News No Immunity For Utility's Negligent Placement Of Pole May 15, 2012 < Back Share to: In Seals v. County of Morris , the New Jersey Supreme Court held that Jersey Central Power & Light was not immune from liability for its negligent placement of an electrical pole. The Court held that if a government entity directed the utility where to place the pole, then N.J.S.A. 48:3-17.1 conferred immunity on the utility. However, where there is no governmental dictate or order , as in Seals, ordinary negligence standards apply and utility companies that place their poles without considering whether they are in dangerous locations can be held liable for resulting injuries. In Seals , the utility pole had been at its location , an old stagecoach route, since approximately 1937. The location had been the site of several prior accidents and the pole had previously been replaced three times. http://lawlibrary.rutgers.edu/collections/courts/supreme/a-84-10.opn.html Please contact Robert Ball with any questions regarding this post.   Previous Next Contact

News One Witness May Suffice as Deponent for Two Corporations (NY) August 1, 2012 < Back Share to: In Pierre v 100 Corp., the Appellate Division reversed the trial court's order striking the answer of an individual and the two corporate defendants. The trial court held that the defendants did not produce witnesses for a deposition. However, the defendants had produced a witness who was an officer of both corporations for a deposition. Furthermore, the defendants were under no obligation to produce other individuals who were not employed by them or otherwise under their control. The Appellate Division held that the production of a single individual satisfied the defendants’ discovery obligations. Thus, an attorney can avoid the need for multiple depositions by producing a single witness that is an officer of several corporate defendants. Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2012/2012_05732.htm Previous Next Contact

News "Brawl" At NY Hockey Game Not Assumed Risk October 5, 2009 < Back Share to: Plaintiff was injured at Nassau Coliseum while attending a charity hockey game. During the game, T-Shirts were tossed into the stands and the plaintiff was knocked over in all of the commotion caused by the other spectators trying to catch the tossed T-Shirts. Defendants moved for summary judgment, using an assumption of risk defense. The Appellate Division, Second Department, though not all in agreement on the reason, denied defendant’s motion for summary judgment. The majority concluded that defendants did not prove as a matter of law that they were entitled to summary judgment. In order to prove that plaintiff assumed the risk, they had to prove that “injury-causing events” were a known and foreseeable consequence of attending a hockey game. The majority concluded that defendants had not proven the events were a known and foreseeable consequence. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06791.htm Previous Next Contact

News Plaintiff Cannot Rely on Speculation in NY December 9, 2022 < Back Share to: In Taitt v. Riehm Plumbing Corporation, plaintiff slipped and fell on water that spilled out of a garbage bin positioned to catch a leak from a pipe in the ceiling of a basement storeroom. Defendants repaired the pipes of the ceiling in the basement corridor two months prior. New York Appellate Court reversed the lower court’s decision that denied defendant's summary judgment. The Appellate Court held that there was no issue of fact as plaintiffs were relying on speculation that the leaks in the basement storeroom were connected to the leaks in the basement corridor defendants worked on. The court also held that plaintiff cannot rely upon the doctrine of res ipsa loquitur, because plaintiff cannot establish that the pipes were within defendant’s exclusive control. This will raise the bar on oppositions to summary judgments, requiring more than mere speculation to create issues of fact. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Third Circuit Agrees that Business Earnings Prior to an Accident Are Inconclusive (PA) May 7, 2020 < Back Share to: The United States Court of Appeals for the Third Circuit recently affirmed a decision from the United States District Court for the Western District of Pennsylvania and determined that an insurer’s issues with trial evidence and claims were invalid. In Kirkpatrick v. GEICO Casualty Company, the insurance company moved for relief from a judgment or, alternatively, for a new trial which was ultimately denied on appeal. The underlying incident involved a motor vehicle accident in which Ronnie Kirkpatrick and Michelle Vensel (“Plaintiffs”) suffered permanent injuries after an automobile accident caused by a negligent driver. The plaintiffs alleged that Geico failed to make proper payment of claims under the underinsured motorist benefit of their Geico insurance policy. Specifically, the plaintiffs argued that the accident impacted their car restoration business, despite reporting losses to the IRS in the years leading up to the accident and not having finished or sold any cars to date. In response, Geico argued that the loss of earning capacity was not a result of the automobile accident. However, at the close of trial, a jury returned an award of $900,000.00 in favor of the plaintiffs. On appeal, Geico argued that the jury’s award was against the weight of the evidence because there was no evidence that the plaintiffs’ business lost profits. In fact, the plaintiffs had only recently launched their business and restored extremely expensive antique cars. The jury was able to hear evidence that the cars currently in production had “substantial estimated appraisal value upon completion” and the delays resulted in later-than-anticipated dates of sale. Furthermore, the plaintiffs demonstrated that Ronnie Kirkpatrick was unable to perform his work at the same pace as prior to the accident. Overall, the Court determined the jury had sufficient evidence to conclude that the plaintiffs’ injuries led to a “shorter economic