Insurance and Reinsurance Coverage
The Burlington Ins. Co. v. NYC Tr. Auth., 2017 N.Y. LEXIS 1404 (N.Y. Court of Appeals, June 6, 2017).
Landmark ruling from the Court of Appeals in which the Court adopted a proximate cause test to determine the scope of additional insured coverage under a standard ISO endorsement. In doing so, the Court of Appeals reversed years of precedent from the Appellate Division, First Department and granted summary judgment to the firm’s client, The Burlington Insurance Company, declaring that Burlington did not owe additional insured coverage to the NYC Transit Authority with respect to an underlying personal injury action. Interpreting standard ISO policy language in Burlington’s policy, the Court held that the phrase “caused, in whole or in part” by the “acts or omissions” of the named insured refers to “proximate cause,” thereby requiring negligence by the named insured as a condition of coverage for additional insureds under the policy.
This ruling has far-reaching implications for New York insurance coverage law. In addition to aligning New York law with that of other jurisdictions and the intent of the policy drafters, the decision now provides insurers with a coverage defense to additional insured coverage claims where the named insured is somehow causally connected to the accident, but otherwise without fault.
Ohio Casualty Ins. Co. v. Transcontinental Ins. Co., 2010 U.S. App. LEXIS 7613 (2d Cir. 2010).
Second Circuit affirmed District Court decision declaring that our client was not liable for $6.7M paid by Ohio Casualty with respect to an underlying New York Labor Law 240 (1) claim based on anti-subrogation.
Harco Construction v. First Mercury Ins. Co., 148 A.D.3d 870, 49 N.Y.S.3d 495 (2d Dep’t 2017).
Successfully argued that subcontractor’s insurer was estopped to deny additional insured coverage to general contractor in connection with numerous multi-million dollar lawsuits arising out of a building collapse. Appellate court agreed that insurer’s disclaimer sent to the general contractor’s own insurer rather than the general contractor itself did not comply with Ins. Law §3420 (d) based on Court of Appeals’ precedent, and rejected insurer’s argument that the general contractor’s insurer was an agent for purposes of receiving disclaimers.
Andalora v. R.D. Mechanical, 448 N.J. Super. 229 (2017).
Published appellate division ruling on the scope of subrogation rights under NJ law and an insurer’s standing to pursue a contractual indemnification claim against a subcontractor (and its insurer) in connection with a multi-million dollar construction accident claim. Appellate Division held that the trial court’s decision dismissing the contractual indemnification claims by the general contractor with prejudice because a portion of an underlying settlement was paid by its own insurer rather than out of its own pocket eliminated its right to pursue the subcontractor employer for indemnification.
Granite State Ins. Co., et al. v. Transatlantic Reinsurance Co., 2013 N.Y. Misc. LEXIS 6142 (Sup. Ct., N.Y. County, 2013).
Successfully argued on behalf of reinsurer in a case of first impression that a ceding company’s transfer of asbestos liabilities as part of a loss portfolio transfer is not “treaty reinsurance” warranting denial an of a ceding company’s motion for summary judgment on the grounds that issues of fact exist as to whether the ceding company breached its retention warranty to the reinsurer under facultative certificates.
Resolute Management, Inc. v. Transatlantic Reinsurance Company, Superior Court of Massachusetts, Suffolk Cty, BLS, Nov. 14, 2013).
Obtained complete dismissal of tortious interference and unfair and deceptive practices claims brought against reinsurer and its corporate parent arising out of challenges to its ceding company’s transfer of asbestos liabilities to plaintiffs pursuant to a loss portfolio transfer. Court noted that this was one of the rare cases where dismissal of a Massachusetts GCL 93A was warranted at the pleading stage.
QBE Insurance Company v. Mt. Hawley Insurance Company, 2011 N.J. Super. Unpub. LEXIS 781 (N.J. App. Div. 2011).
Appellate court affirmed summary judgment declaring that sub-contractor’s policy provided primary coverage to the general contractor and rejecting the subcontractor’s insurer’s argument that issues of fact existed as to the general contractor’s negligence and the terms of the construction contract.
Westchester Fire Ins. Co. v. MCI Communications Corp., et al., 74 A.D.3d 551 (1st Dep’t 2010).
Appellate court affirmed summary judgment for our insurer client, rejecting telecom’s argument that primary policies were not fronting policies and holding that primary insurer owed no duty to defend or indemnify in connection with underlying claims relating to fiber-optic cable lines and railroad rights-of-way.
Great Northern Insurance Company v. Kobrand Corporation, 40 A.D.3d 462, 837 N.Y.S.2d 41 (1st Dep’t 2006).
Appellate Division affirmed summary judgment in favor of insurer client declaring that Liquor Liability Part of liquor manufacturer policyholder’s CGL policy did not cover underlying claims alleging unfair and deceptive advertising of alcoholic beverages directed to minors.
Princeton Investment Partners, Ltd. v. RLI Ins. Co., 2018 U.S. Dist. LEXIS 23512 (D. N.J. Feb. 9, 2018).
Obtained dismissal of coverage claims against our insurer client. Court upheld policy exclusion barring coverage for failure to maintain insurance in litigation arising out of the lapsing of $15 million in “key person” life insurance.
Mt. Hawley Ins. Co. v. Swift Construction, 2018 U.S. Dist. LEXIS 55026 (D.N.J. Mar. 29, 2018).
Prevailed on summary judgment in a subrogation action seeking reimbursement of $1 million paid to settle an underlying personal injury action arising out of a construction work-site accident. Established that indemnity agreement was Azurak-compliant and enforceable despite being executed after the accident where the contract date pre-dated the accident.
Maxim Service Group, Inc. v. Mt. Hawley Ins. Co., et al. (N.Y.S. Sup. Ct., Queens County Sept. 18, 2018)
Obtained summary judgment declaring that insurer client had no duty to defend or indemnify its named insured in an underlying action. We successfully argued that the insured failed to satisfy two conditions precedent to coverage under its policy, and that in any event, the allegations contained in the underlying complaint fell squarely within the policy’s Designated Ongoing Operations exclusion.
Aspen Specialty Ins. Co. v. RLI Ins. Co., Inc., 194 A.D.3d 206 (1st Dep’t 2021).
In an issue of first impression, Appellate Division reversed trial court decision declaring that a follow form excess insurer was bound by a ruling against the primary insurer in a prior DJ action regarding the scope of additional insured under the law of the case doctrine. Between the time of the initial DJ action and the second DJ action against the follow form excess insurer, the scope of additional coverage had narrowed in an outcome dispositive manner in light of the Court of Appeals’ landmark ruling in Burlington v. NYC Transit Authority, another case handled by the firm.
WMOP, LLC v. Scottsdale Ins. Co., Inc., 192 A.D.3d 411 (1st Dep’t 2021).
In a claim for coverage under a professional malpractice policy arising out of the death of a nursing resident, successfully argued that the nursing home’s forwarding to a prior insurer of a request for medical records of the deceased resident made by a prominent personal injury firm specializing in elder neglect cases constituted prior notice and therefore excluded by the policy’s “prior notice” exclusion.
Harco Constr., LLC v. First Mercury Ins. Co., 190 A.D.3d 831 (2d Dep’t 2021)
Appellate Division affirmed trial court order granting general contractor’s motion for summary judgment declaring that insurer owing additional insured coverage must reimburse defense and indemnity payments made on behalf of the general contractor in connection with multiple underlying actions arising out of a building collapse, even if those defense and indemnity payments were paid by the general contractor’s own insurer.
Products Liability & Tort Litigation
Rice v. Harley-Davidson, Inc., 2007 U.S. Dist. LEXIS 78276 (N.D.N.Y. Oct. 22, 2007).
Obtained summary judgment for major motorcycle manufacturer in products liability case in which plaintiff suffered catastrophic injuries during a promotional test-ride at an annual motorcycle rally.
Weathers v. Millbrook Central School District, 428 F. Supp.2d 180 (S.D.N.Y. 2006).
In a civil rights case of first impression, obtained summary judgment that neither School District nor administrators participated in forcible drugging of student suffering from Attention Deficit Disorder by recommending that student seek medical treatment for behavioral problems.
Construction & Labor Law Litigation
McComber v. Lehrer-McGovern (NY County Supreme 2003).
Obtained defense liability verdict in favor of sub-contractor employer, an iron fabricator, in a Labor Law 240(1) case in which plaintiff ironworker fell 30 feet from iron beam during the construction of the New York Yankees minor league ballpark in Staten Island. Other parties alleged that iron workers did not properly secure the beams. Jury found that concrete subcontractor broke one of the bolts securing the beam and simply buried the broken bolt in the concrete rather than inform the iron workers. Plaintiff ultimately proceeded to damages phase against other defendants and jury awarded $33M in damages.
DeVita v. PRT Construction (NY County Supreme 2006).
Defeated summary judgment and obtained favorable settlement during trial in Labor Law 240(1) action in which we successfully argued that plaintiff’s fall from a ladder was caused by his failure to take his methadone treatment for the three days immediately preceding the accident, resulting in dizziness and loss of balance, rather than a broken ladder.
Jenkinson v. Valerio Associates Consulting Engineers, P.C., et al. (N.Y. Sup. Ct., Kings County June 7, 2018) (and related actions)
Obtained dismissal of five related personal injury actions brought against the firm’s engineer client relating to a balcony collapse in Brooklyn, N.Y. We successfully crafted and implemented a defense based on CPLR §§ 3211(h) and 214-d, which provide a heightened standard of review for suits brought against design professionals based on work completed more than ten years prior to the claim. We persuaded the court that the client’s work at the subject property did not involve the subject deck in any manner, and in any event, given the length of time between the accident and the client’s work, the plaintiffs could not establish proximate causation.
Complex Business Litigation
Shiamili v. Real Estate Group of New York, Inc., 17 N.Y.3d 281 (2011).
Obtained landmark victory before New York’s highest court holding that the federal Communications Decency Act (“CDA”) immunizes internet publishers from defamation claims for content created by others.
Crescendo Designs, Ltd., v. Reses, 2017 N.Y. App. Div. LEXIS 5119 (2d Dep’t June 28, 2017).
Appellate Division affirmed dismissal of libel and defamation claims against consumer who published unfavorable review of a home electronics company on internet website Yelp! holding that the review constituted a protected opinion and therefore not actionable.
SD Protection, Inc. v. Del Rio, 498 F. Supp.2d 576 (E.D.N.Y. 2007).
Successfully defeated claims alleging breach of employment contract, and awarded costs and attorneys’ fees after establishing that alleged non-compete clause of the employment contract was never executed.
Bosworth Brokers v. Dennis Bosworth et al. (N.J. Super. Hudson Cty).
Successfully resolved intra-family dispute arising out of a failed brokerage business in the aftermath of the 2008 financial crisis.
