Volume XXVII, No. 14 (No. 713)
Friday, December 19, 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. Welcome new subscribers – this is our cover note, the actual issue of Coverage Pointers, is attached.
As I finalize this note, it is the fifth night of Chanukah. The picture is of my maternal grandparents, German diaspora survivors.
We celebrate Chanukah to commemorate the rededication of the Second Temple in Jerusalem and the miracle of the oil, marking Jewish victory over oppression and rededicating to faith, with traditions like lighting the menorah for eight nights, symbolizing that a small amount of oil miraculously lasted for days when only one was expected. This year, we recognize that oppression continues, as Jews are being exterminated simply because they are Jews. The attack on the Temple — an attack designed to destroy Jews - was in 164 BCE, almost 2200 years ago. Some things never change. But we continue to celebrate light and hope.
Peace be with you.
Coverage Pointers University
Congrats to Ryan Maxwell on his wonderful program on trucking coverage and the MCS90. Well over 100 attendees and at least 50 new Coverage Pointers subscribers (welcome one and al, issue is attached).
REGISTRATION IS NOW OPEN FOR OUR THIRD COURSE OFFERING
January 15, 2026
1:00 PM Eastern
A Risk Transfer Primer
Isabelle H. LaBarbera, Instructor
All you need to know to unravel contractual liability and additional insurance claims
-----
How Insurance Saved Christmas
‘Twas the night before Christmas, and on the claims floor,
Not a file was left open, not one to explore.
The policies nestled in binders with care,
In hopes that Saint Nicholas soon would be there.
But high over rooftops, disaster took shape—
A sleigh skidded sideways, a near-miss escape.
A reindeer misjudged on an icy, slick roof,
And Santa cried out, “we will need coverage proof”.
The elves checked the endorsements, exclusions, and forms,
“Is this an occurrence?” Restrictions for storms?.
No fraud, no intent, just a seasonal slip—
“Well within coverage,” said Elfship McZip.
The carrier answered the hotline with cheer,
“Relax, Mr. Claus, your coverage is clear.
We’ve got property and casualty, in case you get sued,
But who would sue Santa, that would be quite rude.
The workshop had damage, a roof caved right in,
Toy trains are bent sideways, and bears missing skin.
But replacement-cost coverage came riding along,
“No depreciation here—this claim won’t go wrong.”
A claim check was issued with admirable speed,
Adjusters deployed with remarkable creed.
They measured and scoped with a peppermint flair,
While Santa looked on, breathing the most pleasant air.
Meanwhile, a child slipped on a candy-cane walk,
There could be a lawsuit, (thought that might be talk).
But liability coverage will provide him a lawyer
Protecting old Santa—and his North Pole employer.
No bad faith, no delay, no coverage debate,
Just prompt investigation and payments first-rate.
Even subrogation took a polite little pause—
“No need,” said the carrier, “it’s Christmas, because…”
By dawn the sleigh sparkled, the toys were restored,
The elves back to work, productivity soared.
With reserves now released and the file marked “closed,”
Santa smiled wide—coverage perfectly posed.
And I heard him exclaim as he flew out of sight,
“Thank goodness for insurance—sleep easy tonight!
For when risks before us, and claim appear slick.
Good coverage saves Christmas… and our old friend St. Nick.”
The Case Count: A Look Back at CP’s 2025 Activity:
We love producing this newsletter for our thousands of subscribers. It is the product of the dedication of our column editors and our biggest supporter, Donna Boice. To publish this newsletter, we read and digest every New York, New Jersey, and Connecticut appellate decision, opinions from the high courts and federal circuits throughout the country, and, with the help of Heather Sanderson, the courts in Canada as well. We try to digest and foresee trends and advise you, in advance, of what we see developing in the field.
We so appreciate your feedback when we receive it, knowing that our publication has a positive impact on your company or in your practice. In the last issue of each calendar year, we pause to look back on the previous 12 months’ activities. We were pleased to provide over 400 reviews and commentaries this year, and again, we want to thank our HF CP team for all they do for you.
Here's the Count:
|
Kohane’s Coverage Corner |
58 |
|
Storm’s SIU |
53 |
|
Ruffner’s Road Review |
40 |
|
Lee’s Connecticut Chronicles |
37 |
|
Peiper on Property (and Potpourri) |
33 |
|
Gestwick’s Garden State Gazette |
30 |
|
O’Shea Rides the Circuits |
28 |
|
North of the Border |
26 |
|
LaBarbera’s Lower Court Library |
26 |
|
Lexi’s Legislative Lowdown |
24 |
|
Fleming’s Finest |
22 |
|
Victoria’s Vision on Bad Faith |
18 |
|
Ryan’s Federal Reporter |
17 |
|
Shim’s Serious Injury Segment |
12 |
|
Domenica’s Diary on Bad Faith |
7 |
|
Rob Reaches the Threshold |
6 |
|
Total |
437 |
A light year. Last year we reported on 471 opinions.
The Bad Faith Count
This is the statistic you wait for at the end of each year. No other state in the union can likely claim it:
It has been 27 years, six months and nine days since the last time an insurer has been held liable for bad faith, first party or third party, by a New York State appellate court. The last decision? Smith v. General Accident, 91 NY2s 648 (June 11, 1998).
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.
Even Then, Lead was Dangerous – 100 Years Ago:
The Ithaca Journal
Ithaca, New York
19 Dec 1925
Woman Fatally Hurt
Attempting To Recover
Pencil From Highway
Coudersport, Pa., Dec. 19 – Walking across the state highway to recover a pencil which had been dropped by a rural mail carrier, Mrs. Nick Ziska, 58 years old, of Roulette, near here, was struck and dragged several feet by an automobile late yesterday, her injuries resulting in death last night. Mrs. Ziska had been standing in the road conversing with the carrier just prior to the accident. The driver of the car was exonerated.
Peiper on Property (and Potpourri):
A quite couple of weeks on the property beat as we close out 2025. With nothing to report on this week, allow us to review where we’ve been for the past few weeks. At the time we went “to print” last issue, your writer was just finishing up speaking on mandatory arbitration/appraisal clauses at DRI’s annual Insurance Coverage Practice Symposium. Over the past 15 years or so, I have had the great opportunities to have spoken all over the country, in Canada and Europe. I have even been honored to speak at DRI-sponsored webinars; the Insurance Coverage Claims Institute Conference and Complex Coverage Conference. Until last month, though, I had never made it to the main stage at ICPS.
Nerves aside, it was great experience, and I was humbled to share the program with such a well-respected panel of speakers. Thanks to you who came back from lunch early to listen, and even more thanks to all of you who shared kind words with me after we concluded the remarks. We appreciate your commitment to the industry, and respect and value your opinion more than you could ever know.
A special thank you and congratulations to program chair, Courtney Britt, and vice-chair, Todd Weston. Great program, and thanks for letting me be part of it!
Along those same lines, my colleague, Ryan Maxwell, is just finishing up his program on everything you ever wanted to know about the MCS-90 endorsement and commercial trucking. Ryan is the second speaker in the Coverage Pointers University series and marks a distinct uptick in the quality of the presentation and materials from our inaugural effort organized by yours truly.
We are astounded, really, by the positive feedback we have all received. Thank you, as always, for your interest and commitment to professional growth. If you heard Ryan today, I’m sure you took some value from it. If you didn’t hear Ryan today, but still want to, don’t dismay. We’re working on creating a permanent home for all of our CPU courses where the video of the presentations can be accessed at your convenience and, if we may be so presumptive, in your time of need.
Our offerings don’t just end with Ryan and me. Isabelle LaBarbera is next up, on January 15, 2026, with a presentation on risk transfer of commercial claims. She is a wonderful speaker and trust us, you’ll take away at least one thing (and likely much more) that will be immediately useful in your everyday practice.
That’s it for now. Wishing everyone a healthy, happy and SAFE holiday season. See you in 2026.
