In a recent car accident bodily injury case, the owner of the car that hit our client claimed that, at the time of the accident, the driver of her car was using her vehicle without her permission.
Why does it matter? It matters because her car insurance will only be required to pay our claim if the car was being operated with her permission at the time of the accident. For that reason, it is essential that we prove “permissive use” of the offending vehicle by the driver who struck our injured client.
Here are the legal arguments made in support of our motion to disclose the other car owner’s conversation with her insurance company.
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER ——————————————————————————x MAURA G. DAVIS, Plaintiff, Index No.: 02888/2012
-against-
DONALD W. WALLACE and DONNA P. WALLACE, Defendants. ——————————————————————————x
Plaintiff moves for disclosure of those portions of the Progressive Insurance Company file concerning permissive use of the vehicle. Plaintiff’s motion should be granted because:
Defendant Donna Wallace consented to the disclosure of her insurance file;
Defendant Donna Wallace herself made the insurance company file an issue in this case and in doing so waives any privilege;
Defendant Donna Wallace is estopped from asserting any conditional privilege; and
Defendant Donna Wallace’s recent claim that her vehicle was operated without her permission or consent is absurd.
STATEMENT OF FACTS
See Affirmation of William Martin dated September 4, 2015, accompanying this motion, for a full recitation of the relevant facts.
ARGUMENT
POINT I
DEFENDANT DONNA WALLACE HAS CHOSEN TO WAIVE
ANY PRIVILEGE THAT MAY EXIST BETWEEN HER
AND PROGRESSIVE INSURANCE COMPANY
At the Examination Before Trial of defendant Donna Wallace held on August 7, 2015, Ms. Wallace testified that she had verbally told her insurance company, Progressive Insurance, that her son, defendant Donald Wallace, did not have permission to operate her vehicle, and that she thinks she may have also written it down and provided same to Progressive. Counsel for plaintiff asked Defendant Donna Wallace if she had any objection to plaintiff’s counsel looking at the Progressive file, to which she had no objection. (see EBT transcript pages 30, 31 attached hereto as Exhibit “7”). The relevant portion of the transcript is as follows:
Page 30
Q: As you sit here today, do you specifically recall telling them that – that your son did not have your permission to operate your vehicle?
A: I’m probably sure, yes.
Q: And did you ever put that in writing, or was that just verbal?
A: I think I put it in writing.
Q: Okay. Approximately when?
A: I don’t know. Could have been months later, once I got paperwork from them. I don’t remember.
Page 31
Q: Okay. Do you have a copy of that writing?
A: I might. I don’t know.
Mr. Martin: Okay. I would ask you to look for it. If you have it, I would like to see it.
(Production Request)
Q: The writing that you gave them, you mailed to them? That’s how you gave it to Progressive, right; you mailed it?
A: I might have driven it up to them.
Q: Okay. So as you sit here today, you specifically remember verbally telling them, and also you may have written it down and given it to them in writing, as well?
A: I don’t remember.
Q: So then you have no objection to me looking at that file, correct?
A: Correct.
The conditional privilege belongs to Donna Wallace; it does not belong to Progressive. Thus, with Donna Wallace’s consent to discovery of the Progressive file, the file must be disclosed.
Plaintiff anticipates that Progressive will oppose this motion by arguing that the file is protected by a version of attorney-client privilege, which Plaintiff disputes. Plaintiff contends that Professor Siegel is correct, that the privilege is not derived from a common law privilege such as the attorney client privilege, but rather is merely protected by CPLR 3101(d)(2) which protects material prepared in anticipation of litigation (see Siegel, New York Practice, §347 [5th Edition]).
In all events, plaintiff concedes that under 3101(d)(2) statements made to one’s automobile insurance carrier have conditional immunity (see Dow v. Vinny’s Diagnostic Service Center, Inc., 2003 WL 1904084 [Sup. Ct., Nassau Cty.], citing Kandel v. Tocher, 22 AD2d 513 [1st Dept. 1965]; Recant v. Harwallace, 222 AD2d 372 [1st Dept. 1995]; Matos v. Akram, 99 AD2d 527 [2d Dept. 1984]). However, defendant Donna Wallace waived the privilege during her deposition, when she consented to plaintiff’s counsel looking at the file containing the information that plaintiff seeks in the subpoena to Progressive Insurance Company. It is, after all, Donna Wallace’s privilege, not her insurance company’s privilege. Her agreement to waive it cannot be objected to or overridden by Progressive.
POINT II
DEFENDANT DONNA WALLACE HAS PLACED
UNAUTHORIZED USE OF HER MOTOR VEHICLE “AT ISSUE”
If this Honorable Court somehow rejects plaintiff’s argument that defendant Donna Wallace expressly granted plaintiff access to the Progressive file, plaintiff nonetheless is entitled to disclosure of the relevant portions of the Progressive file because Donna Wallace’s recent claim that she “told” Progessive Insurance that her son did not have her permission to operate her vehicle places the contents of the Progressive file “at issue” and the well settled “at issue” doctrine prohibits the application of the privilege on these facts.
It must be remembered at that the time that the defendants Donna Wallace and Donald Wallace filed their original answer, defendants did not deny that the vehicle was being operated by defendant Donald Wallace with permission and consent of defendant Donna Wallace. In fact, in the first answer filed in this action, Donna Wallace expressly admitted that Donald Wallace had her permission to drive the car (see original answer, annexed hereto as Exhibit “5”). Then, two a half years after the date of the accident, and after defendants had filed their original answer which admitted permissive use, defendant Donna Wallace asserted (for the very first time in the legal papers) that her son was operating the vehicle without her permission and consent (see affidavit of Donna Wallace, sworn to on June 18, 2014, annexed hereto as Exhibit “6”). At her subsequent deposition, she asserted that from the day she reported the accident to Progressive until today, she has always stated that her son was operating her vehicle without her permission. Therefore, as the defendant Donna Wallace herself is now placing permissive use “at issue” in this case, disclosure trumps the conditional privilege.
As the defendant Donna Wallace has sworn under oath, on two separate occasions, that she has repeatedly informed Progressive that her son did not have her permission to drive her car, the Progressive file is now subject to discovery. Defendant is the one placing her prior statements to Progressive “at issue”, not plaintiff. Defendant cannot now use the attorney-client privilege as a sword; only as a shield. As defendant Donna Wallace is the one claiming that she has always told her insurance company that her son did not have her permission to operate her vehicle, then plaintiff is entitled to disclosure as to whether the Progressive file corroborates her current contentions, or whether the Progressive file contradicts her current contentions.
The principle set forth herein by plaintiff is known as the “at issue” doctrine, and it is well settled. Under the well settled “at issue” doctrine, privilege is a shield and must not be used as a sword (see American Re-Insurance Co. v. U.S. Fidelity + Guar Co., 40 AD3d 486, 492 [1st Dept. 2007]). Where a party places the subject matter of a normally privileged communication or document at issue, or, where invasion of the privilege is required to determine the validity of the claim or defense and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege (see Century Indem. Co. v. Brooklyn Union Gas Co., 22 Misc3d 1109(a), 880 NYS2d 222 [Sup. Ct., N.Y. Cty. 2008], citing G.D. Searle + Co. v. Penne + Edmonds L.L.P., 308 AD2d 404 [1st Dept. 2003]; New York TRW Tit. Ins. Inc. v. Wade’s Canadian Inn and Cocktail Lounge, Inc., 225 AD2d 863 [3d Dept 1996]; Bank Brussels Lambert v. Credit Lyonnais (Suisse SA), 210 FRD 506 [SDNY 2002]).
CPLR 3101(d)(2) provides that materials prepared in anticipation of litigation or for trial may be obtained only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. Plaintiff has met that standard herein.
In a case contemplating facts virtually identical to the facts herein, Judge Palmieri, Nassau Supreme, decided Dow v. Vinny’s Diagnostic Service Center, Inc., __ NYS2d __, 2003 WL 1904084 (N.Y.Sup.), 2003 N.Y. Slip Op. 50664(U). In Dow, as in the instant action, the issue is whether or not the driver of the vehicle had the owner’s permission to drive it. Therefore, any communications between owner and insurance company on this issue are extremely relevant to this issue and are impossible to obtain anywhere else. Thus, plaintiff has met her burden requiring disclosure.
Moreover, both Dow and Professor Siegel declare that it is error for the Supreme Court to exempt documents from disclosure on the grounds of privilege and/or preparation for litigation without first reviewing them in camera (see Siegel, New York Practice, §347 [5th Edition]; see also Dow v. Vinny’s Diagnostic Service Center, Inc., id., citing State of New York v. Sand + Stone Associates, 282 ADd 513 [3d. Dept. 2001]).
POINT III
DEFENDANT DONNA WALLACE IS ESTOPPED FROM
MAINTAINING HER CURRENT CONTENTION
Donna Wallace is Estopped from Claiming Progressive Should Not Pay Out on Plaintiff’s Claim Because She Already Permitted Progressive to Pay Out on Her Claim.
Donna Wallace’s Mercedes was damaged during this accident with the plaintiff. Donna Wallace permitted Progressive to pay out on her claim to have her own vehicle repaired at Progressive’s expense. Sometime after that, Donna Wallace announced that her insurance company (Progressive) should not pay out on plaintiff’s claims from this accident because at the time of the accident the driver did not have her permission to operate her vehicle.
It is very sneaky that Donna Wallace waited until after Progressive paid out on her own property damage claim, and only then did she declare that Progressive should not be paying any claims as a result of this accident because the operator of her vehicle did not have her permission. However, this maneuver is more than just sneaky, it is also prohibited under the equitable principles of estoppel.
Stated differently: Because Donna Wallace affirmatively submitted her own property damage claim to Progressive for payment, she is now estopped from arguing that Progressive should not pay out on plaintiff’s claim because her driver did not have her permission to use her car.
POINT IV
DEFENDANT DONNA WALLACE’S CURRENT CONTENTION
THAT HER SON DID NOT HAVE PERMISSION TO USE
HER VEHICLE IS RIDICULOUS
Defendant Donna Wallace’s contention that she has always told Progressive that her son did not have her permission to operate the vehicle is ridiculous and without merit for multiple reasons.
Unauthorized use of motor vehicle does not appear anywhere in the police documents surrounding this accident and the arrest arising therefrom. It appears that Ms. Wallace is now asserting that the police were informed that Donald Wallace was operating the vehicle without her permission or consent, but that they omitted it from any and all records and reports following thereafter. The police did not forget to ask her. There was an accident between two cars. Her son, operating her car, was arrested for driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the second degree, and leaving the scene of the personal injury accident without reporting. He admitted to driving his car while intoxicated, was convicted of violating VTL 1192.3 and was sentenced to one year in jail. Thus, his operation of the vehicle caused the accident.
The White Plains Police did a thorough investigation. They did not just arrest him and charge with DWI. They did a thorough investigation, lasting over a month. They took statements from several critical witnesses. Among others, they took a statement from Donna Wallace. She told police her son Donald was operating her vehicle. She did NOT tell police that he was operating her vehicle without her consent.
Further, upon information and belief, the Progressive claims representative did not forget to ask Ms. Wallace if she gave her son permission and consent to operate the vehicle. Progressive Insurance Company ranks #157 in the Fortune 500 ranking of U.S. companies for 2014. Upon information and belief, Progressive did not climb to #157 best company in the entire United States by defending car accident cases that it did not have to defend; or by sending lawyers to court appearances in car accident cases without proper investigation. And it the instant case, Progressive Insurance took fifteen (15) months to investigate.
The Progressive claims lawyers did not draft and file an answer without asking Ms. Wallace if she gave her son permission and consent to operate the vehicle. Plaintiff submits that no insurance company as successful as Progressive Insurance would get involved in litigation regarding an accident which involves a felony DWI driver who fled the scene without first doing its own investigation into the matter. After taking fifteen (15) months to investigate the matter and file their answer, defendant’s Verified Answer admitted that defendant Donna P. Wallace’s vehicle was being operated by the defendant Donald W. Wallace with her permission and consent.
It is plaintiff’s contention that Progressive did not rise to #157 biggest company in the country without standard protocols that require employees to contact the insured when a new claim is made; and to record the conversations or to take comprehensive notes while investigating a new claim. Further, we believe that Progressive must have asked defendant Donna P. Wallace expressly whether or not her son, defendant Donald W. Wallace, had her permission to operate her motor vehicle. As such, plaintiff is seeking an Order from this Court compelling production of the insurance file.
In addition, New York State Insurance Regulations require that Progressive send Ms. Wallace written notification that they were paying for the repairs to her Mercedes. If it really was her contention, at that time, that her son did not have permission to operate her vehicle, she should have notified Progressive again when she received the paperwork for her car repairs that Progressive should not be paying for her repairs. More importantly, New York State Insurance Regulations require that Progressive send Ms. Wallace written notification that they were paying for the plaintiff’s car repairs (see repair estimate on Progressive letterhead annexed hereto as Exhibit “8”). If it really was her contention, at that time, that her son did not have permission to operate her vehicle, she should have notified Progressive again when she received the paperwork for plaintiff’s car repairs that Progressive should not be paying for those car repairs. But she did not. And the reason that she did not notify Progressive again when she received that car repair paperwork is because her claim that her son did not have her permission to operate her vehicle is a recent fabrication.
Once again, this dispute proves the point that disclosure of the insurance company file is critical to this case. Where, as here, a party (i.e., Donna Wallace) places the subject matter of a normally privileged communication or document at issue (i.e., the Progressive claim file), or, where invasion of the privilege is required to determine the validity of the claim or defense (i.e., Donna Wallace’s recent claim that she always told Progressive that her son did not have her permission to drive her car), and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege.
conclusion
Based on the forgoing, plaintiff respectfully requests that this Court compel Progressive Insurance Company to produce the records requested pursuant to subpoena; and for any such other and further relief as this Court deems just.
When the Offending Driver Suddenly Changed Her Story – We Demanded to Review the File
The standard car accident case often involves one or two plaintiffs against one or two defendants. Frequently, the other car (i.e., the offending vehicle) was owned by one person and driven by a different person. In this scenario, it is common to start one lawsuit against two people: the driver of the other car and the owner of the other car. Usually, the other driver denies any wrongdoing, and the owner of the other car also denies any wrongdoing, but acknowledges that the driver of her car operated her car with her permission,
Recently, we had such a case, which progressed along in the courthouse for about six months. Then, out of the blue, the owner of the other vehicle suddenly asked the Court for permission to change her position in the case. Suddenly, the other driver claimed that during the car crash, her car had been operated without her permission. Out of the blue, the other driver suddenly made a motion to the court for official permission to change her posture in the case. In her supporting affidavit, which she filed in support of her application to the court to change her legal position in the case to claim that the driver of her car did not have her permission, the other driver stated: “I never told my insurance company or my original attorneys that my son had permission to drive the car and have always insisted that he did not have my permission or consent.”
What was our response? We filed a cross-motion demanding that the Court order the other driver’s insurance company to disclose the entire insurance file to us, so we could see for ourselves if and when she made such a statement, as she now claimed.
Here’s the motion:
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER —————————————-x MAURA G. DAVIS, AFFIRMATION IN SUPPORT OF Plaintiff, MOTION TO COMPEL -against-
DONALD W. WALLACE and DONNA P. WALLACE, Index No. 02888/2012
Defendants. —————————————-x
WILLIAM MARTIN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury:
I am an attorney with the law firm of Martin + Colin, P.C. representing the plaintiff, Maura G. Davis, and as such I am thoroughly familiar with the facts and circumstances herein.
I submit this affirmation in support of Plaintiff’s motion to compel non-party Progressive Insurance Company to turn over: such portions of the relevant claim file for Claim No.: 12-1818654, Loss Date: April 25, 2012 as specifies or contains materials, records, information concerning Donald Wallace’s use of the subject vehicle including but not limited to documents, notes, electronic recordings, etc.
The subject car accident occurred on April 25, 2012 at the intersection of Aqueduct Road and Russell Street in the City of White Plains, County of Westchester, State of New York.
At the time of the accident, both defendants lived in the same home. Both Donna P. Wallace and Donald W. Wallace gave the same address according to the Police Accident Report. (see MV-104A Police Accident Report annexed hereto as Exhibit “1”).
The MV-104A Police Accident Report’s accident description states that the defendant, Donna P. Wallace, took her son, Donald W. Wallace, to the police station soon after the accident and that she gave a statement to the police. Her statement to the White Plains Police Department was that her son was driving her car. She did NOT at any time tell the police that her son was driving her car without her permission.
As a result of this accident, Donald Wallace was arrested, charged, convicted and served one year in jail (see Certificate of Conviction annexed hereto as Exhibit “2”).
Unauthorized use of motor vehicle does not appear anywhere in the police documents surrounding this accident and the arrest arising therefrom. The White Plains Police did a thorough investigation. They did not just arrest him and charge with DWI. They did a thorough investigation, lasting over a month. They took statements from several critical witnesses. Among others, they took a statement from Donna Wallace. She told police her son Donald was operating her vehicle. Once again, she did NOT tell police that he was operating her vehicle without her consent (see supporting deposition of Donna Wallace, dated May 1, 2012, annexed hereto as Exhibit “3”).
This action was commenced by the filing of a Summons and Verified Complaint on December 31, 2012 (see Summons and Complaint annexed hereto as Exhibit “4”). That is over three years ago.
Defendant Donna P. Wallace’s insurance company, Progressive Insurance, requested ten (10) adjournments prior to serving their answer. Our office did not receive an answer from the defendants until April 4, 2014. Thus, Progressive Insurance took approximately fifteen (15) months to investigate this claim prior to filing their answer (see Answer filed April 4, 2014 annexed hereto as Exhibit “5”). As part of that answer, Progressive attorney Joan A. Ramirez admitted that Donald Wallace operated the vehicle with the owner Donna Wallace’s consent (see that Complaint par. 5 is not expressly denied).
Subsequently, by motion to this Court, Donna Wallace was permitted to change her answer to deny permissive use of her vehicle. In her supporting affidavit, sworn to on June 18, 2014, more than two years after the accident, she stated: “I never told my insurance company or my original attorneys that my son had permission to drive the car and have always insisted that he did not have my permission or consent” (see Affidavit of Donna Wallace annexed hereto as Exhibit “6”).
At Examination Before Trial, defendant Donna Wallace herself testified that she contacted Progressive on the day of the accident and told them that her son drove her car without her permission and that he did not have a license or insurance. She further testified that she thinks she put the same in writing to Progressive, and that she has no objection to Plaintiff looking at that file. (see EBT Transcript pages 29-31 annexed hereto as Exhibit “7”).
Thus, as testified by Donna Wallace herself, there must be entries, notes and possibly documents in the Progressive claim file to that effect that Donna did not give her son consent to operate her vehicle on the date of the accident. That was Donna Wallace’s testimony.
As the contents of the Progressive claim file has been placed into issue by defendant Donna Wallace herself, Progressive cannot assert a claim of privilege as a sword to cover up Donna Wallace’s prior statements. If, in fact, defendant Donna Wallace has recently changed her story, she cannot now use the privilege as a basis to deny plaintiff access to her prior statements; those prior statements to her insurance company are important evidence in the search for the truth. Plaintiff cannot obtain the Progressive Insurance File by any other means, as only Progressive Insurance has the only copy of the file.
Several months ago, this Honorable Court issued a “so ordered” subpoena on Progressive Insurance to produce its file (annexed hereto as Exhibit “9”). Progressive refuses to do so.
For the many reasons set forth above, and based on the legal arguments set forth in the accompanying Memorandum of Law, it is respectfully requested that this Honorable Court grant this motion in its entirety.
WHEREFORE, it is respectfully requested that the plaintiff’s application be granted in its entirety, and that this Court grant plaintiff’s motion to compel non-party Progressive Insurance Company to turn over immediately to plaintiff such portions of the relevant claim file for Claim No.: 11-2727654, Loss Date: April 25, 2012 as specifies or contains materials, records, information concerning Donald Wallace’s use of the subject vehicle including but not limited to documents, notes, electronic recordings, etc., and that this Court grant such other and further relief as to this Court seems just and proper.
Dated: White Plains, New York September 4, 2015
__________________________________ WILLIAM MARTIN
Well, there you have it. That was the sworn statement in support of our motion for disclosure of the relevant portions of the insurance company file. We hope you find it helpful.
If you or a member of your family has been hurt in an accident due to the negligence of another person, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.
CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.
A Recent Client Placed a Settlement Value on Her Own Case
You do not want the money. We understand. What you really want is your life back. Pain free. The way it used to be. Just like it was before the accident.
If you have a claim for money damages to compensate you for your pain and suffering, there will come a time when a monetary value needs to be placed on your injuries. How much are your injuries worth? It depends on the nature and extent of your injuries, and how much they affect your daily life.
Recently, one of our clients wrote up her own damages memo. Here is her explanation of the monetary value of her injuries:
Since April 4, 2013, I have suffered from daily pain and a lot of discomfort due to low back pain and sural nerve damage in my left heel and left Achilles tendon. This injury has not allowed me to enjoy my life as I feel sad and depressed, and incomplete, to know I must live with a chronic pain condition. I cry a lot because of the stress built up from pushing myself through the pain, throughout the day, and enduring it. The constant pain drains me physically and mentally. Months after the injury to my left heel, my Achilles tendon continues to feel stiff, and numb. These symptoms worsened as time passed resulting in more inflammation of left ankle, tendon, calf, severe numbness and pain as every movement of my leg causes pain to my sural nerve.
