iNews August 2014 - Issue 64 - In This Issue:
Trial Tips
Developing a 'Theme' for your Trial
by Frank Scahill

 

Like a good movie, every case has a theme, a plot and a dramatic ending. Just like any director, the successful trial lawyer has to see the entire case in his or her mind before the jury walks into the room for that first day of jury selection. Where do you see this case going? Once the trial starts, you are on a roller coaster ride, so you need to think the case out thoroughly before you start. In a movie, the director may focus on a door or a nail on the wall in the beginning of the film and at the end, the lead actor hangs himself on that nail or falls through the door having been shot dead. The entire movie is orchestrated perfectly to that final scene. 


 
In a trial, your "theme" must start with jury selection and your opening statement. Your theme must ring throughout all of the testimony, allowing you to give your dramatic summation on how you have been true to your "theme" all along and you have now proven what you set out to prove. You want the jury to be humming your tune when they get in the deliberation room, just like a song that they cannot get out of their heads.

 

For example, where you have a case with a prior accident, you have to plant the seed in jury selection that the plaintiff's injuries are pre-existing and the plaintiff is suing for an injury that she had prior to your accident. Question the jury to see if they believe that everyone who comes to court and swears to tell the truth, does so. Ask the jury if they are open to the possibility that someone bringing a lawsuit for personal injuries may exaggerate their claim because they want the jury to award them money. Then, pose the question to determine if they are open to the possibility that a plaintiff, suing for personal injuries from an accident, had a pre-existing condition from prior accidents.

 

If the testimony play outs the way you hope, the cross examination of the plaintiff must concentrate on her credibility. See this exchange below and the attached transcript of the cross examination of the plaintiff from our last trial. If all goes well, at least you have made your points and you have a fighting  chance for the dramatic ending you want.

 

P. 214:
 

Q. Was that true when you told the jury that on Thursday?
 

A.  Maybe because, you know, it's my first time in court and I am nervous. I am sure anyone would be nervous. At that moment I know you are supposed to be exact on what you say and how you say it, sometimes it doesn't come out the right way.

 

P. 220:

 

Q. Was that answer truthful?
 

A. No
 

Q. That answer was false?
 

A. I don't recall why I would say no. Maybe I misunderstood the question. Maybe because I was nervous and I just went ahead and answered, which I know you shouldn't do that.
 

Q. What part of the question did you not understand?
 

A. That questions wasn't hard to misunderstand, like I said. I don't recall why I would say no when I was injured in '01, '06 and '09.
 

Q. Would it be fair to say those answers were incorrect?
 

A. Correct.
 

Q. You had an opportunity to review your transcript before you testified here today?
 

A. Yes
 

Q. Did you read it through carefully?
 

A. Yes
 

Q. You knew you were going to be questioned about it?
 

A. Yes
 

Q. When your lawyer got the transcript he sent it to you with instructions that you could correct anything that was wrong?
 

A. Yes
 

Q. You looked it over and you did not change that answer?
 

A. Correct
 

Q. So, you read this through beforehand and you knew that the defendants were relying on your answer, yet you never changed this. And now you're telling us, and admitting, that this was incorrect. Is that a fair statement where we are at right now?

 

 

Read the transcript here.


Decision of Note


Watch Your Mouth, Especially when Tired and Angry

 

   

"You're an a****** Dan" and  "Don't f*** me" are not the sort of language you would expect from a Federal Court Opinion from the United States District Court for the Southern District of New York. Yet, that is the first line in the decision of United States Magistrate Judge James C. Francis in his order dated June 26, 2014. Alexander Interactive, Inc. v. Adorama Inc(12-CV-6608) caught our eye this month following the memorandum and order of Judge P. Kevin Castel dated August 14, 2014, which affirmed the order of the Magistrate issuing a caution and admonishment to counsel in the context of overseeing discovery in the action. Obviously, counsel was pushed to her limit when she sent her adversary the offending email. The court order notes, 

 

"She attributed her conduct to being tired and angry, but she also argued that Mr. B had engaged in inappropriate and intimidating behavior during meet and confer sessions and depositions by shouting at her and telling her to 'shut up'."  

 

Obviously memorializing your negative feeling towards your adversary in an email is on the top ten list of things not to do when you are angry. You cannot go through your career as an attorney without meeting an adversary who gets under your skin and annoys you to the "Nth" degree. It is hard to be "Zen-like" and ignore an obstreperous, obnoxious, condescending jerk on the other side of the table. However, I have found you can set the tone by staying professional, refusing to engage in a shouting match and ignoring outlandish behavior. 

 

"What comes around, goes around" is a truism that attaches to our profession. Your word and reputation are everything.

 

 

 Read the decision here.

 


News from P&S



We are pleased to welcome Alyssa Imbriano, to our firm. Alyssa is a 2011 graduate from Massapequa High School and is attending Farmingdale College part-time. She is currently assisting our senior paralegal team, headed by Jean Zier. Alyssa brings her warmth and smile to work everyday. Her aptitude and enthusiasm shines through her demanding workload. We thank her for her service and welcome her to the firm. 

 

SUM Decisions of Note

 

Would the plaintiff in this fact pattern be entitled to Supplemental Underinsured Motorist Benefits (SUM Coverage)?

 

 

Plaintiff "A" is a passenger in a vehicle owned by her employer and driven by her co-worker. That vehicle is hit in the rear by a personal auto owned by "B" and driven by "B's" wife, who also was a co-employee of "A". The personal injury suit instituted by "A" v. "B" was dismissed on the grounds that the exclusive remedy of an injured worker suing a co-employee was Workers Compensation Insurance (see Workers' Compensation Law § 29[6]). In that action, the exclusivity provisions of the Workers' Compensation Law also barred Plaintiff''s derivative claim against "B"s spouse as the owner of the other vehicle under Vehicle and Traffic Law § 388. Can the injured worker "A" seek SUM benefits under the employer's SUM policy? The lower Court said YES, and denied the petition for a permanent stay, holding, inter alia, that the Workers' Compensation Law was not a bar to Plaintiff's recovery of SUM benefits under the automobile liability insurance policy issued to the employer. The Appellate Division, Fourth Department, in Hauber-Malota v. Philadelphia Insurance Companies (2014 N.Y. Slip Op 05705), issued on August 8th, 2014, disagreed.

 

"Thus, in what is a matter of first impression in this State, we are presented with the following question:

 

Whether an employee, injured in a motor vehicle accident while in the course of her employment, who is barred by the exclusive remedy provisions in the Workers' Compensation Law from suing a co-employee based on negligence, is entitled to SUM benefits under her employer's automobile liability insurance policy?

 

We first observe that Plaintiff correctly contends that the exclusive remedy provision in Workers' Compensation Law § 29(6) does not bar all actions by injured employees against an employer's insurer for SUM benefits. Although workers' compensation benefits generally are 'exclusive and in place of any other liability whatsoever' (§ 11), the statute cannot be read to bar all suits to enforce contractual liabilities. (Matter of Elrac, Inc. v. Exum, 18 N.Y.3d 325, 328, 938 N.Y.S.2d 252, 961 N.E.2d 643). Because an action to recover uninsured motorist benefits 'is predicated on [the] insurer's contractual obligation to assume the risk of loss associated with an uninsured motorist' (Matter of Shutter v. Philips Display Components Co., 90 N.Y.2d 703, 709, 665 N.Y.S.2d 379, 688 N.E.2d 235) the Workers' Compensation Law does not categorically bar such an action against an employer's insurer (see generally Elrac, Inc., 18 N.Y.3d at 328, 938 N.Y.S.2d 252, 961 N.E.2d 643). However, the critical distinction in this case is that the motor vehicle accident involved vehicles operated by co-employees.

 

Thus, Plaintiff may receive SUM benefits under the policy only if she is 'legally entitled to recover damages' from the owner or operator (11 NYCRR 60-2.3[f] ). The prescribed SUM endorsement language at issue is plain and unambiguous. Indeed, as noted above, the standard form for SUM coverage was promulgated in order to 'eliminate ambiguity, minimize confusion and maximize its utility' (11 NYCRR 60-2.0[c]; see also Raffellini v. State Farm Mut. Auto. Ins. Co., 9 N.Y.3d 196, 200-201, 848 N.Y.S.2d 1). Here, pursuant to the plain language of the SUM endorsement, Plaintiff is not 'legally entitled to recover damages' from the owner and operator of the offending vehicle because of the status of the operator, Cathlyn Haggerty, as Plaintiff's co-employee (see Workers' Compensation Law § 29[6]). Accordingly, we conclude that Plaintiff is not entitled to recover SUM benefits under the policy, and that the order should be reversed, the motion should be granted, and the complaint should be dismissed."

 

 

Read the decision here.

