This month's trial found us in Queens County on a protracted case that eventually settled for $55,000. The plaintiff on this case was represented by a top plaintiff's firm and the injuries included a rotator cuff tear with two surgical interventions. Although liability was contested, the fact pattern was essentially a rear-end collision with a stopped vehicle. How could a case like this settle for such a low number?

Every case is unique and presents challenges that need to be overcome  at trial. Whether it is your witness with a tainted past, an inflexible Judge on scheduling issues, or a difficult adversary who refuses to stipulate to the entry of materials you need into evidence, you can be sure you will be tested at trial and you need to think on your feet. Part of our job is giving the carrier a realistic view of how the trial is going. If you are on the phone to the carrier, bragging about how you are killing the plaintiff''s witnesses on cross-examination, and the verdict comes in against you, and badly, there is a disconnect with how you felt things were going and how your jury perceived the case. There is no bright line rule on how to negotiate a settlement. Some of the things I have learned over the years ring true, however, on every case.

First, and most importantly, your word is your bond. Never deceive, obfuscate or mislead. I always tell the Court and my adversary what I can do to settle the case and in what range I feel the case can be resolved. You do not need to offer the last dollar in authority you have at the onset but be honest about the range of value you have on a case.

Second, know the case better than your adversary and do your homework. How was I able to settle a case with two surgeries for $55,000? The plaintiff had a history of three prior lawsuits for personal injuries from car accidents, two with the same law firm that represented him last month. The plaintiff also was morbidly obese, over 330 pounds; had a history of bi-polar disorder; two gastric bypass surgeries; prior knee surgery; and prior complaints of neck, low back and right shoulder pain, the same areas he claimed injured in my client's accident. Despite his claims of inability to work and loss of income, he posted an online video of himself at a Maserati dealer touting his ownership of the new Maserati Quattroporte. You can imagine what the cross examination of this plaintiff would be. If you do your homework on a plaintiff, you will invariably find something that can help you on trial.

Third, be realistic with your carrier. If you only have $40,000 in authority on a pedestrian knockdown with a trimalleolar fracture with open reduction, internal fixation surgery, you need to advise that you will not settle the case and the expected verdict will be much higher. You need to be familiar with the venue where your case is tried and report realistically how your case is going. No one likes surprises. We never know what a jury will do, but you need to access risk and report accurately.

Finally, think like a juror. The average juror has no clue about what goes on in a personal injury case. You may think you scored a huge point by having the plaintiff's surgeon admit his operative report details finding of bony ridging and an osteophyte complex at C4-C5; however, that passed so far over the jurors' heads that no one mentions it in the deliberation room. You need to ask, will the jury like this plaintiff? Is his or her story credible? Is the plaintiff a chronic complainer or someone who works despite the pain? How did your experts come across? In the end, the jury will think with their gut and reward a plaintiff who is likable and does not exaggerate. You need to access your case from the jury box as well as from the counsel table.

Congratulations to Frank Scahill for his selection as an honoree at the Long Island Business News' annual Leadership in Law Awards program. Long Island Business News created the Leadership in Law Awards to recognize those individuals whose dedication to excellence and leadership, both in the legal profession and in the community, has had a positive impact on Long Island. Experience counts. Dedication, hard work, skill, tenacity and excellence are expected. Compassion is essential. The Leadership in Law Award recognizes all of these qualities and is dedicated to those individuals whose leadership, both in the legal profession and in the community, has had a positive impact on Long Island. Recipients of this award demonstrate outstanding achievements, involvement in their profession, support of the community and mentoring.

Congratulations to Tom Craven for a defense verdict on liability on October 2, 2014 in Suffolk County Supreme Court in Anthony J. Losito v. Barry L. Chandler, Luisa McConnell and Elizabeth Ortiz (Index No. 1872/12).

Congratulations to Andrea Ferrucci for her Appellate Victory in the Second Department on September 10, 2014 in Billis v. Tunjian (2014 NY Slip Op 06044).

Congratulations to Diana LaPadula for her victory in a Labor Law action, Miguel A. Pastrana v. Kira Samija, (700871/11). The opinion of Judge McDonald was published in the New York Law Journal on September 18, 2014. View the full article here. 

#ThrowBackThursday

Opening of P&S Westchester Office, September 2013

We always receive interesting questions in the course of the month on various coverage issues. This month's question on homeowner's coverage dealt with the usual 10% fee payable to the public adjuster where the policyholder has a mortgage.

Q:  "If we settle a dwelling claim and the public adjuster is entitled to a 10% fee out of the settlement, does the mortgagee name have to appear on the check to the public adjuster? The policy simply states any payment under the stated coverage must include the mortgagee."

A:  The advisory opinions of the New York State Insurance Department (now Department of Financial Services) are a great source of information. Here, the Insurance Department issued an advisory opinion on this very question:

"Section 25.12 of Regulation 10 provides:  When a claim is settled where the insured is represented by a public adjuster, upon the request of the insured, the insurer's check may be made payable to both the public adjuster and the insured or to the public adjuster named as a payee, but not in excess of the amount of the public adjuster's fee, as indicated in the written compensation agreement signed by the insured and filed with the insurer. The balance of the proceeds shall be payable to the insured or loss payee, or both, whichever is appropriate. 

This section governs the payment of a claim by an insurer as it pertains to the relationship between the public adjuster and the insured. It is not intended to, and does not, diminish the rights of the mortgagee or a loss payee under the insurance contract. See Office of General Counsel Opinion March 6, 1991; NILS opinion 87-3.1 August/September 1987. In this connection, the court in Public Adjustment Bureau, Inc. v. Bankers Federal Savings and Loan Association, 83 Misc.2d 317, 319, 371 N.Y.S.2d 347, 350 (Civ. Ct. N.Y. County 1975), noted that:

[A] mortgagee clause in a standard fire policy creates an independent insurance of the mortgagee's interest just as if it had received a separate policy from the insurer but without any inconsistent or repugnant conditions imposed by the policy upon the owner of the insured property and free from invalidation by the latter's 'act or neglect'. Syracuse Savings Bank v. Yorkshire Insurance Co., 301 N.Y. 403, 94 N.E.2d 73 (1950). Thus, for example, no settlement between the owner (or its agent, which includes a public adjuster retained by the owner) and the insurer can operate in any way to the detriment of the mortgagee. Hathaway v. Orient Insurance Co., 134 N.Y. 409, 32 N.E. 40 (1892); McDowell v. St. Paul Fire & Marine Insurance Co., 207 N.Y. 482, 101 N.E. 457 (1913).

Thus, the public adjuster's fee check may be issued solely to the public adjuster only if the insured, in accordance with Section 25.12 of Reg. 10 has made such a request of the insurer, and the mortgagee's interest would be satisfied by the balance of the claim proceeds, or if such a request is made by both the insured and the mortgagee. If the mortgagee's interest would not be completely satisfied by the balance of the claim proceeds, or if the mortgagee has not agreed to pay the adjuster by separate check, then the insurer must make a fee check payable to the mortgagee as well as to the public adjuster."

The Next Question Was on an Auto Case 

A:  New York Vehicle and Traffic Law § 375 requires a rear lamp to display only red light. The statute's plain language mandates that rear lamps "shall display a red light" (Vehicle and Traffic Law § 375[2][a][3] ). People v. Allen, 90 A.D.3d 1082, 933 N.Y.S.2d 756 (2011). In this fact scenario, a plaintiff would need to show the bicycles obstructed the red rear tail light in such a manner as to provide the rear car that struck the insured a "non-negligent excuse" for striking your insured in the rear.

The applicable case law holds, 

"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept.2003]). It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Klopchin v. Masri, 45 AD3d 737 [2d Dept.2007]; Hakakian v. McCabe, 38 AD3d 493 2d Dept.2007]; Reed v. New York City Transit Authority, 299 AD2 330[2d Dept.2002]; Velazquez v. Denton Limo, Inc., 7 AD3d787 [2d Dept.2004]."

Courts have rejected this argument where the rear brake light was tinted. Aguayo v. Boston Scientific Corp., 31 Misc.3d 1237(A), 930 N.Y.S.2d 173 (2011).

The explanation raised by defendants' counsel, that the plaintiff's vehicle had tinted rear brake lights, is insufficient to rebut the presumption of negligence created by the rear-end collision and raise a triable issue of fact to defeat summary judgment (see Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept.2004] [defendant's testimony that she did not recall seeing brake lights or tail lights illuminated on the plaintiff's vehicle before the collision did not adequately rebut the inference of negligence]; Gross v. Marc, 2 AD3d 681 [2d Dept.2003][the defendant failed to provide evidence sufficient to raise a triable question of fact as to whether the alleged malfunctioning brake lights on the plaintiff's vehicle proximately caused the accident]; Waters v. City of New York, 278 A.D.2d 408 [2d Dept.2000][defendant's statement that he did not observe any illuminated brake lights indicating that the truck was stopped is insufficient to establish a genuine issue of material fact precluding summary judgment]; also see Filippazzo v. Santiago, 277 A.D.2d 419 [2d Dept.2000]; Santarpia v. First Fid. Leasing Group, Inc., 275 A.D.2d 315 [2d Dept.2000]; Lopez v. Minot, 258 A.D.2d 564 [2d Dept.1999] ).

Moreover, counsel's affirmation that the allegedly tinted brake lights was a violation of Vehicle and Traffic Law § 375.2(a)(3) and that the tinting resulted in the defendant's reduced reaction time is speculative at best in the absence of an affidavit from the defendant attesting to that supposition (see Lampkin v. Chan, 68 AD3d 727 [2d Dept.2009]; Gomez v. Sammy's Transp., Inc., 19 AD3d 544 [2d Dept.2005]; Rainford v. Han, 18 AD3d 638 [2d Dept.2005] ). Counsel does not have knowledge of the facts and can only speculate as to the degree of tinting and whether it was a contributing factor to the accident.

If the driver of the car that hit the insured in the rear claims the tail lights were completely obstructed, they may use the case  below to defeat a summary judgment motion. Otherwise, I would say we have a good chance of prevailing on a motion for summary judgment. Tepoz v. Sosa, 241 A.D.2d 449, 663 N.Y.S.2d 831 N.Y.A.D. 2 Dept. 1997.

Triable issues of fact exist as to whether the defendant violated the Vehicle and Traffic Law, inter alia, in failing to display lighted tail lights on the vehicle that she was attempting to park (see Vehicle and Traffic Law § 375 [2][a][1]; [3] ). A defendant's unexcused violation of a statute constitutes prima facie evidence of negligence and it is for the jury to determine whether the violation was the proximate cause of the accident (see Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814; Malloy v. Trombley, 50 N.Y.2d 46, 55, 427 N.Y.S.2d 969, 405 N.E.2d 213; Frias v. Fanning, 119 A.D.2d 796, 501 N.Y.S.2d 423; McConnell v. Nabozny, 110 A.D.2d 1060, 489 N.Y.S.2d 24; Brogan v. Zummo, 92 A.D.2d 533, 459 N.Y.S.2d 293; McAllister v. Adam Packing Corp., 66 A.D.2d 975, 412 N.Y.S.2d 50; Ortiz v. Kinoshita & Co., 30 A.D.2d 334, 292 N.Y.S.2d 48).

Will Supplementary Uninsured/Underinsured Motorist Coverage Apply

to a "Temporary Substitute Vehicle" Under an Auto Policy?

Here are the facts of the case: 

"On December 23, 2011, Warren F. O'Brien, Jr., was employed as a mechanic at Massapequa Auto Repair, Inc. On that date, Robert Auletta, his customer, asked O'Brien to return Auletta's loaner Mercedes-Benz vehicle to Mercedes-Benz of Massapequa on his behalf. O'Brien, who was named an additional driver on the loaner vehicle agreement, acceded to Auletta's request. O'Brien sustained injuries when the Mercedes-Benz he was operating was struck in the rear by another vehicle. The vehicle that struck O'Brien's vehicle had a basic $25,000/$50,000 policy through GEICO. O'Brien then commenced a personal injury action, and GEICO tendered the full amount of the policy to settle the claim. The petitioner consented to a $25,000 settlement."

O'Brien then sought coverage under Auletta's auto policy for supplementary uninsured/underinsured motorist coverage. Judge Jaeger in Nassau Supreme Court denied the petition to stay arbitration and the carrier appealed. On September 10, 2014, the Appellate Division, Second Department upheld the denial of the petition to stay arbitration in State Farm Mut. Auto. Ins. Co. v. O'Brien (992 N.Y.S.2d 126). 

"Generally, it is for the insured to establish coverage and for the insurer to prove that an exclusion in the policy applies to defeat coverage" (Consolidated Edison Co. of N.Y. v. Allstate Ins. Co., 98 N.Y.2d 208, 218, 746 N.Y.S.2d 622, 774 N.E.2d 687). 

Whether the burden of proof rests on the insured to establish coverage, or on the insurer to establish an exclusion, rests on the language of the policy (see id.). "Where the provisions of the policy are clear and unambiguous, they must be given their plain and ordinary meaning, and courts should refrain from rewriting the agreement. The policy must, of course, be construed in favor of the insured, and ambiguities, if any, are to be resolved in the insured's favor and against the insurer" (see Ace Wire & Cable Co. v. Aetna Cas. & Sur. Co., 60 N.Y.2d 390, 398, 469 N.Y.S.2d 655, 457 N.E.2d 761). 

The opening language of the SUM endorsement states: "This endorsement is a part of the policy. Except for the changes it makes, all other provisions of the policy remain the same and apply to this endorsement." 

Moreover, the opening language of the policy states: "We define certain words and phrases below for use throughout the policy. Each coverage includes additional definitions only for use with that coverage." The general definition section includes a definition of "temporary substitute car," which is to be applied throughout the policy: "Temporary Substitute Car means a car that is in the lawful possession of the person operating it and that: 1. replaces your car for a short time while your car is out of use due to its: a. breakdown; b. servicing; c. repair; d. loss; or e. destruction; and 2. neither you nor the person operating it own or have registered it." 

This Court has held that the purpose of a provision relating to a "temporary substitute" vehicle "is to afford continuous coverage to the insured during the period that a vehicle scheduled under the policy is out of commission, and at the same time limit the risk to the insurer to one operating vehicle at a time for a single, fair premium. Coverage for a substitute vehicle ceases when the insured vehicle is repaired and returned to its owner" (Lancer Ins. Co. v. Republic Franklin Ins. Co., 304 A.D.2d 794, 797, 759 N.Y.S.2d 734 ). Here, the SUM endorsement fails to articulate any exclusion for a "temporary substitute car."

Read the decision here.

Juror Misconduct

Matter of Richard N. (2014 NY Slip Op 2425) decided on August 29, 2014 Queens County Supreme Court, J. Ritholtz, caught our eye this month. On this case, a juror on a summary jury trial before Judge Ritholtz, failed to show up on the second day of trial and did not call in with a credible excuse as to why he was not there. He compounded the error when the court called him, by feigning a medical emergency, which proved to be false. Needless to say he was in a heap of trouble. See below from the opinion. 

The Court could not countenance this inexcusable absence, and persisted and eventually was able to reach Richard N. by phone at noon. He explained that he had a "neurological emergency" and had to see a doctor. When asked the name and address of the physician, he provided a name that proved, upon the Court's investigation, to be fictitious. At that point, the telephone connection was abruptly lost, and the Court was presented with what appeared to be an intentional violation of a court order, compounded by a prevarication as to his true whereabouts.

Under these circumstances, the Court contemplated a bench warrant to have this recalcitrant juror produced for a possible contempt hearing, to have him purge his apparent contempt, either by bringing in proof of the alleged emergency visit to a neurologist, or by requiring him to continue his jury service as a potential juror in another case, or by simply having him pay a fine for his inexcusable conduct. As to whether he would be subject to civil or criminal contempt was not an issue at that time, but an explanation under oath of the true cause of his absence was the immediate purpose of the proposed special proceeding.

Before issuing a bench warrant, the Court left a message on Richard N.'s cell phone, that if he did not return the call within an hour a bench warrant would be issued to have him appear for a contempt hearing, and that he would have the right to counsel. Within a short period of time, Richard N. contacted the Court, and confessed that he had lied as to the neurological emergency and that he, in reality, taught his course at a local college that morning instead of reporting to jury duty. He apologized for his conduct. Whereupon, the Court directed him to report immediately for a hearing at which time he would possibly face a fine for a sum no greater than $250, and that counsel would be unnecessary, unless he deemed otherwise.

At the hearing conducted by the Court that afternoon, a record was made of the foregoing facts. Richard N., under oath, explained that he was a college instructor and occasionally suffered from migraine headaches. Although he admittedly went to work that morning, when confronted by the Court, he claimed a "neurological emergency" and gave the name of a fictitious doctor, which was really the name of a secretary in his department. When asked by the Court if he had any words to say regarding his conduct, he stated: "I am very sorry." 

You can be sure this juror will take his service more seriously the next time called. In the meantime, if you are interested in the constitutional authority of a Supreme Court Judge to sanction a recalcitrant jury, read the case below. 

Read the case here.

Q:  Can a no-fault carrier that has previously denied the eligible injured party ("EIP") all further no-fault benefits based upon an Independent Medical Examination ("IME"), request the EIP appear for an Examination Under Oath ("EUO") when a medical provider submits claims for payment of no-fault benefits for medical treatment provided after the IME cut-off?
 

A:  Yes, says Judge Hirsch of Nassau District Court in Hempstead Regional Chiropractic, P.C. v. Allstate Ins. Co., (991 N.Y.S.2d 879) decided on September 8, 2014 with ten important bullet points on the EUO process.

1.  A person making application for No-fault benefits "... may reasonably be required to submit to an examination under oath" upon request of the No-Fault insurance carrier. 11 NYCRR 65-1.1.

2.  Appearance at an EUO is a condition precedent to coverage. IDS Property Casualty Ins. Co. v. Stracar Medical Services, P.C., 116 A.D.3d 1005, 985 N.Y.S.2d 116 (2nd Dept.2014); Stephen Fogel Psychological, P.C. v. Progressive Casualty Ins. Co., 35 A.D.3d 720, 827 N.Y.S.2d 217 (2nd Dept.2006); and Flow Chiropractic, P.C. v. Travelers Home and Marine Ins. Co., 44 Misc.3d 132(A), 2014 WL 3746881 (App.Term, 9th & 10th Jud.Dists.2014).

3.  A carrier may deny all claims for no fault benefits after a party fails to appear for an EUO if the carrier issues a timely denial asserting the failure to appear for the EUO as the basis of the denial. Westchester Medical Center v. Lincoln General Ins. Co., 60 A.D.3d 1045, 877 N.Y.S.2d 340 (2nd Dept.2009), lv. dnd. 13 N.Y.3d 714, 2009 WL 4797739 (2009), cf. Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 (1st Dept.2011), lv. dnd. 17 N.Y.3d 705, 2011 WL 2535157 (2011).

4.  When the party who is requested to appear for an EUO timely objects to appearing for the EUO, the carrier must establish it had an objective standard for requesting the EUO. See Hillside Open MRI, P.C. v. Allstate Ins. Co., 44 Misc.3d 132(A), 2014 WL 3746883 (App.Term, 9th & 10th Jud.Dists.2014); and 11 NYCRR 65-3.5(e).

5.  The relevant provisions of the No-Fault Regulations [11 NYCRR 65-1.1] do not limit or condition in any way a carrier's right to request an EUO. The only conditions on an EUO are it must be conducted at a time and place reasonably convenient to the applicant and the applicant must be advised that he or she will be reimbursed for any loss of earnings or travel expenses incurred in complying with the request. 11 NYCRR 65-3.5(e).

6.  The No-Fault Law and Regulations do not prevent a carrier that has denied no-fault benefits based upon an IME from requesting an EUO of the EIP if the EIP continues to receive medical treatment after the IME cut-off and the provider continues to submit the no-fault claims for payment. 

7.  An IME cut-off is not a complete defense to the action. The testimony of the physician, chiropractor or other medical provider who performed the IME may be sufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim. Amato v. State Farm Ins. Co., 40 Misc.3d 129(A), 2013 WL 3497906 (App.Term, 9th & 10th Jud.Dists.2011).

8.  If a party wants to contest or object to a request for an EUO, it must do so when the EUO request is made. Hillside Open MRI, P.C. v. Allstate Ins. Co., supra; and Crescent Radiology, PLLC v. American Transit Ins. Co., 31 Misc.3d 134(A) supra, 2011 WL 1448133.

9.  The testimony obtained from the EIP at a post IME cut-off EUO could be relevant to the defense of the claim submitted after the IME cut-off. The carrier could choose pay the claims submitted after the IME cut-off based upon the testimony of the EIP at an EUO.

10.  The failure to present an objective basis for requesting the EIP appear for an EUO, dooms the carrier's motion for summary judgment.

Read the decision here.