By 2015 the constant low back pain had caused a change in my posture and caused a foot drop. I had no choice but to continue physical therapy to temporarily alleviate the pain and the numbness. I had tried physical therapy since 2014 which clearly shows that the damage to the left sural nerve located near my left heel was permanent. I have suffered from chronic pain since my accident; I am unable to work. Work requires me to stand and sit for long periods of time in an office, which can aggravate the pain. The pain has been so severe most of the time, that I must lay down on my right side for hours for it to diminish. And if I experience this while at work, I will be in a lot of pain and discomfort making it extremely difficult to function.
I must continue going to physical therapy for years until my nerves, heel, and lower back have healed enough to resume consistent fulltime employment. I will also have to pay for my future medical bills, out of my own pocket, and each visit averages $75. In addition, I will have future emotional, and physical pain as it takes a long time for nerves to recuperate if they completely heal. I will not be able to resume my habit of jogging, will not be able to wear heels at work or social occasions, have difficulty sleeping face down, on left side, on back, and must limit my overall activity as standing and sitting for long periods of time aggravates my condition. Because of these limitations, my anxiety and depression has been aggravated.
This injury has changed my overall quality of life, as it has diminished my activity level, ability to function, changed me as an individual, and decreased my enjoyment of life. Based on these factors, and taking all the details into consideration, I believe a fair compensation for my permanent left heel injury, past, present, future pain and suffering and future medical treatment is $105,000.
Compensation Breakdown
Pain and suffering – $45,000
Aggravated Anxiety and Depression due to chronic physical pain:
Unable to jog every day, unable to wear heels, unable to stand or sit for long periods of time, unable to lose weight, loss of social life, unable to sleep face down, on back, left side, diminished confidence, appearance and decreased enjoyment of life.
Future lost wages: $30,000
I can only work part time, less than 30 hours, as I must go to physical therapy twice a week, and I am still in a delicate state of health.
Future medical treatment and equipment: $30,000
Settling this case will cause me to lose my current medical coverage and I must pay cash for future physical therapy visits, medicine, equipment, and other visits related to my injury.
Example of equipment: I have to buy ankle braces (these should be replaced yearly as they easily wear out). I have to buy a new TENS unit and constantly replace batteries every month or so. I have to buy a back brace, to better my posture. I have to buy orthopedics for better heel support, and replace as needed for the next ten years. I have to buy pillows to assist me while I am asleep as I cannot sleep on my left side or on my back consistently without support.
For all these reasons, and taking all the details into consideration, I believe a fair compensation for my permanent left heel injury, past, present, future pain and suffering and future medical treatment is $105,000.
Well, there you have it. That was a damages analysis prepared by the client herself. We hope you find it helpful.
If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.
Call us now at (914) 771 7711 and let us apply our expertise to your case.
Martin + Colin, P.C. announced that a $550,000 settlement has been paid to the victim of a hit and run car accident by a drunk driver in White Plains, New York. Our client, who had been trying to park her car on Aqueduct Road, in White Plains, was hit on the driver’s side by a vehicle driven by a drunk driver. The drunk driver then jumped out of his vehicle and attempted to flee. However, nearby Good Samaritans pursued the driver on foot and remained until police arrived.
After the case had been pending for several months, the owner of the offending vehicle suddenly declared that she had never given the drunk driver permission to use her car when the accident happened, and therefore she did not have to pay our client, the victim, money damages for her injuries. We needed to prove that this new claim, i.e., that the owner did not give the drunk driver permission to driver her car, was false. Otherwise, we would recover no money for our injured client. Several court battles ensued.
We were able to obtain the following evidence:
the drunk driver lived in the same home as the owner of the offending vehicle;
the drunk driver had easy access to the keys; and
the owner watched the drunk driver leave the house with her car keys, she watched the drunk driver drive out of the driveway with her car, and she never called police.
After several very contentious court fights, we prevailed: the insurance company abandoned the car owner’s claim that the drunk driver did not have her permission to drive the car. The insurance company then paid a large settlement to our client.
If you or a member of your family has been hurt in an accident due to the negligence of another person or firm, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.
Call us now at (914) 771 7711 and let us apply our expertise to your case.
