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News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Lack Of Inspection Records Found Fatal To New York Notice Defense (NY) February 25, 2022 < Back Share to: The ability of a New York premises liability defendant to pursue a notice defense may depend on the timing and evidence of property inspections. In Argueta v. 3251 Third Ave. LLC, the Supreme Court, Bronx County recently addressed this issue in a case where plaintiff was injured after being hit by a falling ceiling tile. The defendant moved for summary judgment, arguing that it did not have notice of a problem with the ceiling. In addressing the notice defense, the court stated: “To meet its initial burden on the issue of lack of constructive notice, the defendant must "offer some evidence as to when the area in question was last inspected relative to the [accident]" (citing Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598 [2nd Dept 2008]). The court ultimately found that the defendant could not meet its burden as it did not have any maintenance records for two years before the accident and failed to proffer evidence from someone with personal knowledge as to when the ceiling was last inspected. As such, the court held that defendant failed to establish that it did not have constructive notice of the allegedly dangerous condition and the motion for summary judgment was denied. The Argueta decision highlights the need for New York property owners to conduct regular property inspections and maintain inspection and maintenance records. The failure to do so can result in the loss of a notice defense in a premises liability action. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News NY Appellate Court Upholds Assumption of Risk Doctrine August 20, 2009 < Back Share to: The First Department recently upheld the long-standing doctrine of assumption of risk in Nutley v. SkyDive the Ranch. In Nutley, the plaintiff was skydiving when the main parachute failed to open during a tandem sky dive. Although the lower court denied the defendant’s motion for summary judgment, the appellate court reversed and held that the plaintiff assumed those risks inherent in skydiving and failed to raise an issue of fact as to whether SkyDive acted negligently so as to create a unique and dangerous condition beyond those inherent in the sport. Thanks to Lora Gleicher for her contribution to this submission. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06153.htm Previous Next Contact

News Stinky Cheese Under Attack! February 7, 2011 < Back Share to: < ![CDATA[Stinky Cheese Under Attack!]]> Previous Next Contact

News Plaintiff Fails to File Proper Notice under Torts Claims Act is Fatal December 2, 2016 < Back Share to: At Wade Clark Mulcahy, we often defend cases against public entities. The New Jersey Torts Claims Act requires a claimant to file a notice of claim against a public entity within ninety (90) days of the incident. The case of Pressley v. Borough of Pine Hill affirms how important it is for defense counsel to request and analyze a copy of any notice of claim filed by a plaintiff to determine whether it meets the requirements of the Torts Claims Act. In December, 2013, a Borough of Pine Hill vehicle hit Exia Monroe’s car. At the time, her boyfriend, Gregory Pressley was driving the car. The day after the accident, Monroe contacted the borough, and filled out a notice of claim, listing herself as the claimant. In the body of the notice, she referenced her boyfriend, but was not listed as a claimant. Five days after the ninety (90) day deadline, plaintiff sent a second notice solely his behalf, which was rejected by the Borough. In February, 2015, over one year after the accident, plaintiff filed a motion seeking to file a late notice of Tort Claim. In his motion, plaintiff argued that the Borough had actual notice of the accident, and that the Notice of Claim filed five days late demonstrated substantial compliance with the statute. The Judge denied the motion. On appeal, the plaintiff again argued that his he substantially complied with the statute by filing his notice five days late. He also argued, for the first time ever, that the first notice of claim filed by girlfriend was also filed on his behalf. The Appellate Court upheld the trial court’s decision, finding that 1) the plaintiff’s failure to file a motion for leave to a late notice of claim within one year was fatal to his claim, and 2) plaintiff waived the argument that the first notice of claim filed by Monroe was filed on his behalf, since he failed to raise that point in his original motion papers. Thanks to Healther Aquino for her contribution to this post.             Previous Next Contact

News Controversy Surrounds Art Hunter's Quest for Nazi Seized Art April 6, 2012 < Back Share to: Baron Ferenc Hatvany, a member of Hungary’s richest families, was a noted art collector who, like many others, was forced to relinquish his collection to the Nazi’s during World War II. Most of the collection remains missing, but an interesting story has emerged involving a Viennese art historian, Burkhart List, who is going to lead an expedition into an old silver mine in the Erzgebirge Mountains, near the Czech-German border, where he believes over 150 works from the collection have been stashed -- which could be worth in the neighborhood of $800 million. But according to ARTINFO, controversy has emerged because List is not acting for the Hatvany family or its foundation. List claims he is not in it for the money, but skeptics claim he is acting with the son of a former lawyer for the Hatvanys, who believes he has a claim on any newly-discovered art. It will be interesting to see how this tale plays out. If you would like more information, please write to Mike Bono at mbono@wcmlaw.com . Previous Next Contact

News Legal Malpractice Claims Barred Business Enterprise/Pursuits Exclusions January 17, 2013 < Back Share to: Professional liability policies are designed to cover errors and omissions committed by professional while providing or failing to provide services on behalf of their firms. Sounds simple enough. Problems arise when attorneys -or other professionals – act in different capacities, sometimes providing legal advice while at others offering business judgments or acting as “deal makers” for fledgling businesses. In Abrams, Fensterman, et al. v. Underwriters At Lloyd’s, London, a partner and his law firm found themselves in a real pickle over some business transactions that went bad. The underlying complaint alleged that the partner committed legal malpractice and engaged in fraudulent conduct when he induced the underlying plaintiffs to invest in a business formed to underwrite and sell insurance products. According to the disgruntled investors, when their seed money went missing, the law firm defendants falsely claimed that it was stolen by members of a royal family in the United Arab Emirates. Given the allegations of legal malpractice, the law firm defendants sought a defense and indemnification from their malpractice insurer. After some initial fact gathering, the insurer denied coverage citing two key policy exclusions commonly called the “business pursuits” and “business enterprise” exclusions. Closely aligned, these exclusions bar coverage for any claims arising out of or in connection with (1) a business “controlled, operated or managed by any insured” or (2) an insured’s activities as “a trustee, partner, officer, director or employee of a business " other than his law firm. Given the attorneys' alleged involvement in the formation, capitalization and management of the business venture, the court upheld the insurer's denial of coverage. Abrams, Fensterman reinforces that most professional liability policies seek to avoid assuming additional risk where an attorney “so intermingles his business relationships with his law practice” that the line between the two is blurred. When timely invoked, the courts will uphold those exclusions. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Disclaimer: This post is not intended to express any opinion on the merits of the allegations in the underlying lawsuit, which may or may not have any merit.   Previous Next Contact

