New York Civil Law

Insurance Coverage Opinion from Appellate Division, Third Department Raises Eyebrows

Back in 2005, the Appellate Division, Third Department in Elacqua v. Physicians' Reciprocal Insurers held that an insurer has a duty to inform its insured that he or she has the right to independent counsel paid for by the insurer where a matter concerns some covered causes of action and some that are not.  The Third Department recently had a chance to address a slightly different issue in Elacqua II.  The Third Department in Elacqua II held that the insurer's failure to inform the insureds that they had a right to select independent counsel of their choosing at defendant's expense pursuant to a company policy not to inform their insureds of that right constituted a deceptive practice under General Business Law sec. 349.

New York Court of Appeals Addresses Tricky Tort Issues

Chain-reaction motor-vehicle accidents or multiple related motor-vehicle accidents raise tricky tort questions regarding proximate cause.  The New York Court of Appeals addressed this type of tricky question last week in Tutraini v. County of Suffolk.

In that case, the plaintiff was behind a County of Suffolk police officer (the defendant) on a highway.  The police officer defendant suddenly decelerated from approximately 40 mile per hour to 1 to 2 miles per hour.  The plaintiff aggressively applied the brakes to her motor-vehicle and was able to stop without hitting the defendant police officer.  However, the plaintiff was rear-ended by another defendant seconds later.

A jury found that the defendant officer's reckless conduct and the rear-ending defendant's negligence were each a substantial factor in causing plaintiff’s injuries and apportioned fault at 50% each. The  Appellate Division reversed the judgment entered upon the jury’s verdict, holding, as a matter of law, that the defendant officer's conduct was not a proximate cause of the accident because the plaintiff was able to come to a complete stop without hitting the defendant's vehicle.

The Court of Appeals disagreed with the Appellate Division and held that the jury could have rationally found that the officer's conduct was a substantial cause of the collision between the plaintiff and the other defendant even though there was no contact between plaintiff's vehicle and the defendant officer's vehicle.  The Court held that the jury could have rationally found that that the officer's conduct " 'set into motion an eminently foreseeable chain of events that resulted in [the] collision' " between the vehicles driven by the plaintiff and the other defendant.

Here's an article in Newsday about the decision.

 

 

 

 

New York Court of Appeals Determines Another Labor Law sec. 240(1) Case

Earlier today, the New York Court of Appeals decided Berg v. Albany Ladder Co. -- a matter concerning Labor Law sec. 240(1).  In Berg, the plaintiff was hurt during the course of unloading steel trusses from a flatbed truck at a construction site.  The Appellate Division, Third Department Majority determined that the accident was not caused by the lack of a required safety device but, rather, by the improper movement of the trusses moved by a forklift.  The Court of Appeals affirmed, holding that the plaintiff failed to raise an issue of fact as to whether his fall was caused by the lack of safety device set out in sec. 240(1).  The Court seems to hint that this fall from approximately 10 feet up is not the type of height covered under sec. 240(1), citing Toeffer v. Long Island R. R.

New York Court of Appeals Addresses Spectator's Assumption of Risk

In a short sua sponte merits decision, the New York Court of Appeals in Roberts v. Boys & Girls Republic, Inc. upheld that the plaintiff assumed the risk that resulted in her injury -- being hit in the face by a baseball bat while a spectator at a little league baseball game.  Here are the facts as described by Justice Kavanagh in his dissent below; you decide whether the plaintiff assumed the risk of her injury.

The Plaintiff was at the park to watch her son's little league practice. When the accident occurred, she was standing on a path that went from the entrance of the park to the spectator bleachers adjacent to baseball "Field Six. "  Along the third base side of Field Six ran a chainlink fence that separated the bleachers from the field of play, and which had an opening that allowed entry onto the field of play. Field Six lay in front of the bleachers; behind the bleachers was a separate, grassy area where the plaintiff's son's little league team was practicing. During the practice, the plaintiff sat on the bleachers. When the practice concluded, the plaintiff met her son with his team and coach on the path on the spectator's side of the opening in the fence that led to Field Six. Another team was on Field Six at this time playing a scrimmage game. After speaking briefly to her son and Coach Alameda, the plaintiff proceeded to walk toward the bleachers. Unbeknownst to the plaintiff, as she approached the bleachers she walked near an area that had been unofficially designated as an "on-deck" circle, where one of the players involved in the scrimmage on the field was standing with an aluminum bat. The player took a warm-up swing with the bat while standing off to the side of the plaintiff and struck her on the right side of her face, causing injuries, including a concussion, fractures to the upper and lower jaw and loss of teeth.

Appellate Division, First Department Now Offers Decisions and Orders in .pdf and HTML Format

Did I miss something?  From what I can see, the Appellate Division, First Department recently added a feature similar to the Second Department.  The Court website now offers its Decisions and Orders in .pdf or HTML format. 

Hopefully the Court will follow the Second Department's lead and offer access to the appellate briefs.  Let's keep our fingers crossed.

Recent New York Court of Appeals' Insurance Coverage Decision

The New York Court of Appeals decided Worth Contr. Co. v. Admiral Ins. Co. last week.  The issue on appeal addresses the interpretation of an additional insured endorsement, stating:

The additional insured endorsement of the Farm Family/Pacific policy provides in relevant part as follows: "WHO IS AN INSURED (Section II) is amended to include as an insured the person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you." Under paragraph 21 of the policy, the term "Your work" is defined to mean "(a) Work or operations performed by you or on your behalf; and (b) Materials, parts or equipment furnished in connection with such work or operations."

The plaintiff Worth Construction was general contractor on a construction site in White Plains.  Defendant Farm Family insured subcontractor Pacific Steel, hired by Worth to build a staircase.  Farm Family's insurance policy contains the already referenced additional insured endorsement covering Worth for liability arising out of its insured's operations at the White Plains project.

An injured worker, who was employed by a sub-subcontractor brought an underlying action against Worth in Westchester County for injuries allegedly sustained when he slipped on the stairs built by Pacific. At the time of the accident, Pacific had finished installing the metal pans on the stairs and was not scheduled to come back to the site to put up handrails until other trades had filled in the metal pans with concrete.  In the underlying Westchester action, Worth formally admitted that no negligence on Pacific's part contributed to the accident, resulting in Pacific's dismissal from the underlying action.

The Court of appeals reversed the Appellate Division's Order and reinstated the order of Supreme Court granting summary judgment to Farm Family.  Notably, the Court stated:

The allegation in the complaint that the stairway was negligently constructed was the only basis for asserting any significant connection between Pacific's work and
the accident. Once Worth admitted that its claims of negligence against Pacific were without factual merit, it conceded that the staircase was merely the situs of the accident. Therefore, it could no longer be argued that there was any connection between Murphy's accident and the risk for which coverage was intended.

Appellate Division, First Department Rejects Negligent Design Theory Regarding Cigarettes

The Appellate Division, First Department's recent decision in Rose v. Brown & Williamson Tobacco Corp. is an important for New York's products liability jurisprudence.  The plaintiffs' contention was that, during the years in question, the relevant tobacco companies should have sold only "light" cigarettes (which contain relatively low levels of cancer-causing tar and addictive nicotine) and should not have sold regular cigarettes of the kind Ms. Rose smoked (which contain significantly higher levels of the aforementioned harmful substances).  The plaintiff's theory was grounded on a negligent design cause of action.

The First Department analyzes the all-important feasible alternative product design prong of any design defect allegation.  Justice Nardelli and Catterson dissented and, thus, the Court of Appeals will have a crack at the case. 

NYCL will keep you informed of developments in the case.

New York Court of Appeals Will Hear Oral Argument In Yet Another No-Fault Appeal

Surprisingly, the New York Court of Appeals has heard several appeals in the No-Fault Law context this Term.  Next week, the Court will address another No-Fault appeal -- Fair Price Med. Supply Corp. v. Travelers Indem. Co. (Appellate Division, Second Department Decision and Order).  The question presented on the appeal is whether an insurance carrier is precluded from interposing a defense in an action to recover assigned first-party no-fault benefits if it fails to pay or deny the claim within 30 days, where it has reason to believe that the claim fraudulently seeks reimbursement for medical supplies that were never delivered to the insured.  The Second Department held that an insurer must do so because  its proposed defense in this case is not based on a lack of insurance coverage.

For a good discussion of the Second Department Decision and Order, see No-Fault Paradise's post here.

NYCL will keep you abreast of developments in this case.

New York Court of Appeals Will Hear Yet Another Scaffold Law Appeal

The New York Court of Appeals will hear oral arguments in yet another Labor Law sec. 240(1) case this month -- Berg v. Albany Ladder Co.  In Berg, the plaintiff was hurt during the course of unloading steel trusses from a flatbed truck at a construction site.  The Appellate Division, Third Department Majority determined that the accident wasnot caused by the lack of a required safety device but, rather, by the improper movement of the trusses moved by a forklift.

Appellate Division, First Department Determines Superintendent Is Not Protected Under Labor Law

In Coombs v. Izzo Gen. Contr., the Appellate Division, First Department determined that the building's superintendent was not a protected person under Labor Law secs. 240(1) and 241(6).  The building was undergoing demolition and construction. 

The Court noted that

[the] plaintiff did not perform work integral or necessary to the completion of the construction project, nor was he “a member of a team that undertook an enumerated activity under a construction contract” * * *. As superintendent of the building, [the] plaintiff was responsible for maintaining the building, keeping it clean, supervising the building staff, and watching for unsafe conditions. Although the demolition and construction work made his job more difficult insofar as it affected the portion of the building that was not under construction, [the] plaintiff was not responsible for inspecting the areas of the building under construction. Nor was he responsible for performing any work related to the construction, and his job duties did not change after the project commenced