A police officer violated our client’s constitutional rights. Then the police officer lied on the stand. An outraged jury assessed punitive damages against the officer. But then the trial judge took almost all the punitive damages away.
Question: What saved the officer?
Answer: The Constitution of the United States
That’s right – the very same constitution that the police officer violated – was the very same constitution that protected the officer.
Here’s the Story –
As we discussed in a recent post, we represented a man who had been falsely arrested in Manhattan. After the criminal charges were dismissed, we sued the police officers and the City of New York for false arrest, false imprisonment, malicious prosecution and for civil rights violations.
On the stand, the detective who had falsely arrested our client did not want to lose the case. He wanted to win so badly that he lied to the jury. The jury rejected the detective’s testimony in its entirety and ordered him to pay a six figure punitive damages award to our innocent client.
The trial judge was also outraged by the detective’s falsehoods, and refused to let him “obtain a different legal outcome” by changing his testimony. In other words, the judge refused to let the detective obtain a dismissal of the case and avoid paying money damages to our client for false arrest based on lies.
But, although the trial judge did not let the detective win the case, she did reduce the punitive damages award against the detective by 90%. In doing so, the judge took away the punishment of the detective that the jury had meted out. Why?
The United States Supreme Court has ruled that punitive damage awards must be reasonable. That is, they must correspond to “the degree of reprehensibility of the defendant’s conduct.” The appeals courts have stated that conduct marked by violence is the most reprehensible. Similarly, conduct that could cause serious physical or emotional injury is more reprehensible than conduct that risks only minor injuries or economic damages. Along the same lines, conduct involving deceit or malice is more reprehensible than conduct involving mere negligence.
In our case, the trial judge determined that the detective’s conduct involved the threat of violence and the potential for serious injury, and therefore amounted to reprehensible conduct. However, she determined, because our client’s ultimate injuries were minor and the gun, while threatening, was never used, “the degree of reprehensibility was not all that high.” Based upon this analysis, the trial judge reduced the punishment inflicted by the jury on the detective from $110,000 down to $10,000.
Here is the most interesting, and most informative, analysis from the trial judge:
The final consideration is a comparison of the present award against other rulings on punitive damages in comparable cases. In Payne, the Second Circuit exhaustively surveyed its decisions regarding punitive damages awards against police officers. It concluded that the punitive damages awards ranging from $125,000 to $175,000 have been deemed “substantial,” and in cases where such substantial awards of over $100,000 were upheld, the police conduct at issue was far more egregious than here. Id. at 105.
For example, in O’Neill v. Krzeminski, two police officers attacked a handcuffed plaintiff (one with a blackjack) and then dragged him across the floor of the police Station by his throat. 839 F.2d 9, 10 (2d Cir. 1988). The Second Circuit affirmed punitive damages of $125,000 and $60,000. Id. at 13-14. In Disorbo v. Hoy, a police officer arrested one plaintiff for spurning his advances at the bar, and then, at the police station, he slammed the plaintiff into the door; another police officer pushed another plaintiff against a wall, choked her, threw her to the ground and struck her repeatedly. 343 F.3d 172, 176-77 (2d Cir. 2003). The Second Circuit limited punitive damages to $75,000, which it found “comparable to the upper limits of the punitive damages awarded in similar police brutality cases.” 343 F.3d at 189. In Payne, a police officer called to assist with a combative patient at a hospital exacerbated the situation by verbally provoking the patient into a fight, and then continuing the fight, thereby worsening the patient’s already bad back and PTSD. Payne, 711 F.3d at 88. The Second Circuit concluded that “highest level of punitive damages that can properly be sustained is $100,000.” Id. at 106.
Based on a comparison to previous awards, the punitive damages award here is excessive. The conduct here was far less reprehensible than each of the above cases and other cases surveyed in Payne, and therefore the amount of punitive damages must be reduced. A recent case in the Eastern District of New York, Milfort v. Prevete, is instructive on how much the remittitur should be. Based on an analysis of the factors articulated in Payne, Milfort reduced the punitive damages award of $40,000 to $5,000 because the jury awarded only nominal damages after finding the defendant liable for a single claim of false arrest, and “Plaintiff, though unjustly targeted and falsely arrested, was not subject to excessive force . . ., was not damaged in a way that necessitated compensatory damages, and was held in custody for the relatively short time of one and a half hours.” 3 F. Supp. 3d 14, 26 (E.D.N.Y. 2014). Similar considerations support a remittitur in this case. However, because here the jury awarded compensatory damages (however small) and Defendant Tisdale was found liable for two separate constitutional violations (as opposed to one in Milfort), a larger award than $5,000 is in order.
Having considered this “complex totality of factors,” Payne, 711 F.3d at 106, the Court concludes that the highest level of punitive damages that may be sustained here is $10,000. If plaintiff does not consent to accept a punitive damage award of $10,000, a new trial on this issue will be ordered.
Thus, even though the detective violated our client’s civil rights by falsely arresting him and improperly searching his car, the jury’s punishment was taken away by the trial judge. Even though the very same detective acted outrageously a second time when he took the witness stand and told complete falsehoods, and the outraged jury awarded a punishing punitive award, the trial court protected the detective. She did that because the Fourteenth Amendment to the United States Constitution protects individuals from substantive due process violations. The trial judge determined that the jury’s punitive verdict, unless reduced by 90%, violated the detective’s substantive due process rights. Amazingly, the document that the police officer violated (i.e., the Constitution of the United States) was also the document that saved him!
As demonstrated above, the lawyers at Martin + Colin, P.C. are experienced civil rights attorneys. LET US APPLY OUR EXPERTISE TO YOUR CASE.
In a recent car accident bodily injury case, the owner of the car that hit our client claimed that, at the time of the accident, the driver of her car was using her vehicle without her permission.
MARTIN + COLIN, P.C.
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POINT I
(Production Request)
Plaintiff anticipates that Progressive will oppose this motion by arguing that the file is protected by a version of attorney-client privilege, which Plaintiff disputes. Plaintiff contends that Professor Siegel is correct, that the privilege is not derived from a common law privilege such as the attorney client privilege, but rather is merely protected by CPLR 3101(d)(2) which protects material prepared in anticipation of litigation (see Siegel, New York Practice, §347 [5th Edition]).
DEFENDANT DONNA WALLACE HAS PLACED 
As the defendant Donna Wallace has sworn under oath, on two separate occasions, that she has repeatedly informed Progressive that her son did not have her permission to drive her car, the Progressive file is now subject to discovery. Defendant is the one placing her prior statements to Progressive “at issue”, not plaintiff. Defendant cannot now use the attorney-client privilege as a sword; only as a shield. As defendant Donna Wallace is the one claiming that she has always told her insurance company that her son did not have her permission to operate her vehicle, then plaintiff is entitled to disclosure as to whether the Progressive file corroborates her current contentions, or whether the Progressive file contradicts her current contentions.
In a case contemplating facts virtually identical to the facts herein, Judge Palmieri, Nassau Supreme, decided Dow v. Vinny’s Diagnostic Service Center, Inc., __ NYS2d __, 2003 WL 1904084 (N.Y.Sup.), 2003 N.Y. Slip Op. 50664(U). In Dow, as in the instant action, the issue is whether or not the driver of the vehicle had the owner’s permission to drive it. Therefore, any communications between owner and insurance company on this issue are extremely relevant to this issue and are impossible to obtain anywhere else. Thus, plaintiff has met her burden requiring disclosure.
DEFENDANT DONNA WALLACE IS ESTOPPED FROM 
DEFENDANT DONNA WALLACE’S CURRENT CONTENTION 
The Progressive claims lawyers did not draft and file an answer without asking Ms. Wallace if she gave her son permission and consent to operate the vehicle. Plaintiff submits that no insurance company as successful as Progressive Insurance would get involved in litigation regarding an accident which involves a felony DWI driver who fled the scene without first doing its own investigation into the matter. After taking fifteen (15) months to investigate the matter and file their answer, defendant’s Verified Answer admitted that defendant Donna P. Wallace’s vehicle was being operated by the defendant Donald W. Wallace with her permission and consent.
Once again, this dispute proves the point that disclosure of the insurance company file is critical to this case. Where, as here, a party (i.e., Donna Wallace) places the subject matter of a normally privileged communication or document at issue (i.e., the Progressive claim file), or, where invasion of the privilege is required to determine the validity of the claim or defense (i.e., Donna Wallace’s recent claim that she always told Progressive that her son did not have her permission to drive her car), and the application of the privilege would deprive the adversary of vital information, fairness requires the finding of waiver of the privilege.
MARTIN + COLIN, P.C.
