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News When is a House your Home? This Answer Will Cost Insurers in Pennsylvania October 23, 2020 < Back Share to: In Erie Ins. Exch. v. Montesano, the Montgomery County Court of Common Pleas heard an issue of first impression in deciding who was covered under “physically living” with another “on a regular basis” language in an auto insurance policy. Christiana Montesano was a 19-year-old girl who lived in her father’s Boyertown, Pennsylvania home. Her father and mother divorced when she was young and Christiana would typically spend approximately five weeks out of the year with her mother in Florida. After an incident between her and father/stepmother, Christiana boarded a flight to Florida and moved in with her mother for about one month. During that time, she changed her voter registration to Florida. Christiana the again packed up and settled in with her grandparents in Alabama for two months. Again, Christiana changed her driver’s license and voter registration to Alabama while also starting a seasonal job. The family then all agreed Christiana was to come back to Boyertown, her father’s residence. However, before Christiana could return to Boyertown, she was involved in a motor vehicle accident as a passenger with her sister driving. Christiana was injured and Christiana’s mother was killed. The Montesanos sought coverage under the auto insurance policy issued to Christiana’s father, Anthony and stepmother, Donna. The case of first impression required the Court to determine what “physically living” with another “on a regular basis” meant. Judge Thomas Rogers issued a declaratory judgement that the Erie Policy issued to Christiana’s father covered her, specifically holding “Christiana had physically lived in the Boyertown home for 19 years before hastily departing with a carryon bag and a few clothes, shoes, and toiletries and leaving behind all her worldly possessions.” Judge Rogers’ concluded that Christiana was a guest in the home of both her mother and grandparents and that her stays were sporadic and temporary. To add additional weight to this outcome, the Court considered the fact that, “Christiana was making her way from her grandmother’s home to her home in Boyertown at the time of the accident.” The impact of this case, of course, is that while an individual may not currently be “physically living” within the policyholder’s home at the time of loss, a court may look to numerous factors to determine what “on a regular basis” means, including a look at the totality of the facts. This decision certainly increases risk to auto insurance companies by increasing the amount of people that may be covered under the policy. More questions of fact will be litigated on coverage issues and it will also increase litigation costs. Who lives where is a question that appears to be changing daily. This decision will certainly involve judicial reviews over other factual scenarios such as the teen runaway, the college student, and even more prescient issues such as COVID-19 impact? This ruling’s application under the present climate opens the door for complicated factual analyses as to who “physically resides” where and what a “regular basis” is under the policy. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News WCM Victorious in Second Department Appeal Arising Out of a Personal Injury Burn Case February 1, 2013 < Back Share to: New York, NY Counsel Cheryl Fuchs and Associate Gabriel Darwick successfully convinced the Second Department to reverse a Brooklyn trial court decision that denied our client’s motion for summary judgment in a case involving burns allegedly sustained in a bathtub. In Mauskopf v. 1528 Owners Corp., the decedent was found in his bathtub with burns to the left side of his body. The then 95-year old died a month and a half later. There were no witnesses to the accident, but the decedent’s son claimed his father told him he was burned in the bathtub. We represented G. Bauer, Inc., a boiler service company that, upon request, performed repair and maintenance work on the burner of the building and otherwise performed annual Department of Building inspections of the boiler. We moved for summary judgment on the basis that plaintiff could not identify the cause of the decedent ’s injuries without resorting to hearsay or speculation. We also argued, that even if the decedent was burned in the bathtub, G. Bauer did not have a contract with the building to perform routine or systematic maintenance of the boiler, and never performed work on, or inspected the mixing valve that controlled the hot water temperature. The trial court judge denied our motion on the basis that there were “issues of fact”. The alleged "issues of fact" were not identified in the court's order. On appeal, the Second Department reversed the trial court and granted our motion on the basis that G. Bauer owed no duty to the plaintiff, as there was no evidence that G. Bauer’s work involved inspection or maintenance of the mixing valve. Previous Next Contact

News Janitor Keeps Logs, Building Prevails (NY) September 12, 2019 < Back Share to: In Thomas v. Sere Hous Dev Fund Corp.,the Appellate Division, First Department addressed the duty of care owed by a building to a plaintiff who gets injured on their property. The accident involved an individual who alleged injuries when he slipped and fell on a wet substance on the interior stairs of the defendant’s building. The defendant testified as to its janitorial schedule during a customary day. The Supreme Court, Bronx County denied the defendant’s motion for summary judgment, which was unanimously reversed by the Appellate Division. The Appellate Court stated that the defendant was able to establish a reasonable cleaning routine, which precluded liability. As such, the Court held that since the plaintiff failed to raise a factual issue that such routine was manifestly unreasonable, that summary judgment should have been granted in favor of the defendant. This case is a great example of the importance for building owners to implement a reasonable and regular cleaning routine as it can preclude them from liability. As exhibited in this matter, a reasonable cleaning routine can allow a case to be dismissed, without having to go through a strenuous and costly trial. Thank you to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News US Supreme Court Issues Important Product Liability Decision. February 26, 2010 < Back Share to: When litigating a claim, if the parties reside in different states, the claim may be brought in federal court, as opposed to state court, under diversity of citizenship grounds. If an action is brought in state court, and diversity of citizenship exists, the parties may request that the case be removed from the state court to the federal court. The issue of diversity is important since, most plaintiffs prefer to sue in state court, where the "home town" advantages are much more real, and thus defendants often try to remove the case to federal court. In a unanimous ruling on Tuesday, February 23, 2010, the United States Supreme Court has determined that for the purposes of diversity of citizenship, a corporation will be deemed a resident of the state only where the company’s executives maintain their offices. The Court held that the “principal place of business” is located at the “corporate headquarters” or “nerve center” where the corporation’s officers “direct, control, and coordinate the corporation’s activities.” This is an important ruling because although a corporation could sell their products in all fifty states, that corporation cannot be considered a resident of any state its products are sold, except the state in which its corporate headquarters is located. If someone claims they bought a defective product in their home state, they can no longer “hometown” the corporation in a product liability suit by bringing their action in their home state court. If the litigant attempts to gain the hometown advantage by commencing the action in state court, the corporation will be able to swiftly remove the case to federal court on the basis of diversity of citizenship. Effectively, this ruling provides corporations with another strategic avenue to increase the likelihood of fair litigation, without the claimant obtaining the hometown advantage. This ruling may also change the structure of class action suits, where one representative member is chosen from the class for the purposes of determining diversity. If the class wants to litigate in state court, the only state court option will be that state where the corporation is headquartered, and the representative of the class will have reside in the same state as the corporation. Corporations selling products in many states should be prepared to ask for removal to federal court any time they are sued in state court, and should expect to see an increase in federal litigation as a result of this decision. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Special thanks to Alison Weintraub for her contributions to this post. http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf Previous Next Contact

For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Fine Art and Specie For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Practice Lead Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Download Download

News Legal Malpractice Claims Barred Business Enterprise/Pursuits Exclusions January 17, 2013 < Back Share to: Professional liability policies are designed to cover errors and omissions committed by professional while providing or failing to provide services on behalf of their firms. Sounds simple enough. Problems arise when attorneys -or other professionals – act in different capacities, sometimes providing legal advice while at others offering business judgments or acting as “deal makers” for fledgling businesses. In Abrams, Fensterman, et al. v. Underwriters At Lloyd’s, London, a partner and his law firm found themselves in a real pickle over some business transactions that went bad. The underlying complaint alleged that the partner committed legal malpractice and engaged in fraudulent conduct when he induced the underlying plaintiffs to invest in a business formed to underwrite and sell insurance products. According to the disgruntled investors, when their seed money went missing, the law firm defendants falsely claimed that it was stolen by members of a royal family in the United Arab Emirates. Given the allegations of legal malpractice, the law firm defendants sought a defense and indemnification from their malpractice insurer. After some initial fact gathering, the insurer denied coverage citing two key policy exclusions commonly called the “business pursuits” and “business enterprise” exclusions. Closely aligned, these exclusions bar coverage for any claims arising out of or in connection with (1) a business “controlled, operated or managed by any insured” or (2) an insured’s activities as “a trustee, partner, officer, director or employee of a business " other than his law firm. Given the attorneys' alleged involvement in the formation, capitalization and management of the business venture, the court upheld the insurer's denial of coverage. Abrams, Fensterman reinforces that most professional liability policies seek to avoid assuming additional risk where an attorney “so intermingles his business relationships with his law practice” that the line between the two is blurred. When timely invoked, the courts will uphold those exclusions. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Disclaimer: This post is not intended to express any opinion on the merits of the allegations in the underlying lawsuit, which may or may not have any merit.   Previous Next Contact

News A Stairway May Constitute a Safety Device Under NY's Labor Law September 23, 2010 < Back Share to: In Ramirez v. Shoats, 2010 N.Y. Slip Op 06550, plaintiff was injured when a piece of corrugated metal covering an unfinished landing of a newly constructed stairway slipped under his feet, causing him to fall from the second floor to the basement level of a building under construction. Plaintiff sought relief under Labor Law § 240(1), which provides that the owner of the premises can be held liable for failure to provide adequate safety devices for workers. The issue at hand was whether a permanent, yet unfinished stairway can constitute a safety device under the statute. In a 3-2 split decision, the Court held that the stairway was the plaintiff’s sole means of access to and from his work area and thus was a safety device within the meaning of the statute. The dissenting opinion noted that temporary ladders were on site which provided alternative means of descent and, in any event, prior case law in New York has determined that “under no construction of the statute could a permanently installed stairway, used by the plaintiff as a place of passage, be deemed to be a scaffold, hoist, stay, ladder, sling, hanger, block, pulley, brace, iron or rope.” Ryan v. Moerse Diesel, Inc., 98 A.D. 615 (1983). Unfortunately it seems that New York courts, yet again, have extended the grasp of the Labor Law. http://www.nycourts.gov/reporter/3dseries/2010/2010_06550.htm Thanks to Chris O'Leary for his contribution to this post. If you would like more information about this case or WCM's Labor Law practice, please contact mbono@wcmlaw.com Previous Next Contact

News Mischievous Raccoons Can’t Be Malicious (PA) November 7, 2019 < Back Share to: The Western District of Pennsylvania recently decided an unusual case in Capital Flip v. American Modern Select Insurance Co.: whether a raccoon damaging a house was covered under a dwelling insurance policy pursuant to a vandalism or malicious mischief rider. Specifically, this case presents as a dispute between Capital Flip LLC and its insurer, American Modern Select Insurance Co. pursuant to a homeowners’ dwelling policy. At some point it was discovered that raccoons had entered the property and did what racoons normally do (malicious or not) – cause substantial damage. Capital Flip subsequently sought coverage under the policy, pointing to a clause covering losses arising from “vandalism or malicious mischief.” American Modern denied coverage and this lawsuit followed. American Modern filed a motion to dismiss, contending that damage caused by raccoons simply could not be covered under the vandalism or malicious mischief clause, as animals cannot have subjective intention. Capital Flip argued that the policy did not define “vandalism or malicious mischief”, thus rendering it possible those terms encompassed damage by animals. The Court agreed with American Modern, holding that under reasonable definitions of “mischief” and “vandalism”, a subjective intent combined with an intended unfavorable result was required – and raccoons simply did not have that intellectual ability. Put simply, despite creative thinking, these terms require human actions. Despite the popular opinion that racoons are malicious, this is yet another instance where the Courts simply disagree. Thanks to Matthew Care for his contribution to this post. If you have any questions, please email Georgia Coats. Previous Next Contact

News Tee Off Be-“fore” It’s Safe And Face Liability (NY) May 22, 2019 < Back Share to: As the weather gets warmer, it appears that more people are participating in outdoor activities. This leads to the inevitable injury and the, you guessed it, subsequent lawsuit. In Krych v. Bredenberg, the plaintiff was golfing with friends when he was struck by a golf ball hit by the defendant, who was playing in the following group. The defendant moved for summary judgment, arguing assumption of risk. The lower court denied the motion. In affirming the decision, the Fourth Department held that a plaintiff ‘will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.’ The appellate court noted that the defendant admitted that he teed off prematurely and that the plaintiff was still in the fairway before he yelled ‘fore.’ The Court admitted that “although the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game.” Moreover, the mere fact that a ball does not travel in the intended direction, does not establish a viable negligence claim. Nevertheless, in the instant action, the Appellate Division found that the defendant failed to exercise due care when he teed off too soon and this action created a triable issue of fact as to whether the defendant unreasonably increased the risk of harm to the plaintiff. Simply put, the plaintiff could not have assumed the increased risk created by defendant’s reckless conduct. Thank you to Paul Vitale for his contribution to this post. 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 Wade Clark Mulcahy Launches Louisiana Office with New Partner E. Alexis Bevis May 17, 2024 < Back Share to: Wade Clark Mulcahy is pleased to announce the opening of its New Orleans Office led by experienced litigator, E. Alexis Bevis. The new Louisiana office strengthens the firm’s robust litigation practice and increases Wade Clark Mulcahy’s geographic presence. This is the firm’s third new office in eighteen months. “We are thrilled to open a New Orleans office and serve our clients’ needs in Louisiana,” says Bob Cosgrove, Wade Clark Mulcahy Managing Partner. “Alexis is the perfect attorney to lead WCM’s New Orleans Office.” Ms. Bevis regularly handles cases in state and federal courts in Louisiana. She concentrates her practice on defending general casualty and professional line carriers focusing on casualty, commercial, and complex litigation in the fields of transportation, energy, manufacturing, highway engineering, construction negligence, premises liability, product liability, cyber litigation, and catastrophic loss. Ms. Bevis received her bachelor's degree in Sociology with a focus in race and ethnic relations and women’s studies from The Pennsylvania State University - Schreyer Honors College. She earned her law degree from Loyola University College of Law in New Orleans, Louisiana. Wade Clark Mulcahy’s New Orleans Office is located at 824 Elmwood Park Blvd., Suite 215, New Orleans, LA 70123. About Wade Clark Mulcahy Since its founding in 1994, Wade Clark Mulcahy has achieved superior and cost-effective results for its insurance and corporate clients. With seven offices in England, Florida, Louisiana, New Jersey, New York, and Pennsylvania, Wade Clark Mulcahy effectively serves clients' needs in a variety of jurisdictions. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and bring closure to complex matters. Previous Next E. Alexis Bevis E. Alexis Bevis Partner +1 504 291-2360 abevis@wcmlaw.com Contact

News Pennsylvania Court Rescinds Policy Based On Insured’s Fraudulent Acts September 6, 2018 < Back Share to: The U.S. Eastern District Court for Pennsylvania recently rescinded an insurance policy based on the insured’s fraudulent misrepresentations. In Pallante v. Those Certain Underwriters At Lloyd’s, a fire occurred at an insured's property while the insured was away. After the fire, during an inspection of the property with the insurer’s adjuster, the insured represented that there were also several personal items missing from the property and advised that a theft had also occurred. Subsequently, the insured sent photographs of the items that were allegedly stolen from the property. The insurer had the photographs analyzed and it was revealed that the photographs were all taken after the fire and theft were alleged to have occurred. Consequently, the insurer denied the claim based on concealment and misrepresentation. The insured subsequently commenced a declaratory judgment action asserting breach of contract and bad faith claims against the insurer. The insurer moved for summary judgment. In determining whether to grant the motion, the court reasoned that there was no dispute that the insured made material false misrepresentations regarding her claim. Thus, looking to the policy language, the court concluded that since the policy did not provide coverage if the insured concealed or misrepresented facts, the insurer was entitled to rescind the policy on that basis. Accordingly, this case shows that, under certain factual circumstances, Pennsylvania Courts will support a policy’s rescission, and it appears to be viable basis for insurers to contest coverage in Pennsylvania. Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact