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NEWSRecent Decisions of Interest
From our Personal Injury Department comes the following case alert for those practitioners with pending wrongful death matters. On January 10, 2012, New York State Court of Appeals issued a 5-2
decision that interest on wrongful death actions does not run from the
date liability is determined but rather from the date of death. In
Toledo v. Iglesia Ni Christo, No. 224, NYLJ,
January 11, 2012, the majority argued that EPTL 5-4.3, read in
conjunction with its earlier decisions and decisions of lower courts
compelled the restatement that "...prejudgment interest in a wrongful
death action is part of the damages" which accrue on the date of death.
Summing up the body of case precedent the Court of Appeals stated:
"Future damages are thus a debt owed entirely as of the date of
liability-the date of death...-and such damage award properly should
include preverdict interest calculated from the date of death." From our personal injury department comes a new case/practice alert. The Court of Appeals recently addressed three "companion" motor vehicle cases where the issue was the serious injury threshold. In Perl v. Meher, 2011 Slip Op 08452, the Court reversed two Appellate Division decisions and affirmed a third where the question was the sufficiency of the plaintiffs' proof of injury. The result was the Court's reaffirmation of certain, well known principles and the recognition of a new, important consideration when addressing a threshold question. The Court reiterated the (1) need for objective evidence; that (2) subjective complaints can be verified using "quantitative expert evidence" such as in the case of a quantifiable loss of range of motion and that (3) a doctor's report that relies solely on subjective complaints is not sufficient. The Court added (4) that a quantitative assessment need not be made at the start of treatment but can be made later and in connection with pending litigation. In the case of fourth consideration, the Court of Appeals overruled the Appellate Division which, citing to Toure v. Avis Rent A Car, 98 NY2d 345 (2002), had held that plaintiffs were "...required to demonstrate restricted range of motion based on findings both contemporaneous to the accident...and upon recent findings". In Perl, the Court of Appeals reversed saying "Toure...imposed no such requirement of 'contemporaneous' quantitative measurements, and we see know justification for it". This case alert comes from our Personal Injury Department and is clearly of interest to the plaintiff's practitioner who thinks bad faith actions in New York are dead. In Taveras v. American Transit Ins. Co., 2011 Slip Op 51831(U) (Kings Cty. 2011), Judge Schack of the Supreme Court, Kings County awarded summary judgment to an injured plaintiff against American Transit for the balance of $2,250,000.00 plus interest after exhausting underlying policies totaling $200,000.00 due to what the court characterized as the carrier's "...gross disregard of the interest of its insureds". Prior to the trial of the action, plaintiff Taveras stated he was willing to settle with American Transit for the full amount of it's applicable policies. The carrier never responded to the plaintiff's offer to resolve the action. Plaintiff's counsel sent a bad faith letter which set forth economic and non-economic damages in excess of the amount of coverage available. After obtaining a liability verdict against American Transit's insured, the plaintiff reiterated his willingness to settle the case. This was again rebuffed resulting in a damages verdict of $9,263,376.00. On remittitur, the Appellate Division reduced plaintiff's damage award to $2,250,000.00. At no time prior to or during the trial did American Transit advise its insured of the offer to resolve the action within the policy limits. The carrier's insured assigned his bad faith action to Taveras. American Transits shortcomings were many including the failure to advise its insured of the offer to settle and of the possibility of an excess verdict, assigning the same claims examiner to handle claims against more than one insured where there were clear conflicts of interest and the failure to properly set reserves. In the end, Judge Schack, citing to Pavia v. State Farm Mutual Ins. Co., 82 NY2d 445 (1993) found that the "...insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted". As a final insult, American Transit cross-moved to disclaim coverage after having represented its insured for almost nine years in the underlying claim. The cross-motion was denied. While an appeal is inevitable, please see the link below for a satisfying read:
From the Personal Injury Department comes an alert of interest to both plaintiffs and defendants engaged in discovery where damages may be at issue. A recent New York Law Journal article (Disclosure of Information on Social Networking Websites, NYLJ, 9-20-11, Connors, Patrick) highlights the pitfalls of exposure in the digital age. The article discusses some recent decisions where information contained on a litigant's Facebook page became the focus of discovery demands. In one case, Romano v. Steelcase, Inc., 30 Misc.3d 426 (Supreme Court, Suffolk Cty. 2010) the trial court ruled that photographs posted on the plaintiff's profile page which demonstrated behavior contrary to her damages claim required further disclosure regarding plaintiff's Facebook and Myspace accounts. Other courts, while not ruling that such information is not discoverable, have held that there must be a prima facie showing of relevancy and that access should not amount to a fishing expedition (see, McCann v. Harleysville Ins. Co. of NY, 78 AD3d 1524 (4th Dept. 2010). In other words, the litigant's social networking page must contain relevant information on its face; photos, etc., that would be available to web users at large, not just 'friends' of the account holder. This timely and interesting article can be accessed by clicking the following link: http://www.newyorklawjournal.com/PubArticleNY.jsp?id=1202514894278&slreturn=1
From our Personal Injury Dept. comes a case alert of interest to practitioners dealing with a claimed right of lien or subrogation asserted by a health carrier against the proceeds of a 3rd party action settlement. In Ferlazzo v. 18th Avenue Hardware, Inc., 30940/09, NYLJ 1202513362761 (Sup. Ct., Kings Cty. August 22, 2011), Oxford Health Plan and Rawlings Company claimed a right of subrogation and/or lien upon the settlement proceeds of plaintiff's third party action. Plaintiff was enrolled under a Medicare Advantage plan. The plan was administered by Oxford, a private insurer authorized by federal law to provide Medicare benefits to plan members. Oxford, via Rawlings, claimed a lien in the sum of $39,680.89 representing accident related conditional payments. The policy contained 'standard' lien/reimbursement language. Plaintiff opposed the claim of a lien based upon GOL §5-335(a) which "conclusively" presumes that a settlement does not include compensation for "...the cost of health services, loss of earnings or other economic loss...except for those payments as to which there is a statutory right of reimbursement". The statute goes on to say that in the absence of such a statutory right, "...a benefit provider shall have no lien or right of subrogation or reimbursement...". Medicare Advantage Program members can opt to receive benefits from a private insurer instead of the federal government. Although the Medicare Advantage insurer is considered a secondary payer the same as Medicare (with its statutory right of action), the Medicare Advantage statute does not "...expressly authorize a private right of action in favor of the private insurer to recover payments". The statute only provides for a right of subrogation which has been interpreted as providing no private right of action. See, Care Choices HMO v. Engstrom, 330 F3d 786, 791 (6th Cir. 2003), for example. See also, Nott v. Aetna U.S. Health Care, Inc., 303 F Supp 2d 565 (E.D. Pa. 2004) in which the district court found the language of the Medicare Advantage statute concerning any recoupment provision was permissive and not intended to create an affirmative right of action. Having no statutory right of reimbursement, GOL §5-335 is controlling and thus Oxford was not entitled to claim any part of plaintiff's settlement proceeds.
From our personal injury litigation department comes the following case note for those practitioners involved in claims against municipalities. In Groninger v. Village of Mamaroneck, NYLJ, page 27, June 3, 2011, the Court of Appeals, in a 4-3 decision, held that a municipal parking lot serves the "functional purpose" of a "highway" within the meaning of the VTL and therefore, prior written notice is a condition precedent to suit. Plaintiff slipped and fell on ice in a Village parking lot. Relying on Walker v. Town of Hempstead, 84 NY2d 360 (1994), the plaintiff argued that since a parking lot was not one of the specifically enumerated locations contained in either Village Law §6-628 or CPLR §9804, prior written notice of the condition was not required. In rejecting plaintiff's position, the Court of Appeals cited as analogous the holding in Woodson v. City of New York, 93 NY2d 936 (1999) stating that a stairway, although not enumerated, "functionally fulfills the same purpose" as a sidewalk. Since no other exceptions applied, the Village in Groninger was granted summary judgment which the Court of Appeals affirmed.
NO FAULT ARBITRATION/LITIGATION From our No-Fault, UM and Personal Injury litigation department comes a Court of Appeals decision certain to have an impact on practitioners that regularly prosecute uninsured motorist and no-fault claims. In State Farm Insurance Company v. Langan, __ NY__, 2011 NY Slip Op 02437 (2011), the Court of Appeals ruled that whether or not an act effecting a UM or no-fault policy endorsement is considered intentional is viewed from the perspective of the injured party. In State Farm, supra, claimant's decedent was killed when he was intentionally struck by a vehicle that also struck a number of other pedestrians. The vehicle's operator was convicted of 2nd degree murder. The Court of Appeals, in reversing the Appellate Division, 2nd Department stated, "[i]t is clear that, viewed from the insured's perspective, the occurrence was an unexpected or unintended event - and therefore an "accident" - even though [the operator] admittedly intended to strike decedent with the vehicle". In reconciling the insurance axiom that UM coverage is intended..."to provide the insured with the same level of protection he or she would provide to others were the insured tortfeasor in a bodily injury accident", the Court held: "...consistent with the reasonable expectation of the insured under the policy and the stated purpose of the UM endorsement...the intentional assault of an innocent insured is an accident within the meaning of his or her own policy". The Court added that its holding here applies equally to no-fault endorsements. This case is very fact-specific - claimant's decedent was not only the injured party, but the insured as well but is otherwise common UM claims scenario. It will otherwise leave intact the exclusion of coverage for tortfeasors who intentionally cause injury.
PERSONAL INJURY LITIGATION DEPARTMENT 3/9/2011: From our personal injury litigation department comes an alert of interest to the personal injury practitioner in which the Court of Appeals ruled on the issue of pre-judgment interest in the context of a liability verdict followed by an arbitration award on damages. In Grobman v. Chernoff, 15 N.Y.3d 525 (Nov. 30, 2010), a bifurcated trial resulted in a liability verdict for the plaintiff. After a trial on damages, the entire matter was appealed and remanded for re-trial. A demand for arbitration on damages only was upheld (in a subsequent appeal) resulting in an award of 125,000.00. The issue posed to the Court of Appeals was whether or not interest ran from the date of the or from the date of the liability verdict. Citing to Love v. State of New York, the Court said interest runs from the date of the liability verdict in accordance with CPLR section 5002. Keeping in mind that the procedural history of the case is somewhat tortured, it is not unusual that the time between liability and damages verdicts can be drawn out. That this time lag now inures to the benefit of the recipient of an arbitration award is significant.
NO FAULT ARBITRATION/LITIGATION 2/11/2011 From our no-fault arbitration/litigation department comes a case alert of interest to New York State No-Fault practitioners. In Consolidated Imaging P.C. v. Travelers Indemnity Co., __Misc.3d__, NYLJ 1202480410053 (Jan. 27, 2011), Judge Straniere, Supreme Court, Richmond County rendered a decision and judgment, after trial, against the defendant insurance company rejecting a peer review which served as its basis for denial of plaintiff's radiology bill. In so rejecting the peer reviewers report, the court noted several defects that should serve as a guidepost to the no-fault practitioner, particularly plaintiff's counsel. Procedurally, the plaintiff has the initial burden of establishing medical necessity by submitting proof of the timely submission of the appropriate no-fault forms and a failure to pay 1st party benefits. See, Globe Surgical Supply v. GEICO Ins. Co., 59 AD3d 129 (2nd Dept. 2008). Thereafter, the burden shifts to the defendant to demonstrate that the test or treatment was not medically necessary. See, A Plus Medical PC v. GEICO, 21 Misc.3d 799 (Kings Cty.2008). In Consolidated Imaging, the court raised some general concerns and found the peer reviewers report lacking in several respects. First, the court noted concern with the relationship between the carrier, the peer reviewer and the 3rd party vendor that arranges the peer review as well as the quality and quantity of records sent for review. The court asked, "Is there a correlation between the volume of referrals the third-party vendor receives from a carrier and the opinion rendered by the peer reviewer? Depending on what records are sent for review, may in fact predetermine the result." Second, the court noted the importance that the reviewing physician be of the same medical specialty as the physician making the referral or rendering the treatment. While the opinion of a physician not of the same specialty is admissible in New York, the weight it should be accorded must be considered. Third was the need to discern between the reviewer's personal opinion as to medical necessity or whether the referral or treatment was in accordance with generally accepted medical practice. In Consolidated Imaging, the court found that the peer reviewer "...cites no authority to support her conclusion and does not even address the issue of what is generally accepted medical practice which the referring physician breached in ordering the MRI". Based upon the foregoing, the court rejected the peer review and rendered judgment in favor of plaintiff.
PERSONAL INJURY LITIGATION DEPARTMENT 1/20/2011: From our personal injury litigation department comes an alert concerning two recent decisions of interest to the personal injury practitioner. The first involves the question of collateral estoppel and successive arbitration proceedings. The second discusses prior written notice as it relates to the creation of black ice resulting from snow removal activities on municipal property. In Falzone v. New York Central Mutual Fire Insurance Company, __N.Y.3d__, 2010 NY Slip Op 07417 (Oct. 21, 2010), the petitioner was involved in a 2 car accident. When her no-fault carrier denied benefits, Ms. Falzone pressed the issue by filing a no-fault arbitration demand. The arbitrator found in her favor stating that her injury for which treatment was necessitated was causally related to the motor vehicle accident. At nearly the same time the no-fault arbitration was pending, the petitioner filed for an SUM arbitration. Petitioner asserted that the SUM arbitrator was bound by the first arbitrator's finding of a causally related injury. Unfortunately for Ms. Falzone, the SUM arbitrator disagreed, found no causally related injury and awarded nothing. Petitioner brought an Article 75 proceeding to set aside the SUM arbitrator's decision. In affirming the Appellate Division, the Court of Appeals reiterated, "[i]t is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrators power..." As a claim of legal error, the SUM arbitrator's decision was not subject to review. This is clearly a cautionary tale to all SUM counsel; almost anything goes in arbitration proceedings so take no comfort in an earlier, favorable ruling. In San Marco v. Village/Town of Mount Kisco,
__N.Y.3d__, 2010 NY Slip Op 09197 (Dec. 16, 2010), plaintiff was
seriously injured when she slipped and fell on black ice in a Village
parking lot. San Marco alleged the black ice was caused by the melting
and refreezing of snow piled between meters adjacent to parking spaces
and that the Village was negligent in its method of snow removal and in
failing to remedy a dangerous condition. The Village had last inspected
and treated the parking lot some 28 hours prior to plaintiff's fall.
Citing both the Village and Town of Mount Kisco prior written notice
statutes, the defendant asserted it had received no such notice and was
not liable for plaintiff's accident or injuries. The lower court
disagreed with the Village finding that an issue of fact as to whether
or not the defendant created the condition thereby triggering an
exception to the prior written notice statute. The Appellate Division,
Second Department reversed citing earlier Court of Appeals decisions
that held that only where a municipality's action "immediately results
in the existence of a dangerous condition" will the exception trigger.
See, Yarborough v. City of New York, 10 N.Y.3d 726 (2008) and
Oboler v. City of New York, 8 N.Y.3d 888 (2007). In reversing
the Appellate Division, the Court of Appeals in San Marco discussed the
purpose of prior written notice statutes and the "immediacy test"
above-stated holding: "...we find these statutes were never intended
to...exempt a municipality from liability...where a municipality's
negligence in the maintenance of a municipally owned parking facility
triggers the foreseeable development of black ice as soon as the
temperature shifts. Unlike a pothole, which ordinarily is a product of
wear and tear...a pile of plowed snow in a parking lot...presents the
foreseeable, indeed known, risk of melting and refreezing." The Court
continued, "...in the case of black ice that forms from snow plowing in
a municipally owned parking facility, a municipality should require no
additional notice of the possible danger arising from its method of snow
clearance apart from widely available local temperature data." While the
Court of Appeals felt comfortable that the San Marco decision neither
created a new burden of snow removal on the municipality nor "render[s]
the municipality an insurer of pedestrians", it seemingly opens up a new
avenue of redress not readily available to claimants injured on
municipal property previously. If you have any questions please give us a call or use the contact form found on the contact page |
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