One of our new practice areas with the addition of Bruce M. Friedman and his team from Rubin Fiorella Friedman & Mercante LLP, is a full-service reinsurance practice. Bruce is among the most experienced reinsurance practitioners in the country. Bruce’s bio may be found at the GVK website.

While reinsurance is far removed from the daily thought processes and operations of claim adjustors and defense counsel, the actions of those persons can have implications on the reinsurance collection process.  The manner in which claim files are documented and maintained, settlements packaged and reported to reinsurers, and substantive reinsurance reporting, can all affect not only reinsurance recoveries but the speed with which reinsurance claims are paid.

Every insurance company purchases substantial reinsurance, both treaty and facultative, to protect its books of business and to enable the company to grow its premium base.  While insurers and their reinsurers are in an active trading relationship, few disputes are likely to develop.  However, there are always going to be principled disagreements relating to coverage.  Opioid, other public nuisance, COVID, sexual misconduct and cyber claims, occurrence-related issues, and reinsurance contract interpretation, are driving the majority of current reinsurance disputes, while asbestos and environmental claims continue to drive disputes on legacy business.

Today, with insurers and reinsurers increasingly selling off their discontinued lines of business, companies now find themselves having to collect reinsurance from or pay reinsurance to companies with whom they did not enter into the reinsurance contracts.  It is in this so-called “run-off” space that most of today’s reinsurance disputes are spawned.

Bruce and his team can be of assistance to GVK clients in many areas, including:

Our clients may already be familiar with Bruce and his reinsurance practice capabilities.  If not, we would appreciate the opportunity to introduce Bruce and his team to your ceded and/or assumed reinsurance staff.

On May 25, 2024, a federal court jury rendered a defense verdict following a week of trial concerning allegations that the defendant driver rear-ended plaintiff’s vehicle in a collision that occurred in the far left lane at the intersection of First avenue and 29th Street, Manhattan,  in the early morning hours of January 20, 2022. Plaintiff claimed to have been rendered unconscious by the collision, and later sought treatment from pain management specialists, chiropractic care and acupuncture. He later underwent surgeries to both shoulders claiming that the accident caused various tears to his shoulder tendons.

Plaintiff claimed in addition that he sustained herniations to his cervical and lumbosacral discs from the collision. He attended roughly 1000 visits to various medical professionals and claimed at trial that none of the treatment provided-including serial injections-afforded him any relief from his unrelenting pain. Plaintiff claimed at trial that the accident caused him to retire from his job as a driver for United Cerebral Palsy and further alleged that his disability required his wife to provide care for him as a paid homecare attendant. He alleged that he was rendered unable to perform his activities of daily living and that his wife had to perform these functions for him, including dressing him and providing for all his daily needs.

On cross examination Mr. Vitucci brought to the jury’s attention that plaintiff had suffered from a stroke two years prior to his retirement and in fact had attributed his retirement to the stroke in a letter signed by him and contained in his employment file. The letter was written two years prior to the subject accident.

After ruling on objections, the court admitted the letter into evidence as a prior inconsistent statement.

Mr. Vitucci further had admitted into evidence photographs which directly contradicted plaintiff’s testimony that the accident involved a rear-end collision. Over objection the court allowed testimony of the defendant driver that his view of the photographs-which he took at the scene of the accident-showed that there was only driver’s side damage including openings to the sheet metal of the driver’s side doors which could only have come from the rotary action of the truck tire’s lug nuts on the tractor’s driver’s side front tire.

Mr. Vitucci elicited testimony from the defendant driver that it was plaintiff who caused the contact by driving into the front right of the defendant’s tractor by trying to pass him from right to left. The testimony elicited was supported by the vehicle damage photographs which appeared to show a sideswipe event occurring from back to front on the driver’s side of plaintiff’s Toyota Camry.

It was ultimately argued that despite counsel’s contention that the matter involved a violent collision occasioned by a loaded tractor trailer weighing in excess of 26,000 pounds- that what really was in issue was a sideswipe impact caused by the negligent actions of the plaintiff.

The experts called by Mr. Vitucci supported this conclusion. Both medical experts opined-supported by their exams of plaintiff and their reading of MRI’s taken of the allegedly injured body parts that what was shown in the films and their exams was a typical presentation of degenerative body pathology that would be common for any 63 year old such as the plaintiff with no evidence of trauma being identified in their view.

Mr. Vitucci sharply questioned plaintiff’s medical experts with an eye to establishing that there was no need for the surgeries plaintiff underwent a month following the collision, and that in addition there was no evidence of causal relation of the accident to the claims of spinal issues and their after -effects. Defendant’s neurosurgeon instead pointed to the obvious prior conditions caused by his stroke. Both took issue with the idea that any of the plaintiff’s subjective complaints were in any way the result of the subject collision.

Plaintiff requested in summation that the jury award his client 1.25 million dollars for past and future pain and suffering and medical expense. After several hours of deliberation, the jury returned a verdict in favor of the defendants finding that the defendant driver was not negligent in the happening of the accident.

Partner, Patrick W. Kenny, was successful in obtaining summary judgment for a general contractor client. The client had contracted with the owner of the property to do renovations to various buildings on the property. Plaintiff, an employee of the Owner, alleged he was injured when he was removing garbage from a tenant garbage drop spot on the property when he was impaled on the wrist by a sharp unknown object resulting in two surgeries and nerve damage. Plaintiff claimed the object was construction debris placed there by GVK’s client, and that plaintiff had complained of construction trash bags being commingled with tenant garbage prior to the incident. Mr. Kenny, through the use of affidavits of non party co-workers of the plaintiff, showed that plaintiff’s narrative of the accident and complaints that formed notice were not true; that plaintiff was never able to identify what cut him and thus unable to identify a “defect or condition” that caused his accident; and that under Espinal no duty was owed to the plaintiff by our client. The court agreed, and following oral argument, issued an order and decision granting our client summary judgment and dismissing all claims against the client.

Gallo Vitucci Klar LLP Partner, Michael E. Stern recently prevailed on a motion for summary judgment in the Southern District of New York before the Hon. Ona T. Wang. The lawsuit alleged strict liability for fire damage to vehicles owned and being shipped by Daimler Benz and the M/V HONOR.

The plaintiffs HDI Global SE, as subrogee of Daimler AG and Mercedes Benz USA LLC; and American Roll-on Roll-off Carrier, LLC, owner of the M/V HONOR sued International Auto Logistics, Inc. (“IAL”) claiming that one of the cars carried by M/V HONOR for IAL caught fire causing damage to automobiles owned by Daimler, and to the M/V HONOR. IAL was under contract with the US Department of Defense to arrange for the transportation of personally owned vehicles for service members. In February 2017, IAL delivered about 600 cars to ARC at Bremerhaven, Germany for shipment to the U.S. East Coast. One of the personally owned vehicles, a 2010 Nissan Rogue, caught fire causing damage to Daimler vehicles and the vessel. The origin of the fire was determined to have been the solenoid in the starter motor of the Rogue but the cause could not be determined. The plaintiffs argued that IAL should be held strictly liable for the damages based on the section of the United States Carriage of Goods by Sea Act which provides that a shipper of “goods of an inflammable, explosive, or dangerous nature” can be strictly liable for damages when the carrier “has not consented with knowledge of their nature and character” of the goods.

On the motion for summary judgment, Mr. Stern persuaded the Court that based on the applicable domestic and international codes governing the transportation of hazardous goods, automobiles are not goods of an “inflammable, explosive or dangerous nature” as that phrase is used in COGSA. The Court also ruled that the ocean carrier [ARC] had knowledge of the nature and risks associated with transportation of vehicles. As such, the Court denied plaintiffs’ motion for summary judgment and granted IAL summary judgment dismissing the strict liability claims of both HDI Global and ARC.

Gallo Vitucci Klar LLP Partner, Alan R. Levy recently prevailed on a 2-week bench trial in the Civil Part at the Supreme Court of the State of New York – New York County before the Hon. Dakota D. Ramseur, J.S.C. The lawsuit alleged interference of a commercial lease due to construction incidents had been pending in the New York State Courts for twelve (12) years, resulting in several Summary Judgment Decisions and two (2) Appellate decisions before finally going to Trial, which resulted in a “no cause” verdict on behalf of our commercial landlord clients.

Plaintiff operated a veterinary clinic which was a tenant on the first floor of a commercial building owned by our landlord clients, and alleged from 2010 – 2012, their veterinary operations were interfered with due to ongoing construction projects on the three floors above them. In 2012 (shortly after signing a 10-year lease extension), the Plaintiffs filed suit against the landlords seeking more than $10 million in alleged lost profits along with claims for damaged property, rent abatement, etc. Over the next twelve 12 years, after two (2) separate Appellate decisions in 2014 and 2019, the bulk of Plaintiffs’ claims were dismissed, leaving Plaintiffs to pursue the claim of seeking a full rent abatement for the construction period at Trial, which (after pre-judgment interest) would have added up to approximately $750,000 if Plaintiff had prevailed.  The subject lease agreement included a unique provision stating the tenants were entitled to withhold rent if “more than thirty percent (30%) of the demised premises is damaged or affected thereby and the demised premises cannot be open for business to the general public.” During Trial, Mr. Levy persuaded the Court to preclude Plaintiff’s unreliable evidence as to what percentage of the property had been damaged. In addition, Mr. Levy successfully used Plaintiff’s own financials/accounting documents to show that the Plaintiff’s business had always remained open during the construction period.

As a result, following 2-weeks of trial testimony and motion practice before Judge Ramseur, the Court issued a decision holding that Plaintiff was not entitled to any recovery and dismissed Plaintiff’s Complaint in its entirety.

The head of Gallo Vitucci Klar LLP’s Maritime Department James Mercante appeared on CBS news to discuss the container ship collision with the Key Bridge in Maryland, the potential malfunctions leading up to the collision and the legal implications to come. Mr. Mercante also discussed the tragic incident on Canada’s Corus/Global News Radio Network, Newsmax with Greg Kelly and The Dan Abrams show.

Mercante also provided insight for The Washington Post’s coverage of the NTSB‘s preliminary findings and for The Baltimore Sun.

See newest article from The Baltimore Sun here.

See CBS news interview here.

See The Dan Abrams Show interview here.

See article from The Baltimore Sun News here.

See article from The Washington Post here.

 

 

The plaintiff, a 25 year old female was a passenger in a vehicle driven by codefendant which was driven into the left rear of an 80K lb dump truck owed by HC Trucking and operated by its employee. The accident occurred at 11:45 p.m. on the southbound Garden State Parkway in Monmouth County NJ.  The occupants of the SUV were returning from a “club” in Hazlet NJ when the operator of the SUV struck the left rear of the dump truck at an estimated 75 m.p.h. The accident happened at the start of a construction zone where the far right lane was being shut down by a tapering, reflective cone line. Signs were posted at least a mile before the construction zone directing a left merge and reducing the speed limit to 45 m.p.h.

Plaintiff alleged that based on a statement provided by the driver of the SUV following the accident and other physical evidence, that the dump truck didn’t see the SUV and changed lanes causing the accident. The defense countered that the SUV was speeding, following to closely, and that the dump truck was not changing lanes when the accident happened.  Defendants maintained the SUV closed on the dump truck at a high rate of speed and failed to complete a left hand swerve to avoid the accident. The defense position was supported by expert testimony from an accident reconstructionist. Th expert had to concede that the damage to both vehicle would have been the same under either version.

At the scene, the SUV operator was observed with slurred speech, bloodshot,  watery eyes and an odor of alcohol from his breath. A blood draw taken 2 hours after the accident indicated the driver’s BAC was .057. The defense expert toxicologist was permitted to testify to the physiological changes a driver experiences at .057 which included reduced inhibition and reaction time, sedation and reduced judgment. As a side note, criminal charges against the SUV driver were reduced to a DWI plea. However, defense counsel was precluded from using the plea at the subsequent civil trial per New Jersey’s “Civil Reservation “ statute.

The plaintiff sustained a traumatic amputation of her dominant right arm just below the shoulder; multiple right rib fractures with a resulting pneumothorax; fractures of the left thumb, left mid radial and ulnar shafts, all of which required ORIF. She also sustained multiple fractured and an injury to her right breast necessitating reconstructive surgery and extensive facial scarring. Due to her young age she also underwent multiple surgeries including revascularization of the right arm using a left thigh vein graft  and skin grafting to repair scaring.

Prior to the trial, Patrick negotiated a “Hi-Lo” agreement with plaintiff’s counsel with a 400K low and a 1M high. Any amount in between the high and low would be calculated by multiplying the plaintiff’s total damages by our client’s percentage of liability.

Following a 2 hour deliberation, the jury found the SUV driver to be 95% negligent and the owner and operator of the dump truck to be 5%. The jury awarded $7,500,000.00 in total damages. If the “Hi-Lo” had not been entered into, Patrick’s clients share of the total damages would have  only been 375K.  Plaintiff’s declined an overture of a 500K offer to settle out during the trial.

On behalf of Gallo Vitucci Klar LLP, we are delighted to extend our congratulations to William E. Marsala (“Bill”) on his appointment as a judge of the New Jersey Superior Court.

Bill’s journey to this prestigious position is a testament to his qualifications, dedication, and reputation in the legal community. Recommended for a judgeship by New Jersey State Senator Kristin Corrado and subsequently nominated by Governor Phil Murphy, Bill’s nomination was met with unanimous approval by the New Jersey Senate Judiciary Committee. His confirmation by the New Jersey State Senate further underscores the trust and confidence placed in his abilities. Assigned to the Civil Division for the Passaic County Vicinage by the Chief Justice of the New Jersey Supreme Court, Bill’s appointment marks a significant milestone in his esteemed career.

Bill joined Gallo Vitucci Klar LLP as Of Counsel and has over 30 years of civil litigation experience representing insureds and self-insured in complex matters on a local, national and international basis. Bill represented clients in matters involving products liability, premises liability, liquor liability, workers’ compensation, catastrophic transportation, construction site accident and FELA issues in Federal and State Courts. He also has been involved in developing risk assessment and management programs which allow clients to anticipate, reduce and control their exposure.

We extend our warmest wishes to Bill as he embarks on this new chapter in his career. Congratulations, Bill, on this well-deserved accomplishment!

Written by Briggs Johnson

Since the Court of Appeals case in Rodriguez v. City of New York, 31 N.Y.3d 312, 320 (2018) (where the Court held that a plaintiff need not demonstrate his or her freedom from comparative negligence to win summary judgment on liability), we have found that some plaintiffs believe that when they have evidence of a defendant’s negligence, then plaintiff’s comparative fault is irrelevant no matter what.  We have also found plaintiffs taking this position even if all that remains is a damages only trial.  We can safely assume that some of our friends in the defense industry have been encountering the same problems in New York.  Worse yet, we have found that some trial judges agree with this position, or that this issue is not being properly addressed before trial.  We have some solutions.

What we try to do here at GVK is to address this issue head-on at the summary judgment stage by opposing or cross-moving against plaintiff, where appropriate: to have a finding that there is an issue of fact on whether plaintiff’s (or another party’s) own actions were the only or sole proximate cause of the accident (which necessarily means there is an issue of fact on whether our client’s negligence caused the accident); or, in the alternative, for a finding that comparative fault must be considered in the damages trial as mitigation device even if plaintiff’s negligence cannot be construed as the only cause of the accident (for example, Labow Law 240(1), where comparative negligence is irrelevant on liability).

And we have the case law to support both positions, which we will readily provide upon request.  As always, please feel free to reach out to us with any questions on this or any other issues that may arise, and that we might be able to assist you with.

Written by Bryan T. Schwartz and Roberto D. Uribe

The New Jersey Legislature passed a law raising the minimum insurance requirements for commercial trucks weighing over 26,001 lbs. to $1.5 million – doubling what is currently required under the FMCSA requirements. The law does not specify whether this requirement applies to intrastate New Jersey carriers only, to interstate motor carriers conducting business in the State, or those passing through the State. The increased insurance requirement goes into effect July 1, 2024.

The law signed by Gov. Murphy on January 16, 2024, states as follows:

Every owner or registered owner of a motor vehicle registered or principally garaged in this State shall maintain motor vehicle liability insurance coverage, under provisions approved by the Commissioner of Banking and Insurance, insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle wherein such coverage shall be at least….(4) for a commercial motor vehicle, an amount or limit of $1,500,000, exclusive of interest and costs, on account of injury to or death of, one or more persons in any one accident or for damage to property in any one accident…

While the law refers only to a “…registered owner of a motor vehicle registered or principally garaged in this State,” which would seem to indicate only those units registered in New Jersey, the bill also applies to “every owner,” which could include any power unit that travels into New Jersey or passes through New Jersey.

The current FMCSA standard requires motor carriers to maintain a minimum of $750,000 in liability insurance which has been the case since 1985. Although the FMCSA has considered increasing the minimum requirement, following a 2022 study, the agency could not justify the increase. For that reason, if the new law required interstate motor carriers doing business in New Jersey or passing through New Jersey, it would violate current federal law and open it up to challenges in the courts. In the event the law only applies to those intrastate motor carriers registered in New Jersey, it could cause them to move to surrounding states like New York or Pennsylvania where the insurance requirements follow current federal law.

Studies have not shown an increase in catastrophic tractor trailer related accidents in the Garden State, which is why doubling the insurance requirements simply appears to be arbitrary and possibly partially motivated by the plaintiffs’ bar.

Legal challenges are certain after July 1, 2024 and we will keep you updated. Please feel free to contact Bryan Schwartz (bschwartz@gvlaw.com) or Roberto Uribe (ruribe@gvlaw.com) with any questions.