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News Failure to Define Policy Term Does Not Render Policy Ambiguous May 17, 2016 < Back Share to: In Rapp v. Penn National Mutual Casualty Ins. Co., the Pennsylvania Superior Court was asked to opine on whether an undefined term in the insurance contract rendered it ambiguous. Plaintiff was injured as a passenger in a two car motor vehicle accident. Her husband was the driver of the car she was in. Initially, plaintiff attempted to recover under the other driver’s policy. However, the other driver’s policy had limited coverage. Consequently, plaintiff filed an underinsured motorist claim under her husband’s policy with Pennsylvania National Mutual Casualty Company. Plaintiff’s husband was the only named insured under the policy, but the policy also provided coverage to the named insured’s spouse, if the spouse was a resident of the named insured’s household. Specifically, the policy stated, “[t]hroughout this policy, ‘you’ and ‘your’ refer to: ‘the named insured’ shown on the Declarations” and “[th]e spouse if a resident of the same household.” Pennsylvania National denied coverage to plaintiff, since, at the time of the accident, she no longer resided with her husband. In response, plaintiff filed a declaratory judgment action seeking coverage under the policy. Pennsylvania National moved for summary judgment, and the plaintiff opposed arguing that the policy was ambiguous since the declarations page only listed plaintiff’s husband as the “insured” not the “named insured”. As such, Pennsylvania National’s failure to have the policy’s declarations page identify plaintiff’s husband as the “named insured” (as opposed to just the “insured”) rendered the policy’s definition of “you” and “your” ambiguous, since “named insured” was not defined under the policy. In determining that the policy was not ambiguous, the court reasoned that the declarations page had several boxes titled “insured”, in which plaintiff’s husband’s name was listed. Thus, the court concluded, that notwithstanding the fact that the declarations page did not explicitly define the policy’s “named insured” the policy was unambiguous as to who the named insured was. This case illustrates that an insurance policy’s failure to define a term may not result in a carte blanche ruling that the policy or its provisions are ambiguous. However, a policy’s failure to unequivocally define referenced terms may, under certain circumstances, result in a court finding a policy ambiguous (and thus finding coverage) where the insurer may not have intended coverage to apply. Therefore, insurers should attempt to ensure that all referenced terms are defined as to avoid courts potentially finding ambiguities where none should exist. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News Ghost Writing in New Jersey January 30, 2008 < Back Share to: In response to a recent federal court decision that created some fear among attorneys, the Advisory Committee on Professional Ethics in New Jersey issued a formal opinion as to when lawyers must disclose that they are the author of a legal document. Essentially, the opinion states that no disclosure is required when an attorney provides limited assistance to a pro se litigant of limited financial means, particularly as part of an organized, non-profit program. But disclosure must be made when the lawyer, not the pro se litigant, is "effectively in control of the final form and wording of the pleadings and conduct of the litigation." The Committee recognized that courts are generally lenient to pro se litigants, and it would be unfair (and unethical) for a litigant to take advantage of this system by masking the involvement of an attorney. http://www.judiciary.state.nj.us/notices/ethics/ACPE713.pdf Previous Next Contact

News Lack Of Contract Allows GC To Escape Labor Law Claim (NY) February 2, 2017 < Back Share to: General contractors are virtually always caught in the web of Labor Law construction claims in New York. But recently, the Appellate Division, First Department dealt with an interesting issue: what happens when plaintiff is injured performing work outside of the relevant contract between the GC and the owner? In Ortiz v. IGBY Huntlaw LLC,plaintiff Wilson Ortiz was injured when he fell off a ladder while painting an apartment in Manhattan. He sued the property owner, IGBY Huntlaw LLC, and the general contractor, A.E. Grayson & Co., Inc., under claims negligence, and violations of Labor Law 200, 240(1) and 241(6). Plaintiff was employed as a painter by Uriu, LLC, an entity that was retained directly by the property owner - and there was no contract between Uriu and Grayson. Grayson moved for summary judgment at the end of discovery, relying on the fact that the contract between Grayson and the owner specifically excluded painting from the services to be provided. They also argued that there was no contract between Grayson and plaintiff’s employer and Grayson did not have actual or contractual authority to control the plaintiff’s