Montfort, Healy, McGuire & Salley LLP

New York Liability and Personal Injury Defense Attorneys

Second Department Denies Facebook Evidence in Medical Malpractice Case

On April 26th, the Second Department decided that evidence from the defendant’s Facebook page was not admissible unless the person who discovered it was available to be deposed. The case involved a medical malpractice action against an orthopedist that was filed in 2004. During the discovery portion of the case, the plaintiff was deposed three times, after which the plaintiff filed a note of issue.

The defendant moved to vacate the note of issue or, in the alternative, for permission to conduct an additional deposition of the plaintiff. The defendant supported the motion with “newly discovered evidence.” The Supreme Court adjourned the motion and required the plaintiff to appear for a further deposition.

When the plaintiff was once again deposed on February 4, 2014, the defendant presented him with the new evidence from what they believed was his Facebook account. The printouts from Facebook included statements that the plaintiff talked about going out to a bar, having a great workout, and crossing the Williamsburg Bridge numerous times. The plaintiff did not deny he had a Facebook account. However, he did deny that he made those statements.

After the deposition, the plaintiff demanded the name of the person who obtained the printouts and sought permission to depose that person. The plaintiff further moved to strike the defendant’s answer for a failure to disclose the printouts and failure to comply with discovery deadlines. Most importantly, the plaintiff moved to preclude the Facebook statements from being offered at trial and to have the transcript of the fourth deposition suppressed.

The Second Department reviewed the case and first held that, since the plaintiff consented to the additional deposition, he could not now complain about the procedural defects in the request for the deposition. Therefore, the suppression of the transcript was denied.

Secondly, the Court upheld the motion court’s decision not to strike the answer. The Court noted that the drastic remedy is appropriate only when there is a clear showing that the defendant’s failure to comply with discovery demands was willful and contumacious. The Court found that, under the circumstances, the plaintiff failed to show that the defendant acted willfully in failing to timely comply with certain discovery demands.

Lastly, the Second Department overturned the Supreme Court’s ruling that allowed the defendant to offer the printouts as evidence at trial. The Court held that, unless the person who obtained the printouts is first produced for a deposition, the evidence cannot be offered at trial. The Court recognized that, without the opportunity to depose the person who obtained the printouts, there would be no other means to prove or disprove their authenticity.

A serious medical malpractice claim can threaten the continued success of a healthcare professional and medical facility. The experienced attorneys at Montfort, Healy, McGuire & Salley LLP provide thorough and effective medical malpractice defense to medical professionals, hospitals and insurance companies throughout the New York City metropolitan area and across the nation. To discuss options for medical malpractice defense, contact us at (800)-240-4082, or fill out our contact form here.

To read the full case decision, click here.

Nassau Supreme Court Hears Case Regarding “Necessary Emergency Health Services”

When an insured person gets injured as a result of operating a motor vehicle in an intoxicated condition, the insurer may question whether they can deny personal injury protection to the negligent driver. Prior to 2011, New York no-fault insurers had the ability to deny paying out the coverage benefits. However, in January 2011, New York State amended Insurance Law § 5103(b)(2) which required the insurers to cover payments for “necessary emergency health services rendered in a general hospital.” While the amendment has been the topic of several arbitration settlements, the case of St. Barnabas Hospital v. Government Employees Insurance Company was the first that has made its way to a New York court.

The Nassau Supreme Court case involved an individual injured in an accident in which their blood-alcohol content was .15%. The toxicology report taken by the hospital also showed the individual had THC in her system at the time of admission to the hospital room. The Hospital submitted a bill for hospital services to the insurer in the amount of $43,212.59. After learning of the toxicology report, the insurer requested verification in the form of a breakdown of which hospital services constituted emergency health services. In doing so, the insurer requested a “breakdown of charges up to where the patient was found to be stabilized.”

The Hospital refused to provide the documentation for the insurer because they claimed the breakdown was not required under insurance or no fault law. They responded by stating that the entirety of the services provided were “necessary emergency health services.” After the insurer failed to pay the bill, the Hospital commenced the action. The insurer moved for summary judgement under Insurance Law § 5103(b)(2), claiming that they were not going to pay the bill until they could determine the proper amount of “necessary emergency health services.”

