Second Department Increases Jury Award for Past Pain and Suffering.

In Baird v V.I.P. Mgt. Co., Inc., plaintiff was injured in a fall and underwent three spinal surgeries. At trial, a Westchester County jury found the defendants 70% at fault, while plaintiff was found 30% at fault. Plaintiff was awarded damages in the amount of $100,000 for past pain and suffering and $300,000 for future pain and suffering. The Appellate Division held that the amount awarded for past pain and suffering was insufficient and represented a material deviation from what would be reasonable compensation.

The surgeries involved spinal fusions at the C5-6 and C6-7 levels. The fusions failed requiring the third surgery. The plaintiff testified that she was in constant pain, and was unable to drive, work and otherwise engage in normal activities. The Appellate Division ordered a new trial on the issue of past pain and suffering, or in the alternative, that the defendants agree within 30 days to increase the verdict amount from $100,000 to $400,000. The Appellate Division found that the award for future pain and suffering, however, did not deviate from what would constitute reasonable compensation.

Thanks to Alison Weintraub for her contribution.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01599.htm

The Importance of a Comprehensive Disclaimer in NY

In 2002, Plaintiff Estee Lauder presented environmental claims to One Beacon Insurance Group under an insurance policy running from 1968-1971.

Unable to locate sufficient evidence that such a policy ever existed, One Beacon rejected the claims, indicating it was terminating its investigation and closing its file.
Apparently, it did not cite any other potential ground for disclaimer. Thereafter, further evidence of the existence of the policy surfaced and One Beacon attempted to assert a late notice defense.

But the First Department held One Beacon waived its right to assert such a defense, as One Beacon was aware of the facts supporting that potential defense but failed to cite it in its 2002 letters to plaintiff.
While the Court recognized that a late disclaimer will not create coverage where the existence of coverage cannot be established, that did not excuse an insurer’s duty to timely assert all known defenses to a claim.
The Court also held that a blanket reservation of rights allowing for a future disclaimer was insufficient, and that One Beacon’s 2002 letters denying the claim served as disclaimers, despite the fact that the term “disclaimer” was not used.

This decision serves as an important reminder that an insurer should always cite all applicable coverage defenses, even in cases where it is seems obvious that no coverage exists.

Thanks to Stephanie Chen for her contribution.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01313.htm

First Dept. Rules Landlord Has No Duty To Monitor Maximum Water Temperature: Burn Case Dismissed

Burn cases can be difficult to defend. In a catastrophic case, the ensuing disfiguring injuries pull at the hearstrings of the jurors, sometimes making it impossible for them to objectively evaluate the liability issues. In New York City, building owners sometimes feel that they are between a rock and a hard place: tenants complain if their water is not hot enough yet the owner gets sued if someone is burned for excessively hot water.

The Appellate Division recently ruled that an owner has no duty to ensure that a building’s hot water does not exceed a certain temperature. In Savory, the decedent, a mentally disabled adult, was left unattended in the bathtub by her health care attendant. The decedent turned on the hot water and was badly scalded. Plaintiff’s expert engineer estimated that the water was 161 degrees as it exited the tub’s faucet and 168 degrees as it exited the main boiler.

A New York City Adminstrative Code provision required landlords to provide water with a minimum temperature of 120 degrees “from the central source of supply.” Plaintiff argued that water in the range of 160 degreees was excessively hot and that an owner should not send water with a temperature in excess of 120 degrees to a kitchen or bathroom fixture. Not surprisingly, the defense countered that the controlling code provision only sets a minimum standard and imposes no duty on the owner to limit the maximum temperature of the hot water supply.

In a close 3-2 decision, the Appellate Division sided with the defense and dismissed the action. Since there were 2 dissenting judges, the case can be appealed to New York’s highest court as of right.

http://www.nycourts.gov/reporter/3dseries/2009/2009_01517.htm

Qualified Physician Must Review MRI Film To Overcome NJ Verbal Threshold

In the recent decision of Agha v. Feiner, the New Jersey Supreme Court held that an MRI report must be supported by the trial testimony of a physician qualified to read the report before the MRI may be accepted as proof of plaintiff’s injuries. In Agha, the plaintiff’s MRI showed a herniated disc, but neither of his two medical expert witnesses had reviewed the actual MRI film (one of the witnesses had never viewed the film and the other was not qualified to read MRIs). Thus, the Supreme Court held that the MRI report could not be introduced as objective evidence that the plaintiff had suffered a herniated disc. More importantly, pursuant to the New Jersey Automobile Insurance Cost Reduction Act (AICRA, i.e. New Jersey’s no fault statute that sets forth the verbal threshold standard) a physician must certify that a plaintiff has sustained a permanent injury based upon “objective clinical evidence” in order for the plaintiff to overcome the AICRA verbal threshold. Often, such evidence comes in the form of x-rays, MRI’s or other film studies. Thus, the Court determined in Agha that to pass the New Jersey verbal threshold based upon injuries observed in MRI film studies, a plaintiff must provide the trial testimony of a physician who has: 1) reviewed the film and 2) is qualified to read MRIs.

Thanks to Claudia Condruz for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf

Proof Items Destroyed Were “Key Evidence” Required For Spoliation Sanctions

The First Department’s recent decision in Kugel v. City of New York, et al., highlights the strict spoliation standard that must be met before the court will strike a party’s pleading. Namely, a pleading may be stricken due to the intentional destruction of key evidence. In Kugel, the named defendant, A. Jetta Towing, discarded documentary evidence, including tow truck invoices, because its president believed the corporation had been dissolved. A. Jetta, represented by this office, argued that the documentary evidence was not key evidence, as it was not the actual product, part, or component involved in the accident. Rather, it was argued that the key evidence was the motor vehicle that was allegedly involved in the accident. The First Department agreed and held that the documents were not key evidence warranting such a harsh sanction, thus reinstating the defendant’s answer.

Thanks to Lora Gleicher for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01521.htm

“Terms and Conditions” In Bid Document Do Not Constitute Binding Agreement

In Illinois Nat. Ins. Co. v. American Alternative Ins. Corp., the School Construction Authority of the City of New York and its insurer brought an action against a subcontractor’s insurer, seeking defense and indemnification for an underlying personal injury lawsuit. The insurance contract issued by the subcontractor’s insurer included as an insured “any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.” The plaintiffs conceded that the subcontractor’s contract with SCA did not contain an agreement that SCA be named as additional insureds. The plaintiffs, however, argued that a provision in the bid documents stated that the performance of work “shall be governed by” certain terms and conditions, among which was a requirement to name SCA as an additional insured. As such, the plaintiffs argued that this constituted an “agreement” in writing satisfying the additional insured provision of the subcontractor’s insurance contract. The First Department disagreed and affirmed the lower court’s decision dismissing the plaintiffs’ claims.

Thanks to Cheryl Fuchs for her contribution to this post.

Court Affirms Summary Judgment Based on a Trivial Defect

In Trumboli v. Fifth Avenue Paving, the plaintiff tripped and fell because of a depression in the defendants’ parking lot. The court considered all of the facts and circumstances of this case, including photographs of the “dip,” and concluded that the depression did not have characteristics of a trap or snare and was therefore trivial and not actionable as a matter of law. Although this issue is typically a question of fact for a jury to determine, the court here took note that the plaintiff testified that she could not judge whether or not the depression was deep.

Thanks to Bill Kirrane for his contribution on this submission.

http://www.nycourts.gov/reporter/3dseries/2009/2009_01468.htm