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News Does Texting Result in Punitive Damages? December 29, 2010 < Back Share to: The dangers of texting while driving are a fruitful source and typical topic of discovery in all motor vehicle cases. After all, if texting or cell-phone usage can be proven, the odds of proving distracted driving (and thus a better negligence case) also increase. One issue that has recently arisen is whether proof of texting opens the texter to a punitive damages claim. In Pennsylvania, the answer might be "yes." In the case of Deringer v. Li, an Allegheny trial court judge has recently suggested, in an unpublished decision, that texting might rise to the level of recklessness (as opposed to mere negligence) and thus open the texter to a punitive damages claim. We shall have to see if this decision is followed or endorsed by other Pennsylvania courts. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Second Circuit Rejects Ambiguity Argument Regarding Policy’s Action Over Exclusion (NY) January 25, 2019 < Back Share to: An additional insured attempted to argue the “separation of insureds” clause rendered the Action Over Exclusion, an iteration of an employer’s liability exclusion, inapplicable, as it was not the employer of the claimant. The Second Circuit disagreed based on the plain language of the exclusion. In Endurance American Specialty Insurance Co. v. Century Surety Co., Hayden Building Maintenance Corp. was the general contractor on a construction project at which the plaintiff, who was an employee of Pinnacle Constr. and Renovation Corp., was injured. Hayden sought coverage as an additional insured under the CGL insurance policy issued to Pinnacle by Century Surety Co. Century denied coverage based on the policy’s Action Over Exclusion, which provided that there was no coverage for “bodily injury” to an “employee” of the named insured arising out of and in the course of employment by the named insured, or performing duties related to the conduct of the named insured’s business. Hayden challenged the disclaimer, arguing the exclusion did not apply because Hayden did not employ the plaintiff and the policy’s terms must be applied separately to each insured seeking coverage as per the policy’s Separation of Insureds provision. Although the district court agreed with Hayden, the Second Circuit reversed and held the Action Over Exclusion unambiguously barred coverage. In particular, the appellate court held the exclusion barred coverage for bodily injury claims brought by an employee of “the named insured,” as opposed to “the insured.” The Court further observed the Action Over Exclusion specifically replaced the Employer’s Liability Exclusion, which used the term “the insured.” The Second Circuit ultimately reversed “because to do otherwise would render the unambiguous language…a nullity.” Insurance policies are arguably the most hyper-scrutinized class of contracts. As a result, in evaluating coverage, it is critical to evaluate even the most minute distinction in policy terms. Here, an endorsement altered an exclusion by redefining the pertinent class of insured by changing “the insured” to “the named insured.” Thanks to Christopher Soverow for his contribution to this post. Please contact Colleen E. Hayes with any questions. Previous Next Contact

News Late Notice of Tort Claim Approved? Not So Fast (NJ) April 2, 2021 < Back Share to: In New Jersey, a plaintiff sought to file a late notice of tort claim identifying a police officer that she claimed was responsible for her injuries. The plaintiff in Pagan v. Rivera sought help from the police department when she was threatened by a former boyfriend in violation of an Order of protection. Despite plaintiff’s concerns that the former boyfriend could be hiding in her apartment, the responding officer instructed her to go into the building to retrieve her identification and a copy of the Order. The plaintiff’s fears proved accurate, and she was assaulted inside the building. In New Jersey, the Torts Claims Act requires that persons who have claims against public entities or their employees provide a notice of the claim within ninety (90) days. While the plaintiff filed a timely notice, she failed to properly name the responding officer. Although her complaint was filed in Federal Court, the plaintiff filed motion for leave to file a late notice of tort claim in New Jersey Superior Court. The motion was granted. On appeal, the Appellate Court concluded that the Superior Court lacked jurisdiction to hear the motion, and that the motion should have been filed in Federal Court. The court also determined that the defendant was entitled to oral argument on the motion, and that the trial court improperly decided the motion on the papers. This matter confirms that a defendant should always ensure that a court has jurisdiction for all pleadings and motions. Additionally, a defendant should always push for, and insist on, oral argument for important decisions. Please contact Heather Aquino with any questions. Previous Next Contact

News NJ Examines Who Is Your Real Estate Manager January 9, 2012 < Back Share to: The question of who is entitled to coverage under the standard CGL policy has vexed both insurers and insureds for years. Under Section II of the standard ISO forms, the definition of “an insured” includes any person or organization “while acting as your real estate manager.” What is necessary to trigger this coverage and just how broad is the coverage provided to this class of insureds? The New Jersey Appellate Division recently examined this provision. In Cambria v. Two JFK Blvd., LLC, the plaintiff slipped and fell on ice located in the parking lot of a small strip mall. He sued the landlord and the property manager of the mall who, in turn, impleaded a tenant and the tenant’s CGL insurer. Of note, neither the landlord nor the property manager were explicitly named as additional insureds on the tenant’s CGL policy. The argument of the property manager was simple: he was the real estate manager of the property and therefore entitled to coverage under the tenant's CGL policy. The lower court accepted this argument and inexplicably provided coverage under this provision to the landlord as well. The Appellate Division summarily reversed. It found that the property manager may have been “a” real estate manager or “the landlord’s” real estate manager but certainly was not acting as “the tenant’s” real estate manager, a necessary element of coverage. Of significance, the court found that the tenant had no contractual obligation to maintain the common area parking lot nor was accident location part of the leased premises. Therefore, the real estate manager could not have been acting on the tenant’s behalf in relation to any snow/ice removal activities and did not qualify as the tenant’s real estate manager. Further, the court made reference to the indemnity provision in the lease to discern “the fundamental understanding of the parties’ liability for incidents,” and found the tenant was obligated to indemnify the landlord only for claims related to the tenant’s own acts arising from its use of the leased premises. This factor also reinforced the conclusion that the real estate manager was not “your,” that is, the tenant’s real estate manager. In sum, the court interpreted the phrase “your real estate manager” as written and used a common sense standard in denying coverage to the real estate manager under the tenant’s CGL policy. Although infrequently cited, this interesting source of coverage appears limited to those circumstances where a property manager acts specifically on behalf of the named insured. If you have any questions about this post, please email Paul at pclark@wcmlaw.com   Previous Next Contact

News NY Labor Law - Strict Liability - Strict Interpretation February 17, 2017 < Back Share to: New York Labor Law actions involve issues of strict liability -- not negligence, a significant distinction. This distinction figured heavily in the court decision of Bridgemohan v. Cornell Group, Inc. The case arose out of a fall from an unsecured ladder that was not equipped with rubber feet. The plaintiff had been working at a multi-family home patching cracks in the wall of a garage. The ladder slipped as he ascended it causing him to fall onto concrete ground. The plaintiff moved for summary judgment under Labor Law §240(1), and the defendants made two arguments in opposition. First, defendants argued that plaintiff was the sole proximate cause of his injuries. Second, defendants argued that plaintiff was not a protected class under the statute since he had not been directly hired by them to do the work. As to the first argument, there was speculative testimony from the defendant property owner that the plaintiff had attempted to do a jump turn while on the ladder, which caused the fall. The judges looked dubiously upon this testimony given the position and vantage point of the witness. Ultimately, this testimony proved unavailing in any event. Even assuming plaintiff was negligent in doing a jump turn, this would not absolve the defendants from strict liability resulting from the failure to provide proper equipment, a statutory protection for the work he was doing. Elicited testimony which attempts to place fault on the plaintiff is irrelevant if a violation of a statute in any way caused the accident. Any negligence on his part would be insufficient to constitute an unforeseeable or extraordinary act that would be a superseding cause of the accident. The court likewise was not persuaded that plaintiff was a volunteer and not a worker. While the defendants had in fact hired another person to do the job, that person had, in turn, hired the plaintiff to assist. The defendants paid the person they hired who paid the plaintiff. The plaintiff testified that he expected to be paid, and the contractor who asked plaintiff to assist with the work testified that he had always planned to, and did pay plaintiff. Thus, plaintiff was part of the protected class of workers. Thanks to Christopher Goia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News WCM Wins Jury Trial in Bronx County Civil Court. August 13, 2012 < Back Share to: New York, NY Associate Lora H. Gleicher won a jury trial in a Bronx County Civil Court matter. In Mena v. 1944 Holding Ltd., et al., plaintiff allegedly tripped and fell as she was descending an interior staircase in a building that the defendant owned and managed. Plaintiff claimed that prior to her fall, she had made numerous complaints to the building superintendent about an allegedly defective stair, but that the superintendent never remedied the problem. At the time of the trial, the superintendent was no longer working for the building and was unable to be located. As such, the defendants were unable to produce a witness at trial. At trial, plaintiff had difficulty telling the truth, testifying on direct that (1) she told the superintendent about the alleged defect six months prior to her accident; (2) she fell on the second step; (3) she sought medical attention, immediately; and, (4) she did not return to work following the accident. On cross-examination, we attacked plaintiff’s credibility and confronted her with her deposition testimony, wherein she stated: (1) she allegedly told the super about the alleged defect only several weeks before her accident - not six months; (2) she fell on the third step - not the second; (3) she sought medical attention 8 days after her accident; and,(4) she returned to work for approximately 5 days after her accident. Plaintiff’s credibility was further destroyed when she denied ever filing a claim for personal injuries, despite having filed a claim related to 9/11 clean. Ultimately plaintiff’s credibility was shattered, and despite not having a defense witness, after a mere 25 minutes of deliberations, the jury returned with a defense verdict. Previous Next Contact

News Add Mud To The List Of Dangers Covered Under Labor Law 240(1) (NY) December 4, 2020 < Back Share to: The First Department has previously held that Labor Law 240(1), which provides strict liability protecting plaintiffs against gravity-related risks, applies if a worker standing on a platform on the surface of a body of water falls into that body of water. See, Pipia v. Turner Constr. Co., 114 A.D.3d 424 (1st Dep’t 2014), lv dismissed 24 N.Y.3d 1216 (N.Y. 2015). In a recent case where the plaintiff was injured stepping onto an area of ground that had previously been excavated and then backfilled with soil, the First Department extended the Pipia line of reasoning and held that the plaintiff’s accident was also covered by Labor Law 240(1). In Sunun v Klein, an early stage of the subject construction project involved excavating an area of ground to create a trench which was then backfilled with soil. No barriers or signage were implemented to cordon off this filled trench after it was backfilled. Plaintiff was working on a later date and stepped on that area of ground, and he unexpectedly sunk such that his leg was in the ground up to his mid-thigh. It was undisputed in discovery that there were no safety devices provided to protect plaintiff or any other workers from the gravity-related risks of descending into the trench if they were to walk on it, and plaintiff’s expert testified that the trench had been filled with soil that was insufficiently dense which created a risk of such accidents. Discussing the previous Pipia decision, the First Department held that the elevation differential between the ground level and the lower level to which the plaintiff’s foot and leg sank was analogous to the risks presented when a worker stands on a floating platform on a body of water without safety devices to prevent him from falling into the water. As such, the First Department reversed the motion court and granted plaintiff’s motion for partial summary judgment on the Labor Law 240(1) claim. Thanks to Shira Straus for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NYAD Rules Water Damage by Artificial Means Can Render Landowner Liable October 6, 2010 < Back Share to: In Moretti v. Croniser Construction Corporation, the Second Department addressed a landowner who brought suit because an abutting neighbor caused water damage during a construction project. The defendant-landowner was awarded summary judgment, because the plaintiff failed to raise a triable issue of fact as to whether the means of diverting water, which caused the damage, was artificial, and whether the improvements were made in good faith. The Court held that a landowner can not be liable to an abutting neighbor for water damage, "provided that the improvements were made in good faith to fit the property for some rational use, and that the water was not drained onto the other property by artificial means, such as pipes and ditches." It seems that if a landowner is making improvements to his land while 1) acting in good faith, 2) not diverting water onto adjacent property via artificial means, and 3) having a rational basis for the improvements, he will be shielded from liability for a neighbor's water damage. Not surprisingly, the Court declined to comment on protection afforded landowners for "irrational" improvements upon land, nor does the Court opine on examples of what an "irrational" improvement might be. Hopefully, rational minds will prevail in the future. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06783.htm Previous Next Contact

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News Insurer’s Peer Review Insufficient To Deny Payment Of Medical Benefits (PA) June 21, 2013 < Back Share to: In Levine v. Travelers Prop. Cas. Ins. Co., the plaintiff sustained injuries in an automobile accident. Following the accident, the plaintiff underwent various medical treatments, paid for by her insurance company, Travelers Property Casualty. When the plaintiff attempted to attend her prescribed physical therapy, Travelers submitted this claim to a peer review organization that concluded the treatment was not reasonable and necessary. Additionally, sometime after this, the plaintiff attended an independent medical examination, which revealed that she had reached maximum medical improvement. Subsequently, Travelers denied payment. In turn, the plaintiff commenced an action against Travelers, which ultimately settled with Travelers paying for all of the plaintiff’s medical bills as well as attorney’s fees and costs. Following this settlement, the plaintiff resumed receiving treatment. When the providers tendered the bills to Travelers, without explanation, Travelers denied payment. The plaintiff then commenced her second action against Travelers. The trial court ultimately determined Travelers was in breach of contract. As such, Travelers was ordered to pay all outstanding medical bills, interest and costs. Travelers appealed arguing, inter alia, that the trial court had erred in awarding attorney’s fees since the Motor Vehicle Financial Responsibility Law (“MVFRL”) only allowed the recovery of attorney’s fees if an insurer had not invoked the peer review process. The Superior Court found in favor of the plaintiff. First, the court noted that the insurer had presented no evidence that payment was denied based on the peer review. Conversely, the court determined that the denial was, in fact, based on the independent medical examination. Further, the court rejected the plaintiff’s argument that the MVFRL made no distinction between peer reviews and independent medical examinations. The court explained the purpose of the peer review was to determine if medical care and bills were reasonable. Conversely, the purpose behind an independent medical examination was to determine whether a plaintiff’s injuries were related an accident. Thus, since the purpose behind these processes was different, therefore, the plaintiff was rightly entitled to attorney’s fees. Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Plead it or Lose it: Failure to Plead Defamatory Statements Warranted Dismissal. January 28, 2013 < Back Share to: In Abakporo v. Daily News, et al., plaintiff sued the Daily News for two newspaper articles he alleged contained defamatory statements against him. He also sued for misappropriation of his image pursuant to Civil Rights Law §50. Though plaintiff annexed the articles to his complaint, his failure to specifically identify the defamatory statements was fatal to his claim. With respect to the Civil Rights Law, plaintiff failed to adequately allege facts to establish that the photograph accompanying the articles was used for advertising or trade purposes. Due to plaintiff’s pleading deficiencies, the Second Department affirmed the dismissal of his case. In evaluating a pre-answer motion to dismiss, courts will liberally apply the facts as alleged in the complaint. Where a party fails to allege defamatory statements in a defamation complaint, there can be no liberal application of the facts. As such, in evaluating defamation claims, the first inquiry must always be whether the complaint was appropriately pled, and whether a pre-answer motion to dismiss is feasible. For more information about this case, please contact Cheryl at cfuchs@wcmlaw.com .     Previous Next Contact

News College Security Program Creates Duty To Implement That Program Properly (PA) February 9, 2023 < Back Share to: In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff's case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact