New York CM Report of Recent Decisions (2006v3)
2006 Volume 3
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
Damages Offset Under New York General Obligations Law ยง15-108(a) Not Available To Defaulting Defendant
A joint tortfeasor seeking an offset of damages, pursuant to New York General Obligations Law (“GOL”) §15-108(a), must plead the offset as an affirmative defense or lose the offset. This section of GOL entitles a non-settling tortfeasor to a reduction in damages equal to the greater of: (1) the settling defendant(s)’ equitable share of the damages awarded; (2) the stipulated amount of any settlements; or (3) the amount actually paid by the settling defendant(s). The court has discretion to allow amendment of an answer to include the affirmative defense, however, a party in default cannot obtain such a reduction, because they have not complied with pleading requirements.
Hospital Fails To Establish Patient's Incident Reports Confidential: Disclosure Ordered By Court
A New York Supreme Court, Suffolk County, recently held in Williams v. Brookhaven Memorial Hospital Medical Center, 13 Misc.3d 1204(A), Slip Copy, 2006 WL 2559527 (Table) N.Y.Sup., 2006, that a hospital’s incident report was subject to discovery. The Court concluded that Brookhaven Memorial Hospital (“Brookhaven”) failed to meet its burden of establishing that certain incident reports are confidential and protected from disclosure by Education Law § 6527(3) and Public Health Law § 2805-m, and, therefore, the documents were subject to disclosure.
Insurers Have A Duty To Defend A Policyholder In A Wrongful Death Action Arising Out Of A Justifiable Homicide
New York’s Highest Court, the New York Court of Appeals, recently held that an intentional and justifiable shooting that unexpectedly resulted in death was an “occurrence” under the language of a homeowner’s policy. The Court also found that a wrongful death claim alleging negligence, which stemmed from the justifiable homicide, did not necessarily fall within the “expected or intended” injury exclusion of the policy. As such, the Court held that the insurer had a duty to defend its policyholder. Automobile Insurance Company of Hartford v. Cook, 7 N.Y.3d 131, 850 N.E.2d 1152 (N.Y. 2006).
Mississippi Court Enforces Homeowner's Policy Exclusion For Water Damage Caused By Hurricane Katrina, But Finds Concurrent Causation Exclusion For Wind And Water Damage Ambiguous and Unenforceable
The Southern District of Mississippi recently held that the policy exclusions for flood and water damage in a homeowner’s policy were valid and enforceable even when the policy provides coverage for windstorms or hurricanes, such as Hurricane Katrina. However, the decision also held that policy provisions excluding wind damage occurring in combination with flooding were ambiguous. The decision in Leonard v. Nationwide Mutual Insurance Company, 438 F.Supp.2d 684 (S.D. Miss. 2006), is one of the first significant cases involving a homeowner’s claim for combined wind and water damage resulting from Hurricane Katrina.
New Jersey Supreme Court Bars Subrogation Actions Against Regulated Utilities
In 1987, the New Jersey Supreme Court decided Weinberg v. Dinger, 106 N.J. 469, 524 A.2d 366 (1987). The Court “reconsidered the longstanding New Jersey rule immunizing private water companies from liability for their negligence in failing to provide to fire hydrants water pressure of sufficient force to extinguish a fire.” Id. at 472. In the end, the Court:
Public Policy Prohibits A Parent Of A Minor Child From Releasing The Minor Child's Potential Tort Claims Arising Out of the Use of A Commercial Recreational Facility
In Hojnowski v. Vans Skate Park, 187 N.J. 323, 901 A.2d 318 (N.J. 2006), the Supreme Court for the State of New Jersey held that public policy prohibits a parent of a minor child from releasing the minor child’s potential tort claims arising out of the use of a commercial recreational facility. In reaching its decision, however, the Supreme Court held that a parent’s agreement to arbitrate is valid and enforceable against any tort claims asserted on a minor’s behalf.
The Broad Duty To Defend Standard Applied To Named Insureds Also Applies To Additional Insureds
The Appellate Division, First Department, recently issued a decision which addressed two key topics relevant to the coverage provided to additional insureds, strictly interpreting, and indeed, significantly expanding upon two Court of Appeals holdings in the process. The Court held that: (1) an insurer was obligated to defend a purported additional insured in an action where it was not clear and was not yet established that the alleged injury arose from the named insured’s operations, despite the language of the insurer’s additional insured endorsement which stated that additional insured coverage would exist “only with respect to liability arising out of your ongoing operations”; and (2) the coverage afforded to the additional insured was primary to the additional insured’s own insurance, without regard or resort to the policies’ other insurance clauses.
