Subrogee Plaintiff Successfully Defeats Defendant’s Res Judicata Claim
In, Cincinnati Ins. Co. v. Acadia Ins. Co., No. 20-01029, 2021 WL 6071718 (4th Dept 2021), plaintiff, as subrogee of 60 LBC, LLC (60 LBC), commenced an action for damages arising from defendant’s improper disclaimer of insurance coverage as an additional insured on a liability policy.
In 2015, Irene Frey sustained injuries after she slipped and fell on property owned by 60 LBC, which was insured by plaintiff, Cincinatti Insurance Company. 60 LBC had retained Red Cedar Arborists & Landscapers, Inc. (Red Cedar) to clear snow and ice from the area where Frey fell. Pursuant to their contract, Red Cedar was required to defend and indemnify 60 LBC for any injuries caused by its actions or omissions. The contract also required Red Cedar to obtain insurance coverage for itself with 60 LBC as an additional insured. Red Cedar procured coverage from defendant, Acadia Insurance Company.
Frey thereafter sued 60 LBC for negligence, and 60 LBC requested a defense and indemnification from defendant on the basis that it was an additional insured on Red Cedar’s policy. Defendant disclaimed coverage to 60 LBC stating that they were not an additional insured. Eventually, Frey’s action against was settled during mediation where defendant paid Frey on behalf of Red Cedar, and plaintiff paid her on behalf of 60 LBC.
Then, Plaintiff, as subrogee of 60 LBC, commenced this action against defendant asserting a cause of action for breach of contract. Defendant moved to dismiss the complaint, contending that 60 LBC’s coverage claim against defendant was encompassed in the mediation settlement of Frey’s action. The Niagara County Supreme Court that plaintiff’s claim was precluded by res judicata because the claim was resolved in the settlement mediation.
The appellate court disagreed stating, that plaintiff’s breach of contract claim was separate and distinct from Frey’s cause of action. As defendant was not a party to the original personal injury action, and the release resulting from the settlement of those actions makes no mention of any claims directly against defendant by 60 LBC or anyone else, res judicata did not apply.
Appellate Court Grants One Defendant’s Summary Judgment Motion, and Denies in Part Second Defendants Summary Judgment Motion
In Britt v. N. Dev. II, LLC, 199 A.D.3d 1434 (4th Dept 2021), Plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on ice in a parking lot owned by defendant Northern Development II, LLC and managed by defendant Ryco Management, LLC (collectively, Ryco). Defendant Douglas Patnode Enterprises (Patnode) had contracted with Ryco to provide snow plowing services. Patnode moved for summary judgment dismissing the amended complaint against it, and Ryco also moved for summary judgment dismissing the amended complaint against them. The Monroe County Supreme Court granted both motions and plaintiff appealed.
The Appellate Court held that Patnode owed no duty to plaintiff because as a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party. There is an exception to that general rule, where the contracting party can be held liable if in failing to exercise reasonable care in the performance of its duties, launches a force or instrument of harm thereby creating an unreasonable risk of harm to others, or increasing that risk. However, the court held that Patnode met its initial burden of establishing that they did not launch a force or instrument of harm by creating or exacerbating a dangerous condition.
Ryco met their initial burden for the actual notice summary judgment motion, but failed to meet their burden for the constructive notice summary judgment motion. The Appellate Court held that a defendant who has actual knowledge of a recurring dangerous condition can be charged with constructive notice of each specific recurrence of the condition. Since Ryco’s own submissions raised a triable issue of fact whether they had actual knowledge of a recurring dangerous condition in the parking lot in front of the entrance where plaintiff fell, they had constructive notice.
Defendant’s Improperly Plead Plaintiff Didn’t Suffer a Serious Injury Under Insurance Law § 5102 (d)
In Hollenbeck v. Barry, 199 A.D.3d 1329, 154 N.Y.S.3d 529 (4th Dept 2021), Plaintiff sought to recover damages for injuries he sustained after the vehicle he was driving was struck by a vehicle driven by defendant. Defendants moved to dismiss the complaint on grounds that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102 (d) under the permanent consequential limitation of use and significant limitation of use categories, and because there was a one-year gap in plaintiff’s treatment. The Allegany Supreme Court denied their motion on both accounts and defendants appealed.
The Appellate Court held that the defendant’s motion was properly denied because plaintiff raised a triable issue of fact with respect to both of the serious injury categories by submitting the conflicting expert affidavit of his treating physician. The Appellate Court also held that summary judgment may be appropriate even where there is objective medical proof of a serious injury, when additional contributory factors interrupt the chain of causation between the accident and the claimed injury—such as a gap in treatment. However, there was no interruption in the chain of causation as the record failed to establish that plaintiff ceased all therapeutic treatment during the purported gap.