Wade Clark Mulcahy LLP

News You Still Need Evidence -- Even in Brooklyn. October 15, 2009 < Back Share to: In Andrews v. New York City Hous. Auth., the decedent was killed in an apartment fire, and his family sued the New York City Housing Authority, which managed the apartment building, for personal injuries and wrongful death. The trial court denied the Housing Authority’s motion for summary judgment. The Appellate Division reversed the trial court’s decision, holding that there was no evidence of negligent maintenance by the Housing Authority. The Housing Authority showed that the fire marshal determined that the cause of the fire was an electrical cord that ignited combustible material, not the nearby outlet or receptacles. The Appellate Division found that plaintiff failed to raise a question of fact and rejected plaintiff’s fire expert’s assertion that the fire originated from an electrical fault within the outlet. Plaintiff's expert provided no factual support for his conclusions and failed to provide an explanation as to how the fire marshal’s findings were incorrect. This decision reinforces the court’s position that mere speculation and unsupported allegations are insufficient to defeat a motion for summary judgment. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07213.htm Previous Next Contact

News Plaintiff’s Gets Tangled in a "Net Opinion" (NJ) May 3, 2018 < Back Share to: Expert reports can provide significant support for a party’s case- so long as the expert can provide the necessary support for his or her findings. The conclusory remarks in plaintiff’s expert report were challenged in Perdomo v. Orgacki, when plaintiff submitted an expert report that defendant claimed should be barred as a net opinion. In December 2010, plaintiff was a passenger in an automobile involved in an accident. An MRI revealed that plaintiff sustained disc bulges that were attributable to the accident. Plaintiff’s expert, a chiropractor, had opined that there was some degree of permanency. Three years later, in November 2013, plaintiff was in a second accident, when she was rear-ended by an automobile driven by defendant. Subsequent MRIs revealed disc bulges in the same areas as found in her 2010 MRI results. The same chiropractor treated plaintiff for this subsequent accident, issuing a report that acknowledged his 2010 diagnosis of a low back injury with some degree of permanency. However, the doctor opined that plaintiff suffered further permanent partial impairment of her lower back that is 70% attributable to the 2013 accident. Defendant subsequently moved for summary judgment, arguing that plaintiff failed to establish through credible objective medical evidence that she sustained a permanent injury because of the accident. In the alternative, defendant moved to bar plaintiff’s expert report as a net opinion. The trial court ultimately barred plaintiff’s expert report as a net opinion, leading to plaintiff’s appeal. The appellate court opined that an expert report must be grounded in facts or data derived from the expert’s personal observations, evidence admitted at trial, or data relied upon by the expert which is not necessarily admissible in evidence, but is normally relied upon by experts. The net opinion rule forbids admission of reports into evidence wherein an expert’s conclusions are not supported by factual evidence. Expert reports must give the why and wherefore of their opinions. Based on this analysis, the appellate court held that the trial court properly barred plaintiff’s expert report as a net opinion, as he failed to explain why the 2013 accident resulted in a partial impairment of plaintiff’s lower back. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Join WCM on our Brand New Podcast - "Call Your Next Witness" May 6, 2021 < Back Share to: For purposes of this post, we will assume that our readers are mostly insurance claim professionals, attorneys, underwriters and others involved in the insurance industry. Now, think back to before you were involved in this industry, whether just out of college or law school, or before you changed careers and started working in insurance. What were your pre-conceived notions of "insurance defense," "insurance claim handling" or even "insurance coverage litigation?" Chances are, your perception -- if you even had one -- was that insurance defense was mundane, and certainly not a career filled with excitement. The insurance industry gets a bad rap. You know what insurance defense and claim handling involve, on every single case? Interesting characters. Heated disputes about liability, and most of all -- stories. Every claim comes with its own story, or series of stories. How many people in other fields can say that every day, a new fact pattern lands on his or her desk, involving a completely different cast of characters, all of whom have their own unique version of a disputed event? And your job is to figure out which version is true (or tru-est, as the case may be) and which will have the most appeal to a jury of six strangers! Every claim involves a puzzle that requires solving. That sounds a more appealing than the moniker "insurance defense," doesn't it? In fact, as you read this, there's a good chance one or two stories from claims you have handled came to mind. Our industry is filled with unique personalities and "war stories," whether from trials, claim disputes, mediations or otherwise. The idea behind the Call Your Next Witness podcast is to share some of those stories, and lessons learned along the way, with people inside and outside of our industry. With storytelling being a theme here, naturally, our first interviewee is Dennis Wade, one of the founders of Wade Clark Mulcahy LLP. You can listen to Part 1 of our interview with Dennis here, on Spotify or search "Call Your Next Witness" on ITunes, Google podcasts, or other platforms. We hope you'll download, subscribe and give us a listen. (We also have an episode posted explaining why WCM started a podcast in the first place. Think of that episode as a prequel to the Dennis interview). If you have questions about the podcast, or are interested in joining us as a guest, feel free to email Brian Gibbons or Georgia Coats. Previous Next Contact

News Bunk Beds Are Not Per Se Dangerous (PA) June 10, 2016 < Back Share to: In defense of a negligence action, whether a duty is in fact owed is a threshold question. Without duty, there can obviously be no breach let alone causation. As the existence of a duty is a question of law to be determined by a judge, it can be a determining factor in a motion for summary judgment, as it was in the case of Yun v GREAT WOLF LODGE OF THE POCONOS, LLC,. The plaintiffs’ family of four was given a free room upgrade for their Pocono vacation at Great Wolf Lodge, a resort with indoor water parks and attractions. The upgraded room included an adult bed, pull out sofa and bunk beds. For parents with two daughters aged four and two years, there were ample sleeping options. The infant four year old was excited to sleep on the top bunk – she had never done so before. The parents weighed the dangers of her sleeping in the top bunk. Despite the fact that she slept in a low level bed with the side blocked off at home (for fear that she may fall out of bed), they ultimately decided that the top bunk was not dangerous. At approximately 12:00 A.M., the parents heard a thump and rushed to the children’s room and found that their daughter had fallen from the top bunk onto the carpeted floor. She began vomiting immediately and every 2 hours thereafter. They took her to the hospital where she was diagnosed with a closed nondisplaced skull fracture. In the lawsuit, the plaintiffs pursued premises and products liability theories based on the premise that the bunk bed was a dangerous condition. They disputed that a warning label was affixed to the bunk bed – despite the defendant’s photographic proof of a label that stated, “Never allow a child under 6 years of age on upper bunk.” In opposition to the defendant’s summary judgment motion, the plaintiffs insisted that a question of fact existed as to the negligence of Great Wolf. They contended the free room upgrade was negligent given the age of their daughters. They argued that there had been a failure to warn. Essentially, they contended that the bunk beds were a dangerous condition. In Pennsylvania, the elements of a negligence claim are: (1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) defendant's failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; (4) actual loss or damage resulting to the plaintiff. However, according to the Restatement (2d) of Torts, “a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Great Wolf argued that bunk beds were not a dangerous condition, in support if this they pointed to two non-controlling cases: Rubin v. Olympic Resort, Inc. (New York) and Buck ex rel v. Camp Wilkes, Inc., (Mississippi) both of which stated that notwithstanding any design defects, the potential danger of a bunkbed is obvious and it is for the parents to determine whether a bunk bed is suitable for their children. In fact, the plaintiff parents were admittedly aware of the potential danger of allowing their daughter to sleep in the top bunk. Great Wolf offered expert opinion that the bunk beds in the resort did not violate any code or regulations. He opined that the bed was not used in accordance with the warning provided. Even granting the plaintiffs all favorable inferences, the federal district court could not find a duty on the resort to not offer bunk beds and granted Great Wolf’s motion for summary judgment. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   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 Worldwide Coverage Not So Worldwide October 10, 2019 < Back Share to: The Seventh Circuit Court of Appeals recently examined personal jurisdiction over worldwide insurance policies. In Lexington v. Hotai, the court held that an insurer for a bicycle manufacturer could not compel contribution from Taiwanese insurers over a cycling injury settlement. The initial coverage dispute arose out of severe injuries that a Louisiana resident sustained while riding a Trek bike he rented in Texas. When the front wheel detached, he fell causing paralysis in his arms and legs. He sued Trek in Wisconsin's state court, the bicycle manufacturer, as well as Lexington, the insurance company that insures Trek through a commercial general liability and umbrella policy and defended Trek in the suit. After the case settled, Lexington sued Zurich and Taian, two Taiwanese insurance companies, for reimbursement. The District Court dismissed the case for lack of personal jurisdiction and Lexington appealed. In affirming, the Seventh Circuit found that while Wisconsin’s long-arm statute reached the Taiwanese insurers, the suit failed to meet the Constitution’s due process requirement that the defendants have sufficient “minimum contacts” that they “purposefully availed” themselves to Wisconsin’s jurisdiction. In so doing, the court rejected Lexington’s argument that this requirement was met by the policy’s “worldwide coverage” provisions, finding that foreseeability of a Wisconsin lawsuit alone is not enough. This case carries big implications for those seeking jurisdiction over foreign companies, especially foreign insurers. It serves as a reminder that worldwide coverage does not necessarily mean worldwide jurisdiction. Previous Next Contact

News NY App. Div. Finds Maintenance Records Key in Establishing Constructive Notice May 27, 2010 < Back Share to: In Zambri v. Madison Sq. Garden, the Second Department upheld the lower court’s denial of defendant’s motion for summary judgment, stating that the defendant failed to establish that it did not have constructive notice of the allegedly hazardous condition that caused plaintiff to fall. In Zambri, plaintiff slipped and fell on beer that had been spilled on the floor at Madison Square Garden. Although plaintiff didn’t see the beer before her fall, after landing on the ground, her pants were wet and smelled like beer. Despite defendant’s event supervisor’s testimony that he inspected the floor over the course of the night and did not recall seeing any beer on the ground, the documentary evidence revealed that the area had been mopped on two separate occasions, well after plaintiff’s fall. Since the defendant did not offer any evidence as to when the area was last cleaned prior to plaintiff’s fall, the Second Department held that the defendant failed to establish that it did not have constructive notice of the condition prior to plaintiff’s fall. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04370.htm Previous Next Contact

News Allstate Blocked From Writing New Policies In Florida January 16, 2008 < Back Share to: The Florida Insurance Commissioner has blocked Allstate from writing new policies in that state until Allstate complies with subpoenas issued by the Florida Office of Insurance Regulation. The Subpoenas seek documents regarding Allstate’s reinsurance program, it’s relationship with risk modeling companies, insurance rating organizations and insurance trade associations. http://www.insurancejournal.com/news/southeast/2008/01/16/86463.htm Previous Next Contact

News COVID Chaos – New York Court Finds No Coverage for Pandemic Losses October 8, 2021 < Back Share to: It would be near impossible to encounter someone who has not been affected in some way by the COVID-19 pandemic. The same proves true for insurance companies and courts across the nation have begun to address the issue of insurance coverage for pandemic-related losses. In Visconti Bus Serv., LLC v. Utica Natl. Ins. Group, 2021 NY Slip Op 21027 (Feb. 12, 2021), the New York Supreme Court, Orange County issued such a decision in an action filed by a bus company against its insurer seeking coverage for losses sustained in connection with the COVID-19 pandemic. Due to New York Executive Orders enforced as part of the State’s response to the COVID-19 pandemic, the company’s commercial bus fleet operation ended, and it allegedly suffered damage in the form of lost business income. The bus company argued that its insurer should cover the loss under the company’s “all risk” commercial property policy, which provided coverage for “direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.” The insurer denied coverage and argued that the premises did not sustain any direct physical loss or damage from a Covered Cause of Loss, and also cited certain policy exclusions, including the “virus” exclusion, and the exclusion for “delay, loss or use or loss of market.” The court agreed with the insurer and dismissed the Complaint, finding that there was no coverage for business income/extra expense in the absence of “direct physical loss or damage to the insured’s premises,” and that mere loss of use or functionality was insufficient to trigger coverage. The court noted that the bus company admitted that the premises had not been infected with the COVID-19 virus and the company was unable to show any loss of use due to damage to the actual premises as a result of the pandemic. Accordingly, the “all-risk” coverage of the policy was not triggered by the loss of business income stemming from enforcement of the New York State Executive Orders. The Court also ruled, as New York state and federal courts applying New York law have consistently held, that the language of the policy as it related to “direct physical loss or damage to property” was not ambiguous. It found to the contrary – that the policy unambiguously excluded coverage for the mere loss of use or functionality of the covered premises in the absence of actual, demonstrable physical harm. The bus company appealed the decision, and the case is currently pending in the Appellate Division, Second Department. The court recently permitted several amicus parties to file briefs in the case. Caselaw regarding coverage for COVID-related losses continues to develop but the Visconti Bus Serv. decision is favorable to insurers in respect of coverage for business losses where no physical damage or loss can be shown. The appeal should further clarify New York law on this issue as well as coverage for COVID losses. Thank you to Tristan Montaque for his contribution to this post. Please email Andrew Gibbs with any questions. Previous Next Contact

News New York To End No Prejudice Rule June 24, 2008 < Back Share to: New York is one of the few (if not the only) state in which a carrier need not prove that an insured's late notice prejudiced the carrier in order to disclaim on that ground; Governor Patterson recently introduced a bill which changes that. It passed both the Assembly and is expected to pass the Senate shortly. The long and the short of the legislation is that 180 days after the legislation is signed, NY will join the majority and carriers will only be able to disclaim on late notice if they were materially prejudiced by the late notice. In addition, injured parties will be able to bring declaratory judgment actions challenging a late notice disclaimer before having to obtain a judgment. Moreover, if a primary personal lines policy or a statutorily mandated policy is in play, the injured party will have the right to obtain coverage information FROM THE CARRIER prior to commencing litigation. 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 An Insured’s Misrepresentations In Warranty Resulted In Disclaimer (NY) January 25, 2019 < Back Share to: In Patriarch Partners, LLC v. Axis Insurance Company, the Second Circuit declined to alter its prior decision involving the interpretation of a policy warranty and its impact on coverage. In so doing, the court implicitly incorporated the terms of the insured’s warranty, into the policy, to find there was no coverage for a multimillion dollar government investigation. In 2011, Patriarch Partners, LLC, a private equity investment firm, obtained an excess directors and officers policy through Axis Insurance Company which provided $5 million in excess insurance. Patriarch had $20 million in primary coverage. Axis was concerned about potential new liabilities, thus, it required Patriarch to execute a warranty statement that would eliminate liability in the event Patriarch had prior knowledge of a claim. Patriarch presented a warranty signed by its sole officer stating it was not aware of any “facts or circumstances that would reasonably be expected to result in a Claim.” Unbeknownst to Axis (but not to Patriarch), the Securities and Exchange Commission had been investigating Patriarch as early as 2009. In 2012, after the Axis policy took effect, the SEC served a subpoena on Patriarch. Patriarch subsequently sought coverage for the costs related to the SEC’s investigation. In the ensuing coverage action, the Second Circuit relied on the terms of the warranty and found that no coverage existed because Patriarch had been aware of facts and circumstances that could reasonably be expected to result in a claim. The Second Circuit rejected Patriarch’s argument that it would have to have specific knowledge that the “claim” would reach the $20 million threshold, thus, triggering the Axis excess policy, in order for Axis to disclaim coverage on this basis. The court further rejected Patriarch’s argument that the relevant facts and circumstances had to be subjectively known by Patriarch’s founder, who signed the document, citing general principals of agency. Interestingly, the court’s holding relied mostly on the warranty itself, even though the warranty was not directly incorporated into Axis’s policy. Ultimately, this opinion highlights the importance of full disclosure in an insurance application or warranty in order for coverage to attach. Thanks to Doug Giombarresse for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact