Tuesday, May 25, 2010

Passenger Who Grabs Steering Wheel Not an “Insured Person” Under Policy

In Progressive Halycon Ins. Co. v. Giacometti, 71 A.D.3d 1503 (4th Dept. 2010), the court determined that a passenger who grabbed the steering wheel and pulled the vehicle to the right after the driver steered to the left was not an insured person within the meaning of the automobile policy. In this case, the driver/insured leased the vehicle with a policy that limited an insured person to those who used the vehicle with the insured’s express or implied permission. The court determined that Progressive met its burden in establishing that the driver, who grabbed the steering wheel, had neither the express or implied permission of the driver/insured to use the vehicle and therefore was excluded under the policy.

Friday, May 14, 2010

Upstate New York Accident Applies Law of Ontario, Canada Concerning Noneconomic Damages

The case of Butler v. Stagecoach Group, PLC, 2010 N.Y. Slip Op. 03615 (4th Dept. April 30, 2010) involves a collision in Upstate New York, between a chartered bus transporting a young woman’s hockey team from Ontario, Canada and a tractor-trailer parked on the side of the road. This case involves 12 consolidated appeals concerning four separate but related actions seeking damages for injuries and/or wrongful death resulting from this collision.

As part of the appeal, plaintiffs contend that the court erred in determining that the law of Ontario, Canada concerning noneconomic damages be applied. However, the Appellate Division concluded that the court did not abuse its discretion in applying Ontario law regarding noneconomic damages. The court went on to state that the measure of damages is an issue of substantive law, therefore a conflict of laws analysis was required to determine whether New York or Ontario law applied. The Court used the Neumeir rule to resolve the choice of law issue and ultimately determined that although the parties were domiciled in different Countries, the application of Ontario law did not violate the public policy of New York.

Monday, May 10, 2010

Jury Verdict in Favor of Plaintiff Injured in Automobile Accident Affirmed

In Garrison v. Lapine, 2010 N.Y. Slip. Op. 03515 (3d Dept. April 29, 2010), the Appellate Division, Third Department, affirmed the trial court’s denial of defendant’s motion to set aside the verdict. This case was commenced by plaintiff and her husband, derivatively, to recover damages resulting from injuries sustained by plaintiff in an automobile accident. Defendants conceded liability but a jury trial was held to determine, among other things, causation and damages. After a finding that the plaintiff had suffered a significant limitation of the use of a body function or system, as well as a permanent consequential limitation of the use of a body organ or member, the jury awarded plaintiff $500,000 for past pain and suffering and $2 million for future pain and suffering for a period of 31 years. In addition, the jury awarded plaintiff’s husband $400,000 for loss of consortium.

Defendants moved to set aside the verdict, asserting that the damage award deviated materially from what would be reasonable compensation. However, the lower court denied this motion and the appellate court affirmed. The Appellate Court reiterated the rule that to successfully challenge a determination as to the amount of damages to be awarded, the records evidence must preponderate in favor of the moving party to such a degree that the verdict could not have been reached on any fair interpretation of the evidence. The Court held that defendant did not meet this burden, and in view of the evidence on the record concluded that the jury’s verdict was amply supported by a fair interpretation of the evidence and the damages awarded were well within the range of reasonable compensation.