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Coverage Pointers - Volume XVI, No. 23

Dear Coverage Pointers Subscribers:

Do you have a situation?  I know you do.  Give us a call because we LOVE situations.

My dad would have been 97 years old today.  He passed away on Christmas Eve, 1980, at age 62.  “Happy Birthday Dad,” from your 62 year-old son.  I had the pleasure of visiting my son and daughter-in-law this past weekend in Washington, D.C.  Both are employed by GEICO.  Every day we have with those we love is surely a gift.

I hope to see some of you inSyracuse today for the NYS Bar Insurance program where I’ll be speaking on Multiple Insured/Multiple Claimant/Limited Coverage issues. You may be reading this issue instead of listening.  Shame.  Shame.

For those of you who read this publication for the “One Hundred Years Ago” historical trivia (and we know that this would include most of you) we are limiting our usual array to two stories, the sinking of the Lusitania and Babe Ruth’s first home run.  Stay tuned.

New York Insurance Association Annual Conference:

I was honored to be asked to speak at the NYIA Annual Conference in Saratoga Springs which will be held between May 27th and 29th.  My topic, Wait until You Hear What’s Coming Next! Tomorrow’s Coverage Issues Today.  I am having lots of fun doing the leg work on this one.  I have my driverless car at the ready and am scouring the country in my drone.  I hope to see many of you there.

Hail to the Chief:

Special kudos to our Managing Partner and President, Ann E. Evanko, who is receiving the Buffalo Law School’s Distinguished Alumna Award for Community Service at a special convocation next week.  Atta Lawyer!.

Hurwitz & Fine’s Coverage Team Expands – Welcome Agnes A. Wilewicz:

We are delighted to welcome Agnieszka  A. Wilewicz to Hurwitz & Fine and our coverage team.  With a superb background stemming from work with a great NYC coverage firm and a fine Buffalo firm, Agnes becomes the twelfth member of our talented coverage dozen.  Agnes will begin writing a column on environmental coverage issues starting in our next issue. She can be reached at [email protected]

Agnes was kind enough to write an introductory letter to our readership:

Dear Subscribers,

I can hardly believe that I write to you from this side of Coverage Pointers! Having been a loyal CP reader myself for years, I am honored and thrilled to have joined H&F as an attorney and become a soon-to-be columnist. It is a little surreal that after nearly eight years in coverage I now work alongside Dan Kohane and have become part of his great coverage team.

For an introduction, I have been asked to write some fun stuff and background about myself. Well, I come from a long line of insurance folks, my father still adjusting claims after 30-some odd years, and my mother brokering policies for a period of time which shall remain unmentioned. I think all of this stuff is fun, by default. When not in the office, I enjoy collecting books of all sorts (the older, the better), champagne from Champagne (same proposition does not necessarily stand), and going on adventures with my husband and 9 year old mini-me.

Now, getting right down to business, for my column I hope to bring you a biweekly update of the latest in environmental coverage issues. From lead and asbestos and pharmaceuticals, to popcorn lung and vapor intrusion and nanoparticles, I hope to figuratively dive into the pollutants that make headlines and create coverage issues. If other cutting edge issues like cyber liability make it into the appellate levels, I hope to cover those as well.

I have waited a long time to say, until next time!

Agnes
Agnieszka A. Wilewicz
[email protected]

Labor Law Pointers:

In case you don’t subscribe yet, we remind you of our sister publication, Labor Law Pointers, produced by Dave Adams and his merry band of Labor Law aficionados. It’s a monthly treatise on the hottest cases from the New York State courts on Sections 240(1), 241(6) and 200 of the Labor Law and all things related.  Contact Dave to subscribe, [email protected]. In this month’s issue, posted this morning, Dave’s group covered a number of cases, including this decision from New York’s highest court:

04/02/15         Saint v Syracuse Supply Co.
New York State Court of Appeals
Saint was part of a three-person crew working to replace an advertisement on a billboard 59 feet from the ground, and composed of a two-sided metal frame constructed in an inverted “V” shape set on a metal tube embedded in the ground.  Each side of the frame is 14 X 48 feet in size, and covered by a series of panels secured to the frame by iron clips called “stingers.”  The billboard has catwalks workers access by a ladder elevated several feet from ground and attached externally to the metal tube.  All the catwalks have safety cables, but only the lower rear catwalks had a guardrail.

The new advertisement required attachment of additions to the frame, referred to as “extensions” that were plywood cutouts.  During Saint’s work, he used and operated a crane to raise the extensions onto the billboard’s lower outer catwalk.  Had the job gone smoothly, after the new advertisement was secure the crew would bolt the extensions’ angle irons to the stringers to hold them in place on the frame.  However, Saint fell while attempting to move the panels on the lower rear catwalk when a “strong gust of wind” caused the panel to strike his chest, knocking him ten feet below after he detached his lanyard from the catwalk’s safety cable to get around a crew member.

The trial court denied defendant’s motion to dismiss Saint’s Labor Law §§ 240(1), 240(2) and 241(6) arguing that Saint was not engaged in a covered activity.  Saint cross-moved for partial summary judgment on his §§ 240(1) and 241(6) claims.  The trial court denied both motions finding both provisions applied to Saint’s claims, but an issue of fact existed as to whether he was the sole proximate cause of his injuries for failing to reconnect his lanyard.   

The Fourth Department reversed and granted defendant’s motion, concluding that Saint’s work did not constitute altering the building or structure and was “more akin to cosmetic maintenance or decorative modification.”  The court also found Saint was not engaged in “construction” work within the meaning of § 241(6).

Saint argued on appeal the statute applied because he physically altered the billboard by installing extensions that changed the physical shape of the structure.  Defendant responded that at the time of his fall, Saint was not engaged in the installation or removal of extensions and regardless, the work was not an alteration by changing advertisements which is routine maintenance, and any alleged change to the structure was not permanent.

The Court held Saint was engaged in work constituting an alteration under the statute, relying on Joblon’s definition that “altering … requires making a significant physical change to the configuration or composition of the building or structure.”  Here, Saint’s work involved attaching extensions that changed the dimensions of the billboards frame and transformed the shape to accommodate the advertisement’s artwork.  The court held the removal of panels was a prerequisite to the attachment of the extensions and thus, Saint’s work entailed a significant change to the billboard structure and did not involve simple tasks involving minimal work.

The Court further held the installation was not a “decorative modification” because the work entailed far more than a mere “change to the outward appearance of the billboard” as it required a change to the billboard’s size and an adjustment of the frame to accommodate the unique shape of the advertisement.  The Court distinguished Munoz v DJZ Realty, which held that an employee injured while working on a billboard was not involved in an “alteration” because the employee was applying pre-pasted sheets to a billboard and the court concluded the work merely “changed the outward appearance … but did not change the billboard’s structure.” 

Here, Saint’s work required attachment of metal bolts and attachment of the extension to the frame.  The court thus found that based on the nature of Saint’s work and that the attachment of extensions to the billboard affected a significant change to the structure, Saint’s work was “altering” within the meaning of the statute.

The Court also held it was error to dismiss the Labor Law § 240(2), requiring that “[s]caffolding or staging more than twenty feet from the ground or floor … shall have a safety rail of suitable material properly attached, bolted, braced or otherwise secured …”  Here, it was undisputed the billboard platform was 59 feet high and there was no safety railing around the subject catwalk.

PRACTICE POINT:  The point the Court of Appeals was careful to make is they are not modifying the status of the law with regard to the changing of the billboard sign, but in a situation such as this where the structure of the sign is changed, a significant change to the structure to use the Joblon language yet again and that is simply more than a cosmetic change.
    
The Court also held that Saint was engaged in “construction work” under the statute, which is defined to include alteration of a structure under 12 NYCRR § 23-1.4(b)(13).  Here, Saint was altering the billboard by installing the extension at the time of his injury and therefore, his claim falls within the ambit of § 241(6).  The Court distinguished Hatfieldbecause Saint was altering the billboard’s dimensions in order to apply the advertisement rather than performing “maintenance of a building or structure outside of the construction context.”  Thus, the Court denied defendant’s motion to dismiss this claim. 

Peiper’s Pickings:

We start off this week welcoming Agnes Wilewicz to the CP staff.  We understand she’s a long term admirer of our merriment, although, frankly, we’re not sure why.  She has been a great addition already, and she’s been with us for all of four days.  Drop her a note to say hi, and to say nice things about yours truly. 

By way of an update, we note that a case many of you have been following, Zurich v Sony America, recently settled.  As a result, all of us are deprived of what very likely would have been a fascinating decision on the emerging cyber-liability field, and whether coverage under a CGL was triggered.  While the issue appears to have been mortally wounded in this case, it will no doubt continue to develop across the country. 

With regard to the column this week, do take minute to review the Thyssenkrupp case we review below.  In that case, the court rules that indemnity provisions do not give rise to a duty to defend which is broader than the ultimate duty to indemnify.  However, the Court also notes that insurance procurement clauses are treated much differently.  This is particularly true if you have a large SIR.  Something to consider if you’re re-upping insurance in the near term.

That’s it for now.  Thanks for reading.
  
Steve
Steven E. Peiper
[email protected]

 

Cassie’s Capital Connections:

Greetings from Albany!  In Jen’s absence I’m taking advantage of the lack of discussion about the cuteness of her daughter to talk about my son instead.  He just turned two, and I’m amazed by how much he chatters now.  This morning while we were cuddling, a motorcycle drove by, and he comes out with “Bye bye motorcycle.”  I’m starting to wonder if I should be worried about his obsession with motorcycles, and the fact that he can identify the vehicle as a motorcycle by sound alone. 

In insurance related matters, I reported on legislation related to the purchase of SUM benefits.  The sponsors of the bill seek to emphasize the importance of SUM coverage to insureds.  I also did a rare report on a trial court decision out of Westchester.  At issue in that matter was whether the slip and fall on a sidewalk adjoining a tenant’s business arose out of the tenant’s maintenance or use of the leased premises.   I hope you have the same gorgeous weather I have and can enjoy it this weekend!

Cassie
Cassandra A. Kazukenus
[email protected]

Lusitania Sunk – 100 Years Ago Today:

The New York Times
New York, New York
8 May 1915

LUSITANIA SUNK BY A SUBMARINE, PROBABLY 1,260 DEAD;
TWICE TORPEDOED OFF IRISH COAST; SINKS IN 15 MINUTES;
CAPT. TURNER SAVED, FROHMAN AND VANDERBILT MISSING;
WASHINGTON BELIEVES THAT A GRAVE CRISIS IS AT HAND

SOME DEAD TAKEN ASHORE

Several Hundred Survivors
at Queenstown and Kinsale

STEWARD TELLS OF DISASTER

One Torpedo Crashes into the
Doomed Liner’s Bow, Another
Into the Engine Room

SHIP LISTS OVER TO PORT

Makes It Impossible to Lower Many Boats,
So Hundreds Must Have Gone Down

ATTACKED IN BROAD DAY

Passengers at Luncheon—Warning Had Been Given
By Germans Before the Ship Left New York

* * *

LONDON, Saturday, May 8.—The Cunard liner Lusitania, which sailed out of New York last Saturday with 1,918 souls aboard, lies at the bottom the ocean off the Irish coast.

She was sunk by a German submarine, which sent two torpedoes crashing into her side at 2:30 o’clock yesterday afternoon while the passengers, seemingly confident that the great, swift vessel could elude the German underwater craft, were having luncheon.

The great inrush of water caused the liner to list heavily to port, so that she could not launch many of her lifeboats.

About 1,260 of those on board the great ship, including many Americans apparently went down with her, as a statement issued late this morning by the Admiralty says the total number of survivors is only 658.

There were 1,253 passengers on board the steamship, including 200 who were transferred to her from the steamer Cameronia.  The Americans totaled 188.  The crew numbered 665. …

Fitz’ Bits:

Dear Subscribers:

Greetings from sunny and finally warm, Long Island.  It looks to be a fabulous weekend and I wish all the mothers a very Happy Mother’s Day.  I have no cases to report on this week, but wanted to provide a final reminder to those of you who are interested in attending the New York State Bar Association Advanced Insurance Coverage seminar. 

Some of you may be reading this article while attending the New York City program, which I understand has over 100 pre-registered attendees.  You still have time to register for the Long Island and Buffalo programs, which will be held on Friday, May 15th.  I am delighted to be again serving as Chair of the Long Island venue and will be spending the day with all of the attendees and the fabulous speakers.  I will also be addressing additional insured coverage and discussing the multitude of issues that arise in that context, including priority of coverage and the language of the new ISO forms.  Steve Peiper will be speaking on the additional insured topic in Buffalo which is sure to be a treat! I urge you all to attend this excellent program, if your schedule allows.

I also note that many of you attend the always-popular Law School for Insurance Professionals program which is held each fall.  We are presently planning this year’s program agenda and invite you to submit specific topics that you would like to see addressed at the program.

Several months ago, I reported on the New York Department of Financial Services initiative with respect to cyber insurance which addressed the methods that insurance carriers have in place to protect the information of their policyholders.  The National Association of Insurance Commissioners (NAIC) is also focused on the issue and the officers and leadership of NAIC have identified cyber security in the insurance sector as a key initiative for 2015, creating a cyber-security task force to monitor emerging cyber risks, their impact on the industry and to determine whether regulatory action will be required.  We will continue to update you on these important developments, as cyber liability is an emerging and, potentially, very costly risk, for which most standard Commercial Lines policies do not afford coverage, absent the purchase of a special cyber liability policy.

                                                                                    Til next time,

                                                                                    Beth
                                                                                    Elizabeth A. Fitzpatrick
                                                                                    [email protected]

 

Impact of the Lusitania Disaster:  One Hundred Years Ago today:

The Brooklyn Daily Eagle
Brooklyn, New York
8 May 1915

DIPLOMATIC BREAK WITH
GERMANY IS A POSSIBILITY

Berlin Government Is Doing
Its Utmost to Force It

Washington, May 8—The National Administration, horror-stricken and dismayed at the tragedy of the Lusitania, is bending every effort today in attempt to quell what it well recognizes as the rising storm of resentment throughout the United States against Germany.  The justification for such a feeling of nation-wide abhorrence the President and his advisers do not fail to release.  The possible effect of it is what they dread.

At least until all the facts are in, until Germany has made her statement—which she must—and until the portent of the whole grim business has become clear and settled, the Administration will expect and even pray that the American people will show forbearance and restraint even if it takes a superhuman effort to do so.

President Gives Object Lesson in Calmness; Goes Golfing:

It was an object lesson in calmness that President Wilson set to his fellow citizens this morning when he left the White House early to motor and play golf.  There was nothing for him to do in an official way concerning the Lusitania disaster; it will probably be days before the Government can act formally.  But there was in the mind of the President a deep feeling that he should show, even by this simple act, that in the midst of an admittedly perilous situation he is keeping his head cool and his mind clear, and expects the people of the country to do the same.

The President and his advisers are sorely worried.  Remaining neutral in the world war has become a task of gigantic proportions, but they are the more determine to accomplish it, provided it can be done with honor and justice to this country.

The severing of diplomatic relations with Germany is rapidly assuming the form of a distinct possibility, not because of any loss of patience or coolness on the part of the American Administration, but because it is recognized that Germany is rapidly making it impossible to conduct such relations. Whether the severing of such relations would necessarily involve war with Germany is a farther look into the future, yet an attempt to visualize even that is being made. 

Editor’s Note: These days, if a President goes golfing during a crisis, it’s considered treasonous! It took almost two years from the sinking of the Lusitania for the US to join the Allies in WW I, that occurring on April 4, 1917.

 

A Century Ago:  Babe Ruth’s First Home Run and the Pitcher Who Threw the Ball:

(If you are not a baseball fan, skip ahead)

Any baseball fan knows that slugger Babe Ruth began his major league career as a pitcher for the Boston Red Sox.  Few, however, may know about his first home run which came against the Yankees on May 7, 1915 and pitcher Jack Warhop.  Sit back and enjoy ….

Red Sox pitcher Babe Ruth hit is first major league home run in a game against the Yankees, on hundred years ago yesterday.  While the article sung praises about his pitching, only the box score recorded the four-bagger:

The Brooklyn Daily Eagle
Brooklyn, New York
7 May 1915

AMERICAN LEAGUE GOSSIP

The Yankees played their first extra-inning game yesterday, and came out of it with colors flying.  They defeated the Red Sox by a score of 4 to 3 in thirteen innings of exciting baseball.

In the thirteenth, High singled to center, stole second after Pipp had fanned trying to sacrifice, and when Cook singled cleanly over Wagner, and Hooper fumbled, High came home with the winning run.

Babe Ruth, the sensational youngster discovered by Jack Dunn at Baltimore last season, went the entire distance for the Sox, while Jack Warhop and Cy Pieh did the mound work for Donovan’s tribe.

Pieh did good work.  He went in the ninth, and held the Sox down when they looked as though they were going to score on two occasions.  In the eleventh, Pieh fanned the side, thereby getting himself out of a hole that looked as deep as a well.

Lute Boone, whose batting average last season was a little thin, is brandishing a bat that is making the opposing pitchers wary.  He took that trip with the Work’s Tourists and batted regularly against such hurlers as Alexander, Tesreau, Vaughn and James.  perhaps that accounts for his picking up.  At any rate, he is there.
Editor’s Note:  Lute Boone’s batting average thinned out again; he played four years of Major League ball, three with the Yanks, one with the Pirates, and ended up with a .209 lifetime batting average.

Herb Pennock, the Yankees’ nemesis, met his Waterloo yesterday in the game, with the Nationals.  He lasted two innings.  Washington won the game, 11 to 2.  The Nationals scored seven runs in the first two chapters, and that was enough for Pennock.  Rube Bressler took his place on the hill, and did but little better. 

Baseball Flashback: Babe Ruth's First Home Run, May 6, 1915
By Harvey Frommer

In the third inning at the Polo Grounds, 20-year-old pitcher Babe Ruth slammed the first pitch off Yankee right-hander Jack Warhop into the second tier of the right field grandstand for a home run. It was the first home run for the youngster in his 18th time at bat in the major leagues.

As Ruth trotted around the bases running out the home run he had blasted, the 8,000 in attendance, including Red Sox owner Joseph Lannin, American League president Ban Johnson and sportswriters Damon Runyan and Heywood Broun, cheered him on.

Runyan wrote in his account of the game: "Fanning this Ruth is not as easy as the name and the occupation might indicate. In the third inning, Ruth knocked the slant out of one of Jack Warhop's underhanded subterfuges, and put the baseball in the right field stands for a home run. Ruth was discovered by Jack Dunn in a Baltimore school a year ago where he had not attained his left-handed majority, and was adopted and adapted by Jack for use of the Orioles. He is now quite a demon pitcher and demon hitter when he connects."

Ironically, the momentous first of the Babe's 714 career home runs came against the team he would come to symbolize: the New York Yankees. The homer was his fifth major league hit. In ten times at bat in 1914 and eight times at the plate in 1915, he had notched three doubles and a single.  Warhop was pitching when Ruth hit his second home run, some three weeks later.

So, there’s been a lot written about the Babe, but how about the guy who threw to him? 

John Milton Warhop (July 4, 1884 – October 4, 1960) was an American baseball pitcher who played eight seasons in Major League Baseball from 1908 to 1915 for the New York Highlanders/New York Yankees. He is best known for giving up Babe Ruth's first two career home runs.

Considered by baseball insiders and historians as an unlucky pitcher, Warhop had a career 69–92 win–loss record, but with a 3.12 earned run average while playing for mostly second division Highlanders/Yankees teams. Of his 92 losses, the Yankees did not score a run in 23, and he holds the MLB record for losing the most 1–0 games with five in 1914. He was released after the 1915 season and played a number of seasons in minor league baseball and semi-professional teams until his late 40s or early 50s.

Warhop had an underhand submarine delivery, which gave him the nickname "Crab".

I had the pleasure of trading emails with a descendent of Jack Warhop, Mitch Wauhop (sic) who appears to be the family historian. I asked him how the spellings of the pitcher’s name and his were different and what lore may have been passed through the family tree:

Dan

I always thought that he just changed the “u” to a “r”.  I can even remember telling people that the name Wauhop was pronounced Warhop when I was growing up. Lately I noticed that Jack Warhop’s dad was named Walter Raleigh Wauhop BUT his death certificate was Walter Raleigh Warhop. So maybe Jack Wauhop just followed what his dad had told him long ago. Anyway Jack Warhop’s grandfather (and my great great grandfather) is John K. Wauhop. He is buried at Flat Top West Virginia with one big granite gravestone with the name WAUHOP.

My grandfather and Jack Warhop were first cousins. I have so much stuff on Jack Warhop the baseball player but the best place I know for a good eight page summary is the article written by Alice Horner in 2009. I gave her some information back then and she gave me credit in her revision. I have included the link to her article.

The only thing I remember my grandfather saying about his cousin was that he wanted him to sign something and he told him “to spell the name right!”

I have lots of newspaper articles about Warhop but the thing I always think about was the fact that both were pitchers, it was Warhop’s last year in the majors and Ruth’s second year in the majors. Also Jack Warhop did not learn much from the first home run because the next month he gave up another home run to Ruth.

Hope this helps you …………….

Mitch Wauhop

A sign commemorating Warhop/Wauhop’s accomplishments stands before his childhood home in Hinton, WV.

Hewitt’s Highlights:

Dear Subscribers:

It has been a busy two weeks with my oldest son turning six years old and having a children’s party at a craft place, a party at school, and a family party. When I was young, there was only one party and it was in my parents’ backyard. Times have changed.

Since we last left each other, the Appellate Courts issued a couple of brief decisions since our last issue.  In one of them, plaintiff was able to establish an issue of fact by presenting affirmations from treating physicians that he had spasms, limited range of motion, and pain in his cervical spine despite there being no range of motion limitation in his first visit to his treating physician. In the other case, defendants could not even establish a prima facie case for summary judgment because their expert’s opinion that plaintiff’s injuries were entirely attributable to a subsequent accident did not set forth the foundation for the opinion.

Until next time,

Rob
Robert Hewitt

[email protected]

Headlines of this week’s edition, attached:

KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]

  • Insured’s Failure to Give Notice and Injured Party’s Failure to Investigate Identity of Proper Insurer Leads to a Loss of Coverage
  • “Liability Caused, In Whole or In Part, By Acts or Omissions” of Named Insured is Triggered if Named Insured’s Employees is Injured on the Job Regardless of His Negligence – Thousands Flee
  • Decision in Framed Issue Hearing that Vehicle was Not Involved in the Accident, Overturned by Uncontroverted Evidence; Therefore Application to Stay Uninsured Motorist Arbitration Permanently Stayed
  • Question of Fact on Reasons for Insured’s Extended Delay in Providing Notice But No Claim for Bad Faith Remains as Insurer Acted Reasonably
  • Requirements Under 3420(d)(2) for Timely Disclaimer Only Apply to Policies Issued Within New York State

 

HEWITT’s HIGHLIGHTS ON SERIOUS INJURY UNDER NO-FAULT LAW
Robert E.B. Hewitt III
[email protected]

  • Issue of Fact Found Where Plaintiff Submitted Affidavits From Several Treating Physicians Which Found Range Of Motion Limitations Spasm and Pain
  • Defendants’ Doctor’s Affirmation Must Set Forth The Basis For Its Conclusion That Plaintiff’s Injuries Were Solely Attributable To A Subsequent  Accident

 

MARGO’S MUSINGS ON NO FAULT
Margo M. Lagueras
[email protected]

Arbitration

  • Respondent Found To Have Improperly Delayed Claim
  • Office Visit Long After No Further Complaints Is Denied
  • Applicant’s Verbal Opt-Out Of PPO Network Was Ineffective

 

Litigation

  • Defendant Properly Paid Other Providers After Denying Plaintiff’s Claim
  • Complaint Dismissed For Lack Of Personal Jurisdiction
  • Affidavit By Plaintiff’s Owner Fails To Meet Initial Burden
  • Where Timely Claim Not Filed, Assignor Is Not “Covered Person”

 

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

  • Where a Party Procures Insurance with a SIR, it Acts as an Insurer and Must Provide a Defense as if it Were
  • No Indemnity Where Third Party Beneficiary Status is Excluded, and the Purported Indemnitees are Not Otherwise Parties to the Contract

 

FITZ’ BITS
Elizabeth A. Fitzpatrick
[email protected]

  • Swamped this week.

 

AUDREY’S ALL THINGS PERSONAL
Audrey A. Seeley
[email protected]

  • Not this week.

CASSIE’S CAPITAL CONNECTION
Cassandra A. Kazukenus
[email protected]

  • Slip And Fall on Sidewalk In Front Of Premises Did Not Arise out of Tenant’s Maintenance Or Use of Leased Premises
  • A3121/S4674            SUM Benefits Removal of $250,000 maximum

KEEPING THE FAITH WITH JEN’S GEMS
Jennifer A. Ehman
[email protected]

  • Enjoying the new baby.

 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

  • “High” Court Disclaims Property Damage Caused By Pot Growing Operation

 

As your author pens this letter on Thursday evening, I am overlooking Lake Erie, resting comfortably with a Grey Goose Martini, two olives, toasting my readers.  Hope you’re enjoying the beauty of this spring day.
Dan

Dan D. Kohane
Hurwitz & Fine, P.C
.
1300 Liberty Building
Buffalo, NY 14202    

Office:      716.849.8942
Mobile:     716.445.2258
Fax:          716.855.0874
E-Mail:     [email protected]
Website:   www.hurwitzfine.com
LinkedIn: www.linkedin.com/in/kohane

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]

ASSOCIATE EDITOR
Audrey A. Seeley
[email protected]hurwitzfine.com

ASSISTANT EDITOR
Jennifer A. Ehman
[email protected]

INSURANCE COVERAGE TEAM
Dan D. Kohane, Team Leader
[email protected]

Michael F. Perley
Elizabeth A. Fitzpatrick
Audrey A. Seeley
Steven E. Peiper
Margo M. Lagueras
Cassandra Kazukenus
Jennifer A. Ehman
Taylor F. Gabryel
Agnieszka A. Wilewicz
Diane F. Bosse
Joel R. Appelbaum

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

Elizabeth A. Fitzpatrick
Cassandra Kazukenus

NO-FAULT/UM/SUM TEAM
Audrey A. Seeley, Team Leader
[email protected]

Margo M. Lagueras
Cassandra Kazukenus
Jennifer A. Ehman

Taylor F. Gabryel

APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]

 Elizabeth A. Fitzpatrick
Diane F. Bosse

Index to Special Columns

Kohane’s Coverage Corner
Hewitt’s Highlights on Serious Injury
Margo’s Musings on No Fault
Peiper on Property and Potpourri
Fitz’ Bits
Audrey’s All Things Personal
Cassie’s Capital Connection
Keeping the Faith with Jen’s Gems
Earl’s Pearls

KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]

05/07/15  Kleinberg v. Nevele Hotel, LLC
Appellate Division, Third Department
Insured’s Failure to Give Notice and Injured Party’s Failure to Investigate Identity of Proper Insurer Leads to a Loss of Coverage
In the underlying action, Kleinberg alleged that Nevele's negligence caused
him to sustain an injury on a ski slope. Lexington moved for summary judgment, seeking dismissal of the complaint against it and a declaration that it was not obligated to defend and indemnify Nevele in regard to plaintiffs' underlying action.

Lexington argued that Nevele had cancelled its insurance policy prior to the date of the alleged injury, and that, even if the policy were in effect, Lexington was not required to provide coverage given that it did not receive timely notice of the potential claim. The court finds the latter.

Lexington met its prima facie burden by establishing that it did not receive timely notice of the potential claim. Plaintiffs alleged that Nevele, rather than themselves, provided Lexington with the necessary notice. In support of its motion for summary judgment, Lexington submitted its policy with Nevele, which contained an "as soon as practicable" notice clause. Through further submissions, Lexington established that Nevele had generated an incident report on the day the accident occurred, in February 2006, and plaintiffs and Lexington agree that Nevele received notice by letter from plaintiffs in March 2006.

Even assuming that Nevele was not put on notice on the day of the accident Lexington established an unexcused delay of approximately 10 months between Nevele's receipt of plaintiffs' March 2006 letter and its January notice to Lexington

The underlying plaintiff failed to raise a material issue of fact as to its reasonable efforts to identify Lexington as the relevant insurer. An injured party has a right to give notice which is separately measured from the insureds. However, the injured party must demonstrate that he or she did not know the insurer's identity despite his or her reasonably diligent efforts to obtain such information.

The underlying plaintiff demonstrated that they asked Neville for auto coverage information but nothing else. There was no follow up and auto coverage had nothing to do with this accident.
 
04/30/15       Kel-Mar Designs, Inc. v. Harleysville Ins. Co. of New York
Appellate Division, First Department
“Liability Caused, In Whole or In Part, By Acts or Omissions” of Named Insured is Triggered if Named Insured’s Employees is Injured on the Job Regardless of His Negligence – Thousands Flee
The Harleysville insurance policy that defendant provided to subcontractor Arcadia provides additional insured coverage to plaintiff general contractor only for "liability caused, in whole or in part, by the acts or omissions of Arcadia in the performance of [Arcadia's] ongoing operations for the additional insured." The loss at issue in the underlying action — a personal injury suffered by an Arcadia employee when he lost his footing on a stairway while working on a construction project — resulted, at least in part, from "the acts or omissions" of the Arcadia employee while performing his work (i.e., his loss of footing while on the stairway), regardless of whether the Arcadia employee was negligent or otherwise at fault for his mishap.

The Harleysville policy, by its plain terms, provides excess coverage to plaintiff, because the subcontract between plaintiff and Arcadia does not "specifically" require the Harleysville policy to provide plaintiff with primary coverage. However, because both the Harleysville policy and the insurance policy that plaintiff obtained from RLI purport to be excess to the other, the excess insurance provisions in the policies cancel each other out, and defendant and RLI, as co-insurers on a primary basis, are required to share plaintiff's defense costs in the underlying action.

Harleysville is not obligated to indemnify and defend Walgreens and Frost Equities. Those entities are not additional insureds under the plain terms of the Harleysville policy, as Arcadia did not perform operations for them pursuant to a written contract.
Editor’s Note:  This is one of the broadest interpretations of the “acts or omissions, in “whole or in part” language, we’ve seen. Literally read, it triggers AI coverage if a named insured’s employee is hurt on the job, no matter what the cause.  The court cites to Strauss Painting, Inc. v Mt. Hawley Ins. Co., 105 AD3d 512, 513 [1st Dept 2013], mod on other grounds 24 NY3d 578 [2014]; W & W Glass Sys., Inc. v Admiral Ins. Co., 91 AD3d 530, 530-531 [1st Dept 2012]) for this proposition, neither of which speak to that issue.  The First Department continues to stretch AI coverage way beyond its intended target and breadth, in this editor’s opinion.

04/29/15       Matter of Hertz Corporation v. Holmes
Appellate Division, Second Department
Decision in Framed Issue Hearing that Vehicle was Not Involved in the Accident, Overturned by Uncontroverted Evidence; Therefore Application to Stay Uninsured Motorist Arbitration Permanently Stayed
On September 8, 2011, the Holmes was operating a rental vehicle owned by self-insured Hertz, when it was involved in a collision in Brooklyn. The other vehicle allegedly left the scene of the accident.

Hertz concluded that the other vehicle was owned by Morrison and insured by Travelers. Morrison denied any involvement in the accident and, on that basis, Travelers denied Holmes's claim for property damage. Holmes filed a claim with Hertz for uninsured motorist’s benefits. Hertz denied the claim, Holmes demanded arbitration, and Hertz commenced this proceeding to stay arbitration.

After some legal rambling, a framed-issue hearing was conducted on June 6, 2014, before a referee, who had been directed to hear and determine the issue of whether Morrison's vehicle was involved in the accident. All parties testified and the referee concluded that "Ms. Morrison's car was not in the accident," and, in an order dated June 6, 2014, the court attorney referee, in effect, denied the petition and dismissed the proceeding.

