Coverage Pointers - Volume XXVII No. 9

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. The cover notes are below; the issue is attached.

We start this week’s issue off with an important announcement.  Or, at least, what we believe to be an important announcement. 

As many of you already know, Hurwitz Fine has always sought to be a partner with our industry clients. And, we also embrace opportunities to offer insurance education to our colleagues at the bar.  We are often asked to provide training on a litany of topics and do so with a sense of gratitude and cooperation with clients and foes alike.  Over the years, we have built quite a repository of topics and presentations.  Yet, we are left wondering if we are reaching as many people as we could.   It is with this in mind that we announce the formation of:   

COVERAGE POINTERS UNIVERSITY

Over the coming year, the Insurance Coverage Department at Hurwitz Fine will be bringing you a series of twelve webinars spanning the industry from topics focused on casualty, first party and SIU/fraud.  Our goal is to bring you first-class training in quick, convenient monthly webinars. 

We’re starting our series next month, Thursday, November 20^th, with Property Insurance 101 – A Primer on Insurable Interest, Mortgagee Rights and Other Common Policy Issues. 

So, please, mark your calendars now, and keep watching this space for further information and a sign-up form. 

And, for those of you who just can’t wait, you may also drop us a note at [email protected] to inquire about further details. 

We’re excited to start this process, and look forward to seeing you at some, or all, of our upcoming programs. 

 

It’s a Nice Time to be Recognized by Our Peers

26 Hurwitz Fine Attorneys Named to the 2025 Upstate New York Super Lawyers and Rising Stars Lists

Hurwitz Fine P.C. is proud to announce that 26 of our attorneys have been named to the 2025 Upstate New York Super Lawyers and Rising Stars lists, a recognition reserved for outstanding lawyers who have attained a high degree of peer recognition and professional achievement.

This year’s honors at Hurwitz Fine include:

• Nine attorneys named to the Top 50 Upstate New York Super Lawyers
• Two attorneys recognized among the Top 10 Upstate New York Super Lawyers
• Four attorneys included in the Top 25 Women Upstate New York Super Lawyers

The 2025 Upstate New York Super Lawyers list is an exclusive list, recognizing no more than 5% of attorneys in Upstate New York. The following Hurwitz Fine lawyers were selected on these lists:

• David R. Adams – Construction Litigation; Top 50
• Eric D. Andrew – Personal Injury General: Defense
• Jody E. Briandi – Personal Injury General: Defense; Top 10; Top 25 Women
• Todd C. Bushway – Personal Injury General: Defense
• Evan Y. Bussiere – Real Estate
• Patrick B. Curran – Personal Injury Medical Malpractice: Defense
• Ann E. Evanko – Alternative Dispute Resolution; Top 50; Top 25 Women
• Lawrence C. Franco – Business/Corporate
• Dan D. Kohane – Insurance Coverage; Top 50
• Elizabeth M. Midgley – Personal Injury Medical Malpractice: Defense; Top 50; Top 25 Women
• Mark S. Nemeth – Civil Litigation: Defense
• Steven E. Peiper – Insurance Coverage; Top 50
• Michael F. Perley – Personal Injury General: Defense; Top 10
• V. Christopher Potenza – Personal Injury Products: Defense; Top 50
• Lawrence M. Ross – Health Care
• Andrea Schillaci – Business Litigation; Top 50; Top 25 Women
• Stephen M. Sorrels – Personal Injury Medical Malpractice: Defense
• Scott D. Storm – Insurance Coverage
• Amber E. Storr – Business Litigation
• Agnieszka A. Wilewicz – Insurance Coverage
• Kevin J. Zanner – Business/Corporate
   

The following Hurwitz Fine lawyers were included on this year’s Upstate New York Rising Stars list:

• Michelle M. Kulak (Albany) – Personal Injury General: Defense
• Alexis M. Florczak – Business/Corporate
• Ryan P. Maxwell – Insurance Coverage
• Anastasia M. McCarthy – General Litigation
• Maxwell C. Radley – Business/Corporate
   

The Rising Stars list recognizes no more than 2.5% of attorneys in each state. To be eligible for inclusion in Rising Stars, a candidate must be either 40 years old or younger, or in practice for 10 years or less.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country, as well as the Upstate New York Super Lawyers Digital Magazine.

 

FDCC’s Insurance Industry Institute

November 5-7 -- NYC

The Federation of Defense & Corporate Counsel (FDCC) is excited to provide you with an unparalleled opportunity to engage with today’s insurance industry leaders and subject matter experts at the Insurance Industry Institute on November 5-7, 2025, in New York City. The FDCC’s Insurance Industry Institute (“I-3”) is packed with a forward-looking agenda of substantive information on developments and trends in the domestic and international insurance industry. We have assembled a stellar array of senior insurance industry leaders, regulators and thought leaders to offer their expertise and insight on issues tailored to senior level insurance company representatives, their outside counsel, and officers and directors.

This program is designed to address the challenges and solutions presented by changes in the industry, as well as the impact of these changes on underwriting and claims in the coming decade. In addition to the substantive content comprising the day and a half session, the I-3 will provide participants with the opportunity to network with top insurance industry leaders and others attending the conference from across the country. All FDCC members are welcome to attend and encouraged to bring a client or colleague. We are looking forward to seeing you, to share knowledge, experience and opportunities as we work together to meet the opportunities and challenges for the insurance industry.

 

What Will Be Covered?

Click here for the Brochure and Registration Information

The Insurance Industry Institute brings together subject matter experts from domestic and international insurance entities, companies, syndicates and law firms to provide relevant and informative content that you will be able to use immediately upon returning to the office. Some of the highlights include: • regulatory perspective and insights regarding increasingly frequent catastrophic losses and coverage challenges responding to the same; • preparing corporate witnesses and successfully defending these critical depositions with litigation skills and strategies you should put to immediate use; • evolving coverage and litigation challenges and cutting-edge responses, including artificial intelligence, cyber, public nuisance coverage issues, bad faith, litigation funding, and more; and • practical and substantive tools and resources, together with access to industry leaders, to continue building your knowledge base and network.

HF will be well represented at the podium:

 

Responding to Catastrophic Events

Jon Held
Anthony Diodato
Dan Kohane (Moderator)

This presentation will provide practical advice for how the industry can respond to real time catastrophic events, especially in an era of fast moving information and negative stories often times only including partial truths and lacking complete information.

 

Insuring the Future: Succession Planning and Retention of Institutional Knowledge for the Insurance Industry and Defense Bar 

Hank Watkins
Jody E. Briandi
Halley Cruz
Linda King

As the Baby Boomer generation retires and movement across the industry, including law firms, continues its dizzying pace, our panel discusses how to approach new employees, new hiring trends and how leaders must be prepared to adapt to maintain institutional knowledge and continue providing value

 

LinkedIn

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

 

Need a Mediator or Arbitrator, Give a Call:

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

 

Newsletters:      

We have other firm newsletters to which you can subscribe by simply letting the editor (or me) know, including a new publication, which was created to advise on business and employment law questions:

• Premises Pointers:  This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Please drop a note to Jody Briandi at [email protected] to be added to the mailing list.

 

• Labor Law Pointers:  Hurwitz Fine P.C.’s Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

 

• Products Liability Pointers:  Whether the claim is based on a defective design, flawed manufacturing process, or inadequate instructions/warnings, product liability litigation is constantly evolving.  Products Liability Pointers examines recent New York State and Federal cases as well as high court decisions from other jurisdictions, keeping our readers up to date with the latest developments and trends, and providing useful practice tips and litigation strategies.  This monthly newsletter covers all areas of product liability litigation, including negligence, strict products liability, breach of warranty claims, medical device litigation, toxic and mass torts, regulatory framework and governmental agencies.  Contact V. Christopher Potenza  at [email protected] to subscribe.

 

• Medical & Nursing Home Liability Pointers.  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities. Contact Elizabeth Midgley at [email protected] to subscribe.

 

 

Not Quite What He Wanted– 100 Years Ago:

The Buffalo Times
Buffalo, New York
10 Oct 1925

RECOVERS $600 VERDICT

LOCKPORT, Oct. 10. – A verdict for $600 was returned by the grand jury in Supreme court Friday in favor of Fred W. Weisman sued for $10,000 for damages done to his wagon and team of horses when they were struck by a truck driven by Walker on the Gasport road, October 19, 1920.

 

Peiper on Property (and Potpourri):

On the case law front, we have a couple of interesting decisions for your perusal this week.  We first review a fire case involving Liberty Mutual, which addresses an often-overlooked point.  The definition of “residence premises” requires that “you” reside within the otherwise insured premises.  When there is no actual residence recorded, Coverage A of the policy will not respond to damages sustained to the dwelling.  

The definition of “residence premises” requires more than residency, however.  Indeed, the dwelling must also be constructed as a one, two, three or four family dwelling in order to so qualify.  In the Liberty Mutual case reviewed in our column this week, the insurer learned that the premises were actually constructed as a six-family dwelling.  By recognizing the limitations in the definitions set forth in the policy, Liberty Mutual rightly, and successfully, disclaimed coverage.

Our other case of note this week involves a troubling trend where plaintiffs’ attorneys are seeking discovery of the otherwise protected insurer’s claim file.  While, surely, it is settled law that a carrier’s claim file is subject to discovery in an insurance coverage dispute, the traditional rule has been that the claim file is exempt from disclosure in a companion bodily injury case.   This is because when coverage is not in dispute, everything the insurer does is aimed at providing a defense for its insured.  

Yet, plaintiffs continue to try to blur the line between coverage and tort.  The Second Department just offered the latest decision in this ongoing battle.  The Court was confronted with a motion to compel/strike filed against the defendant property owner.  Plaintiff’s counsel sought production of a property inspection report prepared by the defendant/landowner’s insurance company.  Defendant/landowner, understandably, objected to the disclosure on the basis that it was beyond their control, and the Second Department agreed.  A party cannot be required to produce documentation that it does not possess.  The defendant/landowner’s objection was thus appropriately made.   

And, as we close, a special recognition to Karen Higgins of the Gold Law Firm for the good result. 

That’s it for two weeks.  We’ll look forward to seeing you as the signups for CPU’s first class begin to roll in!

Steve
Steven E. Peiper
[email protected]

 

Kind Robbers Return $20 to Victim– 100 Years Ago:

The Buffalo News
Buffalo, New York
10 Oct 1925
TWO THIEVES IN CAR
KIDNAP THEIR VICTIM

Michael Gould of Lockport Says He Was
Robbed of $2000 by Strangers, Who
Forced Him into Machine

LOCKPORT, Oct. 10. – Micael Gould, who owns a drinkery at 92 Union street and who also is proprietor of the Cherry Blossom Bottling works, was kidnaped Friday afternoon, driven seventeen miles to Indian Hill, north of Niagara Falls, and robbed of $2000, which he had collected during the day.

Gould was kidnaped by two strangers who accosted him in front of the bottling works, calling to him from a touring car they drove to the curb. When he stepped over to the car, he said, a pistol was pressed against his body, and he was ordered to get in the car. After being driven to Indian Hill, where he was searched and relieved of the money, Gould says, he was ejected from the car. One of the men handed him a $20 bill so he would have money to get back home.

 

Lee’s Connecticut Chronicles:

Dear Nutmeggers,

My wife and I took a few days off this week to celebrate our anniversary. Each year we head back to the hotel where we were married. The staff treat us like   visiting friends, helping us to relive our special day. Of course, I have no idea what day of the week it is or how late my CP submission is. So, not to keep our Dear Editor waiting, we’ll sign-off for now.

See you in a couple of weeks.

Lee
Lee S. Siegel
[email protected]

 

Good Idea, But He Lost in November– 100 Years Ago:

Buffalo Post
Buffalo, New York
10 Oct 1925

BECKER FOR
PLAYGROUNDS

Councilmanic Candidate
Would Reduce Accidents to
Children to Minimum

STREETS NOT PLACE

More Public Grounds Should
Be Supplied Youngsters.

The need for more playgrounds to keep the children of Buffalo off the streets and thus reduce the number of accidents, was stressed by Frederick Becker last evening, in a number of addresses. Mr. Becker, who is a candidate for the four-year council term, said that an investigation of the number of accidents on the streets for last month showed that there were 13 among children between the ages of one and four 55 between the ages of four and 15, and 59 over the ages of 15. These are only the number of reported accidents Mt. Becker pointed out.

 

Ruffner’s Road Review:

Dear Readers,

Buffalo Bills had a tough Sunday Night loss to bring an undefeated run to an end, but hopefully we are in line for a bounce back this week. Baseball playoffs are underway as well, and since the Pirates didn’t make it this far (as usual) I’ll root for the Blue Jays for now.

In this week’s case, the court considered a choice of law issue for a medical provider’s no fault claim. Applying the “grouping of contracts” approach, the court determined that the substantive law of Massachusetts should be applied, along with its $8,000 no fault PIP limit, to a Connecticut accident because the involved vehicle was licensed and registered in Massachusetts and the subject policy was underwritten in Massachusetts.

Until next time,

Kyle
Kyle A. Ruffner
[email protected]

 

Four Trials Result in $2.00 Verdict– 100 Years Ago:

Mount Vernon Argus
White Plains, New York
10 oct 1925

BRUSH SISTERS
EACH AWARDED
$1 IN VERDICT

Fourth Trial Ends – Jury
Deliberated Five
Hours

White Plains, Oct. 10 – The fourth trial of the Brush sisters suit is over. The jury in the supreme court which heard the testimony in the action brought by the Misses Phoebe C.K. and Ada Mr. Brush to obtain $500,000 damages from Dr. W. B. Gibson and Walter Lindsay, of Huntington, L.I. returned a verdict last night after deliberating five hours awarding each of the sisters $1.

Were Not In Court

The sisters, who maintained they were illegally committed by the physicians to Kings Park State Hospital on Long Island, as insane, were not in court when the verdict was announced, nor were counsel for both sides, Supreme Court Justice Frank L. Young and the defendants.

Possible motions by either side to have the verdict set aside will be heard next week.

 

Ryan’s Federal Reporter:

Hello Loyal Coverage Pointer’s Subscribers:

Another Central Amherst Little League year is officially in the books. As we look to the next fiscal year, I have to commend my colleagues on the Board of Directors (including our newcomers) for their commitment to our CALL families. Last night’s board meeting had (from my experience) record turnout. We ran out of chairs! Robust conversations were had, laughs levied, and even tears shed. A whole new year of challenges await and the team that has been assembled is invested in our future. It is truly special.

This edition, my column summarizes an interesting Second Circuit decision discussing the bounds of an NDA entered into between an insurer and its insured. To what extent can documents and information be shared with outside vendors? A question worth pondering.

Until next time,

Ryan
Ryan Maxwell
[email protected]

 

They’re Still Working on Those– 100 Years Ago:

Mount Vernon Argus
White Plains, New York
10 Oct. 1925

“SYNTHETIC” OYSTERS?

Bellingham, Wash. – “Oysters made while you wait” may be a sign in restaurants of the future. Prof. Trevor Kinsaid of the University of Washington says that we may solve the problem of artificial propagation of oysters.

 

Storm’s SIU:

Hi Team:

Sorry I missed the last edition.  I was vacationing, including going to L.A. to see the Dodgers play the Phillies and Giants.  Hopefully the Dodgers will knock off the Phillies tonight and advance in the playoffs. 

No SIU cases this edition but I have three interesting cases as an alternative:

• Policy Excluded Coverage for Losses Caused by Storm Surge Under the Policy’s Flood Exclusion and Anti-Concurrent Causation Language
• Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing Dismissed as Duplicative as Based on the Same Facts as a Breach of Contract Claim.
• Collapse of Whiskey Barrel Racks was Covered Under the Additional Coverage for Collapse

Love the fall weather!

Have a great two weeks!

Scott
Scott D. Storm
[email protected]

 

This Verdict Did Not Ring the Bell– 100 Years Ago:

Democrat and Chronicle
Rochester, New York
10 Oct. 1925

POLICE OFFICER
TO ASK APPEAL
IN JURY AWARD

$1,000 Verdict Scorned by
Officer Casey, Suing
For $20,000.

Dissatisfaction was expressed yesterday by Motorcycle Officer John J. Casey, of the Lyell avenue station with a verdict for $1,000 awarded him by a Supreme Court jury in a negligence action he brought against the American Laundry Machinery Company for injuries received in an accident at Wider and Saxton streets on June 25^th. Peck & Whitbeck, attorneys for Casey will move to set the verdict aside and for a new trial on the ground that it is inadequate. Casey sued to recover $20,000.

Harmon B. Clark, of Greece, is named defendant in two actions brought by Sam Spazziale, of No. 39 Ward street, guardian of his daughter, Jennie, 4 years old to recover $8,000 for injuries received by the child when she was run down in Ward street by the defendant on October 2^nd. The father asks for $5,000 for injuries to his daughter and $3,000 for loss of services and medical bills, Gilbert A. Nusbaum represents the plaintiffs.

 

Fleming’s Finest:

Hi Coverage Pointers Subscribers:

Hope you are enjoying the leaves changing and autumnal activities with your friends and family. Last October, we got glass pumpkins in Sandwich while down the Cape for the marathon, so they are finally seasonal again. 

This week’s case from the Maine Supreme Court involved a policy that incorrectly identified another property owned by the insureds as the insured location. As a result, there was no coverage in connection with the underlying premises liability action.

See you in a fortnight,

Kate
Katherine A. Fleming
[email protected]

 

Watch Out for Those Married Men– 100 Years Ago: 

The Buffalo News
Buffalo, New York
10 Oct 1925

GIRL, DECIEVED, JILTS
HER IRISH-JEW LOVER

Healy, Who Changed Name to
Schwartz, Repudiated and
Saved Bigamy Charge

NEW YORK, Oct. 10. – Ida Weinberg, of Brooklyn, did George Patrick Healy a favor yesterday by refusing to marry him.

In order to win her, George Patrick Healy had taken steps to change his name to Schwartz and had embraced the Jewish faith, so something was due him.

It was not for this reason that Miss Weinburg refused to marry him, however. She declared she would marry no man who had deceived her for months, causing her to believe his name was Schwartz ad that he was a Jew.

By her action, however, she probably saved Mr. Healy from arrest on charge of bigamy as Mary Cummings Healy, reading of the sacrifices Mr. Healy was about to make on the marriage altar, declared that he was the same George Patrick Healy to whom she was married six years ago. They separated two years later.

 

Gestwick’s Garden State Gazette:

Dear Readers:

Congratulations are in order for several important people in my life this week. First, congratulations to my beautiful fiancé for earning tenure as a Kindergarten teacher. She works hard each and every day, and it is very well deserved. Also, congratulations to my sister and her fiancé, who are getting married this Saturday. Third, congratulations to my favorite baseball team, the Toronto Blue Jays, for advancing to the ALCS. And last, but certainly not least, congratulations to the 26 Hurwitz Fine attorneys who were named in the New York State Super Lawyers or Rising Stars list. That’s almost half of our Firm!

The case I have for you this week addresses the obvious, which wasn’t so obvious to some—if an auto policy provides that its liability part applies to “any auto,” it doesn’t mean any auto in the whole wide world… it is still a qualified term, despite the presence of the word “any.” Read on to find out exactly what I’m talking about.

Until next time, Go Bills and Blue Jays.  

Evan
Evan D. Gestwick
[email protected]

 

Totally Hallucinated Story – 100 Years Ago: 

My LinkedIn followers know that I have been closely following the hundreds of cases where lawyers have sanctioned for submitting AI-created hallucinated cases to court, support of one legal position or another. As I was putting this issue to bed, I realized I was one 100 years ago story, short, so I asked ChatGPT to create a story with a dateline of a century ago today, involving insurance coverage in a New York newspaper. Here is the product:

THE NEW YORK GAZETTE
OCTOBER 10, 1925

BALCONY COLLAPSE AT THE WINTHROP THEATRE — MATINEE TURNED CHAOS; PLAYERS AND PATRONS LEAP TO SAFETY
By Edwin L. Hart, Staff Correspondent

NEW YORK, Oct. 10 — A scene of wild confusion and narrow escape held sway this afternoon at the Winthrop Theatre on West Forty-seventh Street when a portion of the dress circle gave way during the third act of "The Gilded Promise," sending some twenty persons tumbling to the parquet below and provoking a frantic rush for the exits.

The theatre, which was presenting a matinee engagement of the popular comedy with every seat engaged, rang first with laughter and then with a roar of terror at 3:12 o'clock when the forward section of the dress circle — crowded with society matrons, visiting theatrical folk and a sprinkling of Broadway habitués — sagged with a sudden, stomach-turning lurch.

"I was sitting with Mrs. Pembroke when it sounded like the house had a bad cold," said Miss Lillian Forbes, a chorus girl who leapt from the stage. "The lights went dim, there was a cracking noise and for a terrible moment we thought the whole theatre would fold up like a fan."

No lives were lost. Hospital attendants from St. Bartholomew's and Bellevue placed six persons under observation for fractures and bruises; twenty others were treated for cuts, fainting spells and shock at nearby drugstores and the theatre's medical room. The injured include Mr. Horace V. Durnell, a noted insurance broker, who suffered a broken wrist, and Miss Angela Marlowe, the evening's ingénue, who escaped with a sprained ankle and a bouquet of marred roses.

Manager Rupert Winthrop, who arrived at the scene in his theatre coat within minutes, declared his consternation and cooperation. "There has never been any hint of weakness in this house," he told this reporter. "We shall spare no expense to learn how this mishap occurred and to remedy it."

City building inspectors cordoned the premises and began an immediate examination. Chief Inspector James R. Dalton said, "Preliminary inquiry shows the failure occurred in a timber joist and the decorative plaster supports adjoining it. We will hold the theatre closed pending a full structural investigation."

The audience behaved with commendable restraint after the initial tumult; ushers and policemen directed patrons to the nearest exits with admirable quickness, and many in the audience assisted their fallen neighbours. "I never saw such composure in a panic," said Patrolman Michael Keane of the West Fortieth Precinct. "Folk helped one another like brothers."

Rehearsal of the domestic comedy — a picture of New York high life with a tumbling of mistaken identities — resumed tonight in a different form: not on the Winthrop stage, but in the players' dressing rooms, where the cast conferred with counsel and then, with anxious faces, released statements of sympathy to injured patrons.

The Winthrop, famous for its ornate plasterwork and electric footlights, opened five years ago and has been a regular stop for road companies. Architecturally, the house bears the stamp of the recent decorative vogue, with cantilevered balconies, gilded cornices and elaborate murals — features now, in the minds of many, under a shadow of suspicion.

Mr. Raymond Kessler, president of the Theatre Owners' Association, said he would summon a meeting of proprietors on Monday to discuss inspections and the possibility of voluntary closures until the cause is determined. "The show must go on," he observed gravely, "but public safety cannot be sacrificed for a run of two weeks."

The accident at the Winthrop comes at a moment when the city's building trades are under close scrutiny following recent reports of hurried construction and the proliferation of electric installations. City fathers have been pressed by reform organizations to tighten oversight of public gathering places, and today's occurrence will doubtless sharpen the debate.

Outside, the autumn air smelled of coal smoke and horse manure, and small clusters of theatregoers lingered beneath the marquees, exchanging accounts with the avid curiosity that marks New Yorkers at any stirring event. "It was like something out of the pictures," whispered one elderly man, "only, thank Heaven, not the last reel."

The Winthrop management has promised to publish a full list of the injured and to cooperate with the municipal investigation. Meanwhile, the company's box office has been closed for the evening, and reservations for tomorrow's performance will be honored if the theatre is cleared for occupancy.

 

O’Shea Rides the Circuits:

Hey Readers,

This fall is already flying by even though it just started. I look forward to a weekend full of NHL hockey as the season is finally underway, as well as some light yard work. It may not be the most exciting weekend, but at least my wife and I will be able to enjoy the dogs physically confront a leaf pile. For some unknown reason, they have a grudge with large inanimate objects.

This week I have an interesting read regarding a premium finance company’s use of its power of attorney to cancel auto policies in Louisiana. As some of you know, strict adherence to statutory cancellation procedures, specifically auto policies, is required to effectively cancel a policy. The policyholders’ counsel raises an interesting argument to a question unanswered at the State level and one that the Fifth Circuit denied certification to the Louisiana Supreme Court.

Until Next Time

Ryan
Ryan P. O’Shea
[email protected]

 

Ahh, Prohibition– 100 Years Ago:

Democrat and Chronicle
Rochester, New York
10 Oct. 1925

ARRAIGN FOUR MEN
ON LIQOUR CHARGES

Dominic Piligrino, proprietor of a café at Davis and Scio streets, and his bartender, Moresto Pindo, were arraigned before United States Commissioner Cyrus W. Phillips yesterday afternoon on charges of possessing intoxicating beverages. Both men were held in $1,000 bail for a hearing on October 23^rd.

Samuel Glass, of N. 410 Central avenues, and Charles Schlayer, of No. 1005 Clinton avenue north, were arraigned for possession of beer. Both men waived examination and were held under bail of $1,000 a piece for the next session  of the federal Grand Jury.

 

LaBarbera’s Lower Court Library:

Dear Readers:

Another busy, exciting weekend is coming. Fall themed, of course, starting off strong with a haunted ghost tour and ending in a pumpkin patch. Somewhere in the middle we are renting a house with some friends to enjoy Ellicottville’s Fall Festival.

This week I am reporting on New York County case. I had previously written on this case, in relation to a motion to certify a class in Volume XXCI No. 20 (Friday, March 14, 2025). This time around, the Plaintiff filed a motion to issue a judicial subpoena duce tecum on the New York Department of Financial Services, compelling production of complaints against Allstate Vehicle & Property Insurance Company, for claims relating to smoke intrusion over the past ten years.

Until next time…

Isabelle
Isabelle H. LaBarbera
[email protected]

 

That's One Way to Get Rid of Him – 100 Years Ago:

The Buffalo News
Buffalo, New York
10 Oct. 1925

WOMAN HELD IN DEATH
OF HUSBAND AUGUST 6

MONCTON, N. B., Oct. 10 (AP).- Mrs. Abraham Gallop, formerly Emily Sprague of Charlotte, Maine, has been taken into custody here by detectives of the Province of Quebec. She is charged by them with being connected with the death of her husband at Aylmerville, Que., August 6.

Gallop died and was buried at Springhill, N. S. Later his body was exhumed, and it is alleged that traces of poison were found in the stomach. The arrest of Mrs. Gallop followed an investigation by the attorney general of Quebec.

 

Lexi’s Legislative Lowdown:

Dear Readers,

I am looking forward to a full weekend of fall activities while the weather is still warm!

This week we discuss Bill S186 which seeks to enact the climate protection insurance act. This Bill was just introduced on January 8, 2025, and amended on March 11, 2025.

Thanks for reading,
Lexi
Lexi R. Horton
[email protected]

 

Eggsactly– 100 Years Ago:

The Buffalo News
Buffalo, New York
10 Oct. 1925

NEW JERSEY HENS
STUDY EFFICIENCY

ATLANTIC CITY, Oct. 10.-According to carefully compiled statistics there are 400,000,000 hens in the United States and $15,000,000 worth of eggs are produced annually in New Jersey alone, where the poultry industry is more efficient than in any other section of the world.

These statements were made here yesterday before the annual convention of the New Jersey State Poultry Men's association in the Hotel Morton.

 

Victoria’s Vision on Bad Faith

Dear Readers,

I have two cases for you this week, one from Pennsylvania discussing the amount in controversy considerations under the Pennsylvania bad faith statute, and another from Florida discussing jury instructions on a bad faith claim.

Have a good weekend,

Victoria
Victoria S. Heist
[email protected]

 

A Kiss is But a Kiss– 100 Years Ago:

Times Union
Brooklyn, New York
10 Oct 1925

Lost Seventeen

Philip, 7 years old, returned from playing with a little neighbor girl. After a thoughtful silence, he asked, "Mother, is it wrong for little boys to kiss little girls?" "No," his mother replied, "it isn't wrong, but I think you had better keep your kisses for mother and baby sister for a while yet." "I'm sorry, mother, if I ought to have kept 'em, for there's 17 gone already."-Capper's Weekly.

 

Shim’s Serious Injury Segment

Hi Readers,

Postseason baseball is fully kicked into gear. Sadly both New York teams have been eliminated. The Mets lost to the Miami Marlins on the final day of the regular season (déjà vu, fellow Mets fans) and the Yankees were eliminated by their division rival Toronto Blue Jays (perhaps our Buffalo readers are happy). I hope everyone enjoys the remainder of the baseball season and that an exciting World Series awaits us. 

In this week’s column, I have shared a case decided in Kings County Supreme Court that serves as a friendly reminder to all of us as attorneys, to ensure that we are carefully analyzing our bills of particulars, and those of our adversaries, to ensure that only the applicable serious injury categories are being alleged. Failure to allege only those which are applicable constitutes sanctionable conduct. In this case, the Court found that plaintiff’s claims of all nine (9) serious injury categories, six (6) of which were inapplicable, constituted “a sham response to the demand for a bill of particulars and the command in CPLR 3043(a)(6).” As such, plaintiff’s counsel was sanctioned.

See you in the next column!

Stephen
Stephen M. Shimshi
[email protected]

 

Trial Divorces Advocated– 100 Years Ago:

The Buffalo Times
Buffalo, New York
10 Oct 1925

TRIAL DIVORCE
ADVOCATED BY
WOMAN WRITER

“MANY a man and woman who think they are permanently tired of their husbands and wives are only temporarily weary of looking at the same face and listening to same line of conversation across the breakfast table, and if a trial divorce gave them a second choice they would find that they preferred the old love to the new. For the lure of the "other woman" and the "other man" is chiefly that they are unattainable and unknown, and these charms vanish before the trial divorce that makes them possible and familiar. It gives the foolish, infatuated husband and wife a chance really to compare the long-haired poet or the short-haired flapper with the partners they had and are about to lose."

 

North of the Border:

It seems that our weather changed the moment the calendar ticked past September 30, and we transitioned into October. We have experienced our first hard frost and despite the daytime temperatures climbing into the mid-teens Celsius, snow is forecast as we celebrate our Thanksgiving this coming weekend. None of that should be a surprise, but it is hard to let summer go.

Have a read of my column as it is a lesson on how easily coverage issues can be muddied with liability issues in a complex claim with the result that the insurer may, simply by reason of its filing handling, be forced to accept coverage where coverage may not exist.

Until next time.

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]

• Statute of Limitation Expired.  Cause of Action for Negligence Against an Insurance Broker for Failing to Secure Appropriate Policy of Insurance for Insured, Starts to Run When Carrier for Insured Denies Coverage

 

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

• Five or Six Family Dwelling Is Outside the Defined Scope of Residence Premises
• No Duty to Produce Insurance Company File Materials Unless Also in Defendant/Insured’s Possession
• Arbitration Clause Defines the Scope of the Reviewing Panel’s Powers

 

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

•  Allegations that Doctor Used His Own Sperm Not Covered Malpractice?

 

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

• Court Applies Massachusetts Law and $8,000 No Fault Policy Limit to New York Accident, as the Vehicle Was Registered, and the Policy was Underwritten, in Massachusetts

 

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

• NDA Between Insurer and Insured Found Narrower Than Expansive Framing of Insured For Alleged Breach and Misappropriation Claims

 

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

• Policy Excluded Coverage for Losses Caused by Storm Surge Under the Policy’s Flood Exclusion and Anti-Concurrent Causation Language
• Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing Dismissed as Duplicative as Based on the Same Facts as a Breach of Contract Claim
• Collapse of Whiskey Barrel Racks Was Covered Under the Additional Coverage for Collapse

 

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

• No Coverage for Injuries Arising Out of an Accident Location That Is Not an Insured Location

 

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

• News Flash: “Any Auto” Does Not Mean Any Auto in the World

 

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

• Unsigned Certifying Statement for Cancellation of Policy by Premium Finance Company Complies With Louisiana Cancellation Statute

 

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

• Court Grants Motion to Extend Pre-Class Discovery, Allowing Plaintiff to Issue Judicial Subpoena Duces Tecum on the New York State Department of Financial Services

 

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

• Proposed Bill to Establish the Insure Our Communities Act, to Implement Climate Leadership and Community Protection Act Targets for Insurers

 

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

• Amount in Controversy Includes Attorneys' Fees and Punitive Damages Under Pennsylvania Bad Faith Statute
• Bad Faith Jury Instruction on Causation Upheld by Florida Court of Appeal

 

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

• Brooklyn Court Finds that Plaintiff’s "Serious Injury" Allegations to be Inapplicable Within the Meaning of Insurance Law § 5102(d) and Imposes Sanctions on Plaintiff’s Counsel

 

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

• Coverage Must Be Considered by an Insurer Separate and Apart from the Liability Case; That When Faced with Facts That Could Lead to an Off-Coverage Position, the Insurer Must Inform Their Insured of That Possibility; Issue a Reservation of Rights Letter; Split the File; Retain Coverage Counsel and Defence Counsel with Separate Adjusting Teams within the Insurer Responding to Each Issue.

 

For my friends in Canada, Happy Thanksgiving.  For those on the stateside, choose your holiday and enjoy it.

 

Hurwitz Fine P.C. is a full-service law firm providing legal services throughout the State of New York and providing insurance coverage advice and counsel in Connecticut and New Jersey.

In addition, Dan D. Kohane is a Foreign Legal Consultant, Permit No. 0119144, issued by the Law Society of Upper Canada, and authorized to provide legal advice in the Province of Ontario on matters of New York State and federal law.

 

NEWSLETTER EDITOR
Dan D. Kohane
[email protected]

ASSOCIATE EDITOR
Agnes A. Wilewicz
[email protected]

COPY EDITOR
Evan D. Gestwick
[email protected]

 

INSURANCE COVERAGE/EXTRA CONTRACTUAL LIABILITY TEAM
Dan D. Kohane, Chair
[email protected]

Steven E. Peiper, Co-Chair
[email protected]

Michael F. Perley

Agnieszka A. Wilewicz

Lee S. Siegel

Brian F. Mark

Scott D. Storm

Ryan P. Maxwell

Kyle A. Ruffner

Katherine A. Fleming

Evan D. Gestwick

Ryan P. O’Shea

Isabelle H. LaBarbera

Lexi R. Horton

Victoria S. Heist

 

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

Michael F. Perley

Scott D. Storm

 

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

Ryan P. O’Shea
[email protected]

Kyle A. Ruffner
[email protected]

 

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

 

Topical Index

Kohane’s Coverage Corner

Peiper on Property and Potpourri
Lee’s Connecticut Chronicles

Ruffner’s Road Review

Ryan’s Federal Reporter

Storm’s SIU

Fleming’s Finest

Gestwick’s Garden State Gazette

O’Shea Rides the Circuits

LaBarbera’s Lower Court Library

Lexi’s Legislative Lowdown

Victoria’s Vision on Bad Faith

Shim’s Serious Injury Segment

North of the Border

 

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

 

10/02/25         Johnson v. Northeast Agencies Inc
Appellate Division, First Department
Statute of Limitation Expired.  Cause of Action for Negligence Against an Insurance Broker for Failing to Secure Appropriate Policy of Insurance for Insured, Starts to Run When Carrier for Insured Denies Coverage

In 2016, Johnson, the owner of a two-family building, engaged Northeast as his insurance brokers to procure an insurance policy for rental property. In March 2018, an action was commenced against Johnson seeking damages for personal injuries that occurred on his rental property. In April 2018, the insurer disclaimed personal liability coverage because, among other reasons, the building was not an "insured location" under the policy. Plaintiff commenced this negligence action against defendants in June 2023, over five years after the insurer disclaimed coverage.

Supreme Court properly concluded that plaintiff's cause of action accrued in April 2018, at the time of injury, when his insurer disclaimed coverage  Accordingly, the cause of action was untimely because it was commenced more than three years after the claim accrued.

The insurer's assignment of defense counsel, pending confirmation of the propriety of its disclaimer in a declaratory judgment action, did not make the disclaimer ambiguous or alter the date of accrual

 

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

10/01/25         Simms v. Liberty Ins. Corp.
Appellate Division, First Department
Five or Six Family Dwelling Is Outside the Defined Scope of Residence Premises

Plaintiff’s building located in Brooklyn sustained fire damage, and he thereafter submitted a claim for coverage with Liberty.  Upon investigation, Liberty discovered that the premises was configured as a 5 or 6 family dwelling.  The policy, however, defined the “residence premises” as a 1, 2, 3 or 4 family dwelling.  Accordingly, Liberty disclaimed coverage because the policy only provided coverage for a “residence premises,” and the insured property clearly did not qualify as such under the relevant definition.

The trial court denied Liberty’s motion for summary judgment.  On appeal, however, the Appellate Division acknowledged that when policy provisions are clear and unambiguous they must be afforded their plain meaning.  Here, the language was clear that a 5 or 6 family dwelling is outside the scope of how a “residence premises” is defined.  As such, the policy plainly does not provide coverage for this loss. 

Potpourri

10/08/25        Pollard v. 38-18 Crescent Street, LLC
Appellate Division, Second Department
No Duty to Produce Insurance Company File Materials Unless Also in Defendant/Insured’s Possession

Plaintiff’s action seeks damages sustained in a trip and fall incident on the sidewalk next to defendant’s premises.  At a deposition, defendant’s principal testified that a portion of the sidewalk had been repaired in response to the insurance company’s inspection related to its decision to underwrite the policy.  At the conclusion of the deposition, plaintiff moved to compel production of the insurance carrier’s inspection report along with any photos.  Defendant objected, stating it was not in possession of any of the materials requested.

Plaintiff moved to strike defendant’s Answer when the report was not produced.  The Appellate Division first noted that party may not have its pleading stricken, or otherwise sanctioned, when it cannot produce something that is not in its possession.  In this case, the Court advised that defendant should either (a) produce the documentation  or (b) produce an affidavit attesting that the inspection report and accompanying photographs are not in its possession or anyone under defendant’s control.

Peiper’s Point- Interesting decision here.  The Court, it appears at least, is stating that an insured is not required to produce information from the liability carrier’s file – unless it is in their physical possession.  If you want discovery of the carrier’s file materials, you have to subpoena it directly.  You cannot compel a party to litigation to obtain records/reports not within their file. 

 

10/02/25         N.Y. Life Ins. Co. v. John Hancock Life Ins. Co.
Appellate Division, First Department
Arbitration Clause Defines the Scope of the Reviewing Panel’s Powers

Interesting dispute over, in effect, subject matter jurisdiction in an arbitration proceeding. 

Here, the arbitration clause in dispute expressly provided that the arbitration panel was empowered to determine “the threshold issue of arbitrability.”  The breadth of that clause necessarily encompassed whether the arbitration panel had jurisdiction to consider a request for clarification of a decision previously rendered.

 

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

11/08/23        Integris Ins. Co. v. Tohan
Superior Court of Connecticut, Hartford
Allegations that Doctor Used His Own Sperm Not Covered Malpractice?

This case above was recently argued on appeal to the Connecticut Appellate Court and is related to a January 2025 Connecticut Supreme Court decision which reinstated claims by two plaintiffs for wrongful life.

Let’s start at the beginning. Dr. Narendra Tohan is a reproductive endocrinologist who assisted two couples struggling with infertility. Dr. Tohan utilized his own sperm rather than the sperm of the men the offspring believed to be their fathers to impregnate their mothers, allegedly causing the plaintiffs physical and emotional harm. The offspring sued Dr. Tohan for damages. That lawsuit was dismissed on the grounds that the causes of action were for noncognizable wrongful life claims. In January 2025, the Supreme Court reinstated the claims, finding that they sounded in ordinary negligence because they arose from Dr. Tohan’s alleged negligence in using his own sperm to impregnate the mothers during IVF.

The underlying offspring plaintiffs, who are both in their thirties, were conceived through IVF. Dr. Tohan is the reproductive endocrinologist who performed the IVF procedures for the respective parents. Unbeknownst to anyone, Dr. Tohan used his own sperm in the IVF procedures. The parents never agreed to the use of donor sperm, and no genetic testing was performed to ensure that the defendant was a suitable donor. In 2019, the offspring learned of the deception through genetic testing. As a result, they learned that the men they believed to be their fathers were in fact not their biological fathers. In 2021, the plaintiffs brought this action.

Soon after, Integris, Dr. Tohan’s malpractice carrier, brought the above-coverage action. The trial court granted Integris summary judgment, finding that the claims against the insured excluded but, interestingly could be a medical incident. “As the allegations in the Suprynowicz action could fall within the coverage of the Integris Insurance Policy, subject to the applicability of any exclusion, the court cannot grant summary judgment seeking a declaration that the damages sought in the Suprynowicz action are not within the coverage of the Integris Insurance Policy because they are not a result of an injury arising out of a medical incident and must now consider whether any exclusion applies.”

However, the trial court found that all the alleged damages fell under the intentional conduct exclusion in the policy. The court, as a matter of dicta, also found that all the claims would be precluded by the sexual misconduct exclusion. Finally, the trial court found that the insurer was not estopped from denying coverage and withdrawing from the defense of the insured. The court found that the carrier had issued an appropriate reservation of rights and that it was not estopped by providing a defense pending the determination of the declaratory judgment action.

Earlier this week, Dr. Tohan’s appeal was heard by the Connecticut Appellate Court, as reported by Law360.  According to the reporting, the panel was not persuaded that the claims fit within the sexual misconduct exclusion. The judges seemed reticent to accept that the use of the insured’s own sperm in the IVF process converted the act to a sexual nature. Counsel for the insured argued, it was reported, that there was no record below that the allegations that the insured used his own sperm were true thus precluding application of the intentional conduct exclusion.

We will be watching closely for the court’s decision.

 

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

09/26/25         New Millennium Med. Imaging v. Arbella Protection Ins.
Kings County Civil Court
Court Applies Massachusetts Law and $8,000 No Fault Policy Limit to New York Accident, as the Vehicle Was Registered, and the Policy was Underwritten, in Massachusetts

This matter involved a claim for no fault benefits after plaintiff provided treatment to the Assignor. The injured party was involved in an automobile accident in Connecticut while a passenger on a bus insured by defendant.  The insurer moved pursuant to CPLR § 3212 seeking summary judgment, asserting that Massachusetts law should apply. Massachusetts law contains an $8,000 policy limit, which Defendant demonstrated had been exhausted. The provider cross moved seeking summary judgment and denial of defendant's Motion.

The insurer argued that Massachusetts law should be applied because the insurance policy was issued in the state of Massachusetts, the vehicle was registered in Massachusetts, and Massachusetts Personal Injury Protection benefits were afforded to the assignor. Further, if Massachusetts law applied, the policy was exhausted as there is an $8,000 policy exhaustion limit for PIP benefits. In addition, the insurer argued that the assignor signed a waiver of their rights, which defendant states is applicable in this case. In response, the provider argued that New York law should apply because the assignor received treatment in New York and resides in New York. In addition, plaintiff asserted that the insurer did not establish the policy was exhausted, as there was $5,000 remaining for "Auto Medical Payments Insurance”.

The court cited to the Second Department holding in A.B. Med. Servs., PLLC v. GEICO Cas. Ins. Co., 27 Misc 3d (2nd Dept. 2010). In that case, where there was a conflict between New Jersey law and New York law in an action by a provider to recover assigned first-party no-fault benefits, the court followed the center of gravity or grouping of contacts approach adopted by the Court of Appeals, which gives controlling effect to the substantive law of the state that has the most significant relationship to the transaction and the parties (Restatement [Second] of Conflict of Laws § 188 [1]).

In this case, Mass Gen Laws Ann ch. 90, § 34A provides for PIP insurance coverage for a maximum of $8,000. Based on Second Department precedent,  the court applied the "grouping of contacts" approach to the choice of law question. The accident occurred in Connecticut, the vehicle was registered and licensed in Massachusetts, the insurance policy was underwritten in Massachusetts, and the operator of the bus was a Massachusetts-based entity. Therefore, although the assignee in this matter sough medical treatment in New York, the grouping of contacts required that Massachusetts law be applied.

The provider submitted ledgers, affidavits, and letters of policy exhaustion that were sent to both the assignee and assignor in support of its summary judgment motion, which was admissible and substantiated the exhaustion of the $8,000 PIP limit. Further, the provider asserted that the $5,000 Med Pay in question was paid to Yale New Haven Hospital in 2016 for other treatment rendered to this same assignee, which was unrebutted by Plaintiff. Finally, the Court determined the assignee's retroactive waiver of benefits, signed two years after the Plaintiff rendered services, was inapplicable.

Accordingly, the court granted the insurer’s motion for summary judgment, holding it sufficiently demonstrated that Massachusetts law is applicable and that the policy limit was exhausted by providing admissible ledgers, affidavits, and policy exhaustion letters in its motion papers. The defendant's motion for summary judgement dismissing the complaint was therefore granted pursuant to CPLR § 3212 and the matter was dismissed.

 

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

09/30/25         Capricorn Mgmt. Sys., Inc. v. Gov’t Emps. Ins. Co.
United States Court of Appeals, Second Circuit
NDA Between Insurer and Insured Found Narrower Than Expansive Framing of Insured For Alleged Breach and Misappropriation Claims

Plaintiff Capricorn Management Systems, Inc. (“Capricorn”) brought claims against Government Employees Insurance Company (“GEICO”) and CCC Intelligent Solutions Inc. (“CCC,” successor to Auto Injury Solutions, Inc. (“AIS”)), alleging breach of contract, conversion, and misappropriation of trade secrets. The dispute centers on the Supercede software system, which Capricorn licensed to GEICO for nearly two decades.

Capricorn claimed that GEICO breached a 2005 non-disclosure agreement (NDA) by sharing information about the Supercede system with CCC, such as showing CCC fields associated with the software. Capricorn argued that all information about its operations, technology, or systems constituted “Confidential Information” under the NDA, and that GEICO’s sharing of Supercede-related information violated this agreement. Capricorn also alleged that GEICO and CCC committed conversion by exercising control over the “master copy” of Supercede, and that the functionalities and modules of Supercede constituted trade secrets under federal and Maryland law.

Following motion practice, the District Court granted summary judgment in favor of GEICO and CCC on the relevant issues and this appeal ensued.

Relative to the breach of contract claim, the Second Circuit focused upon proper interpretation of the NDA between Capricorn and GEICO. The NDA prohibited the disclosure of “Confidential Information,” which was defined as information the parties treat as their own confidential and proprietary information, including information relating to operations, technology, or systems.

While Capricorn argued for an expansive definition of “Confidential Information” that would include all information about its operations, technology, or systems, the Second Circuit disagreed, holding that the NDA only protected information actually treated as confidential and proprietary, not all information. Capricorn’s broad interpretation would render the contractual language unnecessary under Maryland law. This conclusion was further supported by the fact that Capricorn did not provide evidence tending to show that the parties treated descriptions or demonstrations of the Supercede system’s functions as confidential when entering into the NDA, or that they intended to keep Supercede’s functions secret during the nearly two decades of licensing prior to the NDA.

Capricorn’s claim of common law conversion faired no better. The court explained that, under Maryland law, conversion requires the defendant to exercise control over the plaintiff’s property in a manner that is inconsistent with the plaintiff’s rights. However, Capricorn still possessed its own copies of the Supercede software and did not present evidence that GEICO’s “master copy” differed from Capricorn’s own copies. Additionally, Capricorn did not show that CCC exercised control over any copy of Supercede. Since Capricorn retained possession and control of its property and failed to show that the defendants exercised exclusive control or deprived Capricorn of its rights, the court affirmed summary judgment dismissing the conversion claim.

The Second Circuit additionally dispatched Capricorn’s claim of misappropriation of trade secrets. To prevail on a trade secret misappropriation claim, Capricorn needed to identify the trade secrets with sufficient specificity and show that the information was not generally known or readily ascertainable in the industry. However, Capricorn failed to identify any specific trade secrets with the required level of detail. Instead, Capricorn merely described general functionalities and modules of the Supercede system, which the court determined were common in the industry and not shown to be confidential. No evidence was submitted that the described functionalities were treated as confidential or proprietary, nor that they were not generally known or readily ascertainable.

Finally, Capricorn’s challenge of the district court’s preclusion of its expert witnesses from testifying at trial was deferred, as the expert witness preclusion order was not certified for appeal in the district court’s partial final judgment under Federal Rule of Civil Procedure 54(b), resulting in a lack of jurisdiction for that issue to be heard at the Second Circuit.

 

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

06/20/25         Madelaine Chocolate Novelties, Inc. v. Great N. Ins. Co.
United States Court of Appeals, Second Circuit
Policy Excluded Coverage for Losses Caused by Storm Surge Under the Policy’s Flood Exclusion and Anti-Concurrent Causation Language

Madelaine Chocolate Novelties, Inc. manufactures candies in a factory located three blocks from the Atlantic Ocean.  In October 2012, Superstorm Sandy inundated Madelaine Chocolate's factory with over three feet of saltwater, causing physical damage and economic losses. Madelaine Chocolate filed a claim for more than $53 million under an insurance policy issued by Great Northern. Great Northern paid about $4 million, citing the policy's flood exclusion clause and an anti-concurrent causation clause that bars coverage for losses with multiple contributing causes if one is excluded.

Madelaine Chocolate argued that the windstorm endorsement, which defined "windstorm" to include "wind-driven rain," provided coverage or created an ambiguity in the policy.  The insurer maintained that the flood exclusion applied, including storm surge, and that the windstorm endorsement only modified deductibles and waiting periods, not coverage scope.

The district court initially granted summary judgment for Great Northern, finding the policy unambiguous.  On appeal, the Second Circuit vacated and remanded, instructing the district court to consider whether the windstorm endorsement’s anti-concurrent causation clause created ambiguity with the flood exclusion.  On remand, the district court found ambiguity and allowed extrinsic evidence of intent, setting the case for trial.

After a week-long trial, the jury found for Great Northern that the parties intended the insurance policy to exclude coverage for losses caused by storm surge.

Madelaine Chocolate moved for judgment as a matter of law under Fed. R. Civ. P. 50 or, in the alternative, for a new trial under Rule 59, but the district court denied both motions.  The Second Circuit affirmed and upheld the jury verdict in favor of Great Northern Insurance Company.

Evidence at trial included testimony that Madelaine Chocolate discontinued excess flood coverage, correspondence omitting mention of storm surge coverage from Great Northern, and a report from Great Northern’s loss-control professional separating windstorm and flood hazards.

The district court applied New York contract law principles, including the contra proferentem doctrine, which requires ambiguities to be resolved in favor of the insured unless the insurer proves its interpretation is correct.

While a party's subjective understanding is not controlling in contract interpretation, the Second Circuit held that the district court did not err in permitting Great Northern to introduce evidence regarding its subjective understanding of the policy terms, as such evidence can shed light on the parties' negotiations and objective actions.

The court explained that its prior summary order did not resolve the issue of whether the policy terms were ambiguous or the parties' intent regarding storm surge coverage, so the law of the case doctrine did not preclude Great Northern from presenting its interpretation of the windstorm endorsement at trial that the windstorm endorsement was limited to modifying deductibles and waiting periods, and did not supersede the flood exclusion.

09/18/25         Corretto LLC v. Erie Ins. Co.
United States District Court, Southern District of New York
Claim for Breach of the Implied Covenant of Good Faith and Fair Dealing Dismissed as Duplicative as Based on the Same Facts as a Breach of Contract Claim

Corretto operates a café in Greenwich Village, N.Y. City.  On December 2, 2022, Corretto began an insurance policy with Erie Insurance Company, set to expire on December 2, 2023, which included "Income Protection" and extended utility service disruption coverage. Around August 10, 2023, a gas leak was discovered during a city inspection, leading to the gas being shut off and the café ceasing operations, after which Corretto submitted an insurance claim to Erie.

Erie sent an engineer to inspect the property around August 21, 2023, and by September 14, 2023, stated it was still determining coverage, while repeatedly requesting information.  As of March 10, 2024, Erie had not paid the claim, and Corretto alleged that the repeated requests for information were intended to avoid payment, resulting in the loss of the business and damages of no less than $2,000,000.

Corretto filed suit on March 10, 2024, asserting claims for breach of contract and breach of the implied covenant of good faith and fair dealing.  Erie moved to dismiss the implied covenant claim under Fed. R. Civ. P. 12(b)(6). 

The court held that under New York law a claim for breach of the implied covenant of good faith and fair dealing is duplicative if it arises from the same facts and seeks the same damages as a breach of contract claim.  The court found that both of Corretto’s claims were based on the same factual allegations and sought identical relief, namely compensation for the loss of the business, and thus the implied covenant claim was duplicative.  The court also ruled that Corretto could not plead the implied covenant claim in the alternative because the existence and meaning of the insurance policy were not in dispute.

 

09/09/25         Vale Fox Distillery LLC v. Central Mut. Ins. Co.
United States District Court, Southern District of New York
Collapse of Whiskey Barrel Racks Was Covered Under the Additional Coverage for Collapse

Vale Fox Distillery operates a distillery in Poughkeepsie.  On December 19, 2023, racks holding dozens of barrels of whiskey collapsed, causing 52 to break, resulting in the loss of aging single malt whiskey valued at over $2.5 million if bottled and sold.

The Plaintiff had an Industrial Processing insurance policy with a $5,652,000 limit for personal property, including "stock". Defendant denied coverage arguing that the policy’s Additional Coverage for Collapse was not implicated and that several exclusions applied.

Plaintiff filed a motion for judgment on the pleadings.  The court found that the collapse was caused by defective materials or methods in the construction of the racks, as confirmed by Defendant’s own engineer, and that the loss was covered under the policy’s Additional Coverage—Collapse provision.  Defendant's engineer determined the collapse was caused by defective welds in the racks.  The weight of the whiskey barrels contributed to the collapse of the defectively constructed racks.

The court rejected Defendant’s argument that “construction” in the policy referred only to building construction, holding that it included construction of the racks themselves.  The court held that general policy exclusions for wear and tear, corrosion, and hidden defects do not apply to the Additional Coverage - Collapse provision.  The court reasoned that the absence of an anti-concurrent clause in the relevant exclusions indicated they were not meant to override coverage.

The court granted Plaintiff’s motion for judgment on the pleadings as to coverage and exclusions but denied it as to whether the loss should be valued according to the Manufacturer’s Selling Price (MSP) provision, finding the term “finished ‘stock’” ambiguous and requiring further factual development.  The court reasoned that "finished 'stock'" is ambiguous because it could mean either whiskey done aging or whiskey bottled for sale.

 

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

09/23/25         Rowe v. State Mut. Ins. Co.
Maine Supreme Court
No Coverage for Injuries Arising Out of an Accident Location That Is Not an Insured Location

The Chases bought a parcel of land, cleared some of the lot and installed a well and septic system, and then purchased a mobile home, which they placed on the parcel. The Chases rented out the mobile home to various family members, relatives, friends, and the public. Rowe visited the property to potentially rent the mobile home, and she stepped into a hidden gap between the mobile home and the entryway stairs. The Chases were in the process of replacing a door and siding and had pulled the stairs about a foot away from the mobile home.

Rowe sued the Chases, insured by State Mutual under a Master Mobile Homeowners policy, based on their negligence in failing to warn her of unsafe conditions on their property, resulting in injuries to Rowe. However, the policy incorrectly identified another property owned by the Chases as the covered premises on the declarations page. The accident location was not identified as the insured location on the declarations page. State Mutual issued a denial letter but asserted that the accident location was not an insured location as defined in the policy. State Mutual agreed to defend under a reservation of rights. Rowe and the Chases entered into a settlement agreement and stipulated judgment for $500,000, including $50,000 of the Chases’ own money.

Rowe commenced a “reach-and-apply” action, a direct action by the judgment creditor against the judgment debtor’s insurer, against State Mutual to satisfy the remained of the judgment she obtained in the underlying premises liability action. State Mutual answered and filed a counterclaim for a declaratory judgment. State Mutual argued the policy did not insure the accident location and that the Chases had colluded with Rowe to obtain satisfaction of the judgment from State Mutual. The court granted State Mutual’s motion for partial summary judgment, and Rowe appealed.

The Maine Supreme Court looked at the relevant policy language, including exclusions for situations where a bodily injury occurs at an insured’s premises that is not an insured location.  Rowe argued that the exclusion for “bodily injury” “arising out of” a premises that is not an “insured location” does not apply in this case because Rowe’s bodily injury claim arose out of the Chases’ tortious conduct, specifically their negligent failure to provide her with adequate warnings about the gap in the entryway stairs that they created, and not out of a condition on the premises where she was injured. State Mutual argued Rowe’s injuries arose out of the defective conditions on at the accident location, and the accident location was not an insured location. The court concluded there was no genuine issue of material fact regarding whether Rowe’s injury arose from the accident location, reasoning that there was an immediate relationship between the injury and the condition of the uninsured premises. Furth, the property did not meet the criteria required to be an insured location under the policy, so the court affirmed the lower court’s judgment.

 

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

09/25/25         C.J. Hesse, Inc. v. American Family Home Insurance Company
United States District Court, District of New Jersey
News Flash: “Any Auto” Does Not Mean Any Auto in the World

Atlantic Pier owned a landfill, leased to Ocean County Landfill Co. Several lawsuits were filed against Atlantic Pier and C.J. Hesse, the general contractor hired by Atlantic Pier to oversee the premises. Four of these lawsuits were for bodily injuries sustained by truck drivers when their trucks were caused to overturn as a result of hazardous terrain on the landfill site. Two other lawsuits were filed for property damage allegedly sustained to other trucks as a result of “protruding debris” on the landfill site.

American Family issued a commercial automobile liability policy to Atlantic Pier, on which C.J. Hesse was also an insured. The insureds sought coverage under this policy for the six underlying actions. American Family denied any duty to defend or indemnity the insureds in any of the six actions, on the ground that the claims did not arise out of the ownership, maintenance, or use of an “auto.” Rather, as American Family contended, the claims arose out of the ownership and operation of the landfill site. The plaintiff-insureds disagreed, and this declaratory judgment action was commenced.

In support of its claim for a defense and indemnity under the American Family policy, the plaintiffs pointed to the policy’s schedule of covered autos, which provided coverage for “any auto.” Although there was no accompanying definition of “any auto,” American Family argued that “any auto” cannot reasonably be read to mean any auto in the world, driven by and person in the world. Instead, American Family contended that “any auto” means any auto otherwise described in the policy, such as an auto owned or hired by the insured.

The Court held that the plaintiff’s interpretation was overly broad, reasoning that there was no allegation in any of the underlying actions that the trucks were used in the course of the insured’s business. To provide coverage to the insureds for any claim arising out of the use of any auto driven by any person, the Court reasoned, would exceed the bounds of reason and common sense. In the end, the Court held that because the trucks were not owned or operated by any insured, American Family had no duty to defend or indemnify the insureds in any of the underlying actions.

 

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

10/03/2025    Williams v. GoAuto Ins. Co.
United States Court of Appeals, Fifth Circuit
Unsigned Certifying Statement for Cancellation of Policy by Premium Finance Company Complies With Louisiana Cancellation Statute

American Premium Assistance Company, LLC (“APAC”) is an insurance premium finance company. Kimberly Williams, Felira Wright, and Nicholas Jenkins were involved in a car accident with a third unidentified party. Williams, Wright, and the third party were each insured by GoAuto and financed their respective policies through APAC. Each financing agreement granted APAC power of attorney to cancel the auto policies upon failure to pay the premium. Williams, Wright, and the third-party’s auto policies were individually cancelled by APAC for nonpayment.

Under Louisiana Law, an insurance premium finance company may request cancellation of a policy upon an uncured default by sending to the insurer, depositing in mail, private courier, or via electronic mail a copy of the notice of cancellation together with a statement certifying the following statutory language:

“(i) The premium finance agreement contains a valid power of attorney as provided in Paragraph (1) of this Subsection.

(ii) The premium finance agreement is in default and the default has not been timely cured.

(iii) Upon default, a notice of cancellation was sent to the insured as provided in Paragraph (2) of this Subsection, specifying the date of sending by the premium finance company to the insured.

(iv) Copies of the notice of cancellation were sent to all persons shown by the premium finance agreement to have an interest in any loss which may occur thereunder, specifying the names and addresses of any governmental agencies, holders of a security interest in the insured property, or third parties to whom the insurance premium finance company has sent notice of cancellation.”

La. Rev. Stat. § (:3550(G)(3)(a)(i)-(iv).

Louisiana precedent requires strict adherence to the statute when a premium finance company attempts to cancel a policy. APAC and GoAuto’s cancellation process is as follows.

APAC sends a pre-cancellation notice if a default payment is uncured within 10 days. If no payment is received by the 10th day, at midnight APAC’s system automatically sends GoAuto an e-mail with a copy of the notice of cancellation and request for cancellation. The request for cancellation is sent on APAC’s letterhead and contains the statutory certifying statements. Upon receipt of the notice, GoAuto’s system cancels the policy and later in the morning, an APAC employee affixes a signature stamp to the printed cancellation. A GoAuto employee then stamps the document as “received” and places it in a filing cabinet shared with GoAuto.

Williams, Jenkins, and Wright (“Plaintiffs”) challenged the above process through the argument that there is no signature on APAC’s certifying statement until after cancellation of the policy. Plaintiffs asserted the lack of a signature on the certification fails to strictly adhere to the statute as they interpret statute to require a signature on the certification prior to the cancellation.

However, the statute makes no reference to a signature requirement. The court note if any word implied a signature requirement it would be “certifying.” A review of Louisiana State Court decisions showed there a lack of precedent that considered whether the statute requires a signature to effectuate valid cancellation. The court did note a state Court of Appeals decision that referenced shortcomings for lack of identification on a premium finance company’s employee who prepared the notice of cancellation, which remained unsigned. However, that decision did not hold that the absence of a signature itself would invalidate a cancellation if all other elements were present. Without any contrary precedent or the statute explicitly stating otherwise, the Fifth Circuit held La. Rev. Stat. § (:3550(G)(3)(a)(i)-(iv) does not require a signature on the certifying statement to effectively cancel an insurance policy.

Plaintiffs’ additional argument that GoAuto must actually receive the notice before cancellation was also rejected. The statute does not define “receipt” nor has the Louisiana Supreme Court in the context of the statute. As such, the court referenced the definition of “receipt” found in Black’s Law Dictionary, which defined “receipt” as the act of receiving something, taking physical possession an “receive” as the taking of something (offered, given, sent), to come into possession of, or get from an outside source. Based on these definitions, the court concluded GoAuto may cancel a policy once it takes possession, delivery, or custody of a cancellation request. As such, once GoAuto receives the email cancellation request, receipt is complete pursuant to the statutory language.

For the above reasons, summary dismissal of Plaintiffs’ claims.

Author’s Note: Footnote 1 in the decision notes APAC and GoAuto are separate legal entities that operate out of a shared business office. Certain employees that performed services for both companies are employed singularly by GoAuto Management Services, LLC. But the court looked to whether the employee was assigned to the specific entity when determining employment status.

