Volume XXVII, No. 4 (No. 703)
Friday, August 1, 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.
Greetings from Park City, Utah and the Federation of Defense & Corporate Counsel’s Annual Meeting. This my 71st straight membership meeting (two a year) and just broke the consecutive meeting record held by my good friend and longtime CP subscriber, John Woodard. The air is thin out here, my altimeter reflecting that I am 8138 feet above sea level.
I’ll let the issue speak for itself today, the courts quiet in the middle of the summer.
We still have few interesting ones, described below, in the attached issue.
Just respond here and let me know: [email protected]
I have become obsessed with the growing number (230+) decisions involving lawyers who have submitted hallucinated cases or quotes, those created out of thin cloth by artificial intelligence. And, there are couple of judicial decisions where the judges did the same thing. For those who need to keep up to date on artificial intelligence or 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 (now there’s a shock) 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.
Scopes “Monkey” Trial – 100 Years Ago:
The Watchman and Southron
Sumter, South Carolina
1 Aug 1925
Whether John T. Scopes, lately biology teacher in the high school of Dayton, Tenn., is found guilty of “teaching that man has descended from a lower order of life,” and is punished therefor, may not be of great importance in itself. Mr. Scopes is formally accused of breaking a law of his state. Intelligent Americans generally regard that as a very bad law; yet laws are made to be obeyed, and those who break them should be punished according to the penalties provided, as long as the laws remain on the statute books.
The case of Miss Lela V. Scopes, sister of the defendant, is different. As her case is related by an Associated Press dispatch from Paducah, KY, it is likely to make well informed Americans wonder whether this is modern America or Spain of the inquisition.
Miss Scopes is a mathematics teacher in the Paducah high school. The authorities admit that her work as a teacher has been quite satisfactory. She was discharged, as Zed A. Bennett, a member of the board of education, explains, because "it was the sense of the board that Miss Scopes' services would not be desired unless she renounced the theory of evolution," and while the teacher made no parade of a belief in that theory, she would not admit that she did not believe in it. Her work, of course, has nothing to do with evolution.
And now how far is this thing to go? Is the Scientific Inquisition to be applied universally in this country? Are teachers, preachers, doctors, lawyers, and public officials to be fired because they “will not renounce” a scientific theory, just as men and women were persecuted in supposedly less enlightened days for not renouncing religious theories?
Peiper on Property (and Potpourri):
Just in time for the start of the semester, PoP&P reviews a policy form I bet you didn’t know existed. Yes, if you want to hedge your bets against your son or daughter successfully making it all the way through finals you can buy dropout insurance. Be warned, though, if sonny-boy earns any portion of credit, coverage will not attach.
So, stash a copy of CP in your pocket, and pull it out right after you finish the pumpkin pie at Thanksgiving Dinner. If he’s trending to 0.0, feel free to invoke the coverage.
Speaking of 0.0. It has become a cliché, but my freshman year roommate (some time ago in the distant past) pulled just about that very result. He showed up for our first day with nothing but a few clothes and 50+ of Grateful Dead shows. Was a great first few months of college, indeed, but alas he never made it back for semester 2. We hardly knew ye, my friend.
That’s it for this week. See you again it two more.
Steve
Steven E. Peiper
[email protected]
PS to Scopes Trial – 100 Years Ago:
St. Louis Post-Dispatch
St. Louis, Missouri
1 Aug 1925
A SCHOLARSHIP FOR SCOPES
Somewhere in their pagan bosoms the scientists who were to have been called as expert witnesses at the Scopes trial found the grace to devise a reward for young John T. Scopes, whose voluntary sacrifice in submitting to indictment to test the Tennessee antievolution law may have done much to defend the free pursuit of science against fanaticism and ignorance. Scopes is without a teaching position with which to earn money to pursue graduate studies in science, and though he has been offered large sums for stage and lecture appearances, he has had the character and good taste to refuse to exploit the part recently played by him in the famous trial.
The suppressed Dayton witnesses, therefore, with the aid of the Science Service, whose membership includes some of the most distinguished scientists of America, are sponsoring a scholarship fund of $5000 which it is hoped to raise to permit Scopes to realize his ambition of continuing his studies in science. It is a generous impulse and deserves success.
Scopes has served as little more than a figurehead in the case and has received what others might regard as priceless publicity. But the public soon forgets, and since the youth has the principle not to capitalize his momentary fame he might find it an uphill fight to continue teaching with school boards in their present state of agitation. Let the youngster who has afforded the occasion to put a benighted law to the test have a chance to prove what he can do in his chosen field.
Lee’s Connecticut Chronicles:
See you in two weeks.
Lee
Lee S. Siegel
[email protected]
Very Kind of Her – 100 Years Ago:
The Buffalo News
Buffalo, New York
1 Aug 1925
HUSBAND FREE AS WIFE
PAYS DEBT TO WOMAN
NEW YORK, July 31. – Henry A. Taylor is out of jail for the first time in five months today because his wife has paid a $20,125 debt to another woman.
By court order, Taylor was to be imprisoned until he repaid that sum to Mrs. Genevive H. Elder, who several years ago gave him the money for deposit as a trust found. Taylor has failed to deposit the funds as agreed.
Though his wife, Margaret is reputed worth more than $1,000,000 she has refused to produce the necessary funds for her husband’s release because another woman was involved in the case.
Ruffner’s Road Review:
Dear readers,
Only one auto/ no-fault case this week, involving a medical provider’s motion to confirm an unpaid award for no-fault benefits which had been denied by the insurer. The District court granted the motion but denied additional attorney’s fees. The appellate court remanded, holding the provider was entitled to an award of attorney's fees fixed by the court for the District Court proceeding as well as for fees incurred on the appeal.
Until next time,
Kyle
Kyle A. Ruffner
[email protected]
I Didn’t Know that He was a Klansman – 100 Years Ago:
The Post-Star
Glens Falls, New York
1 Aug 1925
Klan Burns Crosses
For Bryan; Calls Him
Greatest Klansman
COLUMBUS, Ohio, July 31 (AP) – Klansmen in three Ohio cities held memorial services for William Jennings Bryan closing each with the burning of memorial crosses.
At Dayton the cross carried the inscription: “In memory of the Greatest Klansman of Our Time; He Stood at Armageddon and Battled for the Lord.”
At the Toledo services the cross has written on it: “In Memory of the Greatest Klansman.”
The Columbus meeting heard memorial addresses after which a memorial cross for Mr. Byran was lighted.
Ryan’s Federal Reporter:
Hello Loyal Coverage Pointers Subscribers,
Nothing from me this edition. We’ll see you in two weeks!
Until next time,
Ryan
Ryan P. Maxwell
[email protected]
Tsk Tsk – 100 Years Ago:
The Buffalo News
Buffalo, New York
1 Aug 1925
HAS GIRL DETAINED WHEN
AUTO IS NOT RETURNED
Didn’t Mean for Them to Take
Long Trip
When Elmer L. Sisson, 224 Allen street, loaned his car Wednesday to Gladys Wilson and Edna Miller, of Blasdell, he didn’t think they were going to take a long trip in it, The car wasn’t returned with the time limit specified and Sisson notified the police it had been stolen. Police in Erie, Pa., arrested the two girls on Friday when they arrived in that city. Sisson was notified of the arrest.
When Sisson arrived in Erie, Saturday, he told the chief of police he would not appear against the young women and would be content with getting his car back. He explained to the chief he had probably misunderstood the request of the girls.
The girls continued their trip through western Pennsylvania by rail instead of road.
Storm’s SIU:
I have been off this week but was still able to get these two case digests in for you:
-
Insured’s Fraudulent Misrepresentation Claim Barred by the “Gist of the Action Doctrine;” and Statutory Bad Faith Claim Dismissed.
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Insurer Granted Summary Judgment as it Provided Expert Testimony Attributing the Property Damage to Poor Maintenance and Drainage Issues, Whereas the Insured Offered No Expert testimony of Alleged Storm Damage.
Have a great two weeks. Summer is whipping by!
Scott
Scott D. Storm
[email protected]
Hope they got the lead out – 100 Years Ago:
The Buffalo News
Buffalo, New York
1 Aug 1925
CHILD SERIOUSLY HURT
WHEN HEAD IS PUNCTURED
AKRON, Aug. 1. – Marion Neal, little niece of Dr. and Mrs. F.A. Helwig was seriously injured Friday evening when she fell from a chair and drove a pencil into the side of her head. The child was taken to a Buffalo hospital, where the pencil was removed. Her condition is still considered dangerous by surgeons.
The pencil entered the child’s head back of the right ear and was driven downward course. Had it been driven in any other direction it would have caused instantaneous death.
Editor’s Note: Marion survived the pencil incident, ended up marrying and living to age 53. She is buried in the Evergreen Law Cemetery in Akron New York, along with her husband, Daniel Tinney, who outlived her by a year. They had two sons, Daniel and Thomas. age 48, a daughter, Kathryn. I cannot image any of them knew of the pencil incident.
Fleming’s Finest:
Hi Coverage Pointers Subscribers:
We are back with part two. In a ruling earlier this month, the Massachusetts Supreme Judicial Court found the state’s insolvency fund was entitled to payments under the worker’s compensation trust fund for cost-of-living adjustment payments.
We’ve been out and about this Summer, spending time with my niece, going to events, and trying new recipes. My niece helped me with my summer reading list, but the books were made of board with very large pictures. Next on my list is making my first “hot dish.”
See you in a fortnight,
Kate
Katherine A. Fleming
[email protected]
This, They worry about – 100 Years Ago:
Daily News
New York, New York
1 Aug 1925
WHY THEY WEAR’ EM
New York City: Will someone please tell me what removing a hat in church, the place of God, has to do with removing a hat in the movies? Not wishing to bring up the topic of religion as an argument, but just as an instance. Catholic women should not and do not remove their hates in church, for doing so would be very disrespectful to their maker. Did you ever see a woman greet a friend of the opposite sex by tipping her hat? Women remove their hats in a theatre because it is much more comfortable for the people in back of them. DISGUSTED.
Gestwick’s Garden State Gazette:
Dear Readers:
Life has been hectic, what with wedding planning, various summer festivities, and oh yeah… work! Apparently, the same rings true for the esteemed Judges of the New Jersey courts, who have not issued any insurance law decisions in the last two weeks. Ah, well… we’ll try again in another two.
On a personal note, Happy Gilmore 2 was released this past week, and so far, I appear to be the only person who enjoyed it (at least the first half). Admittedly, I thought the part about Maxi golf was a little cliché, but I thoroughly enjoyed all the cameos and of course, the humor. It is available on Netflix, and I welcome your thoughts.
Stay cool out there!
Evan
Evan D. Gestwick
[email protected]
Time for a New Deck of Cards – 100 Years Ago:
Buffalo Courier Express
Buffalo, New York
1 Aug 1925
Nine Ace’s In Poker Game,
Five Too Many, He Thinks
Player gets even by hijacking liquor driven by
Players, and beating them up.
Chicago, ll., July 31 – Mr. Babinski is what one might call a conservative poker player, but he would take a long chance, say for instance when he found four aces in his hand. True enough the gentleman to whom he had just been introduced had eight cards against the five dealt Mr. Babinski, but presumably it was a mistake due to the carelessness of the dealer and in a gentlemen’s game one does not haggle over trifles.
Anyway, Mr. Babinski decided to take a chance. His fifth card was the king of hearts and did not match anything, so he discarded it and drew one card. Came an eight spot, but the four aces looked good, so the betting proceeded until Mr. Babinski had $1,500 on the table. Then he called, laid down his four aces and started to sweep in the pot.
But his new found friend admonished him to use discretion and exhibited five aces. “Hard luck” his friends said, “but we have on a big booze deal, and we are going to let you in on it if you can raise $2,000.”
Mr. Babinski agreed and gave his check for that amount, saying he would redeem it in cash when the stuff was delivered at an address in Milwaukee Avenue. He also specified that the poker players must deliver it in person.
Everything went along as per schedule until last night when the liquor caravan was nearing the Milwaukee address. Then, out of the darkness appeared a gang of hijackers, who beat the escorts of the truck load of booze into unconsciousness. Then a fake policeman with a tin star seized the liquor.
When the man who held the five aces came to, Mr. Babinski smashed him in the face with a rotten tomato. “Hoocher” he hissed as two regular policemen hoisted the booze runners into a patrol wagon. “And now gentlemen, try to cash that check I gave you. Hereafter when I play with you, I hold five aces or there is no game.
O’Shea Rides the Circuits:
Hey Readers,
A little known fact is that Dean Cain, yes Superman Dean Cain, briefly attended a training camp with the Buffalo Bills before a knee injury ended his career. While the Bills could have had Superman, it appears they’ll have to settle for Josh Allen.
Looking forward to this weekend, I hope to get in a full round of golf for the first time in ages. I am not the best golfer by any means but nonetheless I intend to celebrate the release of Happy Gilmour 2 with a quick round.
No cases to write about this week. See you in two.
Until Next Time,
Ryan
Ryan P. O’Shea
[email protected]
Watch you lip(stick) – 100 Years Ago:
Ledger-Star
Norfolk, Virginia
1 Aug 1925
Father Fusses
Dear Miss Fairfax:
I’m a girl in my “teens,” with brown, curly hair, bobbed, of course. I wear my dresses short, but not extreme, and sometimes roll my own.
What I want to ask you is: Can’t a girl be decent if she uses a little rouge and lipstick? My parents object- my mother not so much. But, oh, my father! Just today when father came in from work he fussed and made me take off my rouge and lipstick. Please, Miss Fairfax, tell me is there any harm. I’m very pale and that’s my only reason.
I’ve another question to ask you. Can’t a girl be modern as well as popular if she doesn’t dance? The crowd I go with range in ages from 16 to 20. We go to parties, dances, beach parties and hayrides, and just have lots of fun.
But I am getting off the subject. And that is about lipstick and rouge. “TOM-BOY”
Personally, I do not object to a little rouge – a very little. I don’t believe your father would either if you didn’t make it conspicuous. I don’t like lipstick because I think it can be instantly detected and detracts from the natural beauty of a young girl’s lips. If you eat proper food, get plenty of sleep and walk every day in the open air you will not need cosmetics of any kind. And you second question about a girl being popular, although not strictly “modern.” Some of the most charming girls I know neither dance nor indulge in what are considered strictly modern recreations. Personality is what makes a girl popular.
LaBarbera’s Lower Court Library:
Dear Readers:
I cannot believe August is already here. Hopefully everyone is able to enjoy the last few weeks of warmer weather before Fall rolls in. I am excited that this means it is almost time to harvest the corn from my garden, which is growing well ahead of schedule. There are already countless ears beginning to pop up.
This week I am reporting on a New York County decision, where the Court determined that water damage resulting from a stopper placed in a bathtub is not excluded pursuant to an exclusion within the subject policy which precludes coverage for “water that backs up or overflows or is otherwise discharged from a sewer, drain, sump, sump pump or related equipment.”
Isabelle
Isabelle H. LaBarbera
[email protected]
Who Dunnit? – 100 Years Ago:
Daily News
New York, New York
1 Aug 1925
FRATRICIDE
Panel of 7 Women and 5 Men Vote
Unanimously for Acquittal
On First Ballot
Bridgeton, N.J., July 31. – Howard Moore, 19, is not his Brother’s murderer. Not in the opinion of the jury which tried him here on the charge that he killed Thomas Moore Jr. in their home near Millville, N.J., last January.
There were seven women on that Jury which voted unanimously for acquittal on the first ballot taken, and tonight the ringleted youth returned to his mother at the Moore farmhouse.
With him in the automobile piloted by his father, Thomas Sr., went Hilda Moore, the slain brother’s widow, the pretty girl of nineteen painted by the prosecution as the central figure of a triangle.
Widow’s Name Cleared
Hilda, according to the jury’s verdict, was publicly cleared of the charge of infidelity advanced by the prosecution as the motive for Thomas’s murder.
The jury did not even discuss the evidence in the case, it was learned, although they remained out for an hour and a half.
Lexi’s Legislative Lowdown:
Dear Readers,
This week I am returning from an annual vacation/reunion with my eight college friends. This year we landed in Savannah, GA. It is always such a blast to spend time with everyone. Though, next summer I am hoping for somewhere a little cooler.
Yesterday, on my journey home, I had to change my flight three times due to flight delays, so this week’s discussion is particularly relevant- a bill to enact the Travel Insurance Act.
Thanks for reading,
Lexi
Lexi R. Horton
[email protected]
It’s Not the Pits – 100 Years Ago:
The Buffalo News
Buffalo, New York
1 Aug 1925
LIBELED CHERRIES NOT
GUILTY, JURY REPORTS
A verdict in the case of the United States vs. 668 cases of canned cherries was returned by the federal jury Friday morning. The verdict declares that the cherries were fit for sale. It had been contended they were wormy. The cans libeled by the federal men in 1924 are No. 10 cans, used mostly by restaurants and bakeries as fillers for cherry pies.
The disposition of this case closed the special term under Judge Know here. Judge Hazel returned from Jamestown Friday, where he has been presiding in a special term. Federal court will reopen in September in Canandaigua.
Victoria’s Vision on Bad Faith
Dear Readers,
With August starting, the summer is quickly approaching its end. Normally, I’d dread the start of fall and winter, but I cannot do another 85+ degree day. This weekend, I'm looking forward to cooler weather in Canandaigua, New York, spent with two friends.
This week, I have a case from the Southern District of Florida alleging bad faith in settling a claim under an insured’s yacht insurance policy. The policy was issued in Rochester, New York with the declaratory judgment action commenced in the WDNY. The case was later transferred to the Southern District of Florida.
Have a good weekend,
Victoria S. Heist
[email protected]
Who can Argue? – 100 Years Ago:
The Daily Item
Port Chester, New York
1 Aug 1925
DON’T DRIVE YOU CAR
WITHOUT LIABILITY INSURANCE
On account of the large verdicts for personal injuries by automobile this coverage is now the most important for the car owner. Our companies are the best.
Marshall & Remsen
109 Adee Street Telephone 310
Shim’s Serious Injury Segment
Hi Readers,
Over the last two weeks, we said goodbye to some of our favorite celebrities, including Ozzy Osbourne, Hulk Hogan and Malcolm Jamal Warner. Ozzy Osbourne, “The Godfather of Heavy Metal,” was among the most recognizable and influential figures in heavy metal since the late 1960s, as well as a personal favorite of mine. I had the pleasure of seeing Black Sabbath perform live at Jones Beach Theater in 2018. It stands only next to David Gilmour’s performance at Madison Square Garden in 2024 during his Luck and Strange tour, as the greatest live musical performance I have ever seen. Ozzy performed for a final time with the original members of Black Sabbath and his solo band, in Birmingham, England, on July 5, 2025, and raised almost $2,000,000 – all of which was donated to charities including Cure Parkinson’s, Birmingham Children’s Hospital and Acorn Children’s Hospice. There was no better way to express gratitude and farewell to millions of fans world-wide. Although we will miss Ozzy, few have impacted generations of music and fans (still counting) in the way he did.
In this column I have shared a case decided in New York County Supreme Court. The Court granted defendant’s summary judgment motion, filed, based on plaintiff’s alleged failure to prove a serious injury in accordance with the threshold requirements of Insurance Law § 5102(d). The Court held that the mere existence of a tear is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration.
See you next time!
Stephen
Stephen M. Shimshi
[email protected]
I’d Like a $5.00 Policy – 100 Years Ago:
The Tablet
Brooklyn, New York
1 Aug 1925
$10,000 Verdict
How would you like to have it rendered against you on account of an accident on your property?
Insurance policies are written for as low as $5.000 a year. Without obligation, I get particulars.
Immediate Service
MEMBER
K. of C. and C. B. L.
INSURANCE
Albert S. Schwarz
With Bulkley & Horton Co.
57 Lafayette Avenue
Phone Nevins 5400
North of the Border:
Dear Coverage Pointers Subscribers:
I had the opportunity over this past weekend to be in Park City, Utah, for the opening of the Federation of Defence and Corporate Counsel annual summer meeting. It was terrific to see so many of my friends and colleagues and briefly catch up on their lives and their family news. Unfortunately, trial preparation forced my early return.
This week’s column discusses some unique facts regarding the application of the intentional and criminal acts exclusion in the personal liability coverage of a homeowners’ policy.
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]
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Conflicting Submission by Petitioner on Whether He Was Operating a Motorized Bike or a Motorcycle Raises Question of Fact as to MVAIC Availability
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Despite Three Years Late Notice, a Failure to Establish Prejudice Trumps Late Notice Defense.Under Pecker Iron Works, Coverage Under Additional Insured Policy Is Primary
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
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Does Lack of “Directly or Indirectly” Qualifying Language Create a Causation Requirement on First Party Exclusion
-
Carrier Entitled to Relevant Bank Records to Complete Premium Audit
-
Withdraw of Semester Was Not a Complete Withdraw Where Credit for Classes Completed Before Withdraw Was Awarded
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
-
See you in two weeks
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
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Court Grants Providers Motion to Confirm Arbitration Award and for Additional Attorney’s Fees for District Court Proceeding and Appeal
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
-
On paternity leave
STORM’S SIU
Scott D. Storm
[email protected]
-
Taking some time off this week.More case digests next edition.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
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Massachusetts Insurers Insolvency Fund Eligible to Receive Cost-of-Living Adjustment Payment Reimbursements From the Workers’ Compensation Trust Fund
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
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New Jersey courts were quiet again this week. Hopefully that means something big up ahead. Stay tuned.
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
- No cases to write about this time; see you in two
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
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Court Finds That Stopper in Bathtub Did Not Trigger Exclusion for Water Damage Under Language in Policy
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
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Proposed Legislation That Would Enact the Travel Insurance Act Which Would Authorize the Underwriting of Travel Insurance in New York
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
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Florida Court Finds No Bad Faith in Settling Maritime Insurance Claim
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
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A New York Court Finds That a Plaintiff Failed to Establish a “Serious Injury” Within the Meaning of Insurance Law § 5102(D) on Grounds That the Mere Existence of Tears in Tendons or Ligaments Without Objective Evidence of Physical Limitations Is Insufficient
NORTH of the BORDER
Heather A. Sanderson, K.C.
Sanderson Law
Calgary, Alberta, Canada
[email protected]
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A Finding Under the Canadian Criminal Code That an Insured Is Not Criminally Responsible for the Destruction of Property Does Not Negate the Application of the Intentional and Criminal Act Exclusion in a Homeowners’ Policy
See you soon.
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]
07/23/25 Wesco Insurance Company, Inc. v. Kookmin Best Ins. Co.
Appellate Division, First Department
Despite Three Years Late Notice, a Failure to Establish Prejudice Trumps Late Notice Defense. Under Pecker Iron Works, Coverage Under Additional Insured Policy Is Primary
Wesco gave notice to Kookmin Best Insurance Company (“KBIC”) three years after a lawsuit against its insured was commenced.
Wesco's ability to seek reimbursement from KBIC for the costs of defending any given claim turns on whether Wesco provided notice of that claim to KBIC within a reasonable time under all the circumstances. Although justifiable ignorance of insurance coverage may excuse a delay in giving notice of an occurrence if reasonably diligent efforts were made to ascertain whether coverage existed], lv denied 34 NY3d 910 [2020]), Wesco failed to establish what it did during that three-year period to uncover whether the owner had other insurance.
Nonetheless, despite the late notice, KBIC was not prejudiced because Wesco promptly began investigating and defending the owner and a codefendant commercial tenant (tenant) from the onset of the underlying personal injury litigation and was fully prepared to share its information relating to its investigation and defense. Moreover, KBIC failed to point out "how Wesco's defense of the [underlying] matter materially prejudiced it"
Despite KBIC's policy's language to the contrary, KBIC is required to provide primary coverage to the named insured and any additional insured. The governing lease agreement between Wesco's insured (owner) and KBIC's insured (tenant) is silent as to whether the additional insured coverage the tenant was to furnish to the owner was primary or excess. Under virtually identical circumstances, the Court of Appeals has found such coverage to be primary (see Pecker Iron Works of N.Y. v Travelers Ins. Co., 99 NY2d 391, 393-394 [2003]).
Accordingly, Wesco is entitled to summary judgment declaring that KBIC has a duty to defend and indemnify Wesco in the underlying action on a primary basis, including reimbursement of Wesco's previously incurred defense costs.
Editor’s Note: Attaboy Max.
PEIPER on PROPERTY (and POTPOURRI)
Steven E. Peiper
[email protected]
07/30/25 Eubanks v. New York Prop. Ins. Underwriting Assoc.
Appellate Division, Second Department
Does Lack of “Directly or Indirectly” Qualifying Language Create a Causation Requirement on First Party Exclusion
Plaintiff submitted a claim for a fire loss at a building insured by NY Property. NY Property denied the claim because during the investigation it was revealed that “unauthorized persons were inhabiting the premises” at the time of the fire. Plaintiff sued for breach of contract.
It appears that NY Property relied on a vacancy exclusion which removed coverage where the property was “vacant or unoccupied a period beyond sixty (60) consecutive days.” In finding an ambiguity, the Court noted that the exclusion in question was listed in the supplemental special provisions. The main body of exclusions were found in parts A and B of the policy. At part A, the policy it did not “insure for loss directly or indirectly by any of the following…” Vacancy was not identified as one of the “following” causes of loss that was excluded.
At Part C, where the supplement special provisions were located, the policy did not include the “directly or indirectly” language. Thus, in the Court’s eyes it was unclear whether the mere existence of a vacancy triggered the denial or, without the directly or indirectly language vacancy had to be the cause of the loss. Because it was unclear under the terms of the policy, NY Property had not met its burden on proving the application of the motion and coverage should have been affirmed for plaintiff.
07/25/25 American Empire Surplus Lines Ins. Co. v. Contour Steel, Inc.
Appellate Division, Fourth Department
Carrier Entitled to Relevant Bank Records to Complete Premium Audit
American commenced this action seeking to compel its insured, Contour, to release its bank records as part of a premium audit. Contour refused.
The Court relied squarely on the terms of the policy explicitly provided the right for contract audits. This included requiring defendants to “produce records of information needed for earned premium computation” American also produced an affidavit of an auditor that stated review of bank records was necessary for the completion of an accurate audit.
As such, the Court affirmed the trial court’s ruling that the bank records needed to be produced. In so reaching this conclusion, the Court also noted that there was no need for it to issue declarative relief.
07/23/25 Lynch v. Jefferson Ins. Co.
Appellate Division, Second Department
Withdraw of Semester Was Not a Complete Withdraw Where Credit for Classes Completed Before Withdraw Was Awarded
Plaintiff purchased specialty coverage from Jefferson which protected the cost of tuition should plaintiff’s son withdraw from college studies. In the Fall of 2020, plaintiff’s son was enrolled at the University of Rochester and withdrew midway through the semester. Plaintiff initiated a claim, and Jefferson denied on the basis that coverage was only extended where the insured’s issue “completely withdrew from school.”
Here, plaintiff’s son completed studies through the Thanksgiving break but did not return for the end of the semester. He also earned credit for completing at least one course that semester. Because there was no complete withdrawal, it followed that plaintiff’s claim was disavowed. In reaching its determination, the Court noted that terms and conditions are given their plain and ordinary meaning. Thus, in the Second Department’s eyes, a complete withdraw meant no credit being earned for any portion of the semester.
Peiper’s Point – One might think that the refusal to return to class, and the acknowledgement to the University that he was leaving, would have been enough to satisfy the “completeness” requirement of the policy. Obviously, the Court focused on earned credit being evidence of something other than complete withdrawal for the semester. Tough one for the insured.
LEE’S CONNECTICUT CHRONICLES
Lee S. Siegel
[email protected]
See you in two weeks.
RUFFNER’S ROAD REVIEW
Kyle A. Ruffner
[email protected]
07/17/25 N.Y. Recovery PT, P.C., a/a/o Stewart v. Am. Trans. Ins. Co.
Supreme Court, Second Department
Court Grants Providers Motion to Confirm Arbitration Award and for Additional Attorney’s Fees for District Court Proceeding and Appeal
The medical provider in this matter submitted claims for assigned first-party no-fault benefits which had been denied. The parties proceeded to arbitration where the arbitrator issued an award in favor of the provider, which was upheld by the master arbitrator. The insurer did not timely satisfy the award, so the provider commenced the subject action to confirm the award, specifically for awarded attorney’s fees, pursuant to CPLR 7510. The insurer then paid the provider the amount owed in the master arbitration award.
The District Court granted the provider’s motion to confirm the award but denied the portion seeking attorney’s fees. The court reasoned that the provider was not entitled to additional attorney's fees because "the instant proceeding is a special proceeding that was commenced for the sole purpose of confirming a master arbitration award. It was not commenced to resolve a dispute de novo, nor was it brought to appeal the underlying master arbitration award."
On appeal, the court stated that the attorney's fee in a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter" (citing 11 NYCRR 65-4.10 [j] [4]). A court appeal applies to a proceeding taken pursuant to CPLR article 75 to vacate or confirm a master arbitration award. Further, as the no fault regulations were written to encourage the prompt payment of claims, the court determined that because the insurer failed to timely pay the amounts of the master arbitration award, and the provider commenced a proceeding pursuant to CPLR 7510 to confirm the award to reduce it to a judgment, the provider is entitled to an award of attorney's fees fixed by the court for the District Court proceeding as well as for fees incurred on the appeal.
As such, the branch of the provider’s motion seeking attorney’s fees was granted and the matter was remitted to the District Court to determine the amount of reasonable fees to which the provider was entitled.
RYAN’S FEDERAL REPORTER
Ryan P. Maxwell
[email protected]
On paternity leave.
STORM’S SIU
Scott D. Storm
[email protected]
Taking some time off this week. More case digests next edition.
FLEMING’S FINEST
Katherine A. Fleming
[email protected]
07/01/25 Mass. Insurers Insolvency Fund v. Workers’ Comp. Trust Fund
Massachusetts Supreme Judicial Court
Massachusetts Insurers Insolvency Fund Eligible to Receive Cost-of-Living Adjustment Payment Reimbursements From the Workers’ Compensation Trust Fund
The Massachusetts Insurers Insolvency Fund (MIIF) administers and pays certain “covered claims” filed against an insolvent insurer prior to the insurer's declaration of insolvency or within a limited period after such declaration, subject to other statutory limitations. MIIF raises its revenue via mandatory assessments on Massachusetts insurers.
Under the state’s workers’ compensation act (act), insurers are entitled to quarterly reimbursements for cost-of-living adjustment (COLA) payments made to injured employees receiving workers’ compensation benefits through the insurers’ policies. The act’s COLA payment reimbursement provisions expressly exclude certain entities that do not participate in the Massachusetts Workers’ Compensation Trust Fund (trust fund) from reimbursement eligibility.
MIIF initiated payment of workers’ compensation benefits on behalf of several Massachusetts insurers declared insolvent. The claims handled and paid included COLA payments. In 2016, the trust fund denied MIIF’s reimbursement claim, asserting: (1) MIIF was not an insurer within the meaning of the statute; and (2) the statutory purpose of the reimbursement provisions is no longer applicable when an insurer becomes insolvent because insolvent insurers not remitting assessments are not entitled to reimbursements.
The trust fund is administered by the Department of Industrial Accidents (“DIA”). MIIF initiated administrative proceedings with the DIA. The DIA reviewing board affirmed the administrative judge’s determination that MIIF was neither an insurer nor entitled to COLA-payment reimbursements. MIIF sought review of the board’s decision in the Appeals Court, and the Massachusetts SJC transferred the case on its own motion.
For many of the same reasons set out in Arrowood (see last edition), the SJC concluded that the plain language of the relevant statutes and their funding and reimbursement requirements entitle MIIF to receive COLA-payment reimbursements. MIIF’s enabling statute contains a provision that MIIF shall be deemed the insurer to the extent of its obligation on the covered claims and shall have all the rights, duties, and obligations of the insolvent insurer to such extent. As a result, MIIF stands in the shoes of the insolvent insurer and qualifies as an insurer eligible for reimbursement under the act. The act contains three express exceptions to reimbursement eligibility, and MIIF does not fall within any of the categories. Further, the trust fund is paid for by employers, not insurers, so an insurer is reimbursed for payments made to injured employees as opposed to ongoing or past payments made to the trust fund.
Accordingly, the SJC reversed the decision of the DIA reviewing board.
GESTWICK’S GARDEN STATE GAZETTE
Evan D. Gestwick
[email protected]
New Jersey courts were quiet again this week. Hopefully that means something big up ahead. Stay tuned.
O’SHEA RIDES the CIRCUITS
Ryan P. O’Shea
[email protected]
No cases to write about this time. See you in two.
LABARBERA’S LOWER COURT LIBRARY
Isabelle H. LaBarbera
[email protected]
07/15/25 178 Sullivan St. Condominium v. Seneca Ins. Co., Inc.
New York State Supreme Court, County of New York
Court Finds That Stopper in Bathtub Did Not Trigger Exclusion for Water Damage Under Language in Policy
178 Sullivan Street Condominium and Margaret Halsey Gardiner (the “Insured”) filed a lawsuit against Seneca Insurance Company (“Insurer”), Frank W. Piasecki, and Otto Alexander Bismark Piasecki (the “Piasecki defendants”) to recover damages to the Insured’s condo apartment damaged as a result of water emanating from a bathroom located in a separate apartment owned by the Piasecki defendants.
The water damage occurred when the Piasecki defendants returned home and inserted a rubber stopper into the bathtub drain, turned on the water, and fell asleep. The next day, he discovered overflowing water, removed the stopper and turned off the water. However, the water had already leaked into separate apartments within the building, leading to water damage.
After the Insured submitted a claim to the Insurer, the Insurer denied coverage. The Insurer argued that the exclusion for “water that backs up or overflows or is otherwise discharged from a sewer, drain, sump, sump pump or related equipment,” precluded coverage for the loss in its entirety. The Insurer identified that the water damage resulted from the overflow of water from the bathtub, which constitutes water overflowing from a drain for exclusionary purposes.
In the summary judgment stage, the Insured and the Piasecki defendants argue that the case law on the aforementioned exclusion can be distinguished from the instant facts regarding the loss. Primarily, the Insured and Piasecki defendants argued that when applied to the facts of this case, the exclusion is ambiguous. Both Plaintiff and the Piasecki defendants argue that here, the water did not “backup, overflow or discharge from a drain.” Instead, a stopper was inserted into the drain, effectively rendering the drain inoperable. Here, the Court found that no water backed up, overflowed, or discharged from the bathtub drain, because the stopper was inserted and the water from entering or existing the drain in the first instance.
The Insurer additionally relied upon the definition of water damage within the “specialized causes of loss” definition within the Insurer’s policy, to argue that no water damage had actually occurred. However, the Court found that the definition of water damage was embedded in a subsection of the Causes of Loss – Special Form and applied only on a limited application to certain types of specialized loss, as defined, rather than act as a general definition intended to restrict coverage for all direct physical water damage loss. The Court found that applying this definition broadly would render other policy exclusions redundant and unnecessary, which is against the basic tenant of policy interpretation under New York law.
Accordingly, the Court granted the Insured’s motion for summary judgment and held that the Insurer’s denial of coverage constituted a breach of contract.
The Insured also moved for summary judgment on the negligence cause of action asserted against the Piasecki defendants, for falling asleep with the bathtub running. However, the Court denied the motion, finding that there existed a factual dispute for the jury to resolve in relation to whether the Bismark defendants were undergoing an unforeseen medical emergency at the time of falling asleep.
LEXI’S LEGISLATIVE LOWDOWN
Lexi R. Horton
[email protected]
08/01/25 New York Senate Bill S5304
Proposed Legislation That Would Enact the Travel Insurance Act Which Would Authorize the Underwriting of Travel Insurance in New York
Bill S5304, seeks to amend insurance law to enact the “New York State travel insurance act” regulating the licensing and registration of limited lines travel insurance producers and retailers and the sale and marketing of travel insurance and related products.
The act would put New York State in line with 24 other states that have already adopted a similar framework.
The proposed amendments read in part:
§ 8101. Scope and purposes.
(a) the purpose of this act is to promote the public welfare by creating a comprehensive legal framework within which travel insurance may be sold in this state.
(b) the requirements of this act shall apply to travel insurance that covers any resident of this state, and is sold, solicited, negotiated, or offered in this state, and policies and certificates that are delivered or issued for delivery in this state. It shall not apply to cancellation fee waivers or travel assistance services, except as expressly provided herein.
(c) all other applicable provisions of this chapter shall continue to apply to travel insurance except that the specific provisions of this act shall supersede any general provisions of law that would otherwise be applicable to travel insurance.
***
The Bill will now be sent to the governor for consideration.
VICTORIA’S VISION ON BAD FAITH
Victoria S. Heist
[email protected]
7/16/25 Ocean Reef Charters, LLC v. Travelers Prop. Cas. Co. of Am.
United States District Court, Southern District of Florida
Florida Court Finds No Bad Faith in Settling Maritime Insurance Claim
Richard Gollel, the principal of Ocean Reef Charters, Inc. ("Ocean Reef"), owned a 1998 Hatteras 92-foot motor yacht named My Lady. The yacht was damaged during Hurricane Irma in September 2017, and the damage was subsequently submitted to Travelers under Ocean Reef's quay yacht policy with Travelers (the "Policy"). The Policy contained a Captain Warranty, which requires Ocean Reef to employ a professional captain for the yacht approved by Travelers.
About two weeks after receiving notice, Travelers issued a reservation of rights to Ocean Reef, reserving the right to disclaim coverage if Ocean Reed did not comply with the Captain Warranty. Travelers then commenced a declaratory judgment action in the Western District of New York, which was transferred to the Southern District of Florida for the convenience of the parties and the witnesses. A couple months later, Travelers issued a disclaimer letter to Ocean Reef for violation of the Captain Warranty.
At the time of the damage, Ocean Reef did not employ an approved captain. However, whether the Captain Warranty precluded coverage depended on the applicable law to the loss; federal law or maritime law. The difference in the laws impacted whether Travelers could rely on violation of the Captain Warranty in a disclaimer of coverage. Ocean Reef eventually succeeded in the declaratory judgment action after the Eleventh Circuit found that federal maritime law applied to the loss.
This case arises out of a subsequent action brought by Ocean Reef against Travelers for bad faith. Ocean Reef alleges Travelers acted in bad faith in its failure to settle and in following unfair claim settlement practices. Ocean Reef claimed lost investment opportunities they would have otherwise had if Travelers timely paid the claim. Travelers moved for summary judgment on the bad faith claim.
In granting Travelers' motion, the Court applied a totality of circumstances test to determine whether Travelers acted in bad faith. Under the test, the Court considered factors, referred to as the Laforet factors which consider: (1) efforts taken by the insurer to resolve the coverage dispute promptly; (2) the substance of the coverage dispute; (3) the insurer's diligence and thoroughness in investigating the facts; and (4) efforts made by the insurer to settle the liability claim in the face of the coverage dispute.
In its decision, the Court found the second factor weighed in Travelers favor because it was unclear whether Florida law or federal maritime law applied to the loss. Under the third factor, the Court found Travelers immediately began an investigation of the claim including contacting Mr. Gollel and sending a reservation of rights letter within two weeks after the claim was submitted. Finally, the Court found Travelers complied with the first factor because Travelers allowed Ocean Reef to submit evidence supporting the claim, creating a process to resolve the claim promptly.
The Court also recognized that if there was bad faith, Ocean Reef would need to adequately determine their damages, beyond assertion of lost investment opportunities.
SHIM’S SERIOUS INJURY SEGMENT
Stephen M. Shimshi
[email protected]
07/14/2025 Miller v. N.Y.C. Transit Auth.
New York County Supreme Court
A New York Court Finds That a Plaintiff Failed to Establish a “Serious Injury” Within the Meaning of Insurance Law § 5102(D) on Grounds That the Mere Existence of Tears in Tendons or Ligaments Without Objective Evidence of Physical Limitations Is Insufficient
Plaintiff Jermaine Miller, alleged injuries suffered in connection with a motor vehicle accident that occurred on August 6, 2020, on Lexington Avenue at or near its intersection with East 56th Street, New York, New York. Defendant’s bus struck the passenger’s side of plaintiff’s vehicle, a Dodge Caravan, during a lane change. At the time of the accident, plaintiff was approximately 46-47 years old and alleged the following injuries: cervical radiculopathy and cervical sprain/strain; lumbosacral radiculopathy and lumbar sprain/strain; bilateral shoulder sprain/strain; and headaches. Plaintiff also underwent a right shoulder arthroscopy on October 19, 2022. Defendant filed a summary judgment motion on the issue that plaintiff did not suffer a “serious injury” within the meaning of Insurance Law § 5102(d).
“Permanent Consequential” or “Significant” Limitations
To establish a “serious injury” involving “permanent consequential” or “significant” limitations, plaintiff must prove the following elements: (1) objective medical proof of an injury; (2) medical findings of limitations resulting from that injury, shown by quantitative or qualitative evidence, and (3) a causal connection between the injuries and the accident (Newby v Morales, 220 AD3d 422, 422, 197 N.Y.S.3d 134 [1st Dept 2023]). The Court found that the defendant met its prima facie burden by establishing that plaintiff could not establish at least one of the aforementioned elements. Defendant argued that plaintiff did not suffer a “serious injury” based on the reports of their orthopedist and neurologist IME doctors. Plaintiff’s orthopedic exam – held approximately four months prior to plaintiff’s right shoulder arthroscopy – consisted of examination of the cervical and lumbar spines, right elbow, and bilateral shoulders. Measuring flexion, extension and rotation of plaintiff’s cervical and lumbar spines, no significant range of motion deficits were found. Measuring flexion, pronation supination and extension of plaintiff’s right wrist, no range of motion deficits were found. Measuring flexion, extension, abduction, adduction and rotation of plaintiff’s bilateral shoulders, no range of motion deficits were found. Defendant’s orthopedist concluded that there was no objective evidence of an orthopedic disability. Plaintiff’s neurological examination, held on July 25, 2022, consisted of range of motion testing of plaintiff’s cervical and lumbar spines. No range of motion deficits were found. As such, defendant’s neurologist concluded that there was no evidence that plaintiff had cervical or lumbar radiculopathy.
In opposition, plaintiff submitted affirmed narrative reports from a radiologist and medical records from a chiropractor. According plaintiff’s reports, plaintiff had “anteroinferior labral tear[s]” in his bilateral shoulders. Plaintiff stated that he received three months of physical therapy and chiropractic treatment following the subject accident. However, he stopped treatment because it “was terminated by no-fault” and he “could not afford to pay for treatment out of [his] own pockets.”
Upon review of all evidence submitted by the parties, the Court found that plaintiff failed to raise a triable issue of fact regarding whether plaintiff suffered a "permanent consequential" or "significant" limitations in use of plaintiff's cervical and lumbar spines, bilateral shoulders, and right elbow. Plaintiff failed to submit evidence of recent range of motion deficits or qualitative limitations in the use of the body parts to rebut defendants' prima showing of a lack of limitations in these affected body parts (Kamara v Ajlan, 107 AD3d 575, 576, 968 N.Y.S.2d 45 [1st Dept 2013]). Citing to Resek v Morreale, 74 AD3d 1043, 1045, 903 N.Y.S.2d 120 [2d Dept 2010] and Byrd v Limo, 61 AD3d 801, 802, 878 N.Y.S.2d 95 [2d Dept 2009], the Court held that “[t]he mere existence of a tear in tendons, as well as a tear in a ligament, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the injury and its duration."
90/180-day Category
“[T]o establish prima facie entitlement to summary judgment … defendant must provide medical evidence of the absence of injury precluding 90 days of normal activity during the first 180 days following the accident.” The Court found that the defendant met its prima facie burden by providing pertinent excerpts from plaintiff’s deposition testimony showing that plaintiff did not make allegations of confinement and testified that he went to work. The Court indicated that plaintiff’s “ability to return to work may be said to support a legitimate inference that the plaintiff must have been able to perform at least most of his usual and customary daily activities” (Correa v Saifuddin, 95 AD3d 407, 943 N.Y.S.2d 86 [1st Dept 2012]; Lewis v Revello, 172 AD3d 505, 506, 101 N.Y.S.3d 25 [1st Dept 2019]). Plaintiff failed to raise a triable issue of fact as to whether he suffered a serious injury under the 90/180-day category. As such, the Court granted the defendant’s motion for summary judgment dismissing plaintiff's claims of serious injury under the 90/180-day category.
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.
06/24/25 Aviva Insurance Company of Canada v. Udo Haan
Ontario Superior Court of Justice
A Finding Under the Canadian Criminal Code That an Insured Is Not Criminally Responsible for the Destruction of Property Does Not Negate the Application of the Intentional and Criminal Act Exclusion in a Homeowners’ Policy
Sprucedale Crescent, nestled in the Forest Heights neighbourhood of Kitchener, Ontario, is typically a serene street marked by mature trees and carefully tended homes. Yet, where 56 Sprucedale Crescent once stood, there is now a vacant lot flanked by two new houses—a stark reminder of a tragedy.
In 2018, Udo Haan, a Senior Project Manager with Sun Life Financial and a resident of Kitchener for a quarter-century, was facing the unraveling of his 40-year marriage to Edresilda (Edra) Haan. That summer, as the couple prepared to go their separate ways, tensions in their residence at 56 Sprucedale Crescent escalated.
In the early morning of August 22, 2018, Udo strangled Edra in her sleep with a rope he had fashioned himself. He then went to the basement, opened the natural gas line to the furnace, and returned upstairs to soak Edra’s body in gasoline—setting it alight. Hours later, the accumulated natural gas ignited, destroying the Haan residence, significantly damaging the neighbouring houses (which would be torn down and rebuilt), and impacting over a dozen properties nearby.
Udo intended to die in the explosion. Instead, he was found badly injured in the backyard alongside Edra’s remains. Airlifted to hospital, he was subsequently charged with murder, arson, and property destruction under Canadian law. After a forensic investigation and lengthy legal process, the case came before Justice Sweeny in early February 2023. The court, relying on psychiatric testimony, found Haan not criminally responsible (NCR) on all charges, accepting that paranoid delusions had left him incapable of discerning the moral wrongness of his actions.
Leading up to the crime, Haan had become convinced he was under constant surveillance and suspected Edra of infidelity. He installed security cameras throughout the house and car, regularly reported being followed to the police and private investigators, and had been involuntarily hospitalized for delusions in the weeks before the incident. Though discharged with medication, he did not follow the prescribed treatment.
The court accepted that Haan could comprehend the nature and consequences of his actions, but, because of his psychosis, was unable to rationally judge whether his actions were right or wrong—a crucial distinction for an NCR verdict. Nonetheless, legal difficulties for Haan did not end there. He also faced civil litigation from his neighbours, who sued for the destruction of their own homes, alleging negligence and nuisance.
Insurance Response to the Civil Claims
Aviva Insurance Company of Canada insured the Haan residence with Haan as the named insured. Aviva advised Haan by letter that it had appointed defence counsel to defend the legal actions against him on a without prejudice basis, pending the outcome of his criminal trial. Haan was made aware that there would be no coverage available to him in the event that it was ultimately determined that he had committed an intentional or criminal act, and that Aviva might, at some point, seek approval of the Ontario Superior Court of Justice with respect to its coverage position.
This application was brought by Aviva for a declaration that was no coverage under the Aviva policy as Haan had intended to explode his home which damaged the neighbouring properties. The acts that led to the explosion were both intentional and criminal and such acts are excluded under the policy.
Haan defended stating in part that arson can be committed intentionally or recklessly; that he was recklessly indifferent to the risk of damaging neighbouring properties and therefore Aviva had an obligation to defend.
The Issue Before the Court
The issue for the court was whether a finding that Haan was not criminally responsible for his actions negate the application of the intentional and criminal act exclusions?
The court in this duty to defend application stated “A criminal conviction is not required for an act to constitute a criminal offence. The two are not synonymous. A finding of NCR means that the accused individual will be exempt from a criminal conviction, but the elements of the offence establishing a criminal act must first be made out. This negates …[Haan’s]… argument about intentionality.” Udo Haan admitted to the elements of the offence of Arson - Damage to Property. This represents an admission that he (1) committed the acts that caused damage to the neighbouring properties, and (2) that he had the necessary intent to do so.
The fact that the intended explosion had greater consequences and damaged the neighbouring properties is not relevant to whether Aviva must defend. The Court concluded stating “In the case of intentional acts, liability for any resulting damage is not limited by the doctrine of foreseeability. The intentional actor is liable for all damage resulting from the intentional act, regardless of whether it was reasonably foreseeable.”
However, in this case, the two civil lawsuits do not allege intentional act. The pleadings control the duty to defend. The court held that the fact that the pleadings against Haan did not allege intentional act on the part of Haan is not a bar to Aviva’s requested relief. The Court cited another Ontario case with almost identical facts and noted that the civil pleading in that case did not allege negligence either. In holding that the pleading can be construed to permit Aviva the relief it requested, the Court relied upon the following statement from the Supreme Court of Canada:
When considering an exclusion clause in an insurance policy, the court is not bound by the labels used in the Statement of Claim. The court should determine which of the plaintiff's legal obligations are properly pleaded. When faced with allegations of both intentional and non-intentional tort, a court construing an insurer's duty to defend must decide whether the harm allegedly inflicted by the negligent conduct is derivative of the harm caused by the intentional conduct. The plaintiff cannot change an intentional tort into a negligent one simply by choice of words. The court must examine the substance of the allegations contained in the pleadings to determine the true nature of the claims. If the alleged negligence is based on the same harm as the intentional tort, the insured will not be permitted to avoid the exclusion clause for intentionally caused injuries. Non-Marine Underwriters, Lloyd's of London v. Scalera,2000 SCC 24, [2000] 1 S.C.R. 551 at paras. 50 and 85
In conclusion, the Court held that the finding of NCR, and the admissions made by Haan during the NCR hearing, confirm that his actions in causing the explosion were both intentional and criminal, and that the policy exclusion therefore applies to preclude coverage.
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