Material Misrepresentation in Auto Policy Application

In Consumer First Insurance v. Lee, the plaintiff appealed a dismissal of its declaratory judgment action against its insured. The Superior Court Appellate Division reversed and remanded, concluding that the insured made a material misrepresentation on his automobile insurance application regarding his lifelong epilepsy. As a result, plaintiff was required to extend only minimum mandatory statutory amounts of coverage to all claimants.

Thanks to Sheila Osei for her contribution to this post.

Evidence Required to Link Alleged Defect With Accident

In Bishop v. Marsh, plaintiff commenced an action in a trip and fall case to recover damages. The Supreme Court, Suffolk County granted a motion for summary judgment to the defense and plaintiff appealed. The Appellate Division Second Department affirmed the decision holding that while plaintiff testified that the lighting at the location of her fall was inadequate at the time of her fall, plaintiff failed to testify in her deposition or claim in her answer to summary judgment motion that she tripped because of the poor lighting. In essence, plaintiff neglected to match the cause with the effect and in doing so failed to raise a triable issue of fact.

Thanks to Michael Monteith for his contribution to this post.

Plaintiff’s 241(6) Claim For Asbestos Exposure Unsupported By Industrial Code Part 12 Regulations

To mount a 241(6) claim, it must be properly supported by a violation of a concrete provision of Industrial Code, part 23.

In Nostrom v. A.W. Chesteron Co., plaintiff commenced a wrongful death action due to plaintiff’s decedent’s exposure to asbestos in the workplace. While plaintiff’s complaint was pursuant New York State Labor Law 241(6), she solely relied upon two Industrial Code, part 12 regulations, 12 NYCRR 12-1.4(b)(3),(4) and 12-1.6(a). The landowner and general contractor defendants successfully moved for summary judgment in the trial court.

On appeal, the Appellate Division, First Department, affirmed the lower court’s decision, ruling that it is the provisions of part 23 of the Indutrial Code that serve as the predicate for Labor Law 241(6) claims. The Court found that the Industrial Code part 12 regulations that plaintiff relied on do not support an action for owner/contractor vicarious liability under Labor Law 241(6) since part 12 (“Control of Air Contaminants”) gives no indication either that it was enacted pursuant to Labor Law 241(6) or that it contemplates owner/contractor vicarious liability. Moreover, the Court held that part 12 regulations cited by plaintiff were not sufficiently specific to support a Labor Law 241(6) claim for asbestos-related injury.

Thanks to Robin Green for her contribution to this post.

Bad Times for the Economy = Good Times for Fine Arts Claims?

Art rich, cash poor — an age old problem that companies such as Sotheby’s Financial Services have long seeked to capitalize on. With the global economy in the state that it is in, the need for cash, not art, is only likely to increase. Why is this of concern to the fine arts insurance community? Because real world examples (such as the case of Michel Cohen) teach us that an uptick in provenance, title and cash claims under all risks fine art insurance is likely to follow.

Clarification of insurer’s burden on defense for material misrepresentations.

In Rafi v. Rutgers Cas. Ins. Co., the insurer declined to pay insured’s claim for losses due to material misrepresentations made by the insured. The insured filed a breach of contract action and, following a jury trial, judgment was entered in favor of the insured.

On appeal, New York’s Appellate Division, Fourth Department, ruled that the trial court committed reversible error by charging the jury that the insurer was required to prove that the alleged misrepresentations were intentional. The appellate court held that, if a misrepresentation is material, it can void a policy regardless of the insured’s intent. In order to prevail on a material misrepresentation defense, an insurer is required to submit evidence that it would not have issued the same policy had the correct information been included in the application.

Thanks to Robin Green for her contribution to this post.

Reversal Where Evidence Did Not Support The Aggravation Of Pre Existing Injury Jury Charge.

Sheffer v. Sullivan was a NJ verbal tort threshold case tried on the issue of damages only. The primary issue was whether plaintiff’s alleged back injury was a disc bulge or herniation and whether the injury was permanent. Testimony from various doctors confirmed that the plaintiff had a preexisting arthritic condition in her spine which was asymptomatic, however, no expert testified that the preexisting condition was aggravated by the accident. Over the objection of the defense attorney the Court gave the jury the aggravation charge and the jury awarded $175,000.
The Appellate Division reversed and remanded for a new trial finding that by submitting the aggravation charge to the jury, the trial court allowed the jury to award damages for an aggravation of a preexisting condition, despite the absence of sufficient evidence to support the claim. Since the verbal tort threshold required proof of a permanent back injury, the Court’s mistake in allowing the jury to consider aggravation evidence was ” capable of producing an unjust result, and constituted reversible error.”

Statute Passed In 1275 Still Good Law

New York courts have always looked to its judicial and legislative history to interpret and apply statues. In the recent case of Amalfitano v. Rosenberg, the Court of Appeals went all the way back to medieval times to review a statute to determine whether a New York law that provides for treble damages to be awarded when an attorney intends to deceive a court requires the court to actually be deceived. The Court said no.

The law in question, Judiciary Law 487, permits treble damages when an attorney is guilty of deceit. The attorney argued that, like common law fraud, the court had to be deceived. The Court of Appeals traced the history of the law to the first Statute of Westminster, adopted by the Parliament in 1275, and adopted by the New York Legislature in 1787. That statute did not require actual deceit, but only the intent to deceive, for treble damage to be awarded.

Appellate Division Finds Sequestering Of Expert Witness Was Improper.

In State v. Popovich, the New Jersey Appellate Division reversed a DWI conviction finding that it was error for the trial court to order sequestration of the defendant’s breathalyzer expert. The Court noted that the defendant’s expert was not being called to testify with respect to his knowledge of underlying facts, which might support sequestration. Rather, he was offering opinions regarding the validity and reliability of the BAC readings obtained through the breathalyzer. The Court found that the expert was entitled to hear the testimony being offered by the State as to the BAC results.

New Jersey Supreme Court Finds Violation Of Free Speech By Banning Giant Rat Balloon At Protest.

In State v. DeAngelo, the unanimous Court found that a Lawrence Township ordinance which prohibited ” banners, pennants, streamers…portable signs, balloons or other inflated signs ( except grand opening signs)” was unduly restrictive of free speech and expression. The case stemmed from IBEW Local 269 being fined for using a giant inflatable rat to protest a Gold’s Gym being built without union labor. The Court found the protest protected by state and federal constitutions, as to both labor and content.

Is it a Curb?

While the New York City sidewalk law requires landowners to take care of the city-owned sidewalks that adjoin their property, the courts have made it clear that this duty does not extend to tree-wells and curbs, which are not part of the sidewalk. In a recent case in New York County, this distinction proved more difficult to define in practice than one might suspect. A pedestrian tripped on a defect in the concrete but the court was unable to decide on summary judgment whether the defect was in the sidewalk or in the curb. Photos of the defect and an affidavit from an engineer did nothing to solve the problem, so it goes to a jury. It seems that there are curbs and there are curbs. Some are separate and distinct curb stones, while others are just an extension of the concrete that was poured when the sidewalk was built. So far tree wells remain clear and easy to define but not so the curb.