 

 

Can a Driver Claim SUM benefits under Another Auto Policy?

 

Driver "A" is operating a motorcycle with minimum $25,000/$50,000 coverage. Diver "A" is hit by motorist "B" also with 25/50 coverage. Driver "A" had a separate auto policy with another insurer for his personal automobile with SUM limits of $100,000 per person. Can Driver "A" claim SUM benefits for his motorcycle accident with the different carrier who insured his car?

 

"NO" says the Appellate Division Second Department, in an August 20th, 2014 decision entitled GEICO v. Beltran (2014 N.Y. Slip Op 05876). 

 

"The policy language in question was not ambiguous and GEICO was entitled to have the provisions it relied on to disclaim coverage enforced (see Matter of Government Empls. Ins. Co. v. Avelar, 108 AD3d 672, 673; Matter of USAA Cas. Ins. Co. v. Cook, 84 AD3d 825).

 

The SUM endorsement under the subject policy provided, in relevant part, that it did not apply 'to bodily injury to an insured incurred while occupying a motor vehicle owned by that insured, if such motor vehicle is not insured for SUM coverage by the policy under which a claim is made, or is not a newly acquired or replacement vehicle covered under the terms of the policy'. This language must be construed according to its plain and ordinary meaning. This policy exclusion unambiguously excluded from SUM coverage compensation for bodily injuries sustained by an insured when injured in a motor vehicle accident while occupying a motor vehicle he or she owns, which vehicle was not covered under the policy (see Matter of Government Empls. Ins. Co. v. Avelar, 108 A.D.3rd at 673). There is no dispute that the appellant, at the time of the accident, was occupying a vehicle, the motorcycle, that he owned but that was not covered under the subject policy (Matter of New York Cent. Mut. Fire Ins. Co. v. Polyakov, 74 AD3d at 822)."

 

 

Read the decision here.

 

 

More Decisions on SUM...

 

What happens when you agree to settle a case without the consent of the SUM carrier; however, although you agree to discontinue the third party action with prejudice, you have not tendered a release? Are the rights of the SUM carrier prejudiced sufficiently by your discontinuance with prejudice of the underlying action to allow for a denial of SUM Benefits? 

 

See Progressive Northeastern Insurance v. Cipolla (2014 N.Y. Slip Op  05545) issued by the Appellate Division, Second Department on July 30,2014. Here, the court found the claimant was NOT entitled to the SUM coverage.

 

"The appellant contends that his unauthorized settlement did not impair Progressive's subrogation rights because he has not provided a release to the tortfeasor. He does not dispute, however, that he discontinued his action against the tortfeasor without Progressive's consent and that, under the terms of the settlement, the discontinuance was to be 'with prejudice'. He also does not dispute that he is required to provide the tortfeasor with a release. Under these circumstances, the appellant failed to demonstrate that he did not impair Progressive's subrogation rights (see Weinberg v. Transamerica Ins. Co., 62 N.Y.2d 379, 381-382, 477 N.Y.S.2d 99, 465 N.E.2d 819; State Farm Mut. Auto. Ins. Co. v. Taglianetti, 122 A.D.2d 40, 40-41, 504 N.Y.S.2d 476; cf. Matter of Travelers Home & Mar. Ins. Co. v. Kanner, 103 A.D.3d 736, 738, 962 N.Y.S.2d 153; Hanna v. Ford Motor Co., 252 A.D.2d 478, 479, 675 N.Y.S.2d 125)."

 

 

Read the decision here.

 


Appellate Decision of Note

 

 The Five "Pillars" of Property Owners' Coverage

 

Mack- Cali Realty Corp. v NGM Insurance (119 A.D. 3d 905 N.Y.A.D 2 Dept.) was issued by the Second Department on 

July 30, 2014. Westchester County Electric Inc. entered into a lease agreement with the plaintiff, Mack-Cali Realty Corp. Part of that agreement required Westchester to provide liability insurance for the tenancy naming the lessor as an additional insured. 


 

A UPS driver slipped and fell on the dock of the premises and a personal injury suit ensued. Mack-Cali filed a declaratory judgment action against the insurer for the tenant, seeking an order compelling the insurer to indemnify Mack-Cali as per the lease terms. The lower court granted the application and the Appellate Division affirmed. 

 

What is noteworthy about this case is the five principals affirmed by the court which form the "pillars" of coverage issues in New York regarding a property owners' remedies.

  1. The Supreme Court properly determined that Mack-Cali is entitled to a judgment declaring that NGM is obligated to defend it in the underlying personal injury action. An insurer's duty to defend its insured is "exceedingly broad" (Regal Constr. Corp. v. National Union Fire Ins. Co. of Pittsburgh, PA, 15 N.Y.3d 34). "[A]n insurer will be called upon to provide a defense whenever the allegations of the complaint 'suggest ... a reasonable possibility of coverage' " (BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d 708, 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128, quoting Automobile Ins. Co. of Hartford v. Cook, 7 N.Y.3d 131, 137, 818 N.Y.S.2d 176, 850 N.E.2d 1152). "If [a] complaint contains any facts or allegations which bring the claim even potentially within the protection purchased, the insurer is obligated to defend" (BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d at 714, 840 N.Y.S.2d 302, 871 N.E.2d 1128; citing Technicon Elecs. Corp. v. American Home Assur. Co., 74 N.Y.2d 66, 73, 544 N.Y.S.2d 531, 542 N.E.2d 1048). 
     
  2.  [A]n additional insured is a recognized term in insurance contracts ... [and] the well-understood meaning of the term is an entity enjoying the same protection as the named insured, (BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d at 714-715, 840 N.Y.S.2d 302, 871 N.E.2d 1128) quoting Pecker Iron Works of N.Y. v. Traveler's Ins. Co., 99 N.Y.2d 391, 393, 756 N.Y.S.2d 822, 786 N.E.2d 863). Thus, the standard for determining whether an additional insured is entitled to a defense is the same as that which is used to determine if a named insured is entitled to a defense (BP A.C. Corp. v. One Beacon Ins. Group, 8 N.Y.3d at 715, 840 N.Y.S.2d 302, 871 N.E.2d 1128). 
     
  3. The lessor is only entitled to coverage if the liability arose of out the ownership operation or use of the premises. The phrase 'arising out of' has been interpreted to mean 'originating from, incident to, or having connection with' and requires only that there be some causal relationship between the injury and the risk for which coverage is provided, (see Worth Constr. Co., Inc. v. Admiral Ins. Co., 10 N.Y.3d 411, 415, 859 N.Y.S.2d 101, 888 N.E.2d 1043, citing Maroney v. New York Cent. Mut. Fire Ins. Co., 5 N.Y.3d 467, 472, 805 N.Y.S.2d 533, 839 N.E.2d 886). Here, there was a causal relationship between the UPS worker's injury and the risk for which coverage was provided, namely, bodily injury sustained by third parties during an activity relevant to the operation of WCE's business (Maroney v. New York Cent. Mut. Fire Ins., Co., 5 N.Y.3d at 473, 805 N.Y.S.2d 533, 839 N.E.2d 886). Since the UPS worker was delivering packages to the subject premises that were intended for WCE, the accident occurred in the course of an activity necessarily incidental to the operation of the space leased, (see 1515 Broadway Fee Owner, LLC v. Seneca Ins. Co., Inc., 90 A.D.3d 436, 933 N.Y.S.2d 672, Jenel Mgt. Corp. v. Pacific Ins. Co., 55 A.D.3d 313, 865 N.Y.S.2d 58). 
     
  4.  What standard is used to determine whether the incident occurred on the demised premises? [T]he perimeters of coverage afforded under the policy must be viewed not in strictly territorial terms but rather in operational terms covering the extent of control over the premises that the lease vested in WCE (Maldonado v. Kissm Realty Corp., 18 A.D.3d 627, 628, 796 N.Y.S.2d 619). The use of the loading dock was incidental to the covered premises as a means of delivering packages to WCE in the operation of its business. The fact that the UPS worker may be found to have been negligent, by attempting to use the loading dock to access the office on the interior of the building instead of using the stairs adjacent to the loading dock, is irrelevant. 
     
  5. What will trigger the duty to defend and to pay defense costs?  '...the allegations that trigger a duty to defend also trigger an obligation to pay defense costs (see Federal Ins. Co. v. Kozlowski, 18 A.D.3d 33, 40, 792 N.Y.S.2d 397. Since NGM's duty to defend under the terms of the policy is triggered by a "suit" against an insured, such duty arose upon the commencement of the underlying personal injury action (see HRH Constr. Interiors, Inc. v. Royal Surplus Lines Ins. Co., 16 A.D.3d 115, 791 N.Y.S.2d 76)'.  
  Read the decision here.

 



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