Steve
Steven E. Peiper
[email protected]
Nice Try to Avoid Liquor Laws – 100 Years Ago:
Press and Sun-Bulletin
Binghamton, New York
19 Dec 1925
PROHIBITS WHISKEY USE
IN PREPARED MEDICINES
Washinton, Dec. 19 – (United Press) – New prohibition regulations prohibiting the use of whiskey, brandy or gin in medicinal preparations, were issued by Assistant Secretary of the Treasury Andrews today.
The rules are effective Feb. 1. 192, and apply to all medicines, toilet waters and flavoring extracts unfit for beverage purposed, except in specific cases.
In place of the prescribed liquors, Andrews will authorize the use of alcohol and wine in the non-beverage preparations.
Use of whiskey, brandy and other distilled spirits in treatment of sickness on physicians’ prescriptions will be permitted.
Stopping withdrawals of whiskey, brandy or gin from bonded warehouses for use by manufacturers will further deplete the bootleggers’ source of supply, Andrews said.
Genuine liquors, however, will be distributed to druggists for compounding physicians’ prescriptions.
Lee’s Connecticut Chronicles:
Dear Nutmeggers,
It was great seeing so many of you at DRI in Manhattan a couple of weeks ago. It’s always a treat to meet fans of the newsletter and friends of the firm. Knowing that what we do is worthwhile to so many of you really makes this process meaningful and fulfilling. As always, we welcome your feedback and comments.
This edition, we digress from our usual turf and cover a Second Circuit decision, applying Texas law, addressing insurance coverage for the societal harms brought on by the scourge of ghost guns. These are generally untraceable gun parts and frames, assembled by the end user to avoid registration and licensing requirements. The presence of ghost guns, it is argued, increases the cost to society from gun violence. Read on to see how the Circuit Court addressed the issue.
Until next time, Happy Hanukah, Merry Christmas, and a very happy and healthy New Year.
Lee
Lee S. Siegel
[email protected]
Til Debts do us Part – 100 Years Ago:
The Daily Item
Port Chester, New York
19 Dec 1925
HONEYMOON ON BAD CHECKS
Couple Wed By Judge Bailie Are Apprehended in Baltimore,
And Youthful Husband, Former Naval
Officer, is Arrested; Hotels Complain
Baltimore, Md., December 19th, (Special) – Harold Terhune, thirty-seven, of 147 West Fifty-fourth street, New York City, married to Eva Smith, of New London, Conn., in Port Chester N.Y., on December 2nd, by Justice of the Peace George S. Bailie, was arrested here yesterday charged with passing worthless checks in hotels in Washington, D.C., and New England, during their honeymoon. He will probably be taken to Washinton today.
His bride has expressed her willingness to go to work to straighten out her husband’s difficulties and says she will stick by “Harold till he gets out of this trouble.” Terhune has described himself as the son of Nicholas Terhune, Secretary-Treasurer of the Great Northern Railroad, and as a New York stock broker and a former naval lieutenant. Police say he has admitted that he was “wanted” in New Bedford for passing worthless paper.
Ruffner’s Road Review:
Dear Readers,
I hope everyone has a great Christmas and New Year’s!
In our first case this week, the Court considered a petition to permanently stay an uninsured motorist arbitration brought by the insurer, based on the report of a Judicial Hearing Officer finding the offending vehicle had an insurance policy which was in effect at the time of the alleged incident. In our next case, the court upheld the Supreme Court’s award of additional attorneys fees sought by the Respondent in connection with defending an Article 75 proceeding to vacate an arbitration award in its favor.
Until next time,
Kyle
Kyle A. Ruffner
[email protected]
Doing Time – 100 Years Ago:
Buffalo Courier Express
Buffalo, New York
19 Dec 1925
FOR STEALING CLOCK
Joseph Hatala, 36 years old, No 740 William street, charged with stealing an alarm clock from the home of Mrs. Josephine Sitarski, No 303 Howard street, while he was drunk on December 17th, was yesterday sent to the workhouse for 60 days by Chief Jude Woltz in city court.
Ryan’s Federal Reporter:
Hello Loyal Coverage Pointers’ Subscribers:
I am super excited for my daughter’s first Christmas. I wish I remembered my first Christmas, but alas, I will settle for living vicariously through hers…Ah, to be young again.
Speaking of those younger than me, I recently had a second opportunity to call University at Buffalo Wrestling for ESPN+, this time as part of a tri-match as Buffalo hosted Gardner-Webb and Kent State. There were takedowns, reversals, escapes, pinfall victories and injuries. There was a match won on “criteria” and plenty of gaffs that I take full blame for (including invoking the Buffalo Bills a few times when only the Buffalo Bulls were present). Still, it was a lot of fun, and I hope to have another opportunity again soon.
This edition, my column summarizes the scope of applicability for an arbitration clause as it relates to equitable claims between insurance companies. The answer may very well surprise you.
Until next time…
Ryan
Ryan P. Maxwell
[email protected]
Rest, or Else – 100 Years Ago:
Buffalo Courier Express
Buffalo, New York
19 Dec 1925
NINE O’CLOCK NEW YORK
James J. Walker announces that when he assumes office as Mayor of New York on January 1st, his first task will be to send New Yorkers and visitors to their beds at respectable hours. Moreover, he has aroused the ire of Mayor Hylan by asserting that, since primary day, gambling has been permitted to flourish. It is declared that pennyante will be frowned on in 1926 and after.
These statements probably are issued to offset the widespread belief that a song-writer mayor, of the American metropolis would not object to having his city become as liberal and gay as Paris. Songwriters benefit from tinkling pianos and pianos tinkle most persistently in what used to be known as the still hours of the night.
Storm’s SIU:
Hi Team:
A very Merry Christmas and Happy Hanukah to you and your families!
Three cases this edition:
- Question of Fact Whether the Insured Knew Misrepresentations Were False When Made.
- Complaint Was Time-Barred Due to the Two-Year Contractual Suit Limitation Condition Absent Sufficient Factual Allegations to Support Equitable Estoppel.
- Reserves Discoverable When Bad Faith Alleged.
I hope your Holidays are awesome! Go Bills! Go Bandits! Sabres (ugh). See you again at the New Year…
Scott
Scott D. Storm
[email protected]
Christmas Gift Suggestions – 100 Years Ago:
Brooklyn Eagle
Brooklyn, New York
19 Dec 1925
HARTZ Mountain guaranteed singing canaries, $4.98. If not satisfactory within 2 weeks canaries may be exchanged: gold fish: largest gold fish hatchery in Greater New York: good assortment of aquariums: imported and domestic bird cages from $2 to $5 each: all breeds of puppies, Angora and Persian kittens, moderately priced for Christmas gifts. If purchased now will hold for Christmas delivery: pet shop will be open every evening until 9 p.m. Bloomingdale’s 59th St. and Lexington av.
Fleming’s Finest:
Hi Coverage Pointers Subscribers,
Nothing to report this edition. Hope you have a wonderful holiday season!
See you next year,
Kate
Katherine A. Fleming
[email protected]
Gifts for Her – to Save Money on Marcels (No Idea) – 100 Years Ago:
Daily Sentinel
Rome, New York
19 Dec 1925
HAIR WAVER – New type electric. This will enable her to save money on marcels. Juergens Electric Co. 150 W. Dominick St.
Gestwick’s Garden State Gazette:
Dear Readers:
Hope you had a nice two weeks! I know I sure did. Sabres did okay on their lengthy road trip, coming out .500 (that’s not bad for this team, believe me). Better yet, the Bills beat the Patriots! And we don’t need to discuss the Bandits’ second half defensive breakdown leading to an overtime loss.
I have two cases for you this week. The first is full of good stuff. First, a reminder—in New Jersey, the injured party cannot pursue a declaratory judgment claim against the alleged tortfeasor’s carrier directly unless and until he, she, or it has a judgment against the tortfeasor that has gone unsatisfied due to the tortfeasor-insured’s insolvency or bankruptcy. In New York, the rule is that the claimant must have a judgment against the tortfeasor that has gone unsatisfied for 30 days (so, New York adds a 30-day requirement and subtracts the bit about insolvency or bankruptcy of the insured). Also part of that case is: (1) whether a criminal guilty plea, namely the transcript from that proceeding, can be used in the coverage case; and (2) whether a plea to a crime that includes an element of intent takes the claim out of the ambit of an “occurrence” and/or causes the expected or intended injury exclusion to apply.
The second case deals with whether a claim for breach of the covenant of good faith and fair dealing can stand if based on the same conduct as a claim for breach of contract. I wrote an article about this under New York law a few years ago, so now we get to see whether New Jersey law is different or the same (Spoiler Aalert: it’s the same!)
That’s it for two more weeks, and for all of 2025. Happy Holidays to you and yours!
Evan
Evan D. Gestwick
[email protected]
Gifts for Her – 100 Years Ago:
The Ithaca Journal
Ithaca, New York
19 Dec 1925
Christmas Gift Suggestions
Gifts For Her
PANTALETTES AND BLOOMERS – She will appreciate a selection from this wide assortment of fiber silk pantalettes and bloomers, double elastic knee or garter top. They are colored pansy, grey, red, green, American beauty, black, henna, tan or cocoa. They are priced at $1.95 each, Rothschild Bros.
O’Shea Rides the Circuits:
Hey Readers,
As the final days of the Holiday crunch closes in, I hope everyone completes their holiday shopping and final to-dos just in time for your respective celebrations. I am in a Jingle All The Way-esque situation as I am still waiting for a few gifts in the mail. Notably, the final gift is scheduled to arrive on December 24th. I guess Santa does exist.
Happy Holidays,
Ryan
Ryan P. O’Shea
[email protected]
Oh Good – 100 Years Ago:
The Buffalo Times
Buffalo, New York
19 Dec 1925
IT IS GOING TO
Be a
THERMIODYNE
XMAS
Wholesale
Cycle & Auto Supply Co.,
339-41 Genesee St.
LaBarbera’s Lower Court Library:
Nothing from my column this week.
Until next time…
Isabelle
Isabelle H. LaBarbera
[email protected]
A Pretty Good Price – 100 Years Ago:
The Buffalo News
Buffalo, New York
19 Dec 1925
Give the Boy
A Fine Suit
$1.00 Down
Wonderful Boys’ Suits at the Friendly Store of Stewart – Everyone guaranteed to be all wool – will not rip or tear, and two pairs of all lined knickers with each suit.
There are no better suits made than these and the prices range from $12.75 to $16.74. No introductions needed – Pay $1.00 down. Welcome.
Overcoats and mackinaws, $7.95 to $16.50.
Lexi’s Legislative Lowdown:
Dear Readers,
Our holiday lights are up, and I am looking forward to spending time with family over the next couple of weeks!
This week we discuss the veto of the Grieving Families Act.
Thank you,
Lexi
Lexi R. Horton
[email protected]
That's About $1,400 in 2025 dollars – 100 Years Ago:
The Buffalo News
Buffalo, New York
19 Dec 1925
Victoria’s Vision on Bad Faith
Dear Readers,
Returning this week from a long festive weekend in NYC with family.
This week I have a case from the Eastern District of New York discussing bad faith claims under a choice-of-law analysis.
Have a good weekend,
Victoria
Victoria S. Heist
[email protected]
Save Your Kisses for Your Mama – 100 Years Ago:
The Kansas City Post
Kansas City, Missouri
19 Dec 1925
Advice to the
Lovelorn
By Beatrice Fairfax
Dear Miss Fairfax--I have been reading your column for a year, but I have never had cause to write you as I never had a fellow. But now I have been going with a boy three weeks and he wants me to go steady with him. As I have never had the company of boys and girls, I don't know what to do. Shall I let them kiss me and give me -Just Fifteen.
I am afraid you haven't been a closer reader of the column, little girl, or you would certainly have found out whether or not you should allow the fellows to kiss you. Give your kisses to your mama. She will appreciate them much more than the fellows, and besides you are too young to be thinking about "steadies." Devote your attention to your school work now. There will be plenty of time for men, kisses and presents later.
Shim’s Serious Injury Segment
Hi Readers,
Hope everyone has been well. Since our last issue, there have been many developments and free agent signings in MLB. Most notably to Mets fans, Pete Alonso signed a 5-year contract with the Baltimore Orioles, ending his Mets tenure. The Mets never made a formal offer to Pete Alonso to keep him in blue and orange. That one stings. As a New York Met, Pete Alonso won the 2019 Rookie of the Year Award, was a four-time All Star, and hit 264 home runs, a franchise record. Pete Alonso quickly became the face of the New York Mets and an anchor in the middle of their lineup for seven seasons. Thank you, Pete Alonso, an all-time great Met, and wishing you the best of luck in Baltimore.
In this column, I have shared an appeal decided by the Appellate Division, Second Department, which overturned the decision of the Supreme Court, Westchester County, granting defendants’ motion to dismiss the complaint.
Merry Christmas & Happy Chanukah to all who celebrate! See you in the next issue!
Stephen
Stephen M. Shimshi
[email protected]
Tasty – 100 Years Ago:
The Kellogg Evening News
Kellogg, Idaho
December 19, 1925
Christmas Cookies
Cream together two cupfuls brown sugar and one-half cupful butter. Add one-half well-beaten egg, eight tablesponfuls sweet milk, one salt-spoonful salt, one-half teaspoonful soda dissolved in one-eighth cupful boiling water, one teaspoonful cinnamon, two and one half cupfuls rolled oats, two cupfuls flour. Mix all together and let stand for an hour, then drop a teaspoonful at a time on greased tins. Press a fat raisin on the top of each and bake in a moderate oven. This amount makes about four dozen cookies.
North of the Border:
As I write this, Calgary is being hit with an old-fashioned Prairie blizzard: heavy, mesmerizing, swirling snow, whipped by strong wind. It is supposed to let up later tonight, but in the meantime, highway travel is not recommended.
For my part, I stayed inside and ‘penned’ this week’s column dealing with additional insured coverage under an event policy … a common coverage issue. Enjoy!
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]
- Where a Construction Worker Uses, Without Permission, a Defective Ladder Owned by a Different Trade Contractor, the Ladder Owner Has No Obligation to Indemnify the Owner for the Worker’s Injuries as It Did Not Owe or Assume a Duty. Court Splits 5-2
- Insurance Claims File Privileged. Thousands Cheer
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
- Nothing from the Property World This Week. See you in 2026.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
- Ghost Gun Claims Against Manufacturer/Distributor Are Not an Occurrence
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
- Court Grants Insurer’s Petition to Stay Uninsured Motorist Arbitration as GEICO Demonstrated Offending Vehicle Was Insured
- Court Upholds Award of Additional Attorney Fee to Respondent Related to CPLR Article 75 Proceeding
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
- Arbitration Clause Found Inapplicable to Insurer’s Equitable Claims Against the Insurer Invoking Arbitration
STORM’S SIU
Scott D. Storm
[email protected]
- Question of Fact Whether the Insured Knew Misrepresentations Were False When Made
- Complaint Was Time-Barred Due to the Two-Year Contractual Suit Limitation Condition Absent Sufficient Factual Allegations to Support Equitable Estoppel
- Reserves Discoverable When Bad Faith Alleged
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
- Nothing to report this edition
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
- Claimant Without Judgment’s Direct Claims Against Tortfeasor’s Insurer Dismissed, and Court Finds Insurer Owed No Coverage in Any Event
- Bad Faith Claim Dismissed As Duplicative of Breach of Contract Claim
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
- CATT Exclusion Not Limited to Number of Homes Built in Single Policy Period
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
- Nothing from me this time around…until next time!
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
- Governor Kathy Hochul Vetoes the Wrongful Death Expansion Legislation, Bills S4433/A6063
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
- EDNY Dismisses Florida Statutory Bad Faith Claim
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
- The Appellate Division, Second Department Overturns the Decision of the Supreme Court, Westchester County, Granting Defendants’ Motion to Dismiss the Complaint
NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]
- A Wedding Venue, an Additional Insured Under an Event Policy, is Not Covered for an Injury Arising From a Trip and Fall on a Pathway at the Venue as the Injury Did Not Arise From “Activities And Operations” Arising Out of the Groom’s Hosting of His Wedding; It Arose from the Condition of the Premises
To all of our friends and subscribers, we wish you joyous holidays and a health and successful new year,
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]
12/18/25 Dibrino v. Rockefeller Center North, Inc.
Court of Appeals
Where a Construction Worker Uses, Without Permission, a Defective Ladder Owned by a Different Trade Contractor, the Ladder Owner Has No Obligation to Indemnify the Owner for the Worker’s Injuries as It Did Not Owe or Assume a Duty. Court Splits 5-2
Dibrino, a carpenter employed by Jacobson & Co., Inc. ("Jacobson"), was injured when he fell from a ladder owned by the electrical subcontractor DAL Electrical Corporation ("DAL") while working on a renovation project. The Appellate Division held that the subcontracting agreement between DAL and the project's general contractor, JRM Construction Management LLC ("JRM"), does not require DAL to indemnify JRM for damages arising from Mr. Dibrino's injury. The Court of Appeals agreed. Our Labor Law team discussed this AppDiv opinion back in 2024 in Labor Law Pointers.
Dibrino was working at 1271 Sixth Avenue on a renovation of office space for Major League Baseball's headquarters. Using a six-foot A-frame ladder and a rolling Baker scaffold, both provided by his employer, Jacobson, to take measurements and mark out a soffit in the fifth-floor pantry, he finished his work and moved the scaffold and ladder to a different floor for a separate afternoon task and proceeded to lunch.
During his lunch break, a fellow Jacobson employee instructed Mr. Dibrino to check his earlier measurements. He used a ladder owned by DAL and fell.
Mr. Dibrino commenced this action and asserted claims under Labor Law §§ 200, 240 (1) and 241 (6) against JRM, Rockefeller Center North Inc. ("Rockefeller") (the owner of the premises) and DA. He also asserted a claim for common-law negligence against DAL, arguing that DAL proximately caused his injuries by leaving an allegedly defective ladder in the pantry area. JRM and Rockefeller brought crossclaims against DAL for breach of contract, contractual indemnification, common-law indemnification and contribution.
None of the several contractual indemnification provisions requires DAL to indemnify JRM or Rockefeller for Mr. Dibrino's injuries. The distantly attenuated nexus between DAL's performance of its work, as defined in the subcontracting agreement, and Mr. Dibrino's use of the ladder, renders those injuries beyond the scope of DAL's contractual indemnification obligations.
Even provisions that require indemnity for
(a) any acts or omissions, breach of the terms, conditions, representations, warranties or obligations under this Agreement or failure to comply with the applicable Laws or the Contract Documents by the Subcontractor, its employees, or agents or any of its subcontractors, including, without limitation, (i) injuries to Contractor's or any Subcontractor's employees, agents or subcontractors and Claims resulting from injuries, property damage or loss of data caused by Subcontractor and . . . :
. . .
(c) Subcontractor's, or any of its respective agents' or employees', failure to perform obligations arising from its respective employment relationship with its employees, agents and subcontractors,
. . .
(g) the negligence or willful misconduct or negligent acts or omissions of Subcontractor, or their agents, contractors, subcontractors, servants or employees" (emphases added) ….
do not lead to a different conclusion.
The core question is whether DAL owed a duty of care to Mr. Dibrino. Because there is no contract between Mr. Dibrino and DAL (or between DAL and Mr. Dibrino's employer, Jacobson), for JRM and Rockefeller to claim that DAL assumed a duty of care in tort to Mr. Dibrino, they must overcome the general rule that "a contractual obligation, standing alone, will generally not give rise to tort liability in favor of a third party
12/09/25 Blinbaum v. Chan
Appellate Division, First Department
Insurance Claims File Privileged. Thousands Cheer
The motion to compel production of the insurance claim file and related documents was denied below and affirmed on appeal. Documents in an insurer's claim file, including an accident investigation report, were prepared for litigation against its insured are immune from disclosure. In this case, the plaintiff, who is not listed on the policy, i.e., a third party, is not entitled to the materials in defendants' insurer's claim file, and plaintiff did not show a substantial need for the materials or an inability to obtain their substantial equivalent without undue hardship.
Editor’s Note: This privilege can, in certain circumstances, be superseded if substantial hardship can be established.
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
Nothing from the Property World this Week. See you in 2026.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
12/10/25 Granite State Ins. Co., v. Primary Arms, LLC
United States Court of Appeals, Second Circuit
Ghost Gun Claims Against Manufacturer/Distributor Are Not an Occurrence
The Second Circuit Court of Appeals, applying Texas law, ruled that Primary Arms’ CGL insurers owed it no coverage for claims against it in an underlying ghost gun case.
Here, the City of Buffalo, and other municipalities, alleged that the defendant arms retailers’ “intentionally marketing and sales of” ghost gun parts led to an increase in gun violence and economic damages (not dissimilar to municipal opioid claims). The appellate court held that the plaintiffs’ claims did not allege an accident and, therefore, there was no duty to defend under the CGL policies.
The facts alleged by the plaintiffs are that the seller ships firearm parts and frames that can be assembled by the end user to circumvent firearms laws including background checks, allowing guns to get in the hands of dangerous persons. “This "built-in evasion of federal and state laws" makes PrimaryArms' products "naturally attractive to (and naturally marketed to) persons who would not be able to purchase guns legally," the court wrote.
The insurance cover involved typical CGL policies, with the standard definition of an occurrence (i.e., an accident). Applying Texas’ eight-corner rule (which is not dissimilar to New York’s four corner approach), the court compared the allegations in the complaint to the terms of coverage. In Texas, pretty much like everywhere else, if the underlying pleading alleges facts that may fall within the scope of coverage, the insurer has a duty to defend; if, on the other hand, the pleading only alleges facts excluded by the policy, there is no duty to defend. The court liberally construed the factual allegations in favor of coverage.
The Supreme Court of Texas defines 'accident' as a 'fortuitous, unexpected, and unintended event.' Again, this is generally consistent with other states’ interpretation of the still undefined term ‘accident.’ Applying this construct, the court found that the underlying complaints did not allege an accident.
As alleged in the Underlying Suits, Primary Arms concocted a business model to "exploit[] demand for unfinished frames and receivers . . . for [its] own financial benefit." App'x at 45. It carried out this plan by intentionally marketing and selling its products to New York consumers who "would not be able to purchase guns legally, or who want a gun that cannot be traced back to them." Id. at 41. Primary Arms thus "intended to sell and knowingly sold unfinished frames and/or receivers to individuals who were likely to create an unreasonable risk of harm to others, such as those with criminal convictions, 18 subject to restraining orders, with disqualifying mental health histories, or who lacked proper licensing and training." Id. at 77…. it sent its products into New York "knowing, intending, or being willfully blind to the fact that these products would be converted into working, unserialized firearms.
The Second Circuit concluded that the insured intended to sell its products to people who could not otherwise buy a firearm and who should not have a deadly weapon. The consequences of its actions, the court went on, were reasonably foreseeable, making the financial burdens on the City of Buffalo and other plaintiffs not fortuitous or unexpected. The court rejected the arguments that the pleadings alleged that the insured acted negligently. “This argument fails because we must ignore conclusory legal labels when analyzing the duty to defend.” The gravamen of the allegations was intentional, knowing, and willful conduct, the court determined.
This decision continues the trend against coverage for similar-plead claims in the opioid space. For example, earlier this year the Delaware Supreme Court affirmed the denial of coverage for claims brought against CVS for increased costs associated with various costs incurred because of the excessive dispensing of opioids. See In Re: CVS Opioid Insurance Litigation, 2025 Del. Lexis 316 (Aug. 18. 2025)(coverage is unavailable for government, hospital, and third-party payor lawsuits related to opioid dispensing because they do not allege specific and individualized bodily injury or property damage). In CVS, the court found that the claims failed the “because of” requirement in the grant of coverage. None of the underlying claims alleged bodily injury or property damage, the court found. Instead, they sought recovery for general economic losses, increased costs, and unreimbursed treatment costs.
The claims against CVS were the same made by the City of Buffalo, and others, in ghost gun claims. Under a CGL policy, there is no coverage where there is no claim of an accident or that the bodily injury or property damages sought were not “because of” an accident.
Editorial Comment: The role of insurance is not to remedy societal problems, such as ineffective gun control laws or inadequate oversight of the dispensing of prescription medications. Insurance is a financial mechanism to mitigate individual and collective risk, not as a substitute for legislative or policy reform. When systemic issues, like inadequate public safety measures, are treated as insurance problems, it distorts the purpose of the industry and unfairly burdens it with responsibilities beyond its scope. Shifting risk from society to the insurance industry is a lazy and, ultimately, short-sighted response to problems that must be solved on the legislative level. Addressing societal failures requires coordinated policy solutions, enforcement, and public accountability—tools that lie within the domain of governance, not risk underwriting. Insurance can help manage losses after harms occur, but it cannot and should not be expected to rectify harm rooted in deeper social or political dysfunction.
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
12/05/25 Matter of Geico v. Medina
Supreme Court, Kings County
Court Grants Insurer’s Petition to Stay Uninsured Motorist Arbitration as GEICO Demonstrated Offending Vehicle Was Insured
In a special proceeding to permanently stay uninsured motorist insurance arbitration, the insurer moved to confirm the report of the Judicial Hearing Officer with respect to insurance coverage on the vehicle allegedly causing a motor vehicle accident in which Respondent was injured. The Court noted that, where there is a factual issue of uninsured motorist coverage, the insurer seeking a stay of arbitration bears the initial burden of proving that the alleged offending vehicle was insured by another insurance carrier and the insured who brought the arbitration bears the ultimate burden of establishing the loss sustained was caused by an uninsured vehicle.
At the framed issue hearing conducted by the Judicial Hearing Officer the Respondent failed to rebut the prima facie case made out by Geico that the offending vehicle was insured by Hugo Insurance. For example, a license plate search for the offending vehicle indicated it was insured by Hugo Insurance while the policy was in effect. While there was no evidence submitted that the policy was cancelled prior to its termination date, the written opposition to the Petition includes a letter from First Acceptance Insurance denying coverage on the basis that the loss occurred outside the policy period. Therefore, there was a factual conflict between the denial letter and the plate search which provides a policy expiration date after the date of the subject accident. However, as no one appeared on the hearing date to explain this conflict, the Hearing officer concluded that the proposed additional respondents failed to meet their burden of proof that the offending vehicle was not insured.
CPLR 4403 provides that upon the motion of any party the judge required to decide the issue may confirm or reject, in whole or in part, the report of a referee. The Court explained that while the referee’s findings and recommendations are advisory and have no binding effect on the court, such report should be confirmed whenever the findings are substantially supported by the record, and the referee has clearly defined the issues and resolved matters of credibility. Here, the Court found that the Judicial Hearing Officer’s conclusions are well supported by the record.
Accordingly, the court granted the Petitioner's motion to confirm the Hearing Officer Report and adopted the finding that the offending vehicle was insured. As such, there was no further issue of fact, and the Court further granted the Petitioner's petition for an order pursuant to CPLR 7503(c) permanently staying uninsured motorist insurance arbitration commenced by Respondent.
12/03/25 Matter of American Transit Ins. Co. v. YOM
Appellate Division, Second Department
Court Upholds Award of Additional Attorney Fee to Respondent Related to CPLR Article 75 Proceeding
The insurer commenced this proceeding against the Respondent medical provider pursuant to CPLR article 75 to vacate a master arbitration award in favor of the Respondent. The Respondent cross-petitioned, among other things, pursuant to 11 NYCRR 65-4.10(j)(4) for an award of an additional attorney's fees. The Supreme Court denied the insurers petition, confirmed the arbitration award, and granted that branch of the cross-petition awarding additional attorney's fees to the provider in the sum of only $220, who then appealed.
Pursuant to Insurance Law § 5106(a), if a valid claim or portion of a claim for no-fault benefits is overdue, the claimant shall also be entitled to recover reasonable attorney’s fees for services necessarily performed in connection with securing payment of the overdue claim. The recoverable attorney's fees include those related to representation in a CPLR article 75 proceeding to vacate or confirm a master arbitration award, and, in such instances, "shall be fixed by the court adjudicating the matter" 11 NYCRR 65-4.10[j][4]. As explained by the court, the determination of what constitutes a reasonable attorney's fee is a matter within the sound discretion of the Supreme Court, and the attorney bears the burden of establishing the reasonable value of the services rendered, based upon a showing of the hours reasonably expended and the prevailing hourly rate for similar legal work in the community.
Contrary to Yom's contention, the Supreme Court acted within its discretion in awarding the provider an additional attorney's fee pursuant to 11 NYCRR 65-4.10(j)(4) in the sum of $220 without conducting a hearing. The provider failed to submit an affirmation or affidavit in support of the cross-petition describing the nature of the work performed and the amount of time expended on the matter and failed to request a hearing on the issue. Therefore, it was within the court's discretion to determine a reasonable amount of an attorney's fee. Accordingly, the court was not required to conduct a hearing prior to awarding the additional attorney's fee pursuant to 11 NYCRR 65-4.10(j)(4).
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
12/02/25 Certain Underwriters at Lloyd’s, London v. Kinsale Ins. Co.
United States District Court, Eastern District of New York
Arbitration Clause Found Inapplicable to Insurer’s Equitable Claims Against the Insurer Invoking Arbitration
On December 8, 2021, Jairo Morocho was injured by a forklift while working on a construction project. He sued several project-related entities in New York state court, including LMV and LRC Construction, among others. LMV was insured under a commercial general liability policy issued by Certain Underwriters at Lloyd’s, and Underwriters also considered LRC Construction to be an insured.
Fuller Marquise and Phoenix HMA, Inc. executed a purchase order for Phoenix’s carpentry work that required Phoenix to procure commercial general liability and excess insurance, naming LMV and LRC Construction as additional insureds on a primary and non‑contributory basis for bodily injury arising from the construction work.
Complying with the purchase order, Phoenix obtained a Kinsale Insurance Company policy effective December 5, 2021, to December 5, 2022. A certificate of insurance provided to Fuller Marquise reflected LMV and LRC Construction as additional insureds, and the Kinsale policy included an “additional insured” provision covering owners, lessees, or contractors “as required by written contract” executed before work began.
After the personal injury suit was filed, Underwriters twice tendered the defense and indemnification of LMV and LRC Construction to Kinsale based on their alleged additional insured status under the Kinsale policy; Kinsale rejected both tenders. Underwriters then defended LMV and LRC Construction and incurred substantial attorneys’ fees and costs.
In this federal action, Underwriters sought a declaration that Kinsale has the primary, non‑contributory duty to defend and indemnify LMV and LRC Construction as additional insureds, and reimbursement of the defense costs Underwriters already incurred in the underlying suit.
Underwriters contended that Kinsale’s duties flow from the Fuller–Phoenix purchase order and related contractual arrangements (and thus its claims sound in equitable contribution/indemnification), while Kinsale frames the question as whether its policy provides coverage to LMV and LRC Construction as additional insureds under the policy’s terms.
The Kinsale policy contained a binding arbitration clause covering disputes over coverage, which Kinsale invoked; but the EDNY denied Kinsale’s motion to compel arbitration, finding Underwriters did not agree to arbitrate and its equitable claims do not bind it to Kinsale’s arbitration clause.
The court applied the FAA’s two‑prong arbitrability test—(i) did the parties agree to arbitrate, and (ii) if so, does the agreement’s scope cover the claims.
The Kinsale policy’s arbitration clause was broad, requiring “all disputes over coverage or any rights afforded under this Policy… [to] be submitted to binding arbitration,” including disputes over whether someone is an additional insured However, because Underwriters did not sign the Kinsale policy, the court asked whether Kinsale could bind Underwriters via a non‑signatory theory. Kinsale relied only on “direct benefits estoppel.” The court explained that estoppel requires the non‑signatory to seek direct benefits flowing from the agreement, not merely to exploit the contractual relationship indirectly.
Reviewing the pleadings and case law, the court concluded Underwriters’ claims sound in equitable contribution or implied indemnification between co‑insurers—not in subrogation or a direct claim to policy benefits. As such, any benefit Underwriters sought was indirect, so estoppel did not apply and Underwriters could not be compelled to arbitrate as a non‑signatory. The court also agreed with Underwriters’ that its claims arise from the underlying purchase order and insurance‑procurement obligations rather than the Kinsale policy itself, further undermining estoppel and the existence of an agreement to arbitrate with Underwriters.
Because the first prong (agreement to arbitrate) was not met, the court did not reach the scope prong and denied Kinsale’s motion to compel arbitration.
STORM’S SIU
Scott D. Storm
[email protected]
12/03/25 Henry v. State Farm Fire & Cas. Co.
United States District Court for the Middle District of Pennsylvania
Question of Fact Whether the Insured Knew Misrepresentations Were False When Made
Plaintiff's property suffered fire damage while insured under a homeowners policy. A fire investigator concluded the fire started when some type of liquid accelerant was poured on and around the love seat on clothing and carpet and then ignited. State Farm discovered two judgments against plaintiff: one for $44,199 transferred to Schuylkill County three days before the fire, and another for $64,687.96 entered two days after the fire.
During plaintiff's examination under oath, he denied knowledge of judgments against him, stating “No. Not that I know of” and “Not that I can recall” when asked directly. He also denied involvement in lawsuits in April 2023. State Farm denied the claim citing material misrepresentations under the policy's concealment or fraud provision.
Under Pennsylvania law, an insurance policy is void for misrepresentation when the insurer establishes:
- the representation was false;
- the insured knew the representation was false when made or made it in bad faith; and
- the representation was material to the risk being insured.
The court found a genuine dispute of material fact regarding the second element—whether plaintiff knowingly or in bad faith made false representations. Plaintiff claimed he “simply did not have these judgments against him on his mind” during examination. The court noted that an insured's state of mind is generally an issue for the jury, and questions of intent are “particularly inappropriate for resolution by summary judgment.”
The court denied State Farm's motion for summary judgment, finding that plaintiff's testimony created a genuine dispute of material fact as to his intent under the second element of misrepresentation, which is better left for a factfinder to determine.
12/03/25 Looby v. Safeco Nat'l Ins. Co.
United States District Court for the Northern District of New York
Complaint Was Time-Barred Due to the Two-Year Contractual Suit Limitation Condition Absent Sufficient Factual Allegations to Support Equitable Estoppel
Plaintiff's property was reportedly burglarized on September 3-4, 2022. Plaintiff had homeowner's insurance through Defendant covering theft of personal property. Plaintiff filed a claim and allegedly cooperated with Defendant, but claims that Defendant delayed adjustment until January 22, 2025, when it paid $2,186.61, which Plaintiff contends was insufficient.
Plaintiff filed the action alleging fraud and breach of contract. Defendant filed a motion to dismiss. The issues considered by the court include whether Plaintiff's claims are time-barred under the insurance policy's two-year limitations period; and whether Plaintiff's fraud claim is sufficiently pled.
Plaintiff argues equitable estoppel prevents Defendant from invoking the contractual suit limitation because Defendant fraudulently delayed claim adjustment until after limitations period expired and made misrepresentations that Plaintiff would be fully reimbursed.
Defendant contends the entire complaint should be dismissed as time-barred under the policy's two-year suit limitation provision. Alternatively, Defendant argues the fraud claim fails to state a claim.
The Court found the complaint time-barred under the policy's two-year limitations provision. The Court noted Plaintiff's complaint lacked specific factual allegations demonstrating Defendant fraudulently induced or lulled her into missing the deadline. Conclusory allegations that an insurer 'fraudulently delayed' claim adjustment or 'made misrepresentations,' without specific supporting factual allegations about when and how such conduct occurred, are insufficient to invoke equitable estoppel against a contractual limitations defense.
To rebut the limitations defense, a plaintiff must show either that the insurer engaged in a course of conduct which lulled the plaintiff into inactivity in the belief that the claim would be paid or that the plaintiff was induced by fraud or misrepresentation to refrain from commencing a timely action. Generally, the conduct that purportedly misled or lulled a plaintiff into failing to bring a timely action must have occurred within the limitations period. Where a plaintiff points to a defendant's course of conduct that began during the limitations period and continued after the period expired, equitable estoppel might still be warranted if the plaintiff shows that it reasonably relied on the defendant's misrepresentations. Importantly, the New York Court of Appeals has held that conclusory claims of an insurer's misconduct, without specific supporting factual allegations, are insufficient to prevent the insurer from asserting a time limitation defense under an insurance policy.
The motion to dismiss was granted. Plaintiff was permitted to file amended complaint within 30 days to support equitable estoppel argument with additional facts.
11/12/25 Berkley Ins. Co. v. Weddle L. PLLC
United States District Court, Southern District of New York
Reserves Discoverable When Bad Faith Alleged
Order partially granting Defendant's motion to compel production of documents relating to Plaintiff's claim investigation and loss reserves. The Court ordered Plaintiff to produce three documents relating to loss reserves to Defendant.
The Court found that reserve information is relevant under Federal Rule of Civil Procedure 26(b)(1) because Defendant included bad faith allegations in its counterclaim. The Court noted that courts in the Southern District of New York have found reserve information relevant where bad faith has been alleged. Although New York does not recognize a separate cause of action for bad faith, courts permit bad faith allegations to be included as part of a breach of contract cause of action, particularly in support of requests for consequential damages and attorneys' fees.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
Nothing to report this edition.
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
12/16/25 Chacon v. Caesars Ent. Corp.
Superior Court of New Jersey, Appellate Division
Claimant Without Judgment’s Direct Claims Against Tortfeasor’s Insurer Dismissed, and Court Finds Insurer Owed No Coverage in Any Event
De Chacon and Nieves got into a fist fight at a casino in Atlantic City, in which De Chacon alleged he sustained bodily injuries. De Chacon sued Nieves, alleging that Nieves negligently and carelessly made physical contact with De Chacon, and later amended his pleadings to assert a claim for assault and battery.
Nieves’ homeowners carrier, USAA, denied coverage on the basis that the claim against Nieves did not constitute an occurrence, and that its expected or intended injury exclusion barred coverage. USAA took the position that an “occurrence” was defined by the policy as an “accident,” and that the injuries that resulted from the physical altercation were not caused accidentally. Similarly, USAA took the position that the injuries were expected or intended from Nieves’ standpoint. Importantly, an exception applied to the expected or intended injury exclusion for instances in which the intentionally caused
After USAA denied coverage, De Chacon amended his complaint a second time, to assert a direct claim against USAA, seeking a declaratory judgment that its denial of coverage to Nieves was improper. Nieves then filed a crossclaim against USAA on the same basis.
First, the trial court dismissed De Chacon’s direct claim against USAA on the basis of New Jersey’s direct-action statute and allowed Nieves’ crossclaims to proceed. Under New Jersey law, an injured claimant cannot maintain an action for coverage directly against the insurer of the alleged tortfeasor unless the claimant already has a judgment against the tortfeasor that has gone unsatisfied due to the tortfeasor’s bankruptcy or insolvency. N.J.S.A. 17:28-2. Because neither condition was satisfied, the trial court found that De Chacon did not have standing to proceed directly against USAA and dismissed the mainline claims. However, the statute does not bar claims by the insured; indeed, the insured can seek a declaratory judgment on the availability of coverage even before any judgment is entered against him, her, or it. Accordingly, Nieves’ crossclaim against USAA (effectively his co-defendant) were allowed to remain.
While the above facts were developing, Nieves pled guilty to a charge of third-degree aggravated assault in connection with the physical altercation. The criminal statute defining that charge provides that a person is guilty of aggravated assault if they “attempt[] to cause significant bodily injury to another or cause[] significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly cause such significant bodily injury.” At his criminal hearing, Nieves admitted that he attempted to cause, or purposely, knowingly, or recklessly did cause, De Chacon to sustain significant bodily injury.
Later, USAA moved for summary judgment on Nieves’ crossclaim. On appeal, the Court noted that the accidental nature of an occurrence is analyzed by whether the alleged wrongdoer intended or expected to cause an injury. Under this paradigm, the resulting injury may be considered accidental even if the act that caused the injury was intentional. Because Nieves admitted in his criminal proceeding that he intended to cause De Chacon to sustain some sort of injury when he punched him, the Appellate Division found that the circumstances did not amount to an occurrence and upheld the grant of summary judgment in favor of USAA.
Editor’s Note: Really interesting stuff here. I wish the decision was a bit more robust on how exactly the Court arrived at the conclusion that the criminal transcript could be used in the coverage case (the opinion does not even say whether that was raised). My guess is this: the transcript is not hearsay, because it is not an “out of court statement,” and the risks inherent in a criminal trial are less present in a subsequent civil case because someone’s freedom is not (usually) at stake. All too often, we come across situations in which a civil proceeding is running in tandem with a criminal one, and the criminal defendant will not testify in the civil case until the criminal proceeding has concluded, out of fear that the transcript of that testimony will be used against them in the criminal case (this scenario comes up all the times with respect to EUOs especially). It’s interesting to see the role reversal here, but at the end of the day, I do think that Nieves would have ultimately been unsuccessful in keeping his criminal transcript out of evidence.
12/17/25 Shamrock Techs., Inc. v. Ill. Union Ins. Co.
United States District Court, District of New Jersey
Bad Faith Claim Dismissed As Duplicative of Breach of Contract Claim
Shamrock was insured by Illinois Union under commercial general liability and umbrella policies from 2018 to 2019. Those policies provide coverage for, among other things, sums that Shamrock became legally obligated to pay as a result of government action arising out of a “pollution condition.” The policies also required Illinois Union to defend Shamrock against any such governmental action.
In preparation to sell its land, Shamrock performed an environmental assessment on its land. The assessment revealed the presence of pollutants in certain soil samples. Shamrock asked Illinois Union to defend it in its ongoing negotiation with another company regarding potential remediation solutions. Ultimately, Illinois Union denied any coverage obligation to pay costs associated with any pollution conditions at Shamrock’s facility. This declaratory judgment action followed.
Shamrock alleged that the remediation costs it incurred, and its negotiations regarding such remediation with the other company, constituted “government action” as defined by its policies with Illinois Union. Plaintiff’s allegations against Illinois Union in the declaratory judgment action included one count for breach of contract and a separate count for bad faith. The basis for Shamrock’s bad faith claim was that Illinois Union unreasonably denied its claim, and that it unreasonably delayed in doing so.
Under New Jersey law, a claim for bad faith may exist where the insurer: (1) lacked a fairly debatable reason for failing to pay the claim; and (2) the insurer knew or recklessly disregarded the lack of a reasonable basis for denying the claim. To succeed on a claim for bad faith in New Jersey, the plaintiff must be able to establish a right to summary judgment on the substantive claim, even at the motion to dismiss stage. However, a bad faith claim may also stand where the insurer unreasonably delays in processing a valid claim, with knowledge or reckless disregard for the fact that the delay is unreasonable.
Here, Shamrock alleged that Illinois Union denied coverage for the claim despite having clear policy language providing coverage for said claim, misrepresented pertinent facts and policy provisions relevant to the coverage issues, failed to acknowledge and act promptly upon receipt of the claim, did not attempt to effectuate a prompt, fair, and equitable coverage decision, and failed to promptly provide a reasonable explanation of the bases for the denial of coverage (among others).
Shamrock moved to dismiss the bad faith claim as duplicative of the breach of contract claim, since both claims were predicated on the same conduct. As the Court here recognized, while a claim for breach of contract and one for bad faith are indeed two separate causes of action, a breach of the covenant of good faith and fair dealing cannot be predicated on the same conduct underlying an accompanying breach of contract claim. Of course, the reason for that rule is that the duty of good faith and fair dealing is inherent in every contract that is formed.
Because Shamrock did not allege any additional conduct forming the basis for its bad faith claim, the Court dismissed that claim as duplicative of the breach of contract claim. The Court also found that while Illinois Union’s lengthy delay in denying coverage may have been unreasonable, the plaintiff failed to allege that Illinois National knew that its delay was unreasonable. As such, the Court found that Shamrock failed to state a claim for bad faith upon which relief could be granted.
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
12/11/25 Logg v. United Specialty Ins. Co.
United States Court of Appeals, Ninth Circuit
CATT Exclusion Not Limited to Number of Homes Built in Single Policy Period
The Plaintiffs purchased homes in a housing development built by Highmark Homes (“Highmark”). TIG insured Highmark under a commercial general liability policy. The Plaintiffs discovered numerous construction defects in each respective home and commenced an action against Highmark. Highmark eventually settled the underlying suit and assigned its claims against TIG to the Plaintiffs. TIG previously denied coverage to Highmark under a Condominium, Apartment, Townhouse or Tract Housing Coverage limitation Endorsement (“CATT exclusion”).
The CATT exclusion precluded damage caused by Highmark’s work on any housing project or development that includes the construction, repair or remodel of 25 or more residential buildings . . . in any or all phases of the project. It was undisputed that Highmark built 25 homes in the development.
On appeal, the Plaintiffs asserted the CATT exclusion did not apply unless Highmark built all 25 homes in a single policy period. However, the exclusion lacked any policy period limitation and thus, was deemed unambiguous. The court also found TIG did not breach its duty to defend since TIG never withdrew the defense provided to Highmark until the underlying action concluded. For these reasons, the Ninth Circuit affirmed the grant of TIG’s motion for summary judgment.
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
Nothing from me this time around…until next time!
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
12/19/25 Veto of the Grieving Families Act, S4433/A6063
New York State Senate
Governor Kathy Hochul Vetoes the Wrongful Death Expansion Legislation, Bills S4433/A6063
On December 5, 2025, Governor Kathy Hochul vetoes Senate Bill S4433, the legislations fourth attempt to pass a version of the “Grieving Families Act.”
This legislation attempted to amend the estates, powers and trusts law, in relation to payment and distribution of damages in wrongful death actions. The bill sought to expand the available economic or pecuniary losses, including damages for grief and anguish, available to “surviving close family members.”
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
12/07/25 Webber Com. Props. LLC v. Mt. Hawley Ins. Co.
United States District Court, Eastern District of New York
EDNY Dismisses Florida Statutory Bad Faith Claim
In September 2022, a windstorm caused damage to a Florida property owned by Webber Commercial Properties, LLC ("Webber"). Webber submitted an insurance claim for the loss to its insurers, Mt. Hawley Ins. Co. and Renaissance Re Syndicate 1458 Lloyds (the "insurers"). After two years of negotiations, Webber and Mt. Hawley could not agree on the amount of the insurable loss caused by the windstorm.
Webber filed suit against the insurers for breach of contract, declaratory judgment, and bad faith. For breach of contract, Webber alleged the insurers failed to pay the full extent of the loss under the policies. For declaratory judgment, Webber sought a declaration that the insurers must perform in accordance with all covenants, provisions, forms, and endorsements in the policy, comply with appraisal if demanded, and pay recoverable depreciation. For bad faith, Webber alleged statutory bad faith under Florida law, stating the insurers under-adjusted and valued the damages as part of their general business practice, and they delayed the claim resolution. The insurers moved to dismiss the declaratory judgment and bad faith claims.
First, under the Declaratory Judgment Act, to issue declaratory relief, the case must be of actual controversy, and the court may choose whether to exercise its discretion in providing such relief. The district court must weigh factors to determine whether it has such discretion, including but not limited to, whether the declaratory judgment will serve a useful purpose in clarifying or settling the legal issues involved. The Court found Webber did not meet its burden in establishing the Court's jurisdiction to provide it declaratory relief, as the complaint does not establish an actual controversy because it seeks relief for facts that have not occurred yet.
Second, the Court held Webber cannot bring its claim for bad faith under Florida Law. The law governing the dispute is determined by the choice-of-law rules of the forum court, here, New York rules which require the application of New York law. Under New York law, the Court found the choice-of-law clause in the Policy unambiguously requiring disputes to be litigated pursuant to New York law.
Accordingly, the Court dismissed Webber's declaratory judgment and statutory Florida bad faith causes of action.
