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Picciano & Scahill, P.C. Newsletter
iNews
In this Issue
Facebook
Unauthorized Insurance Carrier
Justice is Blind
People v Leggett
$200 Release
Hunters Welcome
Featured Employee

DIANE WACHTER


Diane Wachter started with Picciano & Scahill in 2000.

Diane assists Senior Partner, John Picciano, on the initial intake of our cases. She prepares all pleadings and initial evaluation on each third party action.

Diane is a bright and dedicated employee and a tremendous asset to our firm. Diane is just one of the reasons that Picciano & Scahill can achieve the Results we promise
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iNews Issue: 20
September 2010 
Facebook

facebookMost parents of college students are glad they are not "on" Facebook. When you are paying today's private school tuitions, you want to keep the image of your child working on some brilliant term paper or thesis in the library late into the night in your mind. You do not need to see the latest photos of your "student athlete" out with his or her friends socializing. You do not want to read the latest "posting" or "get connected" with all of your child's friends. What happens when that Facebook aficionado is a plaintiff.

Justice Jeffrey Arlen Spinner of Supreme Court, Suffolk County in his decision dated September 21, 2010, ordered access to the plaintiff's current and historical Facebook and MySpace pages and accounts, on "the grounds that Plaintiff has placed certain information on these social networking sites which are believed to be inconsistent with her claims in this action concerning the extent and nature of her injuries, especially her claims for loss of enjoyment of life."

In Romano v. Steelcase, Inc (2233/06), the social networking craze may have come back to bite the young plaintiff. To the horror of her counsel, the plaintiff's "Facebook pages reveals that she has an active lifestyle and has traveled to Florida and Pennsylvania during the time period she claims that her injuries prohibited such activity." In a decision that is sure to be quoted often, Justice Spinner states, "To permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self-set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial." Plaintiff's counsel will now include the "stay off Facebook" instruction in that initial intake form. For the unwary young plaintiff, however, that is a tough instruction to follow. For the defense, those late night pictures of Junior partying in Cancun and the cute stories posted on his wall, may be just the connection we need.

Read more here.
Unauthorized Insurance Carrier
no NYWhat happens to the victim of a traffic accident who is injured in New York by a non-resident operating a vehicle insured by an unauthorized insurance carrier who does not do business in New York?  Vehicle & Traffic Law §318 Subsection 5(a) provides "The Commissioner, upon receipt of evidence that a person other than the owner of the vehicle, has operated upon the public highways of this state a motor vehicle not registered in the state, with knowledge of proof of financial security was not in effect with respect to such vehicle shall revoke the driver's license of such person, or if he is a non-resident, the non-resident privileges of such person."
 
The revocation of driving privileges to the non-resident is little comfort to the New York accident victim who finds the tortfeasor to be without insurance coverage.  When a non-resident comes into New York operating a vehicle registered and insured in a foreign state, New York Insurance Law §5107 provides protection for New York residents injured in a motor vehicle accident with a non-domiciliary.  New York Insurance Law §5107 provides:
 
"Every insurer authorized to transact or transacting business  in this state, or controlling or controlled by or under common control by or with such an insurer, which sells a policy providing motor vehicle liability insurance coverage or any similar coverage in any state or Canadian province, shall include in each such policy coverage to satisfy the financial security requirements of Article 6 or 8 of the Vehicle & Traffic Law and to provide for the payment of first party benefits pursuant to Subsection (A) of §5103 of this article when a  motor vehicle covered by such policy is used or operated in this state."

This statute, commonly known as the New York "Deemer" Provision, unequivocally applies to any policy of insurance underwritten by an authorized insurer in New York. What is the result if the Carrier does not do business in New York?
 
In American Millennium Insurance Company v. Castro  ( 109733/04), Judge Louis B. York of Supreme Court, New York County was faced with a fact pattern which involved a New York resident as a passenger in a vehicle owned by a New Jersey corporation, operated by a New Jersey driver with a New Jersey license, registered to a New Jersey corporation.  The vehicle was insured by a New Jersey commercial policy issued by American Millennium Insurance Company who was not authorized to do business in New York.  The vehicle was subsequently involved in an accident in New York. Judge York was satisfied that American Millennium Insurance Company did not do any business in New York.  Therefore, the Court found Insurance Law §5107 did not apply and American Millennium Insurance Company was not required to provide New York minimum insurance requirements with respect to this accident. The lesson of this case is that a non-resident of New York injured in a New York motor vehicle accident by an unauthorized insurer with limits below the minimum requirements is not subject to the New York Deemer Statute and is not required to prove a serious injury under the New York threshold law.

Justice is Blind
Judge Peter J. O'Donoghue, of Supreme Court Queens County has been blind for many years. He is one of 16 Children and the son of the former supervising Judge of the Queens County Criminal Court. In a July 2009 wrongful death trial, what would seem the impossible to most trial lawyers, happened in his Courtroom.

As the Appellate Division described in the September 21, 2010 decision in Singh v. North Shore University Hosp. (--- N.Y.S.2d ----, 2010 WL 3700186  N.Y.A.D. 2 Dept.,2010.), the plaintiff's attorney's typewritten summation notes were mixed in with the plaintiff's decedent's medical records and provided to the jury during deliberations. Judge
O' Donoghue thereafter vacated a stipulation of settlement entered on the record before the jury reached a verdict. He found the plaintiff's counsel, who just settled the case for $1.1 million intentionally included the notes with the medicals records and imposed sanctions and trial costs against the plaintiff. On appeal, the Appellate Division vacated the order and upheld the settlement agreement.


The Appellate Court remitted the matter back to the Supreme Court (before a different Judge) on the issue of sanctions. Plaintiff's counsel was quoted in the law journal with some scathing comments about Justice O'Donoghue after the Appellate Decision and blamed the Court Officer for mixing up his summation notes with the medical records. It is hard to reconcile how a trial attorney could ever be that careless with his own summation notes as to allow them to be mixed in with exhibits in evidence. The comments made by plaintiff's counsel post this decision were out of line and demeaning to Judge O'Donoghue and so, to our profession.

Read full decision here.

Julia Higginbotham of Louisiana and the Lack of Coverage Defense
pedestrian
Julia Higginbotham was a pedestrian struck by a motor vehicle in Louisiana, where citizens have no first party no-fault coverage and the Insurance carrier has no obligation to pay first-party benefits. In June of 2007, Judge Peter H. Moulton, of Civil Court New York County found in favor of Lenox Hill Radiology, as her assignee, finding GEICO Insurance Company was required to pay the New York Rate for an MRI performed in New York.

The Appellate Term, First Department in a decision published on September 21, 2010, reversed the lower court and dismissed the action predicated on the defense that the applicable policy does not provide first party benefits. The Lower Court indicate GEICO must produce a witness with personal knowledge of the underlying accident in Louisiana. The Appellate Court felt otherwise, indicating, "Defendant's witness, whose testimony showed that the subject accident occurred in Louisiana and involved a pedestrian (Higginbotham) who was struck by a motor vehicle owned and operated by a Louisiana driver (McWilliams), appropriately relied on the contents of the subject claims log, a business record which constitutes an exception to the hearsay rule."

The Court also indicated where more than one carrier may be obligated to provide first party benefits, "the obligation remains upon the claimant, in the first instance, to supply sufficient information to an insurer in an NF-2 form to permit an insurer to determine whether the injured party is actually an insured."  Here plaintiff's counsel admitted at trial that counsel had no idea whether Higginbotham was a GEICO insured. Lenox Hill Radiology v Government Empls. Ins. Co. 2010 NY Slip Op 51638(U) reiterates the holding of Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]), where the carrier demonstrates the claim did not arise from a covered accident, the complaint should be dismissed.  Louisiana, by the way, has a $10,000 liability minimum coverage requirement; is a "direct action" state, which allows the Insurance Carrier to be named as a direct defendant in first party claims; and, follows strict comparative negligence principals.
People v Leggett
Dealing with difficult Judges is part of being a trial lawyer. Be respectful, be persuasive, have caselaw to back you up, and do not back down when you are right are all "mantras" told by the veterans to new lawyers.

Damian Leggett's lawyer may have had an extreme trial experience before Justice Robert Neary in his May 2009 criminal trial in Bronx County. Damian Leggett was convicted of attempted carjacking at gunpoint. The Appellate Division in People v Leggett ---N.Y.S.2d -----; 2010WL 3543529 decided on September 14, 20210 by the First Department reversed the conviction stating, "the trial court's pervasive denigration of defendant's counsel, in front of the jury, deprived defendant of a fair trial."  The trial Judge's comments included, "Would you behave like a professional, please and not a clown" and in a ruling, "Sustained. We've been over this. It's irrelevant to begin [with]. To repeat it for a second time is silly. Let's move on."  What advice to the young trial lawyer at the end of such abuse, "MAKE A RECORD!"

In the Appellate Court the conduct of the trial Judge may also be questioned. As the Court said in Leggett, "Even assuming that defense counsel may at times have overstepped the bounds of zealous advocacy, the court's injudicious remarks, in the presence of the jury, were not justified."

Read more here.

$200 Release
200 Sebastian Frazzetto was a passenger in a vehicle involved in an accident on the Cross Bronx Expressway on March 3, 2007.  Progressive Insurance Company insured the vehicle he was in and  Progressive offered Mr. Frazzetto $200 for his injuries and a release was signed. The plaintiff thereafter moved to set aside the release, claiming fraud in the inducement, mutual mistake or overreaching. He submitted an affidavit to the Court indicating:
 
"I respectfully submit to this Court that I never intended to release the defendants from "any and all claims" and that I signed the release under the mistaken belief that I had not sustained any injuries in the accident. Immediately after the accident occurred, while I was dazed and shaken up, I did not believe that I had sustained any injury. Indeed despite the fact that the police and ambulance arrived at the scene of the accident, I did not go in the  ambulance to the hospital and refused medical attention. I had no actual  knowledge on the day of the accident, or at the time that I signed the release, that I had sustained any injury. Furthermore, at the time I signed the  release, I had no time to investigate the possibility of any injuries, nor for any deliberation as to whether it was prudent to sign a release."
 
Judge F. Dana Winslow of Nassau County Supreme Court, in his order dated August 31, 2010 in Frazzetto v. Ryder Truck rental, Inc. et. al. (3569/10) upheld the validity of the release indicating the plaintiff did not demonstrate fraud, mutual mistake or overreaching citing Fleming v. Ponziani 24 NY2d 105 (1969). Here the release was strictly construed and the Court allowed the plaintiff to file a first party UM or SUM claim if warranted, however the direct third party action was dismissed on the $200 release.

Click here to read full decision.

Hunters Welcome
huntingMonticello, New York is the county seat of Sullivan County. At the last census there were 74,000 people in Sullivan County. In an assault trial Judge Frank LaBuda objected when  the defense attorney systematically excluded hunters from the prospective jury. The Court stated the "systematic exclusion" of hunters violated Baston v. Kentucky decided by the Supreme Court in 1985 equating the exclusion of hunters to discrimination in jury selection which violates the Equal Protection Clause. Here the defendant was accused of shooting another hunter who wandered onto the wrong land. Apparently the defense did not want experienced hunters on the jury. Presumably they would know it is a rule in hunting not to shoot other hunters. Judge LaBuda agreed with the prosecution that the systematic exclusion of hunters was violative of due process rules. Hunters Welcome!

Read report here.

SEND US YOUR QUESTIONS OR COMMENTS
 
We look forward to continuing to keep you informed about substantive issues of insurance defense law in 2010.
 
If you have any questions or comments about our newsletter "iNews" please contact Frank Scahill, Managing Partner, at fscahill@psnylaw.com.
 

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