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News This and That--and a Significant WCM Appellate Victory for Jeweler’s Block and Fine Art Insurers Everywhere May 19, 2021 < Back Share to: As background to this important win in Crown Jewels Estate Jewelry, Inc. d/b/a Stephen Russell v. The Underwriters at Interest at Lloyd's London (a claim in which Crown sought indemnity for over $2 Million in stolen jewelry), I remind our readers of the wise admonition of the late Supreme Court Justice Scalia: Never present to an Appellate Court the question to be decided as an actual question; that is, if framed correctly, the correct answer ought to be evident in the question. And so, our Brief in Crown to the Appellate Division, First Department, framed the question in this fashion: COUNTERSTATEMENT OF QUESTIONS PRESENTED The insurance contract here at issue bars coverage – using the disjunctive “or” – for theft on the part of any person to whom any insured property “may be delivered or entrusted by whomsoever for any purpose whatsoever.” On agreed facts, the insured goods were delivered (handed over) to co-conspirators of the confessed thief. Analyzing controlling New York law and related precedent, the Trial Court (Honorable Barry Ostrager) ruled that no coverage existed for the theft of jewelry by a convicted felon, who created a fictitious presence on the internet as a Sony Music producer, because the insured property was, again on agreed facts, delivered by the insured to the thief’s co-conspirators. Is there any reason to disturb this well-supported decision? Answer: No. The ruling below must be affirmed. The wording in this exclusion in some form or other appears in most Jeweler’s Block and Fine Art policies. But relying on a California Appellate ruling, Crown contended that entrustments to an “imposter” created an exception to the Dishonest Entrustment exclusion. In an era of cybercrime, creating a false identity is child’s play for tech savvy thieves--and Sabatino, an alleged associate of the Gambino crime family, was a master con artist and a techno guru. The Court’s ruling and the legal press described Sabatino’s skullduggery in great detail, and I urge you to read the colorful details of Sabatino’s exploits recounted in the Court’s decision. The key to the Court’s ruling was the recognition, embedded in settled New York jurisprudence, that the act of entrustment is to be determined by the state of mind of the insured rather than that of the imposter recipient. With phishing and like scams growing by the day, the above distinction reaffirmed by the Court, is a distinction that truly makes a difference. We hope this precedent from the highly respected First Department, which is already getting press coverage in the world of insurance, aids other insurers facing imposter or other deception claims. And that’s it for this This and That. If you have any questions about this important ruling, please call or email Dennis Wade. Previous Next Contact

News WCM Obtains Favorable Result in Philadelphia Premises Arbitration. February 13, 2017 < Back Share to: Philadelphia office associate Peter Cardwell recently obtained a favorable result in a Philadelphia County trip and fall case. In Quarles v. 1800 North 17th St LLC, et. al., the plaintiff alleged that she tripped and fell due to a defective sidewalk condition on our client’s property located at 12th and Diamond Streets in North Philadelphia near Temple University. The plaintiff argued that our client negligently maintained its property by allowing a defect to occur. In opposition, we argued that our client could not be held liable for the plaintiff’s alleged injuries because she did not establish that our client had actual or constructive notice of any alleged defect. In addition, we argued that any finding of liability upon our client must be diminished by the fact that the plaintiff was comparatively negligent, that there were numerous inconsistencies in her story, she only suffered soft-tissue injuries which are fully healed, she stopped seeking medical treatment, she had less than $1,000 in lost wages, and she had no outstanding medical bills. The arbitration panel agreed with our assessment and awarded the plaintiff damages that were significantly lower than the plaintiff's pre-arbitration demand. For more information about this post, please e-mail Bob Cosgrove. Previous Next Contact

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News Plaintiff Recovers Lost Earnings Despite His Expert's Failure To State Plaintiff Can't Work December 9, 2011 < Back Share to: In Abrahamsen v JMK Bldg. Corp., the plaintiff, a carpenter, was injured when he fell through an opening in the floor that had been covered by a piece of unsecured plywood. After the close of evidence, the trial court denied the plaintiff's request to charge the jury as to past and future lost earnings on the ground that the plaintiff had not produced expert testimony opining that the plaintiff could no longer work because of his injuries. The plaintiff had conceded that he had not looked for work since the accident. However, the Appellate Division held that the trial court erred and ordered a new trial on damages. In finding that the plaintiff set forth sufficient evidence to warrant a jury charge regarding lost earnings, the court emphasized that the plaintiff met this burden with his testimony that he couldn't work; a psychologist's testimony that the plaintiff was "effectively unemployable" as a result of his injuries and his learning disability; the testimony of the plaintiff's orthopedic surgeon that the plaintiff's injury was permanent and his prognosis was poor,;and the parties' medical experts agreed that the plaintiff was physically unable to work as a carpenter as a result of the subject accident. http://www.nycourts.gov/reporter/3dseries/2011/2011_08889.htm Thanks to Bill Kirrane for his contribution to this post. Previous Next Contact

