Category Archives: Insurance Coverage

After Removal Case Dismissed on Ground of no Serious Injury — Important Decision in Field

Jon Lichtenstein Removes Case To Federal Court And Obtains Summary Judgment On The Grounds Of No Serious Injury. Court Makes Several Important Findings Making Mva Cases Easier To Defend. United States District Court, Eastern District, Honorable John Gleeson

The plaintiff livery driver was hit in the rear while at a red light. He brought suit against the operator, the employer and the lessor of the vehicle claiming serious injuries to his low back, left knee, right shoulder and neck.  We represented all the defendants.  Plaintiff brought the case in Kings County, but we removed it to federal court on the basis of diversity jurisdiction in order to 1) put plaintiff’s attorney at a disadvantage; 2) to obtain a more defense oriented jury pool; 3) for a faster resolution of the case; 4) and to access a judge with the time and ability to sift through the thicket of factual and legal issues necessary to win on summary judgment on the grounds of the serious injury threshold of the New York No Fault law.   Continue reading

Updating Tort Law For Advances in Prosthetics (Cyborgs)

This article is reprinted with permission by the New York Law Journal from an article that was published on August 28, 2015.

In 2009, the CBS news program 60 Minutes profiled the former Director of Veterans Affairs Fred Downs, who lost his left arm in Vietnam. He had relied upon a hook style prosthetic for four decades, when he strapped on a new prototype robotic arm and picked up a bottle of soda and raised it to his lips. In a subsequent episode, when recalling that moment, Downs became emotional, telling reporter Scott Pelley “the feeling is hard to describe, for the first time in 40 years, my left hand did this [grasping]…it felt so good to move my arm again”. Pelley noted Downs had said “moved my arm again”. Pelley asked if it actually felt like his arm. Downs emphatically responded “it did, it felt like my arm, it was me.[i]Continue reading

The Legal Rights of Cyborgs – Should Damage to a Prosthetic Be Considered Property Damage or Personal Injury? – by Jon Lichtenstein, Esq.

This blog post is a reprint, with permission, of an article published in the New York Law Journal on March 25, 2015.

From time immemorial, our common law has provided one set of remedies for damage to one’s property and another set for damage to one’s person.  While the latter allows the full gamut of recovery including pain and suffering, lost earnings, medical expenses, lost enjoyment of life and loss of consortium, the former merely allows recovery of the property’s repair or replacement value.  One cannot even recover for the sentimental value of property[i].  Yet today, many of us depend on our devices to perform the normal tasks of living, such as walking, talking, hearing and seeing.  Damage to these prosthetics can leave a person without the ability to work or perform activities of daily living until repaired.  As demonstrated in this article, there is arguably a new suspect class in need of protection – cyborgs[ii]Continue reading

G&S Recovers $2.037 Million For Defense Costs Related to 2008 Crane Accident Case

This Declaratory Judgment Action arose out of the tower crane collapse on May 30, 2008 at 91st and First Avenue which resulted in multiple deaths and millions of dollars in property, person injury and business interruption claims.  We represented the owner of the crane New York Crane & Equipment and it insurance carrier against the lessee and operator of the crane Sorbara Construction Co. and its insurance carrier.  Despite Sorbara agreeing to provide insurance to NY Crane in the crane rental agreement, Sorbara’s carrier refused, claiming that NY Crane was not entitled to insurance because it had been indicted for criminally negligence homicide for allegedly putting a defective crane in service and also because the accident had not occurred while Sorbara had been working “for” NY Crane as required by the policy.  NY Crane and its principal were acquitted of all charges in the criminal case leaving only the issue of whether Sorbara was working “for” NY Crane at the time of the accident.  Sorbara’s carrier also argued that it had the right to reject defense costs it deemed not reasonable.  With respect to the former issue, Sorbara’s carrier relied on a recent Appellate Division decision involving another crane accident which denied NY Crane coverage under a nearly identical policy provision.  We argued however, that despite the two policies having essentially identical language they were formatted and punctuated differently so that when the policy provision in Sorbara’s policy was properly read, the requirement that the accident occur during Sorbara’s work “for” NY Crane did not apply when Sorbara itself was operating the crane.  The court agreed and after overcoming several further objections by Sorbara’s carrier with regard to the reasonableness of 60% of the charges, Sorbara’s carrier eventually agreed to pay $2.037 million out of the total claim of $2.3 million in defense costs associated with the underlying cases. 

Does Your Company Provide Coverage for Claims Against Chimpanzees?

On Monday, December 2, 2013, the NYT reported that an animal rights group The Nonhuman Rights Project filed a writ of habeas corpus on behalf of Tommy, a chimpanzee in Fulton County, N.Y.  Although there are laws that protect animal welfare, this is the first time there has been an attempt to establish that a non-human animal has a right to some measure of “liberty.”  The head of the Project is seeking to have New York recognize Tommy as a legal person.  The Project says the chimp “is being held captive in a cage in a shed at a used-trailer lot.” They are seeking to have the court place him in one of the several U.S. chimpanzee sanctuaries.

The NYT reports that the petition is supported by a “70-plus-page memo rich with legal, scientific and philosophical references” that argues that captive chimps are “enslaved”.  The Project argues a chimp is not a possession, but a “cognitively complex autonomous legal person with the fundamental legal right not to be imprisoned.”

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