Federal Court Judge Halts Excess Coverage Denial based on Mutual Mistake

Managing Partner Marina Spinner and Claire Rush were successful at the trial of a novel insurance coverage action in the SDNY before the Hon. Paul Oetken. Our client was a family-owned business that performed specialized "building wide" plumbing work in coops, condos and residential buildings in the New York metropolitan area. Our client purchased primary and excess policies to protect it against risk. A little over a week after paying for and binding the coverage, but before receiving the policies, a fire occurred in one of the buildings where our client was performing work. The primary insurer initially declined coverage based upon a residential work exclusion that had been improperly included in the policy by a neophyte underwriter and would have excluded coverage for 100% of the work our client performed. The primary carrier, presumably in recognition of this mistake, reversed its decision within 90 days of the fire and agreed to cover the loss. Four months thereafter the excess carrier issued a declination of coverage arguing that the excess policy followed form and that the primary carrier had failed to procure the excess carrier's consent to the voluntary reformation of the primary policy. To rub salt in the wounds the excess carrier thereafter commenced a DJ action causing this family run business to incur hundreds of thousands of dollars in attorney's fees defending this claim while simultaneously facing millions of dollars in property damage claims. After years of litigation and a hotly contested bench, Judge Oetken found that our client and the excess insurer intended that the policy cover work in residential buildings. The Court found that enforcement of the residential-work exclusion would result in no coverage for the entirety of the insured's work thus providing illusory coverage. The Court struck the residential work exclusion and reformed the policy finding that the excess carrier and our client agreed to the policy under a "mutual mistake " over the scope of coverage. See, GuideOne National Insurance Co. v. Systems 2000 Plumbing Service Inc et al 1:22-cv-05018. This great win was the result of the hard work of our associate Alexandra Spinner, Esq. and our appellate and coverage attorneys extraordinaire Matt Corcoran, Edward Benson and Laurel Wedinger. Law 360 reported on the win. Please see the link attached hereto.

Product Liability Win for the Defense at Trial!

In February 2025, after a hard-fought 8-day trial in Monmouth County, New Jersey, Partner Kevin Pinter scored a defense verdict on a design defect / failure to warn product liability case against U-Haul.

Plaintiff, a 56-year-old New Jersey attorney, slipped off the rear edge of a U-Haul truck while attempting to step down from the truck during the loading process. He had entered and exited the cargo area 7-10 times in wet weather prior to his fall without incident, as had others involved in the loading process. On this trip down from the truck, however, plaintiff slipped on the smooth steel edge of the truck and fell to the ground, striking his mouth and face on the pavement below.

Plaintiff claimed the U-Haul was defectively designed because the steel edge did not contain grooves or ridges to provide traction for users exiting the truck. Plaintiff also claimed a feasible safer alternative design was available, noting that raised “coining” of this area or applying adhesive “skateboard tape” would have made the U-Haul reasonably safe at a minimal cost. Plaintiff’s expert claimed such a design was the de facto standard in the industry and offered evidence of similar designs utilized by U-Haul’s competitors to support this theory.

Additionally, plaintiff alleged that inadequate warnings and user instructions were provided with the U-Haul and that the rear edge should have been painted yellow to warn users of the edge’s existence.

We argued that the U-Haul was reasonably safe for its intended use as designed, and that no specific warnings were needed because it is obvious that metal surfaces can become slippery when wet. We further maintained that painting the edge of the U-Haul deck yellow was unnecessary and not done by any of U-Haul’s competitors. Finally, we demonstrated through expert testimony that the wet COF (coefficient of friction) of the truck’s steel edge was above any potentially applicable minimum COF standards, thus the truck was safe from a slip-resistance perspective.

Plaintiff sustained loss of three front teeth and a pre-existing dental bridge covering this area was destroyed by the impact. Plaintiff also sustained a comminuted alveolar fracture which required maxillo-facial surgery on the date of the accident, and eventually implantation of a permanent 10-unit bridge. Additionally, plaintiff sustained a severe lip laceration and claimed facial disfigurement, numbness of the upper lip, and a speech impediment since the fall, all of which are allegedly permanent.

Plaintiff’s settlement demand at the start of trial was $1.5 million. No offers were made as the client was determined to defend its product. The jury reached a unanimous defense verdict after deliberating 65 minutes.

Thanks to Partner Craig Lamster, associates David Jason and Peter Carlino, and paralegal Bobby O’Reilly for their work before and during the trial of this case. Also, a big shout out to Magna for trial graphics and tech support. And of course, thanks to U-Haul for staying the course to achieve this result.

Plaintiff has filed an appeal regarding the Court’s denial of his summary judgment motion prior to trial.

Holiday Win at Trial in Kings County for the Defense in December 2024

Partners Kevin Pinter and Jamie Packer tried this Labor Law 241(6) case against Gorayeb & Associates in front of Justice Devin Cohen in Supreme Court, Kings County, in December 2024.

Plaintiff, a 36-year-old helper for a door maintenance contractor, was injured while performing a repair job on a roll-up mechanical warehouse door for our client, the premises owner. While standing on a ladder, plaintiff received an electric shock when he touched the door’s motor, which had been energized with electric current. Plaintiff did not fall from the ladder and sustained a serious burn injury to the left hand, but then had five surgeries performed (including both lumbar and cervical fusion procedures) over the next four years. The defense would have contended those surgeries were unnecessary and not causally related to the incident. Plaintiff also claimed a TBI and associated cognitive difficulties, which were hotly contested by the defense. Plaintiff further claimed he was rendered unemployable in any capacity as a result of the incident.

At the liability phase of trial, the only remaining causes of action were Labor Law 241(6) claims based on provisions of the Industrial Code concerning electrical hazards. The employer was not in the case due to the absence of a contract containing defense and indemnity / additional insured language.

During liability summation, we argued that even if the Industrial Code was violated, any such violation was not a proximate cause of the plaintiff’s accident. The cause, we maintained, was plaintiff’s own fault in touching the motor he should have known was energized. We suggested to the jury a 90% to 10% split on liability. After deliberating for 45 minutes, the jury returned a verdict on 12/17/24 finding plaintiff 90% comparatively negligent.

Plaintiff’s demand at the beginning of trial was $10 million. Negotiations continued throughout trial and after liability summations, the demand was reduced to $6.5 million, with an offer on the table from the defendants of $2 million prior to verdict. The case ultimately settled on 12/23/24, after the liability verdict but prior to beginning the damages phase, for $500,000. Plaintiff then refused to execute the settlement documents, resulting in our motion to enforce the settlement. That motion was granted by Judge Cohen on 7/9/25.

Thanks to partner and second chair extraordinaire Jamie Packer for all the support and preparation leading up to and at trial, and also to law clerk Bobby O'Reilly and associate Peter Carlino for their help along the way.