News Football: The All American Game With Risks Highlighted in Court and on T.V. December 6, 2011 < Back Share to: On Monday, Finn v. NFL was filed in federal court in Newark. The lawsuit involves a dozen former pro players claiming a flawed policy on concussions, coupled with league misuse of the anti-inflammatory drug Toradol, caused them long-term brain injuries. The suit alleges that before games, the plaintiffs were given Toradol, to relieve pain, but that it also thinned blood, making for easier bruising and exacerbating impact injuries such as concussions. The suit also alleges that the NFL’s flawed policy traces back to 1994 when the commissioner formed the Mild Traumatic Brain Injury Committee to study post-concussion syndrome. The players claim that over the years the committee downplayed the risks and ignored medical evidence that players sustaining concussions were more likely to suffer subsequent concussions, and permitted players to return to the playing field after a concussion. This is not the first lawsuit filed by former pro football players, and it certainly will not be the last. The dangers of football are continuously highlighted in the news, media and most recently in the legal dramedy, "Harry’s Law." On the November 30th episode, parents of a high school football student sued the school when their son died of a traumatic brain injury after playing. During oral argument on the school’s pre-answer motion to dismiss, the parents’ lawyer highlighted the known dangers of the sport, and the cumulative effects of many hits during games. Obviously, the case in Harry’s Law is mere fiction, but the reality of Finn v. NFL, and the other similar lawsuits continuously bring the dangers to light. www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202534492365&et=editorial&bu=New%20Jersey%20Law%20Journal&cn=NJLJ%20Daily%20News%20Alert%3A%20December%206%2C%202011&src=EMC-Email&pt=New%20Jersey%20Law%20Journal%20Daily%20News%20Alert&kw=NFL%20FORMER%20PLAYERS%20SUE%20OVER%20CONCUSSIVE%20INJURIES%2C%20MISUSE%20OF%20PAIN%20DRUG%20&slreturn=1 www.nbc.com/harrys-law/episode-guide/season-2/400844/head-games/episode-209/433819/ Previous Next Contact

News NJ Appellate Division Continues National Trend Rejecting 6 Plaintiffs’ Claims for Business Income Loss as a Result of COVID Mandates June 24, 2022 < Back Share to: The national trend rejecting pandemic business income loss claims continues. In a consolidated appeal, on June 20, 2022, the New Jersey Appellate Division decided against six companies that sought insurance coverage for business income losses sustained after New Jersey Governor Murphy’s Executive Orders required them to limit or close their businesses in the early days of the COVID pandemic. The plaintiffs in the respective cases – owners and operators of a gym, a day care, a baked goods store, three restaurants – brought breach of contract and/or sought declaratory judgments against insurers that denied their claims for Covid business income losses as a result of the government orders. The respective defendant insurers – Selective Fire and Casualty Insurance Company, Markel Insurance Company, Blackboard Insurance Company, Wesco Insurance Company, Amtrust Insurance Company, Philadelphia Indemnity Insurance Company – moved to dismiss with prejudice under Rule 4:6-2(e) arguing that the insurance policies, which the Appellate Division found to all be “essentially identical,” did not cover plaintiffs' business losses because the suspension of their businesses due to the Executive Orders was not a “‘direct physical loss of or damage to’ their insured premises.” The Court also rejected plaintiffs’ arguments that the business income losses were covered by the policies’ “Civil Authority” clauses, looking to other courts for persuasive guidance. The Court further rejected plaintiffs’ claims that the lower courts should have given them the opportunity to amend their complaints to add regulatory estoppel claims based on alleged misrepresentations made by the insurance industry about virus exclusion provisions. Noting that the business income losses were not covered under the policies anyway, irrespective of whether the virus exclusions applied, the Court held that any such amendments would have been futile. Lastly, the Appellate Division agreed with the insurers that the plaintiffs’ claims could be rejected on the basis of the policies’ virus exclusions. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Payment of Claim Not Necessary to Establish Insurance Fraud (NJ) January 27, 2016 < Back Share to: March Madness will soon be upon us and to borrow a basketball cliche, the New Jersey Supreme Court recently reiterated the proposition that filing a bogus insurance claim isn't a "no harm, no foul" situation. In the State of New Jersey v. Robert Goodwin, the criminal defendant drove an SUV belonging to Girlfriend #1 to pick up Girlfriend #2 and they parked it on a Newark Street near Girlfriend #2's home. The defendant claims he later found the SUV in the same place burned to a crisp, and told Girlfriend #1 to call the police and report the SUV stolen, which she did. The police determined that the SUV had been set on fire with gasoline and that the ignition had not been tampered with. Girlfriend #1 filed an insurance claim, and during the claim investigation, the defendant admitted to the insurance investigator that he had parked the SUV where it had been found but lied about it being stolen because he didn't want to get in trouble with Girlfriend #1. Although he denied that torched the SUV, the claim was denied because of the misrepresentation. The defendant was arrested and tried, and the jury acquitted him of arson and theft charges but found him guilty of an insurance fraud charge and he was sentenced to seven years in jail. The Appellate Devision reserved his conviction, finding that he couldn't be convicted of insurance fraud if he was acquitted on the arson and because the insurance company discovery the fraud before paying the claim. On appeal, the Supreme Court analyzed the relevant statute, which stated one "is guilty of the crime of insurance fraud if [he] knowingly makes, or causes to be made . . . a false . . . statement of material fact . . . as part of . . . a claim for payment . . .pursuant to an insurance policy.” The Court determined that the legislature did not intend to define the term “false statement of material fact” to only those cases in which an individual succeeded in inducing an insurance company to pay a false claim and that a statement is "material" if it could have reasonably affected the decision by an insurance company to provide insurance coverage to a claimant. The Court also found that a conviction of arson was not necessary to establish insurance fraud because the defendant's false statements still had the potential to reasonably impact the insurance claim. As such, the conviction was reinstated. Please write to Mike Bono for more information. Previous Next Contact

