Sample of Recent Accomplishments in Our Insurance Coverage Practice

• We commenced a declaratory judgment action seeking coverage for a site owner and construction manger for an underlying wrongful death action.  After the carrier for the decedent’s employer assumed our client’s defense, we moved for summary judgment against the employer’s excess carrier, United National, and against the primary and excess carrier for the prime contractor that hired the decedent’s employer.  United National argued that its policy, as an “umbrella” or “excess” policy, was only triggered after all primary policies, including our clients’ own policies, were exhausted.  We argued that the policies must follow the form of the parties’ construction contacts, which contracts required the contractor to provide the construction manager and the owner with both primary & excess coverage and that the coverage be primary.  The Court agreed with our position, finding that the contractors primary and excess policies must be exhausted before our client’s primary policy could be reached.  We secured a total of $16,000,000 in coverage for our clients, with a ruling that our client’s carrier need not contribute anything until that $16,000,000 in coverage had been exhausted.   Great American Insurance Co. v. Bovis Lend Lease LMB, Inc.; Supreme Court, New York County, Index No.: 602739/03 (April 2006).

• We successfully defended an insured party against its carrier's motion for summary judgment seeking to deny coverage after a personal injury claim was brought against the insured.  The carrier argued that coverage was properly denied under an expressed term that excludes work on new residential property from coverage.  In our reply we put forth a two-prong argument explaining why the carrier's motion should be denied.   The first argument dealt with the procedural matter requiring an insurance carrier to notify the insured of its intent to reject the claim within a reasonable amount of time.  Based on our argument, the Court affirmed the lower court's holding that the carrier did not honor this obligation as a matter of law and should have given proper notice sooner.  The second prong was a substantive argument dealing with the definition of residential property as defined by the policy.  The policy explicitly excludes property that is being exclusively used for residential purposes.  However, we successfully argued that the project did not fit this definition and was actually a multi-use building for which the exclusion did not apply.  As a result of our arguments, the Court denied the carrier's motion for summary judgment. Bovis Lend Lease, et al.,  v. Royal Surplus Lines Insurance Company, 2005 WL 34335238 (N.Y.A.D. 1 Dept.). Supreme Court, Appellate Division, First Department, New York; (December 2005).

• We obtained summary judgment requiring a carrier to honor the insurance policy despite the carrier's contention that the insured failed to give timely notice of the claim.  Upon receiving the summons and complaint, the insured promptly turned the matter over to the insurer's claims manager.  The claims manager then commenced an investigation and diligently searched for the insurance carrier of the injured party's employer.   On two occasions the insurance broker for the injured party's employer provided the claims adjuster with incorrect information.  The search was still on going more than a year after the underlying claim arose, when the defendant in this matter was discovered to be the proper carrier.  Although the claims adjuster notified the defendant within 48 hours of this discovery, it was more than one year after the injury occurred.  Almost immediately the defendant rejected this claim because it was not notified timely pursuant to the policy.  In our motion we argued that our insurer's claims manager acted diligently in searching for the correct carrier and the delay was solely the result of the insurance broker incorrect information.  As a result of our motion, the Court held that due to the unusual circumstances and the claims manager's continued diligence, that the notification given more than one year after the injury was reasonable and ordered the defendant to indemnify the insured.  Trustees of Congregation Shearith Israel in the City of New York, Bovis Lend Lease LMB, Inc., and National Union Fire Insurance Company of Pittsburgh v. Admiral Insurance Company, 10 Misc.3d 1057(A), 2005 WL 3334248 (N.Y. Sup.).  Supreme Court, New York County; Index No. 603515/03 (October 2005).

• Plaintiff was a carpenter crushed to death by a wall panel. As counsel for the defendants, Bovis Lend Lease LMB, Inc. and P/C 89th Street, LLC we succeeded in obtaining a risk transfer in July 2003 to St. Paul Travelers as the insurer for plaintiff’s employer. The case settled in 2005 for $3,000,000. By virtue of the risk transfer that we achieved, our client did not contribute anything to the substantial settlement of this death case and also avoided significant legal expenses in the two years of litigation to the date of the settlement. Volodymyr Bolehivskyy v P/C 89th Street, LLC, et al., Supreme Court, New York County, Index No. 100369/03 (August, 2005).

• We obtained summary judgment in a declaratory judgment action, securing additional insured coverage for the construction manager and site owner under a contractor’s general liability policy, thereby transferring the entire risk to the contractor’s carrier. This result was achieved despite the carrier’s arguments that coverage was vitiated by the alleged negligence of the additional insured construction manager. Massachusetts Mutual Life Insurance Co. et. al. v. Royal Surplus Lines Ins. Co., Supreme Court, New York County, Index No. 60237/03 (May 2005)

• In a declaratory judgment action brought by an insurance carrier in the Federal District Court for the Southern District of New York against our client, the New York City Housing Authority, we prevailed in a highly technical coverage dispute over the interplay between the declarations page and the policy forms and the interpretation of plaintiff’s insurance policy. As a result, the District Court granted our motion for summary judgment and ordered the plaintiff-carrier to defend and indemnify our client in a personal injury action pending against them in Bronx County Supreme Court. United States Underwriters Insurance Company v. Falcon Construction Corp., et al., Docket No. 02 Civ. 4179 (BSJ), 2004 WL 1497563 (S.D.N.Y. June 2004).

• As an example of our effective cost-containment, with over $1 million at stake, we won summary judgment in a declaratory judgment action against an adverse insurance carrier. Then, in a hotly-contested dispute over the reasonableness of significant legal costs, we proved to a Special Referee that 100% of our legal fees and disbursements were reasonable and that complete reimbursement to our client, with interest, was warranted. The Supreme Court then confirmed the Recommendation and Report in its entirety. Dormitory Auth. of the State of New York v. Triangle Services, Inc. , Supreme Court, New York County, Index No. 601494/99 (July 2004).
  

• On behalf of defendant New York City Housing Authority, we defeated plaintiff-insurer’s motion for summary judgment which was based on late notice and several exclusions, raising questions of fact with respect to each. (Housing Authority’s tender was more than a year after the accident). United States Underwriters Insurance Company v. Falcon Construction Corp., et al., No. 02 Civ. 4182 (LTS) (GWG), 2003 WL 22019429 (S.D.N.Y. Aug. 27, 2003)
  

• In an underlying case involving a construction accident resulting in serious injuries and permanent disability, we prevailed in a declaratory judgment action shifting the risk for Investors Ins. Co. for defense and first $1 million dollars of indemnity.  The contest involved a multiplicity of issues including claims against other co-insurers, whether the coverage was triggered based on whether or not the underlying accident arose “out of the operations” of the named insured, timeliness of notice, timeliness of disclaimer, etc.  Kreisler, Borg & Florman v. The Insurance Corporation of New York, Sup. Ct., Nassau County, Index No. 19497/02 (May 2003).

• We defeated insurance carrier’s disclaimer of coverage, thereby transferring 100% of potential risk to that carrier in significant exposure case. Bovis Lend Lease LMB, Inc. v. Crum & Forster Indem. Co., N.Y.L.J. Oct. 15, 2002, Sup. Ct., New York County, Index No. 105329/02 (2002).
  

• We defeated insurance carrier’s denial of coverage, thereby transferring all potential risk in significant exposure bodily injury case venued in Bronx County to that carrier.  New York City Housing Auth. v. Royal Ins. Co. of America, Sup. Ct., Bronx County, Index No. 2660-01 (2002).
  

• In a post-Inchaustegui v. 666 5^th Ave. LP case, we successfully pursued a contractor on a failure to procure insurance claim, thus transferring risk to both the adverse carrier and to responsible subcontractor in a high-exposure bodily injury case.  This case has been cited seven times in various volumes of the 2004 edition of New York Jurisprudence.  Time Warner Cable of New York City v. Trinity Communication, Inc., 191 Misc.2d 181, 740 N.Y.S.2d 843, Sup. Ct., New York County (2002).
  

• Benjamin McComber was profoundly injured when a steel column that he climbed during the construction of the St. George’s stadium toppled and crushed him.  We prevailed in a declaratory judgment action and thereby shifted the entire risk culminating in a jury verdict on May 16, 2003 in the sum of $30,477,076.14 (resolved by our adversary carriers for $14.5 million on a high-low settlement). Bovis Lend Lease LMB, Inc. and National Union Fire Ins. Co. of Pittsburgh, PA. v. National Fire Ins., Co., Sup. Ct., N.Y. County, Index No. 604160/01.
  

• In a complex of cases involving seven deaths, four significant personal injuries, and three major property damage losses arising out of a racial shooting and arson, we won a declaratory judgment action involving issues of waiver and estoppel and reformation of an insurance policy to defeat the claim of the owner for $1,250,000 in legal fees incurred and $9,000,000 in indemnity coverage. Jiminez v. LMA International Ltd. et al., Sup. Ct., Bronx County, Index No. No. 17552/96 (2001).
  

• Does an accident that befalls a construction worker 20 feet from the job site where he is working while he is on the way to lunch give rise to a claim “in respect to liability arising out of [the employer’s] ongoing operations?”  We argued yes, prevailed, and validated our client’s additional insured status under the employer’s general liability policy.  Lehrer McGovern Bovis, Inc. v. E-J Electrical Installation Co., Sup. Ct., New York County, Index No. 101665 (2000).
  

• We made law concerning precedence of an open-ended endorsement in a general liability policy which describes additional insured status (i.e., party holding written agreement requiring procurement of insurance) over an endorsement limiting additional insureds by name, in favor of our client. New York City Housing Authority v. National Union Fire Ins. Co., 270 A.D.2d 123, 705 N.Y.S.2d 45 (1st Dep’t 2000).
  

• In a post-Inchaustegui v. 666 5^th Ave. LP case, we successfully pursued contractor on a failure to procure insurance claim, thus successfully transferring risk to both the adverse carrier and to responsible subcontractor.  Time Warner Cable of New York City v. MUCIP, Inc., Sup. Ct., New York County, Index No. 123241/99 (2002).
  

• We achieved a risk transfer by taking advantage of both of our adversary insurer’s inability to come up with full and complete copies of their insurance policies with the result that they were obliged to settle the underlying claim directly with plaintiff for $585,000.  Metropolitan Life Ins. Co., et al. v. J.T. Falk Company, 265 A.D.2d 203, 696 N.Y.S.2d 148 (1st Dep’t 1999).
  

• We enforced coverage for a claim arising out of construction work notwithstanding exclusions from coverage regarding structural work by prevailing in an evidentiary showing that the work involved did not implicate the exclusions.  West 36^th Street Associates v. Greater N.Y. Mut. Ins. Co., 250 A.D.2d 109, 681 N.Y.S.2d 523 (1st Dep’t 1998).
  

• In an early case involving the construction of an insurance policy affording coverage providing only that the claim “arises out of” the contractor’s work, we litigated the issue through trial and appeal in federal court and, on behalf of Travelers Insurance Co., recovered over $2,000,000 against an adverse carrier.  J. Michael Orifici & Associates v. Liberty Mutual Ins. Co., No. 97-7724, 1998 U.S. App. LEXIS 20179 (2d Cir. June 23, 1998).
  

• We prevailed in connection with numerous claims against our client Dormitory Authority of the State of New York, arising out of alleged exposure to various chemicals, fungi, mycotoxins, etc. (“sick building syndrome”) by identifying, proving involvement and causality, and enforcing insurance coverage of the responsible contractors, thereby shifting the risk entirely and recovering defense costs involved.  Jeanne Hatton v. DASNY, No. 111080/95 (Sup. Ct. New York County); Marzigliano v. DASNY, No. 107682/96 (Sup. Ct. New York County); Sarro v. DASNY, Co., No. 14028/97 (Sup. Ct. New York County); Edkins v. TDX Construction Co., No. 116169/96 (Sup. Ct. New York County); Merlino v. TDX Construction Co., No. 116111/97 (Sup. Ct. New York County).
  

• In an oft-cited case, we made law on the applicability of the anti-subrogation doctrine which bars third-party actions in appropriate cases.  James Lim v. Atlas Gem Erectors, 225 A.D.2d 304, 638 N.Y.S.2d 946 (1st Dep’t 1996).