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News In PA, an Insurers’s Election to Subrogation PI Claim Warrants Severance of UIM Claim. March 31, 2010 < Back Share to: In Wutz v. Smith, Wutz was injured in a car accident with Smith. Smith was covered by a minimal $15,000 Progressive Insurance liability policy. Progressive offered to tender the policy to Wutz to settle the claim. Wutz also filed a UIM and bad faith claim against his insurer, State Farm. Pursuant to a consent to settle clause in the UIM policy, Wutz sought State Farm's consent to accept a $15,000 settlement from Progressive. State Farm elected to pay the settlement offer to Wutz and pursue a subrogation claim against Smith. Wutz then moved to sever the personal injury claims and the UIM and bad faith claims. The court held there was a sufficient basis to grant severance noting that State Farm had created a conflict of interest for itself, since as a subrogee, State Farm would have to show both that Smith was negligent and the damages were as high as possible. In contrast, as a UIM defendant, State Farm would have to show the opposite. However, in a case of bad news for State Farm (and isn't there always bad news when it comes to State Farm and bad faith claims), the Court held that since there was no longer any dispute between Wutz and Smith, Wutz should first proceed on the UIM and bad faith claims before State Farm got its bite at the proverbial apple. Special thanks to Ed Lomema for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com http://pdf.wcmlaw.com/pdf/PAUIMBF.pdf Previous Next Contact

News Service by FedEx Sufficient to Comply with PA Service Rules May 2, 2019 < Back Share to: The Pennsylvania Superior Court recently reversed the trial court’s sustaining of preliminary objections on the grounds of improper service of defendants. In AICB v. Benjamin's Desk, LLC, No. 3257 EDA 2017 (2019 PA Super 77), AICB appealed the lower court’s sustaining of Benjamin’s Desk’s preliminary objections for improper service. Benjamin’s Desk retained a general contractor who then hired AICB as a subcontractor for constructing office space improvements. AICB alleged that the general contractor failed to pay AICB over $89,000 for services rendered, and therefore asserted a mechanics’ lien against Benjamin’s Desk. AICB served Benjamin’s Desk with notice of the mechanics lien via FedEx. The notice was delivered and signed for on March 21, 2017. Benjamin’s Desk filed preliminary objections arguing that AICB failed to comply with Philadelphia County’s service-of-notice requirements because a private postmark is not equivalent to a United States Postal Service postmark. The trial court sustained the preliminary objections and dismissed the case. On appeal, AICB argued that it served Benjamin’s Desk via a competent adult (private FedEx courier) and complied with the applicable service rules. The Superior Court explained that the applicable rule for service of original process in Philadelphia states that original service may be served “within the county by the sheriff or a competent adult.” A “competent adult” means an individual eighteen (18) years of age or older who is neither a party to the action nor an employee or a relative of the party. Furthermore, original process may be served by handing a copy any office or usual place of business to the defendant or its agent. In its decision, the Superior Court relied on PA Supreme Court precedent that technical noncompliance with the civil procedure rule for service of original process may be excused absent “intent to stall the judicial machinery” or actual prejudice. In this case, the Court noted that even if AICB failed to comply with the technical postmark requirements, Benjamin’s Desk did receive actual notice. Thus, the court concluded that the trial court committed an error of law in sustaining the preliminary objections and reversed the dismissal and remanded the matter for further proceedings. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Out-of-Possession Landlords May be Out of Luck on Risk Transfer (NY) September 19, 2019 < Back Share to: The First Department just issued a decision allowing an out-of-possession landlord to contract away liability assigned through the New York City Administrative Code §7-210. This decision is currently being reviewed by the Court of Appeals. Plaintiff claimed injury after slipping and falling on ice in front of his job on Flushing Avenue in Brooklyn. His employer leased the building and as such, plaintiff was barred from suit due to the worker’s compensation law. However, plaintiff sued the building owner as the administrative code assigns liability to property owners for injuries caused by the failure to safely maintain sidewalks. The landlord moved for summary judgment citing a lease provision that plaintiff’s employer was responsible for keeping the sidewalk clean and free from snow. Plaintiff opposed stating that while a landlord may contract away responsibility for the sidewalk, liability is non-delegable and the landlord’s recourse would be in indemnification. The trial court agreed and the landlord appealed. The First Department reversed in a short decision stating that an out-of-possession landlord who contracted away responsibility for sidewalk maintenance could not be held liable for plaintiff’s injuries as the presence of snow and ice does not constitute a significant structural or design defect, however, they failed to address the administrative code. During oral arguments, the Court of Appeals appeared receptive to plaintiff’s arguments questioning why the City would require property owners to have liability insurance if it was transferable to their tenants. A decision is pending, but could potentially eliminate the out-of-possession landowner rule should the Court reverse the First Department. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News PA Court Finds No Coverage For Leaky Roof Suit October 14, 2016 < Back Share to: In State Farm Fire and Casualty Co. v. Kim’s Asia Construction, a Pennsylvania court had to determine whether a construction company was entitled to coverage in a suit alleging negligent installation of a leaky roof. Kim’s Asia was hired to remove an existing roof and install a new one. The finished roof leaked during rainstorms, and additional repairs failed to fix the issue and the building owner was forced to hire a new contractor to remove the roof and install another one. Kim’s Asia was sued and it sought coverage for the lawsuit from State Farm. State Farm agreed to defend the case under a reservation of rights and commenced a declaratory judgment action. The policy provided coverage for property damage caused by an “occurrence,” which was defined as an accident. In the Pennsylvania Supreme Court’s 2006 ruling in Kvaerner Metals Div. of Kvaerner U.S. Inc. v. Commercial Union Ins. Co. the justices interpreted nearly identical policy language. Applying the dictionary definition of “accident,” which means “fortuitous,” the court determined that property damage claims based on faulty workmanship do not qualify as an “accident” that establishes an “occurrence” where the underlying complaint does not allege anything “unexpected.” Here, although the complaint included general allegations of negligence, the court determined that there was nothing “unexpected,” “unintentional” or “fortuitous” about the insured’s allegedly poor roof construction. As a result it did not meet the definition of an “occurrence” under the policy and was a faulty workmanship claim that did not trigger coverage. As such, State Farm had no obligation to defend or indemnify Kim’s Asia in the underlying action. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Post Accident Lease Fails to Pierce Church's Immunity (NJ) April 29, 2016 < Back Share to: As a general rule, in New Jersey an owner that uses property strictly for religious purposes is immune from liability for personal injuries sustained while on the property. The recent decision in Rockhill v. Grace Orthodox Presbyterian Church did not depart from the general rule. The plaintiff in Rockhill claimed to have tripped and fallen on the sidewalk adjacent to the Church. In suing the Church, the plaintiff attempted to take advantage of another well established rule: commercial property owners owe a duty to the public to maintain abutting sidewalks in reasonable condition. To that end, in order to sustain her claim, the plaintiff had to prove that the Church owner used the property for some commercial benefit. One year after the plaintiff’s accident, the Church began leasing the property to a local youth group for weekly dances for a charge of $75 per week. In a desperate attempt to pierce the religious immunity, the plaintiff argued this lease was proof that the Church could have leased the property prior to her accident -- but the Court was unconvinced. In upholding summary judgment in the Church’s favor, the Court found that the mere possibility that the Church could have derived some commercial benefit had it leased out the property prior to the plaintiff’s accident was too speculative of an argument. The Court also rejected the plaintiff’s argument that the post-accident commercial activity should retroactively convert the Church to a commercial property owner. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Court Says No to Neuropsychiatrist (NY) November 11, 2016 < Back Share to: In Scariff v Wall St. Mail Pick Up Serv., Inc., the court dealt with whether plaintiff’s expert neuropsychiatrist was able to testify at trial about plaintiff’s injuries. Neuropsychiatry is a branch of medicine that deals with mental disorders attributable to diseases of the nervous system. The plaintiff was struck by a vehicle driven by the defendant while walking across the street. During the damages phase of a jury trial, the plaintiff did not offer any testimony from her treating physicians. Instead, the plaintiff submitted the testimony of an expert neuropsychiatrist, who testified that the plaintiff had severe major depression as a result of the accident, and that she also had cognitive problems. But the trial court precluded the expert neuropsychiatrist from offering any testimony regarding the plaintiff's medical complaints or the accident history. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and a judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs filed an appeal. The Appellate Division held the trial court’s ruling was proper. "A non-treating physician, retained only as an expert, may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff's medical complaints. The expert may give an opinion based on an examination of the plaintiff." Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News District of NJ Denies Insurer’s Attempt to Dismiss Claims for Sexual Abuse Coverage February 4, 2021 < Back Share to: In School Excess Liability Joint Ins. Fund v. Illinois Union Ins. Co., the United States District Court for the District of New Jersey recently considered whether the plaintiffs, School Excess Liability Joint Insurance Fund (“SEL”), Diploma Joint Insurance Fund (“Diploma”), and School Alliance Insurance Fund’s (“SAIF”) sufficiently pled that they have incurred losses that eroded their retained risk and triggered coverage under the excess insurance policies issued by the defendant, Illinois Union Insurance Company (“Illinois”). The plaintiffs sought defense expenses and liability costs for defending sexual abuse claims. By way of brief background, the plaintiffs are joint insurance funds, i.e., public entities composed of “members” who pool resources to self-insure against losses for claims up to a specific amount, and purchase excess insurance from insurance companies to cover losses that exceed that amount. Defendant Illinois issued multiple excess insurance policies to the plaintiffs. Specifically, the excess policies provided Illinois will pay the “Ultimate Net Loss in excess of the Underlying Coverage that the Insured becomes legally obligated to pay as damages because of the injury or damage to which this insurance applies.” In their complaint, the plaintiffs averred that the policies provide coverage for general liability, which encompasses sexual abuse claims, as the policies specifically identify limits of insurance for “sexual abuse” in the Schedule of Underlying Coverage. Therefore, plaintiffs claimed that Illinois breached its contractual duty and duty of good faith and fair dealing by failing to indemnify the plaintiffs for defense expenses and amounts paid for liability and defense expenses for sexual abuse claims. Upon analyzing whether the plaintiffs asserted a valid breach of contract claim, the court the held that, since the plaintiffs are “self-insured”, i.e., without insurance, pursuant to N.J.S.A. 18A:18B-1 et seq., the plaintiffs have no Underlying Coverage as defined by the insurance policies. Therefore, the court reasoned that, by self-insuring, the plaintiffs bore the burden of paying defense expenses. With respect to whether the sexual abuse claims were covered under the policies, the court compared the averments of the complaint with the policies and, treating the factual averments as true and construing the complaint in the light most favorable to the plaintiffs, held the plaintiffs sufficiently pled the sexual abuse claims were covered by the policies and the plaintiffs payments towards those claims eroded their retained risk and triggered Illinois’ indemnification obligation. In denying Illinois’ motion with respect to the breach of contract claim, the Court focused on the policies’ definition of sexual abuse, which the plaintiffs pleaded fell within the ambit of “General Liability”, and identification of aggregate limits for sexual abuse claims. It is important to note that, upon rendering its decision, the court did not take a position as to whether the plaintiffs would ultimately succeed on the merits of their claims, as this determination could only take place after the completion of discovery. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Summary Judgment Granted in Favor of Plaintiff in Trip and Fall on Sidewalk Upon Determine that There was a Substantial Defect of the Sidewalk July 12, 2024 < Back Share to: Polibio Abreu tripped and fell on a sidewalk adjacent to 129 Duane Condominium. His left foot contacted an uneven sidewalk flag, over which he tripped and fell, causing injuries that required acervical fusion. At the time that he fell, Abreu testified that he was looking straight ahead, his hands were empty, and his cell phone was in his pocket. He also alleged that the sidewalk was dimly lit at that time. The property manager of 129 Duane testified that 129 Duane was aware of the condition of the sidewalk prior to the accident, and that he had notified the Board of 129 Duane of the uneven flag. He further testified that the adjoining property had redone their sidewalk and he thought that the condition needed to be repaired by the adjoining property, 200 Church Street Associates LLC. The court noted that as a general matter, 129 Duane has a “non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.” The court found that it was undisputed that the sidewalk flag was in front of 129 Duane’s property. Even still, 200 Church’s potential responsibility for the sidewalk maintenance did not create an issue of fact regarding 129 Duane’s failure to maintain the sidewalk. Abreu produced a photograph with a ruler showing the height differential to be more than one-half inch deep. The court deemed this differential to be a “substantial defect” as defined by the Administrative Code. A “substantial defect,” is not so easily defined. Therefore, to have this example is helpful for our analysis when assessing the liability in other sidewalk cases. Although 129 Duane argued that the defect was “open and obvious,” the court found that the Defendant was unable to demonstrate that the defect was open and obvious in a manner that should preclude liability. The photographs provided were taken during the day and Abreu testified that the lighting was dim when he tripped. The court found that even if they did find the defect to be open and obvious, it would only relieve the 129 Duane of its duty to warn of the defect and not preclude liability for allowing the defect in the first place. This case stands for the proposition that when making an argument that a defect is open and obvious, we must also establish the property owner was not liable for the defect in the first place. Because even though the defect may be open and obvious, if a property owner knew of the defect and failed to remedy it, they still may be liable. Abreu v. Brutus Assoc .pdf Download PDF • 728KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Regular Maintenance Does Not Qualify For Labor Law Action (NY) October 30, 2013 < Back Share to: A fall from an elevated height, due to work that is incidental to regular maintenance does not create a cause of action under Labor Law § 240(1). In Hull v. Fieldpoint Community Assn., Inc., plaintiff was allegedly injured when she fell from a roof while she was cleaning out leaves from the roof gutters of a residence in a condominium development. Her work was performed pursuant to a contract between her employer and the defendant Fieldpoint Community Association, Inc., requiring her employer to clean gutters and leaders, inspect, and caulk openings three times per year. The defendants moved for summary judgment on plaintiff’s Labor Law § 240(1) claim, and plaintiff cross-moved for summary judgment on the issue of liability. The Appellate Division, Second Department, upheld the lower court’s decision in granting defendants’ motion for summary judgment, and in effect denying plaintiff’s motion. The Court held that although Labor Law § 240(1) applies to commercial "cleaning" which is not part of construction, demolition, or repair, such as commercial window washing and sandblasting, it does not apply to work that is incidental to regular maintenance, such as clearing gutters of debris. Therefore, the defendants established, prima facie, their entitlement to judgment as a matter of law with respect to the cause of action pursuant to Labor Law § 240(1). Hull established that people performing regular maintenance at an elevated height better take precautions, as there will be no cause of action under the Labor Law. Special thanks to Johan Obregon for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News A Primer On Florida's 2023 Tort Reform April 28, 2023 < Back Share to: The following contains an outline of the recent changes to Florida’s Tort law. A more detailed, but still limited, synopsis of some of the important changes follows the outline. The changes in Florida’s tort law are far reaching and a full reading of the enacting Bill, which is attached, is necessary to understanding the scope of Florida’s 2023 tort reform. Section 57.104, F.S was amended to create a rebuttable presumption that a lodestar fee is a sufficient and reasonable attorney fee in most civil actions; providing an exception where the only way to hire an attorney is by contingency. Section 86.121, F.S. was amended to authorize a court to award attorney fees in certain declaratory actions and to prohibit the transfer, assignment, or acquisition of the right to such attorney fees except by specified persons; providing applicability. Section 95.11, F.S. was amended to reduces the statute of limitations in negligence actions to 2 years, excepting certain actions involving service members. Section 624.155, F.S. was amended to establishes standards for bad faith insurance actions and established procedures for the distribution of insurance proceeds when two or more third-party claims arising out of a single occurrence exceed policy limits. Section 624.1552, F.S. was amended to provide for applicability of specified offer of judgement provisions to civil actions involving insurance contracts. Section 768.0427, F.S. was amended to providing definitions; establish standards for the admissibility of evidence to prove the cost of damages for medical expenses in certain civil actions; to require certain disclosures with respect to claims for medical expenses for treatment rendered under letters of protection; to specify the damages that may be recovered by a claimant for the reasonable and necessary cost of medical care. Section 768.0701, F.S. was created to require the trier of fact to consider the fault of certain persons who contribute to an injury. Section 768.0706, F.S. was created to provided definitions; to provide that the owner or principal operator of a multifamily residential property which substantially implements specified security measures on that property has a presumption against liability for negligence in connection with certain criminal acts that occur on the premises; to require the Florida Crime Prevention Training Institute of the Department of Legal Affairs to develop a proposed curriculum or best practices for owners or principal operators; to provide construction. Section 768.81, F.S. was amended to provide that a party in a negligence action who is at fault by a specified amount may not recover damages under a comparative negligence action; to provide applicability. Sections 626.9373 and 627.428, F.S. relating to attorney fees awarded against surplus lines insurers and insurers, respectively were repealed. Section 627.756, F.S. was amended to provide for the award of costs and attorney fees in certain actions. Sections 475.01, 475.611, 517.191, 624.123, 624.488, 627.062, 627.401, 627.441, 627.727, 627.736, and 628.6016, F.S. were amended to conform with the changes enacted. Sections 631. 70 and 631.926, F.S., relating to attorney fees were repealed. Section 632.638, F.S. was amended to conform with the changes enacted; amended to provide a directive to the Division of Law Revision; providing applicability and construction of the amendments and providing an effective date. MODIFIED COMPARATIVE NEGLIGENCE The Bill establishes modified comparative negligence; under modified comparative negligence, a plaintiff that is more negligent than the defendant may not recover. TWO-YEAR STATUTE OF LIMITATIONS FOR GENERAL NEGLIGENCE CLAIMS The Bill reduces the statute of limitations for general negligence from 4 years to 2 years. EVIDENCE ON PAST AND FUTURE MEDICAL EXPENSES The Bill details the evidence plaintiffs may introduce to establish past and future medical expenses: The evidence offered to prove the amount of past medical bills that have been paid at the time of trial is limited to the evidence of the amount actually paid, regardless of the source of payment. For unpaid past medical bills, the evidence allowed will depend on whether the plaintiff has health care coverage, Medicare, or Medicaid: Where plaintiff has health care coverage but obtains treatment under letter of protection or does not submit charges, evidence of amount that health care coverage would have paid to satisfy charges, plus plaintiff’s share of medical expenses, is admissible. Evidence of reasonable amounts that were billed to plaintiff for medically necessary treatment or services is also admissible. If plaintiff does not have insurance, or has Medicare or Medicaid, evidence of 120 percent of Medicare reimbursement rate in effect is admissible. If there is no applicable Medicare rate, evidence admissible is 170 percent of applicable state Medicaid rate. Recoverable damages cannot include amounts exceeding the bills in evidence. The amount may not exceed the sum of the amounts actually paid, amounts necessary to satisfy charges due and owing, and the amounts necessary for reasonable and necessary future medical treatment and services. When determining future medical damages, the “usual and customary” amount depends on whether the plaintiff has health care coverage: Where the plaintiff has health care coverage other than Medicare or Medicaid, evidence of amount that could be satisfied if charges were submitted, in addition to portion of medical expenses under insurance contract, is admissible. If plaintiff does not have insurance, or has Medicare or Medicaid, evidence of 120 percent of Medicare reimbursement rate in effect is admissible. If there is no applicable Medicare rate, evidence admissible is 170 percent of applicable state Medicaid rate. LETTERS OF PROTECTION AND REFERRALS The Bill requires that Letters of Protection be disclosed and that all bills for medical expenses be itemized and coded. Where plaintiff is referred for treatment under a letter of protection that must be disclosed, along the referrer, including plaintiff’s attorney (overturning Worley v. Central Florida Young Men’s Christian Ass’n, Inc., 228 So. 2d 18 (Fla. 2017)). INSURANCE BAD FAITH CLAIMS GENERALLY The Bill creates in a duty, on the part of the insured, claimant and representatives, to act in good faith in providing information, making demands, setting deadlines, and attempting to settle insurance claims. The trier of fact may consider whether the insured, claimant and/or their representative acted in good faith and may reasonably reduce the damage awarded if they have not. Negligence alone is insufficient to support a claim for bad faith against an insurer. There is no bad faith where the insurer tenders the lesser of the policy limits or the amount demanded by the plaintiff within 90 days of receiving actual notice of the claim and sufficient evidence supporting the claim. Failure to tender is not bad faith, and the existence of the 90 days is inadmissible in a bad faith action. Where the insurer does not tender, the statute of limitations is extended by 90 days. BAD FAITH WHERE MULTIPLE CLAIMS EXCEED POLICY LIMITS Where multiple claims arising out of a single occurrence exceed the policy limits, an insurer will not be liable for damages based on failure to pay any or all of the policy limits within 90 days where: The insurer interpleads for a determination of all claims, and where the damages exceed the policy limits, the claimants will share on a prorata basis share; or The insurer tenders its policy limits during binding arbitration, in which the arbitrator will determine each claimants’ pro rata share of policy limits after considering comparative fault and the likely outcome at trial. Where a claim is resolved by the arbitrator, the settling claimant must give the insured party a release. NEGLIGENT SECURITY The Bill modifies negligent security law. Where a person lawfully on the property is harmed by the criminal act of a third party, the trier of fact must now apportion fault all persons, including the criminal, that contributed to the injury or death. A party attempting to or engaged in a criminal act on the property may not hold the owner or operator of the property liable in negligence. HB 837 also creates a presumption against negligence, in negligent security cases, in favor of the owner or operator of a multifamily residential properties where the owner / operator demonstrates “substantial compliance” with crime assessments, crime and safety training for employees, and safety and security measures including: Security camera system at exit and entry points that maintains video retrievable for 30 days; A lighted parking lot from dusk to dawn; Lighting in common areas, porches, walkways, and laundry rooms from dusk to dawn; A deadbolt measuring at least one inch in every door; Locking devices on every window and sliding door; Locked gates at pool fence areas; and A peephole or viewer on door that does not have a window or window next to the door. LODESTAR FEE CALCULATION PRESUMPTION The Bill creates a strong presumption that a lodestar fee calculation, i.e., the number of hours reasonably been spent by the attorney multiplied by a reasonable hourly rate, is reasonable and sufficient. Th presumption may be overcome “in rare and exceptional” cases where the evidence shows that competent counsel cannot be retained without a contingency fee multiplier. ATTORNEYS’ FEES IN INSURANCE CASES The Bill limits one way attorney’s fees in insurance cases to declaratory judgment actions where the insurer has denied coverage for the claim. Establishes that providing a defense under a reservation of rights is not a denial of coverage. Establishes that where an insurer denies coverage and an insured obtains a declaration of coverage, the court must award the insured a reasonable attorneys' fee for the fees incurred in the declaratory judgment action. Precludes assignment of the insured’s rights to recover prevailing party attorney’s fees in declaratory judgment actions. Limits the recovery of prevailing party attorney’s fees to declaratory judgment actions “to determine coverage of insurance issued under the Florida Insurance Code.” The Bill also makes § 768.79, F.S., Florida’s offer of judgment / proposal for settlement statute, applicable to civil actions involving insurance contracts. Thanks to Charles “Chip” George for this post. Please contact Chip with any questions. Previous Next Contact

News New Connecticut Law Provides Tort Protections For Cyber-Savvy Businesses (CT) August 13, 2021 < Back Share to: On July 6, 2021, Connecticut Governor Ned Lamont signed into law a bill designed to incentivize Connecticut businesses to implement stronger cybersecurity practices to combat the rise in cyber and ransomware attacks. In doing so, the state becomes only one of three states, the others being Ohio and Utah, to adopt an incentive-based approach for businesses to improve cybersecurity best practices. The new law, which will become effective on October 1, 2021, gives statutory protection from punitive damages claims brought under Connecticut law in Connecticut state court to those companies who enact reasonable cybersecurity controls. This includes the adoption of a formal written cybersecurity program that contains “administrative, technical and physical safeguards for the protection of personal or restricted information.” The program must also conform to certain cybersecurity standards set forth in the statute, including those established by the National Institute of Standards and Technology (NIST) and the Payment Card Industry (PCI) Security Standards Council, as well as any applicable regulations relevant to the business (e.g., HIPAA or FISMA). Connecticut businesses which do not have strong cybersecurity protocols in place should strongly consider complying with the new law to avoid potential punitive damages exposure from future cyber losses. Thanks to Andrew Gibbs for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News US Supreme Court Petitioned to Review Dismissal of Case Against MoMa Seeking Return of Nazi Art February 10, 2010 < Back Share to: The application of the statute of limitations often presents parties seeking to recover art, jewelry, or other property with a significant hurdle. Recently, a New York federal court dealt with this tricky issue in Grosz v. Museum of Modern Art. George Grosz was an early twentieth-century German artist, and his artwork was strongly anti-totalitarian and therefore anti-Nazi. As such, in 1933 he was forced to flee Germany as Hitler ascended to power. The Third Reich branded Grosz an “enemy of the state” and the government confiscated his assets, including some artwork. Ultimately, three of those works were obtained by the Museum of Modern Art, and his estate sued MoMa for the return of the works. MoMa moved to dismiss, citing the State of Limitations. In New York, an action to recover chattel generally must be commenced with three years. Interestingly, under New York law, the statute of limitations for conversion and replevin automatically begins to run against a bad faith possessor on the date of the theft or bad faith acquisition -- even if the true owner is unaware the chattel is missing. On the other hand, when an innocent purchaser is involved, pursuant to the “demand and refusal rule” the statute of limitations begins when the purchaser refuses the original owner’s demand for the return of the property. In Grosz, the Court analyzed the dealings between the estate and MoMa to determine when the “refusal” occurred in response to a demand letter from the estate of November 24, 2003. There was a continued back and forth in correspondence between the parties; plaintiffs pointed to an April 12, 2006 letter, when MoMA notified plaintiff that its Board of Trustees had voted that the museum had no obligation to return the works; MoMa instead cited to a July 20, 2005 letter, in which it expressed its disagreement with plaintiff’s claims that the works must be returned. The Court agreed with MoMa, even though the July 20, 2005, letter contained “temporizing language” that urged continued discussions. The Court found that language was designed to entice plaintiffs to continue negotiating and to prevent the dispute from becoming public or escalating into litigation, and ultimately did not change the defendant’s position set forth in the letter that indicated it would not -- at least at that point -- return the works. In applying the statute of limitations, the plaintiff’s claims were time-barred and the Complaint was dismissed. As discussed in the article linked below, this Fall the US Supreme Court will decide whether it will hear this case. Previous Next Contact