Dear Coverage Pointers Subscribers:

Do you have a situation?  Give us a call and we will help you analyze it and both resolve and dissolve it.

I bring greetings from Banff, in the stunning Canadian Rockies, where Beth Fitzpatrick and I are attending the annual meeting of the Federation of Defense & Corporate Counsel.  The scenery is fabulous and the educational programs are unique and thought provoking.

Atta President:

Special kudos to our firm’s President and Managing Partner (and my classmate), Ann E. Evanko. Ann was honored as number 38 of the Western New York’s Power 100 Women in Friday's print edition of Buffalo's Business First.  This list showcases the 100 most powerful women in WNY. Congratulations to Ann on this honor!

Congratulations to Vicki Roberts and Steve Farrar:

Hurwitz & Fine, P.C. sends it heartiest congratulations to Vicki Roberts from Meadowbrook Insurance Company on the completion of her term as President of the Federation of Defense & Corporate Counsel (FDCC).  We also send our warmest and heartiest congrats to Steve Farrar, of the South Carolina firm of Smith, Moore Leatherwood LLP on his assumption of the FDCC’s presidency this weekend. The defense community and the insurance industry are blessed by their great service.

Who are We?

We just heard from Bruce MacEwen, a lawyer and consultant to law firms on strategic economic issues.  In a fascinating discussion about law firm focus, he reminded me that we need to advise our clients and friends, from time to time, who we are and what we do. 

Hurwitz & Fine’s Coverage Team considers itself (and thankfully, so do many of our clients), counsel to the New York Insurance industry and market.  We pride ourselves in working on behalf of that industry in many ways, including providing strategic and legal representation and counseling, training and educating our industry partners, volunteering our time and energy to public and legislative activities that strengthen the position of the industry in the market and partnering with insurers and trade organization on a state and national level to improve their business position.

We have a national coverage practice and often serve as excess and coverage counsel in for insurers through the United States and Europe.  However, our focus is primarily New York, with lawyers strategically placed throughout the state so that our clients can have a regional firm with a local touch.

If we can help you, call us.  If you need counsel or strategic advice, reach out to us. If you want a second opinion, ask us.  If you have a situation, remember we love situations.

By the way, we also have teams that provide Labor Law, construction defect, regulatory, products, motor vehicle, premises and commercial litigation representation.
Training and Empowerment:
We provide personalized training for insurers, locally, regionally or nationally. Our goal is to empower claims professionals to take on both the routine and the complex matters that come before them.  Our training modules are designed for that purpose, to promote and enable self-reliance.
We revise our topical list as requests come in.  Here is a sample of programs provided in the past but we can craft one for you:

  • Tenders, Additional Insured Obligations, Indemnity Agreements and Priority of Coverage
  • Chaos Breeds Resolution: Mediation and the Role of Coverage Counsel in Resolving Chaos
  • Strategic Approaches to Resolving Insurance Coverage Disputes:  Do We Defend and Start a DJ? Do We Sit Back and Wait?
  • Good Faith, Consequential Damages and Extra-Contractual Liability - the New York Experience
  • NY Coverage Letters - Nuts & Bolts: How to Create and Write and Timely Send a Disclaimer Letter and NY’s Special Dangers with Reservation of Rights Letters
  • Uninsured and Underinsured Claims Handling
  • Preventing Bad Faith Claims - First Party Cases
  • Preventing Bad Faith Claims - Liability Cases
  • The Cooperation Clause - How to Handle
  • No-Fault Arbitrations and Appeals: Mock Arbitrations
  • The Serious Injury Threshold
  • No Fault Regs - Knowledge is Power
  • An Auto Liability Policy Primer
  • A CGL Policy Primer
  • A Homeowners Liability Policy Primer
  • EUO's Under First Party Policies
  • How to Resolve Coverage Disputes: DJ Actions, Insurance Law Section 3420 Direct Actions (Choice, Strategy and Timing)
  • Insured-Selected Counsel: When is it Necessary and How to Avoid it?
  • ADR and How to Get to "Yes"
  • “Other Insurance”

Interested?  Drop me a note at [email protected]
Wilewicz’ Wide World of Coverage:

Dear Readers,

The heat is on! Weather like this makes me reconsider living in an apartment without central air. We don’t even have an air conditioner; there just hasn’t been the need up here. It might be time to invest in one, if this continues.

This week in the Wide World, it looks like New York’s Federal Courts are the hotbed of coverage litigation this smoldering summer. A number of interesting decisions have come down that are well worth a look. First, two cases from the Southern District. In Mack-Cali, the court addressed a novel argument: that a snow/ice contractor’s work had been put to its “intended use” when pedestrians slipped and fell, thereby limiting coverage. The court held that since the contractor’s work was not really complete, in that they had a continuing duty to monitor and plow, it was not put to its “intended use”. Nevertheless, it was certainly an interesting argument to try.

Next, in Kips Bay, the insurers also tried some creative lawyering. There, the insurer was sued in state court for coverage in relation to a Sandy-related business interruption claim. The insured named ConEd as a co-defendant, asserting negligence on their part in contributing to the damage. The carrier removed the case to federal court, and then sought to sever ConEd from the case in order to keep diversity of citizenship alive (without the severance, the NY-based plaintiff insured and NY-based defendant ConEd killed federal jurisdiction). However, since the claims all arose of out the same basic facts, i.e. Hurricane Sandy, the court rejected all of the insurer’s arguments and sent the case back down to state court. Where there is a risk of duplicative discovery and “wasteful litigation”, the courts are not inclined to sever similar or related suits.

Finally, in State Farm v. GE, the Northern District addressed burdens of proof in defective design cases. There, State Farm insured a property that was damaged by fire that originated near a refrigerator. After paying the claim, they went after GE as the manufacturer. However, on summary judgment State Farm’s experts did not specify a defect in the fridge, they only opined about the cause and origin being near the lower part of it. With that, the court found an issue of fact and set the matter down for trial.

Stay cool, everyone. See you in a couple of weeks!

Agnes
Agnes A. Wilewicz
[email protected]

Police Officer Goes to Chair, One Hundred Years Ago:

For the background to this story, see, reference to our June 19th edition.
                       
