But seriously, the court's issuance on December 14, 2017 of 259-character and 219-character decisions in insurance coverage cases could have fit within Twitter's new 280-character limit. Here are the cases and why they're so short.
Section 500.11 of the New York Court of Appeals' Rules of Practice -- Alternative Procedure for Selected Appeals
22 NYCRR § 500.11(a) provides in pertinent part that "[o]n its own motion, the Court [of Appeals] may review selected appeals by an alternative procedure. Such appeals shall be determined on the intermediate appellate court record or appendix and briefs, the writings in the courts below and additional letter submissions on the merits."
In other words, no record, no briefs and no oral argument to the Court of Appeals. And a faster and likely shorter decision.
What cases make the alternative review cut, you ask? Per Rule 500.11(b), the Court of Appeals may select cases for such alternative review based on:
- questions of discretion, mixed questions of law and fact or affirmed findings of fact, which are subject to a limited scope of review;
- recent, controlling precedent;
- narrow issues of law not of statewide importance;
- unpreserved issues of law;
- a party's request for such review; or
- other appropriate factors.
- addressing the question of what constitutes "maintenance" of an auto for purposes of a CGL policy's auto exclusion;
- involving the insured's asserted good-faith belief that the underlying plaintiffs in a libel action would not seek to hold the insured liable (late notice excuse);
- holding that the injured party failed to use reasonable diligence in providing notice to the insurer;
- finding triable issues of fact on successor liability;
- adopting the dissenting memorandum of the Appellate Division on the "stage hand" exclusion; and
- concerning an insurer's mailing procedures for policy amendments.
NO-FAULT – LOSS OF EARNINGS – SPECULATIVE NATURE OF CLAIM
Freligh v. Government Employees Insurance Company
(Ct. Apps., decided 12/14/2017)
Loss of earnings claim. One of those "Oh, I know I wasn't employed at the time of the accident but I was just about to start a new job" kind of claim. Regulation 68 permits an eligible injured person to recover "demonstrated future earnings reasonably projected" (11 NYCRR 65-3.16[b][3]).
At the time of the December 23, 2012 MVA, the plaintiff, who had worked in the automotive parts and repair industry for a number of years, had been unemployed for approximately seven months. In January 2013 plaintiff submitted an application for no-fault benefits. With respect to the LOE portion of his application, plaintiff indicated that he "was due to start [a] new job" but had been unable to work since the MVA as a result of the injuries that he had sustained in the accident. Plaintiff further indicated that details regarding his position, including his salary and the employer's name and address, would be provided.
Plaintiff thereafter provided GEICO with a copy of an employment application dated December 15, 2012, which purportedly reflected that plaintiff had been offered a $2,000 a week job at a failing auto parts business owned by plaintiff's friend of 15 years who, the record showed, (1) had previously pleaded guilty to insurance fraud and offering a false instrument, (2) had made false sworn statements in regard to the bankruptcy proceeding of a corporation, (3) had initiated that bankruptcy proceeding as a "ruse" to forestall creditors and (4) had paid his wife a salary from the parts business while she was a student at Columbia University for her "learning purposes."
In reversing Supreme Court's denial of GEICO's summary judgment motion, the three-justice majority of the Appellate Division, Third Department, held that "material evidence established as a matter of law that the projection that plaintiff would have received $2,000 a week from the parts business is unreasonable[.]"
Invoking its alternative review authority under Rule 500.11, the New York Court of of Appeals REVERSED the Appellate Division's order and reinstated the complaint. The Court's 259-character (not counting spaces) decision:
On review of submissions pursuant to section 500.11 of the Rules, order reversed, with costs, and case remitted to the Appellate Division, Third Department, for consideration of issues raised but not determined on the appeal to that court. Triable issues of fact exist as to plaintiff's claim for lost wages.
That's it. Triable issues of fact regarding the EIP's LOE claim for the jury to hear and decide. Appellate Division order reversed. The Court of Appeal's seventh Rule 500.11 alternative review of an insurance coverage case.
Garcia v. Government Employees Insurance Company
(Ct. Apps., decided 12/14/2017)
Appeal from another 3-2 decision at the Appellate Division (Second Department), but GEICO won this one at the Court of Appeals.
The insured had a $1 million personal umbrella policy with GEICO; the annual premium for that policy was $306. On renewal the insured asked GEICO to increase the umbrella policy limit to $2 million, which GEICO did so, resulting in an increased premium of $199 for the umbrella policy. When the insured paid only the prior year's premium of $306 GEICO cancelled the umbrella policy effective 12:01 a.m. on May 19, 2006. As unluck would have it, the insured's vehicle was involved in a motor vehicle accident later that day in which the plaintiff, Garcia, was injured.
In pursuing coverage under the umbrella policy, Garcia argued that the umbrella policy's declarations were ambiguous, that GEICO's insured had made a payment sufficient to keep $1 million in umbrella coverage in force, and that the the umbrella policy's first and second million dollars of umbrella coverage were divisible.
The 3-2 majority of the Appellate Division, Second Department, disagreed:
Next, because there is no ambiguity in what Rakowski contracted for — $2,000,000 in coverage, as stated in the Amended Declarations of the policy — there is likewise no ambiguity in GEICO's notice of cancellation, which referred to the policy number of Rakowski's umbrella policy. The cancellation notice could only have pertained to Rakowski's coverage of $2,000,000, which was the only coverage the policy provided for the policy period (see First Sav. & Loan Assn. of Jersey City, N. J. v American Home Assur. Co., 29 NY2d at 300).Invoking its alternative review authority under Rule 500.11, the New York Court of of Appeals AFFIRMED the Appellate Division's order, with costs. The Court's 219-character (not counting spaces) decision:
On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs. There is no ambiguity in the policy as to coverage or divisibility. The parties contracted for $2 million of coverage. Plaintiff's remaining contention lacks merit.That's it. No ambiguity. Insurer wins. The Court of Appeal's eighth Rule 500.11 alternative review of an insurance coverage case.