New York's Excellence Initiative – Impact on Defendants
A few weeks ago, the Court of Appeals, the highest Court in New York, issued its Excellence Initiative 2018 Annual Report.
As the mission statement lays out, Chief J. DiFiore’s goal is to improve “just and expeditious resolution of all matters,” which she considers a core obligation of the Court system. Now, “just resolutions” are near impossible to measure, since every case involves different facts and applications of law. But “expeditious resolutions” are measurable through statistics, factoring in the age of cases and resolution percentages. And the remainder of the annual report focuses on the “expeditious” half of the mission statement. The report contains no category for “just resolutions,” but rather, categories, focuses on the following categories for civil cases:
- New Cases Filed
- Cases Disposed
- Pending Cases
- Over S & G (Cases over the “standard and goals” date, meaning they are old cases.)
The substance of the annual report relays, county by county, the age of cases, and percentage upticks in pleas and settlements, including criminal, landlord-tenant, matrimonial, foreclosures, and civil cases. Notably, there is a specific reference to fast-track programs for “insurance company cases.” While the Court does not elaborate on why “insurance company cases” get their own category, the title of the category sends a clear message: These case, in particular, are being fast-tracked for resolution. And the fact that the Court refers to what are, presumably, personal injury cases, as “insurance company cases” offers some insight as to how the COA views them: as cases that need to be settled sooner rather than later.
We have seen this in practice, where Courts have sent cases out for trial, even though summary judgment motions are pending. The theory seems to be, that if insurers are forced to trial, settlements will increase, backlogs will decrease, the and the Excellence Initiative will be a success.
To those of us in the casualty arena, we’re facing something of a stacked deck. Even defensible cases entail of risk and uncertainty when presented to a jury, especially if the plaintiff can engender sympathy. And the Courts seem inclined to press this risk, and even increase it, to induce mediated settlements, merits be damned.
The question, then, is: how do we, on the defense side, address this resolution imperative from Albany? The answer is nuanced. We should be prepared for added Court scrutiny and settlement pushes, especially as trial approaches, and should not be surprised when settlement conferences seem more like one-way sieges than two-way meditations.
But should not, and will not, recommend being bullied into settlements that simply do not make sense. We have all dealt with cases where a plaintiff’s monetary demand exceeds our worst-case scenario. These cases must sometimes be tried, and also, the handling attorneys (and claim professionals, if necessary) should be prepared to address Court inquiries, and outline why we are not meeting, or even approaching, plaintiff’s demand.
The Court’s incentive to move backlogged calendars and “get the freeway moving” is well-intentioned. But so are our claims and defense practices. Just as we cannot force plaintiffs into accepting modest settlements, Courts cannot force defendants into paying unreasonable case values — even on “insurance company cases.” The message remains: Be prepared for the added scrutiny under the Excellence Initiative, but stick to our guns! Please email Brian Gibbons with any questions.