Thursday, April 28, 2011

Appeals Court holds that multiple intentional rammings of vehicle is one occurrence

In my last post I wrote about Mass. Homeland Ins. Co. v. Walsh, 2011 WL 1344554 (Mass. App. Ct.) (unpublished), in which the Appeals Court held that compulsory auto coverage provides coverage for intentional acts.

Apparently the insured rammed the claimant's vehicle multiple times. The court held that although there were multiple discrete collisions, there was only one occurrence; the claimant's injuries arose from "a single continuous episode of ramming of his vehicle that occurred in a short spatial and temporal span."

Tuesday, April 26, 2011

Appeals Court holds that compulsory auto insurance provides coverage for intentional acts, even in PIP claims

The issue in Mass. Homeland Ins. Co. v. Walsh, 2011 WL 1344554 (unpublished) was whether an auto insurer must indemnify its insured against liability for injuries sustained by a claimant as a result of an intentional vehicular assault by the insured.

The court noted that the primary purpose of compulsory insurance is protection of travelers on the highway. It held that coverage is required whether the conduct of the insured is intentional or merely negligent.

The court implied that PIP coverage is also available for injuries arising out of the intentional act of the insured.

Wednesday, April 20, 2011

U.S. District Court denies summary judgment to Pring-Wilson's insurer

I posted here about the declaratory judgment complaint filed by Fire Insurance Company seeking interpretation of the homeowner's policy by which it insured Alexander Pring-Wilson's mother. Pring-Wilson, a Harvard graduate student, had pleaded guilty to involuntary manslaughter of Michael Colono in Massachusetts. Colono's estate filed a wrongful death action against him, and he sought coverage under the homeowner's policy issued to his mother in Colorado.

In Fire Ins. Exchange v. Pring-Wilson, 2011 WL 1162913 (D. Mass.), the United States District Court for the District of Massachusetts has denied the insurer's motion for summary judgment, on the grounds that there were facts supporting the propositions that Colono's death was an accident, and that his death was not reasonably foreseeable under the Colorado law of insurance coverage.

According to the opinion, Pring-Wilson was walking late at night and Colono was parked in a car with two friends, including Sammy Rodriguez. Words were exchanged and Colono got out of the car and began to fight with Pring-Wilson. Rodriguez then got out of the car and joined the fight. Pring-Wilson pulled out a knife he habitually carried and began flailing it in front of him, cutting Colono in five places. Colono and Rodriguez got back in their car, and apparently neither of them at first realized that Colono had been cut. When Rodriguez realized that Colono was injured he sought help. Colono died in a hospital that night.

The fight had taken little more than a minute. As soon as the other two men drove away, Pring-Wilson called 911. Although he denied that he was involved in the fight he reported that he had seen a man get stabbed.

In the civil wrongful death trial, the state superior court judge had concluded that Wilson had not sought help from a nearby store and therefore and not availed himself of all reasonable alternatives to combat, and that Pring-Wilson had employed more force than was reasonably necessary to repel the attack. He also concluded that Pring-Wilson did not intend to kill or inflict serious injury with his knife, but only to drive the other two men away.

The U.S. District Court examined whether Colono's death was an accident (and therefore an occurrence) within the meaning of the policy and under Colorado law. It held that some facts supported the conclusion that Colono's death was accidental, including that Pring-Wilson had not intended to kill or seriously harm Colono; that the fight was quick and confused; that Colono was not aware that he had been wounded; and that at least four of the five knife wounds were very shallow.

The court then examined whether the intentional acts exclusion excluded coverage. It held that the exclusion did not apply because under Colorado law Colono's death was not reasonably foreseeable given Pring-Wilson's conduct.

Friday, April 15, 2011

Appellate Division holds that insurer's withholding of evidence does not shift burden of proof in PIP case

Excel Physical Therapy sued Commerce Insurance for reimbursement of costs of treatment of Hayes. Hayes claimed she was injured when riding as a passenger in a car insured by Commerce. Commerce denied the claim, asserting that Hayes was not in the car when the accident occurred. (That type of insurance fraud is called a "jump in.")

During discovery Excel had requested Commerce's claims logs. In response, Commerce provided a claim note that was extensively redacted.

At trial Excel argued that Commerce's improper discovery response shifted to Commerce the burden of proving the affirmative defense that Hayes was not in the insured vehicle when the accident occurred. The trial judge agreed and directed a verdict to Excel.

In Excel Physical Therapy, Inc. v. Commerce Ins. Co., 2011 WL 1167214 (Mass. App. Div.) the Appellate Division overturned the trial judge's decision. It noted, "It is elementary that a claimant under a policy of insurance has the initial burden of proving that he or she is covered under the policy. . . . Commerce was not required to prove its alleged defense to Excel's PIP claim before Excel proved the claim." It was Excel's burden to prove that Hayes was entitled to PIP benefits because she occupied a vehicle insured by Commerce.

The court held that the proper remedy for withholding evidence based on privilege during discovery is the exclusion at trial of the withheld evidence, not a shifting of burdens.

Friday, April 8, 2011

Effect of possibility of insurance on jurors

Although the existence of insurance cannot be discussed or even alluded to at civil trials, pretty much every trial attorney assumes that a juror will bring up the fact that damages will be paid by an insurer, whether or not that is true. Here's an article from the wonderfully (or just weirdly) named Jury Research Blawg Konnectionn that discusses research into the issue.

Thursday, April 7, 2011

U.S. District Court holds that fee dispute between law firm and former associate is not covered by malpractice insurance

Law firm Freedman, DeRosa & Rondeau (FDR) sued a former associate, Adam Clermont, for a portion of fees he collected from clients he continued to represent after leaving FDR. Clermont sought coverage from his legal malpractice insurer, Continental.

The policy covered claims "the Insured shall become legally obligated to pay as damages and claim expenses because of a claim . . . by reason of an act or omission in the performance of legal services by the insured."

"Claim" was defined in the policy as "a demand . . . arising out of: (1) an act or omission, . . . in the rendering or failure to render legal services."

"Legal services" was defined in the policy as "those services . . . performed by an Insured for others as a lawyer, arbitrator, mediator, as well as a notary public, or as a title agent."

"Damages" was defined in the policy as "judgments, awards and settlements." The definition excluded "legal fees, costs and expenses paid or incurred or charged by the Insured," and "injunctive or declaratory relief."

In Clermont v. Continental Cas. Co., 2011 WL 1235389 (D. Mass. 2011), the court held that a fee dispute did not come within the policy's definition of "legal services." It also held that the dispute fell within the exclusion to the definition of damages.

Friday, April 1, 2011

Shopping for coverage can pay off

Although the couple that writes this blog, Sustainable Personal Finance, is Canadian, their point in this post on insurance agents is well-taken here as well: it never hurts to shop around.

As with all things in life, however, the cheapest coverage is not necessarily what you need. What is included in the coverage? What is excluded? What is the reputation of the insurer with respect to paying or fighting fair claims? What is the deductible? Does the property coverage provide replacement cost or present value? Do attorney's fees reduce the coverage limits? Is the insurer in danger of going out of business?