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November 2007 Archives

November 4, 2007

New York Court of Appeals Does Not Recognize A New Tort for a Third-Party's Negligent Spoliation of Evidence

Last month, the New York Court of Appeals in Ortega v. City of New York refused to expand MetLife
Auto & Home v Joe Basil Chevrolet
and determined that a cause of action for a third party's negligent spoliation of evidence is not cognizable in this State.  As New York Civil Law wrote in prior posts, this case was riddled with unexplained issues. 

The plaintiffs were severely burned when one of the plaintiffs' automobiles caught fire for an unexplained reason.  One of the plaintiffs obtained a pre-action order for the City of New York (a third-party not responsible for the automobile fire) to preserve the subject automobile for inspection; however, the automobile was destroyed.  The plaintiffs commenced an action against the City based on spoliation and contempt of court.

Supreme Court, Kings County in its decision recognized the viability of an independent cause of action for spoliation.  The Appellate Division, Second Department rejected in their opinion the plaintiffs' contention that they could recover damages for spoliation of evidence against the third party.

The Court of Appeals agreed, carefully analyzing why recognizing such a tort was not viable and would lead to too much speculation for the jury.  Perhaps the most interesting part of the decision was the Court's observation that not every wrong can have a remedy.

November 26, 2007

New York Court of Appeals Settles Split In Departments Regarding SUM Coverage and the "Serious Injury" Requirement

In an eerily similar decision as the Appellate Division, Fourth Department's decision in Meegan v. Progressive Ins. Co., the New York Court of Appeals in Raffellini v. State Farm Mut. Auto. Ins. Co. held that a "serious injury" exclusion in a supplementary uninsured/underinderinsured (SUM) motorist endorsement to an automobile liability policy is enforceable (see this prior post for background of case).

The Court's decision is important for the obvious reason, but also for its discussion of the statutory framework of the Insurance Law.  Equally important is the Court's discussion of the powers of regulatory agencies regarding filling in the gaps that certain legislation has left open.  In Raffellini, the Court recognized that the Superintendent of Insurance's enactment of Regulation 35-D, which interpreted New York's insurance law regarding supplementary coverage.

I am seeking your opinion regarding certain questions I think this decision left open regarding SUM coverage and the "serious injury" requirement.  The Court did not address the preclusive impact a finding of "serious injury" would have on a SUM insurer where the determination was made below and the tortfeasor and the injured plaintiff ultimately settled for the policy limits.  Will the injured plaintiff be required to demonstrate a "serious injury" twice or will the SUM insurer (not a party to the underlying action) be bound be the "serious injury" determination?  If the SUM insurer agrees to the underlying settlement or does not respond to the injured plaintiff's request to settle the underlying action, do those actions demonstrate the SUM injurer's agreement with the "serious injury" findings?

Check out Ken Krajewski's material on TICL's Automotive Liability Committee page here.

About November 2007

This page contains all entries posted to Torts, Insurance and Compensation Law Weblog in November 2007. They are listed from oldest to newest.

October 2007 is the previous archive.

December 2007 is the next archive.

Many more can be found on the main index page or by looking through the archives.