After nine successful years, Bowitch & Coffey is closing its doors. Starting August 1, 2021, Gary Bowitch and Dan Coffey will be practicing law in their own law firms and will continue to provide clients with the same high quality legal services in their areas of expertise. Their new contact information is:
Gary S. Bowitch
Attorney at Law
13 Willow Street
Castleton, NY 12033
Phone: 518-527-2232
Email: gbowitch@bowitchlaw.com
Bowitch Law New Website
Daniel Coffey
Coffey Law PLLC
17 Elk Street
Albany, NY 12207
Phone: 518-813-9500
Email: Dan@coffeylawny.com
Coffey Law New Website
Carrier May Not Intervene in its Insured’s Tort Litigation Since It Didn’t Make any Payments
Owner of a building at 11 Essex claimed that negligent performance of excavation work on his neighboring (7 Essex) property caused damage to the building at 11 Essex. 11 Essex also submitted a claim to its own carrier, Tower, but Tower denied the claim. Among other things, Tower contended that the “negligent work exclusion” precluded recovery for 11 Essex’s damage allegedly caused by negligent work done on 7 Essex’s property. 11 Essex filed two lawsuits: (a) one against Tower seeking first-party coverage; and (b) a tort action against 7 Essex.
Procurement of Insurance Necessary Before Invoking Waiver of Subrogation
On September 24, 2002, a worker was removing duct work in a former Burger King location in a Bronx strip mall. A torch he was using allegedly came into contact with grease that had accumulated in duct work and started a fire. The fire spread to surrounding businesses, including a Duane Reade store. KK&J owned the buildings that housed both the Burger King and the Duane Reade store. St. Paul insured Duane Reade and, after payment, subrogated against the franchisee of the Burger King and KK&J. Duane Reade had a lease with KK&J which provided that each party waived “any and all” rights of recovery against the other for loss, injury or damage covered by its insurance, notwithstanding that the loss was caused by the other’s negligence.
When Can an Owner or Tenant be Held Liable for the Acts of an Arsonist?
Negligence “requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger.” [1] Whereas one court held that an absentee owner might be liable for an arson fire, a more recent court held that a tenant may not.
