Monthly Archives: December 2012

Untimely Disclaimer? Argue No Occurrence.

Posted on by

It is often forgotten that while an insurer bears the burden of proof in establishing the applicability of an exclusion, the insured first bears the burden of proving an occurrence.

The continued viability of this rule was recently reaffirmed by New York’s  Appellate Division, Second Department.

In State Farm v. Raabe, State Farm’s insured Joseph Alessi was allegedly involved in a fight with Sean Raabe and Anthony Bisignano, Jr. in a church parking lot.  State Farm brought an action seeking a declaration that it had no duty to defend Alessi for his actions.  However, before commencing its declaratory action, State Farm did not issue a timely disclaimer; Raabe and Bisignano moved for summary judgment on that basis and argued that State Farm had waived the right to contest coverage.  In opposing their motion, State Farm did not dispute that its disclaimer was untimely.  Instead, it argued that a disclaimer was completely unnecessary because the claim did not fall within the coverage terms of its insurance policy.

The court agreed with State Farm.  It held that there was a question of fact as to whether the fight was an “accident” and thus an “occurrence.”  State Farm lives to fight another day.

Thanks to Michael Nunley for his contribution to this post.

 

Though Plaintiff Alleged Negligence Against NYC Bus Driver, Court of Appeals Holds that Bus Was Not Proximate Cause of Accident.

Posted on by

In Cividanes v. City of New York, plaintiff alleged that she was injured as she “she stepped off the last step [of the bus] into a hole [on the street] and fell.”  Plaintiff sued the City of New York, the Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority (hereinafter collectively the “MTA”).  The case against the City was dismissed based on a lack of prior written notice of the hole.  The MTA moved to dismiss based on plaintiff’s failure to sustain a “Threshold Injury,” under New York’s No-Fault Insurance Law.  However, the Court of Appeals held that since the accident occurred due to “step[ping] into a hole,” the No Fault Law was inapplicable because the “use or operation” of the bus was neither a “proximate cause” nor an “instrumentality” that produced plaintiff’s injury.

This decision seems bizarre given that that the City was let out of the case, and the only remaining defendants was the MTA.  Indeed Judge Pigott wrote a lengthily dissent wherein he disagreed with the majority.  In his opinion, he noted that plaintiff’s claim against the MTA was based upon a breach of duty to stop at a place where she could safely disembark.  The claim was that the driver positioned the bus next to a hole in the street when stopping the vehicle.  As such, Judge Pigott’s opinion was that since plaintiff’s claim was that the bus driver was “negligen[t] in the . . . operation of a motor vehicle,” the No Fault Law should have been applicable.

The moral of this story is that New York State No Fault Law is extremely fact specific, and oftentimes courts, even the Court of Appeals, come to conclusions that appear to defy prior precedent and the logical application of the statute to the facts.

For more information about this post, please contact Cheryl Fuchs at .