VerdictSearch recently compiled a useful chart of verdicts in New York in 2011 awarded in Construction Accident cases. The chart lists the name of the case, date of verdict, court, the type of action and injuries, the name of plaintiff’s counsel and amounts of the verdicts, which range from $19.5 million to $125,000. Out of the 91 verdicts listed, 59 were over $1 million, with an average verdict in the amount of $3 million. Attached is a copy of the Construction Accident Verdict 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. The attached Construction Accident Verdict chart provides a quick reference to gauge the trend in verdicts awarded by jurors in trial courts throughout New York and highlights notable plaintiff’s attorneys in New York specializing in the litigation and trial of Construction Site Accidents. Should any of these verdicts 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.

Click here (PDF | XLS) to view the Construction Accident Verdict chart.

Super Lawyers has named two Gallo Vitucci Klar LLP (“GVK”) attorneys, Kalliopi P. Kousis, Of Counsel; and Martha Vasquez, Associate, practicing out of GVK’s New Jersey office, to the New Jersey Super Lawyers and Rising Stars lists.

The lists were included in the 2012 Super Lawyers and Rising Stars magazine published in April 2012.

The Super Lawyers list includes only the top 5% of the lawyers in the state. To be selected as a Super Lawyer, an attorney must be nominated by a lawyer who has observed the candidate in action. Once a list of candidates is developed, each candidate is examined for “12 indicators of peer recognition and professional achievement — things like experience, verdicts and settlements, transactions, clients, honors and awards.” The candidates are then reviewed by a panel of their peers within their area of practice.

To be considered for the Rising Star accolade, attorneys must be nominated by other lawyers — opposing counsel, co-counsel or through firsthand courtroom observation. The list is comprised of the best attorneys who are 40 or under or who have been practicing for 10 years or less. No more than 2.5 percent of the lawyers in the state are named to the list of rising stars.

Congratulations to both of GVK’s Super Lawyers for this well-deserved honor.

On February 29, 2012, 36 individuals, including ten doctors, two acupuncture practitioners, two chiropractic practitioners and three lawyers, were charged with the largest single no-fault insurance fraud scheme in history. The defendants indicted were responsible for defrauding insurance companies of more than $279 million under New York’s no-fault automobile insurance law, whereby drivers and passengers can obtain as much as $50,000 in benefits for accident-related injuries, regardless of fault.

Charges in the indictment include conspiracies to commit racketeering, health-care fraud and money laundering. The ring, run by a group of mostly Russian-born United States residents, used at least 100 “medical clinics” to bill fraudulent charges to no-fault automobile insurers. Attorneys would then file fraudulent personal injury claims and suits to make additional money. The ring would recruit people who had been in accidents for the clinics, then billed insurers for unneeded treatments and procedures that were never performed. Doctors would prescribe physical therapy, acupuncture and other treatments to every patient no matter their condition for up to five days a week. According to Janice Fedarcyk, the FBI’s New York director, the accidents were real, but the injuries that were claimed were not.

Doctors that were indicted in this fraud ring, include: Sergey Gabinsky, Tatyana Gabinskaya, Joseph Vitoulis, Lauretta Grzegorczyk, Eva Gateva, Zuheir Said, David Thomas, Billy Geris, Mark Shapiro and Robert Della Badia. Acupuncture practitioners indicted include Michelle Glick and Pavel Poznansky. Chiropractic practitioners indicted include Chad Greenshner and Constantine Voytenko. Attorneys indicted include Matthew Conroy, Maria Diglio and Sol Naimark.

It is highly recommended that carriers and their SIU Departments investigate whether any of the above-named medical providers received any payments through your respective no-fault departments since 2007. If so, according to this indictment, the claimants either never received treatment that was billed for or they received treatment that was unnecessary.

We expect reforms to be made to the no-fault system as a result of this massive no-fault scheme. For example, Brooklyn District Attorney Charles Hynes and State Senator Martin Golden stated that they want to make it a felony to stage an accident and act as a “runner” by steering “patients” to no-fault medical clinics in exchange for payments. They would also like for there to be a ban on any medical provider convicted of no-fault fraud from receiving payments under the no-fault system, as well as fine them. They would also allow for more time for investigations of specific claims, require arbitration of disputed no-fault claims and require health-care providers to document medical necessity for services billed.

We will continue to keep you advised of developments if any additional details emerge concerning the no-fault ring, or legislation is enacted as a result of the no-fault ring.

On February 14, 2012, New York’s highest court, the Court of Appeals, in an effort to preserve the legislative intent and the integrity of a plain reading of the language of Administrative Code of the City of New York Section 27-1031(b) (1) (“the Code”), decided in consolidated appeals, Yenem Corp. v. 281 Broadway Holdings, et al. and Randall Co. v. 281 Broadway Holdings, et al., that strict liability will be imposed upon those performing excavation work more than ten feet in depth who cause damage to adjoining property where a violation of the Code is found. The court’s holding is consistent with its interpretation of the Code’s predecessor state law, which imposed a standard of strict liability, and ensures that those who undertake excavation work in New York City should bear the risks associated with such work should harm result to the property of the neighboring landowner.

The Administrative Code of the City of New York Section 27-1031 (b)(1) addressed in both Yenem and Randall provides:

When an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property.

The Code provision originated from an 1855 statute reenacted in 1882. Its purpose was to protect adjoining landowners against harm from excavation work on neighboring property, thereby imposing strict liability upon the excavator when a violation of the statute was found. The statute was recodified as a municipal ordinance under the New York City Building Code in 1899. In 1985, the ordinance became section 27-1031 (b)(1) set forth above and its language is virtually identical to its state law predecessors.

In Yenem, a commercial tenant was forced to vacate its premises and close its business as a result of excavation work that was being conducted on an adjoining lot. The excavation work occurred at a depth of 18 feet below curb level causing damage to the adjoining premises, which resulted in the Department of Buildings deeming the premises unsafe for occupancy. Yenem commenced an action against the owner of the adjoining lot and the entity it hired to perform the excavation work under the Code, claiming that the defendants were negligent and strictly liable for causing damage to the premises resulting in Yenem’s loss of business profits. Plaintiff Randall, the owner of the premises occupied by Yemen, commenced a separate action against the same parties asserting similar claims. Both plaintiffs eventually moved for summary judgment on their claims.

In the Yenem action, the trial court rejected plaintiff’s argument that because section 27-1031 (b)(1) was originally enacted as a state law imposing absolute liability, it should continue to be so construed. The Yenem court found that violation of the Code did not result in strict liability but constituted some evidence of negligence. In the Randall action, a different trial court judge granted Randall’s motion for partial summary judgment and held that defendants were strictly liable under the Code. In consolidated appeals, a divided Appellate Division, First Department, upheld the Order denying plaintiff’s motion for summary judgment in the Yenem action and reversed the order granting plaintiff summary judgment in the Randall action. The Appellate Division found that as a municipal ordinance, the Code provision was an “unsuitable candidate for elevation to the status of a state statute imposing per se liability.” The issue of what liability standard to apply under the Code was granted review on appeal by the New York Court of Appeals.

Finding no reason to depart from interpretation of the original state law and defeat the legislation’s goal of shifting the risk of injury from the injured property owner to the excavator of adjoining land, the Court of Appeals held that the Code, having its origins in state law, imposes strict liability where a plaintiff demonstrates that a violation of the provision proximately caused injuries to plaintiff’s property.

As a result of the court’s holding in Yenem and Randall, excavators who dig more than 10 feet below curb level causing damage to an adjoining property and the owners of the property where the excavation work is performed will be held strictly liable for such damages pursuant to the Administrative Code of the City of New York Section 25-1031 (b)(1). By confirming a standard of strict liability, the court’s holding certainly increases the risk undertaken by insurance carriers providing property damage coverage to its insureds for excavation work in New York City.

On January 17, 2012, the Appellate Division of the Supreme Court of the State of New York, First Department, in George Campbell Painting v. National Union Fire Insurance Co. of Pittsburgh, PA, 2012 NY Slip Op 00254, overruled its earlier decision in DiGuglielmo v Travelers Prop. Cas., 6 A.D.3d 344 (1st Dep’t 2004), wherein the court held, notwithstanding the statutory language of Insurance Law § 3420(d), that an insurer is not required to disclaim on timeliness grounds (i.e., late notice) before conducting a prompt, reasonable investigation into other possible grounds for disclaimer (hereinafter “the DiGuglielmo rule”). Instead, the First Department held, in agreement with the Appellate Division of the Supreme Court of the State of New York, Second Department, that the plain language of the statute requires an insurer to give “prompt notice” of a disclaimer based upon late notice grounds after the decision to do so and not withhold issuance of said disclaimer while investigating other grounds for rejecting the claim.

In Campbell, the insurance dispute arose out of an underlying personal injury action wherein a construction worker sustained severe injuries while working on renovations to the Henry Hudson Bridge when he fell down a makeshift hillside ramp. In December 2003, the construction worker commenced an action for personal injuries against the owner of the renovation project and the general contractor. The owner and general contractor tendered their defense to the primary insurer for responsible subcontractor in January 2004; however, they did not notify the excess insurer at that time. Nevertheless, by August 2004, when the owner and general contractor received the construction worker’s bill of particulars alleging severe injuries, they were aware that the damages could exceed the subcontractor’s primary insurance; however, notice was not given to the excess insurer until it received a letter from the owner and general contractor’s counsel dated November 16, 2005.

In response, the excess carrier wrote in a letter dated December 23, 2005, that the excess policy conditions require timely notice of claim and that the owner and general contractor’s request for coverage may have breached the conditions and requested that certain documents, among them, all status reports to the primary carrier regarding liability and damages evaluations. In a letter dated January 19, 2006, counsel for the owner and general counsel enclosed, among other things, an August 2004 status report analyzing the severity of the construction worker’s injuries based upon the bill of particulars. As such, the excess carrier had sufficient information to disclaim coverage on the ground of late notice no later than January 19, 2006, but did not issue a disclaimer issued on late notice grounds until nearly four months later on May 17, 2006, because it was undertaking investigation into other grounds for denying the claim.

The First Department affirmed the lower court’s holding on summary judgment and found that the excess insurer’s disclaimer was ineffective as a matter of law. The First Department reasoned that “[t]he literal language of th[e] statutory provision requires prompt notice of disclaimer after decision to do so, and by logical and practical exclusion, there is imported the obligation to reach the decision to disclaim liability or deny coverage promptly too, that is, within a reasonable time.” In sum, the First Department rejected its holding in DiGuglielmo, which found that a delay in issuing a disclaimer on late notice grounds was acceptable where the insurer was investigating other grounds for denial, and found that where the basis for the denial is late notice and readily apparent from the first notice of claim, the disclaimer on such grounds should be issued “promptly” thereafter.

The First Department’s determination means that insurers issuing disclaimers on late notice grounds in New York cannot wait to issue their late notice disclaimer until all other possible grounds have been investigated and thereafter determined; as such, a disclaimer would be untimely under Insurance Law § 3420(d) and prove ineffective. Thus, as a rule of thumb, insurers issuing late notice disclaimers in New York should do so immediately upon determination that notice of claim is late, i.e., where it is clear from the first notice of claim that said notice is late, insurers should issue their denial upon receipt of such notice or else risk waiving their late notice grounds.

On January 10, 2012, New York’s highest court, the Court of Appeals, decided in Toledo v. Christo, that the proper method for calculating preverdict interest on future wrongful death damages in personal injury cases is to discount damages to the date of death and award interest on that amount from the date of death to the date of the verdict. The Court’s decision in calculating interest from the date of death, rather than verdict, confirms the rule that prejudgment interest in a wrongful death case is an “element” or “part” of the damages and rejects the defense argument that awarding interest on future damages that have yet to be realized is an unfair windfall for the plaintiff.

In Toledo, the plaintiff was killed in a construction accident on September 21, 2002, and the decedent’s estate brought a negligence and wrongful death action against the defendant church. On December 3, 2007, the jury rendered an award in favor of the plaintiff which included future damages in the amount of $3,562,000. The plaintiff submitted a proposed judgment to the trial court pursuant to the New York statute which discounted the jury’s award of future damages to the date of verdict and then further to the date of the decedent’s death arriving at a value of $2,487,465. The interest was then calculated on that discounted rate at the statutory interest rate of 9% from the date of death to the date of verdict, arriving at a total future damages award of $4,295,595.

The Appellate Division, First Department, initially reversed holding that interest on future damages should only been calculated from the date of the verdict. Upon reargument, the First Department vacated its decision and held “where as here, the award of future damages was discounted by the court to the date of liability, which is the date of death, the award of interest from that date to the date of judgment was proper.” The Court of Appeals granted the defendant leave to appeal and affirmed the First Department’s decision.

The Court of Appeals’ reasoning in holding that preverdict interest on future damages calculated from the date of death does not constitute a windfall for the plaintiff is premised upon the theory that damages should have been paid at the time the loss was suffered, which is the date of death. Thus, the Court confirmed that future damages are owed as of the date of death, and such award should include interest calculated from the date of death as well. In essence, what the Court’s decision means for litigants in wrongful death cases is that prejudgment interest is a part of the damages, running from the date of death, and not the verdict date.

As a result of the Court’s holding in Toledo, defendants should heed that the already large awards upheld in wrongful death cases will be significantly increased by a statutory interest of 9% that is calculated from the date of death to the date of verdict, particularly in light of the fact that these cases take many years to litigate before a jury verdict is rendered.

On November 22, 2011, the highest court in the State of New York, the Court of Appeals, issued a decision in Perl v. Meher, 2011 N.Y. Slip Op. 08452 (2011), which will prove unfavorable for defendants challenging a plaintiff’s showing of “serious injury” under the No-Fault Law, particularly those “serious injury” claims involving soft tissue injuries, and will ultimately lead to an increase of these claims that survive summary judgment and get before a jury.

In determining whether the plaintiffs met the statutory definition of “serious injury,” specifically those categories that define a “serious injury” as “permanent consequential limitation of use of a body organ or member” and “significant limitation of use of a body function or system,” the court rejected the rule that plaintiffs furnish contemporaneous quantitative test results, i.e., an expert’s assessment of the plaintiff’s degree of physical limitation based upon specific, numerical range of motion testing, contemporaneous with their accident, to substantiate a claim of “serious injury.” Instead, the court held that a comparative qualitative assessment, i.e., an expert’s assessment of the plaintiff’s physical deficits described in more general terms, provided the evaluation has an objective basis and compares the plaintiff’s limitations to the normal function, would be accepted as evidence sufficient to raise an issue of fact as to whether a “serious injury” exists.

The Perl case is comprised of three (3) unrelated personal injury actions, each of which arises out of a motor vehicle accident. The plaintiffs’ treating physician examined plaintiffs soon after their accidents and simply noted some abnormality, including difficulty moving and diminished strength. The treating physician did not quantify those limitations upon initial evaluation. However, upon re-examination years later, the treating physician did use medical tools to objectively measure and specifically quantify the plaintiffs’ range of motion.

While recognizing the over-abundance of frivolous claims arising out of motor vehicle accidents, the court nonetheless upheld the dissenting opinion of the Appellate Division, which stated that “[p]otential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries.”

Although the Appellate Division had rejected the claims of “serious injury” presented in each of the three (3) underlying cases, two were reversed by the Court of Appeals, as the court held that there existed triable issues of fact as to whether the plaintiffs sustained a “permanent consequential limitation of use of a body organ or member” or a “significant limitation of use of a body function or system.”

The Perl holding serves to permit plaintiffs greater flexibility in satisfying their burden of proof as to “serious injury,” particularly in the Appellate Division, Second Department, where plaintiffs previously needed to offer contemporaneous quantitative measurements as a prerequisite to recovery under the No Fault Law.

On Tuesday, October 25, 2011, in a 4-3 split decision, the New York Court of Appeals in Wilinski v. 334 East 92nd Housing Development Fund Corp., wherein our firm represents the defendants, declined to adopt the so-called same level rule, holding that recovery under Labor Law §240(1) may not necessarily be precluded where a worker sustains an injury caused by a falling object whose base stands at the same level as the worker. New York’s highest court’s decision expands the reach of the statute by eliminating the “same level” rule as a defense and is emblematic of its more recent decisions where the court has found that §240(1) applies even where there is no height differential. Rather, the court has shifted its focus to the force of the gravitational pull, as opposed to the number of feet or inches that the object fell.

In Wilinski, the plaintiff was demolishing brick walls, when two vertical unsecured plumbing pipes that rose out of the floor fell and landed on the plaintiff. The plaintiff and the base of the pipes stood on the same level. The pipes were metal, were four inches in diameter, stood 10 feet tall and had toppled over to fall at least four feet before striking the plaintiff, who is 5 feet 6 inches tall, when workers demolishing an adjacent wall caused the wall to collapse into the pipes.

The majority of the court held that Labor Law §240(1) was applicable because the plaintiff suffered harm that “flowed directly from the application of the force of gravity to the pipes” and rejected the interpretation of the statute that operates to categorically bar the worker from recovery under §240(1) where the worker and the base of the falling object stand on the same level. However, the court held that an issue of fact remains as to whether the plaintiff’s injuries were the direct consequence of the defendant’s failure to provide adequate safety devices.

A strong dissent noted that the majority “runs afield from this Court’s Labor Law §240(1) precedent” and found that the plaintiff’s injuries were not the result of an elevation-related risk and thus, the statute is not applicable. The dissent opined that it is of consequence and integral to the court’s interpretation of §240(1) that the base of the pipes was at the same level as the plaintiff and his work site.

There is no doubt that there is a trend in the Court of Appeals’ recent falling-object decisions and now in Wilinski toward a broader interpretation of §240(1) expanding its protection for injured workers, a trend that owners and contractors must certainly heed.

On Monday, October 17, 2011, in Traveras v. American Transit Insurance Co., 2011 N.Y. Slip 5183 (U), the New York State Supreme Court, County of Kings, held that American Transit Insurance Company acted in bad faith when it refused to settle for the full limits of its policy a lawsuit brought by a taxi passenger injured in a rear end accident, thereby exposing its insured taxi driver to the risk of being held personally accountable for a large judgment in excess of the policy limits.  The trial court’s decision sends a resounding message to insurance carriers that engaging in a pattern of “knowing and reckless disregard for the interest of its insured” will not be tolerated in New York and such actions for bad faith against carriers are alive and well.

This bad faith action arises from an underlying personal injury action involving a three car rear end collision, wherein the plaintiff, Jesus Taveras, was a passenger in a taxi that rear ended a rental car and was in turn hit in the rear by another taxi.  Both taxis were insured by American Transit for up to $100,000.  After a finding of liability against the drivers of the taxis and a reduction of the jury’s verdict, Taveras was awarded a judgment of $2.5 million plus interest in damages.  Prior to the trial of the underlying action, Taveras offered to settle the action for full tender of the Atlantic Transit polices for a total of $200,000, however, Atlantic Transit did not advise its insured of this settlement offer and refused the offer.

Thereafter, an insurance bad faith action was brought against Atlantic Transit for its conduct in the underlying action.  In determining that American Transit acted in bad faith by knowingly leaving its insured on the hook for a large judgment that he could not pay, the Court rebuked American Transit for refusing to acknowledge its bad faith and in its opinion granting the plaintiff summary judgment, cited to a quote from the 1991 film “A Few Good Men”, in which a marine played by Jack Nicholson tells an attorney, played by Tom Cruise, that he “can’t handle the truth.” The Court wrote that American Transit “refuses not only to acknowledge the truth, but to handle the truth!”  The Court’s reference to this wildly popular movie quote definitely drives home the intent of the Court’s decision which is that carriers who act in a reckless pattern of conduct in violation of its insured’s interests will be held liable in a bad faith action.

American Transit intends to appeal the trial court’s decision and we will monitor the appeal for the Appellate Division’s decision.