Volume XXVII, No. 13 (No. 712)
Friday, December 5, 2025
A Biweekly Electronic Newsletter
As a public service, Hurwitz Fine P.C. is pleased to present its biweekly newsletter, providing summaries of and access to the latest insurance law decisions from the New York, 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. Attached is our latest issue of Coverage Pointers, with our cover note and headlines below. Want to learn all about the MCS-90? Who doesn’t? Read below.
Happy Friday. Winter has come to Buffalo, but we seem to have that happen most years. We have lots of stuff to talk about here. Hey, feel free to pass these issues on to your colleagues and friends and we’re happy to add them to the subscription list and the HF CP family.
COVERAGE POINTERS UNIVERSITY
REGISTRATION IS NOW OPEN FOR OUR SECOND COURSE OFFERING
Last Chance to Sign Up – Already 150 Enrolled
Keep Truckin'!
Motor Carrier Liability Insurance and the MCS-90
December 18, 2025, 1:00 PM Eastern, 12:00 PM Central
Ryan P. Maxwell, Esq. Instructor
Don’t get carried away by insurance risks on the road. Learn more about the fundamental intricacies of liability insurance for commercial truckers. More specifically, discover the nuances of when traditional commercial auto insurance ends and where the MCS-90 endorsement begins, including its origin, its application, and its purpose. Explore what the MCS-90 covers and when, as well as the limitations where everything can (and will) go wrong. For the long haul ahead, expect to take away practical advice on how to approach these claims from investigation through litigation and beyond.
Unfortunate SUM Decision from the Second Department
The Second Department handed down a decision this week which allows the deposition of a SUM adjuster (Supplementary Uninsured/Underinsured Motorists Coverage). For the life of me, I cannot fathom what relevance that testimony could have in a SUM proceeding. You’ll find the case in my column.
High Court Refuses to Preclude No Fault Benefits Despite Potential Kickbacks
GEICO’s attempt to preclude recovery of no fault benefits for providers who may have been involved in a kickback scheme was squelched by the Court of Appeals based on statutory language and an opinion from DFS. Read about that in my column, as well.
Second Child – Car Rental Insurance Coverage
All briefs – and applications for amicus status are due tomorrow – as the Court of Appeals will be reviewing a Second Department decision that held, contrary to established case law, that car rental companies have no obligation to provide primary coverage to renters. I know that there are few amicus applications pending (we’re involved in one). Hopefully, New York’s high court will do what’s right.
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.
The State Shouldn’t Run an Insurance Business– 100 Years Ago:
The Daily Times
Davenport, Iowa
5 Dec 1925
KENDRICK VOICES
PROTEST AGAINST
STATE INSURANCE
Iowa Commissioner Talks
Before Meeting of Risk
Men in New York City
DES MOINES, Dec. 5. – (Special) – State Insurance Commissioner W. R. C. Kendrick is strongly opposed to the operation of an insurance business by the state or government. Such an understanding is socialism, he believes. He expressed his views on this subject in an address delivered in New York City before the fifteenth annual sessions of the association of life presidents.
“May the day never come when life insurance is operated by either state or federal government,” he declared.
“As I attempt to penetrate the veil that obscures the future possibilities of the astounding development of life insurance, and try to visualize the institution of life insurance at the close of the succeeding quarter century, I wonder if this beneficent institution will be drawn into the vortex of socialism,” he said.
Peiper on Property (and Potpourri):
Greetings from NYC and the DRI conference. So good to see so many friends.
Steve
Steven E. Peiper
[email protected]
Cost of Insurance is a People Problem – 100 Years Ago:
The Times-News
Twin Falls, Idaho
5 Dec 1925
THE PUBLIC PAYS AND PAYS
Long ago it was ruled by the courts that the business of insurance is not interstate, and therefore not a federal concern. Hence, insurance finds itself pulled this way and that, in matters of taxation, by the varying judgments of the legislatures of forty-eight sovereign and self-sufficient states, each separately actuated, with Congress joining in a behalf of the District of Columbia and the territories. Slave of many jealous masters, insurance must strive to please all of them all of the time, and that, it will be conceded, is seldom an easy task. Indeed if the facts of insurance taxation in all its complexities were shown to a disinterested observer he probably would be astounded. He would be at a loss to understand how in thunder it is that insurance companies escape total bewilderment in the sheer clerical work involved in meeting all the demands upon them. That there is order and not chaos speaks something for the management of American insurance.
The lawgiver as a rule is a stranger to the basic theory of underwriting. Never have his talents been exercised in discovering the origin and ownership and final disposition of the funds entrusted to a risk-bearer. These accumulations appear to him as an unattached pile of golden dollars and so he appropriates. He finds it very easy, very simple, very "painless" extraction. With the suggestion that there may be a limit, actual as well as economically safe, to the supply, he is impatient. Moses, tapping with his staff the rock in the wilderness, did so with no more confidence than does the legislator today who seeks to drain, with his bill, the institution of insurance of more revenue, and more and more * * *What he overlooks, of course, is the truth that, unlike the rock which yielded up so richly, the well-spring of insurance does have a clearly discernible bottom, and one soon reached. It is only the exceptional legislator who sees that it runs no deeper than the pocket of the public.
Lee’s Connecticut Chronicles:
No cases to report this edition. See you next time around.
Lee
Lee S. Siegel
[email protected]
One Stop Shopping – 100 Years Ago:
The Press-Herald
Pine Grove, Pennsylvania
5 Dec 1925
W. H. REINBOLD,
Justice of the Pease
Fire Insurance and
Real Estate
Office – No. 120 Spring St.
Tremon, Pa.
Oaths administered. Legal papers drawn up and properly executed.
A specialty made in adjusting pension claims. Agency for Pennsylvania and Franklin Fire Insurance Companies, of Phila.
Any one desiring suitable building sites will do well by consulting me.
All work entrusted to me will receive prompt and careful attention.
Automobile license promptly procured. All kinds of application blanks pertaining to the same on hand.
Ruffner’s Road Review:
Dear Readers,
I hope everyone had a great Thanksgiving weekend! After the holiday festivities, my wife and I went down to Pittsburgh for the weekend and got to see a much-needed Bills victory over the Steelers.
In this week’s case, the insurer brought an action pursuant to Insurance Law § 5106(c) for a de novo determination of an arbitration award in favor of the defendant for his no-fault claims. The Appellate Division upheld the Supreme Court’s decision, which awarded summary judgment to the insurer on the basis that the defendant failed to properly substantiate his claim for lost wages. Accordingly, a judgment was entered declaring that the insurer was not liable to the defendant for the payment of lost wages claimed by the defendant.
Until next time,
Kyle
Kyle A. Ruffner
[email protected]
An Enlightened Jury – 100 Years Ago:
The Kansas City Post
Kansas City, Missouri
5 Dec 1925
Race Prejudice
Has No Part in
Jury Discussion
WHITE PLAINS, N. Y., Dec. 5. – From several Rhinelander jurors it was learned later that the balloting from the first has favored Alice. Two jurors constituted the maximum minority strength and these were won over shortly before the sealed verdict was returned last night.
The jurors were loath to comment on their deliberations.
William J. Demarest, a real estate agent of Rye, N.Y., said, however, that not once had race prejudice entered the discussions.
“We considered the evidence alone,” he said. “The reason we were out so long was that we wished to clear away every discrepancy in testimony and all doubts before we should enter our verdict.”
Foreman Clarence Pietsch and the other jurymen stood around and nodded their assent.
Judge Mills, addressing the court, congratulated the defense attorneys and then moved the verdict of the jury on all save the first and last questions be set aside.
Ryan’s Federal Reporter:
No notable cases this edition. See you next time.
Ryan
Ryan P. Maxwell
[email protected]
Still Separate Hospitals – 100 Years Ago:
The Greenville News
Greenville, South Carolina
5 Dec 1925
Greensboro To Get
Big Negro Hospital
GREENSBORO, Dec. 4. – A gift of $50,000, made by Mrs. L. Richardson of this city, for establishment of a negro hospital was announced here last night. It is contingent upon the city of Greensboro and county of Guilford providing maintenance. It is said that the city officials have agreed to the city’s share. The county board of commissioners will be approached next Monday. Mrs. Sternberger, this city, gave $10,000 for laboratory equipment. Negroes will raise $10,000 for beds and other equipment.
Storm’s SIU:
Hi Team:
I hope you had an excellent Thanksgiving!
I have one interesting case digest for you this edition:
- Claims for Specific Performance (Appraisal), Breach of Contract, and Tortious Interference (Against the Adjuster) Were Dismissed as Time-Barred or Legally Insufficient. An Adjuster Cannot Be Personally Liable Under Pennsylvania's Insurance Bad Faith Statute.
In addition, New York’s First Department finds litigation funding documents to be discoverable as they could reveal a financial motive for fabricating the accident. Be sure to read Ryan Maxwell’s LinkedIn article. https://www.hurwitzfine.com/blog/new-york-s-first-department-finds-litigation-funding-documents-discoverable
Have a great two weeks! Go Bills!
Scott
Scott D. Storm
[email protected]
Playing Spud Cost Money – 100 Years Ago:
The Daily Item
Port Chester, New York
5 Dec 1925
STOLE A SACK OF POTATOES,
GETS 60 DAYS
Term Is Partly For The Purpose
Of Giving Man Medical Aid
Jacobs Morris, of Palmer place, charged with stealing potatoes from the S. Jacobs & Son company on Traverse avenue, was sentenced to sixty days in the county jail this morning by Judge John L Coward. Maurice Jacobs brought the charge against Jacob Morris.
Yesterday Morris denied the theft, and this morning he reiterated his innocence. Milton Jacobs, a sixteen year old boy of 42 Traverse avenue, however, appeared against Morris, telling how he had seen him with a bag in the vicinity of the Jacobs storehouse on the night when the theft was committed.
Morris said he didn’t remember what he was doing in that vicinity. He declared he had taken a sack of flour to a house on Townsend street, but he didn’t remember who gave him the flour or to whom he had delivered it. It was finally brought out that Morris has been living in a little shack on Palmer place, and that his body is covered with sores. He is in need of medical treatment, and Judge Coward sentenced him to two months in prison so that the proper treatment might be given him.
Fleming’s Finest:
Hi Coverage Pointers Subscribers:
Nothing noteworthy this week. Hope you had a great Thanksgiving!
See you in a fortnight,
Kate
Katherine A. Fleming
[email protected]
Wanted: Housekeeper or Wife. Either way, it’s Strictly Honorable – 100 Years Ago:
The Lima News
Lima, Ohio
5 Dec 1925
FEMALE HELP WANTED
WANTED MIDDLE AGED LADY for housekeeper, strictly honorable, object matrimony. Henry Bright, Spencerville, O.
Gestwick’s Garden State Gazette:
Dear Readers:
First, I am honored to have been promoted to Associate Editor of this wonderful publication. Helping bring the wisdom of my colleagues to your desks every other Friday morning truly does bring me joy.
I can’t believe it’s already December. The Bills are ramping up toward the playoffs (hopefully), the Sabres are chuggin’ along, and the Buffalo Bandits are back in action. I love this time of year.
Two cases for you this time: the first, a lesson in embezzlement (no, not a “how to”). Instead, the question is this: if several instances of embezzlement take place over several policy years, does the per occurrence limit apply just once, or is the full limit available for each discrete incident? The second case deals with ambiguity found in a step-down provision of a UIM endorsement.
That’s all, folks. See you in two more weeks.
Evan
Evan D. Gestwick
[email protected]
Keeping Women Young – 100 Years Ago:
The Buffalo News
Buffalo, New York
5 Dec 1925
PROFESSORS CLAIM NEW
MEANS OF REJUVENATION
By EDGAR ANSEL MOWRER.
BERLIN, Dec. 5. – A new specific for keeping women young has been found by two Berlin professors, Zondek and Bernhardt. This is called Ovowop.
Heretofore so-called substitution, whereby external substitutes for nonworking or poorly working ductless glands were introduced into the body, has given rise to much charlatanry and faking. Previous products were mostly not specific, and since they failed to stand exact clinical tests it can be supposed that their occasional successes were due to auto-suggestion.
Now the thing seems to have changed. The two professors, on the basis of long tests, claim infallible results in rejuvenating, or bettering the condition of women.
O’Shea Rides the Circuits:
Readers:
This year my wife and I did not delay on procuring a tree and decorating our home. I can happily write the mission was accomplished by the second day of December. The dogs also partook in decoration through inspection of the ornaments prior to placement. A few side-eyes indicated improper placement, which we corrected accordingly. I can also write that eggnog is a no-go for myself. After I acquiesced to my wife’s request to try the concoction, I can affirm my disdain for the unpalatable beverage.
This week I have a decision from the Eleventh Circuit discussing the Employer’s Liability Exclusion found in most commercial general liability policies. The court noted its relation to Alabama’s workers' compensation statute and why the exclusion is found in general liability policies.
Until Next Time,
Ryan
Ryan P. O’Shea
[email protected]
Who Wouldn’t Want to Watch That? – 100 Years Ago:
The Buffalo News
Buffalo, New York
5 Dec 1925
RAILWAY MEN TO DANCE.
OLEAN, Dec. 5. – The 21st annual ball of the Order of Railway Conductors of this city will take place in the Knights of Columbus hall, Wednesday night, December 30. William Hanson is chairman of the affair, and J.J. Biggins and W.H. Cunningham are members of the committee.
LaBarbera’s Lower Court Library:
Dear Readers:
Hope everyone had a lovely and safe Thanksgiving. We were a bit troubled by the weather forecast, but luckily we were able to successfully make it to Rochester for the day to visit my brother. Looking forward to switching gears this weekend and stringing lights up on the roof.
This week I am reporting on a Kings County decision, finding that the insurer had a duty to defend its insureds for an underlying lawsuit alleging private nuisance, declaratory judgment, and injunctive relief. The court found that a duty to defend was triggered, holding that the allegation of diminished property value constitutes “property damage” caused by an “occurrence,” as defined by the policy.
See you next time…
Isabelle
Isabelle H. LaBarbera
[email protected]
Annulment Based on Failure to Advise of “Negro Blood” Failed. Couple Divorced Later. Alice was Given Lots of Money to Go Away and Never Use Rhinelander Name. Hubby Died of Pneumonia 12 Years Later – 100 Years Ago:
The Buffalo News
Buffalo, New York
5 Dec 1925
RHINELANDER LOSES
HIS SUIT TO ANNUL
Jury Finds Alice Jones Did Not Deceive
Her Husband as to Negro Blood –
Judge Reserves Decision
WHITE PLAINS, Dec. 5 – Leonard Kip Rhinelander, wealthy member of a New York family, lost his annulment suit against his mulatto wife, Alice Beatrice Jones, in a verdict returned today by the jury which heard the case. Answers favorable to Mrs. Rhinelander were returned to all the questions except the first and the seventh. The first, that of whether Mrs. Rhinelander was of colored blood at the time of the marriage, has been conceded as a fact by the defense during the trial. The jury made no answer to the seventh question: “Did the plaintiff live with the defendant after he obtained full knowledge that the defendant was of colored blood?”
The jury in its answers to the other five questions found that Mrs. Rhinelander did not deceive her husband, either positively or negatively, as to her negro blood: that she did not conceal this fact to induce the plaintiff to marry her, and that he would have married her even had he known she was of negro blood.
Isaac N. Mills, counsel for Rhinelander, demanded that a poll of the jury be taken, which was done. There was no demonstration in the court when the jury’s findings were read.
Lexi’s Legislative Lowdown:
Dear Readers,
We’re picking out our Christmas tree this weekend, and as tradition goes, I’ll be cutting it down while my fiancé waits patiently. I’m excited to decorate our home and fully embrace the holiday spirit!
This week we discuss the Governor’s signing of Bill S8195 which clarifies the types of documents for which affirmations can be substituted for affidavits in civil matters.
Thanks for reading,
Lexi
Lexi R. Horton
[email protected]
Flirting is Dangerous – 100 Years Ago:
International Gazette
Black Rock, New York
5 Dec 1925
Trying to Flirt
Run Down Baby
Frederick Randaccio, 21 years old, of 302 Vermont street, while trying to flirt with Edna Newton, eighteen years old, of 683 Prospect avenue, in Vermont street, November 2, ran down and seriously injured Elsworth E. Moore, seven years old, son of Ernest Moore of 428 Fargo avenue.
When the lad was arraigned in city court charged with reckless driving the girl testified that Randaccio tooted his horn, looked back at her and beckoned to her but she ignored him. The next instant he had struck the child. Judge Woltz fined him $50 and revoked his automobile license.
Victoria’s Vision on Bad Faith
Dear Readers,
I hope you all had a lovely Thanksgiving. I made two pies this year, cherry and chai pear. My first time making both and they turned out perfect.
This week, I have a Florida case for you, which discusses Florida’s requirement of filing a civil remedy notice with DFS prior to filing a bad faith lawsuit, and when arguments of deficiency must be raised.
Have a good weekend,
Victoria
Victoria S. Heist
[email protected]
Governor Smith: "I guess that's one way to find out your son's married." – 100 Years Ago:
Press and Sun-Bulletin
Binghamton, New York
5 Dec 1925
Governor’s Son
Secretly Weds
Albany Girl
Arthur Smith and Miss
Anna Hess Married Year
Ago – Romance Is Revealed
When ‘Al’ Learns
He is Grandfather
FOLLOWED BROTHER
New York, Dec. 5 – Romance again has invaded the home of Governor Al Smith.
A year ago Al Smith, Jr., eloped with Miss Bertha Gott of Syracuse when he was just 23. About the same time, it was learned last night, his younger brother, Arthur, the governor’s second son, then not quite 18, held an elopement of his own.
Arthur was secretly married to Miss Ann Hess, his own age, of Albany, but kept the wedding secret until a few days ago when his wife became a mother. Then the governor and Mrs. Smith for the first time learned of the romance of their young college son. Details of the marriage have not been revealed.
Shim’s Serious Injury Segment
Hi Readers,
Hope everyone had a great Thanksgiving and was surrounded by loved ones. We have officially kicked off the holiday season. What better place to be for the holiday season than New York City? Make the trip out to see the Dyker Heights Christmas Lights, Bryant Park Winter Village, Rockefeller Center and Radio City Music Hall’s Christmas Spectacular just to name a few. The greatest city in the world gets that much greater every holiday season.
In this column, I have shared a Kings County decision which granted, in part, and denied, in part, Defendant’s motion on the issue of the serious injury threshold. There continue to be few full decisions concerning the issue of serious injury. Hopefully there will be more recent ones to choose from in the next issue.
See you in the next issue!
Stephen
Stephen M. Shimshi
[email protected]
Beer Good for Cooking – Even During Prohibition – 100 Years Ago:
The Evening Sun
Baltimore, Maryland
5 Dec 1925
Beer Splendid Antidote
For Bad Cooking,
Doctor Says
London, Dec. 5. – Beer is an excellent antidote for bad cooking according to Sir William Milligan, medical expert, in a speech here.
“If all the young women were taught- instead of botany, psychology and kindred subjects – how to cook a potato and how to roast a piece of beef, there would be less drunkenness,” he declared. “Many a workman drinks beer to minimize the effects of his wife’s bad cooking.”
He declared alcohol has come to stay and that, used moderately, it is beneficial.
North of the Border:
Work has been fast and furious of late as clients are winding down in this last quarter of 2025. But that is okay as winter has returned to Alberta and better to be working indoors then out in the snow and cold.
My column this week is on a CGL issue that pops up from time to time.
Best
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]
- Second Department Allows Deposition of SUM Adjuster – Thousands Flee.
- Time for the Legislature to Step In. High Court Finds That DFS Determination That No Fault Kickback Schemes Do Not Disqualify Acupuncturists From Receiving No Fault Reimbursement Is a Rational Interpretation of the Regulations
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
- Carrier/Subrogee Is Bound by Positions Advanced by Subrogor/Insured in Related Litigation
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
- No case this week. See you in two more.
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
- Insurer Not Liable for Lost Wages Claimed by Defendant Which Were Not Sufficiently Substantiated
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
- No case for me this edition. See you in two weeks.
STORM’S SIU
Scott D. Storm
[email protected]
- Claims for Specific Performance (Appraisal), Breach of Contract, and Tortious Interference (Against the Adjuster) Were Dismissed as Time-Barred or Legally Insufficient. An Adjuster Cannot Be Personally Liable Under Pennsylvania's Insurance Bad Faith Statute
- New York’s First Department Finds Litigation Funding Documents Discoverable as They Could Reveal a Financial Motive for Fabricating the Accident
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
- Nothing noteworthy this week
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
- Several Acts of Embezzlement Constitute a Single Occurrence When Part of a Single Ongoing Scheme to Defraud
- Step-Down Provision in Uninsured/Underinsured Motorist Endorsement Found to Be Ambiguous Because It Did Not Specify, in Terms of Dollars, the Applicable “Mandatory Minimum Financial Responsibility Limit.” Thousands Flee
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
- Employer’s Liability Exclusion Applied to Employee’s Injuries Sustained After Shift Ended and Employee Approached Personal Vehicle in Employer Designated Parking Area
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
- Court Finds Duty to Defend Insured Finding That Diminished Property Value Caused by the Intentional Act of Refusing to Cut Trees Constitutes “Property Damage” Caused by an “Occurrence”
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
- Governor Signs Bill S8195 Adding Clarity to the Use of Affirmations in Civil Proceedings
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
- Florida Court Finds Insurer Waived CRN Deficiency Arguments
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
- Brooklyn Court Grants Defendant’s Motion With Respect to Plaintiffs’ Claims of Permanent Loss, but Denies Defendant’s Motion as to Permanent Consequential Limitation of Use, Significant Limitation of Use, and 90/180
NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]
The content of this column also appears in the “Liability & Insurance,” a monthly newsletter focusing on Canadian coverage and published by Heather Sanderson. Contact her for a subscription.
- The Alberta Court of King’s Bench Confirms that a CGL Applies to Property Damage Occurring During the Policy Period and Not to Property Damage Originating in the Policy Period.
That’s all we have.
We do welcome the large group of new subscribers who joined us recently after attending our first offering of Coverage Pointer University.
All our best.
