Torts, Insurance and Compensation Law Weblog

The New York Court of Appeals recently granted a motion for leave to appeal in Yarborough v. City of New York.  The matter involves a plaintiff who injured himself on a pothole on a New York City street.  The leaveworthy issue apparently involved in the case was what evidence was the plaintiff required to proffer to raise an issue of fact to establish that there was an affirmative act of negligence of New York that created the defect. 

The Court in Yarborough observed:

The plaintiff's engineers submitted sufficient evidence that the City was the only entity that could have been responsible for the allegedly defective street repair, and outlined the manner in which the repair deviated from relevant construction industry practices.  However, the plaintiff submitted no evidence as to when the street repair occurred in relation to the accident or that the repair immediately resulted in a dangerous condition.  The mere “eventual” emergence of a dangerous condition as a result of wear and tear and environmental factors, as described by one of the plaintiff's experts, does not constitute an affirmative act of negligence that abrogates the need to comply with prior written notice requirements.

NYCL will keep you abreast of developments in this case.

Our very own Ken Krajewski has recently posted some valuable information on "serious injury" and case law concerning automobile liability on TICL's Webpage. You can find those documents posts under "Committee Web Pages" ---> "Automobile Liability."

These are the new documents:

Serious Injury In SUM Claims;
Serious Injury Threshold Sept. 2007; and
CPLR 5002/Serious Injury Threshold.

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.