Nationwide took an ax to Unitrin November 18, 2018

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850 (4th Dept. 2018)

(1) “We conclude that a defense premised upon nonappearance at an EUO is “more like a normal’ exception from coverage (e.g., a policy exclusion)” than one involving “a lack of coverage in the first instance (i.e., a defense implicat[ing] a coverage matter’)” (Fair Price Med. Supply Corp., 10 NY3d at 565; see also Hospital for Joint Diseases, 9 NY3d at 319-320; Presbyterian Hosp. in City of N.Y., 90 NY2d at 281-286; see generally Central Gen. Hosp., 90 NY2d at 199). Unlike defenses where preclusion thereof would result in coverage where it never existed, such as those premised upon the lack of a contract with the person claiming coverage or for the vehicle involved in the accident, the termination of the contract prior to the accident, or the cause of the purported injuries being something other than a vehicular accident (see Hospital for Joint Diseases, 9 NY3d at 319; Central Gen. Hosp., 90 NY2d at 200; Zappone v Home Ins. Co., 55 NY2d 131, 136-138 [1982]), the EUO nonappearance defense allows the insurer to avoid liability for the payment of no-fault benefits where the insured or assignee has breached a condition in an existing policy providing coverage”

(2) “We further agree with defendant that, contrary to the court’s determination and Nationwide’s contention, our holding in Interboro Ins. Co. v Tahir (129 AD3d 1687 [4th Dept 2015]) is not controlling. The no-coverage exception to the preclusion remedy was not at issue and the insurer disclaimed coverage in that case; thus, it is factually distinguishable and legally unpersuasive inasmuch as the broad language regarding vitiation of the contract for failure to comply with a condition precedent was not central to the holding and did not account for the conceptual differences between types of conditions precedent (see id. at 1688).”

What saddens ms it that Tahir was my case.  It is also remarkable that the Court did not examine NYP v. C-Wide.  I also am upset that nobody sought to really delve into the policy language itself, and to contrast it with the notion of a condition precedent in other contexts.

The issue is one step closer to Court of Appeals scrutiny.{F23F2521-D06B-4824-8ADD-F51A30AD02B8}

Oral Argument Start time: 27:20

Mr. Ortega, why did you lie to us? November 15, 2018

Ortega v Healthcare Servs. Group, Inc., 2018 NY Slip Op 07568 (4th Dept. 2018)

(1) “Plaintiffs commenced this action seeking damages for injuries Rose Ortega (plaintiff) allegedly sustained as a result of a slip and fall that occurred at a facility, which was maintained by defendant. Following the damages phase of a bifurcated trial, the jury awarded plaintiff $4,200 for past pain and suffering, $3,300 for past lost wages, and $2,500 for past medical expenses. Plaintiffs moved to set aside the verdict as against the weight of the evidence on the issue of damages, and for a new trial thereon (see CPLR 4404 [a]).”

(2) “Defendant appeals from an order that, inter alia, granted the motion and ordered a new trial on damages unless defendant stipulated to increase the award for past pain and suffering to $300,000”

(3) “Here, the central issue at the damages trial was whether plaintiff’s claimed shoulder and cervical spine injuries were causally related to the subject fall, or if they resulted from unrelated prior motor vehicle accidents or other unrelated incidents or conditions. Given the conflicting evidence on that issue, plaintiff’s selective and incomplete disclosure of her health history to her healthcare providers and the examining physicians, and her inability to recall prior accidents and injuries during cross-examination, we conclude that the verdict on damages is not against the weight of the evidence because a fair interpretation of the evidence supports the jury’s determination that plaintiff’s shoulder and cervical spine injuries were unrelated to the subject fall and that the only injury sustained by plaintiff in the fall was a knee sprain.”

Stipulation not strictly enforced November 14, 2018

RCS Recovery Servs., LLC v Mensah, 2018 NY Slip Op 07766 (2d Dept. 2018)

The Court really went out on a limb here and did the right thing.  Question – was it correct legally?  They said so.

(1) In 2007, the defendant borrowed $74,000 from the plaintiff’s predecessor-in-interest, Wells Fargo Bank, N.A., as evidenced by a note, which provided that he would repay the sum due, with interest at the rate of 9.5% per year. The defendant allegedly defaulted on the note on June 17, 2010, and this action ensued. On December 6, 2013, with the defendant’s consent, judgment in the total sum of $95,083.08 was entered in favor of the plaintiff and against the defendant.

(2)On July 2, 2014, the parties entered into a stipulation of settlement whereby the plaintiff agreed to accept the sum of $65,000 in full settlement of the judgment. An initial $5,000 payment was made on or about the date of the stipulation, and the remaining $60,000 was to be paid in monthly installments of $5,000, due on the 25th day of each month. The parties agreed that the judgment would remain as a lien on the defendant’s property until full payment of the amounts owed under the stipulation

(3)  After paying a total of $45,000 without incident, the defendant inadvertently missed a payment due on March 25, 2015. By letter dated April 7, 2015, the plaintiff notified the defendant that he was in default and informed him of its election to continue to enforce the judgment pursuant to the terms of the stipulation.  The defendant avers that he attempted, in good faith, to cure his default, but the plaintiff refused and insisted upon full payment of the amount owed under the judgment, which was more than double what was still owed under the stipulation.”

(4a) However, under the circumstances of this case, the Supreme Court should have granted the alternate branch of the defendant’s motion, which was, in effect, to preclude the plaintiff from enforcing the default provision of the stipulation without affording the defendant a reasonable opportunity to cure his default. “Under almost any given state of facts, where to enforce a stipulation would be unjust or inequitable or permit the other party to gain an unconscionable advantage, courts will afford relief” (Goldstein v Goldsmith, 243 App Div 268, 272; see Weitz v Murphy, 241 AD2d 547, 548; Bank of N.Y. v Forlini, 220 AD2d 377, 378).

(4b) Here, the defendant’s default was inadvertent and minor in nature when measured against the harsh result that would be obtained upon literal enforcement of the default provision in the stipulation (see Bank of N.Y. v Forlini, 220 AD2d at 378). Insofar as the plaintiff failed to offer the defendant any opportunity to cure his default before seeking to recover the full amount due under the judgment, the plaintiff’s conduct could be interpreted as an attempt to take advantage of a technical default to obtain payment of the far greater sum which the plaintiff had originally sought, but agreed to forgo as part of the settlement (compare Weitz v Murphy, 241 AD2d at 548-549 and Bank of N.Y. v Forlini, 220 AD2d at 378, with McKenzie v Vintage Hallmark, 302 AD2d 503, 504).

Look, it is a great case.  It definitely takes some of the sting out of inadvertent stupidity.


Another must read in the battle involving “significant limitation” and “permanent consequential” November 14, 2018

Tejada v LKQ Hunts Point Parts, 2018 NY Slip Op 07663 (1st Dept. 2018)

In opposition, plaintiff raised a triable issue of fact as to the existence of an injury involving a “significant” limitation of use of his lumbar spine, but not as to a “permanent consequential” limitation of use injury (see Kang v Almanzar, 116 AD3d 540 [1st Dept 2014]; Kone v Rodriguez, 107 AD3d 537 [1st Dept 2013]). Plaintiff’s orthopedic surgeon, who performed a discectomy procedure in May 2014, sufficiently addressed the findings of degeneration by opining that the MRI films did not show degeneration and that plaintiff’s acute onset lumbar condition was causally related to the accident (see Rabb v Mohammed, 132 AD3d at 528; Young Kyu Kim v Gomez, 105 AD3d at 415). Plaintiff also demonstrated the existence of significant limitations in his lumbar spine range of motion, both shortly after the accident and nine months later, through the reports of his orthopedic surgeon and his post-accident treatment records (see Castillo v Abreu, 132 AD3d 520, 521 [1st Dept 2015]). Since the medical records were submitted by defendants and were properly before the court, plaintiff was entitled to rely on them (see Wenegieme v Harriott, 157 AD3d 412 [1st Dept 2018]).

However, plaintiff failed to provide a reasonable explanation for his complete cessation of treatment for his lumbar spine conditions after the May 2014 procedure. Plaintiff’s claim that he ceased treatment because of an inability to pay due to a lack of no-fault insurance, is unpersuasive in light of his testimony that he had other insurance (see Alverio v Martinez, 160 AD3d 454 [1st Dept 2018]; Vila v Foxglove Taxi Corp., 159 AD3d 431 [1st Dept 2018]). The cessation of treatment renders the opinion of a nontreating physician, based on an examination of plaintiff in December 2016, speculative concerning the permanence and causation of plaintiff’s condition at that time (id. at 432; see Merrick v Lopez-Garcia, 100 AD3d 456 [1st Dept 2012]).

Check out the disunion of the “significant limitation” and “permanent consequential”  branches of the 5102(d) serious injury statute.  Also, has this order now disallowed the Plaintiff from proving a permanent injury?  I would say no, but I am unsure.

Shoulder surgery with physical therapy – valued at $550,000 November 14, 2018

Thompson v Toscano, 2018 NY Slip Op 07676 (1st Dept. 2018)

“$400,000 for past pain and suffering and $750,000 for future pain and suffering over 25  years…”

“The 29-year-old plaintiff was a passenger in a minivan involved in an accident with a vehicle owned and operated by the Toscanos. Plaintiff suffered a partial labral tear to the left shoulder, for which she underwent surgery, and had two courses of physical therapy. Plaintiff testified that she continued to suffer from intermittent pain and had a loss of range of motion to her left arm. Her surgeon opined that she might require further physical therapy and surgery in the future. After reviewing comparable injuries and awards, the trial court appropriately concluded that the amounts awarded by the jury were excessive and that the amounts of $300,000 for past pain and suffering and 250,000 for future pain and suffering constituted reasonable compensation for the injuries sustained “