As if we didn’t have enough reasons to fear the doctor…

In [i]New York Cent. Mut. Ins. Co. v. Med. Diagnostic Imaging[/i], the Poughkeepsie County City Court, was recently asked to determine if a medical provider was responsible for an engagement ring that was either lost or stolen after the technician requested that plaintiff remove it before undergoing a PET scan.

Plaintiff’s subrogror, Rousseau, went to MD Imaging to undergo a PET scan and a CAT scan. At no point before the test did anyone advise Rousseau that she would need to remove her jewelry. In addition, there were no lockers or safes for personal belongings and no signs about what to do with one’s personal belongings. When the technician met with Rousseau, he did not tell her to remove her jewelry. It was only when Rousseau was alone and situated on the PET scan machine when the technician instructed Rousseau to remove her engagement ring. Upon taking the jewelry, the technician stated, “Don’t worry, I’ll take care of it.” The technician placed the ring atop the hamper in the PET scan room and it was never found again.

After trial, the court found that plaintiff had established a bailment between the parties. This put the burden on the defendant failed to come forward with a reasonable explanation for the loss, which it did not. The court noted that had the defendant come forward with an adequate explanation, plaintiff would have had to prove negligence.

Thanks to Gabriel Darwick for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_21345.htm

In the case of [i]Heebner v. Nationwide Insurance[/i], the EDPA (Goldberg, J.) was faced with the question of whether an insurer’s obligation for compensatory damages includes an obligation to pay for delay damages. For those unfamiliar with Pennsylvania’s peculiarities (it is, after all, a Commonwealth), delay damages are a statutory addition (prime rate plus 1%) that is added to a plaintiff’s damages award if the award occurs more than one year after the lawsuit was commenced. Plaintiff argued that delay damages are a form of compensatory damages in that PA’s Supreme Court has defined their purpose as a form of indemnity to the plaintiff “for the money he would have earned on his award if he had promptly received it.” In contrast, Nationwide argued that because PA’s delay damages statute indicates that delay damages are “added to the amount of compensatory damages”, they cannot, by definition, be compensatory damages. The trial court sided with the plaintiff. It held that the Nationwide policy was ambiguous in that it did not specifically state that compensatory damages did not include delay damages, and that delay damages are, in fact, a form of compensation to the plaintiff.

So, the moral of the story is that – in Pennsylvania, if you don’t want to be liable for delay damages, you need to specifically exclude them from coverage.

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

In 2007, plaintiff Edward Rogers and defendant Charles Duffy drank one or two beers and Duffy’s girlfriend’s apartment, then went to a bar and had another beer or two. Afterwards, Duffy and Rogers left the bar with Duffy driving and Rogers as a passenger in Duffy’s vehicle. At some point Duffy lost control of the vehicle, veered of the road and struck a telephone pole. Rogers allegedly sustained injuries, sued Duffy, and moved for summary judgment on the issue of liability. After his motion was denied by Westchester County Supreme Court, plaintiff appealed.

The Second Department affirmed the order because Rogers “failed to establish as a matter of law that Rodgers was free from culpable conduct with regard to the causation of his injuries.” The Second Department has held that a passenger in a vehicle, with knowledge that the operator may be intoxicated, takes a risk that injury might occur. That risk should be considered as part of the analysis of the comparative negligence of the passenger and the operator of the vehicle. Therefore, in order to prevail on this motion, plaintiff would presumably need to demonstrate that he was not aware that Duffy was intoxicated, which he likely would not have been able to do.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06832.htm

E-discovery — a phrase certain to strike fear in the heart of any insurance company or claims professional! Yet, notwithstanding the fear factor, we have seen many clients and insurers (none of which, of course, were represented by us) ignore or pay scant attention to the litigation hold requirement. The company that does so, does so at its own peril as this recent district court opinion makes clear. The failure to properly impose a litigation hold and the resultant negligent destruction of records subjects the destroying party to sanctions and spoliation, i.e. an adverse inference charge. Strong medicine indeed.

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