Metro Psychological Servs., P.C. v. 21st Century N. Am. Ins. Co., 2015 NY Slip Op 50470, decided April 7, 2015, involved an action by a provider to recover assigned first-party no-fault benefits. The defendant insurer moved for summary judgment on the grounds that it timely denied plaintiff’s claim based on its failure to appear at a scheduled examination under oath (EUO). The insurer presented evidence that it mailed the EUO scheduling letters, the date, place and time of the EUOs were not unreasonable and that plaintiff failed to appear. Plaintiff opposed the motion on the grounds that there was no
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New York Court Denies Defendant’s Motion for Suimmary Judgement Because They Failed to Establish Lack of Notice of Defective Golf Path
In Valverde v. Great Expectations, LLC, the New York Appellate Division, First Department denied summary judgment to defendants for failing to make a prima facie showing that they neither created nor had actual or constructive notice of an allegedly defective golf course path. Ms. Valverde, a passenger in a golf cart, was injured when she was thrown from the golf cart while on a golf course owned by Great Expectations. Defendants filed summary judgment seeking a dismissal of Ms. Valverde’s claim. In support, they offered expert testimony regarding the non-defective condition of the path. However, because defendants’ expert did not
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New Jersey Trial Court Rejects Application of “Continuous Trigger” Theory to Construction Defect Claim That Manifested Before Policy Period
The Superior Court, Law Division, of Hudson County, New Jersey has held that a claimant is not entitled to seek coverage under a liability insurance policy pursuant to a “continuous trigger” theory for damage that occurred prior to the policy period. Cypress Point Condominium Ass’n v. Selective Way Ins. Co. concerns a lawsuit filed against numerous contractors involved in the construction of a condominium complex. The lawsuit contended that water infiltration occurred at the windows of condominium units. One of the contractors procured insurance with the defendant insurer in between the time the contractor had been named in an amended
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Pennsylvania Superior Court Upholds $2 Million Insurance Bad Faith Verdict
The Pennsylvania Superior Court has upheld a verdict of over $2 million against a title insurer for bad faith claims handling. Davis v. Fidelity Nat. Title Ins. Co. concerned the purchase of property for construction of a housing development. After another individual claimed to be the owner of the property, the purchaser filed a claim under his title insurance policy. Nearly two years later, the insurer acknowledged a problem with the title and promised resolution of the matter. Over three years later (and nearly five years after the claim was filed), the insurer resolved the claim by purchasing the property
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New Jersey State Court Holds That Flood Sublimits Do Not Apply to Sandy Storm Surge Claims
The Superior Court, Law Division, of Essex County, New Jersey has held that a flood coverage sublimit does not apply to damage arising from Superstorm Sandy. In Public Service Enterprise Group v. Ace Insurance, the utility Public Service Enterprise Group (“PSEG”) was insured under policies with total coverage limits of $1 billion. The policies did not contain a sublimit for named windstorms, but did have a $250 million sublimit for flood damage, as well as a $50 million sublimit for damage within two designated flood zones. In its motion for summary judgment, PSEG contended that the flood sublimits should not
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Eastern District of Pennsylvania Holds That Alleged Delay Does Not Preclude Insurer From Seeking Declaratory Judgment After Timely Reservation of Rights
The United States District Court for the Eastern District of Pennsylvania has held that absent prejudice to the policyholder, an insurer that timely reserves its right to deny liability coverage is not precluded from seeking a declaratory judgment, even if the declaratory judgment is filed well after the insurer began providing a defense. Nationwide Prop. and Cas. Co. v. Shearer concerned a lawsuit alleging that several policyholders and other property owners discharged sewage and wastewater onto the underlying plaintiff’s neighboring property. The defendant insurer advised all of the policyholders that it would be defending the matter under a reservation of
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New Jersey Supreme Court to Decide Liability of Homeowners’ Associations for Icy Sidewalks
The New Jersey Supreme Court has agreed to consider whether homeowners’ associations and maintenance contractors may be held liable for failing to clear ice and snow from HOA-managed sidewalks. In Qian v. Toll Brothers, the Court is expected to examine two lower court decisions holding that HOAs and contractors were not liable for such injuries. In reaching these decisions, the lower courts relied upon Luchejko v. Hoboken, in which the Supreme Court declined to extend case law holding commercial property owners liable for injuries caused by defective sidewalks to owners of residential properties. Plaintiff’s counsel in Qian contends that liability
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New Jersey Federal Court Dismisses Sandy Homeowners’ Claim as Untimely
In a lawsuit regarding coverage disputes for damage caused by Superstorm Sandy, the United States District Court for the District of New Jersey has dismissed claims against a homeowners’ insurer for the failure to comply with the policy’s suit limitation clause. The Court In Brown v. State Farm Ins. Co. also dismissed claims against an independent flood insurance adjusting company as preempted by FEMA, as well as claims against an insurer based upon evidence that the flood policy was directly issued by FEMA. Clark & Fox attorney Erin Nulty represented the independent adjusting company in this matter. Brown concerned claims
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Clark & Fox Obtains Dismissal of Coverage Action Pursuant to Suit Limitation Clause
The Supreme Court of Nassau County, New York has granted a Motion to Dismiss filed by Clark & Fox in an insurance coverage action filed in contravention of the subject policy’s suit limitation clause. John Clark, Georgia Foerstner, and Patrick Reilly litigated this matter on behalf of Certain Underwriters at Lloyd’s, London. Bachir v. Lloyd’s of London concerned a claim regarding a fire loss to a restaurant that was denied due to the late payment of a policy premium. The policy in question contained a suit limitation clause requiring any actions to be brought within two years of the loss.
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New Jersey Supreme Court Prohibits Introduction of Expert Opinions That Contradict Facts
In a unanimous decision, the New Jersey Supreme Court has reaffirmed its prohibition on “net” expert opinions that are contradicted by the facts. Townsend v. Pierre concerns a fatal automobile collision. The defendants included the owner of property at the intersection where the accident occurred, as well as the property lessee. The plaintiff contended that overgrown shrubbery blocked the view of oncoming traffic at the intersection. At her deposition, the defendant driver acknowledged that while her view of the intersection was initially blocked by the shrubbery, she edged forward until she had a clear view while turning. A passenger in
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