The New York Times
New York, New York
31 July 1915

BECKER UNNERVED GOES TO CHAIR;
HIS BONDS SLIP

But First Application of Electric Current
Makes the Doomed Man Senseless.

DENIES GUILT TO THE LAST

Forgives All His Enemies,
He Tells Priest After Taking
His Last Communion.

BREATHES A PRAYER AT END

Had No Sleep After wife Left
Him—Pinned Her Picture
Over His Heart.

DYING MESSAGE LAUDS HER

Body Brought to Fordham Home—Church
Funeral to be Held Next Monday.
Special to The New York Times.

OSSINING, N.Y., July 30.—Charles Becker, the former New York Police Lieutenant, paid the penalty for first degree murder in the electric chair at 5:49 o’clock this morning.  His last breath was a prayer.

The iron nerve of the man convicted of the murder of Herman Rosenthal, the gambler, broke a few moments before the end of his long and harrowing ordeal was reached.  His body was trembling and his voice shaking at the moment when 1,850 volts of electricity were suddenly shot through him and cut short the last word of a response he was making in one of the Aspirations.  Becker’s response at this moment was, “Into Thy hands, O Lord, I commit my spirit.”

As he uttered the word “spirit” the crunching sound of the executioner’s swinging lever was heard by the witnesses in the rear of the room, and the big body in the electric chair tautened and surged up against the thick leather straps.  Then consciousness left Becker.         

Peiper’s Projections:

We start this week by coming at a continued theme from a different direction. 

From time to time, we will point out how a carrier loses a summary judgment motion simply by failing to address the validity of opposition arguments presented by a policyholder.  The Dryden Mutual Company case we review below details the flip side of the argument; when and how a carrier should oppose a policyholder’s motion for summary judgment.  In the Dryden case, the policyholder established that it did not set a fire that was being questioned as a potential arson.  What it failed to do, however, was address, and attempt to counter, Dryden’s argument that there was some evidence that the fire was incendiary.  Instead, it appears that the policyholder attorney fell victim to misapprehending its burden as movant.  Surely at trial Dryden must establish arson by “clear and convincing evidence.”  However, to defeat a motion for summary judgment it must only establish that the fire may have been intentionally ignited.  While we remind all to pay attention to your burden as a movant, the Dryden case reminds us that when opposing a motion for summary judgment a keen practitioner is also mindful of whether the movant has fully met its burden. 

We also highlight the Second Department’s review of indemnity agreements in commercial leases.  This continues to come up, and frankly we will continue our efforts at awareness.  The Court notes, again, that 5-321 is not violated, regardless of what the clause says, where the lease agreement is executed at arm’s length and the lease also includes an insurance clause.  Just because a lease appears to provide indemnity for a landlord’s own negligence, does not mean it is automatically void by operation of GOL 5-321.  It is written different and thus interpreted differently than its cousin GOL 5-322.1 which precludes parties to construction from being indemnified for their own negligence.

That’s it for now.  Oh, and one more thing, in case you’re wondering….I am advised that Ella and Charlie are both doing amazingly well. 

Steve
Steven E. Peiper
[email protected]

Wow, Was She Going Fast – 100 Years Ago:
                       
San Francisco Chronicle
San Francisco, California
31 July 1915

“Outrage,” Says Diva
Nabbed for Speeding
Mme. Schumann-Heink Was Going
Some, Says Unfeeling Speed Cop

SANTA ANA.  July 30.—“It’s a disgrace.  It’s an outrage!” Mme. Schumann-Heink, arrested today while en route from San Diego to Los Angeles in her auto, was the personification of indignation when arraigned for speeding.

“Why, me speeding!” she exclaimed.  “It’s preposterous.  Do you know who I am? I am Schumann-Heink of Chicago, and I go to the Saengerfest to sing.  Would you arrest the Governor of California?”

And then Madame subsided, when told it didn’t make any difference who she was, or where she was going, that all were treated alike, even if it was the Governor or President.  Two of her sons were fined $10 each, which was paid, but Mme. Schumann-Heink demanded a trial and deposited $10 bonds, protesting she would see her lawyers and fight it to the “bitter end.”  The speed cop said the diva’s car was making thirty-seven and a half miles an hour. 

Swallowing the Proof Was Difficult a Century Ago:

Times Herald
Olean, New York
31 July 1915

CHOKES ON EVIDENCE

Stolen Diamond Ring Reappears
Suddenly from Interior Region.

Atlantic City, July 31.—Walter Johnson complained to the police that he had lost a diamond ring at his boarding place.  Detective Captain Whalen hurried to the hotel.  Suspicion rested on George and Edwin Griffith, who were the other boarders on the same floor.  The detective questioned them.  Suddenly George swooned.  He appeared to be chocking to death.  The sleuth and Johnson worked over him.  He soon came back after vomiting and the ring rolled out of his mouth.  He had swallowed the evidence.  

Fitz’ Bits

Dear Subscribers:

Greetings from Banff where I am attending the FDCC annual meeting and enjoying temperatures some 40 degrees cooler than those my fellow Long Islanders are enduring. As usual, the program is packed with cutting edge presentations, not to mention the opportunity to reconnect with colleagues from all over.

As you know, I have been focusing my column on “emerging topics,” including coverage for cyber liability and data breaches.  While we continue to address the implications that such emerging trends implicate, several presentations here in Banff highlighted the innumerable issues we will be facing in the not too distant future involving driverless cars, as well as automated cars, that is, those that have technological assists in their operation, but remain controlled by a human driver, and connected cars, those that are able to communicate with each other, providing information as to speed, braking, or mechanical problems.  These technologies present great opportunity for reducing accidents, but certainly we will be facing great challenges as to both liability and coverage issues.

Recently, we learned that hackers had obtained the ability to control the transmission and brakes of a Jeep Cherokee, resulting in a recall of some 1.4 million vehicles by Fiat Chrysler to allow the manufacturer to engage in a fix, which will prevent (hopefully) hackers from having the ability to control a vehicle. Cyber liability and the repercussions to the industry resulting from data breaches, including the hacking of health information, will continue to present new challenges and insurers are responding by providing new products designed to address the damages resulting from these claims, which may well not be afforded coverage under a typical homeowners or CGL policy.

