Intentional Tortious Act Is An Assault And Battery

In QBE Inc. Corp. v. Jinx-Proof, Inc., the Supreme Court, New York County had to determine whether a complaint alleging both negligence and intentional acts regarding the throwing of a glass into the underlying plaintiff’s face was an assault and battery. QBE issued a general liability policy to Jinx-Proof. Jinx-Proof operated bar where an altercation arose between the underlying plaintiff and a security guard/bouncer. The security guard allegedly threw a glass in the underlying plaintiff’s face, causing injuries. QBE then brought a declaratory judgment action alleging coverage was excluded due to the assault and battery exclusion.

The court noted that, while negligence was alleged by the underlying plaintiff, the cause of action was rooted in intentional tortuous behavior. “The pleadings clearly demonstrate that the main act, which would give rise to any recovery, is [the security guard’s] alleged intentional throwing of a glass object. The possibility that the insured may be found liable under a theory of negligence does not overcome the policy’s assault and battery exclusion and any injury resulting from such acts.” The court granted QBE summary judgment that it did not owe a duty to defend or indemnify its insured.

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Understanding The Importance of Disclosing Your Expert Witness.

Parties rely on expert testimony not only at trial but also when making and opposing summary judgment motions. Accordingly, it is important to know when a party needs to disclose the identity of his expert witness.

In New York, CPLR 3101(d)(1) requires parties to identify each person whom they expect to call as an expert witness at trial. However, this section does not indicate a deadline by which expert disclosure must be made.

The Appellate Division, Second Department recently decided, in Vlahakis v. Belcom Development LLC, that the defendant was not allowed to include his expert’s affidavit in his opposition to the plaintiff’s summary judgment motion because the expert’s identity had not been revealed until after the note of issue and certificate of readiness had been filed. Further, the defendant failed to show good cause for the delay. Accordingly, the court considered the opposition without the expert’s affidavit, which was insuffcient to overcome the plaintiff’s motion.

Thanks to Georgia Stagias for her contribution to this post.

NJ Sup. Ct. Bars Heirs Wrongful Death Claim Where Decedent Was Uninsured Motorist

In Aronberg v. Tolbert , the Supreme Court considered whether the heirs of an uninsured motorist killed in a motor vehicle accident have a claim under the Wrongful Death Act , N.J.S.A. 2A:31-1 et seq, or whether N.J.S.A. 39:6A-4.5(a) which bars a lawsuit for personal injuries by an uninsured motorist, also bars the survival action.

The Appellate Division in affirming the trial court, found that the Wrongful Death Act granted the heirs an independent right of recovery, regardless of the decedents failure to purchase mandatory automobile insurance. The panel, in part, found nothing in the language of 39:6A-4.5(a), which supported a Legislative intent to punish innocent family members who are the beneficiaries under the Wrongful Death Act, for the decedent’s act of driving while uninsured.

The Supreme Court reversed finding that when an uninsured motorist’s claim is barred by 39:6A-4.5(a) , an heir has no right to recovery under the Wrongful Death Act. It determined that the Legislature intended for the 39:6A-4.5(a) lawsuit bar to also apply to the decedents’s next of kin in a wrongful death action.

Aronberg v. Tolbert ( A-9-10) decided August 9, 2011.

Please contact Robert Ball with any questions regarding this post.

Planning To Live At Premises Not Sufficient To Make Property “Residence Premises”

In Tower Insurance Company v. Khan, the Supreme Court, New York County held that Tower did not owe defense or indemnity to a property owner that did not live at the premises. Tower issued a homeowner’s policy to Khan that only provided coverage to a specific insured location, the “residence premises,” defined as the dwelling where the insured resides. The underlying plaintiff was injured while performing renovations at the property, and commenced an action against the insured. Tower denied coverage because the insured did not reside at the premises.

The insured submitted an affidavit in opposition to Tower’s summary judgment motion indicating that she intended to reside in the property after the renovations were complete. The court therefore held that, based upon the insured’s own affidavit, the property was not a residence premises, and thus Tower did not have an obligation to defend of indemnify the insured.

