An Insurer's Right of Subrogation in New York
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TICL Journal Volume 31, No. 1 Spring 2002 Issue Copyright 2002 by the New York State Bar Association ISSN 1530-390X TORTS, INSURANCE AND COMPENSATION LAW SECTION EXECUTIVE COMMITTEE—2002-2003 SECTION CHAIR THIRD DISTRICT Hon. Anthony J. Mercorella Dennis R. McCoy Edward B. Flink 150 East 42nd Street 1100 M&T Center 7 Airport Park Boulevard New York, NY 10017 Three Fountain Plaza Latham, NY 12110 Buffalo, NY 14203 TENTH DISTRICT Christine K. Krackeler James J. Keefe, Jr. 16 Sage Estate VICE-CHAIR 1140 Franklin Avenue Menands, NY 12204 Eric Dranoff P.O. Box 7677 331 Madison Avenue Garden City, NY 11530 New York, NY 10017 FOURTH DISTRICT Paul J. Campito Thomas J. Spellman, Jr. SECRETARY 131 State Street 50 Route 111 Hillside Village Plaza Eileen E. Buholtz P.O. Box 1041 Smithtown, NY 11787 250 Times Square Building Schenectady, NY 12305 45 Exchange Street, Suite 250 Rochester, NY 14614 Robert P. McNally ELEVENTH DISTRICT P.O. Box 2017 Edward H. Rosenthal Glens Falls, NY 12801 EXECUTIVE COMMITTEE 125-10 Queens Boulevard Kew Gardens, NY 11415 LIAISON FIFTH DISTRICT Edward S. Reich Timothy J. Fennell Arthur J. Smith 26 Court Street, Suite 606 26 East Oneida Street 125 Jericho Turnpike Brooklyn, NY 11242 Oswego, NY 13126 Jericho, NY 11753 DELEGATES TO THE Lori E. Petrone TWELFTH DISTRICT HOUSE OF DELEGATES 1624 Genesee Street Mitchell S. Cohen William N. Cloonan Utica, NY 13502 116 John Street, 33rd Floor 85 Main Street New York, NY 10038 Kingston, NY 12401 SIXTH DISTRICT John J. Pollock Robert S. Summer Edward B. Flink P.O. Box F-1706 714 East 241st Street 7 Airport Park Boulevard Binghamton, NY 13902 Bronx, NY 10470 Latham, NY 12110 Weeden A. Wetmore FORMER CHAIRS FIRST DISTRICT 243 Lake Street Lawrence R. Bailey, Jr. Richard J. Cairns Elmira, NY 14901 152 West 57th Street, 35th Floor 125 West 55th Street New York, NY 10019 New York, NY 10019 SEVENTH DISTRICT Glenn E. Pezzulo Thomas P. Bogan Alan Kaminsky 36 West Main Street 8150 Brimfield St. 150 East 42nd Street Rochester, NY 14614 Clinton, NY 13323 New York, NY 10017 Louis B. Cristo EIGHTH DISTRICT SECOND DISTRICT 700 Reynolds Arcade Paul F. Jones 16 East Main Street Gregory T. Cerchione 3400 HSBC Center Rochester, NY 14614 291 Broadway, 9th Floor Buffalo, NY 14203 New York, NY 10007 William N. Cloonan Mary M. Russo 85 Main Street Mark A. Longo 43 Court Street, Suite 1000 Kingston, NY 12401 26 Court Street, Suite 1700 Buffalo, NY 14202 Brooklyn, NY 11242 Saul Wilensky NINTH DISTRICT 120 Broadway Thomas J. Burke New York, NY 10271 10 Bank Street, Suite 1040 White Plains, NY 10606 ii NYSBA Torts, Insurance & Compensation Law Section Journal | Spring 2002 | Vol. 31 | No. 1 COMMITTEE CHAIRS Insurance Coverage DIVISION CHAIRS Kevin A. Lane Automobile Liability 840 Main-Seneca Building Construction and Surety Law Gary A. Cusano 237 Main Street Henry H. Melchor 303 South Broadway, Suite 435 Buffalo, NY 14203 One Lincoln Center Tarrytown, NY 10591 Syracuse, NY 13202 Laws and Practices Aviation Law Robert H. Coughlin, Jr. Workers’ Compensation Law Franklin F. Bass 480 Broadway, Suite 332 Thomas A. Dunne 150 East 42nd Street P.O. Drawer M 8 Dundee Road New York, NY 10017 Saratoga Springs, NY 12866 Larchmont, NY 10538 Business Torts and Life, Health and Accident NYSBA STAFF LIAISONS Employment Litigation Insurance Patricia K. Bucklin Jacqueline Phipps Polito Marilyn M. Cochran New York State Bar Assoc. 28 East Main Street, Suite 1400 One Madison Avenue One Elk Street Rochester, NY 14614 New York, NY 10010 Albany, NY 12207 Class Action Membership Kathleen M. Heider Hon. Thomas A. Dickerson Dennis P. Glascott New York State Bar Assoc. 35 Hampton Avenue 1300 Liberty Building One Elk Street Yonkers, NY 10710 Buffalo, NY 14202 Albany, NY 12207 Continuing Legal Education Municipal Law CLE STAFF LIAISON Hon. Douglas J. Hayden Paul J. Suozzi Jean Marie Grout 111 Beech Street 1300 Liberty Building New York State Bar Assoc. Floral Park, NY 11001 Buffalo, NY 14202 One Elk Street Albany, NY 12207 Fire and Property Insurance Premises Liability/Labor Law YOUNG LAWYERS David C. Cook Glenn A. Monk 100 Park Avenue 81 Main Street SECTION LIAISON New York, NY 10017 White Plains, NY 10601 Keith A. O’Hara 20 Hawley Street P.O. Box 2039 Future Sites Products Liability Binghamton, NY 13902 James D. Gauthier Neil A. Goldberg 1300 Liberty Building 120 Delaware Avenue Buffalo, NY 14202 Suite 500 TICL JOURNAL Buffalo, NY 14202 Co-Editors Paul S. Edelman General Awards 100 Park Avenue Catherine Berlin Habermehl Professional Liability New York, NY 10017 617 Main Street Susan L. English Callanan Market Arcade Complex 20 Hawley Street David Beekman Buffalo, NY 14203 P.O. Box 2039 Binghamton, NY 13902 100 Park Avenue New York, NY 10017 Thomas N. Trevett 700 Reynolds Arcade Website Kenneth L. Bobrow 16 East Main Street Charles J. Siegel 4-6 North Park Row Rochester, NY 14614 40 Wall Street, 7th Floor Clinton, NY 13323 New York, NY 10005 Governmental Regulations TICL NEWSLETTER Michael C. Tromello Frederick J. Pomerantz (Cover to Cover) Three Huntington Quadrangle 150 East 42nd Street Editor New York, NY 10017 Suite 305 N P.O. Box 948 Robert A. Glick Melville, NY 11747 885 Second Avenue New York, NY 10017 NYSBA Torts, Insurance & Compensation Law Section Journal | Spring 2002 | Vol. 31 | No. 1 iii Table of Contents Vol. 31, No. 1 Page Message from the Section Chair Dennis R. McCoy . 2 Articles The Changing Jury Environment Susan A. Powell. 4 Vehicle Transportation Claims Affecting the Business Owner and Insurers Robert A. Glick . 12 An Insurer’s Right of Subrogation in New York Thomas R. Newman . 14 Developments in New York Workers’ Compensation Law and the Use of the New York Workers’ Compensation Law as a Defense in Liability Related to Employment Jared L. Garlipp and Mary M. Russo. 21 The Public Policy of Workers’ Compensation Law § 11 Prevails Against Collateral Estoppel Argument Edwin L. Smith and Reed M. Podell . 28 “Forseeability” in Premises Security Lawsuits Alan Kaminsky and Nicole Mauskopf . 33 Regulation 68 and Proposed Legislation Changing New York’s No-Fault Laws Gary A. Cusano . 35 Employment Practices Liability Insurance Stephen J. Paris and Eric A. Portuguese . 37 Book Review: A Complete Guide To Premises Security Litigation, Second Edition Reviewed by Paul S. Edelman . 41 Book Review: Successful Partnering Between Inside and Outside Counsel Reviewed by John M. Nonna . 42 Recent Court Decisions Which May Impact Your Practice Kevin Lane and Adam Ferrandino . 44 Editor’s Note: Cases to Look For Paul S. Edelman. 51 Scenes from the TICL Section Fall Meeting . 52 Article Index . 53 Author Index . 56 NYSBA Torts, Insurance & Compensation Law Section Journal | Spring 2002 | Vol. 31 | No. 1 1 Message from the Section Chair The Value of Membership Second, even those who have been members for a At a recent meeting of the long period of time may be looking for something new Executive Committee, one of from the Section. Perhaps, they would like to become the members challenged the involved with one of the substantive committees, or group to respond to the follow- write an article for the TICL Journal or the newsletter, ing question: “Why would any- Cover to Cover, or participate as a presenter in one of the one want to be a member of the many CLE programs sponsored either directly by the TICL Section?” This might Section, or jointly with the CLE Committee of the New seem to be an odd question to York State Bar Association. address to an audience of peo- Third, I believe that each member is an emissary for ple who had dedicated a com- our Section to those with whom he or she practices, bined total of over three cen- either in a firm or in a larger legal community. I think if turies to the work of the the Section is doing a good job, Section members may Section. Nevertheless, the question is important in an wish to share the benefits of membership with their col- era when many of our traditional institutions seem to leagues and friends in the profession. be quickly fading into irrelevance. So, what is the answer to the original question? I I thought my first communication with you as have been personally involved in the Section for over 20 Chair of the Section might be a good time to offer my years. During that time, I have received and read the personal answer to this question and to share with you TICL Journal on a regular basis and have contributed to my vision for the Section in the coming year. But before the publication on a number of occasions. I have served I do this, let me set the background for the discussion on the Executive Committee. I have attended and pre- we were having at the time this question was raised. sented at Section CLEs. I have attended scores of Sec- We had just received a report from Dennis Glascott, our tion meetings at sites throughout New York and the Membership Chair. Dennis had reported that the mem- United States. I have met lawyers throughout New York bership of the Section has remained relatively flat, State, many of whom have become good friends. I think despite the fact that the number of lawyers graduating I am both a better lawyer and a better person for having from law school and practicing law in New York State had the opportunity to do these things. I could go on at had continued to increase significantly over recent far greater length to explain the numerous ways in years.