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Recap of Favorable Decisions and
Results Obtained by White, Fleischner & Fino, LLP in
2009
We are pleased to report that 2009 was another
successful year for our firm.
New York Cases
Federal Court:
In
National Railroad Passenger Corp. v. Steadfast Insurance Company (United
States District Court, Southern District of New York), Amtrak
sued Steadfast for coverage under two Railroad Protective
Policies. The
underlying lawsuits arose out of an accident that occurred
while Amtrak
was operating a rail-crane at one job location (not covered by
Steadfast), the rail-crane lost its breaks, careened down a
hill, and ran into a separate, unrelated job location that
just coincidentally happened to be covered by the Steadfast
policy.
The
runaway crane ran into five workers who were very seriously
injured. The Steadfast Railroad Protective
Polices provided that Steadfast would pay those sums for which
it was legally obligated to pay as damages when the damages
“arise out of acts or omissions at the job location”,
and which were related to or were in connection with the work
by Amtrak’s designated contractors”.
The court held that Steadfast’s coverage obligations toward Amtrak were
not triggered merely because the injuries took place at the
job location designated in the Steadfast Policies.
Instead, the court ruled that the scope of coverage for
these very specialized kinds of policies was limited, and was
triggered only if, as indicated in the insuring agreement, the
accident arose out
of acts or omissions at the job location.
In Zurich
American Ins. Co. v. Felipe Grimberg Fine Art, 324 Fed. Appx.
117, (2d Cir. 2009), the U.S. District Court for the
Southern District of New York granted summary judgment in
favor of our client, plaintiff insurance company, with respect
to the defendant gallery owners’ claim for insurance
coverage for the loss of a certain painting. The art
gallery-insured appealed.
On behalf of Zurich,
we argued that the painting at issue had been sold by the
gallery prior to the loss, and thus was not
"property" of the insured covered under the terms of
the policy. The insured argued that its voluntary transfer of
the painting to an art dealer was voidable because it had been
procured through larceny by false promise.
We contended that assuming UCC 2-403, which
pertains to the rights of good faith purchasers for value, had
any applicability here, its rule was only that a transfer
could be voidable if the delivery was procured through fraud
punishable as larcenous under the criminal law. While void
titles could be collaterally attacked, merely voidable titles
could only be challenged in direct actions against a record
titleholder to have his title declared invalid.
Accordingly, we
asserted that here, even if the gallery’s title to the
painting was voidable, it could not have it declared
void/invalid ab initio in the instant proceeding.
The Second Circuit agreed, and affirmed the award of
summary judgment in Zurich American’s favor.
In Cousin v. White Castle System, Inc., 2009
U.S. Dist. Lexis 57079 (E.D.N.Y. 2009), a slip and
fall action, we obtained summary judgment on behalf of White
Castle, on the grounds that the surveillance video from the
accident date established that the plaintiff’s account of
the accident was incredible as a matter of law, and that White
Castle, in any event, did not have either actual or
constructive notice of any slippery condition on the floor of
its restaurant. In granting summary judgment, the court accepted our
contention that the plaintiff’s theory that White Castle
somehow created the puddle she allegedly slipped on, was based
upon sheer speculation and conjecture.
In
J&M Spirit Wear, Inc. v. IAT Ins. Co., (S.D.N.Y. 2009), our office obtained numerous favorable rulings in
this coverage action arising out of the plaintiff’s
(defendant IAT’s insured) alleged copyright infringement,
trademark infringement, false advertising, and unfair
competition. In the underlying Complaint, the plaintiff
clothing manufacturer alleged infringement of copyrights on
various two-dimensional designs ("Varsity Designs")
used on cheerleading apparel and in catalog photographs.
The underlying plaintiffs also alleged that defendants
(IAT’s insured) had used their “MOTIONFLEX” mark in
violation of the Lanham Act.
In
addition, the underlying plaintiffs asserted claims for false
advertising and unfair competition arising from the same set
of underlying facts. By way of this lawsuit plaintiff sought
to enjoin defendants from manufacturing or offering for sale
or selling any product or article bearing the Varsity Designs
logos and from using the "MOTIONFLEX" mark. The
underlying plaintiffs also sought an award of money damages
and other relief.
In this companion coverage action, the most notable ruling we obtained in
favor of IAT this year is that IAT does not have to pay for
J&M's defense against the underlying claims by Varsity. The court ruled in IAT’s favor with respect to the language
of the policy’s “Special Endorsement”, and its
applicability to the underlying causes of action, which meant
that the policy’s separate exclusion, which precludes
coverage for claims arising out of the infringement of
copyright, patent, trademark, trade name, trade dress, trade
secret, or other intellectual property rights, but excepts
from the exclusion infringement contained in the insured’s
advertisements, did not apply.
State Court:
Slattery
Skanska Inc. v. American Home Assur. Co., 885 N.Y.S.2d 264
(1st Dep't 2009)
arose out of an accident in which a Light Rail transit test
train derailed along a curve on an aerial guideway during an
acceleration test. When the train derailed, large concrete
slabs that had been placed in the lead car for added weight
shifted, and then crushed the train operator against the
operator's console, killing him. Additionally, there was some
$16 million in property damage.
The Port Authority had a builder's risk policy issued
by American Home and submitted notices of loss based on the
insuring agreement of the Policy, which provided:
"This
policy, subject to the terms, exclusions, limitations and
conditions contained herein or endorsed hereon, insures
against all risks of direct physical loss of or damage to
Insured Property while at the project location, while in
offsite storage or while in transit all within the Territorial
Limits specified in the policy and during the term of this
insurance contract."
