WCM Achieves Defense Verdict and Favorable Verdict in Harrisburg, PA Jury TrialWCM Partner Bob Cosgrove obtained a defense verdict and favorable verdict in a four day jury trial in Harrisburg, PA. In the case of Joel and Barbara Turk v. Susquehanna Township EMS and Beth Miles, Joel Turk, a dentist, was being transported to the hospital by Susquehanna Township EMS and its EMT Beth Miles. During the course of the transport, Beth Miles lost control of the ambulance and crashed into two trees and one pole – the accident was so significant that Beth had to be cut out of the ambulance with the jaws of life. Joel Turk claimed that the accident exacerbated pre-existing back injuries that rendered him unable to return to work as a dentist and caused him more than $500,000 in past and future lost wages. His wife Beth made standard loss of consortium claims. Plaintiffs claimed that Susquehanna Township EMS was negligent in its hiring, training and supervision of Beth Miles and that Beth Miles was negligent in her operation of the ambulance. After hearing all of the evidence, the 12 person jury unanimously determined that Susquehanna Township EMS was not negligent, but found that Beth Miles was 100% negligent. The jury rejected, however, the plaintiffs’ claims that the injuries suffered in the accident were life altering. They awarded total damages of $31,165.01 – an award that included $2,804.46 in stipulated out of pocket medical expenses and $6,860.55 in stipulated incidental expenses. No money was awarded for the loss of consortium claim, $15,000 was awarded for a loss of past income and $6,500 was awarded for pain and suffering. For more information about this case or WCM’s trial practice, please contact Bob Cosgrove.Read More
In Memory of Jeff WestonWe at WCM mourn the untimely passing of our long-time friend and London Market representative Jeff Weston on February 19, 2022. Jeff was felled by a heart attack during a skiing holiday in Finland with his dear wife Irina and their two lovely young girls, Sienna and Lucia. In the midst of pain and deep sorrow for a life tragically cut short, we give thanks for knowing Jeff and enjoying the great pleasure of his company. While our grief is hard felt, our aim here is to celebrate the life of a man who gave his all to his family and friends. We also pay tribute to a consummate insurance professional who, with a big grin, a welcoming handshake, a wooden leg and a deep knowledge of the insurance industry, made all around him feel better about themselves—and the undertaking of the moment. While we suffer the loss of our friend, we shall continued to be sustained by Jeff’s spirit—and his always sunny outlook on life’s journey even during our golfing misadventures. Our thoughts and prayers are with Jeff’s wife and daughters. We will provide any further public details as they become available. Read More
The End Is Near. Statutory Bad Faith Begins in NJWell, it finally happened. After a few years of debates and a not insignificant amount of plaintiff lobbying, this week, Governor Murphy signed into law the New Jersey Insurance Fair Conduct Act. The law creates statutory bad faith in NJ. Fortunately (although this is likely the canary in the coal mine), the law ONLY applies to parties injured in a motor vehicle accident who are entitled to uninsured or underinsured benefits. If the insurer “unreasonably” denies a claim or “unreasonably” delays payment of owed benefits, then the insurer is subject to: (a) actual damages (including trial verdicts) up to 3x the applicable coverage amount; (b) pre and post judgment interest; (c) reasonable attorneys fees; and (d) reasonable litigation expenses. In other words, the insurer has exposure to what are basically “standard” bad faith damages. In terms of “reasonableness”, I think the policyholder bar is going to push for 30 day turnarounds. Sounds like fun during this time of the Great Resignation It’s safe to say that we can expect a flood of new lawsuits in 2022 (all the while insurers are trying to comply with the onerous new NY insurance disclosure obligations —https://www.wcmlaw.com/2022/01/new-ny-insurance-disclosure-obligations-effective-december-31-2021/). The policyholder bar just does a much better job at getting legislation passed — even when that legislation appears to be a solution in search of a problem. For more information about this new law, please contact Bob Cosgrove.Read More
PA Duty To Defend = Duty To Indemnify? In Some Situations, Yes.
On November 18, 2021, the U.S. Court of Appeals for the Third Circuit issued a non-precedential opinion in the case of Liberty Mutual Insurance Co v. Penn National Mutual Casualty arising out of an appeal filed by Penn National Mutual Insurance Company (“Penn National”) of an order directing Penn National to defend and indemnify an entity insured by Liberty Mutual Insurance Company (“Liberty Mutual”) as an additional insured.
By way of brief background, the underlying action involves a wrongful death and survival suit brought against Cost Company (“Cost”), insured by Liberty Mutual, and Pittsburgh Flexicore Co. (“Flexicore”), insured by Penn National, for the death of Yamil Alexander Gonzalez allegedly caused by Cost’s and Flexicore’s inter alia, negligence, failure to maintain adequate safety measures during a construction project and failure to provide proper warnings or instructions.
Cost and Flexicore entered a subcontract, which required, inter alia, Flexicore to obtain general liability insurance, name Cost as an additional insured and indemnify Cost “against any and all claims, causes of action, suits, losses, costs or damages, including attorneys’ fees, resulting from the acts, failure to act, omissions, negligence, or fault” of Flexicore, “whether or not said claim . . . is alleged to be caused in part by any act, omission, negligence, or fault” of Cost. Pursuant to the subcontract, Flexicore obtained a general liability policy from Penn National, which contained a Completed Operations endorsement providing additional insured coverage to any person(s)/organization(s) where required by a written contract to name such person(s)/organization(s) as an additional insured for the “products-completed operations hazard”, but only with respect to, bodily injury” caused by “your work” at the location/project designated in the subcontract and performed for that additional insured and included in the products-completed operations hazard.
In response to the underlying action, Cost requested defense and indemnify from Penn National; however, Penn National disclaimed coverage as it determined (1) the Subcontract did “not clearly and unambiguously” establish Flexicore agreed to indemnify Cost for its own negligence and (2) any additional insured coverage owed to Cost terminated at the completion of Flexicore’s operations. As such, Liberty Mutual defended Cost and Penn National defended Flexicore. Ultimately, the underlying action settled and Liberty Mutual and Penn National indemnified their respective insureds.
Following settlement, Liberty Mutual commenced the instant action claiming Cost was an additional insured under the Penn National policy and seeking reimbursement for the sums it paid to defend and indemnify Cost in the underlying action. The parties then moved for summary judgment. Examining the allegations in the complaint of the underlying action, the District Court granted Liberty Mutual’s motion holding Penn National had a duty to defend and indemnify Cost. Penn National’s appeal ensued.
On appeal, the Third Circuit first analyzed whether Penn National had a duty to defend Cost. Applying long-standing Pennsylvania case law, the Court held Penn National’s duty to defend was triggered because Cost qualified as an additional insured under the Policy’s Completed Operations endorsement as (1) the subcontract named Cost as an additional insured; (2) the underlying action alleged the “bodily injury” was caused, at least in part, by Flexicore’s work; and (3) the Policy’s “products-completed operations hazard covered such work as the underlying action alleged Gonzalez’s death was caused, in part, by Flexicore’s failure to provide warnings, i.e., Flexicore’s “work” as defined by the Policy.
The Third Circuit then analyzed whether Penn National had a duty to indemnify Cost. Beginning with the principle that a duty to indemnify analysis typically considers evidence beyond the four corners of the underlying tort claim, in cases where the underlying action settles, the Court held extrinsic evidence may not necessarily come into consideration. Specifically, the Court stressed that in cases where the underlying tort action settles and the necessary factfinding to aid in coverage determinations does not occur, insurers are only permitted to seek resolution of factual disputes that would not have been resolved even if the underlying action was tried. In other words, factual disputes that could have been addressed at trial (if the underlying action did not settle) cannot be resolved in coverage litigation. In such situations, the Court held the duty to indemnify is triggered where there is a duty to defend.
In affirming the District Court’s holding, the Court held the underlying settlement made it impossible to determine the basis of Costs’ and Flexicore’s precise liability for coverage purposes as the underlying action involved multiple claims against multiple defendants, covered by multiple insurers – therefore, the underlying settlement made it impossible for the District Court to determine whether Flexicore was liable for its “work”. As such, the Court held Penn National’s duty to indemnify flowed from its duty to defend.
This decision is interesting as it seems to adhere to the sentiment of Pennsylvania courts that insurers declining coverage do so at their own peril as one could argue this decision precludes an insurer – that improperly disclaims coverage – from litigating indemnity and coverage issues in cases where the underlying action settles. Either way, this decision amplifies the importance of addressing coverage issues head on to ensure such issues are properly preserved where necessary.
For more information about this post please contact Lauren Berenbaum.Read More
WCM Partner Named PA Insurance Expert of the Year
WCM Partner Bob Cosgrove — who, earlier in the year was selected by Thompson Reuters as a Pennsylvania SuperLawyer –was just named the 2021 Insurance Expert of the Year in Pennsylvania, USA by Leaders in Law. Leaders in Law is a London based company that vets, selects and recognizes attorneys around the world who are known to be leaders in their respective practice areas. For more information about Bob, or how WCM can serve your needs in Pennsylvania, please contact Bob.
Jury Trials in the Age of COVID. An Insider’s View of What Courts Will Look Like.Subject to approval from the City of Philadelphia – the Court is a tenant of the City in Philadelphia City Hall — civil jury trials are set to resume in Philadelphia this week. On Friday, as a defense lawyer representative, I had the chance to attend a walkthrough hosted by Presiding Civil Judge Anders and get a sense of what the physical setup will be. Here is a quick overview and some notes I put together. Don’t take it as Gospel truth for Philadelphia as I’m sure things will evolve as theory is turned into practice (and I know the Court is holding information sessions this week to provide information). I’m sure US courts everywhere will end up looking somewhat similar for the foreseeable future…assuming, of course, that trials actually proceed, and COVID doesn’t get worse, and… One year into being stuck at home am I a realist or a cynic? You decide. Feel free to reach out to me with any questions at firstname.lastname@example.orgRead More
Chip George Joins WCM’s Florida OfficeWCM is pleased to announce that Chip George has joined WCM’s Miami, Florida Office. Chip has been a friend of WCM’s for years and we are beyond excited that the timing has finally worked out for us to formally work together. WCM’s Florida office focuses on coverage and coverage litigation. The office stands ready to assist in everything insurance law from cargo, jeweler’s block/specie to homeowner’s, hurricanes and general liability. For more information about our Florida office or what it can do for you, please contact WCM’s Operations Attorney Chelsea Rendelman or Chip, himself.Read More
WCM Attorneys Become Published Authors in Counterpoint.Partner Bob Cosgrove and associate Lauren Berenbaum and Partner Colleen Hayes have written essays in the COUNTERPOINT – December 2020 Issue, the Pennsylvania Defense Institute’s quarterly newsletter. The PDI is the Pennsylvania state affiliate of the Defense Research Institute. Bob and Lauren’s essay is entitled Is Our Biometric Data Protected and explores some of the new legislation, case law and privacy concerns involving the collection of biometric data. Colleen’s essay is entitled Close Encounters of the COVID Kind and What It Means for Insurance Coverage and analyzes some of the insurance issues arising out of the continuing global pandemic. For more information about the essays or WCM’s Privacy, Cybersecurity and E-Discovery or Insurance Coverage practices, please contact Bob or Colleen.Read More
WCM Is Pleased to Announce the Addition of Jim Scott to Its Philadelphia Office.Wade Clark Mulcahy, LLP is pleased to announce the addition of Jim Scott to its Philadelphia office. A former President of the Philadelphia Association of Defense Counsel and an officer and vice-president of the Pennsylvania Defense Institute, Jim brings to WCM a wealth of experience handling large exposure property damage and personal injury claims in both New Jersey and Pennsylvania. An engineer by training, Jim has specialized expertise in litigating construction defect claims. Jim can be reached at email@example.comRead More
WCM Opens London, England OfficeWade Clark Mulcahy, LLP is pleased to announce the opening of its London, England office located at:
Wade Clark Mulcahy, LLP
6 London Street
London, EC3R 7LP
442081592544Nestled in the heart of the City across from Fenchurch Street Station, WCM’s London office will allow WCM to better serve its Lloyd’s and London market clients. To staff the office, WCM is further pleased to announce that Jeff Weston, a market veteran, has agreed to become WCM’s London Market Representative. Jeff has been a friend of WCM’s for many years and we are delighted to bring him on board. Jeff can be reached at firstname.lastname@example.orgRead More