Insurer Wants Out Of $16M Award For Worker's Fatal Fall

Insurer denies $16.5M coverage in fatal fall case, citing 9-year delayed notice, alleges inability to investigate and defend.

Courtroom

ByErin O'Brien

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Published on January 26, 2024

Courtroom

An insurer asked a New York federal court to relieve it of covering a $16.5 million judgment awarded against a community development consultant after an employee's fatal fall in a wrongful death suit, stating they were notified nine years after filing of the 2014 US Southern District of New York lawsuit, "Philadelphia Indemnity Insurance Co. v. South Bronx Overall Economic Development Corporation, d/b/a SoBro et al." case number 1:23-cv-04101, in the U.S. District Court for the Southern District of New York.

In the complaint Philadelphia Indemnity Insurance Co. said it was deprived of the opportunity to investigate and defend the underlying suit brought against its insureds, South Bronx Overall Economic Development Corporation (SoBro), and Bufny II Associates LP, so coverage does not apply.

In Philadelphia Co.'s commercial general liability and commercial excess liability policies, SoBro is required to notify the insurer as soon as possible if a claim arises, according to the suit. The complaint alleges that the underlying suit was filed in 2014, but Philadelphia Co. wasn't notified until nine years later.

The case concerns an employee, of Inventive Builders & General Contractor Inc. Ebrima Jallow, who worked at a building owned by SoBro and Bufny. In the course of his job, Jallow fell down a flight of stairs while trying to hold a window, suffering serious injuries that ultimately led to his death.

In their lawsuit, the decedent’s estate representatives, Almamy Jammeh, as Co-Administrator of the Estate of Ebrima Jallow, Salimata Bokum, Individually and as Co-Administrator of the Estate of Ebrima Jallow, and Lamine Kone, as Co-Administrator of the Estate of Ebrima Jallow, sued and claimed that SoBro and Bufny's negligence and carelessness lead to the worker’s untimely death.

The most recent complaint alleges that SoBro and Bufny failed to appear in the underlying lawsuit, resulting in a default judgment against them. Following an inquiry into the damages, a $16.5 million judgment was entered in 2013. The primary policy names Bufny as an insured, but Philadelphia had not requested coverage for the underlying claims. Due to its inability to investigate or defend the claim properly, the insurer argued, it should be relieved of its duty to defend or indemnify SoBro and Bufny.

Philadelphia Company’s counsel Dan D. Kohane of Hurwitz Fine PC, states in the complaint that because Philadelphia Co. never received notice of the claim, it was unable to disclaim coverage until nine years after the initial filing of the complaint, by which time the insureds' liability had already been determined. Attorney Kohane could not be reached for comment.

Bufny and SoBro representatives did not respond to comment requests and could not be reached. Counsel information for SoBro and Bufny has not been made available.

The Initial Conference on the matter has been set with the Honorable Judge Gregory H. Woods for later this year.

About the author

Erin O'Brien

Erin O'Brien

Erin O'Brien is a senior medico-legal writer and editor, with 25 years of experience authoring healthcare deliverables. Previously, Erin authored an award-winning column in the health and wellness sector, guest hosted a wellness radio show, and received an FMA Charlie Award for Excellence in Writing.

Erin has reviewed and completed case studies for thousands of medical malpractice cases, both plaintiff and defense nationwide, and was presented the US Chamber of Commerce Best Small Business Blue Ribbon designation.  Erin is an experienced Medical Risk Consultant and device start-up project manager. She has consulted for numerous successful healthcare and bio-tech start-ups. After completing a Bachelor of Science degree at the University Of Wisconsin, Erin pursued an educational background in Healthcare Risk Management at the University of South Florida. Erin crafts her work with attention to detail, readability, healthcare marketing regulations, and medical standard of care.