Dear Coverage Pointers Subscribers:
You have a situation? We love situations. Welcome to the 407th issue of Coverage Pointers.
It is always sad when Labor Day weekend arrives. I dread the end of summer season. I don’t like shorter days and longer nights. I don’t like impending days of colder weather. I should move to South America right about now, but the commute to New York Supreme would be a challenge.
The end of the summer will bring, shortly, the onslaught of appellate opinions. New York appellate courts are notoriously quiet in the summer months and it will take another 30 days before the flood gates open. In the meantime, we bring you our meager offerings, which includes two wins by the H&F team. We’ll take that any time.
We appreciate the hospitality shown us over the last couple of weeks in Worcester, Mass and in White Plains. The topic of both training sessions was an important one, the duties owing and the relationship between primary and excess carriers. We enjoy taking our training classes on the road, although we’ve done some by Webinar, “Go to Meeting” and similar programs. We’ll be traveling to the Cleveland area in the next few days to present on my favorite topic, the interrelationship of additional insured clauses and trade contract indemnification agreements, “Tackling Tenders”.
Law School for Insurance Professionals
Sponsored by the New York State Bar Association Torts, Insurance and
Compensation Law Section
Need a refresher course on how to write an effective coverage position or disclaimer letter? Thinking of writing a Reservation of Rights letter but you know that they are often ineffective in New York? Dealing with liens and discovery issues and priority of coverage questions and feel like your drowning?
We can help you.
If you haven’t signed up for the NYS Bar’s signature program for claims professionals, there is still time, but don’t miss the opportunity. Our own Beth Fitzpatrick serves as state-wide co-chair and Beth and I will both be presenting the “primer” course on coverage letters in three of the five cities:
Registration Fee - $90 | Discounted rate for CPCU and RIMS Members - $80
Group Rate (for groups of 5 or more) - $80 per person
To Register:
- Online at www.nysba.org/TICL
- Call: 1.800.582.2452 (U.S. and Canada) or 518.463.3724 in the Albany and surrounding area
- Mail to: State Bar Service Center
New York State Bar Association
One Elk Street, Albany, NY 12207
- Fax to 518.463.5993
Friday, September 19, 2014
Albany
Tuesday, September 30, 2014
Syracuse
Friday, October 17, 2014
Long Island
Monday, October 20, 2014
New York City
Monday, October 27, 2014
Buffalo
- Back to the Basics and Beyond: Crafting a proper disclaimer, the right to independent counsel, claw back on defense costs, and the after of the K2 decision.
Elizabeth A. Fitzpatrick, Esq. (Long Island & New York)
Dan D. Kohane, Esq. (Buffalo)
- Discovery Dilemmas – Give Them What? New case law affecting the discoverability of documents, counsel reports, and preservation of materials.
- Assessing the Priority of Coverage : Multiple insurers on the risk – who owes defense?, allocation of defense and indemnity, equitable subrogation, recovering from other responsible insurers.
- Liens, Liens Everywhere: subrogation versus lien interests, duty to protect Medicare interest under Medicare Secondary Payer Act, Medicare replacement plan interests, extinguishment of subrogation claims under GOL 5-335, and ERISA plan rights of reimbursement.
- An Update on Auto Liability and Coverage Issues: spousal coverage, permissive use, arising out of the use of an automobile, rental vehicles.
- Interactive Presentation Involving the Use of an Expert / Mediator / Judge:
Intruder/Negligent security cases. This panel consisting of an expert and attorneys skilled in this area of the law will address general issues regarding these cases, the use of experts, investigation that may be undertaken, defenses and coverage issues.
Cassie’s Capital Connections:
Happy Labor Day Weekend! Things remain slow on the Legislative front, but I did include a discussion on a proposed DMV regulation. This proposal is simply a draft and has not been submitted to the Department of State for public comment at this time so it may change prior to publishing of the regulation for public comment.
Also, I would like to thank our friends at Farm Family for hosting a terrific panel counsel seminar that was extremely informative. It was great to see all the familiar faces I don’t see when I stop by the office and meeting many of the new people which have joined the team. I always enjoy getting an opportunity to speak with the people I work with on a regular basis in person rather than on the phone. Plus there are always those interesting “I have this claim…” questions!
Enjoy your long weekend!
Cassie
Cassandra A. Kazukenus
[email protected]
Time Stands Still a Century Ago:
The Brooklyn Daily Eagle
Brooklyn, New York
August 29, 1914
13 POST OFFICE CLOCKS STOP AT 4:45
It was announced in the Federal Building today that thirteen clocks there had stopped simultaneously at 4:45 a.m. today. Officials were puzzled to account for the phenomenon. They attributed it to an earthquake shock too faint to be noticed save for the stopping of the timepieces.
Editor’s Note: Try as I might, I have found no corresponding evidence of an earthquake impacting New York in August 1914. The mystery continues.
Peiper’s Portfolio:
The final week of Summer nearly froze me out of the current issue. At long last, the Second Department saved my Bacon with an August 27th opinion. In the Bacon decision, the Court directly addresses the GOL 5-321 question that, for some reason, still confuses people. After this decision, there should no longer be a dispute. Repeat after me…GOL 5-321 does not categorically void lease provisions that provide the lessor with indemnification for its own negligence. It may look like GOL 5-322.1 (governing construction contracts), but it is far, far different.
As a side note, I was going to prepare a 7 degrees from Kerry Bacon anecdote. Upon further thought…meh…it’s Labor Day Weekend. I’ll save my creativity for the return of Fall.
That’s it for now, best wishes on an enjoyable Labor Day Weekend and the return of College Football. Huzzah!
Steve
Steven E. Peiper
[email protected]
Editor’s Note: Steve’s too unassuming to mention his superb victory on behalf of GuideOne Insurance in the Second Department this week. Read all about it in my column in the attached issue.
A Century Ago --World War I Rages, President Attempts to Play Golf:
The Brooklyn Daily Eagle
Brooklyn, New York
August 29, 1914
WILSON OUT IN RAIN
President Takes Auto Ride, but
Cannot Play Golf
Cornish, N.H., August 29—President Wilson took an automobile ride to Hanover, N.H., today in spite of a heavy rain which prevented him having a round of golf. The President was accompanied by Dr. C. T. Grayson.
