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NJ Supreme Court – Duty Of Homeowners Associations – Maintain Sidewalks Within The Common Interest Community

New Jersey Supreme Court Clarifies Duty Of Homeowners Associations To Maintain Privately Owned Sidewalks Within The Common Interest Community

By: Christopher P. Lagay, Esq.

The New Jersey Supreme Court recently published an opinion which clarifies the liabilities of “common interest communities,” such as homeowner’s associations, for maintenance of the common areas under the association’s control. In Qian v. Toll Brothers, 223 N.J. 124 (2015), the Court reversed the appellate divisions affirmance of summary judgment granted by the trial court to the homeowner’s association and management community, and remanded the case. Continue reading

Determining Realty Or Personalty For Liability Under PA Subdivision Tort Claims Act

Determining Whether Something Is A Part Of Realty Or Personalty For Purposes Of Liability Under The Pennsylvania Subdivision Tort Claims Act

By: Steven M. Liero, Esquire

When an action is brought against a political subdivision, such as a school district or a municipality, a question arise whether the claim falls within an exception to the immunity enjoyed by the subdivision.

Most often claims are brought pursuant to the real estate exception contained in 42 Pa. C.S.A. § 8542(b)(c). To invoke this section, the plaintiff must show that a) the injury resulted from a defective condition that b) stemmed from the care, custody or control of real estate, not personalty. Mellon v. City of Pittsburgh Zoo, 768 A.2d 921 (Pa. Cmwlth 2000). The question becomes more complicated when the real estate contains not only a building or grounds around the building, but a device attached to the building. As an example, a question arises whether a metal cleat, attached to a gym wall in a school on which a person is injured is part of the realty itself or simply an item of personalty. If the latter, the plaintiff’s injury would not fall within the real estate exception to immunity and that person could not recover for pain and suffering. Continue reading

Delay Damages in a UM Case are Based on the Molded Verdict and Not the Jury Award

By: Steven M. Liero, Esquire

On December 28, 2012, the Pennsylvania Supreme Court, in Marlette, et al. v. State Farm Mutual Automobile Insurance Company, 57 A.3d 1224 (2012) a series of consolidated cases held that delay damages in an uninsured motorist action are calculated on the verdict as molded by the Court, not on the full amount originally awarded by the jury. Continue reading

For Whom The Bell Tolls? – Widening The Scope Of New Jersey Condominium Association Alternative Dispute Resolution

For Whom The Bell Tolls? – Widening The Scope Of New Jersey Condominium Association Alternative Dispute Resolution After Bell Tower Condominium Association V. Haffert

By: Angela B. Kosar, Esq.

Condominium Associations in New Jersey have recently found themselves with a new order of business on their meeting agendas – reexamining their existing alternative dispute resolution procedures between and among their unit owners and the condominium association. This year, The New Jersey Appellate Division in Bell Tower Condominium Association v. Haffert, 423 N.J. Super. 507 (App. Div.) cert. denied 210 N.J. 217 (2012) broadly construed the term “housing-related disputes” as set forth in the New Jersey Condominium Act to include a dispute between a unit owner and the condominium association board over the manner in which a special assessment was approved. However, it is the use of the word “broadly” in the opinion that has far reaching ramifications. Continue reading

NJ Superior Court Judge Dismisses Texting Lawsuit

By: Amelia Lolli, Esquire

On May 25, 2012, a New Jersey Superior Court Judge granted summary judgment in the case of Kubert v. Best, in favor of a defendant, Shannon Colonna, who was accused of sending a text message to a friend while he was driving. On September 19, 2009, Kyle Best, age 19, received a text message from a female friend while operating his motor vehicle in Randolph, Morris County, New Jersey. Mr. Best lost control of his vehicle, crossed the yellow line and struck David and Linda Kubert on their motorcycle. Both individuals suffered very serious personal injuries. Continue reading

Limits Condo Property Liability

By: Michael S. Mikulski, Esquire
(Originally Posted on: December 27, 2011)

The New Jersey Supreme Court recently decided the case of Luchejko v. City of Hoboken. This case significantly limits the potential liability of condominium associations and property managers for removing snow and ice from public sidewalks.

Brief Summary – there is no sidewalk liability for a condominium complex for failure to remove snow and/or ice as a condominium complex is determined to be residential, and therefore residential immunities apply. Continue reading

Types of Disability Coverage in Life and Health Insurance

Definition of disability
The definition of “disability” is subjective because some people can work without complaint with a condition that would disable and incapacitate others. A typical life and health insurance policy may define disability insurance as including insurance related to injury, disablement, or death resulting to the insured from accidents or sickness.

Forms of coverage
The two principal forms of disability coverage in life and health insurance are disability income insurance and waiver of life insurance premium payment during disability.

Disability income insurance
Disability income insurance pays certain monetary benefits to the insured during his disability as defined in the policy. These benefits are common in group insurance.

Waiver of life insurance premium
Waiver of premium payment during disability is a benefit whereby the insured need not pay the premium on a life insurance policy during his disability. Although the premium is considered “waived,” in effect, the insured pays a premium that provides a cash credit toward the premium on the policy in case he becomes disabled.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

The Distinction Between an Insurance Agent and an Insurance Broker

Insurance agents act on behalf of one or more insurance companies. That relationship between the insurance agent and the insurance company provides authority for the agent to act for and bind the insurance company. Insurance brokers, on the other hand, represent insurance purchasers rather than insurance companies even though insurance brokers may receive their commissions from insurance companies. Insurance brokers do not have authority under principal-agent or employer-employee theories to bind the insurance companies that provide the policies insuring companies or individuals.

Insurance agencies may differ according to the amount of authority granted by insurance companies to the agency. A general agency may have authority to issue its own contracts of insurance under which an insurance company will be bound to provide coverage. Soliciting agencies may have authority only to receive and forward insurance applications but not have authority to bind the insurance company. However, such soliciting agencies still may be found to have apparent authority to bind an insurance company depending upon the factual situation presented to the court.

Generally, insurance brokers represent only the insurance purchaser. However, because the income of the broker normally comes from the insurance companies providing the insurance, questions may arise as to the degree to which an agency relationship between a broker and an insurance company should be inferred.

An insurance broker will have a duty to the purchaser to carry out its obligation to obtain correct types and amounts of insurance for the purchaser to the extent possible. Normally, a broker would not be responsible to meet obligations to the insurer or to meet obligations of the insurer to the purchaser. However, depending upon the factual situation, there may be sufficient reasons for a court to decide that obligations of an agent have arisen for an insurance broker.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.

Innocent Co-Insured

Who is an innocent co-insured?
When multiple insureds obtain an insurance policy, usually on jointly owned property, and one insured causes a loss through wrongdoing, the other insureds are considered “innocent co-insureds.” When the innocent co-insureds submit a claim to the insurer to obtain coverage for the loss, an issue arises as to whether the claim should be paid because it would benefit the insured who committed the wrongdoing.

Example: A husband and wife obtain a homeowner’s policy on their jointly owned home. The parties begin an unfriendly divorce, and the wife burns down the home out of spite. If the husband, as the innocent co-insured, submits a claim and receives coverage, the wife, as the wrongdoer, benefits because she partly owns the home. If the insurer denies coverage, the husband is punished for the wife’s wrongdoing.

Public policy
There are several public policy considerations that some courts consider when determining whether or not an innocent co-insured should be compensated for his loss. Denials of claims are based on the public policies of barring the wrongdoer from benefiting from his wrongdoing and preventing the perpetration of fraud on the insurer. However, claims may be paid based on the public policies of preventing the unjust enrichment of the insurer and not allowing an innocent victim to be blamed for a wrongdoer’s acts.

Recovery barred
Traditionally, most courts barred the innocent co-insured from recovery if a co-insured intentionally caused the loss or perpetrated some type of fraud or misrepresentation against the insurer. The principle supporting the denial of recovery was that a wrongdoer should not be rewarded, directly or indirectly, for his wrongful act.

Recovery allowed
Under the modern rule, the majority of courts allow an innocent co-insured to recover based on the public policy that he should not be penalized for another insured’s wrongdoing unless the policy provides no coverage. Generally, if the policy states that responsibility for the fraud is several or separate, rather than joint, an innocent co-insured will not be punished for another insured’s fraud. If the policy is ambiguous, it is usually construed in favor of the innocent co-insured.

Change in insurance policies
In response to the approach of allowing innocent co-insureds to recover despite another insured’s wrongdoing, insurers began inserting language in policies that voids the policy if “an” or “any” insured, rather than “the” insured, is guilty of wrongdoing. However, despite the change in policy language, courts still seek to allow innocent co-insureds to recover. They may do so by using a contract-based approach to give effect to the intent of the parties to the policy.

Copyright 2011 LexisNexis, a division of Reed Elsevier Inc.