Insurance coverage and indemnification successes
Insurance Coverage & Indemnification
Doe v. Madison Medical 21 A.D.3d 824, 800 N.Y.S.2d 844 (1st Dept. 2005) Plaintiff, a janitorial worker employed by our client to clean a medical office, claimed that she was infected with the HIV virus when was stuck by a used syringe that had been tossed into a waste receptacle. She sued the medical office, which commenced a third-party action against our client based upon contractual indemnification. We moved to dismiss, arguing that neither party was in possession of a signed contract that contained such a contractual indemnification provision. The medical office claimed that their standard contract includes an indemnification clause on the back of the agreement. The motion court agreed with that the documentary evidence was insufficient, thereby dismissing the third-party complaint. The Appellate Division affirmed.
Lutheran Social Services v. Guide One Ins. 35 A.D.3d 285, 827 N.Y.S.2d 122 (1st Dept. 2006) Plaintiff adoption agency had been sued for failing to disclose to adopting parents that their children had been infected with the HIV virus. The insurer had denied coverage, but not on the ground that no insurance contract was in force at the time of the alleged incident. Our office discovered this additional reason, and when summary judgment motions were made, the motion court rejected our argument and granted summary judgment to the plaintiff. On appeal, we won a reversal, as the Appellate Division agreed with our argument that the absence of a valid contract need not be cited in the disclaimer, since the failure to disclaim coverage does not create coverage which the policy was not written to provide.
Summary Judgment & Dispositive Motions
Vicente v. Silverstein Properties [Supreme Bronx] Plaintiff was a laborer who severed two of his fingers with a circular saw, while engaged in the alteration of a building. Plaintiff sued the building owner, pursuant to the provisions of Labor Law §241(6) and §200. Although the plaintiff was actually employed by a contractor, we argued that he was also a “special/borrowed employee” of our client, the building owner, establishing that he took all of his directions from and was supervised by our client, which also provided him with training and the circular saw he was using at the time. Because plaintiff did not sustain a “grave injury,” we argued that the plaintiff was barred from suing the building owner, as a result of the exclusivity provision of the Workers’ Compensation Law. After a Framed Issue Hearing on the issue of “special employee” status, the court granted our motion for summary judgment, thereby dismissing the plaintiff’s complaint in its entirety, holding that plaintiff was a “special employee” of the building owner.
SUCCESSFUL DEFENSE OF A “SLAPP” SUIT
JEFFREY SAMEL & PARTNERS was recently called upon to defend a school bus company that had successfully bid on a contract to provide transportation to a local School Board on Long Island. The unsuccessful competitive bidder commenced a lawsuit against our client, claiming that our client had defamed the plaintiff bus company by distributing a letter written by the local bus operators’ union that asserted that our client would provide safer transportation to the school children than would the plaintiff bus company.
Shortly after receiving our assignment in this matter, with our client’s permission, we thoroughly researched the legal precedents and prepared a motion to dismiss. We argued in our motion that the lawsuit constituted a Strategic Lawsuit Against Public Participation (“SLAPP”) suit, for which our client would be entitled to an early dismissal by statute.
Despite strenuous opposition from the plaintiff, the court issued a 15-page decision, by which the court dismissed the lawsuit against our client in its entirety. The court agreed with our argument that the allegedly defamatory letter constituted nothing more than pure opinion, which was non-actionable. The court also agreed that the plaintiff’s lawsuit was a “SLAPP” suit, brought in retaliation for our client speaking out and voicing its opinion concerning its qualifications for the School Board contract in competing for such contract. We were able to obtain such a dismissal for our client, without having to undergo the considerable expense of conducting depositions and other pretrial discovery. No appeal was taken by the plaintiff.