News Will Sequester Mean No More Meat? February 11, 2013 < Back Share to: The US political community remains fixated on the potential sequester that would result in across the board budget cuts. If those budget cuts actually occur, the US meat industry might be unable to sell meat. Why? Because if the USDA loses funding, it will not be able to inspect meat. If the meat can't be inspected, it can't be sold. Of course, if uninspected meat were sold, the potential for product recall claims would be significant. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Insurer not Obligated to Cover Loss for Time when Policies are not Available in Marketplace (NY) September 16, 2016 < Back Share to: The Appellate Division, 2nd Department, was recently called upon to address the proper allocation of the risk of loss attributable to a continuous harm occurring, in part, during periods when liability insurance was unavailable in the marketplace. Although though this issue had been dealt with in other jurisdictions, it had not been addressed by New York appellate courts. In Keyspan Gas E. Corp. v. Munich Reinsurance Am., Inc., it was alleged that gradual environmental property damage was caused by pollution from manufactured gas plants owned by the plaintiff and/or its predecessors. Keyspan operated two gas plants located in Rockaway Park, Queens, and Hempstead, Long Island, since the early 20th century. Hazardous waste from the gas plants leached into groundwater over a protracted period of time. There was a dispute as to when the contamination of the sites began and the amount of environmental damage that occurred in any given year could not be precisely ascertained, but it is clear that the contamination was continuous and gradual, occurring over a period of many decades, allegedly between 1903 and 2012 for the two sites. In 1995, NYDEC sought to hold Keyspan strictly liable for the pollution, requiring it to pay for the investigation and clean-up of these sites, which costs Keyspan millions of dollars. Keyspan sought indemnification from Century, its insurer, under 16 successive years of general liability insurance policies issued by Century from 1953 to 1969. Keyspan also claimed Century owed indemnification not only the 16- year period that the policies were in effect, but also periods of time, both before 1953 and after 1969, when insurance covering this risk could not be purchased in the marketplace. Century argued that it was only responsible for damages that occurred during the policy period and that any property damage that occurred outside that 16-year period was the sole responsibility of Keyspan. The Court discussed the fact that for losses involving a continuous harm, New York courts typically used a pro rata allocation based upon an insurer's time on the risk over the course of the periods of the various applicable policies. Generally, if there was a period of time when the insured had no coverage, the insured would bear the financial burden for that time period due to its decision not to purchase insurance. The question here, however, was whether the period when there was no coverage was allocable to the insured or to the existing policies due to the fact that coverage was unavailable in the marketplace during those other periods. The Court noted a split between jurisdictions on this issue. For example, federal courts in New York and New Jersey courts determined unavailability was an exception because the insured did not voluntarily decide not to have insurance coverage, whereas other states held it was inequitable to have insurers provide coverage outside of their policy periods, whether coverage was unavailable or not. Here, the Court looked to the policy language and found the policies covered occurrences, accidents and continuous and repeated exposure to conditions that result in damage “during the policy period.” It found that nothing in the policy provided any an "unavailability exception" and that the Court would not rewrite the language of the policy due to public policy concerns. As such, it reversed the trial court and found in favor of Century, determining it had no obligation to provide coverage outside of its policy period and dismissed the complaint.   Thanks to Josh Gornitsky for his contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News Suing Your Employer in NJ? Maybe not... August 9, 2012 < Back Share to: We previously reported on Kenneth Van Dunk , Sr. and Deborah Van Dunk vs. Reckson Associates, et al. in which the Appellate Division allowed an employee suit to go forward against an employer on the grounds of an intentional wrong. The NJ Supreme Court has now reversed the Appellate Division. The Supreme Court held that plaintiff failed to establish sufficient evidence of the employer's commission of an intentional wrong and thus, as a matter of law, the workers' compensation law barred the lawsuit. For more information about these articles, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Plaintiff Falls Short in Premises Liability Matter (PA) January 15, 2021 < Back Share to: The Pennsylvania Superior Court provided important provides insight into the potential arguments that arise when a plaintiff is injured in a client’s rental property. In Monica Sprouse v. Daniel Keller and Kim Keller, & Donald Neill and Re/Max Action, plaintiff Monica Sprouse unsuccessfully appealed the trial court’s decision which granted defendants motions for summary judgment. At the time of the incident, Sprouse was residing in a rental home owned by the Kellers and Re/Max was managing the rental between the two parties. Sprouse alleged she tripped while walking up the stairs of the home due to an incomplete railing and sustained injuries and claimed the defendants were negligent for not keeping the stairs free of defects. The Kellers argued they did not owe Sprouse a duty because they were landlords out-of-possession at the time of her alleged fall. Re/Max averred they were also not liable to Sprouse because they were not responsible for the maintenance of the property. The defendants motions heard before the Montgomery County Court of Common Pleas were granted and Sprouse appealed the decision. Sprouse argued that while landlords are generally not liable to injured tenants, there was an exception in this case, citing the case Goodman v. Corn Exchange National Bank & Trust Co., 200 A. 642 (Pa. 1938) and argued that a landlord can be liable if he failed to make repairs after notice and “reasonable opportunity” to repair the alleged condition. According to Sprouse, Kellers visited the home many times and should have known about the alleged dangerous condition. In making the decision, the Court discussed how absent a specific lease provision to the contrary, a landlord is typically under no obligation to repair any defects or confirm the rental’s fitness for occupants. Also, the tenant rents the property as is at the time of rental. With a landlord out-of-possession, he may be liable if he hid the condition and the injured party would not have known or discovered it or if he knew or should have known about the alleged condition and he leased the property for a public purpose and the renter was unlikely to correct the condition. Cholewka v. Gelso, 193 A.3d 1023, 1031 (Pa. Super. 2018). Although the Kellers were considered landlords out-of-possession, the staircase railing was in the same condition when Sprouse moved in as when she fell. Additionally, the Court found Goodman did not apply here because unlike the plaintiff in that case, Sprouse was not a business invitee—in which case the landlord has a duty to repair the allegedly dangerous condition. Thus, the appeal was denied in its entirety and the Plaintiffs’ case dismissed. Thanks to Gabi Outlaw for her contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Failure to Define Policy Term Does Not Render Policy Ambiguous May 17, 2016 < Back Share to: In Rapp v. Penn National Mutual Casualty Ins. Co., the Pennsylvania Superior Court was asked to opine on whether an undefined term in the insurance contract rendered it ambiguous. Plaintiff was injured as a passenger in a two car motor vehicle accident. Her husband was the driver of the car she was in. Initially, plaintiff attempted to recover under the other driver’s policy. However, the other driver’s policy had limited coverage. Consequently, plaintiff filed an underinsured motorist claim under her husband’s policy with Pennsylvania National Mutual Casualty Company. Plaintiff’s husband was the only named insured under the policy, but the policy also provided coverage to the named insured’s spouse, if the spouse was a resident of the named insured’s household. Specifically, the policy stated, “[t]hroughout this policy, ‘you’ and ‘your’ refer to: ‘the named insured’ shown on the Declarations” and “[th]e spouse if a resident of the same household.” Pennsylvania National denied coverage to plaintiff, since, at the time of the accident, she no longer resided with her husband. In response, plaintiff filed a declaratory judgment action seeking coverage under the policy. Pennsylvania National moved for summary judgment, and the plaintiff opposed arguing that the policy was ambiguous since the declarations page only listed plaintiff’s husband as the “insured” not the “named insured”. As such, Pennsylvania National’s failure to have the policy’s declarations page identify plaintiff’s husband as the “named insured” (as opposed to just the “insured”) rendered the policy’s definition of “you” and “your” ambiguous, since “named insured” was not defined under the policy. In determining that the policy was not ambiguous, the court reasoned that the declarations page had several boxes titled “insured”, in which plaintiff’s husband’s name was listed. Thus, the court concluded, that notwithstanding the fact that the declarations page did not explicitly define the policy’s “named insured” the policy was unambiguous as to who the named insured was. This case illustrates that an insurance policy’s failure to define a term may not result in a carte blanche ruling that the policy or its provisions are ambiguous. However, a policy’s failure to unequivocally define referenced terms may, under certain circumstances, result in a court finding a policy ambiguous (and thus finding coverage) where the insurer may not have intended coverage to apply. Therefore, insurers should attempt to ensure that all referenced terms are defined as to avoid courts potentially finding ambiguities where none should exist. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News $20 Million Pool Slide Verdict Upheld February 22, 2012 < Back Share to: Have you noticed that fewer and fewer pools are built with diving boards or slides in recent years? Verdicts like this may be a big reason why. The family of Robin Aleo brought suit against Toys R' Us in Massachusetts because Ms. Aleo suffered fatal head injuries when an inflatable pool slide collapsed in 2006. A jury awarded the family $20 million in damages, and a Massachusetts Superior Court recently upheld the award. This case involved an inflatable slide that collapsed, rendering Toys R' Us and the manufacturer as potentially liable parties. Diving boards and stationary slides, however, require contractors to install them, and the risk of potential suits seem to be outweighing the benefit of compensation for many contractors. The result is fewer diving boards. Ironically, one can surmise that the decreased use of diving boards may have created the impetus for Toys R' Us to sell the inflatable slide that collapsed here. Risk can be mitigated, not eliminated. Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Lead! It's Back. January 4, 2013 < Back Share to: Or maybe it never really went anywhere. But in either event, new research suggests that lead exposure can lead to violent crime, lower IQs, and even ADHD. No doubt the plaintiffs' bar is studying this research in an attempt to find new causes of action. Just be grateful if your policy has a lead exclusion, and, if not, we're here when you need us. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News How Far Is Too Far in Summation? November 5, 2010 < Back Share to: Every jurisdiction has its own set of rules as to how far an attorney can go in a personal injury case in arguing the pain and suffering value of the injuries. New York, for example, allows an attorney to suggest specific numbers to a jury. Pennsylvania, in contrast, does not. In New Jersey, court rule R. 1:7-1 specifically prohibits counsel from arguing a specific pain and suffering value. But, as you might expect, attorneys, particularly plaintiff’s attorneys, often try to take liberties with the rule. So it is that the case of Riski v. Thompson Muller, is headed to the New Jersey Supreme Court -- http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202474023552&slreturn=1&hbxlogin=1. In Riski, plaintiff’s counsel told the jury that they would be “ignoring the law if they had an issue with a million dollar case.” After this argument, a $1,700,000 verdict was awarded -- a verdict that was set aside by the trial court -- and an appeal resulted. The Supreme Court will now decide whether the arguments violated R. 1:7-1 and otherwise went beyond the bounds of proper advocacy. We will keep you posted as to what happens next! If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Step on Elevator Crack, Break High Heel Back (NY) August 5, 2021 < Back Share to: Martha Suero-Miller v. Berken Building Co., L.L.C., No. 717010/2020 (Qns. Cnty. Sup. Ct. Jul. 8, 2021) is a personal injury action, wherein plaintiff allegedly sustained damages in a trip-and-fall at her job, due to a mis-leveled elevator. Consequently, she sued the building owner, its managing agent, and the elevator service company hired to maintain the subject elevator. The instant decision resolved, inter alia, defendants’ summary judgment motions against plaintiff, including a request for dismissal of the complaint based on spoliation of evidence. The facts of Suero-Miller are not unique. Defendant Gabriel Management and Delta Elevator Inspection Corp. (“Elevator”) executed a service agreement, wherein Elevator was required to perform monthly elevator maintenance at the premises. On the date of the accident, plaintiff claimed her right heel was caught between the elevator and the third-floor because of a defective height differential. Plaintiff testified she took a photograph of the mis-leveled elevator immediately after her fall. Ultimately, defendants’ summary judgment motion was denied because, inter alia, they failed to show, prima facie, that they did not have constructive notice of the allegedly defective condition that caused the fall. The court held defendants’ evidentiary submissions were insufficient because none of the defendants produced any records (e.g., inspection and service records, motor room log, incident report, repair records) demonstrating when the subject elevators were inspected. Defendants also failed to explain the photograph plaintiff produced of the mis-leveled elevator. With respect to defendants’ motion related to spoliation – during plaintiff’s first deposition – she was instructed not to throw away the high heel shoes she was wearing on the date of the incident. However – during plaintiff’s second deposition – she testified that she donated the high heel shoes. Although defendants failed to demonstrate that plaintiff’s conduct rose to the level of warranting dismissal of the complaint, defendants prevailed on convincing the court that the high heel shoes were relevant to their defense (i.e., the elevator did not malfunction). Consequently, the court determined the appropriate remedy for spoliation in this circumstance was an adverse inference charge at the time of trial. From a defense perspective – the main takeaway from Suero-Miller is two-fold: (1) when premises liability duties are implicated, it is critical to keep accurate business records of all maintenance/repair records; and (2) when significant evidence is at issue, it is important to explicitly instruct plaintiff on the record to maintain such evidence if plaintiff admits to having such evidence in her/his possession. Thanks to John Amato for his contribution. Please email Colleen Hayes with any questions. Previous Next Contact

News Insurer of Common Insured Entitled to Contribution of Defense Costs From Other Carrier April 18, 2012 < Back Share to: Recently, the New Jersey Appellate Division addressed the question of whether an insurer can pursue another insurer of a common insured for defense cost contribution when that second insurer had already settled with the insured. Where the insurers both provided primary coverage for the loss, the carrier who paid the costs of the defense had an equitable right to contribution separate and apart from subrogation. This right is not extinguished even by a settlement with the insured. In Potomac Insurance Company v. Pennsylvania Manufacturers’ Association Insurance Company, the issue arose out of a claim for continuous damage from water infiltration into a public school over a period of eight years. The insured general contractor had insurance policies with several insurers over that time period. When it was sued by the Board of Education, Pennsylvania Manufacturers issued a denial letter. Potomac undertook the insured’s defense and ultimately brokered a settlement with the Board of Education. In the meantime, the defense counsel filed a declaratory judgment action against Pennsylvania Manufacturers on behalf of the insured. Pennsylvania Manufacturers and the insured settled for $150,000 that was applied to the overall settlement with the Board of Education. Potomac’s appointed defense counsel for the insured negotiated the settlement agreement with Pennsylvania Manufacturers. During the coverage litigation, that latter agreement became a critical issue. Significantly, Potomac was not a party to the agreement. Moreover, the agreement, which was initially drafted by Pennsylvania Manufacturers, included negotiated language that was subject to varying interpretations as to whether Potomac’s right to contribution for defense costs was extinguished. As a result, the court found that the ambiguous contract did not reflect a meeting of the minds. Moreover, since Potomac had a separate right to contribution, the agreement did not defeat its claim for contribution of defense costs for the underlying litigation. On one last issue, the Appellate Division reversed an award of attorney fees related to the insurer’s declaratory action. Since the plaintiff insurer failed to bring the coverage claim in its name within the declaratory judgment action filed on behalf of the insured, it violated the entire controversy doctrine. Had it pursued its claim in the same action, the subsequent litigation would have been avoided. The award of attorney’s fees to a successful litigant on a liability policy is an equitable remedy, which the court deemed unavailable where the insurer violated this doctrine and, thus, had unclean hands. For more information email Denise Ricci at dricci@wcmlaw.com . Previous Next Contact

News NY App. Div.: "As Is" Condition Defeats Products Liability Claim November 20, 2009 < Back Share to: One policy underlying products liability law is to shift responsibility where it seems most just when a product causes physical injury. The choices are few, with the law generally titling in favor of the injured party as opposed to a product manufacturer. In Meyer v. Alex Lyon & Son, plaintiff purchased a man lift at an auction on an "as is" basis for use at work. After picking up the lift, he brought it to an equipment company for service and inspection, aware that it was not safe for use. Before that company could complete its inspection, plaintiff took possession of the lift. Ever the careful company, the inspector obtained a written assurance that plaintiff understood the dangerous condition of the equipment and required that he sign a hold harmless agreeement before the lift was released. Plaintiff took the lift and used it for two days at work without incident. But as [bad] luck would have it, he was injured in a fall after the lift failed at his home. Not short on chutzpah, he sued the product manufacturer, the auctioneer and service company seeking recovery based on strict products liability, breach of warranty and negligence. Citing the plaintiff's explicit knowledge of the product's defect, the Appellate Division upheld the dismissal of plaintiff's complaint. Plaintiff was aware of the dangerous state of the lift and was in the best position to avoid his own injuries. Every now and then, common sense prevails...even in the law. If you have any questions about this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08484.htm Previous Next Contact

News Take Me Out To The Muddy Ballgame (NY) March 5, 2021 < Back Share to: This week, we bring you a slip and fall involving a softball game in Smithtown, NY. In Chiaramonte v. Town of Smithtown, 2021 NY Slip Op 01244 (2d Dept. 2021), defendants were granted summary judgment dismissal of all claims for a plaintiff who slipped and fell on muddy field conditions while she was playing a charity softball game organized by defendants. The defendants won dismissal by arguing that the plaintiff assumed the risks of injury when she played that day. Under the legal doctrine of assumption of risk, “if the risks [of a sporting activity] are known by or perfectly obvious to [a voluntary participant], he has consented to them and the [defendant] has discharged its duty of care by making the conditions as safe as they appear to be.” (Brown v City of New York, 69 A.D.3d 893, 893; see Morgan v State of New York, 90 N.Y.2d 471, 484). Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation (see E.B. v Camp Achim, 156 A.D.3d 865, 866). The plaintiff testified that she knew it rained the day prior, she saw the field was muddy before playing the game, and she was a softball player and coach who knew the risks of injury involved. The Second Department concluded that plaintiff assumed the risks of injury under the circumstances, and defendants could not have done anything to make the field safer under the conditions. For these reasons, the court upheld the trial court’s dismissal. This case highlights the often-overlooked area of assumption of risk for certain activities. Defendants should ensure that they obtain the necessary discovery to support the argument of assumption of risk in cases involving recreational activities. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact