My last two trials in March involved pedestrians in auto collisions. One in Queens settled for $300,000 with another million in coverage left on the table. That case involved serious injures with the plaintiff suffering comminuted fractures of the left tibia and fibula which required open reduction and internal fixation; a further surgery for removal of the hardware a year later; in addition the plaintiff suffered a three part burst fracture of the vertebral body at C1; and, fractures of the vertebral bodies at C5 and C6. The plaintiff was claiming lost wages of approximately $300,000. 

The second case in Nassau County settled for $60,000 on a file with excess coverage up to $50 million. In that case, the plaintiff claimed disc herniations of the cervical and lumbar spine at multiple levels from C2 through C7 and L1 through L5. The plaintiff was also alleging a concussion; post-concussion syndrome; depressive mood disorder; congestive heart failure; pulmonary contusion; left wrist and left thumb injury; carpal tunnel syndrome; right knee internal derangement; medial meniscus tear of the right knee and left shoulder internal derangement. 

• Could you envision a scenario where the driver is either free from fault or not the party that caused the accident?  

• Will you wait until you hear both sides before you make up your mind?   

• If the evidence shows the pedestrian caused the accident, could you tell the plaintiff and his lawyer that they have not proven their case and find against them?   

On this type of a case, you will never get six jurors who like the driver. 

They will always favor the pedestrian. 

You need to weed out the people who will hurt you the most. 

Pick off the ones who will sink your case from the start. 

The ones that are left will at least listen to you in the courtroom.

On February 18, 2014, the Court of Appeals in an opinion by Judge Pigott, Country-Wide Ins. Co. v. Preferred Trucking Services Corp. (22 N.Y.3d 571), addressed the issue of when an insurance carrier may disclaim coverage for lack of cooperation by its insured. In this case the lawsuit was commenced in March of 2007. A default motion was filed against the defendants in October of 2007, which was also provided to Countrywide, as the first notice of the pending action. Countrywide assigned counsel to defend the owner and driver, and also served a reservation of rights letter, advising the defendants of their right to disclaim coverage for lack of cooperation. 

In May of 2008, a conditional preclusion order was issued against the defendants for their failure to appear for court ordered depositions. 

In October 2008, the court struck the answer of the defendants for failing to appear as ordered. 

In November of 2008, Countrywide disclaimed coverage based on the refusal of the defendants to cooperate in the defense of the action. 

Countrywide's assigned counsel moved to be relieved as attorneys and that application was granted. An inquest against the defendants resulted in a judgment of $2,250,000. Countrywide filed a declaratory judgment action, seeking an order that they were not obligated to indemnify their insured and their disclaimer, issued over a year after they were put on notice of the suit, was timely. 

The lower court found in favor of the plaintiffs, indicating Countrywide's disclaimer was untimely as a matter of law. On appeal, the First Department affirmed, holding that the insurer's disclaimer on that date "was untimely, since it came approximately four months after it learned of the ground for the disclaimer" (99 A.D.3d 582, 952 N.Y.S.2d 539 [1st Dept 2012] ).

Countrywide prevailed in the Court of Appeals on this case, a major win for insurance carriers seeking to disclaim for lack of cooperation.

Judge Pigott stated, 

"The question whether an insurer disclaimed as soon as reasonably possible is necessarily case-specific. In some cases, very different from this one, the justification for disclaimer is 'readily ascertainable from the face of the complaint in the underlying action' (Fish King Enters. v. Countrywide Ins. Co., 88 A.D.3d 639, 642, 930 N.Y.S.2d 256 [2d Dept 2011] ) or 'all relevant facts supporting ... a disclaimer [are] immediately apparent ... upon ... receipt of notice of the accident' (Matter of Allstate Ins. Co. v. Cruz, 30 A.D.3d 511, 513, 817 N.Y.S.2d 129 [2d Dept 2006] ). In such cases, a disclaimer must be made rapidly. The present appeal, on the other hand, involves disclaimer for non-cooperation by an insured. A determination as to whether such a disclaimer was made within a reasonable time is more complex because 'an insured's non-cooperative attitude is often not readily apparent' (Continental Cas. Co. v. Stradford, 11 N.Y.3d 443, 449 [2008] ). We have emphasized that 'insurers must be encouraged to disclaim for non-cooperation only after it is clear that further reasonable attempts to elicit their insured's cooperation will be futile' (id. at 450, 871 N.Y.S.2d 607, 900 N.E.2d 144).

The primary reason that we allow a longer period for disclaimer for non-cooperation lies in a well-established principle of our case law, which is intended to facilitate the full compensation of injured victims suing for damages. This is the requirement that an insurer may not properly disclaim for non-cooperation unless it has satisfied its burden, described in the precedent as 'a heavy one indeed' of showing 'that it acted diligently in seeking to bring about the insured's cooperation; that the efforts employed by the insurer were reasonably calculated to obtain the insurer's cooperation; and that the attitude of the insured, after his cooperation was sought, was one of willful and avowed obstruction' (Thrasher v. United States Liability Ins. Co., 19 N.Y.2d 159, 168 [1967]. "

The court noted Countrywide established, as a matter of law, that the delay of over a year in disclaiming coverage was not unreasonable. 

The court was swayed by the documented and persistent efforts of the carrier over the course of a year to seek cooperation. 

Going forward, insurance professionals may seek similar results, which can only be mirrored if the investigation is persistent, the insured is aware of the need to cooperate and, despite that knowledge, refuses to participate in the defense of the case.

Read the case here.

Your case is marked final to select and your expert is out of town the week you need him to testify. The trial assignment Judge tells you the case is well beyond the standards and goals date and to "go pick a jury". 

You are then sent to the one Judge in the courthouse who likes to try a typical five day case in one day. 

You advise the court of the problem with your expert and the Judge tells you "you better settle the case". 

Your carrier is blaming you for the fiasco and your case goes south. Is all lost? After all you waited three years for the case to come up for trial and you were ready six times when the plaintiff requested more time. How is it, the one time you needed a week adjournment, the court says "No"?

Keep the Second Department decision in Black v. St. Luke's Cornwall Hospital, 976 N.Y.S.2d 562, N.Y.A.D. 2 Dept.,2013., in your trial binder. 

Here the Court stated, 

"An application for a continuance or adjournment is addressed to the sound discretion of the trial court, and the grant or denial thereof will be upheld on appellate review if the trial court providently exercised its discretion. However, it is an improvident exercise of discretion to deny a continuance where the application is properly made, is not made for the purpose of delay, the evidence is material, and the need for a continuance did not result from the failure to exercise due diligence. (Verdi v. Ho, 71 A.D.3d 1004, 1005, 897 N.Y.S.2d 235, quoting Mura v. Gordon, 252 A.D.2d 485, 485, 675 N.Y.S.2d 142; see Notrica v. North Hills Holding Co., LLC, 43 A.D.3d 1119, 1120, 842 N.Y.S.2d 577; Lila v. Bata, 33 A.D.3d 875, 822 N.Y.S.2d 781)."

It's all about fairness and clearly the plaintiff in Black v. St. Luke's was entitled to the week he requested. 

Pity it took an appeal and another two years to get what he should have been granted in 2011.

Read case here.

The New York City Police Department publishes monthly statistics, broken down by precinct, of how many traffic accidents take place at a particular intersection. The link is on the police department website under "Traffic Data: Motor Vehicle Collisions".   

In February 2014, there were five accidents at the intersection of  Ocean Parkway and Shore Road in Brooklyn and seven at the corner of Bowery and Delancey in Manhattan. 

With that type of frequency, I would think an innovative plaintiff could find an engineer to support a road defect analysis and bring the City into the case as a defendant. The case would need the elements of serious or catastrophic injury and the paucity of insurance coverage by the offending driver. 

The data is at the ready, available on the internet, at the City's own cost and expense.

Congratulations to Paul Duer for obtaining a Defense Verdict on Liability March 28, 2014 in Civil Court, Queens Co., in the matter of Zheng v. Chiusano, (300639/12).

Join us in Welcoming a New Attorney

 We welcome Lisa Frank as an attorney to the firm. Lisa has over 20 years experience in the Insurance Defense field. She previously served as a supervisor for staff counsel for over ten years. Lisa brings a  wealth of knowledge and experience to the firm and we all look forward to her working with us for many years.