News Cart With Sheetrock Not Subject to NY Labor Law Safety Device Requirement July 11, 2012 < Back Share to: In Grygo v. 1116 Kings Highway Realty, LLC, the Second Department gave the defendants a rare win in a Labor Law § 240 suit. In this matter, the plaintiff was injured when a cart holding sheetrock toppled over, causing the cart and sheetrock to strike the plaintiff. At the time of the accident the plaintiff was removing a piece of plastic he had previously placed over the cart to protect it while he painted the worksite. The Supreme Court granted the defendants summary judgment dismissing the Labor Law § 240 claim and the Second Department affirmed, finding that the plaintiff’s injuries arose from a general hazard encountered at a construction site and were not from "the direct consequence of a failure to provide" an adequate safety device. The court underscored the point that the safety devices enumerated in § 240 were meant to protect "against a risk arising from a physically significant elevation differential." By highlighting that the safety devices were meant to protect against physically significant elevation differentials, the implication is that Labor Law § 240 should not apply to de minimis differentials. It seems that the Second Department may have thrown defendants a bone, as several recent decisions, particularly in the First Department, have allowed plaintiffs to recover under § 240 where the height differential was minimal. Thanks to Gabriel Darwick for his contribution to this post. For more information contact Denise Ricci at dricci@wcmlaw.com . Previous Next Contact

News Limits on Agency Liability June 17, 2016 < Back Share to: Under the law of agency, a principal is liable for the acts of its agent if the principal gives an impression to a third party that the agent acts or speaks for the principal. In Cross v. Supersonic Motor Messenger Courier, Inc., the plaintiff was injured while unloading supplies from a Continental truck driven by defendant Arturo Canini-Soto. Plaintiff claimed that Continental was vicariously liable for the acts of Canini-Soto pursuant to the principle of “apparent” or ostensible agency. The First Department found that Canini-Soto worked for Continental pursuant to an independent contractor agreement. Canini-Soto was required to maintain insurance in an amount dictated by Continental, his delivery process was controlled by Continental, he received payment from Continental for deliveries made, he used Continental’s forms and wore Continental’s uniform, and the truck he drove bore Continental’s logo. Despite all of those facts, the First Department granted Continental summary judgment dismissing plaintiff's claim that Canini-Soto was acting as Continental's ostensible agent, holding that there was no evidence that plaintiff “acted in reliance on the belief that Canini-Soto was a Continental employee, and the Continental logo on the truck and the forms are insufficient to demonstrate that Continental held out Canini-Soto as an employee.” The decision by the First Department indicates that even if a principal cloaks an agent with apparent authority, to create apparent agency, the principal, and not the agent or independent contractor, must communicate, either by words or conduct, to the third party that the agent has authority to act on behalf of the principal. Thanks to Gerry Espinoza for his contribution to this post.       Previous Next Contact

News No Proximate Cause Found In Spectator Claim That Unruly Teens Injured Her At NJ Nets Game. January 18, 2012 < Back Share to: In Novembre v. Snyder High School , New Jersey Sports & Exposition Authority and the NJ Nets, the plaintiff claimed she was injured when one of a group of unruly teens fell on her while she was watching a NJ Nets game. Plaintiff claimed that the group of teens were students from Snyder High School who were loud, obscene and rowdy and appeared to be unsupervised. She also alleged that the arena security made little or no effort to control the group. Plaintiff also testified that after the incident, she heard a young man from the group say " why did you push her" and she attempted to have that hearsay statement admitted as an "excited utterance". The trial court excluded the statement after a hearing. The matter was tried with the jury finding that both Snyder High School and the Sports & Exposition Authority were negligent , but that neither proximately caused plaintiff's injuries. Plaintiff appealed and the Appellate Division affirmed both the defense verdict and the exclusion of the hearsay statement. As to the hearsay statement , it found that there was no evidence that the unidentified declarant actually observed or perceived the incident , and no evidence that the statement was made " under the stress of excitement" therefore, that he exception did not apply. http://www.judiciary.state.nj.us/opinions/a3426-09.pdf Please contact Robert Ball with any questions regarding this post. Previous Next Contact

News No Coverage For Bank's Class Action Settlement For Overdraft Fees (PA) May 12, 2016 < Back Share to: Six class actions were filed against PNC Bank on the grounds that it manipulated overdraft fees and failed to disclose to customers that there was an “opt out” option for such fees. PNC settled the litigation for $102 million that included a $30 million attorneys’ fee component. Axis Insurance Company, an excess insurer for PNC, denied coverage for the settlement as a refund or “reimbursement” of overdraft fees falling within the “professional services charge exception” to covered damages. PNC put forth three arguments. First, PNC argued that the language of the “professional services charge exception” was ambiguous, and should be construed in favor of coverage. PNC also argued that the district court was mistaken in holding that the exclusion barred coverage for reimbursements. And finally, PNC argued that it was an error to categorize the settlement as a “reimbursement,” as the crux of the suit dealt with a broader issue of PNC’s overall banking policies.   The District Court ruled that PNC was not entitled to coverage for the settlement under the exception. Nonetheless, it ruled that Axis was on the hook to pay the $30 million portion of the settlement that was designated for attorneys’ fees. On May 9, 2016, the U.S. Court of Appeals for the Third Circuit affirmed that PNC was not entitled to coverage, but reversed the District Court’s ruling with respect to attorney’s fees. The Appeals Court, led by Third Circuit Judge Thomas Vanaskie, ruled that there was no ambiguity in the professional services charge exception. It was factually accurate to categorize the settlement as a “reimbursement,” and therefore the “professional services charge exception” applied to bar coverage under the Axis policy. Since the entire settlement could be categorized as a “reimbursement,” the $30 million earmarked for attorney’s fees also constituted a reimbursement, and Axis was not liable for such under the “professional services charge exception.” Thanks to Melanie Brother for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News NY weighs new alchohol liability law. October 16, 2007 < Back Share to: Under the proposed law, sellers of fake ids would be held liable for the damages caused by their patrons. http://www.insurancejournal.com/news/east/2007/10/16/84308.htm?print=1 Previous Next Contact

News 1st Dep't: An Erased Hard Drive Can Give Rise to Adverse Inference Against Defendant December 10, 2010 < Back Share to: In Ahroner v Israel Discount Bank of N.Y., the trial court granted the plaintiff an adverse inference instruction with respect to e-mails on the defendant's erased hard drive. The Appellate Division affirmed the decision, stating that spoliation sanctions were properly granted. The evidence demonstrated that defendants controlled hard drive, were aware of their obligation to preserve it, and were subsequently directed by the court to do so. Defendants informed the court that they would comply with their obligations and would produce the hard drive for inspection by a forensic expert. However, the hard drive was erased before plaintiff was able to inspect it. Although the record was unclear as to when the hard drive was erased or whether it was preserved, the court concluded that since the drive was destroyed either intentionally or as the result of gross negligence, the court properly drew an inference as to the relevance of the e-mails stored on the drive. Special thanks to Bill Kirrane for his contributions to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_09013.htm Previous Next Contact

News Defendant Liable For Failing to Catch Falling Object January 5, 2012 < Back Share to: In Mulvihill v. Brooklyn Law School, the construction worker plaintiff was struck by falling wood pieces that were being used to support a concrete superstructure. The plaintiff sued alleging various Labor Law violations. The defendants moved for summary judgment seeking dismissal of the Labor Law § 240(1) claim arguing that the wooden pieces that fell were not being hoisted or secured and did not fall because of the absence of a safety device. The plaintiff cross-moved for partial summary judgment arguing that liability in cases such as this is not limited to instances where the object is being actively hoisted or secured at the time it falls. The court granted plaintiff partial summary judgment, holding that the defendants’ failure to utilize a safety device to catch the falling wood was the proximate cause of plaintiff's injury. Thanks to Edward Lomena for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_50120.htm Previous Next Contact

News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News New Arguments for Summary Judgment Cannot Be Raised in Reply Papers October 27, 2011 < Back Share to: In Rhodes v. City Of New York, the First Department reaffirmed its rule prohibiting new arguments from being advanced for the first time in reply papers in support of motions for summary judgment. In Rhodes, an expert report contained an improper date and as such the court did not consider the expert’s opinion. In a motion to renew and reargue, the expert affidavit date was changed and the court considered the affidavit. The First Department, however, found the lower court’s consideration of the affidavit on the motion to renew improper as the affidavit was attached to reply papers on the motion to renew. Moreover, the First Department recognized that the information was known to the parties at the time the affidavit was initially submitted and as such, was not a new fact that formed a proper basis for the motion to renew. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07569.htm Previous Next Contact

News "Employee Exclusion" Gains Further National Support March 7, 2012 < Back Share to: The "Employee Exclusion" found in many CGL policies has been upheld for some time in New York. Originally, it only applied to losses involving an employee of the named (or additional) insured, and over time the language was modified to extend the exclusion to claims involving anyone working on behalf or retained by the insured. This modified language has also been upheld in New York, and recently, an Illinois federal court has recently followed New York courts in interpreting an Employee Exclusion in favor of the insurer. In Nautilus Ins. Co. v. Jona Enterprises, Inc., the insured, Jona, was a general contractor at a job site. Jona retained a subcontractor which in turn hired the injured worker. The policy contained an Employee Exclusion that bars coverage for injuries to the insured’s employee, defined as “any person . . . hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.” The court followed New York's Appellate Division and ruled that the injured worker was the insured’s employee because he was “contracted for” the insured to work at the job site even though he was not paid by the insured. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com . Previous Next Contact

News Janet's Law Requires AEDs At School (NJ) September 26, 2012 < Back Share to: New Jersey Governor Chris Christie recently signed “Janet ’s Law,” which requires New Jersey public and non-public schools to have an automated external defibrillator (AED), to train school officials and coaches on the use of AEDs, and to establish emergency action plans for responding to sudden cardiac events. The law also requires that the mandated AEDs be maintained in accordance with the previously passed law on AED acquisition and maintenance (section 3 of P.L. 1999, C.34 (C.2A:62A-25)). Janet’s Law will take effect on September 1, 2014 and effects schools that include grades kindergarten through 12. We believe this law sets a new standard for schools, and will lead to additional claims against schools and school districts that are not in compliance with the law. We note that previous versions of the law were more detailed and expansive, and called for AEDs at youth recreational facilities and camps as well as the education of students on various health topics. The new legislation makes clear that the standard for AEDs is now different for youth recreational facilities and camps as opposed to public and non-public schools. Janet’s Law imposes an additional burden on elementary, middle and high schools. However, AEDs are already required in many large places of public accommodation, such as airports and healh clubs, and have been proven to be effective tool in saving lives during sudden cardiac events. Prudent underwriters should inquire in the application process and pre-risk surveys about the presence of AEDs at schools located in New Jersey that they insure. Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Fraud Trumps Policy Language on Jury Trial Waiver (NY) March 7, 2013 < Back Share to: A New York appellate court recently ruled that an insurer is entitled to a jury trial for claims of fraudulent inducement despite policy language waiving that right. In MBIA Ins. Corp. v. Credit Suisse Sec. (USA), LLC, the insurer, MBIA, claimed that the insured, Credit Suisse, fraudulently induced MBIA to issue a policy covering payments on $900 million in residential mortgage-backed securities. MBIA alleged that before the 2008 recession, Credit Suisse bundled risky mortgages and passed them off as high-quality securities when seeking insurance coverage from MBIA. MBIA sought a jury trial on the issue of Credit Suisse’s alleged fraud, probably because they want to appeal to a jury's sympathy and leverage the public’s negative view of Wall Street banks. However, a policy provision provided that both parties waived their rights to a jury trial for any litigation arising out of a policy dispute. The lower court ruled that MBIA was not entitled to a jury trial because it could not, on the one hand, claim that it was entitled to remedies under the policy while, on the other hand, claim that the language in the policy regarding the jury trial waiver was not valid. But the appellate court disagreed, finding that an insurer’s fraudulent inducement claim is, in essence, a claim that the policy is no longer valid regardless of whether the insurer seeks to rescind the policy. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact