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News SDNY Among Federal Courts Rejecting Claims For Coverage Of COVID-19 Business Losses August 19, 2022 < Back Share to: Two recent SDNY decisions highlight the national consensus among courts across the country to rejects insureds’ claims for coverage of pandemic business losses. According to Law360’s COVID-19 Insurance Case Tracker, these two cases are among nearly 1,400 federal cases across the country since the pandemic began. About half of all such federal cases have been dismissed. Of Interest previously covered developments at the state level, the New Jersey Appellate Division, that continued the national trend upholding insurers’ denial of coverage for business losses during the pandemic. JRLDDS LLC d/b/a Jeffrey R. Lemler, DDS v. The Hartford Financial Services Group and Trumbull Insurance Company, 21-CV-9487 (JMF), (S.D.N.Y. Jul. 29, 2022) In JRLDDS v. The Hartford Financial Services Group and Trumbull Insurance Company, the Court began its discussion referring to the “more than six dozen decisions applying New York law (…) to claims of the sort made by” the insured in this case. Plaintiff, a dentist, held an all-risk insurance policy that covered business interruption losses and “direct physical loss of or damage to” his business property. When the insurer denied coverage, plaintiff sued for breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the NYGBL, and unjust enrichment. The Court granted defendants’ motion to dismiss for failure to state a claim and relied on the rationale of the dozens of cases that had already decided similar issues: 1) Direct physical loss of or damage to property does not encompass “loss of use” of business facilities; 2) The “presence of the COVID-19 virus in the air and on the surfaces” of an insured premise does not “constitute[] ‘direct physical loss or damage to’” property; 3) COVID-19 shut-down orders did not trigger coverage because they “were the result of the COVID-19 pandemic and the harm it posed to human beings, not … risk of physical damage to property.” BROADWALL Management Corp. et al, v. Affiliated FM Insurance Co., 21-CV-10247 (PAE), (S.D.N.Y. Aug. 1, 2022) In dismissing this plaintiff’s amended complaint, the Broadwall Court similarly referred to the “avalanche of authority” in New York courts that has determined that “while the presence of COVID-19 may render property potentially harmful to people, it does not constitute harm to the property itself.” Both SDNY cases above relied on the Second Circuit’s 2021 decision in 10012 Holdings, Inc. d/b/a Guy Hepner v. Sentinel Insurance Company, Ltd which held that an art gallery was not entitled to coverage for business losses it suffered during the pandemic and related government restrictions because a loss of use of its premises did not constitute actual physical loss or damage to the property. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions Previous Next Contact

News PA’s Highest Court – A Successful Carrier Can’t Always Get Its Money Back. August 25, 2010 < Back Share to: In the case of American and Foreign Insurance Company, et al. v. Jerry’s Sport Center, et al., the insurers assigned defense counsel (under a ROR) to defend a number of gun dealers who had been sued by the NAACP for the “negligent creation of a public nuisance by virtue of the industry’s failure to distribute firearms reasonably and safely.” After investigating the facts, the carriers commenced a declaratory judgment action to obtain a declaration of no coverage – an endeavor that was successful. After winning, the carriers asked the court to require the insureds to reimburse the insurers for all paid defense fees as, to require otherwise, would confer an unjust enrichment upon the insureds. The trial court agreed. Appeals resulted. The question presented to PA’s highest court was whether the issuance of a ROR created a right of reimbursement (which is the majority US view), or if the insurance contract itself required a provision authorizing reimbursement (which is the minority US view). The PA Supreme Court adopted the minority view. It held that the right of reimbursement must be expressly set out in the insurance contract or it does not exist. http://www.pacourts.us/OpPosting/Supreme/out/J-48-2009mo.pdf and http://www.pacourts.us/OpPosting/Supreme/out/J-48-2009co.pdf. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News What is SOPA all about? January 20, 2012 < Back Share to: You may have noticed yesterday that your usual go-to research site, Wikipedia, was blocked. Your dismay, while understandable, was intended by Wikipedia personnel. The black-out was designed to bring awareness to the Stop Online Piracy Act currently circulating through the House of Representatives (the sister bill PIPA- Protect Intellectual Property Act is the Senate’s version). Both bills exist to combat what Congress sees as a problem with international websites that provide U.S. consumers with access to pirated intellectual property, such as movies and music. As a practical matter, the bills would give Justice Department prosecutors the ability to block the foreign sites from U.S. visitors. For example, the attorney general could require search engines to disable links to the sites or prevent credit-card processors from processing payments to the site. In addition, the bills would allow content owners like music studios and film production companies to sue websites that host pirated material. The problem with the bills, claim a multitude of internet-based websites and free-speech advocates, is that they are drafted so broadly as to inhibit speech on the internet. The bills require only a short good-faith letter that the website is allegedly hosting pirated content. Once the letter is received, the website has only five days to either shut down the site or contest the letter in court. Opponents claim that is impossible for websites with huge amounts of user-generated content, such as Facebook and twitter, to determine what material is pirated. What would SOPA mean for you? If SOPA (or PIPA) were legalized in their current forms, every website host would need to be extremely vigilant about material, especially interactive media, posted on their site in order to ensure that none of the material is pirated. There has been a huge outcry against the bills from non-traditional media outlets all over the county and President Obama has publicly stated he would not sign either SOPA or PIPA into law in their current forms. WCM is following the progress of the bills and will update the site periodically as new information comes available. Remy Cahn   Previous Next Contact

News Bus Driver Not Liable For Rowdy Passengers (NJ) January 5, 2018 < Back Share to: In Dawkins v. One Bus, the New Jersey Appellate Division considered whether expert testimony was required for a plaintiff to pursue claims against a bus company for the driver’s failure to contact her dispatcher when rowdy teens boarded the bus. Plaintiff was riding in a bus operated by defendant when four teenagers boarded the same bus. At the bus stop, one teenager boarded at the front of the bus, while the remaining three teenagers boarded at the bus’s rear door without paying their fares. According to plaintiff, the teenagers “were standing in the aisle of the bus . . . being rude to other passengers [and] . . . talking bad about some passengers.” The bus driver informed the teenagers entering at the rear doors that they would have to board via the front entrance and pay their fares. However, the teens refused and remained on the bus. As plaintiff was exiting at the bus’s rear doors, one of the teenagers kicked plaintiff in the back, causing her to slide down the rear steps of the bus. Another teenager also threw a bottle of bleach at plaintiff’s face. Plaintiff filed suit, alleging her injuries occurred as a result of the defendant bus company’s negligence. Plaintiff served a liability expert report, who opined that: (1) the driver should have immediately contacted the dispatcher when the teens boarded the bus and failed to pay their fare; and (2) the driver should have contacted the dispatcher when it was obvious that the teens were harassing other passengers. At the conclusion of discovery, the trial court granted defendant’s motion for summary judgment, finding no link to demonstrate that if the driver had contacted the dispatcher, the incident could have been prevented. The trial judge also found plaintiff’s expert unqualified to render his opinions since he lacked a foundation based on any objective standard. On appeal, the Appellate Division affirmed the trial court’s decision and agreed that plaintiff failed to demonstrate by competent evidence that defendant owed her a duty, that there was a breach of that duty, and that her injuries were caused by defendant’s breach. Specifically, the Appellate Division reasoned that there was no evidence that the bus driver was aware of any threats to the passengers. Under a totality of circumstances analysis, there was no evidence that any foreseeable harm would come to the passengers, let alone that a passenger would be kicked and then assaulted with bleach. Without any information regarding the danger to the passengers, there were no reasonable steps the driver could have taken to protect plaintiff. Lastly, the Appellate Division found that plaintiff’s expert report and testimony failed to support that the generally accepted standard is for a bus driver under similar circumstances is to contact the dispatcher. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Private Information Posted to Social Media Accounts To Be Produced When Relevant March 20, 2018 < Back Share to: The issue of discovery access to a party’s private social media postings had not previously been addressed by a Pennsylvania appellate court. The Monroe County Court of Common Pleas dealt with this question in Roth v. Great Wolf Lodge of the Poconos, LLC by referring to trial courts from other jurisdictions. It held that there was no evidentiary threshold that a party seeking private information from a social media account needs to meet so long as it can show that such information is relevant to the other party’s claims. In Roth, plaintiff, Michael Roth, claimed he collided with his daughter on a waterslide at the Great Wolf Lodge. Great Wolf Lodge demanded the Facebook wall posts of Michael and his wife, Lauren, made during the year immediately prior to the alleged accident and the year after. The Roths refused to comply. They objected on the grounds that Great Wolf Lodge failed to produce any evidence indicating that the private sections of their Facebook accounts would provide relevant information and argued that Great Wolf Lodge was entitled only to information posted to the public sections. Great Wolf Lodge filed a motion to compel responses to its requests for the private information. Without any binding Pennsylvania precedence, the court relied primarily on three cases from different federal district courts. The first, Georgel v. Preece, a Kentucky federal case, required an evidentiary bar, holding that private information from social media accounts is discoverable only if the party seeking the information can show that the other party’s public postings contain information that undermines that party’s claims. At the other end of the spectrum was Higgins v. Koch Development Corp., an Indiana federal case that held that all social media postings were relevant and required to be produced without any evidentiary showing by the party seeking the information. Finally, Giachetto v. Patchogue-Medford Union Free School District, a New York federal court held that the proper method was to have the non-seeking party’s counsel review the information and determine what is relevant to the claims, keeping in mind the broad scope of discovery. The Roth court favored the approach from Giachetto. It opined that imposing the Georgel evidentiary bar could shield relevant evidence from disclosure merely because a social media user chose not to share any information publicly. A more balanced approach was adopted. The court decided that counsel for the Roths would have to review the Facebook accounts for private postings related to the alleged accident, and the Roths’ ability or inability to enjoy physical activity, which it deemed relevant to the Roths’ claims. Thanks to Robert Truchick for his contribution to this post.     Previous Next Contact

News Technology Is Evolving – Data Privacy Laws Are Finally Catching Up July 8, 2022 < Back Share to: On June 21, 2022, the American Data Privacy and Protection Act (ADPPA) was released by the House Committee on Energy and Commerce. The purpose of the Act is to instill uniformity among members of the privacy community and those impacted by privacy legislation. Because states have enacted their own privacy laws, uniformity among multi-state sectors is long overdue. The Act is the first bipartisan, and bicameral comprehensive privacy and data security proposal. Further, the practical purpose of the bill is as follows: (1) provide consumers with foundational privacy rights – such as requiring affirmative consent to allow companies to share sensitive and private information; (2) create oversight mechanisms to ensure data is properly stored and protected; and (3) to establish meaningful enforcement. While this is not a complete list, this legislation proposes pivotal changes in the following areas: (1) protecting the rights of children and minors by monitoring marketing directed at minors; (2) requiring the Federal Trade Commission to establish a publicly available central registry of data brokers whose principal source of revenue is derived from processing protected data; (3) requiring all non-exempt entities to appoint a Chief Privacy Officer subject to annual executive certifications and biennial audits; and (4) establishing a uniform standard of industry-based terminology such as “sensitive data”. It is no secret that technology evolves faster than legislators create laws, however the American Data Privacy and Protection Act is well overdue to protect consumers, as well as entities, from unfair and invasive data collection practices. Thanks to Paige Baldwin for her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Which County You Buy In Matters for Venue (PA) June 1, 2017 < Back Share to:   The Superior Court of Pennsylvania recently affirmed the Philadelphia Court of Common Pleas’ decision to grant defendants’ preliminary objections in Faust v. BMW et al. The plaintiff, Max Faust, was a passenger in a motor vehicle accident in Lancaster County, and suffered injuries when his airbag deployed. He sued the vehicle’s manufacturer, BMW, its subsidiaries, and the dealer that sold the vehicle, N&H, LLC. The defendants filed preliminary objections asserting that Philadelphia was an improper venue for the suit. The trial court granted the objections and Faust appealed. In cases involving multiple defendants, if venue is proper for at least one defendant, then it is proper for all defendants. In Pennsylvania, venue is proper in any county where a defendant regularly conducts business. Courts use a quality-quantity test to see if a defendant regularly conducts business in a county. Quality of contacts will be found if the acts are essential to an entity’s objective and existence. Acts that merely aid a main purpose but are not essential to a business’s survival are collateral and will not suffice. Mere solicitation of business in a county does not amount to an essential act by a business. Faust pointed to numerous acts that BMW performed as evidence that it regularly conducts business in Philadelphia, including mailing advertisements, holding events, radio advertisements, attending the Philadelphia Auto Show, and having numerous customers who live in Philadelphia. The trial court found that BMW’s main objective was the sale and/or lease of its vehicles. The court then found, which the Superior Court agreed with, that nearly every piece of conduct that Faust pointed to in the record was merely solicitation in Philadelphia. In fact, the court noted that Faust provided no evidence that any vehicle sales or leases were ever consummated in Philadelphia. In addition, the court disagreed with Faust’s assertion that because Philadelphia residents purchased BMW’s that venue was proper. The court, instead, stated that the purchase of goods or services in one county by residents of another is insufficient to establish venue in the purchaser’s home county. This case highlights the importance of analyzing exactly where goods and services were purchased in a case in order to determine proper venue. By carefully looking at where a plaintiff or party purchased something and where a business regularly conducts business, a defendant can have a case transferred to or kept in a more defense friendly jurisdiction. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

