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Andre Henry was attending a concert when he was shot and killed by random gunfire. The concert was produced by a third-party and took place at a property owned by 48 Branford Place Associates, LLC, and leased to Palladium Associates, LLC. As part of the lease to the third-party concert organizer, Palladium was responsible for providing security for the event. Both 48 Branford Place’s and Palladium’s liability insurance policies included exclusions for assault and battery occurring on the premises. Palladium had secured its liability insurance policy from the Massey Insurance Agency, and there was a dispute concerning the information that had been provided by Palladium during the application process and relating to the nature of the business activities that would be taking place. The dispute specifically concerned whether “entertainment” would be taking place at the premises and whether alcohol would be available. The decedent’s estate asserted that Massey had breached its professional duty of care by not securing proper insurance coverage for the activities that were taking place.

Prior to trial, the court granted 48 Branford’s motion for summary judgment and Massey’s motion to sever the malpractice claims from the plaintiff’s personal injury action. The plaintiff then negotiated a settlement with Palladium’s principle and proceeded against Palladium in a bench trial, where Palladium didn’t contest the plaintiff’s claims or damages. A judgment against Palladium was eventually entered for $1 million.

In the ensuing malpractice trial, the court granted Massey’s motion in limine to preclude any information about the nature of the plaintiff’s injury (the shooting death of her husband) and the resulting damages since the court concluded that such information would serve no purpose but to “inflame the jury.” Instead, the jury was only told that the plaintiff had sustained “a loss.” In reaching this conclusion, the court noted that the issue of Palladium’s negligence had already been determined, as had the resulting damages. The court rejected the plaintiff’s claim that she had a constitutional right to disclose to the jury her role in the litigation and to describe the damages she was caused to suffer.

The important takeaways from this decision are two-fold. First, the strategic and practical value of having the professional malpractice claim severed from the related personal injury or property damage claim. Having both claims proceed in a single trial increases the possibility of jury confusion, and it also allows the potential sympathy for the plaintiff to be used to increase the likelihood of a finding against the insurance professional since the jury will be mindful that the only way the plaintiff can recover a monetary award is to find against the agent/broker. Along that line, defense counsel should request that a separate jury hear the malpractice claim, not the jury that already heard the related claim. Secondly, whether due to the claim being severed or otherwise, it is important to take the appropriate steps to keep the jury’s focus on the issues relating to the allegations of malpractice and to not allow extraneous evidence to be presented that can only inflame the jury’s passion, prejudice or sympathy. The focus has to be kept on the narrow question of whether there has been a breach of the standard of care by the agent/broker.

The material in this law alert has been prepared for our readers by Marshall Dennehey Warner Coleman & Goggin. It is solely intended to provide information on recent legal developments, and is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We welcome the opportunity to provide such legal assistance as you require on this and other subjects. If you receive the alerts in error, please send a note tgventura@mdwcg.com. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved.

By Lawrence B. Berg

Edited by Timothy Ventura, Esq.

Stephens v. 48 Branford Place Associates, LLC, 2019 N.J. Super. Unpub. LEXIS 121 (App. Div. January 16, 2019)