The insurer provided evidence of a letter issued by the New York State Insurance Department which sought clarification of the amendment to Insurance Law § 5103(b)(2). In the letter, the Insurance Department defined “necessary emergency health services” as “sudden pain or injury that is treated until the patient is stabilized, generally in the emergency room.”

In reviewing the medical bill, the court recognized that the patient was admitted to the hospital for approximately three days. Because the insurer provided sufficient proof that the patient was intoxicated by alcohol and marijuana, the court ruled that the insurer was entitled to request information regarding the breakdown of services. The court further ruled that the hospital was to provide the insurer with a breakdown of all services, and the insurer was to assess when the no-fault coverage ceases, if at all. Following the assessment, the insurer must pay the appropriate amount of the claim.

Insurers who are seeking to argue under this particular Insurance Law have the burden of proving: (1) that the insured was intoxicated or impaired by drugs; AND (2) that the intoxication or impairment was a proximate cause of the accident. A failure to prove both elements may undermine a “necessary emergency health services” verification request. While the court has not yet seen many of these cases, some arbitration matters have dismissed cases for a failure to prove both elements.

Since 1950, the law firm of Montfort, Healy, McGuire, & Salley LLP has represented clients in insurance coverage disputes in Nassau, Suffolk, Queens (Long Island), Kings (Brooklyn), New York (Manhattan), Richmond (Staten Island), Bronx and Westchester counties. Our lawyers have experience representing insurance companies and individuals in insurance coverage disputes related to construction accidents, product liability, motor vehicle accidents, premises liability, personal injury defense, medical malpractice, and hospital liability. If you are seeking assistance regarding an insurance coverage dispute, contact us at (800)-240-4082, or fill out our contact form here.

To read the full case decision click here.

“Drastic” Sanctions Against Defendant in Medical Malpractice Case Issued by Second Department

In a 3-1 decision, the Appellate Division Second Department decided that a defendant’s “contumacious” conduct can lead to not only monetary sanctions, but also the striking of their answer. While the lone dissenting judge argued that the sanctions were “drastic,” the majority held that the nature and degree of penalty lies within the sound discretion of the Court.

The decision came in a medical malpractice action that arose from ophthalmological surgery performed in 2007. The plaintiff, who is the administrator of the estate of the decedent, alleges that prior to the surgery, a surgical booker working at the Hospital gave the decedent a history and physical form to provide to his internist. The form was to obtain medical clearance for the surgery, and informed the internist that the surgery was going to take place under local anesthesia. The internist wrote on the form that the decedent was a “moderate risk for surgery,” and advised that he was in satisfactory condition for the local/standby anesthesia. The procedure was then performed, lasting approximately seven hours, and was instead conducted under general anesthesia. As a result of receiving general anesthesia, the decedent allegedly suffered a massive stroke and died.

The action was commenced against two surgeons who were present during the surgery, the Hospital, and a nurse who assisted the anesthesiologist. The bills of particulars alleged that the surgeons and the Hospital negligently failed to obtain proper medical clearance for the surgery, used the wrong clearance form, and failed to inform the internist that the surgery was going to be performed under general anesthesia.

During discovery, the plaintiff demanded that the defendants produce the names of all surgical bookers who were working in the Hospital at the time surrounding the surgery. After failing to respond to the request, the Supreme Court, Kings County directed them to comply. In response, the attorney for the defendants disclosed the name of two bookers and claimed that they had left their employment with the Hospital. The plaintiff’s counsel later learned that one of the defendants was, in fact, still working at the Hospital. The defendant’s attorney claimed the earlier representation was an honest mistake.

Upon further investigation, the plaintiff’s counsel learned that there was also another surgical booker who was working at the Hospital at the time in question. Questioning the defendant’s good faith compliance with discovery, the Supreme Court held a sanctions hearing. The attorney for the defendants claimed this time, that the failure was an “oversight.” Subsequently, the plaintiffs discovered that the defendant’s attorney had interviewed the additional surgical booker not listed, and confirmed that the surgical booker’s handwriting appeared on the history and physical form in question.

