Grave Injury/Workers’ Compensation Law § 11.  DECISION OF INTEREST.  In a personal injury action arising from a construction accident, Second Department awards plaintiff summary judgment on the issue of whether his injury constituted a “grave injury” under Workers’ Compensation Law § 11.  Court finds that plaintiff’s loss of two of three phalanges in his index finger leaving him with a “painful amputation stump” equated to the loss of an index finger, an enumerated grave injury.  Castillo v. 711 Group, Inc., 2007 WL 1149996 (2d Dept. April 17, 2007). 

Common Law Indemnification.  Court grants New York City’s motion for summary judgment on its common law indemnification claim against owner/contractor of site where an unshored sewer trench collapsed, killing owner/contractor’s employee.  Court observes that it is indisputable that there was a “grave injury.”  Court also finds that City’s liability is purely vicarious, noting owner/contractor’s conviction of criminally negligent homicide.  Gotlin v. The City of New York, 2007 WL 1063924 (Sup. Ct. Richmond Co. April 11, 2007).

UM Arbitration.  First Department affirms order temporarily staying UM arbitration pending a hearing on the insured status of the tortfeasor’s vehicle.  Insured was a Connecticut driver with a policy issued in Connecticut.  Accident occurred in New York, and insurer is a licensed New York insurer.  Insurer claimed that insured was not entitled to UM arbitration under the policy and Connecticut law.  Court finds that duty to arbitrate is imposed by New York Insurance Law since the accident occurred in New York and insurer is authorized to transact business in New York.  Court rejects Second Department case law to the contrary.  National Grange Mut. Ins. Co. v. Louie, 2007 WL 1053231 (1st Dept. April 10, 2007).

“Insured Versus Insured” Exclusion/Not-for-Profit Policy.  Certain trustees of a foundation supporting Princeton’s Wilson School of Public and International Affairs sued the university, claiming, inter alia, that the university breached fiduciary duties by misappropriating foundation funds for the university’s general use.  Princeton tendered its defense to National Union under a Not-for-Profit policy.  Insurer paid $5 million in defense costs, but claimed the remaining $10 million in limits was not owed due to an “insured v. insured” exclusion and a sublimit for equitable relief claims.  The court concludes that the insured v. insured exclusion is limited to claims against individual insureds, and applies to only two of twelve underlying claims.  Court states that insurer is entitled to apportion defense costs advances between covered and non-covered claims if feasible, but observes that the university’s defense expenditures exceed policy limits by so much, that issues of apportionment are probably academic.  Court holds that $5 million sublimit for equitable claims applies only to equitable claims, and not to all claims.  Court orders a conference among parties to advise the court on how they wish to proceed.  The Trustees of Princeton University v. National Union Fire Ins. Co. of Pittsburgh, 2007 WL 1063870 (Sup. Ct. New York Co. April 10, 2007).

SUM Arbitration.  Second Department finds insurer not entitled to a permanent stay of arbitration based on late notice where insured gave timely notice of the accident and applied for no-fault benefits.  Court finds that requirement of prejudice to the insurer in such situations applies equally to UM and SUM claims.  Court rules that tortfeasors and their insurers should have been added as respondents, and remits the matter for an evidentiary hearing regarding the tortfeasors’ insurer’s disclaimer for failure to cooperate.  New York Central Mut. Ins. Co. v. Davalos, 2007 WL 108036 (2d Dept. April 10, 2007).

Broker E&O.  Second Department reverses denial of broker’s motion for summary judgment and grants the motion where broker demonstrated that an exclusionary clause later sought by the insured was not available at the time the policy was procured.  JKT Construction, Inc. v. United States Liability Ins. Group, 2007 WL 1086307 (2d Dept. April 10, 2007).

Contractual Indemnification.  Second Department affirms summary judgment in favor of commercial tenant’s claim for contractual indemnification against owner in connection with a personal injury suit.  Court finds accident was squarely within the lease’s definition of common areas, which the owner was obligated to maintain.  Court holds that tenant’s cosmetic work in the area of the accident did not relieve the owner of its maintenance obligation.  Court finds no triable issue of fact regarding tenant’s lack of negligence.  Court also awards an order of common law indemnification.  Goodman v. CF Galleria at White Plains, LP, 2007 WL 1086312 (2d Dept. April 10, 2007).

Broker E&O.  Second Department affirms summary judgment in favor of broker where it established that insured did not specifically request additional insured coverage at issue, and that there was no evidence of a “special relationship” that would have required broker to advise the insured to obtain such coverage.  Fremont Realty, Inc. v. P&N Iron Works, Inc., 2007 WL 1086482 (2d Dept. April 10, 2007).

Contractual Indemnification/General Obligations Law § 5-321.  Court awards conditional summary judgment in favor of owner and against tenant on owner’s claim for contractual indemnification in connection with a slip-and-fall accident.  Court finds indemnification provision in lease does not violate General Obligations Law § 5-321 because it excepts the owner’s negligence.  Solero v. 40-16 National Associates, Inc., 2007 WL 1113081 (Sup. Ct. Queens Co. April 9, 2007).

Marine Insurance.  Following the capsizing of an insured yacht, the insured’s mortgagee sued the insurer for denial of coverage under the policy’s breach of warranty endorsement in favor of the mortgagee.  Court grants summary judgment to the mortgagee, concluding that the mortgagee had no actual or constructive knowledge of any breaches of warranty by the insured.  Court observes that the maritime doctrine of “utmost good faith” does not apply to the insured’s mortgagee.  Court finds an issue of fact regarding insured’s claim for coverage.  Court finds an issue of fact regarding whether insured complied with duty of “utmost good faith” where it was uncertain whether a marine survey provided to the agent disclosed all circumstances material to the risk, as well as the implied warranty of seaworthiness.  Federal Ins. Co. v. PGG Realty, LLC, 2007 WL 1149245 (S.D.N.Y. April 17, 2007).

Bad Faith/Punitive Damages.  In a dispute over coverage for the costs of improper loans made by an employee of the insured, a credit union, insurer moved to dismiss the insured’s claims for attorneys’ fees and punitive damages.  Court grants the motion, concluding that attorneys’ fees are not recoverable where the insured sues its insurer for coverage, and observing that New York does not recognize an action for bad faith or punitive damages for denial of coverage in the absence of an underlying tort duty.  AmeriCU Credit Union v. Cumis Insurance Society, Inc., 2007 WL 1074883 (N.D.N.Y. April 5, 2007).

Coinsurance.  In an action by commercial painter’s insurer against inspector’s insurer for one half of the costs of settling an underlying action brought by the wife of painter’s deceased employee, Fourth Department reverses trial court’s order denying motion brought by inspector’s insurer to dismiss the complaint.  The decedent suffered fatal injuries while painting a bridge pursuant to a contract between the decedent’s employer and the New York State Thruway Authority.  The Authority also contracted with inspector to examine the work performed by painter.  Both the inspector’s and the painter’s policies named the Authority as an insured.  The Fourth Department held that concurrent coverage did not exist because the policies insured different risks.  The painter’s policy provided coverage for the Authority for injuries caused by the painter’s operations and the Authority’s acts or omissions in supervising the painter.  The inspector’s policy provided coverage for the Authority for injuries caused by the inspector’s operations and the Authority’s acts or omissions in supervising the inspector.  Pennsylvania Manufacturer’s Ass’n Ins. Co. v. Liberty Mut. Ins. Co., 2007 WL 1168503 (4th Dept. April 20, 2007).

Direct Action.  In a personal injury action by subcontractor’s employee against general contractor, Fourth Department reverses trial court’s order denying general contractor’s motion for summary judgment against subcontractor’s insurer and declares that subcontractor’s insurer is obligated to indemnify subcontractor.  After subcontractor’s insurer disclaimed coverage for “liability assumed under contract,” general contractor obtained a judgment on subcontractor’s default awarding common-law and contractual indemnification.  “If an insurer disclaims and declines to defend in the underlying lawsuit without first seeking a declaratory judgment concerning its duty to defend of indemnify, it takes the risk that the injured party will obtain a judgment against the purported insured and then seek payment pursuant to Insurance Law § 3420.”  Bowker v. NVR, Inc., 2007 WL 1168512 (4th Dept. April 20, 2007).

Late Notice/Reasonableness of Excuse.  In insurer’s action seeking a declaration that it was under no obligation to defend and indemnify roofing employee’s underlying labor law action against owner, Fourth Department reverses denial of insurer’s motion for summary judgment and finds nine-month delay in providing notice of occurrence to be untimely as a matter of law.  Appellate Division holds that insured failed to provide a reasonable excuse for the delay where insured did not conduct any investigation of the accident, and assumed that roofer’s insurer would cover the claims.  Insured’s reliance on roofer’s assurances that he was “okay” did not excuse insured’s delay.  Philadelphia Indem. Ins. Co. v. Genesee Valley Improvement Corp., 2007 WL 1168549 (4th Dept. April 20, 2007).

SUM Arbitration.  In insurer’s action to stay arbitration of tractor-trailer driver’s claim for SUM coverage, Fourth Department modifies trial court’s order and stays arbitration pending the determination of insurance coverage issues where truck lessor’s insurer became insolvent and benefits to driver, if any, were unclear, details regarding lessor’s excess insurance were unknown, and the record did not establish whether driver’s employer had insurance to benefit driver.  AIG Claims Services, Inc. v. Bobak, 2007 WL 1168564 (4th Dept. April 20, 2007).

Common-Law Indemnification.  In a Labor Law and negligence action by deceased worker’s wife, court denies general contractor’s motion to amend its answer to assert indemnification and contribution claims against another party on the site.  General contractor failed to raise an issue as to whether the purported indemnitor was the general contractor or statutory agent where general contractor admitted in its answer that it was the general contractor at the site and denied that the purported indemnitor hired decedent’s company.  Figueiredo v. New Palace Painters Supply Co. Inc., 2007 WL 1149810 (1st Dept. April 19, 2007). 

Consequential Loss Exclusion/Bad Faith.  First Department rejects insurer’s argument that policy exclusion for “consequential loss” barred recovery for “consequential damages,” holding that trial court properly denied insurer’s application to dismiss insured’s claims for consequential damages arising from insurer’s alleged breach of duty to investigate, bargain for, and settle claims in good faith.  Panasia Estates, Inc. v. Hudson Ins. Co., 2007 WL 1120510 (1st Dept. April 17, 2007). 

SUM Arbitration.  In insurer’s action to permanently stay arbitration of an underinsured motorist claim, Second Department reverses the denial of insurer’s petition and permanently stays arbitration where trial court improperly determined that the insurer’s identification of claimant’s father as a licensed driver in a renewal notice created a policy ambiguity that rendered claimant’s father a named insured that consequently created coverage for claimant because claimant lived with his father.  Appellate Division holds that claimant was not entitled to uninsured motorist coverage where neither claimant nor claimant’s father resided with the one named insured listed in the policy’s declarations.  State Farm Mut. Auto Ins. Co. v. Russell, 2007 WL 1149154 (2d Dept. April 17, 2007). 

SUM Arbitration.  In insurer’s action to permanently stay arbitration of an underinsured motorist claim by four claimants involved in a single accident, Second Department determines that insurer properly offset the $50,000 received by claimants from the tortfeasor’s insurer against the $50,000 SUM limits of insurer’s policy thereby precluding recovery.  Government Employees Ins. Co. v. Young, 2007 WL 1149225 (2d Dept. April 17, 2007). 

Contractual Indemnification.  In a personal injury action against a bank and its snow removal contractor arising from plaintiff’s parking lot slip and fall, Second Department affirms the denial of bank’s motion for summary judgment seeking contractual indemnification from snow removal contractor on grounds that such motion was premature where bank failed to establish as a matter of law that it was free from negligence.  Gil v. Manufacturers Hanover Trust Co., 2007 WL 1149875 (2d Dept. April 17, 2007). 

Additional Insured Status.  In property owner’s action against tenant and its insurer seeking a declaration that owner is entitled to additional insured coverage under tenant’s policy with respect to rain damage to owner’s property, Second Department reverses denial of insurer’s motion to dismiss the complaint where the insurer’s liability under the policy was limited to those sums that the tenant became legally obligated to pay, complaint did not allege that tenant had become legally obligated, and complaint failed to allege any basis in the policy for the relief sought, even if owner could establish its status as an additional insured.  87-10 51^st Ave. Owners Corp. v. Steadfast Ins. Co., 2007 WL 1150801 (2d Dept. April 17, 2007). 

First-Party No-Fault.  In an action to recover assigned first-party no-fault benefits, court denies defendant MVAIC’s motion to dismiss the complaint and orders MVAIC to serve an answer where “there is no question” that the complaint stated a cause of action for the recovery of no-fault benefits and MVAIC’s supporting affidavit of a claims examiner and unsworn investigator’s report failed to prove otherwise.  Maple Medical Acupuncture, P.C. v. Motor Vehicle Acc. Indemnification Corp., 2007 WL 1176521 (Dist. Ct., Nassau Co. April 20, 2007). 

First-Party No-Fault.  Summary judgment awarded to provider where there was sufficient proof of timely submission of claim and untimely denial.  Court rejects insurer’s argument that the assignment was revoked where assignor failed to advise the insurer that the assignee was notified of the revocation.  Friendly Physician, P.C. v. Country-Wide Ins. Co., 2007 WL 1062508 (Civ. Ct. Kings Co. April 6, 2007).