It was undisputed that prior to the accident, the insured deliberately
circumvented the train's Automatic Train Control mode, the
speed governor and the waiver of constraints paperwork (all of
which we contended were supervisory or safety systems).
American Home therefore disclaimed coverage based on Section
11(B)(4) of its policy, which provided:
"Subject
to the terms, exclusions, limitations and conditions contained
herein or endorsed hereon, this policy also insures:
"(4) Testing/Commissioning
"If a specific premium rate has been assigned under this
policy for testing/commissioning, then this policy covers
testing/commissioning for the specified period as enumerated
in this policy.
"This
policy is extended to cover loss resulting from or caused by
Insured Property undergoing performance testing, commissioning
and/or start up runs .....The Insured warrants that
supervisory or safety systems shall not be deliberately
circumvented during such periods, but the Company shall not
withhold coverage where it can be reasonably show[n] that the
management or supervisory staff was not aware of such
situations."
In the ensuing action for coverage, wherein our office represented
American Home, trial court denied American Home's motion for
summary judgment, granted partial summary judgment in favor of
plaintiffs on their causes of action for breach of contract,
and directed that the matter be set down for a hearing on
damages. The
trial court found that the language of the policy relied upon
by American Home in support of its disclaimer was ambiguous
and that it was in any event, irrelevant based upon other
provisions of the policy.
The
Appellate Division, however, reversed this determination on
appeal. According
to the First Department, the trial court had misapprehended
the nature of the coverage afforded by the American Home
policy and further, Section 11(B)(4) of the policy clearly
applied, and precluded coverage for the loss since the insured
deliberately circumvented "safety systems" within
the meaning of the policy. The court noted that not only was
it undisputed that the insured deliberately disconnected a
wire in the driver control panel in order to disengage a speed
governor, but it was also undisputed that it disregarded the
procedure for waiving specific operating constraints.
In Board
of Mgrs. of the 1235 Park Condominium v. Clermont Specialty
Mgrs.,
Ltd., 2009
NY Slip Op 09148 (1st Dep’t 2009), our office represented the defendant insurer after its
insured, the plaintiff Condominium, sought a declaratory
judgment that it was entitled to a defense and indemnification
in an underlying Labor Law 240 personal injury suit
commenced by a construction worker who fell from a ladder
while on the premises. Defendant
Clermont (Admiral Indemnity Company) disclaimed coverage on
the ground that the Condominium had forfeited its right to
defense and indemnification because it breached the policy’s
Notice of Occurrence Condition, which required notice to
Admiral as soon as practicable in the event of an occurrence
that might give rise to a claim against the Condominium.
The
uncontroverted facts were that the worker was taken to the
hospital by ambulance after falling off a ladder while
installing a water tank on the roof of the Condominium’s
building. The
condominium learned of the accident immediately, but did not
furnish notice to Admiral at that time.
The Condominium argued that its delay in providing
notice was excusable because it had reasonable, good faith
belief that no claim would be asserted against it, based on a
phone call it made to the worker's employer on the day of the
accident, during which it was informed that the worker was not
admitted to the hospital, did not sustain any serious
injuries, and was expected to return to work the next day.
The worker never returned to work though, and the
Condominium never followed up with him or his employer to
ascertain his condition or the facts surrounding the accident.
The trial court granted summary judgment in Admiral’s
favor, and declared it was not obligated to defend or
indemnify the Condominium in the injured worker’s personal
injury suit because it did not conduct the reasonably diligent
investigation necessary to support its claim that it possessed
a reasonable, good faith belief that the worker would not
assert a claim.
The Appellate Division, First Department, affirmed the trial
court’s Order and Decision.
Initially, the court reasoned that given the nature of
the work the worker was performing and the condominium’s
knowledge that the worker had fallen off a ladder and been
taken to the hospital by ambulance, its “single phone call
on the day of the accident was not an adequate inquiry into
the circumstances of the accident and its outcome, and, as a
matter of law, could not have caused the insured to reasonably
believe that there was no reasonable possibility of the
policy's involvement.”
Next, the court rejected the condominium’s argument that
the recent amendment of Insurance Law § 3420(a), which now
requires liability insurers to prove they have suffered
prejudice before they may deny coverage on late notice
grounds, applies retroactively to the 2003 policy at issue in
the lawsuit. The
court instead credited our contention that the amendment
expressly applies only to policies issued on or after its
effective date (January 2009), and that consequently, it was
not incumbent upon Admiral to prove it had been prejudiced by
the delay in receiving notice of the occurrence, as a
condition of disclaiming coverage to the condominium.
Smith
v. Bywise Holding, 61 A.D.3d 957 (2d Dept 2009) was a personal injury action to recover damages for a significant ankle
fracture that required open reduction, internal fixation
surgery with hardware. At
trial of the action, the jury awarded the plaintiff, among
other things, $600,000 for future pain and suffering, $195,866
for past lost earnings, and $1,457,291 in future lost
earnings.
On
behalf of the defendant, White, Fleischner made a post-trial
motion seeking (1) to reduce the pain and suffering award on
the ground that it deviated from what could be regarded as
reasonable compensation for the plaintiff’s injuries, and
(2) to set aside the jury’s verdicts for past and future
lost earnings on the ground that the plaintiff failed to
establish the claimed loss of earnings with any reasonable
degree of certainty.
In
response to the post-trial motion, the trial court reduced the
future pain and suffering award from $600,000
to $175,000, and it set aside, entirely, the verdicts for past
($195,866) and future ($1,457,291) lost earnings. Plaintiff
appealed to the Second Department, which upheld the
trial judge’s setting aside of the jury’s verdicts of past
and future lost earnings (totaling $1,653,157.00).
As for the trial judge’s reduction of the future pain
and suffering award from $600,000 to $175,000, the Appellate
Division modified this determination slightly, finding that
$175,000 did not adequately compensate the plaintiff for his
injuries, i.e., the Appellate Division found that the trial
judge had over-reduced the jury’s verdict.
The Appellate Division found that appropriate
compensation for the plaintiff’s future pain and suffering
was $325,000 (which is $150,000 more than the trial judge
awarded for future pain and suffering, but still a substantial
overall reduction [close to 50%] relative to the jury’s
$600,000 verdict).
In Panasia Estates,
Inc. v. Hudson Ins. Co., 889 N.Y.S.2d 452 (1st Dep't 2009),
an action seeking coverage under a first party property damage
policy, the trial court permitted the plaintiff (defendant
Hudson's insured) to amend its Complaint in order to assert a
claim for breach of the insurance contract between the
parties. On
appeal, our office, on behalf of the insurer, obtained a
reversal of the trial court's order.
The Appellate Division ruled that the
plaintiff-insured's motion to amend should have been denied
because the cause of action plaintiff sought to add was
duplicative of its existing claim for breach of the implied
covenant of good faith.
In Arya's Collection, Inc., v. Brink's Global
Services, USA, Inc., 888 N.Y.S.2d 57 (1st Dep’t
2009), our office represented Brink’s Global in an
action for breach of a contract to transport the plaintiff's
jewelry. The
trial court granted Brink’s Global’s motion to dismiss the
Complaint on the basis of a forum selection clause in the
contract. The Appellate Division affirmed, finding that the documentary
evidence produced in support of the motion conclusively
demonstrated that the receipts claimed by defendant to
constitute the parties' only agreement relating to the subject
shipment, contained a forum selection clause.
The court further found that Brinks
Global showed that the clause was reasonably communicated to
plaintiff and mandatory for all claims arising from the
shipment of the jewelry.
In response, according to the court, the plaintiff
failed to rebut the presumption that the clause was
enforceable.
Byron Chemical Company, Inc. v. Groman, 61 A.D.3d 909,
877 N.Y.S.2d 457 (2d Dep’t 2009) was an action to recover
damages for legal malpractice. On behalf of defendant law
firm, we obtained a dismissal of the complaint on the ground
that it was time-barred, since the action was brought more
than three years after the alleged malpractice. Plaintiff
appealed, contending that the statute of limitations was
tolled on account of the “continuous representation
doctrine”.
The Appellate Division
rejected this contention, stating that the law firm’s subsequent representation of the plaintiff in matters
unrelated to the specific matter that gave rise to the alleged
malpractice, was insufficient to toll the statute of
limitations. The court further reasoned that the action was
not timely commenced because a claim for legal malpractice
must be asserted within three years of the accrual of the
cause of action, and a legal malpractice cause of action
accrues on the date the malpractice was committed, not the
date when it is first discovered.
Trumboli v. Fifth Avenue Paving, 59 A.D.3d 706, 873
N.Y.S.2d 742 (2d Dept. 2009) involved an appeal by the
plaintiff, of a summary judgment dismissal of her Complaint in
this trip and fall action. The plaintiff allegedly was injured
when she tripped and fell over a depression in a parking lot
owned by the defendant Coma Realty Corp. and managed by the
defendant Gateway Inn, Inc. The plaintiff had, without
incident, traversed the area in question a short while prior
to the accident. Furthermore, she acknowledged at her
deposition that she could not judge whether or not the
depression was deep.
Defendants, represented by White, Fleischner &
Fino, had obtained summary judgment, contending that the
condition allegedly responsible for the plaintiff’s accident
was a trivial condition, and also that the defendants in any
event lacked both actual and constructive notice of the
claimed condition.
In affirming the award of summary
judgment in favor of defendants, the Appellate Division noted
initially that although the issue of whether a dangerous or
defective condition exists in property is generally one for
the trier of fact, some defects are trivial and, therefore,
not actionable. The court found that in the case before it,
considering all the facts and circumstances, including
photographs of the purported "dip" or
depression/concavity in the parking lot where the plaintiff
fell, the Appellate Division concluded that the lower court
had properly concluded the defendants made a prima facie
showing that the alleged defect upon which the plaintiff
tripped, which had no characteristics of a trap or snare, was
trivial and, therefore, not actionable.
In Moore v. Three Phase Riding Stables (S. Ct.,
Dutchess County), the plaintiff, a student horseback
rider, sustained serious injuries when she was thrown from the
horse she was riding at defendants’ stable.
She contended the horse had vicious/violent/aggressive
propensities that were known to the defendants, and that the
defendants allegedly concealed the horse’s true nature by
administering tranquilizers to him prior to the plaintiff’s
lessons. She
claimed that the horse was unmedicated on the date of her
accident, and therefore not docile, because she came to the
stables unexpectedly that day, without a scheduled lesson
time.
On behalf of the horse trainer who worked at the
stable, and who had been accused by the plaintiff of drugging
the horse, we sought summary judgment, on the grounds that (1)
there was no proof whatsoever that the horse had any
propensity for aggression/violence/viciousness, let alone that
such propensity was or should have been known to the
defendants, and further, (2) that the plaintiff’s drugging
theory was based upon pure speculation, and directly
contravened the evidence in the record.
We also argued that the plaintiff had assumed any and
all risks associated with the sport of horseback riding,
including the possibility of being thrown by a horse.
The court agreed with our position, it granted summary
judgment in defendant’s favor, and it in all respects
dismissed the plaintiff’s complaint and all cross-claims
insofar as they were asserted against our client.
In Neighborhood Partnership Housing Dev’t. Fund Co., Inc.,
Delight Construction Corp. and Mt. Hawley Ins. Co. v. Certain
Underwriters, Delight Contracting Corp. and Mohammed Aslam
(Supreme Court, New York County), our office moved for
summary judgment on behalf of defendant Underwriters, seeking
a declaration that they had no obligation to defend/indemnify
plaintiffs (the plaintiffs Neighborhood and Delight
Construction) in an underlying personal injury action, on the
ground that neither of the plaintiffs qualified as an
Additional Insured under Underwriters' policy and even if they
did qualify, coverage was precluded under the policy's
Exclusion for Injury to Employees Endorsement.
We further contended that each plaintiff, even if they
qualified as an additional insured,
breached the policy's notice conditions, thereby
forfeiting their right to coverage.
The trial court granted our motion, holding that plaintiffs claiming a
right to coverage failed to establish that they were
Additional Insureds on the policy at the time of the accident;
we submitted evidence on Underwriters' behalf that although
the policy contained an Additional Insured Endorsement naming
Delight Construction as an Additional Insured, the endorsement
was effective three days after the loss in question.
We further established that Neighborhood was not an
Additional Insured--that there was no Additional Insured
Endorsement or certificate of insurance or any evidence of
intent that Neighborhood should be named an Additional
Insured.
The court also accepted our position that even if Underwriters'
disclaimer were untimely, Insurance Law 3420(d) did not
preclude an effective disclaimer because the plaintiffs were
not, in the first instance, covered by the policy and 3420(d)
could not be used to create coverage that did not otherwise
exist.
O'Connor
v. Tinagero (Supreme Court, Bronx County 2009) was a legal malpractice case wherein our office
obtained summary judgment in favor of the defendant lawyer and
his law firm. The
plaintiff-former client alleged that
the lawyer and his firm failed to timely file estate
tax returns or to advise the plaintiff (executor of the
decedent’s estate) of the need to obtain an extension of the
deadline. The
late filing of the returns resulted in a substantial financial
penalty to the plaintiff.
In
granting our motion to dismiss the Complaint, the court noted
that in order to make a prima facie case of legal malpractice,
the plaintiff-client must plead and prove that the attorney
was negligent in his representation of the client and that
that negligence was the proximate cause of the client’s
damages, i.e., that but for the attorney’s negligence the
client would have prevailed in the underlying matter.
The
court agreed with our contention that since, by the time
plaintiff retained the law firm, the deadline to file the
estate tax returns had already expired without any extension
having been sought, the proximate cause element of
plaintiff’s case was lacking.
In
Ross v. Reader (Supreme Court, Bronx County), we
won summary judgment dismissing the Complaint against our client in
a sidewalk slip/trip & fall case. Our client, defendant
NJC, was the carting company removing trash from the sidewalk
in front of a restaurant. Plaintiff claimed that residual food
debris from poor garbage removal caused her accident.
We contended in support of the motion that plaintiff
presented no credible evidence to defeat our prima facie
demonstration that no act or omission of the carting company
was responsible for causing or contributing to her accident.
The court agreed with our position and dismissed the
case insofar as the plaintiff sought recovery as against NJC.
Montaperto,
Ltd. v. 14 Jay Commercial LLC, et al. (Supreme
Court, New York County 2009) was a case involving a commercial cooperative wherein plaintiffs sought
injunctive relief and damages based upon the assignment of a
master lease. On
behalf of the coop we sought and obtained a dismissal of the
plaintiff’s Complaint on several grounds; specifically,
that the assignment of the Master Lease between the coop and
another defendant was valid and enforceable, that plaintiff
had no legal standing to challenge the assignment; that the
coop properly exercised the right of first refusal, that the
assignment was made on the same material terms and conditions
as plaintiff's own proposed contract for the assignment, that
the claim for tortious interference with contract was without
merit, and that the claims against one of the individual coop
members was without merit. The court agreed with each
one of our contentions and dismissed the complaint in all
respects insofar as it was asserted against our clients.
In
Kim v. Keith (S. Ct., Queens County 2009),
White, Fleischner & Fino, LLP obtained a summary judgment
dismissal of the plaintiff’s complaint in this car accident
case. The court
granted our motion for summary judgment on the ground that the
plaintiff’s injuries, which included two disc herniations
and a coccyx fracture, were not “serious injuries” within
the meaning of Insurance Law §5102(d) and that
consequently, he was foreclosed from pursuing a civil action
for damages against the driver of the vehicle allegedly
responsible for causing his injuries.
In
Kazanjian v. Rima (Supreme Court, New York
County), plaintiff’s Complaint sought recovery for
the alleged loss of a 16.43 carat diamond that was allegedly
shipped by plaintiff in California, to defendant Rima in New
York. Plaintiff
contended that an employee of a company affiliated with the
Plaintiff allegedly placed the diamond into a package that
already contained a pearl necklace that was being shipped to
Rima, and that the diamond was either stolen from the box by
defendant when it arrived in New York, or misplaced by it,
because the necklace remained in the box upon arrival in New
York but the diamond was “missing”.
The
action proceeded to trial, where we obtained a unanimous
defense verdict from the jury, which concluded, based upon the
evidence and testimony at trial, that the diamond had never
been placed in the box by the plaintiff (along with the
necklace) before
it was shipped to Rima.
In
Suneson NWL Holdings, Inc..(S. Ct., Bronx County, 2009),
our office obtained a defense verdict at trial in this product
liability action to recover damages for personal injuries
allegedly sustained by the plaintiff as a result of an
incident involving an allegedly defectively designed and/or
manufactured roaster pan. Plaintiff had alleged claims for strictly product liability
based upon defective design and/or manufacture, failure to
warn, and breach of both express and implied warranties.
Plaintiff also alleged general negligence.
Audrey’s
Management, LLC v. Admiral Indemnity Co. (Supreme Court,
Westchester County 2009) involved a first-party property damage claim arising out of flooding
that occurring during a severe storm.
Admiral disclaimed coverage to its insured (plaintiff
Audrey’s Management) for the loss, on the ground that its
policy’s exclusion for water damage caused by, among other
things, flooding, or from water that backs up from a sewer or
drain, was excluded from coverage. Audrey’s on the other hand, argued that coverage was
available for the loss because the flooding resulted from
broken pipes and as such, was not encompassed by the
exclusion.
On
behalf of the insurer, office obtained a summary judgment
dismissal of the Complaint.
The court agreed with our position on behalf of the
carrier that the Record demonstrated indisputably that a
tremendous amount of rain caused an overflowing of the catch
basins of the town’s sewer system, which the storm drains
could not handle, which in turn caused overflow of water that
entered a number of basements, including that of the
insured’s store.
Additionally,
the court noted that even if there existed some credible
evidence to demonstrate that broken water pipes had caused
water to be released into the plaintiff’s basement, the
policy contained an anti-concurrent causation clause which was
sufficiently satisfied insofar as there was substantial proof
that flooding from rain (a condition excluded from coverage)
in large part caused the loss.
In Professional Risk
Managers, Inc. v. Gemini Insurance Company (Supreme Court,
Queens County) our office represented defendant Gemini
against its insured’s contention that its disclaimer was
invalid, and therefore ineffective, on account of Gemini’s
failure to send a copy of the disclaimer letter to the injured
claimant/underlying plaintiff, as required by the provisions
of Insurance Law 3420(d).
On behalf of Gemini, we sought
summary judgment dismissing the Complaint on the ground that
Gemini’s insured lacked standing to bring the action; the
right to assert that a disclaimer is invalid due to the
failure to send that disclaimer to the claimant/underlying
plaintiff is personal to the claimant and cannot be raised by
any other party or entity.
The court agreed with our position and dismissed the complaint. In its
decision, the court acknowledged that Guardian, as Gemini’s
insured, had no standing to assert the alleged statutory violation by Gemini with respect
to the underlying plaintiff because it did not suffer an
injury as the result thereof and is not within the zone of
interest which the statutory requirement of notice to injured
parties seeks to protect.
Katseva
v. Ryan Food Corp. (Supreme Court, Queens County 2009), was a trip and fall action where the plaintiff’s
theory of liability was that the carpet she tripped over
should have been affixed to the floor. On behalf of the
defendant supermarket our office moved for summary judgment,
relying in large part upon the plaintiff’s own deposition
testimony. At her deposition, plaintiff was unable to clearly and
definitively testify as to the existence of a defective
condition with respect to the carpeting.
Specifically, she admitted that she did not recall
whether the carpet moved when she stepped on it or whether it
had a raised area that she tripped over.
Although,
in opposition to our motion for summary judgment, the
plaintiff submitted an affidavit wherein she claimed the
carpet moved because it was not affixed to the floor, the
court held that this self-serving affidavit, which
contradicted her earlier deposition testimony, was
insufficient to give rise to a genuine issue of material fact.
Accordingly, the court granted our motion and in all
respects dismissed the Complaint.
Campasano
v. Henrichsen (S. Ct.,
Brooklyn County, 2009)
was a defamation action commenced by a building resident after
she was not elected to the building cooperative’s board of
directors. Plaintiff
contended in her Complaint that the defendants, who were other
residents/shareholders of the building, disparaged her and
made false, malicious and slanderous statements about her
during the election process.
On
behalf of the defendants, our office sought dismissal of the
complaint on the ground that whatever statements were made
were not published with actual malice or solely out of ill
will or spite, and that they were in any event
subject to a “qualified privilege” that absolved
the defendants of any liability for the plaintiff’s
defamation claims.
The
court agreed that the qualified privilege doctrine, which
protects statements that were made without actual malice, and
in furtherance of a legitimate interest (such as, for example,
preventing a seemingly unworthy candidate from becoming a
member of the board of directors), precluded liability on the
part of defendants. The court therefore granted dismissal of
the complaint. The
court also denied the plaintiff’s cross-motion to amend her
Complaint, since the operative facts giving rise to her
claimed cause of action would remain the same, even if the
complaint were amended.
Cheryl
Erps v. American Western Home Insurance Company (Supreme
Court, Rockland County 2009)
was
a Direct Action, pursuant to Insurance Law 3420,
commenced by an injured claimant against the tortfeasor’s
liability insurer. On
behalf of the carrier, our office moved for summary judgment,
contending that the injured claimant failed to protect her
right to proceed directly against the insurer because she did
not furnish her own timely notice of the accident to the
insurer.
The
court agreed, and dismissed the Complaint.
In particular, the court rejected the claimant’s
contention that American Home’s disclaimer was defective
because it did not specifically raise the claimant’s late
notice of the accident. Instead,
the court agreed with our contention that American Home was
not obligated to assert the claimant’s own late notice in
its disclaimer letter to its insured, as the claimant had not
yet, at the time of that disclaimer, ever furnished notice,
and hence no duty to disclaim on that basis ever arose.
In Helmstadt v.
Desikan (Supreme Court, Westchester County 2009),
our office obtained a defense verdict at trial in this trip
and fall action involving a significant hip injury suffered by
the plaintiff. Plaintiff contended at trial that the driveway
he fell on was improperly maintained, lacked proper lighting,
and had a defectively constructed drainage system. Further, he
contended, through retained experts, that the driveway had a
depression/concavity where water could collect.
The jury agreed, unanimously, that the proofs we
submitted at trial demonstrated that the plaintiff’s
accident was unrelated to any allegedly defective condition of
the driveway upon which he fell.
Aughenbaugh v. Napper
Tandy’s of Smithtown (Supreme Court, Suffolk County 2009)
was a Dram Shop case commenced by two seriously injured
plaintiffs who were struck by a vehicle after its driver left
the defendant’s bar and allegedly crossed a yellow lane
divider due to his intoxicated state. White, Fleischner represented the bar and moved for summary
judgment, asserting that there was no evidence establishing
the driver was “visibly intoxicated” when the bar served
alcoholic beverages to him and consequently, that it could not
be found liable under the Dram Shop Act.
In opposition to the motion,
plaintiffs’ expert toxicologist submitted and affidavit
wherein he averred that the driver’s alcohol level based
upon a breathalyzer test taken at the accident scene was .18
and that that is more than twice the legal limit for driving.
The court accepted our contention that such proof was
insufficient to establish the driver-patron was visibly
intoxicated at the time he was served by the bar, and it
correspondingly granted summary judgment dismissing the
complaint insofar as it was asserted against the bar.
In Yang v.
David W. Panciera (Supreme Court, Queens County 2009)
our office won summary judgment and a corresponding dismissal
of the plaintiff’s Complaint in this car accident case.
In support of the motion, we argued that plaintiff’s
claimed injuries were preexisting conditions and that he did
not sustain a “serious injury” within the meaning of Insurance
Law 5102(e).
GEICO
v . Zurich North
America
(Supreme Court, Nassau County 2009) was a coverage case where a car dealer (our client Zurich North
America’s insured) gave its customer a "loaner"
car while it was repairing the driver's own vehicle.
The customer was then in an accident while driving the
loaner. The customer had his own personal insurance with
GEICO. According
to the "loaner" car agreement, the car dealer agreed
to provide primary coverage up to $25,000 and then the
driver's own insurance was to be the next level of coverage.
GEICO
brought a declaratory judgment action wherein it moved for
summary judgment, claiming the indemnification agreement in
the loaner agreement was invalid and in violation of the
anti-subrogation rule, and that consequently it had no
obligation to provide the first layer of coverage.
On
behalf of Zurich North America, our office successfully
cross-moved, claiming the indemnification language was valid
and that GEICO’s coverage was therefore implicated.
New Jersey Cases
State Cases:
Estate of Galeski v.
Lloyd’s of London, et al. (Super. Ct., Camden County 2009) is
a case where we obtained summary judgment in favor of a
defendant insurance agent. The pertinent facts were that the
agent issued a Lloyd’s of London homeowner’s policy to
plaintiff. Pursuant to N.J.S.A. 17:16D-13, the
policy was cancelled in May of 2007 for non-payment of
premiums. A fire occurred the following month.
In the coverage action which ensued
subsequent to the carrier’s disclaimer, our office sought
summary judgment on behalf of the insurance agent, contending
that the agency did not owe or breach any duty of care to the
decedent to avoid the cancellation of her policy, since New
Jersey’s state insurance regulations place no obligation on
a broker or agent to advise, and consequently, any inaction by
an agent or broker is deemed as a matter of law, not to
proximately contribute to the contractual loss that is payable
by an insurer. The court agreed with our arguments and dismissed the
Complaint insofar as it was asserted against the agency.
In
Bayliss v. Miller (Super. Court, Warren County 2009) we
again obtained summary judgment in favor of an insurance agent
and his agency in a suit by an insured against its insurer and
the agent/agency over a dispute in coverage. In awarding
summary judgment and dismissing the Complaint as against the
insurance agent and insurance agency defendants, the court
accepted our argument the legislative intent of the New Jersey
statute providing immunity for the insurance agents and
brokers when a coverage selection form is specifically
forwarded to an insured and the insured acknowledges that they
are choosing UM/UIM limits which are lower than their
liability limits, is to protect the agent/agency from
liability arising out of the client’s/insured’s personal
choice to purchase Underinsured/Uninsured motorist benefits
that are lower than their liability limits.
In
Nisch v. Ocean Beach and Yacht Club, et al., (Super.
Ct., Ocean County 2009) our office represented
defendant Yacht Club against claims by plaintiff community
association residents who contended that the Yacht Club was
estopped from enforcing a height restriction on the roofs of
their houses. We
obtained summary judgment in favor of the Yacht Club on the
grounds that the height restrictions contained in the master
deed and the community association by laws clearly and
unambiguously set forth the height restrictions and that those
were restrictions were constitutional.
Memorial
Gardens v. Zurich North American Ins. Co.,
(N.J. Superior Ct., Monmouth County 2009)
was an action by a cemetery company against its liability
insurer, seeking a declaration that the insurer was obligated
to defend and indemnify it in numerous underlying lawsuits
commenced by the family members of corpses that were
“improperly disposed of” (the dead bodies were harvested
for their tissue and organs, as opposed to being buried or
cremated). The
family members sued for the pain and suffering they allegedly
sustained upon being notified of what had happened to the
remains of their loved ones.
The
plaintiffs alleged that the scheme occurred either because of
the cemetery’s negligence or its intentional involvement in
the wrongdoing. In
an initial ruling by the court with respect to when the damage
to the plaintiffs “occurred”
for purposes of triggering coverage, i.e., whether it was when
the remains of their loved ones were improperly handled, or
when the plaintiffs found out what had happened, the court
agreed with our argument on behalf of Zurich that under
established New Jersey law an “occurrence” is not the
time when a wrongful act is committed, but rather, it is the
time when the damage is suffered, and that consequently, the
occurrence of damage in this particular matter was when the
plaintiffs were notified of what had happened to their
deceased family members.
Thereafter,
the court granted our motion, on behalf of Zurich, for summary
judgment on the ground that the policy in effect at the time
the damage “occurred” (as opposed to the policy the policy
in effect at the time the mishandling of the bodies occurred),
contained an exclusion for “Improper Handling” which
precluded coverage for injuries arising out of the insured’s
failure to “bury, cremate or properly dispose” of a
“deceased body.”
Additionally,
in reaching its decision, the court rejected the cemetery’s
contention that it should consider extrinsic evidence
demonstrating its non-liability for scheme.
The court instead accepted our assertion that under New
Jersey law, the existence of the insurer’s duty to defend is
based strictly on the allegations of the Complaint against an
insured.
In
Oliveira v. McClure Building Co., et al., (Super. Ct.
Monmouth County 2009) our office obtained
summary judgment in favor of the insurer in this coverage
dispute, on the grounds that the Certificate of insurance
relied upon by the purported insured, a construction company,
was issued after the accident giving rise to the underlying
personal injury suit, that the certificate was non-binding,
and that the construction company did not, in any event,
qualify as an additional insured within the intendment of the
policy.
DiBenedetto v. Hillesheim (Super. Court, Atlantic
County, 2009) was a coverage action wherein White, Fleischner &
Fino obtained summary judgment in favor of a homeowners
liability insurer, and a corresponding declaration that the
insurer had no duty to defend or indemnify its insured in an
underlying personal injury suit. The underlying action arose
out of physical injuries and emotional harm suffered by the
underlying plaintiff when the homeowner-insured attacked her.
He was charged criminally, pled guilty to second-degree
aggravated assault, and later testified at his deposition that
he intended to cause plaintiff bodily injury. Underwriters
denied coverage to the assailant on the basis of, among other
things, their policy’s intentional acts exclusion. The court
upheld the disclaimer. In
doing so, the court rejected the plaintiff’s contentions (1)
that the finding of criminal liability was not binding on the
issue of the insured’s intent to cause injury in this civil
suit, and (2) that the plaintiff, who suffered from a seizure
disorder, could not be deemed to have intended to cause injury
to the underlying plaintiff.
Instead, the court credited our argument that the
doctrine of judicial estoppel precluded any finding that the
insured lacked the intent to injure.
State
Farm Fire & Cas. Co. a/s/o 528 Madison Street Condominium
v. Assurance Company of America, et al. (Super. Court,
Somerset County 2009)
was a subrogation action where our office represented
defendant insurers. State Farm alleged that it paid a claim
for property damage on behalf of 528 Madison Street and became
subrogated to its rights.
It further alleged that Assurance, a subsidiary of
Zurich North America, insured the builder which owned all of
the units that were in the process of being constructed.
According
to State Farm’s Complaint, during the course of
construction, a washing machine hose on the sixth floor
ruptured, causing water to flow, which resulted in property
damage in the amount of $113,746.70.
State Farm asserted it was entitled to indemnification
from Assurance/Zurich North America because the loss should
have been paid under the builder’s risk policy, the
existence of which GEICO did not discover until after it paid
the property damage claim.
On behalf of Assurance/Zurich we sought summary
judgment, primarily on the ground that the clear language of
the builder’s risk policy indicated that its coverage
terminated when permanent insurance (such as the GEICO policy)
incepted. The
court agreed that the policy language rendered the Assurance
policy inapplicable to the loss, and granted our motion to
dismiss.
Adams-Stiefel
Funeral Home v. Zurich Amer. Ins. Co. (Super. Ct., Gloucester
County 2009),
was another action involving the improper handling of corpses.
In this case Plaintiff,
Adams-Stiefel Funeral Home, Inc. (“Adams-Stiefel”) sought
a declaratory judgment that defendant insurers owed a defense
and indemnification with respect to claims brought against it
by the underlying plaintiffs, who alleged that Adams-Stiefel
retained the services of Liberty Cremation, Inc. (“Liberty
Cremation”) for the purpose of cremating the body of the
underlying plaintiffs’ decedent, and that Adams-Stiefel was
negligent in failing to ensure that Liberty Cremation properly
cremated the body.
As
a result of Adams-Stiefel’s alleged negligence and
wrongdoing, other named defendants were able to unlawfully
harvest the tissue and bones of decedent’s body.
Defendant insurers disclaimed coverage for the
underlying claims on several grounds, including their
policy’s exclusion for “Improper Handling.”
The “Improper Handling” exclusion excluded coverage
for “bodily injury” arising out of the failure to “bury,
cremate or properly dispose of a ‘deceased body’ by any
insured or anyone for whom the insured is legally
responsible.”
In
its Declaratory Judgment Complaint against the disclaiming
insurers, Adams-Steifel alleged that the Improper Handling
exclusion was inapplicable, because it was not legally
responsible for Liberty Cremation’s negligence.
The parties filed cross motions for summary judgment
seeking a determination concerning the applicability of the
policy exclusion as well as a determination concerning the
date of the “occurrence” in this matter.
The
trial court ruled in the insurers’ favor, and declared they
had no duty to defend or indemnify plaintiffs with respect to
the underlying lawsuits as the claims asserted against
plaintiffs in the underlying action were excluded under the
policies’ Improper Handling Exclusion regardless of whether
the insureds themselves were responsible for the actual
improper handling of the bodies.
Furthermore,
the court ruled that the “occurrence” was when the family
members learned of the harvesting of tissues of their loved
ones in 2006. Therefore,
there was no “occurrence” within the Assurance Company of
America policy period. White,
Fleischner represented the insurer defendants in this lawsuit.
Interested
Underwriters at Lloyd’s v. Louth (Super. Ct., Middlesex
County 2009): In this case, White Fleischner & Fino, LLP represented
the plaintiff insurer, which sought a declaration that it was
not obligated to defend or indemnify its insured (defendant
Louth) in an underlying personal injury action commenced
against him after he struck the underlying plaintiff in the eye while dancing in a mosh pit
at a party at the underlying plaintiff’s home in Cliffwood
Beach, New Jersey.
On
behalf of Underwriters, our office sought summary judgment, on
the ground that the policy contained a Premises Liability
Endorsement which limited personal liability coverage for
“bodily injury” to that which “arises out of the
ownership, maintenance or use” of premises specifically
identified in the Policy.
The only premises identified in the Policy was the
insured’s summer residence, located in Seaside Park, New
Jersey.
Underwriters
also sought summary judgment on the additional basis that the
policy’s coverage was inapplicable in any event due to an
exclusion for bodily injuries arising out of a “battery”;
under New Jersey law, any non-consensual touching is
considered a “battery”.
The court accepted Underwriters position, granted
summary judgment in its favor, and issued a corresponding
order declaring that Underwriters had no duty to defend or
indemnify their insured in the underlying lawsuit.
In
GEICO a/s/o Ward v. Mariel Expr. Corp. (Super. Ct., Hudson
County 2009),
a subrogation action, our office represented the defendant
insurer (Wilshire Insurance Company), which had issued a
policy of insurance to defendant Mariel Express Corp.
GEICO, as subrogee of the tortfeasor, named Wilshire as
a defendant based merely on the fact that at the time of the
underlying accident, Wilshire insured “some” of the
vehicles owned by Mariel Express.
In seeking a dismissal of the Complaint, we argued that
the terms and provisions of the policy reflected clearly and
incontrovertibly that at the time of the accident, the vehicle
in question was not a covered automobile under the policy, and
that its driver was not Wilshire’s “insured”. The court
agreed that the proofs submitted in support of the motion
established the carrier’s nonliability, and it dismissed
GEICO’s Complaint insofar as it was asserted against
Wilshire.
Kim
v. Dong-E Insurance Agency, et al. (Super. Court, Bergen
County 2009)
was an action against an insurance agent , commenced by the
plaintiff after an automobile accident occurred that resulted
in the death of each of the plaintiff’s daughters, who were
passengers in the car at the time of the accident.
On the date of the accident, plaintiff had in effect an
automobile insurance policy procured through defendant Dong-E
Insurance Agency. The
policy’s UM/UIM limits were lower than the policy’s
liability limits, as that is what the plaintiff had elected
pursuant to an executed “Election of Uninsured/Underinsured
Motorists Coverage” endorsement.
His
claims against the agency and its agent, both represented by
White, Fleischner & Fino, were that they did not procure
the necessary UM/UIM limits on his business automobile
insurance policy from the co-defendant insurer.
We obtained summary judgment on behalf of the agent and
his agency on the ground that even if the plaintiff’s
contention were true, they were entirely beside the point
because the vehicle in which his daughters were injured was
not covered on his business auto policy.
Rather, this car was a covered auto solely on a
separate, personal automobile policy the plaintiff maintained
with a different insurer.
Additionally, we
asserted that the plaintiff’s decision to obtain the low UM/UIM
limits could not properly be reformed/raised after the fact
because the plaintiff was bound by the contract he had made;
he had completed all necessary forms, had an ample opportunity
to review the documents, and had certified he understood all
the information. Finally, we contended, and the court agreed,
that the New Jersey statute charging insureds with the duty to
make their own decisions regarding their own coverage limits (N.J.S.A
39:6A-23) immunized the agency defendants from liability.
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