Additional discovery requests were also made for various forms. The attorney for the defendants claimed they could not comply with the requests. The Supreme Court issued an order directing the defendants to provide an affidavit to the same effect. After failing to comply with the order, the court advised the defendant that their answers would be stricken unless they submitted a compliant affidavit within 20 days. The defendant failed to submit a compliant affidavit.

The plaintiff then moved pursuant to CPLR 3126 to strike the answers of the defendants for failure to comply with a court-ordered discovery, and to impose monetary sanctions upon the attorney. The court found the defendant’s actions to be “inexcusable, and could only have been designed to conceal evidence and delay the proceedings.” The court decided to grant the motion only to the extent of imposing a monetary sanction upon the defendants awarding the sum of $10,000 to plaintiff’s counsel for costs and legal fees, and $5,000 from the defendant’s counsel payable to the Lawyers’ Fund for Client Protection. The Plaintiff appealed the decision seeking the defendant’s answers to be stricken.

In their decision, the Second Department agreed that the willful and contumacious character of the defendant’s conduct warranted sanctions. They noted the nature and degree of penalty imposed pursuant to CPLR 3126 lies within the sound discretion of the Supreme Court. They further noted, that the Appellate Division is vested with its own discretion to impose sanctions even in the absence of an abuse of discretion by the lower court.

The Appellate division found that the imposition of just monetary sanctions was insufficient to punish the defendants and their counsel for the willful conduct in failing to timely and fully respond to the discover demands and court orders.

Accordingly, they held the Supreme Court should have granted the plaintiff’s motion to strike the defendant’s answers. The attorney for the plaintiff stated that, after the decision of the Second Department, all but one of the defendants have agreed to settle their claims.

A serious medical malpractice claim can threaten the continued success of a healthcare professional and medical facility. The experienced attorneys at Montfort, Healy, McGuire & Salley LLP provide thorough and effective medical malpractice defense to medical professionals, hospitals and insurance companies throughout the New York City metropolitan area and across the nation. To discuss options for medical malpractice defense, contact us at (800)-240-4082, or fill out our contact form here.

A copy of the full decision can be found here.

New York Medical Malpractice Lawsuit Against Hospital and Pediatricians Is Tossed out by Appellate Court

On February 23, 2017, a New York court of appeals cleared several pediatricians and a major New York hospital, of a medical malpractice lawsuit that accused them of failing to diagnose an infant’s tumor. The lawsuit was brought by the infant plaintiff’s parents. The lawsuit alleged that the doctors breached the expected standard of medical care by not discovering and treating the infant’s Medulloblastoma, a type of brain tumor, earlier.

After the five-judge appellate panel for the New York Supreme Court reviewed medical records and expert testimony submitted by the defendant pediatricians the judges stated that the evidence showed the doctors had properly assessed the infant’s vomiting symptoms. Upon assessing the infant’s symptoms, the pedestrians referred the infant to specialists at the hospital, who diagnosed the brain tumor. Both specialists were cleared of liability in the case.

The expert witness for the infant plaintiff’s family claimed that the infant’s condition could have been diagnosed and treated more successfully. In the expert witnesses’ opinion, if the pediatricians had administered a clinical neurological exam, it would have revealed signs of a tumor and led to an earlier diagnosis that would have ultimately resulted in less brain damage.

The appellate panel ruled that the expert testimony was “conclusory and speculative,” and lacked scientific facts or medical evidence to support the claim. The appellate court tossed out the lawsuit against the pediatricians and the hospital and sustained the trial court’s summary judgment from January 2016 which cleared the defendants of medical malpractice.

Medical malpractice lawsuits have the potential to hinder the success and productivity of medical professionals and the healthcare institutions they work for. Aggressive medical malpractice defense is the sometimes the only option when doctors, medical staff members, and hospitals come under a destructive claim. The New York medical malpractice lawyers at Montfort, Healy, McGuire & Salley, LLP have experience representing healthcare professionals, hospitals and insurance companies in these matters and will always put forth a strong and compelling defense on behalf of our clients. For more information or to schedule a consultation, contact our Garden City, New York medical malpractice defense law firm at (516) 747-0748.

Fraudulent Insurance Claims Revealed by Social Media

When defending against insurance claims in 2017, there are various forms of technology available to discover fraudulent claims. Through data analytics, internet-enabled automobiles, wearables and other forms of technology, insurance providers are able to discover when a claim is fraudulent. But what investigators are now starting to discover is that a claimant’s social media account could be the first place to start. Through a thorough investigation, a defendant can find valuable information to the defense of a claim. Recently, several claims have highlighted this fact.

An example of the value of social media was displayed with a claimant reporting to his insurance company that he had crashed his 2012 Corvette Stingray while exiting an Arizona freeway. The insurance company paid $61,465 for the loss of the Corvette. Research into the crash of the Corvette lead investigators to a YouTube video of the Corvette drag racing at a motorsports park. The video revealed the claimant racing the vehicle and subsequently losing control of the car and crashing into the concrete barrier. The entire crash was captured on a Go-Pro video which was attached to the car at the time of the crash. The policy did not cover damage to the car if it was involved in racing. The claimant later admitted to making the false claim and was forced to pay the entire amount of restitution back to the insurance company. The claimant was also sentenced to two years of supervised probation.

Another video posted on YouTube revealed another claimant’s fraudulent claim of a debilitating work-related injury to his arm. The veteran of the Port Authority Police Department claimed that due to a work accident, he was suffering from excruciating pain in his right arm, and a loss of mobility. He was subsequently classified as injured on duty and was given full pay for nearly two years. During this time, the officer applied and received short term disability payments from an insurer. An investigation into the officer exposed a YouTube video in which the officer was shown as a lead singer of a Brooklyn based “punk rock” group. In the video, the officer was seen moving his arm in a violent back and forth manner that was inconsistent with his claim. After showing the video to the officer, he plead guilty to fraud and was sentenced to probation.

Facebook has also been a valuable source of discovering fraudulent insurance claims. For instance, an Arizona newlywed collected $26,500 after claiming that she had lost her wedding ring while swimming in the ocean. The husband also claimed to lose his wedding ring at a later date, which peaked the interest of an investigator as to the two claims. A quick view of the wife’s Facebook page showed that she was wearing the ring that she had claimed to lose. The woman was charged and received probation. She was also required to pay back the insurance company for the claim.

Another Facebook discovery was made after a California corrections officer filed a claim for disability insurance benefits. Just 2 days after his claim, he participated in a bicycle race. A video of the race taken from his helmet was uploaded to his Facebook page, and standings of the race revealed it was in fact him. The officer was sentenced to 45 days in jail, and was required to pay $5,000 in restitution to the department.

When defending insurance claims, it is important to conduct a thorough investigation and to fully utilize the discovery process. Insurance companies, businesses, and individuals often seek the counsel of Montfort, Healy, McGuire & Salley LLP, when involved in an insurance coverage dispute. Our firm assists clients dealing with issues related to car accidents, medical malpractice, premises liability, personal injury, and municipal liability. For answers concerning questionable, fraudulent, or bad faith insurance policy claims, contact us by filling our form here.

Federal Court Decides Two New York Medical Malpractice Cases

Last week, two New York federal judges issued decisions on two medical malpractice cases involving New York Hospitals. In the case of Ongley v. Mount Sinai Health System Inc. district Judge Valerie E. Caprioni granted St. Luke’s-Roosevelt Hospital Center’s motion for summary judgement. The case involved complications following an abdominal surgery of an 85 year old man. On the same day, federal judge Paul E. Davison approved a settlement in the case of J.K. v. U.S. against St. Luke’s Cornwall Hospital after a plaintiff brought suit for improper prenatal care given by the staff.

The case of Ongley was commenced after an 85 year-old man, George Ongley, suffered damage to nerves in the upper shoulder area after undergoing abdominal aortic repair surgery at St. Luke’s Cornwall Hospital. The medical expert in the case testified that there were numerous factors that could have lead to the injury that Mr. Ongley suffered. In assessing the evidence, the judge found there was no “reasonable degree of medical certainty” that the doctor’s actions lead to his injury. The judge found the arguments to be speculative and not properly linked to the injury suffered by Mr. Ongley. In the 11-page decision judge Caprioni rejected Mr. Ongley’s arguments that the doctor’s improper transfer of his body from the operating table to a gurney were the cause of his injuries. Because the judge was unable to find any deviation from the standard of care in his transfer, the hospital’s motion for summary judgment was granted.

In the case of J.K. v. U.S. the parties agreed on, and Judge Davison signed off on, a 2.7 million dollar settlement to resolve their medical malpractice suit. The case was commenced by Aislinn Kennedy on behalf of her son, referred to in the court documents as J.K, who suffered physical and mental disabilities due to what they alleged as improper prenatal care of the doctors employed by St. Luke’s Cornwall Hospital; a federally funded health care provider. The complaint alleged that the doctors and nurses of the facility failed to determine that the Plaintiff was in premature labor and discharged her in consecutive days. After the second discharge, the Plaintiff gave birth to her son on her bathroom floor. The son now suffers from numerous permanent ailments including chronic lung disease and cognitive disabilities. Under the deal, 1.36 million will be attributed to the child’s future medical expenses, and the remainder will be paid to the family.

Each day, healthcare professionals carry out their jobs with the knowledge that the procedures they perform may not go as planned. When risk becomes reality, victims and their families often look for someone to blame. Aggressive medical malpractice defense may be the only way to save a career from destruction. At Montfort, Healy, McGuire & Salley LLP, we provide medical malpractice defense to medical professionals, hospitals and insurance companies throughout the New York City metropolitan area and across the nation. To discuss options for medical malpractice defense, contact us at (800)-240-4082, or fill out our contact form here.

New York Court of Appeals Recognizes Difficulty of Interpreting Insurance Policies

In any litigation involving an insurance policy, parties are often left with arguing over language which sometimes seems to be a different language. With that in mind, in two 2016 cases, the New York State Court of Appeals emphasized their process of evaluating an insurance policy.

The primary understanding of the courts is that the terms and conditions of an insurance policy should be construed in the same manner as any other contract. While the approach is similar to any contract dispute, the actual analysis has been proven to be much more difficult on courts when analyzing an insurance policy.

In early 2016, the New York Court of Appeals heard the case of Selective Ins. Co. of America v. County of Rensselaer, 26 NY3d 649 (2016). The case involved a dispute over the language of an insurance policy between the insurer and the County of Rensselear. After settling a civil class action for the county, the insurer argued that each class member was subject to a separate deductible, while the county argued that there should only be one deductible applied to the class. In its decision, the court first determined that like a regular contract, when looking at an insurance policy, they must first look at the plain language of the document. In this analysis, if there if there are any unambiguous provisions, they must be given their plain meaning. The court held that a term is unambiguous if it has a “definite and precise meaning, unattended by danger of misconception.” Therefore, if a term is found to be unambiguous, the court is not able to alter its meaning to promote fairness and equity. Furthermore, in reading the policy the court must construe the document to give meaning to every term. Under this analysis, the court ruled in favor of the insurer that each class member was subject to a single-deductible payment due to the unambiguous meaning of the word “occurrence.”

In May of this year, the Court of Appeals addressed the difficulty of interpreting an insurance policy again in Viking Pump and Warren Pumps v. TIG Ins. , 27 NY3d 244, 257-58 (2016). The case involved litigation between two pump manufacturers to obtain coverage for thousands of asbestos-related lawsuits. Like in Selective the court emphasized that policies should be construed to afford a fair meaning to all the language of the contract, and leaves no provision without effect. However, the court also expanded on this analysis by quoting the 2012 case of Cragg v. Allstate Indem. Corp. , 17 NY3d 118, 122 (2011), in which it stated the policy must be interpreted “according to common speech and consistent with the reasonable expectation of the average insured.” In coming to its decision, the court highlighted that if there are ambiguous terms in the policy, they must be read against the insurer.

While the rules set forth in the mentioned cases are well known to attorneys who litigate insurance policy matters, the New York Court of Appeal’s affirmation of these rules is a clear showing of the difficulties that even courts have in analyzing insurance policies. If you are an insurance company, business, or individual involved in an insurance coverage dispute, it is recommended that you seek an attorney who is experienced in handling these matters.

Since 1950, the law firm of Montfort, Healy, McGuire, & Salley LLP has represented clients in insurance coverage disputes in Nassau, Suffolk, Queens (Long Island), Kings (Brooklyn), New York (Manhattan), Richmond (Staten Island), Bronx and Westchester counties. Our lawyers have experience representing insurance companies and individuals in insurance coverage disputes related to construction accidents, product liability, motor vehicle accidents, premises liability, personal injury defense, medical malpractice, and hospital liability. If you are seeking assistance regarding an insurance coverage dispute, contact us at (800)-240-4082, or fill out our contact form here.

Comparative Fault in the Context of a Motion for Summary Judgment in Liability Claims

The Appellate Division, First Department of New York State recently determined that an individual must make a prima facie showing of freedom from comparative fault in order to obtain summary judgment on the issue of liability. The decision by the Appellate Division now aligns with the Second Department, and finally sets the standard for the trial courts within the department which were issuing conflicting decisions on the subject.

The affirmative defense of contributory fault is laid out in CPLR 1411 which reads, “a plaintiff’s contributory fault may proportionally diminish his or her recovery, but will not preclude recovery unless the plaintiff was solely at fault.” The issue was whether the court should grant a partial summary judgment as to liability, and thus leave the defense to be raised in the damages portion of the claim.

The plaintiff, Carlos Rodriguez, was a Sanitation worker for the City of New York. The plaintiff was injured on the job when one of the defendant’s sanitation trucks backed into a car, which then struck the plaintiff. The plaintiff commenced an action against the City of New York for the injuries suffered from the incident.

While the court determined the case clearly met the elements for a liability claim against the defendant, the defendant raised the issue that the plaintiff was contributorily negligent by being located in a location of the facility where he was not supposed to be when he was struck. The plaintiff moved for partial summary judgment, determining that the defendant was liable. The lower level court denied partial summary judgment as to the liability claim due to the plaintiff’s failure to prove freedom from comparative fault. The City of New York appealed this ruling.

In determining that comparative fault must be resolved prior to a ruling of partial summary judgment for liability, the court turned to the prior case of Thoma v. Ronai. The 1993 case held that a plaintiff may not be awarded partial summary judgment on the issue of a defendant’s negligence if the defendant has raised an issue of fact as to the plaintiff’s comparative negligence. Additionally, the court acknowledged the fact that in a jury trial, the jurors are given instructions as to both the defendant’s liability and the plaintiff’s liability at the same time. Therefore, any determination should be made at the same time. Furthermore, the opinion explained if the court were to grant partial summary judgment, and at a later time the plaintiff is found to be 100% at fault for causing his injuries, then the decision of the jury would conflict with the granting of the partial summary judgment in favor of the plaintiff.

The opinion notes that this decision does not preclude the granting of summary judgment when there are no facts as to the presence of the plaintiff’s comparative negligence. However, when an issue of fact as to the plaintiff’s comparative negligence has been raised, and the plaintiff has not negated the presence of comparative liability on his or her part, the plaintiff’s motion for summary judgment must be denied.

To view the case decision, click here.

Partner in an Unmarried Couple with No Biological or Adoptive Relationship to the Child has Standing as a Parent to Seek Custody/Visitation

On August 30, 2016 the New York Court of Appeals determined that the recently delineated principles of society established a need to overturn a twenty-five year old decision which previously defined the term “parent” in relation to custody and visitation rights. In reviewing two lower-level decisions, the court ruled that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing as a parent to seek visitation and custody.

Until this decision, the court had often deferred to Alison D. v. Virginia M. in determining that the term “parent” as defined by Domestic Relations Law § 70 only applied to biological or legal parents by virtue of adoption. Recently, the landscape surrounding this decision has been transformed by the enactment of same-sex marriage in New York State, and the United States Supreme Court’s holding in Obergefell v. Hodges, which recognized that the right to marry provides benefits not only for same-sex couples, but also the children being raised by those couples. Noting the change, the Court of Appeals found that the premise of heterosexual parenting and non-recognition of same-sex couples is unsustainable.

The decision was reached on two separate cases: Brooke B. v. Elizabeth C.C. and Estrellita A. v. Jennifer D. In the first case, the same sex couple jointly decided to have a child through artificial insemination of one of the parties. The parents raised the child together for two years before their relationship ended. Relying on the prior case of Alison D. and New York Domestic Relations Law § 70, the Family Court of Chautauqua County determined that the non-biological parent lacked standing to petition for visitation of the child. Upon review, the Appellate Division affirmed the decision.

Similarly, in the second case, a same-sex couple came to an agreement to have a child through artificial insemination, after which the relationship ended. However, in this particular action, the biological parent had previously sought child support from the non-biological parent. The Family Court of Suffolk County granted the biological parent’s support petition, and used that in their determination that the doctrine of judicial estoppel was sufficient to find that the non-biological parent could be granted visitation/custody. The Appellate Division affirmed the decision noting that any custody/visitation rights would not have been sufficient under Domestic Relations Law § 70 and the case of Allison D., however the doctrine of judicial estoppel was satisfied.

In a review of the cases the Court of Appeals referenced in the opinion, the court determined that a biological, non-adoptive “parent” was estopped from disclaiming parentage and made to pay child support. The Court of Appeals noted the disparity in the ability to enforce child support on such “parents,” while also denying their right to seek custody. The Court further stated, “by fixing biology as the key to visitation rights, the rule of Allison D. has inflicted disproportionate hardship on the growing number of nontraditional families across the state.” Demographic changes have transformed the elusive concept of the, “average American family,” and therefore the court gathered that the fundamental concept of “the best interest of the child“ is being affected by such changes. Consequently, the court concluded that a person who is not a biological or adoptive parent may obtain standing to petition for custody or visitation under Domestic Relations Law § 70 if they can prove by clear and convincing evidence that the parties entered into a pre-conception agreement to conceive and raise a child as co-parents.

Court Rules Car Insurance Company Can Be Reimbursed

The New Jersey Supreme Court ruled in favor of a national auto insurer which sought reimbursement from a third party after the insured was involved in a car accident. Law360 reported that GEICO was allowed to be reimbursed for medical expenses from the insurance company of a convenience store that was sued by a drunk driver who bought a bottle of vodka from the store and consumed it before getting behind the wheel.

In 2009, Karon J. Johnson was rendered quadriplegic after crashing his mother’s car. Court documents show that, at the time of the accident, he was under the influence of alcohol, despite being underage. The following year, Mr. Johnson filed for Personal Injury Protection (PIP) benefits on his mother’s $250,000 auto insurance policy which GEICO paid.

On June 2011, Mr. Johnson sued EZ Quick LLC, the convenience store’s operator, and One Beacon, which insured the store. GEICO filed claims against EZ Quick and One Beacon seeking reimbursement for Mr. Johnson’s PIP claims, but Mr. Johnson argued that GEICO should not be reimbursed until he received his $1 million settlement, citing the January 28, 2011 amendment to the New Jersey Automobile Reparation Reform Act (the “No-Fault Act”). The amendment to New Jersey’s No-Fault Act ensures that an injured party’s claim must satisfied before the no-fault insurer can be reimbursed for any medical expenses it had paid out.

A trial court ruled that, since Mr. Johnson filed for PIP benefits before the amendment to the No-Fault Act was enacted, the amendment did not apply to his claim and GEICO was allowed to be reimbursed, even if Mr. Johnson was not yet made whole. The Appellate Division upheld the lower court’s decision. The Supreme Court affirmed, stating that the amendment could not be applied retroactively, nor was it the state Legislature’s intent to have it applied in that manner.

Automobile insurance coverage disputes frequently arise as a result of a car, motorcycle or truck accidents, namely issues related to accidents involving multiple insurance carriers whenever one of the carriers disputes coverage. The experienced attorneys at Montfort, Healy, McGuire & Salley LLP handle insurance defense litigation matters in the state of New York, specifically in Nassau, Suffolk, Queens, Kings, New York, Richmond, Bronx and Westchester Counties. For more information, visit

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