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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. 2021 NY Slip Op 01050 [191 AD3d 884]
Regular Panel Decision
Feb 17, 2021

Matter of Faith A. M. (Faith M.)

The mother, Faith M., appealed an order from the Family Court, Kings County, which found her to have derivatively neglected her child, Faith A.M. This finding stemmed from a prior neglect determination in May 2014 concerning her other children due to excessive corporal punishment, which the court deemed proximate in time to the current proceeding. The evidence presented, including statements from siblings, testimony from a school counselor, and observations of injuries, corroborated the ongoing use of excessive corporal punishment. The Family Court's assessment of the mother's credibility, finding her denials incredible, was supported by the record, reinforced by her guilty plea to disorderly conduct related to similar allegations. The Appellate Division affirmed the Family Court's order, as the mother failed to provide evidence that the circumstances leading to the neglect finding no longer existed.

Child NeglectDerivative NeglectCorporal PunishmentFamily Court ActAppellate ReviewParental JudgmentPreponderance of EvidenceCredibilityPrior FindingsRisk of Harm
References
11
Case No. MISSING
Regular Panel Decision
Nov 09, 2005

Plaza Restoration, Inc. v. Nationwide Mutual Insurance

The plaintiff insured brought an action seeking a declaratory judgment, alleging that the defendant insurer breached its covenant of good faith and fair dealing. This alleged breach related to a personal injury action previously commenced against the plaintiff by a construction worker. The defendant appealed an order from the Supreme Court, Nassau County, which had denied its motion to dismiss the complaint or for summary judgment, arguing the action was premature. The appellate court rejected the defendant's contention, affirming that a declaratory judgment action against an insurer is permissible even before a judgment in the underlying action. The order of the Supreme Court was affirmed, with costs.

Declaratory JudgmentBreach of CovenantGood Faith and Fair DealingInsurance LawPersonal InjuryConstruction Site InjuryRipeness DoctrineMotion to DismissSummary JudgmentAppellate Review
References
3
Case No. 2018 NY Slip Op 07224 [165 AD3d 1558]
Regular Panel Decision
Oct 25, 2018

Healthcare Professionals Ins. Co. v. Parentis

This case involves an appeal regarding a declaratory judgment action initiated by Healthcare Professionals Insurance Company (HPI) against Michael A. Parentis and others. The dispute arises from a prior medical malpractice verdict against Parentis totaling $8.6 million, which exceeded his combined $2.3 million primary and excess insurance policies from Medical Liability Mutual Insurance Company (MLMIC) and HPI. Parentis alleged bad faith against both insurers for failing to settle the underlying action within policy limits. The Supreme Court initially granted summary judgment to HPI and MLMIC, dismissing Parentis' bad faith claim. The Appellate Division, Third Department, reversed this decision, finding that genuine issues of material fact exist concerning whether both HPI and MLMIC acted in bad faith during settlement negotiations, especially during jury deliberations.

Insurance LawBad Faith Insurance ClaimMedical MalpracticeSummary JudgmentAppellate ReviewSettlement NegotiationsExcess InsurancePrimary InsuranceJury DeliberationsDuty to Settle
References
16
Case No. 07-CV-6149L
Regular Panel Decision
Feb 18, 2010

Johnson v. THE UNIVERSITY OF ROCHESTER MEDICAL CENTER

Plaintiffs Keith Johnson, M.D., and Laura Schmidt, R.N., filed a qui tam action under the False Claims Act against the University of Rochester Medical Center and Strong Memorial Hospital. They alleged defendants defrauded the government by submitting false claims for anesthesiology services under Medicare/Medicaid, claiming physician supervision when it was absent. Johnson also alleged retaliatory discharge for reporting violations, and Schmidt claimed retaliation for refusing to alter medical records. The defendants moved to dismiss, arguing failure to plead fraud with particularity under Fed. R. Civ. P. 9(b) and failure to state a claim under Rule 12(b)(6). Johnson cross-moved to amend the complaint to add claims of libel per se and prima facie tort against Dr. Lustik. The court granted the defendants' motion to dismiss, finding that the plaintiffs failed to allege that any fraudulent bills were actually presented to Medicare/Medicaid. The retaliation claims were also dismissed because the complaints were not made in furtherance of a qui tam action. Johnson's motion to amend was denied as frivolous and in bad faith. Defendants' request for sanctions was denied without prejudice.

False Claims ActQui TamMedicare FraudMedicaid FraudRetaliatory DischargePleading StandardsRule 9(b)Motion to DismissLeave to AmendLibel
References
28
Case No. MISSING
Regular Panel Decision

Raff v. Maggio

David Raff, an arbitrator, initiated an action against Maggio, an employer, to recover unpaid arbitration fees. Maggio had refused to pay his half of the fees stemming from a labor dispute arbitration, despite previous court affirmations of the arbitration award and advice from his own counsel to pay. Raff sought the arbitration fee, interest, and attorney's fees, contending that Maggio's prolonged refusal constituted bad faith. While Maggio eventually conceded his liability for the arbitration fee, interest, and court costs after his appeal to the Supreme Court was denied, he continued to dispute the payment of attorney's fees. The court determined that Maggio's initial and persistent refusal to pay the arbitration fee, based on a meritless defense, amounted to bad faith conduct. Consequently, the court partially granted Raff's motion for summary judgment, awarding him the arbitration fee, interest, court filing costs, and attorney's fees incurred up to the point Maggio filed his answer, marking the cessation of his bad faith actions concerning the fee itself. Maggio's cross-motion for summary judgment was denied.

Arbitrator FeesLabor DisputeSummary JudgmentAttorneys' FeesBad Faith LitigationAmerican Rule (Attorneys' Fees)Collective Bargaining AgreementArbitration Award EnforcementFederal Rules of Civil Procedure Rule 56Contractual Obligation
References
17
Case No. 2006 NY Slip Op 30219[U]
Regular Panel Decision

Federal Insurance v. North American Specialty Insurance

This case involves Federal Insurance Company suing Rivkin Radler LLP, Bruce A. Bendix, and Allied World Assurance Company (U.S.), Inc. for legal malpractice, bad faith, and indemnity. Federal, as an excess liability insurer and subrogee of Galaxy General Contracting Corp., sought to recoup $2,000,000 it paid to settle an underlying personal injury action. The core issue revolves around the defendants' failure to assert the antisubrogation rule, which Federal argued would have limited CUIC's (Galaxy's primary insurer) liability. The Appellate Division reversed the Supreme Court's denial of Rivkin's motion to dismiss Federal's claims, finding no privity for Federal's direct malpractice claim and no actual damages sustained by Galaxy for the subrogation claims. The court affirmed the bad faith claim against CUIC regarding the second cause of action but dismissed the first and third causes of action.

Legal MalpracticeBad Faith Insurance ClaimAntisubrogation RuleExcess InsurancePrimary InsuranceIndemnification ClaimsSummary JudgmentAppellate ReviewPrivity (Legal)Equitable Subrogation
References
22
Case No. MISSING
Regular Panel Decision

Burlew v. American Mutual Insurance

Bernice Burlew, an employee of Voplex Corporation, filed a lawsuit against her workers' compensation insurance carrier for alleged negligent and bad faith delay in authorizing necessary medical treatment for a work-related injury. Mrs. Burlew claimed her physician advised surgery shortly after a 1979 work-related illness, but the carrier withheld authorization for four to five months, leading to claims of emotional distress and fraudulent conduct. The defendant carrier sought dismissal, arguing the action was barred by the Workers’ Compensation Law's exclusivity provision and that no independent tort cause of action was established. The court affirmed the dismissal, holding that a breach of an insurance contract does not, in itself, create a tort claim, and the alleged conduct did not meet the high standard for intentional infliction of emotional distress. Consequently, the complaint, including the bad faith claim and requests for punitive damages, was dismissed, as the court found plaintiffs failed to state a cognizable cause of action in tort.

Workers' Compensation LawInsurance Carrier LiabilityBad Faith ClaimIntentional Infliction of Emotional DistressExclusivity ProvisionBreach of ContractMedical Treatment AuthorizationPersonal InjuryNegligenceAppellate Review
References
12
Case No. ADJ7977732, ADJ8044285, ADJ8044807
Regular
Nov 07, 2014

OSCAR ALVAREZ vs. EBUS, TRAVELERS INSURANCE COMPANY

The Appeals Board withdrew a Notice of Intention to Issue Sanctions against lien claimant Mednet, Inc. and its representative, Michael Goldberg. Initially, sanctions were considered for filing a skeletal, unverified Petition for Reconsideration and failing to appear at a lien conference, deemed bad faith actions causing delay. However, after Mednet explained the actions as an "honest mistake" due to lack of experience and apologized, the Board found the petition was not filed in bad faith or as a frivolous tactic. Mednet was admonished to familiarize itself with Appeals Board rules regarding liens and filings, but sanctions were ultimately withdrawn.

Workers' Compensation Appeals BoardRemovalNotice of Intention to Issue SanctionsLien ClaimantPetition for ReconsiderationSkeletal PetitionUnverified PetitionNon-Final OrderLien ConferenceBad Faith Actions
References
4
Case No. ADJ954867 (SFO 0497953)
Regular
Dec 29, 2008

HERBERT BARRIOS vs. DEEP VAC, INC., STATE COMPENSATION INSURANCE FUND

The Workers' Compensation Appeals Board partially granted reconsideration, rescinding the award of attorney's fees for frivolous tactics but affirming the award for expert witness costs and a penalty for unreasonable refusal to pay. The Board found that while SCIF's refusal to pay for the diminished future earnings capacity expert was unreasonable, their actions did not rise to the level of bad faith or frivolous conduct required for sanctions. A dissenting opinion argued to affirm the original award of sanctions, finding SCIF's actions to be unreasonable and in bad faith based on prior unfavorable decisions and testimony from SCIF's claims adjustor.

Diminished Future Earnings CapacityVocational RehabilitationLabor Code section 5811Labor Code section 5814Labor Code section 5813Expert Witness FeesReconsiderationFindings and AwardSanctionsBad Faith Tactics
References
3
Case No. ADJ6679249
Regular
Jun 08, 2010

GREG TOBER vs. GARVEY SCHOOL DISTRICT; PERMISSIBLY SELF-INSURED, ADMINISTERED BY YORK, FORMERLY SOUTHERN CALIFORNIA RISK MANAGEMENT ASSOCIATES

This case involves a defendant's petition for reconsideration of a Workers' Compensation Appeals Board (WCAB) order imposing sanctions under Labor Code section 5813. The original order found the defendant's attorney liable for sanctions due to alleged bad-faith actions and unnecessary delay in responding to discovery requests. Upon review, the WCAB granted reconsideration, rescinded the original order, and denied both the applicant's petition for attorney's fees and the defendant's petition for sanctions. The WCAB determined that while there was a delay, the defendant's actions did not meet the legal threshold for bad faith, frivolousness, or intentional delay required by section 5813.

WORKERS' COMPENSATION APPEALS BOARDPetition for ReconsiderationLabor Code section 5813SanctionsWCJdiscovery issuebad faithfrivolousunnecessary delayPetition for Discovery Order
References
0
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