Thursday, September 2, 2010

Court of Appeals Watch for September 2, 2010

Court of Appeals decisions for September 2, 2010 are here.

The Court of Appeals has granted leave to appeal in the following cases:

Cragg v. Allstate Indem. Corp. - at issue is whether “an insurer is required to defend or indemnify its insureds for the wrongful death of an insured person.”  Plaintiff's decedent sustained fatal injuries when she drowned in a swimming pool located at the residence of her grandparents, where she resided with her mother. "The plaintiff's decedent and defendants were insured under a homeowners' insurance policy issued by Allstate to defendant grandparents. Allstate disclaimed coverage for defendants under the policy pursuant to the provision excluding coverage for 'bodily injury to an insured person . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person.'"  The Fourth Department held that the policy excludes coverage for bodily injury to an insured person.  For an additional discussion of the Fourth Department's decision you can take a look at Roy Mura's blog posting on Coverage Counsel in May.   

Doomes v. Best Transit - whether manufacturer of a bus could be liable for the failure to equip the passenger seats with seat belts.

Roddy v. Nederlander Producing Co. of Am., Inc. - on a prior appeal, Roddy v. Nederlander Producing Co. of Am., Inc. (44 AD3d 556 [2007] [Roddy I]), the First Department granted conditional summary judgment to the owner of a theater on its contractual indemnification claim against Abhann, the plaintiff's employer, finding that the owner established its prima facie case "by demonstrating, through deposition testimony and other evidence, that the fogger machines and floor that caused plaintiff's injury were under the exclusive control of Abhann, and that Abhann had directed every aspect of the work through which plaintiff was injured.”  At issue was whether that prior decision constituted “law of the case” as to the plaintiff who had an opportunity to participate as a respondent on the prior appeal and where the issue on appeal went to the merits.  The First Department held that it was and affirmed an order dismissing the complaint against the owner.  

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