Connecticut Injury Attorney Blog

The Connecticut Supreme Court took an unusual step in a recent decision, overruling its own prior decision. The current case, Arrowood Indemnity Company v. Pendleton King, began with a dispute between the parent of an injured child and another parent. The case developed into a dispute between the defendant and the defendant's insurance company over whether the insurer received adequate pre-litigation notice of a claim. The court, in holding that the burden rests with the insurance company to prove prejudice caused by late notice, has altered an important aspect of the insurance claims process, one that could possibly have far-reaching impact on Connecticut personal injury attorneys and their clients.

King's teenage son was driving his parents' all-terrain vehicle (ATV) in 2002, using a nine-foot rope to tow another boy on a skateboard. The boy being towed, Conor McEntee, let go of the rope and fell, suffering serious head trauma that caused him to be hospitalized with a temporary coma.

The King and McEntee families reportedly continued to socialize after the accident, and the McEntees did not tell the Kings they intended to bring a claim for Conor's injuries. Over a year after the accident, the Kings received a letter from an attorney representing the McEntees. The attorney notified them of the McEntees' intent to claim damages for the accident. The Kings, through their insurance broker, presented the claim to their insurance carrier. They had homeowner's and umbrella liability policies through the insurer. The insurance company, later substituted by Arrowood Indemnity Company, filed a declaratory judgment action, claiming that it had been prejudiced by the McEntees' late notice of their claim, and that therefore it was not obligated under its contract with the Kings to defend or indemnify the Kings.

The Connecticut Supreme Court had ruled in a 1988 case, Aetna Casualty & Surety Co. v. Murphy, that the burden of disproving prejudice in a case of late or delayed notice of a claim fell on the insured. The court reasoned that, since the insured was the party seeking to enforce the terms of a contract despite not abiding by his own contractual obligations, the insured should have to show how enforcing the contract against the insurer would not unfairly prejudice the insurer.

The court in Arrowood explicitly overruled Murphy, holding that the insurer must prove by a preponderance of evidence that a delay in notice has caused prejudice. The court noted that courts in many other jurisdictions have ruled that the insurer has the burden of proving prejudice. It also noted the difficulty of "proving a negative," which is what the insured would have to do under Murphy. This could "prevent the court from meaningfully weighing the parties' real interests."

Continue reading "Connecticut Supreme Court Overrules Its Own Caselaw Regarding Insurance Claims for Personal Injuries" »

The Appellate Court of Connecticut issued an opinion on a case that could have an impact on other personal injury claims. In Connecticut Insurance Guaranty Association v. Drown, an appellate panel held that the appellant, a guaranty company covering an insolvent insurance company, is not obligated to pay a settlement from the malpractice claim on behalf of the insurance company. This leaves the appellees, who had entered into a settlement agreement with a clinic, with no means of collecting the judgment.

The lawsuit was originally filed on behalf of Joshua Drown by his parents in May 2000. Drown's mother, while pregnant with him, was a patient at Health Specialists. She alleged that two doctors who treated her failed to diagnose a placental abruption, which subsequently caused brain damage in Joshua Drown and physical injuries in the mother. The lawsuit sought to impose vicarious liability on Health Specialists for the alleged negligence and malpractice of the two doctors.

Health Specialists, according to the court opinion, reported the claim to its insurance carrier, Exchange, in a timely manner. Exchange provided counsel to defend against the lawsuit. In September 2006, the counsel for Health Specialists did not appear for a court-scheduled mediation. Exchange then sent a letter stating that it was denying coverage based on an exclusion in the policy for claims based solely on injuries caused by individual medical professionals. The counsel retained by Exchange for Health Specialists stopped appearing in court, and in December 2006 the court entered a default judgment in favor of the Drowns. The Drowns and Health Specialists signed a settlement agreement in March 2007 in which Health Spcialists agreed to pay the insurance policy limit amount of $2 million, and the court dismissed the case against Health Specialists. The Drowns agreed not to directly pursue Health Specialists to recover the settlement amount.

Exchange filed for bankruptcy not long after this, and a New Jersey bankruptcy judge ordered a liquidation. The Connecticut Insurance Guaranty Association became legally obligated to pay some "covered claims" based on Exchange's policy contracts. In early 2009, the Association filed motions for declaratory judgment and summary judgment, arguing that the exclusion originally cited by Exchange in denying the claim relieved the Association of the obligation to pay. The defendants filed a cross-motion for Summary Judgment, arguing that the Association was responsible for the entire settlement amount.

The trial court granted the defendants' motion and ruled against the Association. It also reportedly held that the Association was estopped from enforcing the provisions of the insurance policy because its predecessor, Exchange, breached its duty to Health Specialists to defend them in the litigation. The association appealed, and the appeal was heard in October 2011.

Continue reading "Connecticut Appeals Court Rules that Guaranty Company and Insolvent Insurance Company are Not Liable for Malpractice Settlement" »

A Pennsylvania construction worker who was paralyzed in a 2001 hit and run accident has received a $3 million workers' compensation settlement, believed to be one of the largest settlements ever. His case has been, to put it mildly, a rollercoaster ride through many of the most difficult obstacles a personal injury plaintiff can face. After a lawsuit for negligence and Dram Shop Act liability, he had to pursue a claim for bad faith refusal to pay an insurance claim. With the settlement of his workers' compensation claim, perhaps the case can have some closure.

Joseph Tuski worked as a road flagman in Warminster, Pennsylvania. In January 2001, he was directing traffic around a construction site when a car driven by Michael Petaccio reportedly hit him, throwing him fifteen feet in the air and sixty feet away. Tuski suffered severe neck and spinal injuries, brain injuries, and broken limbs. The injuries rendered Tuski a quadriplegic, and he continues to require around-the-clock medical care.

Petaccio was the manager of the Ivyland Cafe and had reportedly just left there when the accident occurred. He fled the scene of the accident and was arrested several days later. He pleaded guilty to aggravated assault while driving under the influence in 2001 and received a prison sentence of one and a half to three years.

Tuski filed suit against Petaccio and the Ivyland Cafe, alleging that Petaccio was negligent and therefore liable for his injuries, and that the Ivyland Cafe was liable under the Dram Shop Act. This law allows someone injured by a person under the influence of alcohol to recover damages from the person or business that served the person alcohol, if they did so when the person was already visibly and unreasonably intoxicated. In early 2004, a jury in Philadelphia awarded Tuski $75.6 million in compensatory and punitive damages, which Tuski's lawyer at the time claimed was the largest verdict in a liquor liability case in Pennsylvania history.

Continue reading "Construction Worker Paralyzed by a Drunk Driver Receives a Record Workers' Compensation Settlement" »

In Connecticut, Individuals and business entities that take out insurance coverages have an expectation which the Courts will enforce to have their policy claims administered fairly in accordance with the terms of the Policy and the reasonable expectations of the parties. As insurance contracts are adhesion contracts which are generally not subject to negotiation and drafted by the Insurance company issuing the coverage, any ambiguities are traditionally resolved in favor of the insured party. Individual consumers may rely on such policy coverages when they experience certain occurrences which trigger coverage such as an automobile accident where the party at fault, known as the tortfeasor, has no liability insurance coverage in effect. In such instances, it is common for the injured party not at fault for the accident to seek policy benefits from their own insurer in lieu of Damages which would otherwise be recoverable from the tortfeasor's own insurer if they had insurance coverage in effect.

Continue reading "Unfair Insurance Practices" »