In the Matter of Arbitration between Erie Insurance Company and Joshua Boss, 2011 WL1733874 (N.Y.A.D. 4th Dept.), Boss a New York resident, was injured as a result of a motor vehicle accident in Massachusetts. Erie as the supplemental underinsured motorist coverage insurer of Boss, gave Boss permission to settle with the tortfeasor's insurance company. Thereafter, Boss sought benefits under his SUM coverage with Erie. In resolving a conflict between New York comparative negligence law and the more restrictive comparative negligence law of the State of Massachusetts, the Appellate Division held that the purpose of SUM coverage is to compensate an insured party when he or she is injured by an uninsured or underinsured driver. The individual insured under a New York automobile policy who is injured in an accident in another jurisdiction should not be placed in either a better or worse position when filing a SUM benefits claim than he or she would have been if the tortfeasor had been fully insured. To apply New York law to measure damages in this matter would not be consistent with the purpose served by SUM coverage. As such, the Appellate Division held that this matter must be decided using Massachusetts law.

In Progressive Northeastern Insurance Company v. Farmers New Century Insurance Company et al., 2011 WL 1631574 (N.Y.A.D. 4th Dept.), Progressive, was the auto insurer for Blaznia, a passenger in a vehicle owned by Lindhurst. Blaznia grabbed the steering wheel while Lindhurst was driving causing a motor vehicle accident. Progressive brought an action seeking declaration that it is not required to provide liability coverage for Blaznia or any other defendants in connection with the collision. The Appellate Division held that since the passenger violated Penal Law §145 there is no insurance coverage under Blaznia's policy with Progressive.

In Siegel v. New Plan Excel Realty and Trust et al., 2011 WL 1733851 (N.Y.A.D. 4th Dept.), plaintiff commenced an action against New Plan as a result of alleged injuries sustained from a trip and fall accident at a parking lot owned by New Plan. New Plan brought a third party action against AALCO for contribution or indemnity. Two months prior to the accident, AALCO repaired a water main break at the area of the parking lot where the plaintiff allegedly fell. When AALCO was repairing the water main break, AALCO dug up a portion of the parking lot where the water main break was, repaired the water main and filled the hole with crushed stone to make it level with the parking lot. The third party complaint alleged that if the property was defective it was because of AALCO's negligence. The trial Court granted and the Appellate Division affirmed AALCO's motion for summary judgment that New Plan is not entitled to any contribution or indemnity because AALCO only needed to show a duty of reasonable care in its repairs and did not owe a duty to the plaintiff.

In Hartsock v. Scaccia et al., 2011 WL 1733848 (N.Y.A.D. 4th Dept.), plaintiff was a passenger in a vehicle driven by Scaccia when Scaccia lost control of the vehicle causing an accident allegedly injuring the plaintiff. Plaintiff commenced an action against Scaccia and the garage that inspected the Scaccia vehicle three days prior to the motor vehicle accident because the Sheriff's report indicated that the tires on the Scaccia vehicle were under the legal limit and should not have passed inspection. The garage moved for summary judgment. The Appellate Division affirmed the trial Court's finding that the garage which failed to inspect the Scaccia vehicle correctly cannot be held responsible as there was no evidence that the alleged failure to inspect the tires correctly created an unreasonable risk of harm to others, nor did the garage launch a force or instrument of harm which would create a duty to the plaintiff.

In Waldron v. New York Central Mutual Insurance Company, 2011 WL 1677237 (N.Y.A.D. 3rd Dept.), Waldron's daughter, a 22-year old college student, was not listed as member of her father's household on his NYCM insurance policy and was seriously injured in a Florida accident. Two months after the accident, Waldron first advised his insurance agent of the accident, but he indicated to his agent that he did not want to file a claim for SUM coverage with NYCM at that time. Fourteen months later he told his agent that he in fact wanted to file a claim with NYCM. NYCM denied coverage on various grounds, including that notice of the claim was untimely and that his daughter was not an insured under the policy. The trial Court found that that Waldron's notice to his agent two months after the accident was notice to NYCM as his agent was an agent of NYCM. While that notice was beyond the 30-day time period in the policy, the Appellate Division held that Waldron was excused as he was tending to his daughter's injuries during that time. With respect to residency, although Waldron's daughter was renting an apartment off campus while attending college, she maintained a bedroom in her parents' house, where she kept clothing, visited on weekends and lived on school holidays and semester breaks. In addition, her college considered her parents' address to be her permanent address and she retained her parents' address for voting and tax purposes. As such, the Appellate Division held that Waldron's daughter was covered under Waldron's NYCM insurance policy.

Prepared by Katy M. Hedges