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In a recent NJ Appellate case, plaintiffs Inchon, L.L.C., Russian Radio Network, L.L.C., and WRBS Radio Ethnic Media Partners MVI (collectively “Inchon” or “plaintiffs”) appeal from the dismissal of their complaint on a summary judgment motion by defendants The Hartford Fire Insurance Company and The Hartford Insurance Company of the Midwest (collectively “Hartford” or “defendants”).

On October 10, 2005, an alleged burglary occurred at the Inchon’s location, during which a significant number of servers and encoders were stolen. Inchon subsequently filed a police report and claims under its Hartford policies. Hartford undertook an investigation of the claims, and discovered that Inchon had made a misrepresentation when asked whether the company had made any other prior insurance claims. It was discovered that in 2003, Inchon made a claim with their previous insurer, Traveles Insurance, that was denied when it was determined that the claim was fraudulent.

After Hartford denied Inchon’s claim, Inchon filed suit against Hartford seeking coverage for the allegedly stolen equipment. Hartford moved for summary judgment and argued that Inchon breached the terms of the insurance agreement by misrepresenting that it had not filed a previous insurance claim with Travelers and failing to cooperate with the investigation.

The appellate court found no evidence that the misrepresentation was a mere oversight or mistake, and concluded that Hartford was justified in the denial of coverage. Further, Inchon’s abstract statement that “Inchon cooperated fully and to the best of [its] ability” was insufficient to overcome Hartford’s evidence demonstrating the contrary. “[I]t explains nothing when compared to the voluminous information in terms of questions asked and the examination under oath, the follow up letters and correspondence.” The granting of summary judgment was affirmed.

Thanks to Sheila Osei for her contribution to this post.

http://www.judiciary.state.nj.us/opinions/a3919-08.pdf

In SP & S Assoc., LLC v. Insurance Co. of Greater N.Y., the plaintiff-insured did not provide notice of a personal injury action to its insurer until receipt of a motion for a default judgment some five and a half months after service of process on the Secretary of State. The plaintiff did not actually receive a copy of the summons with notice, due to its failure to keep its address currently with the Secretary of State.

In reversing the lower court and granting the defendant’s motion to dismiss the declaratory judgment action, the First Department found that the plaintiff-insured failed to notify the defendant-insurer of an occurrence which might result in a claim “as soon as practicable,” as required by the insurance policy. It reasoned that although the plaintiff-insured did not receive a copy of the summons with notice, its failure to update its address with the Secretary of State was not an excuse for noncompliance with the notice requirements of the policy.

Thanks to Gabriel Darwick for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00415.htm

In Quinones v. Ksieniewicz, the First Department modified the decision of New York County Supreme Court, which had granted defendant’s “threshold” summary judgment motion. Plaintiff’ underwent an IME, which demonstrated no “permanent consequential limitation of use”. Plaintiff then failed to raise a triable issue of fact in opposition to defendant’s motion.

The First Department noted, however, that defendants failed to prove that plaintiff did not sustain a non-permanent injury for 90 of the 180 days immediately following the accident. The Court notes that the medical reports relied upon by defendants are dated approximately 2 years after the accident, as opposed to the six months immediately following the accident.

The Court implies, then, that if plaintiff’s medical reports are dated later than 6 months after the date of loss, no defendant can meet their burden of demonstrating that plaintiff did not sustain a non-permanent injury. This is troubling, because the statute of limitations for negligence, the most common cause of action in auto accidents, is three years. A plaintiff could conceivably wait a year to bring suit, thereby rendering a defendant’s threshold motion moot, at least as to a non-permanent injury.

Thanks to Brian Gibbons for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00270.htm