News Plaintiffs Tripped Up By Their Own Testimony On Summary Judgment (NY) September 16, 2016 < Back Share to: Courts often cite to party testimony to find a factual dispute which forms the basis to deny a summary judgment motion. But in two recent cases out of the First Department Appellate Division, the courts found in favor of property-owner defendants, in part, due to the testimony of the plaintiffs. In Pinkham v West Elm the plaintiff alleged that she was injured when she fell off an elevated display platform in defendants' store. In support of a motion for summary judgment, defendants submitted photographic evidence showing that the steps of the platform were clearly demarcated with thick black lines which contrasted with the light color of the floorboards. The evidence also showed that the steps were well lit and free of debris. In opposition, the plaintiff submitted an expert’s report finding the area was a defective condition as it violated the New Jersey Handicap Accessibility Code and created optical confusion due to the monochromatic floor covering used on the platform and steps. The Supreme Court denied the motion for summary judgment; but on appeal the Appellate Division reversed and issued summary judgment in favor of the store. The Court cited the plaintiff's testimony that she turned and stepped without looking down as she was seeking a sales associate and that the steps played no part in her fall. Similarly, in Caban v Bronx Park S. II Assoc. the plaintiff allegedly tripped over the loose edge of a rubber mat that was affixed to the interior stairs in the lobby of the defendant's building. The defendant building owner moved for summary judgment arguing that it did not create the alleged defective condition or have notice of its existence. The defendant showed that its porter cleaned the building daily and regularly inspected the mat and the Supreme Court awarded the defendant summary judgment. On appeal, the decision was affirmed and the Appellate Division quoted the plaintiff’s own testimony that she was looking down at the mat immediately before the accident and admittedly did not see any defect. These cases show that the best defense is often to simply establish that the facts are on your side. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News The Perils of Disclaiming Employers’ Liability to an Undefined Role (NY) February 20, 2020 < Back Share to: In Vazquez v. Markel Insurance Company, the District Court for the N.D.N.Y., last week, denied both of the competing motions for summary judgment by the injured plaintiff and defendant insurer, sending to trial the precise factual question of: whether an individual installed a rack for daycare cots in his capacity as a real estate manager, or in his capacity as anything else, e.g., a husband, homeowner, volunteer, or independent contractor. By way of background, plaintiff Vazquez was an employee of the Mother Nurture Day Care, a daycare run by Mercedes Sidor out of the home she shared with her husband, David Sidor. In October 2010, a rack to store cots installed by David dislodged, causing several cots to fall on Vazquez, sending her backwards into a water heater. This resulted in a cervical disc herniation ultimately requiring surgery, and the basis for Vazquez’ sizable damages claim. New York’s Workers Compensation Law undeniably barred Vazquez’ claims as against Mercedes, her employer. But David presented an opportunity to seek coverage from the Sidors’ CGL policy issued by Markel – but was he too subject to the employers liability exclusion? Vazquez sued him in New York Supreme Court arguing that he was not subject to the exclusion. The state court held that the question presented a thorny issue of fact necessitating trial. So, David settled with Vazquez agreeing that he would not contest liability in exchange for Vazquez’ agreement to pursue relief directly from his insurers, only. Which brings us to the current action. What David’s settlement with Vazquez failed to address was the fact that Defendant Markel had already disclaimed coverage to David for the accident – but, Markel had failed to include the injured plaintiff on that disclaimer, as it should have under New York Ins. Law s. 3420. On that basis, Vazquez argued that Markel was estopped from holding that David was not an insured. The N.D.N.Y. held that an insurer may not be estopped from disclaiming coverage where a disclaimer would be unnecessary because the claim does not fall within the coverage terms of the insurance policy. In other words, Markel did not timely disclaim to Vazquez, but it didn’t need to if the policy coverage terms were not triggered, noting “a timely disclaimer is still required when a claim falls within the coverage terms of a policy and is only denied because of an exclusion.” Markel, however, was not yet in the clear. The N.D.N.Y. agreed with the trial court that if David was held to have acted as the real estate manager of the daycare, then the Markel policy would unquestionably be triggered and would cover the more than $1 million in damages assessed by the state court. However, if he acted in any other capacity, then the Workers Compensation Law would bar coverage: “the parties must therefore complete whatever discovery remains to them, and proceed to a bench trial.” This case is an example of the ways in which clear, and oft-tested policy terms can present a morass of pitfalls when presented in the context of unique facts. Thanks to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News New York Court Upholds Forum Selection Clause In Summer Camp Contract August 30, 2010 < Back Share to: In Bernstein v. Wysoki, the parents of a 13-year old boy entered into a contract with a summer camp program, which authorized the camp to make decisions regarding any necessary medical treatment required by their son during his stay at the camp. The contract further included a forum selection clause that chose Wayne County, Pennsylvania as the venue for any disputes that might arise between the parties. During the plaintiff’s stay at the camp, he became ill and was treated by the camp doctor. He was subsequently taken to a nearby hospital in Broome County, New York, where he sustained injuries as a result of a misdiagnosis. The plaintiffs filed their medical malpractice suit in Nassau County, New York, against the camp, the camp doctor and the hospital. The defendants brought a motion to dismiss the complaint, arguing that the forum selection clause was applicable and valid. The Second Department granted the defendants’ motion as it pertained to the camp and the camp doctor. The court reasoned that the forum selection clause applied to all disputes that arose between the parties and the plaintiffs had failed to demonstrate that a trial in Pennsylvania would be so gravely difficult that the plaintiffs would be denied their day in court. However, the court denied the hospital’s motion, finding that there was no indication in the contract that the camp intended to use this particular hospital in emergency cases and, therefore, the hospital lacked a sufficiently close relationship with the camp such that enforcement of the clause would be foreseeable to the plaintiffs. Thanks to Georgia Stagias for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06475.htm Previous Next Contact

News The Building Code applies, but which one? (NY) March 15, 2017 < Back Share to: New York City, like many large metropolitan areas, has maintained a Building Code governing how buildings must be constructed and laid out for well over a century. As with all municipal codes, the Building Code has gone through several iterations over the years, becoming more detailed and expansive as our understanding of what constitutes a safe and habitable building has changed. One difficulty for premises liability practitioners is figuring out which specific Building Code applies to the site of an alleged accident. It is quite common for three buildings standing next to one another to have three different versions of the Building Code apply to each of them, depending on when the building was first built and whether, during subsequent construction or renovation, the Department of Buildings required the building be brought “up to” a newer Code. The First Department’s recent decision in Verderese v 3225 Realty Corp. reminds us that correctly determining the applicable Building Code provision often determines whether a defendant property owner will be liable to an injured plaintiff. In Verderese, plaintiff fell on a set of interior stairs in a residential building. She alleged there were no handrails present, and that this violated the applicable 1916 Building Code. The trial court awarded summary judgment to defendant, and the First Department affirmed. Looking to the 1916 Building Code, the First Department determined that while handrails were required for “interior stairs,” the Code did not define what they were. Looking to the more recent 1968 Building Code for guidance, the First Department held that while “interior stairs” allow egress to the exterior of the building, “access stairs” provide travel between floors in the building. Relying on two photographs of the stairs in question produced by defendant, the First Department ruled that the stairs were “access stairs”—and therefore did not require handrails under the 1916 Building Code—because while the stairs were within the building lobby, they did not provide access to the outside. Based on its analysis, the First Department also rejected plaintiff’s expert report. The court reasoned that because there was no violation of the 1916 Building Code, and because the 2008 Building Code did not apply (the two Codes the expert used to establish his opinion), the expert could not rely on either to say that the lack of handrails violated accepted engineering practices. Verderese serves as a reminder to all premises liability practitioners to examine plaintiff’s bill of particulars and expert reports for alleged Building Code violations, and then determine whether the alleged violations applied to the building in question. If plaintiff’s claim for liability is predicated on an inapplicable Code, summary judgment remains viable. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at mailto:dricci@wcmlaw.com   Previous Next Contact

