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Insurance Company Could Not Rely On Plaintiff’s Personal Injury Action to Recoup What It Paid Out on a Related Property Damage Claim—Not a Valid Subrogation Vehicle

The Third Department determined an insurance company’s (Erie’s) attempt to rely on plaintiff’s personal injury complaint as the basis of its subrogation claim for property damage was properly dismissed.  The insured’s house exploded due to a gas leak.  Next to the insured’s house was a garage owned by the insured.  Erie paid $50,000 for damage to the garage.  The Erie attempted to rely on the insured’s personal injury action to recoup the money paid out for the property damage:

“Subrogation is an equitable doctrine that allows an insurer to stand in the shoes of its insured to seek indemnification from third parties whose wrongdoing has caused a loss for which the insurer is bound to reimburse” … . To that end, an insurer seeking to enforce its right of subrogation generally has two options – “the insurer can bring an independent action against the wrongdoer in the name of its insured, the subrogor, or seek to intervene in an existing action between the insured and the wrongdoer” … . Neither path was pursued by Erie here; rather, Erie sought to use plaintiffs’ personal injury complaint “as a vehicle to assert [its] subrogation theory against . . . defendants.”As Supreme Court aptly observed, the principal flaw inErie’s methodology is that although plaintiffs’ complaint indeed recites that plaintiffs’ home exploded as a result of the natural gas leak, that pleading makes absolutely no reference to the property damage sustained to Pete’s Garage, nor does it “plead or otherwise spell out that damages are being sought for [the] property damage/loss” sustained thereto.  Although this Court has limited an insurer’s right to intervene in certain circumstances …, such circumstances are not present here.  Peterson v NYS Electric and Gas Corporation…, 516423, 3rd Dept 3-6-14

 

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INSPECTORS HIRED TO ASSESS DAMAGE TO PROPERTY CAUSED BY HURRICANE SANDY WERE EMPLOYEES ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS (THIRD DEPT).
THE CLAIM IN THIS CHILD VICTIMS ACT PROCEEDING DID NOT SET FORTH ANY FACTUAL BASIS FOR THE ALLEGATION THE STATE WAS OR SHOULD HAVE BEEN AWARE OF SEXUAL ABUSE BY ANOTHER CHILD IN A FOSTER HOME AND BY AN EMPLOYEE OF A CHILDREN’S FACILITY; THE CLAIM SHOULD HAVE BEEN DISMISSED (THIRD DEPT).
BECAUSE THE INITIAL USE OF THE ROADWAY WAS PERMISSIVE, AND THERE WAS NO HOSTILE USE FOR THE REQUIRED TEN YEARS, THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE NOT MET; HOWEVER BECAUSE THE INITIAL USE WAS PERMISSIVE AND CONTINUED FOR 50 YEARS, THE CRITERIA FOR AN EASEMENT BY ESTOPPEL WERE MET (THIRD DEPT).
THE BOARD’S RULING THAT CLAIMANT WAS AN EMPLOYEE OF THE DELIVERY SERVICE WAS UPHELD; THE DISSENT ARGUED THE FACTS WERE MOST SIMILAR TO ANOTHER DECISION INVOLVING THE SAME EMPLOYER WHERE THE COURT FOUND NO EMPLOYER-EMPLOYEE RELATIONSHIP (THIRD DEPT).
WHETHER PLAINTIFF USED ONE OR BOTH HANDS TO MANIPULATE A HOSE WHILE STANDING ON A LADDER WHICH COLLAPSED OR SLIPPED WAS RELEVANT ONLY TO COMPARATIVE NEGLIGENCE, WHICH IS NOT A BAR TO RECOVERY PURSUANT TO LABOR LAW 240 (1) (THIRD DEPT).
ZONING BOARD OF APPEALS’ RULING THAT A NONCONFORMING USE HAD NOT BEEN DISCONTINUED OR ABANDONED SHOULD NOT HAVE BEEN REVERSED.
CLAIMANT HAD THE RIGHT TO CROSS-EXAMINE THE CARRIER’S CONSULTANT, WHO DETERMINED CLAIMANT SUFFERED A 40% SCHEDULE LOSS OF USE, DESPITE THE FACT CLAIMANT NEVER FILED A COMPETING MEDICAL OPINION (THIRD DEPT)
LIABILITY UNDER CONTRACT CAN ARISE IN THE ABSENCE OF PRIVITY WHERE A PARTY IS A JOINT VENTURER OR PARTNER WITH A SIGNATORY TO THE CONTRACT.

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