The President’s trip to Hanover was made through a driving rain over muddy and slippery roads. He stopped for several minutes at the clubhouse in the town and then returned to Cornish.
Editor’s Note: The President’s wife Ellen Axson Wilson died of Bright’s disease on August 6, 1914, just three weeks earlier. In March of 1915, he met Edith Bolling Galt and they were married nine months later. It was Edith Bolling Galt that many credit acted as President following President’s Wilson’s stroke in October 1919.
Jen’s Gems:
Greetings.
Hope everyone enjoys the upcoming long weekend. Personally, this should be a fun weekend for my family since my brother-in-law is getting married and my daughter has the tremendous responsibility of being a flower girl for the ceremony. She is very very excited about it, mostly because of her dress, which contains a lot of lace and tulle. Things little girls love. My biggest concern is that she will get distracted halfway down the aisle and make a break for the closest relative she sees. We will have to do some practice runs.
In terms of my column, this week I would highlight the decision of Continental Ins. Co. v. Greenwich Ins. Co., out of Supreme Court, New York County. The decision deals with an accident that occurred prior to the execution of the purchase order. Surprisingly, the Greenwich policy contained three separate additional insured provisions, none of which contained the language requiring a written contract be executed prior to the accident. In turn, the motion to dismiss was denied as to the additional insured claims because Continental was able to raise the potential existence of an oral contract in which insurance coverage was contemplated.
Again, hope everyone has a nice weekend. Until next issue…
Jen
Jennifer A. Ehman
[email protected]
Speaking of Babies, One Hundred Years Ago Births Were a Bit Different:
The Brooklyn Daily Eagle
Brooklyn, New York
August 29, 1914
“TWILIGHT SLEEP”
SUCCESSFUL HERE
Jewish Hospital Adopts It
Permanently as Treatment
for Mothers
PRAISED BY DR. R. S. FOWLER.
Method Will Probably Be a Feature
at Long Island College and Methodist Episcopal Hospitals
The absolute success of the “Twilight Sleep” method of bringing children into the world has been demonstrated in Brooklyn, according to the statement of doctors who have been testing it quietly at the Jewish Hospital for upward of a year past. Within that space of time more than thirty cases of confinement have been handled with the “twilight Sleep” treatment by Dr. Ralph Beach, head obstetrician at the Jewish Hospital, and in every instance the result has been a satisfactory one, and has confirmed the claims that the method is one of utter painlessness.
So satisfied are the members of the staff of the hospital, that they have adopted it as the regular course of treatment of all confinement cases brought there, and it will probably be extended to the Long Island College Hospital, where in the last few weeks a number of cases have also been successfully handled. It is probably that the method may also be adopted by the Methodist Episcopal Hospital. Dr. Beach is the assistant obstetrician at both of these institutions. In the last forty-eight hours he has handled four confinement cases in which the “Twilight Sleep” method was used.
Painless, Mrs. Fowler Did Not Know
Baby Had Been Born
One of these was the wife of Dr. Russell S. Fowler of 301 DeKalb avenue, who yesterday gave birth to a nine and a quarter-pound boy at the Fowler summer home at Huntington, L.I. The results of her case were especially good.
“The patient suffered absolutely no pain,” declared Dr. Beach when questioned by an Eagle reporter today. “An hour and a half after the child arrived we asked Mrs. Fowler if the baby had been born, and she said, “No.” When she found that it had been born, she was completely surprised. Both the mother and the child are in fine condition.”
Editor’s Note: Because we have no life, we decided to see what happened to Dr. Fowler’s son. We did find census records for Russell and Nellie Fowler and they did have a living son in the 1920 and 1930 records. However, it was this baby’s older brother; it appears the 1914 Fowler baby died young.
Collier’s New Encylopedia (1921) had this entry for TWILIGHT SLEEP: derived from the German word “dämmerschlaf,” an anesthetic employed in relieving the pain of childbirth, consisting of the hypodermic use of a combination of scopolamine and morphine in solution. It was first used by Drs. Krönig and Gauss in their private hospital in Freiburg, Baden, Germany, but attracted little attention until described in an American magazine article in 1914, after which it was tentatively used in a number of American hospitals, causing much discussion in the daily press for several months. It is now very seldom employed in this country, and was almost entirely ignored by the medical profession in European countries. Its superiority over chloroform was never obvious. Aside from that, the use of anesthetics in childbirth is generally deprecated by modern practitioners, the mother's consciousness being required to enable her to assist in the delivery of the child through her own physical efforts.
Fitz’s Bitz:
Dear Subscribers:
I enjoyed my time in Chicago at the NYS Bar TICL Summer Meeting, seeing old friends and making new.
It is hard to believe that summer is winding down, but it is and we are focused on our September and October programming for Law School for Insurance Professionals, which I have told you about several times here. The program provides great information on both coverage and substantive legal topics from those who know these issues best and it also provides great opportunities for networking. The brochure is being finalized, but if I can provide you with additional information or assistance registering, please feel free to reach out to me.
In accordance with my continuing focus on construction defect litigation, this week I bring you a decision from California where the court found no coverage for construction defect claims since they arose prior to inception of the policy, rejecting the ever popular argument that the policy was ambiguous.
Til next time,
Beth
Elizabeth A. Fitzpatrick
[email protected]
A Century Ago – Justice Appointed:
James Clark McReynolds (February 3, 1862 – August 24, 1946) was nominated to a seat on the US Supreme Court on this day 100 years ago. He had been United States Attorney under Wilson before that. Justice McReynolds served on the Court until his retirement on January 31, 1941, and although appointed by a Democrat was known for his conservative opinions opposing much of FDR’s New Deal legislation.
McReynolds had also become known for his openly professed anti-semitism, racism and misogyny. This even resulted in severe personal conflicts with fellow Supreme Court judges Brandeis, Cardozo and Frankfurter who were Jews. Fellow judges and other employees of the Supreme Court later described him as bad-tempered or outright rude, and have suggested his many abrasive personal traits affected his performance as a Supreme Court judge. An interesting article detailing this Justice’s bigotry can be found here.
As fate would have it, his seat is now occupied by Sonia Sotomayor, the first Latina Supreme Court Justice in United States history.
The First Month of WW I:
At the End of the First Month of the Great War
On August 29, 1914, an agonizing French Catholic soldier, in an ambulance bombarded by the Germans in the war front, asks a military chaplain, whom he believes to be a priest in a cassock for a Crucifix. The chaplain was Chief Rabbi Abraham Bloch, who brings brings and presents to him the crucifix: moments later, both would be killed by an exploding shell.
Hunter’s Hints:
As another two weeks of summer peels away, with vacation days fading as quickly as the evening sunshine, we have yet another light load of cases from the New York Appellate Courts regarding “serious injury”. This week we examine three cases from the Second Department. Each decision reverses the granting of summary judgment to defendants for a different reason; reexamining doctor’s reports, reevaluating deposition testimony, and reviewing if plaintiff met the initial burden.
As always, I am available anytime to field your New York “serious injury” inquires. I look forward to hearing from you, dear readers. Enjoy the end of summer.
Dan
Daniel T. Hunter
[email protected]
Headlines of This Week’s Issue:
KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]
- A Corporation is Not a “Person” for the Purposes of Violation of the Rights of Privacy Claims under “Coverage B”
- Late Notice Without Investigation = No Reasonable Excuse
- Coverage Denial Issued 24 Days After Notice = Timely as a Matter of Law
- Motion to Stay Arbitration Must be Filed within 20 Days of Arbitration Demand
- SUM Coverage Not Available While Operating Another Car Owned by the Insured but Not Covered Under the Policy
- New York, Not Florida Law Governs SUM Coverage Determination When NY Insured is Seeking SUM Benefits Under NY Policy for Florida Accident
HUNTER’S HINTS ON SERIOUS INJURY UNDER NO-FAULT LAW
Daniel T. Hunter
[email protected]
- Examination of Plaintiff's Testimony Leads to Reversal
- Affirmation of Plaintiff's Doctor Leads to Reversal of Lower Court's Order Granting Defendants' Summary Judgment
MARGO’S MUSINGS ON FAULT
Margo M. Lagueras
[email protected]
Arbitration
- A Decade After MVA, Applicant Found to Still Be Receiving Palliative Benefits
- Failure to Provide Peer Reviewer With Sufficient Medical Records Results in Insufficient Report
- Claim Denied Despite Insufficient Peer Review
Litigation
- Defendant Establishes EUO Notices Were Proper and Plaintiff’s Assignor Failed to Attend
- Defendant’s Lack of Coverage Defense Upheld
- Prejudgment Interest Accrues from Date of Service of the Summons & Complaint Where Action Not Commenced With 30 Days of Receipt of Denial
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
- Lessor Entitled to Indemnification Where it Established Proof of Both Parties’ Intent to Allocate Risk to the Leasee
FITZ’ BITS
Elizabeth A. Fitzpatrick
[email protected]
- No Coverage for Construction Defect Claims
AUDREY’S ALL THINGS PERSONAL
Audrey A. Seeley
[email protected]
- Doing the grizzly thing in Alaska
CASSIE’S CAPITAL CONNECTION
Cassandra A. Kazukenus
[email protected]
- Proposed Draft Regulation to Implement Electronic Auto Insurance ID Cards
KEEPING THE FAITH WITH JEN’S GEMS
Jennifer A. Ehman
[email protected]
- Waiver of Subrogation Clause in Trade Contract Bars Action
- Motion to Dismiss Denied Where Alleged Additional Insured Submits Evidence of an Oral Contract
Bad Faith
- Court Dismisses Bad Faith Claim; References the Insured’s Failure to Appeal the Prior Finding that the Insurer Did Not Breach the Contract
EARL’S PEARLS
Earl K. Cantwell
[email protected]
- Court Not Sold On Mold
That’s all for now. Our very best wishes for a glorious Labor Day Weekend to our friends in the states and a great Labour Day Weekend to those who celebrate up in Canada.
Any questions? Call or write.
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]
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
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
Hunter’s Hints 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]
09/28/14 Sportsfield Specialties, Inc. v. Twin City Fire Ins. Co.
New York Court of Appeals
A Corporation is Not a “Person” for the Purposes of Violation of the Rights of Privacy Claims under “Coverage B”
New York’s highest court denied the appellant’s application for leave to appeal to the Court of Appeals in this matter, previously reported as a Third Department decision in April:
A sweet victory.
In the autumn of 2009, Sportsfield, a sports equipment company hired a competitor's employee who was subject to a non-compete agreement from his former employee. The employee in question was subject to non-compete and electronic rights agreements. In November 2009, the competitor, a North Carolina corporation, commenced an action in that state alleging, as to Sportsfield, tortious interference with contract and business relations, unfair and deceptive trade practices and misappropriation of trade secrets.
Sportsfield was insured under two policies of insurance, a CGL policy issued by Twin City and a commercial umbrella policy issued by CastlePoint. Sportsfield notified its broker Harding and Harding notified Twin City, but not CastlePoint. . In February 2010, Twin City declined to defend and/or indemnify Sportsfield in the action by the competitor.
The North Carolina action proceeded to trial and, in July 2011, the jury returned a verdict in favor of the competitor; the judgment was in excess of $3.2 million. One month later, Sportsfield contacted Twin City and CastlePoint requesting that they defend and indemnify plaintiff with respect to the underlying judgment. This was CastlePoint’s first notice of the incident and lawsuit. Both Twin City and CastlePoint denied coverage under the policies. CastlePoint included a late notice disclaimer, alleging prejudice.
The complaint in the North Carolina action alleged that plaintiff engaged in tortious interference with contract and business relations, unfair and deceptive trade practices and the misappropriation of trade secrets, prompting plaintiff to seek coverage under the "personal and advertising injury" portion of the subject policies.
