Welcome to the Lewis Johs Insurance Coverage blog, a blog devoted to insurance coverage issues arising under New York Law and addressed by the appellate and trial courts, as well as federal courts interpreting New York Law.
In Wilner v. Allstate Ins. Co., decided by the Second Department on January 12, 2010 and reported at 2010 NY Slip Opinion 00248, the Second Department denied Allstate's motion to dismiss the causes of action alleging a violation of General Business Law §349, which included a claim for punitive damages and attorneys' fees, as well as dismissal of the second cause of action sounding in breach of contract based upon the insurer's refusal to provide a defense to the insured after the Village of Roslyn instituted criminal proceedings against them.
In Ponok Realty Corp v. United National Specialty Insurance Co, 2010 NY Slip op 00124 (2nd Dept 2010), the court rejected the insured’s argument that the insurer was obligated to demonstrate prejudice in order to disclaim based upon its insured’s late notice of the incident, noting that the amendment to Insurance Law 3420 requiring such a showing was not applicable, as the policy was not issued on or after January 17, 2009, as set forth in the 2008 amendment to the law.
In a case I have been involved with for many years, Commercial Insurance Company v. Popadich, the First Department today affirmed the decision of the Supreme Court, New York County, which determined that our client, Commercial Insurance, had no obligation to defend or indemnify their insured, Ronald Popadich, based upon the intentional nature of his conduct. Popadich had gone on a murderous rampage in New York City with his vehicle, killing one pedestrian and injuring several others.
On November 18, 2009 Governor Patterson signed into law legislation which abrogates the right of a private insurer to subrogate against a settling defendant or plaintiff in a personal injury or wrongful death action. It will apply to all actions filed after November 18, 2009 and to all pending actions where there has been no trial or settlement.
American Transit Ins. Co. v. Brown, 2009 Slip Opinion 07207 (1st Dept. 2009) involved satisfaction of a default judgment obtained by defendant Brown against American Transit’s insured, Batista. The underlying action arose from a motor vehicle accident which occurred on November 12, 2002. Brown forwarded copies of the summons and complaint to American Transit in January, 2006 at the address previously used in correspondence between American Transit and Brown. Unbeknownst to Brown, American Transit had moved its offices in November 2003.
The ever-popular Law School for Claims Professionals will be held on October 23 at the Hyatt Regency on Long Island. I am delighted to serve as chairperson for the event and will be lecturing on Notice, the newly- enacted prejudice legislation and Disclaimers. Other topics include Premises Liability, Auto Coverage Update, Subrogation and Liens. The afternoon will include two interactive workshops led by experienced coverage attorneys and will allow the claims professional to explore various coverage issues and options for addressing and resolving the issues.
In Regal Construction Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 2009 Slip Opinion 05831 (1st Dept. 2009), the court held that National Union was obligated to defend and indemnify URS Corp. in an underlying personal injury action. At issue was the status of URS as an additional insured under a policy issued to the prime contractor, Regal, for a construction and renovation project at Riker’s Island.
On June 4, 2009, the New York Court of Appeals decided Allstate v. Rivera and Clarendon v. Nunez, affirming the appellate division and finding that no trigger for underinsured motorist coverage was present where the insurance policy of the vehicle occupied by the claimants and the offending tortfeasor's coverage was the same. This may not sound novel based upon the plain reading of Insurance Law 3420 which defines SUM coverage as being triggered where the liability limits of another motor vehicle are in a lesser amount than the claimant's limits.
