With the tag line, "Don't throw your clients to the wolves", a Kings County Personal Injury Plaintiff's Lawyer has branched out to a new business which, for  a fee, will send an "IME Advocate" to a defense medical examination to, "Observe the examination and take detailed notes of the intake questions and answers, the type of tests the doctor conducts, the plaintiff's performance during those tests, the length of the examination, and any other relevant points during the exam."  The IME advocate also promises to submit an affidavit in opposition to the defendant's motion for summary judgment on threshold grounds of serious injury under Insurance law 5201(d), and to testify at trial. The web site declares:

"Defendant Medical Examinations" (DME), or "Independent" Medical Examinations" (IME) are a routine part of the personal injury process. The highly biased reports generated at these examinations can substantially impair plaintiffs' ability to recover just compensation for their injuries. IME WatchDog is serious about ensuring you get the maximum recovery possible for your clients. With this goal in mind we have developed a robust system for observing, monitoring and reporting on IME's, DME's and NFE's. Our highly trained IME advocates have the know-how to protect your clients' rights."

I have yet to hear anyone who has used this service and I anticipate serious evidentiary issues at trial if the "IME advocate" is called as a witness for the plaintiff. What may seem as a benefit to the plaintiff, will undoubtedly give fodder for the defense counsel to cross examine the " IME Advocate" until the cows come home, on fees charged, motive, training, information provided prior to exam, purpose, and results. If the injury is legitimate why the need for IME watchdog? 

We'll see how this plays out. Stay tuned.

Papadopoulos v. Cambridge Mutual Fire Insurance Company, (2013 NY Slip Op 1386) issued by the Appellate Division, Second Department on March 15, 2013 is bad news for homeowners expecting a recovery on Hurricane Sandy Claims. 

Cambridge Mutual was denied summary judgment by Judge Winslow of Nassau County Supreme Court in a July 2011 order. As in many flooded homes during Superstorm Sandy, the plaintiffs' basement was damaged when water entered through a basement window that was knocked out of its frame during a storm. The plaintiffs' homeowners' insurance policy, issued by the defendants, contained an exclusion for, inter alia, water damage, which was defined as "[f]lood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind."

In reversing the denial of Summary Judgment the Appellate Division decision stated, "In support of their motion for summary judgment, the defendants made a prima facie showing that an excluded peril caused the water damage by establishing that the loss was caused by surface water that pressed against the basement window, knocking it out of its frame, which, in turn, allowed five feet of water to flood the plaintiffs' basement (see Kannatt v Valley Forge Ins. Co., 228 AD2d 564, 564-565, 644 N.Y.S.2d 530). In opposition, the plaintiffs failed to raise a triable issue of fact (see Neuman v United Servs. Auto. Assn., 74 AD3d 925, 925-926, 905 N.Y.S.2d 202; Kannatt v Valley Forge Ins. Co., 228 AD2d at 564-565). Accordingly, the defendants were entitled to summary judgment and a declaration in their favor."

If the plaintiff's complaint alleges allegations of negligence which are covered under an insurance policy and also alleges punitive damages which are not covered, can the defendant's carrier be charged with "Bad Faith" for failing to settle the claim within the policy limits and thereby expose the defendant to a punitive damages award? NO says the Appellate Division First Department last month in Seldon v. Allstate ( 2013 NY Slip Op  1628) issued on March 14, 2013. Allstate was denied summary judgment in the court below on this "Bad faith" claim. The First Department decision states:

"defendant is entitled to summary judgment based on public policy precluding an insured from recovering the punitive damages portion of any judgment which may have resulted from the insurer's bad faith failure to settle (see Soto v State Farm Ins., 83 NY2d 718, 635 N.E.2d 1222, 613 N.Y.S.2d 352 [1994])." End of story.

Read the decision here.

Perl v Meher, 18 NY3d 208, the 2011 decision by the New York State Court of Appeals on the issue of the serious injury threshold found in New York Insurance law section 5102(d) continues to have an adverse effect for defendants in the Appellate Divisions of the New York State Courts.

What has been the "Perl" fallout in the Appellate Divisions?   Brackeche v. Gladiator Trucking Corp., (2013 NY Slip Op 1368) decided on March 6, 2013 and Palumbo v Forster, (2013 NY Slip Op 1248) decided on February 27, 2013, are two good examples of how the Appellate Courts are reacting to Perl. In each, summary judgment was denied to the defendant by the Appellate Court.