Dan
Hurwitz Fine P.C. is a full-service law firm providing legal services throughout the State of New York and providing insurance coverage advice and counsel in Connecticut 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
Peiper on Property and Potpourri
Lee’s Connecticut Chronicles
Ruffner’s Road Review
Gestwick’s Garden State Gazette
LaBarbera’s Lower Court Library
Lexi’s Legislative Lowdown
Victoria’s Vision on Bad Faith
KOHANE’S COVERAGE CORNER
Dan D. Kohane
[email protected]
12/03/25 Amvrosiatos v. Hanover Insurance Group
Appellate Division, Second Department
Second Department Allows Deposition of SUM Adjuster – Thousands Flee.
The plaintiff allegedly sustained injuries when, as a pedestrian, he was struck by a vehicle, insured by Hanover for which a supplementary uninsured/underinsured motorist (“SUM”) endorsement was in place. After settling with the tortfeasor driver for the full limit of the driver's insurance policy with the defendant's consent, the plaintiff submitted a claim for SUM benefits to the defendant. The defendant denied the claim.
The plaintiff commenced this action to recover damages for breach of contract. Following the plaintiff's deposition, the defendant moved pursuant to CPLR 3103 for a protective order directing that a representative of the defendant is not obligated to appear for a deposition.
It is incumbent on the party seeking disclosure to demonstrate that the method of discovery sought will result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims, and unsubstantiated bare allegations of relevancy are insufficient to establish the factual predicate regarding relevancy.
An insurance carrier has a duty to 'investigate in good faith and pay covered claims'
Here, the plaintiff contends that the deposition of the claims adjuster who investigated the plaintiff's claims would reveal evidence regarding the nature, extent, timing, and adequacy of the defendant's investigation. Thus, the plaintiff sufficiently asserted that deposing the claims adjuster may result in the disclosure of relevant evidence and is reasonably calculated to lead to the discovery of information bearing on the plaintiff's claims.
Editor’s note: This is a terrible decision. What the SUM adjuster did or didn’t do in evaluating the value of the SUM claim is absolutely of no consequence to the right of recovery. If the claim is worth a nickel or $1,000,000, the value is what the value is. The SUM claim has NOTHING to do with claim handling. Imagine if the claims professional testifies at the deposition that he thinks this claim for $900.000 in SUM benefits is only worth $100,000, based on the years of experience in handling claims. Would that testimony be admissible in an arbitration or trial? Clearly not. Could it lead to something admissible? Clearly not. So, what is the purpose of the deposition?
I posted this on LinkedIn yesterday and others, non-New Yorker, and claimants’ attorneys disagree with me. It has generated almost 7000 views and a lot of controversy. Feel free to jump in to protect me! Ha.
11/24/25 Government Employees Insurance Company v. Mayzenberg
New York State Court of Appeals
Time for the Legislature to Step In. High Court Finds That DFS Determination That No Fault Kickback Schemes Do Not Disqualify Acupuncturists From Receiving No Fault Reimbursement Is a Rational Interpretation of the Regulations
A regulation promulgated by the Department of Financial Services ("DFS") permits an insurer to deny a healthcare provider's no-fault benefits claim because the provider allegedly committed professional misconduct by paying for patient referrals. DFS interprets its regulation to allow an insurer to deny a no-fault benefits claim only when a provider fails to fulfill a foundational licensing requirement necessary to perform healthcare services in any instance, and not when an insurer unilaterally determines that a properly-licensed provider has committed professional misconduct, short of effectively abdicating control to an unlicensed party.
The high court upholds that interpretation is rational, because it is consistent with the regulation's plain text, the no-fault statutory framework, and the legislative purposes of providing swift compensation to victims of motor vehicle accidents and reducing litigation costs.
GEICO) filed a federal action in the Eastern District of New York against Mayzenberg and several other defendants who were not licensed acupuncturists seeking a declaratory judgment that one of Mayzenberg's professional service corporations, was not entitled to reimbursement for pending no-fault benefits claims for services it provided over several years. Relying on 11 NYCRR 65-3.16 (a) (12), GEICO asserted that defendants had engaged in a "kickback" scheme, wherein Mayzenberg paid the Dovmans and some of their companies for patient referrals to Mayzenberg’s company in violation of professional conduct standards set forth in Education Law § 6530 (18) and a corresponding regulation,
The District Court concluded that there was no genuine dispute of fact that Mayzenberg "engaged in a scheme to defraud GEICO using unlawful fee-splitting, kickback, and referral arrangements with unlicensed persons in violation of New York law" and also determined that engaging in this patient referral payment scheme rendered Mingmen ineligible for reimbursement of its pending no-fault benefits claims DFS regulations. It determined that GEICO need not reimburse for any outstanding no-fault benefits claims.
The question at the Second Circuit was whether that ethical violation renders the Mayzenberg ineligible to receive payments for no-fault benefits. As the Second Circuit could not predict how New York courts would resolve this novel issue of New York law, it certified the following question:
"If an insurer determines a healthcare provider has improperly paid others for patient referrals, in violation of [Education Law § 6350 (18)] and [8 NYCRR 29.1 (b) (3)], can the insurer deny payment for no-fault benefits on the ground that the provider 'fail[ed] to meet' a 'necessary' State or local licensing requirement under [11 NYCRR 65-3.16 (a) (12)]?" (id. at 415, 422).
The Court of Appeals determined that an insurer may not deny a provider's claim for reimbursement based on alleged professional misconduct that falls short of ceding control of a professional services corporation to an unlicensed party.
In previous decisions, the court held that where unlicensed individuals paid licensed physicians to include their names in paperwork filed with the State to incorporate professional services corporations, while the unlicensed individuals actually operated the businesses upon incorporation, benefits can be denied. The Court explained that "the applicable state licensing requirements . . . prohibit nonphysicians from owning or controlling medical service corporations.”
By contrast, Mayzenberg's alleged professional misconduct would not affect his license until State regulators choose, in their discretion, to impose such a penalty.
Insurers are not without recourse if they conclude that a provider has fraudulently billed for unnecessary or nonexistent services or has allowed nonphysicians to control a professional services corporation. Indeed, an insurer may deny a claim for reimbursement on the ground that the medical expenses were not necessary (see Insurance Law § 5102 [a] [1]). Thus, it was rational for DFS not to draft 11 NYCRR 65-3.16 (a) (12) to encompass medically unnecessary services when insurers could already deny reimbursement on that basis.
GEICO's assertion that the State's efforts to combat fraud in the no-fault insurance system are lacking, if true, is concerning. Indeed, DFS's interpretation of 11 NYCRR 65-3.16 (a) (12) relies in part on its assertion of exclusive State authority to regulate and police the conduct at issue here. The question of how best to combat fraud in the no-fault insurance system implies policy concerns best left to the legislature and DFS, not the Court.
Chief Judge Wilson filed a strong, but singular dissent.
Editor’s Note: Combatting No Fault fraud, rampant in New York, deserves attention. With this decision in hand, the Legislature needs to step in.
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
11/26/25 St. Farm Fire & Cas. Co. v. Dan Heller Plumbing & Heating, Inc.
Appellate Division, Second Department
Carrier/Subrogee Is Bound by Positions Advanced by Subrogor/Insured in Related Litigation
State Farm insured a certain commercial property owned by New Age. In 2015, New Age leased the premises to Brownstones Coffee and Country Fare. When fire damaged the premises, State Farm paid the claim on behalf of New Age. State Farm, in turn, then commenced a subrogation against both Brownstone and Country Fare.
At roughly the same time, Brownstone’s insurer, Utica, commenced a subrogation directly against New Age. Country Fare’s insurer, Graphic Arts, also commenced a subrogation against New Age. New Age moved to dismiss the subrogation actions commenced against it on the basis of a waiver of subrogation clause found within the leases it executed with Brownstone and Country Fare, respectively. Importantly, the trial court granted New Age’s motion thereby voiding the subrogation claims of Utica and Graphic Arts.
When the subrogation actions were dismissed, Brownstone and Country Fare then moved for summary judgment dismissing State Farm’s subrogation action. The basis of the motion was the waiver of subrogation clause which New Age had just used as a shield to the subrogation matters commenced by Utica and Graphic Arts. The trial court granted the applications of Brownstone and Country Fare, and State Farm initiated this appeal.
In affirming the trial court, the Appellate Division noted that a party cannot adopt a position later in the litigation which is directly contrary to a position it took earlier. In addition, the same doctrine applies where the position changes in subsequent litigation between the same parties. To wit, here State Farm could not argue that the waiver of subrogation clause did not apply when its subrogor, New Age, argued in the same dispute that it was dispositive of the subrogation claims. Because State Farm’s rights are derived from New Age, through the doctrine of subrogation, New Age’s position was inextricably linked to State Farm. And, as such, State Farm was bound by the arguments advanced by New Age.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
No case this week. See you in two more.
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
11/26/25 Government Employees Insurance Company v. Matthew Picone
Appellate Division, Second Department
Insurer Not Liable for Lost Wages Claimed by Defendant Which Were Not Sufficiently Substantiated
The insurer brought this action pursuant to Insurance Law § 5106(c) for a de novo review of an arbitration award in favor of the defendant regarding his claim for no-fault lost wage benefits. The defendant counterclaimed, alleging breach of contract and unfair claims settlement practices. The defendant moved for summary judgment dismissing the complaint and counterclaims, which was denied by the Supreme Court. The insurer’s cross motion was granted, and a judgment was entered declaring that the insurer was not liable to the defendant for the payment of any lost wages claimed by the defendant.
An eligible individual who makes a claim under the No-Fault Law must be compensated for "[l]oss of earnings from work which the person would have performed had he [or she] not been injured" Insurance Law § 5102(a)(2). In calculating lost wage benefits, 11 NYCRR 65-3.16(b)(6) provides that if the applicant, while disabled, is discharged from employment solely because of inability to work due to the injury, benefits for basic economic loss shall continue at the same level while the disability continues. The statutory and regulatory provisions that govern the recovery of lost earnings require a degree of certainty in the calculation of lost wages, as the Legislature intended to compensate the accident victim for the earnings they would have realized.
Here, the court determined that the insurer demonstrated its entitlement to judgment as a matter of law on the defendant's claim for lost wages. In support of its cross-motion the insurer submitted a report by a certified public accountant, the defendant's personal and business tax returns, the defendant's bankruptcy petition, and a transcript of the defendant's deposition. The tax returns were inconsistent with each other and the facts set forth in the bankruptcy petition. Further, the defendant failed to explain the discrepancies during his deposition and failed to produce business records documenting his income.
Accordingly, the Appellate Court determined the Supreme Court properly entered a judgment declaring that the insurer was not liable to the defendant for the payment of any lost wages claimed by the defendant and dismissing the breach of contract counterclaim. The Supreme Court also properly granted summary judgment dismissing his counterclaim alleging unfair claims settlement practices as the applicable statute, Insurance Law § 2601, does not create a private right of action (see Rocanova v. Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 614; Lobello v. New York Cent. Mut. Fire Ins. Co., 152 AD3d 1206, 1207-1208).
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
No case for me this edition. See you in two weeks.
STORM’S SIU
Scott D. Storm
[email protected]
11/19/25 Funaro v. State Farm Fire & Cas. Co.
United States District Court, W.D. Pennsylvania
Claims for Specific Performance (Appraisal), Breach of Contract, and Tortious Interference (Against the Adjuster) Were Dismissed as Time-Barred or Legally Insufficient. An Adjuster Cannot Be Personally Liable Under Pennsylvania's Insurance Bad Faith Statute
Plaintiffs' barn roof collapsed on January 10, 2021, causing damage to the structure and contents. State Farm accepted liability and paid approximately $40,000, but Plaintiffs claimed repairs would cost $225,000. State Farm later paid an additional $35,000 for a damaged French stove. Plaintiffs filed suit on December 3, 2024, nearly four years after the loss for breach of contract, tortious interference, statutory bad faith, and to compel appraisal. The insurance policy contained a provision stating, “Any action by any party must be started within one year after the date of loss or damage.”
State Farm moved to dismiss under Rule 12(b)(6), arguing the claims were time-barred by the policy’s one-year “Suit Against Us” provision and that the tortious interference claim against its adjuster was frivolous.
Where State Farm's claims adjuster allegedly made false statements about policy coverage and declined to order appraisal but did not act outside his agency relationship or for his own benefit, the tortious interference claim against him was frivolous and he was deemed fraudulently joined. The court determined the adjuster was fraudulently joined because claims adjusters cannot tortiously interfere with their principal's contracts when acting within their agency relationship, and Plaintiffs failed to allege the adjuster acted outside this scope.
To prevail on a claim for tortious interference with an existing contractual relation under Pennsylvania law, a plaintiff must plead and prove the following elements: (1) The existence of a contractual relation between the complainant and a third party; (2) purposeful action on the part of the defendant, specifically intended to harm the existing contractual relation; (3) the absence of privilege or justification on the part of the defendant; and (4) the occasioning of actual legal damage as a result of the defendant's conduct.
Because the acts of an agent within the scope of his agency are imputed to and binding on a corporation, an agent of a corporation has a qualified privilege from liability for a claim of tortious interference with a contract between his principal and a third party. Otherwise, holding an agent liable would be like holding the principal itself liable for the tort of interfering with its own contract, instead of holding the principal liable for breach of contract. Nevertheless, an agent can qualify as a third party if his acts fall outside the scope of his employment.
The court also found that the breach of contract and specific performance claims were time-barred by the policy's one-year limitation provision, which Pennsylvania courts have consistently upheld as reasonable. As Plaintiffs filed suit nearly four years after their January 10, 2021, loss, despite the policy's provision that “Any action by any party must be started within one year after the date of loss or damage,” their breach of contract claim and request for specific performance were time-barred. The request for appraisal (specific performance) was tied to enforcement of policy rights and thus also time barred. The court rejected arguments that the limitation was unconscionable or that State Farm’s conduct tolled the period, finding no facts to support estoppel or untimely conduct by State Farm.
The statutory bad faith claim against the adjuster was dismissed with prejudice because, as an adjuster rather than an insurer, he could not be liable under Pennsylvania's insurance bad faith statute. The plain language of 42 Pa. Cons. Stat. § 8371 makes clear that only an insurer, not an insurance adjuster, can be held liable under Pennsylvania's insurance bad faith statute.
The statutory bad faith claim against State Farm was not dismissed, as State Farm did not move to dismiss it. The court noted it was premature to decide if compelling appraisal was an appropriate remedy for bad faith but allowed the claim to proceed. Statutory bad faith claims may proceed independently of time-barred contract claims.
11/20/25 Lituma v. Liberty Coca-Cola Beverages, LLC, et al
Appellate Division of the Supreme Court of New York, First Department
New York’s First Department Finds Litigation Funding Documents Discoverable as They Could Reveal a Financial Motive for Fabricating the Accident
Be sure to read Ryan Maxwell’s LinkedIn article. https://www.hurwitzfine.com/blog/new-york-s-first-department-finds-litigation-funding-documents-discoverable
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
Nothing noteworthy this week.