Insurers are also facing the implications of the popularity of transportation networking companies, such as Uber and Lyft.  The coverage implications are countless, as carriers, and the companies themselves, debate responsibility for affording insurance for accidents occurring while a driver is acting as an Uber driver.  Certainly, there may be agreement that if the accident occurs while the driver has a passenger in the vehicle, the responsibility would be that of Uber and not the personal insurer.  However, less clear, whose responsibility for an accident that occurs while a driver is en route to pick up the passenger and, even greater debate, for the time a driver has logged onto the app but is not en route to pick up a passenger. 

As we enter August, I hope you are finding time to enjoy the summer.

                                                                                   Til next time,

                                                                                    Beth
                                                                                    Elizabeth A. Fitzpatrick
                                                                                    [email protected]

Lest You Think I Forgot About Baseball Trivia (with thanks to Wiki, the source of all knowledge);

Jesse Lawrence Barnes took the mound for the first time in the Majors, 100 years ago yesterday with the Boston Braves. In 1917 he led the National League with 21 losses and on October 2, 1917, he became the only NL pitcher to walk two times in one inning.

In 1918, Barnes was traded to the New York Giants. He had three very good years with the Giants. On the last day of the 1919 season, he won his National League-leading 25th victory, 6–1, over Lee Meadows and the Philadelphia Phillies at Polo Grounds. The game was played at a feverish pace and lasted a mere 51 minutes, a major league record that still stands as the shortest nine-inning game ever played

In 1920 he had 20 wins, following with 15 wins in 1921 and two victories in the 1921 World Series against the New York Yankees. Then, in 1922 he hurled a no-hitter against the Phillies.

He returned to the Boston Braves in 1923, playing for them three years before joining the Brooklyn Robins from 1926 through 1927. For the second time, he led the league in losses (20) in 1924.

His younger brother, Virgil, also pitched in the majors, and both were teammates with the Giants from 1919 to 1923.

On June 26, 1924, Jesse opposed Virgil in the first pitching matchup of brothers in major league history. Virgil did not have a decision while Jesse was credited with the loss as the Giants defeated the Braves‚ 8-1. The Barnes brothers will match up four more times during their careers.

HEWITT’S HIGHLIGHTS:

Dear Subscribers:

As July comes to an end, and we are halfway through summer, the weather has turned hot. Too hot in my opinion. It seems not too long ago I was mentioning to you that it was too cold and there was too much snow on Long Island, so this shows I am never quite satisfied.  As for the serious injury cases in this edition, in one case, a psychologist did neurological testing and found notable cognitive deficits in plaintiff’s results. From there, the psychologist opined that plaintiff had suffered traumatic brain injury. 

However, the Appellate Court found that this determination of traumatic brain injury leap was too far, and that it was speculative and not based on any competent medical evidence. In doing so it not only reversed a jury verdict in the amount of $450,000, but said that summary judgment should have been awarded. The court did not state whether a psychiatrist’s determination would have had more value as to the medical determination.  In other case, a defendant was able to tie all of plaintiffs’ injuries to prior accidents and degeneration through a doctor’s report that was extensive, detailed, and addressed every claim of injury. Often, these kinds of cases can be won on the experts, and this case demonstrates the effectiveness of a non pro forma report forma can have.

Until next time and hopefully slightly cooler weather,

Rob
Robert Hewitt

[email protected]

Headlines:

As a point of information for our new subscribers, at the conclusion of this cover letter in each issue, we provide the headlines for the cases reported in the attached issue of Coverage Pointers:

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

  • Framed Issue Hearing Needed to Resolve Arbitrability of Uninsured Motorist Claim in “Hit-and-Run” Case
  • Statement Given to Investigator Was Evidentiary and Admissible
  • Work Product Exclusions Properly Raised to Deny Coverage
  • Whether a Policy Was in Force is a Proper Question to Be Resolved in a Direct Action

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

  • Psychologist Determination That Plaintiff Suffered a Concussive Brain Injury Based on Plaintiff’s Test Results Showing Deficits in Cognitive Function Was Speculative and Not Based on Any Objective Medical Evidence
  • Defendants’ Doctor Set Forth in a Detailed Report That Plaintiffs’ Injuries Were the Result of Long Standing Documented Pre-Existing Conditions
  • Defendants Made a Prima Facie Case That Plaintiff Did Not Suffer a Serious Injury to the Cervical and Lumbar Regions of His Spine but Plaintiff Demonstrated an Issue of Fact in Opposition
  • Defendants Failed to Address Plaintiff’s Claims of Serious Injury to the Cervical and Lumbar Regions of His Spine

 

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

  • .Margo is out for a little while and Cassie has filled in for her in her column.

 

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

  • Lack of a Covered Cause of Loss Precludes Business Interruption and Consequential Damages Claim
  • Although Plaintiff Met its Burden on SJ, Its Motion Failed to Address Dryden’s Opposition Based upon Arson

 

Potpourri

  • Insurance Procurement Clause, in an Arms-Length Commercial Lease, Cures 5-321 Defect

 

FITZ’S BITS
Elizabeth A. Fitzpatrick
[email protected]

  • In Banff.

WILEWICZ’S WIDE WORLD OF COVERAGE
Agnes A. Wilewicz
[email protected]

  • Snow and Ice Removal Work Was Not Put to its “Intended Use”, Thereby Limiting Coverage, Where Insured Had Continuing Duty to Monitor/Work
  • Insurer Cannot Sever a Federal Action In Order to Preserve Diversity, Where Claims Against Party to Be Severed and Those Against the Insurer Arise Out of the Same Occurrence
  • In Suit by Insurer Against Manufacturer of Allegedly Defective Fridge, Summary Judgment Denied Where Insurer’s Experts Did Not Pin Down Specific Defect

 

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

  • Arbitrator Had Authority to Deny Petitioner’s Claim For Reimbursement of No-Fault Appearance Where Respondent Failed to Appear and Allege That It Was Not a Motor Vehicle Insurer Subject To The Mandatory Arbitration Provisions of Insurance Law §5105.

 

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

  • Court Holds Right to Trial by Jury Exists When being sued for a Violation of New Jersey Insurance Fraud Prevention Act
  • Extra-Contractual and Bad Faith Claims Dismissed

 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

  • Club Shooting Excluded From Coverage

 

That’s a wrap, folks.  Going out find some moose, or bear or mountain lion or some such thing.  Hope to see you in a couple of weeks.
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
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, you
Diane F. Bosse

Topical Index

Kohane’s Coverage Corner
Hewitt’s Highlights on Serious Injury
Margo’s Musings on No Fault
Peiper on Property and Potpourri
Fitz’ Bits
Wilewicz’s Wide World of Coverage
Cassie’s Capital Connection
Keeping the Faith with Jen’s Gems
Earl’s Pearls

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

07/29/15       Matter of Allstate v. Carraro
Appellate Division, Second Department
Framed Issue Hearing Needed to Resolve Arbitrability of Uninsured Motorist Claim in “Hit-and-Run” Case
There was sufficient proof offered to justify the scheduling of a “framed issue” hearing in an uninsured motorist claim.  Under New York protocols, if an insurer receives a demand for arbitration is a “hit-and-run” uninsured motorists claim and believes that there the physical contact between the vehicles did not occur, it must apply to court for an order staying arbitration.  That application must be made within 20 days of the demand or the insurer loses its right to raise the issue.

In this case, there were questions of fact raised about the physical contact so the court temporarily stayed the arbitration to allow for a framed issue hearing to resolve that question.

07/28/15       Tower Insurance Company v. Brown
Appellate Division, First Department
Statement Given to Investigator Was Evidentiary and Admissible
Tower made a prima facie showing that it is entitled to summary judgment based on the affidavit of its claim adjuster stating that he spoke with Brown, who admitted that he did not reside at the premises when the incident occurred, as required by the policy.

Moreover, based on Brown's default in appearing in this action, Brown has admitted the allegations in the complaint that he did not reside in the premises when the incident occurred. The conclusory affirmation of the underlying plaintiff's counsel, which did nothing more than attack the veracity of Tower's investigator's affidavit, and contained no evidence that at the time of Caruth's fall, Brown actually resided at the insured location where Caruth was a tenant in one of the three units, was insufficient to raise issues of material fact or to warrant further discovery.

07/22/15       Kung v. Scottsdale Insurance Company
Appellate Division, Second Department
Work Product Exclusions Properly Raised to Deny Coverage
Kung obtained a judgment against Shin Yang Construction (“SYC”) and Zheng.  The plaintiff had claimed that the defendants had improperly constructed their home.  Scottsdale issued a CGL policy to SYC and denied coverage based on the work product exclusions which apply to damages caused to real property arising out of work performed by the insureds or their contractors or subcontractors, and to work that had to be]restored, repaired, or replaced because it was incorrectly performed by the insureds

Kung offered noting in opposition to change the court’s mind.  Coverage denied.

07/22/15       Garcia v. GEICO
Appellate Division, Second Department
Whether a Policy Was in Force is a Proper Question to Be Resolved in a Direct Action
GEICO moved to dismiss a direct action against it alleging that the court did not have subject matter jurisdiction to resolve the question. There was an unsatisfied judgment against a GEICO insured and the injured party, now judgment creditor, sought to secure those funds from the GEICO policy.

GEICO apparently argued that the subject umbrella liability insurance policy was not in effect at the time of the underlying accident.  That question is a substantive question, properly to be raised as a defense in the direct action but does not impact on the court’s jurisdiction to hear the case.

 

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

07/29/15                 Rumford v. Singh
Appellate Division, Second Department
Psychologist Determination That Plaintiff Suffered a Concussive Brain Injury Based on Plaintiff’s Test Results Showing Deficits in Cognitive Function Was Speculative and Not Based on Any Objective Medical Evidence
The Appellate Court reversed the lower court and granted summary judgment to the defendants. The Appellate Court also reversed a jury verdict in favor of plaintiff in the amount of $450,000. The plaintiff alleged that the force of the impact as a result of her accident caused her head to hit the steering wheel. However, she did not lose consciousness. The plaintiff was transported by ambulance to a hospital, where she was treated and released the same day. Although the plaintiff claims that she complained of a severe headache at the hospital, she was given no treatment for it.  At a trial on the issue of damages, the plaintiff relied upon the testimony of a psychologist who was board-certified in the field of neuropsychology to establish that she had sustained a serious injury. The psychologist, who first examined the plaintiff more than eight months after the accident, performed a range of tests that evaluate different aspects of cognitive functioning, including memory and concentration. Based upon the "positive" results of these tests, and his interview with the plaintiff, the psychologist concluded that the plaintiff had sustained a concussive brain injury in the accident. The psychologist further testified that his conclusion that the plaintiff's concussive brain injury was causally related to the accident was based on her statements indicating that she had no complaints of cognitive difficulties prior to the accident, and her account of hitting her head on the steering wheel.

The defendants moved pursuant to CPLR 4401 for judgment as a matter of law at the close of the plaintiff's case, arguing that the psychologist's testimony was legally insufficient to establish that the plaintiff sustained a serious injury. The Supreme Court denied the motion. The Appellate Court held that the lower court erred in denying the defendants' motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case. It concluded that there was no valid line of reasoning and permissible inferences which could have led the jury to conclude that the plaintiff sustained a serious injury under the significant limitation of use category of Insurance Law § 5102(d). Although the plaintiff's expert psychologist testified, based upon the results of certain tests that the plaintiff was suffering from deficits in cognitive functioning he failed to identify any objective medical evidence to support his conclusion that the plaintiff had suffered a concussive brain injury. Moreover, his finding that her neurological condition was causally related to the accident was speculative.

07/16/15                 Molesky v. Marra
Appellate Division, Third Department
Defendants’ Doctor Set Forth in a Detailed Report That Plaintiffs’ Injuries Were the Result of Long Standing Documented Pre-Existing Conditions
This decision reveals that plaintiffs’ vehicle was hit from behind at an intersection at a low rate of speech, and no damage to plaintiffs’ vehicle. However a year later, plaintiffs both sued claiming serious injuries. Disclosure revealed that five years earlier, both plaintiffs had received disability retirements from government jobs and had pre-existing injuries. Also, plaintiff Kevin Molesky had previously brought a lawsuit for similar injuries nine years earlier. Plaintiff Michelle Molesky also   received a settlement for neck and back injuries allegedly suffered in a 1994 motor vehicle accident.  The trial court granted summary judgment to defendants on lack of serious injury.

