New York Civil Law

Appellate Division, Fourth Department Holds the Term "Household" is Ambiguous in Automobile Liability Insurance Policy

The Appellate Division, Fourth Department in Rohlin v. Nationwide Mut. Ins. Co., recently held in a declaratory judgment action that the term "household" is ambiguous and, therefore, cannot be interpreted as a matter of law.  The underlying case involved an automobile accident in which the plaintiff/operator of a vehicle owned by Mortensen allegedly went over an rough patch in the road and flipped over.  The plaintiff's daughter was a passenger in the vehicle, and she commenced a personal-injury action against the plaintiff operator and the owner of the vehicle Mortensen.

The plaintiff sought coverage from Nationwide Mutual Insurance Company under separate automobile liability insurance policies issued by Nationwide to her and Mortensen. Although Nationwide agreed to provide coverage under the policy issued to Mortensen, it denied coverage under the policy issued to the plaintiff on the ground that Mortensen is a member of the plaintiff's household and coverage extends to the plaintiff only if the plaintiff was operating "a motor vehicle owned by a non-member of [the plaintiff's] household."  The plaintiff operator commenced a declaratory judgment action seeking coverage to the plaintiff under her policy.

The Court observed that the term "household," as used in insurance policies, is ambiguous.  Thus, the Court stated that the term's "interpretation requires an inquiry into the intent of the parties."  It concluded that the issue of interpretation of the term should go to a trier of fact, taking into account the reasonable expectations of the average person purchasing automobile insurance.

Case Law After Hiraldo v. Allstate Ins. Co. - Appellate Division, First Department Interprets Policy's Coverage Limits in Lead Paint Loss Exposure

As New York Civil Law posted awhile back, the New York Court of Appeals in Hiraldo v. Allstate Ins. Co. wrote a straightforward opinion concerning the interpretation of a non-cumulation clause in a business liability policy regarding an underlying lead paint exposure case (see post).  In a somewhat different scenario, the Appellate Division, First Department in Ramirez v. Allstate Ins. Co. held that the following policy language limited coverage to the insured/building owner to $200,000:

"Regardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability under the Coverage X -Family Liability Protection for damages resulting from one occurrence will not exceed the limit shown on the Policy Declarations. All bodily injury and property damage resulting from continuous or repeated exposure to the same general conditions is considered the result of one occurrence."

The  infant plaintiffs were claiming in this declaratory judgment action that since there were two injured infants who ingested lead paint in the insured's building at separate times, the insurer was liable for $400,000 instead of the coverage limit of $200,000.  The First Department rejected that argument and declared that the coverage was only for $200,000, or $100,000 for each infant (pursuant to the policy language).  The infants' ingestion of the lead paint constituted one occurrence, irrespective of them ingesting the paint at different times.  The Court also rejected the infant plaintiffs' argument that the policy language was only to prevent multiple recoveries by a single claimant where policies have been renewed, as in Hiraldo.

Anniversary of One of This County's Most Famous Tort Law Decisions - Palsgraf v. Long Island Railroad Co.

On February 24, 2006, almost 78 years to this day, attorneys in Palsgraf v. Long Island Railroad Co. argued issues of tort law to the New York Court of Appeals.  A testament to the well-crafted majority and dissenting opinions by Judges Cardozo and Andrews, respectively, is that attorneys still use this decision for guidance.  Here is the Record on Appeal for the case.

I'd recommend lighting fireworks in celebration of this momentous event, but I fear that is what sparked the lawsuit in the first place.  How about just curling up with the decision and treating yourself to a good read of this landmark decision.

New York Court of Appeals Decides Issue on Illegal Immigrants Ability to Seek Future Lost Wages

In perhaps one of the more disappointing decisions I have read in awhile, the New York Court of Appeals handed down its decisions today in Balbuena v. IDR Realty LLC and Majlinger v. Cassino Contracting Corp.  In these appeals, the Court held that illegal aliens are not precluded from seeking and recovering future lost wages in personal injury litigation based on violations of a defendant's purported violation of the Labor Law, even in light of the Federal Immigration Reform and Control Act of 1986 and  Hoffman Plastic v. Nat'l Labor Relations Bd.

For a complete background of these appeals see the following posts: here, here, here, here, and here.

In his dissenting opinion, Judge R. Smith aptly picks up on the gaps in the Majority's holding that an illegal alien can recover lost wages and that a defendant can present the plaintiff's illegal status to the jury.  The disappointing aspect of the Majority's opinion is its broad application to future cases, while simultaneously disposing of an important issue -- the plaintiff's inability to mitigate damages -- based on the unique facts of these particular appeals.

It will be extremely interesting to see how future cases will handle the mitigation of damages issue.

Here are some early reports on the decision: this article from The Journal News and this article from 1010 Wins.com.

New York Civil Law Celebrates Two Years of Publication

This week will mark the second anniversary of New York Civil Law.  Almost two years ago to this day, I created this Weblog and first wrote about a New York Court of Appeals case that still raises my hackles.  Since that day, I have been blessed with readers of this Weblog and commentators on it.  The experience has been an amazing one, and I hope it continues for long into the future.  As always, I thank you the readers for your loyalty and comments.  I hope you have enjoyed this Weblog as much as I enjoyed and still enjoy writing it.

Below is an excerpt of a letter that one of my favorite persons in history wrote to his brother.  Although this quote from Vincent van Gogh is obviously more fitting for the brilliance of van Gogh, I provide it for this occasion nevertheless.  His paintings and words consistently inspire me.  This Weblog is part of the, hopefully, truthful work I am striving to achieve.

Thank you for all your comments, kind words, and support throughout these past two years.

"It must be good to die in the knowledge that one has done some truthful work and to know that, as a result, one will live on in the memory of at least a few and leave a good example for those who come after. A work that is good may not last forever, but the thought expressed by it will, and the work itself will surely survive for a very long time, and those who come later can do no more than follow in the footsteps of such predecessors and copy their example."

New Northern District of New York Rules

Although this Weblog concentrates on New York civil law, information about federal practice in the Second Circuit is just as important as state law news.  Thus, I am posting about Nicole over at Sui Generis, who has an informative post about updates concerning the rules of the Northern District of New York.

Warning to Self-Insured Employers or Workers' Compensation Carriers - Recent New York Court of Appeals' Decision Regarding Preserving Rights to Offset of Third-Party Settlement

The New York Court of Appeals' decision today in Matter of Alan J. Brisson v.  County of Onondaga provides a clear warning for self-insured employers and workers' compensation carriers.   The Court held that self-insured employers or workers' compensation carriers must preserve their rights to any offset expressly and unambiguously when consenting to settlement of a third-party action, regardless of whether there is an existing lien against the claimant's recovery.  When you juxtapose Judge Read's decision for the Majority with Judge R. Smith's dissenting opinion, the best advice for following this rule is to make the letter preserving the right for an offset as clear as possible, with no room for ambiguities.

What makes the necessity to preserve the right for the offset even more important is the Court's observance of the standard of review appellate courts give as to whether the employer or carrier unambiguously preserved the right.   The Court observed that whether an employer adequately preserved its right to a future offset is a factual issue for the Workers' Compensation Board, and that means the support of substantial evidence is all that is needed for the court's to determine the Board's determination is conclusive.

New York Court of Appeals' Recent Decision Answers Some Certified Questions on Vehicle and Traffic Law sec. 388(1)

As New York Civil Law posted in May 2005, the United States Circuit Court of Appeals for the Second Circuit certified five questions to the New York Court of Appeals regarding the interplay between the permissive user statute pursuant to Vehicle and Traffic Law sec. 388(1) and summary judgment (see prior post for the certified questions).

The New York Court of Appeals recently answered some of those certified questions in Country Wide Ins. Co. v. National Railroad Passenger Corp.  The decision is an important one for two distinct reasons.  First, the Court explained that even where there is evidence of uncontradicted statements by the driver and owner of the vehicle that the driver did not have permission to use the subject automobile, that evidence might not necessarily warrant summary judgment in favor of the owner.  The Court's discussion of the applicable case law makes this decision important to read carefully to understand the interplay between sec. 388(1) and summary judgment.

The second important part of this decision is the Court's explanation of its certification process.  The points are subtle, yet helpful to understand the fine line that certified questions walk between decisions and advisory opinions.  As we know, the Court cannot render advisory opinions and thus the Court's certification rules require that the certified questions be determinative on the matter before the Second Circuit.   The Court's explanation as to why it did not answer certain certified questions shows how the Court protects its jurisdiction. 

Also check out footnote four for the Court's comment about its recognition that its role is not to apply Federal Rules of Civil Procedure.

New York Court of Appeals Decides Important Civil Procedure Issue Today

The New York Court of Appeals' decision today in Harris v. Niagara Falls Board of Educ. is a cautionary tale about civil procedure.  It addresses the situation where a plaintiff fails to take the correct steps in commencing an action -- in this case, the plaintiff's failure to purchase a new index number sealed his fate.

The plaintiff was allegedly injured by a vehicle that was owned by the defendant.  He failed to file a notice of claim within 90 days of the incident.  As such, the plaintiff commenced a special proceeding to seek leave to file and serve a late notice of claim.  In doing so, the plaintiff purchased an index number.  The Court granted leave for the plaintiff to file and serve the notice of claim against the City of Niagara.

The plaintiff thereafter retained different counsel, who commenced a second special proceeding to seek leave to file and serve a late notice of claim on the City's school board and school district.  The plaintiff's attorney used the same index number.

The plaintiff immediately thereafter initiated an action against the City, school district and school board by filing a summons and complaint with the Niagara County Clerk's office; however, the plaintiff used the same index number as was assigned to the previous late notice of claim applications.  Soon after, the defendants moved to dismiss the complaint pursuant to CPLR 3211 as time-barred, claiming that the plaintiff's failure to purchase a new index number resulted in the action not having been properly commenced prior to the expiration of the statute of limitations.

The Court of Appeals agreed, holding that the plaintiff did not comply with the commencement-by-filing system in using an index number from a prior special proceeding.

When Can a Court Sua Sponte Declare a Mistrial in New York?

Justice Nadelson wrestled with the following difficult question in East Coast Med. Care, P.C. v. State Farm Mut. Auto. Ins. Co.: Under what circumstances can a court declare, sua sponte, a mistrial?  This case involved a dispute over first-party benefits under an automobile insurance policy.

The trial judge in the matter heard part of the testimony, but had to break for the holidays.  Thereafter, the trial was to commence but the Office of Court Administration transferred the trial judge to a criminal part.  OCA allowed the trial judge some time to finish up the trial, but  the trial was unable to finish up during that time period. 

Justice Nadelson held that the trial judge's declaration of a mistrial was appropriate.  She noted that, because it is a bench trial, it would be seemingly improper for a substituted judge to render a decision based on evidence he or she did not hear, given by witnesses whose credibility he or she could not evaluate. Therefore, because a different judge could not be allowed to continue the trial, Justice Nadelson addressed whether the trial judge's reassignment constituted a sufficient unexpected disability to warrant the declaration of a mistrial.   She held that it did and upheld the declaration of a mistrial.