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Define That Term #122

Wednesday's term was true bill, which is defined as:

n. the written decision of a Grand Jury (signed by the Grand Jury foreperson) that it has heard sufficient evidence from the prosecution to believe that an accused person probably committed a crime and should be indicted. Thus, the indictment is sent to the court. See also: indictment.

Slickdpdx got it right!

Today's term is:

quasi contract.

Educated guesses only please; no dictionaries.

What Not to Say At Sentencing

I came across this Third Department case from December of 2005 while conducting research for a client of mine:  People v. Thomas, 2005 NYSlipOp 09579.  The defendant was charged with the felony of Aggravated Harassment of an Employee by an Inmate as a result of allegations that he threw a combination of urine and fecal matter at a corrections officer. 

He was found guilty after a jury trial and at sentencing stated:  "If I had to do it again, I would do it all over again. He is lucky that I couldn't get to his ass where I could shove a shank in his f**ing neck."

Talk about shooting yourself in the foot.   I've been wracking my brain, and can't come up with a more damaging statement to make at sentencing.  Ideas, anyone?

Not surprisingly, he was sentenced as a persistent felony offender to 25 years to life consecutive to the sentence that he was already serving.  And, he had the cajones to appeal, in part based upon the insufficiency of the evidence.  Quite a character, Mr. Thomas is, dontcha think?

UPDATED:  Eric from Indignant Indigent was kind enough to point out that I apparently  ripped this post off, title and all, from a post at his blog from January.  It was totally inadvertent, and presumably subconscious, since I do vaguely recall the post from his blog now that he's brought it to my attention.  My only excuse is that it was a 3d Dept. case, and he rarely addresses cases from other appellate departments, so it didn't occur to me that he might have covered it.  My humblest apologies are extended!

Fourth Department Finds Insurance Policy Ambiguous...

In Topor v Erie Ins. Co., 2006 NYSlipOp 03324, the Fourth Department concluded that an insurance policy provision was ambiguous, but nevertheless found in favor of the defendant.  In Topor, the plaintiffs sought to recover for a loss that occurred when the parapet of a building collapsed.  The defendant alleged that the policy excluding damage caused by rotting, and that the parapet collapsed due to rotted mortar joints in the brick wall.  The plaintiff countered that the "rotting" provision only applied only to wood.

The Court set forth the relevant law in regard to interpreting insurance contracts:

(I)t is well established that [a]n exclusion from policy coverage must be specific and clear in order to be enforced; the exclusion must be set forth in clear and unmistakable language'. . . . The burden is on the insurer to demonstrate that the exclusion applies in the particular case and that the policy language relied upon by the insurer in support of the exclusion is subject to no other reasonable interpretation. The construction and effect of a contract of insurance is a question of law to be determined by the court where[, as here,] there is no occasion to resort to extrinsic proof... Any ambiguity in the insurance policy must be resolved against the insurer, its drafter. (Internal citations and quotations omitted.)

The Court applied these principles and determined that the policy was ambiguous in regard to the application of the "rotting" provision, but nevertheless concluded that the plaintiffs failed to establish that the loss fell within the policy terms:

The evidence submitted by plaintiffs in support of their motion established that the collapse was caused by both the deterioration and loosening of the mortar joints in the brick wall based on water infiltration and the freezing and thawing of that water, and by the rotting of the wooden portion of the supporting structure of the parapet. On the record before us, plaintiffs conceded in opposing defendant's cross motion that the policy excludes damage caused by the rotting of wood, and plaintiffs submitted evidence in support of their motion establishing that the loss may have been caused at least in part by the rotting of wood. We thus conclude on the record before us that plaintiffs failed to meet their burden of establishing that the loss was covered under the policy as a matter of law.  (Emphasis added).

Oops.  I suppose that the lesson to be learned is to never concede anything.  Or maybe the lesson is to make sure that your concessions don't undermine your position.  Or perhaps to think before you speak. 

I'm not entirely sure.  But there's a lesson in there somewhere.  And, it's an important one.

Comedic Break

Here are the last of the entertaining statements from insurance forms where a car's driver attempted to summarize the details of the accident using as few words as possible:

  • I saw a slow moving, sad faced old gentleman as he bounced off the roof of my car.
  • The indirect cause of the accident was a little guy in a small car with a big mouth.
  • I was thrown from my car as it left the road. I was later found in a ditch by some stray cows.
  • The telephone pole was approaching. I was attempting to swerve out of its way when it struck the front of my car.

Wednesday's NY Legal News Round Up

It's time for the Wednesday round of of interesting New York legal news headlines from the past week:

Define That Term #121

One of my readers, Perry, was kind enough to point out in an e-mail that yesterday's term, contributory negligence, was essentially set forth in the definition of the prior term, comparative negligence.  Glad someone is paying attention, because apprently, I'm not;)  The full definition of contributory negligence is:

n. a doctrine of common law that if a person was injured in part due to his/her own negligence (his/her negligence "contributed" to the accident), the injured party would not be entitled to collect any damages (money) from another party who supposedly caused the accident. Under this rule, a badly injured person who was only slightly negligent could not win in court against a very negligent defendant. If Joe Tosspot was driving drunk and speeding and Angela Comfort was going 25 m.p.h. but six inches over the center-line, most likely Angela would be precluded from any recovery (receiving any money for injuries or damages) from a car crash. The possible unfair results have led some juries to ignore the rule and, in the past few decades, most states have adopted a comparative negligence test in which the relative percentages of negligence by each person are used to determine damage recovery (how much money would be paid to the injured person). See also: comparative negligence negligence.

Today's term is:

true bill.

As always, no dictionaries, please.

Define That Term #120

Saturday's term was comparative negligence, which is defined as:

comparative negligence n. a rule of law applied in accident cases to determine responsibility and damages based on the negligence of every party directly involved in the accident. For a simple example, Eddie Leadfoot, the driver of one automobile, is speeding and Rudy Airhead, the driver of an oncoming car, has failed to signal and starts to turn left, incorrectly judging Leadfoot's speed. A crash ensues in which Airhead is hurt. Airhead's damage recovery will be reduced by the percentage his failure to judge Leadfoot's speed contributed to or caused the accident. Most cases are not as simple, and the formulas to figure out, attribute and compare negligence often make assessment of damages problematic, difficult, and possibly totally subjective. Not all states use comparative negligence (California is a fairly recent convert), and some states still use contributory negligence which denies recovery to any party whose negligence has added to the cause of the accident in any way. Contributory negligence is often so unfair that juries tend to ignore it. See also: contributory negligence damages negligence.

No one guessed this time.

In keeping with the current theme, today's term is:

contributory negligence.

As always, no dictionaries, please.

Does NY Need "Health Courts"?

These days, many complain of a crisis in both the litigation system and our health care system.  And, some allege that the two are interrelated.  Two blogs that I read regularly and highly recommend,  Kevin, M.D. and Overlawyered, focus on these issues and never fail to raise interesting points.

An interesting solution to these problems was offered in an article that I recently came across from the Buffalo News written by Dr. Richard M. Peer.  In it, he suggests that a special "health court" would alleviate many of the problems encountered by physicians today, including increased liability and skyrocketing medical malpractice premiums. 

First, he described the problems faced by physicians:

Faced with increased liability and skyrocketing malpractice premiums, some doctors are giving up the practice of medicine, especially those in high-risk specialties such as obstetrics, neuro and general surgery and emergency care. At the same time, the current system doesn't provide appropriate or timely compensation to patients who truly experience negligent adverse events. Instead, studies show that it rewards only a small fraction of plaintiffs with legitimate claims and those eventually compensated will have suffered an average of more than four years of litigation.

He then explained why special "health courts" would benefit patients and physicians:

The distinguishing feature of special health courts - a concept advanced by the national legal reform coalition Common Good - would be trained judges, selected for their expertise in health care. Dedicated solely to addressing medical liability cases, these judges would develop standards of care with the help of neutral experts. The experts would be hired by and accountable to the court - not to one particular side of the dispute.

Malpractice victims would be fully reimbursed for their medical costs and lost income (economic damages), plus a fixed sum that could be predetermined according to a schedule that distinguishes between types of injuries. A panel of experts would create this schedule and update it periodically.

Special health courts would also streamline proceedings and lower the costs of litigation. Most cases would be resolved within months, not years.

I would agree that the current system is far from perfect and, at the very least, needs to be tweaked.  But, it sounds as if the jury system would be scrapped entirely under the proposed system--not a concept that I'm all that comfortable with.  And, I'm not entirely confident that a fixed sum predetermined from a "schedule" of injuries would take into account the individual and varied impact that certain injuries can have upon a person.

However, it's an intriguing concept and is apparently gaining some momentum amongst legislators.  And, I think that it's a step in the right direction.  Medical malpractice cases are unique in their complexity and a special "health court" of some sort might be just what the doctor ordered.

The Monday NY Blawg Round Up

It's Monday and time for a round up of interesting New York blawg posts from the past week:

Indignant Indigent

Jamestown Lawyer


Second Circuit Blog

Second Circuit Sentencing Blog