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
12/10/25 Prado v. Town/Village of Harrison
Appellate Division, Second Department
The Appellate Division, Second Department Overturns the Decision of the Supreme Court, Westchester County, Granting Defendants’ Motion to Dismiss the Complaint
This matter concerns personal injuries suffered by plaintiff, Ygnacio Prado ("plaintiff"), in connection with a motor vehicle accident that occurred on October 29, 2020. Plaintiff alleged injuries to his cervical spine and head, as well as exacerbations of preexisting injuries. Defendants moved for summary judgment dismissing the complaint on the basis that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The Supreme Court granted the defendants’ motion on May 24, 2024. Thereafter, a judgment was issued in favor of the defendants dismissing the complaint on August 5, 2024. The plaintiff appealed the Supreme Court’s decision to the Appellate Division, Second Department.
The Appellate Division, Second Department, decided that defendants failed to establish that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 774 N.E.2d 1197, 746 N.Y.S.2d 865; Gaddy v Eyler, 79 NY2d 955, 956-957, 591 N.E.2d 1176, 582 N.Y.S.2d 990). Further, defendants also failed to submit medical evidence that the plaintiff did not sustain a serious injury to his cervical spine or head under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Polight v Martin, 237 AD3d 990, 991, 232 N.Y.S.3d 543; Zennia v Ramsey, 208 AD3d 735, 735, 171 N.Y.S.3d 921; Tarnagorski v Donofrio, 185 AD3d 865, 865, 125 N.Y.S.3d 562). The Appellate Division, Second Department found that defendants also failed to establish that plaintiff’s alleged head injuries were not caused by the subject accident (see Petric v Retsina Cab Corp., 235 AD3d 672, 673, 226 N.Y.S.3d 337; Zennia v Ramsey, 208 AD3d at 735).
Defendants’ papers also failed to address the claims set forth in plaintiff’s bill of particulars, that, as a result of defendants’ negligence, the accident exacerbated preexisting injuries to plaintiff’s cervical spine and head (see Petric v Retsina Cab Corp., 235 AD3d at 673; Weber v Kalisky, 218 AD3d 629, 630, 192 N.Y.S.3d 248; Sanclemente v MTA Bus Co., 116 AD3d 688, 689, 983 N.Y.S.2d 280). Furthermore, defendants failed to establish that plaintiff’s alleged cervical spine head injuries were not caused or exacerbated by the accident. As such, the burden never shifted to plaintiff to raise a triable issue of fact regarding causation or to explain any gap in treatment (see Cortez v Nugent, 175 AD3d 1383, 1384, 106 N.Y.S.3d 619; see generally Pommells v Perez, 4 NY3d 566, 572, 830 N.E.2d 278, 797 N.Y.S.2d 380).
Based on the foregoing, the Appellate Division, Second Department, found that defendants failed to meet their prima facie burden. Accordingly, the Supreme Court, Westchester County, should have denied defendants’ motion for summary judgment dismissing the complaint on the basis that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident, irrespective of plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 N.E.2d 642, 487 N.Y.S.2d 316; Che Hong Kim v Kossoff, 90 AD3d 969, 969, 934 N.Y.S.2d 867).
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.
11/28/25 Van Daele v. The Waring House et al
Ontario Superior Court (trial level)
A Wedding Venue, an Additional Insured Under an Event Policy, Is Not Covered for an Injury Arising From a Trip and Fall on a Pathway at the Venue as the Injury Did Not Arise From “Activities And Operations” Arising Out of the Groom’s Hosting of His Wedding; It Arose From the Condition of the Premises
Stacy Barroso and Jonathan Singh were getting married. They picked the date – Labour Day Weekend. They picked the location: The Waring House Restaurant and Inn in Prince Edward County, Ontario. And what a location it is. Manicured gardens behind a 19th Century limestone farmhouse surround a wedding gazebo … with a fabulous farm to table kitchen. The Waring House is a local favourite wedding venue, which must be booked well in advance. Stacy and Jonathan also picked their wedding photographer: Shawn Van Daele. The day would be perfect.
However, Van Daele tripped and fell while walking on an uneven pathway at the Waring House and, according to his Facebook page, which displays an X-ray report, he sustained what seems to be a clean, displaced fracture of his left clavicle. In a Facebook post from September 3, 2021, he apologised to all the couples who had booked him for weddings in the coming 8-12 weeks – stating, “it will be several months of recovery and lots of physiotherapy to get back to a place where …[I]… can hold a camera up for 10 to 12 hours a day.”
Van Daele was not actively photographing the wedding at the time of this fall.
Van Daele sued the Waring House and its owners (the Waring House defendants). The Waring House defendants initiated a third-party claim against Co-operators General Insurance Company (CGIC), that underwrote Duuo Event Insurance, seeking a declaration that Co-operators had a duty to defend and indemnify the defendants with respect to the main action. The Waring House applied for summary judgment under the third-party claim, resulting in this reported judgment.
The Event Policy
The Waring House booking contract – the Event Service Agreement - required Stacy and Jonathan to obtain event insurance from Duuo. That insurance was arranged and listed Jonathan as the named insured. The coverage “only applies to the liability out of the event hosting” and was in the form of a CGL policy that provided coverage for bodily injury and property damage liability; medical payments for injuries; tenants’ legal liability; host liquor liability (if applicable).
The Waring House Restaurant, Inn, Conference Centre & Cookery School was added as an additional insured, “but only with respect of the liability arising out of your hosting of the subject event.” Further the policy stated, “The Venue Owner, as named on the You’re Covered Screen of the Duuo App, is added as an additional insured, “…but only with respect to the activities and operations conducted by … [the named insured].” In this case, the named insured was Jonathan Singh.
The coverage agreement stated, “We will pay those sums that the insured becomes legally liable to pay as compensatory damages because of unintentional bodily injury or property damage originating at the covered location during the policy period only in relation to the hosting of the event covered.” The terms “hosting,” “activities,” and “operations,” are not defined in the policy.
The Insurer’s Position
The Waring House defendants sought a defence and indemnity from CGIC under the event coverage. CGIC took the position that the allegations in the claim did not arise from the “activities and operations conducted” by Jonathan Singh, nor his hosting of the event, and denied any duty to defend.
The Trial Judgment
The issue was whether Van Daele’s Statement of Claim alleges that his injury arises out of the activities and operations conducted by Jonathan. Citing various decisions from British Columbia and Ontario, the trial judge held that “… there must be a connection between the named insured’s operations and the liability of the additional insured, in respect of which it seeks insurance coverage. This requires something more than an incidental or fortuitous connection. The trial judge held that in this case, that connection is absent. The statement of claim does not contain any allegations that Van Daele’s injuries were caused or contributed to by the activities or operations of Jonathan Singh in his hosting of the event. The only connection is that Van Daele was present to photograph the wedding. When the pleadings are read reasonably, it is clear that any liability arises from pre-existing defects in the pathway that caused an allegedly unsafe condition over which Jonathan Singh had no control or responsibility. Van Daele’s mere presence to work at the wedding was insufficient to establish the required connection to the “activities or operations” of hosting a wedding. Accordingly, the court found that the event insurance policy does not require CGIC to provide a defence to, nor indemnity, to the Waring House defendants.
Comment
This decision is in line with other “additional insured” cases and seems to be correct on the facts and the law. Although unstated in the reasons, this holding suggests that the Waring House liability insurers will have carriage of the defence of Van Daele’s claim.
The trial judge did not provide any comment on whether it was appropriate for the Waring House defendants to have issued a third-party claim against CGIC in Van Daele’s action for damages, seeking a defence and indemnity.
Justice Norton of the Nova Scotia Supreme Court held in Fares Construction Limited v. Lead Structural Formwork Limited, 2024 NSSC 332, that a demand for a defence and indemnity must be determined in a separate action that seeks a declaration whether an insurer is obligated to defend and indemnify. It is not appropriate to determine whether an insurer has an obligation to defend or indemnify in the underlying proceedings, whether through a third-party action, or otherwise. Justice Norton’s decision was appealed to the Nova Scotia Court of Appeal; however, the parties did not appeal this aspect of his decision, and it remains undisturbed.
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