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
11/24/25 Raymond’s Rest. Corp. v. Travelers Indem. Co. of Am.
Superior Court of New Jersey, Appellate Division
Several Acts of Embezzlement Constitute a Single Occurrence When Part of a Single Ongoing Scheme to Defraud
Travelers insured Raymond’s Restaurant Corporation for three consecutive one-year policy terms. Each policy contained an Employee Dishonesty coverage part, each with a specific limit of $25,000 per occurrence.
During the life of each policy term, an employee of Raymond’s embezzled over one million dollars from the company. After discovering this, Raymond’s made a claim under the Employee Dishonesty part of its policy with Travelers, who responded by agreeing to pay $25,000 in satisfaction of all of its coverage obligations owed to Raymond’s. This lawsuit followed.
The insuring agreement of the Employee Dishonesty coverage part defined an “occurrence” as “all loss or damage covered by the same ‘employee(s)’ whether the result of a single act or a series of acts.” Travelers relied on this language in contending that the employee’s several acts of embezzlement, even if occurring over several policy years, constituted a single occurrence, limiting the amount owed to a single payment of $25,000. Raymond’s argued that because the total embezzlement scheme consisted of several discrete instances of embezzlement and occurred over a span of several policy terms, each act of embezzlement should constitute a separate occurrence with the full $25,000 available.
The Court held that all of the theft was part of one ongoing scheme to defraud and therefore found that the full theft amounted to only one occurrence. The Court reasoned that this set of facts is different from others, since the victim and thief were the same with respect to each discrete act. The Court distinguished another case in which a car salesperson fraudulently sold 27 vehicles on 27 separate occasions to 27 distinct customers. Here, while there were several individual instances of embezzlement, Raymond’s was the victim, and the employee was the thief, with respect to each instance, essentially morphing them into one.
11/24/25 Picoita v. Progressive Garden State Insurance Company
Superior Court of New Jersey, Appellate Division
Step-Down Provision in Uninsured/Underinsured Motorist Endorsement Found to Be Ambiguous Because It Did Not Specify, in Terms of Dollars, the Applicable “Mandatory Minimum Financial Responsibility Limit.” Thousands Flee
Picoita was injured while driving a vehicle owned by Juan Florez. Picoita was neither married nor otherwise related to Florez and owned neither a vehicle nor automobile insurance of her own.
Florez was insured by Progressive under a policy that included Uninsured/Underinsured Motorists Coverage (“UIM”) with limits of $50,000 per person and $100,000 per accident. However, Florez’ UIM endorsement contained a “step-down” provision that reduced the available limits to the “mandatory minimum financial responsibility limits specified by the law of New Jersey” if the UIM Claimant was: (1) not a named insured or a spouse of the named insured; (2) not a relative of the named insured; and (3) not insured under any other motor vehicle policy. In other words, if the UIM Claimant was driving an insured auto as a permissive user, but not married or otherwise related to the named insured, and does not have an auto insurance policy of their own, the UIM limit applicable to them is $25,000 (New Jersey’s mandatory minimum amount of UIM coverage), regardless of the limit provided in the policy’s declarations.
Progressive limited payment of Piciota’s UIM claim to $25,000, as required by New Jersey law. Piciota commenced this action, contending that she was entitled to the full $50,000 UIM limit. On appeal, Piciota argued that the endorsement’s language, limiting the UIM limit to the State minimum if certain conditions are met, was ambiguous because the use of the phrase “mandatory minimum financial responsibility limits specified by the law of New Jersey” was ambiguous. Particularly, Piciota argued that the ordinary layperson does not know the minimum UIM limit required by New Jersey law and would have to perform legal research to find out to answer.
The Appellate Division reversed the determination of the trial court and found that the step-down provision was ambiguous. The Court reasoned first that the policy’s declarations listed the UIM limit as $50,000 and did not mention that the limit may change depending on the Claimant’s relationship with the named insured. The Court also found that the limiting provision in the step-down clause was “incomprehensible” without drawing legalistic distinctions or engaging in strenuous study. The Court explained that, in order for a UIM Claimant to discover the available limits under the step-down provision, she would have to search for the controlling statute specifying the mandatory limits, as well as case law interpreting the statute.
Editor’s Note: Yikes. This decision seems to suggest that UIM insurers need to specifically reference the actual state required minimum in their step-down provisions. What if an accident occurs in a state other than that in which the policy was issued? Some states have deemer statutes, which, depending on the language of the statute, impose their own state’s minimum limits on the out-of-state policy. And what if the state minimum changes during the life of a policy? This actually happened in New Jersey a few years ago. Effective January 1, 2023, the New Jersey Legislature increased the minimum UIM limit from $15,000 to $25,000. Of course, that would inure to the benefit of a UIM Claimant, but would a Court find that the entire step-down provision was invalid simply because it specified an amount less than that minimally required? I’d hope not.
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
11/26/25 Babwari v. State Farm Fire & Cas. Co.
United State Court of Appeals, Eleventh Circuit
Employer’s Liability Exclusion Applied to Employee’s Injuries Sustained After Shift Ended and Employee Approached Personal Vehicle in Employer Designated Parking Area
Pit Stop Grocery (“Pit Stop”) employed Babwari as a convenience store clerk. After closing the store by himself, Babwari completed his shift and walked to his car. Pit Stop required Babwari to park in specific area of the business’s lot. Unfortunately, an unknown assailant approached, robbed, and shot Babwari nine (9) times. Babwari survived the ordeal. He then sued Pit Stop for negligence and wantonness for failure to take reasonable security measures, as well under Alabama’s Employer’s Liability Act.
After receiving a judgment on consent, Babwari brought a direct action against Pit Stop’s insurer State Farm, who disclaimed coverage and withdrew from Pit Stop’s defense in the underlying tort action. The dispositive exclusion relied upon State Farm was the Employer’s Liability Exclusion. The appellate court noted the exclusion’s language mirrored Alabama’s worker’s compensation statute. Particularly that the exclusion denied coverage for employee’s injuries arising out of and in the course of the employment or in the performance of duties for the insured’s business. Whereas the Alabama workers compensation statute expressly covered injuries arising out of and in the course of employment.
This analogy provided the basis of the court’s reasoning to support its decision. The court reasoned that an employer’s general liability insurance is designed to provide protection against injuries to the public, not the insured’s own employees. Thus, the exclusion preserves the distinction between injuries compensable through workers’ compensation and injuries to the public, thereby preventing duplicative relief for an employee’s injuries.
Alabama interprets the exclusion to be conditional in application. Specifically, that an employee’s injury must (1) arises out of and (2) be in the course of employment. Arises out simply means a causal relationship between the injury and the employee’s duties. The term course of employment is not limited to work-related tasks, but is broadened to include reasonable time, space, and opportunity before and after work while the employee is at or near his place of employment. Both conditions were met as Babwari sustained his injuries by approaching a parking space that his employer directed him to park in a parking lot maintained by Pit Stop after closing the business. Further, Alabama recognizes injuries sustained immediately before or after work in a parking lot owned and maintained by the employer. As such, the exclusion applied to Babwari’s claims against Pit Stop.
The court rejected Babwari’s counterargument that his injuries would not be compensable under workers' compensation as the present matter related to policy interpretation only. Since the exclusion applied it was immaterial as to whether Babwari sustained an “injury” as defined under Alabama’s workers’ compensation statute.
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
11/25/25 Fayngersh v. Kingstone Ins. Co.
New York State Supreme Court, Kings County
Court Finds Duty to Defend Insured Finding That Diminished Property Value Caused by the Intentional Act of Refusing to Cut Trees Constitutes “Property Damage” Caused by an “Occurrence”
Three policyholders brought an action against Kingstone Insurance Company (“Kingstone”), seeking a declaration that Kingstone was obligated to defend and indemnify the insureds in an underlying action pending in Kings County. Kingstone issued a homeowners insurance policy to the policyholders for the property located at 232 Corbin Place, Brooklyn, New York 11235 (the “Insured Location”).
The insureds’ neighbors brought the underlying action and asserted three causes of action: (1) private nuisance; (2) declaratory judgment; and (3) injunctive relief. The lawsuit alleged that the insureds failed to remove trees on their property, despite being asked, resulting in a private nuisance. It is alleged the neighbors’ view of the water was blocked, causing the neighbor to be deprived of the right of quiet enjoyment of the property. In addition, the claimant alleged that as a result of the nuisance, the neighbors’ property sustained diminished property values.
After receiving notice of the claim, Kingstone disclaimed coverage, identifying that the underlying action did not allege “property damage” caused by an “occurrence,” as defined by the Kingstone policy. Kingstone advised that the intentional refusal to cut-down trees, resulting in a private nuisance was neither “property damage” nor an “occurrence.” Kingstone identified that instead, it was an intentional act by the policyholders, resulting in no tangible injury to property.
As a result of the denial, the insureds retained private counsel to defend themselves in the underlying lawsuit. The insureds ultimately were successful in the defense, and the underlying action was dismissed. In the underlying action decision, the Kings County Supreme Court stated that the underlying plaintiff failed to adequately plead a cause of action for private nuisance, because New York does not recognize an easement for light, air, or views, except where created by express easement (and no evidence of express easement existed).
As the underlying action was ultimately dismissed, the only issue before the court was whether Kingstone had a duty to defend the insureds. The analysis by the court analyzed the terms “property damage” and “occurrence” as defined in the Kingstone policy to determine whether the duty to defend had been triggered.
“Property damage” in the Kingstone policy is defined to include “injury to or destruction of tangible property including the loss of its use.”
On summary judgment, Kingstone relied upon COVID-19 line of case law, whereby insureds sought recovery for governmental shut-down related loss. In these cases, the court held that the governmental shut-down order did not cause property damage, because no physical injury to property had occurred. The court found that the COVID-19 line of case law was inapplicable to the instant dispute, because the Kingstone policy did not contain the word “physical” in the definition of “property damage.”
The court removed the word “physical” as a prerequisite for injury under “property damage.” Instead, the court looked toward General Construction Law § 25-b, which defines injury to property as “an actionable event, whereby the estate of another is lessened other than a personal injury or the breach of contract.” Since the underlying plaintiff alleged that their property value was diminished, the court found that the underlying lawsuit sufficiently plead “property damage.”
The court next looked toward the definition of “occurrence.” The court found that the general rule, where “accident” is not defined in a policy, is to define “accident” as anything that happens or is the result of that which is unanticipated and takes place without the insured’s foresight or expectation or intention. Kingstone argued that the insureds intentionally did not trim or cut their trees, despite being asked to do so. Therefore, no “accident” occurred. However, the court disregarded the argument, finding that even though the act of refusing to cut trees was intentional, the resultant diminished property value was unintentional or unexpected, from the standpoint of the insured.
Accordingly, the Court found that the insureds established their entitlement to a defense in the underlying action. The Court found that Kingstone breached its duty to defend and ordered repayment of attorneys fees in the defense of the underlying action.
In addition, the court found that the insureds were entitled to recoup fees incurred in defending the declaratory judgment action. The court reasoned that although Kingstone did not commence the declaratory judgment action, it did assert counterclaims and opposed the insureds legal efforts to compel Kingstone to provide a defense to the underlying action.
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
12/05/25 New York Senate Bill S8195
New York State Senate
Governor Signs Bill S8195 Adding Clarity to the Use of Affirmations in Civil Proceedings
On November 21, 2025, the Governor signed Senate Bill S8195 which adds clarity and expands the use of affirmations in lieu of affidavits in civil matters.
The Bill amends CPLR §2106 which originally permitted attorneys and physicians to file unsigned affirmations in lieu of affidavits. In 2023, CPLR §2106 was expanded to permit all persons to submit affirmations instead of affidavits.
Bill S8195 seeks to clarify the amendments to § 2106 to expand and specify the types of documents for which affirmations can be substituted in civil matters. Bill S8195 clarifies that affirmations may be used in a certificate, response to a notice to admit, an answer to interrogatories, and a verification of a pleading.
The Bill states the affirmation should substantially state the following:
I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, EXCEPT AS TO MATTERS ALLEGED ON INFORMATION AND BELIEF AND AS TO THOSE MATTERS I BELIEVE IT TO BE TRUE, and I understand that this document may be filed in an action or proceeding in a court of law.
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
12/03/25 Frisco v. State Farm Flor. Ins. Co.
District Court of Appeal of Florida, Second District
Florida Court Finds Insurer Waived CRN Deficiency Arguments
The Friscos owned a home in Odessa, Florida that was insured by State Farm. The Friscos hired a contractor to remodel their home who left the roof exposed, resulting in water intrusion damage which the Friscos submitted to State Farm. State Farm accepted the claim, allowed the Friscos to hire a mitigation company, and issued over $10,000, in payment for the property damage.
After, State Farm advised the Friscos there was no coverage under their State Farm policy for poor workmanship or mold remediation, and they should "avoid taking any action that would hinder State Farm's subrogation claims against the contractors responsible for the water intrusion . . ." State Farm also told the Friscos to hire a general contractor to prepare an estimate of the repairs. They did, and the estimate prepared was sent to State Farm. The Friscos allege that State Farm never acknowledged the estimate and stopped adjusting the claim.
The Friscos then reported to State Farm that the original contractor placed a lien on their property, and State Farm declined to defend them against the contractor's claims.
The Friscos filed a civil remedy notice ("CRN") with the Department of Financial Services, alleging State Farm, amongst other things, acted in bad faith in handling their claim and violated Florida Statutes 624.155 and 626.9541. State Farm responded by demanding an appraisal, stating the damages were in dispute, but not whether there was coverage under the policy.
State Farm responded to the CRN, stating that State Farm specifically denied the Friscos' allegations of bad faith, and that State Farm had acted in good faith as statutorily required. It did not address any deficiencies with the CRN.
The Friscos then filed their bad faith lawsuit against State Farm, and State Farm moved for dismissal of the complaint, or in the alternative, summary judgment. In State Farm's memorandum of law, State Farm alleged that the CRN was deficient because it was "not specific enough to provide State Farm with the opportunity to cure its alleged violations" and only provided conclusory allegations.
The Friscos responded by arguing that State Farm waived its argument to the sufficiency of the CRN by not raising it before. State Farm's motion was denied. State Farm made a renewed motion for summary judgment, and argued the CRN was deficient because it demanded extra-contractual damages, attorney's fees and costs. The court granted State Farm's motion, based upon Talat Enterprises, Inc. v. Aetna Casualty & Surety Co. 753 So. 2d 1278 (Fla. 2000). The Friscos appealed.
In Florida, as a condition precedent to a bad faith lawsuit, an insured must file a CRN with DFS, which triggers a sixty-day cure, whereby the insurer may pay damages or otherwise cure the allegations. However, the Court stated seeking an appraisal is not a cure to a claim of bad faith, and payment under an appraisal award does not alleviate the insurer from bad faith liability.
The Court stated the focus of bad faith is not whether the insurer paid the claims, but whether the insurer acted reasonably in handling the claim and evaluating damages.
The Court concluded that State Farm waived its rights to argue the Friscos' CRN was deficient by failing to raise it in its response or prior to arguing in its motion for summary judgment, four years after the CRN was filed.
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
11/12/25 Longmore v. Bah
Kings County Supreme Court
Brooklyn Court Grants Defendant’s Motion With Respect to Plaintiffs’ Claims of Permanent Loss, but Denies Defendant’s Motion as to Permanent Consequential Limitation of Use, Significant Limitation of Use, and 90/180
This case involves personal injuries suffered by plaintiffs, Karen Longmore ("Longmore") and Patrick Mayne ("Mayne") (collectively, "Plaintiffs"), in connection with a motor vehicle accident that occurred on July 27, 2021, on Beach Channel Drive at or near its intersection with Beach 65th Street, Queens, New York. At the time of the accident, Longmore was driving a 2008 Infiniti. Mayne was a front-seat passenger in Longmore’s vehicle. Plaintiffs allege that Defendant’s vehicle struck Longmore’s vehicle. As a result of the accident, Plaintiffs allege that they sustained injuries to their cervical and lumbar spines. Defendant filed a motion to dismiss the complaint, arguing that Plaintiffs did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d). Defendant relies on: (1) the independent medical examinations ("IME") performed by Dr. Howard A. Kiernan, an orthopedic surgeon; (2) the radiological evaluations done by Dr. Scott A. Springer, a radiologist; and (3) Plaintiffs' deposition transcripts.
According to Dr. Kiernan’s IME report, Plaintiffs had full range of motion in their cervical and lumbar spines. All orthopedic tests conducted by Dr. Kiernan were negative. Dr. Kiernan concluded that all of Plaintiffs’ lumbar and cervical spine injuries had resolved. Dr. Springer, who reviewed the MRIs of Plaintiffs' cervical and lumbar spines, as well as Longmore's left knee X-ray, concluded that Plaintiffs’ radiology films showed no posttraumatic changes causally related to the subject accident. according to Dr. Springer Plaintiffs’ disc bulges, desiccation, and herniations reflected in Plaintiffs' cervical MRIs and disc desiccation and herniation in Mayne's lumbar MRI were degenerative in nature.
Defendant, citing Plaintiffs' deposition transcripts, argued that they did not sustain serious injuries within the meaning of Insurance Law § 5102(d). According to Longmore’s testimony, she did not seek treatment for her injuries until 1-2 weeks after the accident and ended treatment after less than a year. Longmore also testified that she was only working three hours per week at the time of the accident. Mayne testified that he did not seek treatment until one week after the date of loss and stopped treating within less than nine months.
In opposition, Plaintiffs argued that Defendant failed to meet his prima facie burden of demonstrating that Plaintiffs did not sustain a serious injury because: (1) Dr. Kiernan failed to review any of Plaintiffs’ medical records and based his opinion solely on his examinations conducted approximately two years after the accident; (2) Dr. Springer did not opine with a reasonable degree of medical certainty that his findings were degenerative; (3) Defendant’s experts did not address their 90/180 claim; and (4) defense counsel never asked Plaintiffs about their non-work limitations during the six months following the accident.
Permanent loss of use:
The Court found that Defendants met their prima facie burden as to the permanent loss of use category because the Plaintiffs’ ranges of motion were normal and recorded movement, in contravention of a complete and total loss of use in accordance with Insurance Law § 5102(d). (Albury v O'Reilly, 70 AD3d 612, 612 [2d Dept 2010], citing Oberly v Bangs Ambulance, 96 NY2d 295, 297, 751 NE2d 457, 727 NYS2d 378 [2001]). Plaintiffs failed to address this in their opposition.
Permanent consequential limitation of use of a body organ or member or a significant limitation of use of a body function or system:
According to Defendant’s IME report, Plaintiffs exhibited full range of motion and all injuries resolved or healed. Dr. Kiernan found that Plaintiffs “did not sustain any significant or permanent injury as a result of the subject accident.” Dr. Springer concluded that Plaintiffs’ had evidence of such injuries, but they were degenerative in nature. The Court found that due to the conflicting opinions, Defendant failed to meet his prima facie case. As such, the burden did not shift to Plaintiffs to demonstrate triable issues of fact. Lewis v Revello, 172 AD3d 505, 506 [1st Dept 2019].
90/180:
The Court held that Defendants failed to meet their burden as to the 90/180-day category. Menezes v Khan, 67 AD3d 654, 655 [2d Dept 2009]; Quinones v Ksieniewicz, 80 AD3d 506, 506 [1st Dept 2011]). At Plaintiffs’ depositions, they testified that they were not confined to their bed or home. They also testified that they missed over eight months from work, however. At Plaintiffs' depositions Defendant’s counsel did ask Plaintiffs about their limitations within six months immediately after the accident (see, Jong Cheol Yang v Grayline NY Tours, 186 AD3d 1501, 1501-1502 [2d Dept 2020]). Additionally, Defendant’s experts did not address 90/180 in their reports.
Based on the foregoing, the Court granted Defendant’s motion with respect to Plaintiffs’ claims of permanent loss but denied Defendant’s motion as to permanent consequential limitation of use, significant limitation of use, and 90/180.
NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]
01/24/25 Tragger v Intact Insurance Company
Alberta Court of King’s Bench (trial)
The Alberta Court of King’s Bench Confirms that a CGL Applies to Property Damage Occurring During the Policy Period and Not to Property Damage Originating in the Policy Period.
The Alberta Court of King’s Bench rendered a decision on November 24, 2025, that interprets the Products Hazard, Completed Operations Exclusion. Unfortunately, much of the underlying fact is contained in an unreported decision from Edmonton.
Property owners of two buildings hired a company to install stone siding. That company hired a subcontractor to install it. The subcontractor installed the siding in 2007. Seven years later, in 2014, the siding began to delaminate. The property owners removed and replaced the siding and then sued the contractor and the sub-contractor.
The property owners action went to summary judgment. In September of 2021, the trial judge held that the workmanship of the sub-contractor was faulty and held the sub-contractor liable to the plaintiff in negligence. The contractor was held liable to the property owners on the basis of breach of contract. Both the contractor and the sub-contractor were ordered to pay $310,000 to the property owners on a joint and several bases.
The property owners could not collect from the contractor and the sub-contractor. They then brought an action against the insurers of the defendants under s. 534 of the Alberta Insurance Act which provides:
The Plaintiff sued Royal Sun Alliance Insurance Company (RSA) and Intact Insurance Company (Intact). Unfortunately, the judgment does not specify which company insured who.
Insurer Arguments
Both insurers initially denied coverage, citing policy exclusions for incorrectly performed work. However, the policies included an exception for the products-completed operations hazard, which applies when damage occurs after project completion and away from the contractor's premises. RSA argued that the defect existed from the start.
The Decision
Coverage was found under the RSA policy and an Intact policy because, while both insurers initially argued that their policies excluded coverage for repairing incorrectly performed work, there was an exception in their policies for the "products-completed operations hazard." This exception applies when damage occurs after the work is complete and away from the contractor's premises. The judge determined that the policies focus on when physical damage happens, not on when the underlying defect originated. In this case, although the siding was installed in 2007 and failed in 2014, the coverage applied because the actual damage (delamination) occurred after the job was finished, qualifying as completed work under the products completed operations hazard. Therefore, coverage was granted under the RSA policy and one of the Intact policies due to the presence of this exception and the timing of the damage.
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