In Grossi v. Travelers Personal Insurance, the three-panel Superior Court voted 2-1 to uphold a $1,300,000 verdict that included punitive damages in a case involving a claim for UIM coverage.

The plaintiff passenger was injured in a December 2006 automobile accident.  After the accident Grossi sought his full UIM policy limit of $300,000 from Travelers, based on estimated damages of over three million dollars.  Travelers set the reserve for only $1,000 and eventually denied the claim, calling the plaintiff’s damages “highly speculative”.

Grossi then requested arbitration in 2008.  Although Travelers failed to obtain an IME prior to arbitration, it did obtain a vocational rehabilitation report.  That report never made its way into into Grossi’s file, and the adjuster failed to review it prior to arbitration.  At the arbitration, the panel awarded $4 million to Grossi.  Travelers subsequently paid its $300,000 policy limits.  On this basis, Grossi instituted a bad faith suit, and, in 2012, he was awarded almost $1.3 million in damages including punitives.

Travelers appealed.  Judge Mundy, writing for the majority, upheld the verdict, on the basis that Travelers acted recklessly in preparing for the arbitration.  Travelers’ recklessness consisted of arbitrarily disregarding plaintiff’s damages, setting a low reserve without a rational basis, and taking too long a time to investigate plaintiff’s claim.  Judge Mundy relied on precedential case of Hollock v. Erie Insurance Exchange, finding that Travelers blindly rejected Grossi’s claim.

The dissenting Judge Bowes disagreed, arguing that in Hollock, the insurer contested evidence submitted by its insured without any basis.  Judge Bowes felt that Grossi was more analogous to Brown v. Progressive Insurance, a 2004 case in which the Superior Court reversed a finding of bad faith. Judge Bowes was persuaded that Travelers evaluated the extent of Grossi’s damages and made a reasoned conclusion.

This case serves as further confirmation that “bad faith” is far from defined in Pennsylvania and that each case must be evaluated on its on merits.

Special thanks to Remy Cahn for her contribution.

For more information, contact Denise Fontana Ricci at .

In Mendez v. The City of New York, the plaintiff testified that he was riding his motorcycle in congested traffic conditions when he was unexpectedly thrown from his motorcycle after hitting a pothole.  He had been lying in the road for “less than a second” to approximately four seconds when he was hit by a  minivan that had been traveling just behind him.  After hitting the plaintiff, the van’s two front tires proceeded onto the sidewalk.  The defendant van driver testified that plaintiff’s motorcycle was approximately six meters ahead of him when it fell, and that, after he saw the motorcycle fall, he turned his minivan towards the sidewalk to try to avoid the plaintiff.

Of note, Brizuela failed to raise the emergency doctrine as an affirmative defense in his answer.  However, based upon the parties’ testimony, the lower court concluded that Brizuela had met his initial burden of establishing his entitlement to summary judgment based on the emergency doctrine.

The Appellate Division held that although the defense was not pleaded by defendant Brizuela in his answer, the deposition testimony set forth facts that constituted an emergency situation and the facts were well known to plaintiff.  Further, it was found that defendant submitted evidence sufficient to establish that he was faced with a sudden and unforseen occurrence that was not of his own making.  As such, the Appellate Division upheld the lower court’s ruling, granting the defendant’s motion for summary judgment.

Special thanks to Johan Obregon for his contribution.

For more information, contact Denise Fontana Ricci at

Typically, trials in the First Department, which includes the Bronx and New York County, are unified — meaning that liability and damages are tried together. However, the trial court is vested with the discretion to bifurcate the trial in certain circumstances. Jackson v Montefiore Med. Center was one such case.

In Jackson, the plaintiff fell after one of the defendants bumped into her. The defendants moved for a bifurcated trial, arguing that questions of liability and damages were distinct and severable issues and plaintiff’s injuries are not probative in determining how the accident occurred. The Supreme Court agreed and the First Department affirmed.

In personal injury suits in Bronx County, there are few benefits to a unified trial and many drawbacks. So if liability and damages are clear cut and distinct, take a shot a bifurcating. You never know.

Special thanks to Gabe Darwick for his contribution.

For more information, contact Denise Fontana Ricci at .

We are frequently presented with cases in which the sidewalk/street where the plaintiff allegedly fell has been remediated. Nevertheless, plaintiffs serve affidavits from experts who inspect the repaved sidewalk/street and offer some speculative conclusions. This triggers the question of whether defense experts should be retained.

In Amini v. Arena Constr. Co., Inc., the First Department affirmed summary judgment granted to the defendants.  The Court specifically found that neither defendant had performed work on the portion of the street where the plaintiff claimed to have fallen.  Of interest, the Court also found that the plaintiff’s expert, who inspected the site years after the accident and after the street had been repaved, offered a vague and speculative opinion and did not create an issue of fact.

This decision by the First Department confirms that, under the right circumstances, such expert affidavits have no probative value and will be disregarded by courts.

Special thanks to Georgia Stagias for her contribution.

For more information contact Denise Fontana Ricci at .

In Rodriguez v. Bronx Zoo Rest., Inc., the plaintiff alleged personal injuries after slipping on ice in front on the defendant restaurant. The Bronx County Supreme Court granted the defendant’s motion for summary judgment on liability, finding that the restaurant had protocols in place for how to deal with ice and snow removal after a significant snowfall.

The First Department reversed, however, because although the defendant had snow removal protocols in place, there was no evidence proffered “from a person with personal knowledge as to when the sidewalk was last inspected or as to its condition before the accident.” See De La Cruz v Lettera Sign & Elec. Co., 77 AD3d 566 (1st Dept 2010). The restaurant supervisor testified as to what was ordinarily done after a snowfall but admitted that she only visited the restaurant twice a week.  Hence, she could not say what was actually done after this particular snowfall. As such, the appellate court found that “evidence of their general procedures, standing alone, was insufficient to satisfy their burden on summary judgment.”

The Court went further, finding that even if the protocols had in fact been followed, the plaintiff presented triable issues of fact as to whether defendants had constructive notice of the danger presented by the icy condition. Looking to the weather history for the days leading up to the incident and the plaintiff’s description of a filthy patch of black ice, there was evidence that the condition could have been present for up to two days.

While ice removal protocols are good to have in place, standing alone without proof that the protocols were actually followed, they are not sufficient to establish a right to summary judgment.

Special thanks to Brian Gibbons for his contribution.

For more information, contact Denise Fontana Ricci at .