New York CM Report Of Recent Decisions (2007v2)
2007 Volume 2
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
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Articles in this report
Court Of Appeals Rules That Asbestos Claims Are Separate Occurrences For Coverage Purposes
In Appalachian Ins. Co. v. General Electric Co., 8 N.Y.3d 162 (N.Y. 2007), the New York State Court of Appeals rejected General Electric’s position that an “occurrence” was not an individual asbestos claim against the company, but the aggregate of all claims arising out of exposure to any product containing asbestos that General Electric manufactured. The Court, applying the “unfortunate event” test established in the case of Arthur A. Johnson Corp. v. Indemnity Ins. Co. of N. Am., 7 N.Y.2d 222 (1959), held that the circumstances surrounding each plaintiff’s exposure to the asbestos must determine the occurrence. Under this test, given the unique histories of exposure of each plaintiff, each claim constituted a separate occurrence.
First Department Further Limits Labor Law ยง240(1): Safety Equipment Need Not Be Available "On-Site"
In a continuing effort to clarify the boundaries of New York Labor Law § 240(1), the Appellate Division, First Department recently held that injuries incurred by workers who fail to request properly functioning equipment, despite its availability, albeit off-site, may not state a claim for damages under that section when they become injured while using other, defective equipment. Miro v. Plaza Construction Corporation, 38 A.D.3d 454, 834 N.Y.S.2d 36 (1st Dep’t 2007).
In A Medical Malpractice Action, General Allegations Are Insufficient To Defeat Summary Judgment
In Rebozo v. Wilen, 2007 WL 1629992 (2nd Dep’t June 5, 2007), Plaintiff, Stephanie Rebozo, brought an action against a surgeon and consulting physician to recover damages for medical malpractice and lack of informed consent following a slip-and-fall accident. The accident resulted in three surgeries to repair the damage Plaintiff sustained to both of her knees. The Supreme Court, Richmond County denied the consulting physician’s motion for summary judgment. The consulting physician appealed.
Insured Was Entitled To Coverage Under Express Provision Of All-Risk Policy For Collapse Of Parking Garage That Was Caused By "Weight Of Rain," Even Where Weight Of Rain Was Not Dominant Cause Of Collapse
The Appellate Division, First Department recently held that an insured was entitled to coverage for collapse of a parking garage that was caused in part by “weight of rain” under an express provision in an all-risk, first-party property insurance policy, despite “weight of rain” not being the dominant cause of the collapse. Seward Park Housing Corp. v. Greater New York Mutual Insurance Co., 2007 WL 1365368, 2007 N.Y. Slip Op. 04055 (1st Dep’t May 10, 2007). In reaching this decision, the Court determined that the insurers failed to satisfy their burden of establishing that the claimed policy exclusion defeated the insured’s claim to coverage.
Pennsylvania Upholds Carmack's Application to Packing And Loading Activities For Household Goods Carrier, And Holds That Claim With No Monetary Damage Amount Fails To Meet Minimum Filing Requirements
The Middle District of Pennsylvania recently granted a Defendant household goods carrier’s Motion for Reconsideration, holding that the Court made a clear error of law in its prior holding that the Carmack Amendment did not apply to the Carrier’s packing and loading activities. The Court then applied Carmack and found that Plaintiffs failed to make a proper, timely claim against the Carrier. Lewis v. Atlas Van Lines, Inc., 2007 WL 1576452 (M.D.Pa. May 30, 2007).
Second Circuit Again Holds That Subrogation Waiver Clause Bars Gross Negligence Claim
In April, 2005, I wrote an article for the CM Report, which discussed the Second Circuit’s decision in St. Paul Fire & Marine Ins. Co. v. Universal Builders Supply, 409 F.3d 73 (2d. Cir.2005) (holding that a waiver of subrogation clause bars a claim of gross negligence under New York law). Since that article, Clausen Miller P.C. has continued to be successful in various venues with its argument that a waiver of subrogation provision does not apply to gross negligence (some of these successes have been reported in the interim CM Reports).
The Follow The Fortunes Doctrine Will Not Apply When Reinsured Manipulates The Allocation Process
A New York Appellate Court recently held that a reinsurer was not liable to a reinsured pursuant to facultative reinsurance certificates since the reinsured’s position during its post settlement allocation was directly opposed to the position it took during the underlying litigation. In Allstate Insurance Company v. American Home Assurance Company, 2007 N.Y. Slip Op 5170, 2007 N.Y. App. Div. LEXIS 7284 (1st Dept. 2007), the New York Appellate Division, First Department, held that a reinsurer was not bound by the follow-the-fortunes doctrine where the reinsured’s settlement allocation, at odds with its allocation of the loss with its insured, reflected an effort to unreasonably maximize the amount of collectible reinsurance.