work. In opposition, the plaintiff submitted a post-deposition affidavit stating that a Grayson supervisor directed plaintiff and his co-workers as to where and how they should perform their work. This affidavit contradicted the testimony of the Grayson witness and the witness from Uriu, both of whom testified that only the Uriu foreman could or would direct the plaintiff’s work. The trial court held that the plaintiff’s affidavit was sufficient to establish a question of fact as to whether Grayson directed, supervised or controlled plaintiff’s activities on the project. The Appellate Division, First Department reversed, and granted Grayson’s motion for summary judgment dismissing all of the plaintiff’s claims. The Court held that because plaintiff’s work was outside the scope of Grayson’s contract with the owner, Grayson had no right to control the work and could not be held liable under Labor Law §§ 240(1) or 241(6). The Court also dismissed the common law negligence and Labor Law 200 claim, because Grayson had no authority to control the work that caused the plaintiff’s injury. Noticeably absent from the Appellate Division’s holding was any consideration for the allegations that Grayson was actually directed the plaintiff’s work. Because Grayson did not have the authority to direct and control the plaintiff, the Court found that it could not be held liable for the plaintiff’s injuries under the Labor Law. Perhaps if plaintiff’s claims that Grayson directed his work had been corroborated by another witness, the court might have reached a different result. But the mere allegation by plaintiff that another party directed his work at the time of his accident - which was contrary to the contractual language - was found insufficient to create a question of fact in the First Department. Thanks to John Collins for his contribution to this post and please write to Mike Bono if you are interested in more information. Previous Next Contact

News PA District Court Rules On Plaintiff’s Defective Product Claims July 18, 2012 < Back Share to: In Sikkelee v. Precision Airmotive Corporation et al, an aircraft accident at the Transylvania County Airport in Brevard, North Carolina resulted in the death of David Sikkelee. The Plaintiff alleged that the accident was caused by a faulty carburetor and sued multiple parties involved in the manufacturing of the plane’s engine. Among the defendants was Lycoming Engines, the original engine manufacturer and division of industry giant AVCO Corporation. The plaintiff asserted negligence and strict liability claims to which Lycoming moved for summary judgment. Judge John Jones of the Middle District of Pennsylvania affirmed in part and denied in part the defendant’s motion. First, the court held Lycoming was a de facto manufacturer of the allegedly defective engine despite the fact the engine was subsequently modified (the installation of the faulty carburetor) by a separate company after it left Lycoming’s control. The court reasoned that even though Lycoming did not physically modify the engine, Lycoming was in exclusive control of the design and manufacture of the replacement component parts that were installed in the engine. Thus, this would subject Lycoming to potential products liability under PA law, and plaintiff’s claims should not be dismissed. Additionally, the court denied the defendant’s motion to dismiss the plaintiff’s negligence claims based, inter alia, on the following. Lycoming moved for summary judgment contending that the plaintiff failed to submit evidence that the defendant breached the applicable standard of care, thus, plaintiff’s negligence claims could not stand. The court had previously held that federal standards of care promulgated by the FAA apply in aviation cases such as this one and can be utilized by the plaintiff to show breach of duty. Since the plaintiff had submitted evidence of the breach of these federal standards, the court would not dismiss plaintiff’s negligence claims. Thanks to Colleen Hayes for her contribution to this post. http://www.pamd.uscourts.gov/opinions/jones/07v0886.pdf Previous Next Contact

News Hot Yoga Gone Wrong: Gym Saved by Exculpatory Clause in Member Usage Agreement January 7, 2022 < Back Share to: When it comes to slip and falls, one doesn’t usually think of a hot yoga studio in a luxury gym as a site rife with hazardous conditions. However, in New Jersey, the Appellate Division had to examine a summary judgment decision in a case where plaintiff allegedly slipped and fell on sweat on the floor of a hot yoga studio in Florham Park. Skarbnik v. Life Time Fitness, Inc., 2021 WL 3923270 (App. Div. 2021). In Skarbnik, the Appellate Division examined whether an exculpatory clause in plaintiff’s member usage agreement warranted a dismissal for defendant Life Time Fitness, Inc. Plaintiff, who had been a member of Life Time Fitness since 2011, signed a Member Usage Agreement that contained an assumption-of-risk provision which essentially stated that by signing the agreement, plaintiff understood that there was an inherent risk of slip and fall injuries arising from the use of equipment and services at Life Time Fitness. There was also a release of liability provision in the member usage agreement whereby plaintiff agreed to waive any claim arising against Life Time Fitness for personal and bodily injury resulting from the negligence of Life Time Fitness. Plaintiff’s complaint alleged that Life Time Fitness created a dangerous condition consisting of a wet and slippery floor due to sweat and that Life Time Fitness failed to warn patrons of said dangerous condition. After discovery ended, the trial judge granted defendant summary judgment based on exculpatory language in the member usage agreement. Plaintiff appealed stating that the member usage agreement was too broad and unconscionable. The Appellate Division affirmed. While noting that exculpatory clauses are generally disfavored for incentivizing careless behavior, the Appellate Division distinguished special assumption-of-the-risk clauses in the context of private gyms from other exculpatory clauses. The Appellate Division stated that a private gym cannot insulate itself through an exculpatory clause from the ordinary duty of care owed by all businesses to its invitees seen in “garden variety slip and fall case” such as where someone slips on the tread of a stair. However, the Appellate Division held that “slipping on sweat while exiting a ninety-degree-heated and darkened hot yoga studio is not the type of accident that ‘could have occurred in any business setting’, but was related directly to plaintiff’s participation in defendant’s hot yoga class.” Id. at 4. Therefore, while an exculpatory clause in a contract might not be held enforceable for “garden variety” slip and falls, where the exculpatory clause has language pertaining to assumption-of-the-risk and the plaintiff was participating in an activity that places themselves in harm’s way, and the defendant has not acted in a grossly negligent manner, then the exculpatory clause may be enforced. Thanks to Brendan Gilmartin for this contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Judge Arrests Former Juror Regarding Personal History Not Provided To Attorneys February 17, 2012 < Back Share to: Jurors are unpredictable. While in the vast majority of cases the jurors act in an ethical manner, sometimes a juror's actions cross the line. Such is the case in the ongoing saga of United States v. Daugerdas, a federal tax shelter fraud case. In Daugerdas, Southern District of New York Judge Pauley had to issue an arrest warrant for one of the jurors involved in that case to determine if a new trial was warranted. The juror was subpoenaed to testify at a hearing. The juror refused to appear, and was arrested by U.S. Marshals. Apparently, the juror failed to inform the attorneys that she had a criminal history, that she was a suspended attorney, and that her husband was a convicted felon who had served seven years behind bars in New Jersey. When finally questioned about her failure to tell the truth during voir dire, she responded that she was a fair and impartial juror. We'll see if the trial court agrees! If you have any questions or comments about this post, please cnotact David Tavella at dtavella@wcmlaw.com .   Previous Next Contact

News Personal Injury Action Leads to Wrongful Death Action (NY) June 21, 2019 < Back Share to: In Halloran v Kiri, plaintiff-decedent, who was involved in a motor vehicle accident in 2007 injuring her left shoulder, underwent a number of surgeries to treat the injury. Over the course of the 5 years leading up to her death, plaintiff-decedent received prescriptions for narcotic pain medication from her treating orthopedic surgeon, a pain management specialist, and two other doctors before beginning treatment with defendant Kiri. Her previous treating physicians denied her requests for further prescriptions when decedent exhibited opioid-seeking behavior. Decedent first presented to Dr. Kiri in August 2012 with complaints of chronic pain. Dr. Kiri initially refilled decedent’s high-dose oxycodone prescription, then switched to fentanyl patches, but discontinued the prescription when decedent claimed a skin rash. Ultimately, Dr. Kiri restarted the high-dose oxycodone prescription, and eventually began prescribing decedent Xanax for anxiety as well. Dr. Kiri treated decedent for 14-months until her fatal accidental overdose, never lowering decedent’s prescriptions despite personal notes in decedent’s file stating that medication needed to be lowered. Plaintiff’s family sued asserting causes of action for wrongful death, medical malpractice, negligence, and lack of informed consent. Defendant moved for summary judgment dismissing the complaint on the grounds that decedent’s death was not proximately caused by Dr. Kiri’s acts or omissions. The lower court denied defendant’s motion. The Appellate Division, First Department, found that Kiri failed to meet his burden for summary judgment on causation as decedent's use of illicit drugs was not unforeseeable, and therefore her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. The Appellate Division further found defendant’s policy argument that all doctors would have to become detectives before prescribing opioids unpersuasive, and opined that Kiri’s failure to obtain medical records, speak with decedent’s orthopedist, and heed signs of opioid abuse during his 14-month treatment of decedent raised an issue on deviation from accepted practice. Finally, the Appellate Division found that defendant’s expert’s opinions on informed consent were conclusory as they did not specify what risks should have been disclosed by Kiri to decedent before prescribing opioids and Xanax. This is a case of first impression in the appellate courts providing a malpractice cause of action for victims of opioid over-prescription which, given the opioid crisis, is likely to be further expanded or defined as new cases make their way to the appellate courts. Thanks to Margaret Adamczak for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News In PA, Delay Damages Can Only Be Awarded on Auto Policy’s Limits. January 17, 2013 < Back Share to: In Pennsylvania, an injured party can recover “delay damages”, i.e. interest that runs from the date suit is filed until the date of a favorable judgment for the plaintiff. The question that Pennsylvania’s Supreme Court, the state’s highest court, was recently called to address is whether an insurer can be forced to pay delay damages on an award that exceed the policy limits. In the case of Marlette v. State Farm Mutual Automobile Insurance Company, the controversy stemmed from a car accident in Pittsburgh between Richard Marlette (who was accompanied by his wife, Marleen Marlette) and an uninsured motorist, Herman Jordan. Jordan crossed the centerline and sideswiped the Marlette’s car, leaving Mr. Marlette seriously injured and impairing his future earning capacity. After trial, the jury awarded damages of $550,000 to Mr. Marlette for bodily injuries and $150,000 to Mrs. Marlette for loss of consortium. The trial court molded the $700,000 verdict to fit the Marlette’s uninsured motorist policy with State Farm, which was capped at $250,000. The Marlettes then filed a motion for delay damages on the jury verdict, which was granted. Although the delay damages granted were calculated based on the molded jury verdict, they still caused the total amount of damages collected by the Marlette’s to exceed the insurance cap of $250,000. Thereafter, both the Marlettes and State Farm filed appeals and the case ultimately ended up before the Supreme Court of Pennsylvania. The Supreme Court limited its review to the question of whether delay damages should be awarded on the jury verdict or the policy limit. Ultimately the Supreme Court ruled that delay damages can only be awarded on the policy’s limits and not the jury verdict. One questions whether the result would have been the same if the Supreme Court had been faced with a commercial general liability policy affording third-party coverage. It appears to us that the answer would be “no” so the potential for significant extra contractual exposure remains. Special thanks to Thalia Staikos for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Muffin Man is Toast (PA) July 30, 2010 < Back Share to: We have previously reported on the case of Bimbo Bakeries and Thomas’s English Muffins -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=492 and http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=509. As you may recall, Bimbo Bakeries USA, the company that owns Thomas' English Muffins, sued former executive Chris Botticella in United States District Court for the Eastern District of Pennsylvania. Bimbo alleged that Botticella is one of few people in the world who knows the secret recipe (i.e., nooks and crannies) for Thomas' English Muffins, and signed a confidentiality agreement in March 2009. Botticella later accepted a position at Hostess, and Bimbo claims that Botticella "will inevitably disclose to Hostess" details of the recipes involved in the confidentiality agreement. Such disclosures would cause irreparable damage to Bimbo, and Bimbo argues that they should not have to sit around and wait to see "nooks and crannies" in Hostess products before seeking relief from the courts. A preliminary injunction was issued, and the 3rd U.S. Circuit Court of Appeals has now upheld the District Court’s injunction barring Chris Botticella from taking a new job at rival bakery Hostess Inc. The preliminary injunction, issued in February 2010, was set to expire in two months but Boticella’s attorneys appealed the injunction in the interim arguing it was based on an unreasonable application of the “inevitable disclosure” doctrine. The 3rd Circuit, however, found the evidence showed Botticella continued to work for Bimbo for several months after accepting his new job with Hostess and attended high level strategy meetings. In addition, Botitcella downloaded sensitive trade secret documents to an external drive just before his departure from Bimbo. The 3rd Circuit, applying Pennsylvania law, found that in granting injunctive relief in a trade secret case, a highly fact-specific inquiry must be made. Here, the case specific facts demonstrated a substantial threat of trade secret misappropriation and therefore the Court had the authority to bar Botticelli from beginning his employment with Hostess. http://www.ca3.uscourts.gov/opinarch/101510p.pdf Thanks to Chris O'Leary for his contribution to this post. If you would like further information about this post or WCM's IP practice, please e-mail mbono@wcmlaw.com Previous Next Contact

News Deposition Etiquette in Federal Depositions Is Clarified. October 7, 2010 < Back Share to: It seems self evident (although maybe not in Florida -- http://abovethelaw.com/2010/08/will-footsies-during-a-deposition-lead-to-sanctions/) that some types of behavior at a deposition are not acceptable. However, a question that constantly comes up is whether the lawyer can talk to her client during a break in the questioning. In the case of Chassen v. Fidelity National Title, a New Jersey federal court has just weighed in -- http://pdf.wcmlaw.com/pdf/Chassen.pdf In Chassen, during a break in questioning, Fidelity’s lawyer answered various questions that her client had. When questioning resumed, the plaintiff’s counsel sought to question the witness about conversations she had with her attorney. The lawyer refused and the matter went to the judge. The trial judge held that under “Fed. R. Civ. P. 30(c), examination at a deposition is to proceed as it does at trial. In fact, “[d]uring a civil trial, a witness and his . . . lawyer are not permitted to confer at their pleasure during the witness’s testimony. . . The same is true at a deposition.” Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993). Moreover, counsel and witness are prohibited from engaging in private, off-the-record conferences during any breaks in a deposition, except for the purpose of deciding whether to assert a privilege.” Questioning about the lawyer’s conversation with her client were thus allowed. Keep this in mind next time a federal depositon comes round. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Tent v. Structure: Battling Definitions Determine Whether An Insurance Company Is Liable (NY) June 23, 2023 < Back Share to: The language of a contract can have a lot to do with the ability to hold someone liable in a proceeding. This is extremely important for policies that include indemnity clauses or opt to change a policy over time to decrease the amount of coverage. In the case of Wesco Inc. Co. v. 333 W 46th Street Corp., there was a dispute over whether the definition of “structure” includes “tents.” In Wesco, the plaintiff alleged that they did not have a duty to defend the defendant who sustained an injury when he fell off a ladder while disassembling a commercial tent in a lot owned by the defendant. The policy issued from the plaintiff to the defendant excludes “bodily injury,” “property damage,” and “personal and advertising injury” that could come from (1) change, alteration, or modification of the size of any building or structure (2) movement of any building or structure” (3) “construction or erection of any new building or structure” and (4) demolition of any building or structure.” The court considered whether “structure” included a tent. Prior courts have set the standard that contracts need to be interpreted by the court narrowly according to their “plain and ordinary meaning,” with the burden being on the insurance company to state in a way that is “clear and unmistakable” The court turned to the dictionary, concluding that a tent falls under the definition of a “structure." In addition, the court looked at how "tent" has been defined in other cases and regulations, which indicates that tent and structure have been given the same definitions in the context of Labor Law disputes. This case highlights how basic language and who is determining the definition of a crucial term can change the scope of liability. Thanks to Jordan Joachim-James for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY Appellate Court Holds Plaintiff Not Culpable In Case Involving Falling Ladder September 17, 2009 < Back Share to: In Hauptner v Laurel Dev., LLC, the plaintiff was sitting at his deck when a ladder from an adjoining construction site fell and struck him. The plaintiff moved to dismiss the defendants’ affirmative defenses based on culpable conduct arguing that the defendants failed to show how the plaintiff caused or in any way contributed to the ladder falling into his yard. The lower court denied the plaintiff’s motion, but the Appellate Division reversed, stating that the affirmative defense was totally devoid of merit because there was no evidence whatsoever that the plaintiff expected that a ladder from the neighboring construction site would fall into his backyard. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_06458.htm Previous Next Contact