In a recent criminal trial in New Jersey, Police Officer Fine testified on behalf of the State. After he concluded his testimony — and right before closing arguments — the officer encountered one of the jurors on the courthouse elevator. The juror told the officer “you did fine.” He then added “the defense lawyer was kind of crazy” (according to the juror) or “defense attorneys can be a__holes” (according to the officer).

The jury convicted the defendant of cocaine possession shortly thereafter. At some point during deliberations, the police officer reported his conversation to the prosecutor, who then reported this to the judge. The judge conducted a hearing on the issue, and determined the juror exhibited a bias he did not reveal during voir dire, and further, failed to follow the court’s instructions to refrain from forming any opinions or reaching any judgment about the evidence until after the case had concluded and the jury had been charged on the law. The Court declared a mistrial, vacated the conviction, and granted the defendant a new trial. The Appellate Division affirmed the decision, agreeing that the juror improperly failed to disclose his prejudicial views during voir dire.

Typically, jurors say whatever they can during voir dire in an effort to get excused from a jury. It seems like this juror had a big mouth but bad timing.

If you would like further information about this post, please contact Mike Bono at

http://www.leagle.com/unsecure/page.htm?shortname=innjco20100302280

A case that may influence future hurricane claims in Florida — and perhaps bad faith claims in general — was recently before the Florida Supreme Court on certification from the 11th Circuit Court of Appeals.

In Chalfonte Condominium Apartment Ass’n, Inc. v. QBE Ins. Corp., S.D. Fl., No. 06-81046-CV-DMM, a Florida condominium association won an $8.1 million jury verdict against its insurer for its claim after Hurricane Wilma in 2005. In its lawsuit, the condo association set forth two claims against its insurer: breach of contract and breach of implied obligation to act in good faith. The trial court allowed the insured to present evidence at trial — before the jury had assessed the amount of the insured’s damages — that it took the insurer about 18 months to assess damages. On appeal, the insurer argued that the evidence “tainted” the damages portion of the trial and thus the jury increased the insured’s damages award after learning about the insurer’s alleged delay tactics.

When confronted with the appeal, the 11th Circuit asked the Florida Supreme Court to opine on whether an insured’s claim of breach of good faith should be treated as a claim of bad faith. This is important because generally, evidence supporting a bad faith claim is presented only after the jury has assessed the amount of damages under a breach of contract claim to avoid prejudice against the insurer. QBE argued that claims of bad faith and lack of good faith are equivalent in this respect and the trial court erred in allowing the evidence to go before the jury.

At oral argument, the Florida justices seemed receptive to the argument that the insured’s presentation of the claim as lack of good faith rather than as bad faith “is a distinction without a difference.” Some justices also stressed that potential prejudice to the insurer is one of the reasons that bad faith claims should not be brought together with breach of contract claims.

We now shall have to wait and see if sympathy at oral argument translates into good law.

If you have any questions about this post, please contact Bob Cosgrove at .

Specials thanks to Mendel Simon for his contributions to this post.

http://www.law.com/jsp/article.jsp?id=1202445786445&src=EMC-Email&et=edi

Fast Lane car service applied for insurance, and represented to Liberty Mutual that it was based in Suffolk County and operated an airport limousine service. Liberty then issued a policy, and calculated the premium according to Fast Lane’s statements.

Subsequently, Liberty learned that Fast Lane instead operated a “for-hire” transportation service in Brooklyn — a much riskier venture than Liberty thought it insured. In an unusual move, Liberty filed suit in federal court for the difference in premium that it would have charged Fast Lane had it been aware of the true nature of its business. The Court, on default, agreed that Fast Lane had made both intentional and negligent misrepresentations, and awarded Liberty the $174,193.00 difference in premium, as well as pre and post-judgment interest.

What we find unusual about Liberty’s strategy is that it did not move to rescind the policy based on the misrepresentations. As it recognized, a “for hire” car service is a riskier operation because its drivers are more likely to be involved in accidents — and we wonder if any resulting lawsuits are pending. Having been awarded the additional premium, we query whether recision remains an available option. And even if it is, Liberty would simply need to return more premium to its insured (assuming the award is ever paid).

If you have any questions about this post, please contact Mike Bono at .

In Salvador v. New York Botanical Garden, the plaintiff alleged injuries after she collided with a telephone booth that was located in a hallway inside of the New York Botanical Garden. Verizon had installed the telephone, but not the booth itself. The plaintiff alleged that the defendants were negligent in maintaining and creating a dangerous condition based on the placement of the booth. Verizon moved for summary judgment arguing that the booth was an open and obvious condition and that they did not install it. The lower court denied the motion, but the First Department reversed that decision, noting that Verizon neither installed the telephone booth nor maintained the premises and its surrounding lighting. In doing so, the court upheld the long-standing principle that without a duty owed, there can be no causation and no liability.

Thanks to Lora Gleicher for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01730.htm

Philadelphia’s Main Line. It conjures up images of blue bloods, The Philadelphia Story and, of course, Kobe Bryant who graduated from Merion High School. The communities of the Main Line are so well off that they decided to give all high school students a free laptop so as to level the academic playing field. What could possibly go wrong?

Well, for starters, the computers had webcams. And the webcams could be activated remotely. So, when school officials believed that “improper” behavior was afoot, they did what any good sleuth would do — they turned on the webcams, so they could see what their students were doing. This just might have gone unnoticed except that school officials decided to confront the students whom they believed had acted improperly using their webcam spying as evidence. This did not sit well with students and a federal class action lawsuit in Philadelphia has resulted.

It sure gives a whole new real world impact to the “big brother” world of Huxley and Orwell that all high school students must familiarize themselves with. Property tax increases (to defend the lawsuit) and insurance claims by the school district will surely follow.

If you have any questions about this post, please contact Bob Cosgrove at .

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202443815317&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20PM%20Legal%20Alert&cn=TLI_WANTED20100226&kw=Students%20Accuse%20School%20District%20of%20Spying%20Through%20Webcams

In Douse v. City of New York, et.al, the plaintiff claims she tripped and fell on “a piece of metal sticking out of the concrete”. In this regard, the plaintiff stated “the first time” that she observed the piece of metal was one month after the alleged accident when she returned to the scene with her attorney. The defendant moved for summary judgment on the grounds that plaintiff could not identify what caused her fall, which was fatal to her claim. Contrary to established case law, the Supreme Court, Kings County, denied the defendant’s motion.

However, on appeal, the Second Department refused to allow the lower court to resuscitate this fatal flaw. The Second Department held that “a trier of fact would be required to base its finding of proximate cause on pure speculation” and dismissed the plaintiff’s claim.

Thanks to Edward Lomena for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00921.htm

In Douse v. City of New York, et.al, the plaintiff claims she tripped and fell on “a piece of metal sticking out of the concrete”. In this regard, the plaintiff stated “the first time” that she observed the piece of metal was one month after the alleged accident when she returned to the scene with her attorney. The defendant moved for summary judgment on the grounds that plaintiff could not identify what caused her fall, which was fatal to her claim. Contrary to established case law, the Supreme Court, Kings County, denied the defendant’s motion.

However, on appeal, the Second Department refused to allow the lower court to resuscitate this fatal flaw. The Second Department held that “a trier of fact would be required to base its finding of proximate cause on pure speculation” and dismissed the plaintiff’s claim.

Thanks to Edward Lomena for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00921.htm

In County of Bergen Employee Benefit Plan v. Horizon Blue Cross and Blue Shield Of New Jersey, the Apellate Division held that under the Collateral Source Rule, a county with a self insured benefits plan for its employees is not entitled to pursue a subrogation action to recover medical expenses the plan paid to its insured. The insured was a county employee who brought personal injury/ medical malpractice claims against third party tortfasors. In Perreira v. Rediger, the Court held that the collateral source rule, N.J.S.A. 2A:15-97, barred the plaintiff’s healthcare carrier from recovering medical expenses by reimbursement or subrogation, with limited exception. The found that nothing in Perreira suggested that there was a statutory exception for a self insured municipality.

Please contact our New Jersey office with any collateral source rule questions.

http://www.judiciary.state.nj.us/opinions/a0616-09.pdf

In Ruiz c. City of New York, plaintiff was injured when he was assaulted by other children at a public playground. The question was whether supervision of a playground was a “proprietary” function, for which the City could be held liable, of a “governmental” function, for which no liability could attach.

The court noted that the determination whether to provide security at the playground is exactly the discretionary type of resource-allocation function that is a governmental function and for which the city should be protected from liability absent a special relationship with the plaintiff. Because no special relationship existed, summary judgment was granted to the city dismissing the complaint.

If you have any questions about this post, please contact David Tavella at