The WCM Law Blog

In New York’s Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant’s side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court.

On appeal, the defendant did not challenge the Supreme Court’s finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff’s comparative negligence, precluding summary judgment.

In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma.

After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one’s negligence may have been a substantial factor in causing the injury, whether one party’s negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable.

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm

Thank you for Gabe Darwick for this post.

While it is unclear whether a funded study was necessary for this conclusion, a recent Consumer Reports survey has found the following two statements to be true: First, young people (ages 16 to 21) fully understand the increased danger of texting while driving. Second, that same age demographic nevertheless continues to text while driving.

Moreover, a recent study conducted by the U.S. National Highway Traffic Safety Administration found that drivers age 18-20 are three times more likely to send or receive texts or emails while driving than drivers older than 25.

Studies like these will most likely be cited in the growing movement (among some special interest groups, at least) to ban all cell phone use, even with a hands-free device, while driving.
It is unclear exactly how much steam this movement has gained, but we suspect lobbyists in the employ of companies like Bluetooth would “respectfully disagree” with such a pervasive ban of hands-free devices.

Thanks to Brian Gibbbons for this contribution.

In Kalafatis v. Royal Waste Management, the plaintiff was a passenger in a stolen vehicle that ran a red light and collided with the co-defendant’s truck. The co-defendant’s motion for summary judgment was granted. The plaintiff appealed and moved to re-argue.

The lower court granted the plaintiff’s motion to reargue and, accordingly, the plaintiff never perfected his appeal. The plaintiff’s motion to reargue was heard and the court upheld its prior decision. Once again, the plaintiff appealed.

The Second Department stated that, as a general rule, it does not consider issues on a subsequent appeal that could have been or were raised in an earlier appeal. Nevertheless, the Court used its inherent jurisdiction and discretion and agreed to hear this appeal. Unfortunately for the plaintiff, the lower court’s prior decision was, once again, upheld.

Thanks to Georgia Stagias for this post.

For more information, contact Denise Ricci at dricci@wcmlaw.com

In Quintana v. The New York City Housing Authority, the plaintiff was injured when he slipped and fell while attempting to climb over a mound of snow created along the curb of the sidewalk by NYCHA’s snow plow. The First Department held that, in the absence of evidence that the mound obstructed the crosswalk or was of such magnitude at the corner that it was more reasonable for a pedestrian to cross the street where plaintiff made his attempt, NYCHA could not reasonably have foreseen that a person in the circumstances in which plaintiff found himself would have acted as he did. Moreover, even assuming that an issue of fact exists as to whether the crosswalk was blocked by the mound, plaintiff was not in an “emergency situation,” and had other, albeit less convenient options for crossing the street, including walking back down the block, rather than crossing over the mound outside of the crosswalk.

Thanks to Ed Lomena for his contribution.

For more information, contact Denise Ricci at dricci@wcmlaw.com

Recently, the New Jersey Appellate Division addressed the question of whether an insurer can pursue another insurer of a common insured for defense cost contribution when that second insurer had already settled with the insured. Where the insurers both provided primary coverage for the loss, the carrier who paid the costs of the defense had an equitable right to contribution separate and apart from subrogation. This right is not extinguished even by a settlement with the insured.

 In Potomac Insurance Company v. Pennsylvania Manufacturers’ Association Insurance Company, the issue arose out of a claim for continuous damage from water infiltration into a public school over a period of eight years. The insured general contractor had insurance policies with several insurers over that time period. When it was sued by the Board of Education, Pennsylvania Manufacturers issued a denial letter. Potomac undertook the insured’s defense and ultimately brokered a settlement with the Board of Education. In the meantime, the defense counsel filed a declaratory judgment action against Pennsylvania Manufacturers on behalf of the insured.

 Pennsylvania Manufacturers and the insured settled for $150,000 that was applied to the overall settlement with the Board of Education. Potomac’s appointed defense counsel for the insured negotiated the settlement agreement with Pennsylvania Manufacturers.

 During the coverage litigation, that latter agreement became a critical issue. Significantly, Potomac was not a party to the agreement. Moreover, the agreement, which was initially drafted by Pennsylvania Manufacturers, included negotiated language that was subject to varying interpretations as to whether Potomac’s right to contribution for defense costs was extinguished. As a result, the court found that the ambiguous contract did not reflect a meeting of the minds. Moreover, since Potomac had a separate right to contribution, the agreement did not defeat its claim for contribution of defense costs for the underlying litigation.

 On one last issue, the Appellate Division reversed an award of attorney fees related to the insurer’s declaratory action. Since the plaintiff insurer failed to bring the coverage claim in its name within the declaratory judgment action filed on behalf of the insured, it violated the entire controversy doctrine. Had it pursued its claim in the same action, the subsequent litigation would have been avoided. The award of attorney’s fees to a successful litigant on a liability policy is an equitable remedy, which the court deemed unavailable where the insurer violated this doctrine and, thus, had unclean hands.

For more information email Denise Ricci at dricci@wcmlaw.com.