However, the Appellate Division, reviewing the record, concluded that the uncontroverted evidence adduced at the framed-issue hearing established that Morrison's vehicle, a 2003 Mercury Mountaineer, was involved in the subject accident.
Editor’s Note:  Our regular reminder on UM/SUM protocol:  if a demand for Uninsured Motorist Benefits arbitration arrives at an insurer’s door (or mailbox), the insurer has 20 days to bring an application in court to stay that arbitration if the insurer believes that the matter should not proceed because of a legal or policy defense.

04/28/15       JLS Industries, Inc. v. Delos Insurance Co.
Appellate Division, First Department
Question of Fact on Reasons for Insured’s Extended Delay in Providing Notice but No Claim for Bad Faith Remains as Insurer Acted Reasonably
JLS sought coverage for a 2005 accident.  The insured claims that it learned of the accident in 2008 when it received a subpoena in 2008 but did not notify the insurer at that time because it did not believe it was responsible for the accident and did not believe it would be sued.  Whether that was a reasonable believe is a question of fact that must be resolved by a fact finder.  When a third party action was commenced against it in 2010, the carrier was notified and quickly denied coverage based on later notice.

There will need to be a factual hearing on the reasonableness of the insured’s belief of non-liability.

The insured alleged bad faith.  That claim was dismissed.  There is no evidence that defendants acted in "gross disregard" of plaintiff's since they carried out an investigation, and disclaimed based on the facts then known and the applicable case law.

Equally unavailing is plaintiff's claim to recover defense costs for the declaratory action, since "no fees are recoverable where, as here, it is the insured who initiated the legal action to determine its rights under the policy”.

04/28/15       Mathis v. Zurich Insurance Company
Appellate Division, First Department
Requirements Under 3420(d)(2) for Timely Disclaimer Only Apply to Policies Issued Within New York State
It is Insurance Law Section 3420(d)(2) that imposes on an insured the obligation to disclaim timely (usually within 30 days) and send copies of disclaimers to the insured, the injured party and any other claimant.  It is that section that has led to numerous decisions in New York holding that reservation of rights letter do not substitute for disclaimer letters and ROR’s are generally rejected by New York courts.

This decision reminds us that strict requirements of timely disclaimers with appropriate notifications only apply to New York issued policies.  Remember!  They only apply to bodily injury and wrongful death claims.

HEWITT’s HIGHLIGHTS ON SERIOUS INJURY UNDER NO-FAULT LAW
Robert E.B. Hewitt III
[email protected]

05/06/15                 Canales-Ruiz v. Velasquez                  
Appellate Division, Second Department
Issue of Fact Found Where Plaintiff Submitted Affidavits from Several Treating Physicians Which Found Range Of Motion Limitations Spasm and Pain
The Appellate Division reversed the lower court’s determination of summary judgment for defendants finding that plaintiff had raised an issue of fact in opposition. Defendants submitted competent medical evidence that the alleged injury to the cervical region of plaintiff’s spine did not constitute a serious injury under either the permanent consequential limitation of use or significant limitation of use categories through the affirmed reports of his treating physician and the defendants' examining physician and plaintiffs' bill of particulars. On January 26, 2011, approximately three months after the subject accident, plaintiff Canales-Ruiz's treating physician in physical medicine and rehabilitation performed range of motion testing on plaintiff Canales-Ruiz's cervical spine and found that "C-Spine range of motion is within normal limits.  On January 8, 2013, approximately two years and three months after the subject accident, the defendants' examining orthopedist examined plaintiff Canales-Ruiz using certain orthopedic and neurological tests, and found that there were no sensory deficits in the upper extremities. The doctor performed range of motion testing on plaintiff Canales-Ruiz's cervical spine using a goniometer, and found that his range of motion testing results when compared to normal findings were all normal and opined that plaintiff Canales-Ruiz had no orthopedic disability at the time of the examination
In opposition, plaintiff raised an issue of fact as to whether he had sustained a serious injury to the cervical region of the spine. Plaintiff Canales-Ruiz's treating physicians, in subsequent evaluations, stated in their evaluations that there was mild pain and a decreased range of motion in the plaintiff's cervical spine, and paraspinal muscle spasm and trigger points in his cervical spine.

04/29/15                 Morafates v. Macchia
Appellate Division, Second Department
Defendants’ Doctor’s Affirmation Must Set Forth the Basis for Its Conclusion That Plaintiff’s Injuries Were Solely Attributable to a Subsequent Accident
The Appellate Division reversed the lower court’s finding of summary judgment in favor of defendants.  The Appellate court found that the defendants did not meet their prima facie burden of demonstrating their entitlement to summary judgment. Defendants relied on the affirmation of their examining orthopedic surgeon who opined that plaintiff’s orthopedic condition was “completely attributable” to a subsequent accident that took place three and a half months after the accident at issue. The Appellate Division found that the orthopedist completely failed to set forth the foundation for that conclusion, and therefore, could not be relied upon to grant summary judgment.

MARGO’S MUSINGS ON NO FAULT

Margo M. Lagueras
[email protected]

Arbitration

04/06/15       Erie County Medical Center v A. Central Ins. Co.
Erie County, Arbitrator Michelle Murphy-Louden
Respondent Found To Have Improperly Delayed Claim
Applicant sought reimbursement for emergency room services and respondent claimed verification remained outstanding.  Rather than the NF-5, applicant submitted a UB-04 (uniform billing form).  Respondent did not forward an NF-5 to applicant as it should when the injured person has not yet submitted the NF-2.  If the injured person has already submitted the NF-2, then the NF-5 is not necessary and the insurer may instead request additional verification by ways of an NF-4.  11 NYCRR 65-3.5(g) requires an insurer to process a hospital’s claim upon receipt of the NF-2 and NF-4, or an NF-5, or an NF-5 and a UB-04.  Therefore, the information in the NF-2 is not necessary or required in order to process a hospital’s claim, and the insurer may not delay the hospital’s claim for lack of the NF-2 from the injured person.  As between the NF-2 and the NF-5, an insurer may only delay payment for emergency room services where an NF-5 has been provided but not yet completed and returned.

04/01/15       Graham R. Huckell, MD v Geico Ins. Co.      
Erie County, Arbitrator Mona Bargnesi
Office Visit Long After No Further Complaints Is Denied
Applicant performed arthroscopic knee surgery on the EIP in September 2012.  In follow up visits “dramatic improvement” was noted.  In December 2013 an IME was performed in which normal range of motion was documented.  The IME examiner opined that there was no evidence of orthopedic disability and no need for any further orthopedic treatment.  For an unexplained reason, however, the EIP was seen again in April 2014, and reimbursement for that visit was denied.

