Read the decision here.

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A claimant seeking to recover from an Insurance Carrier on a claim for supplemental underinsured motorist (SUM) coverage must seek permission from the SUM carrier prior to accepting the policy limits of the offending tortfeasor. What happens to a claimant who accepts a settlement on a a products liability claim against the automobile manufacturer which arises from the same accident ?
 
Day v. One Beacon Insurance (96 A.D.3d 1678) decided by the Appellate Division, Fourth Department on June 29, 2012, involved a two vehicle accident where the injured plaintiff filed suit against the adverse driver, who offered their $100,000 policy, and Ford Motor Company on a products liability claim. Apparently the passenger's seat dislodged during the collision, contributing to her injuries. Ford offered $475,000 to settle in addition to the $100,00 paid by the Insurance carrier for the adverse driver. One Beacon took the position that the plaintiff could not settle the claim with Ford without their consent, and therefore the claim for SUM coverage of an additional $500,000 was lost, based on condition number 10 set forth in the One Beacon policy: "[i]n accidents involving the insured and one or more negligent parties, if such insured settles with any such party for the available limit of the motor vehicle bodily injury liability coverage of such party, release may be executed with such party after thirty calendar days actual written notice  to [defendant], unless within this time period [defendant] agree[s] to advance such settlement amounts to the insured in return for the cooperation of the insured in [defendant's] lawsuit on behalf of the insured . . . An insured shall not otherwise settle with any negligent party, without [defendant's] written consent, such that [defendant's] rights would be impaired."
 
In finding the plaintiff violated this policy condition the Appellate Court noted:  "We further conclude that plaintiff violated Conditions 10 and 13 by settling with Ford without defendant's written consent. Condition 10 provides that plaintiff "shall not otherwise settle with any negligent party, without [defendant's] written consent" (emphasis added). Similarly, Condition 13 gives the SUM carrier the subrogation right to recover a SUM payment from "any person legally responsible for the bodily injury or loss" (emphasis added).

Thus, although defendant was not obligated to advance the settlement  offer made by Ford, Ford was nevertheless "legally responsible" for plaintiff's injuries, and defendant therefore had subrogation rights against Ford to the extent that its SUM payments represented payment for injuries for which Ford was legally responsible. "
 
A costly mistake/gamble by claimant's counsel lead to the loss of a $400,000 claim.

Read Decision Here. 
 

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Finally, in a very rough loss for pet owners, New Jersey's highest Court refused to allow a dog owner to pursue a claim for emotional distress in the traumatic loss of her dog.

On June 7, 2007, plaintiff Joyce McDougall was walking her dog when a large dog belonging to defendant Charlot Lamm ran out, grabbed plaintiff's dog by the neck, and picked it up and shook it several times before dropping it, causing the death of plaintiff's dog. Joyce McDougall v. Charlot Lamm (A-99-10) (067436) decided on July 31, 212 by Judge Hoens, refused to extend the New Jersey rule enunciated in Portee v. Jaffee, 84 N.J. 88 (1980), which permits compensation for the traumatic loss of carefully defined classes of individuals, to include emotional distress claims.
 
"The Court declines to expand the class of individuals authorized to bring a Portee claim to those who have witnessed the traumatic death of a pet.

First, the Court has strictly limited the kinds of relationships with other humans that can support a Portee claim precisely because of the intention to preserve the essential principle of foreseeability to serve the ends of fairness to all parties.

Second, expanding the cause of action would be inconsistent with existing statutes such as the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, which limits recovery to pecuniary damages regardless of the closeness of consanguinity, and statutes regulating dog owners and addressing dangerous dogs, such as N.J.S.A. 4:22-20 (defining abandonment of domestic animal as disorderly persons offense) and N.J.S.A. 4:19-16 (setting forth dog owner's liability for injuries inflicted by dog's bite).

Third, although pets are not merely property, that alone cannot support a new cause of action. Their value is recognized by permitting recovery to exceed replacement value and include intrinsic value. Fourth, a clear line cannot be drawn to distinguish which pet owners would qualify for recovery and which would not. Describing some pets as companions is insufficient because the descriptive definition of that role would equally apply to many human relationships."

Ruff indeed!

Read the decision here.