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News Bus Driver Or Security Guard…Court Says Act Like Both (NJ) July 19, 2019 < Back Share to: In Maison v. NJ Transit Corp., the plaintiff was accosted by a group of unruly teenagers while riding on the bus. While aware of the situation, the New Jersey Transit bus driver failed to intervene, believing that the plaintiff had the situation under control. As plaintiff exited the bus, one of the teenagers struck her the head with a glass bottle, causing severe injuries. A jury found defendant New Jersey Transit responsible and awarded the plaintiff 1.8 million dollars. Unhappy with the verdict, defendant New Jersey Transit filed an appeal, claiming numerous errors made by the trial court. One basis of the defendant’s appeal was the trial court’s denial of defendant’s motion to dismiss plaintiff’s claims for failing to provide an expert report or testimony regarding the standard of care owed by the defendant. On appeal, the court noted that a plaintiff is not always required to present expert testimony, and the necessity of expert testimony is within the discretion of the trial judge. The facts of this particular case fell within the “common knowledge exception,” which essentially means that expert testimony is only required when a matter is so esoteric that jurors of common knowledge and experience cannot form a valid judgment. In this case, jurors without any advanced knowledge could have concluded that the bus driver should have done something to assist the plaintiff. Accordingly, the Appellate Court upheld the trial court’s determination that the plaintiff was not required to provide expert testimony for this particular case. Thanks to Heather Aquino for her contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Careful What You Destroy February 4, 2016 < Back Share to: In Awon v Harran Transp. Co., Inc., the Second Department reaffirmed the importance of proving that the destruction of evidence has prejudiced a party that seeks to strike pleadings based on spoliation of evidence. If the destroyed evidence prevents an adversary from defending a claim or allegation, the party that destroyed the evidence is subject to severe sanctions. This principal even extends to situations where the destruction was not willful or contumacious. Conversely, if the evidence lost is not central to the case, the destroying party may escape unscathed, without any sanctions being imposed. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00638.htm Previous Next Contact

News One Word Makes All the Difference: PA Supreme Court to Weigh In on UIM Rejection Form June 8, 2016 < Back Share to: May 24, 2016, the Pennsylvania Supreme Court agreed to review a relatively discreet issue regarding the validity of an underinsured motorist coverage (“UIM”) rejection form in Ford v. American States Insurance Company. Specifically, the question before the Pennsylvania Supreme Court is whether an insurer’s UIM rejection form “specifically complies” with Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”). The underlying facts of the case arise out of a 2013 motor vehicle accident. Alisha Ford was seriously injured in a motor vehicle accident and sought UIM coverage from her mother’s insurer, American States Insurance Company (“American”). American rejected Ford’s request for UIM benefits because Ford’s mother explicitly rejected UIM coverage. Ford’s main contention is that her mother’s rejection form is invalid because the rejection form does not “specifically comply” with § 1731(c) of the MVFRL, which provides the form to be used in the context of rejection UIM coverage. The interesting part of Ford’s contention is that the rejection form signed by her mother and the form language in § 1731(c) only differs by one word. Specifically, the rejection form that Ford’s mother signed states, in part, that “Underinsured motorist coverage protects me and relatives….” Conversely, § 1731(c)’s rejection form states, in pertinent part, “Uninsured coverage protects me and relatives…” Accordingly, the only difference between the two forms is the inclusion of the term “motorist.” Both the trial court and the Superior Court found that the addition of the word “motorist” had no impact on the validity of the UIM rejection form. The Supreme Court’s decision on the issue will come down to whether strict compliance with § 1731(c) is required in order for a UIM rejection form to be valid. It will be interesting for sure to see how the Supreme Court rules in this regard. Thanks to Erin Connoly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Functional Capacity Exams Accepted In New York September 29, 2010 < Back Share to: In Cristiano v. York Hunter Services, the Kings County Supreme Court denied a protective order to a plaintiff who was seeking to prevent the admission of a Functional Capacity Examination (FCE). The FCE is used generally to gage a person’s ability to return to work. Plaintiff argued that the FCE is a novel scientific methodology that has not been shown to have been generally accepted by the relevant scientific community. The court rejected this argument by noting that the New York Appellate Division has previously held that FCEs are commonly relied on by physicians when making determinations on a patient’s ability to return to work. Therefore, the FCE was admissible. For more information on this post, please contact David Tavella at dtavella@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Cristiano.pdf Previous Next Contact