Category Archives: Civil Litigation

Lois LLC counts among its clients several general liability, premises liability and automobile liability insurance carriers and third party administrators. Our attorneys regularly represent these clients’ insureds in defense of personal injury matters filed in all counties in Metropolitan New York, all counties in New Jersey and in the federal courts. We also defend the rights of carriers and self-insureds in reimbursement claims under New York WCL § 29 and New Jersey’s Section 40 (N.J.S.A. 34:15-40).

As with all litigated matters, we take a proactive approach to the defense of claims of personal injury and, as a result, our clients enjoy a very high rate of success in settlement and at trial. Learn more here: https://loisllc.com/general-litigation/

VIDEO: Loss Transfer Claims in New York

The “Major Monday’s” Webinar

In this video, “Loss Transfer Claims in New York,” Christopher Major, Civil Practice Team Leader at Lois Law Firm, discusses claims for reimbursement made between carriers for first-party benefits. This video is from a live presentation on January 13, 2020.

Major discusses the following:

  • How N.Y. Ins. Law § 5105(a) allows for loss transfer.
  • Which accident claims qualify for loss transfer.
  • How recent case decisions will impact the practice in 2020.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading VIDEO: Loss Transfer Claims in New York

Loss Transfer Claims in New York: Civil Litigation Webinar

Join Us for This Live Webinar on Monday, January 13, 2020 at 12PM EST

In this live webinar, “Loss Transfer Claims in New York,” Christopher Major, Civil Practice Team Leader at Lois Law Firm, discusses claims for reimbursement made between carriers for first-party benefits. Join us for this live discussion and Q & A.

Major will discuss the following:

  • How N.Y. Ins. Law § 5105(a) allows for loss transfer.
  • Which accident claims qualify for loss transfer.
  • How recent case decisions will impact the practice in 2020.

To register for our Civil Litigation Webinar Series, a monthly discussion of recent case law developments and best practices for handling civil claims and reimbursement actions, click the button below (or register here).

Continue reading Loss Transfer Claims in New York: Civil Litigation Webinar

Risk Transfer: The Carrier’s Overlooked and Underutilized Secret Weapon

Every workers’ compensation defense attorney worth their salt is well familiar with the standard tactics for pushing claims toward resolution and mitigating exposure. There are a finite number of tools at the carrier’s disposal:

  • denying claims and raising defenses;
  • conducting a proper investigation (site inspections, security camera video, witness statements, background checks, employee personnel files, social media usage reports, ISO claim searches, police reports and FOIL requests, etc.) and surveillance of the injured worker;
  • obtaining independent medical examinations (“IME”) and functional capacity evaluations (“FCE”) for issues such as need for treatment and medical necessity, temporary disability, work capacity and restrictions, permanent disability, etc.;
  • raising fraud;
  • litigating claims (injured worker and witness testimony, depositions of doctors, appeals and summations, discovery and disclosure including subpoenas and interrogatories, etc.); and
  • pushing prompt settlement to cut off ongoing exposure.

However, there is one area of insurance defense that a startling number of trial attorneys demonstrate a lack of familiarity with: risk transfer.

Continue reading Risk Transfer: The Carrier’s Overlooked and Underutilized Secret Weapon

Appellate Division weighs in on Commercial Premises Liability Coverage Issues

The facts of Campbell were founded on two slip-and-fall accidents in the parking lot of a surgery center. Under its lease, the surgery center agreed to name the landlord as an additional insured on its general liability policy, which it did. Under the lease, the landlord was required to maintain the parking lot, including snow removal. It was undisputed that the plaintiffs were both patients of the surgery center and were injured due to slipping on ice in the parking lot.

The Appellate Division reviewed four of its prior published opinions in this area, in an effort to determine whether the surgery center’s carrier was obligated to defend and indemnify the landlord. Ultimately, the court found that the plaintiffs’ activities “arose out of” the surgery center’s use of the premises, thereby bringing the landlord within the center’s policy. Quite frankly, this was not a surprising result, given the court’s prior decisions. However, the court went on review the two policy types and determined that the center’s insurance policy was not a “true” excess policy, but rather a “primary insurance policy with an excess insurance clause.” The court then examined the the “other insurance” clauses of both policies The tenant’s policy, issued by Lexington Insurance company, mandated that if other insurance applied to the loss, the other insurance must pay first. Thus, according to its terms, the tenant’s Lexington policy only provided excess coverage to additional insureds. An examination of the language of the landlord’s own Maryland Casualty policy revealed that it was to be excess over any other primary insurance providing coverage for damages arising out of premises for which the insured had been added as an additional insured. The Campbell court concluded that since by its terms the tenant’s policy only afforded the landlord excess coverage, there was no other primary insurance available. Therefore, the condition limiting the coverage of the landlord’s own policy was not met and that policy must provide primary coverage.

WHY IS THIS IMPORTANT? This decision can be viewed as a significant roadblock at efforts to tender landlord’s defenses to tenants and their insurers for fall-downs which arise out of a tenant’s use of the premises. Tompkins, McGuire, Wachenfeld & Barry, LLP routinely counsels both property owners and tenants, as well as their insurers, on matters of general liability and insurance coverage. We would be happy to discuss the facts of your particular case as they might be affected by this new decision.

Homeowners not liable for injuries to independent contractors

In Whitten v. Sybron Chemicals, Inc., the defendant Sybron hired the plaintiff’s employer to perform maintenance on chemical manufacturing tanks. The plaintiff, a foreman, was injured in a fall from a ladder while repairing a piece of machinery inside one of defendant’s sludge tanks. He claimed the fall was caused by sludge the defendant’s employees failed to clean. However, he admitted he knew of the slippery condition. The court held that since the plaintiff worked for an independent contractor, and since the presence of the sludge was a known and visible hazard that was incidental to the very work the plaintiff was to perform, the defendant had no duty to ensure the plaintiff’s safety. This holding falls in step with a line of New Jersey case law that abrogates the general rule that landowners have a nondelegable duty to ensure the safety of all who enter onto the premises. It thus becomes important upon receiving notice of an accident to thoroughly investigate precisely how the injury occurred and under what circumstances.

Biomechanics experts testimony admissible

Following a series of unfavorable rulings in the Appellate Division over the past few years, New Jersey courts were generally of the view that biomechanical experts could not be called upon by defendants to opine that a minor automobile accident could not have possibly caused a serious medical condition. However, on March 6, 2008, the New Jersey Supreme Court announced its decision on Hisenaj v. Kuehner, ___ N.J. ____ (2008), reversing an appellate court that overstepped its bounds in throwing out the report of Harold Alexander, PhD., based upon the conclusion that it was not supported by reliable scientific methodology. Thus, the defendants were left with the prospect of facing exposure for significant medical treatment, including spinal surgery, for a motor vehicle collision occurring at less than ten miles per hour. However, the Supreme Court found that the studies Dr. Alexander relied upon, as opposed to those used for support in prior cases, included similar accidents and similar victims in terms of age, gender and physical composition. Thus, the opinions offered were sufficiently supported by scientific data for admissibility.

This was an important victory for insurance carriers in New Jersey, as juries will no longer be left to determine whether low impact collisions correlate to serious medical conditions, especially in the spine, which often times are pre-existing. However, it remains important for defense counsel to insist that their biomechanical experts rely upon the most recent and up-to-date empirical evidence.

TMWB maintains an extensive automobile liability defense practice, representing insureds on personal auto, as well as commercial policies.