Volume XXV, No. 16 (No. 663)
Friday, January 19, 2024
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 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 love situations. And we love our Buffalo Bills.
Greetings, again, from Scottsdale, land of cactus and sun. It was in the sixties today and another hike into the mountains. Just as long coming down. Travel bans in Buffalo, and I rather be here. Here are two photos, one of Sunrise Lookout in Scottsdale, the other taken at Crescent Dreams, my summer home in Fort Erie, Ontario (just across the border from Buffalo). You must guess which is which, but there are no prizes being awarded!
Welcoming New Lawyers
Please join me in welcoming our newest attorneys to the practice of law—Christopher J. Kolber, Tabitha R. Salonen and Isabelle H. LaBarbera. On Wednesday, CJ and Tabatha were admitted as attorneys during a ceremony in Rochester, and due to the weather, Isabelle will be admitted next week. Isabelle joins our coverage team and is already a Coverage Pointers columnist!
Barnas Takes the Lead …
Congrats to Brian Barnas for his election to Chair of the Insurance Coverage Committee and seat on the Executive Committee and of the Torts, Insurance, & Compensation Law Section of the New York State Bar Association. Atta-leader!
YOUR INPUT APPRECIATED
For the past few years, in partnership with my colleague, John Trimble from Lewis & Wagner in Indianapolis, we have offered on-line Zoom training programs providing a Primer for CGL coverage, Risk Transfer, Choice of Law and other topics. We have had thousands of participants in these programs and the feedback has been fantastic.
We’re now planning our 2024 training schedule. Are there topics for which your staff could use interactive Zoom training? Are you interested in the programs we’ve shared in the past because of new hires? Let us know.
Just respond here and let me know: [email protected]
Need a mediator?
Coverage mediation is a thing! Subject matter expertise may be useful.
Hey coverage lawyers. Hey 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 out 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 knows 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.
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 V. Christopher Potenza 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 Elizabeth Midgley at [email protected] to subscribe.
Educational Discipline – 100 Years Ago:
The Buffalo Times
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Buffalo, New York
19 Jan 1924 -
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Teach Beat Pupils With Rubber Tubing
FULTON, N. Y., Jan. 19.—Miss Dorothy Vant of this city, teacher of the sixth grade at Minetto, is under arrest, at Liberty under bail, pending a hearing tomorrow night on a charge of assault preferred against her by Mrs. and Mrs. Leon Dewey of Minetto, parents of Mary Dewey, 16.
It is claimed the teacher, as punishment for the 16-year-old pupil who admits she was throwing paper, was beaten with rubber tubing until nine ridges were raised on her back and black and blue spots appeared.
Peiper on Property (and Potpourri):
In northern realms where the lake winds play,
A dance of snow in a cold ballet.
Whispers from water, a mystical source,
Lake effect snow, nature's own discourse.
Beneath the pines, where skiers roam,
Carving through powder, a journey to home.
On slopes adorned in the lake's embrace,
A skiing symphony, a dance of grace.
Steve
Steven E. Peiper
Foretelling Sex – 100 Years Ago:
The Grand Island Independent
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Grand Island, Nebraska
19 Jan 1924 -
Can Foretell Sex Long Before BirthParis, Jan. 19.— In 84 out of 86 cases Prof. Archard, famous obstetrician of the Lariboisiere hospital, foretold correctly the sex of babies four months before their birth.
Announcing the results of his experiments to the academy of medicine today Prof. Archard gave great credit to Dr. Isaac Fried of Bratislava, in Czecho-Slovakia, for the discovery which is described as epoch-making in opening up new realms in obstetrics.
The method followed in the experiments was to take two samples of the mother’s blood, one immediately after conception was established and the other about ninety days after.
On comparison of the “spirocheterical content” of the blood, the sex of the fetus was definitely established, the males showing stronger vital element than the females.
Prof. Archard declared that scientists probably soon will be able to determine the sex of future children before conception from a study of the blood of parents taken at regular intervals, and in this manner may be able to establish sex control.
Editor’s Note: Tried to determine whether this method has been confirmed but could find nothing!
Barnas on Bad Faith:
Hello again:
Winter has finally come for us in Western New York. After a mild November and December, we are paying the price with feet of snow in mid-January. It has not been too bad at my house north of the snow belt; we probably have had 18 inches since Saturday. Luckily my snowblower is finely tuned and running at peak efficiency.
Of course, the big story around town besides the snow is the Bills playoff run. Last issue we were hoping for a win in Miami and a first round playoff win while lamenting the possibility of the Bills not even making the playoffs at all. They delivered, and now Patty Mahomes is coming to our building this Sunday. I have seen Mahomes play before in Kansas City, but this will be his first game in Orchard Park in front of Bills fans. It feels like it could be an all timer. Let’s hope it’s the Bills sending the Chiefs home for the season for a change.
I have two appellate cases in my column this week, one from Florida and one from Pennsylvania. Some very nice language in the Pennsylvania decision and some not-so-great language in the Florida one. Give them a read if you are so inclined.
Brian
Brian D. Barnas
Dealing with Immigrant Education – 100 Years Ago:
The Brooklyn Daily Eagle
Brooklyn, New York
19 Jan 1924
EVENING COURSES TO COST $6,000
Legislature Will Be Asked for Emergency Sum to Train Teacher of Immigrants.
An emergency appropriation of $6,000 will be asked for in a bill to be introduced in the State Legislature next week to cover the expense of courses made necessary for teachers of English who are required to take 30 hours work to get an advance in salary from $4.50 to $5.50 as instructors in evening elementary schools. Recent action of the Board of Education making this work necessary ties up the granting of the increase until such courses shall be taken in immigrant education.
Steps to provide for the courses have been taken by Morrie E. Siegel in consultation with W. C. Smith, supervisor of immigrant education for the City of New York and in co-operation with local universities and colleges, the Council of Immigrant Education and the Association of Evening Elementary School Principals and Teachers.
Approximately 30 courses will be given, both elementary and advanced, in history and political institutions of the United States, in the racial backgrounds of the immigrant and in the sociological implications of assimilation. There will also be courses in the administration and supervision of evening schools given by Mr. Siegel and the State Department supervisors for principals and assistants.
Lee’s Connecticut Chronicles:
Dear Nutmeg Newsies:
As some of you noticed, I was AWOL last edition, but I have a good excuse. We were in Mexico celebrating our delayed honeymoon. We got married in October,
but work and other commitments pushed back our trip. We had a great time, with nothing to do but hang out on the beach, hang out in the pool, hang out at the swim-up bar, sail a catamaran, bounce on the waves on wave runners, and other fun activities. Oh, and it snowed while we were away, which somehow makes everything better.
The courts didn’t take a holiday, pumping out two good decisions on Connecticut bad faith pleading standards. In each case we report on this week, the courts struck both statutory and common law bad faith claims, citing to the insureds’ conclusory allegations.
Welcome back and keep keeping safe, wherever you find yourself.
Lee
Lee S. Siegel
Fractured Wrist? Verdict of $100 – 100 Years Ago:
Democrat and Chronicle
Rochester, New York
19 Jan 1924
VERDICT FOR NEWARK WOMAN
Newark, Jan. 18.—A jury in Justice Marble’s court yesterday awarded Mrs. Carrie Pratt $105.04 for damages done to her automobile on December 2nd when it was in a collision with an automobile driven by Thomas Witherday, of Marion. Mrs. Francis Mesmer, of Newark, who was riding with Mrs. Pratt, sustained a fracture of the right wrist in the collision and Mrs. Witherday of the left wrist.
Kyle's Noteworthy No-Fault:
Dear Readers,
This week’s case involves a dispute between a medical provider and an insurer with respect to no-fault benefits, as the insurer argued the policy had been exhausted at the time the claims were made.
Most importantly, Go Bills!
Until next time,
Kyle
Kyle A. Ruffner
[email protected]
Verdicts – 100 Years Ago:
Daily News
New York, New York
19 Jan 1924
VICTIM OF L CRASH SETTLES FOR $32,000
Settlement of a $50,000 damage suit brought by Mrs. Lauretta Morrison against the Brooklyn Manhattan Transit Company for injuries she received last June when an Elevated train fell to the street at Flatbush and Atlantic Avenues, killing six and injuring seventy, was affected yesterday. The amount settled for was $32,000.
Editor’s Note: That’s $574,000 in 2024 dollars.
Ryan’s Federal Reporter:
Ryan
Ryan P. Maxwell
Doctor Convicted – 100 Years Ago:
Asbury Park Press
Asbury Park, New Jersey
19 Jan 1924
PATERSON PHYSICIAN GETS JAIL SENTENCE
Dr. Aaron Simon Convicted of Defrauding Insurance Firms of $37,500
PATERSON, Jan. 18—Following his recent conviction on a charge of criminally conspiring to defraud five insurance companies out of approximately $37,500, Dr. Aaron L. Simon, prominent Paterson doctor and lawyer, was yesterday sentence ed to serve from two to three years in the New Jersey state prison and ordered to pay a fine of $1,000 by Judge Delaney in the court of quarter sessions.
“You have disgraced both the medical and legal profession,” Judge Delaney told the defendant when he appeared before the bar of the court, and I would feel derelict tin duty if I did not impose the maximum penalty in your case.”
Dr. Simon is alleged to have falsified a certificate of health to an insurance company. It is said he recommended his brother-in-law, Jacob Bloomfield, for insurance and certified him as in good physical condition Dec. 11, 1922. Bloomfield died Jan. 19, last year from what physicians testified was a complication of chronic ailments.
Editor’s Note: On appeal, the verdict was vacated and sent back for a new trial and the doc was acquitted on the retrial a couple of years later – see story below.
Storm’s SIU:
Hi Team:
I am on vacation, so I’ll be brief.
I have digested one case this week discussing materiality with respect to rescission of a property policy due to a material misrepresentation in an application for insurance.
While an insurer typically need only substantiate that, had the insured told the truth on the application, that the premium would have been higher, in this questionable decision this court wanted the insurer to set forth a superfluous additional step stating specifically how much higher -- what the new premium would have been. However, if the insurer has proven the premium would be higher, it should not matter how much higher. Premium is a material term and if the amount is different, then this changes the original contract justifying rescission.
Furthermore, as the underwriting guidelines based their premium on the number of living units, the court said it was unclear whether a walk-in basement apartment would have resulted in a higher premium as the policy did not define the term "apartment units". However, in my opinion, the court should have interpreted the term according to its plain and ordinary meaning, which would have favored summary judgment for the insurer.
More cases next edition.
GO BILLS!!! Can’t wait for Sunday.
Scott
Scott D. Storm
Conviction Reversed – 99 Years Ago:
The News
Paterson, New Jersey
02 Feb 1925
COURT UPSETS CONVICTION OF PASSAIC DOCTOR
DR. SIMON IS CLEARED
Supreme Tribunal’s Opinion is That Court Attendants
Had Erred in Conversing Before Rendering Decision
Convicting Him of Conspiracy
(Special to the News.)
Trenton, Feb. 1.—The Supreme Court this morning reversed the conviction of Dr. Aaron L. Simon, lawyer, and physician, of 174 Columbia avenue, Passaic, found guilty of conspiracy by a jury in the Passaic County Quarter Sessions court before Judge Joseph a. Delaney on December 21, 1923.
The most important ruling handed down in the case by the Supreme Court was to the effect that in a case in which a person died since entering into a conspiracy, the surviving one became immune from indictment. This means that he cannot be tried again.
The court also found that there was error in the conduct of the jury and the court attendants in conversing before rendering the verdict, erred. The court also found that Simon was not present when the verdict was rendered. Having been told by a court attendant that the jury had been locked up for the night, which was advanced as another reason for the reversal. The court held that it was improper for the jury and attendants to exchange stories and that the clerk had no authority from the judge to accept the verdict.
Fleming’s Finest:
Hi Coverage Pointers Subscribers:
Much to the dog’s delight, winter has started off with lots of snow and wind. When he is not frolicking in the snow, he is crashed out on the floor or cries to go outside. While stuck inside, we watched a lot of football, including the Detroit Lions’ first playoff win in 32 years. As good as it gets.
This week’s case comes from the Kansas Supreme Court. A school district employee sustained injuries in a car accident. The school district’s employee health benefit plan covered a portion of his medical expenses, but the school district required the employee to reimburse the plan after he recovered from a third-party based on the plan’s subrogation clause. The Court held that a self-insured school district was subject to regulation under the Kansas Insurance Code, and the anti-subrogation regulation applied.
Catch you later and Go Bills,
Kate
Katherine A. Fleming
Sexist Advertising – 100 Years Ago:
The Indianapolis Star
Indianapolis, Indiana
19 Jan 1924
Women spend about 90 per cent of the money used for ultimate products, so it is good economy for any man to co-operate in teaching them the importance of investing wisely.
Women do not buy the steers on hoof, the bales of cotton or the standing timber. But they do buy about 90 per cent of all final products—that is, 90 per cent of all the beefsteaks, shoes, cotton goods, thread, and furniture. Millions of dollars’ worth of business is transacted every month through the hands of women.
Modern business has made specialists of us all. Generally speaking, men specialize in producing and women in dispensing incomes—no one person can adequately attend to both functions.
It is worth the while of the producing member to make sure that the women of his family understand the importance of reserving some portion of the income for investment, since the amount of income available for investment will largely depend upon the spending of the women of the average family.
Gestwick’s Garden State Gazette:
Dear Readers:
This week entailed lots of work, plus a nice albeit short visit with my family from out of town to celebrate my grandma’s 90th birthday. The visit was capped off with an excellent Bills victory over the Pittsburg Steelers.
I have a New Jersey case for you this week on an auto accident in which four (or five?) of the insured’s employees were involved. The central issues revolves around whether the driver of the car was an employee, hence the “or five?” Read on to find out the answer.
Evan
Evan D. Gestwick
Trading $ for a Prison Sentence – 100 Years Ago:
The Buffalo Times
Buffalo, New York
19 Jan 1924
May Compensate Bailey’s Mother
Elmer Schreiner, 28 years old, No. 40 Keystone Street, may escape a prison sentence on his conviction of manslaughter second degree for running down and causing the death of Raymond Bailey, 50 years old, No. 458 Fourteenth Street if the mother of Bailey will accept a settlement for her son’s death.
Schreiner was up for sentence before Judge Noonan Saturday and Judge Noonan instructed the probation officer to see if Bailey’s mother would be satisfied to allow Schreiner to compensate her for the accident. If she is willing, it is likely that sentence will be suspended on Schreiner. The sentence for manslaughter is five to ten years in Auburn prison.
O’Shea Rides the Circuits:
Hey Readers,
As Western New York faces another winter storm, I hope everyone in the area stays warm and safe. On another note, it appears the Ottawa Senators’ aversion to playoff hockey will continue. Even Jacques Martin cannot right the ship. At this point, I will be looking forward to the draft.
This week I have a case from the Seventh Circuit discussing whether a crane attached to motor vehicle identified in a commercial auto policy’s declarations page creates liability coverage. In short, the court explained that identifying the attached equipment in the declarations page does not create liability coverage where no other portion of the policy implicates such coverage and the declarations page itself limits coverage to the property portion of the policy.
Until Next Time,
Ryan
Ryan P. O’Shea
[email protected]
Hero Status – 100 Years Ago:
The Buffalo News
Buffalo, New York
19 Jan 1924
Boy Rescues Three Chums, Plunged Into Icy Waters
Then Attempts to Fish Out Sleds, When Father Order Him to Bed.
Ralph Vogel, 12 years old, 178 Zenner street pulled three boys out of the icy waters of Scajaquada creek the other day after they had gone through the ice with their sleds.
The trouble started when Willie Litzenberger, nine years old, 160 Zenner street, coasted too far and went into the water headfirst. Ralph crawled to the edge of the ice and grabbed him by the collar when he came up a second time.
Then the work of rescuing the sled with pike poles was started. The ice broke and two other boys got a ducking. Ralph stuck to the edge of the ice and gave them a handout.
One sled had been rescued when Ralph’s father came upon the scene and ordered the boy to bed to dry out.
Louttit’s Legislative and Regulatory Roundup:
Hello Readers,
Nothing to report on this week. Stay warm.
Rob
Robert P. Louttit
What was a Modern Marriage– 100 Years Ago:
The Buffalo Commercial
Buffalo, New York
19 Jan 1924
A REVOLUTION IN MODERN MARRIAGE
According to the novels every boy and girl ought to expect some grand, convulsive experience of love, which comes of itself, cannot be reasoned with, and must be obeyed. It is not strange that divorces are more frequent under this system than they were when parents chose spouses for their children. It is all as fantastic as the frank extravagance of the old romances, and more delusive. The modern tendencies of society have had far more effect, in so far as they have opened to women career and ambitions which have dislodged marriage from its supreme place in their interest and life plan. This is the greatest revolution in the conditions of the marriage institution, except for the change from the mother-family to the father-family which has taken place in all history.
Rob Reaches the Threshold:
Hello Readers,
It has been an exciting time in the Buffalo area to start the new year – with some good and some bad. After a very mild December, Mother Nature saw fit to hit the area with two lake effect storms within the last week. “Dread it, run from it, [snowfall] arrives all the same.” – Thanos (if he lived in Buffalo, probably).
However, on the good side, the Buffalo Bills keep on rolling! With Patty Mahomes and Taylor Swift en route, it should make for an eventful Sunday night. Go Bills.
For this article, the First Department came out of its recent hibernation on the issue of Serious Injury and gave us a nice decision wherein the court examined claims of injury under four different categories of Insurance Law Section 5102(d).
I hope you all enjoy the read.
Rob
Robert J. Caggiano
Oldest White Man in California Dies, Missing Hooch – 100 Years Ago:
Salt Lake Telegram
Salt Lake City, Utah
19 Jan 1924
MAN DIES AT 100 BEMOANING DRY CONDITION
Pasadena, Calif., Jan. 19 (U.P.)—Ralph F. Ames, 100 years of age, believed to be the oldest white man in California, died at his Altadena home near here yesterday.
In a recent interview, he attributed his failing health to prohibition.
“It’s just well-nigh impossible to get any good stuff anymore,” he said mournfully.
Ames was a hired hand on Daniel Webster’s farm.
In a recent interview, he at [sic] Civil war and tottered along beside the boys in blue as they marked away to war.
He came to California from Minnesota where he was born when St. Paul was only a crossroads.
Goldberg’s Golden Nuggets:
January is here and it is cold. I send a warm message to my colleagues in the North who are luckily safe despite the horrible weather conditions. While my colleagues in Buffalo are ecstatic about the Buffalo Bills’ win in the tundra, I’m still mourning the end of the Dallas Cowboys’ playoff run (again). But hey, at least the Philadelphia Eagles completely imploded. Anyway, I bring to you a No-Fault case on policy exhaustion, a trip-and-fall suit against the County of Nassau, and a motor vehicle accident from a driver who thinks she’s the only one on the road. Enjoy.
Josh
Joshua M. Goldberg
Five Minute Acquittal – 100 Years Ago:
The Standard Union
Brooklyn, New York
19 Jan 1924
JAMAICA MAN FREED ON ASSAULT CHARGE
One of the quickest verdicts recorded in the Queens County Court was brought in yesterday afternoon by the jury that found Frank Steinback, of 197 Remington avenue, Jamaica, not guilty of a charge of assaulting William Fralick, of 9111 218th Street, Queens. The case went to the jury shortly after 4 o’clock yesterday and inside five minutes after Judge Burt J. Humphrey had finished his charge Steinbeck was free.
LaBarbera’s Lower Court Library:
Hi Readers:
Winter is finally upon us here in Buffalo, New York. Unfortunately, due to the never-ending snow, my official Attorney Admission Ceremony was postponed one more week. Disappointing news for me, but great news for my dog – who got a whole unplanned day of attention.
This week my case comes from New York State Supreme Court, New York County. In this case, a contractor was seeking defense and indemnification under an insurance policy issued to their subcontractor. In deciding the motion for summary judgment before it, the court highlighted that when determining whether the duty to defend is triggered, the insurer must read the complaint in the underlying action in conjunction with the third-party complaint therein. The insurer’s introduction of extrinsic evidence was not enough to show that the contractor was not entitled to additional insured status under the policy.
See you in two weeks…Go Bills!
Isabelle
Isabelle H. LaBarbera
Associate – Pending Admission
Flirting Leads to Striking – 100 Years Ago:
Kearney Hub
Kearney, Nebraska
19 Jan 1924
THREATEN TO STRIKE.
Vienna, Jan. 19. —A strike of postal and telegraph workers throughout Austria is threatened because of a government inquiry concerning the reduction in the number of officials which requires the heads of departments to ascertain whether the officials under him “are inclined to flirt with members of the opposite sex.”
North of the Border:
We have emerged from one of the longest and deepest cold snaps to hit Alberta in decades. This past weekend, the morning low temperature in both Edmonton and Calgary was -38 plus windchills hitting in the -40C to -50C range.
At those temperatures there is no meaningful difference between degrees Centigrade and degrees Fahrenheit.
As of yesterday, temperatures are back to normal: Daytime highs of -15 C or so, which translates into single digits on the Fahrenheit scale. Instead of cold, we now have snow which is a good thing here in drought stricken southern Alberta. In short, at the moment, there is not much difference between the weather in Buffalo, New York, and Calgary.
As the courts remain quiet, I took this opportunity to write about ‘zombie fires’ and the findings in the 2023 Insurance Bureau of Canada Annual report. Until next time.
Heather
Heather A. Sanderson
Sanderson Law, Calgary, Alberta
Defining Garbage – 100 Years Ago:
The Sacramento Star
Sacramento, California
19 Jan 1924
Defines Garbage
Under the new garbage ordinance to be considered by the city council, the term “garbage” will include dead animals of not more than 10 pounds in weight each, besides vegetables and other matter. “Waste” will include boots, shoes, brickbats, and sawed-off branches of trees. This was the definition of the ordinance as given out by City Clerk Harry G. Denton today.
Headlines from this week’s issue, attached:
KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]
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Plaintiff’s Law Firm Potentially Liable for Malpractice in Not Timely Notifying Defendant’s Insurer of Accident and Claim
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
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Contribution Claims Against Third-Party Defendant Survive Where Indicia of that Party’s Work was Pleaded into the Main-Party Complaint
BARNAS on BAD FAITH
Brian D. Barnas
[email protected]
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Bad Faith Verdict Overturned Where Insurer Established Claimed Damages Were Below Deductible and Insurer had Reasonable Albeit Erroneous Interpretation of Policy Language
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Homeowner Could Litigate Bad Faith Claim Where Insurer Paid Policy Limits on Uncovered Claim
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
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Suit Limitation Provision Not Tolled by COVID-19 Orders
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Bad Faith Claims Dismissed
KYLE'S NOTEWORTHY NO-FAULT
Kyle A. Ruffner
[email protected]
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Court Holds Insurer Failed to Establish Policy Exhaustion Defense
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
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County Covered as an Omnibus Insured Following Auto Accident Involving a Volunteer’s Use of a Non-Owned Auto for Senior Transportation Program
STORM’S SIU
Scott D. Storm
[email protected]
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Material Misrepresentation in a Property Application for Insurance Regarding Number of Apartments
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
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Self-Insured School District Subject to Regulation Under the Kansas Insurance Code and Anti-Subrogation Regulation Applied
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
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Court Denies Cross-Motions for Summary Judgment on the Basis of Insufficient Provision of Facts
O’SHEA RIDES THE CIRCUITS
Ryan P. O’Shea
[email protected]
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Commercial Auto Policy’s Declarations Page Does Not Extend Liability Coverage to Permanently Attached Equipment
LOUTTIT’S LEGISLATIVE AND REGULATORY ROUNDUP
Robert P. Louttit
[email protected]
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Nothing to Report this Issue. See You in Two Weeks
ROB REACHES THE THRESHOLD
Robert J. Caggiano
[email protected]
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First Department Examines and Affirms, in Most Part, a Decision Denying Summary Judgment for a Defendant where Plaintiff’s Evidence Presented Raised Triable Issues of Fact on Whether She Suffered Serious Injuries Under Numerous Categories of Insurance Law § 5102(d)
GOLDBERG’S GOLDEN NUGGETS
Joshua M. Goldberg
[email protected]
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First Department Continues to Hold Arbitrators and Master Arbitrators Cannot Issue Awards That Result in Payments Over Policy Limits
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Lack of Written Notice Dooms Plaintiff’s Case Against County
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Right Turn from Center Lane Across Traffic – Good Luck Everybody!
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
Associate – Pending Admission
[email protected]
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Insurer Must Read the Allegations in the Complaint in Conjunction with the Third-Party Complaint to Determine Whether Coverage is Triggered for an Additional Insured
NORTH of the BORDER
Heather A. Sanderson
Sanderson Law, Calgary, Alberta
[email protected]
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Canadian Wildfire Emergency is Not Over: Zombie Fires may Resurrect in the Spring
Stay warm and healthy.
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]
COPY EDITOR
Evan D. Gestwick
[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
Brian D. Barnas
Robert P. Louttit
Ryan P. Maxwell
Joshua M. Goldberg
Kyle A. Ruffner
Katherine A. Fleming
Evan D. Gestwick
Ryan P. O’Shea
Isabelle LaBarbera (Pending Admission)
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
Joshua M. Goldberg
APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
Topical Index
Peiper on Property and Potpourri
Barnas on Bad Faith
Ryan’s Federal Reporter
Gestwick’s Garden State Gazette
Louttit’s Legislative and Regulatory Roundup
Rob Reaches the Threshold
LaBarbera’s Lower Court Library
KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]
01/17/24 McGlynn v. Burns & Harris, Esq.
Appellate Division, Second Department
Plaintiff’s Law Firm Potentially Liable for Malpractice in Not Timely Notifying Defendant’s Insurer of Accident and Claim
This was a legal malpractice action. McGlynn retained Burns & Harris, Esq. (the “law firm”), to represent him in the prosecution of an action to recover damages for personal injuries he allegedly sustained in March 2005 while working for United Parcel Service due to an allegedly defective condition on a loading dock in Brooklyn. Keenan was the attorney assigned to handle the plaintiff's case. The law firm commenced two separate actions on the plaintiff's behalf against alleged owners of the loading dock. The actions were consolidated (hereinafter the personal injury action), and a default judgment against all the defendants in the personal injury action was obtained, awarding the plaintiff the total sum of $255,914.50.
The plaintiff alleged that he was unable to collect the judgment because the defendant’s insurers disclaimed coverage on the ground that timely notice of the claim was not provided. McGlynn sued the law firm and Keenan (the “law firm defendants”) among others, alleging legal malpractice for the failure to investigate and timely notify the applicable insurance carriers in the personal injury action.
The law firm defendants moved for summary judgment dismissing the complaint insofar as asserted against them on the ground that the plaintiff could not demonstrate that he would have prevailed in the personal injury action because the doctrine of judicial estoppel or estoppel against inconsistent positions would have precluded such recovery. They contended that prior to the commencement of the personal injury action, the plaintiff obtained workers' compensation benefits based upon a claim that he was injured when packages fell on him while he was standing in his delivery truck and moving packages from the loading dock. The law firm defendants argued that the defendant would have been precluded from recovering damages in the personal injury action based upon the inconsistent theory that the loading dock surface was defective.
A plaintiff seeking to recover damages for legal malpractice must establish that "(1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable. "A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages".
The law firm defendants' submissions in support of their motion did not establish, prima facie, the absence of at least one element of the legal malpractice cause of action. Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed" Here, the plaintiff's allegation that he was injured due to a defect in the loading dock was not necessarily contrary to the position taken in his workers' compensation claim that he suffered injuries while moving heavy boxes on the loading dock. There can be more than one proximate cause of a plaintiff's injuries. Accordingly, the court should have denied the law firm defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.
PEIPER ON PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
01/11/24 63rd & 3rd NYC, LLC v. Advanced Contracting Solutions, LLC
Appellate Division, First Department
Contribution Claims Against Third-Party Defendant Survive where Indicia of that Party’s Work was Pleaded into the Main-Party Complaint
Plaintiff commenced this action against defendant Advanced on the theory that Advanced had failed to properly perform underpinning and foundation work at the project site. Advanced’s alleged failure resulted in ground movement and damage to the neighboring property. Advanced then commenced a third-party action against Domani seeking common law indemnification and/or contribution on the basis that Domani’s actions caused, or contributed to, the failure.
Domani moved to dismiss on the basis that Advanced only faced liability for its own contractual obligations. As such, Domani reasoned that Advanced had no basis to seek Article 14 contribution where, as here, there was no chance of vicarious liability. The Appellate Division, however, noted that where the underlying Complaint asserted facts which pointed to the third-party defendant’s independent negligence a claim for contribution would result. Here, because the Complaint at issue in this case asserted Domani’s work also potentially caused movement and damage, it followed that Advanced’s claims for contribution were appropriate.
There were no claims for indemnification. This is because if Advanced was assigned no share of negligence it would have owed no loss to plaintiff. With no loss, it would have nothing from which to be indemnified. If, however, Advanced had some level of negligence, and thus exposure, the claim against Domani would not be one of indemnity but rather one of mere apportioned contribution.
BARNAS ON BAD FAITH
Brian D. Barnas
[email protected]
01/09/24 Watchword Worldwide v. Erie Insurance Exchange
Superior Court of Pennsylvania
Bad Faith Verdict Overturned where Insurer Established Claimed Damages were below Deductible and Insurer had Reasonable Albeit Erroneous Interpretation of Policy Language
Watchword was insured by Erie under a property damage and liability insurance policy that included coverage for the reproduction or replacement of electronic data. Watchword was involved in a hacking incident when a hacker deleted Watchword’s videos and API from a GoDaddy server.
Watchword filed a claim with Erie for loss caused by the deletion of its data from the GoDaddy server. Erie denied the claim on the grounds that the policy did not cover the loss because the electronic data that was destroyed was not on Watchword’s computers and on the ground that replacing the videos on the GoDaddy server from the copies that Watchword still had was less than the $2,500 deductible of the policy. Watchword filed this lawsuit against Erie for breach of contract and bad faith.
The breach of contract case went to trial. The jury returned a verdict in favor of Watchword finding that Erie had breached the insurance contract. It awarded $18,750 in damages. The bad faith claim went to a nonjury trial court ruling. The trial court found that Erie acted in bad faith because it denied coverage on the ground that the GoDaddy server was not on Watchword's property. Based on these bad faith findings, the trial court awarded Watchword $20,000 in punitive damages and $50,000 in attorney fees and costs.
Erie’s insurance for reproduction or replacement of electronic data provided coverage only if the electronic data that was destroyed or corrupted “resides in your computers.” The meaning of the phrase “resides in your computers” was a matter of first impression not defined in the policy or any cited case law. The court concluded there were two reasonable interpretations of the term: the insured’s own computers or computer’s the insured used under a license or lease. Since the term was ambiguous, it was construed in favor of Watchword, and the court concluded the loss was covered under the policy.
However, the evidence at trial showed that the loss did not exceed the deductible. Watchword's own evidence established that the cost of replacing its lost electronic data, the videos and API, did not exceed the Policy's $2,500 deductible. Thus, Erie was entitled to judgment notwithstanding the verdict dismissing the breach of contract claim.
Erie was also entitled to judgment in its favor on the bad faith claim. Erie denied payment of Watchword's claim on the ground that there was no coverage because the policy required that the destroyed or corrupted electronic data “resides in your computers” and the deleted electronic data was on a GoDaddy computer and on the ground that the loss, even if covered, did not exceed the deductible. The court concluded both of those grounds were reasonable grounds for denying the claim. While the court concluded the term “resides in your computers” was ambiguous, it concluded that Erie’s interpretation was supported by the policy language and there was no case law to the contrary. A reasonable, even though erroneous, ground for denial is not bad faith. In addition, the conclusion that the loss did not exceed the deductible was reasonable.
The case was remanded with instructions to enter judgment notwithstanding the verdict in favor of Erie.
01/03/24 Cingari v. First Protective Insurance Company
District Court of Appeal of Florida, Fourth District
Homeowner Could Litigate Bad Faith Claim where Insurer Paid Policy Limits on Uncovered Claim
The insurer issued a standard homeowner's insurance policy to the homeowner, including provisions for an appraisal process. After issuance, the homeowner discovered cracks on the interior and exterior walls of the home and gave the insurer notice of a claim. Six weeks after the homeowner gave notice of her claim, the insurer confirmed coverage and issued a partial payment of $12,436.63. Nearly a year later, the insurer issued another partial payment of $47,020.00.
Six months after the second payment, the homeowner concluded the insurer was not going to hire a competent adjuster to evaluate the claim. The homeowner filed a civil remedy notice with the Florida Department of Financial Services, placing the insurer on notice of its bad faith conduct and giving the insurer the opportunity to cure. The notice asserted the insurer failed to settle the claim properly and promptly and failed to adopt and implement standards for the proper investigation of claims.
After additional time passed, the homeowner invoked the policy's appraisal process. The parties could not agree on an umpire, and the homeowner filed suit seeking the appointment of an umpire. After an umpire was appointed, the appraisal process proceeded, leading to an appraisal award substantially greater than the amounts which the insurer had previously paid.
Three years and eight months after the homeowner first reported the claim, the insurer paid the homeowner the additional amount due pursuant to the appraisal award, resulting in payment of the policy limit. The homeowner then filed the underlying bad faith complaint.
During the bad faith suit, the insurer for the first time asserted that the loss was excluded from coverage by an earth settlement exclusion in the policy. The insurer did not seek reimbursement of the amount paid after appraisal based on promissory estoppel. However, it argued that there was no bad faith because there was no coverage and because the insurer was not seeking reimbursement. The trial court granted the insurer’s motion for summary judgment.
The appellate court reversed. The court concluded the trial court erred in accepting the insurer’s argument that because no coverage existed, the homeowner was not entitled to litigate whether the insurer acted in bad faith. It reasoned that an insurer is obligated to timely evaluate and pay benefits owed under the insurance policy, which includes the duty to evaluate and investigate the cause of damage to the property promptly. The court found that the insurer’s failure to timely raise its coverage defense under the policy supported the inference that it did not properly investigate the claim. The homeowner argued that the failure to properly investigate caused the insurer to improperly extend settlement of the claim through the appraisal process. In doing so, the insurer arguably violated the requirements to attempt in good faith to settle claims and promptly settle claims.
Accordingly, the case was remanded for further proceedings on the bad faith claim.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
01/08/24 Five Star Cars LLC v. Graphic Arts Mut. Ins. Co.
United States District Court, District of Connecticut
Suit Limitation Provision not Tolled by COVID-19 Orders
A fire at the Five Star car dealership damaged the insured’s business personal property (cars!) and destroyed the leasehold. Investigators determined that the fire was the result of arson and, the insured alleged, that its insurers unreasonably delayed and underpaid the loss. Graphic Arts (Utica) provided a commercial package policy while Occidental insured the vehicles.
Soon after the fire, Five Star’s lenders were looking for payments on the vehicle loans and moved to block its accounts. Five Star informed its insurers of this, seeking interim payments to assist with bills and operating expenses, and support in relocating its business. The Connecticut DMV suspended Five Star’s dealer license because it had let its insurance lapse during the period of restoration. After several months without payment, the vehicles were repossessed and Five Star was subjected to litigation from its creditors. The insured claimed that Utica did not issue payments until 8-months post-loss, and significantly underpaid the claim.
Three years to the date after the fire, Five Star brought suit against the insurers for breach of contract and common law and statutory bad faith (CUTPA/CUIPA). Utica moved to dismiss the complaint because it was not filed within the policy’s two-year suit limitations period. Five Star argued unsuccessfully that the provision was ambiguous because the Fire Legal Liability endorsement contains no limitations provision, and the Commercial Crime coverage part has a three-year suit limitations provision. The court found that the Fire endorsement incorporated the general policy conditions, and that the insured was not making a claim under the Crime coverage, thus easily dispensing with the issue. The court also held that the suit limitation provision defeated the insured’s common law bad faith claim, because it arises from the contract.
Significantly, the court also held that various COVID-19 executive orders did not toll the running of the suit limitations provision, because the Governor’s order could not impact private contracts. “[T]olling doctrines are inapplicable to contractual suit-limitation provisions unless the contract provides for tolling of the limitation period. For this reason, courts have specifically held that Executive Order 7G did not toll suit-limitation provisions in private contracts.” (internal citations omitted).
Separately, the court dismissed Five Star’s CUTPA/CUIPA claim, finding that the insured’s complaint failed to state a claim, because it failed to allege that Utica’s conduct occurred with such frequency as to indicate a general business practice. While Five Star pointed out two prior suits against Utica, the court’s review of the matters, [neither involved an allegation of unfair settlement practices] showed that they were too dissimilar from the case at bar to establish a general business practice. Moreover, one of the claims that was arguably similar occurred eleven years before the conduct at issue. “[I]t is safe to say that an eleven-year gap is too long to support a finding that GAMIC engaged in unfair settlement practices “with such frequency as to constitute a general business practice.””
The court, however, overruled Occidental’s motion to dismiss for breach of contract, as it did not have a suit limitations provision. But the court struck Five Star’s common law bad faith claim, as the insured failed to allege any identifiable fraud, misrepresentation, or concealment. “Five Star does not back up these conclusory assertions with any factual allegations. Such “bald assertions” are not “sufficient to survive a motion to dismiss,” the court held. And like the CUTPA/CUIPA claims against Utica, the court found insufficient allegations of a general business practice to survive the motion to dismiss.
01/02/24 Mazzacane v. Hanover Ins. Co.
Superior Court of Connecticut, Hartford
Bad Faith Claims Dismissed
The court granted Hanover’s motion to dismiss the plaintiff’s bad faith claims in this UIM breach of contract action. Likewise, to the above discussed case, the court ruled that to withstand a motion to strike a bad faith claim against an insurance carrier, the insured must not only plead that the carrier acted with a dishonest motive or sinister purpose, but also assert facts from which a reasonable factfinder could infer such motive or purpose. Conclusory allegations are insufficient to adequately plead the cause of action.
“Even read in the light most favorable to the plaintiffs, as they must be, the specific facts the plaintiffs have alleged do not support a reasonable inference of dishonest motive or similar purpose, no matter how many times those words and phrases appear in the Complaint. Failing to respond to a plaintiff's demand as quickly as the plaintiff desires cannot support a reasonable inference of bad baith. Nor can failing to give weight or credit to a plaintiff's position about how an accident occurred. And the enumeration of twelve different ways in which the defendant acted purposely, maliciously or with intent to obstruct the plaintiffs’ receipt of UIM benefits are all conclusory in nature.”
KYLE’S NOTEWORTHY NO-FAULT
Kyle A. Ruffner
[email protected]
01/08/24 Stark Med. Sup., Inc. a/a/o Dorvil v. Foremost Prop. & Cas. Ins.
Civil Court of the City of New York, Kings County
Court Holds Insurer Failed to Establish Policy Exhaustion Defense
The plaintiff medical provider, as assignee of Emmanuel Dorvil, commenced this action to recover first-party no fault benefits from the insurer for a medical service performed to Mr. Dorvil following a motor vehicle accident, which occurred May 29, 2017.
This Court had previously found that the subject bills were received and timely and properly denied, and the Court’s Order limited the trial to the issue of whether the policy was exhausted at the time of the claim. At trial, the insurer’s claim specialist, Megan Scorben, testified that there was a previous medical payment on this accident, and that at full value there was $1,000 on the policy plus an additional $500 if the motorcycle rider was wearing a helmet. However, Ms. Scorben did not personally add in this data, and she was not working for the insurer when the payment logs that she was relying upon were created. She testified she reviewed and maintained the records in the regular course of her employment responsibilities. Further, the medical provider questioned the dates that were input into the log that Ms. Scorben relied upon in her determination that the policy was exhausted. She stated that there was in fact a "typo" and the date should read June 15, 2017, and that the date reads June 15, 2018.
The court explained that for a policy exhaustion defense to bar plaintiff from recovery in a no-fault matter, the defendant must demonstrate that the policy had been exhausted at the time the claims at issue were deemed complete. Ortho Passive Motion, Inc. v Allstate Ins. Co., NY Slip Op 50771 [Application Term 2d 2017]. The Second Department in that case further clarified that "defendant has not argued, let alone demonstrated, that there was a technical defect or ministerial mistake in the judgment "not affecting a substantial right of a party." Id.
Accordingly, the court determined that the insurer failed to prove policy exhaustion. First, despite the contentions of the insurer and the claims specialist, the incorrect dates in the log are not merely "ministerial mistakes" as the errors substantially affected the rights of the medical provider. Second, the court held that the log entries do not prove that the policy was exhausted when the claims at issue were deemed complete. As such, the insurer did not provide the court with evidence to establish that the policy was exhausted when the claims were completed, as there was nothing beyond the testimony of the witness to show that the date in the log was in error and, therefore, there was nothing to show that the payment preceded the bill herein.
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
01/09/24 County of Ulster et al. v. ANI Risk Retention Group, et al
Northern District of New York
County Covered as an Omnibus Insured Following Auto Accident Involving a Volunteer’s Use of a Non-Owned Auto for Senior Transportation Program
Following an auto accident in January 2018, Joyce A. Northacker commenced actions against the Estate of Barbara Hyde, Jewish Family Services of Ulster County, Inc. (JFS), and the County of Ulster (the “Underlying Actions”). In the Underlying Actions, Northacker seeks to recover for injuries sustained in an automobile accident on January 8, 2018. The Underlying Actions allege that Hyde was operating a vehicle on behalf of JFS and the County at the time of the accident. JFS and the County had entered into an Agreement for Professional Services prior to the accident.
Under the Agreements, JFS assumed certain responsibilities and agreed to administer a senior transportation program in collaboration with the County (the “Program”). JFS’ responsibilities including verifying that volunteer drivers were covered by insurance and maintaining insurance, including commercial general liability insurance and automobile liability insurance. The County paid JFS a fee for its services and JFS agreed to bill the County monthly for reimbursement for volunteer mileage and insurance costs. In accordance with the Agreements, JFS paid volunteers—including Hyde—for their mileage and was reimbursed by the County.
Hyde's personal automobile insurance policy, issued by GEICO, in the amount of $300,000, provides primary insurance coverage for the defense of the County. ANI issued Policy No. 2017-44189 to JFS, which included a Business Auto Coverage Part. The ANI Policy had a $1,000,000 limit, the same limit that JFS was required to maintain in automobile liability insurance under the Agreements. The County itself was insured for automobile liability under Policy No. MCAULST001, issued by NYMIR, with a $1,000,000 limit.
The ANI Policy issued to JFS contained the “Social Services – Volunteers As Insured” endorsement, which included as an “insured”: “Anyone volunteering services to you as an ‘insured’ while using a covered ‘auto’ you don't own, hire or borrow to transport your clients or other persons in activities necessary to your business.” The ANI Policy's “Who is An Insured” provision included as an “insured” the following omnibus provision: “Anyone liable for the conduct of an “insured” described above but only to the extent of that liability.” And the ANI Policy provides primary coverage for liability assumed under an “insured contract,” as defined therein. As for the NYMIR Policy's coverage, it provides that it is excess over any other collectible insurance for covered “auto[s]” that the County does not own.
After finding that the Agreements were not abandoned, as argued by ANI, the NDNY found the Agreements unambiguous, with the language therein clearly expressing the intent that drivers participating in the Program, including Hyde, were acting as volunteers of JFS. Having decided that Hyde was a volunteer of JFS, the NDNY next moved to whether she, and, by extension, the County, were covered by the ANI Policy. ANI argued that the vehicle driven by Hyde at the time of the accident (hereinafter “the Hyde Vehicle”) was not covered by the ANI Policy, but the court noted that non-owned autos like the Hyde Vehicle were expressly covered. And:
“Putting the pieces of this puzzle together, the ANI Policy covered, among other persons, anyone ‘volunteering services’ to JFS while using a ‘covered auto,’ which includes vehicles not owned by JFS that are being used in connection with services provided by JFS. And, applying the policy language to the facts of this case, Hyde was a volunteer of JFS, driving her personal vehicle, dispatched by the County to provide transportation to Northacker, in connection with the services provided by the Program. That is, Hyde was an ‘insured,’ driving a covered ‘Non-Owned Auto’ to carry out activities necessary to and connected with the Program—a situation precisely contemplated by the Agreements and the ANI Policy. Therefore, under the terms of the ANI Policy, Hyde was an ‘insured.’ And, accordingly, to the extent the County has been found liable for Hyde's conduct in the Underlying Actions, the County also qualifies as an ‘insured’ under the terms of the ANI Policy.”
Although ANI also raised its Contractual Liability Exclusion, the County and Hyde were able to establish that the “insured contract” exception thereto applied, since the Agreements contained an indemnification provision. Oh, and ANI waived its right to rely upon the Contractual Liability Exclusion by failing to raise it in a timely manner under Insurance Law §3420(d)(2).
Accordingly, the NDNY was able to determine that the ANI Policy provides primary coverage as between the two policies at issue here and the NYMIR Policy provides excess coverage, due to application of its excess provision pertaining to non-owned autos (and ANI’s primary provision for “any liability assumed under an ‘insured contract.’”).
STORM’S SIU
Scott D. Storm
[email protected]
01/11/24 Alexi Home Design, Inc. v. Union Mutual Fire Ins. Co.
Material Misrepresentation in a Property Application for Insurance Regarding Number of Apartments
Alexi Home Design, Inc. commenced this breach of contract action against the defendant to cover fire damage to the plaintiff’s property. Defendant answered and asserted a counterclaim for declaratory judgment, contending that there is no coverage under the commercial policy and for rescission because its investigation established that plaintiff had made material misrepresentations in its application for insurance, namely that the property only had two apartment units when in fact it had three apartment units.
The Court confirmed that in New York, an insurance company has a statutory right to rescind an insurance policy if the applicant makes a "material misrepresentation" on the insurance application (NY Insurance Law § 3105[a], [b][1]). "A misrepresentation in an insurance application is material, voiding the policy ab initio, if, had the true facts been known, either the insurer would not have issued the policy or would have charged a higher premium". While the materiality of a misrepresentation may be a question for the jury, materiality can be established by an affidavit from an underwriter and documentary evidence concerning its underwriting practices showing that the same policy would not have been issued if the correct information had been provided. The burden is on the insurance company to establish that it would have rejected the application if it had known the undisclosed material information.
Here the Appellate Court, in denying the defendant’s motion for summary judgment, held that it had not met its burden as a matter of law in establishing that it would have charged a higher premium to plaintiff if it had disclosed that the premises had three apartments on the insurance application. While defendant included testimony from its underwriter that the premium would have been higher if the third apartment at the premises had been disclosed, to grant summary judgment this court wanted to see it point to rating guidelines or specific testimony regarding how much higher the premium would have been.
While an insurer typically need only substantiate that, had the insured told the truth on the application, that the premium would have been higher, in this questionable decision, this court wanted the insurer to set forth a superfluous additional step stating specifically how much higher -- what the new premium would have been. However, if the insurer has proven the premium would be higher, it should not matter how much higher. Premium is a material term and if the amount is different, then this changes the original contract justifying rescission.
Further, the 2016 underwriting guidelines stated that "[t]he apartment and dwelling liability classes . . . base their premium on the number of living units; with a higher premium being charged for each additional unit." The Court said that this section of the guidelines refers to "living units," not apartment units. The term "apartment units" was not defined in the policy or elsewhere; and therefore, the Court claimed it was unclear whether the premium would have been higher if plaintiff had disclosed the presence of a walk-in basement apartment that was not listed on the certificate of occupancy. However, in my opinion, the court should have interpreted the term according to its plain and ordinary meaning, which would have favored summary judgment for the insurer.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
01/05/24 Towne v. Unified School District No. 259
Kansas Supreme Court
Self-Insured School District Subject to Regulation Under the Kansas Insurance Code and Anti-Subrogation Regulation Applied
Unified School District No. 259 administers a medical benefit plan (the Plan) for its employees. The Plan is a single employer, self-funded plan, which allows a school district to choose to "act as a self-insurer to provide health care services" for its employees. The Plan contains a subrogation clause requiring participants to repay any amounts initially paid by the Plan but later recovered from a third party by the participant. Towne, an employee of the school district, was injured in a car wreck, and the Plan covered a portion of his medical expenses. Towne then recovered from a third-party, and the school district required Towne to reimburse the Plan. Towne acquiesced, then filed a breach of contract claim against the school district, arguing that the subrogation clause was unenforceable. The school district argued that the Plan was not subject to regulation under the Kansas Insurance Code. The school district also claimed that it was not a “health insurer” and that the Plan was not a “health benefit plan” as defined in the Kansas counterpart to HIPAA, so the anti-subrogation regulation did not apply. The district court agreed with the school district and dismissed Towne’s claim. The Court of Appeals affirmed.
The Kansas Supreme Court reversed and remanded. The Court overruled its precedent and held that self-inured school districts are subject to regulation under the Kansas Insurance Code. Further, the Court found that the medical benefit plan offered by the school district was a health benefit plan because it had a hospital or medical expense policy. The Court reasoned that an entity that chooses to self-insure can still be said to offer a health benefit plan, and the relevant statute contemplates a self-insurer will provide health care services. In particular, the Court noted that the Plan included a schedule of medical benefits and was designed to provide medical and hospital services to participants. Further, the school district qualified as a health insurer because it offered a health benefit plan subject to the Kansas Statutes Annotated.
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
01/17/24 On-Target Staffing, LLC v. Zurich American Insurance Company
Superior Court of New Jersey, Appellate Division
Court Denies Cross-Motions for Summary Judgment on the Basis of Insufficient Provision of Facts
Having been sued by four of its employees for injuries they suffered during an automobile accident, On-Target sought a declaration from the court, declaring that its commercial auto and general liability carrier, Zurich, had a duty to defend it with respect to those claims. Zurich denied any obligation to On-Target, and this lawsuit ensued.
The sparse facts that were established indicate that On-Target was a temporary staffing company that employed individuals who provided services at the worksites of On-Target’s clients. According to each of the four claimant’s underlying complaints, On-Target provided the transportation to and from the worksite in a van owned by one Manuel Perez. The four claimants were in Mr. Perez’s van, returning from a worksite, when, allegedly, Mr. Perez’s negligent operation of the van caused an accident, resulting in their injuries. The claimants further alleged that On-Target was vicariously liable for their injuries resulting from the accident on the basis that it also employed Mr. Perez, and that he was acting within the scope of his employment in driving them from the worksite. Question put to the Court: does Zurich, as On-Target’s commercial auto and commercial liability carrier, have to defend and/or indemnify On-Target in the underlying action?
The insuring agreement of the commercial auto policy issued by Zurich to On-Target provided that Zurich would pay all sums an “insured” legally must pay as damages because of “bodily injury” to which the insurance applies, caused by an “accident” resulting from the ownership, maintenance, or use of a covered “auto.” The Zurich policy further provided two categories of covered autos: (1) hired autos; and (2) non-owned autos.
The policy defined “hired autos” as those autos On-Target leases, hires, rents, or borrows. That definition expressly provided that “hired autos” do not include any auto On-Target leases, hires, rents, or borrows from any of its “employees.” Similarly, the Zurich policy defined “non-owned autos” to mean only those autos that On-Target does not own, lease, hire, rent, or borrow, that are used in connection with On-Target’s business. This definition provided that “non-owned autos” include autos that are owned by On-Target’s employees, but only while used in On-Target’s business, as well as autos that are used by a “staffing services worker” in connection with a client’s business.
The lower court denied On-Target’s motion for summary judgment, holding that Mr. Perez’s van did not meet the policy’s definition of a covered “auto,” and the accident therefore fell outside of the auto policy’s insuring agreement, finding that On-Target hired Perez’s van to transport its employees, the claimants, to and from the worksite, since the initial judge found that Mr. Perez was an “employee” of On-Target.
The Zurich auto policy also included an exclusion for bodily injury to an “employee” of the insured arising out of and in the course of employment of the insured, or performing duties related to the conduct of the insured’s business. The policy’s definition of the term “employee” provided that the term includes a “leased worker,” separately defined as “a person leased to On-Target by a labor leasing firm under an agreement between On-Target and the labor leasing firm to perform duties related to the conduct of On-Target’s business. Also provided within this definition was that “temporary workers” were not to be considered “employees,” as that term is separately defined.
The general liability part of the Zurich policy separately provided that Zurich will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury to which the policy applies. However, it contained an exclusion for bodily injury arising out of the ownership, maintenance, use, or entrustment to others of any aircraft, auto, or watercraft owned or operated by or rented or loaned to any insured. That exclusion provided that it applied even if the claims against the insured allege that the insured was negligent in the supervision, hiring, employment, training, or monitoring of others, provided that the occurrence causing the bodily injury involved the ownership, maintenance, use, or entrustment to others of any aircraft, auto, or watercraft that is owned or operated by or rented or loaned to any insured.
The lower court held that there was no coverage under the Zurich policy under the CGL policy under this exclusion, reasoning that because Mr. Perez was an On-Target employee performing duties within the scope of his employment, or duties related to the conduct of On-Target’s business when the accident occurred, Perez was within the definition of “insured,” and thus, the loss was subject to this exclusion.
It is worth mentioning that, in reaching its finding that Mr. Perez was in fact an “employee” of On-Target, the lower court pointed to a finding it made in connection with a completely separate set of motions which concerned the claimants’ entitlement to workers’ compensation benefits from On-Target. This finding, important to the coverage analysis on all policy provisions discussed above, is what was at the crux of this appeal. The appellate court began its analysis by noting that the lower court’s finding in the affirmative in response to this question was based on the findings of the court in connection with a separate motion in the underlying action concerning the claimant’s claims for workers’ compensation benefits. As the appellate court noted, because this separate summary judgment motion was between different parties, involved the determination of different legal issues, was based on different summary judgment records, and because the initial judge’s order denying On-Target’s motion was not final, the court hearing the present summary judgment motions was not bound by the finding that Mr. Perez was an “employee.”
Aside from this prior ruling, no other evidence was proffered by either side in support of whether or not Mr. Perez was an employee of On-Target. This, the appellate court ruled, prevented it from deciding either motion, leaving it with no choice but to deny both, and remand the entire case back to the lower court for further proceedings.
O’SHEA RIDES THE CIRCUITS
Ryan P. O’Shea
[email protected]
01/04/24 Artisan & Truckers Cas. Co. v. Burlington Ins. Co.
United States Courts of Appeals, Seventh Circuit
Commercial Auto Policy’s Declarations Page Does Not Extend Liability Coverage to Permanently Attached Equipment
Cruse and Duckworth worked at a construction site installing roof trusses. Those trusses were lifted into place by a crane permanently attached to a truck owned by Southern Truss. A company named Forrest operated the crane. When Cruse and Duckworth were on ladders securing the trusses, the crane operator prematurely released tension on a truss, which then fell on the other trusses and caused their collapse. Cruse and Duckworth were injured in the accident and brought state suits for bodily injuries against both Southern Truss and Forrest.
Southern Truss had a commercial auto policy with Artisan and a general liability policy with Burlington. The Artisan policy contained an operations exclusion for injuries when (i) the injury arises out of the operation of equipment attached to a land vehicle, and (ii) the land vehicle is used primarily to provide mobility to a permanently attached power crane (the operation exclusion). Both Artisan and Burlington denied the duties to defend and indemnify.
Artisan filed a declaratory judgment action in district court seeking a declaration that it owed no duty to defend, and that Burlington instead had the obligation to defend Artisan in the state actions. Both Burlington and Artisan moved for judgment on the pleadings. The district court denied both motions. That court found that the Artisan policy’s declarations page conflicted with the policy’s operation exclusion, thereby creating an ambiguity, and Burlington’s owed a duty to defend some claims in the underlying actions not covered by the Artisan policy. Both Artisan and Burlington appealed.
The Seventh Circuit reversed and granted judgment in favor of Artisan. Artisan argued that the state actions alleged the negligent operation of a crane attached to the truck, which triggers the operations exclusion. Burlington argued that the ambiguity found by the district court trumped the exclusion. Specifically, the Artisan policy’s declarations page identified the insured auto as a 2007 International 760 truck with permanently attached equipment. Thus, Burlington argued the crane was contained within the declarations page and covered under the Artisan policy.
The Circuit Court rejected this argument. It found there was no ambiguity because the declarations page noted that it would pay a maximum amount of $70,000 for the vehicle including the attached equipment if the truck was a total loss. The court reasoned that nowhere in the declarations page does it say the policy will cover bodily injuries involving the operation of the crane. Therefore, because Cruse and Duckworth’s injuries arose out of a crane permanently attached to the Southern Truss truck, the operations exclusion applied. Burlington did not raise any issue as to whether that the truck’s primary purpose was to provide mobility to the crane. In granting judgment to Artisan, it also affirmed that part of the district court’s order declaring that Burling owed a duty to defend.
LOUTTIT’S LEGISLATIVE AND REGULATORY ROUNDUP
Robert P. Louttit
[email protected]
Nothing to Report this Issue. See You in Two Weeks
ROB REACHES THE THRESHOLD
Robert J. Caggiano
[email protected]
01/11/24 De Diaz v. Klausner
Appellate Division, First Department
First Department Examines and Affirms, in Most Part, a Decision Denying Summary Judgment for a Defendant where Plaintiff’s Evidence Presented Raised Triable Issues of Fact on Whether She Suffered Serious Injuries Under Numerous Categories of Insurance Law § 5102(d)
Defendant appealed from an Order of Supreme Court, Bronx County, which denied Defendant’s motion for summary judgment dismissing the complaint on the ground that Plaintiff did not meet the serious injury threshold of Insurance Law § 5102(d). On review, the First Department, unanimously modified to the extent that Plaintiff’s claim for a left hip injury was dismissed – otherwise the decision was affirmed.
By way of background, this matter stems from a motor vehicle accident/pedestrian type accident, where Defendant Ronald B. Klausner’s vehicle struck the Plaintiff, Evelin Aguilera De Diaz, while she was crossing the street. As a result of this accident, Plaintiff asserted significant and permanent consequential limitation of use to her right shoulder and cervical spine. She also alleged significant disfigurement due to post-surgical scars on her right shoulder. Lastly, she claimed her injuries qualified under the “90/180” category of Insurance Law § 5102(d).
On review, the First Department started its analysis with the significant or permanent consequential limitation of use claims. Initially, Defendant did successfully meet his prima facie burden by submitted medial evidence that Plaintiff’s claimed injuries to her neck and right shoulder were degenerative in nature and not causally related to the accident. However, Plaintiff raised a triable issue of fact through objective evidence via MRI imaging, along with findings from her treating physician showing range of motion limitation shortly after the accident. Further, her doctors adequately addressed Defendant’s evidence that the injuries were degenerative, by providing an equally plausible theory of causation related to the accident. However, on review, none of Plaintiff’s experts adequately explained why her claimed left hip injury was related to the injury, rather than from a preexisting congenital condition, and thus the First Department was compelled to dismiss that specific injury claim.
Notably, Plaintiff also alleged injuries to her lumbar spine and left shoulder – but conceded during litigation that these injuries did not meet the § 5102(d) threshold. Regardless, the First Department stated that “if a jury determines that plaintiff has met the threshold for serious injury, it may award damages for all of her injuries causally related to the accident, even those that do not meet the serious injury threshold.”
Lastly, the First Department found Defendant failed to meet his burden for summary judgment on both Plaintiff’s claims for “significant disfigurement” and the “90/180” category. Specifically, regarding the disfigurement category claim, Defendant’s experts failed to note whether Plaintiff’s right shoulder post-surgical scars were well-healed or otherwise “unobjectionable.” As for the “90/180” claim, Plaintiff’s bill of particulars alleges she was confined to her home since the date of the accident, and Defendant failed to submit medical evidence contradicting her claimed disability during that period.
The Decision of the Supreme Court, Bronx County, was unanimously modified to dismiss Plaintiff’s claim for a left hip injury, and was otherwise affirmed, without costs.
GOLDBERG’S GOLDEN NUGGETS
Joshua M. Goldberg
[email protected]
01/16/24 Matter of Lam Quan, MD, PC v GEICO Gen. Ins. Co.
Appellate Division of the Supreme Court, First Department
First Department Continues to Hold Arbitrators and Master Arbitrators Cannot Issue Awards that Result in Payments Over Policy Limits
This Article 75 Proceeding concerns a challenge to an award that dismissed Petitioner’s claim to recover No-Fault Benefits from GEICO based upon a showing that the policy limits for No-Fault Benefits had been exhausted. The lower arbitrator adopted the reasoning of Harmonic Physical Therapy v. Praetorian Ins. Co., 47 Misc. 3d 137(A) (App. Term. 1st Dept. 2015), that a carrier is not precluded from paying a verified bill received subsequent to an earlier bill had been denied. The award was affirmed by a master arbitrator. Petitioner then filed this petition to vacate the awards of the lower and master arbitrators. Judge Arlene Bluth of the Supreme Court denied the petition to vacate the award, holding that Petitioner has failed to establish that one of the very limited grounds available under Article 75 were satisfied. Judge Bluth noted that errors in applying substantive law are not a basis upon which a petition to vacate could be granted.
The Appellate Division affirmed the denial of the petition finding that the arbitrator’s decision which case law precedent to follow was not sufficient grounds to warrant reversal. The Court reaffirmed its own precedent that “in awarding a claim after a policy has been exhausted, an arbitrator exceeded his or her power since an insurer’s duties case upon the insurer’s payment of the contractual limit on its no-fault policy.”
Note: The Petitioner raised the argument that the carrier failed to establish it complied with the Priority of Payment rules in exhausting a policy (11 NYCRR 65-3.15) before Judge Bluth and the Appellate Division. Judge Bluth merely acknowledged the argument, and the Appellate Division did not address it at all, which is notable.
01/17/24 Onolfo v County of Nassau
Appellate Division of the Supreme Court, Second Department
Lack of Written Notice Dooms Plaintiff’s Case Against County
This action involves a plaintiff who was allegedly injured when she stepped into a pothole on a roadway in the Village of Lynbrook, located in Nassau County. The Couty moved to dismiss the suit on the grounds that it had no prior written notice. The Supreme Court granted the County’s motion and the plaintiff appealed to the Appellate Division, which affirmed the decision. The Appellate Division ruled that where a local government has enacted a prior written notice law (as the County of Nassau did), then generally the local government cannot be held liable for a defect without that prior written notice requirement being satisfied. An act by the County to create the defect or hazard or that a special use conferred a benefit on the local government are grounds the prior written notice requirement could be dispersed. The Court found that no such exemption from the requirement had been established.
01/10/24 Salama v Piccirillo
Appellate Division of the Supreme Court, Second Department
Right Turn from Center Lane Across Traffic – Good Luck Everybody!
In this lawsuit to recover for personal injuries sustained in an automobile accident, Defendant Piccirillo moved for summary judgment dismissing the action as asserted against her. The Plaintiff was a passenger in a vehicle operated by co-defendant Randa Soryal. The accident occurred as both vehicles were facing south bound on a road that had two southbound lanes and a left turning lane. Defendant Soryal was stopped in the left-hand turning lane and Defendant Piccirillo was driving southbound in the left-hand lane of the two that proceeded straight through the intersection. Defendant Soryal then attempted to turn right, cutting across the two southbound lanes, and in the process of doing so, her vehicle came into contact with the Piccirillo vehicle.
Piccirillo’s summary judgment motion was granted and now Plaintiff appeals. The Appellate Division affirmed the decision to grant summary judgment. The Appellate Division acknowledged that the proximate cause of an accident, which could be many, is usually determined by a trier of fact. Here however, the Court found that Soryal’s vehicle was in a left-hand only turn lane, with Piccirillo proceeding straight, with the right of way to her lane, that Soryal’s sudden turn across Piccirillo’s lane, was the sole proximate cause of the action. Soryal, as the Court noted, had stated that she “did not see” the Piccirillo vehicle before cutting across lanes. Defensive Driving has its limits.
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
Associate – Pending Admission (in less than a week)
[email protected]
01/05/24 Consolidated Edison Co. of N.Y., Inc. v. Ace Am Ins. Co.
New York State Supreme Court, County of New YorkInsurer Must Read the Allegations in the Complaint in Conjunction with the Third-Party Complaint to Determine Whether Coverage is Triggered for an Additional Insured
A subcontractor’s laborer filed a lawsuit against a contractor, alleging the contractor’s negligence caused his serious bodily injuries. The underlying action alleged that the contractor was negligent in failing to mark power equipment at the worksite; as a result, he was severely injured during his employment with Waterworks. The contractor, Consolidated Edison Company (“ConEd”), filed a third-party complaint against Waterworks, the subcontractor. ConEd alleged that Waterworks and Waterworks’ laborer were negligent. Additionally, ConEd alleged that Waterworks was required to indemnify them.
In this current action, ConEd is seeking a judicial declaration that they are entitled to a defense and indemnification under an insurance policy issued by Ace American Insurance Company (“Ace”). ConEd moved for partial summary judgment, seeking an order that Ace is obligated to defend ConEd in the underlying action.
By way of background, ConEd subcontracted with Waterworks, in a valid written agreement. The contract required Waterworks to name ConEd as an additional insured on Waterworks’ insurance policies. Following the execution of the contract, Waterworks added ConEd as an additional insured on its policy issued by Ace. The additional insured endorsement in the Ace policy provided that additional insured status is only provided when the bodily injury was “caused, in whole or in part, by: (1) Your acts or omissions; or (2) The acts or omissions of those acting on your behalf, in the performance of your ongoing operations for the additional insured.”
ConEd argues that there is a reasonable possibility that Waterworks’ negligence was the proximate cause of the laborer’s injuries. In opposition to the motion for summary judgment, Ace argues that the allegations in the complaint, and certain extrinsic evidence, establish that ConEd was solely at fault for injuries in the underlying action. Ace points only to the allegations in the complaint, and states that Waterworks has not been negligent based on these allegations alone.
In New York State, the duty to defend arises whenever the allegations in the complaint, construed liberally, suggest a reasonable possibility of coverage, or where the insurer has actual knowledge of facts establishing such a reasonable possibility. City of New York v Wausau Underwriters Ins. Co., 145 AD3d 614, 617.
The court begins their discussion by pointing to the additional insured policy language, discussing that ConEd is only an additional insured in relation to bodily injury, caused, in whole or in part, by Waterworks’ acts or omissions or the acts or omissions of those acting on its behalf in the performance of its ongoing operations for ConEd. The policy language requires Ace to provide a defense to ConEd only where a reasonable possibility exists that the damages in the underlying action are the result of Waterworks’ negligence or some other act or omission by Waterworks. Hanover Ins. Co. v Philadelphia Indent. Ins. Co., 159 AD3d 587,588 [1st Dept 2018].
The court discussed that a reasonable possibility exists that Waterworks was negligent. The court stated that the allegations in the complaint must be read in conjunction with the third-party complaint to establish whether coverage exists. Here, the third-party complaint alleged that Waterworks and Waterworks’ laborer were negligent while carrying out operations for ConEd.
Additionally, the court discussed that the extrinsic evidence Ace submitted did not alter their decision, because even when extrinsic facts suggest that the claim may be meritless or outside of coverage, the insurer cannot avoid its commitment to provide a defense, simply because there are debatable theories. Fitzpatrick v American Hondo Motor Co., Inc., 78 NY2d 61, 66 [1991]).
In the end, the court declared that Ace is obligated to defend ConEd in the underlying action. Additionally, the court ordered that ConEd be reimbursed for their defense costs and the reasonableness of the attorney’s fees is to be determined by a Judicial Hearing Officer or Special Referee.
Editor’s Note: This is another example of the misery created by the Indian Harbor decision which allows a party to plead itself into coverage. Indian Harbor Ins. Co. v. Alma Tower, LLC, 165 A.D.3d 549 (2018). This issue has not yet reached the Court of Appeals, and we continue to resist accepting it as the final word on the subject.
NORTH of the BORDER
Heather A. Sanderson
Sanderson Law
Calgary, Alberta
[email protected]
Canadian Wildfire Emergency is Not Over: Zombie Fires May Resurrect in the Spring
As the Canadian courts remain quiet from the Christmas / New Year’s break, I thought I would report on the status of the Canadian wildfires that burned an area 1.5 times the size of Ireland in the late spring and summer of 2023. The wildland fire fighting contracts have ended which means that the firefighting effort has ended but that does not mean that the fires are out. Fires are still smouldering deep in the muskeg (akin to peat) amongst the tree roots in northern British Columbia, Alberta, Saskatchewan, and Quebec.
As reported in the Globe & Mail:
Along the snowbanks flanking the highways and main roads in and out of towns in British Columbia’s northeast, plumes of smoke rise out of the ground.
Sonja Leverkus, a wildland firefighter crew leader who lives in Fort Nelson, B.C., said the smoke emanating from underground fires left over from last summer’s unprecedented wildfire season sometimes pushes out of the ground with such force it looks like a geyser.
These fires are called “zombie” fires. Despite record cold temperatures reaching into the -40’sC, there are 105 such fires on The British Columbia Wildfire Service Map. There are 60 in Alberta. The concern is that dry, hot weather in the spring could cause these zombie fires at the perimeter of burned landscape from a 2023 fire to come to life, triggering another disastrous fire season. This can be averted if the remainder of the winter sees above normal snow and rain. At the moment, it is snowing heavily throughout British Columbia and Alberta. Quebec has had some major snowfalls. Praying for snow takes on a different connotation this year.
The Insurance Bureau of Canada’s 2023 Annual Report states:
that taken together, the McDougall Creek wildfire in the Okanagan … [in British Columbia] …and the Bush Creek East fire in the Shuswap region … [of British Columbia] … are now the 10th worst natural disaster for insurance payouts on record in Canada.
While the destructive wildfires that blazed through B.C. caused the most insured damage of any extreme weather event in Canada last year, the list of 2023's costliest weather events include everything from ice storms to flooding:
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Okanagan and Shuswap area wildfires, Aug. 15–Sept. 25: $720 million.
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Severe summer storms in Ontario, July 20–Aug. 25: $340 million.
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Spring ice storm in Ontario and Quebec, April 5–6: $330 million.
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Summer storms in the Prairies, June 18–July 26: $300 million.
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Nova Scotia flooding, July 23: $170 million.
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Tantallon, Nova Scotia, wildfire, May 28–June 4: $165 million.
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Winnipeg hailstorm, Aug. 24: $140 million.
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Atlantic Canada cold snap, Feb. 3–5: $120 million.
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Behchokǫ̀-Yellowknife and Hay River, NWT, wildfires, Aug. 13–Sept. 16: $60 million.
But those are Canadian dollars.
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