New Jersey

NJ Bad Faith Claim Dismissed As Mere Denial Of Coverage Is Not Grounds For Bad Faith

The United States District Court for the District of New Jersey recently granted an insurer’s motion to dismiss a bad faith claim where the insurer merely denied coverage and declined to settle with the plaintiff, reiterating that more than a denial of coverage is required to establish bad faith on the part of an insurer.  In Terrance Minor v. Allstate New Jersey Insurance Co., ABC Corp. (1-5) and John Does (1-5), the Court addressed this issue on Allstate’s motion to dismiss.  Minor was involved in an uninsured motor vehicle accident, claiming that Allstate (his vehicle’s insurer) owed him uninsured motorist coverage. Minor alleged that he attempted to resolve his claim with Allstate, but that Allstate refused to settle or go to arbitration. Minor alleged that Allstate breached the covenant of good faith and fair dealing in not settling with him.  In reaching its decision, the Court noted that to establish a breach of the duty of good faith and fair dealing under New Jersey law, a plaintiff must allege that: “(1) the defendant act[ed] in bad faith or with a malicious motive, (2) to deny the plaintiff some benefit of the bargain originally intended by the parties, even if that benefit was not an express provision of the contract.” In the insurance coverage context, the court noted, establishing bad faith “requires a plaintiff to ‘show the absence of a reasonable basis for denying benefits of the policy and the defendant’s knowledge or reckless disregard of the lack of a reasonable basis for denying the claim.’” The Court disagreed with Minor’s argument that Allstate had acted in bad faith because despite numerous discussions regarding resolution between Minor and Allstate, Allstate refused to settle or go to arbitration. In doing so, the Court also rejected the argument that an insurer’s denial of coverage inferentially establishes bad faith. The Court further noted that the complaint itself did not establish bad faith, as it failed to point to specific provisions of the insurance contract or specific dealings between the parties that could potentially allow the Court to infer that Allstate had no reasonable basis to deny coverage. This decision emphatically reiterates the standard on NJ bad faith.  First, it requires a plaintiff to show specificity within the complaint, and that plaintiff avers specific provisions of the insurance contract or specific dealings between the parties rise to the level of bad faith. Second, it demonstrates that an insurer’s refusal to settle or arbitrate a claim, even after numerous discussions with the other parties, is not enough, standing alone, to establish bad faith. Thanks to Erin Gallagher for her assistance in this article.  Should you have any questions, please contact Tom Bracken.Read More

Step Risers Into Showers Are Not Open And Obvious (NY)

New York Courts recently held that a step riser in a shower stall in a gym locker room is not obvious and not dangerous. In Lore v. Fitness International LLC , plaintiff tripped and fell on a tiled single-step riser while entering a shower stall in the locker room at defendant’s gym. The single-step riser was approximately 4.5 inches high but was tiled in the same color and pattern as the floor tiles. In New York, the possessor has a duty to maintain the property in a reasonably safe condition. However, there is no duty to protect against an open and obvious condition that is not inherently dangerous. The Supreme Court granted the defendant gym’s motion for summary judgment on the grounds that the single-step riser was open and obvious and not inherently dangerous. On appeal, the Second Department reversed and concluded that defendant gym did not establish that the step riser was not inherently dangerous under the surrounding circumstances, including the lighting conditions at the time of the accident. This decision will raise the bar on summary judgment when arguing open and obvious conditions. Circumstances surrounding the condition will need to be addressed in summary judgment arguments. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions.Read More

Uber Eats Not Required By Statute To Maintain $1.5 Million In UIM Coverage (NJ)

On September 27, 2022, raised as an issue of first impression in Malzberg v. Josey, et al., no.: A-2883-20, a New Jersey state appeals court held that insurance coverage requirements under the state’s Transportation Network Company Safety and Regulatory Act (“TNCSRA”) do not apply to Uber Eats’ food delivery services. Specifically, the three-judge panel affirmed summary judgment in favor of defendant, James River Insurance Co. (“James River”) finding that underinsured motorist coverage required under the TNCSRA was limited to regulating transportation network companies that use app-based services to connect passengers to drivers for prearranged passenger rides but not necessarily for connecting consumers to food delivery services. In Malzberg, plaintiff, Scott Malzberg (“Plaintiff”) enrolled with an Uber subsidiary, Portier LLC, to use his motorcycle to deliver food through Uber Eats subsidiary, Portier, LLC (“Uber”). While making a delivery, traveling on a North New Jersey highway, Plaintiff collided with Caren Josey (“Josey”) and was thrown from his motorcycle. Plaintiff sustained significant injuries requiring multiple surgeries which exceeded Josey’s personal insurance policy. Generally, under the TNCSRA, transportation network companies must provide at least $1.5 million in underinsured motorist coverage. Uber’s insurer, James River denied underinsured motorist benefits to cover costs exceeding Josey’s coverage being that the commercial policy provided coverage for Uber drivers while transporting passengers but not while delivering food orders. Upon filing suit against Josey and James River, the Essex County Superior Court granted summary judgment in favor of James River in January 2019, dismissing Plaintiff’s claim for underinsured motorist coverage. On appeal, Plaintiff’s argued that food delivery drivers should be afforded the same protection as those transporting passengers since the risk of accident and injury are the same despite specific language in the TNCSRA providing the same.  Irrespective, the court held that the TNCSRA, as presently written, only protects drivers who are in the process of arranging or providing a ride, essentially punting the issue back to the legislature to provide clarity. However, the opinion does note that pending legislation supplementing the TNCSRA would establish insurance requirements for businesses using a digital network driver for pre-arraigned delivery of goods. See S. 468 (as amended by Senate, Mar. 24, 2022). While this pending legislation seeks to bridge gaps in the law created by a constant evolution of technology, the TNCSRA, as presently interpreted, does not require transportation network companies to provide underinsured motorist coverage to food delivery drivers. Thanks to Kendal Hutchings for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

Introducing WCM’s 2022 First Year Associates

We are pleased to introduce WCM’s newest team of first year associates, who are starting with us this week across our New Jersey, New York and Pennsylvania offices. New Jersey Harry Harnitchek is a graduate of Rutgers Law School and was a staff editor on the Rutgers Journal of Law and Public Policy.  Harry completed undergraduate studies at the University of Pittsburgh.  Prior to joining WCM, Harry was a judicial intern for various magistrate judges and interned with the Montgomery County Public Defender’s Office.  Harry is an avid gardener and chess player. Yifan (Sherry) Lin is a graduate of Brooklyn Law School and was president and founder of the International Law School Organization and member of the ADR Honor Society.  Sherry completed undergraduate studies at Rutgers University.  Prior to joining WCM, Sherry interned with an immigration firm and was a judicial intern for a New York County Supreme Court judge. Sherry is native proficient in Mandarin, and elementary proficient in Japanese and Italian. New York Alexander Rabhan is a graduate of Benjamin Cardozo School of Law and was president of the mentorship program for the first years and senator of the Student Bar Association.  Alex completed undergraduate studies at the University of Miami.  Prior to joining WCM, Alex interned with several civil litigation firms and with the New York Legal Assistance Group. Christopher Palmieri is a graduate of Touro College Jacob D. Fuchsberg Law Center and was an editor on Law Review.  Chris completed undergraduate studies at Pennsylvania State University.  Prior to joining WCM, Chris interned with a commercial litigation firm, interned with a Nassau County Supreme Court judge, and worked as a legal assistant. Lauren Howard is a graduate of St. John’s University School of Law and was a staff member of the New York Real Property Journal.  Lauren completed undergraduate studies at SUNY Geneseo.  Prior to joining WCM, Lauren interned with a civil litigation firm, an employment and labor litigation firm, and participated in a litigation clinic that focused on consumer justice for the elderly. Rebecca Pasternak is a graduate of St. John’s University School of Law and was an editor on the New York International Law Review.  Rebecca completed undergraduate studies at SUNY Binghamton.  Prior to joining WCM, Rebecca was an MLB salary arbitration intern and an intern with the US Court of Appeals for the Second Circuit’s civil appeals mediation program. Pennsylvania Brenna Jeffries is a graduate of Drexel University Thomas R. Kline School of Law and was a member of its Moot Court Board.  Brenna completed undergraduate studies at Townson University.  Prior to joining WCM, participated in internships that focused on elder law and with the Philadelphia Legal Assistance. Erin Gallagher is a graduate of Temple University James E. Beasley School of Law and was a staff editor on Temple Law Review.  Erin completed undergraduate studies at Brown University.  Prior to joining WCM, Erin interned with the US Department of Education – Office for Civil Rights and was a legal research assistant for various professors.  Erin is fluent in German. Erin Russell is a graduate of Drexel University Thomas R. Kline School of Law and was on the Moot Court Board.  Erin completed undergraduate studies at Franklin & Marshall College.  Prior to joining WCM, Erin interned with a commercial litigation firm and was a judicial intern with the United States District Court for the Eastern District of Pennsylvania.  Erin is an avid softball player. Haley Matthes is a graduate of Widener University Delaware Law School and was a member of Phi Alpha Delta Law Society.  Haley completed undergraduate studies at Lafayette College.  Haley was a summer intern at WCM and prior to that interned with the Northampton County Court of Pleas, with The Office of Pennsylvania Attorney General, and was selected as the only intern to serve The Office of Roderick Stewart, MP in London, England. Jean Scanlan is a graduate of Villanova University Charles Widger School of Law and was a member of the St. Thomas Moore, Pro Bono and Family Law Societies.  Jean completed undergraduate studies at Temple University.  Jean was a summer intern at WCM and prior to that was a judicial extern with the Court of Common Pleas – Civil Division. Sarah Polacek is a graduate of Drexel University Thomas R. Kline School of Law and was an editor on Law Review.  Sarah completed undergraduate studies at the University of Delaware.  Prior to joining WCM, Sarah interned with civil litigation and family law firms and was a judicial intern with the United States District Court for the Eastern District of Pennsylvania. Stephen Kerstein is a graduate of Temple University James E. Beasley School of Law and was a staff editor on Temple Law Review and president of the Jewish Law Students Association.  Stephen completed undergraduate studies at Indiana University.  Prior to joining WCM, Stephen interned with a civil litigation firm, was a class and research assistant for two professors and interned with a congressman in the US House of Representative.Read More

