News & Events
New York Appellate Court Prevents Insurer From Altering the Test for Application of the “Known Claims and Circumstances” Exclusion
The New York Appellate Division recently confirmed that a lawyer’s own sub-jective knowledge of the possible consequences of his or her acts or omissions continues to be a major factor in determining whether his or her professional liability insurer may deny coverage for a malpractice claim on the basis of a policy exclusion for “known claims and circum-stances.” In Liberty Insurance Underwriters Inc. v. Corpina Piergrossi Overzat & Klar LLP, 78 A.D.3d 602, 913 N.Y.S.2d 31 (1st Dep’t 2010), the Appellate Division refused to permit an insurer to turn the accepted test for application of the “known claims or circumstances” exclu-sion on its head by arguing for consideration of purely objective factors. Written by Linda J. Karpel. View article.
Attorney Communications Off Limits to Adversaries in Litigation
The Pennsylvania Supreme Court recently brought Pennsylvania in line with majority of jurisdictions when it held “in Pennsylvania, the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice.” Gillard v. AIG Ins. Co., No. 10 EAP 2010, 2011 Pa. LEXIS 393, at * 40 (Pa. Feb. 23, 2011). Written by Linda J. Karpel. View article, decision.
Union Carbide Receives Intended Umbrella Excess Policity Limits
New York’s highest court, the Court of Appeals recently rendered an important pro-policyholder decision in Union Carbide Corp. v. Affiliated FM Insurance Co., 2011 NY Slip Op 1317, 2011 N.Y. LEXIS 219 (N.Y. Feb. 22, 2011). The Union Carbide Court held that the aggregate limit of liability stated in a three-year umbrella excess insurance policy purchased by Union Carbide was “annualized,” that is, the limit renewed for each year of the policy. In so holding, the Court resolved an issue that had been the subject of conflicting decisions, both in the New York federal courts and in courts across the country. Written by Linda J. Karpel. View article, decision.
Bad Faith Consequential Damages Against Insurer for Unreasonable Delay in Adjusting a Fire Claim
An insurer’s initial delay, followed by further penny-pinching delay, in the adjustment of a fire claim merits consequential, bad faith damages for its policyholders, based on the insurer’s breach of the covenant of good faith and fair dealing in its homeowner’s insurance policy. That was the holding of the court in Carden v. Allstate Insurance Co., 912 N.Y.S.2d 867 (Sup. Ct., Westchester Co. 2010)... Written by John W. Fried. View article.
Two New Locations in New York - Pleasantville and NYC
We are pleased to announce that we are opening a new office in Pleasantville, New York. Pleasantville is located in Westchester County. We are also moving our current New York City office in the Empire State Building to 295 Madison Avenue. John Fried will be heading both new locations. Lee Epstein will continue to head our Philadelphia office.
John W. Fried, Esq.
FRIED & EPSTEIN LLP
johnwfried@fried-epstein.com
295 Madison Avenue, 12th Floor
New York, New York 10017
Telephone: (212) 268-7111
Facsimile: (212) 268-3110
141 Tompkins Avenue, 3rd Floor
Pleasantville, New York 10570
Telephone: (914) 358-9567
Facsimile: (914) 358-9569
New York Insurance Regulation 194: Insurance Brokers Will Have to Disclose Compensation Information to their Clients
Effective on January 1, 2011, New York Insurance Regulation 194 will require insurance producers to disclose certain information concerning the compensation they receive for placing business. Written by John W. Fried. View article.
To Sue or Not To Sue, That Is The Question
When pursuing insurance coverage in response to claims for long-term injuries that trig-ger insurance policies issued by multiple insurers, it may make sense to sue some, but not all, such insurers. For instance, a policyholder may wish to avoid suing insurers that are insolvent or issued policies that are exhausted or that contain problematic exclusions. Written by Diane Taylor. View article.
Health Insurance Backstop
New York’s Legislature, with the approval of the Governor, enacted a statute that will re-quire insurers to notify a designated third person before certain terminations of health insurance policies held by persons 65 years of age or older. Laws of 2010, Ch. 49. Written by John W. Fried. View article.
New York Expands Coverage for Additional Insureds
New York‟s highest court, the Court of Appeals, in Regal Construction Corp. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 15 N.Y.3d 32 (2010), has expanded significantly the coverage available to additional in-sureds under the commercial general liability (“CGL”) policy form. Written by John W. Fried. View article.
“Additional Insured” Coverage May Not Add Up
Can “additional insured” insurance coverage ever be useless? It can, when the self-insured retention (“SIR”) of the insurance policy cannot be satisfied. View Article
New York Enacts Ian's Law to Regulate Insurers and HMOs Seeking to Discontinue a Health Insurance Policy Form
On August 19, 2010, Governor David A. Paterson announced that he has signed “Ian’s Law” into law, which enhances protections for policyholders when a health insurer or health main-tenance organization (HMO) discontinues a class of policies or contracts. The legislation is named to honor Ian Pearl, who we represented successfully when his insurer discontinued the state insur-ance department approved form of the small group health insurance policy that had covered Ian since 1981. View decision and article.
New York Enacts a Statute to Compel an Appraisal Required in the Standard Fire Insurance Policy
Effective as of March 30, 2010, in New York, either a policyholder or a fire insurer can ini-tiate a special proceeding to compel the appraisal process in the standard fire insurance policy. This change in the law was recommended in Fahrenholz v. Security Mutual Insurance Co., 291 A.D.2d 876, 738 N.Y.S.2d 623 (4th Dep’t 2002) (Order dismissing a policyholder’s cause of action to com-pel an appraisal for a fire loss was affirmed). View Article.
Is Notice Pleading In Federal Court No Longer Plausible?
The days of federal court serving as a haven for those attempting to avoid the fact-pleading requirements of state court may be over. Within the past year, the United States Su-preme Court confirmed, in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), that a new standard will be applied to evaluate the sufficiency of a federal court complaint. View article.
Court Holds That Insurer Cannot Have Its Cake And Eat It Too
In an important victory for policyholders, generally, and Fried & Epstein’s client, Tate & Lyle North American Sugars, Inc., specifically, the Louisiana Court of Appeals prevented an insurer that was behaving in this manner from having its cake and eating it too. View article and decision.
Federal Court Diversity Jurisdiction: The Supreme Court Hits A “Nerve Center”
Fried & Epstein to Exhibit at RIMS 2010
Fried & Epstein LLP will be exhibiting at this year’s RIMS Conference and Exhibition April 25-29 in Boston, Massachusetts. Please stop by our booth, Number 530, for a one-on-one discussion on how to maximize your insurance benefits. Visit www.rims.org for more information.
Fried Named to Super Lawyers
John W. Fried has been named to The New York Super Lawyers – Metro Edition List 2009. Only 5 percent of attorneys are named to the list after an extensive process of peer nominations, blue ribbon panel reviews and independent research. Please visit www.superlawyers.com for more information.
NY D.A. Supervisor John W. Fried Lauded Sotomayor for Her Ability Right Out of Law School
"To Move Almost Seamlessly From Studying Law in Law Books to Being an Assistant D.A. in a Large Urban Environment," Compared Sotomayor to the Late Justice Byron White." Read more from the White House Briefing Room
New York High Court Finds Consequential Damages Available to Policyholders Bringing First-Party Insurance Coverage and Bad Faith Claims
Two new decisions of the New York Court of Appeals (New York’s highest court) promise to change the face of insurance coverage litigation in New York. On February 19, 2008, the Court of Appeals held that policyholders who seek recovery for their insurers’ bad faith breach of their insurance policies can assert claims for “consequential damages.”
New York High Court Reaffirms Multiple-Occurrence Ruling
On May 1, 2010, the Court of Appeals of New York denied a motion for reargument of its original decision in Appalachian Insurance Company v. General Electric Company, 863 N.E.2d 994 (N.Y. 2010). By that denial, the Court dashed any remaining hopes that General Electric would obtain excess insurance coverage in connection with hundreds of thousands of personal injury claims arising from alleged exposure to GE’s asbestos-insulated steam turbines. In its original decision, the Court of Appeals held that the steam turbine claims constituted multiple “occurrences,” because the exposure of claimants differed in time, place and length. Since GE’s share of the typical judgment in connection with the turbine claims averaged only $1,500, and GE’s London Market excess policies did not attach unless the $5 million per-occurrence limit of its primary insurance was exceeded, no excess coverage would be available for the turbine claims.
The Court of Appeal’s multiple-occurrence ruling is at odds with a number of cases in other jurisdictions holding that the manufacture of an asbestos-containing product constitutes a single “occurrence,” for purposes of insurance coverage. Part of the reason for the New York decision likely rests on New York’s “unfortunate events” test for determining the “number of occurrences,” which focuses on “the nature of the incident giving rise to damages,” as opposed to the “cause” of the underlying injuries. For a copy of the decision, click here.
Insurer's Claim for Retrospective Premiums Barred by Statute of Limitations
In Reliance Insurance Company (In Liquidation) v. Griffin Dewatering Corporation, Case No. 2:05 CV 281 (N.D. Ind. 4/17/07), an Indiana federal magistrate judge recently became the first judge in Indiana to address the statute of limitations issue in the context of retrospective premium payments. The policyholder in the case, Griffin Dewatering, was represented by Fried & Epstein LLP. Griffin successfully moved for partial summary judgment, arguing that its insurer’s claim for breach of contract in connection with the payment of over $600,000 in retrospective premiums was barred, in major part, by the statute of limitations.
In addressing Griffin’s argument, the magistrate examined when Reliance’s claim for breach of its retrospective premium policy had accrued, an issue that has been addressed by only a handful of cases across the country. In light of the terms of the agreement between Griffin and Reliance, the magistrate rejected Reliance’s argument that the statute of limitations did not accrue until the final retrospective adjustment on its policy was rendered. Instead, the magistrate adopted the approach argued for by Griffin and applied in the majority of cases to address the issue--that, for statute of limitations purposes, each retrospective premium payment was a separate, enforceable obligation on which the statute of limitations accrued when it was invoiced and not paid. For a copy of the decision, click here.
Copyright © 2000-2011 Fried & Epstein LLP. All Rights Reserved. See Legal Notices.
Practice Areas
Criminal Defense / Employment Litigation / General Litigation / Insurance Coverage Litigation & Counseling
Our Locations
NEW YORK
295 Madison Avenue, 12th Floor
New York, New York 10017
Telephone: (212) 268-7111
Facsimile: (212) 268-3110
141 Tompkins Avenue, 3rd Floor
Pleasantville, New York 10570
Telephone: (914) 358-9567
Facsimile: (914) 358-9569
PHILADELPHIA
Constitution Place
325 Chestnut Street, Suite 900
Philadelphia, PA 19106
Tel. (215) 625-0123
Fax (215) 625-0764