Coverage Pointers - Volume XXVII No. 11

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, New Jersey, 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.   We have lots and lots and lots of news today, along with our newsletter, attached.  Stick with us here.

Greetings from NYC where I’m attending the FDCC Insurance Industry Institute.  On Thursday, I was pleased to moderate a panel on Responding to Catastrophic Events, along with Jon Held from J.S. Held and Anthony Diadato from AM Best Rating Services.  Great to see so many friends and Coverage Pointers subscribers. Our managing partner, Jody Briandi, is on the stage on Friday afternoon on the topic of Succession Planning and Retention of Institutional Knowledge for the Insurance Industry and Defense Bar. On the left  here’s a snapshot of your editor and Jody on the left and our Canadian correspondent,  Heather Sanderson, K.C., of the right.  The other picture is our panel:

 

               

Looking for solid continuing education or continuing legal education programming.  We are delighted to offer you registration at:

 

COVERAGE POINTERS UNIVERSITY

Under the Deanship of Ryan P. Maxwell, Esq.

 

REGISTRATION IS NOW OPEN FOR OUR FIRST COURSE OFFERING

Threshold Questions
Property Insurance Primer – What Every Claims Professional Needs to Know

200 registered – limited to first 500 registrants

[Course Description Below]

 

November 20, 2025, 1:00 PM Eastern, 12:00 PM Central

 

Register Here

 

When Coverage Pointers first launched back in 1999—before the internet had even reached “school-age”—our goal was simple: to bring you timely and thoughtful updates on insurance coverage decisions from across New York and, eventually, across the country. For more than 27 years, every second Friday, you’ve joined us on that journey. Now, we’re excited to take the next step together.

Hurwitz Fine is proud to announce the launch of Coverage Pointers University (CPU) — a new educational initiative designed to deliver practical, engaging insurance-law programming on the third Thursday of every month.

Taught by our own experienced Hurwitz Fine faculty, CPU features four Colleges — Property, CGL, SIU/Fraud, and Coverage Litigation — each focused on providing actionable insights, updates, and training for today’s insurance professionals.

Our first course:

•    College of Property and First Party

 

PPI 101 – Threshold Questions : What Every Claim Professional Needs to Know

Hurwitz Fine faculty member, Steve Peiper, will present on key rights, duties, and obligations between insurers and insureds, and learn how the involvement of a mortgagee can further complicate those relationships. The program includes but is not limited to covering fundamental topics such as:

• Service of a Proof of Loss
• Role of the public adjuster
• Priority of mortgagee claims
• Insurable Interests
• Examinations under oath and document production
• Suit limitation issues

Whether you’re new to property claims or a seasoned handler looking for a solid refresher, this session will provide valuable insights into the core principles that shape property insurance today.

 

Watch for this course offering, for next month:

• College of Casualty Coverage

Transportation Department

TLI 401 – Keep Truckin'! Motor Carrier Liability Insurance and the MCS-90

[Registration opening soon]

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Hurwitz Fine, P.C. to Receive Pillar of Partnership Award

NYIA is proud to present Hurwitz Fine, P.C. with the first-ever Pillar of Partnership Award. This award is granted in recognition of the firm’s outstanding contributions to the association and the insurance industry. Hurwitz Fine, P.C., a member of NYIA since 2009, has consistently exemplified collaboration by providing both insights on issues and support of association initiatives, through their frequent partnership with NYIA. You can join the association in honoring Hurwitz Fine, P.C. at this year’s Annual Meeting.

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Hurwitz Fine P.C. Ranked as a Tier One Law Firm in 11 Practice Areas in the 2026 Edition of Best Law Firms in the United States

Best Lawyers has announced the release of the 2026 Best Law Firms^® in the United States rankings. Hurwitz Fine is proud to have Buffalo Metropolitan Tier One rankings in 11 practice areas. Tier One practice areas include:

• Commercial Litigation
• Corporate Law
• Elder Law
• Insurance Law
• Litigation – Health Care
• Litigation – Insurance
• Litigation – Municipal
• Personal Injury Litigation – Defendants
• Real Estate Law
• Tax Law
• Trusts and Estates

 

Hurwitz Fine also received Tier Two honors in:

• Employment Law – Management
• Health Care Law
• Litigation – Labor and Employment
• Mediation
• Medical Malpractice Law – Defendants
• Product Liability Litigation – Defendants

In addition, Hurwitz Fine's Long Island office received Tier Two recognition in Insurance Law.

Best Law Firms rankings honor firms that have consistently demonstrated excellence in legal expertise and industry knowledge. Each firm included has been rigorously evaluated based on client feedback, peer recommendations, leadership interviews, and the depth of their practice. The result is a comprehensive guide for businesses and individuals seeking top-tier legal counsel in the United States.

The 2026 Best Law Firms rankings indicate a collaborative effort spanning the U.S., with thousands of firms, clients and leaders providing input. Over 18,700 firms participated in the survey process, with 4,900 submitting responses. Feedback also came from 27,000 lawyers and over 110,800 client submissions, demonstrating broad engagement within the profession. The research incorporated 26 million evaluations, covering 129,000 lawyers and 24,000 firms, along with 16,401 client comments.

The 2026 Best Law Firms rankings can be accessed here.

 

About Best Law Firms

Established in 2009, Best Law Firms relies on industry-vetted research methodology, analyzing the incoming feedback of clients, lawyers and firm leaders, along with firmographic details supplied by the firms themselves. Firms are eligible for Best Law Firms consideration after receiving individual professional recognition in The Best Lawyers in America®.

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LinkedIn

For those who need to keep up to date on insurance coverage between issues of Coverage Pointers, we’re happy to help.  Just follow me on LinkedIn and we’ll keep you up to date. I’m easy to find – my linked in name is (ready for this unusual and unexpected name):  Kohane and you can find me here:   https://www.linkedin.com/in/kohane/

 

Need a Mediator or Arbitrator, Give a Call:

A growing percentage of my practice has been a mediator (and sometimes as an arbitrator) in insurance coverage, commercial, personal injury, and other disputes.  With a robust national client base, I am regularly called on by friends and colleagues from around the country, folks who know me and trust me, to help resolve disputes.  Often, particularly in mediated matters, I know the insurers and lawyers on both (or several) sides of the dispute.  Since they all trust me as a fair dealer, they feel comfortable having me try to help close the file (and avoid precedent).  Just pick up the phone, 716.849.8942 or send an email to [email protected]  and I’ll try to help.

 

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:

• 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.

 

• 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.

 

• 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.

 

• 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.

 

Dress Codes for School Girls – 100 Years Ago:

The Buffalo Times
Buffalo, New York
7 Nov 1925

MIDDY DRESS
IS NOT FOR
BUFFALO

Local Mothers’ Verdict Is
Decidedly Against
Latest New York Proposal.

Miss Louise Samuel of School No. 16 on Delaware Avenue, posed for this picture, showing the kind of uniform mothers in New York City want for their daughters.

No more envy because Mary has a nicer dress or always wears colored beads, is their argument. Every girl dressed in middy, skirt, and tie would be a more democratic classroom.

But Buffalo mothers disagree, offering good reasons for clinging to the present mode of dress for the schoolgirl.

Mrs. Lillie Downs of No. 435 West Ferry Street, whose daughter Margaret is in the sixth grade of school no. 45, thinks it is harder to clothe a girl in one kind of dress throughout the year than using everything.

“It is much more economical to be able to wear any sort of dress, for then the clothes of older sister can be handed down,” said Mrs. Downs. “No. I don’t approve at all for I like to see a change.” Said Mrs. A. Angert of No. 574 Broadway.

A middy and skirt are very pretty in spring and summer, but cold winter weather necessitates warmer clothing, was her verdict.

“When I was a girl I was delighted beyond words when I had a new dress to wear to school,” declared Mrs. J. Dinkle of No. 166 Ashland Avenue who has five daughters going to school.

Middies are all right for gym, but in the classroom a girl should have the right to wear whatever she pleases is the opinion of Buffalo mothers who were questioned.

 

Peiper on Property (and Potpourri):

Welcome back.  A word, or two, this week, if I may on mediation.  Because of our role as counsel to the insurer, we are often seen as the impediment to resolution.  And, candidly, at times where significant coverage disputes are at issue, we can, in fact, be just that…an impediment to clean resolution of tort issues.  However, more often than not, looking at coverage counsel as a bridge burner, instead of a bridge builder, is self-defeating and short sighted. 

Mediation is meant, at least in one writer’s humble opinion, to identify risks and, hopefully, quantify those risks in the form of a monetary offer.  Addressing things like priority of coverage and the interplay of indemnity vs. additional insured status are important pieces of the overall risk puzzle. So, we beseech you, embrace your coverage counsel as part of mediation.  Understand the full risk, and all avenues of risk transfer, and work collaboratively toward building consensus.  The hurdle that you think counsel is creating may, in fact, be the bypass around a thorny tort issue that gets all parties to resolution faster. 

Enough soap box talk.  We also take a moment to recognize the overwhelmingly positive response to our newest initiative, Coverage Pointers University.  We are humbled by the responses and rate of signups which are rumored to be in excess of 200 for our first class on November 20^th.  We will do our very best to give you timely, helpful updates/training, and our honored that you are willing to invest your time into this effort.  Thank you, thank you, thank you from all of us at CP.  We’re looking forward to great set of programing over the coming twelve months.

Finally, November 7^th is National Fountain Pen Day.  To my dear friend and former colleague, today is your day Audrey. 

That’s it for this week.  See you in two more. 

Steve
Steven E. Peiper
[email protected]

 

Who Can Argue? – 100 Years Ago:

The Buffalo Times
Buffalo, New York
7 Nov 1925

Discover Bad
Eyesight Makes
Cranky Children

NEW YORK, Nov. 7. – Bad Eyesight can make “cranky” children. Dr. I. H. Goldberger, assistant director of educational hygiene for the New York City Board of Education, said today in a report on tests conducted this week which showed that approximately 25 per cent. of more than 1,000,000 school children in this city suffered from defective vision.

The tests were conducted under the auspices of the Eyesight Conservation Council of America, which is conducting a nationwide campaign for better vision in education and industry.

“Crankiness and irritability” often are caused by eyestrain resulting from defective vision, D. Goldberger said.

 

Lee’s Connecticut Chronicles:

Dear Nutmeggers:

Another two weeks have gone by in the blink of an eye. I’m still trying to catch up on lost sleep following an 18-inning World Series game—and it didn’t even involve my Yankees. What a great series, full of drama, twists and turns, comebacks, and great performances with unlikely heroes. It’s just like one of our lawsuits. Baseball and litigation share a surprising amount of DNA: both are contests of skill, patience, and psychology, where success depends as much on preparation and judgment as on raw talent. Each pitch is like every question on cross-examination – a small battle shaping the story of the final outcome. And not unlike baseball, in litigation you can do everything right and still wind up on the losing side. A case can fall flat with the wrong jury, a bad bounce in discovery, an unfavorable ruling, an underperforming star witness. But when winter recedes into spring there’s always next year and the next case.

Until next time, keep keeping safe.

Lee
Lee S. Siegel
[email protected]

 

Child Decides His Own Custody Arrangement – 100 Years Ago:

Buffalo Courier Express
Buffalo, New York
7 Nov 1925

CHILD OF SEVEN
HIS OWN JUDGE
GOES TO MOTHER

Chicago, Nov. 6 (Special). - Judge Jerry Krejck; aged seven, handing down his opinion from his bench on the knee of Judge Sabath, today decided that his mother could have him. Edward J. Krejci, who is wealthy, and Rose, his wife, separated some time ago and since then have been engaged in a court contest for custody of the boy. The father contended that the mother was unfit to have charge of her son, but Judge Sabath, patiently and skillfully, brought out the boy's own testimony, which was entirely favorable to the mother. Then he officially put him on the bench and told him to decide which parent should have him. "Mama can have me." ruled the tiny, mother magistrate, swooned with whereupon joy.

 

Ruffner’s Road Review:

Dear Readers,

It was great to see an exciting seven-game World Series this year, even though I was definitely pulling for the Blue Jays over the Dodgers (as I am sure most baseball fans were). In Buffalo sports news, of course more importantly, the Bills are back on track after our annual regular season win over the Chiefs, and the Sabres continue to pile up overtime losses . . .  taking it one point at a time!

In the first case this week, the medical provider brought a CPLR Article 75 petition to vacate the master arbitration award, which dismissed the claim on the basis that New York was not the proper forum. The court upheld the award, as the parties resided in New Jersey, the medical care was provided in New Jersey, and the insurance contract was made in New Jersey. Therefore, the petitioner failed to establish ground for vacating the award by clear and convincing evidence. In the next case, the court upheld summary judgment against the medical provider defendants based on the claimant’s breach of condition precedent to coverage in failing to sign an examination under oath transcript. Notably, the court stressed that the Thrasher cooperation standard in liability coverage cases, requiring willful and avowed obstruction, did not apply to a first party no-fault claim, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage.

Until next time,

Kyle
Kyle A. Ruffner
[email protected]

 

Using Children to Sell Drugs – 100 Years Ago:

The Buffalo Times
Buffalo, New York
7 Nov 1925

BOY SOLD DOPE
Modern Version of Oliver
Twist Revealed.

NEW YORK, Nov. 7. – Modern version of Oliver Twist was brought to light when police arrested Julius Gershowitz, a twelve-year-old schoolboy, for selling cocaine.

Julius told the police, they said, that he met a man a week ago who promised to make him rich. All he had to do was to meet several men customers every night and a woman customer every other night and deliver a small phial of cocaine, collecting two dollars. In return for this service the modern “Fagin” bought Julius good meals, took him to east side theaters and bought him a new suit.

The child was turned over to the children’s society. The police confiscated four phials of cocaine which the child had concealed under a lower east side stairway. The boy’s mentor in crime was not arrested.

 

Ryan’s Federal Reporter:

Hello Loyal Coverage Pointers Subscribers!

Well, it wasn’t our year, Jays’ fans. But it was quite a run!

This edition, my column tackles a Second Circuit decision concerning coverage for oil confiscated during an insurrection in Venezuela. What exactually is an insurrection? And why does that question sound so familiar? Inquiring minds need to know.

Until next time…

Ryan
Ryan P. Maxwell
[email protected]

 

No Tariffs? – 100 Years Ago:

The Buffalo News
Buffalo, New York
7 Nov 1925

CANADIAN POTATOES FOW
INTO U.S. FROM ONTARIO

TORONTO, Nov. 6. – Ten million bags of Canadian potatoes have been bought up in the province of Ontario and shipped direct to the United States to help alleviate the situation there. Canadian potato dealers claim they are unable to compete with the persistent offers of the American shippers who have representatives talking business direct to the farmers.

In one day, 23 carloads of “Murphies” were shipped out of Toronto across the United States border.

In Western Canada on the prairies, in Quebec and in the maritime provinces the same situation exists as in Ontario.

 

Storm’s SIU:

Hi Team:

What an awesome World Series!  Two teams so evenly matched made for an exciting seven games.  Too bad either one had to lose. 

As one favorite sports season comes to an end (Dodgers baseball), another begins (Buffalo Bandits lacrosse).

Three interesting cases for you this edition:

• Claim for Missing Jewelry Survives Motion to Dismiss But New York General Business Law § 349 claim is Dismissed. 
• Water Collecting on Plaintiffs' Terrace Constituted Surface Water Under the Policy Exclusion, Despite Wind (a Covered Peril) Causing Debris to Block the Drain, the Policy's Anti-Concurrent Causation Clause Barred Coverage for the Resulting Water Damage.
• Insured's Allegations of Liability Against Insurer Which Paid an Unauthorized Agent Due to the Fraud of Another Survived the Preliminary Objection Stage. 

Have a great two weeks.

Scott
Scott D. Storm
[email protected]

 

I Guess They Didn't Succeed - Kisses Continue – 100 Years Ago:

The Buffalo Times
Buffalo, New York
7 Nov 1925

Govt. to Exterminate
Mistletoe Plant

WASHINGTON, Nov. 7. – If the Department of Agriculture has its way, kissing opportunities under the Christmas mistletoe will be abolished.

The department doesn’t object to the kissing, but to the mistletoe, which is regarded as a dangerous forest pest. A drive has been started against mistletoe in the national forests and within ten years the department hopes to exterminate the plant.

 

Fleming’s Finest:

Hi Coverage Pointers Subscribers:

Hope you had a good Halloween! There is one pumpkin that we did not carve, but it will be perfect for some pumpkin soup. Now that it is November, I am looking forward to doing a turkey trot and eating Thanksgiving food.

In this week’s case, the Indiana Supreme Court considered how to handle the issue of an insurer facing many potential claims against an insufficient policy. 

See you in a fortnight,

Kate
Katherine A. Fleming
[email protected]

 

Little Felon Runs Away – 100 Years Ago:

The Buffalo News
Buffalo, New York
7 Nov 1925

Little Girl Found, Afraid to
Go Home After Taking Dim

Bought Cream Puff and Bread With Money, and Lived
In Leaves Under House.

Afraid to go home because she had taken a dime from her mother’s pocketbook without permission, Rose Majewski, nine years old, 134 Military Road, was found hiding under a vacant house at 148 Military Road, Friday morning. She has been missing from her home since Sunday night.

She left her home Sunday evening to visit a girlfriend who lives in Germain Street. She failed to come home that night and was missing all day Monday. Her parents became worried and reported her disappearance to the police. No trace of the child could be found.

Friday morning her 11-year-old sister, Frances, suggested that a search be made at the vacant house. Rose was found burrowing into a pile of dead leaves for warmth. She said she was afraid to go home. According to the police, she has stayed away from home on previous occasions.

She said she had bought a cream puff and some bread with the dime taken from her mother’s pocketbook. When she was thirsty, she went into the vacant house and got a drink from the faucet in the sink. She did not appear any the worse for her experience except that she was much in need of a washing and clean clothes. 

 

Gestwick’s Garden State Gazette:

Dear Readers:

The Blue Jays were so close. So, so close. As a Blue Jays fan, I would have been happy with a mere playoff berth. At the outset of the season, I did not expect to win the division, much less a World Series appearance. And yet, there we were, toe-to-toe in Game 7 with objectively the best team in the game, and with ample opportunity to win it all. On to next season.

I have two cases for you this week. The first has to do with representations—or misrepresentations—made on an application for homeowners insurance. As it turns out, homeowners insurers want to make sure they’re not insuring vacant buildings. Who knew.

The second is a point of personal disappointment. I argued a case before the New York Appellate Division, Second Department, and the Court did not rule my way. Take a look and see if I’ve convinced you of my position.

Until next time.       

Evan
Evan D. Gestwick
[email protected]

 

World Series – A Century Ago – 100 Years Ago:

Iron County News
Hurley, Wisconsin
7 Nov 1925

World Series In Fact.

The annual October baseball classic, in which the champions of the American and National Leagues engage in a series of games to determine the world's championship, is now a world's series in fact as well as in name.

In every hamlet the radio was tuned in on the games and the crowds of forty or fifty thousand were augmented daily during the series by millions unseen, who got only a mental picture of the play, but nevertheless enjoyed such participation in the contests.

The way the world's series grips the attention of America is a demonstration of a fine spirit among the people - one that recognizes in baseball a healthful, vigorous, typically American sport.

At the end of each season, the comment is always made that the world's series will go the limit so that all the financial profit possible may be realized. This is not the common belief among people who have shown that they have confidence in organized baseball by supporting it.

The results of the series this year very clearly upset the predictions of the critic who believes that greed rules the world's series.

It did appear that Washington, with three games to Pittsburgh's one, was certain to become world's champion for a second time. When Pittsburgh won two straight and evened up the series, those who professed to have superior knowledge winked and said that Washington would win the deciding game and again it would be demonstrated that the world's series was organized for profit and not according to the ideals of true sportsmanship.

But those who ascribed to the managers of organized baseball improper motives did not calculate well, for it is now history how the famous "battle of Pittsburgh" was won by the courageous Pirates.

 

O’Shea Rides the Circuits:

Readers,

This past week I was reminded of my youth as I donned a bowl cut for Halloween. However, I realized I bore a remarkable resemblance to Moe Howard instead of Jim Carey. Nonetheless, others were amused by my costume.

This week I have a summery order from the Second Circuit regarding the application of equitable estoppel. An insurer previously accepted coverage without reservation only to later deny coverage. Due to the discrepancy in the insurer’s coverage position, the court compared the letters to determine the other party’s reliance on the initial coverage position letter.

Until Next Time,

Ryan
Ryan P. O’Shea
[email protected]

 

Why Don’t You Email Her? Oh, Forgot, 100 Years Too Soon – 100 Years Ago:

The Kansas City Post
Kansas City, Missouri
7 Nov 1925

My Dear Miss Fairfax: I have been going with a girl for two years. The other night I had a date with her. She wrote me a note telling me she would not be at home that evening, but she would see me later. I have not yet heard from her. Would it be proper for me to write a note asking for permission to call? – K.C.K.

After two years I think you would know the girl well enough to call without permission even if she was unable to keep a date with you. Why didn’t you call her up next day and express your regret over missing the date? After neglecting her for so long, however, maybe you will need permission to go back again.

 

LaBarbera’s Lower Court Library:

Dear Readers:

All summer I was battling the deer in my neighborhood, attempting to keep them from eating my garden plants and flowers. Weirdly enough – they ignored my neighbors plants and focused only on mine. Once the summer plants began to wither, I thought I was in the clear. However, the deer were resourceful and noticed the pumpkins on my porch instantly. Unfortunately, they ate both of my carving pumpkins before Halloween. In case you were wondering, the deer also ignored all of my neighbors pumpkins, and only snacked on mine…

This week I am reporting on a Westchester County decision, where an automobile repair shop brought an action against State Farm Mutual Automobile Insurance Company alleging breach of contract. After hearing motions, the court found that the plaintiff had properly pleaded a breach of contract claim, not a statutory claim, and denied the defendant’s motion in its entirety. The court also looked toward the evidence submitted, to find that State Farm failed to submit evidence from a person with personal knowledge.

Until next time…

Isabelle
Isabelle H. LaBarbera
[email protected]

 

The Peace Bridge – 100 Years Ago:

The Buffalo News
Buffalo, New York
7 Nov 1925

“Listening In” on Buffalo Business
By WILLIAM GRANT BARNEY

Bethlehem Steel's Contract to Supply the material of the Buffalo-Fort Erie bridge's superstructure practically insures that the steel for this monument to American Canadian amity and neighbor lines will be rolled and fabricated here. It will be remembered that before the merger with Bethlehem company, Lackawanna Steel secured control of the Lackawanna Bridge Co.

There is a sentimental as well as practical satisfaction in the fact that the structural steel work of the Buffalo-Fort Erie bridge will be made in the city which it links with Canada. Obviously every order which the Bethlehem Steel Co. obtains for production at the Lackawanna plant means work for Buffalonians, because, except for a political demarcation, Lackawanna is essentially a part of this city.

But apart from all economic aspects, and apart from the utilitarian advantages of the Buffalo-Fort Erie bridge, this particular structure, in the minds of all thinking Buffalo people, has another and wider significance. It was not planned or designed as "Peace Bridge," but all intelligent people here recognize that it does mark in a decided way a century or more, of peaceful relations with our Canadian neighbors and amity between nations under different flags which hardly has a parallel in modern history and which Europe can hardly appreciate.

This is, and has been, a very widely and deeply felt sentiment in Buffalo, and for this reason it is particularly fitting that the material which forms the actual link between Canada's shore and our own should be made and formed in the municipality which conceived and put through the building of the structure.

 

Lexi’s Legislative Lowdown:

Dear Readers,

I am still running off the excitement of watching the New York City Marathon this weekend. It was so incredible to see the professional runners in person, and I was even more pleased to see that my favorite female runner, Helen Obiri, not only won the race, but set the course record by over two minutes.

This week we discuss the repeal of the anti-arson application requirement.

Thanks for reading,

Lexi
Lexi R. Horton
[email protected]

 

His Honor, the Mayor of NYC – 100 Years Ago:

Daily News
New York, New York
7 Nov 1925

WALKER WILL GO
TODAY TO FLORIDA
TO TOY WITH FISH

Politics is adjourned for two weeks as far as Senator James J. Walker, mayor-elect, is concerned, for he leaves for the south today to answer the call of the tarpon and the barracuda sporting in the waters off the Florida coast.

While he is merrily frolicking with the big fish, others of the human variety, who are fighting to get at the patronage bait, will have to stay in the metropolitan political waters until the angler returns.

 

Victoria’s Vision on Bad Faith

Dear Readers,

I hope you had a happy Halloween! We only had one family consisting of three trick-or-treaters come to our house. They were dressed up as light-up stick figures.

We haven't heard much from New York courts on bad faith lately, so this week I am bringing you another case from Pennsylvania. In this case, the Court upheld the trial court's dismissal of the allegation of bad faith against the insurer, stating where there is no coverage under the policy, there cannot be bad faith.

Have a good weekend,

Victoria
Victoria S. Heist
[email protected]

 

His Honor, the Mayor's Namesake – 100 Years Ago:

Buffalo Post
Buffalo, New York
7 Nov 1925

Baby Boy, Born Day
After Election, Is
Named After Mayor

Mayor Frank X. Schwab received a letter this morning from Eugene J. Doherty, 442 Goethe street, stating that a baby boy born the day after election has been named Frank Xavier Doherty, so pleased was the father with the re-election of the mayor.

This is the humanity that the mayor stirs in the breasts of his people!

 

Shim’s Serious Injury Segment

Hi Readers,

Hope you have had a great two weeks since our last column.  Unfortunately, the baseball season has come to an end. Congratulations to the Los Angeles Dodgers, who have repeated as World Series Champions, having won the series 4-3. This is the first time that MLB has had a repeat World Series Champion since the New York Yankees won three consecutive World Series from 1998-2000. The 2025 World Series may prove to have been a key victory for MLB for the looming collective bargaining negotiations – that appear all but certain to result in a lockout and potential delayed start for the 2027 season – in which MLB will heavily pursue the introduction of a salary cap. Dare I say that a Dodgers three-peat is coming? Only time will tell.

In this column, I have shared a case decided in Richmond County Supreme Court. The Court denied defendants’ summary judgment motion on the grounds that plaintiff failed to sustain a serious injury in accordance with the statutory requirements of Insurance Law § 5102(d).

See you in the next issue!

Stephen
Stephen M. Shimshi
[email protected]

 

For the New NYC Mayor, Controversies of 100 Years Ago – 100 Years Ago:

The Buffalo News
Buffalo, New York
7 Nov 1925

Mrs. Walker Votes Approval
Of Bobbed Hair and Skirts

New York’s Mayor-elect and Wife Are Modernists
Husband Has a Heart, She Affirms.

NEW YORK, Nov. 6. – News that Gloria Swanson, queen of the screen, has arrived in New York with a brand new fashion idea – that of letting her bobbed locks grow long again - gave this city’s barbers and flappers quite a shock. Until they turned the pages of their morning newspapers and found out that New York’s new “first lady” was going to keep her hair bobbed. Thereafter, the barbers continued business as usual.

“Bobbed hair,” echoed Mrs. Jimmie Walker, wife of Tammany’s fair-haired boy. “I’ll be a doddering old woman before I let my hair grow long again. I like short skirts, too. They’re so comfortable.”

The problems of short hair and short skirts, however, are only surface indications of an underlying trend in the incoming city administration. Mr. and Mrs. Jimmie Walker are “modernists” all the way through. What they don’t know about the New York of today is scarcely worth knowing. They have seen it all, from the days when the mayor-elect was a song pushed in “Tin Pan Alley.”

And from it all they have evolved a joyous philosophy of life that may not make them overly popular with the grim lipped reformers, but promises to “go over big” with the middle of the road citizen who doesn’t want to see the lid clamped down too tight, but at the same time doesn’t want the old town thrown “wide open” as the “old” days.

Mrs. Walker, who was the original “Phoebe Snow” of one of her husband’s songs, just knows her husband is going to make “a wonderful mayor.”

 

North of the Border:

I feel quite lost … the MLB season, but more particularly, Blue Jays baseball is over. No more thrilling baseball to watch.

At the start of the 2025 season, most experts predicted the Blue Jays would fall short of making the postseason, largely due to underwhelming performances in 2024 and a trade deadline sell-off that saw the team in a semi-rebuild mode. But they made the post season. That pitched them against the Yankees. The experts said that the Yankees would advance. The Blue Jays had other plans. Their offence came to life and bullpen relievers kept the Yankees off-balance.

They were onto the Mariners. This time the experts said it would be a toss-up with slight odds in favour of the Blue Jays, which eroded when the Mariners took an early series lead. But the come-from-behind ball players came to life and took the series with a different set of offence heroes from those of the previous Yankees series. And, with that the Blue Jays, ALCS champions, were facing the venerable LA Dodgers in the World Series.

It was said that the Blue Jays had less than a 40% chance of taking the series. Again, the Blue Jays had other plans. And what a series that was. Dramatic comebacks, the closest of calls, extra-inning thrillers, including an 18-inning game, historic individual performances; and to cap it off, a game seven that went into extra innings with all the drama and tension that implies. Wow. Just wow.

In the end the Blue Jays lost but by the slimmest of margins. In sports, like the court room, a loss is a loss. But the Blue Jays’ three series run to the World Series brought Canada together – in every province Canadians were wearing Blue Jays blue. Despite the loss we are proud of our team.

This week I am heading to New York to attend the FDCC I3. Looking forward to it. My column this week discusses a claims-made professional liability policy and whether it can be construed to be a claims-made and reported policy.

Heather
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]

 

Headlines from this week’s issue, attached:

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

• Two Interesting Issues in This One.  First, a Reminder That if an Employer Believes That the Plaintiff Did Not Sustain a “Grave Injury” Under the Workers’ Compensation Law to Preclude a Claim for Common Law Contribution, It Is the Employer’s Burden to Disprove the Existence of a Grave Injury.  In Addition, the Fact That an AI Carrier Has Denied Coverage Does Not Mean That the Party Which Provided That Policy Failed to Honor Its Promise to Procure
• Anti-Subrogation Motion to Dismiss Denied as Premature, where Carrier was Considering Litigating its Obligations to Provide Coverage

 

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

• No column this week; see you in two.

 

LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]

• Court Rejects Argument That Surface Water Must Have a Natural Source
• Earth Movement Exclusion Bars Coverage for Property Damage

 

RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]

• Petitioner Failed to Establish Grounds for Vacating Arbitration Award by Clear and Convincing Evidence
• Court Affirms Summary Judgment Against Provider Defendants Due to Claimant’s Breach of Condition Precedent to Coverage

 

RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]

• Coverage Found for Claim Involving Seizure of Crude Oil During a Period of Insurrection in Venezuela After Death of Hugo Chávez

 

STORM’S SIU
Scott D. Storm
[email protected]

• Claim for Missing Jewelry Survives Motion to Dismiss but New York General Business Law § 349 Claim Is Dismissed

• Water Collecting on Plaintiffs' Terrace Constituted Surface Water Under the Policy Exclusion, Despite Wind (a Covered Peril) Causing Debris to Block the Drain, the Policy's Anti-Concurrent Causation Clause Barred Coverage for the Resulting Water Damage
• Insured's Allegations of Liability Against Insurer Which Paid an Unauthorized Agent Due to the Fraud of Another Survived the Preliminary Objection Stage 

 

FLEMING’S FINEST
Katherine A. Fleming
[email protected]

• Insurer’s Choice to Reject Settlement Offer and File Interpleader Action When Faced With Multiple Claims and Insufficient Policy Limits Was Not in Breach of Duty of Good Faith and Fair Dealing

 

GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]

• Court Finds That Regular, Habitual Residency Is Required to Show “Customary Occupancy” Under Homeowners Policy
• Appellate Division Finds That Negligence Cause of Action Predicated on Assault Falls Outside of an Assault Exclusion. Thousands Flee

 

O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]

• Equitable Estoppel Invalidates Insurer’s Subsequent Denial of Coverage Due to Lack of Reservation Language in Initial Coverage Position Letter

 

LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]

• Court Denies Motion for Summary Judgment by Insurer Holding Breach of Contract Claim Sounded in the Contract, not Statutory Law
•  

LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]

• Assembly Bill A112 Which Repeals the Anti-Arson Application Was Signed by the Governor on October 16, 2025

 

VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]

• Pennsylvania Court Upholds Bad Faith Dismissal Finding Insured Did Not Establish Bad Faith

 

SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]

• Defendants’ Summary Judgment Motion Denied on Triable Issue of Fact

 

NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]

• The Policy Language Dictates Whether a Claims Made Policy is a Claims-Made and Reported Policy

 

That’s a lot of news.

