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Coverage Pointers - Volume XXI, No. 8

Volume XXI, No. 8 (No. 547)
Friday, October 4, 2019

A Biweekly Electronic Newsletter  

 

As a public service, Hurwitz & Fine, P.C. is pleased to present its biweekly newsletter, providing summaries of and access to the latest insurance law decisions from the New York State appellate courts.  The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. 

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.

If you know of others who may wish to subscribe to this free publication, or if you wish to discontinue your subscription, please advise Dan D. Kohane at [email protected] or call 716-849-8900.

You will find back issues of Coverage Pointers on the firm website listed above.

Dear Coverage Pointers Subscribers:

Do you have a situation?  We love situations.

Welcome to the 547th issue of Coverage Pointers, but who is counting.  I’m sitting in my summer home in Southern Ontario, pining away for spring.  In two weeks, I start the long trek back to the Buffalo home for the next six months (the trek is about 10.6 miles and 17 minutes) but I leave the porch view of Lake Erie behind. For those who live in the boroughs or Westchester, understand that my commute to work will diminish substantially.  Right now, it takes about 18 minutes to get to work, including crossing the international border.  Once I’m back in Buffalo home, my commute is slashed to nine minutes.  What will I do with all that additional free time on my hands? The next issue will come to you from New Orleans, at the DRI Annual Meeting.

Congrats to CJ Englert on his upcoming nuptials and to Lorraine Maxwell, wife of Ryan Maxwell, for her upcoming induction into the Brandeis Athletic Hall of Fame, the only All-American volleyball player in the university’s history.  Both events take place this weekend.

The Federation of Defense & Corporate Counsel is presenting its Insurance Industry Institute in NYC on November 6-8.  The program, entitled “Ensuring Opportunities in Uncertain Times” is a splendid program with a number of very innovative and challenging topics.  Click here for the brochure.  Along with my good friend Rich Traub and Rick Welsh, from Waratah Underwriting, I’ll be part of a panel discussion that takes a new look at the war exclusion:

Acts of domestic terrorism, workplace violence and mass shootings have breathed unexpected life into a seldom cited exclusion. International coverage experts will reflect on the court’s historical approach to the “war exclusion” and reflect on its applicability to recent events, including cyber-terrorism and attacks by nation-states.

I hope to see you there.

No Fault Lectures – Limited Availability:

Keep this one under your hat, if you wear one, but he’s an offer, for those in WNY who may be interested.  Many of you know that I have been teaching Insurance Law at the Buffalo Law School for 34 years (during the fall semester).  Each year, as part of my curriculum, I teach New York No Fault insurance over during two consecutive classes. This is not a lecture for those who process no fault claims but, instead, for those who want to really understand HOW the New York No Fault system works.  If you attend, besides learning the history and purpose of the No Fault statute, you’ll be able to answer the following questions, and many more:

What’s a “covered person”? What is “basic economic loss”? What constitutes a “serious injury”?  In what situations can an auto accident plaintiff sue for pain and suffering, with or without a serious injury? When can a plaintiff recover for economic loss, even without a “serious injury”? How does “loss transfer” work?  When can a carrier use inter-company arbitration – or execute on a lien – to recover back no-fault payment made?  What in God’s name is OBEL coverage and why would anyone every buy it?  What does virtually every plaintiff’s lawyer forget about when she or he is representing the victim of an auto accident?

If you are interested in attending the two lectures, they will be at the Law School, on the UB North campus on Tuesday and Thursday morning, October 8 and 10, 8:00 AM – 9:30 AM.  Contact me and let me know and I’ll give you room information and directions, if necessary.  My law school class will be in attendance, of course, and I have a limited number of available seats for my CP subscribers.  Contact me at [email protected].

Don’t forget to subscribe to our other publications:

Labor Law Pointers:  Hurwitz & Fine, P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

Premises Pointers:  This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Please drop a note to Jody Briandi at [email protected] to be added to the mailing list.

Products Liability Pointers:   As a result of client requests, H&F will be publishing another newsletter, focusing on products liability case law and developments.  That publication is in the pre-production phase and you will hear and read more about it in the coming weeks.  Let me know if you’re interest in being on the subscription list.  Just drop a note to [email protected].  Formal subscription sign ups will be available soon

Record Verdict, One Hundred Years Ago:

Press and Sun-Bulletin
Binghamton, New York

04 Oct 1919

WINS VERDICT OF $1,000 AS DAMAGE IN AUTO COLLISION

A record of verdict and costs in an action brought by Angus D. Smith against Paul S. Ross, tried before Justice Abraham L. Kellogg in Supreme Court early this week, was filed in the County Clerk’s office today. A verdict of $1,000, the amount awarded by the jury, with costs of $88.41, are assessed against the defendant.

The action was the result of an automobile accident at Main and Walnut streets last March, when an automobile owned by the defendant collided with one driven by the plaintiff.

Jen’s Gems:

Greetings!

The last month has been very busy between handling my case load and putting together the brochure for DRI’s Insurance Coverage and Claims Institute next year in Chicago (April 1-3, 2020…mark your calendars).  I was asked to Chair the conference and working on the brochure has certainly been a labor of love.  My favorite thing so far is that it has connected me with so many people I didn’t know within our profession.  Lawyers often get a bad rap, but people are wrong (mostly).  Everyone person I have reached out to for help with topic suggestions, speaker suggestions etc. has been so helpful and kind.  Even when they tell me “not this year,” they then give me the name of someone else who would be a fabulous speaker.  We really have a great community of lawyers.

Beyond that, my column this week reports on a trial court decision discussing the impact of the Burlington case and the duty to defend.  From what we are seeking, with regard to the duty to defend under the “caused in whole or in part” language, there doesn’t seem to be much of a change from the courts’ handling of the earlier “arising out of” language.  What the decision I report on this week is clear about is that if your named insured is a direct defendant, the duty to defend is likely triggered.

Until next issue…

Jen
Jennifer A. Ehman

[email protected]

Student Strike:

Ithaca Daily News
Ithaca, New York

04 Oct 1919

GLENS FALLS SCHOOL CHILDREN ON STRIKE

Glens Fall, N.Y., Oct. 4.—Two hundred and fifty Hudson Falls High School pupils yesterday refused to enter the school building and paraded through the streets throughout the day, declaring that they would not return to school until Principal Carl Olds, who the day before slapped a girl pupil’s face and expelled her, is forced to resign.

The walkout included all the high school pupils.  The board of education had not yet taken action.

Principal Olds had long been unpopular with the pupils.

Editor’s note:  Was the strike successful?  Did Principal Olds get in trouble for slapping a student’s face?  Read on (after Steve’s note).

Peiper on Property and Potpourri:

We start this week of with a thank you to the Buffalo/Erie County Inn of Court who graciously permitted me to present a CLE entitled “First Party 101” this past week.  In exactly one hour, we covered/updated: insurable interest, all risk vs. specified peril, rights of a mortgagee, conditions precedent to coverage, ACV vs. RC and appraisal.  If you, or anyone you know, is interested in a refresher, please don’t hesitate to drop us a line. 

The Inn of Court, by the way, is a national organization committed to “build and strengthen professional relationships; discuss fundamental concerns about professionalism and pressing legal issues of the day; share experiences and advice; exhort the utmost passion and dedication for the law; provide mentoring opportunities; and advance the highest levels of integrity, ethics, and civility.”

Nice group, and a great mission.

We have an interesting mix of cases to offer for you this week.  Nothing from the traditional property realm, unfortunately, but there are some interesting arguments and legal issues in first party cases nonetheless.  In no other column will you see the procedural struggles of a husband suing his ex-wife for fraud, that I’m sure.  Stay tuned, though, as there are more decisions around the corner.

In other news, yesterday marked the return of the hockey season.  Strike that.  Yesterday marked the return of the NHL season.  For some of us, hockey season never really stops.  This issue’s Peiper on Property comes from the beautiful city of Toronto.  I’m actually in the suburb of North York, but who’s counting that closely.

If you’ve never been to “Toronno,” you’re missing out. It’s a wonderfully diverse, vibrant, clean and friendly city.  In fact, the 416 is considered the safest city in North America.  It boasts world class shopping, theatre, nightlife, and more than a few hotels that are “mini-stick” friendly.

We’ll be back in the 716 for the next issue.  Cheers until then.

Steve
Steven E. Peiper

[email protected]

Hey Students, Fuhgeddaboudit:

The Post-Star
Glens Falls, New York

17 Oct 1919

SCHOOL BOARD STANDS BY OLDS
Adopts Resolution Supporting Him
In Controversy With Pupils

The board of education of District No. 1 of the town of Kingsbury, Union Free school, as its meeting held in the offices of the clerk, W. L. Sawyer, Masonic Temple, considered at length the “strike” which was pulled off two weeks ago this morning.  During the meeting four students of the school, representing the members of the high school who walked out of the school room resenting the punishment inflicted upon Miss Margaret Lake by Principal of Schools Carl B. Olds, presented their side of the case.

The board demonstrated to the students that the members were solidly behind the principal in his efforts to maintain order even if it was necessary to resort to corporal punishment when the following resolution was adopted:

“Resolved, That Mr. Olds has the confidence of this board and its hearty support in his efforts to raise the standard of scholarship and to maintain discipline in the high School.

“Resolved, That the sense of this board is that they are not opposed to corporal punishment.”

It is understood that a meeting of the students will be held within a day or two when the report of the representatives will be made.

Editor’s Note:  Times have changes, just a bit.

Wilewicz’ Wide-World of Coverage:

Dear Readers,

I’m excited to report that the next edition of the Wide World of Coverage will come to you from sunny Maui, where I’ll be attending the ABA Tort Trial & Insurance Practice Section Leadership Conference. As you may already know, I’m a Vice Chair of the Insurance Coverage Litigation Committee there, and I’m even more thrilled to report that I was just appointed a Vice Chair of Diversity for the Excess and Surplus Lines Committee as well. The conference is shaping up to be a very productive one, and I’m very much looking forward to seeing many colleagues and friends. I’ve never been to Hawaii, and though it’s rather far-flung, it doesn’t appear to be high season or anything so it should be low key.

Now, I’m sure I’ve mentioned it before, but it bears repeating - the ABA TIPS is really a fantastic venue for networking and education in the insurance field, boasting over 14,000 insurance, defense, plaintiff, and corporate counsel attorneys from around the country. They host meetings, conferences, one-day events, seminars, and more, all around the country, with much more than just coverage ... well, covered. Drop me a line if you’d like more information or would like to get involved. Better yet, let me know if you’ll be in Maui too, and we can put a name to a face.

As for the Second Circuit’s coverage of coverage, they again steered clear of insurance decisions. Instead, we have for you something from the Fifth Circuit Court of Appeals (Texas), once more in the life insurance realm. In Freeman v. Securian Life, at issue was whether an exclusion for self-inflected injury or suicide applied in a case of Russian Roulette. An insured’s 17-year-old son unluckily drew the single bullet in the cylinder of a revolver that ended his life. Unfortunately, since the accidental death and dismemberment policy’s provisions excluded coverage for self-inflicted injury or suicide, and the playing of the game was found to be irrefutably self-inflected, there was no coverage for the death. The decision is brief, and cases like this are always very fact-specific, but those facts fit the exclusionary language. While there arguably was a case to be made for lack of intent or an accident here, since the injury was indisputably self-inflicted, the exclusion still applied.

Until next time, folks,

Agnes
Agnes A. Wilewicz

[email protected]

President Wilson Under the Weather:

Dunkirk Evening Observer
Dunkirk, New York

04 Oct 1919


“GRAVELY ILL” IS

LASTEST REPORT

Slight Improvement Noted But Condition of President Still Remains Serious—Specialists Again Consult This Morning.

Washington, Oct. 4 – (United Press) – The president has a good night’s rest and his condition is more favorable said a statement released at 10:55 a.m. today by Dr. Cary T. Grayson.

Issuance of Grayson’s bulletin was delayed by a long conference of physicians.  Those at the conference were Dr. E. R. Stitt, head of the naval medical school; Dr. Sterling Ruffin, and Grayson.

There was an air of more cheerfulness at the White House this morning.

It was learned that the president slept quite late and awoke feeling much refreshed.  He was said to appear cheerful and unworried.  Throughout his illness he has not been concerned about himself, a fact which his physicians believe will hasten his recovery.

The president upon awakening this morning chatted with those about him and laughed, according to White House attaches.

Joseph R. Wilson, the president’s brother, was unable to remain here, but is keeping in touch with the White House by telephone.

Mrs. Wilson was in the sick room at an early hour today.  She rarely leaves her husband’s side.  Mrs. Wilson is being assisted by two trained nurses.

Editor’s note:  President Woodrow Wilson’s illness provides one of the most fascinating stories in American presidential history:

In September 1919 Wilson was having severe headaches, double vision, and signs of a weakened heart. On Sept. 25 he developed a transitory weakness on the left side of his body

Wilson suffered a catastrophic, disabling stroke while President, 100 years ago yesterday (Oct. 3, 1919).  This was the most serious illness suffered by any sitting President.

Wilson's condition was hidden from his Cabinet, from the Vice President and, of course, from the public. This could only be done by keeping Wilson physically isolated. There are many who claim, with good authority, that his presidency was carried on by his second wife, Edith Bolling Wilson (they were married in 1915, during his first term of office)

Many suggest that Edith Wilson was our first female president, although, uncredited as such.

Barnas on Bad Faith:

Hello again:

This is one of my favorite times of year.  The weather is changing, it’s apple season, and all the sports you could ever want to watch are on television.  The Sabres drop the puck on their season tonight, and I don’t remember the town ever being so apathetic about the local hockey team.  Maybe it has something to do with the Bills being off to a nice 3-1 start, but it probably has more to do with the Sabres’ 8-year playoff drought and lack of exciting new talent on the roster.  The baseball playoffs are also getting started, and college football, the EPL, and the UEFA Champions League are in full swing.  Just don’t ask me to talk about how Syracuse or Tottenham are doing so far this year.

I have another bad faith case from Pennsylvania this week.  The policy at issue, along with many other standard policies, has a provision requiring the insured to submit to a physical examination at the request of the insurer.  However, the Pennsylvania Motor Vehicle Financial Responsibility Law provides that a physical examination of a person may be ordered by a court of competent jurisdiction only upon motion for good cause shown.  The insured alleged that her insurer was committing bad faith by, among other things, demanding that she submit to a physical examination without a court order.

Currently, the Pennsylvania Supreme Court is considering whether the provision conflicts with Pennsylvania law and violates public policy.  The court declined to dismiss Plaintiff’s bad faith claim because the physical examination question remains unresolved and based on her other allegations of bad faith conduct.

That’s all for now.  Have a great weekend.

Brian
Brian D. Barnas

[email protected]

What Should a Woman Wear?

The Buffalo Enquirer
Buffalo, New York

04 Oct 1919

WOMAN TELLS HER SEX HOW TO DRESS

French-heeled Shoes, Tight Lacing, Skimp Skirts and Debutante Slouch Will Take Their Toll In Health of Wearer.

Chicago, Ill., Oct. 4.—The debutante slouch, tight lacing, French-heeled shoes, and skimp skirts were branded yesterday as beauty’s greatest enemies by Florence Dawson, director of physical education of the new central branch of the Y.W.C.A. which will open here next month.

“Ugliness of face is the direct result of wearing a tight skirt and pointed high-heeled shoes,” said Miss Dawson.  Feet are the basis of body support.  Women, in high-heeled, pointed shoes handicap themselves at the start.  When they further limit locomotion by a tight skirt, they give themselves little chance for either health or grace.  The natural line of the feet is straight from heel to big toe.  Point shoes, by throwing the big toe out of line, render useless the most import muscle supporting the arch.  The feet should be as unhampered and beautiful as the hand.

The tight skirt not only prevents a free and graceful walk, but is irritating to the person loving freedom of motion.  Such styles are indicative of the styles of a nation whose standard of physical education and athletics for women is undeveloped. Health is based on physical and mental welfare.  Physical education seeks to promote both, through improving posture and aiding organic functioning.  Mental health is the result of good physical condition. 

 

Off the Mark:

Dear Readers,

The weather this past month has been exceptional on Long Island.  However, after above-average temperatures yesterday, todays brings a 30-degree temperature drop and rain.  Although I enjoy the cooler temperatures autumn brings, I could do without the rain.

Unfortunately, I did not come across any noteworthy construction defect decisions to discuss in this edition.  I guess the Courts are still getting up to speed after the summer.   

Until next time …

Brian
Brian F. Mark

[email protected]

The Dancing Governor:

The New York Times
New York, New York

04 Oct 1919

Gov. Smith Dances on Sidewalk.

Special to The New York Times.

ALBANY, Oct. 3.—To the strains of “Tammany” Governor Smith danced tonight on the sidewalk in front of the Executive Mansion with his daughter, Miss Catherine Smith.  The dance was in honor of ward candidates of the Democratic Party, who first serenaded the Governor and his family.

Wandering Waters:

I hope all of you had a wonderful week and welcome to another edition of Wandering Waters.  

After a long few months, the NBA season is right around the corner.  This season is expected to provide much more excitement as a result of the busy NBA offseason.  With the Warriors finally appearing vulnerable, Western Conference executives were aggressive in the offseason.  From the Clippers to the Rockets, Western Conference teams have made major moves to compete for a title in the 2019-2020 season.

This season also represents the ultimate change of an era in the NBA.  With Dirk and Wade retiring, LeBron and Vince Carter are the last notable faces of the prior generation of NBA Superstars.  This season is going to be interesting to see if LeBron can continue his dominance as the best player in basketball and whether the NBA truly has a young superstar ready to assume the title of best player as the NBA heads into a new decade.

With that said, we have one case from the Northern District of New York. Until next time……

Larry
Larry E. Waters

[email protected]

Dying to be There? An Ad:

Middletown Times-Press
Middletown, New York

04 Oct 1919

Hillside Cemetery

          “Middletown’s Beautiful City of the Dead.”  Burial plots, either large or small, in this picturesque cemetery are not expensive.

          The wise man deliberately prepared for the inevitable.

          Better to do it than to wait until death comes to your family.

2,000 Lots Unsold.                                        Receiving Tomb

          For full information as to plots, etc., apply to:  Harry G. Dill, Superintendent, Argus Building.

Editor’s Note:  Room still available:  https://www.middletownhillsidecemetery.com/

Boron’s Benchmarks:

Buongiorno!  Come sta?  Bene grazie ... after two glorious weeks touring Southern Italy, including Sicily, with my wife Beth and a bunch of great friends.  I don’t know how I got so lucky to have experienced such an amazing Italian vacation, but trust me I do thank my lucky stars for having such great luck.

Highlights included guided tours at multiple UNESCO World Heritage Sites including Matera’s “Sassi” – the ancient cave dwellings, the Trulli of Alberobello, the Valley of the Temples in Agrigento, Mount Etna, and the Colosseum in Rome, to name a few.  There were also absolutely spectacular places to rest and recreate, like the Amalfi Coast (Maiori), where we stayed for three nights and took a breathtaking (literally) hillside hike one morning on the Sentiero dei Limoni.

Apparently, my time away from the office coincided with the high courts of the states other than New York – which I remind you is my “beat’ for Coverage Pointers – simultaneously taking vacations of their own ... from their issuance of insurance coverage rulings.  I am confident that as October unfolds, so will some insurance coverage decisions of high courts throughout our land.  You can be sure I will monitor and report on one or more of those rulings in the next edition of Coverage Pointers ... but until then, arrivederci!

Eric
Eric T. Boron

[email protected]

Backlog:

The New York Times
New York, New York

04 Oct 1919

30 MURDERERS AWAIT TRIAL

Largest Number of Capital  Cases in City’s History

Thirty murderers are in the Tombs Prison awaiting trials.  This is the largest number of capital cases ever brought together at one time in the history of New York County.  The District Attorney, who said that these numerous cases of homicide were due to the increase in crime during the year, instructed Assistant District Attorneys Brothers and McDonald yesterday to begin the prosecution of these offenders.  They will apply to Judge Crane in General Sessions on Monday for an immediate trial calendar.

Barci’s Basics (On No Fault):

Hello Subscribers!

I am happy to report that my last art festival of the summer was a success! I came away with several new paintings, a very interesting teapot garden ornament, and a stuffed snowman to get the holiday decorations going this year. I was also able to spend some time with old friends from elementary school and eat some of my favorite Rochester-area food staples. You may be thinking garbage plates, but I am talking about Hegedorns’ donuts. Hegedorns is a family-owned grocery store in Webster, NY, and a good friend of mine used to be the donut baker there when we were in our high school/early college days. I talk about this like it was 30 years ago, but it was really less than a decade ago, so maybe I am just feeling nostalgic. It’s probably because my younger brother just turned 21 (shout out to him!) on Monday, so I’m feeling very old. If you happen to be in the Harrisburg/Hershey, PA, area, stop by the Hollywood Casino to wish him a happy birthday! Or maybe good luck since he’s now finally old enough to play at the poker tables…

On the no-fault front, I have two cases for you. First, a case out of the Second Department that gives us all a good reminder of how the appeal system works in no-fault arbitration cases. Then a case out of the First Department’s Appellate Term that discusses the standard for proving that an assignor failed to appear at an IME.

That’s all folks,

Marina
Marina A. Barci

[email protected]

Fake News on the President’s Well-Being – 100 Years Ago:

Daily News
New York, New York

04 Oct 1919

PRESIDENT SLIGHTLY BETTER GRAVELY ANXIOUS, PHYSICIANS HOLD TWO CONFERENCES

Call Physical Symptoms Favorable; Nerve Power Exhausted, Must Be Replenished

Belleton, 10 P.M.

The President’s condition today is about the same, with a slight improvement.

                                         Grayson.

Washington, Oct. 3 (United News).

President Wilson again remained in bed today and his condition tonight is reported as “no better and no worse.”

It may be stated, however, that his doctors and members of his family are gravely anxious.

From all parts of the country today, telegrams, letters and long distance telephone calls reflected that this anxiety is spreading throughout the nation.

Ryan’s Capital Roundup:

Hello Loyal Coverage Pointers Subscribers:

This weekend marks a major accomplishment for my wife, Lorraine, who will be inducted into the Brandeis University Athletics Hall of Fame in Waltham, MA, this Saturday. Lorraine was the first All-American in Judges’ volleyball history, and remains Brandeis’ career leader in kills, while ranking third in service aces and fourth in digs. She owns the top two scoring seasons in program history and was an integral component in the Judges’ back-to-back ECAC titles in 2006 and 2007, including a program-record 28 wins in 2007.  I could not be more proud of her accomplishments and know that it will be quite the thrill for her to make her Brandeis University return.

Staying at an Airbnb in the heart of Boston, what trip would not be complete without visiting the Cheers! bar, where I’m told everybody knows your name. Although that may be true, they will certainly know that I’m not from around there. Especially Cliff, because he knows everything.

As Dan’s LinkedIn followers may have caught a snippet in Coverage Pointers Advance, this week’s column includes details of a new Sex Crimes law extending the statute of limitations for second and third degree offenses involving negligent acts or omissions to twenty and ten years respectively. Additionally, I outline a bill awaiting delivery to the Governor that would aid Life Insurers in investigating the medical history of policyholders within the already restrictive, two-year contestability period. Finally, I introduce a new feature of my column, which I have coined “From the Filing Cabinet”, outlining tips and tricks arising out of recent form filings and concerns raised by the Superintendent.

Ryan
Ryan P. Maxwell
[email protected]

The “Black Sox Scandal”:

The Republic
Columbus, Indiana
04 Oct 1919

THE WORLD’S SERIES

The eyes and the mind of the nation or those of a goodly part of it at least are turned to Chicago and Cincinnati where a world’s series of baseball is being played and they are turned in these directions to the exclusion of the peace treaty, the peace covenant, labor troubles and other national and world questions of vital importance.  That this is true is another proof that the American people are seekers after diversion and in their quest for diversion they have, owing to their temperaments, a wide range.  Some there are who obtain diversion from a world’s series baseball game, others from the ravings and destructiveness of a mob and still others from a church festival, but sad to relate, those who find diversion in the last named are hopelessly in the minority.

Perhaps it is well that the American people are seekers after diversion for monotony is much in restraint of a cheerful and happy frame of mind.  That many find diversion in watching or reading of a game of baseball of the world’s series, or a game of the sport of lesser importance seems not at all objectionable for the sport is not beset by the dangers to life or limb that are true of many other athletic sports.

Editor’s note:  The 1919 Series was in full stride 100 years ago today.  Any fan of the National Pastime knows that this was the Series (a best-of-nine) affair in which the Chicago White Sox threw the Series to the Reds, in what is known as the “Black Sox Scandal”.  The Reds won the Series, five game to three.

If you don’t know the story, or want a refresher, click here.  For a 100 year retrospective, click here.

CJ At The Threshold:

Hello all:

Fall has certainly arrived in Western New York this week -- the weather is a little greyer and the days much shorter. The only bright spot in the forecast seems to be Saturday the 5th, which is lucky for me because it just so happens to coincide with my wedding day.  As you read this, I’m likely running all around the greater Buffalo area finishing up all the last-minute to-dos before the big event. After a weekend of celebrating, my new wife and I will be jetting off to Jamaica for a week of relaxation and sunshine. But, have no fear readers, I’ll be back in the office in time to meet the print deadline for our next edition of Coverage Pointers.

Once again, the Second Department seems to have been the busiest on the serious injury front. The theme for this edition is thorough testimony and motion papers. This week we are reminded of the importance of thorough expert testimony and the pitfalls of a defendant failing to address every serious injury category plaintiff alleges. 

CJ
Charles J. Englert, III

[email protected]

What was Supposed to Happen During Wilson’s Illness?

New-York Tribune
New York, New York

04 Oct 1919

Marshall Would Act During Wilson’s Rest

New York Tribune Washington Bureau

WASHINGTON, Oct. 3.—The serious illness of President Wilson has started a discussion in official circles as to how the duties of the President would be carried out in the event that Mr. Wilson was forced to cut himself off completely from the executive direction of the affairs of the country.

During the term of one of the twenty-eight Presidents of the United States has a President become so ill that he was forced temporarily to delegate his powers to another official.

John’s Jersey Journal:

As our regular subscribers know, in my column, I report on New Jersey insurance decisions, statutes, and regulations. We have yet another Superstorm Sandy claim.

This one comes from New Jersey’s federal court, the District of New Jersey. Even though Superstorm Sandy hit New York and New Jersey seven years ago, we still see these claims kicking around New Jersey courts. Will they ever run out? I’m sure they will— particularly the ones with suit limitation provisions.

A motel in Seaside, New Jersey, claimed damages due to Superstorm Sandy and reported the claim to its insurer, Scottsdale. Scottsdale investigated and determined some of the claimed damage was covered. Specifically, interior water damage to a stairwell and wind damage to the siding, gutters, and roof was covered. The remaining interior water damage was determined to have been caused by long-term water seepage and plumbing leaks, and thus, not covered by the policy.

This particular policy contained a two-year suit limitation. New Jersey law modified the suit limitation provision to run from the date of the denial (as opposed to the loss date). Four years after the denial, the insured sued his insurer alleging breach of the insurance contract. The District Court saw this one as open and shut. The insured sued more than two years after the denial letter, and as such, the suit limitation provision applied and the insurer entitled to summary judgment.

On the home front, I’ve been busy working on our enclosed sunroom which continues to keep life interesting. This past weekend I went to the big box hardware store to pick up the trim – 16-foot trim to be exact. I had not really thought about how I was going to get it home. I just figured I have a truck, no big deal. Well, once I got to the parking lot with the trim and saw the trim was 9-foot longer than the truck bed, I realized I had a problem.

After a few minutes of pondering my situation, a solution appeared. I opened the cab’s rear window and slid the boards into the cab all the way up to the windshield. Donald, my hound dog, saw I needed all the help I could get and assisted by nibbling on the boards as I slid them by him. Luckily, it’s PVC. Locked it down with ratchet straps and got it home safe. I’ll be spending my Saturday installing trim.

I’m looking forward to speaking at the New York Star Bar tomorrow on Insurance Issues in Premises Liability cases.

John
John R. Ewell

[email protected]

OK, It’s Quiz Time:

The Buffalo Times
Buffalo, New York
04 Oct 1919

The Daily Quiz
What Do You Know?

1.       Switzerland, because of its mixed population, has three native names.  What are they?

2.       When is a bird said to be torquated?

3.       In what country is it said that the ex-Emperor Karl of Austria is planning to take up his permanent residence?

4.       What is the origin of the word tory?

5.       What is the origin of the word whig?

6.       What is the difference between latitude and longitude?

7.       Who was Thomas Sheraton?

8.       What is fishing called the “gentle craft”?

9.       What are widow’s weeds?

10.      Which is correct, Welsh rabbit or Welsh rarebit?

Editor’s Note: Stay tunes for the results, below:

Lee’s Connecticut Chronicles:

          Dear Nutmeg Newsies:

Excuse my lack of a note and column this week.  Every so often, family needs interrupt my desire to spend 24/7 on your behalf!        

Lee
Lee S. Siegel

[email protected]

Quiz Answers:

 

The Buffalo Times
Buffalo, New York

06 Oct 1919

ANSWERS TO SATURDAY’S QUIZ

1.       The three native names for Switzerland are Schweiz (German), Suisse (French), and Swizzera (Italian).

2.       Torquated bird is one with a ring of peculiar color or texture of hair or plumage about the neck.

3.       Ex-Emperor Karl of Austria is said to be planning to take up his permanent resident in Santander, Spain.

4.       Whig is short for “Whiggamor,” an early name for a Scotch covenanter, said to be derived from the Scotch “whig,” jog, urge on.

5.       Tory originally meant robber.  It comes from the Irish word “toiridbe.”

6.       Longitude lines run north and south between the poles.  Latitude lines run around with early, parallel with the equator.

7.       Thomas Sheraton was a celebrated English cabinet maker and designer of furniture.  His dates are 1751 – 1806.

8.       Fishing is called the “gentle craft” in a punning sense.  Gentles are the larvae of flesh-flies, formerly used as bait.

9.       A widow’s weeds are her garments.  The word is from the Anglo-Saxon, “waed.” garment.

10.      Welsh rabbit is correct, not Welsh rarebit.

Big Salary for Insurance Professionals, 100 Years Ago:

The Brooklyn Daily Eagle
Brooklyn, New York

04 Oct 1919

WANTED in an insurance agency office, a bright Christian young woman for entry work; must write clearly, be accurate, methodical and willing; salary $10 per week and bonus.  Answer in own handwriting, stating experience, if any. Entry Clerk, Box 19, Eagle office.

Editor’s note:  Of course, one has to be a Christian woman to do the work.

Headlines from this week’s issue, attached:

KOHANE’S COVERAGE CORNER
Dan D. Kohane

[email protected]

  • In MVAIC Proceeding, Hearing Necessary to Determine whether Driver of Car was Unidentifiable
  • Late Notice of Claim Allowed against MVAIC
  • Framed Issue Hearing Necessary to Resolve Factual Issue Regarding Stolen Vehicle in Uninsured Motorist Matter

 

PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper

[email protected]

  • Failure to Oppose Motion Precludes Ability to Seek Appellate Relief
  • Foreclosure Action Governed by New York’s Six Year Statute of Limitations

 

WILEWICZ’S WIDE WORLD OF COVERAGE
Agnes A. Wilewicz

[email protected]

  • Fifth Circuit Interprets Provisions in Accidental Death and Dismemberment Policy in a Russian Roulette Case (Texas Law)

 

JEN’S GEMS
Jennifer A. Ehman

[email protected]

  • Court Finds Duty to Defend Triggered Irrespective of Outcome at Trial in Underlying Action

 

BARNAS ON BAD FAITH
Brian D. Barnas

[email protected]

  • Whether Request for a Physical Examination Violates Pennsylvania Public Policy and Constitutes Bad Faith Remains Unresolved

 

JOHN’S JERSEY JOURNAL
John R. Ewell

[email protected]

  • New Jersey Federal Court Enforces Policy’s Suit Limitation Provision to Dismiss Superstorm Sandy Claim

 

LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel

[email protected]

  • All’s quiet on the Connecticut front this week.

 

OFF THE MARK
Brian F. Mark
[email protected]

  • No noteworthy decisions to report on this edition.

 

WANDERING WATERS
Larry E. Waters

[email protected]

  • Plaintiff’s Motion for Summary Judgment Granted in Part as the Policy’s Residency Requirement was Unenforceable Due to the Conflicting Vacancy Clause

 

BORON’S BENCHMARKS
Eric T. Boron

[email protected]

  • High courts of the states other than New York simultaneously took vacations the same time I did!

 

BARCI’S BASICS (ON NO FAULT)
Marina A. Barci

[email protected]

  • Attorney’s Fee Award from Arbitrator Upheld
  • IME Doctor’s Conclusory Statement Not Enough to Prove Assignor Failed to Appear for IME

 

RYAN’S CAPITAL ROUNDUP
Ryan P. Maxwell

[email protected]

The Legislative List

  • New Legislation Broadens Protections for Victims of Sex Crimes and Substantially Expands Statute of Limitations Period
  • Bill Awaits Delivery to Governor Requiring Beneficiaries with Access to Decedent’s Medical Records to Grant Access to Life Insurer Upon Request

From the Filing Cabinet

  • Speculative Future of Federal Terrorism Risk Insurance Act in 2020 Does Not Allow for The Filing of Endorsements Conditioned Upon the Termination of the Act

 

CJ At the Threshold
Charles J. Englert III

[email protected]

  • The Jury Must Be Instructed on The Mode of Measuring Range of Motion to Find the Serious Injury Threshold Has Been Met
  • Plaintiff Must Include Appropriate Proof When Amending Bill of Particulars to Assert New Injuries
  • Defendant Cannot Meet Their Prima Facie Burden on Summary Judgment Without Addressing All Categories of Serious Injury Alleged by Plaintiff

 

EARL’S PEARLS
Earl K. Cantwell

[email protected]

  • Late Notice Dents Hail Damages Claim

 

See you in a couple of weeks.

Hurwitz & Fine, P.C. is a full-service law firm providing legal services throughout the State of New York and provide insurance coverage advice and counsel in New Jersey and Connecticut.

In addition, Dan D. Kohane is a Foreign Legal Consultant, permit no. 000241, issued by the Law Society of Upper Canada, and authorized to provide legal advice in the Province of Ontario on matters of New York State and federal law.


NEWSLETTER EDITOR
Dan D. Kohane

[email protected]

ASSOCIATE EDITOR
Agnes A. Wilewicz

[email protected]

ASSISTANT EDITOR
Jennifer A. Ehman
[email protected]

INSURANCE COVERAGE/EXTRA CONTRACTUAL LIABILITY TEAM
Dan D. Kohane, Chair
[email protected]

Steven E. Peiper, Co-Chair
[email protected]

Michael F. Perley

Jennifer A. Ehman

Agnieszka A. Wilewicz

Lee S. Siegel

Brian D. Barnas

Brian F. Mark

John R. Ewell

Larry E. Waters

Eric T. Boron

Marina A. Barci

Diane F. Bosse

Joel R. Appelbaum

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

Michael F. Perley

Eric T. Boron

Brian D. Barnas

Larry E. Waters

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

Marina A. Barci

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

Diane F. Bosse

Topical Index

Kohane’s Coverage Corner

Peiper on Property and Potpourri

Wilewicz’s Wide World of Coverage

Jen’s Gems

Barnas on Bad Faith

John’s Jersey Journal

Lee’s Connecticut Chronicles

Off the Mark

Wandering Waters

Boron’s Benchmarks

Barci’s Basics (on No Fault)

Ryan’s Capital Roundup

CJ At the Threshold

Earl’s Pearls

 

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

10/02/19       Quiridumbay v. Motor Vehicle Accident Indemnification Corp.
Appellate Division, Second Department
In MVAIC Proceeding, Hearing Necessary to Determine whether Driver of Car was Unidentifiable
The petitioner alleged that on May 28, 2017, while riding his bicycle, he was struck by a motor vehicle and sustained personal injuries. There were no witnesses to the accident, and the vehicle fled the scene. The petitioner initially identified the offending vehicle as a Chevrolet pickup truck bearing a certain license plate number. However, a search of the Department of Motor Vehicles records revealed that the vehicle bearing that license plate number was a Honda passenger sedan. The Honda vehicle was insured by State Farm Mutual Automobile Insurance Company, which disclaimed coverage on the ground that its insured had not been involved in the accident.

The petitioner filed a notice of intention to make a claim with the Motor Vehicle Accident Indemnification Corporation (hereinafter MVAIC). Thereafter, he commenced this proceeding pursuant to Insurance Law § 5218 for leave to commence an action against MVAIC. In the petition, the petitioner acknowledged that he may have misidentified the license plate number of the vehicle that struck him. MVAIC opposed the petition.

Here, the Supreme Court should not have denied the petition without first having conducted a hearing. There was no evidence before the court as to the identity of the operator of the offending vehicle at the time of the accident.  In addition, although the petitioner initially stated that the offending vehicle was a Chevrolet pickup truck bearing a particular license plate number, it was later ascertained that the vehicle registered under that plate number was a Honda sedan. Under these circumstances, a significant possibility exists that the offending vehicle and its owner and operator have not been, or cannot be, properly identified.

Therefore, an evidentiary hearing should be conducted to determine whether all reasonable efforts have been made to ascertain the identity of the motor vehicle and of the owner and operator, and whether the identity of the motor vehicle and the owner and operator cannot be established.

09/27/19       Leonard v. Motor Vehicle Accident & Indemnification Corp.
Late Notice of Claim Allowed against MVAIC
Appellate Division, Fourth Department

The Motor Vehicle Accident & Indemnification Corporation (MVAIC) appealed from an order allow a late notice of claim to be filed against it.

Leonard, a hospital employee, was injured on 12/21/17 while assisting a patient into a vehicle at a hospital entrance. She was struck by a passing vehicle that did not stop. The police investigated and filed a report.  On July 16, 2018, petitioner filed an application for leave to file a late notice of claim against MVAIC.

Where, as here, a petitioner has a cause of action for damages for bodily injury arising out of the accident, but the cause of action is against a person whose identity is unascertainable, he or she may seek the protection provided by respondent by filing an affidavit with respondent within 90 days of the accrual of the cause of action.  The statute provides for a late notice of claim within a reasonable time thereafter but within one year.

A petitioner must submit "facts which caused the delay and that it was not reasonably possible to file the affidavit within the specified period and that the affidavit was filed as soon as was reasonably possible" and the court shall consider "whether [respondent] acquired actual knowledge of the essential facts constituting the claim within [180 days of the accrual of the cause of action] or a reasonable time thereafter" and consider prejudice.

Here, Leonard argued that her delay in filing stemmed from the fact that she did not own, possess, or insure any motor vehicle, and she did not know of respondent or its purpose until she sought legal advice in early July 2018. The court found that the lack of understanding that coverage may exist for a hit-[and-run accident was "a common and excusable misunderstanding." The affidavit was thus filed "as soon as was reasonably possible." In addition, respondent acquired actual knowledge of the essential facts constituting the claim when petitioner filed her application. Although not within the 180 days prescribed by the statute, it was within "a reasonable time thereafter”.  Since the police investigated, prejudice was not established.

09/25/19       Country-Wide Insurance Company v. Santos
Appellate Division, Second Department
Framed Issue Hearing Necessary to Resolve Factual Issue Regarding Stolen Vehicle in Uninsured Motorist Matter

This was an application to stay an uninsured motorists arbitration.

On August 29, 2017, a vehicle owned and operated by Santos, in which Henriquez and Rodriguez were passengers, was allegedly struck in the rear by a vehicle owned by Singh, which fled the scene of the accident. Santos, Henriquez, and Rodriguez made a claim for coverage from Singh's insurance carrier, National General Insurance Online, Inc. (“National General”). By letter dated October 19, 2017, National General disclaimed coverage on the ground that an investigation revealed that "our insured's vehicle was report[ed] stolen" at the time of the accident. Santos, Henriquez, and Rodriguez made a demand for arbitration of uninsured motorist coverage against Santos's insurance carrier, Country-Wide. Country-Wide commenced this proceeding, inter alia, to stay arbitration.

National General's disclaimer letter, submitted by Country-Wide in support of its petition, constituted prima facie evidence as to the existence of a policy of insurance covering Singh's vehicle at the time of the accident. That same letter was sufficient to raise a triable issue of fact as to the validity of National General's disclaimer.  Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's permission. Evidence that a vehicle was stolen at the time of the accident may overcome the presumption of permissive use. Under these circumstances, a framed-issue hearing is necessary to determine whether National General properly disclaimed coverage of Singh's vehicle.

Editor’s Note:  Did Country-Wide disclaim in time?  Was issue of “permission” part of grant of coverage or was it an exclusion?

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

10/02/19       First Am. Title Ins. Co. v. Chavannes
Appellate Division, Second Department
Failure to Oppose Motion Precludes Ability to Seek Appellate Relief

This action starts with the conveyance of a parcel owned by Marvin Comond.  At some point, the property was sold to Golden Grand Developers, LLC.  The only problem was the deed conveying Mr. Comond’s interest in the property was forged by his former wife and son.  Mr. Comond started an action to recover his property but failed to timely prosecute it. As such, it was dismissed from the active calendar for want of prosecution.  In 2010, Mr. Comond moved to restore his matter to the active calendar.  That application was granted, and on the same day Mr. Comond entered into a stipulated settlement wherein Golden Grand gave back the property and Mr. Comond assigned his fraud claim against his former wife and son. 

With Mr. Comond being made whole, Golden Grand now commenced a fraud claim against the former wife, Chavannes, and Command’s son.  After a lengthy stay for bankruptcy, Golden Grand assigned its rights to First American.  First American then moved to restore the matter, and concurrently moved for summary judgment against both Chavannes and the son.  That motion was granted in due course, and Chavannes instituted the instant appeal.

As an initial matter, the Appellate Division dismissed Chavannes’ appeal insofar as it sought relief for Mr. Comond’s son.  As she is not he (the son), she is not aggrieved by that part of the decision granting judgment against the son.

With regard to the judgment filed against her, the Court noted that Chavannes failed to oppose First American’s motion to restore the matter.  As such, she could not take an appeal of the trial court’s decision to grant First American’s requested relief.  The Court went on to affirm the trial court’s decision to grant summary judgment where, as here, the evidence of fraud on the operative document was apparent on its face.

09/25/19       Bank of New York Mellon v. Alli
Appellate Division, Second Department
Foreclosure Action Governed by New York’s Six Year Statute of Limitations

Defendant obtained a loan from Countrywide Bank in 2007, and promptly defaulted the following year in 2008.  By that time The Bank of New York had purchased the loan, and it commenced an action seeking to foreclose on the property.  That matter was dismissed (for unknown reasons) in 2013.  In 2015, plaintiff commenced a second foreclosure action against Mr. Alli.  Defendant appeared in that action, and asserted, inter alia, a statute of limitations defense.

Plaintiff moved for summary judgment.  Defendant responded by cross-moving for dismissal based upon its argument that Mellon’s action was time barred. 

In affirming the trial court’s decision, the Appellate Division first noted that a mortgage foreclosure is governed by the general six-year statute of limitations.  As such, the moment a lender invokes its right to accelerate the mortgage it must commence legal action within the next six years.  Here, the first foreclosure action was commenced in March of 2008.  Although that action was eventually withdrawn, no one explicitly revoked their action to accelerate Mr. Alli’s obligation.  As a result, when Mellon started the second foreclosure action in 2015, it was beyond the statute of limitations and time barred accordingly. 

 

WILEWICZ’S WIDE WORLD OF COVERAGE
Agnes A. Wilewicz

[email protected]

10/01/19       Jason Freeman v. Securian Life Insurance Company
United States Court of Appeals, Firth Circuit
Fifth Circuit Interprets Provisions in Accidental Death and Dismemberment Policy in a Russian Roulette Case (Texas Law)

Jason Freeman and his 17-year old son Adrian were insured under Freeman’s accidental death and dismemberment policy issued by Securian Life Insurance Company, through his employer, Kohl’s. Sadly, Adrian was killed when he was playing Russian Roulette one day, having loaded a revolver with one cartridge, spun the gun’s cylinder, twirled the gun around his finger, and placed the gun in his mouth and pulled the trigger. The medical examiner thereafter ruled it a suicide.

The policy, however, excluded death “caused directly or indirectly by … (1) self-inflicted injury or …; (2) suicide…” The Court noted that the reference to suicide was a red-herring, presumably because suicide requires an intent, which was probably debatable in this case. Rather, the reference to self-inflicted injury aspect was clear. Adrian’s death was irrefutably the result of self-inflicted injury, given the facts. As such, there was no coverage and the lower court’s decision in that regard was not arbitrary and capricious.

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

09/11/19       Allied World Assur. Co. (U.S.) Inc. v. Aspen Specialty Ins. Co.
Supreme Court, New York County
Hon. Frank P. Nervo
Court Finds Duty to Defend Triggered Irrespective of Outcome at Trial in Underlying Action

This declaratory judgment action arises out of an underlying lawsuit in which an employee claimed she was injured as a result of negligent construction work performed at her place of employment.  The general contractor retained two subcontractors, Dimensional Drywall and Quality Craft, to perform work in the area where the employee claimed she had been injured.  At the time of the incident, Dimensional Drywall was insured under a policy issued by Aspen, and Quality Craft was insured under a policy issued by Merchants.

The general contractor tendered its defense in the matter to both carriers who denied the tender contending that the general contractor’s liability was not caused by their respective insured’s work.  Thereafter, the underlying complaint was amended, and Dimensional Drywall and Quality Craft were added as direct defendants.  In turn, plaintiff again tendered the general contractor’s defense.  No response was received from the carriers.  Ultimately, the underlying was dismissed after trial.

In considering plaintiff’s request for recoupment of fees, and that defendants defend the general contractor through appeals, the court reviewed the relevant policies.  Plaintiff argued that the relevant policies afforded automatic primary coverage to the general contractor as an additional insured when required by written agreement, which they submitted was in place.  In response, defendants cited to the Burlington decision asserting that where their policies only cover bodily injury “caused in whole or in part, by” Qualify Craft and/or Dimensional Drywall, such language required the named insured to be a proximate cause of the loss.  They further argued the duty to defend does not apply to the general contractor where the trial court found the named insureds’ work was not causally related to the alleged accident.

The Court began by stating that Burlington stands for the proposition that, inter alia, where an insurance policy limits bodily injury coverage to that “caused in whole, or in part” by the primary insured, the additional insured will not benefit from such coverage where the proximate cause of the injury is solely that of the additional insured.  However, the court continued, where there is a reasonable possibility that the primary insured caused the bodily injury, Burlington is inapplicable.  Furthermore, where an insurer has knowledge of the facts establishing a reasonable possibility of coverage, the insurer is obligated to defend its insured in the underlying action.  The court then concluded that defendants had knowledge that a reasonable possibility of coverage existed, as it is undisputed that Allied tendered the amended complaint, listing Dimensional Drywall and Quality Craft as named defendants.  The court was clear that the resolution in favor of the general contractor, Dimensional Drywall and Quality Craft in the underlying action was of no moment and did not have any bearing on the insurer’s duty to defend.  “To hold otherwise would result in the perverse outcome where insurers are not obligated to bear the cost of an insured’s successful defense and may withhold payment of defense costs until their insured is found liable after a failed defense.”

The court lastly concluded that the coverage under the defendant’s policy was primary to plaintiff’s coverage based upon an “Primary and Non-contributing Insurance (Third-Party)” endorsement in the Aspen policy, and a provision in the Merchants policy which predicated its priority on the primary insured’s contract or agreement with the additional insured.

 

BARNAS ON BAD FAITH
Brian D. Barnas
[email protected]

10/02/19       Loughery v. Mid-Century Insurance Co.
United States District Court, Western District of Pennsylvania
Whether Request for a Physical Examination Violates Pennsylvania Public Policy and Constitutes Bad Faith Remains Unresolved

Plaintiff purchased an automobile policy from Mid-Century with first-party income loss benefits of $2,500.00 per month and $50,000.00 aggregate.  On October 24, 2016, Plaintiff’s vehicle was struck from behind in a violent collision with a third party and she suffered serious and permanent injuries.  The third party accepted liability for the accident and paid its policy limits.  At the time of the accident, Plaintiff owned and operated a home cleaning/maid service known as Maid in the USA, which cleaned both residential and commercial properties.  She was the sole employee and her duties were very physical, requiring lifting, movements overhead, carrying objects and activities associated with heavy cleaning.

Because of the injuries she sustained in the accident, Plaintiff was required to undergo extensive medical treatment, including surgery.  As a result, she missed several weeks of work and submitted lost benefit claims which were paid by Mid-Century.  Plaintiff submitted medical narrative reports from her doctors, who rendered opinions that her continued work at Maid in the USA would aggravate the injuries sustained in the automobile accident.

However, Plaintiff alleged that Mid-Century refused to pay her claim after her business closed.  Rather, it scheduled her for a physical examination pursuant to the policy and eventually required her to submit to an examination under oath.  At the time the lawsuit was filed, Plaintiff still had not received a decision regarding her additional income loss benefits.

Plaintiff alleged that Mid-Century acted in bad faith by: failing to timely, properly, fairly and objectively evaluate her claim for income loss benefits; attempting to schedule a medical examination with without good cause or no legitimate purpose; denying her claim without any reasonable or medical justification; and requiring her to submit the same documents for no legitimate purpose.

Mid-Century argued that the allegations against it were mere boilerplate.  It also argued that the only specific allegation was that Mid-Century scheduled a physical examination without good cause or an order of the court, which it argued did not constitute bad faith.  Mid-Century’s policy specifically provides that a person seeking coverage must “as required by Pennsylvania law, submit to a physical examination at our expense by doctors we select as often as we may reasonably require.”  However, the Pennsylvania Motor Vehicle Financial Responsibility Law provides that “whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction … may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown.”

The Pennsylvania Supreme Court is currently considering whether the policy provision conflicts with the Motor Vehicle Financial Responsibility Law.  Accordingly, the court declined to dismiss the bad faith claim based on that and because the bad faith claim is not limited to the demand for a physical examination.

Plaintiff also alleged that Mid-Century’s conduct violated the Unfair Trade Practices and Consumer Protection Law.  However, in Pennsylvania, only malfeasance, the improper performance of a contractual obligation, raises a cause of action under the UTPCP.  An insurer’s mere refusal to pay a claim which constitutes nonfeasance, the failure to perform a contractual duty, is not actionable.  Thus, that claim was dismissed.

 

JOHN’S JERSEY JOURNAL
John R. Ewell
[email protected]

09/30/19       G. Matts Hospitality v. Scottsdale Ins. Co.
United States District Court, District of New Jersey
New Jersey Federal Court Enforces Policy’s Suit Limitation Provision to Dismiss Superstorm Sandy Claim

Scottsdale issued a commercial insurance policy (the “Policy”) to G. Matts Hospitality d/b/a Sands Motel (“Sands Motel”) covering a motel in Seaside Heights, New Jersey. The Policy contains a suit limitation provision limiting the time to bring suit to 2 years from the date on which the damage occurred.

In November of 2012, Scottsville receive notice of a claim from Sands Motel claiming a loss on October 29, 2012. Sands Motel claimed damage on its property caused by flooding and wind as a result of Superstorm Sandy. Scottsdale investigated and adjusted the claim. On July 13, 2013, Scottsdale issued a coverage letter indicating that Scottsdale would issue a payment of $6,975.97, accounting for a deduction of the $8,000 deductible.

The coverage determination letter stated, in pertinent part:

The water damage in the stairwell is due to a wind created opening therefore it is covered. All the other water intrusion is due to long term seepage and or plumbing leaks. In order for there to be coverage for interior rain, the policy requires the rain [to] enter through an opening created by a covered cause of loss. Since there was no opening created due to a covered cause of loss through which the rain entered, there is no coverage for the other interior water damage. The policy also excludes any water damage due to continued or repeated seepage.

There is coverage for the wind damage to the siding, gutters and roof.

A check for the covered damage in the amount of $6,975.97, after consideration of the $8,000 wind deductible, will be sent under separate cover…

Sands Motel sued Scottsdale in New Jersey state court asserting breach of contract and seeking consequential damages. Scottsdale removed the case to federal court on the grounds of diversity. Scottsdale filed a motion for summary judgment arguing that Sands Motel’s lawsuit must be dismissed pursuant to the policy’s suit limitation provision. Specifically, Scottsdale contended the Policy’s statute of limitations bars recovery because Sands Motel failed to file the Complaint within the two-year limitation period, and Scottsdale’s July 11, 2013 correspondence was a clear and unequivocal determination of coverage such that the two-year suit limitations provision began to accrue. Sands Motel argued the July 11, 2013 coverage determination letter was ambiguous as to its denial of coverage, and Scottsdale’s first actual, definitive disclaimer of coverage came via a reply dated February 22, 2017, thereby tolling the contractual time bar until that time.

New Jersey courts have routinely held that suit limitation provisions in insurance policies are enforceable. Under New Jersey law, any contractual statute of limitation provision contained in an insurance policy is tolled from the time an insured gives notice until liability is formally declined. It was undisputed that Sands Motel seeks recovery for property damage it sustained in Superstorm Sandy on October 29, 2012. Sands Motel provided notice of this loss to Scottsdale on November 15, 2012. Thereafter, Scottsdale undertook an eight-month long investigation of Sands Motel’s claim before making its coverage determination through its July 11, 2013 letter, indicating that it would disburse $6,975.97 on Sands Motel’s claim.

The Court found that, pursuant to the two-year statute of limitation imposed by the Policy, Sands Motel had until July 11, 2015 to file this lawsuit. However, Sands Motel did not file the Complaint until June 29, 2017—nearly two years after the statute of limitations expired. Therefore, the Court ruled that Sands Motel’s Complaint was barred by the statute of limitations in the Policy.

Sands Motel also argued that the July 11, 2013 coverage determination letter was ambiguous. However, the Court disagreed and ruled the July 11, 2013 letter meticulously explained which claimed property damages were and were not covered and the grounds for each decision. Moreoever, the co-owner of Sands Motel conceded at his deposition that it was clear that the letter was a denial of coverage. Summary judgment granted to the insurer.

Disclaimer: This is “not for publication” decision which has no precedential value.

 

LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel

[email protected]

All’s quiet on the Connecticut front this week.

OFF THE MARK
Brian F. Mark
[email protected]

No noteworthy decisions to report on this edition.

 

WANDERING WATERS
Larry E. Waters
[email protected]

09/30/19       Jack T. Pollicino v. Allstate Indemnity Company
United States District Court, Northern District of New York
Plaintiff’s Motion for Summary Judgment Granted in Part as the Policy’s Residency Requirement was Unenforceable Due to the Conflicting Vacancy Clause

This matter stems from Defendant’s denial of Plaintiff’s insurance claim in connection with a fire on April 24, 2017.  Prior to the fire, Plaintiff had purchased a home located at Chestnut Street, Syracuse, New York (the “Chestnut Property”). The Chestnut Property was insured through a policy of insurance issued by Defendant (the “Policy”).  In part the Policy contained certain definitions, which included in part:

6. Dwelling—means the single-family building structure, identified as insured property on the Policy Declarations, where you reside, and which is principally used as a private residence.

8. Insured Premises—means:

a) the residence premises

14. Residence Premises—means the dwelling, other structures and land located at the address stated on the Policy Declarations.

The Policy also provided in part:

9. Permission Granted to You

a). The residence premises may be vacant or unoccupied for any length of time, except where a time limit is indicated in this policy

In April 2016, Plaintiff made an arrangement with his ex-wife, after she had a stroke. The arrangement permitted Plaintiff’s ex-wife, her daughter and her daughter’s children to stay at the Chestnut Property on a temporary basis or to live there indefinitely. At some point during their stay at the Chestnut Property, Plaintiff gave up his bedroom.  In addition, Plaintiff stayed with girlfriend after his own surgeries in 2014, 2015, and 2017. Plaintiff alleged that after his third surgery he was bedridden and stayed at his girlfriend’s property 5-7 days a week between July 2016 and February 2017.

Following the fire on April 24, 2017, Defendant denied Plaintiff’s claim because Plaintiff did not reside at the Chestnut property.  In part, Defendant’s denial provided

Coverage A Dwelling Protection provides insurance coverage to “your dwelling” which is defined as the single-family building structure identified in the policy declarations where the named insured resides. Here, you are the only named insured on the policy declarations. To meet the definition of a dwelling, a property must be a residence of yours. The policy does not cover a location where the insured does not reside, nor does it provide any landlord coverage.

Second, Defendant denied coverage because Plaintiff failed to notify Defendant of a change in occupancy.  In part, Defendant’s denial provided:

the Policy’s Insuring Agreement required you as the named insured to inform Allstate of any change in title, use or occupancy of the residence premises. Failing to do so constitutes a breach of the conditions of the policy, thereby voiding coverage. You failed to inform Allstate that he no longer occupied the residence premises, breaching the policy conditions and voiding coverage.

After the denial was issued, Plaintiff commenced this current diversity action in the Northern District of New York.  Upon the completion of discovery, both parties moved for summary judgment.  The following will discuss the Court’s decision as it relates to Plaintiff’s first cause of action for breach of contract.

The court began its analysis by determining whether the residency requirement and the vacancy clause contradict one another.  The Court noted that the residency requirement mandates that Plaintiff reside at the insured dwelling, while the vacancy clause allows Plaintiff to leave the premises vacant or unoccupied. In addition, the court found that “[i]f Plaintiff avails himself of the permission to not reside at the insured dwelling, he violates the residency requirement because these terms conflict, the policy is ambiguous and must be resolved in Plaintiff’s favor.”  In support, the Court turned to decision in Gualti v. Allstate Ins. Co., which held that Allstate “cannot now rely on the fact that Plaintiff was not residing at the premises at the time of the fire to deny coverage, as it had granted him express permission to essentially not reside there and leave the house vacant for an unlimited duration.”  Therefore, the Court held that the residency requirement was unenforceable due to the conflicting vacancy clause and granted Plaintiff’s summary judgment on the issue of whether Defendant may disclaim coverage based on the residency requirement.

Next, the Court considered Defendants argument that Plaintiff breached the policy conditions, as Plaintiff failed to inform Allstate that he no longer occupied the residence premises. In opposition, Plaintiff raised several objections to the enforceability and application of the notice requirement.  Plaintiff argued that the notice requirement was facially unenforceable because it conflicts with the vacancy clause, violated the New York Standard Fire Policy, and was immaterial.  The Court however disagreed with Plaintiff’s arguments.

The Court found the notice requirement was reconcilable with the vacancy clause. The Court determined that the vacancy clause allowed Plaintiff to leave the premise vacant for any period of time, and the notice requirement mandated that Plaintiff provide Defendants notice about any change in the occupancy.  As such, while the provisions relate to one another, they did no conflict.  Therefore, the Court held that while :[i]t is unfortunate that the policy required Plaintiff to realize that exercising the privilege granted by the vacancy clause would void his coverage unless he read the vacancy clause in conjunction with the notice requirement located fourteen pages earlier, a contract [nonetheless] should be interpreted in a which reconciles all its provisions.”

Next, the court considered Plaintiff’s argument that the notice requirement violated New York Insurance Law §3404 because “§3404 does not allow the provision as it reduces coverage.”  The Court disagreed with Plaintiff’s argument.  In support, the Court noted that Insurance Law §3404 requires a policy to have “terms and provisions no less favorable to the insured than those contained in the standard fire policy.” Further, the court noted that the Standard Fire Policy, provides “[t]his entire policy shall be void if, whether before or after a loss, the insured has willfully concealed or mispresented any material fact or circumstance concerning this insurance.” As such, the court concluded that the “as long as the misrepresentation was material §3404 permitted Defendants to disclaim coverage.”

Next, the Court turned to whether the failure to provide notice of a change in occupancy can be a material misrepresentation.  The Court found that it could.  In support of its decision, the Court turned to the decision in D’Agostino v. Allstate Ins. Co., which addressed a policy with an identical notice requirement that covered insureds who did not reside at the covered premises.  In D’Agostino, that court held that “the plaintiffs had the obligation to provide accurate information as to who resided at the insured premises . . . .not residing at the insured premises is a material in fact that the insurer must  be told because it triggers the issuance of a different type of policy.”  Further, the Court explained that the test to be applied “does not require the insurer to show it would not have issued any policy at all to the insured, it only has to show it would not have issued the policy in question.”  As such, the Court held that the failure of an insured to provide notice of a change in occupancy, as required by an insurance contract, can constitute a material misrepresentation.

Nevertheless, the Court found that there was a factual dispute in this matter as to whether the Plaintiff made a misrepresentation as to occupancy. Further, the Court rejected Plaintiff’s arguments that he complied with the Notice Requirements.  The Court found that Defendant’s did not have notice of the change in occupancy based on renter’s insurance or the change in mailing address of Plaintiff. In support, the Court relied on D’Agostino, which held that the fact that “defendants by doing a little search could have determined that neither insured resided at the “premises did not relive the insureds of the requirement to provide notice.”

In sum, the Court granted Defendant’s summary judgment motion as to Plaintiff’s second cause of action and third cause of action and denied as to Plaintiff’s first cause of action.  Plaintiff’s Summary Judgment Motion was granted as to the issue of the enforceability of the residency requirement as it pertains to Plaintiff’s Cause of action for breach of contract and granted as to Defendant’s first and second affirmative defenses and denied as to defendant’s third through eighth affirmative defenses.
 

BORON’S BENCHMARKS
Eric T. Boron
[email protected]

High courts of the states other than New York simultaneously took vacations the same time I did!

 

BARCI’S BASICS (ON NO FAULT)
Marina A. Barci

[email protected]

10/02/19       Bay Needle Care Acupuncture, P.C. v. Country Wide Ins. Co.
Appellate Division, Second Department
Attorney’s Fee Award from Arbitrator Upheld

Arbitration was commenced following the insurer’s denial of benefits for acupuncture treatments provided by Bay Needle to the assignor as a result of a motor vehicle accident. After an arbitration hearing, the arbitrator awarded Bay Needle $649.74 plus interest and attorney’s fees pursuant to 11 NYCRR 65-4.6(b). Bay Needle appealed the award to a master arbitrator, contending that the attorneys fee award was incorrect. The master arbitrator affirmed the award and Bay Needle petitioned to vacate the award, which the Supreme Court denied. Bay Needle again appealed to the Second Department, who affirmed the Supreme Court’s denial.

Bay Needle argued that the award must be vacated because the attorney’s fees should have been awarded under 11 NYCRR 65-4.6(c), not (b). The arbitrator determined that (c) was the more appropriate section over (b) to award attorney’s fees because the Bay Needle’s attorney failed to support its fee request with documentation such as time sheets or other evidence of the number of hours that was spent on the matter. Thus, the arbitrator could not award attorney’s fees at the hourly rate set in (c), but rather had to award the usual 20% under (b).

As you’ll recall, the role of a master arbitrator is to review the determination of the arbitrator to assure that the decision was reached in a ration manner, and that the decision was not arbitrary and capricious, incorrect as a matter of law, in excess of the policy limits, or in conflict with other no-fault arbitration proceedings. The master arbitrator has no power to review, de novo, the matter originally presented to the arbitrator. The only way for master arbitrator’s decision to be overturned is then if the court finds that award was “arbitrary and capricious, irrational or without a plausible basis.” Under these requirements, neither the master arbitrator, Supreme Court, or the Second Department could overturn the arbitrator’s award for attorney’s fees.

09/20/19       Satya Drug Corp. v. Global Liberty Ins. Co.
Appellate Term, First Department
IME Doctor’s Conclusory Statement Not Enough to Prove Assignor Failed to Appear for IME

Global moved for summary judgment to dismiss the no-fault action on the ground that benefits were properly denied due to the assignor’s failure to appear at duly scheduled IME’s. Satya opposed, arguing that Global failed to submit competent evidence of the assignor’s nonappearances. In support of the motion, Global submitted an affidavit from the IME doctor that stated that the assignor did not appear on the scheduled IME dates, but that failed to adequately state the basis of this recollection 16 months later. No affidavit was offered from the IME scheduling vendor indicating the assignor’s failure to appear either. The Court opined that the mere fact that the IME doctor recorded statements of nonappearance by the assignor imports no guarantee of the truth or reliability of those statements, even though they may be routine. Thus, GlobalX’s motion was denied as they did not meet their burden to prove that the assignor failed to appear for duly scheduled IME’s. 

 

RYAN’S CAPITAL ROUNDUP
Ryan P. Maxwell
[email protected]

The Legislative List

09/18/19       Sex Crime Statute of Limitations Extended in New York  

New Legislation Broadens Protections for Victims of Sex Crimes and Substantially Expands Statute of Limitations Period

On September 18, 2019, the Governor signed into law Chapter 315 of the Laws on 2019, which may have profound impact on institutions and insurers going forward.  The civil law provisions are discussed here.  Like the Child Victims Act, the civil limitations period is expanded.

Existing law (CPLR 213-c) had provided that civil actions against "a person who commits" sex crimes (rape, sexual abuse) could be commenced within five years of the act. This act broadens the criminal statutes that can be considered and expands the right to bring civil action to others who may be accused of negligence.

The new statute provides that an action can be commenced against ANY party whose intentional or negligent acts or omissions are alleged to have resulted in  the commission of the said conduct within 20 years. Specifically, the Sponsor Memorandum notes that the law extend[s] the statute of limitations to twenty years for rape in the second degree and criminal sexual act in the second degree, to ten years for rape in the third degree and criminal sexual act in the third degree, and would make conforming changes to incest in the first and second degrees.

Prior to this change, the statute of limitations “on sexual offense cases impose[d] a ticking clock on how long victims are able to come forward if they want to seek charges. For crimes of sexual violence in particular, the clock ticks against

the trauma and culture of silence that prevents victims from speaking out.” See Sponsor Memorandum.

The law was not without criticism, with Assemblyman Andy Goodell raising concerns during the June 19 vote of the Assembly with respect to increased civil litigation for “a large range of sexual acts that are inappropriate for civil actions.” Goodell noted that

[t]he [existing five-year] statute of limitations for this type of activity reflects the fact that often there's no hard evidence, there's no documentation, there's no video, there's no written agreement.  And so it often comes down to "he said, she said."  Those types of situations.  And so looking at our overall statute of limitations, we typically have very short statute of limitations for situations that aren't documented, nor can they be documented, and we have longer statute of limitations for where things are in writing, such as six-year statute of limitations for a written contract. . . .  Well this creates a 20-year statute of limitations for this type of situation.

Goodell continued by noting that this law likely imposes civil liability not only on the person who was accused of being engaged in the sexual misconduct, but it also imposes liability . . . “for a claim against any party whose intentional or negligent acts or omissions are alleged to have resulted in the commission of the conduct.”  Think about that.  Someone can be sued almost 20 years later based on an allegation that they negligently omitted to do something.  Not even that they were involved in the act. . . . Think about that.  Two decades ago, where were you?  Where were you in 1999, in the summer of 1999, and what did you negligently forget to do?  This would open you up to that type of lawsuit.

Potential pitfalls for the civil liability of intentional and negligent actors aside, and as with the Child Victims Act, carriers must be prepared to handle decades old claims investigations following such claims. For best practices of such an investigation, and as laid out by DFS, see Circular Letter No. 11 published September 12, 2019, relating to claims handling of aging CVA claims.

The law took effect immediately and applies retroactively to acts or omissions occurring prior to being signed into law.

Date T.B.D    Duty to Cooperate in Life Insurer’s Investigation Within "Two Year Contestability Period”
New York State Assembly
Bill Awaits Delivery to Governor Requiring Beneficiaries with Access to Decedent’s Medical Records to Grant Access to Life Insurer Upon Request

Earlier this year, on June 18, 2019, a bill responding to recent DFS guidance with respect to life insurance investigative tactics passed both houses of the Legislature and currently awaits delivery to the Governor.

On January 1, 2017, the New York State Department of Financial Services issued guidance with respect to recent trends in the handling by life insurers of alleged misrepresentations on life insurance applications. See Circular Letter No. 1 (2017). According to DFS, “some insurers authorized to write life insurance in New York [] ha[d] contested numerous life insurance claims following the death of the insured during the two-year contestable period, in the absence of actual evidence of misrepresentation, and improperly have shifted the burden of proof to beneficiaries.”

Specifically, and among other trends identified, “[s]ome insurers ha[d] asserted a right to rescind the life insurance policy after the insured’s death when the insurer cannot or does not obtain access to the deceased insured’s medical records” and had  “impermissibly [] been placing the burden on the beneficiary to obtain the deceased insured’s medical records in order to assist the insurer in pursuing a claim investigation so that the insurer may determine whether there was a misrepresentation in the first place.”

Citing Insurance Law § 2601(a)(4)’s requirement to attempt in good faith to effectuate prompt, fair and equitable settlements of claims, life insurers were  “advised that any business practice by an insurer that, absent any evidence of a material misrepresentation, requires a beneficiary to furnish claim information, including medical records, so that an insurer may investigate whether an applicant made a misrepresentation when applying for life insurance, [wa]s not attempting to effectuate prompt, fair and equitable settlements of claims in good faith.” DFS deemed such activities unfair or deceptive, stating that the “failure or inability of a beneficiary to supply medical records is not proof of a material misrepresentation.”

Recognizing the limitations Circular Letter No. 1 imposed on the life insurance market, which already operated within the limited “two-year contestability period” of Insurance Law § 3203(a)(3), New York State Senator Neil Breslin sponsored Senate Bill S3639 (same as Assembly Bill A7664) that served to “clarify that the beneficiary or anyone claiming a right under a life insurance policy has a duty to cooperate with an insurer's investigation of a death occurring during the two-year contestability period.” See Breslin Sponsor Memorandum. Full investigation of “a claim during the two year period following issuance is a vital tool for insurers to detect fraud and prevent the payment of fraudulent claims.”

Senator Breslin specifically noted the fear that “[i]f a beneficiary is able to refuse or block an insurer's reasonable request for information necessary for the insurer to complete au [sic] investigation following an insured's death during the two year contestability period, many carriers may face the difficult decision of whether they are able to continue to offer affordable and accessible products within the State.”

The bill, if signed into law, would add language to Insurance Law § 2305(a) providing that:

“(2) Any person having or claiming a right under a life insurance policy  that  (A)  provides  a death benefit and (B) has been in force fewer than two years following the date of issue or the date of  reinstatement if  evidence  of  insurability  is  requested,  shall provide reasonable assistance to the insurer in  obtaining  the  necessary  information  to determine  whether  a  misrepresentation  was  made by the applicant for insurance or the prospective insured.”

This bill, although passing both houses last session, has yet to be delivered to the Governor. If delivered and signed into law, the act would be effective immediately.

From the Filing Cabinet
10/02/19       Superintendent Shies Away from Conditional Endorsements Based on the Possible Expiration of Terrorism Risk Insurance Act

Speculative Future of Federal Terrorism Risk Insurance Act in 2020 Does Not Allow for The Filing of Endorsements Conditioned Upon the Termination of the Act

In a recent filing disapproval, a carrier sought approval for an optional endorsement that addressed how coverage or exclusions for “certified acts of terrorism” or “other acts of terrorism” would apply in the event that the Federal Terrorism Risk Insurance Act (“TRIA”) was modified or allowed to expire by Congress in 2020. The endorsement itself contained an exclusion for “terrorism” that would only have effect if TRIA was terminated or modified.

The Superintendent took issue with the endorsement’s appearance that its effectiveness was conditioned upon the speculative future and/or expiration of TRIA. Thus, DFS noted that it is not approving any conditional endorsements or rating rules based on the possible expiration of TRIA. However, DFS advised that once a final determination was rendered as to the future of TRIA, it would give appropriate consideration to such filings.

 

CJ At the Threshold
Charles J. Englert III
[email protected]

09/25/19       Bell v Motor Veh. Acc. Indem. Corp.
Appellate Division, Second Department
The Jury Must Be Instructed on The Mode of Measuring Range of Motion to Find the Serious Injury Threshold Has Been Met

Defendant filed a motion to set aside the jury verdict after a trial on damages where the plaintiff’s chiropractor testified as to the nature and extent of the infant plaintiff’s injuries but did not testify as to how she measured range of motion. Additionally, at trial the jury was not instructed that the expert was required to testify that she used a device to measure range of motion and the nature of that device. The jury found the plaintiff sustained a serious injury and awarded damages for both past and future pain and suffering. When ruling on the motion the trial court determined that based upon the testimony of the chiropractor there was a valid line of reasoning the jury could follow to determine the plaintiff sustained a serious injury. The defendant then appealed. The Second Department agreed with the lower court, finding that because the jury was not instructed that testimony regarding the mode of measuring range of motion was necessary, there was a rational line of reasoning that they could follow to find the Plaintiff sustained a serious injury. However, the Second Department then disagreed with the trial court in part, ruling that because the chiropractor’s testimony was not complete enough to determine there was a permanent consequential limitation of use, damages for future pain and suffering should be set aside.

09/25/19       Cherry v. Longo
Appellate Division, Second Department
Plaintiff Must Include Appropriate Proof When Amending Bill of Particulars to Assert New Injuries

A motion for summary judgment was granted in favor of the defendant when the plaintiff did not provide sufficient evidence to prove that the plaintiff’s death subsequent the instant motor vehicle accident was causally related to that same accident. In opposition to the defendant’s motion, plaintiff submitted an affidavit which speculated that the accident exacerbated an underlying condition the plaintiff was previously diagnosed with. In addition to failing to provide sufficient proof that the newly alleged injury was caused by the subject accident, the plaintiff failed to respond to defendant’s motion for summary judgment with regard to the initially alleged injuries. The Second Department agreed with the trial court, holding that an affidavit that only speculates on a relationship between the accident an injury does not raise a triable issue of fact. The Second Department further opined that because plaintiff failed to respond to the defendant’s motion with regard to the initially alleged injuries, the plaintiff did not raise a triable issue of fact, thus could not survive a motion for summary judgment.

10/02/19       Rosales v. Rivera
Appellate Division, Second Department
Defendant Cannot Meet Their Prima Facie Burden on Summary Judgment Without Addressing All Categories of Serious Injury Alleged by Plaintiff

In an action brought by plaintiff to recover for alleged serious injuries sustained in a four-car accident, two defendants moved for summary judgment, inter alia, alleging that plaintiff did not sustain a serious injury as defined by N.Y. Ins. Law § 5102(d). The trial court granted the branch of the defendant’s motion, dismissing the complaint insofar as asserted against them on the ground that the plaintiff did not sustain a serious injury. Plaintiff appealed and the Second Department ruled in his favor. The Court ruled that the moving defendants failed to meet their prima facie burden for summary judgment because, in their papers, they failed to adequately address the plaintiff’s claims that he sustained a serious injury to his head under either the permanent consequential limitation of use or significant limitation of use categories of N.Y. Ins. Law § 5102(d).

EARL’S PEARLS
Earl K. Cantwell

[email protected]

07/22/19       Towne Place Condominium Assoc. v. Philadelphia Indemnity
Northern District of Illinois
Late Notice Dents Hail Damages Claim

The Claimant manages a multiple-building complex in Illinois, and Philadelphia Indemnity Insured the property from August 1, 2013 – August 1, 2014. “Sometime in 2014”, a roofing contractor inspected the buildings and identified what was claimed to be hail damage, and in July 24, 2014, Towne Place made a claim on the policy in an e-mail to Philadelphia Indemnity based on a loss date of April 12, 2014 also stating that “we don’t know if we’ve had damage from any other storms.” The carrier investigated the claim and denied coverage. The claimant then retained counsel and an expert who inspected the roof and now claimed that the hail had fallen on May 2, 2014. Towne Place notified Philadelphia Indemnity that it was now asserting a May 20, 2014 loss date, which claim was denied including on the grounds that Towne Place did not give timely notice of a May 20, 2014 loss date.  The date of this second loss claim to Philadelphia Indemnity was December 3, 2015.

Towne Place sued arguing that Philadelphia Indemnity breached the insurance policy by refusing to cover the alleged hail damage arguing that the damage occurred on at least one of the two dates April 12, 2014 and May 20, 2014. Philadelphia Indemnity contended that damage was not caused by any April 12, 2014 storm, and the case then focused on the “second loss claim” alleging damage by hail on or about May 20, 2014. Philadelphia Indemnity contended that it was entitled to summary judgment because Towne Place did not provide adequate notice of any May 20, 2014 storm date and claim as required by the notice provision in the policy.

Towne Place first argued that the “mend the hold” doctrine precluded Philadelphia Indemnity from asserting the notice defense because of its pre-suit communications. Towne Place essentially argued that Philadelphia Indemnity’s grounds for denying coverage had not included the lack of timely notice claim. The Court did note some Illinois cases holding that the “mend the hold” doctrine does limit an insurer’s defenses to the original reasons for denying coverage. However, the Seventh Circuit has taken a contrary view holding that “mend the hold” does not confine the carrier to the defenses announced before suit. Therefore, the insured’s assertion of this doctrine was ineffective.

With respect to reasonable notice, breach of a notice requirement in a policy absolves the insurance company of any obligation to defend or indemnify the insured. The Court ruled that the December 3, 2015 notice of the second loss claim with a claim date of May 20, 2014 constituted untimely notice. Towne Place’s delay in giving notice of when the damage occurred was not reasonable, and the delay’s length, 18 months after any alleged May 20, 2014 storm date, demonstrated that Towne Place was aware of any alleged hail storm damage. The Court reached this conclusion even though Philadelphia Indemnity was not truly able to show that the delay caused it any prejudice based on Seventh Circuit law that an insurer need not prove that it was prejudiced in order to insist upon compliance with a loss notice requirement.

Therefore, Philadelphia Indemnity was entitled to summary judgment on its late notice defense, and the case was dismissed. 

 

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