News Policyholders Inflate Estimates At Their Own Risk (PA) October 1, 2021 < Back Share to: A recent decision from the United States District Court for the Eastern District of Pennsylvania demonstrates the risks involved when an insurance policy holder inflates the replacement value of the property covered under their commercial insurance policy. See State Auto Prop. & Cas. Ins. Co. v. Sigismondi Foreign Car Specialists, Inc. No. CV 19-5578, 2021 WL 1343116 (E.D. Pa. Apr. 12, 2021). The insurance policy at the center of the case was executed between State Auto, a commercial insurer, and Sigismondi Foreign Car Specialists, an automobile sales and repair business in Philadelphia. In January 2019, the auto shop presented a claim under the policy for water damage to the building and the business’ automobile inventory. The auto shop hired a public adjuster and an appraiser to calculate the value and replacement cost of the automobiles it had in inventory that were damaged. However, the owner of the auto shop then allegedly substituted in his own replacement cost figures. As the court put it, “Many of those figures were substantially greater than the values determined by [the adjuster and appraiser].” To support these inflated values, the owner allegedly fraudulently altered vendor invoices and submitted them to State Auto. He allegedly later admitted in deposition testimony that he used computer software to alter these invoices. State Auto denied the auto shop’s claim under the insurance policy citing misrepresentation. Ultimately, State Auto was victorious on a Motion for Summary Judgment when the court held that the auto shop violated the “Concealment, Misrepresentation or Fraud” condition of the insurance policy and therefore State Auto was not obligated to provide coverage for the claim. This case shows that an insurer or its counsel should typically obtain a reliable valuation to ascertain whether the policyholders’ claims are within the realm of reason. Thanks to Jason Laicha for his contribution to this post. If you have any questions, please email Matthew Care. Previous Next Contact

News Does Fewer Super-Rich = More Fine Art and JB Claims? August 21, 2009 < Back Share to: According to the New York Times, that class of people known as the "super-rich" is declining. Since the members of this class are most likely to possess jewelery, works of art and other valuable objects insured by the specialty markets, the question is -- will claims increase as the now "merely rich" search for new ways to pay off their debts and/or maintain their lifestyles? http://www.nytimes.com/2009/08/21/business/economy/21inequality.html?_r=2&ref=business Previous Next Contact

News Summary Judgment Granted in Favor of Plaintiff in Trip and Fall on Sidewalk Upon Determine that There was a Substantial Defect of the Sidewalk July 12, 2024 < Back Share to: ​ Polibio Abreu tripped and fell on a sidewalk adjacent to 129 Duane Condominium. His left foot contacted an uneven sidewalk flag, over which he tripped and fell, causing injuries that required acervical fusion. At the time that he fell, Abreu testified that he was looking straight ahead, his hands were empty, and his cell phone was in his pocket. He also alleged that the sidewalk was dimly lit at that time. The property manager of 129 Duane testified that 129 Duane was aware of the condition of the sidewalk prior to the accident, and that he had notified the Board of 129 Duane of the uneven flag. He further testified that the adjoining property had redone their sidewalk and he thought that the condition needed to be repaired by the adjoining property, 200 Church Street Associates LLC. The court noted that as a general matter, 129 Duane has a “non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.” The court found that it was undisputed that the sidewalk flag was in front of 129 Duane’s property. Even still, 200 Church’s potential responsibility for the sidewalk maintenance did not create an issue of fact regarding 129 Duane’s failure to maintain the sidewalk. Abreu produced a photograph with a ruler showing the height differential to be more than one-half inch deep. The court deemed this differential to be a “substantial defect” as defined by the Administrative Code. A “substantial defect,” is not so easily defined. Therefore, to have this example is helpful for our analysis when assessing the liability in other sidewalk cases. Although 129 Duane argued that the defect was “open and obvious,” the court found that the Defendant was unable to demonstrate that the defect was open and obvious in a manner that should preclude liability. The photographs provided were taken during the day and Abreu testified that the lighting was dim when he tripped. The court found that even if they did find the defect to be open and obvious, it would only relieve the 129 Duane of its duty to warn of the defect and not preclude liability for allowing the defect in the first place. This case stands for the proposition that when making an argument that a defect is open and obvious, we must also establish the property owner was not liable for the defect in the first place. Because even though the defect may be open and obvious, if a property owner knew of the defect and failed to remedy it, they still may be liable. Abreu v. Brutus Assoc .pdf Download PDF • 728KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Slipped not Spoiled – Appellate Division Overturns Spoliation Charge in Slip and Fall Action (NY) February 15, 2019 < Back Share to: In Sarris v Fairway Group Plainview LLC, plaintiff was allegedly injured when she slipped and fell on ice in a parking lot outside the store operated by defendant. Her counsel sent a demand to defendant to preserve “any and all video footage depicting the location of my client’s accident” and the Supreme Court ordered them to “preserve such footage of the incident, including the 24 hours preceding same”. The store had four separate security cameras. The store’s security manager testified that one camera showed plaintiff’s accident. Footage from that camera, including the ten hours preceding the accident, were preserved. The footage from the other cameras was automatically deleted after 30 days, the normal protocol for the cameras. Plaintiff moved for spoliation of evidence against defendants for deleting the other videos. The Supreme Court partially granted the motion partially, allowing for a negative inference charge to be given at trial. The Appellate Division ruled that the Supreme Court improvidently exercised its discretion and overturned the ruling. The Court held that the defendant was not on notice to preserve the other footage because it was only ordered to preserve the footage of the actual accident. The case provides a valuable lesson for all litigants. First, direct your clients to save as much as possible, if not for anything else to avoid unnecessary discovery litigation. Second, when making requests for discovery, be as specific as you are able to be. If you want all the security footage a party has, say that, don’t limit it to the accident where it occurred. Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Take My Wife... Please! (NY) May 3, 2018 < Back Share to: The late Henny Youngman would have enjoyed the facts of Ostego Mutual v. Dinerman, (May 1, 2018), where a wife's fraudulent misrepresentation in a property damage claim nearly prejudiced her husband's, through no active fault of his own. The Appellate Division, First Department found that one of the named insureds, Mrs. Dinerman, had committed fraud related to the policy and thus was not covered. But the policy was not void as to defendant’s husband, also a named insured, simply due to the wife's fraudulent acts. However, the Court found that Mr. Dinerman failed to timely file a proof of loss and as such violated the policy provisions. Defendant, Mrs. Dinerman, was found to have violated the “Misrepresentation, Concealment and Fraud” condition of the homeowners policy issued by plaintiff when she submitted receipts for reimbursement for living expenses that she did not actually incur after a fire damaged their home. Dinerman claimed that the amount was minimal and as such it should not void the policy as to her. The Court found this argument unveiling and stated that the amount of fraudulently obtained monies is not the issue, the fact is that she violated the policy and as such it is void as to her. As for Mr. Dinerman, the Court found that his claims under the policy would withstand his wife’s fraudulent misrepresentations and the policy is not void as against him. This is an interesting position for the Court to take in light of the fact that the policy covered a shared home and would in effect be covering some loss of Dinerman even though she violated the policy. However, the court found that Mr. Dinerman also violated the policy in his own way, thus permitting plaintiff to decline coverage. Mr. Dinerman did not alert his insurance company about the damage or provide proof of loss within the prescribed time period. As such, the plaintiff insurance company had a right to decline coverage. This case presents an interesting question as to whether Mr. Dinerman would have been permitted to recover under the policy absent his failure to provide proof of loss, even with his wife’s confirmed fraudulent behavior. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Achieves Defense Verdict and Favorable Verdict in Harrisburg, PA Jury Trial October 11, 2022 < Back Share to: WCM Partner Bob Cosgrove obtained a defense verdict and favorable verdict in a four day jury trial in Harrisburg, PA. In the case of Joel and Barbara Turk v. Susquehanna Township EMS and Beth Miles, Joel Turk, a dentist, was being transported to the hospital by Susquehanna Township EMS and its EMT Beth Miles. During the course of the transport, Beth Miles lost control of the ambulance and crashed into two trees and one pole – the accident was so significant that Beth had to be cut out of the ambulance with the jaws of life. Joel Turk claimed that the accident exacerbated pre-existing back injuries that rendered him unable to return to work as a dentist and caused him more than $500,000 in past and future lost wages. His wife Beth made standard loss of consortium claims. Plaintiffs claimed that Susquehanna Township EMS was negligent in its hiring, training and supervision of Beth Miles and that Beth Miles was negligent in her operation of the ambulance. After hearing all of the evidence, the 12 person jury unanimously determined that Susquehanna Township EMS was not negligent, but found that Beth Miles was 100% negligent. The jury rejected, however, the plaintiffs’ claims that the injuries suffered in the accident were life altering. They awarded total damages of $31,165.01 – an award that included $2,804.46 in stipulated out of pocket medical expenses and $6,860.55 in stipulated incidental expenses. No money was awarded for the loss of consortium claim, $15,000 was awarded for a loss of past income and $6,500 was awarded for pain and suffering. For more information about this case or WCM’s trial practice, please contact Bob Cosgrove. Previous Next Contact

News Watch Your Step April 27, 2010 < Back Share to: In Grabowski v. Consolidated Edison Company, the plaintiff was injured when he fell from a wooden bench that was used to provide access to a work trailer. The door to the trailer was two to three feet off the ground and the seat of the bench was midway between the door and the ground. The plaintiff moved for summary judgment arguing that the defendants violated Labor Law § 240 (1) and the defendants cross-moved to dismiss the 240 (1) cause of action. The lower court granted the plaintiff's motion. On appeal the Appellate Division reversed, holding that the bench that the plaintiff fell from was used as a stairway for the trailer and did not fall within the purview of Labor Law § 240 (1). Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03277.htm Previous Next Contact

News New Trial Ordered for Prejudicial Remark by Plaintiff’s Counsel (PA) November 21, 2017 < Back Share to: On November 16, 2017, the Superior Court of Pennsylvania ordered a new trial in Buttaccio v. American Premier Underwriters, Inc. after plaintiff’s counsel made prejudicial comments and violated a preclusion order during the underlying trial. The court also decided on several other evidentiary issues. In the underlying case, plaintiff Mike Buttaccio, brought a claim against his former employers alleging occupational injuries and resulting economic damages. Buttaccio was a repairman for Penn Central and Conrail for around forty years. He alleges that his years of heavy work resulted in career-ending shoulder, knee, and carpal tunnel injuries. The jury found for Buttaccio for $600,000. The defendants appealed on the issues of: 1) should the plaintiff’s liability expert should have been excluded; 2) should a new trial be ordered since plaintiff’s counsel violated a preclusion order and made prejudicial comments; and 3) should evidence of other claims been admitted. Appellants argued that plaintiff’s ergonomics expert should have been excluded since his methods were not generally accepted in the field and he failed to objectively measure factors. In Pennsylvania, a person qualified as an expert may testify if: 1) their knowledge is beyond that of the average person; 2) their testimony will help the trier of fact; and 3) their methodology is generally accepted. Upon review, the Superior Court agreed with the trial court and found that the expert’s testimony was admissible since it was based on his decades’ worth of experience, education, and on publications from NASA, OSHA, and the Federal Railroad Administration. In addition, it found that the computer program that the expert used to measure factors was generally accepted in the field. The Superior Court did agree, however, with the appellants’ second argument that a new trial should be ordered. During trial, the court granted defendants’ motion to preclude any mention by plaintiff that there was inadequate manpower during his work. Despite this, plaintiff’s counsel made numerous statements on the record mentioning an alleged inadequate manpower. The Superior Court also granted a new trial on the basis that the trial court failed to properly instruct the jury and/or grant a mistrial when plaintiff’s counsel mentioned that two other employees were killed during a cross-examination. The court argued that this statement highly inflammatory and could serve to prejudice the jury against the defendants. This case demonstrates the importance of going into trial with an overall plan when it comes to evidence. As seen above, by properly preserving issues, whether through pre-trial or evidentiary motions or objections during trial, counsel can limit the plaintiff’s case by cutting off certain evidentiary avenues. This can then set up the case for a dismissal or for a new trial. Thus, by properly analyzing the evidence and what you think plaintiff’s counsel will try to introduce, one can set up the case for an endgame with a favorable defense verdict or dismissal. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact