East Coast CM Report of Recent Decisions – 2018 Volume 4

February 6, 2019 / CM Reports

Custom Endorsement Limiting Liability For A Sewer Backup Enforced In Favor Of Insurer

A New Jersey Appellate Court found policy language limiting liability for a sewer backup to $25,000 was unambiguous and affirmed the Law Division’s grant of summary judgment to the insurer, Ohio Security Insurance Company. In Fouzia Salih v. Ohio Security Insurance Company, Docket No. A-1179- 17T1, Superior Court of New Jersey Appellate Division (December 3, 2018), the Court rejected the insured’s attempt to make the policy language ambiguous by using case law offering a different interpretation of the policy provision.

Second Circuit Clarifies The Importance Of Issuing An Explicit Reservation Of Rights Letter When Providing Insureds With A Defense

The Second Circuit’s decision in Sparta Insurance Company v. Technology Insurance Company, 2018 U.S. App. LEXIS 27165 (2d Cir. 2018) clarifies the importance of an insurer explicitly and specifically reserving its rights when providing additional insureds with coverage to ensure that they will not be later estopped from asserting policy defenses that could have potentially saved the insurer significant defense costs.

Plaintiff Can Be Awarded Past Or Future Lost Earnings In A Motor Vehicle Accident Case Even Though A Jury Finds No “Serious Injury” Under The Insurance Law

In Gore v. Cardany, 2918 NY Slip Op 08632 (2018), the Appellate Division, Second Department reversed an order from the Westchester County Supreme Court which granted Defendant’s motion to set aside a jury verdict on the issue of damages for past lost earnings in the sum of $156,000 and future lost earnings in the sum of $750,000, and for judgment as a matter of law in favor of Defendant against Plaintiff, in effect, dismissing the Complaint.

Insurer’s Compliance With N.J.A.C. § 11.2-17.10(A)(9) Does Not Automatically Entitle It To Summary Judgment

In Ferro v. Travelers Ins. Co. a/k/a St. Paul Protective Ins. Co., No. A-5174- 16T3 (Dec. 3, 2018), the New Jersey Appellate Division analyzed the significance of an insurance company’s “cut-off letter” under N.J.A.C. § 11.2-17.10(a)(9).

Third Department Upholds Workers’ Compensation Board’s Decision Denying Claim For Injury Occurring At Employee’s Parking Garage While Scanning Employee Parking Pass

In the Matter of the Claim of Shelly A. Grover v. State Insurance Fund, Workers’ Compensation Board, 2018 NY Slip Op 06601 (App. Div., 3d Dept., October 4, 2018), the Third Department upheld the Workers’ Compensation Board’s finding that claimant’s injury did not arise out of and in the course of employment, thus denying her claim for Workers’ Compensation benefits.

New Jersey Court Reverses Dismissal Of Suit Brought By Workers’ Compensation Carrier Seeking To Recover Reimbursement Of Benefits Paid To An Injured Employee, From Third-Party Tortfeasors, In An Instance Where The Injured Employee Could Not Recover From The Third-Party

The New Jersey Superior Court, Appellate Division, recently reversed a ruling on appeal that dismissed a subrogation claim brought by a workers’ compensation carrier seeking reimbursement of workers’ compensation benefits paid to an injured employee. New Jersey Transit Corp. v. Sanchez, A-01761-17T3 (App. Div. N.J. 2018) A determining factor in dismissing the claim was that the injured employee could not sue his own automobile insurer or the tortfeasors to obtain reimbursement. The underlying claim is based on a work-related motor vehicle accident.

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