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APPELLATE DECISIONS

VERDICTSMOTION DECISIONS • APPELLATE DECISIONS

PROGRESSIVE CASUALTY INSURANCE COMPANY A/S/O STEPHEN MAFFEE V. NEW YORK STATE INSURANCE FUND

(APPELLATE DIVISION, SECOND DEPARTMENT, DOCKET NUMBER 5315/07)

ORDER DATE: JANUARY 8, 2008

CC&I filed an appeal of a lower court decision which denied Progressive’s motion to vacate an arbitration award that required Progressive to reimburse No-Fault first party payments paid by the New York State Insurance Fund to its employee. The employee was a garbage collector and was struck by Progressive’s insured’s vehicle, while he was standing in the street near his garbage truck. An arbitrator determined that the garbage truck was involved in the accident, despite the fact that there was no contact between the Progressive vehicle and the garbage truck, and therefore the New York State Insurance Fund was permitted reimbursement of the No-Fault benefits it paid, under Insurance Law 5105. Progressive filed a motion to vacate the arbitration award, which was denied. On appeal, CC&I argued that the decision lacked any rational basis, as the garbage truck was not involved in the accident. The Second Department agreed with this position, and reversed the lower court’s decision.

REYES V. DIAMOND STATE INSURANCE COMPANY

2006 WL 3801939 (2D DEPT. 2006).

On December 26, 2006, the Appellate Division, Second Department issued a decision reversing a lower Court decision stemming from a declaratory judgment action in which the lower Court held that Diamond State Insurance Company’s excess policy was not available as coverage in an underlying bodily injury action. The underlying claim stemmed from a motor vehicle accident, involving a rental vehicle owned by Dollar Rent A Car. The renter of the Dollar vehicle purchased optional coverage with liability limits of $1,000,000, which was provided by Diamond State Insurance Company. Diamond State Insurance Company sought to avoid providing coverage in the underlying action, on the grounds that the driver of the vehicle was an unauthorized driver. CC&I, on behalf of the renter, argued in its appeal that Diamond State Insurance Company’s $1,000,000 policy was available as excess coverage, as Diamond State Insurance Company did not issue a timely disclaimer. Diamond State argued that it did not have to issue a timely disclaimer, as it was an excess carrier. The Second Department agreed with CC&I’s position and reversed the lower Court decision.

MIRABELLI V. ELRAC

NEW YORK SUPREME COURT, APPELLATE DIVISION, SECOND DEPARTMENT, INDEX NO.: 25395/02)

ORDER DATE: JUNE 13, 2006

CC&I successfully filed a motion for summary judgment on the grounds that the Plaintiff did not sustain a serious injury. The Plaintiff appealed the decision and CC&I submitted Briefs on opposition to the appeal. The Appellate Court agreed with CC&I’s position and upheld the dismissal on the Plaintiff’s action.

WILLIAMS V. PRECIL

NEW YORK SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, CAL. NO. 05-1166QC

ORDER DATE: SEPTEMBER 26, 2006

This claim involved a motor vehicle accident, in which the Plaintiff claimed that she injured her neck, back and shoulder. CC&I filed a motion for summary judgment which sought a dismissal of the Plaintiff’s action, as the basis that her injuries were minor and did not satisfy the “serious injury” threshold requirement of Insurance Law 5102(d). The Queens County Civil Court agreed with our arguments and granted our motion for summary judgment. Plaintiff then appealed the decision to the Appellate Term, Second Department. CC &I prepared the Briefs in opposition to the Appeal, and the Appellate Term sustained the lower court’s decision.