State Farm Ins. Co. v Frias, 2009 NY Slip Op 07825 (App. Div., 2nd, 2009)

Of the 10 defendants named in this action, only 3, Luccme, Urena, and Pedro Fernandez, answered the complaint, and the Supreme Court granted State Farm’s motion for leave to enter a default judgment against the other defendants. State Farm was directed to submit a proposed judgment on notice. Luccme and Urena were served with the proposed judgment, and did not object to its terms or submit a proposed counter-judgment of their own. On October 25, 2006, the Supreme Court entered a judgment against the defaulting defendants. The judgment declared that State Farm was not required to provide insurance coverage to the defaulting defendants because the incident of January 24, 2002, resulted from an intentional act; that, by reason of no coverage and the failure of State Farm’s insured to cooperate, State Farm was not obligated to defend or indemnify Frias or Abreu in any current or future proceeding, including the underlying action; and that State Farm was not required to pay any damages, awards, or benefits to any of the other defaulting defendants in any current or future proceedings, including the underlying action.

State Farm subsequently moved for summary judgment against the three nondefaulting defendants, including Luccme and Urena, based on those parts of the default judgment which declared that the January 24, 2002, collision resulted from an intentional act, and that State Farm was not obligated to defend or indemnify its insureds or to provide any coverage. State Farm argued that, because the three nondefaulting defendants had not proposed a counter-judgment, had not opposed State Farm’s proposed judgment, had not moved for leave to renew or reargue, had not moved to vacate the judgment, and had not appealed from the judgment, they were estopped from challenging the declarations contained in it. Luccme and Urena opposed State Farm’s motion and, in an order entered April 10, 2008, the Supreme Court granted the motion based on the failure of the nondefaulting defendants to oppose the proposed judgment. Luccme and Urena appeal from the resulting judgment. We reverse.

Inasmuch as State Farm initially moved for leave to enter a default judgment against the defaulting defendants only, the resulting judgment binds only those defendants, and may not be given preclusive effect to deprive Luccme and Urena, who appeared in the action, of their right to litigate the issues pertaining to coverage (see American Motorists Ins. Co. v North Country Motors, 57 AD2d 158, 160). Accordingly, we reverse the order insofar as appealed from.

Defendant obtained a default on some of the parties, then tried to use that default as collateral estoppel against the appearing parties.   Sneaky Sneaky.

Yes, this is what I do with my Saturday nights.  I read cases and blog.  I actually made coffee for this, because I was tired but wanted to blog.

Initially I said that Malcom Gladwell’s new book, What The Dog Saw, wasn’t that good; that it was far worse than his other books.  I was wrong.  It isn’t far worse.  More like slightly less than mostly worse.  It isn’t even really a book; it’s a collection of articles he’s written.  One of my favorite articles was, The Art of Failure: Why Some People Choke and Others Panic.  I hope that isn’t telling.  I probably should have found an article on success stories.  Anyway, his distinction between choking and panicking was interesting.  After reading the article, I noticed things that I would have otherwise missed.

There are about 20 articles in the book.  I liked about 8 of them.  Wait for this to come out in paperback.  Next up on the reading list is Superfreakonomics.  If you haven’t read Freakonomics, you should.  I’m almost done with that book on religious freedom.  And I’m still reading everything I said I was reading before.

While you’re here…

Here are some things I’ve found around the interweb that you might find interesting.  Money and Cognitive Bias, from Crime & Federalism.  Monster Energy Drink’s Monstery Conduct, from New York Personal Injury Law Blog.  7 Must Read Productivity Steps to Finally Getting Things Done, from Dumb Little Man.  Big ideas…, from Seth Godin’s Blog.  The Best Decline Letter of All-Time, from The Blog of Author Tim Ferriss.

Finally, I’m still working on the look and feel of this blog.  WordPress is more difficult to figure out that blogger and I don’t have as much time to work on it as I’d like.  Eventually I may have to break down and hire someone to fix it up.  So yeah, I’m working on it.