Benjamin Zelermyer and Jeffrey G. Steinberg ()
When insurance coverage disputes turn on answers to questions of fact or the nature of the claim for which an insured may be held liable, a special verdict or answers to special interrogatories should be considered. Public Service Mutual Ins. v. Goldfarb, 53 N.Y.2d 392, 399 (1981); Utica Mutual Ins. v. Cherry, 45 A.D.2d 350, 355 (2d Dep’t 1974), aff’d, 38 N.Y.2d 735 (1975); New York Mutual Underwriters v. Cavallaro, 90 A.D.2d 962, 963 (4th Dep’t 1982); American Home Assurance v. Weissman, 79 A.D.2d 923, 924 (1st Dep’t 1981). This device may obviate the need for a separate trial and will avoid the risk of inconsistent determinations. Besides these potential gains, there are serious risks in not moving to intervene. Absent special answers from the jury, it may be impossible to allocate damages between covered and uncovered (or excluded) claims.
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