A case pending in Supreme Court, Kings County (Brookyn) was called in by the Judge presiding, Judge Leon Ruchelsman. This was for a pre-trial conference in an attempt to settle the case. The injured party (Shirley Miller) was hit in 2008 by a Duane Reade truck at a Manhattan intersection. The injured party was left with brain damage and with limited ability to speak. She along with her parents sued Duane Reade and the driver of the truck. The case had gone to trial before another Justice, Arthur Schack and the trial ended in a mistrial as the Judge recused himself (disqualified himself) after it was discovered the Judge drew a picture of the defense attorney (representing Duane Reade) with a bulls eye on him. Thus, a very contentious case was transferred to Justice Ruchelsman.
When Judge Ruchelsman called the case in for a Pre-Trial Settlement Conference, the three Millers came to Court with their attorney Evan Torgan. Also attending for Duane Reade were two senior claims officers from ACE Insurance Company -Mosseri and Richard Mastronardo, the two claims officers who were non-practicing attorneys.
While the Judge met with the Millers’ attorney and Duane Reade’s attorney in chambers, behind closed doors for approximately 30 minutes, the two claims adjusters started a conversation with the injured party’s parents. The Millers are Israeli. ACE Insurance Company’s adjuster, Mosseri was fluent in Hebrew. The other claims adjuster Mastronardo told Mosseri “if the opportunity arose, speak to the Millers in Hebrew and say hello and introduce yourself”. A conversation took place in the courtroom between the claims adjuster and the parents of the brain injured plaintiff. No attorneys were present, just the Court Clerk. The Millers talked and asked if Mosseri was an interpreter. The claims adjuster states she worked for the insurance company. The parents talked with Mosseri about her background. The Millers claim the adjuster spoke to them in Hebrew and she was there to resolve the case and told them as far as she knew, the insurance company had extended settlement offers. The Millers told her their attorney, Evan Torgan extended the settlement offers. The claims adjuster hold them they have a good attorney. The claims adjuster denied that she discussed the case, facts or settlement amount but the Millers stated the adjuster did mention an actual settlement offer (still no attorney present). The claims adjuster, per the Millers, told them their attorney (Torgan) rejected the offer because their attorney was interested in getting publicity for the case. Further, and unbelievably, the claims adjuster told the Millers if the sides could not reach a settlement, “they will tie us up in appeals for years and the daughter ‘will never see the money'”.
When the Millers’ attorney returned from chambers, they hold him about the conversation. The attorney brought the conversation to all parties’ attention including the Judge. The Millers’ attorney filed a motion against Duane Reade to strike their answer based upon the insurers “willful and contumacious conduct”. The papers also pointed out that the attorney for Duane Reade had specifically asked the Court if ACE Insurance Company could approach the Millers and the Judge denied the request.
Judge Ruchelsman in issuing a decision on the motion stated “no other conclusion can be reached” but that the company breached Rule 4.2 of the Code of Ethics – “Lawyers shall not communicate or cause another to communicate about the subject of representation with a party lawyer who knows they are represented by another lawyer in the matter. In the decision, the Judge wrote “the contents of the conversation between Mosseri and the Millers was surely a communication about the ‘subject of 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 sanctioned the insurance company $10,000 and ordered the insurance company to pay the Millers $3,000.00 for legal costs and the lawyers fund for client protection $7,000.00. Here is a Judge that was willing to sanction the insurance company for inappropriate conduct.