Wade Clark Mulcahy LLP

News Philadelphia Jury Awards Man $2,729 in Past Medical Costs for Fractured Ankle December 2, 2016 < Back Share to: A “trial loss” is not always as bad as it sounds. In murray-v-tripoldi, a Philadelphia jury awarded the plaintiff, who fractured his ankle after slipping and falling on an icy residential sidewalk, just $2,729 in past medical expenses. In February of 2014, the plaintiff slipped and fell on ice accumulation on the defendants’ sidewalk, resulting in a fractured ankle. The plaintiff claimed the ice presence resulted from a snowstorm that occurred days earlier. The defendants argued that plaintiff assumed the risk of traversing the ice-laden sidewalk, as neighbors had shoveled their sidewalks and there were safer alternative routes the plaintiff could have taken. Defendants also argued that the accumulation was an open and obvious condition for which the defendants could not be held liable. The defendants successfully argued these defenses at court-mandated arbitration, which resulted in a no-cause award. The plaintiffs appealed the arbitration award and the case proceeded to trial. At trial, the plaintiff sought to recover $2,729 in past medical costs to treat the fracture and for physical therapy, plus damages for pain and suffering – especially for pain experienced while dancing. At trial, defendants relied only on their liability defenses and did not challenge the plaintiff’s injuries or medical treatment. The case went to verdict, and the typically plaintiff-friendly Philadelphia jury only awarded the plaintiff the exact amount of his medical expenses. Though an assumption of risk defense and open and obvious defense are intended to shield defendants from liability altogether, in this instance, it appears that these defenses influenced the jury to cap the plaintiff’s damages at their literal amount. This case demonstrates that taking a case to verdict can yield high rewards for defendants when there are low, undisputed damages, coupled with strong liability defenses that highlight common sense. Thanks to Rachel Freedman for her contribution to this post. Previous Next Contact

News Details Matter in Seeking Summary Judgement In New York Auto Cases December 1, 2023 < Back Share to: ​ In New York automobile accident cases, before considering moving for summary judgement, the moving party must be certain that there are no possible triable issues of fact. Although this may appear obvious, courts continue to deny summary judgment motions if there is any wiggle room for the non-moving party, particularly where there is potential wrongdoing by both parties. For example, in Policart v Wheels LT , plaintiff was injured in a car accident where she had the right of way. There was a stop sign governing the defendant’s entrance to the intersection, but not one for plaintiff. The trial court granted plaintiff’s motion for summary judgment, in part, because of the general rule that “a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law." However, on appeal the Second Department reversed and denied plaintiff’s motion, holding that plaintiff failed to eliminate all issues of fact as to whether she was free from any comparative negligence in failing to avoid the accident, despite having the right of way. The takeaway from Policart is that New York courts will grant summary judgement in auto accident cases only when the movant successfully accounts for all triable issues of fact. Even when the facts seem obvious, such as the plaintiff having the right of way and defendant running a stop sign, courts may still refuse to grant summary judgment where any fact issues as to liability exist. Policart v. Wheels LT .pdf Download PDF • 1.17MB Previous Next Alexander Rabhan Alexander Rabhan Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News WCM Expands its Philadelphia Office. January 13, 2010 < Back Share to: To accommodate the expansion of our Philadelphia office and effective immediately, WCM has moved. Our new office address is: Wade Clark Mulcahy 1515 Market Street, Suite 2050 Philadelphia, PA 19102 (267) 239-5526 (phone) (267) 565-1236 (fax) The office will continue its focus on the provision of insurance law and insurance defense services in southern New Jersey and Pennsylvania. Bob Cosgrove remains the office’s resident partner. Clayton H. Thomas, Jr., a veteran Philadelphia lawyer, will remain as counsel to the firm. If you have any questions about how WCM can serve you in Southern New Jersey and Pennsylvania, please contact Bob Cosgrove. Previous Next Contact