News Give Me Shelter August 16, 2024 < Back Share to: After his wife died from an allergic reaction to food served at a Disney restaurant in Orlando, Florida, plaintiff brought a wrongful death suit in the Florida circuit court. Disney, pointing to an arbitration clause agreed to by plaintiff when signing up for the Disney+ streaming service several years earlier, asked the court to dismiss the lawsuit and compel arbitration. Disney’s motion is set for hearing on October 2, 2024. For more, see: www.npr.org Disney wants a wrongful death lawsuit thrown out because the plaintiff had Disney+ Jeffrey Piccolo's wife died of an allergic reaction after eating at a Disney World restaurant. Disney says his claims must be arbitrated out of court based on the terms of his years-old Disney+ trial. Postscript: Disney opted to withdraw its arbitration clause argument shortly after our initial post: https://www.cnn.com/2024/08/19/business/disney-arbitration-wrongful-death-lawsuit-intl-hnk/index.html Previous Next Chip M-P George Chip M-P George Of Counsel +1 786 636 1541 cgeorge@wcmlaw.com Contact

News Standard For Affidavits in Support of Summary Judgment Motions January 5, 2011 < Back Share to: In Rodriguez v. 3251 Third Avenue, the plaintiff fell from an unsecured ladder while preparing to paint office space in the defendant’s building. The plaintiff moved for summary judgment under Labor Law 240(1) claiming that he was not provided with proper safety equipment. The owner opposed the motion by submitting an unsworn statement from the plaintiff's employer stating that he did not know the plaintiff and the plaintiff did not work for him. The lower court denied the plaintiff's motion, but the Appellate Division, First Department reversed holding that the plaintiff was entitled to the protections of the Labor Law and that the unsworn statement of the plaintiff's employer was hearsay and unaccompanied by any other evidence to show that the plaintiff's presence on the work site was unauthorized. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00022.htm Previous Next Contact

News Police Report and Settlement Check Inadmissible in Auto Case (NJ) September 15, 2017 < Back Share to: Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo, The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car. At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff. On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police report. Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness. In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Labor Law Protections Expand Despite Worker Ignoring Safety Instructions (NY) April 24, 2013 < Back Share to: In Vasquez v. Cohen Bros. Realty Corp., plaintiff initiated an action after her husband died while performing repair work on a drop ceiling at a building the defendant managed. The decedent was involved in replacing tiles in the drop ceiling of the loading dock. He and his co-worker used a two-man scissor lift to reach the drop ceiling. While replacing the tiles, the decedent saw that a fluorescent light was missing from the ceiling grid. He noticed the light on a nearby exhaust duct and climbed onto the guardrail of the lift to reach the light. While still on the guardrail, the decedent reinstalled the light and began to replace the ceiling tiles. He successfully replaced one tile while still standing on the guardrail, but had difficulty with the second tile. He eventually lost his balance and fell to the ground, fatally hitting his head. The plaintiff moved for partial summary judgment on her Labor Law 240(1) claims, and the defendant cross-moved arguing that the decedent was a “special employee” and that the Workers’ Compensation Law barred his claims. The court denied both motions and held that there was an issue of fact as to whether the decedent could have completed his work without leaving the lift. In reversing the denial of the plaintiff’s motion for partial summary judgment, the First Department granted plaintiff conditional summary judgment, reasoning that the plaintiff still needed to prove that he was not the defendant’s special employee, as there was an issue of fact with respect to who controlled and directed the decedent’s work. As for the 240(1) claims, the court held that the decedent was working from an elevated height to repair the ceiling and the defendant failed to provide him with an adequate safety device because apart from the lift, the defendant did not supply the workers with harnesses or safety lines. The idea that the decedent’s decision to leave the lift was the sole proximate cause of his death was rejected by the court, which noted that a simple instruction to avoid an unsafe practice (standing on guardrails) is not a sufficient substitute for providing a worker with a safety device to allow him to safely complete his work. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News Intentional-Acts Exclusion Inapplicable to Innocent Abuse Victim (PA) June 7, 2013 < Back Share to: In a recent case of first impression, the Pennsylvania Superior Court held that the Commonwealth’s Unfair Insurance Practices Act prohibits carriers from relying on intentional-acts exclusions to disclaim coverage of claims under a property policy arising out of domestic abuse by another insured. The Superior Court also held that the unauthorized and fraudulent cancellation of a couple’s homeowner’s policy by one spouse as part of a pattern of domestic abuse against the other cannot effectively cancel the policy. In the case of Lynn v. Nationwide Insurance Company, an insured presented property damage claims under his homeowners policy following a failed murder-suicide in which his co-insured wife attempted to kill herself and her children by burning down the family home. She left a disturbing suicide note to her estranged husband that stated "Have a great fucking life knowing that the kids will always be with me now. I