Monthly Archives: May 2012

App. Div: School’s are Not Insurers of Student’s Safety During Recess

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In Benavides v Uniondale Union Free School Dist., the infant-plaintiff – a second-grade student – commenced an action against his school for inadequate supervision after he was pushed down a slide by a fellow student during recess. The school established its entitlement to summary judgment by showing the playground was adequately supervised and that the level of supervision was not a proximate cause of the subject accident. In affirming the decision, the Appellate Division stated schools cannot reasonably be expected to continuously supervise and control all movements and activities of its students and cannot be held liable for every thoughtless or careless act by which one pupil may injure another.

Notably, the Second Department considered the plaintiff’s 50-h hearing testimony. Typically, trial courts have required a hearing to determine if an infant is swearable (understands the obligation to testify truthfully) before considering any testimony. Here, the plaintiff’s attorney claimed that the testimony was inadmissible because of his client’s age. However, the court refused to consider the plaintiff’s argument stating it was improperly raised for the first time on appeal. Thus, as the swearability of an infant plaintiff does not present a pure question of law appearing on the face of the record, the Courts have the discretion to consider an infant’s testimony at face value without such a hearing.

Thanks to Bill Kirrane for this post.  If you have any questions or comments about this post, please email Paul at

Time is Ticking …. New Decision Issued on Untimely Disclaimers (NY)

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The New York Appellate Division has confirmed that an insurer must immediately disclaim on late notice grounds even if it is in the midst of investigating whether other policy provisions apply. In AIU Ins. Co. v. Veras, the insurer prepared a disclaimer of coverage letter once it learned that the insured had failed to notify it of the claim in a timely manner. The insurer then waited 15 days to issue the disclaimer letter because it was continuing to investigate whether other policy provisions applied to bar coverage for the claim.

The insured argued in a declaratory judgment action that the insurer had waived its right to disclaim on late notice grounds because it had waited too long to issue the disclaimer letter. The court agreed and ruled that the carrier’s 15-day delay constituted a waiver because an insurer has to immediately deny coverage on late notice grounds. The court disregarded the insurer’s ongoing investigation. The court did not discuss the impact of its ruling on the “one disclaimer” rule which requires an insurer to rely on all grounds for disclaiming coverage in one letter.

Thanks to Mendel Simon for his contribution to this post.  If you would like more information please write to

 

New FSMA Rules Still in Limbo.

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The Food Safety Modernization Act (“FSMA”) was supposed to result in a dramatic restructuring of the US food industry.  And someday soon it might.  But to implement its strategic vision, tactics (i.e. rules) need to be implemented.  The four key rules (for preventative controls for food facilities, preventive controls for animal feed facilities, the foreign supplier verification program and the produce safety rule) were supposed to be ready for comment in January.  But, the proposed rules have yet to be published by the White House Office of Management of Budget’s Office of Information and Regulatory Affairs.  The cause of the hold-up is unknown, but in this election cycle (and given Congress’s unwillingness to fund the FSMA), our guess is that politics (and not in the good Artisotelian sense) is to blame.

For more information about this post, please contact Bob Cosgrove at .

 

 

Who Said What? NJ Court Decides Hearsay Within Hearsay in Medical Records Can be Admissible

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May an expert rely solely on a “hearsay within hearsay” statement in medical records when forming an opinion as to a defendant doctor’s negligence?  The answer, according to the recent New Jersey Appellate Division decision in Konop v. Rosen is yes, if it meets certain hearsay rule exceptions.

In Konop, the plaintiff’s colon was allegedly perforated during a colonoscopy performed by Dr. Rosen, and plaintiff sought to introduce expert testimony as to the cause of the perforation.  Plaintiff’s expert opined that “defendant deviated from accepted medical standards by failing ‘to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred.’”  The expert based this opinion exclusively on a notation in the hospital consultation report, written by a first-year attending physician, which included a statement allegedly made by Dr. Rosen herself that the patient was moving during the colonoscopy.

After an evidentiary hearing, the Law Division judge opined that the notation in the report was inadmissible hearsay, ordered it redacted, and granted summary judgment to Dr. Rosen. In his oral opinion, the judge cited the unreliability of the notation as underlying the finding of inadmissibility.

On review, the Appellate Division reversed the ruling and remanded the matter.  The appellate panel concluded that the medical record constituted a business record, and that the only issue as to admissibility was whether the disputed statement met one of the hearsay exceptions.  The panel ultimately found that, if plaintiff could prove that Dr. Rosen made the statement found in the hospital consultation notes, the statement would fall under an exception to the hearsay rules, and would be admissible.  The decision as to whether Dr. Rosen in fact made the statement at all would be a question for the jury, and would be determined based upon the preponderance of the evidence.

While this decision does not change the rule that an expert’s opinion may not be solely based upon an inadmissible hearsay statement, it does clarify the manner in which such statements that would otherwise be hearsay may be made admissible.

Thanks to  Christina Emerson for her contribution to this post.  If you would like further information please write to .

 

PA Superior Court: Unfair Trade Practices Violation = Bad Faith?

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In the case of Berg, et al. v. Nationwide, the plaintiffs were insured by Nationwide when their SUV was significantly damaged in an accident.  The plaintiffs took their car to a preferred Nationwide vendor for repair and the car was returned after 4 months.  About a year after the repair, the plaintiffs were advised (by an ex-employee) that their SUV might be subject to structural failure.  Plaintiffs sued Nationwide alleging breach of contract, negligence, common law fraud, conspiracy, violation of the UTPCPL and insurance bad faith, 42 Pa.C.S.A. § 8371.  The jury found for plaintiffs during the first part of a bifurcated trial, deciding that Nationwide violated the catchall provision of the Unfair Trade Practices and Consumer Protections Law.  However, during part two (the bad faith part) of the trial, the trial court granted Nationwide’s motion for a directed verdict in part because it found that Nationwide’s violation of the UPTCPL did not mandate or allow a finding of bad faith against Nationwide.

The Superior Court overturned this decision. It held that its decision in Romano v. Nationwide had direct application to the case at hand. Romano held that a plaintiff seeking damages under the insurer bad faith statute section 8371 may, as a means to prove bad faith, introduce evidence that the insurer violated any of Pennsylvania’s insurance statutes, even if the statute does not provide for a private right of action. Here, the jury’s finding against Nationwide was not sufficient in and of itself to support a finding of bad faith, but Nationwide’s violation of the UPTCPL was held to constitute some evidence of bad faith. The Superior Court went on to explain that because there was some evidence of bad faith, a directed verdict in favor of the insurer was improper.  Yet another peril for insurers to avoid in PA.

Thanks to Remy Cahn for her contribution to this post.

If you would like further information, please write to

 

Potential Break in the Gardner Museum Theft? Reputed Mobster Alleged to Have Info

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A reputed Connecticut mobster, Robert Gentile, was arrested in February of illegally selling prescription pain killers and was subsequently arraigned on a number of weapons charges.  But of interest are the comments made by Assistant U.S. Attorney John Durham in federal court in Connecticut that the FBI believes Gentile “had some involvement in connection with stolen property” related to the theft of masterworks from Isabella Stewart Gardner Museum in Boston in 1990.

But the comments have remained vague, as Durham said FBI agents have had “unproductive discussions” with Gentile about the theft but did not elaborate further.  Gentile’s lawyer denies that his client is involved with the art theft and claims that prosecutors  are “piling on” with the gun charges.

We shall continue to follow this story to see if anything further develops.

If you would like more information about this post, please write to Mike Bono a