Automobile

Defendants Provide Non-Negligent Explanation

In Bello v. Masters Auto Collision of Long Is., Inc., the Second Department recently addressed whether the defendants were not at fault in the subject car accident. The plaintiff was a passenger in a vehicle driven by co-defendant Alcantar which allegedly struck the rear of a vehicle owned by defendant Masters Auto and operated by defendant Mendez. Masters Auto and Mendez moved for summary judgment dismissing the complaint. The Court set forth that a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle. Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the operator of the rear vehicle. In turn, to rebut the inference of negligence, that operator is required to provide a nonnegligent explanation for the collision. Master Auto and Mendez established that they were struck in the rear when stopped in traffic, and as such were not at fault. This decision serves as a reminder the burden a party has when involved in a rear-end collision. Thanks to Corey Morgenstern for his contribution to this article. Should you have any questions, please contact Andrew Gibbs.Read More

Punitive Damages Denied In Red Light Auto Case (PA)

In Koch v. Lawson, 2023 U.S. Dist. Lexis 65802, 2023 WL 2923139, a Pennsylvania Court held that simply driving through a red light did not rise to the level to warrant punitive damages. In Pennsylvania, punitive damages are proper, “when a person’s actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.”  In order to seek punitive damages, a plaintiff must aver facts in his complaint and not mere conclusions. The Plaintiff sought punitive damages after sustaining serious and permanent injuries when a tractor and trailer ran a red light a struck the Plaintiff’s vehicle. The Plaintiff alleged that the truck driver violated many traffic laws, including driving while being distracted or fatigued and falling asleep while driving. The Plaintiff failed to plead in his fact section of his complaint that the trucker driver was asleep at the wheel instead it only alleges that the truck driver violated traffic law. The court held that at most the Plaintiff only alleged that the truck driver failed to comply with traffic laws, and that is insufficient for punitive damages. Thanks to Jean Scanlan for her contribution to this article.  Should you have any questions, please contact Tom Bracken.Read More

PIP Coverage is Subject to Full Payment in NJ

In a recent New Jersey Appellate Division decision, the court ruled on the application of the statutorily mandated PIP limits. Birmingham v. Travelers New Jersey Ins. Co., 2023 WL 2719287 (N.J. Super. Ct. App. Div. 2023). In Birmingham v. Travelers New Jersey Ins, the insurer Travelers appealed the lower court’s decision to enforce Traveler’s obligation to provided PIP coverage with no reduction of the deductibles or copay obligations.

Both insureds sustained injuries in separate automobile accidents and sought PIP coverage from Travelers to cover medical expenses. Travelers issued policies to both insureds including a $15,000 PIP coverage with a $2,500 deductible and a 20% percent copayment obligation. Travelers later provided PIP coverage to both insureds, reducing the coverage amount by the respective deductibles and copay obligations.

Court noted that “nothing in the policies’ declaration pages, coverage grants or exclusions clearly communicated to either plaintiff that their statutorily mandated PIP limits of liability in either policy would be reduced by the amount of their chosen deductibles.” The lack of clarity resulted in the court’s decision that Travelers was obligated to pay the full limit of coverage with no reduction.

Specifically, Travelers instructed its insured under the “Limits of Liability” provision in the PIP section of the policy that “any amounts payable for medical expense benefits as a result of any one accident shall be: [r]educed by the $250 statutory deductible” or shall be “reduced only by the optional deductible” and are “[s]ubject to a copayment of [twenty percent] for the amount between the deductible that applies and $5,000.” However, the court was not convinced that such language alone was sufficient in informing the insureds that the limit of liability will be impaired.

Thanks to Yifan Lin for her contribution to this post. Please contact Heather Aquino with any questions.

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Appellate Court Upholds Defense Verdict In Left Turn Case (PA)

In Wilmer v. Bethman, the Superior Court upheld a defense verdict in a case arising from a familiar scenario – a driver attempting to make a left turn is involved in a accident when a second driver coming from the opposite direction pauses and “waives” the first driver through, resulting in a collision with an unseen vehicle passing to the right of the second driver. Plaintiff was driving eastbound on Street Road, which has two lanes of traffic in each direction.  Bethman pulled into a separate left turning lane in preparation for entering a housing development across the road.  She stopped in the turning lane and waited for westbound traffic to stop.  The driver of the car in the westbound turning lane, a police officer, stopped, left a gap, and made a gesture indicating that Bethman should proceed.  Bethman waited one second to make sure that the car had stopped.  The officer’s car blocked Bethman’s view of the second westbound lane until she began her turn.  Bethman successfully turned into the first westbound lane.  As she was entering the housing development after crossing over the second westbound lane, a van in which Kristine Wilmer was traveling struck the rear passenger side of Bethman’s car.  Wilmer was in the front passenger seat of the van when the collision occurred.  She suffered facial injuries when the airbag deployed. Wilmer sued Bethman for her injuries resulting from the collision, and the case proceeded to a jury trial.  At the conclusion of her case, Bethman moved for judgment as a matter of law, asserting that Wilmer had violated Section 3322 of the Pennsylvania Motor Vehicle Code governing left turns, and was therefore negligent per se.  The trial court denied Wilmer’s motion.  At the close of Bethman’s case, Wilmer moved for a directed verdict on the same grounds.  The court denied the motion.  Wilmer then requested a jury instruction on negligence based on the alleged violation of the left turn statute, and requested that the jury not be charged separately on negligence.  The court denied Wilmer’s requests, but in its closing instruction, the court instructed the jury on both negligence and negligence per se. The jury found Bethman was not negligent, and Wilmer moved for judgment notwithstanding the verdict.  The court denied that motion and Wilmer’s post trial motion, and she appealed to Superior Court.  On appeal, the Superior Court focused primarily on the issue of negligence per se.  To prove negligence per se, a plaintiff must demonstrate: (1) the existence of a statute designed at least in part to protect the interests of a group of individuals, as opposed to the public generally; (2) the clear application of the statute to the defendant’s conduct; (3) the defendant’s violation of the statute; and (4) that the violation was the proximate cause of plaintiff’s injuries. The Superior Court found no abuse of discretion in trial court’s conclusion that the evidence was sufficient to permit the jury to conclude that Bethman acted reasonably and waited until she thought it was safe to proceed and was therefore not negligent.  Wilmer presented no evidence about the distance between the van in which she was riding and Bethman’s car when it turned left.  Thus, there was no evidence that Bethman violated the left turn statute by failing to yield the right-of-way to a vehicle that was so close as to constitute a hazard, and no evidence that a statutory violation caused the accident.  Wilmer did not see the collision.  She did not present any evidence that the van in which she was riding had a green light, was following the speed limit, or remained it its lane, leaving open the possibility that the van’s driver was contributorily or comparatively negligent and partially responsible for the collision.  Although Wilmer claimed that Bethman failed to look as she entered the intersection, Bethman testified without contradiction that she did look for oncoming traffic.  Wilmer did not prove that Bethman failed to signal her turn.  Interestingly, Wilmer failed to introduce into evidence the ticket that Bethman paid, and failed to cite authority for the proposition that issuance of the ticket alone establish negligence per se.  The opinion does not indicate the grounds for the ticket that Bethman received. This case stands for the proposition than a plaintiff must establish all elements to prove negligence per se, and not merely assume the a collision with a vehicle making a left turn will invariably result in liability on the part of the turning driver.  Though the opinion did not address the ramifications of the failure to introduce evidence of payment of the traffic ticket, it seems likely that payment of any ticket would effectively be a guilty plea which would have established violation of the statute, thereby justifying a finding of negligence per se. Thanks to James Scott for his assistance with this article.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Sudden And Unexpected Circumstances In Motor Vehicle Accident Alleviates Defendant’s Liability (NY)

New York courts recognize the emergency doctrine as a defense to certain New York tort actions, depending on the circumstances. The doctrine holds that where a driver is faced with a sudden and unexpected circumstance, not of their own doing, leaving them with little or no time for reflection and forcing them to make a quick decision without waiving alternatives, the driver’s actions may not be negligent if their actions are reasonable under the circumstances of the emergency. The Appellate Division, Second Department recently addressed the emergency doctrine in Lizares v. Conklin. That case involved a multi-vehicle accident in which defendant’s vehicle hit plaintiff’s vehicle from behind, causing plaintiff’s vehicle to cross the double yellow line and strike a third vehicle. The third vehicle then struck a fourth vehicle. Plaintiff sued the three other drivers for negligence. The driver of the third vehicle cross-moved for summary judgment pursuant to the emergency doctrine, submitting deposition transcripts to establish that plaintiff’s vehicle was propelled into her vehicle within one second of the initial rear end collision. The Court stated that a “driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic, and such event constitutes a classic emergency situation, thus implicating the emergency doctrine” not of her own making, leaving her with no opportunity to avoid the collision. Since it found that an emergency existed and the driver acted reasonably with no opportunity to think, the court dismissed plaintiff’s complaint against the third driver. The takeaway from the Lizares case is that automobile accident lawsuit defendants should assert and pursue a defense based on the emergency doctrine where the accident involved sudden and unexpected circumstances in which the driver had no time to react or avoid a collision. Summary judgment should be pursued in cases where the facts are clear. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Graves Amendment Immunity Denied To Auto Company If Liability Not Completely Based On Ownership (PA)

In the recent case of Burns v. Shama Express LLC, The United States District Court for the Western District of Pennsylvania found the Graves Amendment to the Safe, Accountable Flexible and Efficient Transportation Equity Action of 2004 is inapplicable when the liability attempting to be placed on an automobile company is grounded, even in part, in any basis other than ownership. Burns involves an automobile-trucking collision resulting in death of Plaintiff for negligence and negligent infliction of emotional distress, under Pennsylvania’s Wrongful Death and Survival Acts. Bowman owned the subject-truck that allegedly caused the accident. Plaintiff alleged, in part, that Bowman through its “employees, servants, or agents,” breached its duty, as the owner and operator of the subject-truck, “to be alert and maintain control of the vehicle,” and that Bowman negligently trained its truck operators. Bowman filed a Motion to Dismiss arguing that its only involvement in the underlying events was that it leased the subject-truck, months before the incident took place, and was therefore immune from vicarious liability under the Graves Amendment.  The Graves Amendment provides: (a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if— (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C. § 30106. The magistrate determined that “[b]ecause plaintiff had sufficiently alleged, at this initial stage, that Bowman was negligent, the Graves Amendment cannot serve as a basis for immunity.” The court ultimately adopted the magistrate’s Report and Recommendation and dismissed the Motion to Dismiss. Burns is a cautionary tale for defendants engaged in the trade or business of renting or leasing motor vehicles. It makes clear that Graves Amendment immunity from liability is only applicable to liability grounded exclusively in ownership; on the other hand, vehicle owners who themselves, or through agents, engage in negligence, are not protected by the Amendment. Thanks to Stephen Kerstein for his assistance in this post.  Should you have any questions, please feel free to contact Tom Bracken.Read More

Eyewitness Accounts Of A Rear-End Motor Vehicle Accident Ignored In Summary Judgment Motion (NY)

Recent case law regarding rear-end motor vehicle collisions highly favors the front most car.  It is increasingly difficult to dispute liability and defense counsel are typically left mitigating damages. This has been re-affirmed by a recent Second Department decision,  An v. Abbate, 2023 NY Slip Op 00977, where the lower court’s decision was overturned and summary judgment was granted in favor of plaintiff. While, it comes to no surprise to some that plaintiff was awarded summary judgment on the issue of liability, what is surprising is what plaintiff was able to overcome in obtaining judgment in their favor. The accident occurred on Roosevelt Avenue near 154^th Street in Queens. It appeared to be standard rear-end collision, plaintiff claimed to be fully stopped, and defendant’s vehicle came into contact with the rear bumper. However, Defendant Abbate was able to obtain an affidavit of an eyewitness who swore that while defendant was driving forward, he witnessed plaintiff’s vehicle go in reverse and back up before the two vehicles made contact.  Despite this eyewitness affidavit, the Second Department overturned the lower court’s grant of summary judgment to defendant on the issue of liability and specifically stated that the eyewitness account “that the plaintiff’s vehicle was backing up at the same time was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault.” (An v. Abbate, 2023 NY Slip Op 00977 citing Rodriguez v City of New York, 31 NY3d at 323-324; Whitehead v David Rosen Bakery Supplies, Inc., 208 AD3d 533). Thus, courts are bending over backward to permit plaintiffs get their cases to a jury, and even ignore eyewitness accounts. Thanks to Christopher Palmieri for his assistance with this post.  Should you have any questions, please contact Tom Bracken.Read More

Medical Evidence Key To Establishing “Serious Injury” Defense Under New York Insurance Law §5102(d) (NY)

Article 51 of the New York Insurance Law generally requires that a plaintiff in a personal injury lawsuit arising from negligent use or operation of a motor vehicle must show that he or she suffered a “serious injury.” New York Insurance Law § 5102(d) lays out what types of injuries will be deemed sufficiently “serious” for the plaintiff to pursue money damages. The Appellate Division, Second Department recently addressed these issues in a pair of cases. In Leon v. Eagle Auto Mall Corp., the plaintiff sought to recover damages for personal injuries allegedly sustained in a car accident. The defendants moved for summary judgment on the grounds that the plaintiff did not sustain a “serious injury” within the meaning of Insurance Law § 5102(d) and the lower court granted the motion. The Second Department affirmed, holding that the defendants submitted competent medical evidence establishing that the alleged neck, back and shoulder injuries did not constitute “serious injuries” under either the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d). The Court noted that the defendants showed that following plaintiff’s accident, he was found to have no broken bones and MRI scans showed no evidence of abnormalities or disc herniations in plaintiff’s spine. Finally, plaintiff’s IME revealed no causally related neurological injuries as a result of plaintiff’s accident. In Malik v. Turcios, the plaintiff also sought to recover damages for personal injuries allegedly sustained in a car accident and the trial court granted defendants’ summary judgment motion on the grounds that the plaintiff did not sustain a serious injury under § 5102(d). The Second Department also affirmed that decision, holding that while plaintiff had submitted a physician’s Affidavit stating that her injuries were permanent and a result of the subject accident, the defendants’ medical evidence established that the alleged shoulder injury did not constitute a “serious injury” under either the permanent consequential limitation of use or significant limitation of use categories of § 5102(d). The Court found that the evidence, including prior MRIs and deposition testimony, established that the alleged neck and back injuries were preexisting and not caused by the subject accident. Finally, the Court held that the other injuries claimed by plaintiff were mild and did raise to the level of “serious injury” under § 5102(d). These decisions highlight the importance of carefully reviewing a plaintiff’s medical records and history to determine the severity of the alleged injuries and whether any of the injuries are pre-existing. Defendants should consider pursuing a “serious injury” defense under § 5102(d) if the alleged injuries are pre-existing and the records do not show objective evidence of a permanent injury or significant limitation of use. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions.Read More

Middle Car In “Chain Collision” Can Escape On Summary Judgment

Defending a rear-end collision when plaintiff is in a stopped car can be difficult, the cards are stacked against you and generally speaking, so is the law. Plaintiff only needs to establish that they were stopped as prima facie showing that the operator of the rear vehicle was negligent. However, the Second Department has recently held that, the same rules do not apply for a “middle” car in an accordion accident. In the matter of Liya Robinson v. New York City Transit Authority and Ghilan Noman Ali, 2023 N.Y. Slip Op 00683, Ms. Robinson brought suit to recover for personal injuries resulting from a multiple car pileup. Here, Ms. Robinson was sitting at a red light, when a New York City Bus struck her from the rear, resulting in two other cars being struck. Ms. Robinson brought suit against the NYCTA, as well as the drivers of the two vehicles in front of her. While it may seem clear that the two front vehicles would have no liability in such an action, and in fact summary judgment was held awarded in their favor, the court widened its holding, specifically stating that “in a chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead when it was struck from behind by the rear vehicle and propelled into the lead vehicle.” Id., citing Nicola v Nicolas, 208 AD3d 791, 793. Thus, the mere fact that the insured was in a rear-end collision and was not the lead, is not dispositive of the action. In fact, if they were in the middle of the collision, they may be able to successfully obtain summary judgment and share no liability whatsoever. Thanks to Christopher Palmieri for his assistance in this post.  Should you have any questions, please contact Tom Bracken.Read More

Is Being Free Of Fault Necessary To Be Awarded Summary Judgment On Liability In An Automobile Case? (NY)

Though automobile accidents, large and small, are things we try to avoid at all costs, sometimes they do happen. If there is competing testimony in a case as to how a car accident did happen, summary judgment on liability may be ruled out. Recently, in Golovnya v. Artemchenko, 210 A.D.3d, (2d Dep’t November 30, 2022), a defendant, who was awarded summary judgment on liability by the lower court, had it taken away on appeal for failing to establish, prima facie, entitlement to judgment as a matter of law because she did not demonstrate freedom from fault in the happening of the accident. The Court reasoned that proximate causation could only be decided as a matter of law when only one conclusion could be reached from the facts. Here, the Court considered the deposition testimony of the plaintiff and defendant which illustrated conflicting explanations of the accident. Such conflicting explanations pointed to the possibility of more than one proximate cause of the accident, and it is the task of the trier of fact to determine the issue of proximate cause. It was in light of the “conflicting testimony regarding the manner in which the accident occurred” that the defendant failed to eliminate triable issues of fact. Neither party was awarded summary judgment on the issue of liability. This case is a reminder of the importance of the element of proximate causation, comparative negligence, and factual particularity. Please contact John Diffley for questions about this article.Read More