All the best.

 

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 and New Jersey.

In addition, Dan D. Kohane is a Foreign Legal Consultant, Permit No. 0119144, 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

Ryan P. Maxwell

Kyle A. Ruffner

Katherine A. Fleming

Evan D. Gestwick

Ryan P. O’Shea

Isabelle H. LaBarbera

Lexi R. Horton

Victoria S. Heist

 

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

Michael F. Perley

Scott D. Storm

 

NO-FAULT/UM/SUM TEAM
Dan D. Kohane
[email protected]

Ryan P. O’Shea
[email protected]

Kyle A. Ruffner
[email protected]

 

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

 

Topical Index

Kohane’s Coverage Corner

Peiper on Property and Potpourri
Lee’s Connecticut Chronicles

Ruffner’s Road Review

Ryan’s Federal Reporter

Storm’s SIU

Fleming’s Finest

Gestwick’s Garden State Gazette

O’Shea Rides the Circuits

LaBarbera’s Lower Court Library

Lexi’s Legislative Lowdown

Victoria’s Vision on Bad Faith

Shim’s Serious Injury Segment

North of the Border

 

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

 

10/29/25         Grala v. Structural Preservation Systems, LLC,
Appellate Division, Second Department
Two Interesting Issues in This One.  First, a Reminder That if an Employer Believes That the Plaintiff Did Not Sustain a “Grave Injury” Under the Workers’ Compensation Law to Preclude a Claim for Common Law Contribution, It Is the Employer’s Burden to Disprove the Existence of a Grave Injury.  In Addition, the Fact That an AI Carrier Has Denied Coverage Does Not Mean That the Party Which Provided That Policy Failed to Honor Its Promise to Procure

The plaintiff Grala, an employee of Apex, sued Structural Preservation Systems, LLC (“Structural”), and others, to recover damages for personal injuries, alleging Labor Law and common-law negligence claims when he slipped and fell from a  forklift owned by Structural on premises owned or controlled by the New York City Housing Authority (“NYCHA”).  Apex had contracted with the NYCHA.

Structural commenced a third-party action against Apex for contractual indemnification, for common-law indemnification and alleging breach of contract for failure to procure insurance. Apex interposed counterclaims.

Motion practice ensued.

The Supreme Court properly determined that a general release executed by Apex and Structural did not warrant an award of summary judgment dismissing the third-party complaint. Here, Apex established their prima facie entitlement to judgment as a matter of law by submitting evidence that Apex and Structural entered into a valid general release in which Structural agreed to release and give up any claims it had against Apex, including unknown claims. However, in contrast, Structural raised a triable issue of fact as to whether the parties knew and intended to include in the release claims related to this consolidated action.

As to the claim seeking to dismiss the common law contribution and indemnity claims brought by Structural, those claims could not be maintained unless there was proof that the plaintiff sustained a “grave injury” under Workers' Compensation Law § 11[1], 832). Grave injuries include "permanent and total loss of use . . . of an arm, leg, hand or foot" (Workers' Compensation Law § 11[1]).

Here the employer failed to establish, prima facie, that Grala did not suffer a grave injury within the meaning of Workers' Compensation Law § 11.  The burden of proof is on the employer to prove the absence of a “grave injury”.

Likewise, the claim to dismiss the contractual indemnity claim was also denied. A party that moves for summary judgment dismissing a claim for contractual indemnification must make a prima facie showing that it was not contractually obligated to indemnify the party asserting the indemnification claim. Here, given the express language in the contract, the employer did not make a prima facie showing that Apex was not contractually obligated to indemnify Structural.

However, the motion was granted dismissing the alleged breach of contract for failure to procure insurance against Apex. Summary judgment dismissing the cause of action alleging failure to procure additional insured coverage is warranted where the movant demonstrates that it procured the requisite insurance. The insurers' declination of coverage is not a basis for a finding that Apex breached its obligation to procure insurance.

 

10/28/25         Pacheco v. Georgetown Eleventh Avenue Owners LLC
Appellate Division, First Department
Anti-Subrogation Motion to Dismiss Denied as Premature, Where Carrier Was Considering Litigating Its Obligations to Provide Coverage

Anti-subrogation – who doesn’t love anti-subrogation cases?

Here, the employer, Cauldwell moved to dismiss Georgetown's contractual indemnification cause of action based on the anti-subrogation rule. However, the record includes evidence that the parties' insurer intended to withdraw its agreement to provide a defense and indemnification and take steps to be relieved of its duty to provide a defense, through a separate legal action. Until the issue of coverage is determined, the court found that it would be premature to determine whether the anti-subrogation rule would bar the indemnification claim here.

The court also properly denied Cauldwell's motion to the extent it sought dismissal of Georgetown's cause of action for common-law indemnification. Although Cauldwell presented some evidence that plaintiff may not have suffered a "grave injury" for purposes of Workers Compensation Law § 11, dismissal would have been premature since discovery on the issue of the extent of plaintiff's injury and medical condition was incomplete.

However, the court should have dismissed Georgetown's claim seeking attorneys' fees. To the extent Georgetown seeks fees incurred in defending the primary action, that cause of action is duplicative of the contractual indemnification cause of action. To the extent Georgetown seeks attorneys' fees for prosecuting its causes of action against Cauldwell, Georgetown's contract with Cauldwell did not include a fee-shifting provision and it has identified no statute under which it is entitled to attorneys' fees. Georgetown may not recover attorneys' fees in an affirmative action against Cauldwell to settle its insurance rights under the Mighty Midgets rule.

Interestingly, the First Department dismissed Georgetown's contract cause of action for failure to procure insurance on statute of limitations grounds. Even assuming Georgetown has stated a cause of action, it would have accrued upon the failure to procure the coverage when the obligation to do so first attached case, that obligation to procure insurance attached upon execution of the contract in July 2016, making the cause of action untimely.

 

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

Nothing this issue. See you in two.

 

LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]

10/24/25         Elmwood Auto., LLC v. United Ohio Ins. Co.
United States District Court, District of Connecticut
Court Rejects Argument That Surface Water Must Have a Natural Source

A water main running under Talcott Road in West Hartford broke, causing water to rise to the surface, flow down the road, and damage Elmwood Auto’s property. United Ohio denied the claim, relying on the surface water exclusion. The insured brought suit in state court, alleging breach of contract, bad faith, and violation of CUTPA/CUIPA. The insurer removed to federal court, where bad faith and damages discovery was bifurcated.

The Court considered whether water that rises to the surface and flows to a property as a result of a water main break is considered "surface water" for the purposes of the Exclusion. Plaintiff's primary argument was that the plain and ordinary definition of "surface water" limits the term to include only water from natural resources. In support of this argument, Plaintiff quoted several dictionaries and treatises that it suggested established that "surface water" is water that has accumulated on the surface of the earth due to naturally occurring events such as rain or snow.

The court, however, was not convinced that "surface water" is exclusively the result of naturally occurring water accumulation. The court looked, for example, at the definition supplied by Couch. “Couch on Insurance” provides that "[s]urface water is water diffused over the surface of the land. Any water on the earth's surface, including water from rising groundwater, may be surface water unless or until it forms some more definite body of water." 11 Couch on Insurance § 153:50 (3d ed. 2022).” A Kansas federal court reached the same conclusion. he ordinary meaning of "surface water" in the exclusion is therefore uncontained water on the surface of the earth, whether the source of that water is from a natural, man-made or unknown source. See Corp. Lakes Prop., LLC v. AmGuard Ins. Co., 649 F. Supp. 3d 1143, 1148-49 (D. Kan. 2023).

The court also looked at the policy terms, determining that even if the definitions Plaintiff cited established that surface water arises only from naturally accumulated water, the Policy clearly provides that it is not so limited. The Policy clarifies that the Exclusionary Clause "applies regardless whether [the surface water] is caused by an act of nature or is otherwise caused." The court found compelling that the phrase “otherwise caused” contrasted “acts of nature,” and as a result found that the property damage caused by surface water from the broken main was excluded from coverage.

 

10/30/25         Dalmac Realty LLC v. Scottsdale Ins. Co.
United States District Court, District of Connecticut
Earth Movement Exclusion Bars Coverage for Property Damage

A sudden settling of a building ruptured a water line, causing thousands of gallons of water to spill out, damaging the insured building’s foundation. The building was rendered uninhabitable. The insured incurred $100,000 in repair costs, $10,000 in relocation expenses, and eight months of lost rental income. The carrier denied coverage, relying on the policy’s earth movement exclusion (“rising or shifting including soil conditions which cause settling, cracking or other disarrangement of foundations or other parts of realty”). The lawsuit followed.

Scottsdale’s engineer determined that the loss was caused by the settlement of the building’s brick pier and the movement of the framing “as due to the consolidation of soils under the brick pier. Soil Consolidation is the mechanical process by which soil changes volume gradually in response to change in pressure. Changes in pressure can occur when the soil is saturated typically from groundwater and then the water diffuses away from the area resulting in change in pressure and ultimately shrinkage in volume of the soil.”

The District Court agreed that the Earth Movement Exclusion precluded coverage. “First, there is no genuine dispute of fact as to the cause of the damage to the Building, which the record establishes was soil consolidation,” the court wrote. Having made this finding of fact, there was no coverage under the policy.

Other courts in this district have reached similar conclusions when interpreting earth movement exclusion language nearly identical to that at issue in the instant case. See., e.g., Thurston Foods, Inc. v. Wausau Bus. Ins. Co., No. 3:15-CV-14 (WWE), 2019 U.S. Dist. LEXIS 81189, 2019 WL 2075880, at *2 (D. Conn. Mar. 6, 2019) ("The Earth Movement exclusion language—with its references to 'earth movement,' 'soil conditions' and 'action of water under the ground surface'—indicates that the exclusion applies to conditions concerning [*15]  soil or water action under the 'ground surface.'"). As there is no genuine dispute that soil consolidation caused the subject damage to Plaintiff's property and that the Policy's earth movement provision expressly bars coverage for damage related to this type of event, it is clear that the exclusion applies.

Arguments by the insured that other factors caused the soil consolidation were unavailing because the exclusion contains an anti-concurrent causation provision, rendering any alternative theory or contributing source immaterial.

The court went on to find that Scottsdale’s alternative grounds – the Settling Exclusion – also barred coverage.

Payments by Scottsdale under the policy’s third-party liability coverage to tenants did not act as a concession of property coverage. Those payments, under a separate claim number, served a different purpose. 

 

RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]

10/29/25         In the Matter of Oasis Med. & Surg. Wellness v. N.J. Mfg. Ins. Co.
Appellate Division, Second Department
Petitioner Failed to Establish Grounds for Vacating Arbitration Award by Clear and Convincing Evidence

Petitioner, Oasis Medical, sought payment of no-fault insurance benefits from the respondent insurer for medical services provided to an insured in New Jersey following a motor vehicle accident in New York. After the insurer denied the claim, Oasis commenced an arbitration proceeding in a New York forum, where the arbitrator dismissed the proceeding on the ground that New Jersey was the proper forum for the proceeding. Oasis appealed to a master arbitrator, who affirmed the dismissal, then commenced CPLR article 75 petition to vacate the master arbitration award, which was denied by the Supreme Court.

On appeal, the Appellate court emphasized that judicial review of arbitration awards is extremely limited and a party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence. CPLR 7511(b) enumerates limited grounds upon which an award may be vacated, including, among other things, that the arbitrator exceeded his or her authority, such as issuing an award that violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power.

Here, the court determined that since the parties resided in New Jersey, the medical care was provided in New Jersey, and the insurance contract was made in New Jersey, New Jersey substantive law applied. Therefore, the Medical Provider failed to establish by clear and convincing evidence that no evidence whatever justified the award, which dismissed the proceeding on the basis that New Jersey was the proper forum. The fact that the accident occurred in New York was insufficient by itself to provide the substantial nexus required to warrant the retention of jurisdiction in New York. Further, contrary to the contentions of the provider, the insurer did not waive its right to challenge the forum by making use of a New York State insurance form or by failing to raise the issue in its initial submission to the arbitrator.

 

10/30/25         Hereford Ins. Co. v. 21 Century Chiropractic Care, et al.
Appellate Division, First Department
Court Affirms Summary Judgment Against Provider Defendants Due to Claimant’s Breach of Condition Precedent to Coverage

The medical provider defendants argue on appeal that a failure to sign the transcript from an examination under oath (EUO) is a violation of a condition precedent to contract performance rather than violation of a condition precedent to coverage. However, first, the court noted that the defendants failed to raise this argument before Supreme Court, and the issue was therefore not preserved for their review. Further, the court found the argument was unavailing, as a claimant's failure to subscribe EUO transcripts is a violation of a condition precedent to coverage, voiding the policy ab initio and warranting denial of the claim (citing Kemper Independence Ins. Co. v. Cornerstone Chiropractic, P.C., 185 AD3d 468, 468-469 [1st Dept 2020]; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Likewise, the court held the provider defendants failed to preserve their argument that under the standard articulated in Thrasher v. United States Liab. Ins. Co. (19 NY2d 159, 168 [1967]), this Court must determine whether the claimants' failure to subscribe their EUO transcripts was willful. Even were it preserved, the court held that the defendants failed to differentiate between first party, including no-fault claims, and third party standards for the defense of failure to cooperate. "The doctrine of willfulness, as addressed in Thrasher . . . applies in the context of liability policies, and has no application in the No-Fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage" (Unitrin Advantage Ins. Co., 82 AD3d at 561). This case involves no-fault coverage, and we find no reason to depart from Unitrin Advantage.

Lastly, the court determined that the defendant failed to preserve the argument that the insurer’s subscription demands were untimely. Furthermore, the argument was also unavailing, as an insurer must request any additional verification within 15 business days after receiving prescribed verification forms, pursuant to 11 NYCRR 65-3.5 [a], [b], and Plaintiff timely sent the subscription demands. Depositions for both claimants were noticed for September 20, 2021, and plaintiff made its subscription demands on October 1 and October 7, 2021, therefore, only 9 and 14 business days, respectively, had elapsed. The Provider defendants could not rely on the claimants' submission of their subscribed EUO transcripts in June 2024 to argue that the claimants complied with plaintiff's demand, as an insurer may deny a claim if 120 days pass without a claimant providing the required verification or a valid written excuse (11 NYCRR 65-3.8 [b][3]). Plaintiff requested the subscriptions in October 2021, and years passed before claimants responded.

 

RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]

10/28/25         CITGO Petroleum Corp. v. Ascot Underwriting Ltd., et al.
United States Court of Appeals, Second Circuit
Coverage Found for Claim Involving Seizure of Crude Oil During a Period of Insurrection in Venezuela After Death of Hugo Chávez

This case involves an insurance coverage dispute between CITGO Petroleum Corporation ("CITGO") and a group of reinsurance companies ("Reinsurers"). CITGO had nearly a million barrels of crude oil seized by Venezuelan authorities from a cargo ship under threat of force.

Specifically, political turmoil arose in Venezuela after the death of Hugo Chávez, with Nicolás Maduro assuming the presidency. In 2015, Maduro's opponents won control of the National Assembly, leading to conflict between Maduro's supporters and the Assembly, including raids and violence. In January 2019, Juan Guaidó, as president of the National Assembly, was recognized by the U.S. government as the interim president of Venezuela. CITGO's cargo was seized by Venezuelan authorities during this period of political unrest. CITGO claimed that the political conditions in Venezuela leading up to the seizure constituted an insurrection within the meaning of the policy and thus sought coverage for the loss. The Reinsurers disagreed, denied coverage, and litigation ensued.

The district court, on cross-motions for summary judgment, ruled in favor of CITGO, holding as a matter of law that an "insurrection" had occurred within the meaning of the policy. The case then proceeded to trial on the issues of causation and damages. After a five-day trial, CITGO prevailed on most issues, and judgment was entered in its favor for $54,235,187.24 plus interest.

The Reinsurers appealed, challenging the district court's summary judgment decision (specifically the finding of "insurrection"), orders on judicial notice (regarding certain facts about Venezuelan politics and violence), as well as jury instructions on causation.

The Second Circuit first determined that the term "insurrection" was ambiguous because it was not defined in the insurance policy and could reasonably be interpreted in more than one way. Both parties presented plausible interpretations, and reference to dictionary definitions did not resolve the ambiguity. Previous case law, such as Pan American World Airways, Inc. v. Aetna Casualty & Surety Co., recognized the ambiguity of terms like "insurrection" in war risk insurance policies.

Looking at the definition from Pan Am., the Second Circuit found that the term plausibly meant:

“(1) a violent uprising by a group or movement (2) acting for the specific purpose of overthrowing the constituted government and seizing its powers.”

This definition had three elements: violence, an uprising to overthrow and seize powers, and a constituted government.

Relative to the violence element, the court found that violence was clearly present, as Maduro and his supporters used violence to suppress Guaidó and his allies. The reinsurers did not dispute the existence of violence, only its intent.

The Second Circuit also concluded that Maduro’s actions constituted an uprising for the purpose of overthrowing Guaidó and seizing his powers. The court emphasized that any intent to overthrow, no matter how unlikely to succeed, is sufficient for insurrectionary purpose under Pan Am. The evidence showed Maduro’s goal was to remain in power despite the actions of the duly constituted government, including violence, imprisonment of opposition politicians, and refusal to cede control.

And finally, relative to the third element, the Second Circuit found that the U.S. Executive Branch’s recognition of Juan Guaidó as the interim president of Venezuela was the “constituted government” for purposes of the policy, and Maduro’s actions were thus directed against a lawfully constituted regime.

Because neither party provided extrinsic evidence about their intent when entering the policy, the court applied the rule of contra proferentem, which resolves ambiguities in insurance contracts against the insurer and in favor of coverage for the insured. Thus, the ambiguous term "insurrection" was interpreted broadly to support coverage.

While the Reinsurers objected to the judicially noticed fact that Juan Guaidó assumed the role of interim president of Venezuela on January 23, 2019, arguing this was a disputed fact, the Second Circuit rejected this challenge, holding that the U.S. Executive Branch’s recognition of Guaidó as president was “conclusive on all domestic courts,” and thus the district court did not abuse its discretion in taking judicial notice of this fact. Recognition by the Executive Branch is binding and courts may take judicial notice of such determinations.

The Reinsurers also challenged facts taken from reports by the U.S. State Department, Congressional Research Service, and United Nations, arguing these sources’ accuracy could be questioned. The court found this challenge unpersuasive, noting that the Reinsurers did not specify which facts were inappropriate for judicial notice, thus waiving the argument. The court cited Federal Rule of Evidence 201, which allows judicial notice of facts “accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” The district court carefully considered each fact and source, distinguishing between statements appropriate for judicial notice and those that were not, and provided reasons for its conclusions.

 

STORM’S SIU
Scott D. Storm
[email protected]

09/30/25        Schinitsky v. Pac. Indem. Co.
United States District Court, S.D. New York
Claim for Missing Jewelry Survives Motion to Dismiss but New York General Business Law § 349 Claim Is Dismissed

Schinitsky was insured under Pacific Indemnity's Chubb Masterpiece Policy for specified items of personal property.  On about July-August 2020, certain items of Schinitsky's personal property went missing due to the conduct of others outside her control.  Pacific Indemnity refused to pay for the losses, which Schinitsky alleges to be at least $1,974,263.00.

Pacific Indemnity filed a motion to dismiss.  The court considered only the complaint and the certified copy of the policy as integral documents for the motion to dismiss.  In considering a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. Where a document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily upon its terms and effect, thereby rendering the document integral to the complaint. 

The court found that Schinitsky adequately alleged breach of contract for Fed. R. Civ. P. Rule 12(b)(6) purposes.  To make out a viable claim for breach of contract a complaint need only allege: (1) the existence of an agreement, (2) adequate performance of the contract by the plaintiff, (3) breach of contract by the defendant, and (4) damages. These elements apply to breach of an insurance contract.

Pacific Indemnity's argument that Schinitsky failed to comply with the proof of loss requirement was deemed a defense and not grounds for dismissal at this stage.  Defendant's defenses regarding plaintiff's alleged failure to comply with the sworn statement in proof of loss condition are matters outside the pleadings.

Schinitsky also brought a claim under New York General Business Law § 349 for deceptive business practices, alleging Pacific Indemnity engaged in consumer-oriented conduct that was materially misleading.  To state a claim under N.Y. Gen. Bus. Law 349, a plaintiff must allege that a defendant has engaged in: (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice.  To be materially misleading, the allegedly deceptive act or practice must involve a representation or omission likely to mislead a reasonable consumer acting reasonably under the circumstances. The inquiry is objective, and a court may decide whether conduct is materially misleading as a matter of law. The court found Schinitsky's allegations of materially misleading conduct to be conclusory and insufficient, and dismissed the § 349 claim. Plaintiff failed to allege specific deceptive or misleading acts by the defendant to support a claim under NY General Business Law § 349.

 

10/10/25         Vastani v. State Farm Fire & Cas. Co.
Supreme Court, New York County
Water Collecting on Plaintiffs' Terrace Constituted Surface Water Under the Policy Exclusion, Despite Wind (a Covered Peril) Causing Debris to Block the Drain, the Policy's Anti-Concurrent Causation Clause Barred Coverage for the Resulting Water Damage

The plaintiffs made a claim for water damage following Hurricane Ida on September 1, 2021, alleging that wind caused debris to block the terrace drain, resulting in water entering their apartment.  State Farm denied the claim, citing a policy exclusion for water damage from surface water and other specified sources. The plaintiffs argued that the windstorm, a covered peril, was the proximate cause of the loss, and that the terrace should be considered part of the insured premises.

The court found that the insurance policy clearly excluded coverage for damage caused by surface water, regardless of other contributing causes.  The court reasoned that the water collecting on the terrace constituted 'surface water' under the policy exclusion. Although plaintiffs argued that wind from Hurricane Ida was the proximate cause by blocking the drain with debris, the policy's anti-concurrent causation clause explicitly excluded coverage for water damage regardless of whether other causes (like wind) acted concurrently or in sequence with the excluded water event. The court rejected plaintiffs' argument that the terrace was part of the residence premises, finding that even if true, the surface water exclusion would still apply.

The court granted State Farm’s motion for summary judgment, denied the plaintiffs’ cross-motion, and dismissed the complaint.

 

10/28/25         Spilled Milk Inc. d/b/a PhillyRubber v. Nautilus Ins. Co. et al.
Superior Court of Pennsylvania
Insured's Allegations of Liability Against Insurer Which Paid an Unauthorized Agent Due to the Fraud of Another Survived the Preliminary Objection Stage

Spilled Milk manufactures rubber products and has a commercial insurance policy with Nautilus.  Spilled Milk retained Zenith Public Adjusters to assist with a claim adjustment.  An employee of Spilled Milk signed a letter of representation instructing Nautilus to direct all correspondence and payments to Zenith.  Shelly, an officer of Zenith, also controlled Liberty Public Adjusters and instructed Nautilus to pay Liberty, not Zenith, for the claim settlement.  Nautilus issued $722,468.41 in checks to Liberty, with at least two checks naming Spilled Milk and Liberty as joint payees, but neither Nautilus nor Shelly informed Spilled Milk of the settlement or payments.

Shelly subsequently stole the proceeds, and Spilled Milk demanded Nautilus pay it directly, which Nautilus refused.  Spilled Milk sued Nautilus, Shelly, Zenith, and Liberty, alleging Nautilus made unauthorized payments to Liberty and failed to consult Spilled Milk, thus breaching the insurance policy and duty of good faith and fair dealing (Count I), acting in bad faith under 42 Pa.C.S.A. § 8371 (Count II), and being unjustly enriched by retaining premiums without proper payment (Count III).

Nautilus filed preliminary objections, arguing it paid as directed by Spilled Milk’s authorized agent, Zenith, and included Spilled Milk as a joint payee, which would have required Shelly to forge endorsements.

The trial court sustained Nautilus’s preliminary objections, finding Nautilus fulfilled its contractual duty and that Spilled Milk bore the loss due to its agent’s fraud, entering judgment against Shelly, Zenith, and Liberty for $708,767.74. Spilled Milk appealed, arguing the trial court erred by making unsupported factual findings and not accepting the complaint’s material facts as true, and by resolving causation issues reserved for the jury. 

The Superior Court found the trial court misapplied the standard of review for preliminary objections, noting that Spilled Milk contracted with Zenith, not Shelly or Liberty, and that Nautilus may have issued proceeds to an unauthorized party (Liberty instead of Zenith) contrary to the letter of representation.  The appellate court found the trial court erred by not accepting all well-pleaded facts as true and by making factual determinations inappropriate at the preliminary objection stage.  The trial court erred in making factual findings about Nautilus's motives for naming Spilled Milk as a joint payee and in concluding Nautilus fulfilled its contractual duty, as these determinations required looking beyond the well-pleaded facts in the amended complaint. The court held that a proper assessment of which party was more at fault for enabling Shelly's theft required further proceedings with more developed pleadings and evidence. Spilled Milk's allegations that Nautilus paid Liberty (not Zenith) contrary to the letter of representation's instructions were sufficient to state a claim that Nautilus paid an unauthorized party, which would not fulfill the terms of the insurance policy.  The trial court prematurely applied the Rothman rule at the preliminary objection stage -- that where one of two innocent persons must suffer because of fraud, the one who accredited the fraudster must bear the loss. 

The appellate court reversed the trial court’s dismissal of all three counts against Nautilus, holding that the material facts could support Spilled Milk’s claims for breach of contract, bad faith, and unjust enrichment; vacated the judgment against the other defendants (Shelly, Zenith, and Liberty) as to damages only; and remanded the case for further proceedings.  The case highlights that payment by an insurer to an unauthorized party may not relieve it of liability to the proper beneficiary, and that fact-based defenses are not relevant at the demurrer stage.  The court also clarified that a plaintiff may plead breach of contract and unjust enrichment in the alternative, and that dismissal of unjust enrichment at the preliminary objection stage was premature in this case.

 

FLEMING’S FINEST
Katherine A. Fleming
[email protected]

10/21/25         Baldwin v. Standard Fire Ins. Co.
Indiana Supreme Court
Insurer’s Choice to Reject Settlement Offer and File Interpleader Action When Faced With Multiple Claims and Insufficient Policy Limits Was Not in Breach of Duty of Good Faith and Fair Dealing

Hummel crashed into a vehicle driven by Baldwin. Hummel was insured by Standard Fire Insurance Company, and the policy provided bodily injury liability coverage of up to $50,000 per person and $100,000 per accident. Standard Fire’s post-accident investigation determined that Hummel faced potential claims by Hopkins and McCarty, her two passengers, and Baldwin. As part of its investigation, Standard Fire reached out to all interested individuals to gather information. All except McCarty responded and worked with Standard Fire.

Baldwin sued Hummel and her husband for injuries resulting from Hummel’s alleged negligence. Two months after suing the Hummels, Baldwin made a “time-limited settlement demand” for the $50,000 per-person policy limit. Standard Fire rejected Baldwin’s demand after concluding that both Baldwin’s and Hopkin’s claims were certain to exceed the $50,000 limit. The concern with accepting Baldwin’s settlement demand was the premature exhaustion of the $100,000 per accident policy limits because at least two of the three possible claimants could exceed policy limits, potentially leaving the Hummels exposed for any claim asserted by McCarty.

Standard Fire filed an interpleader action with the trial court naming Baldwin, Hopkins, and McCarty as interested parties to the insurance policy’s proceeds. In its interpleader filings, Standard Fire admitted that it was liable to pay the $100,000 policy limit but said it was uncertain as to which party or parties would be entitled to receive all or any part of the $100,000. Standard Fire deposited $100,000 with the trial-court clerk and asked the court to issue a declaratory judgment that Standard Fire had performed all its duties under the policy. The court accepted Standard Fire’s interpleader action but did not issue the requested declaration. The court eventually ordered $50,000 to be released to Baldwin and $50,000 to Hopkins and the Indiana Department of Child Services for past-due child support.

As the trial date approached in Baldwin’s suit against the Hummels, Baldwin demanded $700,000 to settle all his claims against them. Standard Fire declined, but the Hummels agreed to settle with Baldwin without Standard Fire’s consent and assigned any claims they might have against Standard Fire in exchange for Baldwin’s agreement not to enforce his judgment against them.

Based on the assignment, Baldwin alleged that by rejecting his initial settlement demand for the insurance policy’s per-person limit, Standard Fire breached its duty of good faith and fair dealing to the Hummels. Baldwin also alleged that Standard Fire acted in bad faith toward the Hummels and should pay punitive damages. Standard Fire moved for partial summary judgment on these claims. It argued that rejecting Baldwin’s settlement demand and filing the interpleader action were reasonable efforts to protect the Hummels’ interests given the multiple potential claims against their policy. Baldwin disagreed, contending that Standard Fire’s rejection of his $50,000 settlement demand followed by the interpleader action placed its own interests above the interests of the Hummels. After briefing and a hearing, the trial court granted summary judgment for Standard Fire.

The court of appeals affirmed in part and reversed in part. It found an issue of fact as to whether Standard Fire breached its duty of good faith and fair dealing in denying the initial settlement demand. The appellate court also found an issue of fact existed as to whether Standard Fire acted in bad faith toward the Hummels.

The Indiana Supreme Court affirmed the trial court’s grant of summary judgment for Standard Fire on Baldwin’s claims for breach of the duty of good faith and fair dealing and for bad faith. The court considered whether Standard Fire made “reasonable efforts to compromise and settle the matter” in rejecting the initial settlement demand and filing an interpleader action. The court noted the risk of exhausting policy limits by settling with some but not all claimants since the settlement of a claim may reduce the funds available to pay others. Alternatively, if the insurer rejects individual settlement demands and tries to equitably resolve all of the claims together, it risks exposing the insured to an excess judgment. For situations where there are multiple claims against an insufficient policy, the court adopted Section 2 of the Second Restatement of Liability Insurance as the governing standard in Indiana. The standard both requires insurers to try to limit an insured’s overall liability exposure and provides insurers with a “safe harbor” for limiting their own liability through an interpleader action. Under the new standard, the court affirmed the trial court’s entry of judgment for Standard Fire, holding that Standard Fire did not breach the duty of good faith and fair dealing when it rejected Baldwin’s initial settlement demand and filed an interpleader action.

 

GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]

10/31/25         Kushner v. Farmers of Salem
New Jersey Superior Court, Appellate Division
Court Finds That Regular, Habitual Residency Is Required to Show “Customary Occupancy” Under Homeowners Policy

The plaintiffs purchased a home, as well as a homeowners insurance policy from the defendant. The house was destroyed by fire approximately six weeks after the plaintiffs closed on their home, prompting the plaintiffs to make a claim under their new policy. The defendant denied the plaintiffs’ insurance claim, and this action followed.

On the plaintiff’s application for insurance with the defendant, they represented that no part of the new house would be vacant or unoccupied, and that the home was not undergoing any renovations or construction. The plaintiffs also represented that the home would be occupied within 30 days of the date of the policy application. Separately, the policy contained an exclusion barring coverage for dwellings not “customarily occupied” by the insured.

The defendant’s investigation of the plaintiff’s claim revealed that the plaintiffs had hired a contractor to perform renovations to the house. The defendant also noticed that the house only contained boxes of clothing, as well as baseball memorabilia in the basement, and that the plaintiffs had not yet moved in and taken up occupancy. Discovery taken in the coverage action further revealed that, at the time of the fire, the plaintiffs were staying in a rental home nearby, due to the fact that the home was under renovation. No power was connected to the home, the home was not yet furnished, and the plaintiffs were not yet sleeping or eating at the home as of the date of the fire.

The question before the Court was the meaning of the phrase “customarily occupied.” The Court explained that, nearly a century ago, a New Jersey court ruled that a home is “occupied” once a human being “habitually resides” in it. Against this backdrop, the Appellate Division ruled that, to be found to have been “occupying” the house, the plaintiffs need not have been continuously present there, but that “occupancy” required their regular, habitual dwelling within its walls.

Editor’s Note: Two things. First, what about the defendant’s claim for rescission of the policies? That is markedly different from a simple denial of the claim, since it could potentially wipe out any then-existing claims that may be presented in the future. The Court declined to address this question further after ruling on the “customarily occupied” exclusion. And second, how does this ruling impact vacation homes?

 

11/05/25         Union Mutual Fire Ins. Co. v. Rodeo Estates, LLC et al.
New York State Supreme Court, Appellate Division: Second DepartmentAppellate Division Finds That Negligence Cause of Action Predicated on Assault Falls Outside of an Assault Exclusion. Thousands Flee

I take a point of personal privilege to re-visit my old stomping grounds in this column: New York case law. I argued this appeal on behalf of Union Mutual, and welcome feedback from anyone on whether they think the Court got it right or wrong.

The facts were these: Rodeo Estates LLC owned a residential home, leased to the Miale family as tenants. The Claimant, Heskell Khozouri-Zadeh (the “Claimant”) was driving the Miale’s daughter back home to the insured premises after a playdate with his own daughter. Upon arriving there, the Claimant was invited in to see the Miales’ newly renovated kitchen. The Claimant parked his van in the Miales’ driveway while he went inside. While inside the premises, Mr. Miale returned home and ultimately stole the Claimant’s van. As Mr. Miale was backing the van out of the driveway, the Claimant chased after the van, ultimately opening the driver door in an attempt to pull Mr. Miale from the vehicle. At this moment, a physical altercation ensued, wherein Mr. Miale shoved the Claimant out of the van onto the street below, causing him to break his leg.

The Claimant sued Rodeo Estates, the owner of the premises, under the theory that Rodeo Estates failed to provide a safe place to park and failed to warn the Claimant about Mr. Miale’s violent propensities. The Claimant also asserted claims against Miales, sounding in assault, battery, and negligence. Rodeo Estates sought coverage under its commercial general liability policy with Union Mutual for the Claimant’s claims.

The Union Mutual policy contained an assault and battery endorsement that barred coverage for bodily injury arising or alleged to arise out of an assault and/or battery caused by or at the instigation or direction of the insured, any patron of the insured, or any other person. The same endorsement also excluded coverage for claims arising or alleged to arise out of any act or omission of the insured in connection with the prevention or suppression of an assault and/or battery committed by third parties.

Union Mutual argued that the endorsement barred coverage for the negligence claims, as well as the assault and battery claims. The New York Court of Appeals, in Mount Vernon Fire Ins. Co. v. Creative Housing Ltd., has ruled that “if no cause of action would exist but for the assault, the claim is based on assault and the exclusion applies.”

Here, the Second Department ruled that, because the Complaint in the underlying action alleged that the Claimant’s injuries were caused, at least in part, by Mr. Miale’s negligent and reckless acts, and by Rodeo Estates’ alleged breach of its alleged duties to provide a safe place to park and to warn of Mr. Miale’s propensity for negligence and recklessness, it cannot be said that all of the claims in the underlying action arose out of an assault or battery.

Editor’s Note: Perhaps I am biased, but the Union Mutual endorsement bars coverage for “bodily injury arising or alleged to arise out of an assault and/or battery.” Thus, I don’t think it matters that the claims were alleged as negligence. Separately, the endorsement defines an assault as one committed by or on behalf of the insured, or any other person. To me, both Miale and the Claimant committed assaultive conduct. Mr. Miale’s shoving the Claimant out of the van was the operative act causing the Claimant to break his leg, which is surely assaultive behavior. Thus, in my view, the negligence, failure to warn, and failure to provide a safe place to park claims (all negligence-based claims) would not exist but-for the assault, and Mount Vernon should have carried the day.

 

O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]

10/24/25         Penn-Star Ins. Co. v. Dongbu Ins. Co.
United States Court of Appeals, Second Circuit
Equitable Estoppel Invalidates Insurer’s Subsequent Denial of Coverage Due to Lack of Reservation Language in Initial Coverage Position Letter

Penn-star insured 89^th Jamaica Realty (“89^th Jamaica”), Dongbu insured J.G.F, and KBIC insured S&H Fish Co. (“S&H”). 89^th Jamacia leased a building to J.G.F. who then sublet the space to S&H. At the property in question a J.G.F. employee sustained an injury and brought a tort claim against 89^th Jamaica and S&H. Under the KBIC policy, 89^th Jamaica qualified as an additional insured. The underlying tort claim eventually settled for approximately $3 million with Dongbu contributing $250,000. Penn-Star then commenced a declaratory judgment action against Dongbu to invalidate Dongbu’s 2022 Disclaimer Letter. Dongbu issued this denial subsequent to a 2020 letter that stated:

"DB Insurance has agreed to defend and indemnify 89th Jamaica Realty LLC to the fullest extent of its policy limits for this matter and as well as [sic] all claims made against 89th Jamaica Realty LLC based on the contractual liability portion of the Policy, without reservations." (emphasis added).

In comparison, Dongbu’s 2022 disclaimer letter states:

“[T]he DB Policy does not provide coverage after the exhaustion of the S&H Fish Corp. ('S&H Fish') policy  because there is no finding of contractual indemnification as against JGF and therefore no obligation under the Contractual Liability portion of the Policy. . . DB reserves the right to assert any term, condition or provision of the Policy not yet mentioned, or any other coverage defense which may be applicable.”

Penn-Star relied on the doctrine of equitable estoppel to invalidate Dongbu’s 2022 disclaimer. Under New York law, insurers possess the ability to apply equitable estoppel against other insurers. Notably, the Second Circuit held that under certain circumstances equitable estoppel can apply even if the defendant lacks a contractual obligation to the plaintiff. In review of Dongbu’s 2020 Letter and 2022 Letter, the court found it was clear Penn-Star relied on the 2020 letter in which Dongbu accepted coverage for 89^th Jamaica without reservation.

Penn-Star also established prejudice in that if it knew Dongbu intended to deny coverage, then Penn-Star would have been more active in the underlying litigation. Although KBIC controlled 89^th Jamaicia’s defense, Dongbu’s 2020 letter and involvement in the underlying mediation also materially affected Penn-Star’s approach to the claim.  For these reasons, the Second Circuit held Penn-Star suffered prejudice.

 

LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]

10/17/25         East Collision, Inc. v State Farm Mut. Auto. Ins. Co.
Supreme Court, Westchester County
Court Denies Motion for Summary Judgment by Insurer Holding Breach of Contract Claim Sounded in the Contract, not Statutory Law

East Collision, Inc, as assignee of Aileen Yambo (“East Collision”) brought a lawsuit against State Farm Mutual Automobile Insurance Company (“State Farm”) alleging breach of contract in connection with a dispute regarding insurance coverage for automobile repairs.

The Complaint alleges that State Farm issued a policy of insurance, providing coverage for a certain 2017 Maserati Ghibli. It is alleged that the vehicle sustained damages on June 21, 2024. A claim was submitted to State Farm. The Complaint alleges that State Farm accepted responsibility for payment of the repairs to the vehicle, which were completed by East Collision. However, it is alleged that State Farm materially breached its contractual obligations under the State Farm policy by refusing to negotiate in good with East Collision, and to pay for all such necessary repairs. It is further alleged that the insured signed an “Assignment of Claim” assigning to East Collision all rights against State Farm for damages arising out of State Farm’s potential failure to pay for the repairs following the collision. In the sole cause of action for breach of contract, the Complaint alleges that State Farm materially breached the policy, including obligations under New York Insurance Law Section 2601 and Regulation 64, Part 216 by failing to negotiate in good faith with East Collision.

State Farm moved for summary judgment following the filing of Notice of Entry. In support of the motion, State Farm submitted an affirmation from its Property Team Manager, averring that State Farm sent an appraiser to conduct an in-person inspection of the vehicle in August of 2024. The affirmation states that it was determined, based on the inspection, that the damage to the vehicle was not structural in nature, and did not warrant the high hourly rate East Collision intended to charge for repairs. State Farm submitted an affirmation from counsel, annexing copies of pleadings and documentary evidence in support of State Farm’s motion for summary judgment, reciting facts, legal arguments, and procedural history.

State Farm argued that the breach of contract claim must be dismissed because East Collision has no private right of action under New York Insurance Law Section 2601 or Regulation 64, Part 216.

In opposition, East Collision submitted an affirmation of counsel, annexing documentary evidence and summarizing East Collision’s legal arguments. In addition, an affirmation of East Collision’s owner was submitted. The affirmation from the owner stated that the vehicle did in fact sustain structural damages, and that the hourly rate charged for repairing luxury cars was reasonable.

East Collision argued that State Farm misconstrued the cause of action, which is a straightforward breach of contract claim, not a statutory claim. The references to statutory law, East Collision argues, is simply a reference to provisions which are read into the State Farm policy by law.

The court found that State Farm did not meet its prima facie burden of demonstrating entitlement to summary judgment. Specifically, the Court noted that the submissions in support of the motion were not based on anyone with personal knowledge regarding the repairs to the vehicle, including the key issues of whether the negotiated costs were done in good faith. State Farm’s failure to furnish an affidavit or affirmation from the individual who conducted the inspection of the vehicle was critical to this determination by the court.

Accordingly, because State Farm’s submissions failed to include an affidavit or affirmation from “a person having knowledge of the facts,” the Court denied State Farm’s motion for summary judgment. Further, the court identified that it agreed with East Collision’s legal argument, that the Complaint’s single cause of action was in fact a breach of contract claim. The court held that a plain reading of the Complaint confirms that although East Collision references New York Insurance Law, the breach of contract claim is grounded in the central allegations that defendant materially breached the Policy.

 

LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]

11/07/25        Passage of New York Assembly Bill A112
New York State Assembly
Assembly Bill A112 Which Repeals the Anti-Arson Application Was Signed by the Governor on October 16, 2025

On October 16, 2025, the Governor signed into law, Bill A112. The Bill repeals Insurance Law Section 3403 which previously required that any application for insurance or renewal of insurance, covering the peril of fire or explosion, includes the anti-arson application.

The anti-arson application requirement was created in the 1970s after an increase in arson activity. However, since then these forms are no longer effective in investigating or prosecuting fraud as there are now more advanced and current avenues to do so.  

The act was set to take effect immediately upon the Governor’s signing. Therefore, policyholders are no longer required to complete, and carriers are not required to collect anti-arson applications.

 

VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]

11/04/25         Egan v. Allstate Prop. and Casualty Ins. Comp. & Jack Ruane
In the Superior Court of Pennsylvania
Pennsylvania Court Upholds Bad Faith Dismissal Finding Insured Did Not Establish Bad Faith

Here, Plaintiff Robert Egan's ("Egan's") father resided at the premises located at 2545 W. Colonial Drive, Boothwyn, Pennsylvania (the "Premises"). The Premises consisted of three apartment units, labeled A, B, and C, respectively.

Egan's father obtained a homeowners policy for the Premises from Allstate in the 1970s. In 1995, Egan moved into Apartment A at the Premises, and in 2008, Egan purchased the Premise from his father. Egan obtained a homeowner's policy with Allstate through Jack Ruane ("Ruane"), his father's agent.

Ruane asked Egan how much was due on the mortgage and insured the Premises for that amount, $180,000, which was below the full replacement cost of the building of $450,000. Eagen requested that Allstate change the mailing address from Apartment C to A, which Allstate did not change. In 2015, there was a loss at the Premises, and Allstate covered the risk, though the wrong apartment was listed on the policy.

In May 2017, Egan purchased a new property and obtained an Allstate homeowner's policy through Ruane. Eagen asked Ruane to change his mailing address to the new property, but Ruane never made the change, though he said he would take care of it.