The Appellate Court found that defendants met their threshold burden with respect to both plaintiffs by submitting competent medical evidence that neither plaintiff suffered a serious injury caused by this accident.  They offered detailed, lengthy reports from a physician who examined their medical records and both plaintiffs. Kevin Molesky had undergone a prior discectomy in 2002. There was testimony that C5-6 and C6-7 had both been damaged in that prior accident but that C6-7 had not been  repaired because it was not damaged enough to repair at that time. He eventually had surgery on it in November 2011. The doctor noted Kevin Molesky did not seek treatment for five weeks and had no neck pain immediately after the accident. If the low impact accident at issue had caused the damage, he would have felt immediate pain. The November 2011 surgery was the result of natural degeneration from disc disease that started in 2002 and was exacerbated by a prior fusion. Although Kevin Molesky submitted an affirmation from his surgeon in 2002 and 2011, opining that the November 2011 surgery was the result of an injury sustained in the July 2011 accident, the surgeon failed to sufficiently and objectively distinguish the purported recent injury from the prior injury or adequately indicate that the accident exacerbated a preexisting condition

Turning to Michele Molesky, defendants’ doctor pointed out that her extensive medical records revealed prior accidents that resulted in back injuries, and that she had been under more than 10 years of ongoing care for neck and back pain prior to the July 2011 accident. Her condition had provided the basis for her to receive a state disability retirement, as well as Social Security disability. The doctor noted that less than two weeks before the accident, she had undergone multiple rhizotomy procedures to treat her back, leg and neck pain. He opined that she sustained, at most, "a very minor exacerbation" of her longstanding chronic neck and back problems. While plaintiffs’ doctor believed that Michele Molesky's subjective complaints resulted from the accident, Michele Molesky failed to submit sufficient objective evidence of a medically determined serious injury related to the subject accident.

07/15/15                 Stewart v. Dubuisson
Appellate Division, Second Department
Defendants Made a Prima Facie Case That Plaintiff Did Not Suffer a Serious Injury to the Cervical and Lumbar Regions of His Spine but Plaintiff Demonstrated an Issue of Fact in Opposition
This is one of those Appellate Division decision in which they do not set forth much of their reasoning. The Appellate Division reversed the grant of summary judgment by the lower court too the defendants, holding that although the defendants demonstrated a prima facie entitlement to summary judgment by showing plaintiff did not suffer a serious injury to the cervical or lumbar regions of the spine under either the permanent consequential limitation of use or significant limitation of use categories, plaintiff submitted unnamed issues of fact as to whether she sustained those injuries and whether they were caused by the accident.

07/15/15                
Brits v. Flores
Appellate Division, Second Department
Defendants Failed to Address Plaintiff’s Claims of Serious Injury to the Cervical and Lumbar Regions of His Spine
This is another Appellate Division decision in which they do not set forth much of their reasoning. The Appellate Division reversed the grant of summary judgment by the lower court too the defendants, holding that the defendants did not demonstrate a prima facie entitlement to summary judgment. The Court held that the defendants failed to show that plaintiff did not sustain a serious injury under the insurance law, because they failed to adequately address the claims that plaintiff suffered serious injuries to the cervical and lumbar regions of his spine and to his right knee under the permanent consequential limitation of use or significant limitation of use categories.

MARGO’S MUSINGS ON NO FAULT

Margo M. Lagueras
[email protected]

Margo is out for a little while and Cassie has filled in for her in her column.

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

Property

07/30/15          Yar-Lo, Inc. v Travelers Indem. Co.
Appellate Division, Third Department
Lack of a Covered Cause of Loss Precludes Business Interruption and Consequential Damages Claim
Nearly eleven years ago, plaintiff’s premises sustained damage as a result of a sewage overflow.  Five months later, the insured alleged it was forced to suspend all business operations as a result of the sewage contamination in December of 2004, and that it was also forced to sell its merchandise at a deep discount, as well.  This was alleged despite the fact that the leak was remedied and the premises cleaned up by the end of December 2004. 

Nevertheless, plaintiff commenced the instant action in December of 2006 seeking more than $180,000 in business interruption coverage and $6,000,000 in consequential damages due to the demise in its enterprise.  Travelers denied the claim on the basis that the sewage loss was not a covered event under the policy, and, as such, business interruption coverage was also not triggered where, as here, it required a covered cause of loss as a catalyst.  Further, Travelers denied the consequential claim on the basis that there was no causal connection between the sewage loss and the cessation of future business.

The Trial Court agreed, and affirmed Travelers’ denial in its entirety.  In affirming further, the Appellate Division noted that plaintiff could not establish a covered cause of loss for the cessation of plaintiff’s business.  Particularly, the lack of a covered claim is highlighted where the premises had been remedied months before the company ceased operations. 

Further, the Appellate Division noted that consequential damages are only available when there is a breach, and the damages of the breach could have been contemplated at the time of the agreement.  Here, there was no breach, and surely the parties did not contemplate damages for the loss of business that the insured voluntarily discontinued. 

07/30/15          Morley Maples, Inc. v Dryden Mut. Ins. Co.
Appellate Division, Third Department
Although Plaintiff Met its Burden on SJ, its Motion Failed to Address Dryden’s Opposition Based upon Arson
In this case, the Third Department affirmed the Trial Court’s denial of plaintiff’s motion for summary judgment.  Plaintiff sustained a fire loss in the early morning hours of May, 2010.  Defendant Dryden denied the claim on the basis that the fire appeared to have been set by the husband of plaintiff’s sole shareholder.  Dryden subsequently asserted arson as an affirmative defense in its Answer to the instant Complaint. 

