Legal Malpractice v. a Bad Result. Every Attorney second guesses themselves after a loss. There is always something that you wished you could do differently to turn the tide. Plaintiff's attorneys bemoan a loss because of their financial stake in the case, the years of preparation, and lack of a fee. Defendant's fear the loss of confidence from their carrier clients and wonder how it will affect their business. Lipsig, Shapey, Manus & Moverman, P.C. was Harry Lipsig's firm.  He was one of the most famous and successful lawyers in New York, who was at it well into his 90's. The successor firm which bears his name is well respected and just as successful. Alicia Rodriguez would disagree, I suspect, and she filed a malpractice action against the firm following an adverse result at an arbitration proceeding. She claimed the associate handling the arbitration should have submitted repair bills and photographs of the damage to the automobile which supported her case. The associate made a judgment call that he would not and her malpractice case against the firm was tossed at the appellate level.

 

In an action for legal malpractice, "a plaintiff must demonstrate that [he or she] would have succeeded on the merits of the underlying action but for the attorney's negligence" (Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; see Dweck Law Firm v Mann, 283 AD2D 292, 293 [2001]). An attorney's "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]).

 

Here, "Plaintiff's argument that the damage depicted in the photographs would have led the arbitrator to conclude that the uninsured driver was speeding, is insufficient speculation." Small comfort for the firm, I suppose, as a loss is a loss and a client's wrath does cause a high degree of agita.

 

Read full decision here.

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Schoolyard fights were always over who gets to stay on the court. The older kids ruled when it came to court time even if it was your ball. Insurance Coverage fights are over Timely Notice, Timely disclaimers, Additional Insured's, Exclusions and creating coverage. These are all issues which an insurance defense attorney deals with on a daily basis. When does notice to a carrier by the primary insured constitute notice on a claim involving an additional insured? American Home Assur. Co. v BFC Constr. Corp. (2011 NY Slip Op 01337) decided on February 22, 2011 by the Appellate Division, First Department, reiterated the rule set forth in 2001 under an often quoted case, New York Tel. Co. v Travelers Casualty. & Surety. Co. of America., 280 A.D.2d 268, "The primary insured's forwarding of the summons and complaint in the underlying personal injury action to its carrier, constituted timely notice of the claim involving the additional insured, since the interests of the named insured were not adverse to the interests of the additional insured." Here, Sirius America Insurance Company was the loser in this coverage fight with the Appellate Division indicating, "Sirius' lengthy delays in disclaiming coverage, after it knew or should have known of the purported basis for disclaiming coverage based upon exclusions in its commercial general liability policy, were unreasonable as a matter of law, and thus ineffective (see Insurance Law § 3420[d])."  

 

Read full decision here. 

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Esteban Rivera and Julieann Rivera had a SUM action that concluded in an Arbitration award in their favor following a AAA arbitration before Bernard Kutner Esq., a AAA arbitrator. Amica Mutual was the SUM carrier with $300,000 SUM coverage.  Rather than issuing an award within the coverage limits and taking the required offset of $100,000 per claimant which the Riveras received from the adverse tortfeasor, Arbitrator Kutner awarded them each $200,000 and the Riveras petitioned the Court to confirm the award. Judge Howard Sherman in a decision issued on February 8, 2011 in Rivera v. Amica Mutual (260296/2010) rejected the Rivera's' reliance upon  Butler v. New York Central Mutual Fire Insurance Company, 274 AD 2d 924 (3rd Dept 2000) where the Appellate Division, Third Department held where the language in a SUM endorsement was ambiguous, the ambiguity must be held against the Insurance Carrier.  

 

The Butler Court framed the question, "On the facts presented here, we are of the opinion that the average insured would reasonably expect that $25,000 of SUM coverage would be available under defendant's policy." Amica argued the fourth department decision in Matter of Graphic Arts Mut. Ins. Co. (Dunham), 303 A.D. 2d 1038 [4th Dept. 2003], was controlling. Where the Court stated "We agree with petitioner that if [the policyholder] were permitted to collect on his SUM claim, respondents would receive in excess of the $100,000 to which they are entitled under the policy. Our determination is in accord with 11 NYCRR 60-2.1 [c] which states that "the maximum amount payable under the SUM coverage shall be the policy's SUM limit reduced and thus offset by motor vehicle bodily injury liability insurance policy or bond payments received from, or on behalf of, any negligent party involved in the accident."

 

11 NYCRR Section 60-2.1 [c] states that the "maximum amount payable under the SUM coverage shall be the policy's SUM limit reduced and thus offset by motor vehicle bodily liability insurance policy or bond payments received from, or on behalf of, any negligent party involved in this accident." Here, the Court declined to follow Butler indicating the Riveras, who collected $100,000 each from the adverse tortfeasor, were only entitled to $50,000 each. "The Court concludes that the policy of Underinsured Coverage is not ambiguous or unenforceable, and that the policy limit of $300,000 is applicable to both petitioners collectively, resulting in an award of $50,000 per petitioner, and not $200,000.00."