Author Archives: Denise Ricci

Unlisted Driver on Policy is an Uninsured Driver (PA)

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An auto insured has responsibility to disclose the identities of resident, non-family members who have access to the insured’s vehicle. If the insured fails to do so, it is at his own risk.

The question of whether a co-habitating  girlfriend was covered by her boyfriend’s insurer arose in the case of Safe Auto Insurance Company v. Rene Oriental-Guillermo.  The girlfriend, Rachel Dixon, and another driver were involved in a two-car accident in Allentown, Pennsylvania. A passenger in Dixon’s car, Priscilla Jimenez, filed a personal injury lawsuit against Dixon, Dixon’s boyfriend( the owner of the car that Dixon was driving), and the driver of the other car involved in the accident.

The car that Dixon was driving was insured by Safe Auto Insurance Company (“Safe Auto”). The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the Policyholder, but were not related to the Policyholder and whom the Policyholder did not specifically list on the Policy. Although Dixon and the owner lived together, the policy did not list Dixon as a driver. Safe Auto denied coverage to Dixon for the accident.

Jimenez challenged the Unlisted Resident Driver Exclusion’s applicability on a few grounds, but most notably, on the grounds that the exclusion itself violates the public policy of the Commonwealth of Pennsylvania set forth in the Motor Vehicle Financial Responsibility Law (“MVFRL”). Jimenez argued that the Unlisted Resident Driver Exclusion contravenes the MVFRL’s mandate that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance; for this reason, Safe Auto should cover the accident.

The Pennsylvania Superior Court rejected this argument, instead, ruling that the Unlisted Resident Driver Exclusion places the obligation solely on the owner of a vehicle, and not the insurance company, to ensure that anyone who drives the owner’s car has insurance.

While the MVFRL does aim to ensure that all drivers are covered, the court concluded that there was no indication in the MVFRL that the burden of ensuring coverage must fall on the insurance company. In fact, the insured is in the best position to monitor whether members of his household who intend to drive are listed on his policy. Summarily, the court stated that “there is no provision in the MVFRL that indicates that the Legislature, when it enacted the MVFRL, intended to shift the risk to insurance companies to insure individuals who live with the insured, but are not related to the insured.” It’s simply not the insurance company’s burden.

Thanks to Sathima Jones for her contribution.

For more information, contact Denise Fontana Ricci at.

NY Venue Statute For Personal Injury Actions Amended

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The New York Assembly proposed Assembly Bill A8032 (an adoption of Senate Bill S6031) which amends the State venue statute for personal injury actions. The Bill was passed in both the Assembly and Senate in June, and signed into law by Governor Cuomo on October 23, 2017.  The law is effective immediately.

The law amends CPLR Section 503 which designates venue as the county in which any one of the parties resides when the action is commenced, or in the county of plaintiff’s designation if none of the parties lives within the State.  The new law adds the following key section “the county in which a substantial part of the events or omissions giving rise to the claim occurred”.

For example, in a case involving a motor vehicle accident which occurred in Kings County between residents of Nassau and Westchester Counties, plaintiff was previously allowed to file the action in Nassau or Westchester County. Now, plaintiff can choose between Nassau, Westchester, OR Kings County.  This amendment expands upon plaintiff’s already unilateral right to choose the venue in personal injury and property damage actions.

The justification of the bi-partisan supported bill was to give the Courts and jurors of communities with the most interest in setting community standards the ability to hear such controversies. In addition, witnesses are more likely to be located in the county where the events that are the subject of the action occurred.  It will be interesting to see how case law develops, and to see if the Courts constrain the provision in circumstances where none of the justifications are met and the selection of venue appears to be merely a facet of venue shopping.

Thanks to Christopher Gioia for his contribution.

For more information, contact Denise Fontana Ricci at .

 

Biomechanics Opinion Of Low Speed Crash Sufficiently Scientific? (NY)

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The biomechanics of vehicle occupants involved in low-speed collisions is a potential defense to personal injury claims.  However, any proffer of expert biomechanical testimony should be prepared to meet the test for admissibility, i.e. proof that the opinion is based upon generally accepted principles and methodologies.

In Dovberg v. Laubach, the plaintiff was involved in a low speed chain reaction motor vehicle accident.  After securing summary judgment against the defendants on the issue of liability, the parties proceeded to a damages-only trial.  Prior to trial, defendants served an expert disclosure notice advising that they were going to call a biomechanical engineer/board-certified surgeon to opine that the force generated by the accident could not have caused the plaintiff’s knee injuries.  The disclosure notice indicated that the proposed testimony was based on deposition testimony and on the plaintiff’s medical records.  It also noted that the doctor’s opinion was based on scholarly works that had gained general acceptance in the field.  Plaintiff’s counsel filed a motion in limine to preclude the testimony because it made no reference to any empirical data or peer-reviewed journals, studies, treatises, or texts.  The lower court denied the motion, the doctor testified at trial, and the jury concluded that the accident was not a substantial factor in causing the alleged injuries.

 On appeal, the Second Department reversed the lower court’s decision and found that the defendant’s expert failed to pass the Frye test.  Specifically, the defendants failed to establish that their expert’s opinion was based on generally accepted principles and methodologies.  They noted that the rule does not require the majority of the scientific community to agree with the expert’s conclusion but, rather, the scientific community must accept the principles and methods used in evaluating the clinical data used to come to his conclusions.  The court concluded that the defendants failed to describe the methods used by their expert in drawing his conclusions and failed to provide specifics for the publications relied on including the authors, years of publication, and contents of the works.  The court also faulted the proffer for failing to provide a description of the methodology used to determine the force of the accident and the biomechanical engineering principles applied in formulating his opinion that her knees could not have contacted the dashboard.

 Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .

 

 

Construction Defect Claim Accrues When Any Property Owner Knows of Potential Claim (NJ)

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Condominium construction defect cases present thorny issues for contractors caught up in litigation years after the work is completed.  Statute of limitations defenses are often raised with a key issue being whether the trigger is substantial completion of work or whether the statute has been tolled for discovery.

In the recent case of The Palisades at Fort Lee Condominium Association, Inc. v. 100 Old Palisades, LLC, the New Jersey Supreme Court ruled that a construction defect cause of action accrues at the time the building’s original or subsequent owners first knew or, through the exercise of reasonable diligence, should have known of the basis for a claim.

In Palisades, the plaintiff condominium association filed several suits against contractors in 2009 and 2010 after it assumed control of the Board and had its own engineer investigate conditions on the property.  However, the history of the building began years earlier.  The building was constructed beginning in 1999 with substantial completion in 2002.  Initially built as a residential apartment building, the original owner had an engineering evaluation performed in 2004 that found some issues with the construction but generally reported it to be in good condition.  That same year, the property was sold and converted to condominiums.

The public offering for the condominiums included the 2004 engineering report.  By July 2006, 75% of the units had been sold and control of the association turned over to the unit owners.  The association commissioned an engineering inspection by Falcon that found a number of defects identified in a 2007 report.

The defendants moved for summary judgment, arguing that the claim was barred due to the six-year statute of limitations using the 2002 substantial completion date as the trigger for the statute. The trial court agreed with the defendants.  The Appellate Court rejected this and found that the  action had not accrued until the 2007 Falcon report when the unit-owned association learned of the defects.  In doing so, the Appellate Court rejected potential notice of the original owner.

Ultimately,  the New Jersey Supreme Court struck a middle position.  It eschewed a substantial completion of work trigger, but found that the statute of limitations begins to run when either an original or subsequent owner first has a reasonable basis to believe that a cause of action exists.    The Court remanded the case for further findings on when an owner (original or subsequent) knew or should have known of a cause of action.  This case highlights the importance of obtaining specific and targeted discovery concerning the date that a plaintiff became aware of, or should have known of, a construction defect on their property.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at .

 

 

Policy Limit Conundrum or Creative Lawyering? (PA)

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Though courts strictly interpret insurance policies with an eye towards finding coverage whenever possible, they will enforce clear and unambiguous policy terms. In Good v. Frankie & Eddie’s Hanover Inn, LLP and RCA Ins. Group on Behalf of State Nat’l Ins. Co., the issue before the Superior Court of Pennsylvania was the interpretation of the limit of coverage offered under a liquor liability coverage part in connection with a wrongful death/survival action.

The insured tavern had served alcohol to a driver who subsequently drove under the influence and crashed into the deceased motorcycle operator. The tavern’s insurance policy included a Liquor Liability Coverage Form, which provided coverage with an “Aggregate Limit” and an “Each Common Cause Limit.”  The form expressly defined the each common cause limit as “the most we will pay for all ‘injury’ sustained by one or more persons or organizations as the result of the selling, serving or furnishing of any alcoholic beverage to any one person.”  The policy’s declarations page did not include this latter term but expressed the applicable liquor liability limits as $500,000 for “Each Occurrence” and $1 million “Aggregate.” The plaintiff took the position that the term “each common cause limit” was ambiguous and not parallel to the declarations page’s “occurrence” language.

During the pendency of the litigation against the tavern, the parties reached a settlement agreement whereby the insurer agreed to pay its $500,000 limit on behalf of its insured with the understanding that a declaratory action would proceed to resolve the limit of coverage issue.

As a result of cross-motions filed by the parties, the trial court found that the policy terms unambiguously expressed the intent of the contracting parties that there would be separate liquor liability limits for Each Common Cause, i.e. claims arising from alcoholic beverage service to one person, and for the Aggregate of all claims made involving service to more than one person. Per the clear terms of the policy, there had to be a distinction between the two limits, and the declarations page, while using different terminology, provided for this in the $500,000 per occurrence limit and the $1 million aggregate limit.

The plaintiff made creative arguments to subvert the clear policy language that the court and appellate court roundly rejected. For example, she argued that the “occurrence” limit simply did not apply because this term was not defined in the liquor liability coverage part.  Alternatively, she argued that “occurrence” is ambiguous without definition and should be read to provide $500,000 per each category of damages (i.e. wrongful death and survival actions).  Finally, she claimed that the phrases “Each Occurrence” and “Each Common Cause” were not interchangeable within the insurance industry.

In affirming the lower court, the appellate court held “the only reasonable conclusion, consistent with the intention of the parties and the reasonable expectations of the insureds, is to apply the “Each Occurrence Limit” as the “Each Common Clause Limit.”

Thanks to Lauren Berenbaum for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Early Summary Judgment Is Not Always Premature (NY)

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Occasionally, there are instances where a party can feel trapped in a case in which it does not belong. The Appellate Division, Second Department’s decision in Haidhaqi v Metropolitan Transportation Authority provides guidance on moving for summary judgment in advance of the close of discovery while combatting opposing counsel’s claims that such a motion is premature.

Plaintiff Haidhaqi alleged that he was injured while working at a Metropolitan Transportation Authority project at the Culver Viaduct in Brooklyn, New York, where his employer was the general contractor pursuant to contract with the MTA. Plaintiff claimed that while painting an elevated beam, he was pinned between the railing of the boom lift he was using and the beam. His allegations sounded in violation of New York Labor Law 200, 240, and 241(6). Plaintiff’s employer was the general contractor for the Culver Viaduct project pursuant to contract with the MTA.

Defendant F&S Contracting was retained by the MTA under a separate contract as general contractor for the rehabilitation of a subway station at Smith Street in Brooklyn, which was located on part of the Culver Viaduct. Before the close of discovery, F&S unsuccessfully moved for summary judgment, which had been opposed by plaintiff’s counsel as premature.

The Appellate Division reversed the lower court, finding that F&S established that the work it performed in connection with the Smith Street Project was entirely distinct from, and unrelated to, the injury-producing work, which was part of the Culver Viaduct Project. F & S Contracting demonstrated that it discontinued its work on the Smith Street Project before the subject accident occurred. As F & S was not an owner, contractor, or agent involved in the Culver Viaduct Project, had no responsibility for procuring or supplying the allegedly defective boom lift involved in the accident, and exercised no supervision or control over the plaintiff’s work, it follows that F & S Contracting could not be held liable under any theory of liability asserted in the complaint

Plaintiff’s opposition, based solely on the claim that F&S’s motion was premature, failed to raise a triable issue of fact. The Court’s decision emphasized that a party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion. Rather, there must be some evidentiary basis to suggest that discovery may lead to relevant evidence.

Accordingly, defendant F&S’s motion for summary judgment dismissing the complaint and all cross claims against was granted in its entirety.

Thanks to Lauren Tarangelo for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Setting Chain of Events in Motion Not Necessarily a Cause (NY)

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We have all seen the scenario when a tragic accident results from a chain of events where more than one actor could have legal fault. We see this situation frequently when one of the tortfeasor’s insurance limits fall far below fair compensation, resulting in lawsuits against so called “deep pockets.”  Cases can be won on proximate cause when one party merely furnishes the opportunity for the real tortfeasor’s fault.

In the recent case of Goldstein v. Kingston, a pedestrian was struck and later died from his injuries while walking in an intersection.  The defendant driver was moving in reverse at the time of the impact. Minutes before the accident, the defendant was driving on a one-way street in Queens when she came upon workers employed by the defendant Forest Hills Garden Corporation, who were re-sodding a part of the grassy area between the curb and the sidewalk. After a worker waved at her in a manner that she understood to mean that she could not proceed further on the one-way street due to the ongoing work, defendant drove her vehicle in reverse to an intersection, where she struck the decedent, who was walking in a crosswalk.

Goldstein, as executor of the decedent’s estate and individually, commenced this action against the vehicle’s owner and driver, as well as Forest Hills Garden Corporation, to recover damages for wrongful death. The Supreme Court subsequently granted FHGC’s motion for summary judgment dismissing the complaint insofar as asserted against it. The Appellate Division, Second Judicial Department affirmed the dismissal as to FHGC.

FHGC established evidence that its employees’ conduct in performing work near the roadway merely furnished the condition or occasion for the accident, and as a matter of law, was not a proximate cause of the decedent’s injuries. The driver’s decision to reverse her vehicle and drive back down the one-way street, ultimately striking the decedent, was the sole proximate cause of the accident.

The trial court and the appellate court held that FHGC demonstrated its prima facie entitlement to judgment as a matter of law. FHGC merely furnished the condition or occasion for the accident, and was not a proximate cause of the decedent’s injuries. The court reasoned that “There can be more than one proximate cause of an accident'” and “[g]enerally it is for the trier of fact to determine the issue of proximate cause.” However, “liability may not be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event’ but was not one of its causes.”

Thanks to Vincent Terrasi for his contribution.

For more information, contact Denise Fontana Ricci at .

 

Forum Selection Backfires if Venue Improper (NY)

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Is it a plaintiff-friendly venue or a defendant-friendly venue? This is one of the first questions asked at the onset of any litigation.  Where a case is venued matters.  Nunez v. Yonkers Racing Corp. serves as a reminder to consider if the plaintiff has properly laid venue and move timely when not.

 In Nunez, the plaintiff filed his action in Kings County (widely regarded as a plaintiff-friendly venue), alleging that he resided in Brooklyn.  The accident occurred in Westchester (considered a more defendant-friendly venue).  At his deposition, the plaintiff admitted that he has always been a Bronx resident.  Defendant moved to change the venue to Westchester.  The lower court denied the motion.  The Appellate Division reversed and found that the plaintiff, in selecting an improper venue when filing his complaint, had forfeited the right to choose the venue.  Moreover, the court held that the motion to change venue, which has to be filed within 15 days of serving an answer to the complaint, was timely because the defendant promptly moved after learning the plaintiff’s true residency.

Thanks to Georgia Coats for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Risk Transfer 101 – Contractual Additional Insured Terms (NJ)

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Contractual risk transfer terms usually include indemnification and insurance clauses in tandem. A party agrees to indemnify another and, for good measure, agrees name the other in its insurance policy as an additional insured. New Jersey courts have recognized that this type of risk transfer will supersede any potential workers compensation bar to joining an employer in an action for injuries by a worker against a third party.

In Finnegan v. Inductotherm v. Greentree Food Management Inc. v. The Dunhour Insurance Agency, the full gamut of risk transfer issues played out.  The plaintiff cafeteria worker was injured in a slip and fall at work.  Greentree, the plaintiff’s employer, provided cafeteria services to Inductotherm, the building owner.

In addition to her worker’s compensation claim, the plaintiff sued Inductotherm. In turn, Inductothem brought a third-party action for breach of contract against the plaintiff’s employer, Greentree citing insurance terms requiring it to be named an additional insured.  (Curiously, there was no indemnification term.)  Greentree then filed a fourth party action against its insurance broker for professional malpractice for failing to obtain the appropriate coverage for Inductotherm.

At some point, Inductotherm settled with the plaintiff and pursued its defense and indemnification claims against Greentree.  After the trial court dismissed its claims, it turned to the appellate division.

Although the contract did not include an express indemnification term, it indisputably required the plaintiff’s employer to name it as an additional insured on its commercial general liability insurance policy. The parties did not contest that there was no such endorsement in the policy.  Thus, there really was no question as to breach of the contractual term.

Rather, the appellate division framed the question as to whether this breach resulted in damages to Inductotherm, i.e. if it had been named as an additional insured, would the policy have provided coverage for this particular claim. If so, it would have been entitled to defense and indemnification from the insurer. As a breaching party to the contract, the employer would be liable for these damages.

This ultimate question could not be answered on the basis of the record. As the court noted many additional insured endorsements contain terms that define or limit the scope of the coverage.  Without evidence of what sort of endorsement would have been provided, the appellate court could not render an opinion as to whether or what damages might be attributed to the breach of contract.  Given this, the matter was remanded for further development on these issues as well as the revival of what had been a dismissed claim as to the insurance broker.

Thanks to Ann Marie Murzin for her contribution.

For more information, contact Denise Fontana Ricci at .

 

Charitable Immunity Prevails Even Where Non-Profit Rents to For-Profit Organization (NJ)

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The New Jersey Charitable Immunity Act (CIA) bars negligence claims against  nonprofit corporations organized exclusively for religious, charitable, or educational purposes.  An entity qualifies for charitable immunity when it is formed for non-profit, educational, religious or charitable purpose, and was promoting such objectives and purposes at the time of the injury to a plaintiff who was a beneficiary of the organization’s works.

In Losado v. Princeton University, the court examined whether Princeton University, a non-profit educational organization, was entitled to Charitable Immunity when the plaintiff was injured on its campus. The key question was whether the University was engaged in its educational objectives when renting a pool on campus to an outside organization.

The plaintiff’s daughter participated in a swim meet hosted by the Princeton Tigers Aquatic Club, an organization not affiliated with the university other than pool rental.  The plaintiff was injured in a fall as she left the swim meet when she stepped into a depression adjacent to a walkway.

Princeton University filed a motion for summary judgment, arguing that they were immune from suit under the CIA.  The motion judge found that the plaintiff was a beneficiary of the University at the time of her injury, and therefore dismissed the claim under the CIA.  On appeal, the plaintiff argued that the Judge erred since the renting of a facility on the campus was not part of the “educational pursuits” that the University was organized to advance. Specifically, the plaintiff argued that youth sports by an outside organization was not an educational objective that Princeton was organized to advance. They further noted that the PTAC was not a charitable organization.

Per statutory requirement, the Appellate Court liberally construed the CIA to afford immunity to a non-profit entity even when renting facilities to members of the general public for social and recreational activities.  So long as the non-profit facility is not dominated by rentals of for-profit entities, the use of the facilities serves important social and recreational needs of the community.

Importantly, this case affirms once again that an organization is entitled to charitable immunity even when renting a portion of its property to a non-charitable organization.  These type of rental agreements are common between organizations, and will not prevent the non-profit entity from asserting and succeeding on a charitable immunity defense.

Thanks to Heather Aquino Obregon for her contribution.

For more information, contact Denise Fontana Ricci at .