Insurer Fined for Employee's Talk With P.I. Plaintiff
A Brooklyn judge has sanctioned an insurance company $10,000 after one of its employees initiated contact in the courtroom with a plaintiff in a personal injury lawsuit while the judge was attempting to negotiate a settlement in chambers.
Brooklyn Supreme Court Justice Leon Ruchelsman (See Profile) concluded that ACE America Insurance Company had violated the "no contact rule" of New York's Rules of Professional Conduct due to the conversation of claim director Miriam Mosseri with Yehuda and Malka Miller.
Ruckelsman said in Miller v. Lewis, 11358/09, "no other conclusion can be reached" but that the company breached Rule 4.2, which says a "lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter."
In his Sept. 12 decision, Ruchelsman wrote, "The contents of the conversation between Mosseri and the Millers was surely a communication about the 'subject of the representation' and should have been avoided. In fact, the defendants do not really argue in their opposition papers that the communication was anything else."
The judge ordered the company to pay the Millers' counsel $3,000 for legal costs and the Lawyer's Fund for Client Protection $7,000.
The decision arises from an April court date meant for settlement talks in an already-fractious personal injury suit that began when Shirley Miller was hit in December 2008 by a Duane Reade truck at a Manhattan intersection.
Miller was left brain-damaged and with limited ability to speak. She and her parents are suing Duane Reade and the driver, Henry Lewis, for unspecified damages.
Ruchelsman was given the case after Justice Arthur Schack declared a mistrial and recused himself after he allegedly drew a bull's eye on a picture of a defense attorney (NYLJ, Sept. 5, 2012). Jury selection on the retrial is scheduled for October.
All three Millers came to the April court date with their attorney, Evan Torgan of Torgan Cooper & Aaron. Also attending for Duane Reade were Mosseri and Richard Mastronardo, a senior claims officer, for ACE, one of the company's insurance carriers.
Both Mastronardo and Mosseri are non-practicing attorneys. Duane Reade's attorney at the talks was Eric Berger of Cozen O'Connor.