East Coast CM Report of Recent Decisions – 2021 Volume 1

April 19, 2021 / CM Reports

Too Far Or Not Far Enough?
NY Extends Its Bystander Rule To Grandparents

The sudden loss of or serious injury to a loved one is so often so devastating. It can be worse when it was witnessed, and worse still when caused by another’s fault. The combination can cause anxieties, depressions, nightmares, a whole gamut of emotional problems lasting a survivor’s lifetime.

Maine’s Supreme Judicial Court Finds That A Policy’s “Earth Movement Exclusion” Applies To Any Earth Movement, Regardless Of The Cause

In Bibeau v. Concord General Mutual Insurance Company, 244 A3d 712, 2021 ME 4 (2021), the Supreme Judicial Court of Maine addressed certain specific provisions of a homeowner’s insurance policy and whether those provisions unambiguously exclude coverage for substantial losses sustained by the policy holder.

New Jersey Appellate Court Upholds New Jersey Appellate Court Upholds The Umpire’s Finding, Which Determined That The Spreadsheets Attached To The Applicable Policies Did Not Transform The Insurance Agreement Into A Valued Policy

In Max v. Great Am. Sec. Ins. Co., 2021 N.J. Super Unpub. Lexis 394, the New Jersey Appellate Court was tasked with determining whether the arbitration award, and the trial court’s subsequent confirmation, were proper. This included a determination made by the Umpire that the applicable dealer policies were not valued policies, despite one of the policies having attached spreadsheets itemizing the values of the insured properties.

Defendant Success On Summary Judgment Utilizing The Storm-In-Progress Rule

Recently, the New York Second Department affirmed an order of the lower court in favor of summary judgment for a defendant whose argument utilized the storm-in-progress rule. Balagyozyan v. Federal Realty LP, et al., 2021 N.Y. Slip Op 00827 (2d Dep’t, 2021). This is a significant decision because it demonstrates the strength of the storm-in-progress defense, even when the defendant had taken steps to clear the snow and ice prior to the storm being complete.

New Hampshire Supreme Court Analogizes Students In Campus Housing Relationship With College To Landlord-Tenant Relationship In Applying The Anti-Subrogation Doctrine

In Ro v. Factory Mutual Insurance Company, the New Hampshire Supreme Court affirmed the judgment of the lower courts that granted summary judgment to Plaintiffs in their declaratory judgment action in which the courts ruled that the two student plaintiffs (“Students”) that resided in the Dartmouth College (“Dartmouth”) dormitories were implied co-insureds under the university’s fire insurance policy issued by Factory Mutual Insurance Company (“Factory Mutual”). Consequently, subrogation could not be pursued against the students. No. 2019-0620, 2021 N.H. LEXIS 34 (Mar. 10, 2021).

Third Department Allows § 114-a Discretionary Penalty, But Refuses To Permanently Steamroll Claimant’s Benefits

In the Matter of the Claim of Brian Dunleavy v. Federated Fire Protection (Turner Construction), Workers’ Compensation Board, 2021 NY Slip Op 01464 (App. Div., 3d Dept., March 11, 2021), the Third Department affirmed a Workers’ Compensation Board decision refusing to permanently disqualify a claimant from receiving benefits while allowing a discretionary penalty under § 114-a of the Workers’ Compensation Law.

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