In February 2020, a fire occurred at the former property at 2545 W. Colonial Drive, and Allstate denied coverage for the loss.

Egan then filed sued against Allstate and Ruane, alleging breach of contract and bad faith against Allstate, and breach of contract and negligence against Ruane. Egan filed multiple amended complaints, since prior versions were dismissed for lack of specificity.

Egan appealed to the Superior Court of Pennsylvania after his claims against Allstate and Ruane were dismissed. Egan presented four issues for appeal, importantly, whether the trial court erred or abused its discretion in dismissing Egan's bad faith claim against Allstate.

In reviewing the bad faith dismissal, the Court first cites to the definition of bad faith under 42 Pa.C.S.A. § 8371, which defines bad faith as:

any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of a [bad faith action], such conduct imports a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), though through some motive of self-interest or ill will; mere negligence or bad judgment is not bad faith.

Bad faith must be proven by clear and convincing evidence, and the insured must show the insurer "(1) did not have a reasonable basis for denying benefits under the policy and (2) the defendant knew or recklessly disregarded its lack of reasonable basis in denying the claim."

The Court found that the trial court did not err in dismissing Egan's allegation for bad faith. The Allstate Policy required Egan to be a resident of the property, and Egan was residing at the new property on the date of the loss. Further, since Egan did not prove breach of a written contract, he cannot establish bad faith. In other words, if there is no duty to provide coverage under the policy, there cannot be bad faith by an insurer's disclaimer of coverage.

 

SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]

10/15/25         Caro v. JAC Car Servs., Inc.
Richmond County Supreme Court
Defendants’ Summary Judgment Motion Denied on Triable Issue of Fact

This case involves personal injuries suffered by plaintiff, Justin Caro ("plaintiff"), in connection with a motor vehicle accident that occurred on October 2, 2023, in Grandview Avenue at or near its intersection with Brabant Street, County of Richmond, State of New York. On February 7, 2024, plaintiff commenced this action to recover for personal injuries he sustained because of the aforementioned motor vehicle accident. 

Plaintiff alleged injuries to his cervical, thoracic and lumbar spine and right shoulder. Plaintiff also underwent a right shoulder arthroscopy and received numerous injections to his lumbar spine. At his deposition, plaintiff testified that the surgery helped, but he is still not the same person he was prior to the accident. Plaintiff also testified that prior to the accident he never had any complaints in any of the body parts that he injured in the accident. Since the accident he has had difficulty standing on his feet for long periods of time, going grocery shopping, driving with his right hand, keeping his arm straight for a long duration of time, and playing with his children.

Plaintiff's right shoulder MRI report indicated a rotator cuff tear. The impression was as follows: (1) partial tear of distal subscapularis tendon; (2) partial tear of distal supraspinatus tendon; (3) type ill acromion with hypertrophic changes of the acromioclavicular joint with impingement of the rotator cuff, in an appropriate clinical setting; (4) fluid in the biceps tendon sheath consistent with tenosynovitis; and (5) mild joint effusion consistent with trauma or synovitis, in an appropriate clinical setting.

Plaintiff's MRI report of the lumbar and cervical spines indicate disc herniations. On June 9, 2025, Steve Losik, MD, affirmed that Plaintiff's MRIs revealed: (1) broad-based posterior central T4-5 disc herniation with compression of anterior thecal sac and effacement of anterior subarachnoid space; (2) left paracentral T5-6 disc herniation with compression of anterior thecal sac and effacement of anterior subarachnoid space; (3) TT-8 diffuse disc herniation with compression of anterior thecal sac, effacement of anterior subarachnoid space and Impingement of neural foramina; and (4) posterior central TI0-1 1 disc herniation with compression of anterior thecal sac and effacement of anterior subarachnoid space.

On July 30, 2025, Keith Tobin, MD, affirmed that Plaintiff's MRI revealed: (1) mild to moderate AC joint arthrosis; (2) anteriorly downwardly hooked acromial shape, small subacromial spur further accentuating the rim; (3) study negative for full-thickness rotator cuff tear with mild tendinosis in supraspinatus tendon, with minimal intrasubstance partial tear undermining a very small portion of the tendon attachment onto the greater tuberosity; (4) subtle delaminating intrasubstance partial tear portion of the subscapularis tendon; the bulk of the tendon appears normal; and (5) there is extensive tearing of the glenoid labrum at least Type VIII SLAP (extending down the posterior glenoid rim), and possibly Type IX SLAP, with suggestion of possible extension down the anterior glenoid rim as well.

Defendant's IME examination of the cervical, thoracic and lumbar spines found no swelling, discoloration, or deformity. The examination found no parathoracic spasm upon palpation and there was no complaint of tenderness upon palpation. Active range of motion revealed normal flexions. No muscle spasm was noted upon palpation of the paralumbar muscles and there was no complaint of tenderness noted upon palpation bilaterally. Defendants’ IME doctor, Pierce Ferriter, MD, attested in the IME that the “examination indicates that the injured body parts alleged in the Bill of Particulars have resolved. The claimant did not sustain any significant or permanent injury as a result of the motor vehicle accident on 10/02/2023. There are no objective clinical findings indicative of a present disability, and functional impairment, which prevents the examinee from engaging in ADL, and usual activities including work, school, and hobbies. The claimant is able to return to full duty work without restrictions.” (Emphasis added).

The Court found that there was conflicting evidence on the permanency and significance of plaintiff's injuries. The medical records provided by plaintiff, affirmations of Steve Losik, MD and Keith Tobin, MD, and plaintiff’s deposition testimony would satisfy he “serious injury” threshold requirement of Insurance Law § 5102(d). Defendants’ IME report contradicts the evidence provided by plaintiff and concludes that the Plaintiff is able to return to full duty work without restrictions. As such, the parties provided conflicting expert medical opinions, which raised triable issues of fact as to whether plaintiff sustained serious injuries within the meaning of Insurance Law § 5102(d).

In light of the foregoing, the Court denied Defendants' motion for summary judgment on the threshold issue for serious injury under Insurance Law § 5102(d).

 

NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]

08/15/25         Monteith & Sutherland Limited v. Novex Insurance Company
Ontario Superior Court
The Policy Language Dictates Whether a Claims Made Policy Is a Claims-Made and Reported Policy

Halton Region—immediately west of Toronto and encompassing Burlington, Halton Hills, Milton, and Oakville—is among Canada’s fastest‑growing regions, driven largely by immigration, necessitating significant infrastructure expansion. One such initiative was a wastewater utilities installation project that required trenchless methods to accommodate the density of development. Earth Boring Company Ltd., in operation since 1947, and among Ontario’s oldest trenchless sewer and watermain installers, was awarded the contract to install a sewer line in Halton Hills.

Earth Boring also served as a significant subcontractor on Toronto’s Port Lands Flood Protection and Enabling Infrastructure project, a multi‑faceted undertaking to create a new, naturalized channel for the Don River’s flow to Lake Ontario, develop parks, trails, and bridges, and manage contaminated soil—work that included sewer and watermain components relevant to Earth Boring’s scope.

Parties and Roles

Earth Boring retained Monteith & Sutherland Limited (MSL) to perform land survey services in connection with both the Halton Project and the Port Lands Project.

MSL, operating across Canada for a period comparable to Earth Boring’s history, provides survey solutions for complex engineering, tunnelling, settlement monitoring, large‑scale infrastructure, pipelines and resources, and legal boundaries, with offerings spanning land surveying and engineering services.

Claims Notice and Allegations

On June 9, 2022, Earth Boring notified MSL of its intention to claim for allegedly deficient work on the Halton Project, asserting that MSL failed to correctly measure and mark drilling locations for safe dewatering hole installation.

On July 27, 2022, Earth Boring advised MSL of its intention to make a claim relating to the Port Lands Project.

MSL’s Insurance Program

MSL, as a member of the Association of Ontario Land Surveyors (AOLS), was required to maintain professional liability insurance under AOLS’s master policy issued by Novex Insurance Company, an Intact Insurance subsidiary specializing in group home and auto insurance for employee and associations such as the AOLS. The Novex coverage was claims‑made professional liability insurance with annual terms commencing July 1 each year, providing per‑claim limits of $5 million and an aggregate limit of $6 million. The annual policy beginning July 1, 2021, is referenced as P1; the policy beginning July 1, 2022, is P2, with no change in policy wording between them. In addition, MSL procured professional liability insurance in the Lloyd’s market for engineering errors or omissions, specifically excluding errors and omissions arising from land surveying.

Notice, Settlement Activity, and Coverage Positions

The Halton Hills claim was notified under P1; the Port Lands claim was notified under P2. Novex paid $5 million to Earth Boring to resolve the Port Lands claim, exhausting the per‑claim limit for that policy period. MSL paid $3.2 million to settle the Halton Hills claim. Novex denied full indemnity to MSL on the Halton Hills settlement, arguing that: (i) the claim was not insured; (ii) alternatively, if insured, it fell under P2 (the same policy period as the Port Lands claim), leaving only $1 million available under the P2 aggregate; and (iii) MSL failed to cooperate. The central issue distilled to whether the Halton Hills claim belonged to P1.

Policy Wording and the Court’s Analysis

MSL received notice of the Halton Hills claim during the last month of P1 but reported it to Novex in the first month of P2, prompting interpretation of several clauses. The policy obligated Novex to indemnify “any claim first presented during the … policy period,” with “presented claim and/or claim” defined to include “any notice to [MSL] of any facts or circumstances which may give rise to one or more claims and/or any notice to [Novex] of one or more claims made against [MSL].” Under clause 2 of section VII, MSL had to provide Novex, “during the policy period and as soon as practicable,” notice of facts or circumstances that may give rise to a claim; however, failure to do so would not affect MSL’s rights if Novex was not prejudiced and the failure was corrected before the expiry of MSL’s policy.

The Court found the wording unambiguous: P1 applies to claims made against MSL during P1, provided MSL gave notice to Novex as soon as practicable thereafter. Because the Halton Hills claim was made during P1 and Novex received notice four weeks later, during P2 but still within the allowance contemplated by the policy, coverage under P1 was triggered. Consequently, Novex was obligated to indemnify MSL for the full $3.2 million Halton Hills settlement under P1.

Costs

The Court addressed procedural non‑compliance. Despite a requirement in the Notice to the Profession and Parties, to discuss costs in advance, counsel did not consult on costs prior to the application; further Novex filed 41 pages of written argument—double the page limit—without leave; and Novex committed a procedural violation regarding its compendium. Considering these procedural violations, Novex was ordered to pay $75,000 in costs to MSL.

Key Takeaways

• Claims‑made trigger: In a claims- made policy, as opposed to a claims-made and reported policy, notice to the insured during the policy period that claim will made against that entity can suffice as a claim that has been made in that policy period, even if notice to the insurer follows in the following policy period, but only where the notice to the insurer was given as soon as practicable and that notice complies with the coverage agreement, the policy conditions and definitions.
• Procedural discipline: Non‑compliance with page limits and pre‑hearing cost consultations can carry significant cost consequences.

 

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