Archives: News

Luna v. Spadafora (2015 NY Slip Op 03134)

Our partner, Michael J. Boranian, who heads the medical malpractice department at Montfort, Healy, McGuire & Salley LLP, was recently successful in the defense of an action brought against a major area hospital. Mr. Boranian represented the hospital both at trial in the Suffolk County Supreme Court and in the Appellate Division, Second Department, which last week affirmed the trial court’s dismissal of the complaint.

The case concerned a cancer patient who asserted that the hospital should be held vicariously liable for the alleged negligence of her private treating physician. The plaintiff alleged that, due to a negligent delay in diagnosing her condition, the cancer spread, her chance of cure was diminished and she was forced to undergo more extensive surgery than would have been the case had the diagnosis been timely made. The trial court ruled that the hospital could not be held vicariously liable for the actions of the private treating physician because his treatment of private patients, such as the plaintiff, was not within the scope of his employment.

The plaintiff attempted to convince the trial court that various contractual provisions and tangential contacts the physician had with the hospital indicated that the hospital had control over the physician’s actions when it came to treating patients. Despite these provisions and contacts, the trial court determined, upon essentially undisputed evidence, that the clear language of the contract established that treatment of patients was not within the scope of the employment agreement and, therefore, the hospital could not be held vicariously liable.

On appeal, the Appellate Division, Second Department affirmed, holding that the complaint against the hospital was properly dismissed.

Click here to read the court’s full decision.

Christopher Cafaro, a partner with the firm, has been elected as a member of the Federation of Defense & Corporate Counsel (FDCC). The group’s Board of Directors elected Mr. Cafaro based upon the recommendation of its Admissions Committee.

FDCC is composed of recognized leaders in the legal community who have achieved professional distinction and is dedicated to promoting knowledge, fellowship and professionalism of its members as they pursue the course of a balanced justice system and represent those in need of a defense in civil lawsuits.

Click here to read Christopher Cafaro’s Bio.

Montfort, Healy, McGuire & Salley LLP were of counsel to a police officer’s widow in a recent Eastern District decision of first impression in her favor. This is the first case in which it was decided that a retired police officer at the scene of a crime shouting “gun” assumed a duty and therefore, could be held liable for negligence.

The case concerned an action brought by a plainclothes Nassau County Police Officer’s widow for the wrongful death of her husband who was shot by friendly fire while responding to an incident involving a dangerous emotionally disturbed person. Police were responding to a call regarding a young man who was walking through the neighborhood of Massapequa Park with knives in both hands and appeared to be threatening to the safety of the public. At the scene, the young man was shot when he approached police officers with the weapons.

MTA officers patrolling the neighborhood at the time proceeded to the scene to offer assistance after hearing the call over their radio. Also at the scene was a retired New York City police officer. When two members of the Nassau County Police department SWAT team arrived in plain clothes with rifles, the retired officer shouted “gun,” and an MTA officer fatally shot one of the plainclothes officers.

The officer’s widow raised claims against the MTA for excessive use of force and liability for failure to train; against the retired police officer for negligence; as also stated a claim against the suspect’s parents on the theory that they owed a duty of care to the slain officer. The court held that the suspect’s parents did not owe a duty to the plainclothes officer, but found issues of fact that precluded summary judgment as to the excessive force claim and as to the cause of action against the retired officer. The Eastern District concluded that the retired officer created a duty of care when he shouted “gun!” He should have foreseen the risk of shooting that was created when he negligently interfered with police action and negligently misidentified a plainclothes officer.

Click here to read the court’s full decision.

Fid. & Guar. Ins. Co. v DiGiacomo, 18236/10, 2015 WL 447572 [2d Dept Feb. 4, 2015]

Montfort, Healy, McGuire & Salley LLP recently secured another victory in Appellate Division, Second Department. The case concerned an appeal from an order of the Supreme Court, Suffolk County, which denied a workers’ compensation carrier’s motion for summary judgment awarding it the sum of $123, 442.47, the net lien on benefits paid to a claimant.

Background

The claimant, an employee of a home furnishing and appliance store, was injured on the job while loading merchandise into a freight elevator. His employer’s compensation carrier paid more than $189,000 in benefits.

Procedural Posture

In 2005, claimant commenced a third-party action to recover damages for injuries incurred from the accident. In response, carrier asserted a continuing lien on any recovery received from the third-party action. In 2009, the action was settled for $2,050,000. The claimant notified the carrier of the settlement and requested a copy of the workers’ compensation lien in writing. The carrier responded to the letter 5 months later, demanding full payment of the $123, 442.47 lien. In 2010, carrier commenced an action to recover the lien. The carrier argued that Workers’ Compensation Law Section 29(5) required the claimant to obtain its consent to or judicial approval of the settlement. In response, the claimant argued that the carrier unreasonably refused to consent to the settlement.

Appellate Division, Second Department Decision

The carrier moved for summary judgment, seeking an award of the net amount of the lien, $123,442.47. The claimant cross-moved for judicial approval of the settlement, arguing that judicial approval was not required because the settlement greatly exceeded the Workers’ Compensation benefits paid. The claimant also argued that the delay resulted from an earlier unopposed grant of approval, which was later vacated, and the Workers’ Compensation carrier was not prejudiced by the delay. Counsel for the claimant argued further that the claimant could not receive a permanent partial disability (PPD) classification from the Workers’ Compensation Board until the settlement was approved, and summary judgment with regard to the lien was premature because a PPD classification would affect the amount of the lien.

The Appellate Division, Second Department, observed that section 29(5) was enacted to protect a compensation carrier from paying a deficiency between the amount of a settlement and benefits paid to an injured party. The Court determined that, although section 29(5) required consent from the insurance carrier, that provision was later amended to allow for judicial approval where consent could not be obtained.

With regard to the claimant’s contention that section 29(5) approval was not required where the amount of Workers’ Compensation benefits received is less than the amount of the settlement, the Court determined that where the settlement constitutes 100% of the policy limits, approval pursuant to section 29(5) is required in order for the claimant to continue to receive Workers’ compensation benefits in the future. The Court further stated, “Any settlement is potentially less than the benefits provided by the Workers’ Compensation Law, especially where the claimant is seeking a [PPD] classification from the Workers’ Compensation Board, which could mean that [claimant] would be entitled to benefits indefinitely.”

The Court found that a judicial order may be obtained nunc pro tunc (retroactively), if three conditions are met: First, the amount of the settlement is reasonable; Second, the delay in seeking the judicial approval was not caused by the claimant’s own fault; and Third, the insurance carrier was not prejudiced by the delay. The Court found that the settlement was reasonable; found no indication of prejudice to the carrier; and determined that the delay was adequately explained. The Court further found that the lower court properly exercised its discretion when it granted the approval of the settlement.

However, the Court also determined that compensation carrier was entitled to summary judgment in the amount of $123, 442. 47 because it established its entitlement to judgment as a matter of law. The Court also determined that the claim of future PPD benefits was speculative and did not affect compensation carrier’s ability to recover the lien amount.

Click here to read the court’s full decision.

Montfort, Healy, McGuire & Salley, LLP, recently secured a victory on behalf of the insurer it represented in the Supreme Court of the State of New York Appellate Division, Second Judicial Department.

The case concerned a 2009 accident in which a vehicle occupied by a driver and two passengers was allegedly was struck in the rear by another vehicle, whose driver was insured. The driver and the passengers of the struck vehicle filed claims with the driver’s carrier, which disclaimed coverage on the ground that the contact between the vehicles resulted from an intentional act.

The driver of the struck vehicle then filed an uninsured motorist claim with her own insurance carrier, which commenced a proceeding to stay arbitration. At the Framed Issue Hearing, evidence was presented on issues raised in the underlying Petition to Stay. The issue for the Supreme Court to adjudicate was whether the disclaimer of coverage was proper. The Supreme Court concluded that it was not because the carrier had not met its prima facie burden to establish that the accident was a “staged loss.” The Supreme Court, therefore, granted the petition for a permanent stay of arbitration and directed the client to provide liability coverage to its insured.

On appeal, the Second Department found that strong circumstantial evidence had been presented at the hearing sufficient to establish the accident at issue was staged. The Second Department further found that the Supreme Court wrongly directed its focus on whether or not photographs showed damage to the striking vehicle rather than on the totality of the circumstantial evidence. Because the unrebutted circumstantial evidence established, prima facie, that the collision had been staged, the Second Department found the incident was not covered under the striking vehicle’s policy and confirmed its prior holdings that “A deliberate collision by an insured is not a covered event under an insurance policy.” Accordingly, the Second Department found that the Supreme Court erred in granting the petition for a permanent stay of arbitration.

Click here to read the court’s full decision.

Nationwide Gen. Ins. Co. v Pontoon, 123 AD3d 1040 [2d Dept 2014]

Can an automobile carrier disclaim liability coverage for injuries sustained by an innocent passenger if the accident is determined to have been intentionally caused?

Montfort, Healy, McGuire & Salley LLP recently secured another victory in the Appellate Division, Second Judicial Department. The case involved an appeal by an insurance carrier from an order of the New York Supreme Court, which directed the carrier to provide liability coverage under its policy for injuries sustained by a passenger in an alleged staged collision.

The claimant alleged he was injured while riding as a passenger in a vehicle operated by nonparty driver. The vehicle in which he was traveling sideswiped a vehicle owned and operated by an individual who was insured by the insurance carrier. The injured passenger asserted a liability claim against the carrier’s insured. The insurance carrier disclaimed on the ground that the collision was staged, and thus was the result of an intentional act and not an accident.

The injured passenger then sought arbitration under the uninsured motorist provision of the policy of the driver, which was issued by Nationwide General Insurance Company. Nationwide commenced a proceeding to permanently stay the arbitration on the ground that the insurance carrier was required to provide liability coverage for the innocent passenger’s injuries, and thus the driver was not “uninsured.”

The arbitration was temporarily stayed pending a hearing. After several conferences, a hearing date was set.

Instead of conducting the hearing on that date, however, the referee granted Nationwide’s request to permanently stay the arbitration – without a hearing – based on her determination that the insurance carrier did not intend to prove that the injured passenger was complicit in staging the alleged accident as part of a fraudulent scheme.

On appeal, Appellate Division, Second Judicial Department disagreed with the referee’s decision. It held that, if the insurance carrier were able prove that the collision was staged, then there would be no liability coverage under its policy. The insurance carrier was not required to submit evidence as to whether the injured passenger was involved in staging the collision. The Second Department reversed the court referee’s order and remitted the matter to the Supreme Court, Kings County for a hearing.

Click here to read the court’s full decision.

Govt. Employees Ins. Co. v Johnson, 123 AD3d 711 [2d Dept 2014]

Does a provision excluding uninsured motorist coverage liability to any person insured for uninsured motor vehicle coverage under another vehicle policy have effect in the state of New York?

Recently, Montfort, Healy, McGuire & Salley LLP, secured a victory in the Supreme Court of the State of New York Appellate Division, Second Judicial Department.

The case concerned an appeal by Government Employees Insurance Company (GEICO) from an order of the New York Supreme Court, which denied a petition to permanently stay arbitration of a claim for uninsured motorist benefits.

Specifically, the respondent was involved in a motor vehicle accident in which the car he was operating was struck by another vehicle. The vehicle that respondent was driving was owned by his sister, an Ohio resident, and was insured by a State Farm Mutual Automobile Insurance Company issued in Ohio. While the policy provided for uninsured motorist coverage, it excluded coverage to any individual who was insured for uninsured motor vehicle coverage through another policy, an exclusion that is permissible under Ohio law.

After the accident, respondent made a claim for uninsured motorist benefits in New York under State Farm’s Ohio policy. State Farm disclaimed coverage on the ground that respondent had uninsured motor vehicle coverage under another policy that was issued by GEICO in New York.

Respondent then sought arbitration under the uninsured motorist endorsement of his GEICO policy. Pursuant to CPLR Article 75, GEICO petitioned for a permanent stay on the basis that State Farm was the primary insurer. GEICO argued that State Farm’s exclusion of uninsured motorist coverage to individuals covered by another policy was not valid under New York Law. The Court Attorney Referee disagreed and denied the petition.

On appeal, the Appellate Division, Second Department reversed the Referee’s denial of the petition. The Court stated that Insurance Law § 3420(f)(1) required that every automobile insurance policy contain an uninsured motor vehicle endorsement. Because the attempted exclusion was not permitted under New York law, the Court concluded it should not be given effect. Accordingly, the Court granted GEICO’s petition to permanently stay the arbitration.

Click here to read the court’s full decision.