News CGL "Leased Worker" Not Ambiguous Not Illusory (PA) February 18, 2016 < Back Share to: In Westfield Insurance Company v. Astra Foods, Inc.,the Superior Court of Pennsylvania decided, on appeal, that a “leased worker” exclusion in an insurance policy was not void as against public policy. In 2009, Castillo Ramos (“Ramos”) was employed by BK Packaging Services, Inc. (“BK”) at a facility operated by Astra Foods, Inc. (“Astra”), when he suffered a severe injury to his hand and arm, while cleaning an exhaust fan. Westfield Insurance had issued both commercial general liability and worker’s compensation policies to Astra. After his injury, Ramos filed a workers compensation claim against Astra. Westfield denied it owed coverage to Ramos as he was not an Astra employee. In 2012, the workers compensation judge agreed and made a specific finding that Ramos was employed by BK and was not a “borrowed employee” of Astra within the meaning of the workers compensation statute. Thus, there was no coverage for Ramos’ injuries under Astra’s Westfield Policy. Ramos then filed civil litigation against Astra. After a June 2013 jury verdict awarded Ramos $763,413 for his injuries, Westfield filed a declaratory judgment action, arguing that the CGL policy did not cover the incident. Specifically, Westfield argued that the “employer’s liability” policy exclusion provision of the CGL Policy applied to the case, barring Astra from obtaining defense and indemnity in the underlying action because Ramos was an Astra “employee” by virtue of the definition of a “leased worker” under the CGL policy. Westfield and Astra filed cross motions for summary judgment and the trial court granted summary judgment to Westfield, denying Astra’s cross-motion. Astra appealed arguing that the court had completely disregarded the finding in the workers compensation case that Ramos was not a “borrowed employee.” Astra noted that Westfield had participated in that proceeding and should be barred from re-litigating the issue. In upholding summary judgment for the insurer, the appellate court disagreed. Specifically, the court scrutinized the definition of “borrowed employee” (at issue in the workers compensation proceeding) and found it to be completely distinct from the definition of a “leased worker” (defined in the Policy). The court stated that “a cursory look at the elements of the doctrine of a borrowed employee and the contractual definition of a leased worker reveals glaring differences between the two,” and concluded that the issue of a leased worker under the CGL Policy was never properly before the workers compensation judge because the CGL Policy was not at issue in that proceeding. Astra also argued that the employer’s liability exclusion provided only illusory coverage. The court rejected this as well. The court reasoned that courts must give plain meaning to the language in unambiguous contracts. Only where a dominant State policy is at issue will a court invalidate such contractual language. Astra did not argue that the employer’s liability exclusion was ambiguous. Rather , it simply argued that in this case, the language foreclosed coverage for claims of employees as defined to include leased employees. Astra did not argue that it purchased the CGL policy principally to insulate itself from personal injuries by workers who were not direct employees. Nor did it allege that the employer’s liability exclusion “operates to foreclose the majority of expected claims” under the CGL Policy. In essence, Astra argued only that the CGL exclusion rendered the policy illusory because of its application to the factual circumstance of the Ramos case. The court held that since Westfield was not required to offer coverage for claims by workers not directly employed by Astra, the company did not specifically purchase the policy for this purpose, and the vast majority of expected claims would be unimpacted by this exclusion, the policy was not illusory. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Plaintiff Loses MRI Films ... Loses Case (NJ) March 17, 2016 < Back Share to: In Pickett v Shoprite of East Norriton, the New Jersey Appellate Division recently upheld the trial court’s preclusion of plaintiff’s medical expert resulting in the dismissal of plaintiff’s case with prejudice. Alan Picket slipped and fell on black ice at a grocery store while making a delivery. After the accident, plaintiff underwent a course of “conservative treatment. He had an MRI of his lumbar spine and took possession of the films. In an unlucky course of events, plaintiff suffered a second accident severely aggravating his prior lower back injury. Plaintiff’s bad luck continued when the only copy of the MRI films went missing. Defendant’s counsel filed a pre-trial motion in limine to bar plaintiff’s medical expert’s testimony on two grounds: (1) the expert opinion did not apportion plaintiff’s injuries between the two accidents; and (2) the expert could not rely on plaintiff’s MRI because defendant’s expert did not have the opportunity to review them. The trial court agreed and barred all reference to the initial MRI. On appeal, the Court explained, “In successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must provide comparative medical evidence to isolate the physician’s diagnosis of the injury or injuries that are attributable to that tortfeasor’s negligent conduct.” Plaintiff’s expert needed to distinguish between the two back injuries. This would require him to comment on the initial MRI studies. The expert report did not satisfy the first requirement, and to compound the issue, he could not reference the MRI that was missing in action. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Buddy System Defense Prevails in Camping Trip Lawsuit (NY) May 23, 2018 < Back Share to: In Gomes v. Boy Scouts of America, a 13-year-old plaintiff sustained head injuries while participating in a camping trip at a facility owned and operated by defendants. He alleged that he stumbled and fell at night in the unlit, uneven area outside of the camp’s shower house. Plaintiff was wearing a working head lamp but could not say what caused his fall. Other witnesses alleged that plaintiff fell after engaging in horseplay in the shower house and fell as he was running away. In evaluating the summary judgment motion, the defendants met their burden to show that the negligent supervision claim should be dismissed as a matter of law. In response, plaintiff’s attempts to raise a triable issue pursuant to New York Court Codes, Rules and Regulations, Section 7-2.5 (Personnel, Supervision and Camp Safety Plan) under the guise of lack of visual or verbal communication capability at the shower house were unsuccessful because plaintiff failed to show that his injuries were both foreseeable and proximately caused by the absence of adequate supervision. The court found plaintiff’s expert’s statement that the incident was foreseeable merely because the boys were “totally unsupervised and unregulated for a lengthy period of time in a potentially dangerous/hazardous environment” was conclusory and unfounded. Rather, the court found that plaintiff was accompanied by fellow scouts as part of the "buddy system", which had a proven record of success without adult supervision. None of the scouts had a history of misbehavior, disciplinary issues, or disobedience. Accordingly, defendants were not on notice that an accident was likely to result under the circumstances. Defendants also met their burden that any allegedly inadequate supervision was not the proximate cause of plaintiff’s injuries, “given the impulsive nature of plaintiff’s own acts” and the short time span between those acts and his injuries. In response, plaintiff failed to raise a triable issue as to whether the accident would have been avoided even with heightened security. As such, the decision was affirmed on appeal. Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News WCM Obtains Summary Judgment in Berks County, PA Coverage Case. July 8, 2013 < Back Share to: Philadelphia, PA Partner Robert J. Cosgrove and associate Colleen E. Hayes were awarded summary judgment in a Berks County, PA coverage dispute. In the case of Kelly v. Nautilus Insurance Company, et al., the plaintiff, the administratrix of the estate of Justin Kelly, initiated a coverage and error and omissions lawsuit arising out of Justin Kelly’s fatal on-the-job accident. At the time of the accident, Kelly was working as an independent contractor for the insured of our client, Nautilus Insurance Company (“Nautilus”). When confronted with the claim, Nautilus disclaimed coverage on the basis of its broad employee exclusion that defined as “employees” individuals who were not on the direct payroll of the insured. In light of the absence of coverage, to settle the underlying wrongful death action, the insured agreed to a $1,000,000 consent judgment (which was approved by the court) and assigned his rights against Nautilus and the insurance broker to Kelly’s estate. Thereafter, Kelly’s estate initiated a declaratory judgment and errors and omissions lawsuit against Nautilus and claimed that the employee exclusion was overbroad and illusory and thus unenforceable as a matter of law. At the close of discovery, we moved for summary judgment and argued that Nautilus’s broad employee exclusion was clear and unambiguous and thus should be applied to the facts of the case. The trial court agreed with our analysis and dismissed all claims against Nautilus. The case against the broker continues. Previous Next Contact

News Landowner Not Required To Remove Snow From Every Inch Of Property (PA) June 23, 2023 < Back Share to: In January 2020, plaintiffs Janet and Richard Hinerman arrived at he airport to pick up their rental vehicle on the premises. Plaintiffs realized the car was in a separate parking lot, “located farther from the terminal building and separated by a grassy area from the lot on which they were standing.” Hinerman v. Westmoreland Cnty. Airport Auth., 2023 WL 4002424, at *1 (Pa. Commw. Ct. June 15, 2023). Additionally, a driveway and paved walkway, covered by no snow, connected the two parking lots. Rather than using the cleared walkway, Janet Hinerman crossed the snow-covered grass area when her “feet stumbled into a depression in the ground, several inches deep, which had been obscured by the snow cover.” The Hinermans brought a negligence action against the airport for damages Janet Hinerman sustained as a result of her fall. The Court affirmed the trial court’s grant of summary judgment, holding that the snow, rather than the depression in the ground, “due to its inherent tendency to cover uneven patches of ground or other tripping hazards, constituted the open and obvious danger.. Furthermore, the Court reasoned that “the Hinermans elected to forego the walkway and walk instead across an unimproved area that had not been intended for pedestrian use.” This case stands for the proposition that defendants cannot be subject to premises liability when “the uncertainties inherent in walking on snow-covered ground are [open and] obvious.” Additionally, plaintiffs must be mindful that “[b]y their very nature, unimproved areas of land contain defects that may result in tripping or falling when being crossed on foot.” Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Wins Rare Defense Verdict in Hit in the Rear Accident Trial November 12, 2018 < Back Share to: After a three day trial in Supreme Court, New York County, Wade Clark Mulcahy’s Michael Bono and Dana Purcaro obtain a rare defense verdict on liability in a hit in the rear accident case in Smyth v. Murphy, Index number 157795/2013. Plaintiff testified to being involved in at least ten on the job accidents spanning over two decades. In each accident, plaintiff injured his cervical and lumbar spine and received medical treatment for those injuries, often filing related lawsuits. Defendant Murphy testified that on the date of the accident, she tapped Smyth’s sanitation vehicle in the rear while he was stopped at a yellow light on the West Side highway during light snowfall. There was one scratch on Mrs. Murphy’s vehicle and no evidence of any damage to plaintiff’s vehicle. Despite the light impact, plaintiff called an ambulance and was taken to the hospital for treatment of his long standing cervical and lumbar spine injuries. Sometime later, plaintiff underwent cervical and lumbar surgeries by Dr. Lattuga. During the trial, the defense raised a number of credibility issues, including the apparent failure of plaintiff to inform his physicians about the number of prior accidents he had been involved in, including multiple accidents close in time to the 2013 accident at issue. In addition, the defense presented proof that a prior MRI scan was the same as a scan taken shortly after this accident. After brief deliberations, the jury returned a verdict in favor of the defendants. Please write to Mike Bono if you have any questions or wish to discuss this case further. Previous Next Contact

News State Court Cites its own Statute of Limitations to Deny Nazi Art Claim October 19, 2010 < Back Share to: We have posted on a number of recent cases involving Nazi-stolen art and have noted that U.S. courts are generally sympathetic to claims by heirs of the original owners of the artworks. Nevertheless, in a recent decision by the First Circuit Court of Appeals, the heir of a Viennese Jewish doctor was deemed to have no right to an Oskar Kokoschka painting because she failed to submit a claim within the three-year statute of limitation under Massachusetts law. In Museum Of Fine Arts, Boston v. Seger-Thomschitz, the claimant is the sole surviving heir of Dr. Oskar Reichel, a patron of the arts in early twentieth century Vienna. In 1914, Reichel purchased the painting, Two Nudes (Lovers), which is a self-portrait of the artist in an embrace with Alma Mahler (the widow of composer Gustav Mahler). In 1938, after the German annexation of Austria, Reichel was forced to sell the work, and it is not clear whether Reichel ever received payment for the sale. The painting ended up in the collection of the MFA which has displayed the painting for many years. The claimant did not make a formal claim to the MFA until 2007. The court ruled that the claim to the painting was without merit because the claimant had not brought a claim within three years of discovery of the existence of the painting. The MFA had publicized the existence of the painting for many years, and the claimant had known by 2003, at the latest, that the painting had originally been owned by Dr. Reichel and had she conducted a minimum amount of research she would have learned that the painting was possessed by the MFA. The court dismissed the claimant’s argument that federal policy favoring the return of Nazi-stolen art overrode Massachusetts statute of limitations because the federal policy was general and did not conflict with clear state law. Thanks to Mendel Simon for his contribution to this post. If you have any questions regarding this case or WCM's Fine Art practice, please e-mail Mike Bono at mbono@wcmlaw.com Previous Next Contact

News Careful What You Destroy February 4, 2016 < Back Share to: In Awon v Harran Transp. Co., Inc., the Second Department reaffirmed the importance of proving that the destruction of evidence has prejudiced a party that seeks to strike pleadings based on spoliation of evidence. If the destroyed evidence prevents an adversary from defending a claim or allegation, the party that destroyed the evidence is subject to severe sanctions. This principal even extends to situations where the destruction was not willful or contumacious. Conversely, if the evidence lost is not central to the case, the destroying party may escape unscathed, without any sanctions being imposed. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00638.htm Previous Next Contact

News Form Over Substance? Not in NY. December 9, 2010 < Back Share to: In Ruffin v. Lion Corp., New York’s Court of Appeals held that a defect in the service of a summons and complaint related to the residence of the process server is a mere technicality that does not render service ineffective and does not raise any jurisdiction questions -- http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08767.htm Plaintiff was injured in a December 2000 bus accident, and brought a suit in New York against the bus driver and bus company, headquartered in Pennsylvania. Plaintiff effectuated service through a process server who resided in Pennsylvania. The defendant bus company failed to respond to the summons and complaint, and plaintiff obtained a default judgment, and the trial court awarded $450,000 at an inquest. Two years later, the bus company moved to vacate the default on the grounds that the process server was not a New York resident, so plaintiff never obtained proper jurisdiction over the bus company. Plaintiff pointed out that CPLR 2001 allows courts to disregard technical defects in the filing process, but the defendant bus company argued that the process server’s residency was a jurisdiction issue that could not be overlooked pursuant to CPLR 2001. The trial court denied the motion, the Appellate Division reversed and granted the motion, and the Court of Appeals reversed again, denying the motion. The court held that the process server’s residence was a technical defect that did not raise jurisdiction questions because the server’s residency had no effect on the likelihood that the defendant bus company would have received actual notice of the lawsuit. It further held that although CPLR 2001 explicitly excused mistakes in the “filing” process, there was nothing to suggest that the legislature intended to treat mistakes in “service” any differently, and the broad language of the statute allowed for such a result. Special thanks to Alex Niederman for his contributions to this post. If you would like more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ PIP Fee Schedule Does Not Limit Plaintiff's Recovery Above PIP Limits December 13, 2016 < Back Share to: In Viruet v. Maoine, plaintiff was injured in a motor vehicle accident, and alleged that he incurred medical bills in the amount of $56,321.93. The defendant, who was insured by GEICO with limited PIP medical coverage benefits of $15,000, argued that plaintiff’s claim for medical expenses (which obviously exceeded his limited PIP coverage benefits) were subject to the NJ Medical Fee Schedule under statute. Defendant further argued that the boardable medical expenses to be considered by the jury were limited to the Fee Schedule amounts for the medical services provided to plaintiff. The NJ Fee Schedule limits medical costs and is a comprehensive listing of fee maximums used to reimburse physicians on a fee-for-service basis. The court found that payment is due and owed from the plaintiff with respect to medical expenses exceeding coverage limits. Because the PIP carrier is not paying the medical expenses above the coverage limit, the Fee Schedule does not apply to the expenses outside the coverage and the medical provider may bill the patient for the full cost of treatment. The patient is personally responsible for the amount billed, including the portion in excess of the fee schedule. As such, the court disagreed with the defendant, holding that a plaintiff who is awarded a verdict is entitled to payment for medical expenses which were reasonably required for the examination, treatment and care of injuries proximately caused by the defendant’s negligence. Further, plaintiff may recover the “fair and reasonable value of such medical expenses.” The court opined that under these circumstances, plaintiff would only be recovering his actual loss, not a windfall, as the medical expenses reflect the amount owed to the medical providers. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Summary Judgment Denied In NY Construction Site Accident October 1, 2010 < Back Share to: In Raccah v. Barbizon Hotel Associates, L.P., the plaintiff was sitting on the windowsill in the hallway of an apartment building when three door panels fell onto her right leg. The panels were being stored in the hallway, leaning against a wall, due to ongoing construction on the premises. The owner and the construction manager moved for summary judgment arguing that they had no duty to the plaintiff, that they did not breach any duty of care and that they had no actual or constructive notice of the condition in the hallway. The court denied the motion because the owner of the building had a duty of care toward the plaintiff and that there was a an issue of fact as to whether the owner had notice of the stored panels on an occupied floor. The construction manager's motion was denied because it had a supervisor role over the construction at the premises and it hired the subcontractor that was retained to install the subject panels. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32587.pdf Previous Next Contact

News Global Warming - Is It Causing Coverage Litigation to Heat Up? March 11, 2010 < Back Share to: In Steadfast Insurance Company v. The AES Corporation, currently set for trial in Virginia state court next month, an Alaskan village sued Exxon Mobil and other oil and gas companies alleging the defendants caused harm to their village by contributing to global warming. Steadfast, an insurer of one of the oil companies, filed a declaratory judgment action seeking a declaration that it owed neither defense nor indemnity because the CGL policy at issue did not cover global warming claims for three reasons: (1) global warming is not an “occurrence”, as defined in the policy; (2) global warming began before the policy date; and (3) the pollution exclusion applies. What will the judge and jury decide? Stay tuned for more details! If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Special thanks to Christopher O'Leary for his contributions to this post. http://www.insurancejournal.com/news/national/2010/03/04/107854.htm Previous Next Contact