Volume XXIV, No. 6 (No. 627)
Friday, September 2, 2022
A Biweekly Electronic Newsletter
Hurwitz Fine P.C.
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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 and Connecticut appellate courts and Canadian 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 do love situations.
NYSBA Risk Transfer Program:
We welcome the new subscribers who joined after the New York State Bar Risk Transfer Primer seminar. For those who missed the seminar and are interested in seeing the video presentation, click here.
Slim Pickin’s:
The appellate courts are generally running out of opinions to release at this point in the summer. Appellate dockets are sparse during July and August and accordingly, decisions from appellate courts are few and far between. The courts gear up again after Labor Day and decision start returning in volume in October.
Happy Labor Day:
It’s the Labor Day weekend and time to rest one’s weary bones and salute those who toil for a living. For those curious, the first officially declared Labor Day was on June 4, 1887, as Oregon became the first state to recognize such a holiday, setting it for the first Saturday in June. The popularity of the event spread across the country. By 1894, thirty U.S. States were already officially celebrating Labor Day. In that year, Congress passed a bill recognizing the first Monday of September as Labor Day and making it an official federal holiday.
President Grover Cleveland signed the bill into law on June 28, 1894. When it passed the House, the sponsor, Representative Cummings from New York, took the bill to President Cleveland and he immediately signed it. The pen used by President Cleveland to sign the bill was sent to labor leader Samuel Gompers, of the American Federation of Labor. There was no signing ceremony and there is no newspaper account of any statements by the President at the time.
The Semester Begins - Back to the Law School:
On Thursday, I returned to the Buffalo Law School to start my 35th of teaching Insurance Law as an elective to second and third year law students. Steve Peiper teaches the First Party classes.
I had the pleasure of speaking to the 2022 Law School graduating class this summer and I this being Labor Day, and my remarks to the graduates focusing on working, I thought I would share some of those comments here, presented because of my receipt of a Distinguished Teaching Award:
My message to you may be an odd one; I do not want you to work a day in your life. I will come back to that in a moment.
Let me tell you how deeply honored I am to receive this award in the name of Professor Ken Joyce, my tax and gratuitous transfer professor, who I have always considered a friend, despite his love for the Boston Red Sox. I teach here because I love sharing my love for the law with anyone who can benefit from it. Professors like Ken Joyce, who loved what he did, inspired me, by transferring his love, through his teaching style, to those of us who had the pleasure of learning at his feet.
He brought excitement to the classroom. I rejoiced in his joyful intensity and ardor for teaching. His commitment and enthusiasm were part of his DNA and became part of who I am. That I can share that love of the law and the legal profession with students who are just starting out in this wonderful profession is so very meaningful to me.
Ken Joyce brought passion to the classroom. And my message to you in the few minutes I have relates just to the subject of my brief talk today, passion.
What is passion? It is energy. It is enthusiasm. It is excitement. It is intensity. It is, as one author called it, a willingness to suffer for what you love.
I have been practicing law for over 42 years, and I have never worked a day in my life. I wish you the same success.
How remarkable is that?
I have wonderful clients, have tremendously intriguing situations that come across my desk every day, have tried hundreds of cases, written countless insurance coverage opinions, appeared in state and federal courtrooms throughout the country, handled appeals in every New York appellate department, the Court of Appeals, the Second Circuit and as pro hac, in various state and federal courts throughout the United States. I have written hundreds, perhaps, thousands of coverage letters and have counseled and given direction to an untold number of clients, fellow professionals, colleagues, and friends. I have served as president of three national bar and trade organizations and have had the honor of traveling throughout the world representing my bar and professional colleagues. I have given over 250 CLE presentations for bar and trade groups and hundreds more reserved for clients. I have taught Insurance Law at this fine institution to over 1,000 students over my years here.
And do you know what? None of that has been work. Why not?
As a very new lawyer, I developed a passion for my area of practice. Not just subject matter expertise, not just the legal standards that are applicable to what I do, but passion, a love for it, a thirst for knowledge, a craving to absorb everything I could about my area of practice so that the subject matter became part of my DNA. This passion has sustained me every day of my life as a lawyer. I read case law, I am a member of local, state, national and international bar, and trade organizations, I break bread with friends and colleagues from across the globe to wallow in my passion. I teach it, I live it, I embrace it.
I urge you to find an area of practice that allows you to develop that passion. Learn it, absorb it, be a resource for your clients and, as importantly, for your professional colleagues. When you are enthusiastic, you will naturally share, and teach, and counsel, and encourage, and empower your clients, friends, and professional colleagues. They will reach out to you. You will be the go-to person, the point of reference, the one they know that doesn’t just check the boxes but craves doing whatever she or he does best. And be the best. Write, teach, lecture, share, offer your advice freely, speak at bar programs, join professional organizations where likeminded people share your passion. And if you do that, if you really do that, if you find an area of practice that ignites that enthusiasm and passion, you too will never work a day in your life.
One way to do that is to develop relationships with other professionals – lawyers, surely, but others in the field where you are working.
Relationships beget passion.
As you learn to love the law, embracing inclusion and diversity, share your passion with others with whom you share that common bond. You will find them in bar associations, in trade groups, at continuing education programs, anywhere those of like mind gather. Develop relationships. These are not competitors; they are brothers and sisters. You will lean on each other, you will help one another, you will reach out to them for counsel and advice, and they will do the same for you.
You will meet colleagues who, like you, who embrace passion. They may be down the street, across the state, throughout the nation, or across the pond. These colleagues will morph into friends as these relationships solidify. They will help you as you will help them. Get out of your office, get on a train, plane, or automobile, and get to know them. Reach out to them.
Participate in bar activities and trade groups, not only in your town, but expand your network geographically. You will meet others who share your passion. Buy the first round, or the second. Speak highly of them and your kindness will be rewarded. Author articles with your colleagues. Look for speaking opportunities. You will be overwhelmed by the gratitude you receive from others when you help them, and you will feel the same way when they help you. That will lead to business referrals, client development, and appreciation from more people than you can imagine. Your professional friends will buoy you when things get difficult and remind you of your value not only to them but to our profession.
And if you do all of that, you will love what you do and wake up each morning eager to meet the new challenges you will face. If you remember nothing else from my remarks today, take this piece of advice. As soon as you can, join a bar association and get engaged and do so persistently for the rest of your legal career. For the reasons I have mentioned, bar association activities and the friendships and relationships that develop from your active participation will fuel your career.
They fueled mine.
And when you do that, you will be engaging in a passion that will lead to a fulfilling and joyful professional life. And then when you look back, you will realize, as I have, that you have not worked a day in your life.
Pay and Chase, a Lesson in How to Do It Right.
If there is one decision worth reading (and there are more), the Lancer v. Peerless case in this week’s issue is an important one.
Two carrier disagreed over coverage. Lancer believed that Peerless provided additional insured coverage and that risk transfer claims should be decided in its favor. In the meantime, the underlying case goes to mediation and the parties each contribute money towards resolution. When the mediation agreement was signed, it did not speak to the outstanding debate/dispute/disagreement over the coverage issues.
Thereafter, Lancer sued Peerless, to resolve the coverage and risk transfer issues. Peerless was able to convince the Appellate Division that Lancer waived its claim for coverage and risk transfer by not preserving it in the mediation agreement.
Here is the lesson. We’ve all been through mediations where, at the end of the day, the parties finally agree on a number and an allocation. If a carrier, participating in the mediation, either through defense counsel or coverage counsel, wishes to preserve any claim for coverage or indemnity, it MUST make certain that the mediation agreement (or a side agreement between the carriers) specifically reserves and preserves that right.
Expert Witness and Mediation Services:
If you are looking for an expert witness or a mediator to help resolve coverage or risk transfer issues, feel free to reach out. For insurers battling with each other over coverage issues and justifiable concerned about developing precedent that may work against them in their next case, mediation is an excellent alternative.
Need a mediator?
Hey coverage lawyers and claims professionals. Have you and a friend, adversary, or lawyer for whom who have respect reached a stalemate on a coverage dispute? Look, we know each other. We know that. We don’t want to litigate every coverage disagreement. Why? Because the position we oppose today may be the one we advocate tomorrow. Face it. We all understand that.
Let me help mediate your disagreement to see if there is some mutual agreement, we can reach that will not box us into a corner. Reach to me. I will be pleased to mediate your dispute.
My partners, Mike Perley and Ann Evanko, are also available to help resolve other challenges.
You don’t want adverse precedent that will bite you next time you might have a slightly different view on coverage issues. You don’t want to spend tens of thousands of dollars to litigate a coverage issue before a motion judge or appellate justice that know as much about insurance coverage as you do about nuclear physics. For those in the Western District of New York, I am certified by the Court and on the WDNY Mediation Panel as are Mike and Ann.
Try mediation. . . . .
Training, Training and More Training:
Schedule your in-house training for 2022. Need a topic? Here are 160 or so coverage topics from which to choose.
Newsletters:
We have other firm newsletters to which you can subscribe by simply letting the editor (or me) know, including a new publication, which was created to advise on business and employment law questions:
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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.
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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.
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Products Liability Pointers: Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, product liability litigation is constantly evolving. Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up to date with the latest developments and trends, and providing useful practice tips and litigation strategies. This monthly newsletter covers all areas of product liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework, and governmental agencies. Contact Brian F. Mark at [email protected] to subscribe.
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Medical & Nursing Home Liability Pointers. Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Chris Potenza at [email protected] to subscribe.
Peiper on Property and Potpourri:
A couple of interesting decisions handed down in the past couple of days saved us from getting skunked this week. The first, involving a non-residence fire loss, is not particularly noteworthy. The Court, rightly, invoked the plain language of the policy requiring the dwelling to have been a residence premises for coverage to have triggered. In doing so, it also rejected plaintiff’s estoppel claim where there was no evidence of detrimental reliance on anything the carrier allegedly did or said.
The second case we review, also from the Second Department, is a bit more useful to have handy. The Court affirmed the trial court’s decision to compel production of three years of social media history as part of the evaluation and assessment of plaintiff’s alleged injuries and loss of enjoyment of life claims. Noting that the request was sufficiently tailored to lead to the potential disclosure of relevant information, defendant’s motion to compel was granted.
That’s it for this week. Have a safe and happy Labor Day weekend. See you in two weeks.
Steve
Steven E. Peiper
[email protected]
Boy Bandits’ Actions Traumatize Many - 100 Years Ago:
Buffalo Courier
Buffalo, New York
02 Sep 1922
Georgia’s Youthful Slayer
Meets End Bravely;
Sweetheart Faints.
(By Special Wire to The Courier)
Atlanta, Ga., Sept. 1. - Frank Dupre, boy bandit, who after several jewelry store robberies, one murder and wounding of several others fled to Detroit and was captured, brought back, and convicted, was hanged here this afternoon.
Dupre’s body shot through the trap at 2:05 o’clock and he was pronounced dead a few minutes later.
Terror Seizes Mrs. Vinson.
The condemned youth maintained his bravery to the end. He said nothing after the death warrant was read to him. The black cap was adjusted, and the trap immediately sprung.
Screams of terror from Mrs. Cora Lou Vinson, now under sentence of death for the murder of her husband, and of Betty Andrews, sweetheart of the condemned youth, rang through the corridors just before the boy was led to his doom. The two women, brought into court after Miss Andrews had visited Dupre’s cell, refused to be consoled and screamed piercingly time after time.
Father Bids Son Farewell.
Scenes that were dramatic and solemn in the extreme proceeded the execution of the slight boy who last December shot down Irby Walker as the latter was attempting to protect a jewelry store from being robbed.
Almost hysterical and with tears streaming down his face, the boy’s aged father bade him an affectionate farewell an hour and a half before Frank walked from the death cell. Only a short time later Betty Andrews and several women who had worked for a commutation of sentence for the youth, bade him farewell.
Wilewicz’ Wide-World of Coverage:
It’s almost back-to-school time around here, and in our house, we are scrambling a bit to get ready. Summer reading has yet to be completed, and the “summer cleaning” we planned to do has yet to materialize. Thus, I think our Labor Day weekend will be jam packed with the last throes of summer outdoor events and also a mad dash to complete all of the chores we planned.
Now, this week in the Wide World of Coverage, we have a new, quite lengthy one from the Second Circuit. In ExxonMobil v. TIG Insurance, the court addressed two issues. First, whether a judge who, after he rendered judgment was found to actually own stock in the plaintiff’s company, had to vacate that judgment after the fact was revealed. Here, since the judge to whom the matter was reassigned reviewed the matter de novo, there was no reason to disturb the determination. Moreover, the first judge honestly did not learn about the conflict until after judgment, and the parties did not dispute that.
The second issue was more interesting and dealt with the interpretation of an arbitration that the parties had negotiated and customized. The full text of that provision is recited in the attached, along with a summary of the decision.
Have a great, restful Labor Day, everyone!
Agnes
Agnes A. Wilewicz
[email protected]
Feminism on the Rise - 100 Years Ago:
Daily News
New York, New York
02 Sep 1922
Woman Attorney Advocates
Independence for Wives
By MARTHA.
“Martha, Martha, thou hast
troubled thyself about
many things.”
Girls should not marry until they learn a trade!
That’s the challenge hurled to the established order of things by Dr. Anna W. Hochfelder, near — candidate on the Democratic ticket for State Senator from the Sixteenth Assembly District, Brooklyn.
It is the latest word on what ought to be required of women before they are allowed to say, “I do” to the tune of “Here Comes the Bride.”
Practically everything else in the way of pre-marriage requirements, including mental tests to satisfy public mentors that, aside from being crazy about each other, they are mentally sound in every other way are needless, she says.
Dr. Hochfelder proposes that skill and experience in some trade or other should be required of every girl who aspires to be a blushing bride. She should, according to the plan proposed, be able to earn her own living at a moment’s notice.
The idea is startling!
Upsets Old Tradition.
It upsets every tradition of the good old-timers that marriage is a woman’s only trade in life; that she needs no other; that her crown of glory is serving her husband and such family as she accumulates unto herself and better half as time goes on.
But Dr. Hochfelder is proposing the plan through no desire to upset the tradition of marriage itself.
She holds firmly to the idea that woman’s first duty is to her home, her husband, and her children.
In fact, she proposes the plan so that a woman may be more completely fitted to care for her home and family.
She proposes it as sort of compulsory insurance—insurance taken out by the woman against the chances of the husband’s being seized with sickness or accident, against desertion, against death of the husband, or any other misfortune which might befall the family.
** Editor’s Note: For a biography of this extraordinary woman and futurist, please click here.
Barnas on Bad Faith:
Hello again:
This is always an exciting time on the sports calendar. Playoff races in baseball are heating up as the season approaches its final month (please do not ask about the Blue Jays they are driving me insane. College football is also back, and I will be going to the Syracuse home opener Saturday night at the Dome for a big game against Louisville. The NFL season is also only a week away. Add in some Premier League, NASCAR playoffs, and the US Open in tennis and it is a full sports plate.
This time of year also marks the return of fantasy football. Labor Day Weekend is the busiest weekend of the year for fantasy drafts. The Hurwitz Fine fantasy football league will draft on Friday night. While Marc’s championship reign of terror was finally ended, my team was upset in the championship by Peiper on Property. We hope to bring home the trophy this year.
Not much going on in bad faith law these two weeks. I do have a somewhat interesting case from the Utah Supreme Court about whether a potential bad faith judgment could be recovered from a decedent’s estate. Check it out if you are so inclined and enjoy your long weekend.
Brian
Brian D. Barnas
[email protected]
Hugger Invades Personal Space - 100 Years Ago:
The Buffalo Commercial
Buffalo, New York
02 Sep 1922
JACK-THE-HUGGER
WORKING IN OLEAN
OLEAN, Sept. 2 (Special)—Search for a short man wearing dark clothes and a dark cap is being made by police. A South Side young woman, 18 years old, complained to authorities that she was seized and hugged by the man on Allegany River Bridge in South Union Street, Thursday night. She succeeded in getting away from the man and running to a home across the bridge. The hugger started but ran away when he saw a man approach.
Kyle's Construction Column:
Dear readers,
It is hard to believe that it is already September, going on vacation in the middle of August really made the month fly by. While it is certainly sad to see summer winding down, it looks like there is plenty of good weather left, and football season is right around the corner. Can’t wait for football Sundays, watching the Bills, tailgating, and hopefully drafting a top-notch fantasy football team this year.
This week’s case involves an insurance coverage dispute arising out of an underlying construction defect action, in which subcontractor defendants were sued for alleged defects in the construction of a condominium development. One of the subcontractors filed this action seeking liability coverage under the subcontractor defendants’ insurance policies, claiming additional insured status.
Until next time,
Kyle
Kyle A. Ruffner
[email protected]
Deadly Crossings - 100 Years Ago:
Buffalo Morning Express and Illustrated Buffalo Express
Buffalo, New York
02 Sep 1922
Autos Kill 221 Persons In State During August
New York, Sept. 1 (A. P.). - Automobiles and motor trucks caused the death of 221 persons in New York state in August, the National Highways Protective society announced today. Eighteen occupants of automobiles were killed at highway railroad crossings.
Fleming’s Finest:
Hi Coverage Pointers subscribers:
It has been a personal goal of mine to learn how to golf, but I have always found the sport intimidating with high barriers to entry. To play, you need to learn how to hold the clubs, which clubs to use, the technique, etc. That’s why it was particularly exciting when the HF women’s forum went golfing last week. It was nice spending time with colleagues and learning the basics to make golf less intimidating as a newcomer. While Rory McIlroy I am not, I hope to continue with the sport.
This week’s case comes from the New Jersey Supreme Court. A Home Depot employee was injured while operating a blind cutting machine. She and her husband sued the company that provided the machine for product liability, breach of warranty, and loss of spousal services. The insurer denied any obligation to defend or indemnify because the policy contained a Designated New York Counties Exclusion. It boiled down to whether the company’s operations in Nassau County needed to have a causal relationship to the causes of action or allegations.
See you later,
Kate
Katherine A. Fleming
[email protected]
Foul Mouthed Fines - 100 Years Ago:
Buffalo Morning Express and Illustrated Buffalo Express
Buffalo, New York
02 Sep 1922
Ukrainian row results in critic being fined $10.
There was a lively meeting of the Ukrainian American Home Association in their hall at No. 205 Military Road on the night of August 20th, when, after Gustav A. Plage of No. 303 Prospect Avenue, who owns a restaurant on Niagara Street near Main, made a motion that all Socialists and Bolshevists be ejected. William Wenger added an amendment to include all thieves and dishonest persons.
Plage asserts that Wenger called him a crook and a thief and accused him of stealing bonds in Canada.
Judge Maul fined Wenger $10. Wenger denied he called Plage a crook, saying he was speaking in general.
Ryan’s Capital Roundup:
Hello Loyal Coverage Pointers Subscribers:
Kindergarten starts next week for our oldest. Excited for him to start his K-12 journey. Although he enters an unknown, we have no doubt that he is prepared to handle the challenges ahead with gusto. I remember the ups and downs of K-12 (like it was decades ago), and he has so much to learn and experience. I have faith that through everything, he will leave a lasting impression on his friends, teachers, and administrators alike, over the course of the next several years to come. Homework isn’t so bad, right? Right?
This week, Ryan’s Capital Roundup has another installment of our From the Filings Cabinet segment. In a recent form filing rejection, I provide insight on the permissible scope of covered “loss” under New York statutory law and public policy rational.
Until next time,
Ryan
Ryan P. Maxwell
[email protected]
A Different Kind of Hangover – 100 Years Ago:
The Yonkers Herald
Yonkers, New York
02 Sep 1922
ATLANTIC CITY IN
A RUM CRUSADE
Atlantic City, Sept. 1st. - The long-threatened cleanup of liquor selling resorts, gambling dens and disorderly houses came today with the issuance of 150 bench warrants, based on indictments handed up yesterday. Thirty-five persons were brought before County Judge Smathers and, in all but one instance, were held in bail of $2,500 each.
The coup of the crusade was engineered by County Prosecutor E. C. Gaskill Jr., without the knowledge or assistance of the police or Federal prohibition enforcement officers. The evidence which resulted in the wholesale indictments was gathered quietly. Private detectives were imported and put to work secretly under the prosecutor.
The cleanup, which is probably the biggest ever experienced in Atlantic City, was partly a reply to a recent charge that politicians have been able to sell protection to law violators, but principally by way of redeeming pledges to rid this famous seashore resort of vice. Because of the secrecy of the indictments, it was not learned tonight whether the so-called “gilded row” of beach front hotels and restaurants is affected.
The indictments handed up by the Atlantic County Grand Jury is Mays Landing will be supplemented, it is said, by another group, probably fifty in number. The grand jury will meet again next week.
Dishing Out Serious Injury Threshold:
Dear Readers,
I hope everyone is having a great summer. I’m looking forward to some nice weather and family time on the boat this Labor Day weekend. I hope everyone enjoys the rest of the summer.
As we are at the end of summer it’s a slow time for decisions. However, we have one decision from the Second Department that finds that the defendant failed to establish, prima facie, that the alleged injuries were not caused by the accident
Enjoy,
Michael
Michael J. Dischley
[email protected]
The Bridge Debate Continues– 100 Years Ago:
International Gazette
Black Rock, New York
02 Sep 1922
Rumors that
Bridge Cost Would
be $7,000,000
A rumor has been spread around Buffalo and the Canadian frontier that Canadian government engineers, who have been looking into the matter of rebuilding the International Bridge and equipping it with driveways and footpaths, have reported against the project unless the government is prepared to spend $7,000,000.
Efforts to determine the source of this rumor were of course unsuccessful. W. E. Wilson, Secretary of the Canadian committee which sought to obtain a charter for a private bridge across the river from Massachusetts Avenue, said he had heard the story, but had no idea where it originated.
W. M. German, M. P., who sponsored the effort to secure the Canadian charter for a bridge, but who worked for the rebuilding of the International Bridge when the other effort failed, said there were no new developments in the matter of rebuilding the International Bridge.
Lee’s Connecticut Chronicles:
Dear Nutmeg Newsies.
Well, we went and did it—polished off yet another summer. Where did the time go? Just this week we flipped the calendar to September, dropped the kids back at college, and watched the sun set way too early. But it’s not over until we say it’s over. We’re gearing up for one last awesome holiday weekend—Shakespeare in the park, a country fair, and backyard barbeques are on the agenda, plus a trip up to Canada for an end of summer blowout.
This week the courts were light on decisions, but we managed to unearth a couple of interesting reads. Important takeaway—judges seem to be getting a bit persnickety and losing patience for bad lawyering. Don’t be on the receiving end of something that will live on Westlaw forever.
Keep keeping safe.
Lee
Lee S. Siegel
[email protected]
Sickness Not So Funny – 100 Years Ago:
Buffalo Morning Express and Illustrated Buffalo Express
Buffalo, New York
02 Sep 1922
FATTY ARBUCKLE ILL
Comedian in Tokio hospital as result
of sudden sickness
Special cable to The Express
Copyright, 1922, Tribune Company.
Tokio, Sept. 1. - Roscoe (Fatty) Arbuckle, who is touring the world following his exoneration of the manslaughter charge in connection with the death of Virginia Rappe, was taken to the hospital this morning with a sudden illness. The nature of his sickness has not yet been diagnosed.
Rauh’s Ramblings:
Dear Readers:
Fall is just around the corner, which means cooler temperatures and the start of football season! Although I love the summertime, it has been very busy this year, and I am definitely looking forward to things settling down a bit. My son starts preschool next week, and I am in complete denial that he will be going to kindergarten at this time next year! Time sure does fly!
This week, I have a case from the Eleventh Circuit regarding a period of limitations provision contained within an ERISA long-term disability plan and whether the Plaintiff had actual notice of the limitation. Read on more details!
Until next time,
Patty
Patricia A. Rauh
[email protected]
Beauty Is in The Eye of The Beholder – 100 Years Ago:
Daily News
New York, New York
02 Sep 1922
QUEENS OF SURF JUDGES
DIFFER IN BEAUTY IDEAS
The eight men to judge at the Atlantic City Beauty Contests, who will compare the loveliness of Miss New York, Miss Brighton, Miss Long Beach, and Miss South Beach with the beauty of contestants from other cities, met at the Ritz Carlton Hotel, New York, last night.
The eight are nationally famous artists and last night they tried to reach some agreement on the rules.
Willy Pogany, illustrator, and designer, was for the abandonment of all rules and regulations.
Venus as a Fright
“Whether it be Miss New York or Miss New Orleans or Miss Anybody else,” said Mr. Pogany, “beauty can’t be judged by standards. Impression is the only thing that counts - lines, proportion, coloring, expression, and grace of movement. A girl with the measurements of a Venus de Milo might be a fright.”
“Shall we bar any particular affection - such as permanent waves and bobbed hair?” asked Coles Phillips, the man who made silk stockings famous. Then, scenting a storm of protest, he added hastily:
“I certainly agree that nothing should be barred. That only the ultimate effect—the net impression conveyed—should have consideration.”
Dislikes Dumbbells
“Smartness is important,” said Heyworth Campbell, art director of “Vogue” and “Vanity Fair.” “I have decided a prejudice against the dumbbell.”
Dr. Arnold Genthe, whose photographic studies of the dance have been called the most beautiful in the world, urged that beauty is of the spirit—not the tape measure. And Norman Rockwell, popular young painter of magazine covers, agreed with him.
“The girl who wins the evening gown contest is quite likely to win the bathing costume competition,” continued Dr. Genthe. “A beautiful girl—is beautiful anywhere and in any costume.
Storm’s SIU Examen:
I’m away this week watching the Dodgers at the Mets. Go Dodgers!!! Double cases in two weeks for you. Happy long weekend!
Scott
Scott D. Storm
[email protected]
Shoe Pioneer a Step Above the Rest - 100 Years Ago:
The New York Age
New York, New York
02 Sep 1922
Two Pioneer Businesses
Conducted By Harlem Men
Harlem Shoe Company Is Only Shoe Store in New York Conducted by
Colored Men—Webb, the Jeweler, Was First of Race to Enter Business
There are few businesses in Harlem that are being run by more experienced men than that of the Harlem Shoe Company, the only colored shoe store in the city. All of the men connected with this business have had years of experience in factories and retail shoe business before going into this business. Although a corporation, the business has only five stockholders.
James C. Miller organized this business three years ago as a private enterprise, but had it incorporated in May of last year in order to secure more capital for expansion. Mr. Miller, the president, came to New York twenty-five years ago from his home in North Carolina, and has been in the retail shoe business since that time. He has worked for the Regal Shoe Company, the Emerson Shoe Company and for nine years previous to going into business for himself, was in charge of the shipping department of the Beck-Hazzard Shoe Company.
North of the Border:
The calendar says that we are now moving into fall, but in southern Alberta, it is still summer. My husband and I spent last week on an acreage south of Calgary. We awoke each morning to a panorama of mountains at the horizon, with wheat, and canola fields in the foreground, interspersed with cattle ranches and horse farms. Refreshment for the soul. Terrific spot to spend time. In the summer. In good weather.
My column this week departs from coverage and discusses a liability case that illustrates how the statutory tort for breach of privacy interests operates in British Columbia. Other provinces are considering a similar tort. Liability policies will be compelled to respond to these torts which carry significant frequency and severity implications.
Heather
Heather A. Sanderson
[email protected]
A Peach of a Crime - 100 Years Ago:
The Buffalo Times
Buffalo, New York
02 Sep 1922
Peach Tree Bandit Hangs for Murder
ATLANTA, Ga., Sept. 2. - Frank B. Dupre, self-styled “peach tree bandit,” was hanged at the Fulton County jail at 2:04 yesterday for the murder on December 15th last of Irby C. Walker, private detective, who tried to stop him in his dash from a Peach Tree Street jewelry store with a diamond he had snatched from a tray.
KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]
- Carrier is Estopped from Paying and Chasing Another Carrier when Both Carriers Contributed to Settlement in Mediation and Right to Chase was Not Preserved.
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
- Claims of Estoppel Rejected Where Insured Can Not Demonstrate Detrimental Reliance.
- Three Years of Social Media Activity Discoverable in Personal Injury Lawsuit.
DISHING OUT SERIOUS INJURY THRESHOLD
Michael J. Dischley
[email protected]
- Plaintiff’s Expert Findings Insufficient to Raise Triable Issue of Fact.
WILEWICZ’S WIDE WORLD of COVERAGE
Agnes A. Wilewicz
[email protected]
- Second Circuit Holds that Parties Were Compelled to Arbitration in Coverage Dispute, Where They had Entered into Binding Arbitration Agreement.
BARNAS on BAD FAITH
Brian D. Barnas
[email protected]
- In the Context of an Untimely Claim against a Decedent's Estate, Potential Proceeds from a Bad Faith Judgment do not Fall within the Limits of the Insurance Protection.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
- Spoliation is Not a Ground for Summary Judgment.
- Claims of Wrongful Entry Trigger Duty to Defend.
KYLE'S CONSTRUCTION COLUMN
Kyle A. Ruffner
[email protected]
-
Additional Insured Status Granted to a Subcontractor, Sued in An Underlying Construction Defect Case, Although Coverage Was Limited Under the Policy Endorsements.
RYAN’S CAPITAL ROUNDUP
Ryan P. Maxwell
[email protected]
- DFS Disapproval Advises “Loss” Cannot Include Post-Judgment Interest Due to Timing of Judgment Satisfaction Under Insurance Law 3420, and Other Public Policy Grounds.
RAUH’S RAMBLINGS
Patricia A. Rauh
[email protected]
- There is No Equitable Tolling if a Plaintiff has Notice Sufficient to Prompt them to Investigate and that, had they done so Diligently, they would have Discovered the Basis for their Claims.
STORM’S SIU EXAMEN
Scott D. Storm
[email protected]
- Happy Labor Day! Double cases in two weeks.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
- No Duty to Defend of Indemnify Based on Exclusionary Clause Regarding Designated New York Counties.
NORTH of the BORDER
Heather A. Sanderson
[email protected]
- In a judgment rendered August 24, 2022, in British Columbia, class members of a previously certified class action were allowed to recover general damages against an insurer whose employee gained unauthorized access to its data bases - despite the absence of any provable damage due to the unauthorized access. This judgment illustrates the breadth of the damages recoverable by reason of the statutory tort enshrined in the BC Privacy Act.
That’s all for now. Enjoy the long weekend. Write often, or call, and let us know how we can help.
Dan
Hurwitz Fine P.C. is a full-service law firm providing legal services throughout the State of New York and providing insurance coverage advice and counsel in 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
Patricia A. Rauh
[email protected]
INSURANCE COVERAGE/EXTRA CONTRACTUAL LIABILITY TEAM
Dan D. Kohane, Chair
[email protected]
Steven E. Peiper, Co-Chair
[email protected]
Michael F. Perley
Agnieszka A. Wilewicz
Lee S. Siegel
Brian F. Mark
Scott D. Storm
Thomas Casella
Brian D. Barnas
Ryan P. Maxwell
Patricia A. Rauh
Diane F. Bosse
Joel R. Appelbaum
Kyle A. Ruffner
Katherine A. Fleming
FIRE, FIRST PARTY AND SUBROGATION TEAM
Steven E. Peiper, Team Leader
[email protected]
Michael F. Perley
Scott D. Storm
Brian D. Barnas
NO-FAULT/UM/SUM TEAM
Dan D. Kohane
[email protected]
Alice A. Trueman
APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
Diane F. Bosse
Topical Index
Kohane’s Coverage Corner
Peiper on Property and Potpourri
Dishing Out Serious Injury Threshold
Wilewicz’s Wide World of Coverage
Barnas on Bad Faith
Lee’s Connecticut Chronicles
Kyle’s Construction Column
Ryan’s Capital Roundup
Rauh’s Ramblings
Storm’s SIU Examen
Fleming’s Finest
North of the Border
KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]
08/24/22 Lancer Indemnity Company v. Peerless Insurance Company
Appellate Division, Second Department
We Recommend a Close Reading of this Opinion.
Carrier is Estopped from Paying and Chasing Another Carrier when Both Carriers Contributed to Settlement in Mediation and Right to Chase was Not Preserved.
Lancer sued Peerless, seeing to recover cost incurred by Lancer in defending and indemnifying its insured, TPJ as a result of the $500,000 settlement of a lawsuit commenced by the Sicilianos. The Sicilianos sued TPJ and Ace Hardware (“Ace”) and Ace was insured by Peerless.
Lancer provided counsel for TPJ and Peerless provided counsel for Ace. The underlying action was settled following an agreed-upon mediation during which the Sicilianos and the attorneys provided by Lancer and Peerless agreed to the $500,000 settlement amount, and further agreed that Ace and TPJ were each responsible for paying one-half of that total amount. In addition to the attorneys representing TPJ and Ace, individuals representing Lancer and Peerless were also present at the mediation and participated in the settlement of the negligence action.
Lancer moved in the instant action for summary judgment on the complaint, arguing that Peerless was required to reimburse it for the amounts it incurred in defending and indemnifying TPJ in the underlying negligence action. Peerless cross-moved for summary judgment dismissing the complaint.
The doctrine of estoppel precludes an insurance company from denying or disclaiming coverage where the proper defending party relied to its detriment on that coverage and was prejudiced by the delay of the insurance company in denying or disclaiming coverage based on the loss of the right to control its own defense. The doctrine is not limited to coverage disputes between insurers and insureds, and may be applied in appropriate cases to coverage allocation disputes between insurers
Lancer did not reserve its right to commence an action to recover its defense and indemnity costs against Peerless in the settlement of the underlying negligence action and therefore is estopped from pursuing this action.
Editor’s Note: To some extent, this was a case of first impression in New York. The parties never discussed a “pay and chase” approach, which is what, basically, Lancer was trying to secure. There was no discussion, at the mediation, about future risk transfer litigation.
The post-mediation agreement was silent on it.
The lesson is to make certain that the expectation of the chase is retained in the settlement agreement. Silence in this case, a failure to specifically preserve the right to pursue, ended up being the fatal missing link.
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
08/31/22 Jing Yu v. Allstate Ins. Co.
Appellate Division, Second Department
Claims of Estoppel Rejected Where Insured Can Not Demonstrate Detrimental Reliance
Plaintiff appeals from a trial court decision which held that the policy issued by Allstate did not apply to provide coverage for a fire loss at a premises owned by plaintiff. The Allstate policy employed standard language which only provided coverage for the dwelling where it was used as a residence premises. Here, it was established that plaintiff did not live at the premises at the time of the fire.
Plaintiff sought to overcome this issue by arguing that Allstate should be equitably estopped from denying coverage. At the conclusion of a bench trial, plaintiff’s argument was rejected where she was unable to demonstrate that she detrimentally relied on any statement or action from Allstate. Absent any such action, the language of the policy held and coverage was properly denied.
The Court also addressed the dismissal of plaintiff’s claims against her agent. With regard to those arguments, the Court noted that plaintiff was unable to establish that she advised the agent to procure a policy with non-owner occupied coverage or that the agent had an obligation, via a special relationship, to inquire into the type of coverage requested by plaintiff.
08/31/22 Gentile v. Ogden
Appellate Division, Second Department
Three Years of Social Media Activity Discoverable in Personal Injury Lawsuit.
This matter has its origins in an automobile collision, and a resulting dispute over whether the claimant sustained serious injury. To avoid application of the Serious Injury Threshold plaintiff pleaded, among other things, that her injuries prevented her from “performing usual and customary activities for not less than 90 of the first 180 days” following the accident.
As part of his defense, defendant’s counsel sought production of social media activity from the date of the motion and going back three years into the past. In affirming the trial court, the Appellate Division noted that the question to be addressed was whether the information sought was “appropriately tailored and reasonably calculated to yield relevant information.” Because defendant’s attorney was able to establish how the social media account may yield relevant evidence relating to the claimed injuries and loss of enjoyment of life, the request was appropriate, and the motion granted.
DISHING OUT SERIOUS INJURY THRESHOLD
Michael J. Dischley
[email protected]
08/17/22 Yikarah Zennia v. Curtis Ramsey, et al.
Appellate Division, Second Department
Plaintiff’s Expert Findings Insufficient to Raise Triable Issue of Fact.
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Lawrence H. Ecker, J.), dated November 9, 2020. The order granted the motion of the defendant Curtis Ramsey for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident.
The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in a motor vehicle accident that occurred on September 23, 2017. The defendant Curtis Ramsey (hereinafter the defendant) moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated November 9, 2020, the Supreme Court granted the defendant's motion, and the plaintiff appeals.
The Appellate Court found that defendant failed to meet his prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. Specifically, the Appellate Court found that the defendant failed to submit competent medical evidence establishing, prima facie, that the plaintiff did not sustain a serious injury to the cervical and lumbar regions of her spine and to her left shoulder under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). Further, the defendant failed to establish, prima facie, that the alleged injuries to the cervical and lumbar regions of the plaintiff's spine and to her left shoulder were not caused by the accident.
Since the defendant failed to meet his prima facie burden, the Appellate Court found that it was unnecessary to determine whether the submissions by the plaintiff in opposition were sufficient to raise a triable issue of fact.
Accordingly, the Appellate Court found that the Supreme Court should have denied the defendant's motion for summary judgment dismissing the complaint.
WILEWICZ’S WIDE WORLD of COVERAGE
Agnes A. Wilewicz
[email protected]
08/12/22 ExxonMobil Oil Corp. v. TIG Insurance Company
United States Court of Appeals, Second Circuit
Second Circuit Holds that Parties Were Compelled to Arbitration in Coverage Dispute, Where They had Entered Into Binding Arbitration Agreement
This case involved two distinct issues. First, whether vacatur was required where judgment was entered by a first district judge who belatedly realized that he had a conflict of interest, and a non-conflicted judge then reviewed the merits of that decision de novo. Second, if vacatur was unwarranted, whether an arbitration agreement between the parties was binding.
As to the first issue, TIG Insurance Company (TIG) was ordered by a Southern District Judge to arbitrate a coverage dispute it had with its insured ExxonMobil (Exxon). After entering judgment, it was brought to the Judge’s attention that he owned stock in Exxon when he presided over the case. Nothing in the record suggested that he knew about that or was even aware of the conflict at the time that he rendered his decisions, and the parties did not suggest otherwise. The case was reassigned to another judge, who denied the motion to vacate the earlier decision. Since that second judge reviewed the case de novo, meaning anew, there was no reason to disturb that decision in this appeal.
As to the second issue, however, there was more to discuss. TIG had issued an excess insurance policy to Exxon for liability for damages from personal injury or property damage resulting from the use of Exxon’s products. The coverage was limited to $25 million. The Policy stated that it should be “construed in an evenhanded fashion as between the Insured and the Company; without limitation, where the language of this Policy is deemed to be ambiguous or otherwise unclear, the issue shall be resolved in the manner most consistent with the relevant provisions, stipulations, exclusions and conditions (without regard to authorship of the language, without any presumption or arbitrary interpretation or construction in favor of either the Insured or the Company and without reference to parol evidence).” The Policy also contained customized language regarding arbitration. The parties deleted a provision in the original Policy form that would have clearly constituted a binding arbitration agreement, which stated that “[a]ny dispute arising under this Policy shall be finally and fully determined in London, England under the provisions of the English Arbitration Act of 1950.” Instead of this stock provision, the parties added Endorsement No. 11— “Alternative Dispute Resolution Endorsement” (the “ADR Endorsement”). Because the ADR Endorsement was the crux of the dispute on appeal, the Court set it out in full below:
ALTERNATIVE DISPUTE RESOLUTION ENDORSEMENT
If the Company and the Insured disagree, after making a good faith effort to reach an agreement on an issue concerning this policy, either party may request that the following procedure be used to settle such disagreement:
1. The Company or the Insured may request of the other in writing that the dispute be settled by an alternative dispute resolution (“ADR”) process, selected according to the procedures described herein.
2. If the Company and the Insured agree to so proceed, they will jointly select an ADR process for settlement of the dispute.
3. ADR processes which may be used may include but are not limited to mediation, neutral factfinding and binding arbitration (as described in paragraph (4)). By agreement of the parties, the services of the American Arbitration Association, Judicial Arbitration & Mediation Services Inc., Endispute Inc., or the Center for Public Resources Inc. may be used to design or to implement any ADR process.
4. If the parties cannot agree on an ADR process within 90 days of the written request described in paragraph (1), the parties shall use binding arbitration. The arbitration shall be conducted by a mutually acceptable arbitrator to be chosen by the parties. Neither party may unreasonably withhold consent to the selection of an arbitrator; however, if the parties cannot select an arbitrator within 45 days after binding arbitration is selected 8 under paragraph (2) or is [sic] the ADR process because of this paragraph, the selection of the arbitrator shall be made by one of the consultants listed in paragraph (3). The arbitration proceeding shall take place in or in the vicinity of New York and will be governed by such rules as the parties may agree. The parties expressly waive any prehearing discovery about the dispute, including examination of documents and witnesses. It is expressly agreed that the result of such binding arbitration shall not be subject to appeal by either party.
5. All expenses of the ADR process will be shared equally by both parties.
6. It is expressly agreed that any decision, award, or agreed settlement made as a result of an ADR process shall be limited to the limits of liability of this Policy.
7. Any statutes of limitations which may be applicable to the dispute shall be tolled, from the date that the Company and the Insured agree to follow the selection procedures described herein with respect to such dispute, until and including the date that such ADR process is concluded.
In the 1990s, Exxon faced a series of lawsuits related to its use of methyl tertiary-butyl ether (MTBE) as a gasoline additive. As a result of these suits, by 2019, Exxon had paid $46 million in settlements and faced judgments totaling over an additional $269 million. It sought indemnification from TIG under the Policy, but TIG disputed that the Policy covered the MTBE suits. The parties engaged in settlement discussions, which ended on November 30, 2016, when TIG filed suit in the New York Supreme Court seeking a declaration that the Policy did not cover the MTBE-related losses. Nine days later, Exxon sent a letter “formally invok[ing] its contractual right under the Policy and Federal law to settle the parties’ disagreement over coverage under the Policy for Exxon[]’s MTBE insurance claim by binding arbitration.”
In analyzing the arbitration provision, the courts focused on the first clause in paragraph 2 of the ADR Endorsement: “If the [C]ompany and the [I]nsured agree to so proceed, they will jointly select an ADR process for settlement of the dispute.” It concluded that the conditional introductory phrase (“If the Company and the Insured agree . . .”) referred only to the second clause in that sentence (“they will jointly select . . . .”). Thus, the ADR Endorsement would allow the parties to use any ADR procedure on which they jointly agreed. If one party requested ADR and the parties could not jointly agree on the ADR process, however, the ADR Endorsement “defaults to binding arbitrations.” The district court reasoned that New York courts read contracts to “give force and effect to all of [their] provisions,” and reading the introductory clause as TIG urged would mean the ADR Endorsement would not “have any binding effect absent some further agreement.” The ADR Endorsement would be “an unenforceable and superfluous agreement to agree, under which neither party could require any form of ADR absent some further agreement.” The court also noted that its interpretation was “consistent with the federal policy in favor of construing arbitration clauses broadly.”
BARNAS on BAD FAITH
Brian D. Barnas
[email protected]
08/25/22 Huitron v. Kaye
Supreme Court of Utah
In the Context of an Untimely Claim against a Decedent's Estate, Potential Proceeds from a Bad Faith Judgment do not Fall within the Limits of the Insurance Protection
Huitron was driving on February 14, 2017, when he drifted over the center line into oncoming traffic and caused a serious accident. Huitron and the passengers in his car all died, along with the driver of the car that Huitron hit. Kaye, a passenger in the other car, was the only survivor, but he suffered serious injuries.
Huitron’s family initially did not open a probate estate. Eventually, a special administrator was appointed, and almost three years after Huitron’s death, Kaye brought a personal injury claim against the Estate. Kaye disclosed medical expenses exceeding $650,000.
Huitron was insured under a policy issued by Casualty Underwriters. The policy had a bodily injury liability limit of $25,000 per person. Based on these policy limits, the Estate made a settlement offer of $25,000. The Estate then moved for partial summary judgment, arguing that under the Probate Code, Kaye could recover no more than the $25,000 of liability insurance proceeds it had offered.
The Estate relied on the Nonclaim Statute, which provides that all claims against a decedent's estate which arose before the death of the decedent are barred against the estate if they are not presented within one year after the decedent's death. However, the statute does not affect or prevent to the limits of the insurance protection only, any proceeding to establish liability of the decedent or the personal representative for which the decedent or the personal representative is protected by liability insurance. The Estate argued that because Kaye did not officially present his personal injury claim to the Estate within one year of Mr. Huitron's death, the Nonclaim Statute prevented him from recovering any amount beyond the automobile liability insurance policy limit.
Kaye rejected the offer, arguing that if he could prove his damages exceeded $25,000, the Estate might have a bad faith claim that it could assign to Kaye. Thus, Kaye argued that the “limits of insurance protection” were not necessarily limited to $25,000.
The question of whether a bad faith claim fell within the limits of insurance protection had never been considered by the Utah Supreme Court. As a matter of first impression, it held that in the context of an untimely claim against a decedent's estate, potential proceeds from a bad faith judgment do not fall within the limits of the insurance protection. The court reasoned that a bad faith claim belongs to the insured. While the insurer could be liable to the Estate if its bad faith resulted in an excess judgment, the Nonclaim Statute barred Kaye from seeking damages against the assets of an estate. Since an excess judgment against the Estate is a legal impossibility, a bad faith claim against the insurer is also an impossibility.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
8/30/2022 Metropolitan Property & Casualty Ins. Co. v. Transform SR LLC
Superior Court of Connecticut (New London)
Spoliation is Not a Ground for Summary Judgment
In a subrogation action, the trial court ruled that summary judgment cannot be granted based on spoliation of evidence. Metropolitan’s homeowner-insured suffered $98,000 in property damage because of a water leak from her dishwasher. Metropolitan sued the repair company which made several attempts over a period of months to fix the dishwasher, alleging that it was negligent in failing to identify and remediate the water leak. The repair company sought summary judgment, arguing that the dishwasher was disposed of by the successor repair company hired by Metropolitan.
Connecticut, the court noted, follows the majority rule, providing that spoliation is an inference for the trier of fact not a legal basis for judgment. “[W]e adopt the rule of the majority of the jurisdictions that have addressed the issue in a civil context, which is that the trier of fact may draw an inference from the intentional spoliation of evidence that the destroyed evidence would have been unfavorable to the party that destroyed it.” [Internal footnotes omitted.] Beers v. Bayliner Marine Corp., 236 Conn. 769, 774–75, 675 A.2d 829 (1996).”
*Editor Note: It is interesting to note that the court chastised both counsel. The court commented that, “It is troubling that the defendant cites to Beers, which is dispositively contrary to its argument. It is also troubling that the plaintiff neither cites to Beers nor to any legal authority in defending the motion on the ground of spoliation.” This continues with a minor trend of judges calling out what they consider to be poor lawyering. The Bar should take notice.
8/23/2022 United Property and Cas. Ins. Co. v. Hillgen-Santa
United States District Court, D. Connecticut
Claims of Wrongful Entry Trigger Duty to Defend
Denying United Property’s motion for a default judgment, the District Court ruled that the underlying claims of wrongful entry are entitled to coverage under a homeowners policy’s personal injury coverage.
In yet another case of neighbors behaving badly, United Specialty is stuck defending claims that its insureds interfered with the underlying plaintiffs construction of a boundary line fence; played excessively loud music, often with explicit, derogatory, and/or racially-charged language, repeatedly parked vehicles blocking the neighbor’s driveway; destroyed the neighbor’s personal property; used a snow blower on one neighbor’s gravel driveway, deliberately causing gravel to blow onto the plaintiff-neighbor’s property; threw raw eggs; destroyed hedges; ran a generator beyond legally permissible hours; and called the police when the neighbors asked the insureds to stop.
The underlying plaintiffs alleged that they suffered emotional distress manifested by physical and other symptoms, including: the loss of quiet enjoyment of their home; loss of sleep; hypertension; fear; anguish; insomnia; nervousness; loss of appetite; headaches; and concern regarding the “[p]laintiffs’ safety and well-being and that of their daughter and their pets.” Their action seeks injunctive relief, actual and punitive damages, and treble damages for: (1) intentional infliction of emotional distress; (2) trespass; (3) nuisance; (4) negligence; (5) defamation; (6) intentional infliction of emotional distress; (7) trespass; (8) nuisance; (9) negligence; (10) defamation; and (11) unlawful cutting of trees, timber, or shrubbery.
United Property disclaimed coverage but offered a defense under a reservation of rights. Untied Property brought this declaratory judgment action and none of the underlying parties appeared. After the carrier moved the clerk for a default entry, the underlying plaintiffs appeared. In a gambit to ease its path to a finding of no coverage, United Property dismissed the underlying plaintiffs with prejudice and then brought this motion for a default judgment against its insureds. The court agreed with United Property that there was no coverage obligation under the personal liability coverage. As the counts allege non-accidental conduct intended to harm, the court found that there was no occurrence alleged. “Based on these allegations, the [insureds’] alleged actions were intentional, and the alleged harm resulting from these acts was “foreseeable, expected, and intended.””
However, the court disagreed with the carrier’s argument under the personal injury coverage. By endorsement, the policy afforded coverage for certain enumerated offenses, including invasion of privacy, wrongful eviction, or wrongful entry. While United Property argued that the trespass and nuisance claims are not an enumerated offense, the court found otherwise. The court wrote that, if a complaint alleges a wrongful entry into premises that a person occupies, it is a personal injury under a policy regardless of whether it is labeled trespass, negligence, nuisance or a violation of civil rights (quoting Spaziani v. Harleysville Worcester Ins. Co., No. CV044000309S, 2005 WL 1273897, at *2 (Conn. Super. Ct. May 4, 2005)). Moreover, the court found that the criminal acts exclusion was not satisfied on this record. “Taking United Property's allegations as true and drawing all reasonable inferences in its favor, see Finkel, 577 F.3d at 84, United Property also has not shown that the Carmonas’ alleged intentional “invas[ion], intrus[ion], and/or ent[rance] upon the Hillgen-Santa Property” constitutes at least a criminal infraction under applicable law….” The carrier, according to the court, failed to cite a criminal statute that was allegedly violated or the value of the damage to satisfy a criminal threshold.
*Editor Note: A motion for a declaratory judgment, especially in federal court, needs to be treated and briefed as if it were a contested motion for summary judgment. The courts, in a declaratory judgment action, will not rubber stamp a default judgment.
KYLE'S CONSTRUCTION COLUMN
Kyle A. Ruffner
[email protected]
8/18/22 Trehel Corp. v. Nat’l Fire & Marine Ins. Co.
United States District Court for the District of South Carolina
Additional Insured Status Granted to a Subcontractor, Sued In An Underlying Construction Defect Case, Although Coverage Was Limited Under The Policy Endorsements
This case involved an insurance coverage dispute arising out of an underlying construction defect action. Trehel, along with multiple subcontractor defendants, were sued for alleged defects in the construction of a condominium development in South Carolina. Trehel than filed this action in state court against multiple insurer defendants seeking coverage under insurance policies issued to subcontractors by their insurance companies. Trehel alleged that the subcontractor defendants entered a subcontract with him to perform certain work on the Condominium project. He further alleged that the subcontracts required the defendants to maintain commercial liability coverage policies that required the insurers to defend, indemnify, and hold harmless Trehel for claims arising out of the work on the project. Selective Insurance Company filed motion to dismiss Trehel’s complaint.
Selective issued two insurance policies to P & L, one of Trehel’s subcontractors on the Condominium project, as the sole named insured. The policies provided coverage for property damage caused by an “occurrence” that takes place within the “coverage territory.” Contractual liability for damages was excluded from coverage under the policies, unless “assumed in a contract or agreement that is an “insured contract”, defined by the policy as “that part of any other contract of agreement pertaining to your business . . . under which you assume the tort liability of another party . . .” Further, an automatic insured endorsement amended the polices to include as an additional insured any person or organization for whom you are performing operations when you and such person have agreed in writing in a contract or agreement that such person or organization be added as an additional insured. Additional insured status under this endorsement terminated when the operations for the additional insured were completed. A Blanket Completed Operations Endorsement further provided additional insured status with respect to liability arising out of that person or organization’s work performed under the contract or agreement.
Selective argued that Trehel was not an additional insured under the policies and that the automatic additional insured endorsement only provided coverage for ongoing operations. Selective further contended that Trehel could not receive coverage as an additional insured under the completed operations endorsement because he was not named in the endorsement and could not receive coverage under the Blanket endorsement because it required the additional insured to have entered a written agreement or contract with the named insured.
The court granted Selective’s motion to dismiss in part and denied in part. First, the court found Trehel sufficiently alleged that it previously qualified as an additional insured under the automatic additional insured endorsement, as the parties entered a subcontract in which P & L agreed to add Trehel as an additional insured. However, Trehel’s additional insured status ended upon the completion of the project, so Trehel could not claim coverage this endorsement. Further, Trehel could not claim coverage under the endorsement that provided coverage for completed operations, as the endorsement only applied to those persons or organizations specifically listed on the form. The court denied Selective’s motion, however, with respect to the Blanket Completed Operations endorsement, as Trehel sufficiently alleged the existence of a subcontract with P & L, and P & L’s work on the project had been completed. Further, the court found that Trehel sufficiently alleged that the subcontract between Trehel and P & L met the requirements for coverage as an insured contract under the policies. Therefore, the court also denied Selective’s motion with respect to this theory.
RYAN’S CAPITAL ROUNDUP
Ryan P. Maxwell
[email protected]
From the Filings Cabinet
8/30/22 DFS Disapproves Various Professional E&O Liability Form
Filings Department of Financial Services
DFS Disapproval Advises “Loss” Cannot Include Post-Judgment Interest Due To Timing Of Judgment Satisfaction Under Insurance Law 3420, and Other Public Policy Grounds
Another difficult couple weeks to find material for the Albany beat, but I have found a recent E&O form filing rejection from New York’s Department of Financial Services (“DFS”), which raised some interesting points
On August 30, DFS rejected a recent form filing for a few reasons. First, DFS advised that the filing carrier was unable to include “post-judgment interest” in its definition of “loss” since “loss” is expressly “included in the limit of liability.” In arriving at this conclusion DFS indicated that:
“Section 3420(a) (2) of the Insurance Law provides that an insurer must satisfy judgments within 30 days. Therefore, interests that were to accrue pursuant to an action maintained to enforce judgment would appear to represent a supplemental payment, apart from the applicable policy limit. This interpretation is consistent with Section 60-1.1(b) of Regulation 35-A, which specifically requires automobile liability insurance policies to provide for the payment of interest on judgments to be payable in addition to the applicable policy limit. Therefore, please amend so that post-judgment interest will be in addition to the limit of liability.”
I am unsure exactly how DFS found that 11 NYCRR 60-1.1(b), which regulates automobile insurance policies, restricts the permissible scope of language contained in a proposed E&O form. However, the first half of DFS’ reasoning appears sound in logic. Specifically, since an insurer is required to satisfy a judgment within 30-days, after which a judgment creditor may maintain a direct action against the carrier to enforce a judgment, it would appear that failing to satisfy such a judgment would subject the carrier to potential interest due to the delay. Since permitting post-judgment interest to fall under the limit of liability would likely result in more unsatisfied judgments, public policy likely favors the accrual of post-judgment interest in addition to the limits.
On the same form, DFS also found certain language pertaining to punitive and exemplary damages unnecessarily confusing. Specifically, the carrier had indicated on the proposed form that coverage existed for “punitive or exemplary damages . . . unless such damages are uninsurable pursuant to applicable law,” and requested that the carrier revise to make “clear that these coverages are not permitted in NY,” since an insured “may not know what matters are uninsurable by law and are permitted by New York law or not.”
Additionally, although the carrier had indicated that “loss” did not include “taxes, fines or penalties,” there was an express exception “where permissible by law otherwise covered under this Policy, those civil penalties assessed against any Insured Person pursuant to Section 2(g)(2)(B) of the Foreign Corrupt Practices Act (15 U.S.C. §§ 78dd-2(g)(2)(B)).” DFS advised in no uncertain terms that “fees, taxes, or penalties are not permissible coverage in New York as it is against public policy.” However, with regard to a separate proposed form, DFS does clarify that this prohibition of coverage for fines and penalties has an exception for “those imposed under Section 502(l) of ERISA.” This exception certainly does not apply to P&C carriers.
Another interesting note from DFS was its disapproval of language pertaining to Legal Services Insurance, in which the carrier indicated that “Irrespective of any clause in this Policy to the contrary, for the purposes of this endorsement only, the Insurer has no duty to defend the Company. THE INSURER WILL REIMBURSE THE COMPANY.” DFS advised that “Legal Services coverage must be written on a pay-on-behalf-of basis pursuant to Section 262.10(d) of Department Regulation 162.”
In a similar vein, DFS disapproved the language in another form governing defense costs, advising that “the advancement of the defense cost is not permitted in New York. The company must determine at the outset of a claim whether the coverage is available or not.”
A separate proposed form sought to provide third party coverage for sexual harassment only, which DFS found potentially overbroad under New York public policy. Specifically, DFS advised that “it is the Department's position that coverage provided for sexual harassment may be provided only for the vicarious liability of the insured and should specifically exclude coverage for those who participate in, direct and knowingly allow sexual harassment.”
Maxwell’s Minute: In contrast to my last column in the previous issue of Coverage Pointers, which left much to the imagination, this disapproval provided detailed descriptions of the issues DFS had with the proposed forms and why. DFS frequently requests from carriers points of clarification and examples of where certain language would be applicable if approved—which I tend not to discuss. Instead, I try to keep my assessment to those points that DFS expressly disapproves of and requests revision on. I wanted to peel back the curtain a bit on my process when reading and analyzing these filings.
RAUH’S RAMBLINGS
Patricia A. Rauh
[email protected]
08/25/22 Bakos v. Unum Life Ins. Co. of America
There is No Equitable Tolling if a Plaintiff has Notice Sufficient to Prompt them to Investigate and that, had they done so Diligently, they would have Discovered the Basis for their Claims.
Plaintiff, Angela Bakos (“Bakos”) worked for Chistopherson Properties in Minnesota, which provided her with an ERISA-governed insurance policy through defendant, UNUM Life Insurance Company of America (“UNUM”) for long-term disability benefits.
Bakos started receiving long-term disability benefits through UNUM effective December 1, 2014, but on July 15, 2015, UNUM sent Bakos a letter informing her that she no longer met the plan’s definition of disability after April 14, 2015. Bakos appealed that determination and after review, UNUM notified Bakos that her appeal was denied on June 27, 2016. In that denial, UNUM explained that Bakos had a right to bring civil suit under section 502(a) of ERISA. Although the letter did not specify any appeal deadlines, it did state that Bakos could request any documents, records and information relevant to her claim for benefits. Within the documents she could request, there was a provision that gave Bakos three years following UNUM’s denial of her benefits to file a civil suit in federal court.
During this time period, Bakos also filed a claim for social security disability benefits with an alleged onset date of August 5, 2014 (the last date she was employed at Christopherson Properties). Bakos received a partially favorable decision on December 8, 2015, and after appealing that decision through the administrative process and to the district court, she ultimately received a fully favorable decision in March 2020, starting on her alleged onset date.
In August 2020, Bakos then sought to re-open the June 27, 2016 denial of her disability benefits with UNUM. UNUM notified Bakos that it would not re-open the decision because the administrative review was complete. On April 1, 2021, Bakos filed suit in the Southern District of Georgia for long-term disability benefits from April 15, 2015 under ERISA § 502. UNUM moved to dismiss the complaint under Rule 12(b)(6) because her action was time-barred by a provision in the insurance policy. Bakos opposed the motion because she alleged that she had an equitable tolling defense and that she also had no actual notice from UNUM about the applicable three-year period of limitation. The district court granted UNUM’s motion to dismiss finding that a failure to provide explicit notice of an ERISA plan limitation does not merit equitable tolling. The district court also found that Bakos’s argument about actual notice did not apply to her denial of benefits claim because it was not a breach of fiduciary duty claim – Bakos appealed that decision.
Bakos made two arguments on appeal: (1) assuming that there was a three-year period of limitation to file a civil suit, that running of any time limitation was equitably tolled; and (2) that she received no actual notice from UNUM about the time to file suit and that actual notice is required for the three-year period to run.
In regard to the equitable tolling argument, the Court stated that ERISA does not provide a statute of limitations for suits brought under § 502(a)(1)(B) to recover benefits. Thus, courts borrow the most closely analogous state limitations period, unless the parties have contractually agreed to a different one in the ERISA plan. If so, the Court will enforce the contractually agreed upon limitation period unless it is unreasonably short or if a controlling statute precents the limitations provision from taking effect. Because Bakos did not dispute that the three-year period is reasonable, the contractual limitations period is enforceable unless Bakos can establish that she is entitled to equitable tolling. The Court had previously held that there is no equitable tolling when the plaintiff had notice sufficient to prompt them to investigate and if they had done so diligently, they would have discovered the basis for their claims.
Here, UNUM sent Bakos a letter denying her claim and informing her of her right to file a civil suit, as well as her ability to request documents she may need to pursue her claim, which she never requested. Since Bakos could have requested a copy of the policy, which was central to her claim and included the limitations provision, she could have easily timely filed her action and therefore, equitable tolling does not apply here.
In regard to Bakos’s argument that she lacked notice from UNUM about the three-year period of limitation, she relied on a recent Supreme Court case, namely Intel v. Sulyma, 140 S. Ct. 768 (2020). The Court found that Bakos could not rely on Intel here. In Intel, the Supreme Court looked at the limitation periods under § 1113(2) of ERISA, which specifically provides a claim for breach of fiduciary duty and the time limitations to file that type of claim. The Supreme Court held in Intel that the limitations period under § 1113(2) “begins only when a plaintiff is actually aware of relevant facts, not when he should be.” 140 S. Ct. at 778. The Supreme Court also pointed out that § 1113(2) is “[u]nlike other ERISA limitations periods.” Id.
As the district court correctly noted, this distinction matters. ERISA does not provide a statute of limitations for claims under § 502; instead, the statute of limitations can be set by a contract. Here, the insurance policy provided the statute of limitations to which Bakos agreed to when she signed up for the plan and therefore, her argument that did not receive actual notice lacks merit.
Thus, the Court affirmed the district court’s ordering granting UNUM’s motion to dismiss on the grounds that Bakos’s claim was time barred and she was not entitled to equitable tolling.
STORM’S SIU EXAMEN
Scott D. Storm
[email protected]
Vacationing (Go Dodgers!). Happy Labor Day! Double cases in two weeks.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
08/10/22 Norman International, Inc. v. Admiral Insurance Company
New Jersey Supreme Court
No Duty to Defend or Indemnify Based on Exclusionary Clause Regarding Designated New York Counties
The appeal considered an exclusionary clause in a commercial general liability insurance policy issued by Admiral Insurance Company (Admiral) to Richfield Window Coverings, LLC (Richfield). The clause stated that the policy did not cover any liability “arising out of, related to, caused by, contributed to by, or in any way connected with . . . [a]ny operations or activities performed by or on behalf of any insured” in certain counties in New York, including Nassau County.
Richfield sells window coverage products, including blinds, to national retailers like Home Depot and provides retailers with machines to cut the blinds to meet the specifications of the retailers’ customers. Its representatives answer questions the employees may have about the operation of the cutting machines and window covering products. Richfield’s representatives thereafter visit the retailers’ establishments to maintain and repair the machines and replace the cutting blades as needed. Richfield also provides a user manual for retailers’ employees to learn how to use the cutting machine and conducts onsite training for employees. The field sales representative in this case visited the Home Depot store at issue every two to three weeks.
Colleen Lorito, an employee of a Home Depot located in Nassau County, was injured while operating the blind cutting machine. She and her husband filed a civil action against Richfield, asserting claims for product liability, breach of warranty, and loss of spousal services. Admiral denied any obligation to defend or indemnify, asserting the claims were not covered under the policy based on the Designated New York Counties Exclusion. Richfield filed a declaratory judgment action seeking to compel Admiral to defend it in the Lorito case and, if necessary, indemnify it against any monetary damages awarded to the plaintiffs. The Law Division granted summary judgment in favor of Admiral. The Appellate Division reversed, finding that “Richfield’s limited activities and operations have no causal relationship to the causes of action or allegations.”
The New Jersey Supreme Court found the policy’s broad and unambiguous language made it clear that a causal relationship was not required in order for the exclusionary clause to apply; rather, any claim “in any way connected with” the insured’s operations or activities in a county identified in the exclusionary clause is not covered under the policy. Lorito was injured in Nassau County, one of the counties listed in the exclusionary clause. Richfield’s operations in an excluded county were alleged to be connected with the injuries for which recovery was sought. To focus on a causal relationship reads key language out of the policy because the phrases “in any way connected with” and “related to” do not require any element of causation. Lorito was injured while using the blind cutting machine, which was provided by Richfield. The fact that Richfield provided the machine to Home Depot was enough to trigger the exclusion because the phrase “in any way connected with” merely requires that the two are linked in some way, even if they are only tangentially connected. Richfield employees also went to the store on a regular basis to change the blades and fix the machine, and Richfield provided a manual and trained employees on how to use the machine. Given those facts, the injuries were also “related to” Richfield’s actions at the store. Since the activities by the insured constituted a sufficient basis to trigger the policy’s Designated New York Counties Exclusion, Admiral had no duty to defend.
NORTH of the BORDER
Heather A. Sanderson
[email protected]
08/24/22 Ari v. Insurance Corporation of British Columbia, 2022 BCSC 1475.
British Columbia Supreme Court (trial level)
In a judgment rendered August 24, 2022, in British Columbia, class members of a previously certified class action were allowed to recover general damages against an insurer whose employee gained unauthorized access to its data bases - despite the absence of any provable damage due to the unauthorized access. This judgment illustrates the breadth of the damages recoverable by reason of the statutory tort enshrined in the BC Privacy Act.
In 2011 and 2012 there were fifteen seemingly unconnected fire bombings of residences in the lower mainland of British Columbia. Fifteen separate families were terrorized. A wide-ranging, four-year investigation determined that the fifteen families had a family member who were employees or former students of the Justice Institute of British Columbia or were otherwise loosely connected with the New Westminster branch of that institution. The Justice Institute trains police, fire and ambulance personnel.
An undercover operation by municipal police forces and the RCMP resulted in the arrest and conviction of a 43-year-old man from Langley who had a serious delusion that there was a satellite up in the sky controlled from the Justice Institute building that was zapping his brain. He hatched a plan to stop the surveillance. He used information from the license plates of cars parked in the Justice Institute’s parking lot to locate the homes of the vehicle owners and hired others to commit the arsons. No one was physically hurt or killed because of the arsons (something that the Crown Prosecutor called ‘dumb luck’) but the emotional trauma was rampant.
How did this gentleman ‘run’ the license plates? He had the help of an in-house adjuster at the Insurance Corporation of British Columbia (“ICBC”).
ICBC runs a universal compulsory vehicle insurance plan. ICBC maintains databases that include personal information on everyone in British Columbia who holds a driver’s licence or is a registered owner of a vehicle. That information includes names, addresses, vehicle descriptions, licence plate numbers and claims histories. A person with access to those databases can, for example, use a licence plate number to find the name and address of the vehicle’s owner. Without a business reason, this adjuster accessed the files of 79 individuals. This adjuster was fired when the unauthorized access was discovered and 78 of the affected individuals were notified (one of the 79 had died). However, before this adjuster was fired, she sold the information to a fellow (at $25 per license plate) who in turn sold it to the delusional man from Langley who used it to target the 15 families.
A class action on behalf of the 78 living individuals whose files were improperly accessed was certified against ICBC. A summary trial of the common issues in the class action took place and the judgment was released on August 24, 2022. There are many interesting issues discussed in that judgment but of particular importance is the discussion of liability for breach of British Columbia’s Privacy Act. That act states that it is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another. A similar provision is in Quebec’s new privacy act and the federal government is considering a similar provision in legislation to amend PIPEDA. This is a clear departure from established tort liability: an actionable tort without proof of damage.
ICBC defended on the basis that contact information is not protected; that individuals do not have a privacy interest in that information. The Court soundly rejected that argument. Firstly, the information is compelled information. The ability to own and/or drive a motor vehicle is, for many, an economic, social, or practical necessity. To do so, they are required to provide information to ICBC. The Court went on to say “A reasonable person providing that information would expect ICBC to use it only for purposes related to its duty to operate the insurance plan or for purposes related to vehicle registration and other functions it has assumed under other statutes. They would not expect, nor did they consent to ICBC making that information available to third parties in the absence of a compelling lawful interest. For example, an ICBC customer could reasonably expect their contact information to be released to police seeking to identify the owner of a vehicle that was involved in an accident or a crime. They would not expect that information to be released to, say, a person hoping to sell them a newer vehicle and certainly not to someone wanting to know an address where a particular vehicle could be stolen.”
To be actionable under the Act, the violation must be wilful. The word “wilfully" does not include any intentional act but applies more narrowly to the intention of the perpetrator to do an act which the person doing the act knew or should have known would violate the privacy of another person. The adjuster was told when she began working with ICBC that employees may access corporate information only as required to perform their legitimate business duties. Therefore, accessing the information without a legitimate business purpose was the wilful act described in the BC Privacy Act.
For these reasons, the privacy breach was complete when the information was accessed.
ICBC was found vicariously liable for the unauthorized access as it gave the adjuster the opportunity to access the information. There was no evidence of what was done to supervise that access.
On that basis ICBC was held liable to pay all class members an award of non-pecuniary damages arising from the mere fact that their privacy was violated. That award was made on a class-wide basis. Individual class members who are claiming that they suffered additional non-pecuniary damages over and above that award were allowed to advance those claims in a future process to deal with individual issues. The fire-bombing of the residences was not an intervening criminal act breaking the chain of causation from the privacy breach. The amount of the damages are subject to further proceedings.
This is a very significant judgment as it is a ‘how-to-guide” on how the statutory privacy tort operates. This judgment also reveals the significant scope of damages that can be claimed in a statutory privacy tort. Liability policies will be compelled to respond to this liability risk which carries significant frequency and severity implications.