Minority Tolling Under N.J.S.A. 2A:14-2(a) Does Not Apply To New Jersey Wrongful Death Claims

In Monk v. Kennedy University Hospital, Inc., the New Jersey Appellate Division recently addressed whether the minority tolling provision in N.J.S.A. 2A:14-2(a), which allows minors to file medical malpractice claims until the age of 13, applies to wrongful death lawsuits filed on behalf of minor decedents or their estates. In that case, the parents of a deceased minor who died six months after his premature birth sued several defendants for medical malpractice and wrongful death.

The lawsuit was filed more than 4 years after the minor’s death and defendants moved for summary judgment, arguing that the plaintiffs’ claims were barred by the two-year statute of limitations for wrongful death and survival claims. Relying on the minority tolling provision in N.J.S.A. 2A:14-2(a), the trial court denied the motion and found that the statute of limitations was tolled until the minor would have reached the age of 13.

The Appellate Division reversed, holding that the minority tolling provision did not apply under the Wrongful Death Act, N.J.S.A. 2A:31-4. The court noted that when the Wrongful Death Act was drafted, the legislature intended for wrongful death cases be filed within two years of a decedent’s death and not to include minority tolling for claims brought on behalf of deceased minors. The court held that the minority tolling provision did not apply because the statute allows only actions “by or on behalf of a minor” and a “minor” refers to a living infant or person under the age of legal competence. The Court reasoned that had the Wrongful Death Act intended to apply minority tolling to claims brought on behalf of deceased minors, it would have stated so, and there was nothing in the plain language of the statute to suggest that. The court further observed that the purpose of the minority tolling was to give a minor the opportunity to assert his or her legal rights at an age of maturity. However, this opportunity does not exist once a minor dies.

Because the minor in the case was deceased when the complaint was filed, the Court found that the two-year statute of limitations applied. However, the court also remanded the case back to the trial court to address the plaintiffs’ argument that they had substantially complied with the statute of limitations, an issue that had not been reached by the trial court.

The Monk decision makes clear that wrongful death claims involving minors must be filed within the two-year statute of limitations and that the minority tolling provision for medical malpractice does not apply to such claims.

Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions.

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Covid-19 No Longer an Excuse, New Jersey Court Rules

In Hartford Underwriters Insurance Company v. Arch-Concept Construction, Inc., et al., plaintiff Hartford Underwriters Insurance Company (“Hartford”) provided workers compensation insurance to Arch-Concept Construction, Inc. (“Arch-Concept”). Hartford sued Arch-Concept over unpaid premiums. The parties settled under the terms that Arch-Concept was required to pay $275,000 over twelve quarterly installments. In the event the settlement agreement was breached, a consent judgment in favor of Hartford against Arch-Concept for $425,000, less any payments made under the agreement, would be entered.