 

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

09/22/25         Hudson v. Allstate Veh. & Prop. Ins. Co.
New York State Supreme Court, New York County
Court Grants Motion to Extend Pre-Class Discovery, Allowing Plaintiff to Issue Judicial Subpoena Duces Tecum on the New York State Department of Financial Services

This declaratory judgment action stems from a claim submitted by Stephen Hudson (the “Insured”) to Allstate Vehicle & Property Insurance Company (“Allstate”), under a Condominium or Coop Owners Policy. The Insured, upon submitting the claim, alleged that in June 2023 and January 2024, there were two sudden instances of smoke wafting from the apartment below, resulting in a declaration that the Insured’s apartment was temporarily inhabitable.

Allstate had denied coverage for the loss, indicating that there was no coverage for tobacco/nicotine smoke damage, because the loss did not qualify as sudden or accidental direct physical loss.

In a motion decided in March 2025, the Court denied the Insured’s motion to certify a class of plaintiffs. However, it exercised its discretion to allow for limited pre-certification discovery, to develop the record of elements required to certify a proposed class.

Subsequently, the Insured filed a motion for an extension of pre-class discovery, to allow for the issuance of a judicial subpoena duce tecum to be served on the New York State Department of Financial Services, compelling production of “all records of complaints against the Allstate Vehicle & Property Insurance Company by Allstate insureds for wrongful coverage denial, deceptive practices and/or bad faith relating to smoke intrusion over the past ten years.”

The court first identified that the motion seeks information beyond the time period appropriate for class action pre-certification discovery in the case. Further, the subpoena seeks information that exceeds the time period that the plaintiff sought party discovery from Allstate.

In addition, the subpoena is significantly broader than the claims of the proposed class, seeking information related to all smoke intrusion claims, not simply limited to those involving secondhand smoke. As such, the court identified that the subpoena, as written, is substantially overbroad.

However, the Court found that the Insured produced information to confirm good cause to extend the deadline for pre-class discovery. Thee witnesses from Allstate were deposed since the Court’s initial order, granting limited pre-class discovery.

During the depositions, a representative of Allstate testified that she conducted a search for all secondhand smoke and tobacco claims, finding no matches.

The Insured argued that, as per the Judge’s Part Rules, the parties sought party discovery prior to the taking of non-party discovery. The Insured indicated that non-party discovery would have bene premature prior to the conducting of depositions in August.

As such, the Court found that the Insured has shown good cause exists to permit the Insured to seek third party discovery prior to bringing a motion seeking class certification. As such, the Court granted the Insured’s motion, in part.

Since the original proposed subpoena was overly broad and sought information beyond the appropriate time period, the Court ordered that the Insured may file a subpoena, no later than September 23, 2025, on the New York State Department of Financial Services, for copies of all records of complaints against Allstate Vehicle & Property Insurance Company by Allstate insureds for wrongful coverage denial, deceptive practices and/or bad faith relating to second hand smoke intrusion on or after January 1, 2023. The Court identified that failure to file the subpoena before the deadline resulted in a waiver of further pre-class discovery.

In addition, the Court Ordered that pre-class certification discovery is extended to November 26, 2025, but solely as in relation to the subpoena. 

 

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

10/10/25        New York Senate Bill S186
Proposed Bill to Establish the Insure Our Communities Act, to Implement Climate Leadership and Community Protection Act Targets for Insurers

Senate Bill S186, which was only introduced on January 8, 2025, seeks to establish the climate protection insurance act.

The purpose of the bill states, if introduced, the bill would regulate New-York based insurers to help prevent global and local catastrophes due to climate change. The bill would align New York insurance regulations with the previously-enacted Climate Leadership and Community Protection Act (CLCPA) by:

• preventing New York-based insurers from insuring polluting new fossil fuel projects;
•  aligning insurer policies with science-based objectives for reducing climate-heating pollution;
• divesting insurance company investment funds from oil, gas and coal companies; strengthening the state's anti-discrimination requirements for insurance and climate risk; and
• requiring the state's regulators to study the insurance markets to assess climate risks to the insurance markets, the state, localities, and equity in treatment of homeowners, and recommend potential legislative and regulatory action to protect New Yorkers from such risks

Bill S186 was introduced on January 8, 2025, and amended on March 11, 2025, the status of the Bill has not changed since its amendment and referral to Insurance on March 11, 2025. We will continue to monitor the Bill.

 

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

10/02/25         Weir v. Progressive Advanced Ins. Co.
United States District Court, Middle District of Pennsylvania
Amount in Controversy Includes Attorneys' Fees and Punitive Damages Under Pennsylvania Bad Faith Statute

Plaintiff Brandon Weir ("Weir") commenced an action against Progressive Advanced Ins. Co. ("Progressive") in the Court of Common Pleas of Luzerne County. After, Progressive timely moved for removal to Federal court based on diversity jurisdiction. Plaintiff then filed a motion to remand, arguing the amount in controversy has not been satisfied.

Federal diversity jurisdiction requires that the parties be diverse from each other and the amount in controversy exceeds $75,000. To determine whether the amount of controversy exceeds $75,0000, the Court will determine whether "from the face of the pleadings, it is apparent, to a legal certainty, that the plaintiff cannot recover the amount claimed, or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover from that amount."

The Plaintiff's complaint contained six causes of action: (1) breach of contract; (2) statutory bad faith pursuant to 42 Pa. C.S.A.; (3) fraud and misrepresentation; (4) declaratory relief; (5) specific performance; and (6) unjust enrichment. The Plaintiff seeks compensatory damages of $30,236.96 for the breach of contract claim. For the bad faith claim, Plaintiff seeks punitive damages and reasonable attorneys' fees. For Plaintiff's fraud and misrepresentation claim, Plaintiff seeks compensatory damages in excess of $50,000, plus punitive damages.

The Court found diversity jurisdiction satisfied, as the Plaintiff's complaint demands compensatory damages in excess of $80,236.86, in addition to attorneys' fees, punitive damages, interests, and other costs.

The Court also found attorneys' fees based upon violation of Pennsylvania's bad faith statute are to be considered when determining the amount in controversy. Further, the punitive damages alleged in Plaintiff's bad faith claim and are to be considered in determining the amount in controversy.

 

09/19/25        Hancock v. Fla. Farm Bureau Gen. Ins. Co.
Court of Appeal of Florida, Second District
Bad Faith Jury Instruction on Causation Upheld by Florida Court of Appeal

On May 28, 2016, Desirre Nathe ("Nathe") struck and killed bicyclist, Joseph Hancock, with her vehicle. Nathe was insured by the Florida Farm Bureau Insurance Company ("FFB") and provided Nathe with $50,000 of bodily injury liability coverage. On May 31, 2016, FFB contacted Jane Hancock, Mr. Hancock's widow and estate representative to discuss settlement. FFB went to her home on multiple occasions and twice taped an envelope containing a check of $50,000 on Ms. Hancock's door.

Nathe filed for bankruptcy in December 2017 and in January 2018, the estate filed a wrongful death suit against Nathe. After a trial in January 2019, the jury found Nathe completely at fault and awarded $13,550,592 in damages. Subsequently, the estate paid for and received an assignment of Nathe's rights in any bad faith claim against FFB in handling the wrongful death claim.

Shortly after the wrongful death suit was filed, the estate, individually and as Nathe's assignee, commenced a bad faith action against FFB, alleging that it breached its duty to act in good faith in the handling of the wrongful death claim, which resulted in an excess judgment against Nathe.  The amended complaint to the bad faith action alleged that when FFB first contacted Ms. Hancock, she told FFB that she was represented by counsel and was not in the position or mindset to deal with insurance. FFB continued to contract her directly, told her to accept the $50,000 check, and sign settlement documents. It was alleged that the adjuster's behavior towards Ms. Hancock impeded settlement.

The bad faith claim went to trial in February 2024. After both sides rested, the court held a charge conference where both parties agreed to use Florida Standard Jury Instruction 404.4. Pursuant to this jury instruction, the Court instructed the jury that "bad faith on the part of an insurance company is failing to settle a claim where under all the circumstances it could and should have done so had it acted fairly and honestly towards its insured and with due regard for her interests."

However, the parties differed on whether an instruction on causation should be given, i.e. whether the bad faith must be the cause of the excess judgment against Nathe. The trial court ultimately instructed the jury that for FFB to be considered to act in bad faith they must be the cause of the excess judgment. The estate appealed.

In this appeal, the Court reviewed the trial court's causation instruction and the causation question on the verdict form for abuse of discretion. The Court found the trial court did not abuse its discretion as the trial court is afforded broad discretion in determining jury instructions. The Court found the trial court's causation instruction and verdict question reflected binding precedent on bad faith. Further, the Court found the bad faith instruction not confusing to the jury, shown by the bad faith expert's testimony regarding causation. The Could held it was not unreasonable for the jury to be instructed on causation.

 

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

10/06/25         Fluker v. DeFalco’s Serv. Ctr. Of Edison, Inc.
Kings County Supreme Court
Brooklyn Court Finds that Plaintiff’s "Serious Injury" Allegations to be Inapplicable Within the Meaning of Insurance Law § 5102(d) and Imposes Sanctions on Plaintiff’s Counsel 

Plaintiff, Tykeem T. Fluker, alleged that he sustained personal injuries in connection with a motor vehicle accident that occurred on September 29, 2022, due to the negligence of the defendants. In his Verified Bill of Particulars, plaintiff alleged all nine (9) categories of "serious injury" within the meaning of Insurance Law § 5102(d). Among such allegations, plaintiff claimed the categories of: (1) death; (2) dismemberment, significant disfigurement, and fracture; and (3) loss of fetus. However, plaintiff was examined by defendants’ independent medical examination (IME) doctor, Jeffrey Passick, M.D., on August 6, 2024. During his IME, it was determined that plaintiff was a living adult biological male. As such, defendants moved for summary judgment dismissing the complaint on the ground that plaintiff failed to sustain a serious injury within the meaning of Insurance Law § 5102 (d). A hearing was scheduled on the issue of whether claiming all nine (9) categories of serious injury in the Verified Bill of Particulars constituted sanctionable conduct. A hearing to determine the foregoing was conducted on September 29, 2025.

During oral argument, the Court confronted plaintiff’s counsel and inquired about six (6) “clearly inapplicable” categories of serious injury. Plaintiff’s counsel attempted to explain the claims of all nine (9) categories of serious injury. Plaintiff's counsel indicated that a review of the alleged injuries listed before the claimed nine (9) serious injury categories, “one could discern that death was not applicable and neither were certain other categories.” Plaintiff’s counsel then apologized for listing all nine (9) categories. The Court did not find plaintiff’s counsel’s apology sincere due to his failure to explain why each of the categories were included. 

The Court suspected that all nine (9) may have been alleged “strategically” to compel defendants to expend time analyzing each one to establish that they were not applicable. Although the absence of death and lack of dismemberment would be obvious during plaintiff’s IME, “disproving significant disfigurement and a fracture would be a bit more laborious” and would require defendants’ IME doctor to closely examine plaintiff to detect the absence of a scar. Additionally, the Court considered plaintiff’s counsel’s “lack of seriousness” in preparing the Verified Bill of Particulars. Indolently claiming all nine (9) categories of serious injury “is a sham response to the demand for a bill of particulars and the command in CPLR 3043(a)(6).” Furthermore, the Court indicated that it is not possible for a plaintiff in a motor vehicle accident to have sustained all nine (9) categories of serious injury.  Counsel is required to analyze which categories are applicable and must be taken seriously. M&T Bank v Friedmann, 217 AD3d 934 [2d Dept 2023]; Manzo v Nealon, 18 AD3d 1043 [3d Dept 2005]; Brown v Bazin, 121 AD2d 422 [2d Dept 1986]; Gargano v Rosenthal, 100 AD2d 534 [2d Dept 1984].

As such, the Court imposed a sanction of $700 against plaintiff’s counsel, The Chernyy Law Office, P.C., payable to the New York State Lawyers' Fund for Client Protection.

 

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

 

09/08/25         Elite Insurance Company (Aviva) v. Borgatti Estate
Federal Court (trial level)
Coverage Must Be Considered by an Insurer Separate and Apart from the Liability Case; That When Faced with Facts That Could Lead to an Off-Coverage Position, the Insurer Must Inform Their Insured of That Possibility; Issue a Reservation of Rights Letter; Split the File; Retain Coverage Counsel and Defence Counsel with Separate Adjusting Teams within the Insurer Responding to Each Issue.

The Kawartha Lake region near Peterborough, Ontario rivals Musoka for the title of ‘cottage country’. Since Confederation, the well-to-do from Ontario and New York State came to the area where they built sturdy ‘cottages’, some with oak beams, pine floors, servants’ quarters and a shed for a cow, a few pigs and chickens. The Americans used to take the steam powered ferry from Rochester, N.Y. across Lake Ontario to Port Hope; then the Midland Railway to Lakefield, and finally the steamboat along the Trent-Severn Waterway to their cottages, that were principally on Ston(e)y Lake. (Some spell it without an ‘e’). Canadians from Toronto and Ottawa simply used the railway and the steamboats.

And so, generations of summering families came and went, summer in and summer out. Some came for the bass fishing, but others just came.  In this fashion the area became a fulcrum in the lives of these families which have included the families of Michael Douglas, Neil Young, Bob Gainey, Murray McLaughlin and Ronnie Hawkins.

Stoney Lake has also been the site of tragedy and that was the case on the evening of August 24, 2019. According to a Statement of Claim filed in the Ontario Superior Court by Damian De Laguardia, on that night, Kevin Koch was driving his father’s bass tracker fishing boat. Kevin had just picked up his friends Damian and Foster Matthews who had been together at the Matthews cottage at Young’s Bay. It was dark and Kevin had his navigation lights illuminated. Kevin was exiting Young’s Bay into Stoney Lake when it suddenly collided with another boat that was travelling “in the dark, without lights and in excess of 80 kilometres per hour.” Kevin, Foster and Damian were thrown into the water and each of them have alleged that they were severely injured.

The boat that hit them was a Triton RT21 bass fishing boat equipped with a 225 horsepower engine that was owned and driven by 31-year-old Neil Borgatti. Kristian (Chris) Brudek and Charles (Chuck) McCrie were on board that boat as passengers. According to Neil’s Facebook memorial page, they had been out fishing earlier that evening. Neil and Chris were killed and Chuck was injured.  Damian alleges that all three in the Borgatti boat had been drinking and were navigating using a phone app.

Six people involved. Two dead. Four injured.

Elite Insurance Company, managed by Aviva insured the Borgatti boat.

 

Handling by Aviva

Aviva received notice of the collision six days after it happened. An adjuster was appointed who started to gather witness statements and documents.

In September of 2019 – a month or so post collision – Aviva spoke with Chuck McCrie and had an expert inspect the Borgatti boat. The adjuster’s claims notes from that time indicate that some of the navigation lights on the Borgatti boat were broken before the collision.

In late August of 2020, Aviva disposed of the Borgatti boat.

On May 11 and June 30, 2020 – eight and nine months after receiving this information - Aviva paid out the Borgatti physical damage claim and paid accident benefits.

Between November 2, 2020 and June 21, 2021, the estates of those killed and those who were injured commenced individual actions against the owners and operators of both boats.

On November 24, 2020 (15 months post collision), Aviva received the Ontario Provincial Police Reconstruction Collision Report and within a week of that, a Coroner’s Investigation Statement and Report of Postmortem Examination and Toxicology for Neil Borgatti.

On December 11, 2020, Aviva’s adjuster informed the Defendants that Aviva would be appointing defence counsel early in 2021 to defend the actions that had by then been commenced against the Estate and that it had obtained a waiver of defence until the end of January 2021.

On February 12, 2021, Aviva sent a letter to the Borgatti Estate and to the litigants and estates of all those who had sued the Borgatti Estate that Neil Borgatti may have been in breach of the Safety Equipment Warranty under the Aviva policy and all rights were reserved. That warranty read, in material part, that the insured warrants that “..the insured watercraft is equipped with all of the safety equipment, including fire extinguishers, required by law and that all of the equipment is kept in good and efficient working order at all times.”

A week after issuing that letter, Aviva appointed counsel to defend the actions that had been filed against the Borgatti Estate.

 

Aviva’s Action for Non-Coverage

On November 1, 2023, Aviva began an action in Federal Court for a declaration that it had no obligation to defend nor indemnify the Borgatti Estate due to a breach of the Safety Equipment Warranty. That action alleges that at the time of the collision, Neil Borgatti was operating the insured boat “without any requisite lights or with lights that were not in a fit and proper working condition, including by using illumination from a fish finder and cell phone(s) as navigation lights.”

After filing that action, Aviva brought this application for summary judgment.

The evidence that Aviva relied upon in its application for summary judgment consisted of the OPP report and the Coroner’s Report which together stated that at the time of the collision, the Borgatti Vessel had no navigational light poles attached. Rather, following the collision those navigational light poles were found within the port side storage locker of Borgatti’s boat. The Coroner’s report states (which seems to be the evidence of Chuck McCrie) that Neil Borgatti had attempted to turn on the Borgatti Vessel’s navigation lights but could not get them to work. To make the boat visible, Neil turned the illuminated screen of the fish finder that was at the bow of the boat outwards and his two passengers held up their lighted cellphones.

The Borgatti Estate responded denying the requisite facts to apply the warranty; that Aviva cannot now deny coverage as it is estopped by its conduct.

 

The Judgment

The Court accepted the OPP and Coroner’s Report, which were central to Aviva’s case into evidence for the sole purpose of establishing when Aviva had knowledge of the facts that it raised to deny coverage but not for the truth of the statements in both reports.

The Court declined to rule on the issue of whether at the material time the alleged absence of navigational lights on the Borgatti boat placed Neil Borgatti in breach of the Safety Equipment Warranty as doing so would be prejudicial to the Estate’s liability position in the underlying lawsuits.

The sole issue was whether Aviva is entitled to rely upon the warranty at all – that the reservation of rights was issued ‘too late in the day’.

1. Waiver

The Defendants led evidence that Aviva had some information regarding the absence of navigation lights one month post collision when the Borgatti boat was inspected by its expert in the presence of Chuck McCrie. Thereafter, Aviva made the physical damage and accident benefits payments. There was significant argument before the court as to whether the payments constituted a waiver of the warranty. The Court declined to rule on the issue of waiver stating that it preferred “… to analyze the Defendants’ arguments through the estoppel framework that is more conventionally employed when an insured seeks to argue that it has been prejudiced by its insurer.”

ii)         Estoppel

The Defendants did not particularize whether they were relying upon promissory estoppel or estoppel by representation. The Court preferred to characterize their argument as one of promissory estoppel but noted that the analysis does not differ if it was a case of estoppel by representation. Both require:

(a)     a representation or conduct amounting to a representation intended to induce a course of conduct on the part of the person to whom the representation is made;

(b)     an act or omission resulting from the representation, whether actual or by conduct, by the person to whom the representation is made; and

(c)     detriment to such person as a consequence of the act or omission. Such representation must be unambiguous and unequivocal.

Aviva did not deny that it had some information that the navigation lights on the Borgatti boat were inadequate before it made the payments under the policy, but that its first concrete information was when it received the OPP and Coroner’s reports.

The Court stated “I agree with the Defendants that the information that Aviva had …[before it made the payments]… clearly indicated that the Borgatti Vessel was inadequately lit, because at least some of its navigation lights were broken or damaged (and indeed stowed) at the time of the Collision. I would not fault Aviva for continuing to investigate, to obtain greater detail surrounding the circumstances. However, as …[Aviva’s adjuster]… acknowledged in cross-examination, there was nothing precluding Aviva from issuing to the Defendants a reservation of rights letter at that juncture and then pursuing their investigation with the benefits of that reservation.”

The Court had no difficulty stating that the payments constituted a representation of full coverage that made with the intent that the Borgatti Estate would rely upon it.

The key issue here is whether there was sufficient evidence of detrimental reliance to establish estoppel. There was no “meaningful submissions” or evidence of the alleged emotional toll that the denial placed on Neil Borgatti’s relatives and the alleged possible need of Neil’s mother to postpone a planned retirement to have the funds to deal with the potential liability flowing from the collision. What the Court did find was that as Aviva disposed of the Borgatti boat before the coverage issue was raised, the Estate was precluded from gathering potential evidence to refute Aviva’s allegation that the Safety Equipment Warranty had been breached. The Court stated “I accept that it is possible that a better understanding of why and when the lights failed, resulting from an opportunity to inspect the physical evidence, could have been relevant to…” an analysis of liability.

Accordingly, the Court held that by the time Aviva issued its Reservation of Rights letter, it was estopped from relying upon the Safety Equipment Warranty to deny coverage to the Borgatti Estate. Aviva’s motion for summary judgment was denied. The Estate received an award of $15,000 in court costs.

 

Comment

The facts of this case were related in detail to drive home that coverage must be considered by an insurer separate and apart from the liability case; that when faced with facts that could lead to an off-coverage position, Aviva ought to have informed their insured of that possibility; issued a reservation of rights letter; split the file; retained coverage counsel and defence counsel with separate adjusting teams within Aviva so that the coverage investigation could proceed sheltered from argument that Aviva was acting contrary to its insured’s interests.

 

© Hurwitz Fine P.C. 2025
All rights reserved