Monday, February 12, 2018

The Million Word March

Was it in 1995 or 1996 that I debuted  my office's annual New York Coverage seminar?  Do any of my readers remember?  I remember that The Law Office of Roy A. Mura opened on November 14, 1994, but I can't remember if I started digesting New York insurance coverage court decisions and presenting them at an annual seminar in 1995 or in 1996.

Whichever year it was, the collection of digested coverage cases has grown.  And grown.  And grown.

How much has it grown, you ask?  The digest is now 935,996 words large and 1,967 pages long (!).  By comparison, Tolstoy's War and Peace is only 1,225 pages long, and the Bible averages around 1,200 pages.  How many of you have read all three?

The digests cover most New York state and federal insurance coverage cases reported from 1995 through the first half of 2016.  Here, as an example, is the first case digest from 1995:
95-001. Williams v. Associated Mutual Ins. Co., 621 NYS2d 206 (3d Dept. 1995) 
Facts:  Insured brought suit against liability insurer for not defending underlying wrongful death suit.  Default judgment entered against insured in u/a. Upon being notified of the default, insurer negotiated and paid settlement on behalf of insured. In the meantime, insured entered into contract of sale for his real property and business. Sales contract contained a "time is of the essence" clause. Title search by buyer revealed the default judgment as a lien against the insured's real property and the buyer rescinded the contract when the insured was unable to have the lien removed within the time required for the closing. Insured sued insurer alleging negligence, breach of contract and unjust enrichment. Claimed damages for legal fees, loss of proceeds from sale of his real estate and business, costs incurred in maintaining the property and business, mental anguish, etc. 
SupCt:  Granted insurer's motion for partial summary judgment, dismissing claims for consequential damages (i.e., everything except legal fees for attempting to vacate default judgment in u/a). 
Held:  Affirmed. "Special" or "extraordinary" consequential damages sought are recoverable in a contract action only if they were foreseeable and within the contemplation of the parties at the time the contract was made. Claimed damages for inability to close on sale, mental anguish, altered standard of living, damage to insured's credit rating, etc. are not recoverable in this breach of contract action. Insured not entitled to attorneys' fees for bringing dj action to compel duty to defend. Counsel fees incurred or expended by insured in attempting to vacate default judgment in u/a, however, are recoverable.
And here's the last case digest from 2016:
16-054.  Flushing Traditional Acupuncture, P.C. v. Auto Club Ins. Association, 2016 WL 1590691 (App. Term 2d, 11th, 13th Dists. 2016) 
Facts:  Health care provider, as assignee of insured, brought action against automobile insurer, seeking to recover assigned first-party no-fault benefits for services rendered to the insured, who had allegedly sustained injuries in a motor vehicle accident. The insurer moved for summary judgment dismissing the complaint.  
SupCt:  Granted the insurer’s motion for summary judgment dismissing the complaint. The provider appealed.  
Held:  Reversed. Under Michigan law, the insurer could not rely on a lack of coverage defense, based on rescission of the policy based on alleged fraud or misrepresentation in procuring the policy, to withhold payment of no-fault benefits to health care provider, who was an innocent third-party.  Contrary to the insurer’s contention, although it does not write insurance policies or conduct business in New York, it is authorized to business in New York State. Therefore, pursuant to Insurance Law § 1212(a), service of process upon the Superintendent of Insurance was sufficient to acquire jurisdiction over the insurer. Accordingly, the order is reversed, and the branch of the insurer’s motion seeking summary judgment on the ground of lack of insurance coverage is denied.
There's lots more where those came from.  Before now I had limited dissemination of the digests to clients and the people who attended our seminar.  Now you can have and make use of the entire set of case digests by clicking HERE.  If you download the digests, you can word-search (Ctrl+F) them using your research term(s).  For example, search "pollution exclusion" or "additional insured" or "late notice" or "untimely disclaimer" for those issues.

Speaking of disclaimers, I must point out a few things about these case digests:

First, if a case was later modified or reversed, it was not so noted on or removed from its inclusion in a previous digest, so be sure to verify that the case you like is still current before relying in its holding (you can use Google Scholar for that).

Secondly, just because a case hasn't been modified or reversed doesn't mean it's still good law.  Sometimes new statutes or regulations or subsequent decisions of higher courts change the law or effectively overrule earlier decisions of lower courts.

Thirdly, although we strove for accuracy in preparing these digests, I pulled some all-nighters in the early years, so please, use the digests as a reference point, but read the actual cases before citing or relying on them.  Again, Google Scholar is good for this.

The 2016-2018 set will follow.  Only 64,004 words to go.

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