Letter from the Section Chair,
Daniel W. Gerber
As I begin my year as Chair of the Torts Insurance
& Compensation Law Section (“TICL”), I think it is
important to acknowledge the achievements and leadership of our
immediate past Chair Gary A. Cusano. Gary made diversity a central
theme of his year as Chair. He increased diversity of TICL’s
Executive Committee and focused the Section’s Spring Meeting on
this critically important issue. Gary also significantly involved
the Section in legislative issues involving Insurance and Workers’
Compensation Law. Gary also led the Section’s creation of a
Treasurer’s position.
I have big shoes to fill, but I know with the support
of Vice-Chair Charlie Siegel, Secretary Laurie Giordano, Treasurer
Brendan Baynes and your Executive Committee we will have a successful
year.
First and foremost I want to invite everyone to attend
the Section Spring Meeting in San Diego at the Del Coronado on April 10
– 13. Registration forms are available on the NYSBA and
TICL websites. This program brings together a wonderful venue,
great CLE and tremendous networking opportunities. The CLE panel
includes top insurance executives from New York, California and
Bermuda. There will be a panel of respected jurists, and national
experts on e-discovery issues. Many thanks to Brian Rayhill and
Bob McCarthy, Co-Chairs of the San Diego meeting. They have worked
tirelessly. Currently we are also planning a networking event with
the San Diego Bar.
As for the rest of this year, I have several
goals. First, I want to make sure that every member of TICL is
aware of the opportunities it creates and benefits it provides. To
this end, I have appointed Jean Gerbini as our newsletter chair.
Jean will regularly update you on the Section’s activities and
opportunities. The Section’s website will also be kept current by Matt
Lerner. Second, I will ask our Executive Committee to consider and
adopt a strategic plan that puts in place growth and value for members
in years to come. Third, we will be active on legislative issues
of importance to Section members. Last, it is my goal to grow and
diversify our Section’s membership by ensuring its committees are active.
I am honored to serve as this Section’s Chair
and look forward to it. If anyone has any questions at any time,
please feel free to contact me at dgerber@goldbergsegalla.com
or 716-566-5425.
DON’T MISS SAN DIEGO
IN APRIL
TICL's Spring Meeting will be held at the
historic Del Coronado
Hotel April 10-13, 2008.
As with all TICL events, the presentations will be top-notch. You will
learn from insurance executives from Bermuda and New York on what is
important to them in claims resolution. An esteemed judiciary panel will
teach you about summary jury trials. Speakers will discuss whether New
York will remain a "no-prejudice" state when it comes to notice under an
insurance policy. You will hear from a national e-discovery expert and
author, John Iszaza.
If you are new to TICL, there will be executive committee
members specifically committed to introducing you to other committee
members, speakers, and attendees.
To download and view a copy of meeting program, click
here. To download and view a copy of the
registration form, click here. To download and view a copy of the hotel
registration form, click here.
See the many attractions the San Diego has to offer to you and your
family, click here.
The TICL Section Sparkled in N.Y.C. January 30-31
Elegant reception and dinner with prominent
jurists. The Section launched its
January 30, 2008 meeting beside softly moving water and reflected harbor
lights at New York City’s celebrated Water Club. New
York’s Chief Judge, Hon. Judith Kaye, attended
the event, together with numerous other prominent New York
jurists. Members of the defense bar, coverage bar and
plaintiffs’ bar mingled easily, as the TICL and Trial
Lawyers’ Sections co-hosted the event for yet another successful
season.
The evening’s keynote speaker was
Hon. William C. Thompson, Jr., Comptroller of the City
of New York. Gary A. Cusano and Daniel
Gerber (outgoing and incoming Section Chairs,
respectively) honored members for their service to the Section by
bestowing the following awards:
Sheldon Hurwitz Young Lawyer Award: Given to
Matthew S. Lerner (Co-Chair, Information Technology
Committee and Editor of the Weblog) and Joanna L.
Young (Co-Chair, Diversity Committee).
Chair of the Year Award: Given to Glen A.
Monk (Chair, Premises Liability/Labor Law Committee) and
Jean F. Gerbini (Chair, Insurance Coverage
Committee).
John E. Leech Memorial Award for outstanding service
and distinguished contributions to the legal profession as a member of
the TICL Section: Sharon S. Gerstman (Executive
Committee Liaison).
On-the-mark substantive program. Section members rolled
up their sleeves January 31 for a full day MCLE program aimed at honing
lawyers’ practical skills. Topics included:
- The Art of Negotiating
- Ethical Obligations of Attorneys in
Negotiations
- Great Openings and Closings in History, Including the
Plaintiff’s and Defendant’s Perspective
- What Can and Cannot be Said in Opening and Closing
Statements—The Judicial Perspective
The business at hand. The Executive
Committee met on January 30 and 31 to elect officers and plot a course
for 2008. Highlights include:
New Officers. Daniel W.