The arbitrator noted that Dr. Huckell’s own records showed that the EIP had reported dramatic improvement and was “happy with her left knee condition.”  Furthermore, the NY Workers’ Compensation fee schedule contemplates 90 days as the recommended follow up for such surgery.  The disputed office visit, nineteen months after the surgery, fell well beyond that time frame and nothing in Applicant’s records rebutted the IME report or established the need for such visit.

04/01/15       John Bialecki, DC v USAA General Indemnity Co.
Erie County, Arbitrator Mona Bargnesi
Applicant’s Verbal Opt-Out of PPO Network Was Ineffective
Applicant’s claim was initially denied as having been submitted beyond the 45-day period.  Respondent, as a courtesy, then reconsidered its decision and paid the claim in accordance with the terms of applicant’s agreement with the PPO network in which he participates.  Applicant argued that he should be reimbursed in full because he opted out of the PPO network in 2013.  However, according to the agreement, either party can terminate the agreement by 90 days written notice and, according to the Senior VP of the PPO’s Workers’ Compensation and No-Fault services, he spoke with applicant and advised him that written notice was required and no such notice was ever received.  Given that applicant did not submit any evidence that he ever submitted a written request to terminate the PPO contract, that contract remained in effect and respondent properly reimbursed the disputed service.

Litigation

04/14/15       Harmonic Physical Therapy, P.C. v Praetorian Ins. Co.
Appellate Term, First Department
Defendant Properly Paid Other Providers after Denying Plaintiff’s Claim
Defendant denied plaintiff’s claim on the ground of lack of medical necessity.  Sometime after that, the policy exhausted through the payment of arbitration awards to other providers.  Plaintiff argued that defendant was precluded by 11 NYCRR 65-3.15 from paying other providers after denying its claims.  The court disagreed noting that that would require defendant to delay payment of uncontested claims or binding arbitration awards which would run counter to the purpose of the no-fault law.

03/26/15       Compass Medical, P.C. v American Independent Ins. Co.
Appellate Term, Second Department
Complaint Dismissed For Lack Of Personal Jurisdiction
Defendant, a Pennsylvania company, argued that the court did not have personal jurisdiction as submitted in support several affidavits from its casualty managers and its claims casualty supervisor to the effect that it is not licensed to do business in New York, does not solicit business in New York and has no offices, bank accounts or agents in New York.  Plaintiff submitted nothing more than a conclusory affirmation of its counsel stating that defendant transacted business in New York by “knowingly issuing policies” in New York.  Plaintiff also contended that defendant’s motion should have been denied and the Civil Court should have ordered jurisdictional discovery.  The court held that plaintiff’s contention was raised for the first time on appeal and was therefore not properly before the court.  In addition, the conclusory affirmation did not constitute tangible evidence to make even a “sufficient start” to show that essential jurisdictional facts might exist warranting discovery.  As such, the complaint was properly dismissed.

03/17/15       Parkview Medical & Surgical, P.C. v Allstate Ins. Co.
Appellate Term, Second Department
Affidavit by Plaintiff’s Owner Fails to Meet Initial Burden
Plaintiff claimed that defendant failed to pay within the requisite 30-day period and submitted in support an affidavit stating that plaintiff had timely mailed the claim forms and that defendant failed to pay.  On appeal, the trial court was reversed and plaintiff’s motion denied because the Appellate Term determined that the affidavit only stated that the claims had not been paid but did not demonstrate that defendant failed to deny the claims within 30 days or that defendant had issued a denial that was conclusory, vague or without merit as a matter of law. 

03/16/15       East Gun Hill Medical, P.C. v MVAIC
Appellate Term, Second Department
Where Timely Claim Not Filed, Assignor Is Not “Covered Person”
Defendant established that a notice of claim was not timely filed nor was leave sought to file a late notice.  Given that the notice of claim was not filed, plaintiff’s assignor was not a “covered person” and was not entitled to no-fault benefits.  Therefore, on appeal the Civil Court was reversed, plaintiff’s motion denied and defendant’s cross motion to dismiss the complaint granted.
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

05/05/15       Inner City Redevelopment Corp. v Thyssenkrupp El. Corp.
Appellate Division, First Department
Where a Party Procures Insurance with a SIR, it Acts as an Insurer and Must Provide a Defense as if it Were
Plaintiff moved for summary judgment based upon a theory of contractual indemnification. The motion was correctly denied by the Trial Court where the indemnity provision in question required a finding of Thyssenkrupp’s negligence.  The court noted that the duty to defend, and indemnify, are the same scope under an indemnification clause.  Indemnity, in other words, did not substitute for insurance.

On the insurance point, however, the Appellate Division reached a different conclusion.  In this case, Thyssenkrupp was required to procure insurance for plaintiff. Whether or not it did, it appears that the Thyssenkrupp policy contained a large SIR.  The Appellate Division ruled that the duty to procure insurance extended to Thyssenkrupp regardless of the SIR.  As such, per the insurance procurement clause, they were required to provide a defense as if they were an insurer.  In so holding, the Court noted the long settled rule that the duty to defend of an insurer is broad. 

4/28/15         Sicilia v City of New York
Appellate Division, First Department
No Indemnity Where Third Party Beneficiary Status is Excluded, and the Purported Indemnitees are Not Otherwise Parties to the Contract
Defendants City of New York and Vertex moved for contractual indemnification against co-defendant JB Electrical.  JB opposed the City’s motion on the basis that the contract upon which the claims are based is not signed by the City. Moreover, the contract does not otherwise identify the City as an indemnitee.  Finally, and most damaging, the contract at issue expressly precludes third party beneficiaries.

Vertex’s motion for contractual indemnity failed where they did not actually include the portion of the contract under which the claims were based in the Record.  Further, Vertex’s argument that JB Electrical’ s testimony about their current insurance procurement obligations did not establish that JB Electrical agreed to procure insurance with regard to this project. 

4/28/15         CPW Realty, LLC v Lexington Ins. Co.
Appellate Division, First Department
Omission of Language Does Not In and Of Itself Constitute Ambiguity
In this case, both Lexington and Arch issued policies covering losses arising out of delays.  The Arch policy provided coverage for the costs which arose out of delay in completion of the project.  The Lexington policy succinctly provided that it covered losses arising out of delay. However, that policy did not specify if the delay had to be related to the project or a portion of the project. 

The plaintiff appears to have argued that the Lexington policy provided coverage not for delay in the project, but rather delays involving individual units.  Lexington appears to have argued that it applied on a project level scale.  In resolving the matter, the Court noted that “an omission [presumably referencing the lack of definition to the term delay]…does not constitute an ambiguity.”  As such, the Court looked to the rest of the policy which appeared to apply on a project level. Accordingly, the Court reasoned that the delay endorsement applied in the same manner. 

In reaching its decision, the Court also noted that plaintiff failed to identify a consequential damage as defined by Bi-Economy.  Finally, the Court also noted that the faulty workmanship endorsement of one of the policies was more specific than a protection-of-property provision.  Accordingly, the Court applied the more specific language.
FITZ’ BITS

Elizabeth A. Fitzpatrick
[email protected]

Swamped this week.

AUDREY’S ALL THINGS PERSONAL

Audrey A. Seeley
[email protected]

Not this week.

CASSIE’S CAPITAL CONNECTION
Cassandra A. Kazukenus
[email protected]

04/23/15       Leading Ins. Group Ins. Co. v. Argonaut Great Central Ins. Co.
New York State Supreme Court: Westchester County
Slip And Fall on Sidewalk In front Of Premises Did Not Arise out of Tenant’s Maintenance or Use of Leased Premises.
The Benincasas rented commercial space from Hartsdale Village Square to run a dry-cleaning business.  The lease between the Benincasas required them to provide for snow and ice removal on the sidewalks adjacent to the building, but there were no other requirements related to the maintenance or repair of the sidewalk.  The underlying action, from which this coverage action arises, involved a lawsuit commenced by Carol Kellner wherein she alleged that she slipped and fell on the sidewalk in front of the dry-cleaners.  She alleged there was defect to the sidewalk, and there was no allegation that her fall was caused by a failure to remove snow and ice. 

Leading commenced this suit to determine whether Argonaut had an obligation to provide Hartsdale coverage as an additional insured under an insurance policy it issued to the Benincasas.  Argonaut denied any obligation to Hartsdale and its carrier, Leading, because the Benincasas’ only obligation under the lease was for snow and ice removal on the sidewalk. 

Argonaut argued that the additional insured provision in its policy only provided coverage for “liability arising out of the ownership, maintenance or use of that part of the premises leased to you and shown in the schedule,” and because the accident occurred on the sidewalk in front of the premises, there was no additional insured coverage.  Argonaut further asserted that the lease only required the Benincasas to maintain the interior of the premises, and other than snow and ice removal, the Benincasas had no duty to repair the sidewalk, and as a result, the accident did not arise out of the premises leased to the Benincasas.

In opposition, Leading asserted that the additional insured coverage was triggered because the abutting sidewalk of the premises is covered under the terms of the policy, and that the repair of a sidewalk is not a structural. 

The court agreed with Argonaut and held that Hartsdale was not entitled to coverage as an additional insured under the Argonaut policy.  In coming to this conclusion, the court reviewed the lease and found that there was nothing in the lease to indicate that the Benincasas were responsible for the maintenance and repair of the sidewalk, and as such, the additional insured coverage was not triggered because “the accident did not occur within that part of the premises leased” to the Benincasas.  The fact that Kellner was merely using the sidewalk to get to a business down the street rather than using it to enter the dry-cleaners was found to be a “further weakening” of the nexus between her accident and the leased premises. 

A3121/S4674          SUM Benefits Removal of $250,000 maximum.

This bill was reported to the Assembly floor recently, and it is identical to a prior bill from the 2013-2014 Legislative session which had passed the Assembly but died in the Senate. 

Currently, the purchase of SUM coverage is optional to insureds, and the Governor had previously vetoed legislation which sought to require an insured to actively opt out of the coverage rather than opt to pay for the coverage.  This bill would require the following language at the time of purchase of an auto policy:

SUM insurance protects any insured under the policy if they are injured in an accident caused by a driver who has no insurance or less insurance than you carry.  SUM coverage may be purchased at limit up to the level of bodily injury liability coverage of the policy.  Policyholders are urged to carefully consider this in determining the level of SUM coverage to purchase.

The bill would then require, on the same page as the above notice that the insured be offered a choice of purchasing:

  1. SUM coverage equal to the level of bodily injury limits on the policy;
  2. SUM coverage at limits less than bodily injury limits on the policy; or
  3. A mandatory minimum SUM coverage.

 

Additionally, the agent or insurer would be required to disclose to the insured what SUM coverage is and what premiums would apply at each level of coverage.  

While the SUM coverage would remain optional, the bill would require strong recommendations of purchasing SUM coverage, and it would remove the current $250,000 maximum limit.

 

KEEPING THE FAITH WITH JEN’S GEMS

Jennifer A. Ehman
[email protected]

Enjoying the new baby.

EARL’S PEARLS
Earl K. Cantwell
[email protected]

02/04/15       Nationwide Mutual Fire Insurance Co. v. McDermott
Sixth Circuit
“High” Court Disclaims Property Damage Caused By Pot Growing Operation
The policyholder had a homeowner’s policy with Nationwide Mutual.  Her husband set up a marijuana growing operation in the basement, and began using a procedure called “butane extraction” to manufacture a byproduct known as “honey oil” which was more lucrative than marijuana itself.  However, as one might expect where butane is involved, fireworks ensued.  The operation caused a fire that destroyed the house, and the policyholder made a claim under her Nationwide policy. The insurance company paid over some $160,000.00 on the loss, but then filed suit declaring it did not owe the coverage, and sought a judgment seeking recovery over of amounts paid out.  The homeowner countered that Nationwide breached the insurance contract and Michigan law regulating fire insurance policies. 

The trial court granted summary judgment to Nationwide, and held it was entitled to recover about $140,000.00 it paid out, including some $131,000.00 paid to JP Morgan Chase Bank, the mortgage holder.  On appeal, the homeowner argued she was entitled to coverage because she was an “innocent co-insured” under Michigan law.

Nationwide Mutual argued that an endorsement to the policy expressly required the homeowner to notify Nationwide of any “change in the use” of the premises.  The appellate court agreed that the homeowner did not comply with this notice obligation because she did not inform Nationwide Mutual when her husband began using the basement to commercially grow marijuana.  This was a change in use that would have had an impact on the premium risk and underwriting since it was not a minor rearrangement or modification to the property but an elaborate marijuana processing facility.  Therefore, the appellate court held that the endorsement barred recovery under the policy.

This first point of this case is that the insurance company was fortunate that most of the insurance proceeds went to JP Morgan Chase, a solvent party from whom to recover repayment. 

Secondly, the case focused on the “change in use” endorsement, and the obligation of the policyholder to notify the carrier of any significant change in use that would affect the underwriting analysis and risk involved.  This change in use also changed the nature of the property from purely residential to at least a quasi-commercial operation. 

Third, this is at least one instance where in examining insurance coverage and claims the courts did not succumb to reefer madness.

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