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News Insurer Has No Duty to Indemnify NY Insured for the Wrongful Death of Another Insured. May 13, 2010 < Back Share to: The Fourth Department, in Cragg v. Allstate Indem. Corp., was recently presented with an issue of first impression. The plaintiff-decedent and her mother lived with her grandparents and were covered under the grandparent's homeowners' insurance policy. The decedent drowned in the grandparent's pool and the decedent's father, who did not live with the decedent, brought an action against the mother on the decedent's behalf. The court held that the insurer did not have a duty to defend the mother against a wrongful death action brought by a noninsured party for the death of another insured party. The court pointed to the policy's coverage exclusion clause, which excluded coverage for "bodily injury to an insured person. . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person." In other words, it would go against the purpose of the policy to provide coverage to the decedent's mother and allow her to benefit from such coverage. Thanks to Georgia Stagias for her contributions to this post. if you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9544136 Previous Next Contact

News Court Holds Torture Committed In Iraq Is Outside Policy’s “Coverage Territory" May 15, 2009 < Back Share to: In a case involving the application of liability insurance to torture cases in Iraq, the United States Court of Appeals for the Fourth Circuit held that there was no coverage because the incidents occurred outside the policy’s coverage territory. In CACI International, Inc. v. St. Paul Fire and Marine Ins. Co., the insured was sued by detainees of Abu Gharib, and sought coverage under its general liability policy. CACI argued that the hiring and training of the insured’s employees implicated acts that occurred in the United States, within the policy’s coverage territory. This argument was rejected by the court, which noted that traditional policy interpretation used the location of the injury determined the location of the “event” for coverage purposes. http://pacer.ca4.uscourts.gov/opinion.pdf/081885.P.pdf Previous Next Contact

News Dennis Wade to Speak At New York State Bar Association CLE Coverage Program March 9, 2018 < Back Share to: Each Spring, the New York State Bar Association hosts a Continuing Legal Education Program dedicated to coverage issues. This year, Dennis, a sports maven (and a weekend warrior), will discuss how the judiciary addresses or balances the risks inherent in sport and recreational activity. His written submission, with co-author Nicholas Schaefer, is entitled: Liability for Sporting and Recreational Activities. If you care to attend live, here is a link to the program www.nysba.org/PremisesLiability. Previous Next Contact

News Alcohol Tolerance and Spoliation of Evidence Examined by NJ Court February 15, 2012 < Back Share to: Although frequently tragic, Dram Shop cases are never boring. They always involve a discussion of alcohol and the whacky ways that people find to get themselves in trouble. Dram Shop trials usually involve conflicting testimony about who drank what, when they drank it and the effect of that consumption on one or more persons. In Davis v. Barkaszi, the jury was entertained by conflicting testimony about how much Justin Barkaszi had to drink at KC’s Korner bar before he got into a car accident while under the influence of alcohol. Some patrons recalled him consuming numerous shots of vodka while others recollected a far less raucous evening. Despite this disagreement, the medical records recorded a blood alcohol concentration (BAC) of .191%, well over the legal limit of .08% for operating a motor vehicle. A key liability issue was whether the bar served Barkaszi when he was “visibly intoxicated.” During the trial, plaintiff’s expert testified that Barkaszi consumed 18 ounces of vodka. He also concluded that Barkaszi was a man of “average alcohol tolerance” based on statements that Barkaszi did not drink heavily on a regular basis. Thus, the plaintiff’s expert concluded that Barkaszi would have displayed evidence of “visible intoxication” while at the bar. The defense attorney planned on attacking this conclusion by eliciting testimony from witnesses including the plaintiff that Barkaszi drank much more heavily and frequently than assumed by plaintiff’s expert. According to the defense, Barkaszi had a high level of tolerance for alcohol and would not have demonstrated signs of “visible intoxication” at the bar despite his copious consumption of vodka. In addition, KC’s Korner had a videotape system that ran on a continuous loop that taped over the prior footage after one week’s time. The bar owner was prepared to testify that he reviewed the tape after the accident, found that it corroborated his bartender’s version of the events and decided that there was no reason to preserve the tape. At trial, the court prohibited the bar owner from explaining his decision not to preserve the tape and gave the jury an “adverse inference” charge inviting them to conclude that the tape would not have supported the bar’s position at trial. The New Jersey Appellate Division vacated the jury verdict in the plaintiff’s favor and remanded for a new trial. The court held that the bar should be permitted to develop evidence of Barkaszi’s customary alcohol consumption to demonstrate that he had a significant tolerance to alcohol, a concession that would undermine the opinion of plaintiff’s expert. Further, the Appellate Division held that the adverse inference charge on the issue of the supposed spoliation of evidence was improper because plaintiff never made the threshold showing that the bar violated a protocol or practice concerning the preservation of evidence. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com You can review the actual decision by clicking on the case name in paragraph two.   Previous Next Contact

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News Florida Man Sued Over Negative Remark On eBay April 15, 2010 < Back Share to: That winning bid on eBay may cost you more than you think. In a case in Florida, a man bought a clock on eBay for $44. The clock arrived in three pieces that didn’t fit together, and apparently were not from the same model. The buyer received a refund and sent the clock back. He then posted a bad review of the seller: “Bad seller; he has the ethics of a used car salesman.” The seller did not take the criticism kindly. The seller, a Miami Beach lawyer, sued for damages for ruining his 100 percent customer approval rating and commercial reputation. The seller is seeking $15,000 for defamation. The case is still winding its way through Miami-Dade County Court. If you have any questions about this post, please email David Tavella at dtavella@wcmlaw.com Previous Next Contact

News NY 2nd Dept: Painted Sidewalk Not a Slippery Condition November 10, 2009 < Back Share to: The Second Department recently held that the mere act of painting a portion of a sidewalk does not create a hazardous condition or put a landowner on notice of an allegedly hazardous condition. In Ford v. Domino’s Pizza, LLC, the plaintiff slipped and fell on a raised portion of sidewalk that had been painted blue. In granting the landowner’s motion for summary judgment, the court emphasized that the plaintiff’s allegation that the paint made the sidewalk inherently slippery was insufficient to raise a triable issue of fact. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07979.htm Previous Next Contact

William A. Healy IV Associate New York +1 332 345 4186 whealy@wcmlaw.com Professional Experience Will litigates general liability actions and is involved in all phases of litigation from the inception of the matter through the resolution. His work includes drafting motions and pleadings, conducting depositions, researching, assisting in mediations/arbitration, and preparing and assisting for trial. Before joining WCM, Will was a litigation associate at Carman, Callahan & Ingham, LLP on Long Island. In this prior role, he focused on motor vehicles, trucking, and towing cases. He handled all aspects of the case from pleadings and petitions to motion drafting and oral arguments to conducting depositions and small claims trials. Will graduated from St. John’s University School of Law. While attending St. John’s, Will was an Executive Board Member and externals competitor of the Polestino Trial Advocacy Institute, where he routinely competed in mock trial competitions. He also assisted in re-founding the Irish American Students Association, of which he became the President. Honors and Distinctions Semifinalist and Outstanding Advocate Award Recipient, Hofstra Medical-Legal Mock Trial Tournament Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., St. John’s University School of Law B.A., The George Washington University Bar Admissions New York

News Untimely Disclaimer? Argue No Occurrence. December 5, 2012 < Back Share to: It is often forgotten that while an insurer bears the burden of proof in establishing the applicability of an exclusion, the insured first bears the burden of proving an occurrence. The continued viability of this rule was recently reaffirmed by New York's Appellate Division, Second Department. In State Farm v. Raabe, State Farm’s insured Joseph Alessi was allegedly involved in a fight with Sean Raabe and Anthony Bisignano, Jr. in a church parking lot. State Farm brought an action seeking a declaration that it had no duty to defend Alessi for his actions. However, before commencing its declaratory action, State Farm did not issue a timely disclaimer; Raabe and Bisignano moved for summary judgment on that basis and argued that State Farm had waived the right to contest coverage. In opposing their motion, State Farm did not dispute that its disclaimer was untimely. Instead, it argued that a disclaimer was completely unnecessary because the claim did not fall within the coverage terms of its insurance policy. The court agreed with State Farm. It held that there was a question of fact as to whether the fight was an "accident" and thus an "occurrence." State Farm lives to fight another day. Thanks to Michael Nunley for his contribution to this post.   Previous Next Contact

News Court Orders Gallery to Return Art, Defense of Lack of Recent Appraisal Rejected (NY) December 15, 2011 < Back Share to: In 2003, Artist Ken Feingold entered into an “Artists Agreement” with the Ace Art Gallery that provided the gallery with exclusive international representation of Feingold's work for twelve months. The parties agreed that, if either party then wanted to cancel, they could do so with 90 days notice. Any unsold inventory at the end of the ninety days would then be returned to the artist. Notably, they also agreed that if Feingold owed money to the gallery, “If the artist cannot reimburse Ace Art Gallery at that time, Ace Art Gallery has the right to hold the inventory for another ninety days until it has produced enough sales or decided to acquire the work(s) at the prices established just prior to the cancellation of the agreement to equal the outstanding debt to Ace Gallery. Then all remaining unsold works would be returned to the artist and all the above terms of the contract become null and void.” In 2009, the gallery decided to cancel the contract, and claimed that Feingold owed the gallery $85,780.13. However, the parties had not agreed on any prices for the art since 2005, and apparently, the gallery felt those values were no longer representative and wanted to be paid in money rather than art. So, the gallery did not attempt to sell the art and instead placed it in storage, leading to a lawsuit in the Southern District of New York, Feingold v. Chrismas. Feingold moved for summary judgment, and the gallery opposed on the basis that, because there were no prices established for the art “just prior” to the cancellation, Feingold was in breach of the contract. But the Court held that when reading that clause in the proper context, “just prior” meant the most recent agreement prior to cancellation. Indeed, the presence of that clause precluded the gallery from seeking monetary damages, and instead provided the gallery with an extra ninety-day window to avail itself of its only contractual remedies: either selling or purchasing the art. The Court found that, because that window had long since closed, the gallery was required to return the art. If you would like further information about this case, please contact Mike Bono at mbono@wcmlaw.com Previous Next Contact

News Will Safer Drivers Mean More Lawsuits? August 16, 2010 < Back Share to: Back in November 2009, New York Governor David Patterson signed into law the Child Passenger Protection Act, better known as “Leandra’s Law.” The statute made it a felony to drive drunk or under the influence with passengers age 15 and under, and was named after Leandra Rosado, an 11-year-old girl who was killed when the car in which she was riding flipped over on Manhattan’s West Side Highway. Six other children were also injured in the accident. The car’s driver, Carmen Huertas, recent pleaded guilty to drunken driving. Leandra’s Law went into effect in December 2009, and in the first six months, resulted in 248 arrests statewide. This week, the second phase of Leandra’s Law goes into effect, requiring anyone convicted of a DWI to install a DriveSafe Ignition Interlock device in his or her car. The device administers a breathalyzer test that the driver must pass in order to start the car. The device will lock down the car if it detects a BAC level of .025 or higher. It costs drivers approximately $200 to install and $80 for maintenance, “a small price to pay to have their license back,” says Don Prudente, the owner of DriveSafe Ignition Interlock of New York. It will be interesting to see how this will affect lawsuits brought under New York’s Dram Shop Act, which allows liability for bars that over-serve patrons. It will also be interesting to see if DriveSafe is sued if its devices malfunction or fail. We will keep our eyes peeled over the next few months to see what happens. Special thanks to Alex Niederman for his contributions to this post. If you have any questions, please contact Bob Cosgrove@rcosgrove@wcmlaw.com . http://www.nydailynews.com/ny_local/2010/08/15/2010-08-15_new_state_law_requires_dwi_convicts_to_pass_breathalyzer_test_before_driving_car.html Previous Next Contact

News Insurer Has Heavy Burden on Proving Timeliness of Disclaimer in NY November 26, 2007 < Back Share to: New York is notoriously strict in requiring insurers to promptly disclaim coverage. In Lloyd's v. Gray, the insurer delayed 56 days in disclaiming on an apparently air tight exclusion based on bodily injury to any employee of an independent contractor engaged by the insured. The insurer received notice of the suit, engaged an investigator to interview the insured, and disclaimed coverage in a 56 day period. The Appellate Division, First Department held that whether the insurer disclaimed "as soon as is reasonable possible" was a fact question that precluded summary judgment in favor of the insurer. A life's lesson for insurers underwriting risks in New York: disclaim promptly and cite all potential grounds that preclude coverage. http://www.nycourts.gov/reporter/3dseries/2007/2007_08885.htm Previous Next Contact