Commercial

Insurer Not Obligated to Defend or Indemnify Insured for Breach of Contract Claims (PA)

In Atain Insurance Co. v. Xcapes et al., the United States District Court for the Eastern District of Pennsylvania analyzed whether Atain Insurance Company (“Atain”) was obligated to, inter alia, defend and indemnify its insured, Xcapes, a home improvement contractor, with respect to state lawsuits filed against Xcapes asserting breach of contract, unjust enrichment/quasi contract, violations...Read More

No Mall Respondeat Superior (NY)

The distinctions between independent contractors and employees can determine liability in many circumstances. Here, we have an appellate decision that found that defendants were not liable for any of plaintiff’s injuries on that distinction. In Athenas v. Simon Prop. Group, LP, plaintiff slipped and fell on floor cleaner in the interior common area of a Long Island mall, in front of a Cohen’s...Read More

Superior Court Declines to Expand Personal Jurisdiction over Foreign Corporations (PA)

In Fulano v. Fanjul Corp., the Pennsylvania Superior Court recently considered whether forty-one foreign plaintiffs could establish personal jurisdiction over four corporate defendants all located in different states or countries. Plaintiffs were forty-one Dominican agricultural workers who alleged they became sick after exposure to toxic chemicals while working in the Dominican Republic....Read More

Out of Possession Landowners are Out of Luck

Last year in Xiang Fu He v. Troon Mgt. Inc., the Court of Appeals held that out-of-possession landlords are no longer able to contract away liability based on New York City Administrative Code §7-210. This has led to many previously sound summary judgment decisions being reversed on appeal. In Herrera v. Vargas, the Bronx County Supreme Court granted defendant summary judgment in 2017 based on...Read More

COVID-19 And Force Majeure Clauses (NY)

As the coronavirus COVID-19 has swept the globe and forced “business as usual” to stop nationwide while Americans shelter in place and practice social distancing, there will inevitably be an increase in contractual non-performance due to the changing circumstances.  As business entities and individuals are forced to renege upon their contractual obligations, the courts will need to immediately...Read More

Admission Cannot Be Used to Withdraw Duty to Defend Against Policyholder (PA)

The United States District Court for the Middle District of Pennsylvania recently rejected an insurance company’s attempt to withdraw its defense based on its insured’s admission in a separate pleading.  In MMG Insurance Company v. Guiro. Inc., the insurance company moved for judgment on the pleadings claiming that it owed no coverage to its insured in an underlying action arising from a motor...Read More

In Coverage: Copyright Violations Held Distinct From Breach of Licensing Agreement (NY)

Earlier this week, in McGraw Hill Education, Inc. v. Illinois National Insurance Company, the venerable Honorable Barry R. Ostrager issued a decision upon the unanimous Court that Illinois National must provide insurance coverage in an underlying copyright infringement action, reversing the trial court. Illinois National had argued that because the underlying infringement claims rested upon...Read More

A Prime Time For A Buyer To Beware (NY)

In a recent lawsuit filed in the Eastern District of New York, Amazon.com Inc.’s summary judgment motion was granted by the federal court, rejecting subrogation claims by an insurer.  In Philadelphia Indemnity Ins Co v. Amazon.com Inc., Amazon was sued for losses to a sushi restaurant from a fire allegedly ignited by a defective commercial blender, which was sold and delivered through Amazon’s...Read More

‘Tis the Season to Be Falling’ (PA)

In Patricia Schouppe v. Kirby Upright dba Lamplighter Associates, plaintiff Schouppe sued a property owner, defendant Lamplighter, for negligence after she slipped and fell on snow and ice in the parking lot of the post office. Defendant joined USPS and the local post office to the action, but they were ultimately dismissed. Defendant was considered a landlord out of possession because it...Read More

Putting The Squeeze On Policy Language (NY)

A New York federal court recently held that Hartford did not have a duty to defend or indemnify its insured, Spandex House, in an underlying lawsuit in which Spandex was sued for copyright infringement.  The ruling in Spandex v. Hartford Fire Insurance Company, thus represents a big win for New York insurers who seek to have their contracts enforced as written. In the underlying action, a...Read More