This and That by Dennis Wade (WCM Celebrates 25 Years)
25 years. A quarter of a century. That’s how long WCM has flown its banner, serving our clients, delivering, I believe, superior outcomes. The question begged, of course, is whether, in the hyper- competitive market in which we compete (insurance and related controversies), longevity as a firm, stability, really matter? We recognize, to be sure, many old line legacy firms carry the names of partners who now practice in the clouds, high above the day-to-day contests of insurance controversies. But recently, I was struck by the advertisement for Farmers Insurance: “We know a thing or two. Because we’ve seen a thing or two.” And in our 25 years of practice, we’ve seen a thing or two—and I believe that gives us an edge on the advice we give and the defenses we put forward on behalf of our clients—you and your customers.
Our website touts “Judgment Forged By Experience.” And, while a slogan, it goes to the heart of what we believe: The law must be judged through the prism of experience. Just today, I chatted with a client, frustrated with a jurist who seemed to be in the pocket of the other side. “It happens,” I said, “but what counts is our next move.” Railing against a bad draw on the wheel of justice serves an important purpose–venting; but, experience teaches, the focus must be on the next steps. Successful outcomes don’t turn on border skirmishes; they turn on who, on balance, comes out on top of the matter. And that is precisely where experience and the fortitude of having seen a thing or two really matter.
We’ve all heard “Less is more” in a variety of contexts. Less does not really refer to verbiage; it refers to the key points necessary to win the contest. Our collective experience, like a knife honed to a fine edge, allows us to cut away what is extraneous and to carve into bite size pieces what is essential to make the best possible case for our clients.
We can’t change the facts. But we can shape the outcome by a relentless focus on making the complex simple, and by a renewed commitment to keeping our clients’ interests at the center of all that we do.
And that’s it for this This and That. Stay tuned for the next 25.
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It’s Not An Accident That You’re Sick (PA)
In Mollura v. Aflac Insurance, the Pennsylvania Court of Common Pleas grappled with determining whether a sickness constitutes an accident under policy language. In Mollura, a physician, Joseph Mollura, provided health care for the Pennsylvania State Prison System. Pursuant to his employment, he purchased an accidental injury insurance policy. Mollura, unfortunately contracted legionella pneumonia from […]Read More
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Second Circuit Highlights Importance of Preserving All Coverage Arguments for Appeal (NY)
In Harleysville v. Wesco, the Second Circuit upheld a District Court ruling that an insurance company must reimburse another insurance company for costs incurred defending and indemnifying their mutual insured. In the underlying action, M&T, the mutual insured, was sued after delivering milk contaminated with metal filings to a client, causing extensive damage to their […]Read More
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It’s Not Your Fault (PA)
In Precision Underground Pipe Servs. v. Penn Nat’l Mut. Cas., Verizon entered into a contract with Parkside to install an underground conduit for Verizon’s fiber optic cable in Villanova, Pa. Under this agreement, Parkside was required to name Verizon as an additional insured and to indemnify Verizon. Parkside subsequently contracted with Precision to provide additional […]Read More
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Dear John Doe (PA)
Don’t forget about John Doe when appealing trial court orders holds Pennsylvania Superior Court. In William Massaro v. Tincher Contracting, LLC, Kenneth E. Tincher II, & John Does 1-10, William Massaro (“Massaro”) sued Kenneth Tincher and his contracting company, Tincher Contracting, LLC (together, “Tincher”) for breach of contract, breach of implied warranties, and unfair trade […]Read More
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Don’t Judge A Book By Its Cover (NJ)
In Evanston Insurance Co. v. A&R Homes Development, LLC, et al., the New Jersey Superior Appellate Division held that a declarations page alone cannot create a reasonable expectation of coverage. Evanston Insurance issued a CGL policy to A&R Homes, a development company hired to construct an apartment building in Jersey City. The injured plaintiff in […]Read More
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WCM Is Pleased to Announce That Vivian Turetsky Has Been Promoted to Counsel
With effect as of January 1, 2019, WCM is pleased to announce that Vivian Turetsky has been promoted to the rank of counsel. Vivian focuses her practice on insurance coverage litigation on behalf of general liability, fine art, and jeweler’s block insurers in both state and federal courts in New York and New Jersey. Vivian joined WCM after practicing commercial litigation at both large and boutique litigation firms.
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General Notice of Frequent Occurrence Not Sufficient to Show Actual Notice of Current Transitory Spill (PA)
In Karten v. Shop Rite the plaintiff claimed that she slipped and fell on some debris that was dark, slippery and smelled of rotten banana on the main walkway of the parking lot as she was leaving a Shop Rite grocery store. The plaintiff sustained injuries to her knee, ankle and lower back, and filed suit for negligent maintenance of the premises. Defendants moved for summary judgment, arguing that the store had no actual or constructive notice of the spill. In opposition to the motion, the plaintiff argued that the substance that caused her to fall constituted a dangerous condition of lasting duration. Plaintiff further argued that Shop Rite had actual notice of a dangerous condition because it had received general complaints regarding debris near the parking lot garbage cans. However, the Court found that general notice of a frequent occurrence was not sufficient to show actual notice of a current transitory spill. The Court, in concluding that the substance amounted to a transitory spill, found no evidence of actual notice to the store of the banana’s presence, and concluded that a jury would have to resort to improper speculation. In the alternative, plaintiff complained that Shop Rite failed to produce information regarding a store employee and the surveillance film of the incidence. However, the Court found that the plaintiff manufactured these issues solely for the purpose of opposing summary judgment, as they were never pursued by the plaintiff within the discovery period. Further, the Court found that the allegations in plaintiff’s opposition to summary judgment contradicted her prior pleadings and deposition testimony. In granting summary judgment, the Court found that Pennsylvania law did not support the presumption that damaged debris served as sufficient circumstantial proof for the duration of a transitory spill, and concluded that the plaintiff failed to meet her burden of establishing constructive notice. Therefore, summary judgment was granted in favor of Shop Rite. Thanks to Alexandra Perry for her contribution to this post.Read More
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Geico—15 Minutes Could Save You 15% or More on Car Insurance (PA)
On January 23, 2019, the Pennsylvania Supreme Court overturned numerous published decisions consisting of decades of precedent deciding that the “household vehicle exclusion” found in many auto policies. The Gallagher v. Geico Indemnity Company decision shows how the Court reasoned that the “household vehicle exclusion” conflicted with the UM/UIM stacking provision codified in the Pennsylvania Motor Vehicle Financial Responsibility Law (“PMVFRL”). Gallagher was driving his motorcycle when the driver of a truck ran a stop sign. The truck crashed into Gallagher and he sustained serious injuries as a result. Importantly, Gallagher had two separate Geico auto policies. The first policy insured only the motorcycle and provided $50,000 in UIM coverage. The second Geico policy provided coverage for two of Gallagher’s other vehicles. It contained limits of $100,000 UIM coverage for each vehicle. In their analysis, the Court relied on the fact that Gallagher did not sign a specific waiver form to reject stacking. Instead, Gallagher actually paid higher premiums for stacked UIM coverage under the second Geico policy. Gallagher eventually settled the claim against the truck driver. However, he did not receive sufficient funds with respect to the serious nature of his injuries. Consequently, Gallagher sought $250,000 in UIM coverage from Geico. Geico tendered its entire UIM policy limit of $50,000 pursuant to its first motorcycle policy but denied coverage with respect to its second auto policy as it contained a “household vehicle exclusion.” Geico filed a MSJ, citing applicable precedent which argued that Courts consistently enforce the exclusion. Upon application to the Supreme Court of Pennsylvania, Gallagher argued that the household vehicle exclusion acted as a de facto waiver of stacking – which, pursuant to the PMVFRL, required a specific waiver form to be enforceable. Gallagher further argued – and the Court emphasized – that he specifically paid additional premiums for stacked coverage. The Court agreed that the household vehicle exclusion was a de facto waiver of stacking and thus violated provisions of the PMVFRL. However, the Court did provide several other statements that appear to be glimpses of possible trends with respect to the “household vehicle exclusion”. First, Geico provided all relevant policies. The Court did admit this may change insurance underwriting practices. However, it emphasized here that Geico possessed all information regarding his insurance policies and collected higher premiums from him for stacked coverage. Second, the Court, in a footnote, argued that any insurer could likewise be on notice of multiple policies, even from different carriers. The Court stated “[f]or example, when multiple policies or insurers are involved, an insurer can require disclosure of all household vehicles and policies as part of its application process.” Ostensibly, while the Court states multiple times that this case is unique as Geico provided all policies, this footnote is an ominous sign of changes to come. Thanks to Matthew Care for his contribution to this post.Read More
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Lowering the Bar? (NY)
The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d). In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages. A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages. On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law. Thanks to Tyler Rossworn for his contribution to this post.Read More
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