New York CM Report of Recent Decisions
2005 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
An Earth Movement Exclusion is Limited to Damage Caused by Natural Causes (Absent Specific Policy Language to the Contrary)
The Florida Supreme Court held in Fayad v. Clarendon National Ins. Co., 2005 WL 729172 (Fla, 2005), that damages caused by blasting are covered under an ‘all-risk' insurance policy that expressly excludes damage caused by earth movement. In deciding this issue, the Court resolved a split in the Florida District Courts of Appeals.
New York Court of Appeals Further Limits Labor Law §240(1): Flatbed Trucks are Not Height-Related Risks
In a continuing effort to clarify the boundaries of New York Labor Law §§ 240(1) and 241(6), the Court of Appeals recently held that injuries incurred by workers while working on or descending a flatbed truck were not performing the type of occupational hazard and height related risk against which these statutes were meant to protect. Toefer v. Long Island Railroad & Marvin v. Korean Air, 4 N.Y.3d 399, 2005 WL 756604 (2005).
New York Court of Appeals Rules That Insurers Are Not Required to Prove Prejudice in Late Notice Case
The New York Court of Appeals has recently held that the “no-prejudice” rule, providing that a primary insurer is not required to show prejudice, is applicable to the late notice of a lawsuit under a liability insurance policy. The Argo Corporation v. Greater New York Mutual Insurance Co., 4 N.Y.3d 332, 827 N.E.2d 762, 794 N.Y.S.2d 704 (2005). In Argo, the High Court found that late notice of a lawsuit to a liability insurer was so likely to be prejudicial that application of the no-prejudice rule was justified.
New York Courts Grapple with Informal Defense Interviews in the Wake of Privacy Act, but a Recent Decision Provides Momentum to Allow Practice to Continue
Although each practitioner must be aware of the opinions of their particular Judge, which varies from court to court even in the same Department, Judge Stanley Sklar’s decision provides counsel with compelling arguments for the continued practice of informal interviews of treating physicians even in the wake of HIPAA.
As we reported in New York CM Report of Recent Decisions – Volume 2, 2004, the New York Court of Appeals in Broadnax v. Gonzalez, 777 N.Y.S.2d 416 (2004), held that, even absent a showing of independent physical injury to her, a mother may recover damages for emotional harm when medical malpractice causes miscarriage or stillbirth. In our "Learning Point" at the conclusion of that report, we discussed the opinion of the New York Appellate Division – Second Department in Sheppard-Mobley v. King, 778 N.Y.S.2d 98 (2d Dep't 2004), which was decided right after Broadnax was handed down. Sheppard-Mobley has now itself been reviewed by the Court of Appeals, and the Second Department's expansive interpretation of Broadnax has been rejected. (2005 WL 1106014; publication pages not yet available).
Second Circuit Holds That a Waiver of Subrogation Provision Applies to Breach of Contract and Gross Negligence Claims
Although Universal Builders held that a waiver of subrogation provision will apply to gross negligence claims under New York law, thus making it much harder for certain subrogation actions that were going to rely upon a gross negligence claim to get around a waiver of subrogation provision under New York law, there are still some loop holes which may apply to your case. It is still important to discuss your case with a competent and qualified subrogation attorney to determine whether there is subrogation potential, do not merely close the file because there is a waiver of subrogation provision.
Standard Pollution Exclusion Provision Limited to Traditional Environmental Pollution Claims in New Jersey
The Supreme Court of New Jersey recently held that a standard pollution exclusion clause in a commercial general liability insurance policy was limited to traditional environmental pollution claims, and therefore did not apply to fumes emanating from floor coatings and sealants in a shopping center. Nav-Its, Inc. v. Selective Ins. Co. of America, 183 N.J. 110 (2005).
State Finance Law §137 Allows Subcontractors' Assignees to Recovery Payment from Bond Sureties
The New York Court of Appeals recently held that a subcontractor’s assignee may file suit to recover payment from bond sureties pursuant to State Finance Law § 137. Quantum Corporate Funding, Ltd. v. West Industries, Inc., 4 N.Y.3d 311 (2005).
