Torts, Insurance and Compensation Law Weblog

Clementoni v. Consol. Rail Corp.

In an appeal arising out of the collision of an automobile driven by plaintiff and a train operated by defendant-rail company, summary judgment for defendants-property and grade crossing owners is affirmed as: 1) defendants-grade crossing owners owed plaintiff no duty to warn or protect under the circumstances; and 2) a landowner is generally not liable for the existence of uncut vegetation obstructing the view of motorists at an intersection.

Mfr.'s & Traders Trust Co. v. Reliance Ins. Co.

The general interest statute, CPLR 5001 (a), does not authorize an award of interest against unsuccessful claimants in an interpleader action.

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.

On October 21, 2008 the Court of Appeals decided the case of Sorbara Construction Corporation v. AIU Insurance Company. In this case the court ruled that notice to Sobrara’s workers' compensation carrier is not sufficient to serve as notice of a potential claim to its liability carrier, even when the workers' compensation carrier and the liability carrier is the same insurance company. The Court was of the opinion that each policy requires a separate notice to the appropriate part of the insurance company. The result of this is that Court of Appeal upheld the liability carrier’s disclaimer of responsibility when the employer was impleaded in the liability action under §11 of the Workers' Compensation Law.

Submitted by Ronald Balter.