T1) and lumbar (L4-5 and L5-S1) disc herniations, in addition to cervical (C3-4, C4-5 and C5-6) and lumbar (L2-3, L3-4) disc bulges. . . In addition, range of motion testing revealed consistent and significant limitations in cervical and lumbar range of motion. Cervical R.O.M. was restricted up to 25%, and lumbar R.O.M. was limited up to 33%. . .
"These pathologies are clinically correlated with the patient's symptomatology, exam findings and physical limitations. The above objective findings help to explain the ongoing pain and impairments of the patient's cervical and lumbar spine, as well as her left knee. Also, the absence of prior trauma at these levels suggests that the left knee tear, disc pathologies and nerve injuries did not pre-exist the above noted accident."
I would affirm the order of the lower court insofar as it denied Chavez's motion to dismiss plaintiff's claims alleging "serious injury" based on significant limitation of use or permanent consequential limitation of use of a body function or system.

Nama Holdings, LLC v Greenberg Traurig LLP


Dorsey & Whitney LLP, New York (Roger L. Magnuson, of
the Minnesota Bar, admitted pro hac vice, of counsel), for
appellants.
Sidley Austin LLP, Los Angeles, CA (Ronald C. Cohen, of the
California Bar, admitted pro hac vice, of counsel), for
respondents.
Orders, Supreme Court, New York County (Richard B. Lowe III, J.), entered November 18, 2009, which denied defendants Samson and Kashani's motion to stay the action; 2) denied their joint motion with defendants Greenberg Traurig LLP, and Robert J. Ivanhoe to dismiss the action; and 3) granted plaintiffs' motion for a temporary restraining order, unanimously modified, on the law, to vacate the temporary restraining order, effective five days from the date of this order, and otherwise affirmed, without costs.
The IAS court properly found that this Court's May 26, 2009 order staying the proceeding expired by its terms upon the "arbitral determination," that is, the award by the arbitrators in the California arbitration. Nor did the court abuse its discretion by declining to stay the proceedings pending the defendants' appeal to the Ninth Circuit of a District Court decision holding that they had abandoned and waived their right to arbitrate the claims at issue here. The District Court's findings of bad faith and procedural gamesmanship undermine any finding of merit in defendants' appeal (64 B Venture v American Realty Co., 179 AD2d 374 [1992] [not an abuse of discretion to deny stay pending appeal where appeal did not appear to have merit], lv denied 79 NY2d 756, 757 [1992]).
The motion to dismiss was properly denied. The forum selection clause by its terms only applies to proceedings to enforce the arbitration award; this is a plenary action, albeit factually related to that proceeding. Moreover, while it is true that the transaction and many of the parties are located outside of New York, the facts that three of the defendants reside here, documents relevant to the action are located here, and no defendant has made any showing of burden or inconvenience demonstrate that the IAS court's retention of jurisdiction was not an abuse of discretion (see Islamic Republic of Iran v Pahlavi, 62 NY2d 474 [1984], cert denied 469 US 1108 [1985]).
Nor should this case be barred by the collateral estoppel effect of the arbitration. On the one hand, that portion of defendants' appeal is rendered moot by the IAS court's grant of leave to amend the complaint (Miglietta v Kennecott Copper Corp., 22 AD2d 874 [1964]). Were we to reach the merits, we would find that the determinations of the arbitration support, more than preclude, the plaintiffs' claims here.
However, we vacate the TRO because plaintiffs' complaint does not state a cause of action for a permanent injunction or otherwise meet the requirements of CPLR 6301 (see Halmar Distribs., Inc. v Approved Mfg. Corp., 49 AD2d 841 [1975]). We also note that the record contains material factual issues with respect to the merits of provisional relief.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 7, 2010
Albert Nigri v Liberty Apparel Company, Inc.


Daniele Dermesropian, New York, for appellant.
David Laniado, Cedarhurst, for respondents.
Order, Supreme Court, New York County (Bernard J. Fried, J.), entered April 30, 2009, which granted defendants' motion for partial summary judgment to the extent of declaring their entitlement to reimbursement of (1) half the attorneys' fees incurred in defense of a certain customs matter and (2) all the attorneys' fees incurred in pursuing their counterclaims in this action, and referring the calculation of those fees to a special referee, unanimously affirmed, with costs.
To induce the individual defendants to purchase his shares in defendant corporation, plaintiff promised to pay certain "Guaranteed Obligations," which are defined in Article VI of the subject agreement as
"one-half of all claims, actions, litigation, and other liabilities[,] costs and expenses (a) in [certain pending legal actions, including a customs matter] and (b) of any type or nature of the Company . . . which arise on account of the period up to and including the Closing Date, . . . provided, however, that in the event that the Seller is required to pay any Guaranteed Obligations under part (b) of this sentence: (x) the Company and the Seller shall agree together on how to defend and dispose of such Guaranteed Obligations (such as the imposition of counterclaims, litigation strategy, settlement decisions and the like) except that the Seller shall choose counsel after consultation with the Buyer and the Company, . . . (y) the Seller shall not be obligated to make payments on Guaranteed Obligations that first arise after September 1, 2006, and (z) the Seller's obligation to make payments on such Guaranteed Obligations shall commence when the Company's fees and costs (including attorney's fees) equal $100,000, at which point the Seller shall be obligated for his half of such initial $100,000 plus one-half of all additional amounts expended in or constituting such Guaranteed Obligations."

Furthermore, "provided [defendants] are successful in establishing [plaintiff's] liability under this guarantee," plaintiff promised to pay "all out-of-pocket expenses (including reasonable attorneys' fees and disbursements) . . . incurred by [defendants] . . . in enforcing or collecting upon this Guaranty."
The motion court concluded that the agreement required plaintiff to pay half the attorneys' fees incurred by defendants in defending the customs matter referred to in part (a) of Article VI. In so concluding, the court read the phrase "all claims, actions, litigation, and other liabilities, costs and expenses" as broad enough to include indemnification of attorneys' fees incurred in litigation against third parties, and the specific reference to such fees in part (b) as simply "a straightforward clarification of the costs and expenses that should be counted to reach the $100,000 mark."
We agree with the motion court's conclusion that Article VI unambiguously requires payment of attorneys' fees as to part (a) matters. The clause "all claims, actions, litigation, and other liabilities[,] costs and expenses" constitutes broad language that is generally interpreted to encompass attorneys' fees (see e.g. DiPerna v American Broadcasting Cos., 200 AD2d 267, 270, n3 [1994]; Breed, Abbott & Morgan v Hulko, 74 NY2d 686 [1989], affg 139 AD2d 71, 74 [1988]). Plaintiff contends, however, that reading the clause to include attorneys' fees would render the specific references to such fees in the other provisions of article VI as "mere surplusage" (citing Sagittarius Broadcasting Corp. v Evergreen Media Corp., 243 AD2d 325, 326 [1997]). This argument is unpersuasive because the clause containing the first parenthetical reference to attorneys' fees effectively defines the term "expenses" to include attorneys' fees. That same term later appears in the definition of "Guaranteed Obligations," and thus there was no need to repeat what is clear from the first parenthetical reference. Moreover, the second parenthetical reference, in clause (z), follows the words "fees and costs," and makes clear that attorneys' fees also fall within the scope of one or both words. In any event, the second parenthetical reference does not render equivocal the clear statement that the term "expenses" includes "attorneys' fees."
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: SEPTEMBER 7, 2010
CLERK

Newsletter Sign-up

Fill in the form to register to receive any of our free electronic newsletters: