Legal Updates
Bouvier Partnership, LLP now provides the following legal updates covering new decisions, legislation and proposed legislation. If you have any questions, please feel free to call our office for more information.
Interest on No-Fault Claim - Date of Accrual
In Mandarino v. GEICO, a Nassau County District Judge reminded us that regarding interest on a no-fault claim pursuant to the regs (Section 65.15(h)(3)plaintiff was required to sue within 30 days after claim was denied in order for interest to accumulate from the denial date. Otherwise interest accrues from the date plaintiff commences action.
Labor Law 240(1)
Summary Judgment was granted in Rementano v. Broadway Mall Properties, Inc. by a Nassau Supreme court Justice where plaintiff fell through a concealed hole that was covered by a piece of plywood. Plaintiff lifted the plywood but fell nevertheless. It was an unwitnessed accident. Defendants attempted to argue that plywood was proper protection and that plaintiff’s own actions were sole proximate cause.
The Court indicated that for a defendant to avoid Section 240(1) liability on the ground that plaintiff’s actions were sole proximate cause, the defendant must show that there was absolutely no statutory violation. If there was any statutory violation, plaintiff cannot be solely to blame.
The Court found that the plywood cover was not marked in any way and was not affixed. The Court stated that these were clear violations of New York State Industrial Code and OSHA regs. One wonders whether the trial court was correct in citing OSHA regulations (which are definitively not grounds for Section 240 liability) and New York State Regulations that deal with markings and warnings and fastening of hole covers, which regulations would not seem to be those contemplated by Section 240 which talks generally about scaffolding, hoists, ladders, and the like. In any event whatever the deficiencies of the plywood hole cover might be, did not the plaintiff eliminate any protection that might be provided by removing the cover? Case cited in the New York Law Journal of April 26th.
Insurance law Claim
Recently the Court of Appeals held in Lang v. Hanover Insurance, that an injured party could not proceed directly against a liability insurer until obtaining a judgment against the tortfeasor. (Insurance Law Section 3420). This in the Matter of Schupp v. American Safety Indemnity Company the Nassau County Supreme Court dismissed the direct action against the carrier. However, the Court opined in reviewing the plaintiff’s papers that the disclaimer was not timely given pursuant to Insurance Law Section 3420(d). It seems that it would behoove the insurance carrier to appear and defend the action against the tortfeasor in that there would probably be eventually a judgment against the tortfeasor. One wonders why the judge would even offer an opinion on the disclaimer issue, if the entire action were premature pursuant to the Lang V. Hanover case.
Court of Appeals/"Serious" Injury Threshold
The State’s highest Court returned to the question of what constitutes a “serious” injury or more specifically what is needed to present and oppose a motion for summary judgment on the issue. The Court decided three cases, affirming summary dismissal in two and reversing in one. The general tenor of the language employed by the Court seems to signal a frustration with the plethora of soft tissue cases and the amount of litigation generated by same and the ineffectiveness of the ambiguous thresholds contained in Insurance Law §5102(d).
However, it appears the Court’s opinions in these cases are very much driven by the specific and peculiar facts of each case and I don’t know that there is much here n the way of new bright-line guidelines. Nevertheless, from a defense perspective, we will want to utilize language from this opinion to support future motions.
In Pomells v. Perez, the Court made mention of the fact that there was a “gap in treatment” that really amounted to a cessation of treatment about six months after the accident. The plaintiff submitted an affidavit from an orthopod that indicated an MRI documented disc with radiculopathy that was causally related to the plaintiff’s history. However, the plaintiff’s history also included kidney disorder and surgery for same. Thus the Court felt that the orthopod’s affidavit evidently didn’t relate plaintiff’s complaints to the MVA alone with the necessary specificity. Thus summary judgment was granted to the defendants. The Court did point out that “gap in treatment” is not necessarily dispositive.
In Brown v. Dunlop, there was also a gap in treatment claimed by the defense, but the plaintiff’s treating physician indicated that further treatment would only be palliative in nature, thus, he discharged the plaintiff with instructions for home exercises. This was evidently an acceptable explanation for the cessation of treatment. From a cynical defense standpoint, one might suggest that this explanation would almost always be available.
In Carrasco v. Mendez, plaintiff failed to refute defendant’s evidence of a pre-existing degenerative condition. Although the plaintiff’s submission indicated that the plaintiff’s problems were causally related to the accident, the Court took note of the fact that the pre-existing conditions noted by the defense examiners could cause those symptoms. Thus in spite an expert affidavit relating the plaintiff’s ongoing problems to the motor vehicle accident defense prevailed. It would seem what was pivotal in ths case was the report of plaintiff’s original treating doctor that indicated plaintiff had returned to his “baseline”, that is symptomology that he had because of his pre-existing problems.
In summary, it would seem that the lesson of these cases is primarily for plaintiffs, who must carefully craft their expert’s affidavit to very specifically relate the significant limitation, etc. to the motor vehicle accident and explain away any cessation or gap in treatment. One wonders, how a gap in treatment occasioned by financial limitations (no-fault cut-off) would play. In any event, the overall tone of this set of decisions is at least somewhat favorable.