In Day v. One Beacon Ins. (4th Dept, June 2012), the plaintiff was a passenger in her own minivan when the vehicle collided with a truck. At the time of impact, the plaintiff's car seat detached from the floor of the minivan as a result of the impact. Plaintiff brought a personal injury suit against the truck driver and Ford Motor Company, manufacturer of the minivan, sounding in negligence and strict products liability, respectively.

Plaintiff's minivan was insured by defendant One Beacon Insurance. The policy included supplemental uninsured/underinsured motorist (SUM) coverage in the amount of $500,000. The SUM endorsement contained a provision, which stated if the insured was injured and sought settlement with a negligent party, the defendant would advance the settlement amount to the insured in return for the insured's cooperation in One Beacon's lawsuit to recover those funds against said negligent party. The provision also stated that the insured was not permitted settle with any negligent party without written consent of One Beacon.

The SUM endorsement also contained a subrogation provision, which gave One Beacon the right to recover any amount paid to the insured from any person legally responsible for the insured's injury and that the insured "shall do nothing to prejudice this right."

With respect to plaintiff's personal injury lawsuit; the driver's insurer offered to settle for its policy limits of $100,000 and Ford offered to settle for $475,000. Plaintiff sent written notice to One Beacon seeking an advance of $575,000. One Beacon offered to advance $100,000 as offered by the driver's insurer to plaintiff. One Beacon refused to advance the $475,000 offered by Ford because the SUM endorsement provisions required advances for settlement offers from negligent parties only and plaintiff's cause of action against Ford was in strict products liability. Plaintiff rejected One Beacon's offer and proceeded to settle her underlying claim against the driver and Ford. Plaintiff then pursued a breach of contact claim against One Beacon seeking $400,000 in SUM coverage; i.e. $500,000 in available SUM coverage less the $100,000 settlement from driver's insurer.

The Fourth Department held that One Beacon was not obligated to advance the $475,000 offered by Ford and that One Beacon had satisfied its SUM coverage requirements by offering to advance the $100,000 offered by the driver. Furthermore, the Court held that by settling her underlying claim without the defendant's consent, the plaintiff prejudiced One Beacon's subrogation rights and thereby vitiated her right to SUM coverage.

In Smith v. Cornell (4th Dept., June 2012), the plaintiff was injured when she was rear-ended by the defendant. The defendant moved for summary judgment on the grounds that plaintiff did not sustain a serious injury with respect to the significant limitation of use category under Insurance Law §5102(d). Although the defendant met his initial burden, the trial court held that the plaintiff raised a question of fact by submitting sworn reports of two physicians who performed no-fault independent medical examinations. One of the physicians opined that the plaintiff had significant limited range of motion of her cervical spine and shoulder, 50% of which was attributable to the subject accident and 50% of which was attributable to an underlying arthritic condition that had been asymptomatic prior to the accident. The second physician determined that the plaintiff was suffering from bilateral ulnar impaction syndrome, 100% attributable to the accident, which would require surgery to correct. The Fourth Department affirmed the lower court and held that the plaintiff had submitted objective medical evidence that was sufficient to defeat the defendant's motion.

In Oettinger v. Montgomery Kone, Inc., (3rd Dept, July 2012), the plaintiff was injured after she tripped and fell entering an elevator which was several inches above the level of the floor when it stopped. The elevator was maintained and serviced by defendant. At a jury trial on the issue of liability, plaintiff presented evidence that the elevator had been undergoing frequent repairs in the months leading up to her accident and that she had previously experienced problems with the elevator. The defendant admitted to doing repair work on the elevator prior to the accident but denied that any of the work done would have caused the elevator to mislevel. A jury verdict was returned in favor of the plaintiff.

The defendant brought a post trial motion to dismiss the complaint, or in the alternative, to set aside the verdict. In noting that the plaintiff established a prima facie case of negligence, the Appellate Division held the evidence presented was sufficient for the jury to render a verdict on favor of the plaintiff and defendant's motions were denied.

In Ostroll v. Nargizian, (3rd Dept, July 2012), a personal injury suit, plaintiff alleged that she sustained serious injuries to her neck, shoulder, and spine. In moving for summary judgment, the defendant met his burden by presenting evidence that plaintiff had undergone treatment for severe back and neck pain following a previous motor vehicle accident. In response, plaintiff submitted the affidavit of her chiropractor. Although the chiropractor opined that the plaintiff's injuries resulted from the subject motor vehicle accident, he failed to put forth any evidence distinguishing plaintiff's current limitations from those that predated the subject accident. The Third Department affirmed the trial court's decision to grant defendant's motion for summary judgment as the chiropractor's report failed to raise an issue of fact with respect to causation.

In Cappiello v. ICD Publications, (EDNY, June 2012), the plaintiff commenced a breach of contract and tortious inducement of breach of contract against defendant, his former employer. The action was commenced in Nassau County Supreme Court, but was removed to federal court by defendant on the basis of diversity of citizenship of the parties. Following a six-day bench trial, the Court ruled in plaintiff's favor and entered a judgment against the defendant in the amount of $532,587.06, plus costs and interest. Plaintiff sought to enforce the judgment by filing a transcript of judgment in Suffolk County Supreme Court. Defendant attempted to tender payment of the judgment to the plaintiff in the amount of $612,587.66, which included a payment of $2,356.79 in post judgment interest. This post-judgment interest had been calculated by the defendant using the federal interest rate of 0.25%, as provided for in 28 U.S.C §1961 (2000). The plaintiff rejected defendant's tender on the grounds that the defendant was required to pay the New York State post-judgment interest rate of 9%, as set forth in CPLR §5004, making the total amount owed to plaintiff $696,035.55. The plaintiff argued that the New York State interest rate applied because the action was initially filed in state court before being removed to federal court. Furthermore plaintiff maintained that the district court did not have subject matter jurisdiction over determination of the proper interest rate because the transcript of judgment had been filed with the state court system.

Prepared by Katie L. Renda