leave you absolutely nothing." Following Nationwide’s disclaimer of coverage on the basis of an intentional-acts exclusion contained within the policy, the insured filed suit alleging breach of contract and bad faith. Specifically, the insured argued that while the exclusion would ordinarily bar coverage, Pennsylvania’s Unfair Insurance Practices Act nonetheless prohibits carriers from denying claims under a property policy that arise out of incidences of domestic abuse by an insured. To this end, the insured presented evidence demonstrating a systematic pattern of abuse by his wife that culminated in arson as a means of forever depriving him of his children. Still, the trial court was unconvinced and granted Nationwide summary judgment on the basis that the Act proscribes only those disclaimers that intentionally discriminate against victims of abuse. On appeal, however, the Pennsylvania Superior Court reversed, holding that the relevant portion of the UIPA was enacted specifically “to create a statutory prohibition against an insurance company’s refusal to pay a homeowners policy/casualty claim arising out of abuse to an innocent claimant when an abusive spouse caused the property damage.” Further, the Court explained that the lower court’s interpretation would run afoul the statute’s clear purpose by virtually guaranteeing that innocent co-insured’s would never be paid for intentional acts of abuse. As a matter of law and policy, therefore, the Superior Court readily concluded that traditional intentional-acts exclusions are largely inapplicable to those claims stemming from purposeful abuse. While the decision in Lynn v. Nationwide Insurance Company clearly illustrates that Pennsylvania’s public policy favors insurance coverage for those innocent insureds who have suffered losses as the result of domestic abuse, the Superior Court was also quick to caution that the UIPA does not create per se coverage of the abused. To the contrary, the Lynn Court found that the Act’s structure and history expressly reject the notion of “a special class of insureds who would be automatically covered solely because they are victims of abuse,” reaching instead only those claims derived directly from the abuse. Thanks to law clerk (and soon to be law school graduate and attorney) Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com   Previous Next Contact

News Pundits Debate Mandatory Gun Liability Insurance February 7, 2013 < Back Share to: Over the past few weeks, media outlets such as Fox News, the Huffington Post, and the Economist have weighed in on the prospect of mandatory liability insurance for gun owners, similar to the current requirement for motor vehicle insurance in most states. The CDC estimates that in 2000, approximately $822 million in damages were caused by gunshot injuries. So the argument in support of insurance alleges that there is a significant risk of potential injuries, and thus ensuing claims and lawsuits. Insurers would be able to assess this risk and pass the cost for such claims onto the owners of the firearms, as opposed to the injured parties of health care system. As Jonathan Diamond suggested in his editorial in the Huffington Post, "(r)equiring owners of firearms to carry, say, $1 million in liability insurance ... would offer recourse to those affected by gun violence, and it would raise the bar of responsibility for gun owners." Opponents claim this is simply a tactic to increase the cost of gun ownership in order to serve as a deterrent. Individual states have already begun to propose their own legislation, such as California and Illinois cited in the above-referenced articles. Thanks to Brian Gibbons for his contribution to this post.   Previous Next Contact

News Inadvertent Disclosure of Personal Information in Court Filing Held Not Actionable November 3, 2023 < Back Share to: The protection of confidential personal information has become an important part of doing business and in the practice of law. The unauthorized release or publication of such information can lead to significant consequences, including civil liability. However, not all disclosures will result in liability, as the New Jersey Appellate Division found in a recent decision. In Johnson et al. v. City of Hoboken and Kraus , plaintiffs initially filed suit against the City of Hoboken for alleged racial discrimination. In seeking summary judgment in that case, the law firm representing Hoboken filed certain documents on eCourts containing unredacted personal information concerning plaintiffs including Social Security numbers, driver’s license numbers, dates of birth and criminal history. The error was quickly discovered, and the firm successfully moved to have the information redacted from the public record. Nonetheless, plaintiffs filed a separate lawsuit against the firm and several of its employees alleging a privacy violation, violation of New Jersey Court Rule 1:38-7, and intentional and negligent infliction of emotional distress. The trial court dismissed the claims finding, among other things, that there was no private cause of action under the court rule and that plaintiffs did not establish an invasion of privacy claim. The Appellate Division affirmed, holding that R . 1:38-7, which states that personal identifiers such as social security numbers and driver’s license numbers must be redacted before filing with the court, does not provide for a private cause of action against parties who inadvertently upload unredacted personal information. The Court also found that plaintiffs could not assert an invasion of privacy claim under the circumstances as the information was inadvertently uploaded for only a short period of time before it was removed. Plaintiffs could not assert negligent or intentional infliction of emotional distress claims because plaintiffs could not show that the defendants’ actions were “extreme and outrageous” or that plaintiffs sustained any emotional distress. Finally, the Court rejected plaintiffs’ claims that defendants violated plaintiffs’ rights under the New Jersey Constitution because such claims apply against state actors, not private individuals. The Johnson case serves as a reminder that the disclosure of protected personal information in court filings can result in potential civil liability. While the Court correctly dismissed the claims in Johnson under the circumstances of that case, the decision serves as a warning for attorneys and parties to take extra care in handling and filing documents which contain protected information. Joseph Johnson, et al. v. City of Hoboken, et al. .pdf Download PDF • 90KB Previous Next Contact

News 5th Circuit Rules that CGL Insurance Owes Coverage for Data Breach August 20, 2021 < Back Share to: On July 21, 2021, the Fifth Circuit, in Landry ’s Inc. v. Ins. Co. of the State of Pa., issued a pivotal decision concerning coverage for a data breach under a commercial general liability policy. Significantly, the Fifth Circuit held a commercial general liability insurer was obligated to defend its insured in an action asserting breach of contract claims arising out of an alleged data breach. By way of brief background, in December 2015, Paymentech, LLC, a branch of JPMorgan Chase Bank that processes Visa and Mastercard payments for retail properties operated by Landry’s Incorporated, as successor in interest to Landry’s Management, LP, discovered credit-card problems at some of Landry’s properties. Ultimately, it was discovered that a data breach occurred at 14 Landry’s locations, which involved the unauthorized installation of a program designed to search for data from credit cards’ magnetic strips. Over an approximate eighteen-month period, the program retrieved personal information from millions of customers’ credit cards and some of that information was used to make unauthorized purchases. In May 2018, Paymentech filed suit against Landry’s for breach of contract for the costs associated with the data breaches. Landry’s sought coverage under its commercial general liability policy with The Insurance Company of the State of Pennsylvania (“ISCOP”). Ultimately, ICSOP disclaimed coverage to Landry’s for the underlying Paymentech action as it determined the Paymentech action did not allege any “personal and advertising injury” as required under the policy. Subsequently, Landry’s filed a lawsuit against ICSOP and both ICSOP and Landry’s moved for summary judgment. The District Court for the Southern District of Texas agreed with ICSOP’s position that Paymentech did not allege a “publication” took place or that its own privacy rights were violated. Landry’s appealed to the Fifth Circuit. First, the Court determined the publication requirement as defined by the policy was met because the complaint in the Paymentech action alleged Landry’s published its customers’ credit-card information. In other words, the Court held the personal information was exposed to public view in accordance with the dictionary definition of “publish”. Second, the Court analyzed whether the Paymentech action involves an injury “arising out of . . . the violat[ion] [of] a person’s right of privacy.” By looking to the text of the policy, the court determined the phrase “arising out of” was broad and extended to all injuries that arise out of violations of privacy violations. Since the Court found a person has a right of privacy in his or her credit-card data and a hacker’s theft of credit-card data, the use of that data to make fraudulent purchases constitutes a “violation” of consumers’ privacy rights and the complaint in Paymentech action asserts violations of theft and fraudulent purchases, based on the plain language of the policy, ICSOP has a duty to defend. Significantly, the court reasoned the policy did not distinguish between tort and contract damages; as such, the Court focused on the facts alleged in the complaint as opposed to the legal theories asserted. The Court held the facts alleged in the Paymentech complaint constitute an injury arising from the violation of customers’ privacy rights. In doing so, the Court held it did not matter whether Paymentech’s legal theories sounded in contract or tort or that individual customers did not sue Landry’s. Rather, the Court reasoned Paymentech’s alleged injuries arise out of the violations of customers’ rights to keep their credit-card data private. Accordingly, under Texas’ eight-corners rule, the Court held ICSOP had a duty to defend Landry’s in the underlying Paymentech action. This decision represents a significant departure from precedent involving commercial general liability coverage and data breaches. It will be interesting to see how this matter develops as the case is remanded for further proceedings consistent with the Fifth Circuit’s ruling. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact