Congratulations to Keri A. Wehrheim for a great result on appeal in Maya v Town of Hempstead (2015 NY Slip Op 03507) decided on April 29, 2015 by the Appellate Division, Second Department. Here, our homeowner was sued by a plaintiff in a slip and fall case for a defect on the abutting sidewalk where the municipality did not impose a statutory liability on the homeowner. The Appellate Division stated : "An abutting owner or lessee will be liable to a pedestrian injured by a dangerous condition on a public sidewalk only when the owner or lessee either created the condition or caused the condition to occur because of a special use, or when a statute or ordinance places an obligation to maintain the sidewalk on the owner or the lessee and expressly makes the owner or the lessee liable for injuries caused by a breach of that duty."

Congratulations to Rich Brown for a Defense Verdict on May 12, 2015 for damages in Kings County Civil Court before Judge Joseph in the case of MARY HEINITZ v DANIEL H JJUNG, (Index Number: 300284/10). Great result Rich!

Congratulations to Paul Duer for a great result in Queens County on April 29, 2015 in KIRWAN KHER v KENNETH ROSELLO, (Index No. 701647/13) on a damages trial before Judge Weiss. An offer of $175,000 was made to the plaintiff to settle the case before the verdict, in response to a $750,000 demand. The jury came back with a $140,000 verdict. Extraordinary effort Paul and a great result!

Congratulations to Diana LaPadula for an important win on a Fire Loss Claim. Summary judgment was granted to our Insurance carrier, eliminating a $400,000 exposure. Great work Diana!

Q. Driver "A" is a driving car insured under his sister's out-of-state policy which provided SUM benefits of 100/300. The policy specifically excluded from the definition of an "insured" for SUM coverage, any person who is insured for uninsured motor vehicle coverage under another vehicle policy. Driver "A" has his own policy with another carrier which provided SUM Benefits. Can the primary insurance carrier, who insured the vehicle, disclaim coverage in New York for SUM benefits?

A. NO---see Matter of Government Employees Ins. Co. v Johnson (2014 NY Slip Op 08433) decided on December 3, 2014 Appellate Division, Second Department.

"[I]nsurance policies, like all contracts, should be enforced according to their terms unless they are prohibited by public policy, statute or rule" (Liberty Mut. Ins. Co. v. Aetna Cas. & Sur. Co., 168 A.D.2d 121, 131). "If an attempted exclusion is not permitted by law, the insurer's liability under the policy cannot be limited" (Matter of Liberty Mut. Ins. Co. [Hogan], 82 N.Y.2d 57, 60). Here, the exclusion contained in the uninsured motorist coverage endorsement of [the] personal automobile liability policy is not permitted by law. "Insurance Law § 3420(f)(1) requires that every automobile insurance policy contain an uninsured motor vehicle endorsement. Neither that statute nor any regulations applicable to it mentions any exclusions" (Matter of Liberty Mut. Ins. Co. [Hogan], 82 N.Y.2d at 60; cf. 11 NYCRR 60-1.1[c][3][i]; Ohio Revised Code 3937.18). Since the exclusion is "without the approval or protection of the law" (Rosado v. Eveready Ins. Co., 34 N.Y.2d 43, 48), it should not be given effect (see Matter of Liberty Mut. Ins. Co. [Hogan], 82 N.Y.2d at 58; Matter of Progressive Northeastern Ins. Co. v. Yeger, 30 AD3d 524, 525-526). Further, where as here, the policy does not contain a term stating that coverage is limited to the statutory minimum, if such exclusion is found to be invalid, no such limitation will be read into the policy (see Royal Indem. Co. v. Providence Washington Ins. Co. 92 N.Y.2d 653, 659; cf. Connecticut Indem. Co. v. Hines, 40 AD3d 903). Consequently, [the] policy must be read as affording liability up to its full limits."

Read the decision here.

Duty to Defend "Intentional Acts"

Our insureds often do bizarre things. A recent case had the insured's son involved in a fight at a party, biting his adversary on the ear and in the stomach. What carrier contemplated such actions when they issued a Homeowner's policy? Does the carrier have to defend such indiscretions when the inevitable lawsuit comes in?

A leading case regarding disclaimer for Intentional Act is Automobile Insurance Company of Hartford v. Cook, 7 NY 3d 131 (Court of Appeals, 2006). Therein, the Court had to decide whether the Carrier had a duty to defend an insured sued in a wrongful death action, resulting from a shooting committed in self defense. The Court noted the size of the decedent was three times the size of Cook (the shooter), and the decedent had previously attacked Cook and injured him. The Complaint alleged that Cook "negligently discharged a loaded shotgun into the decedent's abdomen" and further separately alleged that this was intentionally done. Cook acknowledged that he knew the shot would injure the decedent, but he "had to stop him" and he did not anticipate killing him. The Court analyzed whether "an occurrence" was involved, giving rise to policy coverage, and if so, whether it was excluded, as "expected or intended". The Court noted that the duty to defend is "exceedingly broad," and the insurer is required to provide a defense where the allegations "suggest a reasonable possibility of coverage" Continental Cas. Co. v. Rapid American Corp., 80 NY 2d 640 (1993). If liberally construed, the claim is within the embrace of the policy, the insurer must defend its insured, no matter how groundless, false or baseless the suit may be. Ruder & Finn 180 v. Seaboard Sur. Co., 52 NY 2d 663 (1981). Importantly, our courts have held that the duty remains "even though the facts outside the four corners of the pleadings indicate the claim may not be covered". Fitzpatrick v. American Honda Motor Co., 78 NY 2d 61 (1991). Thus, the carrier may be required to defend under the policy, even though it may not be required to pay once the litigation has run its course.

The Court of Appeals in Cook, supra, additionally held that unless the carrier can demonstrate that the allegations of the Complaint are "solely and entirely within the policy exclusions" and that the allegations are "in toto" subject to no other interpretation, the carrier owes the duty to defend. Allstate Ins. Co. v. Mugavero, 79 NY 2d 153 (1992).

The Court of Appeals held, where the Complaint alleged negligence against Cook, the allegations, if proven, would fall within the scope of the policy as a covered "occurrence" (i.e. either an unintentional or unexpected event, or to an intentional event with an unintentional or unexpected result. Miller v. Continental Ins. Co., 40 NY 2d 675 (1976). The Court conceded that the fact finder could ultimately reject that Cook negligently caused decedent's death, given the evidence of intentional behavior, "but that uncertain outcome is immaterial to the insurer's duty to defend in an action where it is alleged that the injury was caused by the negligent conduct of the insured."

If the complaint alleges "negligence" in the commission of the act, the more prudent course would be to defend under a reservation of rights. A separate declaratory judgment action may be required to disclaim coverage under the terms of the policy.

Unfortunately, the holidays produce a spike in accidents involving driving while impaired or intoxicated. According to the National Highway Traffic Safety Administration, 32,719 people died in traffic crashes in 2013 in the United States including an estimated 10,076 people who died in drunk driving crashes, accounting for 31% of all traffic deaths that year.

What responsibility does a passenger hold for getting in the car with a driver who the passenger knows is intoxicated? Can the Defendant escape or diminish liability with an assumption of risk defense?

In theory, a passenger can be charged with assumption of risk. The relevant case law holds:

"A passenger who is aware that intoxication has deprived the driver of reasonable control of the automobile may be found to be negligent, Strychalski v Dailey, 65 AD3d 546, 883 NYS2d 586 (2d Dept 2009); Bergeron v Hyer, 55 AD2d 1001, 391 NYS2d 767 (4th Dept 1977); Verdino v Hayes, 10 AD2d 978, 201 NYS2d 853 (2d Dept 1960); Burnell v La Fountain, 6 AD2d 586, 180 NYS2d 52 (3d Dept 1958). To take the issue to the jury there must be evidence, in addition to the fact that the parties drank together, from which impairment of driving ability can reasonably be inferred, Eisenberg v Green, 33 AD2d 756, 305 NYS2d 769 (1st Dept 1969); see Coleman v New York City Transit Authority, 37 NY2d 137, 371 NYS2d 663, 332 NE2d 850 (1975)."

The jury charge in New York on this issue is PJI 2:87 Motor Vehicle Accidents-Comparative Negligence of Passenger:

"Generally, a passenger is not responsible for the negligence of the driver of the vehicle. A passenger is entitled to assume that the driver will use reasonable care and will obey the traffic laws until the passenger has knowledge of facts indicating that the driver will not do so. A passenger must, however, use reasonable care for his/her own safety. Reasonable care means that degree of care that a reasonably prudent passenger would use under the same circumstances. In deciding whether the Plaintiff used reasonable care, you should consider all the circumstances in connection with the accident and the facts as you find them, including ([use factors which the evidence supports, such as:] the condition of the highway, the traffic conditions, the condition of the weather and of visibility, the Plaintiff's knowledge and experience with respect to the highway, his/her knowledge of the competency, ability, skill and condition of the driver, and the driver's apparent awareness of potential dangers). If you find that the Plaintiff failed to use reasonable care for his/her own safety you will find that he/she was negligent and you must then consider whether such failure was a substantial factor in causing the Plaintiff's injury."

The case of Strychalski v Dailey, 65 AD3d 546, 883 NYS2d 586 (2d Dept 2009) is controlling law in the Second Department. Here, the the Plaintiff failed to establish as a matter of law that he was free from culpable conduct with regard to the causation of his injuries (see CPLR 1411; Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365; Beck v. Northside Medical, 46 A.D.3d 499, 846 N.Y.S.2d 662; Regan v. Ancoma, Inc., 11 A.D.3d 1016, 782 N.Y.S.2d 480; Halvorsen v. Ford Motor Co., 132 A.D.2d 57, 522 N.Y.S.2d 272). An individual who accepts a ride in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur. That risk should be considered as part of the analysis of the comparative negligence of the passenger and the operator of the vehicle (see generally Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d at 166-170, 490 N.Y.S.2d 751, 480 N.E.2d 365; Beck v. Northside Medical, 46 A.D.3d at 500, 846 N.Y.S.2d 662; Regan v. Ancoma, Inc., 11 A.D.3d at 1016, 782 N.Y.S.2d 480; Halvorsen v. Ford Motor Co., 132 A.D.2d at 62, 522 N.Y.S.2d 272).

A complete investigation of the case is necessary to give an opinion on the ability to diminish an award to the Plaintiff based on comparative negligence. I suggest you obtain the plea allocution from the guilty plea the insured driver took to driving while intoxicated and vehicular assault. You can also make a FOIL request for his police file to ascertain his level of intoxication. Plaintiff's BAC should be on the toxicology screen in the hospital record. If they were both high numbers and they were both out drinking together, you have at least the building blocks of this defense.

In my experience, a jury is reluctant to charge a passenger with assumption of risk with a guilty plea of the driver to DUI and the serious injuries sustained by the passenger. You have a tough battle to prevail on that issue.

Some results from 2014 which deserve mention are:

A January 31th verdict in Kings County Supreme Court for Rich Brown, Celeste Hill v. Russell Dolecal (14932/11). The jury found our client 50% responsible and also found the Plaintiff sustained a serious injury under the threshold requirement of the No-Fault law. Total damages awarded were $2,500. This could be the lowest damage award of the year.

A Defense Verdict on damages on February 5th in Queens County Supreme Court for Paul Duer in the matter of Kim v. Schulman (700405/11).

A Defense Verdict on damages on February 6th in Bronx County Supreme Court for Tim Jones against two Plaintiffs in the matter of Charles Seltzer & Tannika Corbett v Cassandra Eugene (310283/09).

A Defense Verdict on March 28, 2014 for Paul Duer in Civil Court, Queens County, in the matter of Zheng v. Chiusano, (300639/12).

A Defense Verdict on threshold grounds before Judge Greco in Queens County Supreme Court for Tom Craven on May 20, 2014 in the matter of Nicole E. Madtes v Alicia Scher, (700475/12).

A great result on June 10, 2014 for Rich Brown in the case of Opal Stevens v. Absolute Trucking, Inc. in Kings County (Index No; 14869/11). The case was tried with "high/low" parameters of $25,000 - $225,000 in a Summary Jury Trial before Judge Solomon. The Jury verdict was $0 for pain and suffering (past and future) and $9,000 for lost wages. And, we were only found 60% at fault. Absent the "high/low" our client's share would have been $5,400.

A great result for Lester Rodriguez for his verdict in Kings County before Judge Spodek on May 30th in the case of Noilya Ahadova v. Ner Bresler and Mark Lovy (Index No.: 20241/2011). The jury awarded the Plaintiff $56,000 for past lost earnings and $50,000 for past pain and suffering with no award for future alleged damages. The Plaintiff, a pedestrian, sustained fractures of the ulnar and radius bones in the right arm. She underwent open reduction internal fixation on August 30, 2011. In addition, her scalp was lacerated and was stapled closed. She was discharged from the hospital three days post accident. Among other challenges, our client was not present; suffering from Bi-Polar disorder; and on suicide watch at Staten Island Hospital. Despite a finding of 100% liability against our client, the award was less than our stipulated "high/low" agreement of $150,000.

A Defense Verdict on damages for Frank Scahill in the case of Byron Kjono v. Barbara Held (Index No 6792/07) on June 9, 2014 before Judge Brown in Nassau County.

A Defense Verdict on damages for Frank Scahill on August 8, 2014 before Judge Fernando Tapia of Bronx County in the matter of Adiani Gashi v. Victoria Vogel-Blumenthal (Index No.: 302761/10).

A Defense Verdict on liability for Tom Craven on October 2, 2014 in Suffolk County Supreme Court in Anthony J. Losito v. Barry L. Chandler, Luisa McConnell and Elizabeth Ortiz (Index No. 1872/12).

A Defense Verdict on liability on October 29th in Queens County Supreme Court for Paul Duer in the matter of Boucher-Valot v. Valot (Index No.: 16503/12).

A Defense Verdict on liability on November 5th in Queens County Supreme Court for Gil Hardy in the matter of Lyons v. Boukas (Index No.: 722/12).

A Defense Verdict on liability on November 19th in Queens County Supreme Court, for Paul Duer in the matter of Jean Brun v. Carol Lee (Index No.: 16814/12).

A Defense Verdict on liability for Rich Brown on December 12th in the case of Foxworth v Wales before Judge Rothenberg. (Index No.: 3068/12).

A Defense Verdict on liability for Tim Jones on December 22nd in the case of Jordania v Hardy (158129/13) in New York County before Judge Michael Stallman.