Plaintiff moved for summary judgment, therein arguing that the fire was not intentionally set, and that she had no financial motive to set the fire (even if it was purposefully ignited).  However, in denying the motion, the Appellate Division noted that, as the movant, it was the plaintiff’s responsibility to disprove the application of Dryden’s affirmative defense.  Accordingly, to successfully oppose the plaintiff’s motion, Dryden only needed to establish that the fire may have been intentionally set and/or plaintiff may have had a financial motive. 

Here, plaintiff offered no proof that the fire was not incendiary in nature.  Rather, plaintiff simply tried to attack the credibility of Dryden’s Origin & Cause expert.  This led to a question of fact on the O&C report, and thus a question of fact as to the arson claim.

In addition, the plaintiff failed to disprove the possible financial motive.  While plaintiff maintained financial stability at the time of the fire, Dryden was able to point to the fact that the insurance policy provided greater benefits than if the business had been sold.  Where plaintiff could have recognized a financial windfall from a fire loss, a question of fact existed as to financial motive.  

Potpourri

07/22/15          Campisi v Gambar Food Corp.
Appellate Division, Second Department
Insurance Procurement Clause, in an Arms-Length Commercial Lease, Cures 5-321 Defect
Plaintiff sustained injury when she fell on an allegedly defective sidewalk near the entrance of a market operated by Gambar.  Plaintiff commenced an action against Gambar and the owner of the premises, Montauk Properties.  Montauk, thereafter, sought contractual indemnity from Gambar under a provision contained within the lease agreement.

In affirming that the indemnity clause was sufficiently broad, the Court noted that Gambar agreed to indemnify Montauk for losses arising out of, among other things, “the demised premises, or of the streets, sidewalks or vaults adjacent thereto.”

In reaching its conclusion, the Appellate Division noted that a landlord cannot exempt itself from its own negligence under the terms of GOL 5-321.  However, GOL 5-321 does not apply where the clause is located within a commercial lease, negotiated at arms-length, and when coupled with an “insurance procurement requirement.” 

FITZ’S BITS

Elizabeth A. Fitzpatrick
[email protected]

In Banff.

WILEWICZ’S WIDE WORLD OF COVERAGE

Agnes A. Wilewicz
[email protected]

07/24/15       Mack-Cali Realty Corporation v. Peerless Insurance Company
United States District Court, Southern District of New York
Snow and Ice Removal Work Was Not Put To Its “Intended Use”, Thereby Limiting Coverage, Where Insured Had Continuing Duty to Monitor/Work
The facts of this case are recurrent. Property owners hired snow/ice removal contractors and everyone agreed that the contractor would add the owners as additional insureds under its liability policy. The contractor purchased this policy and went about its business. A couple of pedestrians then slipped and fell on ice at the property and sued the owners. The owners tendered to the contractor’s insurer, claiming additional insured status.

In this case, the insurer Peerless presented a novel argument to avoid coverage. Their policy included an endorsement that provided coverage to certain additional insureds, but that this coverage ended when “that portion of [the insured’s] work out of which the injury or damage arises has been put to its intended use by any person or organization other than another contractor or subcontractor engaged in performing operations for a principal as a part of the same project”. While there was debate as to whether this was a coverage definition, limitation, or exclusion, the Southern District referred to it as “the intended use exclusion”. Peerless argued that this policy provision cut off coverage after a person “used” the area that had been cleared of snow and ice. As such, they urged the court to rule that the insured’s snow plow work had been put to its “intended use” the minute they walked off the property after the job.

The Southern District did not buy it. Detailing a number of New York cases interpreting these types of provisions, the court pointed to one key fact that proved fatal to Peerless’s argument. The insured was not only hired to remove snow and ice, they were also hired to monitor conditions at the property and determine whether further work was necessary, on a continuing basis. The fact that they finished their work on a particular day did not mean that their contract was fulfilled or that their work was done, or put to its intended use. The court wrote “the fact that [the insured] had a continuing duty to monitor and to clear snow from the [property] is a distinction that makes a difference”. Since their work was essentially incomplete (i.e. the season was not over), it could not have been put to its intended use. The court went on to say that Peerless’s interpretation of the policy at best created an ambiguity, which would in any event be construed against the insurer. As such, the court granted summary judgment to the owners, finding that at a minimum Peerless had a duty to defend them.

07/24/15       Kips Bay Endoscopy Center v. The Travelers Indemnity
United States District Court, Southern District of New York
Insurer Cannot Sever a Federal Action In Order To Preserve Diversity, Where Claims Against Party to Be Severed and Those Against the Insurer Arise Out of the Same Occurrence
Travelers and Phoenix issued insurance policies to a group of physicians from the Kips Bay Endoscopy Center. These policies purportedly provided that they would be insured “against certain risks, including medical equipment, boiler and other machinery breakdown and business income loss and extra expense”, for “loss or damage due to the ‘necessary suspension of operations’”, and for covered causes of loss such as utility failure.

In October 2012, Kips Bay’s services were interrupted during Hurricane Sandy and they were unable to conduct their business for five days. They lost 100% of their business revenue and incurred mitigation expenses, amounting to about $710,000 in losses. Thereafter, they sued ConEd for their recklessness and/or negligence in allowing the interruption of one substation, when they had preemptively suspended others, which caused it to explode during the storm. They also made a claim under their policies with Travelers and Phoenix. The carriers, however, disclaimed coverage on the basis of numerous exclusions, including water damage, fire, hail, and lack of excess power, etc.

Kips Bay brought their action against ConEd and the insurers in the Supreme Court of the State of New York, asserting negligence and breach of fiduciary duty on the part of ConEd and breach of contract as to the insurers. Less than two months after the last Answer was filed, the insurers removed the action to federal court. In response, Kips Bay made a motion to remand it back down to state court. The insurers in turn moved to sever the claims against them from those against ConEd. They did so because both Kips Bay and ConEd are both New York citizens, which would destroy the critical diversity needed to keep the case in federal court.

The Southern District was not amused. While the insurers tried to persuade the court that the contract claims were patently different from the coverage ones, and that the two cases were brought together inappropriately, the court rejected all of their arguments. Instead, the court held that severing the case would lead to two parallel litigations on the same sets of facts. “Plaintiffs’ causes of action against ConEd and the Insurers arise from the same occurrence,” the court wrote, “Hurricane Sandy and Plaintiffs’ resulting loss of electricity for five days”. The risk of duplicative discovery and “wasteful litigation” was substantial. Thus, the court found that ConEd was a proper co-defendant of the insurers. As such, there was no diversity of parties in the case and it was not properly before a federal court. The request to sever was denied and the case sent back down to state court.

07/23/15       State Farm Fire & Casualty v. General Electric
United States District Court, Northern District Of New York
In Suit by Insurer Against Manufacturer of Allegedly Defective Fridge, Summary Judgment Denied Where Insurer’s Experts Did Not Pin Down Specific Defect
In this case, State Farm insured Mr. Drexinger’s personal and real property located at his home in Ballston Lake, New York. In February 2011, a fire originating in the area Mr. Drexinger’s refrigerator caused substantial damage to the property. State Farm paid over $215,000 for the damage and related expenses as a result. Thereafter, State Farm sued General Electric, as the manufacturer of the fridge. They asserted claims for negligence based upon defective design, breach of express and implied warranty, and strict products liability.

On its motion for summary judgment, General Electric sought to dismiss the entire action against them. First, State Farm conceded that its breach of warranty claim had been brought too late. As such, the court granted summary judgment on that cause of action.

On the negligence and strict products liability claims however, the Northern District found issues of fact. GE had argued that State Farm had not met its burden of proof because its experts had not specified a defect in the design or manufacture, where the cause and origin investigators had merely concluded that the fire originated in the rear lower portion of the fridge. The court, following Court of Appeals precedent, found instead that the experts had not excluded other causes of the fire damage. As such, they raised a triable issue of fact that necessitated denial of the motion. Similarly, where State Farm had raised circumstantial evidence of a defect, in that refrigerators generally do not catch fire without some defect, a trial was required. Accordingly, the court directed counsel to be prepared to try the case on those two causes of action.

 

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

07/29/15       In The Matter of Fiduciary Ins. Co. v. American Bankers Ins. Co. of Fl.
Appellate Division, Second Department
Arbitrator Had Authority to Deny Petitioner’s Claim For Reimbursement of No-Fault Appearance Where Respondent Failed to Appear And Allege That It Was Not a Motor Vehicle Insurer Subject To The Mandatory Arbitration Provisions of Insurance Law §5105.
In October of 2006, Jared Johnson (“Johnson”) was injured while riding a horse when the horse suddenly bolted into the roadway and collided with a taxi.  The taxi was insured by Fiduciary Ins. Co. (“Fiduciary”) and provided no-fault benefits to Johnson for his injuries totaling $59,906.97. 

In October of 2012, Fiduciary sought reimbursement of the no-fault benefits it paid to Johnson by filing a demand for mandatory arbitration pursuant to Insurance Law §5105 against American Bankers, the stable owners commercial liability carrier.  Relevant to the decision is the fact that Insurance Law §5105 defines an insurer as “an insurance company…which provides the financial security required by article six or eight of the vehicle and traffic law.”  Per the terms of the American Bankers policy, it did not provide no-fault insurance coverage for the type of accident underlying this dispute, and it did not insure a person, vehicle or animal involved in the underlying dispute.  Rather, it only insured the stable where the horse was boarded.  The court thus held that American Banker did not meet the definition of an insurer under Insurance Law §5105.

This definition provides the basis for the decision made by the arbitrator and affirmed by the Second Department.  Although American Bankers did not appear at the initial arbitration and thus did not raise any affirmative defenses, the arbitrator ruled that Fiduciary could not obtain reimbursement from American Bankers as arbitration was the incorrect forum because Insurance Law §5105 did not apply to American Bankers which is not an insurer under this particular statute.  As a result, Fiduciary could not recover against American under Insurance Law §5105. 

In affirming the decision, the Second Department explained, that while arbitrators are precluded from identifying and considering an affirmative defense which was not pleaded, the issue in this matter is not an affirmative defense. Rather, the issue was the threshold issue of whether American Bankers was an “insurer” subject to mandatory arbitration, and whether it could even be subject to the arbitration procedures of Insurance Law §5105.  The court further explained that by failing to appear, American Bankers did not “affirmatively waive the issue of whether it was an insurer.”  In light of the above, the court explained that American Banker cannot be bound to arbitrate a dispute by mere inaction, and there was no agreement to arbitrate ever made because American Bankers was not an insurer under the statute mandating arbitration.  The Second Department thus upheld the arbitrator’s decision holding that the arbitrator’s decision “was supported by a reasonable hypothesis.” 

 

KEEPING THE FAITH WITH JEN’S GEMS

Jennifer A. Ehman
[email protected]

07/16/15       Allstate New Jersey Ins. Co. v. Lajara
Supreme Court of New Jersey
Court Holds Right to Trial by Jury Exists When being sued for a Violation of New Jersey Insurance Fraud Prevention Act
The question presented to the Court was whether a civil defendant sued by an insurance company for violating the New Jersey Insurance Fraud Prevention Act (IFPA) has a right to trial by jury. 

Plaintiffs brought this action under IFPA alleging that defendants were engaged in a broad and multi-faceted scheme to defraud them of $8.14 million in personal injury protection benefits.  Plaintiffs submitted that defendants were engaged in, among other things, providing unnecessary care, prescribing unnecessary medical equipment, engaging in fraudulent testing of patients, misrepresenting test results and unlawful splitting fees.  Plaintiffs initially made a demand for jury trial in the complaint, but later moved to withdraw the demand.  That motion was opposed.

The trial court determined that, in an action arising under the IFPA, neither the statutory scheme nor the New Jersey constitution granted a civil defendant the right to a jury trial.  The Appellate Division affirmed citing State v. Sailor, 355 N.J. Super. 315 (App. Div. 2001).  The Supreme Court of New Jersey then reversed. 

In its decision, the Court defined its task as determining whether the right to a jury trial in a private cause of action under the IFPA is implicated in the statutory scheme or, alternatively, mandated by constitution.  Due to the absence of any reference to jury trial in the statute, the Court found the statutory and constitutional analyses were closely aligned.

Initially, the Court held that neither the Seventh Amendment, nor New Jersey’s constitutional counterpart was ever intended to guarantee a right to a jury trial in all civil cases.  At the time of the ratification of the Seventh Amendment, the right to a jury did not extend to matters falling within the jurisdiction of the admiralty court or equity courts.  Consistent with that foundation, the jury-trial right today only applies to common law suits in which legal rights are to be ascertained and determined.  The right to a jury trial applies to causes of action – even statutory causes of action – that sound in law rather than equity. 

The IFPA was enacted to confront aggressively the problem of insurance fraud.  The IFPA authorizes two separate causes of action to enforce the statutory scheme -- one a State action brought by the Commissioner of Banking and Insurance, and the other (at issue here) a private civil action brought by insurers damaged as a result of a violation of any provision of the IFPA.  Under the IFPA, any insurance company damaged by a violation of the act can recover compensatory damages, which include reasonable investigation expenses, costs of suit and attorney’s fees.  An insurance company can also recover treble damages if the court determines that the defendant has engaged in a pattern of violating the IFPA. 

The Court concluded that monetary damages, such as compensatory and punitive damages (i.e., those awardable under the IFPA) are a typical form a legal relief, not equitable relief.  The Court declined to adopt plaintiffs’ argument that the damages were merely restitution, which is an equitable concept. 

Next, the Court considered whether the statutory cause of action authorized by the IFPA was comparable to an action known at common law.  It determined that a private party action brought under the IFPA resembled a cause of action for common-law fraud.  The only element of a claim for common-law fraud absent from an IFPA claim is reliance by the plaintiff on the false statement.

Accordingly, the Court held that a right to a jury trial is compelled by the New Jersey Constitution.  Also, this right is implied in the IFPA by the Legislature’s choice of legal remedies and by the similarities between an IFPA action and common-law fraud. 

05/26/15       Ripka v. Safeco Ins.
United States District Court, Northern District of New York
Extra-Contractual and Bad Faith Claims Dismissed
Plaintiff brought this action alleging a breach of a homeowner’s insurance policy issued by Peerless.  Peerless timely removed the action and then sought dismissal of certain allegations including (1) a series of violations of 11 NYCRR § 216; (2) a breach of the covenant of good faith and fair dealing implicit in the Homeowner's Policy; (3) a breach of the express terms of the Homeowner's Policy; and (4) a violation of N.Y. Gen. Bus. Law § 349.

The court considered each allegation separately.  First, the court dismissed the 11 NYCRR § 216 claim as the regulation in question, which implements a provision of New York State’s Insurance Law, does not give rise to any private cause of action.

The court then dismissed the claim premised on a violation of § 349 of New York’s General Business Law.  To state a cause of action under § 349, a plaintiff must assert (1) the defendant’s deceptive acts were directed at consumers, (2) the acts are misleading in a material way, and (3) the plaintiff has been injured as a result.  In other words, a defendant cannot be held liable pursuant to § 349 where the disputed private transaction does not have ramifications for the public at large.  Looking beyond plaintiff’s conclusory allegations for some degree of factual support, it was clear that plaintiff’s claims were based on Peerless’s actions toward her, not on any actions directed more generally toward the public at large. 

The court also dismissed the claim for consequential damages noting that plaintiff had not identified any provision in the Homeowner’s Policy suggesting any special damages would be available in the event of a breach, or that any such damages were within the parties’ contemplation at the time of contracting.  The general claims that plaintiff suffered “distress, aggravation and inconvenience” were insufficient especially as damages for emotional distress are unavailable in a breach of contract action, at least in the absence of demonstrable physical injury.

Lastly, the court dismissed the claim for punitive damages noting that plaintiff’s complaint, which focused entirely on Peerless’s alleged failure to timely pay her claim under the Homeowner's Policy, failed to plausibly allege that Peerless’s conduct was actionable as an independent tort, that its actions were so "morally reprehensible" as to imply "criminal indifference," or even how, beyond conclusory assertions of public harm, Peerless’s actions were part of a pattern directed at the general public.

The court then went on to deny plaintiff leave to amend noting that procedurally she had failed to submit a proposed pleading for consideration. 

Take Away:  We routinely suggest insurers immediately move to dismiss bad faith type allegations.  As demonstrated in this decision, the pleading requirement for these allegations in New York is high.  Also, knocking these allegations out at an early stage ensures that there will not be a fight later over the expanded discovery that can often accompany bad faith litigation.

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

01/28/15       George v. Great Lakes Reinsurance (U.K.) PLC
Arkansas
Club Shooting Excluded From Coverage
A recent case held that a policy exclusion precluded coverage for bodily injury arising from a shooting at a social club facility.  George v. Great Lakes Reinsurance (U.K.) PLC, 2015 WL 374969 (Ark. January 28, 2015).

George owned a facility in Arkansas that was rented out for events, and during an event a gunman fired into a crowd injuring several people.  Two of the individuals who were shot sued alleging that George and other defendants “negligently” failed to protect them from injury.  At the time, George had a CGL policy with Great Lakes Reinsurance.  Great Lakes provided a defense, issued a reservation of rights, and also initiated a declaratory judgment action claiming it had no duty to defend or indemnify George.

The trial court held that policy language excluded coverage for acts or omissions arising from an assault or battery and granted summary judgment to the insurance company.  George appealed, arguing that there was ambiguity between the bodily injury exclusion in the policy and the “assault or battery” endorsement.

The appellate court affirmed the decision of the trial court in finding that the policy excluded potential insurance coverage for the underlying action.  The main policy language excluded bodily injury expected or intended from the standpoint of the insured as not being an “accidental occurrence”.  It also included an endorsement that specifically excluded coverage for bodily injuries arising from assault or battery.  Here the insurer could rely not only on the concept and definition of an “accidental occurrence”, but also on the more specific exclusion for assault or battery, whether or not it was “accidental” from the insured’s point of view.

The appellate court indicated that there was no ambiguity in the policy language, and emphasized the rule of construction that where provisions in the main body of the policy conflict with a specific endorsement or rider, the provisions of the endorsement or rider governed.  This tends to be a normal rule of general contract interpretation.  As a general matter of contract law and interpretation, itemized or specific contract provision, such as endorsements and riders, will take precedence over and control any related or even conflicting language in the “body” of the contract.