Wade Clark Mulcahy LLP

News WCM Wins Summary Judgment on Premises Case in Queens September 28, 2018 < Back Share to: This past week, Wade Clark Mulcahy was victorious in its motion for summary judgment, absolving two homeowners of exposure in a sidewalk trip and fall case. Brian Gibbons and Chris Gioia prepared the motion, and Chris argued the motion before Hon. Ernest F. Hart of Queens County Supreme Court. In, Calle-Gonzalez v. Borukhov, the Court ruled that our clients, homeowners in Queens, were entitled to summary judgment for a trip and fall which occurred on the sidewalk in front of their single family home. Under New York City Administrative Code’s Section 7-210, liability for sidewalk defects is placed upon owners of the adjacent property. However, Section 7-210 also provides for an exception of one-two or three family homes. Judge Hart ruled that we demonstrated that unit was a single family, owner-occupied dwelling. Additionally, the Court found that the owners had not made negligent repairs, nor had they utilized the sidewalk for a ‘special use’, two exceptions which would deny summary judgment. Plaintiff's claims will continue against the City of New York, and will focus on the issue of notice. But, barring any appellate practice, our clients are out of this case permanently. The tricky aspect of motions like this one involves plugging up any potential holes that could create a "triable issue of fact," which could prompt SJ denial. At argument, Chris Gioia left no doubt that our clients were not liable here, and the Court agreed. Please email Brian Gibbons with any questions, or contact me on Twitter @bgibbons35. Previous Next Contact

News How Clear Does Your Policy Exclusion Need To Be In The AI Age? March 31, 2023 < Back Share to: In most jurisdictions, courts interpret policy language in favor of the insured, especially when it comes to ambiguous exclusions. With the rise of the Artificial Intelligence and its implication towards data privacy, insurance companies are facing potentially large claims from class action suits. In 2022, the Illinois Eastern Division District Court heard a coverage case arising from AI technology. Wynndalco is an IT consulting firm that is licensed to sell Clearview AI products in Illinois. Clearview AI is an artificial intelligence company that specializes in facial recognition software. A class action suit was filed against Wynndalco for violating an Illinois statute (Biometric Information Privacy Act) that regulates the collection of biometric information by selling Clearview products in Illinois. Wynndalco purchased a business owners insurance policy from Citizens and the policy provides coverage for “personal and advertising injury” with a number of exclusions including a statutory violation exclusion which excludes coverage for violation of TCPA, FCRA and state statutes regarding collecting or distributing of material or information. The court ruled that the exclusion was ambiguous on its face because the exclusion is overinclusive since most statutes regulate information to some degree. Further, the court could not interpret the language based on the exclusion purpose since the exclusion also applied to federal statutes like FCRA that regulates the credit reporting industry, not only to statutes that regulated distribution of information. In turn, the court ruled that Citizen owed a duty to defend Wynndalco and the exclusion above did not apply. As we are seeing the unparalleled advancement of AI technology and its implementation in various industries, policy exclusions can be the determining factor in potentially high liability exposures. Thanks to Yifan Lin for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Lloyd’s “Custom and Practice” Shield Shattered: EDNY Orders Lloyds’ to Release Attorney Client Communications April 14, 2016 < Back Share to: The ancient dictum – No Man May Serve Two Masters Without The Consent Of Both To The Double Employment – surfaced in Certain Underwriters at Lloyd's v. National Railroad Passenger Corporation [Amtrak], 2016 (E.D.N.Y.). And it surfaced to defeat Underwriter’s claim of attorney-client privilege in litigation with Amtrak over environmental contamination and asbestos exposure between 1972 and 1976. In that era, following established market “custom and practice” defense counsel’s reports were routinely routed to Underwriters through London brokers -- and this is precisely why Amtrak contended the privilege was waived. While market practices (to a degree) have since changed, the Amtrak decision is an important reminder that “direct reporting” (that is, from counsel to clients) is the only safe way to avoid an assault on attorney-client privilege. While Underwriters have moved for reconsideration of the order directing the release of what ordinarily would be protected, the case serves as a stern warning that using brokers as a distribution mechanism is a risky practice indeed. In general, to establish that attorney-client privilege attaches to a questioned document, the proponent must establish that the communications were: Between a client and his or her attorney;Intended to be, and in fact were, kept confidential; andMade for the purpose of obtaining or providing legal advice. In Amtrak, the attack focused on the second requirement. How could the questioned documents be confidential when they were distributed through the London brokers? Of significance, the court dismissed what it described as “flimsy and unsupported” claims of established market practice and necessity as grounds for overriding a central requirement of attorney-client privilege. We are following this case, but the clear takeaway is this: Adopt a direct reporting scheme for all matters in which you intend to preserve the sanctity of attorney-client communications. For more information, please email Dennis M. Wade at dwade@wcmlaw.com .     Previous Next Contact

News Subway False Advertising Suit Against Quiznos: Amateur Ad (Cold) Cuts Deep January 29, 2008 < Back Share to: Doctor's Associates, the owners of Subway, have commenced a lawsuit .against its competitor Quiznos based upon television commercials created by Quiznos as well as by amateurs in a 2006 ad campaign entitled "Quiznos vs. Subway TV Ad Challenge." Plaintiff charges defendants QIP Holder, a Quiznos subsidiary, and iFilm with making false claims and derogatory depictions of Subway sandwiches. The case is venued in the Federal District Court of Connecticut and will hinge upon the interpretation of the Lanham Act which prescribes trademark rights and the Communication Decency Act which safeguards the internet (commercials were posted on YouTube). http://www.nytimes.com/2008/01/29/business/media/29adco.html?_r=1&ref=business&oref=slogin Previous Next Contact

News Jury Must Decide Whether Release Obtained by Fraud (PA) December 9, 2016 < Back Share to: A Pennsylvania court recently dealt with whether claims of a language barrier were sufficient to raise issues of fact as to whether a release was obtained by fraud. In Del Pielago v. Orwig, the defendant failed to stop at a stop sign and struck the plaintiff’s vehicle. As a result of the collision, the plaintiff was injured and underwent surgery for a rotator cuff tear, and trauma induced carpal tunnel to his left wrist, among other injuries. Prior to filing suit, however, plaintiff signed a pre-litigation release, in exchange for payment of $2,857.92. The defendant filed a motion for summary judgment, which was granted by the trial court. The action was dismissed, and on appeal plaintiff argued that the release should be set aside based on fraud, alleging that twelve days after the accident, an adjuster from Progressive Insurance Company showed up at plaintiff’s home without an interpreter, knowing that plaintiff did not speak or read English. The adjuster presented a check for $2,857.92 and the release, which he scrolled through on an iPad. Plaintiff claims she signed the release, believed that the payment only covered lost wages. In granting summary judgment based on the signed release, the trial court relied on the fact that plaintiff’s daughter, who speaks and reads English, was present. On appeal, the Pennsylvania Superior court reversed the trial court’s award of summary judgment, finding that it was clearly an issue for the jury to decide whether the release had been procured by fraud, based on plaintiff's claims that the adjuster rushed her into signing a release he knew she was unable to understand. Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News New Jersey Court Analyzes Coverage Dispute Regarding Underinsured Motorist Insurance (NJ) November 5, 2020 < Back Share to: On October 20, 2020, the Superior Court of New Jersey, Appellate Division affirmed the trial court’s granting of summary judgment in favor of Penn National Insurance in Singh v. Chestnut. The court reaffirmed the trial court’s decision that the plain language of Penn National’s Insurance Contract did not offer coverage to Singh. On October 26, 2016, Satnam Singh was injured while working as an attendant at a gas station. The driver of the vehicle stopped to get gas and drove away from the gas pump while the nozzle and hose were still attached to his vehicle. The nozzle then struck Singh in the face, and Singh sustained injuries. Singh filed a complaint against the driver and New Jersey Manufacturers Insurance Company, who provided workers compensation coverage to Singh’s employer, APCO Petroleum Corporation. Plaintiff then filed an amended complaint against Penn National asserting claims for underinsured motorist coverage. Penn National’s policy was a commercial automobile insurance policy issued to APCO. Penn National filed a motion for summary judgment which was granted. The Court determined Singh was not covered under the underinsured motorist coverage under Penn National’s policy. Singh appealed. When analyzing Penn National’s policy and the definitions noted herein, the Court held Singh was not insured under Penn National’s policy, as he was not identified on the declarations page and did not occupy an automobile covered under the policy at the time of his injury. Additionally, the Court considered that underinsured motorist coverage will be applied when the claimant shows a substantial nexus between the insured vehicle and the injury sustained. The Court held Singh did not show the needed substantial nexus and was therefore not entitled to underinsured motorist coverage. This case furthers the importance of understanding the plain language of the insurance policy when determining coverage. Thanks to Madeline Troutman for her contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Language Must Be Crystal Clear To Get Indemnity (NJ) August 15, 2019 < Back Share to: The New Jersey courts have long emphasized the need for precision when drafting indemnification agreements. The principals of indemnification clause construction were recently re-visited in the unreported decision of Grandview At Riverwalk v. K. Hovnanian At Port. In that case, the defendant K. Hovnanian appealed the trial court’s denial of their motion seeking contractual indemnification from a third-party defendant architect for a $3 million jury verdict awarded to the plaintiff in a construction defect case. The Appellate Court emphasized that, under New Jersey case law, the first and foremost rule of interpretation of an indemnity provision is to determine the parties’ intent. Additionally, any ambiguities are to be strictly construed against the indemnitee. Lastly, an indemnity clause purporting to shift liability for one’s own negligence to an indemnitor is especially narrowly construed and requires “explicit language” to include losses within the scope of the indemnity if they arose from the proposed indemnitee’s own negligence. In this particular case, the plain language of the indemnification clause made clear beyond any doubt that the third-party defendant architects only agreed to assume responsibility and liability for losses caused by the architects’ own negligence. Accordingly, the architects were not responsible for indemnifying Hovnanian for Hovnanian’s own negligence, and the trial court’s decision was affirmed. This case highlights the importance of provision in indemnification clauses. Thanks to Heather Aquino for her contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Natural Accumulation is Key to Application of “Hills and Ridges Doctrine" (PA) February 7, 2019 < Back Share to: On January 24, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of Turkey Hill Minit Markets, the Kroger Co., and D670 Kroger C Stres/Turkey Hill/Minit Mr’s (Collectively “Appellees”) in Brock v. Turkey Hill Minit Markets. The case stems from a slip and fall, when plaintiff Rebecca Brock was walking toward the entrance of the Store when slipped and fell on ice in the parking lot. However, whether the slipping hazard was man-made or made naturally became a point of contention. The “Hills and Ridges Doctrine” precludes liability "where the accident occurred at a time when general slippery conditions prevailed in the community as a result of recent precipitation.” However, the hills and ridges doctrine can only be applied in cases where the snow and ice complained of are the result of an entirely natural accumulation following a snowfall. Therefore, on appeal, Appellant attempted to argue that the accumulation of ice in the parking lot was due to employees of the Appellees plowing and salting the parking lot. The defendant-appellees produced an expert report, which cited that the snow/ice was the result of natural accumulation -- and this report was unopposed by the plaintiff-appellant. As such, the Court affirmed the lower court’s ruling. Still, the underlying argument in this case is a reminder that a court reading the phrase “natural accumulation” very narrowly could pose problems for defense counsel. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NJ Supreme Court Agrees to Review Two Lawyer Conduct Cases September 23, 2009 < Back Share to: Two cases that we previously highlighted on Of Interest have been placed onto the New Jersey Supreme Court’s docket for this Fall. http://www.judiciary.state.nj.us/calendars/sc_appeal.htm In Stengart v. Loving Care Agency, Inc. et al., the trial court originally held that e-mails sent by an employee to her attorneys on her employer’s computer were the property of the employer pursuant to its policy regarding electronic communication. Thus, when the employee sued her (now former) employer, the employer was permitted to use the plaintiff’s e-mail that had been extracted from the computer, despite the fact that attorney-client privilege was implicated. The Appellate Division disagreed and held that attorney-client privilege trumped the employer’s privacy policy, and suppressed the use of the e-mail communication. It also ordered a hearing to determine whether the employer’s attorneys should be disqualified or otherwise sanctioned for viewing the privileged communications. The Supreme Court will now determine how to properly balance these two important interests. http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=259 http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=324 In Rabinowitz v. Wahrenberger, plaintiffs originally filed a medical malpractice action against a hospital for the death of their child. The attorney representing the hospital asked the father whether the father's statement to the police about his suspicion of murder was a reference to the baby’s mother. Plaintiffs later sued defense counsel for intentional infliction of emotional distress because of those uncomfortable questions, but the trial and appellate courts found the questions were privileged, that the lawsuit was frivolous, and awarded legal fees to the defendant. The Supreme Court will now determine whether the plaintiff or plaintiff’s counsel ought to be responsible for paying that award. http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=265 Both cases have important implications for both attorneys and their clients, so be sure to check Of Interest for any updates. Previous Next Contact

News Unwitnessed Accident No Defense to Labor Law January 31, 2011 < Back Share to: In Campbell v 111 Chelsea Commerce, L.P., the Appellate Division, Second Department, upheld the lower court's decision to grant plaintiff summary judgment on her §240(1) Labor Law claim. Campbell was injured when the walkboard of the scaffold on which she was working collapsed. She was the only witness to her accident. On appeal, the defendants attempted to raise a question of fact, arguing that because Campbell was the only witness to her accident, the accident could have been caused by any number of reasons. The Second Department rejected this argument because it was based purely on speculation, and the facts were quite clear that the scaffold’s walkboard had collapsed while plaintiff was working on it. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00482.htm Previous Next Contact

News Sometimes More is Less– Prisoner’s Subpoena is Quashed for Overbreadth (NY) January 11, 2017 < Back Share to: The Western District of NY recently quashed an inmate's subpoena of two non-party witnesses in Cooper v. Hill, in an attempt to obtain documentation of his own whereabouts during and after a prison riot. The Court quashed his subpoena, finding his request was overbroad, seeking propensity evidence. Cooper arose in 2012 when an inmate sued corrections officers and the Five Points Correctional Facility for assault, and for failing to provide him with medical treatment. Cooper claims to have been assaulted by several corrections officers both during a prison riot in the recreational yard and a few hours later, in the prison showers. During discovery, the Defendants' incomplete documentation left a "gap" with regard to Cooper’s whereabouts for six hours after the prison riot ended including medical treatment records of that day. In an attempt to clarify where Cooper was in the hours after the riot, Cooper subpoenaed documents including log sheets, grievance records, documents resulting from the intimate riot and “all internal investigations that occurred.” The Correctional Facility moved to quash, citing that compliance with the subpoena would require thousands of documents, as the subpoenas also included phrases like “all documents from any person.” The Court found the subpoena relevant, but nevertheless quashed it because it sought production of materials that did not pertain directly to Cooper’s whereabouts, and was out of proportion to their usefulness to Cooper’s claims. The Court’s ruling demonstrates the extreme importance of properly tailoring subpoenas and discovery requests in general. In the event a subpoena results in motion practice, a properly tailored subpoena is much easier to defend before the court. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

Bruce A. Magaw Of Counsel New Jersey +1 973 258 1700 bmagaw@wcmlaw.com Professional Experience A true veteran of the courtroom, Bruce Magaw brings more than 35 years of trial experience to his work defending clients against claims in both state and federal court, including high-value cases involving construction defects and severe bodily injury, as well as professional negligence, premises liability, products liability and automobile negligence cases. He has litigated some of the largest and most complex civil lawsuits in the state of New Jersey, tried numerous cases to verdict and defended those verdicts before the Appellate Division and the Supreme Court of New Jersey. Bruce also provides strategic evaluation of coverage and litigates coverage disputes involving third-party commercial, general liability and property insurance. He also advises insurance companies on a wide variety of issues involving coverage and claims handling. Before joining WCM, Bruce was a partner in a prominent New Jersey law firm. Prior to becoming a litigator, he clerked for the Honorable Joseph Scancarella, J.S.C., the first Presiding Judge of the Civil Division, New Jersey Superior Court, Passaic County. In addition to his work on behalf of clients, Bruce coaches a local high school mock trial team. Honors and Distinctions Martindale-Hubbell 2021 list of AV Preeminent lawyers. (A description of the selection methodology can be found at martindale.com/ratings-and-reviews/ . No aspect of this advertisement has been approved by the Supreme Court of New Jersey.) Moravian College Cum Laude Professional Activities Hunterdon County Bar Association Middlesex County Trial Lawyers Association Publications I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Seton Hall University School of Law B.S. Moravian College Bar Admissions New Jersey Court Admissions District of New Jersey