East Coast CM Report of Recent Decisions – 2016 Vol. 3

November 11, 2016 / CM Reports

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Articles in this report

Connecticut High Court Holds That Workers Compensation Insurers Can Sue Third-Parties To Recover Payments Made To An Injured Worker
In Pacific Ins. Co., Ltd. v. Champion Steel, LLC, SC 19402, SC 19403 (Conn. 2016), the Supreme Court of Connecticut held that a Workers Compensation insurer can maintain an equitable subrogation claim against third-party tortfeasors to recover benefits paid on behalf of an insured employer to an injured employee. The common law doctrine of equitable subrogation enables an insurance company that has made a payment to its insured to substitute itself for the insured and proceed against the responsible tortfeasor.

Insurers May Preserve Late Notice Defense Even If The Defense Is Not Explicit In A Reservation Of Rights
In Estee Lauder Inc. v. OneBeacon Ins. Group, LLC, 2016 N.Y. Slip. Op. 06012 (Sept. 15, 2016), the New York Court of Appeals held that Defendant, OneBeacon Ins. Group., LLC (and its predecessor companies), did not waive its right to assert the late notice defense by failing to explicitly identify late notice in disclaimer letters.

New Jersey Supreme Court Holds That Consequential Damages From Subcontractor’s Faulty Workmanship Constituted Property Damage
In Cypress Point Condominium Association, Inc. v. Adria Towers LLC, 2016 N.J. LEXIS 847 (August, 2016), New Jersey’s Supreme Court was faced with the question: “whether rain water damage caused by a subcontractor’s faulty workmanship constitutes ‘property damage’ and an ‘occurrence’ under a property developer’s commercial general liability (CGL) insurance policy.”

New York Appellate Court Holds That Plaintiff’s Comparative Fault Will Preclude Plaintiff From Obtaining Summary Judgment Against Defendants On Liability
In Rodriguez v. City of New York, 37 N.Y.S.3d 93 (N.Y. App. Div. 2016), the Appellate Division, First Department considered whether a plaintiff seeking summary judgment on liability must establish, as a matter of law, that he is free from comparative fault. In a 3-2 decision, the Court affirmed that a plaintiff may not be awarded partial summary judgment if the defendant has raised an issue of fact as to the plaintiff’s comparative negligence.

New York Appellate Court Holds That Snow Removal Contractor’s Omissions Are Not Sufficient To Constitute Creation Or Exacerbation Of A Dangerous Condition Absent Good Evidence
In Santos v. Deanco Servs., Inc., 2016 NY Slip Op 05489b (2d Dep’t July 13, 2016), the Appellate Division, Second Department, reversed an interlocutory judgment which initially denied Defendant’s motions pursuant to CPLR 4401 seeking to dismiss the Complaint and CPLR 4404(a) to set aside the verdict and for judgment, both as a matter of law.

New York Appellate Court Tightens Reins On The Application Of Labor Law §240 (1) In Falling Object Cases
In Seales v Trident Structural Corp., 2016 N.Y. App. Div. LEXIS 6100, 2016 NY Slip Op 06204, a construction worker who was injured by a piece of falling sheetrock on a construction site brought an action against the site’s owner and Trident Structural Corp., the contractor responsible for carpentry, structural work, framing, roofing and sheetrock installation on site, alleging violation of New York Labor Law §§ 240, 241(6) and 200, and common law negligence.

“Your Work” Exclusion Precludes A Defense Where Underlying Complaint Only Alleges Damages To Builders’ Own Work
In Essex Insurance Co. v. DiMucci Development Corp. of Ponce Inlet, Inc., case no. 6:15-cv-00486, the United States District Court for the Middle District of Florida, Orlando Division, applying Florida law, concluded that an insurer is not required to defend its insured builder in an underlying suit alleging construction defects at one of its Florida condominium complexes. There, the commercial general liability policies included a “your work” exclusion which precluded coverage because the underlying lawsuit alleged only damage to the builder’s own work.

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