Commencing an Action When a Homeowner Dies Within the Two Year Statute

A typical provision in a homeowner's policy states, "[n]o action can be brought [against us (the carrier)] unless the action is started within two years after the date of loss." What happens when the homeowner dies within the statutory two year period to commence an action? CPLR 210( a), entitled "Death of claimant," states: "Where a person entitled to commence an action dies before the expiration of the time within which the action must be commenced, and the cause of action survives, an action may be commenced by his [or her] representative within one year after his [or her] death."

Is the representative of the deceased homeowner entitled to the CPLR 210(a) extension of time to bring the claim? Is the filing of a lawsuit within the two year time period set forth in the policy, a "condition precedent" to the right to pursue the claim in court?

The answer is that the CPLR 210(a) extension applies. See Dail v. Merchants Mut. Ins. Co., 74 A.D.3d 28, 30-31, 900 N.Y.S.2d 536, 537 (2010).

"We reject defendant's 'condition precedent' theory inasmuch as the cause of action to recover damages for breach of contract based on a fire or a homeowner's insurance policy existed at common law and was not created by the insurance statute containing the two-year period of limitations (see S & J Deli, 119 A.D.2d 652, 501 N.Y.S.2d 93; Insurance Law § 3404[e] ).1. It has never been incumbent upon an insured to plead and prove compliance with the applicable statute of limitations as a condition precedent in commencing a breach of contract action under the common law against an insurer. Moreover, we perceive no indication in the language of Insurance Law § 3404(e) indicating that the two-year period of limitations was intended to be in the nature of a condition precedent (cf. Kahn v. Trans World Airlines, 82 A.D.2d 696, 709, 443 N.Y.S.2d 79). We, therefore, conclude that the "death toll" in CPLR 210(a) is applicable to an action against an insurer where the policy at issue contains the two-year limitations period contained in Insurance Law § 3404(e)."

Read the decision here.

Allowable Fees in First Party No-Fault Cases

The maximum allowable legal fee in a first party no-fault suit against an Insurance Carrier pursuant to Insurance Department Regulations [11 NYCRR] § 65-4.6(e) is $850. In 2009, the Court of Appeals determined attorneys' fees in a no-fault action are to be calculated based on the "aggregate of all bills for each insured" disputed in any action, up to a maximum of $850 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]),

What is the allowable Fee in consolidated actions? In EMA Acupuncture P.C. v. Allstate Ins. Co., decided by the Supreme Court, Appellate Term, First Department on March 23, 2015, (47 Misc. 3d 126(A) (N.Y. App. Term. 2015), four related actions were consolidated on consent of the provider. 

Here, the court limited the recovery to $850. "We sustain so much of the order under review as limited the amount of any recovery of attorneys' fees to the sum of $850, the maximum allowable pursuant to Insurance Department Regulations [11 NYCRR] § 65-4.6(e). Since this provision provides that attorneys' fees in a no-fault action are to be calculated based on the "aggregate of all bills for each insured" disputed in any action, up to a maximum of $850 (LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 12 NY3d 217 [2009]), the $850 limit was properly applied to the claims at issue in this consolidated action, all of which involve the same parties and assignor, and arise from the same accident."

Read the decision here.

Interesting Decision on "Loss of Fetus"

Judge Tapia of Bronx County Supreme Court issued an interesting decision on March 31, 21015 on the issue of whether premature labor, causally related to a motor vehicle accident can qualify under the "Loss of Fetus" set forth in the definition of Serious Injury under Insurance Law § 5102 (d).

In 2011, the Appellate Division Second Department addressed the issue in Damas v. Valdes, 84 A.D.3d 87, 92-93, 921 N.Y.S.2d 114 (2011), stating, "We hold, as a general matter, that a plaintiff's prolonged period of bed rest ordered by a treating physician as a means of dealing with diagnosed preterm labor causally related to an automobile accident may, upon the submission of appropriate proof, qualify for judgment as a matter of law in favor of the plaintiff under the definitional standard of the 90/180-day category of Insurance Law § 5102 (d), even if the labor does not advance to the point of premature delivery or spontaneous abortion of the fetus."

Judge Tapia extended the concept noting premature labor, as a matter of law, outside of the 90/180 day category, separately qualifies as a serious injury under the "loss of fetus section of Insurance Law § 5102 (d)." As discussed above, although the Second Department has already ruled on this issue, the First Department has not. While this Court is mindful of the need to screen out cases of minor injuries, premature birth cannot be viewed as the type of insignificant injury the No-Fault regime sought to weed out nor can the medical conditions resulting from the premature birth be dismissed outright as insignificant. The Court finds that generally speaking, where there is adequate evidentiary support, a premature birth precipitated by a motor vehicle accident qualifies as a "serious injury". Rather than have to tie this serious injury to another category, i.e., permanent or significant loss or limitation or the resulting disfigurement, the "loss of a fetus" category should be sufficient to stand alone as grounds for recovery. Otherwise, as demonstrated by the facts presented, an injury to a fetus whereby the gestation period is cut short by almost one third, would not be compensable. This is not a result that was intended when this category was added. It should be problematic that what disqualifies premature birth from recovery, is the fact that the fetus is born alive, that is, if a fetus survives a motor vehicle accident, there is no grounds for serious injury. This is very strange logic and if interposed into any of the other categories each serious injury threshold would be insurmountable. It makes even less sense to impose such a harsh exception upon expecting mothers given their specific vulnerability. A common sense approach to dealing with premature birth in light of the inherent seriousness of the injury should be adopted."

Read the decision here.

Social Media For The Defense

Judge Rebolini orders plaintiff to turn over Facebook postings in Melissa "G" and Garry "G" v. North Babylon Union Free School District, et. al.,(Index No: 36209/2006), March 23, 2015.

What a plaintiff posts on Social Media is fair game for the defendant to review (within limits). In this action, the plaintiff alleged she was sexually abused as  a student at defendant's school by a teacher. The defendant sought access to her "private" postings on her Facebook account.

"In support of their application, defendants submitted printed pages from Melissa's Facebook account depicting postings that were accessible to the general public on May 20, 2014, including photographs of Melissa engaged in a variety of recreational activities and "activities with her boyfriend . . .; at work in a veterinary hospital; rock climbing; and out drinking with friends." Toward the top of each page is a notation, "To see what she shares with friends, send her a friend request." Defendants also submitted printed pages from an account that appears to be jointly held by Melissa and her boyfriend. Defendants assert that the public content on plaintiff's Facebook pages, as well as the content available only to "friends", are material and necessary to the defense of plaintiffs' claims. In this regard, defendants note that plaintiff Melissa testified at her deposition on December 9, 2011 that she has "serious trust issues with everyone" and that she suffers from anxiety attacks. It was also her testimony that she was "struggling" in her relationship with her boyfriend and that she had "no trust" concerning others."

Judge Rebolini ruled, "To warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account - that is, information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims" Insofar as plaintiffs claim as part of their damages that Melissa suffers a loss of enjoyment of life, among other things, the scope of relevant information subject to disclosure is broad. Compensation for loss of enjoyment of life addresses the loss of an individual's capacity to enjoy life by ". . . participating in recreational activities, and drinking in the many other pleasures that life has to offer . . .(McDougald v Garber, 73 NY2d 246, 258, 536 NE2d 372, 538 NYS2d 937 [1989, Titone, J., dissenting]). As defendants have shown that plaintiff's public Facebook pages contain photographs of Melissa engaged in a variety of recreational activities that are probative to her damage claims, it is reasonable to believe that other portions of her Facebook pages may contain further evidence relevant to the defense (see Richards v Hertz Corp., 100 AD3d 728, 953 NYS2d 654 [2d Dept 2012])."

Read the decision here.