NOTEWORTHY PUBLISHED CASES

Aden v. Fortsh

Insureds brought action against broker to recover for negligence in procuring homeowners’ insurance policy with inadequate betterments and improvements coverage for the interior of condominium unit. The Superior Court, Law Division, Bergen County, entered judgment on a jury verdict in favor of the insureds. Appellate Division reversed on the contributory negligence instruction not given to the jury. Supreme Court ruled that broker owed the same level of duty as any professional to its clients, and that the defense of contributory negligence is not available to such professionals. This case let to insurance producers being added to the Affidavit of Merit Statute.

Aquino v. State Farm

Insured’s attorney requested attorney fees incurred in suit against liability insurers on coverage and in tort suit against the insured. The tort suit had mixed allegations of covered and uncovered allegations. The Superior Court, Essex County, Law Division, required insurers to pay all fees from both actions, without the application of a reasonableness examination.  Insurers appealed. Appellate Division provided a very detailed analysis of what a carrier should do when faced with both covered and uncovered allegations in a tort complaint against its insured. They also commented on proper analysis that should be given to a claim for the recovery of counsel fees.

Brett v. Great American Recreation

Injured tobogganers brought personal injury action against operator of trail (Great Gorge) which tobogganers were using when they sustained critical injuries. The Superior Court, Law Division, Union County, entered judgment upon jury verdict finding that tobogganers were liable for 22% of negligence, operator was liable for 54% of negligence, and owner of trail, who settled with plaintiffs prior to trial, was liable for 24% of negligence. Operator appealed. The Superior Court, Appellate Division, held that: (1) tobogganers’ claims would not necessarily be barred at common law; (2) Ski Statute applied to claims because tobogganers violated statutory duty and assumed at least one statutory risk; (3) trail operator violated responsibility of removing man- made hazards by failing to post warning that trail was not suitable for tobogganing; and (4) neither owner of condominium where tobogganers and others were neither staying nor condominium owner’s niece, who was part of group staying there, was liable for injuries. The Supreme Court took the case to discuss the applicability of the Ski Statute and its associated immunities. Those immunities were significantly curtailed.

 Humenik v. Gray

Student and parent, individually and as guardian ad litem, brought action against fellow student to recover for injuries caused when defendant shoved plaintiff into a school locker and she fell to the ground. Defendant, student brought third-party action against homeowners’ insurer for a declaratory judgment seeking a defense and indemnity for the filed action, that contained both covered and uncovered allegations. The Superior Court, Law Division, Union County, found coverage, ruling that this conduct was not intentional and later entered judgment on jury verdict for plaintiff on the liability action. Insurer appealed. The Superior Court, Appellate Division, overturned the trial court’s determination that this was not an intentional act, finding as a matter of law it was. The court sent the case back for a determination as to whether or not; the injury was so “idiosyncratic” as to constitute an “accident”.

 Powell v. Alemaz v. Quincy Mutual

In a prospective tenant’s housing discrimination suit, the landlord filed a third party complaint to establish coverage under its business-owners liability insurance policy. The question before the court was the interpretation of the definitions of “personal injury” in a commercial general liability policy. The Superior Court, Law Division, Union County, entered summary judgment in favor of the insurer. Landlord appealed. The Superior Court, Appellate Division, Keefe, J.A.D., held that landlord’s alleged racial discrimination against prospective tenant was not “personal injury” and, therefore, was not covered.

Wickner v. Fitchburg Mutual Insurance Co.

Plaintiff brought a slip and fall suit against the insureds.  After a denial by the carrier, the insureds hired counsel to successfully defend the claim at a cost of over $140,000, and 2 trials to determine the plaintiff did not even fall on the insured’s property. We obtained a successful result for the insurance carrier in that there was no duty to defend nor indemnification the insured for any expenses incurred.