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Beer Pong Decision Bounces the Wrong Way for Bar Owners (NY)

Beer pong is one of the many activities that college students participate in when they tell their parents that they are studying. But take the game away from college, and disaster can ensue, as seen in Venito v. Salverson, et. al.

Plaintiff Thomas Venito and defendant Mark Salverson were playing beer pong at KJ’s Ale House on Staten Island, and the two had an argument about the rules of the game. The bartender twice tried unsuccessfully to intervene. The argument then escalated into fight, which the bartender also could not stop, so he called 911. Salverson was arrested, convicted of misdemeanor assault, and served 60 days in jail. Plaintiff suffered facial and ankle fractures and sued Salverson and the bar.

The bar moved for summary judgment, claiming the responsibility for plaintiff’s injuries fell solely on defendant Salverson. The judge denied the motion, holding that a jury might find that staffing the bar with only one bartender was insufficient security over Memorial Day weekend. The court also pointed out that the bartenders multiple efforts to stop the dispute were ineffective, and a jury might find that he should have called 911 before things escalated. It therefore held there was an issue of fact as to the claims of negligent security, hiring, and training.

Interestingly, the court also found that plaintiff presented a prima facie case for liability under the Dram Shop. Plaintiff needed, in essence, to establish that the bar served alcohol to a knowingly intoxicated person. The court pointed out that, under any set of rules, the common objective of beer pong is the “copious consumption of alcoholic beverages.” The game encouraged excessive drinking at the bar, and the bar provided the alcohol to the participants. The court said that Salverson’s “aggression” was a common sense way for the bartender to observe visible evidence of intoxication.

It remains to be seen whether this decision stands up on appeal.
But I think one lesson learned is to agree on the rules before you play bar games.

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Insurers Await Hurricane Irene

New Yorkers, fresh from an earthquake, are now bracing themselves for Hurricane Irene.

At the same time, insurers for all of the East Coast, from Maine to Florida, are also keeping a close eye on the storm’s path for several reasons. Some experts have estimated that if the storm makes ground near New York City or Boston, it has the potential to be a $10 billion disaster.

The storm’s impact on New York City will play a key role in the calculation of total storm damage, as four of the most costly floods in the past 30 years, in terms of insurance claims paid, have included the New York region.

The threat of the storm may also give renewed interest to the proposed catastrophe fund that we posted about last year.

Of course, there are some who believe Hurricane Irene’s silver lining may be its potential influence on firming up an insurance market which has been unable to raise rates in several years amid oversaturation of the market and heavy competition. This trend, coupled with the increase in worldwide natural disasters in 2009 and 2010, has crippled some insurers in recent years. So while the eastern seaboard braces for Irene’s impact, the insurance and reinsurance markets carefully await to see its multi-faceted impact on the industry.

Thanks to Chris O’Leary for his contribution to this post. If you would like more information, please write to

Larceny by Trick Covered as Robbery Under Crime Policy (NY)

VAM Check Cashing Corp. operated three check cashing stores in Brooklyn. On the date of the loss, a VAM cashier, while on the phone with the wife of the owner of the company, received a frantic call from a cashier at another VAM store indicating a state tax collector was on site looking for payment and needed cash. The owner’s wife instructed the cashier to give $120,000 to “Mr. Windfrey,” and that he would deliver the cash to the second location. Soon thereafter, Mr. Windfrey arrived with the secret code, and the cashier handed him the $120,000. But after speaking with the owner later in the day, the cashier realized she had been duped, and that both of the callers and Mr. Windfrey were all criminal imposters.

VAM submitted a claim to Federal under its Crime Insurance Policy, which covered, among other things, Robbery. But VAM denied the claim, asserting that this loss did not meet the policy definition of Robbery, which was defined as “the unlawful taking of insured property from an Insured … by violence, threat of violence or other overt felonious act committed in the presence and cognizance of such person.”

VAM filed suit against Federal in the Eastern District of New York, and filed a motion for summary judgment. Federal took the position that “overt felonious act” meant that the employee needed to be aware that a crime was being committed, and that, for example, a larceny by trick was not covered under the definition. Federal also took the view that in “the presence and cognizance” of the cashier meant that she not only needed to be physically present when a felonious act took place, but she must have also known that something criminal was occurring.

The Court, in awarding summary judgment to VAM, found the language of the policy was ambiguous. Looking to the criminal law, it found that “overt” meant any substantial act that furthers the goals of the conspirators. The Court looked to various dictionary definitions of “cognizance” and determined that in this context, it meant the employee needed to have power or control over the item taken.

Frankly, while these definitions cast by the Court seem a bit tenuous, the more persuasive point made in the decision was that Federal’s position would have rendered the robbery by non-violence coverage in the policy definition superfluous.

If you would like more information about this decision, please write to Mike Bono at

Alternate Reality: NJ Court finds Coverage for Spoliation Litigation Strategy that Could Have Been

Typically, whether an insurer has a duty to defend is determined by the four corners of the complaint. But in Carlin v. Cornell, Hegerty, & Koch a New Jersey appellate court not only looked to facts that arose “during the resolution of the underlying dispute,” but also considered whether an alternate litigation strategy would have triggered coverage.

In the original lawsuit, plaintiffs, employees of a construction company, alleged that they were exposed to high levels of lead while working on a construction project on the Ben Franklin Bridge; one of the allegations was that the construction company intentionally concealed information about the employee’s lead exposure. CIGNA provided a defense to the construction company, and a no-cause verdict was rendered in favor of the defendants after a jury trial.

Plaintiffs then filed another lawsuit, alleging that the defendants fraudulently concealed or destroyed evidence (commonly known as “spoliation”) during the first trial. But CIGNA denied coverage, finding that such claims were not covered as an “occurrence” under its CGL policy. Ultimately, the trial court agreed with CIGNA.

But the Appellate Division reversed, even though it agreed that the spoliation claims themselves were not covered under the policy. The Court held that there would have clearly been coverage if plaintiffs successfully moved for relief from the trial judgment based on newly discovered evidence,” or “fraud… misrepresentation, or other misconduct of an adverse party.” The Court found that plaintiffs’ spoliation complaint was, “in effect, an attempt to reopen the first litigation on the covered claim on the ground that it did not have all of the pertinent evidence.” Therefore, the defendant seeking coverage “understandably expected the insurer who provided the defense in the first action to do the same here regardless of the merits.”

Because plaintiffs could have recovered damages for the covered personal injuries by way of motion to vacate the judgment in the personal injury action — and because plaintiffs would not have been required to prove any intentional misconduct — the defendants were, in essence, faced with covered and noncovered claims. Under such circumstances, a carrier is required to defend until all covered claims have been resolved.

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New Jersey’s Product Liability Act – Not Always an Esacpe Hatch for a Product Lessor.

In the case of Bashir, et al. v. Home Depot, et al., the federal trial court in New Jersey was faced with the question of whether the New Jersey Product Liability Act protected Home Depot from a lawsuit arising out of its rental of a Husqvarna stump grinder. Under the statute, a product lessor is “relieved from liability for injuries caused by a defective product it leases to the public, provided that it files an affidavit certifying the correct identity of the manufacturer of the product which allegedly caused the injury.” Based upon the statute, Home Depot moved for summary judgment. The trial court denied the motion. It held that under the facts presented, Home Depot had not proven that the exceptions to the statute, i.e. (1) the product seller has exercised some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect in the product which caused the injury, death or damage; or (2) the product seller knew or should have known of the defect in the product which caused the injury, death or damage; or the plaintiff can affirmatively demonstrate that the product seller was in possession of facts from which a reasonable person would conclude that the product seller had or should have had knowledge of the alleged defect in the product which caused the injury, death or damage; or (3) the product seller created the defect in the product which caused the injury, death or damage, did not apply. The fight against Home Depot will continue.

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