Undefined Policy Term Leads to Summary Judgment for Plaintiffs
In Smith v Safeco Ins. Co. of Am., 2018 NY Slip Op 02055 (4th Dep’t Mar. 23, 2018), the plaintiffs brought suit seeking to recover insurance proceeds after their home was damaged by water following a water main break on their street. In their amended complaint, the plaintiffs asserted a cause of action against the defendant for breach of contract. The plaintiffs moved for partial summary judgment on liability with respect to that cause of action by seeking a determination that “[defendant] must cover [plaintiffs’] loss.” The defendant cross-moved for summary judgment on the ground that plaintiffs’ loss was subject to a policy exclusion related to certain kinds of water damage, including damage caused by “surface water.” The trial court granted the defendant’s cross motion and denied the plaintiffs’ motion.
On appeal, the Fourth Department noted that the term “surface water” was not defined within the policy. Therefore, the Court applied the plain and ordinary meaning of the term, having previously held “surface water” to mean “the accumulation of natural precipitation on the land and its passage thereafter over the land until it either evaporates, is absorbed by the land or reaches stream channels.” Under this meaning, the Court held, as a matter of law, that the water that entered the plaintiffs’ home was not “surface water” and reversed the decision of the lower court.
Court of Appeals Reverses First Department in Labor Law §240(1) Case
In Somereve v Plaza Constr. Corp., 2018 NY Slip Op 02288 (Apr 3, 2018), the plaintiff brought suit under Labor Law §240(1) to recover for injuries he sustained in a gravity-related accident. On the day of the accident, the plaintiff was operating a prime mover to hoist a load of bricks onto a scaffold about six feet high. Two of plaintiff’s colleagues were standing on top of the scaffold, with one of them watching to assure that the forks were properly placed in relation to the height of the scaffold. The colleague informed the plaintiff that the forks were clear of the scaffold. However, when the load was approximately five feet off the ground, the prime mover flipped forward and the plaintiff was ejected off the back of the machine and catapulted onto the concrete floor.
Before depositions had been conducted, the plaintiff moved for summary judgment under Labor Law §240(1), which the trial court granted. On appeal, the defendant argued that further discovery, including depositions, was necessary to determine the facts of the accident. The First Department affirmed the lower court’s decision, holding that any evidence which might show the prime mover was loaded with too much weight, or that the prime mover had hit the scaffold and then toppled, would only speak to comparative negligence, which is not a defense to a Labor Law §240(1) claim.
The defendant appealed to the Court of Appeals, which reversed the First Department’s decision. The Court reasoned that there was insufficient evidence concerning how the accident occurred, the requested discovery could aid in establishing what happened, and the note of issue was not due to be filed for another six months. Therefore, summary judgment was prematurely granted.
No 90/180 Day Limitation Found in Serious Injury Case
In McIntyre v Salluzzo, 2018 NY Slip Op 02065 (4th Dep’t Mar. 23, 2018), the plaintiff brought an action to recover damages for injuries she sustained when the vehicle she was driving was rear-ended by a vehicle driven by the defendant. The defendant moved for summary judgment, asserting that the plaintiff did not sustain a serious injury in any of the three ways alleged by the plaintiff: the 90/180-day rule, permanent consequential limitation of use, and significant limitation of use, within the meaning of Insurance Law § 5102(d).
The trial court granted the defendant’s motion, but only with respect to the plaintiff’s claim for economic loss in excess of basic economic loss. On appeal, the Fourth Department held that the lower court erred in denying the defendant’s motion with respect to the 90/180-day category. The defendant met his burden on the motion with respect to that category by submitting plaintiff’s deposition and employment records, which indicated no difficulties with eating, dressing, or bathing, and established that the plaintiff returned to work shortly after the accident and was working full-time with no restrictions approximately 30 days after the accident. Furthermore, the Court found that the plaintiff’s claims that she was limited in her ability to garden and ride in a golf cart did not constitute “substantially all” of her activities.
Fourth Department Finds Issue of Fact on Negligence
In Darnley v Randazzo, 2018 NY Slip Op 02090 (4th Dep’t Mar 23, 2018), the plaintiff commenced an action seeking damages for injuries she sustained in a motor vehicle accident. The accident at issue occurred on Niagara Falls Boulevard, which has two northbound lanes, two southbound lanes, and a center turning lane, which is where the accident occurred. The defendant was traveling northbound and entered the center turning lane so that she could make a left turn into a plaza. The plaintiff was exiting a parking lot and intended to turn left, heading southbound. Traffic was heavy, and the drivers of two vehicles that were in the northbound lanes stopped and waved the plaintiff forward. When the plaintiff proceeded forward, her vehicle struck the defendant’s vehicle.
The defendant moved for summary judgment, and the plaintiffs cross-moved for partial summary judgment on the issue of negligence. The trial court denied both the motion and cross motion.
On appeal, the Fourth Department found that the defendant met her initial burden by establishing that the plaintiff was negligent in failing to yield the right-of-way, and that there was nothing the defendant could have done to avoid the accident.
The Court found that the plaintiff raised a triable issue of fact as to whether the defendant was negligent in the operation of her vehicle, however, by submitting the affidavit of their expert, who examined the accident scene and determined that, at the time of the accident, the defendant was 161 feet away from where she would make a left turn. Under the Vehicle and Traffic Law, drivers may only travel in a center turning lane “for such distance as is required for safety in preparing to turn left.” Therefore, the Fourth Department held that the trial court had properly denied both motions.
Summary Judgment Granted for Two Defendants in Multiple Collision Case
In Gustke v Nickerson, 2018 NY Slip Op 02087 (4th Dep’t May 23, 2018), the plaintiff brought suit seeking damages for injuries he sustained when the vehicle he was operating was involved in a chain-reaction accident, following which he was struck by a vehicle while on foot.
All of the parties were driving on South Cayuga Road in Amherst, New York, and plaintiff and defendants Jonathan T. Nickerson and Brian H. Foley were stopped in the northbound lane at the intersection with Coventry Road. The plaintiff was waiting for an opening in traffic in the opposite direction so he could make a left turn onto Coventry Road. Soon thereafter, a vehicle driven by defendant Mary Beth Lipome rear-ended Foley’s vehicle, which caused a chain-reaction collision with Nickerson’s vehicle and then the plaintiff’s vehicle. Plaintiff turned his vehicle onto Coventry Road and parked and Nickerson, Foley, and Lipome pulled off to the side on South Cayuga Road. Plaintiff called his father and told him that he had been in an accident and that he was going to check on the other drivers and exchange insurance information. He exited his vehicle and began walking back toward the other drivers on South Cayuga Road when he was struck by a vehicle driven by defendant Mary A. Hourt.
The defendants each moved for summary judgment, and the plaintiff cross-moved for partial summary judgment on the issue of negligence. The trial court granted the motions of Nickerson and Foley, denied the motions of the remaining defendants, and denied plaintiff’s motion.
On appeal, the Fourth Department affirmed the decision of the lower court granting summary judgment to Nickerson and Foley. Defendant Lipome admitted in her deposition testimony that she caused the accident that pushed the other two defendants into the plaintiff. The Court agreed with Lipome, however, that she bore no liability for the second collision between the plaintiff and Hourt, as she “did nothing more than to furnish the condition or give rise to the occasion by which plaintiff’s injury was made possible and which was brought about by the intervention of a new, independent and efficient cause.” Finally, the Court determined that the lower court had properly denied defendant Hourt’s motion for summary judgment, as she failed to establish that the plaintiff suddenly darted out into traffic or that she complied with her duty to see that which through the proper use of her senses she should have seen.
Fourth Department Reinstates Jury Verdict in Serious Injury Case
In Doucette v Cuviello, 2018 NY Slip Op 02049 (4th Dep’t Mar 23, 2018), the plaintiffs commenced action seeking to recover for injuries sustained by the plaintiff when the vehicle operated by the third-party defendant, in which the plaintiff was a passenger, collided with the vehicle operated by the defendant/third-party plaintiff. The main and third-party actions were tried jointly, and the jury reached a verdict finding that the defendant’s negligence was not a substantial factor in causing injury to the plaintiff. The plaintiffs moved pursuant to CPLR 4404(a) to set aside the verdict and for judgment in their favor or, in the alternative, to set aside the verdict as against the weight of the evidence and for a new trial.
The trial court granted plaintiffs’ motion to set aside the verdict and directed partial judgment on the issue of liability in favor of the plaintiffs, determining as a matter of law that the defendant was negligent and that such negligence was a substantial factor in causing injuries to the plaintiff. The court ordered that the matter be set for a new jury trial to determine the issues of the third-party defendant’s negligence, apportionment of any fault, serious injury under Insurance Law § 5102(d), and damages.
On appeal, the Fourth Department reversed and reinstated the verdict. The Court first noted that the trial court did not issue a decision explaining its reasoning in setting aside the verdict. The Court further found that there was a valid line of reasoning by which the jury could have concluded that the plaintiff’s alleged neck and/or back injuries and his consequent surgeries were not the result of the motor vehicle accident. Although the defendant’s expert opined in general terms that the plaintiff sustained strains of his neck and back as a result of the accident, the Court found that he was simply giving plaintiff “the benefit of the doubt” on the issue of causation. The jury chose not to give plaintiff the same “benefit of the doubt,” as it was entitled to do. Therefore, the verdict was reinstated.
Court of Appeals Affirms Decision Excluding Plaintiff From Coverage Under Policy
In Gilbane Bldg. Co./TDX Constr. Corp. v St. Paul Fire & Mar. Ins. Co., 2018 NY Slip Op 02117 (Mar 27, 2018), the plaintiff was a construction manager for a project owned by the Dormitory Authority of the State of New York (DASNY). DASNY’s contract provided that the general contractor, Samson Construction Company (Samson), would obtain general liability insurance for the job, with an endorsement naming the plaintiff as an additional insured.
In the policy section entitled “Additional Insured-By Written Contract,” the terms stated: “WHO IS AN INSURED (Section II) is amended to include as an insured any person or organization with whom you have agreed to add as an additional insured by written contract but only with respect to liability arising out of your operations or premises owned by or rented to you.”
The plaintiff was sued by DASNY for alleged structural damage to a project building. The plaintiff then commenced suit seeking a declaration that Liberty was obligated to provide coverage under the policy. The trial court agreed that Liberty must insure DASNY. The First Department reversed, holding that the terms of the contract unambiguously excluded the plaintiff from coverage under the policy.
On appeal, the Court of Appeals affirmed the First Department’s holding. The decision turned on the words “with whom” within the policy terms. Although the agreement between DASNY and Samson provided that Samson must provide coverage to the plaintiff, the plaintiff had no agreement with Samson providing same. In his decision, Judge Wilson opined that the plaintiff “might have a claim against Samson for failing to obtain additional insured status,” but that did not allow the Court to rewrite the terms of the contract.