In a matter tried before Justice Peter Sweeney in Supreme Court, Kings County, James Deegan obtained a unanimous defense verdict on behalf of Coach Bus and bus driver Mark Richards after a three-day trial. The incident occurred in the eastbound lanes of the Brooklyn-Queens Expressway. Plaintiff claimed to have been rear-ended by the Coach bus while in the center lane, forcing plaintiff into a disabled vehicle partially blocking the right lane, which he would have avoided but for the impact from the bus. The bus driver claimed plaintiff was speeding and attempted to pass the bus on the right but struck the disabled vehicle that was obstructing a portion of the right lane, which forced plaintiff’s car into the bus.

Plaintiff, 32 years old at the time of the incident, claimed injuries to his shoulder requiring a right shoulder arthroscopy, an avulsion fracture to his right wrist, and lumbar and cervical herniations. Plaintiff had not worked since the day of the accident. Mr. Deegan successfully argued to the jury that plaintiff was the sole cause of the multiple-vehicle collision with his reckless attempt at passing the bus on the right while speeding, resulting in a defense verdict on liability at trial. An article describing the trial proceedings was printed in the Brooklyn Daily Eagle and can be seen by clicking here.

Matthew J. Vitucci obtained a defense verdict in a case involving a collision between defendant’s vehicle and the vehicle in which plaintiff, a sitting Supreme Court Justice, was a passenger, which vehicle was operated by her husband. Plaintiff’s husband/third-party defendant made contact with defendant’s vehicle while turning left in front of him, traveling from Gerard Avenue onto 138th Street in the Bronx. The matter was tried before Justice Edward Ritholtz in Supreme Court, Queens County.

Plaintiff’s liability expert, Robert Genna, P.E., of the Suffolk County Crime Lab testified that defendant saw third-party defendant turn in front of him for five seconds before the impact, translating to his having 183 feet of stopping distance, and that a mere tap on the brakes would have avoided impact. Defense expert witness testified that the left turn by third-party defendant gave defendant an insufficient time to activate his brakes.

The plaintiff claimed serious injuries, including a comminuted right tibia fracture, requiring surgical implantation of a bone stimulator and seven weeks of inpatient treatment, as well as a permanent diagnosis of deep vein thrombosis. The jury returned a verdict stating that defendant was not negligent in any percentage, thus wholly non-suiting the plaintiff.

VerdictSearch recently again compiled a useful chart of settlements in New York in 2014 in Construction Accident cases. The chart lists the name of the case, date of settlement, court, the type of action and injuries, the name of plaintiff’s counsel and amounts of the settlements, which range from $275,000 to $9.9 million. Out of the 33 settlements listed, 24 were over $1 million with an average settlement in the amount of $3.4 million. Click here for a copy of the Construction Accident Settlement chart for your reference.

The cases are predominantly actions prosecuted under the New York State Labor Law, meant to protect construction workers by holding construction companies, owners and contractors liable for unsafe workplace practices where regulations under this set of laws have been violated and workers injured. Should any of these settlements be of particular interest to you and you require additional information regarding the facts of the case, please contact us and we will attempt to obtain more details.

VerdictSearch compiled a similar chart of verdicts in 2011. Our summary of that chart is available at www.gvlaw.com/New-York-2011-Construction-Accident-Verdict-Summary.php.

Notably, median figures increased $150,000, from $1.75 million to $1.9 million, from 2011 to 2014.

On February 18, 2014, in a 5-2 decision, the New York Court of Appeals in QBE Insurance Corporation v. Jinx-Proof, Inc., et al., affirmed the January 18, 2013, holding of the Appellate Division, First Department, finding QBE Insurance Corporation (“QBE”) to have adequately disclaimed coverage to its insured, Jinx-Proof, Inc. (“Jinx-Proof”), with respect to assault and battery claims asserted in the underlying litigation, even though a defense was initially afforded by QBE subject to a specific reservation of rights to deny coverage pursuant to the assault and battery exclusion.

As you will recall from our January 23, 2013, Legal Alert, “The First Department Focuses On The Applicable Standard When Assessing The Validity of a Disclaimer Rather Then the Label Afforded by the Insurer,” the Appellate Division, First Department, handed down a rare 2-2-1 decision in connection with this matter on January 18, 2013, whereby it affirmed the lower court’s grant of summary judgment to QBE finding coverage was properly disclaimed in connection with the underlying lawsuit, pursuant to the assault and battery exclusion provided by the QBE Insurance Policy issued to Jinx-Proof.

This declaratory judgment action was commenced as a result of the underlying action, which arises out of a bar fight at Jinx-Proof’s Manhattan bar, and was commenced against Jinx-Proof by a patron who sustained injuries after she was hit with a piece of glass thrown by a bar employee. Within 30 days of receiving notice of the accident by Jinx-Proof, QBE issued two letters titled “Reservation of Rights” to Jinx-Proof, whereby it provided notice that although it would be affording a defense to Jinx-Proof in the underlying action, said defense was subject to a reservation of rights to deny coverage for any assault and battery claims.

As expected, the New York Court of Appeals affirmed the holding of the lower courts, with the majority holding that the first of two reservation of rights letters issued by QBE to Jinx-Proof clearly stated that QBE would not be affording a defense or indemnity to Jinx-Proof “under the General Liability portion of the policy for [the underlying] assault and battery allegations,” as said claims were clearly precluded by the policy’s assault and battery exclusion, and that Jinx-Proof did not purchase and, therefore, was not entitled to liquor liability coverage from QBE. The majority further opined that “[a]lthough the [two] letters contained some contradictory and confusing language, the confusion was not relevant to the issue in this case.” Moreover, irrespective of the fact that the letters were both titled “Reservation of Rights,” they were nonetheless effective as they specifically and consistently stated that Jinx-Proof’s insurance policy exclude[d] coverage for assault and battery claims.

Once again, we reiterate that, where even a mere possibility of disclaiming coverage under an insurance policy, an insurer must issue correspondence with unequivocal language that specifically and definitely notifies its insured of the grounds upon which coverage may be denied.

On March 31, 2014, the United States District Court for the Northern District of New York in Quincy Mutual Insurance Company v. New York Central Fire Insurance Company found the primary insurance carrier, New York Central Fire Insurance Company (“New York Central”), to have handled the defense of its insured in bad faith when, for nearly ten years after receiving a final determination as to the insured’s liability and confirming that the underlying plaintiff’s damages would far exceed New York Central’s $500,000 policy limit, New York Central refused to offer more than $75,000 to settle the underlying action. As a result, the insured’s excess carrier, Quincy Mutual Insurance Company (“Quincy”), sustained unnecessary and avoidable exposure up to its $1 million policy limits, when the underlying matter ultimately settled for $1,069,726.20, plus interest in the amount of $427,831.87. The instant action commenced due to a dispute between the insurers regarding New York Central’s obligation to reimburse Quincy for the payment of interest. (Note: the underlying action settled by entry of a stipulated judgment, pursuant to which Quincy’s rights were preserved to pursue such claim).

By way of background, the underlying action was commenced in October 2001 by the underlying plaintiff against the insured alleging that in November 2000, the insured negligently failed to yield the right-of-way of a stop sign, causing a collision with the underlying plaintiff’s vehicle. Due to the severity of the injuries sustained by the underlying plaintiff as a result of the accident, she was forced to undergo six separate surgical procedures, was unable to return to work, and was ultimately rendered disabled, with projected life care expenses between $2.4 million and $4.4 million. Immediately after the accident, the insured was cited for failure to yield the right-of-way at a stop sign and, thereafter, pled guilty to a lesser traffic violation. Therefore, after nearly eight years of protracted litigation, the underlying action settled in 2009, with New York Central paying $497,558.07, thus rendering Quincy responsible for payment of the remaining judgment in the amount of $572,168.13, plus $427,831.87 in interest.

As a result of the settlement reached in the underlying action, Quincy was exposed to indemnity up to its full $1 million policy limits, and ultimately commenced the instant action claiming that New York Central acted in bad faith with a gross disregard of Quincy’s interests as the insured’s excess insurance carrier, when it refused to settle with the underlying plaintiff on two separate occasions for significantly less than the total of both policy limits. Despite the fact that liability had already been established early on against the insured, and after sufficient evidence was received confirming that the underlying plaintiff’s injuries would far exceed the policy limits of the New York Central policy, New York Central denied several reasonable settlement demands without any basis offering no more than $75,000 to resolve the underlying action.

Of significant note for primary insurers, the court rejected New York Central’s claim that Quincy contributed to any indemnity exposure, as it failed to settle any excess exposure prior to the tender of New York Central’s policy limits. It was thus held by the court that there is “no legal obligation on an excess carrier in Quincy’s position to negotiate a claim unless and until primary coverage is exhausted” as the imposition of such an obligation would render the excess carrier a “de facto primary insurer.”

Although extreme, the Quincy holding sets a precedent that primary carriers may be held accountable for bad faith actions in connection with the handling of a mutual insured’s defense in the underlying action that so clearly and deliberately disregard an excess carrier’s interests.

On February 18, 2014, the New York Court of Appeals, in Country-Wide Insurance Company v. Preferred Trucking Services Corporation, further clarified the application of New York Insurance Law § 3420 and the requirements imposed upon an insurer that seeks to disclaim coverage based upon the insured’s failure to cooperate. Over the past 47 years, since Thrasher v. U.S. Liability Insurance Company, 19 N.Y.2d 159 (1967), the state of the New York law regarding non-cooperation coverage denials has continued to evolve. Taking this evolution one step further, the High Court most recently focused on the specific circumstances presented when it unanimously reversed the lower courts, and rendered judgment in favor of Country-Wide Insurance Company (“Country-Wide”), finding its delay in disclaiming coverage based upon the insured’s non-cooperation to be reasonable, since the insured’s failure to cooperate had not previously been apparent.

Nearly 47 years ago, the Court of Appeals in Thrasher articulated a three-prong test for determining whether an insurer can properly disclaim coverage to its insured for failure to cooperate. Pursuant to this test, the insurer must demonstrate that: (i) it acted diligently in seeking to bring about the insured’s cooperation; (ii) the efforts it employed were reasonably calculated to obtain the insured’s cooperation; and (iii) the attitude of the insured, after his or her cooperation was sought, was one of “willful and avowed obstruction.” Since Thrasher, the three-prong test has been applied by the New York courts in evaluating the efforts of an insurer to determine whether the surrounding circumstances of each case can satisfy the heavy burden required to establish a lack of cooperation. The New York courts focus on whether an insurer has acted diligently, used reasonably calculated efforts to encourage the insured’s cooperation and, further, issued a timely disclaimer for lack of cooperation in compliance with New York Insurance Law § 3420(d). At the same time, such an evaluation must be undertaken on a case-by-case basis, leaving no definitive rule as to what is diligent and reasonably calculated, and what constitutes an inexcusable delay.

This declaratory judgment action was commenced by Country-Wide against its named insured, Preferred Trucking Services Corporation (“Preferred”), and its driver, Carlos Arias (“Arias”), seeking a declaration that it timely disclaimed coverage in connection with the underlying bodily injury action due to the non-cooperation of Preferred and Arias. By way of background, the underlying action was commenced in March 2007 by plaintiffs Filippo Gallina and his spouse against, amongst others, Preferred and Arias seeking to recover for the bodily injuries purportedly sustained as a result of an accident that had occurred during the unloading of a Preferred truck that was operated by Arias.

Country-Wide received first notice of the underlying lawsuit on October 4, 2007, by facsimile from plaintiffs’ counsel, which annexed a copy of plaintiffs’ September 21, 2007, motion for default judgment against Preferred and Arias. On October 10, 2007, Country-Wide issued correspondence to Preferred and Arias, wherein a defense was afforded to Preferred and Arias, subject to a reservation of its rights to deny coverage for failure to cooperate. Upon receipt of the reservation of rights correspondence, Preferred’s President expressed a willingness to cooperate; however, at all times thereafter, all further efforts to contact Preferred proved unsuccessful.

On July 28, 2008, the Country-Wide investigator reached Arias’ daughter, and obtained contact information for him. Contact was made with Arias on August 18, 2008, at which time he advised the investigator that he would cooperate and appear for a deposition in the underlying action. Thereafter, on October 13, 2008, Arias, for the first time, refused to cooperate when he advised the investigator that he did not “care about the EBT date” as he was dealing with a “family situation.” As a result of Arias’s failure to appear for his deposition on behalf of Preferred, the Preferred Answer was stricken by the trial court on October 16, 2008.  By correspondence dated November 6, 2008, Country-Wide disclaimed its obligation to defend and indemnify Preferred and Arias in the underlying action due to its failure to cooperate in breach of the cooperation provision of the Country-Wide business auto policy. The underlying action proceeded to inquest and damages were rendered against Preferred.

The Appellate Division affirmed the trial court’s grant of summary judgment in favor of the underlying plaintiffs, finding the Country-Wide disclaimer untimely, rendering it obligated to provide indemnification to Preferred and Arias in the underlying action. While the Preferred President had provided sufficient evidence of his failure to cooperate, there was no indication of non-cooperation on the part of Arias until October 13, 2008. Therefore, because Country-Wide had continued to seek the cooperation of Arias in good faith through October 13, 2008, it could not disclaim coverage to Preferred prior to that time. Therefore, the November 6, 2008 disclaimer, which came less than 30 days after Arias’ failure to cooperate, was timely as a matter of law. The Order of the lower court was therefore reversed and judgment was rendered in favor of Country-Wide, finding it to have no coverage obligation in connection with the underlying $2.6 million judgment.

At this juncture, there is no precise standard under New York law with respect to the timeliness of disclaimers; rather, as evidenced by this most recent decision, New York courts must look to the circumstances of each individual case when determining the timeliness of a non-cooperation disclaimer. Nonetheless, insurers must continue to act diligently, and use reasonable efforts to obtain the cooperation of their insured(s), and only upon notice of the insured’s failure to cooperate, issue a disclaimer of coverage. Even where the insurer has successfully established a lack of cooperation on the part of the insured, such a coverage defense will be waived absent a timely disclaimer by the insurer. It is therefore of paramount importance for an insurer to remain mindful of its need to timely disclaim coverage, while it attempts to establish the insured’s non-cooperation.

Gallo Vitucci Klar LLP is pleased to announce that Kalliopi “Popi” Kousis has been selected to serve as the Regional Chair for the Northeast Region of the Women’s Construction Litigation Alliance (WCLA).

The WCLA is a nonprofit public benefit corporation that supports and encourages women in construction litigation. With respect to WCLA, “construction litigation” is used as a broad term to encompass all areas of litigation regarding every facet of the construction industry, including but not limited to premises and products liability, professional liability (particularly architects, engineers, insurance and real estate agents/brokers, mortgage brokers and lenders), construction defect, mechanic’s lien issues, insurance coverage and employment practices.

In her position, Ms. Kousis will set the direction to encourage and support women in construction litigation in the Northeast Region and promote educational and networking opportunities for WCLA members.

Gallo Vitucci Klar LLP is a 50-attorney full-service insurance defense firm with offices in New York and New Jersey. Our Construction Group defends building owners, building managers, developers, general contractors, construction managers and subcontractors in construction defect and construction site accident lawsuits. Our other practice groups include transportation, premises liability, insurance coverage and professional liability.

On February 18, 2014, in a split decision (4-2-1), the New York Court of Appeals, in K2 Inv. Group, LLC v American Guaranty & Liability Insurance Company, reiterated the well-settled precedent set forth in Servidone Construction Corp. v. Security Insurance Company of Hartford, 64 N.Y.2d 419 (1985) that an insurer’s denial of defense to its insured will not preclude the assertion of coverage defenses to support said denial in subsequent litigation regarding its duty to indemnify the insured.

As you will recall from our prior June 2013 legal alert, the K2 plaintiffs were two limited liability companies that made loans totaling $2.83 million to Goldan, LLC (“Goldan”), a company owned by the named insured attorney Jeffrey Daniels (“Daniels”), to be secured by mortgages. Upon Goldan’s default in repaying the loans, the K2 plaintiffs discovered that the mortgages had not been recorded, and as a result a legal malpractice action was commenced against Goldan and Daniels. In response to Daniels’ tender of his defense to his legal malpractice carrier, American Guaranty & Liability Insurance Company (“American Guaranty”), a disclaimer of coverage was issued to Daniels based on two policy exclusions. Thereafter, Daniels defaulted and the K2 plaintiffs obtained a default judgment against him for legal malpractice. Daniels then assigned to the K2 plaintiffs all his rights against American Guaranty, and they commenced an action seeking to recover the judgment. In its defense, American Guaranty contended that coverage for the loss to be unavailable due to the application of policy exclusions.

In affirming the lower-court decisions, which created a new rule, the Court of Appeals found an insurer that has breached its duty to defend the insured precluded from raising any coverage defense in subsequent litigation.

American Guaranty sought reconsideration of the June 11, 2013, decision, claiming it was rendered improperly by the Court of Appeals without adequate consideration for the well-settled New York precedent. Absent evidence that the holding of Servidone was unworkable or that since its adoption in 1985 it has resulted in significant injustice or hardship, it remained valid precedent. Thus, the June 11, 2013, decision was vacated and the holding of the Appellate Division reversed.

In reaching its decision, the court disagreed with the plaintiffs’ efforts in distinguishing K2 from Servidone and, further, rejected the plaintiffs’ interpretation of the holding provided by Lang v. Hanover Insurance Company, 3 N.Y.3d 350 (2004). The plaintiffs argued that by breaching its duty to defend its insured, American Guaranty was barred from raising any coverage defenses in the instant coverage action. Contrary to the plaintiffs’ argument, the Court of Appeals found an insurer’s duty to indemnify “does not depend on whether the insurer settles or loses the case.” Rather, an insurer’s coverage defenses will be preserved by the inclusion of the exclusion within the insurance policy itself. It was further argued by the plaintiffs that Lang provided additional support for the overturning of the court’s prior holding in Servidone as it held “an insurance company that disclaims in a situation where coverage may be arguable is well advised to seek a declaratory judgment concerning the duty to defend or indemnify the purported insured.” The Court of Appeals found the holding in Lang to provide nothing more than “sound advice,” which in no way was intended to inhibit an insurer from asserting a coverage defense based upon a policy exclusion.

The Court of Appeals previously refused to address whether there were questions of fact regarding the application of the policy exclusion; however, in light of its recent vacatur, the court has found a question of fact to exist as to whether the malpractice claims arose “in whole or in part” out of the named insured’s status as the manager or out of his “acts or omissions” for the borrower. In line with the Appellate Division’s dissenters, the Court of Appeals has reversed the prior grant of summary judgment to the plaintiffs, finding a question of fact to exist as to the application of the American Guaranty policy exclusion.

The dissenters continue to believe the Appellate Division holding should be affirmed as the holding of Servidone shall have a more restrictive application than that prescribed by the majority. While both the majority and the dissent find a distinction between a defense based upon “noncoverage” as opposed to an “exclusion” for purposes of New York Insurance Law § 3420, which obligates an insurer to timely disclaim coverage. The dissent has found the Servidone holding to provide clarification “that an insurer’s breach of the duty to defend prohibits it from avoiding indemnification on the basis of policy exclusions, but not from demonstrating there was never coverage for the loss in the first instance.” The majority, on the other hand, having found no such distinction to exist, found the term “outside of coverage” to explain a loss to which a policy exclusion applied.cc

In sum, having found Servidone to be the applicable New York standard for coverage disclaimers, the court has disregarded the rule previously articulated by the Appellate Division in this matter. Going forward, as long as a disclaimer is timely, an insurer will not sustain an extra penalty for breach of the duty to defend, and will be permitted to litigate the exclusions in a second action. The Court of Appeals has clarified the holding in Lang to mean that an insurer who disclaims “may litigate only the validity of its disclaimer” shall not be limited to when said disclaimer was made.

Following a two-week jury trial and four hours of deliberation, Mary L. Maloney obtained a defense verdict for our client, U.S. Elevator, in the matter of Cobb v. County of Passaic and U.S. Elevator, in the Superior Court of the State of New Jersey, County of Passaic, before Judge Anthony J. Graziano. The verdict of “no negligence” on the part of U.S. Elevator was rendered by an eight-person jury on December 20, 2013. Plaintiff’s last settlement demand was $650,000. The offer prior to, and during, trial was $20,000.

The 40-year-old male plaintiff claimed that he slipped and fell on oil on the floor of the elevator shaft at the Passaic County jail while performing pest control services for his employer. His claims of the presence of oil on the floor of the shaft, which was a walk-in space, as well as his prior complaints of oil, were confirmed by trial testimony of witnesses for the Passaic County Jail. Plaintiff also claimed that U.S. Elevator violated the terms of its contract with the County by failing to leave the space in a “broom-swept condition.”

The case was defended by Ms. Maloney on the grounds that the oil was a necessary by-product of the hydraulic elevator and that the elevator company was unaware of anyone but its employees entering the elevator shaft. The jury found that the elevator company was not negligent and non-suited the plaintiff.

The injuries alleged by plaintiff were tears of the right meniscus for which resulted in three arthroscopic surgeries. Plaintiff’s orthopedic expert, Peter DiPaolo, M.D., testified that plaintiff required a total knee replacement, with additional replacement(s) needed as plaintiff ages, due to the 15-year life span of the artificial replacement joint. Also claimed were post-traumatic arthritis of the right knee, disc bulges and protrusion at T9-10, and an inability by plaintiff to return to work in any capacity.

Plaintiff offered the expert testimony of engineer John Posusney, P.E., who opined that U.S. Elevator violated certain OSHA and other related regulations. Ms. Maloney was able to persuade the jury that U.S. Elevator was not negligent in its maintenance of the elevators and that OSHA regulations were not violated.

Defendants relied upon the testimony of orthopedist Mark Berman, M.D., who confirmed the necessity of the first surgery based on his review of the films, but opined that the second and third surgery were unnecessary and that a total knee replacement is not indicated.

Following a five-day retrial, Matthew J. Vitucci once again obtained a favorable verdict for our client, Megabus, in the matter of Ebrahem v. Coach Leasing, Inc. As we reported in our legal alert of September 3, 2013, this matter was originally tried in the U.S. District Court for the Southern District of New York before Judge Shira A. Scheindlin, resulting in a verdict of only $11,700 with 50% comparative negligence (for a net award of $5,850), which was set aside by Judge Scheindlin. The matter was reassigned to Judge Edgardo Ramos for the retrial. Plaintiff in closing argument at the retrial requested a verdict from the jury amounting to over $2.2 million. The jury unanimously returned a defense verdict.

Despite plaintiff’s opportunity to better prepare his experts for cross-examination, and despite plaintiff’s economist Dr. Dwyer’s opportunity to correct her erroneous calculations that were admitted to on the stand in the first trial, Mr. Vitucci was still able to improve upon his already-winning result. The jury unanimously found that although plaintiff underwent a six-level lumbar fusion and a left knee menisectomy, these were not related to the subject accident and plaintiff did not suffer a serious injury.

The case arose from an accident that occurred in 2012 at the Manhattan entrance to the Lincoln Tunnel in which the defendants’ bus and plaintiff’s livery taxi had a minor side-swipe collision where each party alleged the other caused the impact. Plaintiff offered the expert testimony of the performing spinal surgeon, Dr. Sebastian Lattuga; the performing knee surgeon, Dr. Neofitos Stefanides; an expert engineer, Grahme Fischer; and an expert economist, Dr. Debra Dwyer. Despite the testimony of these experts, Mr. Vitucci was able to persuade the jury that plaintiff did not suffer a serious injury as a result of the subject accident. Defendants relied upon the testimony of neurosurgeon Dr. Douglas Cohen, orthopedic surgeon Dr. Gregory Montalbano, and biomechanical engineer Dr. Mariusz Ziejewski. Because the jury first determined a lack of serious injury, the question of negligence was never reached.

Let’s hope Matt will not have to go 3-for-3!