News Soccer Game Spectator's Recovery Barred By Assumption of Risk July 6, 2009 < Back Share to: The plaintiff, a spectator at a soccer game, brought suit against Nassau County and a soccer league for injuries she sustained when a soccer player kicked her as she watched a game. The plaintiff was standing roughly three feet from the out of bounds line. The league provided bleachers for spectators and had security guards on hand enforcing the league policy barring spectators from standing on the sidelines. The court granted the defendants' motion for summary judgment because the plaintiff chose to stand near the sidelines even though she witnessed players chase the ball after it went of bounds on at least three times prior to her accident. The court held that the plaintiff placed herself in close proximity to the field of play despite observing the precise risks that caused her accident and despite the fact that the league provided her with a safe alternative place to watch the game. Therefore, applying the doctrine of assumption of the risk, the plaintiff's recovery is barred. Thanks to Maju Varghese for his contribution to this post. Previous Next Contact

News Police Escort in Funeral Procession Does Not Trigger "Emergency Doctrine" Defense (NY) January 10, 2019 < Back Share to: In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection. The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter. The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency. This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.) Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Long Island Insurance Fraudster pleads Guilty March 22, 2013 < Back Share to: Insurance claim professionals have all experienced situations where litigation costs and the risks of trial have necessitated settlements with plaintiffs and claimants who were, lets say, less than 100% credible. Every now and again, its nice to see a fraudulent claimant get his comeuppance. Richard Roth, a Nassau County resident, tried to collect on a $500,000 life insurance policy by faking his own death. His son reported him missing this past summer, and a massive search began. As is often said in the world of law enforcement, a detective's best friend is a dumb criminal, and Roth certainly qualifies. His entire scheme was documented in email correspondence with his son, resulting in recent capture, extradition to New York, and yesterday's plea in Nassau County Court. He faces 15 years in jail, but will likely receive a lesser jail term, along with probation and restitution to the county. Interestingly, when asked outside court whether he planned to apologize, Roth replied, "Apologize to who?" First, Mr. Roth, it's "to whom." Second, how about apologizing to your neighbors, friends, family as well as strangers - in other words, everyone - whose insurance premiums are all higher than they would otherwise be, because of the costs of investigating fraud perpetrators just like you. Roth may have convinced himself that this was a victimless crime, but insurance fraud affects everyone. Special thanks to Brian Gibbons for this contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Avoiding Liability in Rear-End Collisions May 17, 2016 < Back Share to: Generally, a rear-end collision with a stopped vehicle creates a prima facie showing of negligence on the part of the rear driver. Defendants can rebut the presumption of negligence where the rear end collision was the result of a sudden emergency. The “emergency doctrine” recognizes that where a defendant driver rear-ends another vehicle because of a sudden and unavoidable emergency, the defendant driver may not be negligent if his actions are reasonable and prudent in the context of an emergency. In Maisonet v. Roman, plaintiff sustained personal injuries when defendant’s vehicle struck the rear of his vehicle. After defendants served their answer, the plaintiff moved for partial summary judgment on liability, arguing that because he was hit in the rear, he was entitled to judgment against the defendants as a matter of law. In opposition, defendants argued that they had a valid emergency doctrine defense. The defendant driver submitted an affidavit explaining that to avoid a head on collision with another vehicle that had cut him off, he was forced to swerve to his left, causing him to strike the back of the plaintiff’s vehicle. The lower court granted plaintiff’s motion, and on appeal, the First Department reversed and denied plaintiff summary judgment. The Court opined that the facts viewed in a light most favorable to defendants were sufficient to raise triable issues of fact “as to the existence of an emergency and the reasonableness of defendant driver’s response to that emergency.” The Court further explained that the emergency doctrine may protect a driver from liability where the driver, through no fault of his or her own, is required to take immediate action in order to avoid being suddenly cut off. In defending rear-end motor vehicle accidents, defendants should be cognizant of the emergency doctrine defense. If the defendant driver faced any type of emergency immediately prior to the collision, this could constitute an emergency and a viable defense. At the very least, defense counsel should consider the emergency doctrine as a defense to a plaintiff’s summary judgment motion on liability. Thanks to Jeremy Seeman for his contribution to this post.   Previous Next Contact

News Clarification of insurer’s burden on defense for material misrepresentations. February 23, 2009 < Back Share to: In Rafi v. Rutgers Cas. Ins. Co., the insurer declined to pay insured's claim for losses due to material misrepresentations made by the insured. The insured filed a breach of contract action and, following a jury trial, judgment was entered in favor of the insured. On appeal, New York’s Appellate Division, Fourth Department, ruled that the trial court committed reversible error by charging the jury that the insurer was required to prove that the alleged misrepresentations were intentional. The appellate court held that, if a misrepresentation is material, it can void a policy regardless of the insured’s intent. In order to prevail on a material misrepresentation defense, an insurer is required to submit evidence that it would not have issued the same policy had the correct information been included in the application. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00905.htm Previous Next Contact