Wade Clark Mulcahy LLP

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

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News Winning One for the Gipper: The Looming Legal Threats to American Football. January 10, 2013 < Back Share to: We, here at WCM, have previously referenced other people’s comments on the dangers of American football. We got tired of tooting other people's horns and so decided to create our own. We are thus pleased to refer you to our essay Winning One for the Gipper: The Looming Legal Threats to American Football, which has just been published in the Pennsylvania Defense Institute’s quarterly magazine. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News First Department Denies Defendant's "Threshold Motion" Due to Untimely IME? January 25, 2011 < Back Share to: In Quinones v. Ksieniewicz, the First Department modified the decision of New York County Supreme Court, which had granted defendant's "threshold" summary judgment motion. Plaintiff' underwent an IME, which demonstrated no "permanent consequential limitation of use". Plaintiff then failed to raise a triable issue of fact in opposition to defendant's motion. The First Department noted, however, that defendants failed to prove that plaintiff did not sustain a non-permanent injury for 90 of the 180 days immediately following the accident. The Court notes that the medical reports relied upon by defendants are dated approximately 2 years after the accident, as opposed to the six months immediately following the accident. The Court implies, then, that if plaintiff's medical reports are dated later than 6 months after the date of loss, no defendant can meet their burden of demonstrating that plaintiff did not sustain a non-permanent injury. This is troubling, because the statute of limitations for negligence, the most common cause of action in auto accidents, is three years. A plaintiff could conceivably wait a year to bring suit, thereby rendering a defendant's threshold motion moot, at least as to a non-permanent injury. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00270.htm Previous Next Contact

News NJ Court Finds That Endorsement Limiting Scope of “Coverage Territory” Governs February 18, 2021 < Back Share to: The interplay between various endorsements in a policy is not always clear. This is especially the case where multiple endorsements state they are “replacing” the same provisions. A New Jersey federal judge rejected an attempt by an insured to expand coverage beyond the scope of the policy’s plain terms. In so doing, the court reaffirmed that a policy endorsement’s restriction of coverage to a specified location cannot be overridden by another endorsement which does not alter, or otherwise refer to, that aspect of coverage. In FYT Supplies, the insured FYT was a tattoo parlor, which operated out of a location in Brooklyn. Its insurance policy contained a Limitation of Coverage Endorsement provision which stated that the Policy applied only to bodily injury that “[o]ccurs on the premises shown in the Schedule,” which in turn only listed the insured’s location in Brooklyn. In 2018, while at a trade show in the Meadowlands in New Jersey, one of the FYT’s employees was injured while moving certain equipment. The employee sued FYT and FYT sought coverage, which was denied by its insurer. In the ensuing declaratory judgment action, the insurer argued that there was no coverage based on the Limitation of Coverage Endorsement. In other words, because the injury did not occur on the Brooklyn premises listed in the Schedule, but in New Jersey, there was no coverage for FYT in the underlying action. FYT sought to avoid this straightforward application of policy language by pointing to the Policy’s New York Changes Endorsement. That endorsement modified the coverage grant of the Policy and states that coverage exists for bodily injury that takes place in the “coverage territory,” defined to mean anywhere in the United States. FYT thus argued that this language superseded the Limitation of Coverage Endorsement. The court rejected FYT’s arguments, holding that the Limitation of Coverage Endorsement governed, and thus the insurer’s liability was confined to injuries that took place at the insured’s location in Brooklyn. The court noted that the New York Changes Endorsement does not impact the scope of coverage in any way. Thus, the court held that “the language of the New York Changes Endorsement is inserted into a policy which also lists and explicitly incorporates the Limitation of Liability Endorsement.” The court also noted that, perhaps unsurprisingly given its potential impact, no court had yet addressed FYT’s arguments. However, the court held that “[r]eading the … Policy and the endorsements as a whole, it becomes clear that there is only one modification to the precise section at issue, and that modification is contained in the Limitation of Coverage Endorsement. [FYT’s] interpretation would render it meaningless.” While the outcome of the FYT decision seems obvious, it nonetheless affirms the notion that a court will not render certain policy provisions meaningless and frustrate the purpose of the language to which the parties agreed. Thanks to Doug Giombarrese for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News EDPA Grants Partial Summary Judgment on Negligent Hiring and Vicarious Liability Claims November 25, 2020 < Back Share to: In Hena v. Target Corporation, 2020 WL 6321581 (E.D. Pa. Oct. 28, 2020), the Eastern District of Pennsylvania dismissed claims for negligent hiring and vicarious liability arising from a slip and fall accident. In brief, in August 2018, Beatrice Hena was shopping in a Target store in Philadelphia when she “slipped on a slippery and dangerous wet floor and fell, causing her to suffer serious and permanent personal injuries.” Hena filed a three-count Complaint in the Court of Common Pleas of Philadelphia, and Target removed the case to the Eastern District based on diversity jurisdiction. Target then moved to dismiss the counts alleging negligent hiring, selection, and retention and vicarious liability. Specifically, in Count II of her complaint, Hena alleged that Target “negligently hired, retained, contracted, employed, selected, and/or controlled incompetent and unskilled individuals or entities” to keep Target’s aisles free from any hazardous or dangerous conditions. The Court took a two-step approach to dismiss the negligent hiring claim. First, it looked to the Restatement (Second) of Torts §317, which creates an exception to the general rule that a person has no duty to control the conduct of third persons. It provides that when an employee is on the employer’s premises, the employer must exercise reasonable care to control his employee while acting outside the scope of his employment. The Court held that this section did not apply because Hena had specifically pleaded that the employee’s “acts or failures to act were within the course and scope of Defendant’s business.” Next, the Court turned to the Restatement (Second) of Agency § 213, which imposes liability on corporations for negligent hiring or supervision. Under Section 213, an employer may be liable for negligent hiring “if it knew or should have known that an employee was dangerous, careless, or incompetent and such employment might create a situation where the employee’s conduct would harm a third person.” The Court held that the complaint did not identify or even allude to a single Target employee and contained no “factual allegations related to the cause or characteristics of the allegedly dangerous condition or why the condition should have been foreseeable given what Target knew or should have known about its employees.” The Court disposed of the negligent hiring claim by saying “Plaintiff cannot transform a simple premises liability action into a negligent hiring case by including broad, conclusory allegations about unidentified, unskilled or incompetent employees in her Complaint." Finally, the Court dismissed Count III for failure to state a claim for vicarious liability or respondeat superior. An employer is vicariously liable for the wrongful acts of an employee if that act was committed during the course and scope of employment. However, “respondeat superior merely connotes a doctrine of imputation once an underlying theory of liability has been established. It is not a separate cause of action.” The Court reiterated that Hena had not identified any agent of Target or any specific tortious action by an agent that could be imputed to Target to support an independent count of vicarious liability, and had therefore failed to establish an independent claim for vicarious liability. The Court’s decision in Hena reiterates that “broad, conclusory allegations,” rather than specific facts, will invariably be insufficient to support a claim for relief in Pennsylvania federal court. Thanks to Jim Scott for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Preexisting Conditions Discoverable When Medical Condition Placed in Controversy (NY) August 15, 2013 < Back Share to: In Walters v. Sallah, the First Department recognized the significance of obtaining a plaintiff’s pre-accident medical records when a plaintiff places his or her medical condition in controversy. Walters sustained injuries in a car accident and claimed that he was unable to perform substantially all of his usual daily functions for at least 90 out of the first 180 days following the accident. The defendants moved to compel Walters to provide authorizations to obtain his medical records pertaining to a pre-existing arthritic condition, as well as disability records from the Social Security Administration. The defendants argued that these pre-existing conditions could be the cause of Walter’s inability to perform his usual daily activities. In reversing the lower court’s decision, the First Department ruled that the defendants met their burden of showing that the requested records were relevant to a physical condition that Walters placed in controversy. It was left, however, to the lower court’s discretion to limit the discovery to reasonable parameters, including time frame and relevant body parts. Thus, while such discovery is clearly relevant and discoverable, defendants are not generally entitled to an unfiltered fishing expedition. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News NJ UIM Coverage: What Are Your Limits? December 28, 2012 < Back Share to: For years auto insurance in New Jersey was a hot topic as the Legislature wrangled with how to make no fault insurance cost effective. The result was a very defined statutory scheme that requires all liabilities policies to include uninsured and underinsured motorist protection. Of course, individuals have options, including just how much protection they want to purchase. In the realm of uninsured/underinsured protection, an insured can choose what limits they would like to have. However, they must be aware that the limit they select will strictly bind them. In Aggour v. GEICO, the plaintiff was injured in a multi-vehicle accident involving injuries to a number of individuals. The tortfeasor driver had policy limits of $100,000 per person and $300,000 aggregate. Coincidentally, the plaintiff had the same per person policy limit for underinsured coverage. Because of the multiple claimants, the plaintiff’s settlement share was less than she believed she would have been entitled. However, her insurer denied coverage inasmuch as the policy limits were identical. GEICO’s motion for summary judgment was granted based upon N.J.S.A. 17:28-1.1(e)(1) since the tortfeasor had the same liability limit as the underinsured motorist limit applicable to plaintiff’s policy. The appellate division agreed that the comparison of policy limits determines whether a claim for underinsured coverage may prevail. That there may have been a shortfall in coverage due to multiple settlements is of no consequence. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Puppy Play Not Foul Play (NY) July 14, 2023 < Back Share to: Recently, the Appellate Division, Second Department affirmed the Supreme Court’s award of summary judgment dismissing a personal injury action in which the defendant allegedly failed to keep his dog under control and, being aware of the dog’s aggressive propensity, failed to take protective measures. In Murga v. Yarusso, plaintiff testified that while out for a walk, a dog ran into the street from the defendant’s property and knocked him to the ground. The plaintiff was not bitten by the dog, but he described the dog as acting like “a big puppy” trying to play with him. The defendant testified that he was playing catch with his dog on his front lawn when the plaintiff tripped when he caught sight of his dog. The defendant claimed that his dog did not go into the street or have contact with the plaintiff. In moving for summary judgment, the defendant submitted evidence that the dog lacked any known vicious propensities. In opposition, the plaintiff argued that the nature of the dog was irrelevant as the defendant was negligent for playing catch with his dog and causing the dog to collide with him. The Supreme Court granted defendant’s motion and the Second Department affirmed, finding that even if the evidence supported plaintiff’s factual account, New York does not recognize a common-law cause of action for an owner’s negligent handling of a dog. The Murga case is significant in that the Appellate Division refused to recognize liability for the negligent handling of a dog. The court took a commonsense approach and rejected plaintiff’s attempt to attend extend dog bite law to the facts of the case. Please contact John Diffley with any questions. Previous Next Contact

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News WCM Awarded Summary Judgment in Philadelphia County Construction Defect Case. December 3, 2016 < Back Share to: Partner Bob Cosgrove and associate Erin Connolly were awarded summary judgment in the Pennsylvania Court of Common Pleas, Philadelphia County, in a construction defect lawsuit. The case of Horowski v. Neal F. Rubin, et al. arose out of the new construction of a single family residence in Philadelphia, PA, which the plaintiffs bought and thereafter alleged to have been defective. As a result of the defects, the plaintiffs sued a number of parties, including the general contractor. In turn, the general contractor sued our client, a roofing subcontractor. In its joinder complaint, the general contractor alleged, inter alia, that our client's roofing work was defective. After the completion of discovery and depositions, we moved for summary judgment, arguing that there was no evidence demonstrating that Aklym’s work was defective. In support of our argument, we highlighted the depositions of the City’s inspector and the plaintiffs’ home inspector as well as the plaintiffs’ expert reports, all of which clearly demonstrated that our client's work was not defective. Ultimately, the court agreed with our position and dismissed all claims against our client. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

News Insurer Just In Nick Of Time Under Statute Of Limitations For Indemnity Loss (PA) February 21, 2013 < Back Share to: The statute of limitations, effectively the timeline gatekeeper of the courts, is an important consideration for anyone looking to bring a claim, as well as for those looking to defend one. A lawsuit is most appropriate when the evidence is still fresh, the related property or scene of an accident remains unchanged, and the memories of those involved have not yet begun to fade. The applicable statute of limitation is contingent upon the cause of action pled. In Lincoln General Insurance Co. v. Kingsway America Agency Inc., the court applied a statute of limitations analysis that allowed the insurance company to bring suit in an effort to collect losses it had incurred as a result of its agent’s sloppy (and expensive) mistakes. Lincoln General was permitted to resume an indemnity suit against Kingsway America Agency, a brokerage firm, to recoup a settlement to the estate of a truck driver involved in a fatal accident. The language of the contract between the parties unambiguously provided that Lincoln General was to be indemnified by Kingsway America for both loss and liability claims. The crucial issue addressed by the court that ultimately led to Lincoln General’s success, surrounded the determination as to when the statute of limitations clock began to tick for each claim—a starting point which may differ depending on whether it is applied to a loss or liability provision. The court determined that the statute of limitations for Lincoln General’s loss claim could not have begun until the company settled a claim made by its insured. With regard to indemnity against loss in Pennsylvania, the courts have agreed that the clock does not begin to tick until payment is made. In the case at hand, Lincoln General settled the claim brought by the truck driver’s estate for $1 million in September of 2007. It in turn brought suit against Kingsway America in June of 2011, after it determined that the broker’s failure to get a proper write-down resulted in its payment of the settlement. Since the indemnity suit was brought three months shy of the four year time frame permitted by the statute of limitations, Lincoln General appears to have just been saved by the bell. Special thanks to Samantha Kaskey Berman for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact