Articles Posted in Manhattan

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As described in the Appellate Court’s prior opinion, the complainant woman had two industrial accidents while she was working for the Paint Company before she was involved in an automobile accident that had nothing to do with work. Originally, the judge of compensation claims denied all benefits on the theory that the third (non-compensable) accident was the major contributing cause of her injuries and disability. The Manhattan Appellate Court reversed and remanded, holding that the claimant is entitled to any medical or compensation benefits attributable to either or both of the work-related accidents.

On remand, a successor judge of compensation claims found that the woman’s head injury and jaw condition were causally related solely to the first industrial accident, that her cervical and thoracic spinal injuries were related to all three accidents, and that her lumbar spinal condition was wholly unrelated to the first accident, but attributable equally to the second and third accidents. On the basis of competent, substantial evidence, the judge of compensation claims attributed two-thirds of the woman’s need for treatment of her cervical spine, thoracic spine, and psychiatric problems to the industrial accidents.

The Staten Island employer of a claimant who suffers an industrial injury must furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require. Medical care is properly awarded when the need for such care arises from the combined effect of industrial and nonindustrial conditions. As indicated, the employer is responsible for treatment required by the non-compensable injury if such treatment would not presently be required but for the existence of the compensable injury. The Appellate Court thus approves the approach the judge of compensation claims took on the medical benefits questions, and most of the results he reached.

But the order under review also made the Paint Company responsible for half of the expense of treating the woman’s lower back or lumbar spine injury. While competent, substantial evidence supports the finding that she did not sustain a lumbar spinal injury in the first car accident the record lacks competent, substantial evidence supporting the decision to allocate responsibility for treatment of that injury is fifty-fifty. Such an allocation is not justified simply because the need for treatment was causally related both to the second and to the third accidents. None of the doctors whose opinions the judge of compensation claims cites in support of a fifty-fifty split stated that the second and third accidents were equally responsible for the condition of the woman’s lumbar spine.

The woman also contends that the judge of compensation claims erred in denying her claims for treatment with a neuropsychologist and with a separate, pain management specialist. The order provides that the authorization of a pain management physician is deferred until the claimant resumes treatment with authorized neurosurgeon, and the suggested treatment is deemed to be reasonable and medically necessary. It further provides that the authorization for care and treatment of the claimant’s neuropsychological condition is deferred until the claimant resumes treatment with the authorized psychiatrist and suggested neuropsychological treatment, is deemed to be reasonable and medically necessary.
A judge of compensation claims has no authority to delegate the decision of claims pending before him to medical providers, to delay decision indefinitely, or, in a final order, to defer to opinions not yet offered.

The judge of compensation claims found that the woman was entitled to temporary partial disability benefits from the April 30, 1996 accident until she reached statutory maximum medical improvement on May 1, 1998, and to permanent total disability benefits thereafter. He then ruled that she was entitled to only two-thirds of the normal indemnity benefits, holding that entitlement to a third of the benefits otherwise due was carved out by the non-compensable accident. This analysis was erroneous.

If a subsequent non-compensable accident superimposes an injury on a compensable condition, the disability resulting solely from the subsequent accident is not compensable. As to temporary indemnity benefits, the question that should have been addressed on remand-and must now be addressed on a second remand-is whether the woman’s disability attributable to the industrial accidents would have rendered her (partially or totally) unemployable, without regard to the effects of the third accident.

An employer is not entitled to receive a windfall when some misfortune unrelated to work befalls an industrially injured employee and prevents his working, if a prior industrial accident would otherwise have entitled the employee to workers’ compensation benefits.
Similarly, as to permanent indemnity benefits, the judge of compensation claims must decide on remand whether the woman’s disability attributable to the industrial accidents would have rendered her totally and permanently disabled even if the third accident had never occurred. An evidentiary issue is presented as to what portion of the disability is caused by the compensable accident, even where the non-compensable condition is independently a sufficient producing cause of claimant’s total disability. The question is whether she was or would have become totally disabled in the absence of the non-work-related accident.

Accordingly, all awards of indemnity benefits and any award of medical benefits that pertain specifically to the lower back or lumbar spine are reversed, and the case is remanded for further proceedings on those claims. The order is otherwise affirmed.
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On 12 August 2003, a Staten Island woman, who was insured by a certain insurance company, was involved in a motor vehicle accident. She was driving her van when she made a left turn directly into the path of a motorcycle operated by a certain man. The impact caused the operator of the motorcycle (the victim) to be ejected and landed about nineteen feet away. Thereafter, the Manhattan police and paramedics arrived and the victim was taken to the hospital, and it was determined that he sustained serious injuries. The victim stayed in the hospital for thirteen days, and was later transferred to a nursing home.

After the said incident had occurred, the aforesaid woman immediately reported the car accident to her insurance company. In response, the insurance company assigned someone to handle the claim (the agent), who spoke generally about the accident with the said woman (the insured woman); ascertained that neither the insured nor her daughter, who was in the van with the woman at the time of the accident, was injured; advised her that she had $10,000 coverage limits, that is, $10,000 in property damage coverage and $10,000 in bodily injury coverage; and concluded that the insured was probably at fault in causing the accident. After that, the agent assigned attempted to call the victim, who was still in the hospital, but was unable to reach him. The agent then ordered an appraisal of the victim’s motorcycle and assigned that portion of the damage claim to the insurance company’s claim service center in Virginia.

On 18 August 2003, the insurance agent received a call from an attorney (lawyer-one), who indicated that he was representing the victim. However, ten days later, lawyer-one notified the agent that he was no longer representing the victim and provided him with a notice of his attorney’s lien.

On 20 August 2003, the agent obtained the car accident report. The report stated that the woman turned directly in front of the victim who was ejected nineteen feet, and thereby suffered an incapacitating injury. On 26 August 2003, the appraisal of the motorcycle revealed that it was a total loss. Thus, the agent authorized payment of the full $10,000 property damage policy limits. On 29 August 2003, the agent sent the insured woman a certified letter advising her that, because the property damage would exceed her insurance coverage, she was personally exposed to an excess judgment for both property damage and bodily injuries; acknowledged that it was reported to them that the claimant sustained serious bodily injuries, and cautioned that the insurance company will make every effort to resolve the claims within the insurance coverage, but that, due to the serious nature of the accident, it may not be possible; and that under no circumstances will the Claims Service or the insurance company assume responsibility for any claims or judgments in excess of the insurance coverage.

