In a case successfully argued by your undersigned, Geico Indem. v. Roth(4th Dept., November 14, 2008), an automobile liability insurer brought a declaratory judgment action against insured, seeking a determination that the insurer owed no duty to defend or indemnify the insured in underlying personal injury action due to a cancelled policy. The Appellate Division held that the insurer met its initial burden of demonstrating strict compliance with Vehicle and Traffic Law requirements for canceling policy. The insured's testimony regarding his inability to recall receiving notice of cancellation of his automobile liability policy was insufficient to rebut presumption that insurer mailed, and insured received, notice, as was demonstrated by insurer's evidence of usual office mailing practice.

In the Matter of Long Island Insurance Company v. MVAIC (2nd Dept., December 11, 2008), which was a proceeding to vacate an arbitration award, the Appellate Division upheld the Supreme Court, Nassau County's decision to deny insurer's petition, as the insurance carrier's computer print out of cancellation notice was not enough to establish that the policy was actually canceled. It was held that the arbitrator had a rational basis to conclude that the insurer insured the vehicle in question at the time of the accident, despite the printout submitted to the Court by the accident indemnification company and supporting affidavit of an employee demonstrating that it was obtained from the Department of Motor Vehicles in the regular course of business. The Appellate Division held that an insurer must provide additional proof, which should include an affidavit describing the insurance company's cancellation process.

In Peters v. United Refining Co. of Penn., et al. (4th Dept., December 31, 2008), plaintiff brought a personal injury action against a property owner after a slip-and-fall accident. Defendant property owner sought contribution and indemnification from third- party defendant plowing company for exacerbating a dangerous condition by piling mounds of snow, which melted and refroze, on the perimeter of the property. The Appellate Division granted the third-party defendant's appeal for summary judgment holding that the plow service did not breach any duty to the third-party plaintiff. The contract for services to be rendered by the third-party defendant was for plowing only. The third-party plaintiff was not responsible for snow removal from the premises. "By merely plowing the snow, as required by the contract, third-party defendant's actions could not be said to have created or exacerbated a dangerous condition."

In Brown v. Roblee (4th Dept., December 31, 2008), an action was brought against property owners and an individual (Roblee) after the plaintiff was assaulted by defendant Roblee in the property owner's parking lot. Summary judgment granted by lower court for property owners was affirmed by the Appellate Division. The Appellate Division held that the property owners were not aware of the need to exercise control over Roblee, and the property owners were not provided an opportunity to do so. The property owners' conduct was also held not to be the proximate cause of plaintiff's injuries because Roblee's conduct in assaulting plaintiff after Roblee had walked away from an initial verbal exchange with the plaintiff was an intervening and unforeseeable act.

And in a similar matter, Lomedico v. Cassillo (4th Dept., November 21, 2008), suit was brought against the owner, lessee, and sublessees of a parking lot, seeking damages for injuries that the infant plaintiff sustained in a voluntary fight in the parking lot with other high school students. The Appellate Division affirmed summary judgment granted to the defendants holding that: the owner and lessee owed no duty of care to the plaintiff; sublessees owed no duty to perceive and guard against parking lot fights; and the doctrine of primary assumption of the risk further barred action against sublessees. The out-of-possession landlords had relinquished control of parking lot to tenants, did not create a dangerous condition, and did not owe duty of care to the plaintiff. The sublessees of parking lot and store were unaware of any facts that would have put them on notice that an assault would occur in the parking lot, and thus owed no duty to the plaintiff who was injured. There was no history of prior assaults or other violent crimes in parking lot, and no history of students gathering to fight there.

In Small v. Keneston(3rd Dept., December 24, 2008), suit was filed after the plaintiff volunteered to help transport a motorcycle by riding in the cargo area of a truck. At a red light, the plaintiff stood up to retrieve his jacket and when the truck started forward again, he was thrown and suffered injuries. The action was thereafter commenced against the manufacturer of the cargo box portion of the truck, asserting claims in negligence, strict products liability premised on defective design and breach of warranty. The Appellate Division held that when designing a product, a manufacturer is obligated to avoid an unreasonable risk of harm to persons using the product in the intended manner or for unintended uses that are reasonably foreseeable. The manufacturer established its entitlement to summary judgment by submission of an expert affidavit that the design of the wheel well was not inherently dangerous for its intended purpose, and that it was not intended that passengers ride in the cargo area of the truck, much less attempt to stand up and walk while the truck was in motion. The cargo area of the truck was not equipped with seats, safety belts or windows. Plaintiff's expert asserted that it was common practice for people to ride in the cargo area of a truck, but provided no foundational facts or applicable industry data and, thus, failed to raise a question of fact.

In Gaston v. American Transit Insurance Company(December 16, 2008), the Court of Appeals reviewed the application of the doctrine of collateral estoppel in an Insurance Law § 3420 action. In two prior proceedings commenced by providers of uninsured motorist protection to stay the arbitration of uninsured motorist vehicle claims asserted by other claimants, it was determined by default that the defendant afforded insurance coverage for the offending vehicle. However, a third proceeding, which was adjudicated, resulted in a judgment in the insurer's favor. The Court of Appeals held that collateral estoppel was not warranted and the defendant was allowed to litigate the denial of coverage in the present litigation, due to the contradictory results of prior actions.

Prepared by Christopher R. Poole