Recap of Favorable Decisions and Results Obtained by White, Fleischner & Fino, LLP in 2009

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 (1^st 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 (1^st 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.