New York Civil Law

New York Superintendent of Insurance Unveils Principles-Based Insurance Regulations Proposal

As InsureReinsure.com reports, New York Superintendent of Insurance Eric Dinallo unveiled a draft regulation that would establish a system of principles-based regulation in New York State (see post here and see press release here).

Governor Eliot Spitzer Nominates Judge Ciparick to New York Court of Appeals

BREAKING NEWS

Governor Eliot Spitzer today nominated New York Court of Appeals' Judge Carmen Ciparick to the Court for another term (see press release here).

New York Court of Appeals Recently Addresses Foreseeability Issue in Tort Action

The New York Court of Appeals' recent decision Corsino v.  New York City Trans. Auth. is not a groundbreaking one, but a nice study in foreseeability  (see Appellate Division, First Department decision here).  The plaintiff was seriously injured when she tripped over a cord lying on the platform as she exited a New York City subway station.  Defendant Transit Authority was in the process of renovating this station: Defendant contractor CAB Associates had subcontracted with Defendant Sheldon Electric for electrical work, which in turn subcontracted with Defendant Villafane for the installation of telephone lines. Villafane had installed a conduit, and the cord upon which the injured plaintiff tripped was a drag line that had been inside the conduit. 

A drag line is used by contractors to pull wire through conduits to the location of an installation. In this case, the drag line was hanging from a conduit just above a telephone back plate located in a column on the platform, awaiting the installation of a public telephone. It is assumed here that the drag line had been vandalized in such a manner that it was pulled from the conduit on the column, and left strewn on the floor.

The Court of Appeals agreed with the dissenting Justices below that a question of fact existed as to whether vandalism was foreseeable and could cause such a hazard and, if so, whether Defendants Transit Authority, Sheldon and CAB Assocs. exercised supervised or safety control over Villafane.  The Court and the dissenting Justices hinged the decision on the plaintiff's expert.  The expert observed that vandalism is a known danger when work is being performed on a New York City subway platform, and asserted that the vandalism that apparently occurred could have been avoided had the subcontractor installed inexpensive cover plates over the conduit and/or secured the drag line inside the conduit "at a location out of reach of any vandals and in manner that it would not come loose with the vibrations of trains entering and exiting the station."  He also observed that the amount of excess drag line should have been reduced so that it could not reach the floor and cause a tripping hazard if it came loose or became unsecured.

Happy Thanksgiving

I want to wish all my readers a Happy and Safe Thanksgiving.

The Pilgrims made seven times more graves than huts.  No Americans have been more impoverished than these who, nevertheless, set aside a day of thanksgiving.  ~H.U. Westermayer

New York Court of Appeals Addresses New York No-Fault Law

Today, the New York Court of Appeals in Hospital for Joint Disease v. Travelers Prop. Cas. Ins. Co. addressed whether an No-Fault insurer can raise an issue challenging the validity of an assignment of a No-Fault recipient to a medical provider where the No-Fault insurer failed to request verification of the assignment. 

The quick and dirty facts are: The No-Fault insured assigned rights to a medical provider and, in turn, the medical provider sought reimbursement pursuant to the assignment from the assignor's (the insured) insurer.  The assignment form clearly stated that the insured's signature was on file.  After the medical provider (assignee) submitted its claim to the No-Fault insurer, the No-Fault insurer did not deny or pay the reimbursement within the 30-day time period.  In its answer to the medical provider's complaint seeking reimbursement through the New York court system, the insurer challenged the viability of the assignment (essentially arguing that the assignee did not have standing to bring the claim in the first instance).

The Majority held that the insurer (assignee) failed to request verification of the assignment in a timely fashion or to contest the assignment in a timely fashion and, therefore, was precluded from raising the assignment issue.  Interestingly, the Court noted that assuming that the plaintiff was required to demonstrate the validity of the assignment to make a prima facie showing,  an assignment form stating that the signature was on file sufficed to meet the initial burden.  Judge Pigott dissented, stating that the insurer cannot be precluded from waiving an issue regarding assigment because the issue raised a threshold standing issue.

New York Court of Appeals Settles Split In Departments Regarding SUM Coverage and the "Serious Injury" Requirement

In an eerily similar decision as the Appellate Division, Fourth Department's decision in Meegan v. Progressive Ins. Co., the New York Court of Appeals in Raffellini v. State Farm Mut. Auto. Ins. Co. held that a "serious injury" exclusion in a supplementary uninsured/underinderinsured (SUM) motorist endorsement to an automobile liability policy is enforceable (see this prior post for background of case).

The Court's decision is important for the obvious reason, but also for its discussion of the statutory framework of the Insurance Law.  Equally important is the Court's discussion of the powers of regulatory agencies regarding filling in the gaps that certain legislation has left open.  In Raffellini, the Court recognized that the Superintendent of Insurance's enactment of Regulation 35-D, which interpreted New York's insurance law regarding supplementary coverage.

I am seeking your opinion regarding certain questions I think this decision left open regarding SUM coverage and the "serious injury" requirement.  The Court did not address the preclusive impact a finding of "serious injury" would have on a SUM insurer where the determination was made below and the tortfeasor and the injured plaintiff ultimately settled for the policy limits.  Will the injured plaintiff be required to demonstrate a "serious injury" twice or will the SUM insurer (not a party to the underlying action) be bound be the "serious injury" determination?  If the SUM insurer agrees to the underlying settlement or does not respond to the injured plaintiff's request to settle the underlying action, do those actions demonstrate the SUM injurer's agreement with the "serious injury" findings?

New York Court of Appeals Addresses Workers' Compensation Bar Issue Tomorrow

The New York Court of Appeals will address an interesting issue tomorrow regarding the applicability of the exclusivity provisions of the Workers' Compensation Law when an injured worker tries to sue a party purportedly acting as the employer's agent.  The issue arises in Fung v. Japan Airlines, Co.

The injured worker's employer was the Port Authority of New York and New Jersey.  He was injured while within the scope of his employment (slipped on ice in subject parking lot).  The Port Authority owned the parking lot and leased it to Japan Airlines Management Corp., which subleased it back to the Port Authority.  The lease/sublease agreement made Japan responsible for maintenance of the property, including snow removal and electrical lighting.   Japan contracted with Aero Snow Removal Corp. for snow and ice clearing.   The injured plaintiff and his wife filed this personal injury action against JAMC and Aero, among others, and JAMC commenced a third-party action against Aero for common law and contractual indemnification.

Japan argued in a motion that insofar as it entered a sublease with the Port Authority whereby it acted as the agent of the Port Authority, it may rely upon the bar provided by the Workers' Compensation Law.  The trial court rejected the argument, but the Appellate Division, Second Department agreed and dismissed the matter.

Now the Court of Appeals will wrestle with the issue.  NYCL will keep you apprised of the Decision.

Makeshift Platforms and Labor Law sec. 240(1) -- New York's Scaffold Law

What happens when a worker is standing on the ground floor but falls to a lower level?  When we think of Labor Law sec. 240(1), we frequently contemplate workers on ladders or scaffolds.

In Grigoropoulos v. Moshopoulos, the injured worker fell down to a basement when the makeshift platform upon which he was working failed.  Citing a case with similar facts (Figueiredo v.  New Palace Painters Supply, Inc.), the Appellate Department, Second Department held that the injured worked came within the ambit of sec. 240(1) becuase the evidence demonstrates that he was required to stand upon a makeshift plywood platform in order to perform his work and when that platform failed, he fell to the basement below.

Further Chipping Away at Graham v. Dunkley

As New York Civil Law has written in the past, the decision in Graham v. Dunkley -- which held that the Transportation Equity Act of 2005 was unconstitutional -- has been consistently called into question (see prior post here).  Yet another recent case has upheld the Act as constitutional --   Traitouros v. Goldstein here Download Traitouros.pdf .  In Traitouros, the injured plaintiff was a pedestrian who was allegedly hit by an automobile leased by Defendant Hoffman, LaRoche and the LaRoche Group from Wheels, Inc.  The lessors moved to dismiss Plaintiffs' claims based on the Act. 

Justice Anthony Parga of Supreme Court, Nassau County rejected Plaintiffs' argument that the Act was unconstitutional.  Justice Parga acknowledged Graham v. Dunkley and noted that he did not share its view.  Justice Parga concluded that the Graves Amendment (the Act) was constitutional, citing the Second Department's decision in Kuryla v. Halabi.

As far as I know, the appeal in Graham is still pending at the Second Department.  From its past decisions, we don't need a fortune teller to tell us what the Second Department will do with Graham.  However, we'll all have to wait to see if the appeal makes it to the Court of Appeals and, if it does, how the Court will hold.