Our last trial of the year found us out in Riverhead on another back surgery case, a three level fusion of the lumbar spine on a plaintiff with a history of chronic back problems, who claimed to be asymptomatic for many years before a rear end collision which ultimately lead to the three level fusion. The best piece of evidence for a plaintiff in this case is the dramatic post-surgical x-rays showing the hardware in place. Most juries would be hard pressed to believe anyone would undergo such a dramatic and evasive procedure unless it was truly necessary.

How does a defense attorney approach the cross examination of the spinal surgeon who testifies for the plaintiff on these types of cases?  I have attached the direct and cross examination of plaintiff's surgeon, Dr. Thomas Dowling, from my November 2017 trial. Dr. Dowling is a well-known and highly respected surgeon in Suffolk County. It is not unusual to find a juror in voir dire who was treated in his practice. The cross-examination of the plaintiff's expert in these type of cases must focus on the accuracy of the plaintiff's history; the surgical procedure and the post-operative care. If the plaintiff's history as related to the surgeon was inaccurate, counsel can argue that the doctor's testimony that the accident was the competent producing cause of the pathology which led to the surgery, is also inaccurate. If the operative report details treatment for bony overgrowth (osteophytes) and spinal stenosis, the surgeon needs to be pressed on the direct testimony that the plaintiff suffered multi-level disc herniations from the accident. How is it possible that the surgery left intact the disc that was supposedly herniated by trauma and only addresses bone growth? Wouldn't the osteophyte formation take years to develop? What were the conditions placed on the patient when he was discharged from your practice? Could he resume full activities without restrictions? Were you aware he drove to Florida with his family, a 2000 mile drive round trip?

 

You may not be able to score a knockout punch but you certainly can make inroads on the credibility of a plaintiff. A focus on the history, surgical findings, and postoperative care has been very effective in our practice. The attached transcript should be helpful.

Read the transcript here. 

The Court of Appeals issued a three sentence ruling last month in Garcia v. Gov't Employees Ins. Co., (No. 148 SSM 37, 2017 WL 6374264 (N.Y. Dec. 14, 2017).  "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."

 

The history of this case is worthy of review. In May of 2006, a pedestrian, Antonio Garcia, was struck in a parking lot in Brooklyn by a vehicle owned by Jeanne Rakowski, and driven with permission by Linda Danielson. The underlying lawsuit resulted in a plaintiff's verdict in December of 2010 for $819,152.90.  The plaintiff obtained a judgment against both the owner and driver and sought to enforce the judgment through a direct action against GEICO under Insurance Law § 3420(a)(2) .

 

GEICO moved for summary judgment dismissing the complaint on the grounds that Rakowski's umbrella policy was not in effect at the time of the accident. Specifically, GEICO contended that Rakowski's umbrella policy, which contained a liability limit of $2 million for the contracted policy period, had been cancelled for nonpayment of premium, effective at 12:01 a.m. on May 19, 2006, only a few hours before Rakowski's vehicle struck Garcia. The facts revealed the GEICO policy holder requested an increase in the umbrella policy limits from $1 Million to $2 million resulting in an additional premium of $199 which was not paid. The facts also revealed the policyholder paid $306, which was the previous year's premium for the $1 million umbrella policy. In a novel approach, the plaintiff alleged the policy was "severable" or "divisible." The plaintiff argued  "Rakowski had a fully paid policy for $1 million that lasted from October 10, 2005, to October 10, 2006. Rakowski's failure to pay the premium applicable to the "second million" of coverage meant only that she did not have the second million dollars of coverage".  

 

In discussing the issue of divisibility, the Appellate Division stated:

 

"More specifically, an insurance contract is divisible when the contracting parties intend that it be divisible (see First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d 297, 299, 327 N.Y.S.2d 609, 277 N.E.2d 638; Donley v. Glens Falls Ins. Co., 184 N.Y. 107, 111, 76 N.E. 914). The parties' intention is to be gleaned from the language of the contract and the application of the rules governing contractual interpretation (see First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d at 299, 327 N.Y.S.2d 609, 277 N.E.2d 638). The general rule is that an insurance contract is not divisible " 'when by its terms, nature, and purpose, it contemplates and intends that each and all of its parts and the consideration therefor shall be common each to the other and interdependent. On the other hand, the contract is considered severable and divisible when by its terms, nature, and purpose, it is susceptible of division and apportionment' " (id. at 299-300, 327 N.Y.S.2d 609, 277 N.E.2d 638, quoting 29 NY Jur., Insurance § 643).

 

The question of divisibility arises when, for example, a policy covers separate properties or separate risks, and the policyholder has breached a condition or warranty as to one property or one type of risk, but not involving the loss at issue. In the context of the insured's nonpayment of a portion of the premium, the issue of divisibility arises when, for example, a policyholder has made a change to a fully paid policy but has not paid the additional premium occasioned by the change. Depending on the insurance contract at issue, the lines of divisibility may run between the types of risk covered by the contract, such as property damage as opposed to personal injury (see American Sur. Co. of N.Y. v. Rosenthal, 206 Misc. 485, 488, 133 N.Y.S.2d 870 [Sup.Ct., Nassau County] ), or between the different properties covered, such as where different vehicles or properties are covered by the policy (see Matter of Nationwide Mut. Ins. Co. [Mason-Lumbermens Mut. Cas. Co.], 37 A.D.2d 15, 18, 322 N.Y.S.2d 164; Matter of Prudential Prop. & Cas. Ins. Co. [Pearce], 126 Misc.2d 1044, 484 N.Y.S.2d 464 [Sup.Ct., Nassau County], affd. sub nom. Matter of Prudential Prop & Cas. Co. [ Pearce-Country-Wide Ins. Co.], 120 A.D.2d 597, 501 N.Y.S.2d 1015; cf. First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d at 300, 327 N.Y.S.2d 609, 277 N.E.2d 638). When, however, an insured has increased liability limits of an entire policy as of the inception date of coverage, but has not paid the full premium and the policy has thus lapsed, the Court of Appeals has held that the policy is not divisible to provide coverage in a lesser amount than stated in the policy, at least where no different type of risk had been added to the policy (see First Sav. & Loan Assn. of Jersey City, N.J. v. American Home Assur. Co., 29 N.Y.2d at 299, 327 N.Y.S.2d 609, 277 N.E.2d 638)."

 

Certainly this case presented a novel approach with creative lawyering. The argument of the plaintiff was accepted by Judge Sandra L. Sgroi in the Appellate Division. The Court of Appeals gave the issue three sentences.

 

Read the decision here.