Diving pool cases usually involve serious injuries and Jaclyn Thall v. Daniel Torres ( Supreme Court, Nassau Co. 9410/12) was no exception. The injuries included comminuted fractures of the cervical spine at the level of C3, compression fractures of the thoracic spine at T1, T2, T3 and T4, with serious residuals. 

The allegation of negligence indicates that Jaclyn Thall was injured due to an alleged dangerous and defective condition, "that the shallow end of the pool was not clearly marked and that the demarcation line separating the shallow end from the deep end of the pool was missing". 

Congratulations to Diana LaPadula of our firm, who successfully argued to Judge Phelan that the case should be dismissed on the "Assumption of Risk" doctrine. 

Judge Phelan determined that Plaintiff was "hardly a novice" swimmer, that she was aware of the configuration of the pool, that the pool configuration did not constitute "a unique danger", and that plaintiff did not show that the pool configuration proximately caused her injury. 

See attached order which was not appealed.

Congratulations to Andre Ferrucci for a successful appeal in the First Department on a pedestrian collision case involving an 8 year old plaintiff in the Bronx, with no memory of the accident. 

The Court reversed Judge Norma Ruiz and dismissed the case against our defendant driver. Ramirez v Molina 980 N.Y.S.2D 433 N.Y.A.D. 1 Dept.,2014 February 18, 2014.

Read the decision here.

The Court of Appeals came down with multiple decisions in February of 2014 which impact our practice. 

Morris v. Pavarini Construction --- N.E.3d ----, 2014 WL 641489 decided on February 20, 2014, involved a labor law claim. 

Plaintiff was a carpenter who was working at a building construction site in Manhattan when a large, flat object fell on and injured his hand. He commenced a personal injury action against defendants, the construction manager and owner of the building, alleging common-law negligence and violations of Labor Law §§ 200, 240, and 241(6). In support of his section 241(6) claim plaintiff alleged to Supreme Court that the object that fell on his hand was a "form" subject to specific safety requirements under Industrial Code 12 NYCRR 23-2.2(a). The defendants claimed the Industrial Code did not apply as this "form" used in the creation of concrete walls, was unfinished and not within the meaning of the code.

Labor law § 241(6) states:

"[a]ll areas in which construction, excavation or demolition work is being performed shall be so constructed, shored, equipped, guarded, arranged, operated and conducted as to provide reasonable and adequate protection and safety to the persons employed therein or lawfully frequenting such places. The commissioner may make rules to carry into effect the provisions of this subdivision, and the owners and contractors and their agents for such work, except owners of one and two-family dwellings who contract for but do not direct or control the work, shall comply therewith." 

The Court of Appeals previously ruled in 2007 on the same case that a non-delegable duty exists in the mandate set forth in 12 NYCRR 23-2.2(a) that "forms" be "braced or tied together so as to maintain position and shape" and remanded the case back to the lower court to allow the record further development to determine the applicability of the regulation to plaintiff's case ( id. at 51, 842 N.Y.S.2d 759, 874 N.E.2d 723). The testimony at a  hearing, upon remand, established that the object that fell on plaintiff was a back wall panel, which was a component of a form under assembly at the time of the injury, and that the back wall is the type of component which can be subjected to the requirements of 12 NYCRR 23-2.2(a).

Here the Court of Appeals ruled, "The expert testimony supports the conclusion that the language of 12 NYCRR 23-2.2(a) can sensibly be applied to other than a completed form, and may apply to a wall component. Therefore, the Appellate Division properly reversed Supreme Court's order, and moreover, did not abuse its discretion as a matter of law by granting summary judgment to plaintiff (see generally Merritt Hill Vineyards Inc. v. Windy Hgts. Vineyard, Inc., 61 N.Y.2d 106, 111 [1984]; see also CPLR 3212[b] )."

Moss v Netherlands Ins. Co. (2014 NY Slip Op 01259) decided on February 25, 2014 by the Court of Appeals involved the issue of whether a special relationship existed between the insureds and their insurance broker. The case involved a claim against the broker based on a business interruption claim that occurred after several roof leaks. The only defendant on appeal was the broker.

The Court addressed the applicable rule of law; "As a general principle, insurance brokers "have a common-law duty to obtain requested coverage for their clients within a reasonable time or inform the client of the inability to do so; however, they have no continuing duty to advise, guide or direct a client to obtain additional coverage" (American Bldg. Supply Corp. v Petrocelli Group, Inc., 19 NY3d 730, 735 [2012] [internal quotation marks and citation omitted]). 

Hence, in the ordinary broker-client setting, the client may prevail in a negligence action only where it can establish that it made a particular request to the broker and the requested coverage was not procured. Plaintiffs in this case do not allege that they specifically requested higher business interruption policy limits and have not proceeded against CHI under this common-law theory of liability. 

Rather, their claim hinges on the existence of a special relationship.  

Where a special relationship develops between the broker and client, we have also indicated that the broker may be liable, even in the absence of a specific request, for failing to advise or direct the client to obtain additional coverage (see Hoffend & Sons, Inc. v Rose & Kiernan, Inc., 7 NY3d 152, 158 [2006]; Murphy v Kuhn, 90 NY2d 266, 272-273 [1997]). 

In Murphy, we recognized that "particularized situations may arise in which insurance agents, through their conduct or by express or implied contract with customers and clients, may assume or acquire duties in addition to those fixed at common law" and that the question of whether such additional responsibilities should be "given legal effect is governed by the particular relationship between the parties and is best determined on a case-by-case basis" (Murphy, 90 NY2d at 272). 

We identified three exceptional situations that may give rise to a special relationship, thereby creating an additional duty of advisement:  

"(1) the agent receives compensation for consultation apart from payment of the premiums; 

(2) there was some interaction regarding a question of coverage, with the insured relying on the expertise of the agent; or 

(3) there is a course of dealing over an extended period of time which would have put objectively reasonable insurance agents on notice that their advice was being sought and specially relied on" (id. [citations omitted]). "

Here the Court of Appeals reversed the Appellate Division and reinstated the action holding, "Under these circumstances, we conclude that the complaint cannot be dismissed on the basis that no special relationship arose between the parties. In doing so, we reiterate that special relationships in the insurance brokerage context are the exception, not the norm, and we emphasize that it remains to be determined whether a special relationship existed here. To prevail on their claim, plaintiffs bear the ultimate burden of proving that a special relationship did in fact arise and that they relied on CHI's (the broker's) expertise in calculating the proper level of business interruption coverage during the relevant time frames"

Read Moss decision here. 

K2 Inv. Group, LLC v American Guarantee & Liability Ins. Co. (2014 NY Slip Op 01102) decided on February 18, 2014 by the Court of Appeals is a rare decision where the Court reversed itself (K2 Inv. Group, LLC v Am. Guar. & Liab. Ins. Co. (21 NY3d 384). 

Claims for legal malpractice were brought against American Guarantee's insured, Jeffrey Daniels, which American Guarantee refused to defend. 

Daniels suffered a default judgment, and then assigned his rights against American Guarantee to the plaintiffs in the suit against him. 

Those plaintiffs brought the present case, seeking to enforce American Guarantee's duty to indemnify Daniels for the judgment. 

In defense, American Guarantee asserted that the loss was not covered, relying on two exclusions in the policy. The Court previoulsy affirmed an order granting plaintiffs summary judgment, holding that American Guarantee's breach of its duty to defend barred it from relying on policy exclusions.

The Court reversed itself based on prior precedent known as the Servidone rule from Servidone Const. Corp. v. Security Ins. Co. of Hartford 64 N.Y.2d 419 1985:

"Where an insurer breaches a contractual duty to defend its insured in a personal injury action, and the insured thereafter concludes a reasonable settlement with the injured party, is the insurer liable to indemnify the insured even if coverage is disputed?" The Court answered the question in Servidone "No".

Judge Smith stated in "K2 Round 2":

"Under these circumstances, we see no justification for overruling Servidone. Plaintiffs have not presented any indication that the Servidone rule has proved unworkable, or caused significant injustice or hardship, since it was adopted in 1985. When our Court decides a question of insurance law, insurers and insureds alike should ordinarily be entitled to assume that the decision will remain unchanged unless or until the Legislature decides otherwise. In other words, the rule of stare decision, while it is not inexorable, is strong enough to govern this case." 

Judge Arlene P. Bluth of New York County Supreme Court issued a interesting decision on the on the admissibility of biomechanical expert at trial in the matter of White v. Grocery Haulers Inc., 2014 NY Slip O9 30412 ( February 19, 2014). 

Over 13 years ago, the Second Department Appellate Division recognized the admissibility of biomechanical testimony, and particularly noted that the scientific methods utilized by these experts were valid, relevant and admissible. See Valentine v. Grossman, 283 A.D.2d 571 (2d Dept. App Div. 2001).  In 2007 the Second Department reversed a trial court which had precluded such testimony. See Plate v. Palisades Film Delivery Corp., 39 A.D. 3d 385 (App. Div. 2nd Dept. 2007).

The Court held a "Frye" hearing to determine the admissibility of the expert's testimony (FRYE v. U.S. 54 App.D.C. 46, 293 F. 1013 (1923)). The important purpose of the Frye test is to ensure that courts do not rely upon an expert's testimony regarding a novel procedure, methodology or theory unless it has been "generally accepted" within the relevant scientific community as leading to reliable results (see People v. Angelo, 88 N.Y.2d 217, 223, 644 N.Y.S.2d 460, 666 N.E.2d 1333 [1996] ). 

The focus of the Frye test is to distinguish between scientific principles which are "demonstrable" and those which are "experimental" (see People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 [1994], quoting Frye, 293 F. at 1014). 

The Wesley Court went on to emphasize that "the particular procedure need not be 'unanimously endorsed' by the scientific community but must be 'generally accepted as reliable' " (83 N.Y.2d at 423, 611 N.Y.S.2d 97, 633 N.E.2d 451, quoting People v. Middleton, 54 N.Y.2d 42, 49, 444 N.Y.S.2d 581, 429 N.E.2d 100 [1981] ).

Judge Bluth precluded this expert, claiming the biomechanical expert, could not show significant peer-reviewed literature validating the methods he used to conclude that the forces of the accident could not have caused the injuries the plaintiff allege they suffered in the accident.

What went wrong here?  

I submit the biomechanical expert made a fatal error in his testimony at the Frye hearing that the accident in question could not have caused the specific injury alleged. 

Rather the expert should testify what the physiological limits are beyond which an injury can occur. 

What were the forces applied to the plaintiff in this accident and how the forces affected the plaintiff.  

The effective testimony of a biomechanical expert is to show the activities of daily living produce far more stress on the plaintiff's back, neck, shoulder and knee than a low speed accident. 

If a jury can visualize the stress on the plaintiff's back from picking up a quart of milk was less that the accident in question, you have laid the road for a strong closing argument in favor of dismissal.  

Read the White decision here. 

Doctor Eric Senat  is a familiar name to defense attorneys. His reports frequently are exchanged for arthroscopic knee and shoulder procedures performed for Kings County Plaintiffs. 

Dr. Senat was arrested by the US Postal Inspectors Office and charged with Health Care Fraud for allegedly billing Workers' Compensation and No-Fault for services not performed from March 2006 to January 2013. 

Dr. Senat subsequently pled guilty to Health Care Fraud and agreed to forfeit all property, real and personal, that constitutes or is derived, directly or indirectly, from gross proceeds traceable to the commission of the offense charged in Count One of the Information, including but not limited to a sum of money equal to $324,726.05. (see attached)

Your insured is driving a Peterbilt Tractor owned by Company "A".  He is towing a trailer owned by Company "B". 

The trailer is insured with a different carrier. 

The insurer for the tractor insists your policy would be primary and the trailer's coverage is secondary and excess only to your first million of coverage. 

Your policy provides primary coverage for the trailer, only if it is owned by your insured corporation, and both the tractor and trailer are listed on the policy's declaration page of the policy. 

The trailer's policy, however, does provide coverage for the trailer and the tractor connected to it, with no mention of the tractor's policy. 

Who prevails here?

See National Continental Ins. Co. v. Countrywide Ins. 112 A.D.3d 416, 1 Dept.,2013. December 03, 2013 (attached).

"National's policy provides primary coverage for a trailer if it is owned by the insured, Disano Construction, and both the tractor and trailer involved in the accident are listed on the policy's declarations page. If not, coverage is excess. Neither of the two conditions for primary coverage was present here. The Countrywide policy, by contrast, provides primary coverage for the tractor and any trailer connected to it. Based on this clear language, Countrywide's policy was primary, with National's coverage to be excess. Countrywide's arguments to the contrary are unavailing (see e.g. Aetna Cas. & Sur. Co. v. Merchants Mut. Ins. Co., 100 A.D.2d 318, 475 N.Y.S.2d 517 [3d Dept.1984], affd. 64 N.Y.2d 840, 487 N.Y.S.2d 322, 476 N.E.2d 648 [1985] ). " 

Lá fhéile Pádraig sona dhaoibh!