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Rizkallah v. Forward Air

September 22, 2009

MORRIS Z. RIZKALLAH AND NADIA E. RIZKALLAH, INDIVIDUALLY AND DOING BUSINESS AS PAINTED APRONS MOTEL, PLAINTIFFS,
v.
FORWARD AIR, INC., FAF, INC.,MARK E. LEGGUE, AND GREAT WEST CASUALTY COMPANY, DEFENDANTS.



The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.

MEMORANDUM OPINION AND ORDER

On February 28, 2001, a tractor-trailer owned by Defendant Forward Air Freight, Inc. ("FAF") broke through a guardrail on Interstate 84 and came to rest on property belonging to Plaintiffs Morris and Nadia Rizkallah. The accident and subsequent removal of the truck caused damage to the Rizkallahs' property, including the destruction of many trees and shrubs, and led to this litigation.

The Rizkallahs claim, inter alia, that Defendant Great West Casualty Company ("Great West") -- FAF's insurer -- breached an agreement with them to restore their property to its pre-accident condition. Alternatively, the Rizkallahs claim that Great West is liable to them under (1) a theory of fraudulent misrepresentation; or (2) under N.Y. Real Property Act § 861 (1963), which provides a cause of action to owners whose trees have been cut down without their consent. Great West has moved for summary judgment on all three causes of action. For the reasons set forth below, Great West's motion is GRANTED.

I. BACKGROUND

A. The February 28, 2001 Accident and the Removal of the Tractor-Trailer From the Rizkallahs' Property

The Rizkallahs own and operate the Painted Aprons Motel, which is located off Interstate 84 in a densely wooded area outside Port Jervis, New York. (Def. R. 56.1. Stat. ¶ 1,*fn1 Ex. E at 59:25; Pltf. R. 56.1 Stat. ¶ 1, Ex. 6 at 40:12-14) In the early morning hours of February 28, 2001, a truck operated by an FAF driver broke through the guardrail on Interstate 84, traveled down an embankment, and landed on Plaintiffs' property. (Def. R. 56.1 Stat. ¶¶ 1-2)

The New York State Police became aware of the accident and made arrangements for a heavy equipment operator -- George Fuller of D&H Garage -- to remove the truck from the Rizkallahs' property. (Def. R. 56.1 Stat. ¶ 8) Fuller went to the Rizkallahs' home to obtain permission to remove the truck. (Id.) Morris Rizkallah told Fuller that he would not permit anyone to remove the truck until he had examined the accident scene. (Id. ¶ 9)

Wesley Robin, a Great West claims adjuster, learned of the accident that morning, and received a fax stating that the landowner "want[ed] a letter stating that his property will be taken care of." (Def. R. 56.1 Stat. ¶ 14, Ex. I; Pltf. R. 56.1 Stat. ¶ 10)

Robin faxed a note to Nadia Rizkallah asking her to call him "ASAP," and Great West arranged for its casualty adjuster, Crawford & Co., to go to the accident scene. (Pltf. R. 56.1 Stat. ¶ 11; Def. R. 56.1 Stat. ¶ 14)

When the Crawford & Co. adjuster arrived at the accident site later that morning, he took photographs of the scene, spoke to Fuller about obtaining the Rizkallahs' permission to retrieve the truck,*fn2 and checked on the condition of the truck. (Def. R. 56.1 Stat. ¶¶ 14 -15, 18-19) In the vicinity of the truck -- which had come to rest in a wetlands area -- the adjuster noticed a strong odor of diesel fuel. (Def. R. 56.1 Stat., Ex. E at 56:17-22) He discovered that the truck's fuel tank had ruptured, and observed that it was leaking diesel fuel into the ground and into a nearby stream. (Def. R. 56.1 Stat. ¶ 21, Ex. E at 75:4-6, 76:4-10) The adjuster called 911. (Def. R. 56.1 Stat. ¶ 22, Ex. E at 79:13-14)

Andy Cope -- an insurance adjuster who works for FAF -- then arrived at the accident scene*fn3 and took over the investigation from the Crawford & Co. adjuster. (Def. R. 56.1 Stat. ¶ 24; Pltf. R. 56.1 Stat., Ex. 8 at 96:22-25) Cope spoke that morning with Nadia Rizkallah.*fn4 Mrs. Rizkallah claims that she suggested that the truck be removed via Interstate 84, while Cope attempted to persuade her that it was more practical for the truck to be removed through the Rizkallahs' property.*fn5 (Pltf. R. 56.1 Stat. ¶ 14) Mrs. Rizkallah also testified that Cope told her that Great West "had a good reputation," "was a great company," and "would do whatever the Rizkallahs wanted them to do if they permitted the tractor-trailer to [be] pulled through their property." (Id.) Even though Cope told her that Plaintiffs "would be compensated for any damage which the removal caused and their property would be restored," Mrs. Rizkallah insisted that he provide a written statement to this effect before granting permission to have the truck removed through Plaintiffs' property. (Id.)

Mrs. Rizkallah also testified that she spoke that morning by telephone with an unidentified Great West employee and told this person that a "tractor-trailer had fallen down on our property and . . . that if the trailer was pulled through our property we wanted them to write in a document that they were going to restore whatever damage they were going to do, restore the property to its pre-accident condition, plant any trees they cut and compensate us for anything that is not available." (Pltf. R. 56.1 Stat. ¶ 22, Ex. 9 at 21:11-21) The Great West employee told Nadia that someone from the company would "get back to [the Rizkallahs]." (Pltf. R. 56.1 Stat. ¶ 22, Ex. 9 at 21:23)

Great West's Wesley Robin spoke by telephone with Nadia Rizkallah sometime before noon. (Pltf. R. 56.1 Stat. ¶ 21, Ex. 5 at 39:23-25) Mrs. Rizkallah told Robin that the Rizkallahs "wanted an assurance that once the tractor trailer was removed from the[ir] property, there would be an insurance company available to address the issue of any damage to their property." (Def. R. 56.1 Stat. ¶ 36) Robin assured Mrs. Rizkallah that "there was an insurance company who would address their claim after the truck was removed." (Id. ¶ 38)

At 12:43 p.m., Robin received an email from another Great West employee stating that "Nadia Rizkallah called and said she was waiting for a fax from you. Says you are holding everyone up . . . Please handle." (Pltf. R. 56.1 Stat. ¶ 23) At about this time, FAF's Cope again attempted to persuade the Rizkallahs to permit removal of the truck through their property, but Morris Rizkallah insisted on waiting for the fax transmission from Great West.*fn6 (Id. at ¶ 29, Ex. 2 ¶ 10)

Robin then sent the following fax to Morris Rizkallah, which is the basis for the Rizkallahs' claims against Great West:

Mr. Rizkallah, It is my understanding that a vehicle owned by one of my insureds, Forward Air Corporation, is presently on your property. Please allow D&H Garage and RM Excavating to enter your property so that they may remove the vehicle. If I understand the facts, this entry onto your property has caused damage, and the removal of the unit will entail further damage. Please be assured that Forward Air Corporation maintains a policy of insurance with Great West Casualty Co. for such accidents. I will be the adjuster who works with you in restoring your property to pre-accident condition or compensating you for damage that is irrepairable [sic].

Please contact me if you should have any questions. Thank you for your help. Wesley Robin (Def. R. 56.1 Stat., Ex. I) At his deposition, Robin testified that he "understood at the time that part of the damage to the property was damaged trees and shrubs[,] and that would be part of the something we would consider doing to address the damage that had occurred to this property." (Pltf. R. 56.1 Stat., Ex. 5 at 87:19-23)

Morris Rizkallah alleges that he consented to the truck's removal at about 1:30 p.m., immediately after receiving Robin's fax.*fn7 (Pltf. R. 56.1 Stat. ¶ 48, Ex. 2 ¶ 13) Both Morris and Nadia Rizkallah allege that -- but for Robin's fax -- they would not have permitted the truck to be removed through their property. (Pltf. R. 56.1 Stat. ¶¶ 50-51, Ex. 1 ¶ 10, Ex. 2 ¶ 16) Removal of the truck through the Rizkallahs' property "necessitated the cutting of trees and bushes and creating a path . . . [with a] bulldozer, backhoes and chainsaws." (Pltf. R. 56.1 Stat. ¶ 50).

Because of prior insurance claims, Mr. Rizkallah understood the insurance claims adjustment process and was aware that it would involve negotiation that ...


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