Bacon v. Bostany  (2013 NY Slip Op 1365), came out of the same Appellate Division, Second Department on March 6, 2013 and reversed  a $450,000 judgment for the plaintiff before Judge Kramer in Kings County. Some reason for hope for the defense in the Court's language quoted below :

"Here, based on the evidence presented at the trial, there was no valid line of reasoning and permissible inferences which could possibly have led the jury to rationally conclude that the plaintiff sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The evidence did not establish that the plaintiff's injuries satisfied the "significant limitation of use" or "permanent consequential limitation" categories with respect to finding a serious injury under Insurance Law § 5102(d) (see Kilakos v Mascera, 53 AD3d 527, 528, 862 N.Y.S.2d 529; Hamilton v Rouse, 46 AD3d 514, 846 N.Y.S.2d 650). "Although a bulging or herniated disc may constitute a serious injury within the meaning of InsuranceLaw § 5102(d), a plaintiff must provide objective evidence of the extent or degree of the alleged physical limitations resulting from the disc injury and its duration" (Diaz v Turner, 306 AD2d 241, 242, 761 N.Y.S.2d 93 see Rivera v Bushwick Ridgewood Props., Inc., 63 AD3d 712, 713, 880 N.Y.S.2d 149; Jules v Calderon, 62 AD3d 958, 959, 880 N.Y.S.2d 131; Casco v Cocchiola, 62 AD3d 640, 641, 878 N.Y.S.2d 409). The testimony adduced from the plaintiff's doctor and physical therapist did not fulfill the objective-evidence requirement since those witnesses did not provide any explanation as to what objective tests were used to make their determinations that the plaintiff suffered from a limitation in the range of motion of his spine (see Candia v Omonia Cab Corp., 6 AD3d 641, 643, 775 N.Y.S.2d 546; see e.g. Catalano v Kopmann, 73 AD3d 963, 900 N.Y.S.2d 759; Niles v Lam Pakie Ho, 61 AD3d 657, 659, 877 N.Y.S.2d 139). In addition, the plaintiff failed to fulfill the permanency requirement of the permanent consequential [*6] limitation category, as the medical evidence he submitted at trial was not based on a recent examination (see Estrella v Geico Ins. Co., 102 AD3d 730; Nesci v Romanelli, 74 AD3d 765, 766, 902 N.Y.S.2d 172).

Read the Brackeche decision here.

Read the Palumbo decision here. 

The protections of Labor Law §§ 240 (1) and 241 (6) are not available to a plaintiff who files suit against the owner of a one or two family residence. The homeowner's exemption precludes liability against "owners of one and two-family dwellings who contract for but do not direct or control the work" (Labor Law §§ 240 [1]; 241 [6]; see Bartoo v Buell, 87 NY2d 362, 367, 662 N.E.2d 1068, 639 N.Y.S.2d 778 [1996]; Van Hoesen v Dolen, 94 AD3d 1264, 1266, 942 N.Y.S.2d 650 [2012], lv denied 19 NY3d 809, 975 N.E.2d 491, 951 N.Y.S.2d 109 [2012]).

What about an owner of a one or two family residence who takes in boarders and receives a monthly income for the service? See Sanchez v Marticorena, (2013 NY Slip Op 1305) decided by the Appellate Division, Fourth Department on February 28, 2013. In this case in 2004, defendants became certified to operate a family care home under a program with the Office for People with Developmental Disabilities. Under this program, defendants have provided a residence to four individuals with disabilities in a family setting (see Mental Hygiene Law § 41.34) and receive a monthly stipend for the services they provide to each of the residents. 

The plaintiff's decedent, while repairing the roof in September 2009, fell to his death and sought the benefits of  Labor Law §§ 240 (1) and 241 (6), claiming the "commercial enterprise" of taking in boarders voided the protections of the homeowners exemption for one and two family homes. The Appellate Court rejected the argument holding, "the homeowner's exemption "was enacted to protect those people who, lacking business sophistication, would not know or anticipate the need to obtain insurance to cover them against the absolute liability imposed by" the Labor Law (Lombardi v Stout, 80 NY2d 290, 296, 604 N.E.2d 117, 590 N.Y.S.2d 55 [1992]; see Hook v Quattrociocchi, 231 AD2d 882, 883, 647 N.Y.S.2d 881 [1996]). [*6] Defendants here met that description, and becoming licensed family care providers for four developmentally disabled individuals did not transform them into sophisticated business persons so as to render the homeowner's exemption inapplicable."

Read the Sanchez decision here.