Académique Documents
Professionnel Documents
Culture Documents
2009
Volume 1
Issue 4
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State Liable for Where Insurer is put on Notice of Accident from No Fault Filing, It must Demonstrate
Department of Prejudice in Order to Disclaim on Late Notification of Supplemental Uninsured
Corrections Imposition
of post release
Motorist Filing
supervision
Policy Exclusions for In Bhatt v. Nationwide Mutual Insurance Company, 61 A.D.3d 1406 (4th Dept, 2009), the Appellate
Construction work Division held that an insurer must establish that it was prejudiced as a result of the insured’s late notification
does not preclude of her claim for Supplemental Uninsured Motorist insurance (SUM). Plaintiff insured Sukeerti Bhatt
recovery for building commenced an action seeking to recover SUM benefits under an automobile insurance policy issued to her by
damage on adjacent lot National Mutual Insurance. Under the SUM endorsement, plaintiff was required to give defendant notice of a
claim “[a]s soon as practicable.” Plaintiff promptly notified defendant of the motor vehicle accident, which
Recovery under Labor occurred on May 22, 2000, and she filed a claim for no-fault benefits on July 20, 2000. On April 7, 2003,
Law §241(6) plaintiff gave defendant notice of her claim under the SUM endorsement. Defendant disclaimed coverage on
Expanded the ground that plaintiff failed to provide timely notice of the SUM claim. In affirming the lower court’s
decision to deny the defendant’s summary judgment motion dismissing the complaint, the Fourth Department
Presumption Against relied on precedent set by the Court of Appeals in Rekemeyer v. State Farm Mutual Auto Insurance Co., 4
Suicide does not N.Y.3d 468 (2005). In quoting Reckemeyer, the Court followed the principle “[W]here an insured previously
preclude a jury a gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM
finding of suicide claim before it may properly disclaim coverage.” Id at 496. In applying this rule to the current matter, the
Appellate Division found that it was clear the plaintiff timely notified the defendant of the accident and, within
a reasonable time thereafter, filed a claim for no fault benefits. Nationwide Mutual failed to prove that it was
prejudiced in any manner by the plaintiff’s delay in providing notice of the SUM claim.
Insurer’s 62 day Delay in Disclaiming Coverage was Unreasonable
indemnify the general contractor for losses that are solely the result of the
general contractor’s negligence and/or intentional acts. In an attempt to
hedge their bet, general contractors will sometimes rely on qualifying
language such as “to the fullest extent permitted by law” to salvage what
might otherwise be an unenforceable provision.
TCSA Itri Brick Court did not answer the question of whether Section 5-322.1
precluded a negligent contractor from enforcing a partial indemnification
provision that did not purport to indemnify the contractor for its own
negligence.
Critical to the Court’s decision was the fact that the contractual
indemnification provision at issue was not a broad form indemnification,
seeking to indemnify the contractor for its own negligence. Had it been,
the Judlau Court would likely not have upheld the provision. Thus, by
pursuing indemnification that was limited to the extent losses were caused
by the negligence of the subcontractor, the general contractor was able to
secure partial indemnification from the subcontractor and pass the Court’s
scrutiny.
State Liable for Department of Corrections’ Administrative Imposition of Post-Release
Supervision
Court of Appeals Determines that Policy Exclusions for “Earth Movement” and “Settling
or Cracking” Did Not Unambiguously Exclude Recovery for Damage to Building that
Resulted from an Excavation on an Adjacent Lot.
In Pioneer Tower Owners Ass'n v State Farm Fire & Cas. Co. (12 NY3d 302 [April 30, 2009], the owner
of a condominium apartment building claimed that a number of cracks, separations and open joints were caused by
work that was in progress on the lot next door. He submitted a claim for the damage to State Farm Fire & Casualty
Company, which had insured the building against “accidental direct physical loss.” State Farm disclaimed
coverage, relying on the “earth movement” exclusion in its policy.
State Farm argued that the literal language of the exclusions describes what happened here, because the
loss was caused by the movement of earth, and specifically by its “sinking” and “shifting” beneath plaintiff's
building. And, the settling or cracking exclusion applies, in State Farm’s view, because the loss consisted of
cracking that was directly and immediately caused by the settling of the building. Plaintiff's own engineer's report
stated “that the left wing of the building had settled.”
The Court asserted, “[t]his case is a close one, but we cannot say that the event that caused plaintiff's loss
was unambiguously excluded from the coverage of this policy.”
Court of Appeals expands Recovery under Labor Law § 241(6) and Abrogates Previous
Rulings
On May 12, 2009, the Court of Appeals rendered an opinion, in Misicki v Caradonna, WL 1286012 [NY,
2009]), that abrogated Phillips v City of New York (228 A.D.2d 570 [2d Dept 1996]; Thompson v Ludovico (246
AD2d 642 [2d Dept 1998]; Anarumo v Slattery Assoc. (298 AD2d 339 [2d Dept 2002]; Hassett v Celtic Holdings,
7 AD3d 364 [1st Dept 2004]; and Fairchild v Servidone Constr. Corp. (288 AD2d 665 [3d Dept 2001]).
Traditionally, the Court of Appeals has distinguished between Industrial Code provisions that merely
reiterate the common-law standard of care and those that mandate compliance with concrete specifications. Only
the latter impose a non-delegable duty on an owner or general contractor who does not actually control the injured
party's work, giving rise to a Labor Law § 241(6) claim. In Ross v Curtis-Palmer Hydro-Elec. Co (81 NY2d 494,
504 [1993]), the Court of Appeals held that a regulation that imposed a “duty to provide materials and equipment
of such kind and quality as a reasonable and prudent person experienced in construction operations would require
in order to provide safe working conditions” was too general to create a non-delegable duty.
In Misicki, the Court interpreted section 23-9.2(a) of the Industrial Code, which provides, in pertinent
part, “[a]ll power-operated equipment shall be maintained in good repair and in proper operating condition at all
SALZER & ANDOLINA P.C.
times. Sufficient inspections of adequate frequency shall be made of such equipment to insure such maintenance.
Upon discovery, any structural defect or unsafe condition in such equipment shall be corrected by necessary
repairs or replacement.” Focusing on the third sentence of section 23-9.2(a), the Court held that it imposed an
affirmative duty on employers to “correct[ ] by necessary repairs or replacement,” “any structural defect or unsafe
TREVETT CRISTO
condition” in equipment or machinery “[u]pon discovery,” or actual notice of the structural defect or unsafe
ATTORNEYS AT LAW
condition. As a result, the Court, contrary to previous appellate rulings, concluded that the third sentence of
section 23-9.2(a) “mandates a distinct standard of conduct, rather than a general reiteration of common-law
principles, and is precisely the type of ‘concrete specification’ that Ross requires.” Thus, an employee who claims
to have suffered injuries proximately caused by a previously identified and unremedied structural defect or unsafe
condition affecting an item of power-operated heavy equipment or machinery has stated a cause of action under
Labor Law § 241(6) based on an alleged violation of 12 NYCRR 239.2(a).
TCSA
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