Neighboring Property Found Not to be “In Connection With” the Insured Premises
In Chiarello v. Rio, et. al. v. Encompass Insurance Company (2nd Dept. 2017), the plaintiff was injured while visiting as a guest at the defendants’ vacation home. Plaintiff was operating an off-road vehicle on a neighboring property approximately one half-mile from the defendants’ property when the vehicle tipped over and allegedly caused the plaintiff to be injured. Defendants’ insurance carrier, Encompass, disclaimed coverage since the accident did not occur on the defendants’ property and also due to the defendants’ failure to timely notify Encompass of the accident as required in the policy. The defendants brought an action against Encompass to challenge the disclaimer.
Upon completion of discovery, Encompass moved for summary judgment arguing that it did not owe a duty to defend or indemnify the defendants. In opposition, the defendants argued that the area where the accident occurred was used by them, such that it was considered an insured location as that term was defined in the subject policy.
The Supreme Court granted Encompass’s motion, finding that Encompass did not owe a duty to defend or indemnify the defendants with respect to the personal injury action. Defendants appealed. In affirming the lower Court’s decision, the Appellate Division found that Encompass established a prima facie entitlement to judgment as a matter of law by submitting deposition testimony that the vehicle was excluded under the terms of the subject policy, as it was not a recreational vehicle and it was not being operated on the defendants’ property at the time of the accident. In opposition to the motion, defendants failed to raise a triable issue of fact and the case was dismissed.
Summary Judgment Not Granted as Defendants Failed to Address All Issues in Plaintiff’s Bill of Particulars
In Adams v. Dura Cab Corp. (2nd Dept. 2017), defendants moved for summary judgment to dismiss plaintiff’s complaint, as they alleged plaintiff failed to sustain a serious injury within the meaning of Insurance Law §5102(d). In reversing the Supreme Court’s decision, the Appellate Division found that the defendants failed to adequately address the plaintiff’s claims, as set forth in the plaintiff’s bill of particulars, that he sustained a serious injury to his head, either by the permanent consequential limitation of use or significant limitation of use categories of Insurance Law 5102(d), and that he sustained a serious injury under the 90/180-day category of Insurance Law. Since those issues were not properly addressed in the moving papers, the defendants’ motion was properly denied.
Defendants Failed to Establish Entitlement to Summary Judgment Under the Emergency Doctrine
In D’Augustino v. Bryan Auto Parts (2nd Dept. 2017), plaintiffs commenced an action for injuries as a result of being struck by a vehicle owned by defendant Boyle and operated by a mechanic from defendant Bryan Auto Parts.
The defendant, Boyle, left his vehicle on the street for the purpose of getting a New York State Motor Vehicle Inspection at Bryan Auto Parts. After Boyle gave the auto shop the keys to his vehicle, an employee of the shop – defendant Rattray, a shop mechanic – was instructed to drive the Boyle vehicle into the shop. It is undisputed that Rattray was driving the Boyle vehicle toward an intersection and he failed to stop at a stop sign, wherein he struck a vehicle driven by the plaintiff.
The injured plaintiff had the right of way to pass through the intersection, which had no traffic signal on the street in which he was traveling. Following the commencement of the action, defendants Bryan Auto Parts and Rattray moved for summary judgment dismissing the complaint and all cross-claims. In support of their motion, they submitted a transcript of the mechanic and driver, Rattray, wherein he testified that as he approached the stop sign, he pressed the brake pedal, but it went to the floor. Despite pumping the brake ten, fifteen, twenty times, the vehicle did not stop. As such, the defendants invoked the Emergency Doctrine defense.
Defendant Boyle also moved for summary judgment, dismissing the complaints asserted against him on the grounds that it was both not his fault and that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102 as a result of the accident. The Supreme Court granted the motion of Bryan and Rattray and denied Boyle’s motion. The plaintiff’s appealed and Boyle’s cross-appealed.
As a general matter, the driver traveling on a roadway controlled by a stop sign who fails to yield the right of way is in violation of Vehicle and Traffic Law §1142(a) and is negligent as a matter of law. Under the Emergency Doctrine, however, when the driver is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the driver to be reasonably so disturbed that the driver must make a speedy decision without weighing alternative conduct, the driver may not be negligent if the actions taken are reasonably prudent under the Emergency Doctrine’s context. In an automobile accident, when the driver of the offending vehicle lays blame for brake failure, it is incumbent upon that party to show that the brake problem was unanticipated.
The Appellate Division held that Bryan and Rattray failed to establish their prima facie entitlement to judgment as a matter of law, since their own submissions failed to eliminate triable issues of fact as to whether the Emergency Doctrine applied, and if so, whether Rattray acted reasonably under the circumstances of the emergency. Therefore, in reversing the Supreme Court’s decision, the Appellate Division denied their motion for summary judgment. The Appellate Division affirmed that the Supreme Court properly denied Boyle’s motion for summary judgment since he failed to establish that he properly maintained the brakes in his vehicle and he failed to meet his prima facie burden that the plaintiff did not sustain a serious injury under §5102 of the Insurance Law.
Appellate Division Modifies Jury’s Award of Damages
In Ahumada v. Drogan, (1st Dept. 2017), the trial Court set aside a jury verdict which awarded plaintiff $500,000 for past pain and suffering, and $250,000 for future pain and suffering, as it found that the award was against the weight of the evidence and excessive. The trial court, consequently, lowered the verdict to $250,000.
The Appellate Division found that the trial Court properly directed the verdict in plaintiff’s favor, as he had suffered a fractured fibula which constituted a serious injury under New York State Insurance Law §5102(d). However, the Appellate Division found that the Supreme Court’s decision that the verdict should be, at maximum, $250,000 was incorrect. As such, the Appellate Division affirmed the jury’s verdict, but reduced the award for past pain and suffering to $300,000, and future pain and suffering to $150,000.
Prepared by Thomas P. Kawalec, Esq.