Gerber assumed the Chair of the Section, with Charles
J. Siegel serving as his Vice-Chair. Laurie
Giordano was chosen to serve as the Section’s
Secretary. Brendan F. Baynes took the
newly-created post of Treasurer.
Expressing Views on Insurance Notice-Prejudice
Legislation. The Executive Committee expressed a diversity of
views on whether the prompt-notice-of-disclaimer provisions of Insurance
Law Section 3420(d) should be amended in the event that the Legislature
amends the Insurance Law to require an insurer to prove it has been
prejudiced by the insured’s late notice of claim.
William P. Hurley, Regional Counsel, Travelers Claim
Center General Counselor Group, gave a guest lecture on possible impacts
that notice-prejudice legislation might have on insurers’ ability
and willingness to investigate and determine claims. A memorandum
prepared by the 3420(d) Subcommittee of the Section’s Insurance
Coverage Committee was circulated for review.
Your viewpoint matters. To join the debate on
notice-prejudice and notice-of-disclaimer issues, you are invited
to:
- Join the Insurance Coverage Committee by contacting
Committee Chair, Stephen Lazare, at (SLazare@lpgk.com) or Staff Liaison,
Barbara Mahan (bmahan@nysba.org);
and
- Post your view on the Section’s
Weblog.
Future Meeting Sites. Annual Section
meetings are sited at venues attractive to lawyers and their
families. The Executive Committee hopes to build on the success of
past Section meetings in Ireland and Puerto Rico, and anticipated
success of the April 2008 program in San Diego,
California. Las Vegas was discussed as a possible venue
for the 2009 meeting; additional ideas are being solicited. To
make suggestions, you may contact Eileen E. Buholtz,
Co-Chairperson of the Future Sites Committee at ebuholtz@connorscorcoran.com
.
Membership. Notwithstanding the
Section’s moderate increase in membership, the Executive Committee
recognized the importance of diversifying membership and reaching out to
newly-admitted lawyers. Towards that end, the Executive Committee
confirmed that “ambassadors” will be selected to introduce
new Section members around at Section events. Additionally the
Executive Committee determined to investigate the feasibility
of:
- Awarding scholarships to help defray costs of
attending Section meetings; and
- Giving presentations at law school
events.
For more information, and to help with outreach,
contact Membership Committee Chair, Robert H. Coughlin,
Jr., (rcoughlin@flinksmithlaw.com
), Diversity Co-Chairs, Joanna L. Young (jyoung@cmk.com ) and Eileen E.
Buholtz (ebuholtz@connorscorcoran.com),
Young Lawyers Section Liaison, John H. Snyder (jsnyder@binghamtonlaw.com )
or your District Representative.
Law School for Insurance Claims Professionals
The TICL section is again offering to the insurance
claims community "Law School for Insurance Claims Professionals".
Because of the outstanding response to last year's program, the course
will be offered at five sites around the state, adding an Albany venue
to the course previously offered in Buffalo, Syracuse, NYC and Long
Island. Louis B. Cristo and Steven
Lazare will co-chair the program which will be held in the
fall, 2008 and will be looking for speakers at each location. The
program will include an expanded section on coverage issues. Stay tuned
for details !
For further information, and to offer your support, please contact
Louis Cristo (lcristo@trevettlaw.com) or
Stephen Lazare (SLazare@lpgk.com)
Spotlight on the Insurance Coverage
Committee
— Stephen Lazare, Committee Chair
I am delighted and honored to be assuming Coverage
Committee's Chair and look forward to working with current and new
members. It is an interesting time for New York coverage
professionals. Never has it been more important to remain involved and
be heard. The TICL Coverage Committee is the perfect forum for
such participation. Our aim is to foster an environment in which
New York's coverage attorneys can contribute to and learn from a healthy
and robust exchange of views on a broad range of
issues.
We have much planned for the coming months. We
again look forward to staging and being a part of coverage related CLE
panels, including our popular Spring program (this year being directed
by Elizabeth Fitzpatrick -- "Coverage Issues Affecting Bodily Injury
Claims Under The Commercial General Liability Policy") and the always
well-received "Law School for Claims Professionals." Among our
goals is to further expand the Committee's focus beyond traditional
liability coverages by taking an expanded role in connection with
property, professional liability and other, specialized insurance.
The Committee hopes also to develop interest and participation in a
regular, coverage "e-bulletin" to keep TICL members up to speed on the
ever-changing and evolving world of New York coverage law.
Of course, there are many ways to become involved --
as speaker, author, list-serve participant, etc. We can use your
talents. Just drop me a note (slazare@lpgk.com) to express an
interest or share your ideas.
This Committee is here for you. Let us know how
we can serve.
Yes, We Blog.