After Arch-Concept failed to timely remit payments, Hartford sued Arch-Concept seeking their consent judgment less the amount in payments previously remitted. Arch-Concept argued they were unable to make the remaining payments due to the COVID-19 pandemic and the shut-down of their business. A trial judge found in favor of Hartford, reasoning that Arch-Concept failed to prove that the doctrine of impossibility failed to excuse their non-performance of the settlement agreement. The Appellate court affirmed, stating that “the doctrine of impossibility is not applicable where the difficulty is ‘the personal inability of the promisor to perform.’” Additionally, “a party cannot render a contract performance legally impossible by its own actions.” Arch-Concept failed to provide any support of their inability to remit installments as promised and its principle never certified he was personally unable to make payment for any reason.

Although the COVID-19 pandemic can certainly be argued as “an intervening event that was not within the original contemplation of the contracting parties,” or frankly any party for that matter, this case demonstrates a business cannot excuse their default by asserting the doctrine of impossibility without providing sufficient documentation. The Court did not provide examples of documentation that would suffice as support, but we surmise bank account statements could be a start.

Thanks to Gina Rodriguez for her contribution to this article.  Should you have any questions, contact Matthew Care.Read More

New Jersey Supreme Court Looks Outside Pleadings in NJ to Deny Duty to Defend

In Norman Int’l, Inc. v. Admiral Ins. Co., No. 086155, 2022 WL 3220868 (N.J. Aug. 10, 2022), the New Jersey Supreme Court ruled on the application of a county-specific exclusionary clause in an Admiral Insurance Company (“Admiral”) policy issued to Richfield Window Coverings, LLC (“Richfield”)—Richfield sells window coverings, blinds, etc., and also provides retailers with cutting machines to cut its products. The Admiral policy issued to Richfield excluded liability for “bodily injury” that was “in any way connected with” operations/activities in select New York counties, including Nassau County.

Instantly, a Home Depot employee in Nassau County, NY, was injured while using Richfield’s cutting machine­­—a machine which was also maintained by Richfield. The employee filed suit against Richfield in Nassau County. Richfield next sought coverage under its policy with Admiral but Admiral invoked the county-specific exclusionary clause. Richfield sought a declaration in the Superior Court that Admiral was obligated to defend Richfield because the terms “operations” and “activities” in the county-specific exclusionary clause were ambiguous. This argument was rejected and Admirals motion for summary judgment was granted. The Appellate Division, however, reversed and found there was no causal relationship between Richfield’s activities involving the cutting machine and the causes of action raised in the complaint.

More importantly though, the Appellate Division noted that the trial court improperly considered facts from discovery to arrive at its decision. On this issue, the New Jersey Supreme Court stated, in no uncertain terms, that courts in fact can consider “those facts beyond the complaint necessary to determine the duty to defend issue.” Another noteworthy aspect of the opinion was its stance on the meaning of the language “in any way connected with.” On this, the Court stated “in any way connected with” does not require a showing of causation­—it was enough that Richfield provided the machine to Home Depot. Consequently, the Appellate Division’s holding was reversed.

Thanks to Richard Dunne for his contribution to this article.  Should you have any questions, contact Matthew Care.Read More

New Jersey Supreme Court Provides Clarity On Insurance Exclusion Clauses

The New Jersey Supreme Court recently held in Norman International, Inc. v Admiral Insurance Company, that an insured cannot claim an exclusionary clause does not apply because their product was sold to the parent company in a non-excluded zone but directed for delivery to a site in an excluded area. The Court emphasized that they must analyze the precise wording of the policy and consider the actions of the insured within the excluded zone.

When considering the wording, the courts looked at the policy terms that stated, “This insurance does not apply to “bodily injury”, “property damage” or “personal and advertising injury”, including costs or expenses, actually or allegedly arising out of, related to, caused by, contributed to by, or in any way connected with. . . Any operations or activities performed by or on behalf of any insured in the Counties shown in the Schedule above [which contained the county where the injury occurred].” The court defined and focused on the phrase “in any way connected with”  and determined it was to be applied broadly and to mean that it would apply to an injury that is connected in any fashion regardless of its remoteness.

With the broad interpretation of the policy, the Court then considered the actions of the insured to determine whether the injury was in any way connected with the insured. The Court held that the fact that the insured provided the machine that resulted in the injury was enough to trigger the exclusion. The court reasoned that the injury could not have occurred without the machine being provided by the insured and, therefore, the injury was connected with the insured performing an activity within the excluded zone. The court also emphasized that the insured providing training and servicing further supported the connection.

The takeaway from this decision is that, in consideration of exclusionary clauses, the courts will be inclined to closely examine the wording of the policy. While ambiguity will be considered in favor of the non-drafting party, the courts will consider the words and phrases for their precise definitions.

Thanks to Ryan Dame for his contribution to this article.  Should you have any questions, contact Andrew Gibbs.

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Burden On Defense In Multi-Accident Injuries To Prove Separate Causation (NJ)

In a recent case in the New Jersey Appellate Division, the court held that when there are claims stemming from multiple car accidents, the burden is on the defense to prove that the resulting injuries were not caused solely by the accident in which they are the defendant, rather they must demonstrate that there are multiple different causes for the injuries.

In 2015, the Plaintiff was involved in a worker’s compensation claim that damaged her spine. One year later in 2016, she was involved in a three-car accident where she was treated for injuries prior to a second car accident in 2018. Following this 2018 accident, she claimed her injuries became much worse and her pain accelerated. The trial judge dismissed the case upon a motion for summary judgment filed by defendant due to the reasoning that plaintiff’s expert report did not compare the prior injuries of the worker’s compensation injury to the acceleration caused by the two subsequent accidents.

When considering defendant’s motion, the court relied on Davidson v. Slater, where the Supreme Court of New Jersey stated that “a plaintiff could carry her burden of moving forward in her non-aggravation case by demonstrating the existence of a permanent injury resulting from the automobile accident without having to exclude all prior injuries to the same body part.” Davidson v. Slater, 914 A.2d 282, 284 (2007). In the case at hand, defendants alleged that the plaintiff was the party that had to show proof of which accident caused which specific injuries and aggravations, but the Appellate Division found that the burden of proving the causative effect of multiple collisions in relation to injuries is with the defendant.

Thanks to Domenica Tomasetti for her contributions to this post.  Please feel free to contact Tom Bracken with any questions.

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NJ Superior Court Holds Virus Exclusion Applies And Mandated Business Closure Does Not Constitute Physical Loss

The Superior Court of New Jersey, Appellate Division recently dealt with a plaintiff’s coverage claim for business interruption cause by the COVID-19 pandemic and Governor Philip D. Murphy’s Executive Order 107(EO 107). EO 107 was a mandate which cancelled large gatherings of individuals, required the closure of “the brick-and-mortar premises of all nonessential retail business,” and mandated the closure of “[a]ll recreational and entertainment business.”

In Rockleigh Country Club LLC v. Hartford Insurance Group, the Plaintiff was a country club whose business involved the pre-contracting and pre-planning of social events, such as weddings. Plaintiff was forced to shut down its venue in March 2020 pending further orders from Governor Murphy and later brought suit against its insurer seeking among other things, a declaratory judgment that its insurer was required to provide business interruption coverage for losses sustained while the plaintiff could not operate its business.

The policy’s business interruption provision provided coverage for “the actual loss of business income … due to the necessary interruption of business operations … due to direct physical loss of or direct physical damage to property caused by or resulting from a covered cause of loss[.]” Additionally, the policy also contained “Civil Authority” provision which provided coverage for loss of business income when access to plaintiff’s scheduled premises is “specifically prohibited by order of a civil authority as the direct result of a covered cause of loss to property in the immediate area.” However, the policy also contained a “virus exclusion” which stated that the insured would not pay for losses caused directly or indirectly by the “presence, growth, proliferation, spread or any activity of ‘fungus,’ wet rot, dry rot, bacteria or virus.”

Ruling in favor of the insurer, the court found that (1) plaintiff’s inability to use its premises to host large social gatherings did not constitute physical loss or damage to its property; (2) plaintiff was not entitled to coverage the Civil Authority provision because the provision required that access to plaintiff’s property be prohibited by a civil authority “as the direct result of a covered cause of loss to property in the immediate area.” (3) Lastly, finding that EO 107 was issued in response to the COVID-19 virus and therefore was caused directly or indirectly by the virus, the court held that the virus exclusion bars any claim for coverage under the policy.

Thanks to Steven Kaufman for his contribution to this article.  Should you have any questions, please contact Heather Aquino.Read More