horizon” for their business in the form of less cars restored due to more time per restoration and delayed sales dates. In affirming the District Court’s decision, the Third Circuit relied on Pennsylvania case law holding that “[d]amages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings.” The Court also determined that the plaintiffs’ earnings subsequent to the injury compared with their earnings at the time of the injury is not conclusive evidence as to whether earning power has been diminished by the accident. Additionally, Geico argued that there was insufficient evidence from which the jury could use as a “yardstick” for calculating lost earning capacity. The Third Circuit disagreed and determined that the damages presented to the jury on the issues were not impermissibly speculative. The Court relied on the Pennsylvania Supreme Court decision Kaczkowski v. Bolubasz, which concluded that some speculation does not justify excluding reliable economic evidence since impression is inherent in any computation of lost future benefits. The Third Circuit also pointed out that inflation and productivity can be included in the computation of lost future earnings. Overall, the Third Circuit held that, based on the evidence presented by the plaintiffs, the jury had a sufficient evidentiary foundation and were not unduly speculative so as to warrant vacating the award. Thanks to Zhanna Dubinsky for her contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Defendant Inadvertently Creates Question of Fact by Producing Conflicting Witnesses (NY) February 7, 2018 < Back Share to: In New York City, where a plaintiff is injured due to a slip and fall within a residential apartment building, a defendant must show through admissible evidence the last time the area was cleaned and inspected prior to the accident. However, it appears that in some instances, this alone is not enough. In Hamilton v. Naica Housing Development, decided on February 6, 2018, the First Dept. upheld the lower court’s denial of the property owners' motion for summary judgment. The property owner had produced two witnesses for a deposition. One witness, the building superintendent, testified that he personally cleaned and inspected the area prior to the accident and did not see any wet substances. The same witness stated that in the event of a wet condition, wet floor signs would be placed immediately, however that had not occurred in this case. The second witness, a housekeeper for the building, who was present at the time of the accident, testified that he saw a wet floor sign in the area of plaintiff’s fall, but that he did not know who placed it there and did not do so himself. The defendant attempted to overcome the difference in testimony by arguing that even if the defendant owner did have notice of a condition between when it was cleaned and the accident, they adequately warned plaintiff by placing a wet floor sign. It is evident in making the motion that the defendant thought both evidence of the last inspection and placement of a warning sign would be sufficient to show that they acted reasonably. However, the Court found that this different testimony from the defendant’s witnesses created issues of fact, namely as to whether the defendant did have notice of a condition and failed to remedy it. Further, the Court found questions of fact as to whether placing a wet floor sign is sufficient to warn or protect from a known dangerous condition, where that condition had not been cleaned up. This decision emphasizes the importance of having witnesses prepared, and their testimony in sync with each other, to eliminate holes in the defense case. Now, not only does this plaintiff have a pathway to trial, but he has an added advantage of facing conflicting defense witnesses. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Failure to Discontinue Constitutes Bad Faith, Frivolous Continuation Warranting Sanctions (NY) September 14, 2018 < Back Share to: A Justice of the New York County Supreme Court recently imposed sanctions on a plaintiff who refused to discontinue against a defendant that made a showing of non-involvement in the happening of the subject accident. In Burgund v. Verizon, plaintiff commenced a Labor Law action after he tripped and fell stepping off of a ladder during his work for Verizon. During the deposition of building’s managing agent, plaintiff learned of the potential involvement of a third party entity known as “A&S.” Thereafter, plaintiff named A&S Group and A&S Construction Corp., among others, as defendants in a separate case that was ultimately consolidated. Upon service of the complaint, A&S Group’s principal immediately contacted plaintiff, explaining that A&S Group had never performed work in the building, never worked for Verizon or any of the other named defendants as a subcontractor or in any other capacity, had no involvement with A&S Corp or its principals, and was not even in existence at the time of the alleged accident. However, plaintiff’s counsel refused to discuss the matter until A&S Group was represented by counsel. Thereafter, A&S Group composed a series of letters over the course of a one-year period, each requesting a voluntary discontinuance against. Each time, these letters went unanswered. Ultimately A&S Group moved for summary judgment in its favor, denying any liability and asserting that plaintiff wrongfully included it in the action without any factual basis. The Court granted the motion, finding that A&S Group had presented affirmative evidence that it never performed any work at the subject building, had no professional relationships with any of the named parties, and was not even a registered corporation at the time of the accident. Further, the Court determined that “regardless of whether [p]laintiff originally brought the action in good faith, plaintiff’s repeated failure to voluntarily discontinue the action, despite three specific requests… constituted a bad-faith frivolous continuation that warranted sanctions.” Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News NJ – Don’t Drink and Operate a Private Water Craft October 12, 2018 < Back Share to: The Appellate Division recently held that the Dram Shop Act does not apply to a tavern hosting a small party where the guests, who were employees of the tavern, brought their own alcohol to the party. The Dram Shop Act was designed to protect the rights of persons who suffer loss as a result of the negligent service of alcohol by a licensed alcoholic beverage server. In Votor-Jones v. Delly, plaintiff was one of seven employees and patrons of Kelly’s Tavern invited on a social trip organized by the tavern’s owner. The guests brought with them four or five coolers of alcohol on two boats. One guest, Michelle, started drinking before they got on the boat. Michelle continued to drink alcohol after the boats departed for the ocean. Other guests described Michelle as “loud”, “boisterous” and “excited,” but they conceded that they did not know whether she was intoxicated. After stopping the boats, Michelle was allowed to operate Kelly’s boat. Michelle sped away, but turned back toward the other boat at a speed of 40mph. Michelle then struck plaintiff who was swimming in the ocean. To prevail on a Dram Shop Act Claim, a party must present evidence that an establishment served alcohol to a visibly intoxicated person. The Appellate Division rejected as “too attenuated” plaintiff’s contention that the circumstances fell within the scope of the Dram Shop Act because neither Kelly’s Tavern nor Kelly individually were acting as a “licensed alcoholic beverage server” or “server” completed by the statute. Moreover, Michelle was not a “customer” of Kelly’s Tavern or Kelly. The Court summarized the outing as an informal, small-scale get together that required attendees to bring their own food and alcohol. Although there are many instances where an individual is “served” alcohol, not every instance will give rise to liability if that person injures another after imbibing alcohol. Small get-togethers hosted by a tavern where guests bring their own alcohol will not subject a tavern to liability, but the Court acknowledged that a more large scale party for employees where alcohol is provided to them would result in liability to the tavern. Thanks to Michael Noblett for his contribution to this post.     Previous Next Contact

News New NY Insurance Disclosure Obligations Effective December 31, 2021 (NY) July 6, 2017 < Back Share to: On December 31, 2021, New York State Governor signed into law a new act implementing much more rigorous insurance disclosure obligations than previously existed. While defendants in New York have always been required to disclose applicable insurance policies and coverage limits, defense attorneys had some flexibility as to the timing of such disclosures. Unless plaintiffs attorneys pressed the issue, it was often not necessary to disclose the full insurance policy as long as the policy information and limits were disclosed, or possibly provided along with the declarations page only (redacted as to the insured’s premiums). The newly-signed Comprehensive Insurance Disclosure Act modifies the insurance disclosure rules contained within CPLR §3101(f) by compelling strict and rigorous disclosure of the complete primary, excess, and umbrella policies implicated by a claim. The below changes will require swift action from defense counsel as well as carriers to obtain and disclose information regarding all currently-pending claims and all new claims moving forward within 60 days of the law taking effect: 1. Defendants will be required to provide plaintiffs with complete information for any insurance agreement through which a judgment could be satisfied within 60 days after serving an answer. This requirement extends to a complete copy of all applicable policies, including declarations, insuring agreements, conditions, exclusions, endorsements, and any other documents bearing upon coverage, including applications for insurance. 2. Defendants must disclose any other lawsuits that have already reduced or eroded, or could potentially reduce or erode, any policy limits, including the amount of attorneys fees that have eroded or reduced the face value of the policy, along with contact information for the attorney who received such legal fees. 3. Defendants must disclose the contact information of the claims adjusters, including the telephone number and email address. This includes third-party administrators and people within the insuring entity to whom the third-party administrator must report. 4. Additionally, the newly-added section, CPLR §3122-b, requires that all insurance disclosures made pursuant to CPLR §3101(f) must be certified by both the party themselves and the attorney to ensure that the information disclosed is accurate and complete. This would require an affirmation or an affidavit. The new disclosure obligations of CPLR §§ 3101(f) and 3122-b are effective throughout the life of an action, and defendants are directed to provide updated information within 30 days of receiving any information that would render the prior disclosure inaccurate or incomplete. The disclosures as detailed above are to be completed by March 1, 2022 for all currently pending actions, and within 60 days of service of an answer for all future new actions. Although there is already an amended version of the Comprehensive Insurance Disclosure Act in the works, if adopted the amended bill would likely leave in place the rigorous certification requirements. The amended version would relax some requirements, by lengthening the notification period from 60 days to 90 days, and eliminating the requirements to share insurance applications (which often contain an applicant’s private personal financial information) and related lawsuits. It is unclear at this time what type of penalties might be enacted for failure to disclose, and how rigorously the courts will enforce these new requirements. However, unless and until the new Comprehensive Insurance Disclosure Act is amended, all defense counsel and claims adjusters must take action to review their case loads