— Matthew Lerner, Weblog Editor
As part of the New York State Bar Association's larger
effort to combine cutting edge technology with timely legal news, the
TICL Section has launched its own weblog. Posts on this weblog include
case law summaries, unpublished decisions, legal news and
more.
Although merely reading these posts (lurking) is
great, this weblog certainly benefits from your participation. Because
blogging is partly a communal effort, TICL encourages you to comment on
the posts (and share your opinion or expertise) when the mood strikes
you. Also, TICL encourages you to submit interesting unpublished
decisions, appellate briefs, insurance policies, and other relevant
documents to put up for discussion (with the proviso that these cases
are no longer in litigation or they are public documents). You can
email these documents to either Charlie Siegel or Matthew
Lerner. TICL also published a weblog primer, which demonstrates how to optimize
your experience on TICL's weblog.
You can access TICL's blog here.
QUIRKS
Insurance word-smithing: A spider is not an
“insect,” and a “whacky, wild and wet fun-filled
event” is not an amusement device.
Where an insurance policy fails to define a key term,
the dictionary is the insured’s friend. Addressing an issue
of first impression, an Indiana Court recently relied upon dictionary
and encyclopedia definitions to determine that a brown recluse spider is
not an insect within the meaning of an “insect” exclusion in
a homeowner’s insurance policy. Cook v. Allstate Ins.
Co., No. 48D02-0611-PL-01156 (Madison Cty. Superior Ct., Nov. 30,
2007). Crediting the insured’s references to a Merriam
Webster dictionary, a children’s encyclopedia, an adult
encyclopedia and a scientific article, the court noted that a spider has
eight legs and two body segments, while an insect has six legs and three
body segments. Remember that next time you get bitten.
The dictionary may not serve the insurer as well as it
serves the insured. In Kramarik v. Travelers, 25 A.D.3d
960, 808 N.Y.S.2d 807 (3d Dep’t 2006), the court was asked to
decide whether a disc jockey’s foam pit dance
floor—advertised as a “whacky, wild and wet fun-filled
event”--was an “amusement device” excluded by
Travelers’ liability policy. The court rejected
Travelers’ argument, based on dictionary definitions, that any
“piece of equipment” that provided a “means of amusing
or entertaining” fell within the exclusion. Id. at
962, 808 N.Y.S.2d 807. Noting that the foam pit was a tool of the
insured’s entertainment trade, the court held that to interpret
the policy to exclude tools of the trade would contradict the
insured’s reasonable expectations in procuring the insurance
policy. Id., citing Belt Painting Corp. v. TIG Ins.
Co., 100 N.Y.2d 377, 763 N.Y.S.2d 790 (2003).
Practice Tips...Appellate Practice
1. An appellant has only 30 days to serve and file the
notice of appeal from the service of the decision and order with notice
of entry (you can add five days if served by mail and one day, if
served overnight). This deadline is controlled by CPLR 5513.
Professor Siegel describes this as the CPLR's most unforgiving deadline,
so monitor your incoming mail after an unsuccessful order or
disadvantageous judgment.
2. The deadline to file your appellant's brief and
Record on Appeal (called "perfection") is measured by the date on the
notice of appeal. The First, Third, and Fourth Appellate
Division Departments have a nine-month time limit to perfect an appeal
(Rule 600.11(a)(3) [First Department]; Rule 800.12 [Third
Department]; Rule 1000.2(b) [Fourth Department]). The Appellate
Division, Second Department has a six-month time limit (Rule 670.8
[Second Department]).
3. A respondent can move to dismiss an appellant's
appeal if the appellant does not
perfect the
appeal within 60 days of the date stated on the notice of appeal.
The respondent can do so even though the appellant has a nine-month
deadline in the First, Third, and Fourth Departments and
six-month deadline in the Second Department. An appellant should
oppose this motion if he or she intends to perfect the appeal. An
opposition explaining the steps taken to perfect the appeal will most
likely ward off dismissal. Respondents use this motion for
strategic reasons, either to shorten the time limit to perfect the
appeal or in hopes of a dismissal based on the appellant's failure to
oppose the motion.
4. The Appellate Division, First Department has a
unique calendar system, which is posted on the Court's webpage.
The calendar sets the times the filing of respondents' and the reply
brief. The deadlines are controlled by the point at which the
appellant's brief is filed. The 2008 calendar can be found here.
5. In the Second, Third, and Fourth Departments, the
parties can request oral argument by stating so on the brief's
cover. The appellate printer will state the arguing attorney and
time requested on the brief's cover. Notably, the parties in the
First Department must submit a written request for oral
argument. The deadline to do so is controlled by the 2008
calendar. If the parties fail to do so, the First Department deems
the appeal as submitted on the briefs.
THE FOREGOING IS INTENDED FOR LAWYERS ONLY, AND DOES
NOT CONSTITUTE LEGAL ADVICE.
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