News Big Brother Comes to the Main Line. March 5, 2010 < Back Share to: Philadelphia's Main Line. It conjures up images of blue bloods, The Philadelphia Story and, of course, Kobe Bryant who graduated from Merion High School. The communities of the Main Line are so well off that they decided to give all high school students a free laptop so as to level the academic playing field. What could possibly go wrong? Well, for starters, the computers had webcams. And the webcams could be activated remotely. So, when school officials believed that "improper” behavior was afoot, they did what any good sleuth would do -- they turned on the webcams, so they could see what their students were doing. This just might have gone unnoticed except that school officials decided to confront the students whom they believed had acted improperly using their webcam spying as evidence. This did not sit well with students and a federal class action lawsuit in Philadelphia has resulted. It sure gives a whole new real world impact to the "big brother" world of Huxley and Orwell that all high school students must familiarize themselves with. Property tax increases (to defend the lawsuit) and insurance claims by the school district will surely follow. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202443815317&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20PM%20Legal%20Alert&cn=TLI_WANTED20100226&kw=Students%20Accuse%20School%20District%20of%20Spying%20Through%20Webcams Previous Next Contact

News NJ Sup.Ct. Finds Exclusion "arising out of" Ambiguous. July 7, 2010 < Back Share to: In Flomerfelt v. Cardiello, the plaintiff attended a party hosted by the defendant where she became unresponsive and was ultimately treated for kidney and liver failure. A hospital toxicology report identified alcohol, marijuana, opiates and cocaine in her system. No expert determined the levels of each substance in plaintiff's system however, the hospital found the injuries "probably secondary to drug overdose." The defendant's expert suggested her injuries may have resulted from prior drug abuse. The defendant sought coverage under his parents homeowners policy which was denied, with the carrier relying on an exclusion in the policy for claims "arising out of" the use, transfer or possession of controlled dangerous substances. The trial court found coverage, the Appellate Division reversed and the New Jersey Supreme Court reversed and remanded finding the insurer's use of the phrase " arising out of" with no further qualification, made the exclusion ambiguous, requiring an interpretation consistent with the insured's reasonable expectation. In remanding, the Court noted that the coverage issue could not be resolved because the record failed to answer questions about the sequence of events leading to the plaintiff's injuries and the cause or causes of her injuries. http://www.judiciary.state.nj.us/opinions/supreme/A409FlomerfeltvCardiello.pdf Please contact Robert Ball with any questions regarding this post at rball@wcmlaw.com . Previous Next Contact

News A Matter Of Factual Causation (PA) January 25, 2019 < Back Share to: In Mariana Koziar v. Neal T. Rayner and Andrea Rayner, the Pennsylvania Superior Court ruled that a plaintiff needed to establish factual causation, even when the defendant was found negligent and the plaintiff produced uncontroverted evidence of injury. The plaintiff in this case, a house cleaner, slipped and fell as she exited a client’s garage door. She severely injured her left ankle, requiring surgery, and subsequently sued the client/homeowners, alleging that the “lip” of the garage door was negligently constructed, and the driveway pavement was negligently maintained. During trial, the jury heard differing accounts of how the accident occurred from the plaintiff herself. At the trial’s conclusion, the jury returned a verdict in favor of the homeowners, finding that while they were negligent, their negligence was not the factual cause of the plaintiff’s injuries. After the jury was discharged, the plaintiff filed a motion for a new trial, arguing the verdict was against the weight of the evidence. The trial court granted the motion, and the homeowners appealed. On appeal the plaintiff argued that when a jury finds a defendant negligent and concedes the existence of an injury, the jury is not permitted to find that the defendant’s negligence was not a substantial factor in bringing about the plaintiff’s injury. The Superior Court rejected this argument, noting that Pennsylvania defines factual causation in the but for sense, and reversed the trial court’s order for a new trial. The court concluded that while the jury could have found that the homeowners were negligent in any of the descriptions of the accident, it ultimately determined that the plaintiff had been negligent, herself. The fact that there was uncontroverted evidence of an injury did not relieve the plaintiff of the burden to show factual causation. Thus, this case illustrates the continued need of the plaintiff to carry his or her burden in order to prevail in an action. Thanks to Robert Turchick for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Philadelphia Too Oppressive for Personal Injury Suit (PA) December 14, 2018 < Back Share to: The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the transfer of venue from Philadelphia County to Somerset County in Pennsylvania. In Timothy Watson v. Nick J. Capo and National Delivery Systems, Inc., No. 983 EDA 2018 (PA. Super.), Watson sued Capo and Natl. Delivery Systems following a motor vehicle accident that occurred on the PA Turnpike in Somerset County. Watson was driving a tractor trailer truck with a passenger, Cindy Weaver; and Capo was driving a tractor trailer owned by Natl. Delivery Systems. Watson sustained various injuries and was taken to an emergency room in Somerset County. Officers from Pennsylvania State Police, Somerset County investigated the accident scene and authored a report. Watson commenced a lawsuit in Philadelphia County. In response, Defendants filed preliminary objections to transfer the venue to Somerset County based on forum non conveniens. Both Watson and his passenger reside in Maryland, Capo resides in Fayette County, PA; and Natl. Delivery Systems has a principal place of business in Ellicott City, Maryland as well as a Philadelphia Terminal in Philadelphia, PA. Defendants argued that Philadelphia constituted an oppressive or vexatious forum because the accident occurred in Somerset County, police from Somerset County responded to the scene and drafted the report, Watson was treated at Somerset County Hospital, Somerset County Courthouse is 237 miles away from City Hall in Philadelphia, and the police officers as well as defendants would have to incur significant expenses for travel, lodging and missed work in order to appear in Philadelphia. In opposition, Watson argued that Philadelphia was an appropriate venue for litigation and also attached an affidavit from Weaver stating that she would be more inconvenienced by having to travel to Somerset County rather than Philadelphia. The trial court granted Defendants motion to transfer to Somerset County based on forum non conveniens. On appeal, Watson asserted that the trial court erred and abused its discretion. The Superior Court articulated the appellate standard of review for an abuse of discretion and stated that the trial court’s ruling must be reasonable in light of the peculiar facts and also that the lower court’s decision must stand if there exists any proper basis for the trial court’s decision to transfer venue. The court further explained that, determining whether a forum is oppressive requires consideration of the totality of the circumstances and while distance between the two forums and disruption of the parties’ personal and professional lives are part of the equation, no one factor is dispositive. The Superior Court agreed with the trial court’s determination that Defendants had met their burden of demonstrating that Philadelphia was an oppressive and vexatious forum. In support of its decision, the Court cited the fact that Somerset County, where the accident took place and where the officers and initial medical treatment facility were located, was over 200 miles from Philadelphia. In addition, the court noted that neither Watson nor the Defendants were from Philadelphia County, potential witnesses (including Capo and the responding police officers) suffered a greater hardship traveling to Philadelphia as opposed Somerset County, and the sole connection with Philadelphia is the fact that Natl. Delivery Systems occasionally conducted business in Philadelphia. Thus, the trial court had a proper basis to grant Defendants’ motion to transfer and did not abuse its discretion. This case illustrates the importance of utilizing the procedural tool of preliminary objections in Pennsylvania civil practice; as Defendants were successfully able to remove the case from the notoriously ‘plaintiff-friendly’ jurisdiction of Philadelphia County to a more conservative forum like Somerset County. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions     Previous Next Contact

News Business Person or Just Good Friend ... Her Insurer Would Like to Know (NJ) May 17, 2013 < Back Share to: Homeowner's policies contain a business exclusion. So when an insurer believes that a claim arises out of a homeowner's business activity, it is likely to decline coverage. This scenario presented itself recently in Bay State Insurance Company v. Jennings. The claim arose when a child was injured while under the care of the homeowner. While shopping, the caretaker fell causing a shopping cart to topple with the toddler inside. The toddler was injured and a claim presented. During the course of discovery, the insurer learned that the homeowner was caring for the child while her parents worked. The insured testified that she was not engaged in a child care business but rather was simply helping her best friend. The child's mother testified that she only gave her friend $35 per day to cover costs associated with food, diapers, etc. After a hearing, the judge found that the homeowner was in fact not motivated for financial gain but rather by her love for her friend and the child. She held that the business exclusion was inapplicable. The appellate division affirmed and noted that receiving money for childcare does not establish a profit motive and that the insurer bore the burden to prove this motivation. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News No Free Lunch: Court Holds Finance Company Only Entitled to Return of Premium Paid (NY) April 6, 2018 < Back Share to: Insurance Law § 3428(d) provides that when a policy obtained through a premium finance agreement is cancelled, the insurer must return the gross unearned premiums to the finance company. Recently, in All Island Credit Corp. v. Countrywide, a premium finance company alleged it was entitled to the pro rata return of premium not on the amount of premium that was actually paid – but on the total cost of the policy. They key facts are as follows. Plaintiff was a premium finance company that financed an auto insurance policy issued by Country-Wide Insurance Company to Gotham Logistics. Inc. The cost of the policy was $90,522. All Island made a payment to Country-Wide for $67,891.00, but soon thereafter cancelled the policy. The time that the policy was in effect was about 25% of the year, which calculated to $22,493.91 based on the total cost of the policy. Country-Wide thus returned about $45,000 to All Island. But All-Island claimed that because the gross value of the policy was $90,337, it was entitled to about $77,000, because the total earned premium should be deducted from the gross value. All Island argued that the phrase "gross unearned premiums" meant the value of the premiums due for the remaining period following the cancellation or termination of the policy irrespective of whether such premiums were actually paid. But the court found that argument “illogical and contrary to the plain terms of the statute.” It held that implicit in the statue was the notion that the insurer actually received the premiums that it was obligated by law to return, as it could otherwise result in a windfall to the insurer. If you would like more information, please write to mbono@wcmlaw.com .   Previous Next Contact

News President Bush Signs TRIA Extension Into Law December 31, 2007 < Back Share to: On December 27, 2007, President Bush signed legislation extending TRIA for an additional 7 years until December 31, 2014. Hailed as a successful partnership between the private and public sectors, the Act provides federal protection to the insurance industry against potentially catastrophic terrorism related risks. TRIA was originally enacted in 2002 and renewed once before in 2005. http://www.insurancejournal.com/news/national/2007/12/27/85948.htm Previous Next Contact

News PA Jury Has Discretion to Award Only Economic Damages May 28, 2020 < Back Share to: In Pierchalski & Abraham v. Thomas, Gemma Pierchalski and Joseph B. Abraham (“Plaintiffs/Appellants”) appealed an order dated April 4, 2019 entering judgment in their favor, following a jury trial in Pennsylvania. The underlying lawsuit involved a rear-end collision that occurred in June, 2012. Appellants sought economic and non-economic damages due to injuries suffered by Pierchalski in the accident. After trial, the jury returned a verdict of $1,455.99 in economic losses. The jury found that defendant was the cause of Pierchalski’s injuries, but did not award any compensation for past medical expenses, past and future pain and suffering, or loss of consortium. Appellants filed post-trial motions alleging multiple errors on the part of the trial court. One of the arguments asserted was that the jury’s verdict was inadequate since it awarded economic damages that were lost as the result of pain, yet failed to award non-economic damages for pain and suffering. On that specific issue, the Court evaluated whether the jury’s award was contrary to the weight of the evidence. However, the trial court noted in its opinion that the verdict did not shock the court’s conscience given the lack of objective proof of Pierchalski’s injuries. The Court cited Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001), which states that “A jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering or (2) that a preexisting condition or injury was the sole cause of the alleged pain and suffering.” The Court also noted that when an injury is based on subjective complaints, it is reasonable for a jury to award zero damages for pain. See Van Kirk v. O’Toole, 857 A.2d 183, 186 (Pa. Super. 2004). The Court found that the jury’s verdict was not against the weight of the evidence and therefore trial court did not abuse its discretion by denying Appellants’ motion for a new trial. The Court’s decision confirms that a jury can issue economic damages alone without awarding any damages for pain and suffering. Thanks to Emily Finnegan for her contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News "Caution Watch Your Step" Sign Constitutes Adequate Warning of a Step November 6, 2009 < Back Share to: In Broodie v. Gibco Enters, Ltd., the plaintiff fell and injured herself when she tripped on a step separating the bar area from the restaurant area at defendant's restaurant. Plaintiff claimed that while the step itself was safe, insufficient lighting in the area created a condition which was both inherently dangerous and a hidden trap, resulting in her fall and subsequent injury. Bronx Supreme Court disagreed, and defendants were awarded Summary Judgment. Plaintiff appealed. In affirming the decision of Supreme Court, Bronx County, the Appellate Division, First Department found that while landowners owe a reasonable duty of care to invitees, summary judgment may still be appropriate when the complained-of condition is both "open and obvious." The respondents offered evidence that a recessed lighting fixture in the ceiling provided adequate light to the step area. Moreover, there were one or more black and yellow signs warning "CAUTION WATCH YOUR STEP" posted in the vicinity. The plaintiff's deposition testimony that she still did not see the step before she fell was insufficient to raise a triable issue of fact. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact