In Kotsovska v. Liebman, the New Jersey Supreme Court grappled with the question of whether the doctrine of primary jurisdiction deprives the Superior Court of jurisdiction under the Workers’ Compensation Act (“WCA”) to determine a worker’s employment status in cases where the defendant raises the exclusive remedy provision of the WCA as an affirmative defense to the worker’s Complaint. Scrutinizing the WCA, prior precedent and the doctrine of primary jurisdiction, the Court held that in cases where a genuine dispute exists as to the employment status of the worker — whether an employee or independent contractor — and the worker
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NJ Appeals Court Rules Mold in Attic Caused by Condensation Not Covered by Mold Endorsement
The New Jersey Appeals Court recently addressed the interplay of a mold exclusion in a homeowners insurance policy with a Mold Endorsement that allowed limited coverage for mold damage caused by “fortuitous direct physical damage or destruction.” In Kavesh v. Franklin Mutual Insurance, the Court examined the language of the mold exclusion of the policy, as well as the Endorsement providing limited coverage and found the provisions to be unambiguous. Based on the facts of the claim and the mold damage to the insureds’ home, the court held that Plaintiffs failed to prove that the mold growth was a result
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NY Top Court Affirms Bright Line Rule of Strict Liability for Injuries Caused by Dogs
Addressing two separate, but similar lawsuits involving bicycle collisions caused by dogs, a divided New York Court of Appeals held that the dogs’ owners could not be sued for negligence based on the owners’ inadequate supervision of the animals. In Doerr v. Goldsmith and Dobinski v. Lockhart, Plaintiffs were injured when they collided with unleashed dogs while riding their bicycles. Relying on longstanding precedent, the Court determined that Plaintiffs could not bring negligence causes of action against the dogs’ owners, since the only basis for suit under the law was a theory of strict liability by showing an animal’s vicious
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NJ Court Denies Insured’s Attempt to Reform Policy Post-Accident to Increase UI/UIM Benefits
In Drysten v. Chiesa and USAA, the Appellate Division of the New Jersey Superior Court found that the insurer was immune from suit under the New Jersey statute governing immunity for insurers based on the insured’s election of motor vehicle coverages. While the insured attempted to gain additional benefits by having the policy reformed post-accident, the court determined that the insurer’s strict compliance with the statutory requirements and the insured’s breach of her duty to read insurance documents and alert the insurer as to any inconsistencies in coverage, resulted in a finding of immunity for the insurer. Plaintiff was injured
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Pennsylvania Supreme Court Finds Coverage Under Employer’s Liability Exclusion of CGL Policy Due to Ambiguous Meaning of “The Insured”
The Pennsylvania Supreme Court recently addressed the interpretation of an employer’s liability exclusion in a commercial general liability policy to determine its scope in excluding coverage when the policy applies to more than one insured. In Mutual Benefit Insurance Company v. Politsopoulos, the Court determined that the term “the insured” does not signify “all insureds” in cases where a commercial general liability policy makes varied use of the definite term “the insured” and the indefinite term “any insured.” The Court concluded that the use of the definite and indefinite articles created an ambiguity, such that “the insured” may be reasonably
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New York Court Rejects Plaintiff’s Attempt to Circumvent Assault & Battery Exclusion of CGL Policy
Most commercial general liability policies issued to bars and restaurants specifically exclude coverage for bodily injury arising out of an assault and battery. In order to avoid this limitation, Plaintiffs often try to trigger coverage by alleging that the insured’s negligence was the cause of the injury—not the actual assault and battery. This strategy may work in some jurisdictions, but it won’t work in New York. Following precedent set by the New York Court of Appeals in 1995, the Supreme Court of New York County held in Hermitage Insurance Company v. Beer-Bros, Inc. that the insurer had no duty to
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Pennsylvania Federal Court Finds That Illegal Passing Does Not Trigger the Criminal Act Exclusion of an Accidental Death Policy
In Locklear v. Sun Life Assurance Company of Canada, the United States District Court for the Middle District of Pennsylvania held that an insurer could not use alleged vehicle code violations to trigger the “criminal act” exclusion of an accidental death policy. The insurer denied benefits to the widow of a man who was killed in a car accident when the motorcycle he was riding collided with a truck while he was attempting to pass a construction vehicle in a no-passing zone. Plaintiff brought suit under ERISA after the insurer denied her claim and she exhausted all her administrative appeals.
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Federal Court In Kentucky Refuses to Allow Insurer to Assert Reverse Bad Faith Claim
This week the United States Sixth Circuit Court of Appeals declined to allow State Auto Property & Casualty Co. to assert a reverse bad faith claim against a policyholder who admitted to submitting a fraudulent insurance claim after conspiring to burn her own house down. The federal appellate court concluded that Kentucky law does not recognize an action by an insurer against an insured for reverse bad faith. Fortunetly for insurers, many other states and jurisdiction (such as Pennsylvania for example) do recognize a reverse bad faith cause of action action, which allow insurers to recover their costs and expenses,
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The Inadmissibility of Expert Net Opinions Addressed by Another New Jersey Court
Relying on the rationale set forth in the recently decided case of Townsend v. Pierre (see post of March 13, 2015), the Appellate Division of the New Jersey Superior Court affirmed the summary judgment dismissal of a personal injury action in Deniese v. Site Service Group Inc. (unpublished), on the basis that plaintiff’s expert rendered an inadmissible net opinion regarding the defendant’s alleged negligence. Mr. Deniese was injured when he slipped and fell into a row of shrubs while brushing snow from his car, which was parked in front of a bank. He sued the bank’s snow removal and landscaping
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New York Court Finds No Duty to Defend or Indemnify Under Additional Insurance Endorsement Where Injury Did Not Arise From Leased Premises
Slip and falls on sidewalks in front of leased premises often raise questions of who’s responsible, landlord or tenant, and whose carrier should respond in damages. In Leading Ins. Group Ins. Co., Ltd. v. Argonaut Great Cent. Ins. Co., 2015 NY Slip Op 50574 (April 22, 2015), the Supreme Court of New York for Westchester County said the answer lies in the lease and whether the sidewalk is part of the leased premises. In Leading, Hartsdale, the owner of a building leased to tenants for use as a dry cleaner, was sued by a woman, Kellner, who slipped and fell
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