Insurer Has Heavy Burden on Proving Timeliness of Disclaimer in NY

New York is notoriously strict in requiring insurers to promptly disclaim coverage. In Lloyd’s v. Gray, the insurer delayed 56 days in disclaiming on an apparently air tight exclusion based on bodily injury to any employee of an independent contractor engaged by the insured. The insurer received notice of the suit, engaged an investigator to interview the insured, and disclaimed coverage in a 56 day period. The Appellate Division, First Department held that whether the insurer disclaimed “as soon as is reasonable possible” was a fact question that precluded summary judgment in favor of the insurer.

A life’s lesson for insurers underwriting risks in New York: disclaim promptly and cite all potential grounds that preclude coverage.

PA Supreme Court Addresses UM/UIM Sign-down Forms When Liability Limits Change.

We previously reported that the PA Supreme Court was reconsidering Sackett v. Nationwide Mutual Insurance Co., a case involving UIM stacking requirements when a new vehicle is added to a policy. Blood v. Old Guard Insurance Co. might foreshadow where the Court will go as in this case the Court held that the “Motor Vehicle Financial Responsibility Law (MVFRL) does not mandate insurance companies re-comply with MVFRL’s provisions regarding uninsured/underinsured motorist coverage each time a policy is amended.”

Court Cries Foul: No Duty by Stadium Operator To Non Patrons

New York’s highest court held that a stadium operator owed no duty to protect non patron fans from the risk of being struck by a car on an adjacent street. It seems that the stadium operator held a regular promotion promising free tickets to anyone outside the ball park who returned a foul ball to the box office. Tragically, a young 14 year boy was struck by a drunk driver while running into the street to retrieve a foul ball in the hope of snaring his free tickets. The plaintiff claimed that stadium’s “foul ball” policy created an incentive for young fans to chase foul balls in the neighboring street, making the risk of injury forseeable and the imposition of a duty of care reasonable. The Court of Appeals disagreed, holding that it was difficult to imagine what the stadium operator could have done to prevent the accident.

Strike three, batter out, and case dismissed.

PA Common Pleas — BAC Inadmissible Without Other Proof.

In the case of Kuna v. Lake Sheridan , the Court of Common Pleas, Lackawanna County, the Court held that defendants may introduce blood alcohol content evidence of plaintiff intoxication so long as there is sufficient other evidence of intoxication. This decision is in line with the Superior Court’s decision in Ackerman v. Delmonico, 486 A.2d 410 (Pa. 1984), in which the Court held that BAC is inadmissible without other evidence.

Father Knows Best: Church Assets May Be Valued In a Pastor’s Divorce Proceeding

The wife of a pastor sued for divorce in New York. Her attorney argued that the pastor –the wife’s estranged husband– used the church’s assets as his “personal piggy bank.” Not suprisingly, the pastor protested that he was merely a humble “W-2” employee of a duly registered not for profit religious corporation. Ruling that the church and its finances may be considered the pastor’s “alter ego” if he had unfettered control of its assets for his personal use, the court permitted the wife to pursue the valuation of the church’s assets for equitable distribution purposes.

We are reminded of the biblical admonition: You reap what you sow. (Galatians 6-7) Or the more practical lesson to be careful how much you tell your spouse if your marriage is on shaky ground.

NJ Supreme Court Weighs Admissibility of Biomechanical Expert Testimony.

In the case of Hisenaj v. Kuehner, the Supreme Court is deciding whether biomechanical expert testimony “which gauges the relationship between force and resulting impact to prove or disprove causation of injuries” meets the scientific reliability test for admissibility. A decision is expected in the spring.

EDPA’s Chief Judge — Assault Cloaked as Negligence Is Still Assault.

In the case of Essex Insurance Co. v. RMJC Inc., Essex disclaimed indemnity coverage for a claim arising out of an assault committed by the insured’s bouncer. The insured argued that indemnity coverage was mandated because the underlying plaintiff was proceeding exclusively on a negligence and not assault theory. Chief Judge Bartle disagreed and held that the assault and battery exclusion barred indemnity coverage.

Merck Settles Vioxx Claims.

In litigation arising out of the consumption of Vioxx (that allegedly caused either strokes or heart attacks), covering more than 47,000 plaintiffs in CA, NJ and Texas, Merck will pay $4.85 billion. To receive funds, plaintiffs must: (1) have medical proof of a heart attack or stroke injury; (2) documentation of receipt of 30+ Vioxx pills; and (3) documentation of receiving enough pills to circumstantially demonstrate ingestion of Vioxx within 14 days of their stroke or heart attack. Merck’s total exposure was estimated to be more than $50 billion and it has spent more than $1.2 billion in legal fees in taking 17 cases to verdict — 5 plaintiff verdicts and 12 defense verdicts.

Hearsay Problems in NY Coverage Cases.

The Appellate Division of New York’s Second Department has just issued a ruling that could present issues in proving simple coverage cases.

The Court held that an insured’s statement to the insurer’s investigator, as well as the investigator’s report, were both inadmissible hearsay. It remains unclear why the Court focused its decision on the investigator’s report, rather than the testimony regarding the insured’s apparent admission, but we hope this misguided decision is taken to the Court of Appeals.