and comply by the operative disclosure deadlines. At this time, we recommend that all carriers promptly review the following list of “action items” and cooperate with defense counsel in preparing to timely make the required disclosures by the March 1, 2022 deadline: • At the inception of a case, identify all policies at issue, procure copies of all policies at issue, and identify any lawsuits that have reduced or eroded the policies. • Disclose the above information to defense counsel. • Continuously monitor the policies at issue and immediately report any changes to defense counsel. • Provide name, telephone number, and e-mail address for claims adjusters (including TPAs). • Provide up-to-date contact information throughout litigation for insured. • Put the insured on notice that they will be required to prepare a certification in cooperation with defense counsel, and also advise that their insurance application will be turned over to plaintiff’s counsel. Thanks to Shira Straus for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Iron Worker... Ladder... Elevation... No Labor Law § 240 Claim (NY) January 26, 2017 < Back Share to: Labor Law § 240 requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, and holds them strictly liable for plaintiff’s injuries if they fail to do so. Counsel in Labor Law cases therefore spend large amounts of time and effort litigating whether plaintiff’s injuries implicate Labor Law § 240, as the answer will often significantly affect a case’s value. The Second Department’s recent decision in Guallpa v Canarsie Plaza, LLC informs us, however, that not all plaintiffs injured off the ground may assert Labor Law § 240 claims. In Guallpa, plaintiff, an iron worker, was standing on a ladder while working to secure an overhead steel beam to the building structure. While plaintiff was working, another employee, operating a forklift at ground level, struck a portion of the beam plaintiff was working on. This caused the beam to shift and, unfortunately, pinned plaintiff’s arm between the beam and a nearby concrete wall, inflicting injuries. Both plaintiff and defendants cross-moved for summary judgment as to plaintiff’s Labor Law § 240 claim, and the trial court denied both motions. On appeal, the Second Department reversed the trial court decision and granted summary judgment to defendants. The Second Department, focusing on the purpose of Labor Law § 240, noting that while the law is meant to protect workers from elevation-related risks, merely working above ground level does not automatically entitle workers to its protections. Specifically, the Second Department identified Labor Law § 240 as guarding workers against two types of risks: elevation-related (a worker falling from a height) and gravity-related (objects falling from a height onto the worker). Therefore, the Second Department concluded, because plaintiff was not injured by either a falling object or by falling from a height, he could not properly assert a claim under Labor Law § 240. Unfortunately for defendants, the Second Department then reversed the trial court’s ruling that they were entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim, holding that they had failed to offer facts sufficient to refute plaintiff’s claim that the steel beam that injured him was improperly secured pursuant to a potentially applicable Industrial Code provision. Guallpa serves as a reminder to all Labor Law defense practitioners to carefully scrutinize a plaintiff’s bill of particulars and deposition transcript to establish the precise mechanism of plaintiff’s injury. In a field where ladders and heights often indicate increased settlements and damages awards, be sure to establish if plaintiff is in fact entitled to assert a Labor Law § 240 claim. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NY Court of Appeals addresses high low agreements. September 22, 2007 < Back Share to: Court holds that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). http://www.nycourts.gov/ctapps/decisions/jun07/89opn07.pdf Previous Next Contact

News An Interest-ing Case for Insurers February 2, 2010 < Back Share to: Roslyn Schiffer was injured in an automobile accident. Lancer Insurance Company insured the owner and driver of the other vehicle. The policy limit was $100,000. The Lancer policy contained a provision that Lancer would pay "All interest on the full amount of any judgment that accrues after entry of judgment....but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance." This policy language closely tracked a NY Insurance Dept. regulation requiring that policies contain a provision that an insurer shall pay "all interest accruing after entry of judgment until the insurer has paid or tendered or deposited in court such part of such judgment as does not exceed the applicable policy limits..." In the Schiffer personal injury case, Lancer Ins. Co. offered Schiffer its full policy limit of $100,000 before trial (and thus, obviously, before entry of judgment and the accrual of any interest). Schiffer rejected the offer and took her case to verdict. The verdict was $776,000. Judgment was entered on September 5, 2007. Lancer sought a ruling that it owed no interest on the judgment because it had offered its full policy limit of $100,000 before the entry of judgment. A trial level court in New York has now ruled against Lancer. The court found that while Lancer had "offered" to pay its policy limit, this did not amount to "an unconditional tender of payment," which the court found was required by the language of the Insurance Dept. regulation. Thus, the court ruled, interest began to accrue at judgment and Lancer must now pay interest on the full amount of the judgement ($776,000). Given that judgment was entered 28 months ago, the interest due on the full judgment is 21%, which comes to $163,000. In short, Lancer offered (tendered?) its policy limit of $100,000 before trial in a good faith effort to protect its insured but now must pay not only its policy limit of $100,000 but an additional $163,000 in interest. Previous Next Contact