The policies issued by the primary and excess carriers defined "personal and advertising injury" as an injury, other than a bodily injury, arising out of both the insured's business and one or more of the enumerated offenses set forth therein, including the "oral or written publication of material that violates a person's right of privacy."
The Third Department found that the term "person" in the context of this coverage does not mean a corporation. Yes, there are times when “person” can mean corporation but not in the context of the policy.
In Twin City's policy, the "[o]ral or written publication of material that violates a person's right of privacy", is sandwiched between two other offenses in Twin City's policy that make express reference to misdeeds perpetrated against either a person or an organization, thereby suggesting that the omission of any reference to an organization from the subject offense was intentional. Although the parties debate whether CastlePoint's policy draws as clear a distinction between the terms at issue, the claim of tortious interference with contract and business relations, unfair and deceptive trade practices and misappropriation of trade secrets, do not constitute a violation of "a person's right of privacy" within the meaning of either Twin City's or CastlePoint's policy.
The complaint in the underlying action alleged conduct on the part of plaintiff that extended beyond the misappropriation of trade secrets and, in general, encompassed the acquisition and/or use of confidential and proprietary information belonging to its competitor. However, those allegations cannot be equated with an invasion of the competitor's "right of privacy" which is a personal right.
Moreover, exclusions relative to the personal and advertising injury coverage otherwise afforded by its policy — the intentional conduct exclusion, the breach of contract exclusion and the trademark exclusion would remove coverage in any event.
So both carriers walk and the Third Department never reached the issue of the late notice defense raised by the excess carrier.
Editor’s Note: We were delighted to represent CastlePoint, the excess carrier in this matter. We extend our congratulations as well to my good friend, Stephen M. Lazare of Lazare Potter & Giacovas LLP, who ably represented Twin City.
08/20/14 Guideone Ins. Co. v Darkei Noam Rabbinical College
Appellate Division, Second Department
Late Notice Without Investigation = No Reasonable Excuse
Coverage Denial Issued 24 Days After Notice = Timely as a Matter of Law
Darkei Noam was named as a defendant in a lawsuit commenced by David Siegler. Mr. Siegler fell at Darkei Noam’s mikvah (a ritual bathing pool) on July 25, 2005. The evidence submitted to the court revealed that, at a minimum, in late September/early October of 200 the Darkei Noam’s supervising Rabbi was informed that an incident had occurred in the mikva. However, rather than conducting an investigation, Darkei Noam simply waited to see if it turned into a more formal complaint.
Upon receipt of the lawsuit in June of 2006, Darkei Noam immediately forwarded the suit papers to GuideOne and requested coverage for the incident involving David Siegler. Because Darkei Noam failed to proffer any evidence of an investigation, the Court ruled that its delay of at least seven months was untimely as a matter of law. In addition, the lack of investigation precluded Darkei Noam from making any argument excusing their delay.
Darkei Noam challenged the GuideOne denial letter on the basis that an investigation was unneeded, and as such a delay of 24 days in disclaiming was untimely under Insurance Law 3420(d)(2). In rejecting that argument, the Second Department noted that the “short delay” in issuing the disclaimer was appropriate where, as here, GuideOne conducted a diligent investigation between the time of initial notice and denial.
Editor’s Note: Atta lawyer Steve Peiper, who handled this case successfully at the Appellate Division.
08/20/14 American Commerce Ins. Co. v. Nowicki
Appellate Division, Second Department
Motion to Stay Arbitration Must be Filed within 20 Days of Arbitration Demand
CPLR 7503(c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate) The timeliness of a proceeding for a stay of arbitration is measured from the date of receipt of the demand for arbitration to the date of the filing of the notice of petition and petition
Here, it is undisputed that the petitioner received the appellants' demand for arbitration of their claims on June 3, 2013, but that the petitioner did not file its notice of petition and petition until July 1, 2013, which was beyond the 20-day statute of limitations. Consequently, the proceeding is time-barred.
Editor’s Note: About once every two months we have a case like this and we remind you – if an insurer believes that a SUM case (supplementary uninsured/underinsured motorist case) should not be arbitrated, it must bring a special proceeding to stay arbitration within 20 days of receipt of the demand, or be forever barred from raising legal issues. Any question, call!
08/20/14 Matter of GEICO v. Beltran
Appellate Division, Second Department
SUM Coverage Not Available While Operating Another Car Owned by the Insured but Not Covered Under the Policy
Beltran was hurt when his motorcycle collided with car. The motorcycle was insured by Dairyland Insurance Company, with statutory minimum coverage of $25,000 per person/$50,000 per incident and no supplementary uninsured/underinsured motorist (SUM) coverage. The automobile involved in the collision also had the statutory minimum coverage of $25,000 per person/$50,000 per incident. The appellant commenced an action against the owner of the automobile, which was later settled for $25,000, the limit of the policy. At the time of the collision, the Beltran had an automobile insurance policy through GEICO with SUM limits of $100,000 per person/$300,000 per incident.
The appellant sought coverage under the SUM provisions of the GEICO policy. GEICO issued a disclaimer on the ground that the claim was subject to a policy exclusion that excluded SUM motorist coverage for bodily injury sustained by an insured while occupying a motor vehicle owned by the insured but not covered under the policy.
The policy language in question was not ambiguous and GEICO was entitled to have the provisions it relied on to disclaim coverage enforced The SUM endorsement under the subject policy provided, in relevant part, that it did not apply "to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made, or is not a newly acquired or replacement vehicle covered under the terms of the policy." This language must be construed according to its plain and ordinary meaning.
This policy exclusion unambiguously excluded from SUM coverage compensation for bodily injuries sustained by an insured when injured in a motor vehicle accident while occupying a motor vehicle he or she owns, which vehicle was not covered under the policy.
08/20/14 Matter of Unitrin Direct v. Brand
Appellate Division, Second Department
New York, Not Florida Law Governs SUM Coverage Determination When NY Insured is Seeking SUM Benefits Under NY Policy for Florida Accident
Brand, a New York resident, was operating a bicycle in Florida when he was struck by a car owned by Collins. Collins lives in Florida and his car is registered there.
Collins was insured under a Florida-issued Allstate policy with liability limits of $100,000 per person/$300,000 and SUM limits also of $100,000 per person/$300,000 per occurrence. Allstate tendered the bodily injury policy limit in the amount of $100,000 in settlement of Brand's claim.
Brand had a policy with Unitrin with equal limits, $100,000/$300,000 liability and SUM. Brand sought to arbitrate a SUM claim and Unitrin moved for a permanent stay of arbitration, arguing that since the liability limits of both policies were identical, SUM coverage did not trigger.
The question was whether NY or Florida law would apply.
In a coverage dispute, the state where the policy was issued is the primary factor utilized in choosing applicable law.
Under New York law, SUM coverage is only triggered where the bodily injury liability insurance limits of the policy covering the tortfeasor's vehicle are less than the liability limits of the policy under which a party is seeking SUM benefits. Here, Collins' Allstate policy limits for bodily injury were identical to Brand's Unitrin policy limits for bodily injury. Hence, Collins does not qualify as an underinsured driver.
Accordingly, the Supreme Court properly granted the petitioner's application to permanently stay arbitration of a claim for SUM benefits.
HUNTER’S HINTS ON SERIOUS INJURY UNDER NO-FAULT LAW
Daniel T. Hunter
[email protected]
08/20/14 Hernandez v. Sollo
Appellate Division, Second Department
Examination of Plaintiff's Testimony Leads to Reversal
The Appellate Division, Second Department reversed the trial court's order granting summary judgment and dismissing plaintiff's personal injury action. The Appellate Division found that Defendants failed to meet their prima facie burden of showing that Plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). Defendants' motion papers argued that Plaintiff's deposition testimony established that Plaintiff did not sustain a serious injury under the 90/180 day category of Insurance Law §5102(d). However, after examining plaintiff's deposition testimony, a triable issue of fact exists as to whether Plaintiff had such injuries or impairments since Plaintiff testified that she was unable to continue working as a babysitter five (5) days a week, approximately eight (8) hours a day, due to neck and back pain allegedly suffered as a result of the motor vehicle accident. As such, the Appellate Division notes that the trial court should have denied Defendants' motion for summary judgment dismissing Plaintiff's complaint.
08/20/14 Preston v. Ziane
Appellate Division, Second Department
Affirmation of Plaintiff's Doctor Leads to Reversal of Lower Court's Order Granting Defendants' Summary Judgment
The Second Department reversed a Supreme Court, Queens County order which granted Defendants' motion for summary judgment dismissing the Complaint on the ground that the Plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d). Defendants met their prima facie burden presenting evidence demonstrating that Plaintiff did not sustain a serious injury. However, in opposition in the motion, Plaintiff was able to raise a triable issue of fact through the affirmation of a treating physician as to whether the injured Plaintiff sustained a medically determined injury or impairment of a non-permanent nature as a result of the subject matter accident which rendered her unable to perform substantially all of her daily activities for not less than ninety (90) days of the first one hundred eight (180) days thereafter. As such, the lower court erred in granting Defendants' summary judgment motion.
08/20/14 Smith v. Berrios
Appellate Division, Second Department
Order Reversed as Defendants Failed to Meet Initial Burden
The Supreme Court, Nassau County order granting Defendants' motion for summary judgment to dismiss Plaintiff's Complaint on the grounds that Plaintiff did not sustain a serious injury within the meaning of Insurance Law §5102(d) was reversed by the Second Department. The Second Department notes that the motion papers submitted by Defendants failed to adequately address Plaintiff's claim, as set forth in the bill of particulars, that she sustained a serious injury under the 90/180 day category. The Appellate Division notes that since Defendants did not sustain their initial burden, it is unnecessary to determine whether the paper submitted by Plaintiff in opposition were sufficient to raise a triable issue of fact.
Margo M. Lagueras
[email protected]
Arbitration
08/20/14 Applicant v Amica Mutual Insurance Co.
Erie County, Arbitrator Kent l. Benziger
A Decade After MVA, Applicant Found to Still Be Receiving Palliative Benefits
Applicant was involved in an mva in February 2004 and was treated over the years by numerous providers. In 2005, a chiropractic IME was performed and recommended a continuation of chiropractic treatment for two months. Also in 2005, a physiatrist examined the Assignor and recommended mechanical cervical traction in physical therapy, massage for two weeks, trigger point injections and medication. Treatment was not expected to be required for more than six weeks.
In 2010, another chiropractic IME was performed and it was noted that the Assignor complained of cervical pain upon rotation of her neck about twice a month and lasting two to three days each time. She also complained of pain radiating to her ears and lower lumbar pain. She further stated that her symptoms had plateaued about two years earlier. The examining chiropractor found causality, but concluded that she would not reach pre-accident status with further chiropractic treatment. The treating chiropractic issued a rebuttal to this IME report stating that the Assignor would be totally disabled and unable to work if not for the chiropractic treatment.
The Arbitrator agreed and found that Respondent did not meet its burden given that the examining chiropractor found limited range of motion, positive orthopedic findings and causal relationship. While noting that a reasonable person might question whether chiropractic treatment could continue to be beneficial a decade after the accident, Respondent was limited by the 2010 chiropractic IME which was rebutted by the treating provider.
08/15/14 Amherst Medical Supply, LLC v Geico Insurance Co.
Erie County, Arbitrator Douglas S. Coppola
Failure to Provide Peer Reviewer With Sufficient Medical Records Results in Insufficient Report
The claim was for durable medical equipment (DME), specifically an interferential stimulator and a lumbar orthosis. It was prescribed by the treating chiropractor supposedly to decrease pain and muscle spasms and increase activities of daily living and overall function. Respondent arranged for a peer review and the reviewer denied the reasonableness and medical necessity of the DME. However, the review did not review any of the chiropractic treatment records other than the prescription for the DME itself. Moreover, he did not review any medical records or reports other than the emergency room records and actually lamented in his review that no other reports were provided to him for review. Clearly, this simply will not suffice for a peer review and, not surprisingly, the Arbitrator did not uphold the denial.
08/14/14 Elite Medical Supply of NY, Inc. v Liberty Mutual Insurance Co.
Erie County, Arbitrator Mona Bargnesi
Claim Denied Despite Insufficient Peer Review
The EIP was a pedestrian who allegedly sustained injuries to his left hip, pelvis and left wrist, as well as lacerations to his right knee and a fractured nose and mandible. The claim was for a multi-mode stimulator unit (MMS) prescribed two weeks after commencing chiropractic treatment and exactly two months after the accident. The diagnosis on the prescription was “muscle weakness”.
The Arbitrator found the peer review to be conclusory and generalized because, although it contained a detailed recitation of the EIP’s medical history, it did not discuss the specifics of the EIP’s condition and failed to explain why the MMS was not necessary for this EIP’s specific condition. However, the Arbitrator also noted that none of the chiropractic treatment records, other than the prescription and letter of medical necessity, were contained in the ECF and there were no complaints of neck or back pain, either in the emergency room reports, or in any of the treatment notes of physicians in the days following the accident but prior to commencing chiropractic treatment. In fact, all the records indicated that the EIP’s low back pain was pre-existing and the only diagnosis noted by even the chiropractor was of “muscle weakness”, something consistent with the EIP’s history of “chronic back pain”.
The Arbitrator concluded that the EIP’s statement that the history taken at the hospital was incorrect was “self-serving, and an attempt to shoehorn his pre-existing injuries into a new no-fault claim.” The claim was accordingly denied.
Litigation
07/28/14 Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co.
Appellate Term, Second Department
Defendant Establishes EUO Notices Were Proper and Plaintiff’s Assignor Failed to Attend
Plaintiff claimed reimbursement was owed for three dates of service (DOS) and defendant moved for summary judgment asserting that plaintiff’s assignor failed to appear for duly scheduled EUOs. Plaintiff argued that the EUO scheduling letters were untimely as the requests were not made within 15 business days from the receipt of the claims. The trial court denied defendant’s motion but was reversed on appeal.
In effect, the first scheduling letter was mailed 21 days after the claim for the first DOS was received. The follow up was mailed 11 days after the assignor failed to appear. Given that the first request was six days late, this reduced defendant’s time to pay or deny the claim from 30 to 24 calendar days. The scheduling letter for the second DOS was mailed 16 days after the claim was received. The follow up was mailed 11 days after the assignor failed to appear. Therefore, the time to pay or deny the second DOS was reduced to 29 days. The scheduling letter for the third DOS was timely having been mailed within the 15 days following receipt of the claim.
On appeal, the court found that the affidavit from defendant’s attorney was sufficient to describe the office procedures for mailing EUO scheduling letters and also that plaintiff’s assignor had failed to appear for either of the duly scheduled EUOs. In addition, the affidavit of defendant’s litigation examiner established that office procedures for mailing the denials had been followed. Furthermore, and given that plaintiff’s assignor failed to respond in any way to defendant’s requests for EUOs, the reasonableness of the requests would not be considered by the court. Therefore, defendant’s motion should have been granted.
07/28/14 Delta Diagnostic Radiology, PC v American Transit Ins. Co.
Appellate Term, Second Department
Defendant’s Lack of Coverage Defense Upheld
Plaintiff moved for summary judgment and defendant cross-moved on the grounds that it had not issued an insurance policy covering the accident in question. The Civil Court found in defendant’s favor and, on appeal, the ruling was affirmed. The court held that the affidavit from defendant’s no-fault examiner established that there was no coverage and, contrary to plaintiff’s assertions, defendant was not required to describe in detail the steps taken in searching its records to demonstrate that there was no coverage at the time of the accident.
11/12/13 Parsons Med. Supply, Inc. v GEICO Ins. Co.
Appellate Term, Second Department
Prejudgment Interest Accrues from Date of Service of the Summons & Complaint Where Action Not Commenced With 30 Days of Receipt of Denial
The issue was whether interest should accrue from the date of filing, or the date of service, of the summons and complaint. Here, the filing was on October 27, 2008, but service was not completed until January 26, 2009. At trial, the parties stipulated that the only issue was medical necessity. Judgment was entered for plaintiff in March 2011, and included interest from October 27, 2008.
Defendant moved to modify arguing that interest should have been awarded from January 26, 2009. The Civil court denied but, on appeal, was reversed because, pursuant to 11 NYCRR 65-3.9[c], if arbitration or a lawsuit is not commenced within 30 days after receipt of a denial, interest shall not accumulate until such action is taken. Here, defendant timely denied plaintiff’s claims and plaintiff did not commence the action with 30 days. In addition, the NY City Civil Court Act, section 412, provides that interest does not begin to accrue until service of the summons with the index number properly depicted is provided to the defendant. Section 412 applied to this case because section 65-3.9[c] does and, therefore, defendant’s motion to modify the judgment was granted.
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
08/27/14 Bacon v 4042 Austin Boulevard, LLC
Appellate Division, Second Department
Lessor Entitled to Indemnification Where it Established Proof of Both Parties’ Intent to Allocate Risk to the Leasee
Plaintiff sustained injury when she slipped and fell on ice outside of a building owned by 4042 Austin. 4042 Austin leased the building to South Island, and pursuant to the lease sought contractual indemnification from South Island.
On motion for summary judgment, 4042 Austin established that the lease, which contained an indemnity provision and an insurance procurement provision, was meant to shift the risk of liability to the lessee. It was not, however, meant to insulate 4042 Austin from potential liability to any third party including, Ms. Bacon. In affirming the indemnity claim, the Second Department stated that commercial leases, executed at arm’s length, do not violate GOL § 5-321 where they are merely meant to shift the risk of exposure from lessor to lessee.
Elizabeth A. Fitzpatrick
[email protected]
07/21/14 American Zurich Ins. Co., et al. v. Ironshore Specialty Ins. Co.
United States District Court, Eastern District of California
No Coverage for Construction Defect Claims
The coverage dispute derived from claims amongst insurers arising from a group of settled and resolved construction defect matters. The pertinent facts are as follows:
On or about November 2010, Ironshore received a tender on behalf of Sherman Loehr involving litigation captioned Peterson v. Del Webb California, an action by homeowners in a housing development alleging various construction defects against Dell Webb California. On October 12, 2010, Dell Webb had filed a cross-complaint against Sherman Loehr and other subcontractors.
In December, the third-party administrator for Ironshore recommended that Ironshore disclaim because the construction project at issue was completed prior to Ironshore issuing the insurance policy. The policy at issue included the following exclusion:
This insurance does not apply to any bodily injury or property damage which first existed, or is alleged to have existed, prior to the inception of this policy . . .
On May 14, 2013, plaintiff American Zurich Northern Insurance Company and Steadfast filed the present action against Ironshore alleging that Ironshore owed Sherman Loehr a duty to defend the Peterson action because the information and documentation available to Ironshore at the time of tender confirmed that a potential for coverage existed. Plaintiff Northern moved for summary judgment as to the cause of action for declaratory judgment as to the defendant’s duty to defend.
Noting an insurer’s broad duty to defend its insured and that the initial determination is made by comparing the allegations of the complaint with the terms of the policy, but that extrinsic facts may also give rise to a duty to defend, the court found the only rational interpretation of the allegations of the complaint is that the claim was predicated on faulty construction.
The court rejected the plaintiff’s main assertion, to wit, that the complaint failed to allege specific dates as to when the damage occurred, noting that extrinsic evidence showed that the construction of all of the homes involved were completed in 2003, well before inception of the 2009 policy. The court also rejected plaintiff’s contention that the provisions within the policy created a material conflict so as to make them unenforceable, noting that the policy specifically provided that property damage caused by work that was completed prior to the policy’s inception was excluded from coverage. The court, thus, denied plaintiff’s motion for partial summary judgment.
Audrey A. Seeley
[email protected]
Doing the grizzly thing in Alaska.
CASSIE’S CAPITAL CONNECTION
Cassandra A. Kazukenus
[email protected]
Proposed Draft Regulation to Implement Electronic Auto Insurance ID Cards
Please note that this regulation is simply a draft, and it has not been published for comment at this time.
The proposed regulation would include a new section, 32.16, which would allow the issuance of electronic insurance ID cards to serve as acceptable proof of insurance, the same as paper ID cards. The electronic proof of insurance will have to be capable of being displayed on a portable electronic device. The electronic ID cards cannot be issued for temporary ID cards, entities which are self-insured or for fleet transactions or dealers.
The electronic insurance ID cards will have to meet the same requirements applicable to paper ID cards, except for those provisions, which by their nature, can have no application. The electronic ID card must display the following information:
- The title: NEW YORK STATE INSURANCE IDENTIFICATION CARD;
- DMV assigned insurance code;
- Insurance company name;
- Name and address of the insurance company that issued the electronic insurance ID card;
- Name and address of the insured registrant or insured registrants;
- Policy number;
- Effective date and time;
- Expiration date and time;
- Description of the vehicle, including year, make and accurate and complete VIN;
- The applicable certification statement prescribed by §32.9(e);
- Other required or permitted wording such as “REPLACEMENT VEHICLE”, “HISTORICAL” or “TOW TRUCK” as appropriate;
- The statement: “(Not acceptable to obtain registration after 45 days from effective date)”; and
- A compliant encrypted 2D bar code produced in full accordance with the specifications prescribed by this Part and DMV technical documentation.
An insurer may also add the company’s trademark or other symbol as long as it does not interfere with the required information.
KEEPING THE FAITH WITH JEN’S GEMS
Jennifer A. Ehman
[email protected]
08/21/14 Hartford Insurance Company of the Midwest a/s/o 53rd v. Paramount Plumbing Co. of New York
Supreme Court, New York County
Waiver of Subrogation Clause in Trade Contract Bars Action
This subrogation action arises out of a fire that allegedly began in February 2009 inside the second floor tool shed belonging to Paramount, a plumbing subcontractor, at a construction site. It is alleged that Paramount was negligent in that its tool shed did not have a local sprinkler system installed. Hartford, as insurer for the owner, paid the claim and brought this action against Paramount.
In this motion to dismiss, Paramount asserts that the owner waived all rights of subrogation and recovery.
The Court held that the Rider to the Trade Contract states that the Construction Consultant has decided to implement a Contractor Controlled Insurance Program (“CCIP”) that will provide Workers’ Compensation, Employer’s Liability, General Liability and Excess Liability. The Rider then went on to state the Construction Consultant will provide and maintain in force the types of insurance listed in subsection (1) through (4) as part of the CCIP. Subsection (4) was listed as “Builder’s Risk Insurance.” Thus, the court concluded that there was no doubt Builder’s Risk was included as CCIP coverage. Thereafter, the Trade Contract stated that the owner waived all rights of subrogation and recovery against the Contractor to the extent of any loss or damage, which is insured under the CCIP.
Thus, the court concluded that since these paragraphs clearly and unambiguously precluded the owner from recovering for loss or damage which is insured under the CCIP, and the record clearly establishes that the loss at issue was so covered, this subrogation claim was barred.
08/07/14 Continental Ins. Co. v. Greenwich Ins. Co.
Supreme Court, New York County
Motion to Dismiss Denied Where Alleged Additional Insured Submits Evidence of an Oral Contract
Juan Mendez, an employee of Liberty Contracting Corp. (“Liberty”), was injured on a construction project. He brought a claim against, among others, the general contractor, Americon Contracting Corp. (“Americon”). Continental, Americon’s insurer, tendered its insured’s defense to Liberty and its insurer, Greenwich Ins. Co. When the tender was not accepted, Continental brought this action, and Greenwich moved to dismiss.
The basis of Greenwich’s motion to dismiss was that its policy had no endorsements or provisions amending the definition of named insured to include Americon. Moreover, although Greenwich’s policy contained three additional insured endorsements, they each stated that additional insurance will be provided where the named insured, Liberty, agreed in a contract to provide such coverage. Greenwich argued, in turn, that since the only agreement here was a Purchase Order entered into after the accident, the endorsements were not triggered.
In opposition to the motion to dismiss, Continental submitted an affidavit from Americon’s principal asserting that there was an oral agreement between Americon and Liberty, which was formed before the loss when Liberty started work on the project and that as a part of the contract Liberty agreed to procure additional insurance and provide contractual indemnity for the benefit of Americon.
The court reasoned that according to the policy’s additional insured endorsements, as a condition precedent to coverage for Americon, Liberty must have entered into an agreement with Americon, which required Liberty to procure such coverage for Americon. In reviewing the three provisions, only one contained an explicit requirement that the agreement had to be in writing. The other two were silent on the agreements form. Thus, the court found that either a written or oral agreement would suffice to provide such coverage in this instance, provided it was in place on the date of the accident. Therefore, because in its complaint Continental alleged the existence of an oral agreement providing for additional insured coverage, which predated the accident, the documents did not definitively dispose of Continental’s allegations and thus Continental stated a cause of action.
However, with regard to contractual indemnity, the exception to the contractual liability exclusion in the policy stated that the exclusion would not apply to “liability for damages…(2) Assumed in a contractor or agreement that is an ‘insured contract’, provided the ‘bodily injury’ or ‘property damage’ occurs subsequent to the execution of the contractor or agreement…” Because the Purchase Order was executed subsequent to the accident, the exception did not apply.
Bad Faith
08/14/14 Murphy v. Patriot Insurance Company
Supreme Court of Vermont
Court Dismisses Bad Faith Claim; References the Insured’s Failure to Appeal the Prior Finding that the Insurer Did Not Breach the Contract
In late July 2007, plaintiff reported to Patriot that a recent storm had caused damage to the flashing on her roof, allowing water to enter the house. Patriot engaged a claims adjuster who went to the property. The adjuster observed damage to the garage and ceiling of an enclosed porch and dampness in the finished portion of the basement. The inspection also included an examination of the roof where the adjuster observed no exterior damage due to wind and no damage to the flashing on the roof around the rear chimney or holes in the roof. Payments were then made for the wind and water damage to the home.
The following month, plaintiff filed an additional claim with Patriot after a worker discovered damage from rot resulting from water infiltration near the front chimney. The adjuster returned to the property, and Patriot initially made additional payments. In this report from the return visit, the adjuster concluded that the rot was caused at the same time as the other July 2007 damage for which plaintiff was previously compensated. While initially disagreeing with this conclusion due to the fact that a ceiling stain was not discovered until September, Patriot refunded the deductible from the second payment and paid an additional amount representing the policy limit for mold or rot.
Deeming this insufficient, plaintiff filed a claim for breach of contract. Following a motion for summary judgment, the court ruled that the homeowner’s policy clearly and unambiguously limited damages relating to fungi or rot to $10,000, and the provision providing coverage for “collapse” of a building or part of a building did not apply to the chimney, which plaintiff had intentionally removed. Plaintiff subsequently amended her complaint to add claims for negligence and bad faith. Those claims form the basis of this motion.
The court first considered the negligence claim. Plaintiff argued that Patriot had an independent tort duty to handle her claim in a reasonable manner and violated that duty by negligently inspecting and processing her claim, with the result that she suffered additional property damage and health problems associated with exposure to mold. The court affirmed the lower court’s finding that plaintiff had failed to establish that Patriot owed a clear, non-contractual duty to her. Instead, the relationship between insured and insurer is governed by the insurance policy and the accompanying duty of good faith and fair dealing.
With regard to the bad faith claim, the court held that at best plaintiff might claim that the adjuster failed to find that the true cause of water infiltration was through the front chimney. However, such a claim falls well short of the knowing and reckless conduct required for a finding of bad faith. Also, the court discretely noted that plaintiff failed to pursue an appeal on any claim that Patriot breached its contractual obligations by denying coverage. In the court’s view, this placed the insured in the illogical position of claiming that Patriot had no reasonable basis to deny plaintiff’s claim, while foregoing any challenge on the merits to any basis for Patriot’s coverage determination.
EARL’S PEARLS
Earl K. Cantwell
[email protected]
3/27/14 Cornell v. 360 West 51st Street Realty, LLC, 2014 WL 1237483
Court of Appeals
Court Not Sold On Mold
An apartment resident sued the building owners for injuries alleged caused by prolonged mold exposure. Plaintiff’s expert was found by the Court of Appeals not to have offered adequate proof of proximate causation. In a 4-2 decision, the New York Court of Appeals granted summary judgment dismissing the Plaintiff’s claim.
The majority decision stressed that all Plaintiff’s expert testimony established was a “possible” association between mold and Plaintiff’s injuries. However, such an alleged “association” did not qualify as proof of proximate causation to a reasonable degree of medical certainty. Based upon the scientific and academic record presented to the trial court, the Court of Appeals holds that the Plaintiff did not establish a “cause and effect” relationship between the mold and the injuries which entitled Defendants to summary judgment.
The two judge dissent disagreed, finding that causation was sufficiently established to constitute a matter of fact appropriate for jury resolution.
This case represents another indication of the difficulties plaintiffs and their lawyers are having in establishing causation between mold and physical injuries, both from the general medical literature and on a case-specific basis. Plaintiffs’ counsels are finding it difficult to present sufficient expert testimony and medical literature review to establish causation on a sufficient basis or with the requisite “reasonable medical certainty”. This is made more difficult by the often generalized respiratory and other symptoms claimed to be associated with mold exposure.
This case also represents an example of trial court conducting an in-depth expert review and “Frye hearing” to analyze the medical testimony and literature in a mold case, with the courts concluding that the evidence linking mold to injuries is not conclusive, and not generally accepted within the medical and scientific community. All too often there is a lack of such hearings in New York State cases because experts are not deposed routinely well before trial, and expert witness disclosure is often received on the order of 30 days before trial, so that detailed, lengthy, and in depth review of expert opinions pre-trial is difficult to achieve in New York Practice, procedurally and substantively.
