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News How Plaintiff Couched Testimony Determined Applicability of the Labor Law February 3, 2009 < Back Share to: In Pakenham v. Westmere Realty, LLC, the plaintiff, a service technician, responded to a call of "no heat" at the defendants' office. The plaintiff used a ladder to access the heating unit on top of the building. While descending, the ladder he slipped and fell to the pavement. The plaintiff sued alleging violations of Labor Law § 240(1) and § 241(6) . The defendants moved for summary judgment arguing that the Labor Law did not apply. The court split its decision and held that plaintiff's “repairs” implicated the Labor Law § 240(1) claim, but conversely held that the Labor Law § 241(6) cause of action had to be dismissed as it was “inapplicable outside the construction, demolition or excavation contexts”. Thanks to Cheryl Fuchs for her contribution to the post. http://decisions.courts.state.ny.us/ad3/Decisions/2009/504889.pdf Previous Next Contact

News PA Public Policy Not Enough to Allow Insurer to Win Out-of-the-Box Judgment against Sandusky. June 12, 2012 < Back Share to: Opening statements began yesterday in the Jerry Sandusky criminal trial -- a case with a truly horrific (alleged) fact pattern (and that’s probably an understatement). But, as you would expect, more than the criminal trial is afoot and, in fact, parallel civil cases are proceeding. Many of those civil cases have been filed against The Second Mile, Jerry Sandusky’s former charitable organization and Jerry Sandusky himself. And, of course, at the time of many of the alleged incidents, The Second Mile had insurance – with Federal Insurance Company (“Federal”). When confronted with the claims, Federal filed a declaratory judgment lawsuit in federal court (i.e. the Middle District of Pennsylvania). After issue was joined, but before any discovery had occurred, Federal moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). Federal argued that, in light of the allegations against Sandusky and purely as a matter of public policy, the court should rule that Sandusky was not entitled to either defense or indemnity. After hearing arguments and reading the papers, the Court denied the motion. The Court noted that while Pennsylvania law “prohibits the reimbursement of Sandusky for any damage award that he may ultimately be found to owe arising from the allegations that he molested and sexually abused children”, in the absence of any discovery (and notwithstanding the well publicized allegations), a 12(c) judgment for Federal would be premature. It just goes to show that the duty to defend is generously interpreted, indeed. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ: Counsel's Inflammatory Comments Do Not Warrant A New Trial June 20, 2012 < Back Share to: Barbara Jones filed suit against Albert Pannici for injuries sustained in a motor vehicle accident. In turn, Pannici filed a third-party complaint against a phantom driver he claims caused the accident. Jones’ insurer, Allstate, intervened due to their potential liability under the Uninsured Motorist provision of Jones’ automobile insurance policy. At trial, Allstate’s attorney made several statements to suggest that Pannici was not telling the truth as to the cause of the accident. Specifically, in his opening and closing statements, counsel alleged that Pannici became nervous after the accident and lied about the phantom vehicle. Additionally, during his cross-examination, counsel attempted to elicit testimony to suggest that Pannici’s status as a former police officer made it easy for him to concoct a story about the phantom vehicle. Pannici’s attorney did not object to any of the comments made. Ultimately, the jury returned a substantial verdict against Pannici. Pannici moved for a new trial, arguing that Allstate's counsel's comments in the opening, during the cross-examination and in summation led the jury to believe that something improper had occurred and that Pannici was not being truthful. The court disagreed with Pannici’s position and found that the comments made by counsel for Allstate did not amount to error so prejudicial as to require a new trial. Rather, the court found that there was sufficient evidence for the jury to reject Pannici’s version of the accident. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4834-10.pdf Previous Next Contact

News City Escapes Liability Based On No Prior Written Notice April 3, 2009 < Back Share to: In Santiago v. City of NY, the plaintiff was playing a game of football with his sons in a City owned park when he tripped and fell because of a depression near a park bench. In support of its motion for summary judgment, the City of NY argued that the plaintiff did not comply with the prior written notice requirement of section 7-201(c)(2) of the Administrative Code. Although there are exceptions to the rule, the City argued that it did not create the defect through an affirmative act of negligence nor was the defect caused by a special use that benefited the City. The court ruled in favor of the City and dismissed the matter. Thanks to Ed Lomena for his contribution to this submission. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2009APR/4200129962000100SCIV.pdf Previous Next Contact

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 Egg Hatching: Will the Salmonella Scare Finally Result in Passage of New Food Regulation? August 25, 2010 < Back Share to: We have previously reported on the Food Safety Modernization Act -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=661. Conventional wisdom held that, in this election year, the Act was unlikely to make it out of Congress for a signature by the President. The recent salmonella egg recall (http://www.philly.com/philly/wires/ap/business/101258889.html) -- which apparently arises out of a company with a history of violations (http://www.washingtonpost.com/wp-dyn/content/article/2010/08/21/AR2010082102822.html) -- might change that. Political pressure for Congress to address the Act is mounting -- http://www.claimsjournal.com/news/national/2010/08/24/112696.htm. And, of course, class action lawsuits arising out of the egg recall are also hatching -- http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202470887062&slreturn=1&hbxlogin=1. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

Professional Liability Professionals need to be confident that the attorneys retained to defend them know more than law; they must also know the nature of the business of the professional in order to mount a successful defense to malpractice or errors and omissions claims. WCM has that edge. Drawing on our background in property, casualty and insurance litigation, WCM attorneys have firsthand experience with the risks faced by professionals such as architects, accountants, attorneys, directors and officers, engineers, financial service professionals and insurance brokers and agents. WCM takes great pride in the fact that our practice in this area has grown from referrals within the professional network, many of whom have the choice of counsel in their professional insurance policy. And the successful outcomes that WCM attorneys have achieved fully justifies that choice. Practice Lead Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Download Download

News Court Says No to Neuropsychiatrist (NY) November 11, 2016 < Back Share to: In Scariff v Wall St. Mail Pick Up Serv., Inc., the court dealt with whether plaintiff’s expert neuropsychiatrist was able to testify at trial about plaintiff’s injuries. Neuropsychiatry is a branch of medicine that deals with mental disorders attributable to diseases of the nervous system. The plaintiff was struck by a vehicle driven by the defendant while walking across the street. During the damages phase of a jury trial, the plaintiff did not offer any testimony from her treating physicians. Instead, the plaintiff submitted the testimony of an expert neuropsychiatrist, who testified that the plaintiff had severe major depression as a result of the accident, and that she also had cognitive problems. But the trial court precluded the expert neuropsychiatrist from offering any testimony regarding the plaintiff's medical complaints or the accident history. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and a judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs filed an appeal. The Appellate Division held the trial court’s ruling was proper. "A non-treating physician, retained only as an expert, may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff's medical complaints. The expert may give an opinion based on an examination of the plaintiff." Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Sometimes, De Minimus Contacts Equals Maximum Damage Award! (PA) March 12, 2021 < Back Share to: In a recent en banc opinion, the Pennsylvania Superior Court found that a couple should not be prevented from suing in their choice of venue even where only a small percentage of the defendant company’s $1.4 billion in revenue is derived there. In Hangey, et al. v. Husqvarna Professional Products, Inc., et al. plaintiffs, husband and wife, brought suit after Mr. Hangey fell off a Husqvarna lawn mower and both of his legs were maimed when the lawn mower’s blades did not stop. Mr. Hangey purchased the lawn mower in Bucks County, Pennsylvania and the incident occurred at the Hangeys’ home in Wayne County, Pennsylvania. However, the Hangeys brought suit in Philadelphia County, Pennsylvania—which is known as an extremely favorable plaintiff’s forum. Husqvarna filed preliminary objections arguing—among other things—improper venue. Discovery revealed that Philadelphia did not fall within Husqvarna’s target market area, Husqvarna did not conduct regular business in Philadelphia, Husqvarna was not incorporated in Philadelphia, and only 0.005% of Husqvarna’s sales came from its authorized dealer in Philadelphia County. As such, the trial court granted Husqvarna’s preliminary objections raising improper venue. The Pennsylvania Superior Court, however, reversed the trial court’s decision in its en banc opinion. The Pennsylvania Superior Court reasoned that although Husqvarna’s business in Philadelphia could be categorized as de minimus, it was nonetheless regular, continuous, and habitual, and therefore sufficient for proper venue. The opinion indicated that trial court must consider several factors when considering appropriate venue and not just a defendant’s business revenue. Two judges on the Pennsylvania Superior Court dissented, saying that the trial court did not abuse its discretion and that the trial court has “considerable discretion” when determining proper venue. Thank you to John Lang for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News First Department Finds Nine-Year-Old Cannot Assume Risk May 25, 2011 < Back Share to: In Smith v. City of New York, the First Department reversed the trial court’s granting of summary judgment in the case of a nine-year old boy whom broke his arm after falling from monkey bars during a City-run summer camp. Depositions revealed that campers were not allowed on the monkey bars, but the boy told his counselor, who was supervising a nearby basketball game, that he was going to play on the monkey bars. At his deposition, the boy gave contradicting testimony regarding his awareness of the dangers of playing on monkey bars, stating at one point that he knew of the dangers due to a previous monkey bar accident, and stating at another point that he did not think he could get hurt. Because of the contradictory testimony, the Appellate Division, First Department found that the boy did not fully appreciate the risks of his activity, and as such, could not have assumed the risk that his counselor would not supervise him. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04301.htm Previous Next Contact