Insurance Advocate June 13

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Serving New York, New Jersey, Connec cut, Eastern Pennsylvania and Washington, DC

Highlights…

Vol. 127 No. 11 | June 13, 2016

NYIA Annual Conference Pictured L-R: NYIA President Ellen Melchionni with DFS Acting Superintendent Maria Vullo, and NYIA Board Chair Steven Coffey

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[ FOREWORD ]

STEVE ACUNTO

Doughboys…

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VOLUME 127, NUMBER 11 JUNE 13, 2016

uThe New York Times recently listed the top-paid execs in the US. Impressive list, much of it predictable, some of it surprising.

Several insurance CEOs and leaders were among the top earners. The numbers are quite high and quite impressive. We add here–you won’t see it anywhere else–that the shareholder, policyholder and public responsibilities are also quite high. There is a balance here, no matter what some socialists are saying these days.

Daniel S. Glaser

Marsh & McLennan (MMC)

William F. Carpenter III

LifePoint Health (LPNT)

Steven A. Kandaria

MetLife (MET)

Stephen J. Hemsley

UnitedHealth Group (UNH)

Barry D. Zyskind

AmTrust Financial Services (AFSI)

Thomas J. Wilson

Allstate (ALL)

Trevor Fetter

Tenet Healthcare (THC)

George S. Barrett

Cardinal Health (CAH)

Peter D. Hancock

American International Group (AIG)

William S. Demchak

PNC Financial Services Group (PNC)

Gregory C. Case

Aon (AON)

Alan B. Miller

Universal Health Services

Evan G. Greenberg

Chubb (CB)

John G. Stumpf

Wells Fargo (WFC)

John R. Strangfeld

Prudential Financial (PRU)

David M. Cordani

Cigna (CI)

Mark T. Bertolini

Aetna (AET

“There is a balance here, no matter what some socialists are saying these days.”

On May 16th, TransUnion entered the online auto insurance marketplace with Quote Exchange. TransUnion is now delivering an auto insurance marketplace solution that enables (both large and small) carriers to buy and sell real-time online quotes using enriched TransUnion data for precise segmentation and decisioning.

As more consumers use the internet to obtain auto insurance quotes, TransUnion seeks to align carriers with prospective customers during the shopping process, providing a significantly differentiated and improved solution from traditional aggregator programs.

Early adopters of Quote Exchange have already been successful in using TransUnion data sets to get their quotes in front of consumers at the right time and at the right price.

Quote Exchange enables them to target highly qualified leads online and offer consumers a better shopping experience by reducing shopping time and providing quotes that match them to their best-fit carrier. Disintermediation has a long way to go, but this is a step in that somewhat perilous direction.[IA] 4 June 13, 2016 / INSURANCE ADVOCATE

EDITOR & PUBLISHER Steve Acunto 914-966-3180, x110 sa@cinn.com CONTRIBUTORS Peter H. Bickford Jamie Deapo Kelly Donahue-Piro Michael Loguercio Christopher Paradiso Lawrence N. Rogak N. Stephen Ruchman Jerome Trupin, CPCU Barry Zalma PRODUCTION & DESIGN ADVERTISING COORDINATOR Creative Director Gina Marie Balog 914-966-3180, x113 g@cinn.com COPYEDITOR & PROOFREADER Maria Vano mariavano9@gmail.com SUBSCRIPTIONS P.O. Box 9001, Mt. Vernon, NY 10552 914-966-3180, x111 circulation@cinn.com PUBLISHED BY CINN Media, Inc. P.O. Box 9001, Mt. Vernon, NY 10552 (914) 966-3180 | Fax: (914) 966-3264 www.cinn.com | info@cinn.com President and CEO Steve Acunto

CINN MEDIA, INC.

INSURANCE ADVOCATE® (ISSN 0020-4587) is published bi-monthly, 20 times a year, and once a month in July, August, September and December by CINN ESR, Inc., 131 Alta Avenue, Yonkers, NY 10705. Periodical postage paid at Yonkers, NY and additional mailing offices.

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Contents

June 13, 2016 | Volume 127 Number 11

[COVER STORY]

16

NYIA ANNUAL CONFERENCE

[FEATURES]

22

The Social Notebook: Five Tips to Transform Your Agency in 2016 Chris Paradiso

26

Courtside: Restaurant Not Liable For Consultant’s Punch To Nasty Customer Lawrence N. Rogak

28

On My Radar: Intentional Acts Can’t Be Insured Barry Zalma

30

Looking Back: March, 1991

33

Classifieds

[AD FEATURES]

4

Foreword: Doughboys…

Steve Acunto, Publisher

20

MSO: Fireworks Hazards – Keep the Sparkle in Your Celebration

6

On the Level: Insurance is a People Business Jamie Deapo

23

Greater New York Councils, Boy Scouts of America: 49th Annual Insurance Industry “Good Scout” Award Luncheon

8

In the Associations: TriCounty IIA Install Officers and Directors for 2016-2017

10

Guest Article: Return on Customer Investment: How Some Global Insurance Companies are Embracing Disruption with Customer Inspiration Howard Kogan

14

Guest Opinion: Medical Errors, Hysteria, and Death Gerard J. Gianoli, M.D.

New York and New Jersey’s Leading Insurance Magazine Since 1889.

FOR ADVERTISING OR SUBSCRIPTION INFORMATION Call 914-966-3180 | g@cinn.com

19

In the Associations: Melchionni Honored by NYIA

info@insurance-advocate.com www.insurance-advocate.com

INSURANCE ADVOCATE / June 13, 2016 5

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[ ON THE LEVEL ]

JAMIE DEAPO

Insurance is a People Business uThere’s a big rush today by venture capitalists and Silicon Valley techies to turn the purchase of insurance into an impersonal, technology driven business. There couldn’t be a worse outlook for consumers!

Technology is wonderful and a great way to speed up processing and offer 24/7 availability. It should never replace the professional guidance and expertise of agents, brokers and their staff. Using automation should improve the ability to quickly and effortlessly process work so that agency staff has more time to devote to working oneon-one with clients and prospects. It should not be used as a self-service method of purchasing insurance protection.

Insurance is a complicated item and that is because the policy is a legally binding contract, and knowledge of the contract and how it applies comes into play in every loss.

Consumers are not in a position to understand all the nuances of coverage and how it will affect their protection. It is also misleading for anyone to imply that a consumer can make a well-educated decision about coverage even if they have spent time on the internet reading and learning. That is why at the minimum you have to take 90 hours of classroom training and pass a test to obtain an agent or broker license.

If going forward the business of selecting and purchasing coverage is left strictly up to consumers using technology, you can expect to have many unhappy and uncompensated individuals hiring legal representation and attempting to hold someone responsible for their failure to be properly covered.

Consumers experiencing a minor firstparty property loss that doesn’t get fully paid will be annoyed and it will likely cause them an unreimbursed, but affordable, financial loss. Most consumers will chalk the experience up to the “typical insurance company attempt to pay as little as possible.”

However, if that same consumer isn’t properly covered for a serious loss related to their auto, home or business, you can expect to see lawyers involved and litigation ongoing. Some consumers won’t have the financial ability to fight. Some will fight 6 June 13, 2016 / INSURANCE ADVOCATE

and lose; while others may fight and ultimately win but suffer emotionally and financially during the process. The only ones winning will be the lawyers.

The major issue will be: How legally responsible are these technology driven, self-service insurance companies for a consumer’s failure to purchase the correct coverage, as well as read and understand the policy they receive? I don’t think most consumers would want to rely on or wait for a protracted legal battle in order to be compensated.

The ironic thing is that the consumer whom these companies are most aggressively looking to attract are young, technology-savvy insurance buyers in many cases making their first purchase of insurance protection for a car, house or new business. They are the ones most in need of assistance, knowledge and recommendations about their protection. Services best provided by an independent agent or broker.

So what is the answer to the problem?

I think it requires action on two fronts.

First, as insurance professionals we need to make every effort to educate the public to the risks associated with buying coverage without getting professional advice.

There is a real benefit to having a trusted advisor to help you decide the protection you need and to work with should you have a claim. Consumers should not expect companies they deal directly with to be looking out for their best interests or advising them of benefits available under their coverage unless they specifically ask for them.

Secondly, as an industry we need to be bringing to the attention of state insurance departments the issue of consumers using the websites of these self-service insurance providers to make uninformed decisions on insurance protection that could ultimately be devastating to themselves, their families or their businesses. It is their job to protect the public and they are fully aware of the complicated nature of insurance protection. We need to force them to take a serious look at the potential for real

Jamie Deapo is AVP of Membership & Member Programs for IIABNY and is an approved CE instructor in New York.

Prior to being with IIABNY, he was an independent agent in the Syracuse area for 15 years. Jamie started his career in 1972 working for insurance carriers, and he has held various underwriting and marketing positions with several national as well as regional companies. He is a past president of the Independent Insurance Agents of Central New York and served on the board of directors of IIABNY.

problems if average consumers are allowed to make decisions that could ultimately be devastating.

I am writing this article about the new websites that are cropping up, especially in the commercial lines area, that encourage consumers to select and buy their own coverage. That said, the problem is also inherent for any direct response carrier that isn’t providing consumers with solid explanations of coverage and encouraging them to buy the appropriate protection for their personal situation. I don’t believe many, if any, consumers are capable of making these decisions without advice from an engaged and trusted advisor.

I honestly believe that if consumers are adequately informed about all the potential dangers of acting as their own agent and buying their own coverage, they will want to have a knowledgeable and trusted advisor. Especially if that message not only comes from us but also from the insurance department that exists to protect them. It would seem like common sense that an informed and responsible consumer would want to protect themselves when buying insurance protection. They need to see agents as protecting their interests and not as an adversary or an unnecessary part of the purchasing equation. [IA]

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[ IN THE ASSOCIATIONS ]

TriCounty IIAA Installs Officers and Directors for 2016–2017 uAlbertson, N.Y.—New officers and directors took the helm on June 1 during the Long Island-based TriCounty Independent Insurance Agents Association annual installation dinner. The gathering, held at Chateau Briand in Carle Place, NY, set the TriCounty IIAA leadership for the 2016 through 2017 term. Close to 200 agents and brokers, company representatives, vendors and other members of the insurance community joined the festivities of this special occasion starting with a bountiful cocktail reception.

James G. Bastian of Advantage Partners, Inc., based in Astoria, was installed as president of TriCounty IIAA by his partner and retiring president Peter Phillips. Additional officers and directors were installed by Dick Poppa, CAE, AAI, president and CEO of the Independent Insurance Agents & Brokers of New York, Inc. (IIABNY).

Adam P. Erickson, of Carlstan North Hills Agency, Inc. in Floral Park will

Close to 200 agents and brokers, company representatives, vendors and other members of the insurance community joined the festivities of this special occasion starting with a bountiful cocktail reception.

assume the position of vice president and Ron Brunell, CIC of The Signature B&B Companies in Garden City, NY was installed as treasurer. Alex Giraldo of Club Agency Insurance Brokerage, LLC, Garden City, NY will be the group’s secretary for the new term.

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The TriCounty IIAA also installed the following directors: Eileen Black, Abatelli Group, Inc., Whitestone, NY; Andrew Chong, ARC Underwriting Partners, Inc., Great Neck NY; Christopher Dritsas, Phillips General Insurance, Port Washington; Steven Ferrar, Ferrar Insurance Agency, Inc., Franklin Square, NY; Elisa J. Grober-Lewkowocz, Grober Imbey Agency, Inc., Valley Stream, NY; Neil Levy, CPA, CFP of CBS Coverage Group, Plainview, NY; and Christopher Wukovits of AAA of New York Insurance Services, Inc. in Garden City, NY. TriCounty announced awards totaling $9,500 in scholarships this year—$2,500 went to each of three exceptional students of St. John’s School of Risk Management: Jessica Oliva, James Pappas and Anita Sovasia. Each student surpassed specified criteria, including insurance-related study requirements, a high GPA average and service to the community.

The 2016 St. John’s Education Scholarship Program was sponsored by three major insurance carriers: Narragansett Bay Insurance Company, National General Insurance Company and Safeco Insurance.

Winners of two other $1,000 scholarships were announced and certificates were presented at their school’s awards ceremonies. Blanca Franck of Grover Cleveland High School in Ridgewood, NY was the Joel S. Pollack Memorial Scholarship award winner for her essay on ‘recommended penalties for texting while driving.’ Blanca was chosen from a large number of submissions from high school seniors in the boroughs of Nassau, Queens, Brooklyn and Staten Island.

The Stephen T. Dooley Community Service Award scholarship went to Amanda Cupo, a graduate of Seaford High School for outstanding community service during her high school years. Checks will be mailed to their chosen colleges to be applied towards tuition or allied expenses.

TriCounty paid tribute to Dick Poppa, who is retiring after 20 years of service as president and CEO of the Independent Insurance Agents Association of New York with a donation to his favored charity, the Farm Sanctuary.[IA] The TriCounty Independent Insurance Agents Association is comprised of more than 300 independent insurance member agencies and brokerages doing business in the counties of Nassau, Queens, Kings and Richmond.

8 June 13, 2016 / INSURANCE ADVOCATE

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[ GUEST ARTICLE ]

H O WA R D K O G A N

Return on Customer Investment:

How Some Global Insurance Companies are Embracing Disruption with Customer Inspiration uIn a recent PwC study of global insurance CEOs, nearly two-thirds (59 percent) believe there are more growth opportunities within the insurance industry than three years ago. Yet just as many (61 percent) see more threats to the industry than they did three years ago.

Why the duality?

As one insurance executive put it in a 2015 survey by Ernst & Young, “As an industry, we confuse innovation with product development…if we don’t learn the difference…and don’t learn how to become far more innovative much more quickly, we run the risk of being disintermediated by those that can run faster.”

Our lives are on-demand, online, and changing quickly. According to PwC, besides increased industry regulations, the second largest disruption recognized by global insurance CEOs is “changes in customer behaviors.” Yet the insurance industry has been slow to adapt to this changing reality. Over-reliance on legacy processes and outdated technology, and a lack of genuine customer understanding, have ostensibly stunted insurance’s ability to capitalize on innovation opportunities.

But customers themselves are an enormous source of growth for global insurers.

If they can work with customers to gain a complete understanding of their lives, then insurers can more firmly grasp what’s motivating those changing behaviors.

From here, they can begin to shape their

“As an industry, we confuse innovation with product development…if we don’t learn the difference… and don’t learn how to become far more innovative much more quickly, we run the risk of being disintermediated by those that can run faster.”

business around—and quickly evolve with—customers’ needs.

Some are already doing this by making ongoing customer engagement a strategic imperative. Inviting customers into the business and partnering with them is working to great effect; it’s helping them genuinely “get” the people they insure.

Here’s how.

Understanding Customers, Inside and Out The two most important steps insurers can take to improve the customer experience, according to a separate PwC survey of global consumers, are greater accessibility and tailoring to customers’ needs.

Howard Kogan is the President of C Space, leading the world’s best brands to faster growth via collaborating with their consumers.

In this role, Howard is responsible for all elements of C Space in the Americas, from strategy through sales and execution. During his time in this role, C Space has launched a new brand—messaging, products and services—and has consistently delivered against its internal performance metrics. Earlier Howard served as the Chief Technology and Strategy Officer for C Space, leading a transformation of the company’s technology products as well as guiding rapid global expansion.

But before tailoring experiences to needs, insurance companies first need to understand exactly what those needs are.

Aviva, the UK’s largest private insurer, saw an opportunity to innovate its small business insurance offering for a new breed of empowered small business owners.

Through exploratory work and a series of innovation and co-creation sessions with C Space, Aviva and brokers got to know small business owners holistically—both in the context of their business, and outside of it.

The work revealed a key insight: small isn’t simple. Small businesses are varied CONTINUED ON PAGE 12

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CONTINUED FROM PAGE 10

and complex, and owners need insurance options that fit their needs exactly. For example, a sole proprietor electrician described how his main job is to change lightbulbs at a nuclear power plant. But operating near high-grade uranium makes getting insured hellish, to say the least.

Stories like this brought modern small business owners to life, retired long-held assumptions, and guided the design of new insurance options tailored to meet cus-

tomers’ needs. As a result, Aviva now leads the market in insurance products and services for small businesses.

Rewriting the Rules of Customer Engagement Insurance has traditionally been a oneand-done product to sell. Customers need it, so they buy it; however, most rarely engage with the insurer, other than at the time of initial purchase or claim.

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customers’ lives inside and out, nor will they answer the questions insurers didn’t know to ask. So how do insurance companies get people enthusiastic enough to participate in sharing their thoughts and ideas around an “unsexy” topic like insurance?

Life insurance customers constituted a considerable segment of Zurich Insurance’s USD $70 billion in annual revenue. To grow that part of the business further, Zurich wanted to connect to a niche, hardto-reach audience: affluent global jetsetters, many of whom in certain markets relocate every few years.

To motivate these customers to participate, Zurich invited them in as strategic product development advisors in seven global markets. The engagement was designed to be fulfilling and exclusive, a premier extension of the value customers were already receiving from Zurich Global Life. Members took part in everything from on-the-go ethnographic work to live discussions to large, ongoing strategic projects. And every member was greeted and kept apprised of their work’s progress via regular videos from the Zurich CEO. Today, Zurich Global Life is creating significant business impact as a result.

A Customer-Inspired Culture Shift New and enhanced products and services are no doubt valuable. But innovation in its truest form can only come from a radical shift in the culture of the business.

This starts with customer inspiration; it creates buy-in, provokes change, and instills customer empathy in the minds, and actions, of stakeholders. And can all be tied to measurable ROI—a necessity for the numbers-driven insurance business.

Aviva and Zurich Insurance are proof that being an opportunistic customerinspired growth engine works. Both are transforming from product-driven to customer-centric. Aviva now uses tangible customer narratives to help employees see, feel, and internalize the life of the customer, and has even introduced a focus called “Customer” into its commercial business unit. At Zurich, reminders of the customer are shared easily, and at all levels, as “postcards to the CEO.” Insurance companies are designed around people. The insurance companies that are embracing those people as opportunities are creating new value in a disrupted global marketplace.[IA]

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[ GUEST OPINION ]

G E R A R D J. G IA NOL I , M . D.

Medical Errors, Hysteria, and Death uMedical errors are taken very seriously by the medical profession. It starts early in training at M&M (Morbidity & Mortality) Conference. During M&M, each complication and death is presented before the entire department of students, physicians in training, and professors. The cases are scrutinized and criticized to see what could have been done better. No one likes to see complications or deaths—especially not physicians.

So how can medical errors have become the “third leading cause of death”—as trumpeted in a recent editorial in the BMJ (formerly known as the British Medical Journal)? Where are those hundreds of thousands of casualties every year?

The actual number of patient deaths analyzed, over a period of 10 years was—35.

Shame on the BMJ for allowing this inflammatory, sensationalist article to be published and reported in the general news media without noting to the public that this was NOT a scientific study at all, but only an opinion piece. It presented NO new research, and it was not peer-reviewed.

The paper simply states the average of three previously published studies and one paper that was never vetted through the peer review process—all published more than eight years ago. All four of these papers include a combined analysis of a grand total of only 35 actual patients, from which the authors extrapolate to 251,454 deaths due to medical errors in the U.S. every year. This is a highly dubious estimate.

In research, much depends on definitions. Consider the case of someone falling from a tree. In running to catch him, you trip over a stone. The person hits the ground and dies. Did your tripping over the stone cause that person’s death, or was it the fall? According to the reasoning behind the BMJ article, the death was your fault.

When a patient was sent home from an emergency room in Dallas with Ebola last year, this was an error probably caused by electronic medical record-related disruption. The patient later returned, and died.

But he probably would have died even if 14 June 13, 2016 / INSURANCE ADVOCATE

this “system” error had not occurred.

The one case presented in the BMJ article concerns a patient who died of complications from pericardiocentesis—inserting a needle into the sac around the heart.

This procedure is risky. This was not a medical error, but a known complication that can occur even when everything is done perfectly by the most competent of physicians.

While proposing that iatrogenic deaths are underestimated, the authors never admit that death would be inevitable in many/most of these cases without medical intervention, and the margin of error in critically ill patients is often razor thin.

This article may turn out to be the “silicone breast implant hysteria” of our generation. In the ‘80s and ‘90s, there was much hype about silicone breast implants causing an epidemic of medical ills. The hysteria surrounding this was fueled by the FDA, the media, and plaintiffs’ attorneys.

As a result, many implants were removed without medical justification, undeserved money went into the hands of plaintiffs’ attorneys, and a formerly successful major corporation (Dow Corning) was bankrupted. A moratorium was placed on the use of silicone, keeping it from patients who desperately needed it for breast cancer reconstruction. Finally, after a few decades, medical research established beyond a reasonable doubt that the whole debacle was nonsense. Silicone is safe and is finally being used again.

What will be the result of this article?

It will help sell more books for the authors and possibly help them get more grant funding, but I doubt it will result in fewer medical errors. In fact, it will likely serve only to increase already nightmarish bureaucratic burdens on medical professionals. The next time you see the doctor looking at the computer terminal instead of you, blame inflammatory opinion pieces like this one. Since system errors are the most common medical errors, there will almost certainly be more cases like the Dallas Ebola one.

Gerard Gianoli, M.D., F.A.C.S. specializes in Neuro-otology and Skull Base Surgery. He is in private practice at The Ear and Balance Institute, located in Covington, but is also a Clinical Associate Professor in the Departments of Otolaryngology and Pediatrics at Tulane University School of Medicine.

He pioneered treatments for Superior Semicircular Canal Dehiscence and other vestibular disorders. His private practice has a worldwide reach, with patient referrals coming from all over the United States and from around the world.

Dr. Gianoli opted out of Medicare in 2001 and has had a 100% third-partyfree practice since 2005. He’s lectured and written extensively (as well as had numerous media interviews) on thirdparty-free medical practices and free market medicine. His editorials have appeared in The Wall Street Journal, Forbes, Investor’s Business Daily, The Hill and other popular periodicals.

He has received numerous awards, including the American Academy of Otolaryngology’s Honor Award, and has been named in America’s Top Doctors and America’s Top Physicians every year since their inception in 2001 and 2003, respectively. Dr. Gianoli practices all aspects of neurootology but has a special interest in vestibular (balance) disorders. He has researched, lectured and published extensively on the topic of vestibular disorders.

Doctors and nurses are dedicated to improving outcomes from medical interventions and do not shy away from self-criticism. Self-serving, irresponsible sensationalism by armchair quarterbacks will only make the professionals’ job more difficult.[IA]

6-12-16_INA 6-13-16 6/14/16 11:08 AM Page 15

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NYIA Annual Conference Connect.

Collaborate.

Change.

This year’s New York Insurance Association (NYIA) Annual Conference drew more than 250 insurance industry leaders to the heart of New York State in Verona, New York, June 1–3. The theme of this year’s event, Connect. Collaborate.

Change., reflects the collegial nature of NYIA and its members. The event enabled property and casualty companies doing business across the state to come together and talk about critical New York issues.

16 June 13, 2016 / INSURANCE ADVOCATE

Acting New York Financial Services Superintendent Maria Vullo Delivers First Address

6-12-16_INA 6-13-16 6/14/16 11:08 AM Page 17

NYIA’S BOARD OF DIRECTORS (L-R): FLOYD HOLLOWAY WITH STATE FARM, STEPHEN HARRIS WITH STERLING, ELIZABETH HECK WITH GREATER NEW YORK MUTUAL, MARK PRECHTL WITH CHAUTAUQUA PATRONS, NORMAN ORLOWSKI WITH ERIE AND NIAGARA, MATTHEW BENEDICT WITH MIDSTATE MUTUAL, STEVEN COFFEY WITH BROOME CO-OPERATIVE, MARK GARDNER WITH ALLSTATE, RAYMOND WAUGH WITH NATIONWIDE, CHARLES MAKEY WITH MERCHANTS AND CRAIG MACCORMAC WITH HARTFORD STEAM BOILER

uAfter a welcoming Chair’s Reception on Wednesday night, the conference officially got underway on Thursday morning with featured speaker Dr. Robert Hurley discussing Building Trust in Organizations. Dr. Hurley said that while trust is increasingly scarce, it can be built and managed. He acknowledged that there is a lack of confidence in business as a whole, and there is low trust in financial services as it is an industry that has been stigmatized. Dr. Hurley illustrated how an organization can build trust with people by identifying meaningful similarities, aligning interests, displaying benevolent concern, demonstrating capability, being predictable and showing integrity, and communicating well.

This year’s keynote address was highly anticipated as it was the first speech given by Acting Superintendent Maria Vullo, the new head of the New York State Department of Financial Services (DFS). Vullo provided the audience with a dynamic overview of her goals, philosophies and vision for not only DFS, but more broadly the role of financial services in the state. She stated that she wants her tenure to be marked by creative ideas, bold actions and collaborative innovation. She also articulated that she is a true believer in a fair process and thoughtful deliberation and that under her leadership she wants DFS to speak with a clear and consistent voice. She stressed the importance of recognizing that a regulator can work for the good of businesses and consumers alike. “I want the New York insurance market to be robust and known for its innovation and nimbleness,” Vullo said. “So DFS, under my watch, will promote and applaud industry innovation and successes. And DFS, under my watch, will also work to increase access to financial services in all communities of this great state. I am both pro-business and pro-consumer—I do not believe that these terms are mutually exclusive.”

“NYIA looks forward to working with the new leadership at DFS,” NYIA President Ellen Melchionni said. “The members of

SMALL COMPANY ROUNDTABLE MODERATOR MATTHEW BENEDICT OF MIDSTATE MUTUAL WITH NYIA’S MARC CRAW

SOCIAL MEDIA PRESENTER ROY MURA OF MURA & STORM, PLLC WITH NORM ORLOWSKI OF ERIE AND NIAGARA INSURANCE ASSOCIATION

CONTINUED ON PAGE 18

INSURANCE ADVOCATE / June 13, 2016 17

6-12-16_INA 6-13-16 6/14/16 11:08 AM Page 18

CONTINUED FROM PAGE 17

the association are encouraged by Maria Vullo’s statements about a balanced regulatory approach. Advancing the growth of the industry and supporting innovation are crucial elements of a vibrant insurance marketplace. We believe innovation should be a key focus area for DFS as it relates to insurance products and services, as well as regulatory modernization. The state’s insurance market can only be as innovative as the regulatory framework backing the marketplace.”

A panel of industry leaders and an interactive presentation on drones brought Thursday’s education program full circle. The panel presentation, Top of Mind: New York State of Insurance addressed topics ranging from the importance of consumer choice to predictions of when the interest rate environment might change to how to attract talent to our industry. The panel was moderated

by Steven Coffey, president and CEO, Broome Co-operative Insurance Company. Panelists included Edward Amsler, president and CEO of Donald J. Fager & Associates, a wholly-owned subsidiary of Medical Liability Mutual Insurance Company; Elizabeth Heck, president and CEO, Greater New York Mutual Insurance Company; Norman Orlowski, president and CEO, Erie and Niagara Insurance Association; and Robert Wong, president, Associated Mutual Insurance Cooperative. Jay Jablonski, vice president of HSB Professional Loss Control presented Taking Flight: The Highs and Lows of Drone Technology. Jablonski reviewed the variety of applications as well as exposures associated with unmanned aircraft. He also addressed the wide array of issues that continue to evolve as both capabilities and regulations constantly change. The presentation ended with Jablonski giving the audience a sense of just one of the capabilities of drones when he flew one equipped with a camera and attendees could see the live footage of the room projected on a screen.

A highlight of the banquet Thursday evening was the recognition of the 2016 Chair’s Distinguished Service Award recipient, William P. Melchionni III, deputy head, U.S. Federal and State Government Affairs of American International Group, Inc. Melchionni has been a member of NYIA for nearly 20 years and has served on a number of committees. He has also served on the NYIA Board of Directors and currently serves as chair of the Legislative and Regulatory Committee.

Melchionni was also the moderator of the opening session on Friday morning. Key insurance legislative leaders joined attendees for a Town Hall Meeting. Panelists included Senator Neil Breslin, Senate Insurance Committee Ranking Member, Assemblyman Kevin Cahill, Assembly Insurance Committee Chair, and Assemblyman William Barclay, Assembly Insurance Committee Ranking Member. The panel answered questions on a wide range of topics including transportation network companies, redomestication of insurance companies, and the role of the New York State Department of Financial Services.

The ever-popular topic of social media was discussed next

by Roy Mura, managing member of Mura & Storm, PLLC in Keeping Up With the Chameleon: Adapting to the Changing Colors of Social Media. Mura is a well known insurance attorney who also has a penchant for social media. In fact, he announced that his NYIA talk was the 100th episode of his social media presentation. He provided a myriad of tips, tricks and tidbits related to how insurance companies utilize virtual networks as both insurers 18 June 13, 2016 / INSURANCE ADVOCATE

BUILDING TRUST IN ORGANIZATIONS SPEAKER DR. ROBERT HURLEY OF THE CONSORTIUM FOR TRUSTWORTHY INDIVIDUALS WITH CRAIG MACCORMAC OF HARTFORD STEAM BOILER

NYIA BOARD CHAIR STEVEN COFFEY WITH AWARD RECIPIENT WILLIAM MELCHIONNI

Melchionni has been a member of NYIA for nearly 20 years and has served on a number of committees. and as businesses. The finale of the conference was what many regional companies say they enjoy most, the Small Company Roundtable. Matthew Benedict, president of Midstate Mutual Insurance Company was the moderator of this year’s roundtable discussion.

Next year’s NYIA Annual Conference is sure to be just as informative and eventful. Mark your calendar now so you don’t miss out on what is considered the premier property and casualty event of the year in New York: May 31–June 2 at the Hyatt in Buffalo, New York. This is a new venue for the association and we are excited to bring NYIA to this hip and vibrant city. [IA]

6-12-16_INA 6-13-16 6/14/16 11:08 AM Page 19

MELCHIONNI HONORED

BY NYIA VERONA, N.Y.— The New York Insurance Association, Inc. (NYIA) honored William P. Melchionni III with the Chair’s DisTOP OF MIND: NEW YORK STATE OF INSURANCE CEO PANEL: ROBERT WONG WITH ASSOCIATED MUTUAL INSURANCE COOPERATIVE, ELIZABETH HECK WITH GREATER NEW YORK MUTUAL INSURANCE COMPANY, EDWARD AMSLER WITH MEDICAL LIABILITY MUTUAL INSURANCE COMPANY, NORMAN ORLOWSKI WITH ERIE AND NIAGARA, STEVEN COFFEY WITH BROOME CO-OPERATIVE INSURANCE

tinguished Service Award at the association’s annual conference on June 2 in Verona, N.Y. Melchionni is Deputy Head, U.S. Federal and State Government Affairs for American International Group, Inc. (AIG).

“Bill volunteers countless hours to NYIA as well as many other overarching insurance industry efforts,” Steven Coffey, NYIA chair and president and chief executive officer of Broome Co-operative Insurance Company said. “He is always looking for ways to improve the image of our industry and strives to make the insurance community a better place.”

Melchionni is responsible for managing

WILLIAM MELCHIONNI OF AMERICAN INTERNATIONAL GROUP, INC. MODERATING THE TOWN HALL MEETING WITH LEGISLATORS SENATOR NEIL BRESLIN, ASSEMBLYMAN KEVIN CAHILL AND ASSEMBLYMAN WILLIAM BARCLAY

the government relations activities in the 26state Eastern United States region on behalf of AIG and its operating companies including AIG Property Casualty, AIG Life and Retirement and United Guaranty.

Melchionni serves as chair of NYIA’s Legislative and Regulatory Committee and has previously served on the NYIA Board of Directors. He has served on a variety of committees during his nearly 20 years of involvement with the association. He has also served as an Albany County Legislator. Melchionni is a graduate of Williams College with a degree in history.

American International Group, Inc. has faced and managed complex risks for nearly

TOWN HALL MEETING MODERATOR AND PANELISTS: ASSEMBLYMAN WILLIAM BARCLAY, WILLIAM MELCHIONNI OF AMERICAN INTERNATIONAL GROUP, ASSEMBLYMAN KEVIN CAHILL AND SENATOR NEIL BRESLIN

100 years, providing risk expertise and financial strength that empowers 90 million clients in more than 100 countries.

INSURANCE ADVOCATE / June 13, 2016 19

6-12-16_INA 6-13-16 6/14/16 11:08 AM Page 20

ADVERTORIAL

Fireworks Hazards – Keep the Sparkle in Your Celebration FOR MANY OF US, summertime fun includes sparklers and fireworks. Is there anyone who doesn’t enjoy running around the yard with a lit sparkler on the Fourth of July? By their nature, fireworks, including sparklers, are very dangerous, and should be used with extreme caution.

Alerting clients to the potential hazards of consumer fireworks is a sign of the true insurance professional.

Americans celebrate our independence with fireworks and parades because John Adams, our first Vice President, second President and one of the architects of American independence, wanted us to.

He actually thought July 2nd, the day the Continental Congress voted for independence, would be the celebration date.

However, we celebrate (www.nfpa.org). Sparklers July 4th, the day the final are pretty and fun, but, like Fireworks use draft of the Declaration all fireworks, they are very of Independence was dangerous. Sparklers burn is regulated signed (www.slate.com). at temperatures up to 2,000 on the The first celebration was degrees, which can result in held the following year, serious burns. Children federal, state in 1777, in the cities of should always be superPhiladelphia and Boston. vised when using sparklers, and Robert Byrd even held a or any fireworks. local level.

Fourth of July fireworks Fireworks use is regucelebration in Antarctica lated on the federal, state (www.smithsonianmagazine.com). and local level. The Bureau of Alcohol, There is no safe way to use fireworks, Tobacco and Firearms (ATF) recognizes and the consequences of accidents can two types of fireworks: display and conprove costly. In 2011, fireworks caused sumer. Display are the large ones used in 17,800 fires, which resulted in $32 mil- shows, while consumer fireworks are the lion in direct property damage and more small ones sold at stands around the than three dozen fire-related injuries. Fourth of July. ATF regulates sale, manu2013 saw more than 11,000 people facture, and use of display fireworks. Use treated at hospitals for injuries caused of all consumer fireworks is banned in by fireworks. Injuries include permanent Delaware, Massachusetts and New Jersey. scarring, loss of limbs and impaired vi- Four states (Illinois, Iowa, Ohio, and Version. In a highly publicized 2015 inci- mont) allow use of sparklers and novelty dent, NY Giants’ football defensive star items only (www.cpsc.gov). Fireworks are Jason Pierre-Paul lost his index finger classified as hazardous substances under and parts of two other fingers in a fire- the Federal Hazardous Substances Act works accident, jeopardizing his nearly (FHSA) (www.cpsc.org). $15 million contract.

If you must use fireworks, the first step According to the National Fire is to be sure that their use is legal in your Protection Association (NFPA), more municipality. Light them in an area free fires are reported on the Fourth of July of debris, leaves, people, and structures. than any other day of the year, and 40% Do not stand or lean over fireworks while of these fires are directly related to fire- lighting them. Once lit, move away imworks use. The risk of injury from fire- mediately. Used fireworks should be works is highest for children age 0-4, fol- soaked in water and discarded. Keep a lowed by children aged 10-14 bucket of water nearby to extinguish the 20 June 13, 2016 / INSURANCE ADVOCATE

fireworks after use, or to douse any errant sparks or flames. Never aim or throw a lit firework at a person or animal. As with any activity, alcohol or drug use heightens the danger. Never try to relight a “dud.”

Proper storage of fireworks is also important. Follow package instructions to avoid accidents. In any case, store fireworks away from areas where others are being set off.

A special explosives license or specific permit from the ATF is required to import, manufacture, use, or otherwise receive display fireworks. Fireworks displays should be supervised by a trained pyrotechnician (www.atf.gov). Spectators are required to be kept at certain minimum distances from the fireworks. The host or promoter of the event can be held liable for injuries.

The safest use of fireworks is to attend a professionally-run event. Personal use of fireworks can be dangerous, and, in many cases, illegal. Helping clients understand the legal requirements and hazards of fireworks use is another valueadded service of the professional insurance agent.

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6-12-16_INA 6-13-16 6/14/16 11:09 AM Page 22

[ THE SOCIAL NOTEBOOK ]

C H R I S PA R A D I S O

Five Tips to Transform Your Agency in 2016 uAre you looking to ramp up your agency’s marketing? I sure am, and all the time. Improvement (which can sometimes be a form of change) is the driving force of agency growth, whether it’s through tracking metrics and figuring out what does and doesn’t work, or if it’s just coming up with a new game plan on how you’d like to approach the work itself. Our agency at Paradiso Insurance is constantly looking to grow, and I wanted to briefly discuss some of our strategy that we focused on going into SEO that could seriously help any agency’s digital presence with all of their marketing strategy online. Here’s your agency’s countdown to the top five ways you can transform your marketing moving forward!

5. Your Brand is Your Everything When it comes to marketing, your brand should be present in all aspects from start to finish. Now, we are not just talking about establishing a brand and calling it a day. You need to have a brand that is well thought out, and easy to connect with, meaning it’s personable. Without a strong brand in place, your marketing efforts may have a strong initial impact or good first impression with your audience, but you will lack the ability to actually have a message resonate with that same audience.

Branding is what takes your agency’s marketing efforts from good to great. It turns out that (according to the Direct Marketing Association) if your audience believes in your agency’s brand, they will be more apt to connect with you, it will improve their overall customer experience, and it will increase your engagement or interaction rates online. When your customers are consistently interacting with your agency, they’ll be more apt to talk about your agency when a friend or family is in need of insurance products and/or services, and we all know that growth of a business starts with word-of-mouth referrals.

4. What’s SEO anyway?

Haven’t heard of SEO before? We’re talking about search engine optimization here.

An easy way to describe search optimization 22 June 13, 2016 / INSURANCE ADVOCATE

If you haven’t already taken a second look at your agency’s SEO, I would suggest hiring a professional SEO specialist and getting optimized as soon as possible! is to lay out a simple scenario that will help you understand both SEO and its importance: suppose a prospect has just purchased a new vehicle and they are looking for auto insurance. As we all know, word-of-mouth referrals still remain the number one source of new business in any industry, so this prospect is likely to ask their friends and family for some feasible options as a starting point in their process. Let’s say this customer didn’t find the information they were looking for through word-of-mouth referrals though…now what? This is the time when they turn to Google, because according to a recent report from Fleishman-Hillard, 89% of consumers use search engines to help make purchasing decisions, and that’s a serious amount of people.

So essentially the prospect sits down to Google their location and some keywords involving insurance, and they are likely going to click links that are toward the top of the search. Your agency should be competing to reach the top of Google’s search results, and always be striving to be the #1 result in the search rankings for insurance products and services in your area. To get to the top, you have to optimize your agency’s online presence, or do some search engine optimization. When it came to writing our agency’s website, we had a professional SEO writer take care of a lot of the verbiage, and when our marketing team pushes out new content, we have an SEO specialist proofread and make minor changes to our content to help our SEO online. If you haven’t already taken a second look at your agency’s SEO, I would suggest hiring a professional SEO specialist and getting optimized as soon as possible!

Christopher Paradiso, CPIA , is President of Paradiso Financial & Insurance Service. He has been acknowledged by several insurance publications as a leader in the industry for his use of digital marketing and social media to help brand his agency and promote other small businesses within his community. Chris has also been recognized for his charity work with The Connecticut Children’s Medical Center.

In 2011, Chris introduced “Paradiso Presents LLC,” a social media program aimed at teaching small agencies to not only survive, but compete in today’s complex online marketing world.

Chris resides in Stafford Springs, CT with his wife and two children, Mia and Gianni.

3. Engaging Content Content is huge for you and your agency, because what is marketing without content marketing? Content can take on many forms, but it’s important that you carefully craft your agency’s content in a way that speaks to your brand, gets your message across to your audience, and most importantly, your content needs to be engaging.

There are many forms of content, such as written, graphics and visuals, video content marketing, and more. Visual content is king though, as I like to say. Visual content is content such as branded agency visuals, organic photos of you and your staff, and videos that your marketing team puts together. It is very important to brand your visual content because your brand will establish you as a professional within your niche markets, and that’s going to be huge for your customer retention and word-of-mouth referrals. It’s important that you create and post content that your audience will be interested in though, or else you won’t see the traction or engagement you’re looking for in the world of digital marketing. Our agency takes the CONTINUED ON PAGE 24

6-12-16_INA 6-13-16 6/14/16 11:09 AM Page 23

49th Annual Insurance Industry “Good Scout” Award Luncheon

Benefitting the thousands of boys and girls of the Greater New York Councils, Boy Scouts of America “Good Scout” Honoree

“Good Scout” Honoree

Distinguished Eagle Scout Award Recipient

John L. Lumelleau

John A. Kuhn

Jerry de St. Paer

President & Chief Executive Officer Lockton Companies

Chief Executive Officer, Global Insurance Endurance Specialty Holdings, Ltd.

Senior Advisory Partner Grail Partners

Monday, June 27, 2016 11:45am - Reception 12:30pm - Luncheon Gotham Hall - 1356 Broadway, New York, NY Chairman

Chairman

Chairman

Eric J. Andersen Chief Executive Officer Aon Benfield

John Keogh Executive Vice Chairman & Chief Operating Officer Chubb Group/ Chubb Limited

Gregory S. Hendrick Executive Vice President & Chief Executive, Reinsurance Operations XL Group

Chairman

Chairman

Chairman

Todd Jones Chief Executive Officer Willis North America

Timothy Gardner CEO, US Operations Guy Carpenter & Company

Robert S. Schimek Executive Vice President & Chief Executive Officer, Commercial AIG

For more information, contact: Jeff Fanara, Luncheon Coordinator (P) 212-651-2940 (E) Jeff.Fanara@Scouting.org Register online at www.bsa-gnyc.org/insurance

6-12-16_INA 6-13-16 6/14/16 11:09 AM Page 24

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CONTINUED FROM PAGE 22

time to post about our products and services, but we also post helpful tips or advice for our clients through blogs, and we post organic photos of our staff and agency to make our social media more personable and easier to connect with.

2. Speaking of Social Media…

Your agency most certainly needs to be making use of social media. In a world where everything is going digital, you have to reach out to and communicate with your customers and clients in a way that they can appreciate the most. Social media is a great way to connect with your customers and clients as well as move their overall customer experience with your agency in the right, positive direction. In today’s world, I say that social media is a necessity for any company or small business, but that’s because most companies are already taking advantage of this powerful platform for marketing.

Social media isn’t simply a way to generate new leads though. While it’s great to push out messages, content, and posts about your insurance products and/or services, it’s more important to make sure you’re connectable and personable by having balance in your posts. It’s more so about making yourself easy to connect with, building trust with your audience, building your agency’s brand, and nurturing your existing client base. By communicating with our customers through social media, we will be able to connect with them on a personal level, not just as their insurance agent.

1. The World is Going Mobile Mobile is taking over, and if you don’t believe me, trying going the rest of the afternoon without your smartphone to see for yourself. Our customers and clients are no different; they are reaching out to us via social media, or visiting our website, or even checking their emails right from their mobile device. Now’s the time where we capitalize on change instead of ignoring it. If you’re in the world of social media already, that’s great! Social media has mobile apps and all sorts of mobile accessibility, so your clients and customers can easily connect with you there right from their smartphones.

CONTINUED ON PAGE 34

24 June 13, 2016 / INSURANCE ADVOCATE

6-12-16_INA 6-13-16 6/14/16 11:09 AM Page 25

Independent Insurance Agents & Brokers Brokers of Suffolk County Invite Y You oou T Too Their Annual Scholarship Golf Outing Benefiting The IIABSC Scholarship Endowment Fund at Stony Br Brook roook University College of Business

Honoring Peterr N. N Resnick NEW LOCATION

Monday August 22, 2016

Huntington Country Club, Huntington, NY

NEW LOCATION

Sponsorship Opportunities

All include prominent signage and promotion in Suffolk “Big Eye” Major Sponsorships Course and Dinner Sponsorships Tournament Sponsor $ 10,000 Sold!

Hole in One $ 750 Dinner Sponsor $ 5,000 Awards Sponsor $ 500 Craft Beer Station $ 450 Golf Sponsor $ 2,500 Beverage Cart $ 400 Cocktail Sponsor $ 2,000 Driving Range $ 350 Lunch Sponsor $ 1,000 Cigar Sponsor $ 300 Tee Signs $ 250

G Golf olf & D Dinner inner $ 350 9:30 am – 11:00 am 11:00 am 5:00 pm Special Golfer Packages: The Event Package $2,500 Foursome Sponsor $1,500 The Special Package $1,000

D Dinner inner & C Cocktails ocktails O Only nly $ 1125 25

Golfer Registration and Brunch Shotgun Tee Off: “Scramble” Format Longest Drive & Closest to the Pin Challenges, Hole-In-One Prize Cocktail Hour & Dinner Buffet Includes four golfers, Dinner Co-Sponsor recognition & Tee sign Includes four golfers & Tee sign Includes two golfers, Golf Co-Sponsor recognition & Tee sign

AS Special pe p ciall T Thanks hanks ttoo O Our ur Tournament Tou o rnament Sponsor Spponsor Companies Com mppanies

Please reserve my early registration of the sponsorship circled above under the following: Company / Ind. Name_____________________________________ Contact /Title__________________________________ Address______________________________________________________________________________________________ Phone ________________________________ Email _________________________________________________________ Mail this completed form with check made payable to IIABSC Golf to: Jeanne Abatelli * 150 Dartmouth Drive * Hicksville, NY 11801 Or register with a credit card online at www.suffolkagents.com For additional information call Stephanie at 631-981-4364 or email sbarry@theresourcegroupinc.net

6-12-16_INA 6-13-16 6/14/16 11:09 AM Page 26

[ COURTSIDE ]

L AW R E N C E R O G A K

Restaurant Not Liable For Consultant’s Punch To Nasty Customer Villongco v Tompkins Sq. Bagels A bagel store hired a retired fireman as a consultant. Plaintiff, a customer, said a very nasty word to a waitress and pushed her. The waitress immediately told the consultant what the customer said and did. The consultant followed the customer across the street, where there was a verbal confrontation, and the consultant punched the customer in the jaw. The Court held that the bagel store was not liable for the assault because the consultant was not acting in the scope of his employment or in furtherance of the employer's business.—LNR uIn this personal injury action, defendant Tompkins Square Bagels and Sage the Cat, LLC (collectively, "Tompkins Bagels" or the "restaurant") moves for summary judgment dismissing the complaint of the plaintiff Edgar Villongco.

Factual Background Plaintiff alleges that on July 25, 2013, defendant Nathan Bershadsky ("defendant") struck and injured him as a result of an incident at Tompkins Bagels, and that Tompkins Bagels is liable to plaintiff for negligence and battery pursuant to the theory of respondeat superior and for negligent supervision / hiring.

Specifically, plaintiff testified that he and his colleagues went to Tompkins Bagels and were seated at a table, when a female waitress (Luz Segarra) told them that laptops were not allowed at the table. They began clearing their items, and the employee began clearing the table. He arose from the table, and as he turned to walk away, he mumbled "what a c—nt". The employee then "yelled . . . did you hear what he called me and it was directed towards" the kitchen, to a "gentleman in the back in the food preparation area", to which the gentleman responded, "what did he call you".

Plaintiff next observed the defendant "put down whatever he was holding" and "walk from behind the counter towards" plaintiff and exit the restaurant.

26 June 13, 2016 / INSURANCE ADVOCATE

Defendant Bershadsky did not disclose any orders of protection against him and was unaware of whether Pugliese performed any background check of him.

Plaintiff exited the restaurant, and defendant Bershadsky yelled from the doorway of the restaurant "why don't you say that to me you little fa- - ot," and then quickly crossed the street. Defendant then stated that plaintiff called the female employee a "c—nt," and when plaintiff denied it and turned to leave, defendant Bershadsky struck plaintiff once in his jaw.

The incident occurred "50, 60 feet" from Tompkins Bagels' entrance. Defendant then told plaintiff, "you know where to find me" and returned to the doorway of the restaurant where he and other employees including the waitress were standing.

Defendant Bershadsky testified that he worked as a "consultant" for Tompkins Bagels. He first met one of the restaurant's owners, Christopher Pugliese, at the restaurant as a customer, and he told Pugliese he "had a lot of experience in the bagel business" and offered to provide "constructive criticism"; plaintiff had "approximately eight, nine years in two different bagel stores that were considered very, very busy and very established bagel stores". Thereafter, Pugliese called defendant Bershadsky , stating that he "called a couple of places where you had said you worked and everyone had very nice things to say about you. They knew I was impressed with the way you — your knowledge of the business that you knew the cost and labor costs, and food costs and stuff like that."

Lawrence N. ("Larry") Rogak has been practicing insurance law since 1981.

He has defended over 23,000 lawsuits and arbitrations and has represented over 75 different insurance companies and self-insured corporations.

Lawrence N. Rogak LLC is listed in Best's Recommended Insurance Attorneys, a distinction that requires written recommendations from at least 12 insurance carriers.

A 1981 graduate of Brooklyn Law School, Mr. Rogak has published more books and articles on insurance law than any other New York attorney in the field.

Bershadsky also told Pugliese he was a "retired firefighter". Pugliese contacted defendant to discuss "possibly working something out where I could help his employees become better". Due to limits on Bershadsky's ability to work, Pugliese hired defendant Bershadsky in a "consulting aspect" for "two or three hours a day during lunch a couple of times a week."

Defendant Bershadsky was "just there to help train people to be better at their job"; to "show them my way of doing platters . . . how to make them more decorative".

Segurra "had no jurisdiction over me, that's why I told her I was leaving"; Segurra was in charge of employees and defendant Bershadsky "wasn't an employee.

Defendant Bershadsky did not disclose any orders of protection against him and was unaware of whether Pugliese performed any background check of him.

On the date of the incident, defendant Bershadsky was teaching a new employee in the kitchen. Defendant Bershadsky told Sergurra that he was "leaving now" and began exiting the kitchen intending to go home; Bershadsky threw his gloves in the garbage and took off his apron, and intended to go downstairs to change his shirt. He told Segurra "it's dead, there's nothing else to show Christian, I'm out of here". He saw defendant approach Segurra, whisper something to her, and then Segarra "fell

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[ COURTSIDE ] back into me. " Segurra told Bershadsky that plaintiff "called her a fu- - ing c-nt; it was my understanding that she had fallen back because he shoved her or shouldered into her". Defendant Bershadsky saw plaintiff "step into Luz' with his shoulder" and she "practically fell into my arms jumping away from him". Defendant Bershadsky then exited the restaurant.

Bershadsky explained that he left the restaurant, and when he saw plaintiff, called out to him, who then started walking back towards defendant. Defendant and plaintiff exchanged words, and as one of plaintiff 's two colleagues was pulling plaintiff 's arm to attempt to get defendant to leave, plaintiff "kept getting closer and closer and nastier and nastier" with "hand gestures a half an inch of my face." When defendant Bershadsky "felt jeopardized by his infringing on my space, he hit him."

According to defendant Bershadsky, plaintiff "put his hand in my face a multitude of times, and cursed me, right in my face. . . . He called me a b- - ch. He called — he told me to get my f - - -ing a- - back into the kitchen before I got hurt. And then he called me an old bitch. And all the time motioning was his hand into my face inches away. Sixty years old, carpal tunnel, disabled, the guy just hit a woman. I felt what was he going to do to me." Afterwards, defendant returned to the restaurant to retrieve his bag and personal items. When Bershadsky was asked if he considered his confrontation with the plaintiff as part of his job, defendant replied, "No, sir."

Luz Segarra testified, when asked to describe plaintiff, that "he walked like — you know, he had this chip on his shoulder, that he was like a bad ass". Before the incident, she sent defendant on his break but defendant was still in the restaurant.

Segurra testified that plaintiff "said, you're a fu- - ing c-nt. What did you say? You heard me; you're a fu - - ing c -nt".

Bershadsky, who was "close"... "behind the counter" and "on his break," "walks out. . . ." Segarra went outside to see if the area needed to be swept and saw defendant "a block away from the store"; she called to defendant but defendant "kept on" . As it was lunchtime, she returned to the restaurant; it was "Business as usual, nothing happened in the store, nobody noticed anything, nothing. Thereafter, defendant returned to the restaurant saying, "I broke his . . . jaw;" Segarra then called "Chris" her "boss" and sent defendant home.

Tompkins Bagels argues that it cannot be held liable for defendant Bershadsky's actions as they were not performed in furtherance of the business of Tompkins Bagels.

Pugliese testified on behalf of Tompkins Bagels that Bershadsky was a consultant, hired to help him train chefs, "run my kitchen in a more organized way, give me advice on, you know, how I could do things better, you know, and that's really it. He was a retired fireman, I think he had some extra time on his hands and just helping me". Pugliese "liked the idea of hiring him because he was a retired fireman.

He told me he knew CPR, I thought that would be valuable. I liked the idea that he was older, you know, I made an attempt to hire older people, they have things they can contribute." Pugliese "thought he had been through things as a fighter so I thought he'd be calm and levelheaded, you know, be able to sort of — yeah, I mean, you know, maybe help my staff, you know.

I have a lot of kids there and he's a good fellow to pass on some — you know, I mean, I definitely liked right away when I found out he was a retired fireman. I thought that was good" . Defendant "wasn't an hourly employee so — and he was more, like I said, he was just more kind of helping me, consulting me . . . ." Further, defendant was entitled, like employees, to a free meal during break. When asked if it within Segurra's supervisory capacity to stop defendant from taking a break, Pugliese responded, "Yes." In the course of hiring an employee, Pugliese "would sit down with each employee and explain to them the history of the place, how I expected them to act, what the rules were.

Simple rule, like one meal per shift, half hour break, be on time, call if you're going to be out, how to interact with staff members. The only policy we have is verbal, do whatever it takes to make the guest happy and, you know, that's really it. Just hospitality, we hammered that point, we are in hospitality and we are here to make people happy. That's what was said to every employee I hire. There was no specific

procedure on how to handle an issue with a customer. If you have an issue with anything, people would always come to me or the manager."

According to Pugliese, he went to the restaurant after receiving a call about the incident and interviewed the employees.

When asked if he saw anything out of the ordinary about defendant's demeanor or physical appearance when he returned to the restaurant, he responded "No, I mean, no he is a pretty calm, you know, guy".

Defendant and "every person" told Pugliese what happened, and Pugliese "was shocked, this is not what we do, you know.

I don't, you know, I never raised my hand at another human being in my life and I wouldn't expect any of my workers to do that. From the time that Bershadsky said he saw or heard plaintiff speaking disrespectfully to Segurra to the time of the punch, Bershadsky was on his break, meaning "Once you take your break, that's your time". Pugliese suspended defendant because he did not want his employees to think that defendant's acts were "okay."

In support of summary judgment, Tompkins Bagels argues that it cannot be held liable for defendant Bershadsky's actions as they were not performed in furtherance of the business of Tompkins Bagels. Further, plaintiff 's claim for negligent hiring and supervision against Tompkins Bagels is unsupported by the record.

In opposition, plaintiff argues a jury may conclude that defendant was "doing his master's work" and thus, acting within the scope of his employment, attempting to maintain peace and order in the restaurant, when the altercation and assault occurred. Case law applies respondeat superior even when the employee, through lack of judgment or temper, goes beyond his duty or authority and inflicts injury upon another. Segarra's testimony and defendant's description raises the question of whether defendant's actions and general conduct were reasonably foreseeable to Segurra. Segurra intentionally aroused defendant who was under her control, and never directed defendant to refrain from confronting plaintiff while watching defendant confront plaintiff. That the assault occurred across the street from the restaurant does not absolve Tomkins Bagels from liability, as the confrontation that escalated CONTINUED ON PAGE 32

INSURANCE ADVOCATE / June 13, 2016 27

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[ ON MY RADAR ]

BA R RY Z A L M A

Intentional Acts Can’t Be Insured No Fortuity – No Coverage uInsurance, by definition, insures only against contingent or unknown events. To obtain coverage for defense or indemnity, an insured only needs to establish that the suit against the insured was fortuitous – accidental – unintentional acts.

In Mid-Century Insurance Company v.

Windfall, Inc., Mettle, LLC D/B/A Mettle Strategic Marketing Solutions, Jim Mcgowan, Brooke Redpath, Tara Halls, Tia Metzger, And Megan Richter, United States District Court, D. Montana CV 15-146M-DLC (05/23/2016), the USDC for the District of Montana was asked to provide coverage for defense and indemnity as a result of intentional acts. The District Court reviewed all of the defendants’ arguments in copious detail before reaching its decision.

Background This action presents a dispute among the parties regarding whether MidCentury has a duty to defend the Respondents against litigation pending in state court. Lee Enterprises, owner of local newspaper The Missoulian, brought charges against Respondents in the underlying state proceeding, alleging that Respondents wrongfully used Lee Enterprises’ confidential and proprietary information to compete with Montana Marketing Group (“MMG”), a marketing and advertising agency that operates on behalf of The Missoulian. Mid-Century insures Windfall, Inc. (“Windfall”), which is named as one of the Respondents and which employs or employed McGowan, Richter, and Metzger. Mid-Century accepted the defense of Windfall, McGowan, Richter, and Metzger under a reservation of rights. Metzger has also secured independent counsel.

Five individuals and two business entities are named defendants in the underlying proceeding; the same seven individuals and entities are the Respondents in the present action. All of the individual Respondents worked for The Missoulian and had some connection to the newspa28 June 13, 2016 / INSURANCE ADVOCATE

Five individuals and two business entities are named defendants in the underlying proceeding; the same seven individuals and entities are the Respondents in the present action.

per’s advertising department. Each resigned from The Missoulian during the spring of 2015. In 2001, McGowan, formerly The Missoulian’s Sales Director, formed Windfall, an advertising and marketing agency in Missoula, and he worked there while also employed by The Missoulian. Additionally, McGowan, along with Halls and Redpath, owns Respondent Mettle, L.L.C. (“Mettle”), a business based in Missoula that develops marketing strategies for its clients.

Analysis Mid-Century argues that it is entitled to judgment as a matter of law because Windfall’s insurance policy does not provide coverage for the allegations against Respondents in the underlying state proceeding. Respondents agree that summary judgment is appropriate, but they argue that it should be granted in their favor, claiming that Mid-Century has a duty to cover their defense in the state court litigation.

Coverage Coverage for Mettle, Halls, and Redpath Mid-Century argues that Mettle, Halls, and Redpath are not insureds under the policy. Respondents have not addressed this claim in their brief, and justifiably so—MidCentury correctly asserts that there is no grant of coverage to these Respondents.

Insurance is a contract of personal indemnity, so if not named as an insured or made

Barry Zalma, Esq., CFE, has practiced law in California for more than 42 years as an insurance coverage and claims handling lawyer. He now limits his practice to service as an insurance consultant and expert witness specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes.

He founded Zalma Insurance Consultants in 2001 and serves as its only consultant.

Look to National Underwriter Company for the new Zalma Insurance Claims Library, at www.nationalunderwriter.com/ZalmaLibrary. The new books are Insurance Law, Mold Claims Coverage Guide, Construction Defects Coverage Guide and Insurance Claims: A Comprehensive Guide.

The American Bar Association, Tort & Insurance Practice Section has published Mr. Zalma’s book “The Insurance Fraud Deskbook” available at http:// shop.americanbar.org/eBus/Store/Pro ductDetails.aspx?productId=214624, or 800-285-2221 which is presently available.

Legal Disclaimer: The author and publisher disclaim any liability, loss, or risk incurred as a consequence, directly or indirectly, of the use and application of any of the contents of this blog. The information provided is not a substitute for the advice of a competent insurance, legal, or other professional. The Information provided at this site should not be relied on as legal advice. Legal advice cannot be given without full consideration of all relevant information relating to an individual situation.

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[ ON MY RADAR ] an insured by definition there is no potential for coverage.

Coverage for Windfall & Mettle Windfall is the named insured under the Mid-Century policy. Windfall’s Businessowners’ Liability insurance policy listed the following as insureds under the policy: Windfall itself; Windfall’s “executive officers and directors … , but only with respect to their duties as [Windfall’s] officers or directors”; Windfall’s stockholders, “but only with respect to their liability as stockholders”; and Windfall’s employees and managers, “but only for acts within the scope of their employment … or while performing duties related to the conduct of [Windfall’s] business.”

Mettle is a separate business entity from Windfall. It is not a partner, member, or shareholder of Windfall. Halls and Redpath are principals and owners of Mettle, and they have no established connection to Windfall. The policy does not apply to Halls, Redpath, or Mettle. MidCentury, who did not insure them, owes no duty to defend them.

The Initial Grant of Coverage The parties dispute whether MidCentury’s duty to defend was triggered by the filing of the complaint in the underlying matter. Metzger joins Respondents in arguing that the policy extends to the actions alleged in the state court proceeding. Argument on this issue proceeds along two lines: (1) whether there was “bodily injury” or “property damage” caused by an “occurrence,” and (2) whether there was a “personal or advertising injury.” The Court considers each in turn.

“Bodily Injury” or “Property Damage” Mid-Century argues that there was no initial grant of coverage because Lee Enterprises did not allege either “bodily injury” or “property damage” in the underlying litigation. The Court agreed with MidCentury. There is no coverage under a theory of “bodily injury” or “property damage.”

Here, there was neither “bodily injury” nor “property damage” because there can be no serious argument in favor of coverage under a theory of bodily injury, and Lee Enterprises has alleged damage only to intellectual and not to tangible property.

Further, even had there been “property damage,” it would not have been caused

Under Montana law, a common law cause of action for invasion of privacy exists when there is a wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.

by an “occurrence.” Under Montana law, there is no “occurrence” when the insured acts intentionally and “the consequences of those acts are objectively intended or expected from the standpoint of the insured ….” Employers Mut. Cas. Co. v.

Fisher Builders, Inc. __ P.3d __, 2016 MT 91, ¶ 18 (Mont. 2016).

Lee Enterprises has not claimed that Respondents accidentally took and used confidential and proprietary information.

Nor has it alleged that Respondents intentionally took its intellectual property but merely accidentally or negligently solicited its customers. If the allegations contained therein are true, the underlying complaint gives rise to only one possibility—that Respondents intended both their actions and the ensuing consequences.There may be a factual dispute as to the wrongfulness of Respondents’ conduct; however, there can be no dispute that the same conduct was intentional. Regardless of the merits of Respondents’ defense before the state court, there are no facts suggesting that their conduct constituted an “occurrence” such that Mid-Century’s duty to defend was triggered.

“Personal and Advertising Injury” Mid-Century also argues that there was no initial grant of coverage because Lee Enterprises did not allege “personal and advertising injury” in the state proceeding.

There is no statutory or standalone federal constitutional right to privacy.

Thus, if Lee Enterprises had a “right of privacy,” it would have to exist under the common law. Under Montana law, a common law cause of action for invasion of

privacy exists when there is a wrongful intrusion into one’s private activities in such a manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities.

The common law right of privacy is limited to natural persons. Lee Enterprises has not alleged a violation of its right of privacy because it has no violable right of privacy. As a corporation, it cannot bring a claim limited to natural persons. It is incapable of mental suffering, shame or humiliation. The policy defines an “advertisement” as “a notice that is broadcast or published to the general public or specific market segment about your goods, products or services for the purpose of attracting customers or supporters.”

There was neither an “advertising idea” nor an “advertisement.” There was no initial grant of coverage. Summary judgment for Mid-Century regarding coverage is appropriate.

DUTY TO DEFEND METZGER The duty to defend arises when a complaint against an insured alleges facts, which if proven, would result in coverage. MidCentury had no duty to defend Metzger at the time the underlying complaint was filed because the allegations in the complaint, if true, did not trigger coverage.

ZALMA OPINION Here, the underlying suit alleged intentional acts that resulted in neither bodily injury, property damage, nor advertising injury. Rather, it claimed that the defendants stole its intangible intellectual property to its damage. The loss claimed was not fortuitous. The loss claimed was not a risk insured against. The loss claimed was against some who were not insureds of the policy. The arguments by the defendant insureds were creative but non-availing.[IA]

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to the assault began inside the restaurant.

Alternatively, Tomkins Bagels is liable under the theory of negligent supervision and training for acts of defendant outside the scope of employment. Segurra knew that defendant was an angry person with a chip on his shoulder and involved him in a dispute with plaintiff. Further, Tomkins Bagels' training of employees to simply make customers happy, in the absence of any policy on how to handle issues between customers and employees, and failure to properly train Segurra, constitute negligence on its part.

Defendant also argues that Tomkins Bagels lacked adequate hiring procedures or supervision of the premises. Tomkins Bagels did not perform background checks, and did not have a formal application process or formal handbook or behavior policy, formal training, or hiring procedures.

In reply, Tomkins Bagels argues that defendant's actions were in furtherance of a personal interest, rather than one of the restaurant, and the case law cited by plaintiff is distinguishable. Further, there is no

Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact… evidence regarding defendant's propensity for violence, or Tomkins Bagels' knowledge of same, especially given that defendant's position did not require that he have any interaction with customers. Tomkins Bagels was under no duty to inquire of past convictions.

Discussion It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit"

(CPLR §3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). Thus, the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012] citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR §3212 [b]; Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]). Mere conclusions, expressions of hope or unsubstantiated allegations or

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[ COURTSIDE ] assertions are insufficient (Alvord and Swift v Steward M. Muller Constr. Co., 46 NY2d 276, 281-82, 413 NYS2d 309 [1978]; Carroll v Radoniqi, 105 AD3d 493, 963 NYS2d 97 [1st Dept 2013]).

Under the doctrine of respondeat superior, an intentional tort "committed by an employee can result in liability for his or her employer" if the employee was acting "within the scope of the employment" at the time of the commission of the tort (Ramos v Jake Realty Co., 21AD3d 744, 801 NYS2d 566 [1st Dept 2005]). The employer need not have foreseen the precise act or manner of the injury as long as the general type of conduct may have been reasonably expected. However, "an employee's actions are not within the scope of employment unless the purpose in performing such actions is to further the employer's interest, or to carry out duties incumbent upon the employee in furthering the employer's business" (Schilt v New York City Tr. Auth., 304AD2d 189, 759 NYS2d 10 [1st Dept 2003]). The determination of whether the doctrine applies depends upon "The connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one the employer could reasonably have anticipated."

Yet, "An employer cannot be held vicariously liable for an alleged assault where the assault was not within the scope of the employee's duties, and there is no evidence that the assault was condoned, instigated or authorized by the employer (Yeboah v Snapple, Inc., 286AD2d 204, 729 NYS2d 32 [1st Dept 2001]).

Here, defendant Bershadsky's duties were limited to training employees in the kitchen in the back of the restaurant.

Defendant's contact with plaintiff did not occur at any time during which defendant was performing any of his duties for Tompkins Bagels. Indeed, defendant had already told Segurra that he was leaving for the day, and Segurra testified that defendant was on break. Furthermore, at the time of the physical confrontation, both plaintiff and defendant were across the street from the restaurant, again, at a time when defendant was "off the clock," which according to Tompkins Bagels, means during a period when defendant

Under the doctrine of respondeat superior, an intentional tort "committed by an employee can result in liability for his or her employer" if the employee was acting "within the scope of the employment" at the time of the commission of the tort‌

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Michael Leff was not working. By the time plaintiff made his initial contact with defendant by calling plaintiff across the street, both plaintiff and defendant were off the restaurant premises. Although the plaintiff 's insult of Segurra occurred inside the restaurant, no verbal or physical interaction between plaintiff and defendant occurred inside the restaurant.

Further, there was no indication that defendant's interaction with any customer was foreseeable, or could have been anticipated, especially given that defendant's duties did not include any contact with the restaurant's customers (see Conde v Yeshiva University, 16AD3d 185, 792 NYS2d 387 [1st Dept 2005] (dismissing the assault and battery claims brought under the doctrine of respondeat superior where employee acted beyond the scope of his employment, "motivated by private concerns that were not even remotely related to any conduct [employer] could have foreseen in the performance of his duties")). The testimony noted above indicates that defendant was assigned to [sic] solely to train employees in the kitchen or deli to better perform their respective duties, and that he was "in charge of the kitchen . . . the deli, whatever went on in the kitchen, he took care of that" and that Segurra would remain in the front". Defendant's position was to "organize" and help "run" the kitchen. And, "kitchen staff does not have much interaction with customers".

Segurra "ran the front" and defendant's training of the employees in the kitchen "had nothing to do with the front end that she ran". Further, student employees also worked in "the front", but they "had noth-

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ing to do with [defendant] in the back".

Segurra's outcry of what plaintiff did to her, apparently aimed at defendant in an apparent surprise, does not rise to any level of any inference that Segurra was directing or negligently suggested for defendant to take any action, or, gives rise to an inference that defendant's response was in furtherance of Tompkins Bagel's business. Defendant explained his personal motives for confronting plaintiff, and expressly denied that his pursuit of plaintiff was related in any way to his duties as consultant (Kwak v Wolfenson, 258 AD2d 418, 686 NYS2d 381 [1st Dept 1999] (dismissing complaint where there were "no facts tending to show that alleged assault was within scope of assailant's alleged duties as secretary")).

The cases cited by plaintiff are factually distinguishable from the circumstances herein. (Ramos v Jake Realty Co., 21AD3d 744 supra (defendant's building superintendent assaulted plaintiff during workday at work site specifically to prevent him from collecting evidence of rent strike; there was no evidence that the superintendent had any personal motivation for the assault; superintendent's animus, "shared by management, was about the rent strike"); De Wald v Seidenberg, 297 NY 335, 79 N.E.2d 430 [1948] (fight ensued between building superintendent and plaintiff when superintendent was carrying out a duty to enforce his employers' rules against throwing items out of the window); Sims v Bergamo, 3 NY2d 531 [1957] (where defendant's bartender assaulted plaintiff after having accused her of breaking window of defendant's bar, it may reasonably be inferred that the bartender believed that it was necessary to take steps to prevent plaintiff 's further destruction of bar property); Fofana v Chevrolet Saturn of Harlem, Inc., 2008 WL 4961586, 2008 NY Slip Op. 33061(U) [Supreme Court, New York County 2008] (issue of fact existed where employee's manager expressly approved of employee's attack of plaintiff after soliciting plaintiff 's customer on plaintiff 's car lot); Stewartson v Gristede's Supermarket, 271AD2d 324, 705 NYS2d 583 [1st Dept 2000] (reversing dismissal of complaint where assault against store customer unloading groceries on conveyor belt ensued while defendant's store manager was in the process of filling 34 June 13, 2016 / INSURANCE ADVOCATE

…there is no evidence that Tomkins Bagels had any notice of defendant's propensity to commit an assault and/or battery of a customer, and Segurra's testimony that defendant had a "chip on his shoulder" is insufficient to constitute notice in this regard. a phone-in order); Bilias v Gaslight, Inc., 100AD3d 533, 954 NYS2d 88 [1st Dept 2012] (issue of fact existed where defendant bar's employee attacked plaintiff after forcibly escorting plaintiff out of the bar)).

Further, liability cannot be charged to Tomkins Bagels on the ground of negligent hiring and supervision. To establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee's propensity for the conduct which caused the injury (see Detone v Bullit Courier Serv., Inc., 140 AD2d 278, 279 [1988], lv denied 73 NY2d 702 [1988]).

In negligent hiring and negligent retention actions, "the negligence of the employer in such a case is direct, not vicarious, and arises from its having placed the employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in making its decision concerning the hiring and retention of the employee" (White v Hampton Management Co. L.L.C., 35 AD3d 243, 827 NYS2d 120 [1st Dept 2006]).

Here, there is no evidence that Tomkins Bagels had any notice of defendant's propensity to commit an assault and/or battery of a customer, and Segurra's testimony that defendant had a "chip on his shoulder" is insufficient to constitute notice in this regard. Similarly, defendant's admission to stealing $20 from the register of a prior job is insufficient to give rise to notice of any criminal propensity to commit violence. Further, there is no indication that a criminal background check would have revealed any proclivity to act violently. "An employer is under no duty to inquire as to whether an employee has

been convicted of crimes in the past" (Yeboah v Snapple, Inc., 286AD2d 204, 205, 729 NYS2d 32 [1st Dept 2001]). In any event, the record indicates that Tompkins Bagels checked defendant's references, and obtained positive feedback from defendant's former business dealings.

Further, as to the claim that Tomkins Bagels did not have any policies concerning issues between customers and employees, such a vague claim, in the absence of any prior notice of defendant's propensity to commit an assault and/or battery of a customer, is insufficient to raise an issue of fact.

Summary judgment was granted to defendants, dismissing the Complaint.

2016 NY Slip Op 50778(U) Decided on May 18, 2016 Supreme Court, New York County Edmead, J. Edited by Lawrence N. Rogak

THE SOCIAL NOTEBOOK CONTINUED FROM PAGE 24

Let’s talk about your agency’s website for a moment though…have you taken the time to optimize your website for a mobile user? If not, I would highly recommend talking with a website design professional about making sure your website is handson and easy to use for your mobile users as well. In 2013, the number of mobile users skyrocketed compared to those of us still using a computer or desktop, and the number will only continue to grow from here. Part of your agency’s overall customer experience is making things easily accessible for your agency online, which includes optimizing your website for mobile. If your website is not optimized, the desktop version of your website will try to fit on your audience’s mobile device screens, and everything will be crammed, small, or difficult to click or tap in some cases. By optimizing your website, your customers can find what they are looking for with relative ease, and on the go!

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