On 9 September 2003, the victim’s new attorney, lawyer-two, sent a letter to the agent asking for the policy information within thirty days, but the insurance company did not provide that information until sixty days later. On 9 October 2003, the agent spoke with the lawyer-two’s paralegal and was informed that the victim sustained a significant spinal cord injury, with several broken bone injuries, among others, and that he might be paralyzed. After this conversation, the agent set the reserves for the bodily injury claim to the full $10,000 policy limit and sent a letter to lawyer-two’s law firm asking for the victim’s medical records and bills stating that they would like to settle the bodily injury claim as soon as possible; informed them of lawyer-one’s lien; and indicated that the said lawyer’s name needed to be on the settlement check. On 19 December 2003, the new lawyer sent medical authorization forms signed by the victim to the agent, but the agent did not order such records, and requested only the hospital records on 13 January 2004, or almost five months after the accident. On 30 January 2004, the agent received the said hospital records. On 4 February 2004, the agent sent a letter to lawyer-two acknowledging the serious injuries the victim suffered and offered to settle the claim contingent upon placing lawyer-one’s name on the settlement check or obtaining an agreement regarding the lien; and that he would be contacting lawyer-one to ascertain whether such lawyer intended to pursue his lien, however, the record does not reflect that the agent ever contacted the first lawyer.

On 5 February 2004, the agent sent a status report to the insured woman informing her that the victim had an extended hospital and nursing home stay due to his serious injuries, which included a spinal cord injury, several broken bone injuries, particularly, vertebrae fractures, rib fractures, along with a punctured lung, and a scalp laceration. The agent advised her that he offered to pay the bodily injury liability limit of $10,000 but cautioned that because of the serious injuries it might be impossible to settle within the policy limits.

On 11 February 2004, the agent sent another letter to lawyer-two identical to the February 4 letter. On 17 February 2004, lawyer-two responded and advised that if and when the policy limits are tendered, he will discuss it with the victim; and that he would be responsible for any alleged lien on the part of lawyer-one. On 2 March 2004, in response to lawyer-two’s February 17 letter, the agent expressed uncertainty as to the word “tender.” He thought he had already tendered the policy limits, even though no check had been enclosed, and he again wanted assurance that lawyer-two would be responsible for the payment of any potential attorney’s lien. On 8 March 2004, lawyer-two explained that there had not been a tender of policy limits and that, if the agent was unsure of that term, he needed to check it with his legal department; that, due to the catastrophic nature of the victim’s injuries, there should have been a tendering of policy limits; and, yet again, advised the agent that the victim would be responsible for any potential attorney’s lien. On 24 March 2004, the agent faxed a copy of lawyer-one’s 28 August 2003 attorney’s lien to lawyer-two, and on the cover sheet, he again expressed confusion over the term “tender of policy limits”. On 25 March 2004, he also sent a letter indicating that the insurance company’s offer to settle the victim’s claim is tender of the limits; and that if lawyer-two wanted the settlement check, he would need to put in writing that he would settle the attorney’s lien from the proceeds of the check. Lawyer-two responded by insisting that his demand for a tender of policy limits was clear and reiterated that, if the agent needed clarification, he needed to check with his legal department; questioned the potential insignificance of the attorney’s lien stating that the value of lawyer-one’s lien is unimaginable considering the period that lawyer-one’s services was engaged, noting that the accident occurred on 12 August 2003 and the letter advising them of the lien is only dated 28 August 2003.

On 1 April 2004, after an almost eight months from the date of the accident, the insurance company formally tendered the policy limits of $10,000. However, by reason of the insurance company’s delay, he already filed suit against the insured woman, as directed by the victim. Lawyer-two was so surprised at how long it took the insurance company to tender the limits especially due to the catastrophic nature of the injuries, noting that the victim would have settled the claim at any point through February.

The victim and his wife filed suit against the insured woman, while the insured woman filed a bad faith claim against the insurance company. Thereafter, a stipulated judgment in excess of the policy limits was entered by agreement among the victim, the victim’s wife, the insured woman, and the insurance company, but it expressly left open the issue of whether the insurance company had acted in bad faith in failing to settle the victim’s claim.

In the bad faith action, the insurance company filed a motion for summary judgment. The insurance company alleged that, as a matter of law, it did not act in bad faith; that it had orally offered to settle for its policy limits within a day of receiving the medical records; thus, final judgment should be entered in its favor. In opposition, the insured woman filed two affidavits, one by a claims-handling expert and the other from an attorney. In the affidavits, it was stated that, based on the low limits of the insured’s policy and the potentially catastrophic injuries to the victim, the insurance company should have tendered its policy limits not later than October 2003; that the method of claims handling followed by the insurance company was not appropriate under the circumstances; that the insurance company failed to conduct a thorough and prompt investigation using all sources available to all parties; that the insurance company demonstrated a lack of urgency and lack of concern to its insured; that the insurance company violated its fiduciary duty to its insured by failing to understand the duty to make a tender of policy limits as soon as the adjuster determined it was likely that the value of the claim would exceed the policy limits; that the insurance company breached its duty by refusing to protect the insured until it received medical records documenting the nature and extent of the injuries and requiring written confirmation of those injuries when it already knew of the severity of the injuries; and that the purported attorney’s lien should not have been a factor in the settlement considerations. The trial court granted summary judgment in favor of the insurance company. Hence, an appeal followed.

The ultimate issue in this case concerns whether the insurance company acted in bad faith in failing to settle a claim against its insured. On the standard of review in appeals of this case, the trial court’s ruling on a motion for summary judgment is a question of law and is subject to the de novo standard of review. Summary judgment should be granted only when there is a complete absence of genuine issues of material fact. Where material issues of fact which would support a jury finding of bad faith remain in dispute, summary judgment is improper.
Well settled is the rule that an insurance company has an obligation to properly defend its insured from claims that are covered within the policy of insurance and that it must exercise good faith in satisfying that obligation. When defending its insured against a claim, the insurer has a duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable, and settle the claim, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so. The question of whether an insurer has acted in bad faith in handling claims against the insured is determined under the totality of the circumstances standard where each case is determined on its own facts, and, ordinarily, the question of failure to act in good faith with due regard for the interests of the insured is for the jury.

Here, it must be noted that the insurance company knew, within days of the accident, that the insured was entirely at fault; that, because the accident involved a motorcycle, the insured would be responsible for all of the personal injury damages that exceeded her $10,000 policy, without regard to the issue of whether the victim suffered a permanent injury; and, that the victim suffered catastrophic injuries to which he was hospitalized for thirteen days and later transferred to a nursing home, and sustained a spinal cord injury, including several broken bone injuries, particularly, vertebrae fractures, rib fractures, a punctured lung, and a scalp laceration. Thus, the court finds that it cannot conclude, as a matter of law, that the insurance company satisfied its duty of good faith.

Moreover, an insurance company has the fiduciary duty to timely, and to properly, investigate claims against its insured. This duty is not relieved simply because the company is waiting for some information from the victim’s attorney. It is evident on the record that the insurance company knew that the victim’s injuries would exceed the policy limits of $10,000. Thus, the company’s failure to tender the policy limits created a genuine issue of material fact regarding whether it breached its duty of good faith.

Lastly, on the argument that summary judgment was appropriate because there was never a formal offer to settle the case, a lack of a formal offer to settle is a factor to be considered in determining whether the insurance company acted in bad faith.

In all, the question of whether it was reasonable for the insurance company to insist on additional medical information beyond what it already knew and insist on further verification of the attorney’s lien issue, and whether the insurance company reasonably handled the purported “tender” are indeed factual disputes that must be determined by the finder of fact. It is without a doubt that the record contains genuine issues of material fact to be resolved by the fact-finder as to whether the insurance company acted fairly and with due regard for the insured’s interest; whether the insurance company’s actions were reasonably diligent and exercised with reasonable care. Accordingly, the court finds that the summary judgment appealed from must be reversed.
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This is an action to recover damages for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident on June 24, 2006 at approximately 8:45 a.m. The accident occurred at Hill Avenue at its intersection with Hempstead Turnpike, Hempstead, New York. Plaintiff alleges that he was stopped at a red light when the vehicle owned and operated by defendant rear-ended plaintiff’s vehicle. The police accident report states that “motor vehicle #1 in collision with motor vehicle #2.”

In his bill of particulars, a source said that plaintiff alleges that he sustained the following injuries: subligamentous central posterior disc herniation at C4-5, subligamentous central posterior disc hernation at C5-6, impinging on the anterior aspect of the spinal canal posterior lumbar herniation at L4-5, and straightening of the lumbar curvature.

A Lawyer said that, defendant moves for summary judgment dismissing the complaint on the grounds that plaintiff did not sustain a serious injury as defined by Insurance Law § 5102(d). In support thereof, defendant relies uponplaintiff’s deposition testimony and an affirmed medical report of the doctor. At his examination-before-trial, plaintiff testified to his inability to perform activities due to his injuries sustained in the accident. Specifically, The Bronx plaintiff was physically restricted and not able to swim, mountain bike and exercise.

On June 8, 2010, the doctor performed an independent orthopedic evaluation of plaintiff. His examination of the cervical spine revealed “maintenance of the normal cervical lordosis. Range of motion reveals flexion to 50 degrees (50 normal), extension to 45 degrees (45 normal), right and left lateral bending to 45 degrees (45 normal) and right and left rotation to 80 degrees (80 normal). There is right and left sided paracervical tenderness. There is no spasm noted upon palpation. Compression and Spurling tests are negative. Deep tendon reflexes are 2+ and equal in the upper extremities. Upper extremity strength is 5/5. There is no noted atrophy. Sensation is intact.” His examination of the thoracolumbar spine revealed “maintenance of the normal lumbar lordosis. Range of motion of flexion is to 90 degrees (90 degrees normal), extension to 30 degrees (30 degrees normal), right and left lateral bending to 30 degrees (30 degrees normal) and right and left rotation to 30 degrees (30 degrees normal). Straight leg raise testing is negative, performed to 90 degrees bilaterally in the sitting position. There is no paralumbar tenderness. There is no spasm noted upon palpation. Lasegue and Fabere tests were negative. Deep tendon reflexes are 2+ and equal. Lower extremity strength is 5/5. Sensation is intact. There are no signs of lower extremity atrophy.” His impression was: cervical sprain, resolved; lumbar sprain, resolved. Finally, he opined that plaintiff has “no orthopedic disability at this time and that there is no residual or permanency.”
The issue in this case is whether plaintiff sustained serious injury as defined under Insurance Law.

The Manhattan Court said that, as a proponent of the summary judgment motion, defendant had the initial burden of establishing that plaintiff did not sustain a causally related serious injury under the permanent consequential limitation of use, significant limitation of use and 90/180-day categories. Defendant’s medical expert must specify the objective tests upon which the stated medical opinions are based and, when rendering an opinion with respect to plaintiff’s range of motion, must compare any findings to those ranges of motion considered normal for the particular body part.

The defendants established their prima facie entitlement to judgment as a matter of law by submitting, the affirmed medical reports of the doctor who examined plaintiff in 2010 and found no significant limitations in the ranges of motion with respect to any of his claimed spinal injuries, and no other serious injury within the meaning of Insurance Law § 5102(d) causally related to the collision.

The burden now shifts to plaintiff to demonstrate, by the submission of objective proof of the nature and degree of the injury, that she sustained a serious injury or there are questions of fact as to whether the purported injury, in fact, is serious. In order to satisfy the statutory serious injury threshold, a plaintiff must have sustained an injury that is identifiable by objective proof; subjective complaints of pain do not qualify as serious injury within the meaning of Insurance Law § 5102(d).

Plaintiff must come forth with objective evidence of the extent of alleged physical limitation resulting from injury and its duration. That objective evidence must be based upon a recent examination of the plaintiff. Even where there is medical proof, when contributory factors interrupt the chain of causation between the accident and the claimed injury, summary dismissal of the complaint may be appropriate. Whether a limitation of use or function is significant or consequential relates to medical significance and involves a comparative determination of the degree or qualitative nature of an injury based on the normal function, purpose and use of a body part.

It has been repeatedly held that “the mere existence of herniated or bulging discs, and even radiculopathy, is not evidence of a serious injury in the absence of objective evidence of the extent of the alleged physical limitations resulting from the disc injury and its duration”.
Moreover, “a defendant who submits admissible proof that the plaintiff has a full range of motion, and that she or he suffers from no disabilities causally related to the motor vehicle accident, has established a prima facie case that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), despite the existence of an MRI which shows herniated or bulging discs “.

In opposition to the motion and in support of his cross-motion, plaintiff submits, the parties’ deposition testimony; the police accident report. Contrary to plaintiff’s contention, he has not raised a triable issue of fact as to whether he sustained a serious injury as defined by Insurance Law §5102(d). The affirmations from plaintiff’s chiropractors lack probative value as they are not in proper form. Moreover, these chiropractors do not set forth any foundation or objective medical basis supporting the conclusions they reached.

The remaining submissions of plaintiff, which consisted of unaffirmed magnetic resonance imaging reports of plaintiff’s lumbosacral spine and cervical spine injury is also without probative value as they are unaffirmed. In addition, plaintiff failed to explain or address the prolonged gap in medical treatment. Finally, plaintiff has not sustained his burden under the 90/180 day category which requires plaintiff to submit objective evidence of a “medically determined injury or enforcement of a non-permanent nature which prevents the injured person from performing substantially all of the natural acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury”. When construing the statutory definition of a 90/180 day claim, the words ‘substantially all’ should be construed to mean that the person has been prevented from performing his usual activities to a great extent, rather than some slight curtailment.”

Specifically, plaintiff has no admissible medical reports stating that plaintiff was disabled, unable to work or unable to perform daily activities for the first ninety (90) days out of one hundred eighty (180) days, Plaintiff is only able to proffer his own self-serving proof that he missed 3-4 days of work; that he couldn’t go swimming in the ocean while on a working trip to Mexico; that he couldn’t go mountain biking anymore; or exercise as frequently as he used to.
In light of our determination, plaintiff’s motion for summary judgment on the issue of liability has been rendered moot. Accordingly, the Court held that the plaintiff’s motion is denied. The Defendant’s motion is granted. It is hereby ordered, that the plaintiff’s Complaint is dismissed.
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An automobile accident occurred and, as a result, the appellee suffered serious injuries. He was taken to a Medical Center where he was evaluated by several NYC physicians, including a surgeon, an orthopedist, and a radiologist. However, these physicians misinterpreted appellee’s x-rays and radiological studies, and negligently concluded that he did not suffer a recent spinal injury, specifically a spinal column injury. Consequently, the attending surgeon and assistant encouraged appellee to attempt to walk approximately a week after the automobile accident. When he arose from the bed, appellee felt a shock and collapsed. He was then transferred to another Medical Center, a Regional Medical Center (second Medical Center), where he underwent surgery on his spine, but the surgery was not successful in reversing the spinal column damage, the spinal injury. The appellee then retained a lawyer of a certain law firm to investigate and initiate a legal malpractice action against the various physicians. The lawyer considered joining the physicians individually in the malpractice suit but, for various reasons, he decided not to join. He sent an “intent to sue” only to the two Manhattan Medical Centers and its physicians. However, when the complaint was filed, the first Medical Center was not named. Thereafter, during discovery, the lawyer realized that the second Medical Center’s defense was based upon the comparative fault of the first Medical Center and its physicians. At this point, the statute of limitations had already expired, and the lawyer realized the potential of a legal malpractice claim for failing to join them. Thus, the lawyer then contacted his insurance company and referred the appellee to a new counsel.

The appellee and the second Medical Center, and its physicians, entered into a settlement agreement in the amount of $1,000,000, and then brought a legal malpractice action against the lawyer and his firm, which the Insurance Company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the “aggregate” amount applied. Specifically, the parties disputed whether the attorney’s failure to name the first Medical Center and each individual physician constituted independent wrongful acts or a single claim. So, the appellee filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because the lawyer committed multiple wrongful acts, the appellee claimed that he was entitled to the aggregate limits. The Insurance Company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act; that, since there was only one claim, the appellee was entitled to only $250,000 in coverage. The trial court agreed with the appellee and, on motion for summary judgment, entered a judgment in favor of the appellee for the aggregate limits. Based upon its interpretation of the policy, the trial court found that there were several acts of malpractice during the legal representation of appellees. Thus, the trial ruled that the appellees were entitled to the aggregate policy limits. The Insurance Company now appeals the said judgment.

The issues for the court’s determination is whether or not, pursuant to the insurance policy of the law firm the aggregate policy limit should apply where the appellee’s attorney committed multiple wrongful acts by failing to join several defendants in his medical malpractice action; whether or not, because each of the defendants had separate insurance coverage available to pay a damage award, appellee had multiple claims against his attorney.

The insurance company argues that appellee has only a single claim because he suffered one injury, that is, he did not receive his full recovery because the attorney failed to join all the proper defendants before the statute of limitations tolled; that even if the failure to sue each defendant is considered a wrongful act, these wrongful acts are related to the appellee’s sole malpractice claim against his attorney.

The appeal arises from a dispute regarding the policy limits of a legal malpractice insurance policy. The insurance policy in dispute is a “claims-made” policy which covers claims made against the insured during the policy period. The policy specifically provides that the insurance company shall pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period; that a claim means a demand received by the insurance company or an insured for money or services; and that a wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an insured. Under the conditions of the policy, the maximum amount that the insurance company will pay for each claim is the limit shown in the declarations as “per claim” for all claims and claims expenses arising out of or in connection with the same or related wrongful act; that this limit applies regardless of the number of persons that are insured under the policy or the number of claimants; that the aggregate, subject to the aforementioned condition, maximum amount that the insurance company will pay for all claims and claims expenses will not exceed the limit shown in the declarations as aggregate; and that all wrongful acts for which claims, or incidents which will later become claims, reported during the policy period are included.

As a rule, the construction and interpretation of an insurance policy is a question of law for the court. Such contracts are read in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

Here, the court finds that the Insurance Company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. Notably, there was but one demand for money, namely the lost recovery because of the failure to join various other defendants and thus one claim. Even if the appellee had multiple claims against his attorney, the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The California Supreme Court has already ruled in one case that, when a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained, there can only be a single claim under the attorney’s professional liability insurance policy. Applying that rationale to the case at bar, the appellee retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible defendants in his action. While the attorney’s negligent omission may be considered multiple wrongful acts, the appellee suffered only one injury, that is, an award that does not represent the full extent of his damages.

In sum, the alleged wrongful acts of the attorney were related and resulted in a single claim. While there were several wrongful acts, they were all related and constituted but one claim of legal malpractice under the policy language. Thus, the court finds that the judgment appealed from must be reversed and remanded for an entry of a declaratory judgment determining that the policy limit “per claim”, and not the aggregate limit, applies.
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A Manhattan man suffered serious as the result of an automobile accident. He was taken to a Hospital where he was evaluated by several physicians, including a surgeon, an orthopedist, and a radiologist. These physicians misinterpreted the man’s x-rays and radiological studies and negligently concluded that he did not suffer a recent spinal injury.

As a result, the attending Westchester surgeon and assistant encouraged him man to attempt to walk approximately a week after the accident. When he arose from the bed, he felt a shock and collapsed. He was transferred to a Medical Center where he underwent surgery on his spine. However, the surgery was unsuccessful in reversing the spinal column damage.

The man retained a law firm to investigate and initiate a medical malpractice action against the various physicians. Although the man’s counsel considered joining the Hospital physicians individually in the medical malpractice suit, for various reasons he decided not to join them and sent intent to sue only to the Hospital and Medical Center Regional and its physicians. When the complaint was filed, however, the Hospital was not named. During discovery, the man’s counsel realized that the Medical Center Regional’s defense was based upon the comparative fault of the Hospital and its physicians. At this point, the statute of limitations had expired, and the counsel realized the potential of a legal medical malpractice claim for failing to join them. The counsel contacted his insurance company. He also referred the man to a new counsel. The man settled with the Medical Center Regional and its physicians for $1,000,000, and then brought a legal medical malpractice action against his counsel and his firm, which the man’s insurance company agreed to settle for the policy limits. However, the parties disputed whether the “per claim” amount applied or whether the aggregate amount applied. Specifically, the parties disputed whether the attorney’s failure to name the Hospital and each individual physician constituted independent wrongful acts or a single claim.

The man filed a declaratory judgment action to determine the issue. He claimed that the policy provided $250,000 per wrongful act with a $500,000 aggregate for multiple wrongful acts. Because his counsel committed multiple wrongful acts, he claimed that he was entitled to the aggregate limits. The counsel’s insurance company argued that the policy was a claims-made policy and that the policy provided $250,000 per claim rather than per wrongful act. Since there was only one claim, the man was entitled to only $250,000 in coverage. The trial court agreed with the man and on its motion for summary judgment, the court entered a judgment in favor of the man for the aggregate limits. The counsel’s insurance company appeals this judgment.

The insurance policy in question is a claims-made policy which covers claims made against the insured during the policy period. Specifically, the policy provides that it will pay on behalf of an insured all sums an insured must legally pay as damages because of a wrongful act that results in a claim first made against an insured and which is reported to the insurance company in writing during the policy period.

Claim means a demand received by the insurance company or an insured for money or services while wrongful act means any negligent act, error or omission arising out of professional services rendered or that should have been rendered by an Insured.

The construction of an insurance policy is a question of law for the court. Such contracts are interpreted in accordance with the plain language of the policy, and any ambiguities are liberally construed in favor of the insured and strictly against the insurer as the drafter of the policy. A policy is ambiguous where it is susceptible to two or more reasonable interpretations. However, a policy is not ambiguous merely because it is complex and requires analysis to interpret it.

The man contends the aggregate policy limit should apply where his attorney committed multiple wrongful acts by failing to join several accused parties in his medical malpractice action. Because each of these accused had separate insurance coverage available to pay a damage award, the man argues he had multiple claims against his attorney. However, the counsel’s insurance company asserts that the man has only a single claim because he suffered one injury – he did not receive his full recovery because the attorney failed to join all the proper accused parties before the statute of limitations tolled. Even if the failure to sue each accused is considered a wrongful act, the counsel’s insurance company argues these wrongful acts are related to the man’s sole medical malpractice claim against his attorney.

The counsel’s insurance company’s interpretation of the policy is consistent with the policy language. A claim under the policy is a demand against the insured for money. In this case, there was but one demand for money, namely the lost recovery because of the failure to join various other accused parties and thus one claim. Even if the man had multiple claims against his attorney the “per claim” limit still applies where the claims arise out of the same or related wrongful acts.

The court considered whether two acts of negligence were related so that notice of the first act constituted timely notification of both alleged acts of negligence. The man’s first claim of insurance agency negligence was for the agency’s failure to procure primary insurance coverage. It then later claimed that the agency was negligent in failing to notify an excess carrier of a third party claim against the insured.

Courts have pronounced different analyses in determining what constitutes a related act. Under the analysis of the State Supreme Court, however, the question appears to be whether each of the claimed negligent acts contributes to, or causes, the same monetary loss. If the errors lead to the same injury, under the Supreme Court analysis, they are related. Under the analysis of the United States District Court, acts will not be related if they arise out of separate factual circumstances and give rise to separate causes of action.

In this case, the claim was for the entire amount of the man’s uncollected damages as a result of the failure to join several accused parties in the suit, and all of the acts of negligence caused or contributed to the inability of the man to collect the entire amount of his damages. Thus, the negligent acts were logically related in accordance with the policy definitions.

In a related case, the contractor attempted to argue that there were two claims because it had two sources of payment. Supreme Court rejected the argument and stated, that when, as in this case, a single client seeks to recover from a single attorney alleged damages based on a single debt collection matter for which the attorney was retained — there is a single claim under the attorney’s professional liability insurance policy. Applying that rationale to this case, the man retained an attorney to recover damages he incurred as a result of several physicians’ negligent conduct, but was unable to recover the full extent of his damages because of the attorney’s failure to include all the responsible accused parties in his action. The attorney’s negligent omission may be considered multiple wrongful acts, but the man suffered only one injury — an award that does not represent the full extent of his damages.

The Appellate Court agrees that the alleged wrongful acts of the attorney were related and resulted in a single claim. The Court therefore reverses and remands for entry of a declaratory judgment determining that the policy limit “per claim” and not the aggregate limit applies in this case.
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This involves a case where the court denied the motion of the defendants for summary judgment to dismiss the case against them.

Plaintiff alleged that, on June 16, 2007, he was injured when a New York City Transit Authority Bus driven by its employee made contact with a motor vehicle driven by defendant driver and owned by owner. Plaintiff was a passenger in defendant driver’s vehicle. By decision and order dated September 16, 2008, the court granted defendant owner’s motion to dismiss the complaint and any cross claims in this action as against it. (Martorella Affirm, dated 3/18/11, Ex E.)

The bill of particulars alleges that, as a result of this alleged car accident, plaintiff sustained herniated discs at C4-C7, and L5-S1, and injuries to his right hip, right arm, right shoulder, neck and back, some of which are believed or may be permanent in nature. (Martorella Affirm, dated 3/18/11, Ex C [Bill of Particulars ¶ 6].) In August 2008, plaintiff, who was represented by a law firm, apparently decided to represent himself. (Martorella Affirm, dated 3/18/11, Ex D.) Plaintiff testified at his deposition that, at the time of the accident, he was employed by Gotham Registry, a nursing agency, working per diem as a licensed nursing assistant.

Defendants essentially argue that plaintiff’s alleged injuries are minor and not causally connected to the accident. In support of their motion for summary judgment, defendants submit the affirmed reports of a neurologist and an orthopedic surgeon. (Martorella Affirm, dated 3/18/11, Exs G, H.) Defendants also maintain that plaintiff’s alleged cervical and lumbar spinal injuries were pre-existing injuries, based on plaintiff’s deposition testimony and medical records.

The Manhattan neurologist examined plaintiff on August 25, 2008. According to her report, the examination covered areas such as “mental status,” “cranial nerves,” “motor examination,” “reflexes,” “sensory,” “gait and coordination,” and “cerebellar examination.” The neurologist also recorded the ranges of motion, expressed in degrees, and corresponding normal values, at plaintiff’s neck, and found full range of motion. The neurologist concluded that “exacerbation of preexisting spinal injury, resolved” and that “from a neurologic standpoint, there is no need for further treatment.” (Martorella Affirm, dated 3/18/11, Ex G.)

The orthopedic surgeon also examined plaintiff on August 25, 2008. The orthopedic surgeon recorded the ranges of motion, expressed in degrees, and corresponding normal values, in plaintiff’s cervical spine, right shoulder, lumbosacral spine, and right hip. The orthopedic surgeon found that plaintiff had normal ranges of motion in his right shoulder, lumbosacral spine, and right hip. He noted “slightly decreased range of motion of the cervical spine on flexion to 30 degrees (45 degrees normal), extension to 30 degrees (45 degrees normal), lateral bend to 35 degrees (45 degrees normal), right and left rotation to 50 degrees (70 degrees normal).” (Martorella Affirm, dated 3/18/11, Ex H.). The orthopedic surgeon stated, “In my opinion, I find the claimant has no disability.” (Id.)

According to the court, the defendants have not met their prima facie burden of summary judgment, based on the affirmed reports of the neurologist and orthopedic surgeon, who both did not state the objective methods used to measure plaintiff’s ranges of motion. “The defendant cannot satisfy that burden if it presents the affirmation of a doctor which recites that the plaintiff has normal ranges of motion in the affected body parts but does not specify the objective tests performed to arrive at that conclusion.” [“Defendants’ failure to indicate the objective tests used to determine the range of motion in plaintiff’s cervical spine was fatal to their efforts to establish a prima facie case for summary dismissal”].)
As defendants point out, the neurologist and orthopedic surgeon both noted under “Past Medical History,” that plaintiff was attacked/assaulted by a guard, sustaining injuries to his neck and back. However, neither the neurologist and orthopedic surgeon conclude that plaintiff’s alleged injuries were pre-existing in nature. Therefore, defendant’s contention that plaintiff’s injuries are preexisting is unsubstantiated.

Because defendants do not demonstrate, as a matter of law, that none of plaintiff’s injuries meet the No Fault threshold, “it is unnecessary to address whether his proof with respect to other injuries he allegedly sustained would have been sufficient to withstand defendants’ motion for summary judgment.” (Linton v Nawaz, 14 NY3d at 821.)
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Sometimes, people assume that attorneys do not need to hire attorneys. However, the truth is that attorneys in Manhattan understand that only a fool will defend themselves. Hiring an attorney to represent a person who has incurred a personal injury is the smart thing to do. Lawyers are people, too. That means that there are times when a lawyer will hire a lawyer to help them defend themselves from a situation. These situations can come in the form of automobile accidents, estate matters, real estate matters, or personal injury. There are even times when an attorney is required to hire another attorney to defend them against a criminal matter.

Recently, in 2012, a prominent attorney was called upon to defend himself from charges of DUI that stemmed from his driving in the city of Atlanta. He slid through a traffic light at three in the morning when he thought that no one was around on his way home from a meeting with state legislatures where he had consumed two glasses of wine with dinner. Although, his driving had not endangered anyone, and he had not demonstrated any level of impairment by failing to maintain his lane of traffic, the officer who stopped him asked that he perform field sobriety tests. Field sobriety tests are voluntary. However, if you choose to perform them, your demeanor and the results of the tests can be used against you in a court of law. The attorney decided that he would not participate. He refused to participate and he was arrested by the officer for DUI and taken for a mandatory test under the laws of the state. The charges were eventually dropped with the help of a DUI attorney that was hired by the arrested attorney to defend him. Even attorneys need one every now and then.

Another case in Staten Island that involved an attorney who required legal assistance from a specialist in the field, involved a case of defamation and breach of contract that was filed by an attorney in the State of New York in 2006. The complainant attorney was not getting along with the other attorneys in her firm and decided to resign. When she left the firm, several of the clients that she had been serving chose to leave that firm and maintain her as their lawyer. The controlling partner of the law firm wrote several letters to these clients encouraging them to leave her and return to his firm. The complaining lawyer, filed a lawsuit alleging that the managing partner of her previous firm had defamed her character and breached the hiring contract that she had with him. The managing partner filed a motion with the New York State Court System to grant him a motion of summary judgment dismissing her case against him for lack of evidence.

The complaining attorney stated that she had resigned because as her letter of resignation showed, she believed that she would soon be called to testify in disciplinary actions by the legal disciplinary committee against that firm for unethical conduct. The defendant law firm contends that the complainant poached clients and removed client case files without first obtaining permission from the firm. The firm claimed that they were owed legal fees from the cases and clients that chose to leave the firm and follow the complainant to her own firm. The complainant contends that the firm committed libel against her by sending letters to these clients that portrayed her as a novice with no experience. They claimed that she had not won any cases and was considered incompetent by the firm. The letters encouraged these clients to return to the firm since the complainant would not be able to properly attend to their cases. The letters claimed that she would not be able to disperse any winnings to them until the courts had sorted out the liens that his firm against her for attorney’s fees associated with the work that the firm considers to have been done by them. The letters inflated the possible monetary damages that the client should expect to receive in their cases by comparing their case to one that he claimed to have won for a large dollar amount. The letters were packed with exaggerated claims and derogatory comments toward the attorney who had parted from the firm.

The firm contends that the statements that were made in the letters should be protected by the qualified common interest privilege or by the absolute privilege that is between attorney and client. They contend that the statements in the letters were all either true or were non-actionable opinions aimed at providing legal advice. Because of this, they claim that the comments were not defamatory and the court should dismiss the suit. The complainant, maintains that the comments were defamatory because they were designed by the firm to injure her in her business and profession and that since the firm was no longer representing the clients, they could not confer attorney client privilege in their cases.

She further claims that she had a contract with the firm to provide her with a bonus each time a case was won. She stated that while the contract was not written, it was common knowledge in the firm that every attorney who won a case received a bonus. She stated that she had not received a bonus for a case that was won on her work the month after she left the firm and that she deserved a bonus for that work. The original trial court agreed with the complainant attorney. They felt that because the firm was no longer representing the clients that there was no longer an attorney client privilege to be protected in a letter that was unsolicited from the clients.

Further, the original trial court maintained that the comments in the letters were intended to cast aspersions on the conduct and reputation of the complainant attorney. As such, there was a triable issue of fact that should go before a jury because the comments were susceptible of being interpreted as defamatory. The firm maintained that they shared a common interest in the outcome of these client’s cases because they expected to share in the damages if the complainant attorney should win the cases. The law says that a qualified privilege exists when a person has an interest that is either legal, moral, or a social duty to speak if that person shares an interest in the object of conversation. The boundary in this case is if the comments were made with malice. If they are, then a common interest privilege does not exist. The original trial court determined that the comments made in this case did not qualify for a common privilege because they were clearly made with malice.

While the original trial court agreed with the complainant attorney, on appeal the firm won the argument by having the case dismissed. The Supreme Court of New York County did deny the firm’s request to dismiss the first, second, and tenth causes of action and the case was dismissed as to the contractual issue.
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A father died as a result of a vehicular accident. His surviving spouse and their two children filed a case for wrongful death against the owners of the vehicle that collided with the father’s car. After the litigation, the owners of the vehicle paid a sum of $182, 717.00 in damages.
By the time that the wrongful death suit was terminated, the surviving spouse had also died. The owners of the vehicles then filed this action to ask the court to determine who should receive the judgment award, and what the sharing should be among those who should receive the judgment award. The Long Island owners of the car that collided with the deceased’s car came to court to ask for a final determination as to the sharing of the heirs and surviving relative of the deceased in the proceeds of the wrongful death action.

The estate of the surviving spouse claims that it should receive half of the proceeds from the wrongful death suit as she is entitled to share in her deceased husband’s estate. The two surviving children of the deceased father asked for the disqualification of the surviving spouse’s estate and that the proceeds should instead be shared by them, the two children of the deceased.

The children of the also assert l if the estate of their mother, the surviving spouse of their father should be allowed to share in the proceeds, her share should be substantially reduced as she did not survive until the final determination of the wrongful death case.

A special Manhattan guardian was appointed for one of the children of the deceased, the son, who was a minor at the time of this action. The son sustained a brain injury from the same car accident that claimed his father’s life although the brain injury did not fully manifest until years later.
The court then reduced the share of the estate of the surviving spouse to only ten per cent of the value of the proceeds. The rest of the proceeds was ordered to be equally distributed to the two children.

One of the children of the deceased, the daughter, appealed the order of the court that distributed the proceeds of the wrongful death suit. She claimed that her share was substantially less than her brother’s. She argues that if the court had not reduced their mother’s share, she would have also participated in her mother’s estate as one of the only two surviving heirs of their mother.

The only question before the Court is whether or not the trial court erred when it reduced the share of the surviving spouse of the deceased which resulted in the minor son of the deceased getting a share larger than that of her sister’s by $50,000.00.

The Court held that even if it were not to put into account the fact of the disability of the minor son. The Court held that the lower court did not act arbitrarily but used a generally accepted legal means of formulating the shares in the proceeds. By applying the Kaiser formula, the minor son’s share became larger than that of her older sister’s, the difference is only $50,000.00 and does not represent such an excessive amount.

Considering that the difference in the shares of the two children of the deceased were a result of the use and reliance by the court on a legally acceptable formula for calculating the relative shares of the heirs, the court cannot be said to have acted arbitrarily or with grave abuse of discretion. Thus, the Court resolved to uphold the finding of the court.
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This case is about a defendant-corporation seeking the dismissal of the complaint pursuant to CPLR 3211 (a) (7) by reason of the Graves Amendment; and the plaintiff seeking leave of court to amend the complaint pursuant to CPLR 3025 (b) in order to avoid dismissal on that ground.

Plaintiff alleged that on April 29, 2006, she sustained serious personal injuries as a result of a collision between her vehicle and a vehicle owned by defendant-corporation and operated by defendant-driver. She further alleged that defendant-driver was an employee of defendant-corporation, and was operating the vehicle “under the course of his employment,” and “with the express knowledge, consent and/or on the business” of defendant-corporation. The collision was allegedly caused by “the defendants’ negligence, carelessness and recklessness”.

A Federal statue, known as the Graves Amendment “bars vicarious liability actions against professional lessors and renters of vehicles,” as would otherwise be permitted by Vehicle and Traffic Law § 388. “Vicarious liability laws caused lessors to either cease leasing cars in states having them, opting for more expensive balloon note structures, or spread the cost of higher insurance premiums to lease customers nationwide.”

To claim immunity from vicarious liability under the Graves Amendment, the owner of the subject vehicle must be “engaged in the trade or business of renting or leasing motor vehicles”; the subject vehicle must have been “rent[ed] or lease[d] . . . to a person”; and “harm to persons or property” must have occurred “during the period of the rental or lease.” If these conditions are met, the statutory immunity attaches unless there is “negligence or criminal wrongdoing on the part of the owner.”

On the other hand, vicarious liability is not abrogated where injury or damage results from the negligence of the owner’s employee in the operation or maintenance of the vehicle, nor it seems where the owner was negligent in entrusting the vehicle to the operator.

Defendant-corporation was able to establish prima facie that it meets the requirement for coverage under the Graves Amendment. However, the Court held that it failed to establish even prima facie that the subject vehicle was “rent[ed] or lease[d] . . . to a person,” and that the collision occurred “during the period of the rental or lease.” The Loss Control Manager asserted only that she is “fully familiar with the personnel and records of” defendant-corporation, and that the Renter [sic] of the vehicle, defendant-driver, was not an employee at the time of the subject car accident.” The assertion that defendant-driver was a “Renter” of the subject vehicle must be based upon some writing or record, but it was neither provided nor described or identified; and the assertion that defendant-driver was not an employee of Defendant-corporation must be based upon a search of records that did not reveal his name, but no description of the records or the search was provided.

The Graves Amendment confers immunity on a rental/leasing owner “if . . . there is no negligence or criminal wrongdoing on the part of the owner.” The word “if” is conditional, and generally one claiming a benefit must show that any condition to the benefit has been satisfied. On the other hand, “[i]t is generally inappropriate to place the burden of proof on a party” – here, the injured plaintiff who is a stranger to the rental/leasing arrangement – “in a case where the facts governing the resolution of the controversy are within the exclusive knowledge of the opposing party.”

With respect to Manhattan and Staten Island Plaintiff’s motion for leave to amend the Verified Complaint to include that Defendant-corporation “negligently entrusted” the subject vehicle to defendant-driver when it “knew or should have known that [he] was incompetent, untrained, and not fit to operate the automobile,” the court held that “In the absence of prejudice or surprise resulting directly from the delay in seeking leave,” an application for leave to amend a pleading pursuant to CPLR 3025 (b) is “to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit.”
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A man drove to the house of a friend whom he was supposed to pick up. When he got to his friend’s house, he left the car engine running with the key in the ignition to ring the doorbell and alert his friend that he had already arrived to pick him up. While he was in the house, a man stole the car that was parked in the driveway. The thief took the car and drove off at such a high speed.

In the meantime another man was stopped at an intersection. He was waiting for the light to turn green so that he can make a left turn. As he was waiting for the traffic signal, the thief was driving from the same direction at such a high speed. The thief lost control of the He car and hit the car that was stopped at the intersection.

The impact of the stolen car hitting the stopped car was so great that the driver of the parked car lost consciousness while still inside his car. When the parked car was struck from behind by the stolen car, the parked car also careened off and hit another car.

The man who lost consciousness because his parked car was struck by the stolen car from behind filed a suit in damages. He claimed damages for the personal injury he sustained consequent to the car accident. He sued the owner of the car and the driver of the car from whom the car was stolen. He also included in the suit the thief who stole the car and drove it, the same thief who struck his car from behind. He also sued the insurer of the stolen car.
After the owner of the car and the driver of the car filed their answers, the driver of the parked car filed a motion for summary judgment. He claims that he was not negligent at the time of the car accident. He was sitting in traffic, waiting for the light to turn green at an intersection when he was struck from behind. He asserts his entitlement to a summary judgment and for an award of damages for the personal injury he sustained.

The owner of the car from Manhattan and the Long Island driver from whom the car was stolen filed a motion for summary judgment asking that the complaint against them be dismissed. They assert that they can only be made liable for the personal injury sustained by the driver of the parked car if they had actual control over the car at the time of the car accident. Since the car was stolen from them, they had no control over the car or over the thief who was driving the stolen car. They cannot be made responsible in damages for the personal injury sustained by the driver of the parked car.

The driver of the parked car opposed the summary judgment filed by the owner of the car and the driver of it. He claims that the owner of the car and the driver were negligent in that they left the car running in a driveway with the key in the ignition rendering it easy for the thief to steal the car.

The only question before the Court is whether or not the motions for summary judgment should be granted.

The Court held that the motion for summary judgment filed by the owner of the car and the authorized driver should be granted. They had no control over the car at the time of the car accident as the car had been stolen from them. They cannot be held liable for the damages caused by the thief when he recklessly operated the car. They are likewise not negligent when they left the car running in the engine. The law requires drivers to turn off their engine and lock the ignition only when parked in a public parking area. The car here was parked in the driveway of a house.

The Court also held that the motion for summary judgment filed by the driver of the parked car should be granted. He was not negligent when he was stopped in traffic. He was hit from behind by a person who acted in reckless disregard for the safety of others.
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