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January 2008 Archives

January 7, 2008

Appellate Division, Third Department Recent Decision on Attorneys' Fees in No-Fault Context

Within the No-Fault context, how should the arbitrator or court award counsel fees where a medical provider seeks reimbursement on multiple claims?  Is counsel entitled to an attorney's fee in the amount of $60 or 20% of the amount of the bill, plus interest thereon, subject to a maximum of $850 per assignor or per claim?

The New York Superintendent of Insurance states in this opinion that counsel fees should apply per assignor, not per claim.  In Alpha Chiropractic P.C. v. State Farm Mut. Auto. Ins. Co., Civil Court, Queens County (Siegal, J.), parted ways with the Superintendent and held counsel fees should apply per claim.   Civil Court, New York County in Marigliano v. New York Cent. Mut. Fire Ins. (Hagler, J.), also parted ways with the Superintendent.

Just recently, the Appellate Division, Third Department in LMK Psychological Servs. v. State Farm Mut. Auto. Ins. Co. also held that attorneys' fees should be calculated on a per claim basis.  The Court concluded that the Superintendent's interpretation was not a proper one under Insurance Law sec. 5106 and, therefore, the Court did not give the Superintendent's opinion deference.

Dave over at No-Fault Paradise makes a very poignant observation about the impact of LMK (see post here).  Because the Third Department is the only appellate court in the state to opine on the issue, all trial courts throughout the state must follow the holding until an appellate court within their Department rules otherwise.

January 21, 2008

New Blawg for the Young Litigation Attorney

Advice for the Young Lawyer: Learning to Litigate is a new blawg on, what else, tips for the young litigation attorney.  Frank Ramos writes substantive posts on such topics as deposition techniques, expert research, and tips on litigating certain types of cases.

January 28, 2008

New York Court of Appeals Will Resolve Conflict on Consequential Damages in Breach of Insurance Contract Context

The New York Court of Appeals recently heard oral arguments on whether an insured may recover consequential damages in a breach of contract action against his or her insurer.  The two appeals -- Bi-Economy Market, Inc. v. Harleysville Ins. Co. of New York [Fourth Department] and Panasia Estates, Inc. v. Hudson Ins. Co. [First Department] -- reached opposite results.

The Fourth Department in Bi-Economy held that the insured could not recover consequential damages.  The Court observed that the insurance policy expressly excludes coverage for consequential losses, and thus it cannot be said that such damages were “contemplated by the parties when the contract was formed.”

By contrast, the First Department in Panasia held that the insured could recover consequential damages, citing   Acquista v. New York Life Ins. Co., 285 A.D.2d 73, 730 N.Y.S.2d 272 [2001] ).  The insurance policy in Panasia excluded consequential losses.  The First Department held that the insurer had not shown that the exclusion was an applicable provision and observed that the terms "consequential loss" and "consequential damages" are not synonymous.

The forthcoming decision will finally put to rest whether consequential damages are recoverable in this context.

Free Webcast of New State Bar Association's Presidential Summit

Through the efforts of the New York State Bar Association's Electronic Communications Task Force, the State Bar will be webcasting the Presidential Summit on January 30th at 2 PM.  Here is the agenda (Download presidential_summit_agenda.pdf).

If you can't be at the NYSBA Annual Meeting, you can catch part, the webcast.  Just go to the  http://www.webcatter.com/live/nysbar/ to view the summit live over the Internet.

Unfortunately no CLE credit is available for viewing the webcast.

About January 2008

This page contains all entries posted to Torts, Insurance and Compensation Law Weblog in January 2008. They are listed from oldest to newest.

December 2007 is the previous archive.

February 2008 is the next archive.

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