In Kassis v. Ohio Casualty Insurance Company, 2008 WL 1914956 (4th Dept., 2008), Kassis commenced an action seeking a declaration that Ohio Casualty had a duty to defend and indemnify Kassis under a commercial general liability policy issued by Ohio Casualty. Kassis relied on a property lease between Kassis, the leasor, and Superior Sign, the leasee which required Superior Sign to procure commercial general liability for the "mutual benefit" of Kassis and Superior Sign. Superior Sign acquired said insurance from Ohio Casualty. The lease did not expressly state that Superior Sign was to name Kassis as an additional insured on the policy. The Appellate Division held that the Ohio Casualty policy provides that the written agreement between the insured and third party must expressly state the third party be named as an additional insured to afford coverage to the third party. Therefore, Kassis was not entitled to defense and indemnification from Ohio Casualty.

In Perkins v. Allstate Insurance Company, 2008 WL 1987275 (2nd Dept., 2008), plaintiff commenced an action pursuant to Insurance Law §3420(a)(2) to recover an unsatisfied judgment against defendant's purported insureds in an underlying action. Plaintiff contended that the defense of lack of coverage was invalid because the defendant failed to issue a timely disclaimer. The Appellate Division held that where an insurer is entitled to deny a claim based on absence of coverage, its failure to timely disclaim coverage does not preclude it from denying liability on that ground.

In Wilson v. Galicia Contracting & Restoration Corp., 2008 WL 1860073 (2008), the plaintiff commenced an action asserting various theories of liability, after he was allegedly hit in the eye with a piece of material while walking under scaffolding assembled by Safeway Steel Products. Safeway and other defendants failed to comply with the plaintiff's discovery requests and as a result, their answers were stricken. This left unrebutted the plaintiff's assertion that the cause of the plaintiff's injuries was "a dangerous, defective and unsafe condition" existing on Safeway's premises. Upon review of the item that was removed from the plaintiff's eye, the object appeared, to an expert retained by a co- defendant, to be an air gun pellet that was "fired into an eye by the power of an air gun." Plaintiff discontinued further action with all defendants except Safeway. Despite Safeway's efforts to show a "justifiable excuse" for its conduct, the Court of Appeals held that Safeway failed to offer any acceptable reason for its pattern of failure to respond to discovery demands. As a result, Safeway was deemed to admit "all traversable allegations in the complaint, including the basic allegation of liability."

In B.F. Yenny Construction Company, Inc. v. One Beacon Insurance Group, 2008 WL 1838086 (4th Dept., 2008), plaintiff, commenced an action seeking a judgment declaring One Beacon Insurance Group, obligated to defend and indemnify the plaintiff in a personal injury action. Pursuant to the terms of a contract B.F. Yenny entered into with Syracuse Mosaic Terrazo, Inc., Syracuse Mosaic Terrazo, Inc. agreed to name B.F. Yenny as an additional insured on its commercial general liability policy, which was issued by One Beacon. One Beacon, commenced a third- party action alleging that Selective Insurance Company, was obligated to defend and indemnify B.F. Yenny in the personal injury action pursuant to the commercial general liability policy issued by Selective to B.F. Yenny. The Appellate Division held that pursuant to the "other insurance" and "method of sharing" provisions of the policies, both One Beacon and Selective have an obligation to provide primary coverage and to share equally in the cost of the plaintiff's defense and indemnification under the underlying action.

In Marshall v. Institute for Community Living, Inc., 2008 WL 1823275 (2nd Dept., 2008), the Appellate Division affirmed the order of the Supreme Court, denying the defendant's motion for summary judgment on the argument that the plaintiff did not sustain a serious injury pursuant to Insurance Law 5102(d). The plaintiff's verified bill of particulars stated that the plaintiff sustained a non-permanent injury which prevented him from performing substantially all of the material acts which constitute his usual and customary activities for not less than 90 days during the 180 days immediately following the accident. In affirming the denial of summary judgment, the Appellate Division noted that the defendant's independent examining neurologist and orthopedist conducted their examinations of the plaintiff over two years after the subject accident and neither related their findings to the 90/180 claim of the plaintiff.

Prepared by Katie M. Hedges