Volume XXVII, No. 16 (No. 715)
Friday, January 16, 2026
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. This week’s CP issue is attached.
Hey, pick up the phone if you are situation-challenged. If you’re not currently a client, don’t worry. Our subscribers are our friends. If we can help a friend find the straight and narrow, we’re happy to help.
Greetings from Scottsdale, land of warm sun and prickly cactus. With my wonderful editorial staff digging out of the snow back home, you know that Coverage Pointers never sleeps and we’re here for you again.
Thanks to those who joined Isabelle LaBarbera for her great presentation on Risk Transfer, the third Coverage Pointers University program. We are now accepted registration for our next program. This one is NY based – it deals with what we know in this jurisdiction as SUM coverage – uninsured and underinsured motorist coverage. When does coverage “trigger” – when is the policy breached – what is the twenty-day rule – the most important and shortest statute of limitations known to man, woman, or beast?
Coverage Pointers University
Registration is Now Open for our Third Program
Summing up “SUM” Coverage: A Primer on Addressing a Demand for New York Supplementary Uninsured/Underinsured Motorist Benefits
Date & Time
February 19, 2026 -- 1:00 PM Eastern
Join Insurance Coverage attorney Ryan P. O’Shea for a for a practical webinar covering the fundamentals of NY Supplementary Uninsured/Underinsured Motorist (SUM) coverage. This presentation will address what SUM coverage is, its historical background, and when it applies. The session will also explore the most common issues that arise in SUM claims, including insured status, offsets, and priority of coverage disputes. Finally, the program will walk through how SUM claims typically proceed into litigation or arbitration, providing insight into what to expect and how to navigate these matters effectively in NY.
Retail Webinar
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Hurwitz Fine’s Premises Liability and Retail & Hospitality Teams will be presenting “Navigating Claims, Crime, and Consequences in Retail” featuring attorneys Jody E. Briandi, Anastasia M. McCarthy, and Elizabeth K. Ognenovski, on Wednesday, January 28th at 12 PM. This presentation will explore the evolving risks and legal exposures impacting the retail industry, including incidents involving intentional or reckless violence, claims against asset protection personnel, and liability issues arising from the sale of firearms.
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This issue has its usual array of interesting cases, summarizing 22 eclectic cases, highlighted below.
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.
Men Only Need Apply – 100 Years Ago:
The Buffalo News
Buffalo, New York
16 Jan 1926
MEN, two bright, energetic young men. Life insurance experience preferable, but not necessary. 612 Erie County Bank Bldg.
Peiper on Property (and Potpourri):
Happy 2026. May you have closed out 2025 with appreciation for what you accomplished and look to new successes and achievements in the coming year. The Courts, however, remain very quiet as we bring the first two weeks of the year to a close. We review two cases in this week’s column; both of which stand for the proposition that the plain and ordinary language of the policy should be read as it is intended. Basic rules of contract construct prevail. For now.
We also congratulate Professor Isabelle LaBarbera on completing Class #3 of Coverage Pointers University. We are a full quarter of the way through our ambitious plan to provide varied and valued training via once-per-month webinar. The response has been more than we could have ever expected, and we again thank our readership here for your continued partnership with us.
Onward to February where Professor Ryan O’Shea will be focusing eager students on the nuances of New York Supplemental Underinsured/Uninsured Motorist Coverage. Ryan has become our in-house guru on the subject, and he will no doubt provide value to your third Thursday of February!
In case you’re wondering, January 16th is National Nothing Day. It is also National Fig Newton Day and National Appreciate a Dragon Day. Not doing it for you?
January 16th also serves as National Quinoa Day. And, National Boston Day. Seriously, Boston has its own “National” day. We have thoughts about Boston declaring its own day (naturally Patriots fans), but alas we’re observing National Nothing Day so we have nothing to add here.
Have a great two weeks. One more thing… Go Bills!
Steve
Steven E. Peiper
[email protected]
What’s Old is New Again – U.S. Company Tales Over Venezuela Oil Production – 100 Years Ago:
The News-Herald
Franklin, Pennsylvania
16 Jan 1926
The London “Financial Times” says an agreement has been signed by Venezuela Central Oil Fields and Standard Oil Company of New Jersey under which the Standard will control and operate the whole of Venezuela Central’s field. The whole Buchinacoa concessions are to be developed forthwith, leaving the Venezuela central free to extend its energies in the El Mene field.
Lee’s Connecticut Chronicles:
Just back from email jail while I was in Mexico and trying to play catch-up. Cancun was amazing, no wonder all the football players head there when the season ends. Hopefully, the Bills won’t be heading south of the border any time soon (not my team but have to be loyal to the mothership!). My first order of business coming home was to prepare a bad faith presentation, which I gave today to a few hundred people in need of CLE. Bad faith is such a diverse topic, but in the end it all comes down to reasonableness, which is so often in the eye of the beholder.
This edition we have a couple of nice subrogation coverage cases for your consideration.
Until the next edition, keep keeping safe.
Lee
Lee S. Siegel
[email protected]
Washington Sends Warships to Protect American Interests in Venezuela – 100 Years Ago:
The Times-Transcript
Moncton, Moncton Parish, New Brunswick, Canada
16 Jan 1926
Washington – The state Department has advices of a revolutionary movement in Venezuela and a warship, the Scorpion, has been sent to that country to protect United States interests.
Ruffner’s Road Review:
Dear Readers,
Nothing like a back-and-forth nail biter win over Jacksonville to kick off the Buffalo Bills playoff run. On to Denver!
This week’s case involves an action by the plaintiff, an alleged passenger in a vehicle insured by the defendant insurer, arising from the denial of no-fault benefits. The court considered whether an arbitration decision holding that plaintiff's injuries did not arise out of use and occupation of a motor vehicle, in an arbitration brought by a medical provider as assignee of the insured, was entitled to preclusive effect. The Plaintiff argued, and the court agreed, that she did not have a full and fair opportunity to litigate in the arbitration.
Go Bills,
Kyle
Kyle A. Ruffner
[email protected]
What’s Old is New Again – Restricting Mexican Immigration – 100 Years Ago:
The Buffalo News
Buffalo, New York
16 Jan 1926
MEXICANS RESENT LAW
RESTRICTING IMMIGRATION
MEXICO CITY, Jan. 16.- “The United States has a truly terrible anti-foreign law and Representative Bacon of New York has proposed that it be extended to Mexicans.”
Thus, the government organ, El Democrats, refers to - Mr. Bacon's proposal to restrict immigration from Mexico. El Democrata quotes Foreign Minister Saenz as answering a question regarding the measure as follows:
"That is the American anti-foreign law. There they prevent foreigners from entering the country besides imposing restrictions on those already in the country. Here our doors are open, and we have more American immigrants than those of any other nationality.”
Ryan’s Federal Reporter:
Hello Loyal Coverage Pointers’ Subscribers:
With the elimination of the Chargers from the playoffs this past weekend, the Buffalo Bills officially played their last game in Rich Stadium (or the Ralph, if you’re in your thirties like me). Lots of memories in and around that place. While we all reluctantly left following that last game, my wife bought our seats (physically), and those seats will have a new home soon. I always wondered how Sabres fans had seats from Memorial Auditorium. Now I know…
This edition of my column tackles a Southern District of New York decision concerning counterclaims made by an insured in its insurer’s declaratory judgment action. So, you believe that your insurer breached its obligations under the contract? You’re entitled to believe so. But how you make that known needs to check some boxes and the SDNY provided insight into what boxes must be checked.
Until next time…
Ryan
Ryan P. Maxwell
[email protected]
Not All Predictions Come True – 100 Years Ago:
The Buffalo News
Buffalo, New York
16 Jan 1926
LIVERPOOL, Jan. 15 (AP). – That 60 years hence home life will have disappeared, and people will virtually live in restaurants and hotels is the prediction of Professor A. M. Low, a well-known scientist. The professor prophesies that in 1976 present-day types of ships will be replaced by giant hydroplanes which will skim along the surface of the water at tremendous speed.
Storm’s SIU:
Hi Team:
Three cases this edition:
- 90-Day Delay in Providing Notice of 1st-Party Property Claim Unreasonable as a Matter of Law -- A Notice Obligation is Triggered When the Circumstances Known to the Insured Would Have Suggested to a Reasonable Person the Possibility of a Claim.
- Where Insurer’s Lawsuits Against a Physician Alleged Fraudulent Billing Practices Rather Than Targeting His Provision of Medical Care, the Complaint Failed to State a Claim Under N.Y. Civil Rights Law § 70-b.
- Subrogation Action Dismissed Due to Broad Waiver of Subrogation Making All Occupants Subject to the By-Laws Even if They are Not the Unit Owners.
Let’s Go Bills!!! Have a great two weeks!
Scott
Scott D. Storm
[email protected]
I’m Going Over There Tomorrow – 100 Years Ago:
The Buffalo Times
Buffalo, New York
16 Jan 1926
DURING business hours, park your car at the Van Dome Parking Station, 125 East Swan St., opposite Elm; one dollar per week.
Fleming’s Finest:
Hi Coverage Pointers Subscribers:
January is always a nice time of year to refocus and think about goals for the year ahead. This year, I am excited to try something new by raising money for youth and community programs while training for my tenth half marathon.
The courts have been quiet, so there is no case this edition.
See you in a fortnight,
Kate
Katherine A. Fleming
[email protected]
Hate When Policies Expire – 100 Years Ago:
Buffalo Courier
Buffalo, New York
16 Jan 1926
HOLD ALLEGED AUTOMOBILE
THIEF FOR GRAND JURY
Sought for nearly a year in connection with the theft of an automobile, Walter Hammond, twenty-nine years old, of Burt, who was arrested recently by Detective Charles Vickers, was held yesterday for the grand jury on charges of grand larceny, second degree, and with altering the motor numbers of an automobile. Hammond is accused of stealing on February 4, 1925, an automobile owned by Albert Roth of Orchard Park. The machine is alleged to have been stolen from Main and Chippewa streets.
Four days before the automobile was reported taken, an insurance policy of $1,000, carried by Roth, expired. The insurance company, which failed to notify Roth that his policy had expired, settled for $250. Early this month, Detective Vickers learned the machine had been stored in a barn on a farm in Burt, near Olcott Beach. Vickers made several trips to the farm, located the machine, and then arrested Hammond.
When taken into custody, Hammond first said he had taken the machine, at Mrs. Roth's request, and had planned to destroy it. He later asserted he took the machine when Mrs. Roth refused to pay him $200 which he contended she owed him.
Mrs. Roth admitted on the witness stand she had known Hammond for some time but denied she entered into a conspiracy with him for the theft of the machine, or that she owed him any money. She asserted the machine was stolen while she was in a Main street restaurant, and that she reported at once to police of the Pearl street station.
Gestwick’s Garden State Gazette:
Dear Readers:
Bills and Sabres are on a roll. Bandits are coming off a tough loss last week, looking to bounce back tomorrow (Friday) night at home. Tonight, the Sabres are doing a reunion ceremony for the ’05-’06 team, one of the best Sabres teams to ever exist. That is when I first became a hockey and Sabres fan. My favorite memory I have with my dad is going to games during that particular era—back when the Sabres wore black and red, the rink was called HSBC Arena, and Doug Allen sang the national anthems (if you know, you know). Tonight, I am taking my dad to the game because of this ceremony. Funny how tables turn.
With apologies to Doug Allen, I must say that there is an even more beloved “Allen” in town these days. His first name is Josh, and he is probably this City’s most prized possession. Go Bills.
New Jersey courts were quiet this week, so I take this opportunity to inform you, if you have not been so informed already, of legislative developments currently up for approval by the Governor. The Legislature has proposed a Bill that, if passed, will force auto insurers to include appraisal provisions in all auto policies issued in the Garden State. Importantly, the proposed provision would apply to both first-party claims, as well as to third-party liability claims, and encompass offers of settlement. Interesting stuff.
That’s all for two more weeks. Until then, Go Bills, Sabres, and Bandits.
Evan
Evan D. Gestwick
[email protected]
Iran a Century Ago – 100 Years Ago:
The St. Charles Herald
Hahnville, Louisiana
16 Jan 1926
Persian Capital City of
Kaleidoscopic Contrasts.
Washington. – Recent news dispatches from Persia announce the deposition of the Kajar dynasty, which has ruled the country for more than 150 years, and the ascension of a new shah to the famous peacock throne in Teheran.
“Despite Persia's traditional conservatism in governmental affairs Teheran, its capital, is a city of kaleidoscopic contrasts,” says a bulletin from the Washington headquarters of the National Geographic society. “Visitors may enter through any of its twelve beautiful gates, whose glazed tiles glisten in the sunlight, and find spread before them a dingy collection of mud houses rubbing elbows with palatial residences enclosing flower-filled gardens. A lumbering camel, seemingly just stepped out of a priceless old Persian rug, may draw aside to allow the passage of a high-powered motor car bearing a wealthy Persian en route to his villa on the outskirts of the city.
O’Shea Rides the Circuits:
Dear Readers,
Well, I thought I would never see it. Despite several denigrating comments regarding my choice to support the Ottawa Senators, the team those critics support, the Buffalo Sabres, hired a former Senator as their General Manager. Unsurprisingly, the Sabres went on a long win streak after the hire. I guess excellence breeds excellence.
This week I discuss an Eleventh Circuit Decision addressing the Late Notice defense under Alabama law. While Alabama law allows claimants to provide notice to insurers, there are significant limitations to this form of notice.
Until Next Time,
Ryan
Ryan P. O’Shea
[email protected]
Venezuela Oil – 100 Years Ago:
San Francisco Chronicle
San Francisco, California
16 Jan 1926
Oil Magnate in Row
With Shell Company
LONDON, Jan. 15 (A. P.). – The Daily Express says today that it understands that Calouste S. Gulbenkian, the oil magnate, who is reputed to be one of the wealthiest men in Europe, has had differences with the Royal Dutch-Shell Oil group which may lead him to sever his connections with the oil companies on whose boards he represents the Shell Company. Gulbenkian, an Armenian by birth, is a director in seven companies, including the Aguila Oil Company of Mexico and other concerns in Latin America.
LaBarbera’s Lower Court Library:
Dear Readers:
Thank you to all who joined today during my Coverage Pointers University class on risk transfer. Be sure to tune in next month, as Ryan O’Shea talks about all things SUM coverage.
This week I am reporting on a Kings County decision, denying the insurer’s motion to dismiss, finding that Plaintiff has stated a cause of action for loss resulting from damaged gift baskets and their contents packaged along with wine tubes which leaked, even taking into account a product damages exclusion within the subject policy.
Until next time…
Isabelle
Isabelle H. LaBarbera
[email protected]
Columbia – 100 Years Ago:
The Kansas City Times
Kansas City, Missouri
16 Jan 1926
MELLON IN COLUMBIA OIL DEAL.
Heads American Interests That Also
Dicker for Venezuelan Concession.
BOGOTA, COLUMBIA, Jan. 15.—Government officers here have received a cable from the United States saying American interests headed by Andrew Mellon have taken over the Carco oil concession, said to be the largest and best in Colombia. It is situated close to the frontier of Venezuela, adjoining the most productive oil fields of Venezuela.
The local government claims it has not yet received official application for the granting of the transfer to the agent here, but states the same interests are negotiating for the purchase of a Venezuelan concession for an exclusive shipping outlet by way of Maracaibo.
Lexi’s Legislative Lowdown:
Dear Readers,
I do not have much to report as the holidays wrap up, and we get back into our normal routines.
This week we discuss an additional bill vetoed by the Governor. This bill sought to provide that personal jurisdiction exists for any foreign corporation that is authorized to do business in the State.
Thanks for reading,
Lexi
Lexi R. Horton
[email protected]
Substantial Verdict in Death Case – 100 Years Ago:
The Brooklyn Daily Times
Brooklyn, New York
16 Jan 1926
$10,500 VERDICT STANDS
New York Rapid Transit Co. Loses
Appeal in Death of Boy.
A verdict of $10,500 returned a jury before Supreme Court Justice Lewis, in favor of Mrs. Anna Loeffler, of 518 Fifty-eighth street, against the New York Rapid Transit Corporation, for the death of her nine-year-old son, Martin L. Loeffler, was sustained to-day by the Appellate Division.
The child's father, Patrick F. Loeffler, testified that on August 14, 1923, he, his wife, and the boy were returning home from Coney Island on a Sea Beach train. He said the train stopped suddenly and the boy, who sitting beside him on the seat, was thrown heavily to the floor, striking on his face. The child was taken to the Mount Zion Hospital where he died next day from injuries to his head.
Victoria’s Vision on Bad Faith
Dear Readers,
I hope your 2026 is off to a good start! Looking forward to (hopefully) another Bills win this weekend.
This week I have a case from the Southern District of New York discussing bad faith in the realm of settlement agreements.
Have a great weekend,
Victoria
Victoria S. Heist
[email protected]
Verdict Legislation – 100 Years Ago:
The Herald Statesman
Yonkers, New York
16 Jan 1926
FOR THREE QUARTER
VERDICT BY JURORS
Albany, N. Y., Jan. 16.—A resolution proposing an amendment to the State Constitution so that three-fourths of a jury could render a verdict in criminal and civil cases has been introduced in the Legislature by Assemblyman Hofstadter, Republican of New York.
Another Hofstadter measure would empower the State Industrial Commission to investigate the condition and welfare of aliens with a view of protecting these people against fraud and exploitation “by other notaries public, interpreters and other public officials.”
Shim’s Serious Injury Segment
Hi Readers,
Since our last issue, the NFL playoffs have fully kicked into gear. I thought it might be fun to share some predictions for this week’s games. In the AFC, I have the Bills defeating the Broncos, and the Patriots defeating the Texans. In the NFC, I have the Seahawks defeating the 49ers, and the Rams defeating the Bears. The following week, I have the Bills defeating the Patriots in the AFC Championship Game and returning to the Super Bowl. In the NFC Championship Game, I believe that the Rams will defeat the Seahawks. In the next issue, I will predict who wins it all.
In this column, I have shared a Kings County Supreme Court decision which denied defendants’ motions for summary judgment on the basis that plaintiffs failed to meet the “serious injury” threshold as defined by Insurance Law § 5102(d).
Enjoy the games this weekend. Go Bills!
See you in the next issue!
Stephen
Stephen M. Shimshi
[email protected]
Didn’t Like Advice – 100 Years Ago:
Ledger-Star
Norfolk, Virginia
16 Jan 1926
Dislikes Criticism
Dear Miss Fairfax:
I read the letter signed "Halt Pint" and your cutting reply. I don't think it was very nice of you to bawl her out so, as she meant no harm, as I happen to know. I would do anything in my power to defend her, what if she did allow the boy to kiss her. Was that a crime? He grabbed her and kissed her, because he loved her, and that's that. Furthermore, she has won him despite the kiss, and he respects her, too. So there.
I like your column as a usual thing, but when you bawl out my friends for so slight a thing, it makes me hot under the collar. I know how I'd feel if you held me up to public ridicule, so I'll be mighty careful about confessing my weaknesses to you.
HALF PINT'S FRIEND.
Those who write to me for my opinion or advice must expect me to be frank in expressing it, so if you are afraid of criticism, you'd better not ask the Lovelorn Editor.
North of the Border:
The Canadian courts are quiet this issue.
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]
- A Good Discussion About “Special Employment”
- Landlord Damaged by Tenant’s Failure to Provide Coverage Required by Lease
- Agreement to Provide Additional Insured Coverage Cobbled Together from Related Documents. In Any Event, Providing Defense for Three Years Serves to Estop Insurer from Denying Coverage
- Three Years After Insured Knew of the Accident and Three Years After Receiving Notice of a Claim Letter, the Insured Gave Notice of the Accident and Claim to Its Insurer. Court Finds Questions of Fact About Timeliness of Notice. Thousands Wonder About That Finding. Whether the Late Notice Prejudiced the Insurer Was Also a Question of Fact. That’s More Understandable
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
- Guarded Vehicle Exclusion Applies Where Valuables Are Stolen from an Unattended Car
- No Right to Appeal Dicta Where the Litigant is Otherwise Not Aggrieved by the Appealable Order
- Execution of Release Without Consent of Insurer Dooms SUM Claim
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
- Carrier’s Subrogation Claim Cannot Trump Insured’s Right to Policy Benefits
- Court Lacks Long-Arm Jurisdiction in UM/UIM Claim
- Anti-Subrogation Rule Precludes Carrier’s Recovery Against Tenant
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
- Collateral Estoppel Did Not Preclude Plaintiff’s Action Challenging Coverage Denial, as She Did Not Have Full and Fair Opportunity to Litigate Underlying Arbitration Brought by Medical Provider as Assignee
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
- Insured’s Counterclaims for Declaratory Relief, Indemnification, Bad Faith, and GBL §349 Dismissed One After the Other for One Reason or Another
STORM’S SIU
Scott D. Storm
[email protected]
- 90-Day Delay in Providing Notice of 1st-Party Property Claim Unreasonable as a Matter of Law -- A Notice Obligation Is Triggered When the Circumstances Known to the Insured Would Have Suggested to a Reasonable Person the Possibility of a Claim.
- Where Insurer’s Lawsuits Against a Physician Alleged Fraudulent Billing Practices Rather than Targeting His Provision of Medical Care, the Complaint Failed to State a Claim Under N.Y. Civil Rights Law § 70-b.
- Subrogation Action Dismissed Due to Broad Waiver of Subrogation Making All Occupants Subject to the By-Laws Even if They Are Not the Unit Owners.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
- The courts have been quiet, so there is no case this edition.
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
- New Jersey Legislature Introduces Bill to Force Auto Insurers to Include Appraisal Provisions in All Policies, Extended to Third-Party Claims
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
- Alabama Law on Notice Precludes Plaintiff from Recovering Trial Verdict
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
- Court Finds Plaintiff’s Reading of the Word “Product” Is the Only Reasonable Interpretation, Denying Insurer’s Motion to Dismiss
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
- Governor Vetoes Bill S8186 Which Would Have Found Personal Jurisdiction for Any Business that Consents to do Business in New York
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
- SDNY Dismisses Bad Faith Claims Against Insurer Regarding Settlement of Underlying Action
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
- Kings County Supreme Court Denies Defendants’ Summary Judgment Motion on the Basis That Defendants’ Medical Expert Failed to Address Plaintiff’s Alleged Dizziness and Identified Significant Range of Motion Deficits During Plaintiff’s IME
NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]
- Canadian courts are quiet this week.
All the best.
Hurwitz Fine P.C. is a full-service law firm providing legal services throughout the State of New York and providing insurance coverage advice and counsel in Connecticut and New Jersey.
In addition, Dan D. Kohane is a Foreign Legal Consultant, Permit No. 0119144, issued by the Law Society of Upper Canada, and authorized to provide legal advice in the Province of Ontario on matters of New York State and federal law.
NEWSLETTER EDITOR
Dan D. Kohane
[email protected]
ASSOCIATE EDITOR
Agnes A. Wilewicz
[email protected]
COPY EDITOR
Evan D. Gestwick
[email protected]
INSURANCE COVERAGE/EXTRA CONTRACTUAL LIABILITY TEAM
Dan D. Kohane, Chair
[email protected]
Steven E. Peiper, Co-Chair
[email protected]
Michael F. Perley
Agnieszka A. Wilewicz
Lee S. Siegel
Brian F. Mark
Scott D. Storm
Ryan P. Maxwell
Kyle A. Ruffner
Katherine A. Fleming
Evan D. Gestwick
Ryan P. O’Shea
Isabelle H. LaBarbera
Lexi R. Horton
Victoria S. Heist
FIRE, FIRST PARTY AND SUBROGATION TEAM
Steven E. Peiper, Team Leader
[email protected]
Michael F. Perley
Scott D. Storm
NO-FAULT/UM/SUM TEAM
Dan D. Kohane
[email protected]
Ryan P. O’Shea
[email protected]
Kyle A. Ruffner
[email protected]
APPELLATE TEAM
Jody E. Briandi, Team Leader
[email protected]
Topical Index
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]
01/13/26 Palma v. Woodside Ventures, LLC
Appellate Division, First Department
A Good Discussion About “Special Employment”
In this case, a company called Woodside moved for summary judgment claiming that it was the special employer of the plaintiff and therefore should be protected by the exclusivity of the Workers Compensation Law from a direct action. The First Department, while outlining the rules for special employment, found that the summary judgment motion should be denied.
Woodside failed to establish prima facie that plaintiff was its special employee at the time of the accident and so this action should be barred by the exclusivity provisions of the Workers' Compensation Law. Woodside's argument that it is the alter ego of plaintiff's employer, nonparty A&E Real Estate Management, LLC, was correctly rejected by the motion court on the ground that the record fails to demonstrate that Woodside exercised domination and control over A&E's everyday operations Although Woodside purportedly funded A&E's payroll and secured insurance for the premises and A&E employees, Woodside submitted "no evidence that [its and A&E's] finances were integrated, that they commingled assets, or that the principals failed to treat the entities as separate and distinct.\
Woodside also failed to establish prima facie that it had assumed exclusive control over the manner, details, and ultimate result of plaintiff's work). Plaintiff testified at his deposition that his boss and supervisor worked for A&E]. Moreover, plaintiff's supervisor at the time of the accident testified at his deposition that he was employed by A&E and that plaintiff's manager, who had the authority to alter plaintiff's work schedule, worked for A&E. Furthermore, a partner of A&E testified that he had been a partner of A&E since its inception but could not recall the specifics or "the legal interplay" between A&E and Woodside.
Although Woodside submitted an affidavit from A&E's president averring that, pursuant to the management agreement between the parties, Woodside "retained the ability to determine which personnel worked at the building, their duties, schedule, and rate of pay," this actually conflicts with the text of the management agreement, which provided that all employees were employees of A&E, not Woodside, and that A&E was responsible for all matters pertaining to the employees, including "their employment, supervision, compensation, promotion and discharge, recognizing and bargaining with their union representatives, administering collective bargaining agreements, and responding to grievances."
Accordingly, "[i]n light of the principles that general employment is presumed to continue and the question of whether a special employment relationship exists is generally one for the trier of fact, and the requirement that [this Court] draw all reasonable inferences in favor of the party opposing summary judgment, [Woodside] failed to demonstrate its entitlement to judgment as a matter of law"
01/08/26 Tejeda v. 57th & 6th Ground LLC
Appellate Division, First Department
Landlord Damaged by Tenant’s Failure to Provide Coverage Required by Lease
On the Labor Law front, plaintiff was able to establish that there was a violation of Section 240(1) because the scaffold on which he was working was missing guardrails.
The lease obligated Employer to maintain "Comprehensive General Liability Insurance" with $3 million in "combined single limit" coverage. Instead, the general liability policy procured by Employer provided coverage only for a $1 million per occurrence limit and a $2 million general aggregate limit. The coverage rejection letter also indicated that the insurance policy excluded coverage for employees and contractors, in violation of sub-article 47(A).
The other policy covered only workers' compensation claims and employers' liability claims involving "grave injuries"; while that insurer agreed to defend the claim, it declined to cover Employers' liability damages on the ground that plaintiff did not suffer a grave injury.
Thus, based on the undisputed evidentiary submissions, the policies were not compliant with the requirements of the lease as a matter of law, causing a gap in coverage that resulted in damages to Landlords.
01/06/26 Scottsdale Insurance Co. v. City of New York
Appellate Division, First Department
Agreement to Provide Additional Insured Coverage Cobbled Together From Related Documents. In Any Event, Providing Defense for Three Years Serves to Estop Insurer From Denying Coverage
Scottsdale contended that there was no written agreement requiring it to name the City as an additional insured, so it owned no duty to defend or indemnify the City.
The court found that a binding agreement may be assembled from more than one writing. Here, the named insured contractor applied for a permit from the Department of Transportation (DOT). DOT issued a permit which required the contractor to name the City as an additional insured on certain insurance policies the contractor obtained. The contractor accepted the permit and commenced work, and a certificate of insurance was issued describing the City as an additional insured on the contractor's policy. The permit itself was part of a binding agreement in which the contractor agreed to abide by its terms and conditions in order to obtain DOT's permission to perform work.
In any event, "an insurance company may be estopped from denying or disclaiming coverage where the proper defending party relied to its detriment on that coverage and was prejudiced by the delay of the insurance company in denying or disclaiming coverage based on the loss of the right to control its own defense" Scottsdale provided a defense in this matter for approximately three years before disclaiming coverage closer to trial. Under the circumstances, allowing plaintiff to disclaim its defense obligations years later would prejudice the City. Further, the City approached settlement negotiations under the belief that it had coverage.
As for Scottdale’s contention that its coverage should be capped at $1 million, plaintiff never alleged this in its complaint. The Highway Rules, which were incorporated into the policies, require the City, as an additional insured, to have the same coverage limits as the contractor. The applicable cap under the contractor's policies is $6 million, which therefore applies to the City as well.
Since the City was put in a defense posture this DJ action and won, it gets to recover its attorney’s fees.
01/06/26 Iroha Corporation v. Kookmin Best Insurance Company
Appellate Division, First Department
Three Years After Insured Knew of the Accident and Three Years After Receiving Notice of a Claim Letter, the Insured Gave Notice of the Accident and Claim to Its Insurer. Court Finds Questions of Fact About Timeliness of Notice. Thousands Wonder About That Finding. Whether the Late Notice Prejudiced the Insurer Was Also a Question of Fact. That’s More Understandable
Iroha commenced this action for a declaration that its insurers have a duty to defend it in an underlying negligence action. Iroha claims that on April 9, 2017, the attorney for Dylan Riley, the underlying plaintiff, sent a letter to Iroha notifying it of an incident that occurred on or about May 28, 2014, in which Riley was allegedly injured on a stairwell on Iroha’s premises. Iroha notified defendant insurers of Riley's allegations in an email dated April 24, 2017. In reviewing the record on appeals, the restaurant manager knew of the accident the day it occurred and saw the underlying claimant leave by ambulance to go to the hospital The claim letter, received just under three years from the date of the accident, forwarded to the carrier was the first notice that the insured provided to it carrier concerning Riley's incident. Riley commenced the underlying negligence action in April 2017.
The First Department found that there were questions of fact concerning when the insured was required to provide notice of the accident to the insurer, and whether plaintiff's alleged delay was reasonable. The primary evidence relied upon establishing that plaintiff should have been on notice in 2014 was not in admissible form.
The record also presents questions of fact concerning whether the insurer suffered any actual prejudice due to the alleged delay.
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
01/15/26 Avi and Co. NY Corp. v. Certain Underwriters at Lloyds
Appellate Division, First Department
Guarded Vehicle Exclusion Applies Where Valuables Are Stolen From an Unattended Car
In a classic “whodunit,” the Underwriters policy specifically excluded losses from unattended vehicles.
In this case, non-party El Russo was in possession of certain valuable watches which were owned by Avi and Co. Unfortunately, they were stolen from El Russo’s unguarded vehicle. The Underwriters’ policy, however, required that someone from the insured, or approved by the insured, be in or upon the vehicle where the valuables are being kept/transported. Because there was no security at the vehicle, and because El Russo was subject to the terms of the policy, including the guarded vehicle exclusion, coverage was forfeited.
01/14/26 In re. Progressive Cas. Ins. Co. v. Lai
Appellate Division, Second Department
No Right to Appeal Dicta Where the Litigant Is Otherwise Not Aggrieved by the Appealable Order
In context of a SUM claim, the insured presented a claim and demand for arbitration. Progressive moved to permanently stay the application. Before the trial court, the judge apparently granted the application to stay SUM arbitration. However, the judge also referenced, in dicta, that the issues of compliance with conditions precedent were appropriately reserved for an arbitrator.
Progressive disagreed with the court’s opinion on this issue and sought appellate review. The Second Department, however, dismissed the appeal because Progressive, ultimately, sought to appeal an Order from which they were not aggrieved. Here, recall, the trial court granted Progressive’s application for stay which was the relief requested. There are no appellate rights for disagreements with dicta, and that is exactly what was presented for the court’s review in this case.
01/14/26 In re. Progressive Cas. Ins. Co. v. Lai
Appellate Division, Second Department
Execution of Release Without Consent of Insurer Dooms SUM Claim
The insured/claimant also appealed from the trial court’s decision to permanently stay SUM arbitration. We understand from the Appellate Division’s review that Ms. Lai resolved her claims with the underlying tortfeasor without the consent of Progressive. Progressive was able to produce a copy of a Release which destroyed any potential subrogation claims it may have had against the tortfeasor. Under such circumstances, the burden shifted to the insured/claimant to establish the SUM carrier’s rights to coverage had not been prejudiced. Insured/Claimant could not meet that burden.
The Court also noted that issues of coverage (i.e., the application of an exclusion) is not subject to the breadth of the arbitration clause found within the SUM endorsement. The claim, rather, is one of “particular, not general” focus. This means that the only things subject to arbitration are whether the insured/claimant is entitled to SUM benefits and the calculated amount of damages. Application of policy defenses are issues of law reserved for the Courts.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
01/06/26 Orlando v. Liburd
Supreme Court of Connecticut
Carrier’s Subrogation Claim Cannot Trump Insured’s Right to Policy Benefits
Orlando sued Liburd for diminished value damages and car rental expenses following a motor vehicle accident. Orlando’s insurer, Nationwide, accepted the tortfeasor’s $25,000 liability limit, from State Farm, in settlement of its subrogation claim, exhausting the coverage. Orlando successfully claimed that Nationwide violated the make-whole-doctrine by pursuing its subrogation claim against the tortfeasor before its insured was fully compensated.
The Court ruled that, absent express statutory or contractual language otherwise, the make whole doctrine is the default rule in Connecticut. The doctrine restricts the enforcement of an insurer's subrogation rights until after its insured has been fully compensated for their loss. Because Nationwide settled its subrogation claim before its insured’s claim for damages against the tortfeasor was adjudicated, Nationwide violated the insured’s right of priority and was unjustly enriched.
The trial court held, and the Appellate Court affirmed, that the insured’s claim was contingent and therefore the unjust enrichment claim was not yet ripe. The Supreme Court disagreed and reversed because Nationwide's premature subrogation constituted a cognizable legal injury, despite any uncertainty as to the amount of the insured’s damages. “We agree with the plaintiff that a cause of action premised on an insurer's premature subrogation in violation of the make whole doctrine is ripe for adjudication before an insured obtains a judgment against the tortfeasor, and we reject Nationwide's alternative ground for affirmance.”
The Court went on to write that Nationwide’s exhaustion, in subrogation, of the tortfeasor’s insurance limits deprived its insured of access to liability coverage to compensate him for losses not covered by his Nationwide policy (such as diminution in value). Requiring the insured to first win against the tortfeasor before it could bring a claim against its insurer would be inefficient and lead to unnecessary expense before being permitted to vindicate its priority right. “Requiring an injured insured to endure "the delay, expense, [and] inconvenience" involved in obtaining and attempting to satisfy a judgment against the responsible third party before he can assert his priority right to the guaranteed source of recovery would render that priority right illusory.”
In response to the claims that this ruling will render the terms of the insurance contract superfluous, the Court noted that the carrier can draft the policy to avoid the default rule or simply confirm with the insured that it has been fully compensated before accepting the subrogation settlement. The latter seems like a relatively easy workflow addition.
12/26/25 Hendricks v. State Farm Mut. Auto. Ins. Co.
Superior Court of Connecticut, New Britain
Court Lacks Long-Arm Jurisdiction in UM/UIM Claim
The court dismissed the insured’s breach of contract claim, finding that it lacked jurisdiction over State Farm, which is an Illinois company that does business in Connecticut. The New York plaintiff was issued a personal auto policy in New York, for his vehicle registered and garaged in New York. The plaintiff was in an auto accident in neighboring Connecticut, when he was rear-ended by an unidentified motorist.
State Farm moved to dismiss, arguing that under Connecticut’s long arm statute, the court lacked jurisdiction. The court agreed. Connecticut General Statute § 33-929(f) allows Connecticut courts to exercise jurisdiction over a foreign corporation only when the plaintiff is a Connecticut resident or a person having a usual place of business in Connecticut. Since the plaintiff was neither a Connecticut resident nor a person having a usual place of business in Connecticut, there is no jurisdiction. Additionally, the statute also allows Connecticut courts to exercise jurisdiction over a foreign corporation in a contract action only when the cause of action arises from a contract made or to be performed in Connecticut. Here, the insurance contract was neither made in Connecticut nor intended to be performed in Connecticut.
Case dismissed, presumably to be re-filed in a New York state court .
11/19/25 AmGuard Ins. Co. v. Ellis
United States District Court, Connecticut
Anti-Subrogation Rule Precludes Carrier’s Recovery Against Tenant
AmGuard insured Michael Caldwell’s rental property located in Windsor, CT. Following a fire at the premises, AmGuard alleges it became subrogated to recovery its payments against the tenant who was allegedly at fault. AmGuard claimed that the tenants left their minor children unsupervised and in possession of a lighter. AmGuard alleged that the unsupervised minors used the lighter to ignite combustible materials leading to $102,256.08 in property damage. AmGuard paid the claim and commenced this subrogation action, which the tenants moved to dismiss.
As a default rule, Connecticut law provides, between a landlord's insurer and tenant, the landlord has no right of subrogation in absence of a specific agreement in the contract. The Connecticut Supreme Court has previously supported this default rule to avoid economic waste and because a tenant would not expect to be obligated to reimburse the landlord’s insurer for damage the tenant might have caused to the leasehold.
What exactly the lease agreement must say to create a right of subrogation remains unclear. Here, the tenant argued that there were no provisions in the lease putting it on notice of a right to subrogate or that the landlord’s insurance was obtained for their mutual benefit. Specifically, the lease only requires the tenants to maintain renter’s insurance. AmGuard argued that the lease’s requirement that the tenant maintain renter’s insurance would put any reasonable person on notice to contract out of the entire anti-subrogation rule.
The district court called AmGuard’s argument “misguided.” “As the Connecticut Supreme Court meticulously examined in Middlesex and Amica, a general "provision . . . obligating the tenant not to cause damage to the apartment and to be responsible for repairing any such [damage] . . . [does] not rise to a level creating an express agreement noticing and obligating the tenant to be responsible for the fire loss." Amica at 440, quoting Middlesex, 279 Conn. 28 at 33 (emphasis added).”
The court held that none of the Amica requirements were present in the lease agreement. The court went on to note that Connecticut public policy provides explicit protection to tenants regarding subrogation and while a lease agreement can contract around those protections, the explicit requirements under the caselaw must be met.
[A recent AmGuard motion to reargue was denied, on December 23, 2025.]
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
12/23/25 Cuevas v. Everest Denali Ins. Co.
Bronx County Supreme Court
Collateral Estoppel Did Not Preclude Plaintiff’s Action Challenging Coverage Denial, as She Did Not Have Full and Fair Opportunity to Litigate Underlying Arbitration Brought by Medical Provider as Assignee
Plaintiff commenced the subject action seeking monetary damages for economic injuries allegedly sustained when defendant disclaimed coverage of No-Fault insurance benefits related to medical bills resulting from a motor vehicle accident, where plaintiff was the passenger of the insured's vehicle. The plaintiff alleged that defendant paid no portion of the claim, having disclaimed coverage on the basis that plaintiff's injuries did not arise out of use and occupation of a motor vehicle.
The plaintiff assigned medical benefits to providers including Comprehensive MRI, which pursued arbitration against the insurer for the denial of claim. The insurer prevailed at arbitration, as it was determined by the arbitrator that the accident did not occur as alleged. The insurer moved for summary judgment in this personal injury action asserting, among other things, that although plaintiff was not a litigant in the arbitration, she is bound by collateral estoppel due to privity with the provider in that proceeding. In response, plaintiff asserted that she lacked a full and fair opportunity to litigate that matter and cross moved for summary judgment on the basis that the insurer’s disclaimer was untimely.
The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. Ryan v. New York Tel. Co., 62 NY2d 494, 500 (1984). Moreover, collateral estoppel principles apply as well to awards in arbitration as they do to adjudications in judicial proceedings. However, the court found that while the insurer established identity of issues and privity between plaintiff and her medical provider assignee, plaintiff demonstrated she lacked a full and fair opportunity to litigate in the arbitration. The arbitration proceeded without plaintiff's knowledge or participation, and without evidence in her possession that could have established the vehicle's identity. In addition, plaintiff had no opportunity to testify or cross-examine witnesses.
The court next considered the plaintiff’s cross motion seeking summary judgment declaring that the claims submitted by plaintiff and assignees arose through the use and operation of a motor vehicle covered by the insurer. The proponent of a summary judgment motion has the burden of submitting evidence in admissible form demonstrating the absence of any triable issues of fact and establishing entitlement to judgment as a matter of law. However, it was determined by the court that there were contradictory testimonies which created unresolved issues of fact requiring credibility assessments of the witnesses.
As such, the court denied both the insurer’s motion to dismiss based on collateral estoppel and plaintiff's cross-motion for summary judgment.
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
01/07/26 First State Ins. Co. v. United Jewish Appeal
United States District Court, S.D.N.Y.
Insured’s Counterclaims for Declaratory Relief, Indemnification, Bad Faith, and GBL §349 Dismissed One After the Other for One Reason or Another
The plaintiffs—First State Insurance Company, New England Insurance Company, Twin City Fire Insurance Company, and Hartford Accident and Indemnity Company (together called “the Hartford”)—issued primary and excess insurance policies to one of the defendants, the United Jewish Appeal – Federation of Jewish Philanthropies of New York, Inc. (“UJA”), from 1973 to 1992.
Starting in 2020, several alleged child sex abuse claimants sued both UJA and another defendant, The Shorefront YM‑YWHA of Brighton‑Manhattan Beach, Inc. (“Shorefront”). They claim the abuse was committed by coaches, employees, volunteers, and donors during the 1970s and 1980s.
The Hartford filed a declaratory judgment action to define the scope of insurance coverage applicable to four abuse cases in particular and Shorefront counterclaimed for declaratory relief, indemnification, bad faith and violations of the General Business Law. The Hartford sought to dismiss these counterclaims.
Addressing Shorefront’s counterclaims seeking declaratory relief, such claims were dismissed because they duplicated Shorefront’s breach-of-contract counterclaim and would not resolve any new issues. Courts generally reject declaratory judgment actions when other claims will settle the same questions.
As for its counterclaim seeking reimbursement of defense costs, the SDNY also dismissed this count because it was part and parcel with Shorefront’s breach-of-contract claim. If The Hartford breached its duty to defend, those costs would be recoverable under that claim.
Addressing Shorefront’s bad faith counterclaim, the SDNY found that claim was again duplicative of Shorefront’s breach-of-contract claim. While New York law permits such a counterclaim, it must be predicated upon facts independent of those supporting a mere breach of contract to provide insurance. In other words, New York does not allow a separate cause of action for breach of the implied covenant when based on the same facts as a parallel breach of contract claim.
Finally, Shorefront’s General Business Law § 349 counterclaim was dismissed because Shorefront failed to show consumer-oriented conduct. As the SDNY read this counterclaim, Shorefront’s dispute with The Hartford was a private contractual dispute over the immediate coverage claim and policy, rather than something affecting consumers at large.
STORM’S SIU
Scott D. Storm
[email protected]
01/02/26 Greater St. Stephen Ministries, Inc. v. Mt. Hawley Ins. Co.
United States District Court, S.D. New York
90-Day Delay in Providing Notice of 1st-Party Property Claim Unreasonable as a Matter of Law -- A Notice Obligation Is Triggered When the Circumstances Known to the Insured Would Have Suggested to a Reasonable Person the Possibility of a Claim
Greater St. Stephen Ministries owns property in Louisiana, sued Mt. Hawley after coverage was denied for damage from Hurricane Ida on 8/21/21. The insurance policy required “prompt notice of the loss or damage” and set an outer bound of one year to file a claim, but Greater St. Stephen did not submit a formal claim until close to four months after the hurricane, in December 2021. Mt. Hawley sent an engineer about a month after the claim, who found only easily repairable damage and concluded the repair costs fell under the deductible, leading Mt. Hawley to refuse payment. Greater St. Stephen initially filed suit in Louisiana state court seeking breach-of-contract damages and attorneys’ fees; Mt. Hawley removed on diversity and then transferred the case to the Southern District of New York based on the contract’s venue provision.
The Court granted Mt. Hawley’s motion for summary judgment. Applying New York law, the court held that the duty to give notice was triggered when the insured knew of a reasonable possibility of a claim, which the property manager recognized a week or two after the hurricane upon seeing leaks and deciding to call an insurance adjuster. The standard when an insured must notify their insurer is not when they learn of the full extent of the damage but is instead when they learn that there is any reasonable possibility of their policy's involvement.
Greater St. Stephen’s notice came roughly 90 days after the duty arose and cited authority holding delays of 26 to 51 days unreasonable as a matter of law, thus establishing late notice and discharging the insurer’s obligations. The court rejected Greater St. Stephen's argument that it provided earlier notice, finding no evidence supporting this claim.
The court also rejected the request for attorneys’ fees because New York law bars recovery of fees for affirmative coverage actions absent bad faith, and the record contained no evidence of “evil and reprehensible motives” by Mt. Hawley.
01/05/26 Clarke v. Gov’t. Emps. Ins. Co.
United States Court of Appeals, Second Circuit
Where Insurer’s Lawsuits Against a Physician Alleged Fraudulent Billing Practices Rather than Targeting His Provision of Medical Care, the Complaint Failed to State a Claim Under N.Y. Civil Rights Law § 70-b
Clarke and his medical practice were sued by GEICO in two civil RICO actions alleging fraudulent billing for unnecessary medical equipment and healthcare services in no-fault insurance claims. Clarke then filed suit against GEICO claiming “unlawful interference with protected rights” under New York Civil Rights Law § 70‑b. Clarke sued under § 70‑b, claiming GEICO's lawsuits were intended to harass and intimidate him to prevent him from providing medical care to minority patients. The statute provides a cause of action when litigation is brought because a person exercised or facilitated protected medical care, including reproductive or endocrine health services. The FIRE HATE Act was intended to protect individuals from litigation in other states seeking to impose liability for accessing protected medical care in New York.
The district court dismissed Clarke’s claim, interpreting § 70‑b narrowly: “Medical care” must relate to reproductive or gender‑affirming care; and Clarke’s alleged conduct (billing fraud) did not fall within that protected category. Where GEICO's lawsuits against Clarke alleged fraudulent billing practices rather than targeting his provision of medical care, the litigation did not “result” from the exercise of his right to provide medical care, and thus Clarke failed to state a claim under § 70-b.
Here the 2nd Cir. affirmed dismissal but on different grounds from the district court. Clarke failed to plausibly show causation required by the statute. GEICO sued Clarke because of allegedly fraudulent billing, not because he provided any form of medical care. The court emphasized that § 70‑b requires litigation to “result from” the provision of protected medical care—i.e., actual causation, which Clarke did not plead.
Clarke’s claim that GEICO’s “true motive” was to inhibit his medical practice was rejected because the statute focuses on the allegations in the lawsuit, not a party’s subjective motive; and Clarke’s complaint lacked sufficient factual allegations to plausibly infer GEICO’s lawsuits were a sham intended to suppress medical care. The court rejected Clarke's argument that GEICO's aggressive litigation tactics plausibly suggested an intent to penalize him for treating patients, finding these tactics equally consistent with pursuit of bona fide litigation over billing fraud.
Routine litigation actions — examinations under oath, document requests, data collection — were consistent with investigating alleged insurance fraud, not unlawful interference.
Clarke cited GEICO v. Mayzenberg to argue GEICO’s actions were improper. The court disagreed, noting that unsettled legal questions about no‑fault claims strengthened, rather than weakened, the inference that GEICO’s claims were legitimate.
The Second Circuit held the district court did not abuse its discretion in denying leave to amend because Clarke offered no proposed new facts that could cure the deficiencies.
12/12/25 State Farm Fire & Cas. Co. v. Yalamanchili
Supreme Court, New York County
Subrogation Action Dismissed Due to Broad Waiver of Subrogation Making All Occupants Subject to the By-Laws Even if They Are Not the Unit Owners
State Farm filed a subrogation action alleging property damage 4A at 224 West 18th Street, Manhattan, owned by its insured Carmi, caused by a water leak originating from unit 6A occupied by defendants. The complaint alleged defendants left a bathroom window open in unit 6A, causing pipes to freeze and burst, which led to water damage in unit 4A. Defendants moved to dismiss, arguing a waiver of subrogation in the condominium by-laws barred the action.
State Farm opposed, contending the waiver applied only to the condominium board and its managers, not to unit owners or occupants, and alternatively argued defendants could not invoke the waiver because they were not unit owners.
The condominium By-Laws contained a broad waiver of subrogation with no limiting language in Section 5.4(E), and Section 1.4 explicitly makes all occupants subject to the By-Laws, the waiver bars a subrogation claim against unit occupants even if they are not the unit owners. Unlike cases where parties sought to invoke waivers from contracts to which they were not a party, here Defendants were subject to the By-Laws by virtue of their occupancy.
Condominium by-laws are in essence an agreement among all of the individual unit owners as to the manner in which the condominium will operate, and which set forth the respective rights and obligations of unit owners, both with respect to their own units and the condominium's common elements.
Unit 6A is owned by 18th Street Holding LLC, a single-purpose entity formed by family trusts for use by Vattikuti and his family, including his niece Yalamanchili, and the court found occupants are subject to the by-laws. The court held the waiver of subrogation was broad and not limited to unit owners or the condominium board, making defendants covered by the waiver.
While parties to an agreement may waive their insurer's right of subrogation, a waiver of subrogation clause cannot be enforced beyond the scope of the specific context in which it appears. Subrogation waiver provisions have been found by courts to be generally valid and enforceable. When a waiver of subrogation provision does not contain any language limiting its application, and the waiver is broad, it must be applied broadly and not limited to specific parties such as a Condominium Board of Managers. When the language of a condominium by-laws provision is broad and does not limit the applicability of the waiver of subrogation to Unit Owners, the waiver may extend to other parties subject to the by-laws.
Accordingly, the motion to dismiss was granted. Save trees - read court opinions online on Google Scholar.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
The courts have been quiet, so there is no case this edition.
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
11/24/25 Assembly Bill 6106
New Jersey State Assembly
New Jersey Legislature Introduces Bill to Force Auto Insurers to Include Appraisal Provisions in All Policies, Extended to Third-Party Claims
The New Jersey Assembly has introduced a Bill that, if passed, would mandate that every auto policy issued in the State of New Jersey to include a provision allowing either the insured or the insurer to demand an appraisal when the insured and insurer disagree on either the actual cash value (“ACV”) or the amount of the loss. With respect to first-party property damage claims, this means that if, after the insured has the damaged vehicle inspected by a body repair shop of the insured’s choice (as required under existing law), the insured and insurer still disagree on value, either side has the right to retain a neutral third party to evaluate the value of the loss.
The mechanics (no pun intended) are as follows: either party can demand the appraisal. The demanding party must make its demand in writing, send to the other side. The demand must identify the demanding party’s appraiser. The recipient of the demand then has 20 calendar days to notify the demanding party of the appraiser they propose. Once both appraisers are appointed as such, they have 20 business days to appraise the loss, and arrive at their own, independent conclusions as to ACV and amount of loss. Should the two appraisers disagree on ACV or amount of loss, they must first, within 15 calendar days of their disagreement, agree on a neutral umpire to whom to submit documentation memorializing their differences. If the appraisers cannot agree on a neutral umpire, one will be appointed by a Court of competent jurisdiction (most likely vis-à-vis a motion to compel appraisal, though the proposed Bill does not specify). The umpire’s decision on ACV or amount of loss, as the case may be, is final.
That’s the easy part, the important takeaways from which are: (1) historically, New Jersey law has not required auto insurers to offer appraisals, but now, it might, if the Bill is signed into law; and (2) careful attention must be paid to the deadlines proposed, especially to the differences between “calendar days” and “business days.” Potential stumbling blocks, although the proposed Bill does not say what will happen if a deadline is missed.
Now for, what I submit to you is the more interesting/less routine part. The proposed Bill also includes a provision for appraisal of an offer of settlement on a third-party property damage liability claim. Indeed, the propriety and sufficiency of an offer of settlement on such claims are also subject to appraisal under the proposed Bill.
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
01/07/26 A.B. v. Barrow
United States Court of Appeals, Eleventh Circuit
Alabama Law on Notice Precludes Plaintiff From Recovering Trial Verdict
In 2022, A.B. received a $10 million verdict against Barrow in an underlying tort action that pertained to a 2013 occurrence. While litigating the tort action A.B., also commenced an action against Barrow under Alabama’s Fraudulent Transfer Act in 2018. In September 2018, Barrow’s wife told A.B.’s counsel that she believed Barrow was insured by Nationwide. Through subpoenas served in November 2018, A.B.’s counsel received copies of the Nationwide policies issued to Barrow in January 2019.
Significantly, Barrow’s umbrella policy with Nationwide provided coverage for “invasion of rights to privacy” which was a cause of action in the underlying tort action. A.B. sued then Nationwide in a direct action to satisfy the judgment.
Late notice was the crux of Nationwide’s coverage position. On appeal Nationwide advanced that the policy Notice Condition’s use of “on behalf of” terminology required an agency relationship. Thus, A.B.’s counsel could not provide notice on Barrow’s behalf because opposing counsel could not qualify as Barrow’s agent. The court rejected this position and noted Alabama courts recognized claimants’ rights to provide notice of occurrences to insurers and previously interpreted a claimants’ notice as satisfying a liability policy’s notice requirements. As such, A.B.’s counsel provided notice to Nationwide via the subpoena served in November 2018.
Alabama applies a two-factor test to determine whether notice is reasonable under the circumstances which are (i) the length of delay; and (ii) reason for delay. A.B.’s counsel complied with the timing component since counsel lacked notice of a Nationwide policy until September 2018, and notified Nationwide of the claim through the subpoena in November 2018. Based upon the timespan and excuse for the lack of knowledge of the policy, the court held A.B.’s counsel acted with reasonable promptness. However, Barrow failed to provide timely notice since he received notice of the claim 58 months prior to Nationwide’s notice. Barrow never claimed lack of receipt or lack of understanding of the policy, nor did Barrow provide any other excuse as to why he did not provide notice of the claim.
Under Alabama law, equitable considerations are not considered, rather timeliness turns on the reason for the delay. Accordingly, once a delay is shown, Barrow as the insured must come forward with a reasonable justification for the delay. The Court reasoned that while Alabama law permits claimants to provide notice, the onset of a delay begins once the insured receives notice of the occurrence. In keeping with the focus on the insured, Alabama law also requires the insured to provide justification for the delay. Since Barrow received notice of the claim 58 months prior to A.B.’s notice to Nationwide and failed to provide an excuse for the delay, the notice provided was untimely as a matter of law. Despite the efforts of A.B.’s counsel, the Nationwide umbrella policy did not provide coverage for any portion of the $10 million verdict due to the breach of the Notice Condition.
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
12/24/25 Oh Nuts Inc. v. Cincinnati Ins. Co.
Supreme Court, Kings County
Court Finds Plaintiff’s Reading of the Word “Product” Is the Only Reasonable Interpretation, Denying Insurer’s Motion to Dismiss
Oh Nuts Inc. (the “Insured”) prepares and sells gift baskets that contain wines, fruits, nuts, chocolates, baked goods, snacks, and other assorted various products. On February 16, 2024, Plaintiff purchased wine tubes from Defendant, Rashbi Wines Corp. (“Rashbi”), to use as part of a gift basket. Oh Nuts was not involved, in any way, with the development, production or use of the wine tubes themselves, but purchased as a finished product by Plaintiff.
On March 14, 2024, after the wine tubes were incorporated into the gift baskets, Plaintiff discovered that the tubes were leaking, resulting in damage to the gift baskets, and other items contained in the baskets. Plaintiff alleges that the leaking was a direct result of the defects in the wine tubes.
Oh Nuts submitted a claim to its business personal property insurer, Cincinnati Insurance Company (“Cincinnati”). Cincinnati denied Plaintiff’s claim. The policy covered loss of business personal property; however, it contained the following exclusion:
Loss or Damage to Product
We will not pay for “loss” to Covered Property consisting of merchandise, goods or other product caused by or resulting from error or omission by any person or entity (including those having possession under an arrangement where work or a portion of the work is outsourced) in any stage of the development, production or use of the product, including planning, testing, processing, packaging, installation, maintenance or repair. This exclusion applies to any effect that compromises the form, substance or quality of the product. But if such error or omission results in a Covered Cause of Loss, we will pay for "loss" caused by that Covered Cause of Loss.
After, Plaintiff commenced an action against Cincinnati, and Rashbi Wines Corp. Plaintiff asserted a breach of contract claim on Cincinnati, who moved to dismiss under CPLR 3211(a)(1) and (7) seeking dismissal of the complaint.
Cincinnati relied on the above-quoted exclusion, and provided the following reading of the applicable product damage exclusion:
We will not pay for "loss" to Covered Property consisting of merchandise, goods or other product [i.e., Oh Nuts gift baskets] caused by or resulting from error or omission by any person or entity [i.e., Rashbi's error in providing leaking wine tubes] . . . in any stage of the development, production or use of the product, including planning, testing, processing, packaging, installation, maintenance or repair [i.e., packaging the leaking wine tubes in the gift baskets]. This exclusion applies to any effect that compromises the form, substance or quality of the product [i.e., the quality of the gift baskets was compromised as wine spilled on the other contents].
Put another way, the gift baskets were Oh Nuts' product and damage to them was caused by or resulted from Rashbi's error in sealing the wine tubes that were packaged in the gift baskets as part of their production; the leaking wine compromised the quality of the gift basket products [underlinings in original].
Plaintiff argues that the exclusion is ambiguous and does not apply to the claim. Plaintiff, in the alternative, argues that the term “product,” applies to the wine tubes, claiming that they were defective before being purchased. As such, to the extent the exclusion applies at all, it only applies to any claim to recover costs for the defective wine tubes.
The Court first explained the standard under a motion to dismiss an action under CPLR 3211(a)(7), which requires the Court to take all facts as alleged as true, to determine whether the facts fit within any cognizable legal theory. However, under CPLR 3211(a)(7), if the court considers evidentiary materials in support of motion papers, the standard then becomes whether the Plaintiff has a cause of action, not solely whether one has been stated.
Next the Court cites to case law that in determining an insurance coverage dispute, you must first look to the language of the policy. With any written contract, under New York law, the unambiguous provisions to the policy must be given their plain and ordinary meaning. The test to determine whether a term is ambiguous is whether the provision is susceptible to two reasonable interpretations.
In their analysis, the Court held that when objectively assessing the entirety of the Cincinnati policy, there is only one reasonable interpretation to the word “product.” The only reasonable interpretation is that the word “product” applies solely to the wine tubes. As such, the word “product” in the exclusion is to be construed the same throughout the exclusion, because “we may presume the same words in different parts of a writing have the same meaning.”
The Court found that Cincinnati’s reading of the word “product” in the exclusion is that it supplies a different definition to “product” in one instance (i.e., the gift baskets) but in another instance changes that definition (i.e., the wine tubes). The Court identified that linguistically, this does not make sense.
The Court concluded its analysis by stating that even if the Court is wrong in its interpretation, the complaint should not be dismissed, because Cincinnati has not met the heavy burden of establishing the interpretation of the exclusion is correct, and not subject to any other reasonable interpretation. The Court identified that Cincinnati’s reading makes little sense, because if applied, it would result in illusory coverage. For instance, if negligence of one product causes damage to other products, there is no purpose of having an insurance policy to provide coverage for merchandise, because no product would be covered. Logically, it only makes sense to exclude the product which was the subject of an error or omission.
Accordingly, the Court denied Cincinnati’s motion to dismiss, finding that Plaintiff has stated a cause of action for insurance coverage indemnification for loss resulting from damaged gift baskets and their contents packaged along with wine tubes, which leaked out.
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
01/16/26 Veto of Senate Bill S8186
New York State Senate
Governor Vetoes Bill S8186 Which Would Have Found Personal Jurisdiction for Any Business that Consents to do Business in New York
On December 19, 2025, the Governor vetoed Bill S8186. The Bill sought to amend the civil practice law and rules, the business corporation law, the not-for-profit corporation law and the partnership law, in relation to consenting to jurisdiction by foreign business organizations that are authorized to do business in New York State.
The Bill sought to provide personal jurisdiction over foreign corporations authorized to do business in New York in relation to actions brought by:
(1) A resident of this state;
(2) A domestic corporation, unincorporated association, partnership, LLC or LLP; or
(3) A foreign corporation, LLC or LLP authorized to do business in the State.
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
01/06/26 Colony Ins. Co. v. Oz Sols.
United States District Court, Southern District of New York
SDNY Dismisses Bad Faith Claims Against Insurer Regarding Settlement of Underlying Action
In 2018, 470 4th Avenue Fee Owner filed suit against Danya Cebus Construction LLC ("Danya Cebus") and 470 4th Avenue Investors alleging construction defects arising from the installation of ductless air conditioner units at the premises.
Danya Cebus filed third-party actions against the contractors that were retained to perform work at the property, including Oz Solutions ("Oz"). In March 2021, Danya Cebus sent a tender to Colony, the insurer for Oz, for the defense of all defendants in the underlying action. Colony accepted the tender under a reservation of rights.
In 2024, Colony brought this declaratory judgment action seeking a declaration that the policies are void due to material misrepresentations in Oz's insurance applications. Oz brought counterclaims against Colony for bad faith and breach of the implied covenant of good faith and fair dealing for failure to settle the underlying action.
In 2025, a settlement between Oz and the Plaintiff was proposed for $600,000, but the owner and president of Oz would not sign off on the settlement, stating he did not authorize the settlement.
In its counterclaims, Oz alleges that Colony acted in bad faith when it agreed to the settlement with the plaintiff without Oz's authorization. It alleges Colony sought to incur substantial debt on Oz's behalf because Colony was also seeking to rescind the policies. In response, Colony said it did not have an obligation to obtain Oz's consent to settle because the policies did not contain a consent-to-settle provision. Further, Colony settled the claims within the policy limits, and there is only any exposure if Colony is successful on its recission.
The Court found in favor of Colony, stating "[t]he archetypal bad faith case is one in which an insurer refuses a settlement offer within the policy limits and opts to go to trial, exposing the insured to the risk of a judgment exceeding those limits."
Colony settled the claims for substantially less than the $1,000,000 limits and did not refuse to settle in the hopes of obtaining a small judgment at trial. Further, Colony's failure to tell the Oz defendants about the settlement is not bad faith, because Colony had the same interest as Oz for settling for the lowest possible payment obligation.
The Court granted Colony's motion to dismiss the Oz defendant's counterclaims.
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
12/19/25 Ramseur v Black Horse Carriers LLC
Kings County Supreme Court
Kings County Supreme Court Denies Defendants’ Summary Judgment Motion on the Basis That Defendants’ Medical Expert Failed to Address Plaintiff’s Alleged Dizziness and Identified Significant Range of Motion Deficits During Plaintiff’s IME
This matter arose from personal injuries suffered by plaintiffs, Plaintiff Ramseur ("plaintiff"), in connection with a motor vehicle accident that occurred on December 19, 2021. In his verified bills of particulars, plaintiff alleged the following categories of serious injury: (1) significant disfigurement; (2) permanent loss of use of a body organ, member, function or system; (3) permanent consequential limitation of use of a body organ or member; (4) significant limitation of use of a body function or system; and (5) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person's usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment. Among the myriad of injuries alleged by plaintiff in his bills of particulars, plaintiff alleged dizziness. However, Defendants’ medical expert did not address dizziness in plaintiff’s IME report.
Defendants Black Horse Carriers LLC ("Black Horse"), Penske Logistics Inc. ("Penske"), Ryder Truck Rental Inc. d/b/a Ryder Transportation Services Inc. ("Ryder"), and Henry R. Nunez ("Nunez") moved for summary judgment to dismiss plaintiff’s complaint on the ground that Plaintiff did not sustain a serious injury as defined in Insurance Law § 5102(d).
Upon review of the movants’ papers, the Cout found that defendants’ expert’s failure to address the plaintiff’s alleged dizziness “denude[d] moving Defendants of a prima facie showing of lack of serious injury” (see, Rosales v Rivera, 176 AD3d 753, 110 N.Y.S.3d 47 [2d Dept 2019]; Adams v Dura Cab Corp., 152 AD3d 634, 58 N.Y.S.3d 555 [2d Dept 2017]; Safer v Silbersweig, 70 AD3d 921, 895 N.Y.S.2d 486 [2d Dept 2010]).
Additionally, defendants’ expert Identified significantly reduced ranges of motion at plaintiff’s IME, more than 3.5 years after the accident as follows: (1) cervical flexion, 40/50 degrees (20% limitation); (2) lumbar flexion, 45/60 degrees (25% limitation); (3) lumbar extension, 10/25 degrees (60% limitation); (4) lumbar right lateral bending, 15/25 degrees (40% limitation); and (5) lumbar left lateral bending, 20/25 degrees (20% limitation). The foregoing “significant limitations” defendants’ expert identified also deprived defendants of a prima facie showing of lack of serious injury (see, Curiale v Delfavero, 211 AD3d 905, 181 N.Y.S.3d 278 [2d Dept 2022]; Tchevskaia v Chase, 15 AD3d 389 [2d Dept 2005]; McDowall v Abreu, 11 AD3d 590, 782 N.Y.S.2d 866 [2d Dept 2004]; Meyer v Gallardo, 260 AD2d 556, 688 N.Y.S.2d 624 [2d Dept 1999]).
Based on the foregoing, the Court found that defendants failed to make a prima facie showing that plaintiff did not sustain a serious injury in connection with the subject motor vehicle accident. As such, the Court did not address plaintiff’s opposition papers. The Court denied defendants’ summary judgment motion on the basis that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d).
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.
Canadian courts are quiet this week.
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