News Employer Who “Borrowed” Employee Immune From Lawsuit under the Workers Compensation Act January 5, 2024 < Back Share to: Last month, the Pennsylvania Superior Court found that because an individual was a “borrowed employee,” the entity to which he was loaned was immune from a personal injury lawsuit under the Pennsylvania Workers’ Compensation Act (“WCA”). In Mason v. Northeast Architectural Products d/b/a Daron Northeast , Plaintiff Anthony Mason (“Mason”) suffered a workplace injury while working at a manufacturing plant of Northeast Architectural Products d/b/a Daron Northeast (“Daron”). No. 735 MDA 2023, 2023 WL 8827960 (Pa. Super. Ct. Dec. 21, 2023). Approximately one month before the injury, Mason went to a temp agency, Express Services, Inc., (“Express”), and was told to report at Daron for a position the next day. Mason initiated a negligence action against Daron. In its answer, Daron asserted, inter alia , it was immune from liability as Mason’s employer pursuant to the WCA. At the close of discovery, Daron filed a motion for summary judgment claiming the same. The trial court granted Daron’s motion finding that Mason was Daron’s “borrowed employee” or “borrowed servant” and was thus immune under the WCA. Under the WCA, employers must pay employees who suffer an on-the-job injury regardless of negligence, in exchange for which said employers are immune from tort-liability for these injuries. This immunity extends to instances with “borrowed employees.” To determine whether an injured worker is a “borrowed employee” under the WCA, Courts look to whether the person or entity to whom the worker was loaned has the right to control the work and manner in which it is to be performed. Burrell v. Streamlight, Inc. , 222 A.3d 1137, 1139–40 (Pa. Super. 2019) (emphasis in original), citing JFC Temps, Inc. v. W.C.A.B. (Lindsay) , 680 A.2d 862, 864 (Pa. 1996). Courts also consider “the right to select and discharge the employee and the skill or expertise required for the performance of the work.” Id . The Superior Court found that Daron was Mason’s employer. When Mason arrived at Daron, he was met by a supervisor, who gave him safety equipment and a tour of the plant, as well as instructions on Mason’s job duties. Additionally, the other workers from Express who trained Mason were placed at Daron by Express and were thus training Mason in their capacity as Daron workers. Finally, while Express paid Mason’s salary and had hiring/firing capabilities, the Court deemed those facts were not dispositive, because while Daron could not control who Express sent to fill a position, it could instruct Express not to send an employee back to the jobsite. This case is instructive for instances where a party may try to circumvent the WCA to seek tort liability against an entity protected by the statute, particularly within the realm of temporary employment. Please e-mail Brian Noel with any questions. ANTHONY MASON Appellant v. NORTHEAST ARCHITECTURAL PRODUCTS DBA DARON NORTHEAST .pdf Download PDF • 213KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

News The Pink Panthers: An Interesting Overview of a Major Jewelery Gang. April 23, 2010 < Back Share to: The Pink Panthers, a Serbian/Balkan affiliation of thieves, is credited with many of the world's major jewelery heists over the past 10 years. The attached investigative article from The New Yorker provides some background on the gang and thus may be of interest to our friends in the JB/fine art/specie/CIT books of business. http://pdf.wcmlaw.com/pdf/Pink Panthers.pdf If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Limitation Period In Fair Pay Act Does Not Cover Failure To Be Promoted October 25, 2010 < Back Share to: In Noel v. The Boeing Co., the 3rd Circuit was forced to determine how far to stretch the limits of the Fair Pay Act enacted in 2007. The FPA was enacted to remedy pay discrimination between employees of similar stature. The Act states that each time an employee receives a paycheck that is issued as a result of the discrimination, the statutory period restarts, giving employees ample time to file a claim even if they do not learn about the discrimination for a significant period of time. In Boeing, the plaintiff, Emmanuel Noel, a Haitian, was claiming he was the victim of pay discrimination when his Caucasian co-workers were promoted but he was not. His employer argued that his claim was time-barred, since the promotion decisions were made in 2002 and 2003. The 3rd Circuit was forced to consider whether a failure to be promoted would allow the plaintiff’s claims to be protected under the FPA. The Court determined that it would not. It stated that the FPA enforces equal pay for equal work, but here Noel was comparing his pay to the salary of those who worked in different positions. Thus his case falls outsides the confines of the FPA and he was unable to pursue his claim. Thanks to Remy Lapidus for her contribution to this post. http://www.ca3.uscourts.gov/opinarch/083877p.pdf Previous Next Contact

News NY's 2nd Dept Says Children's Replevin Action Against Father Time Barred September 9, 2009 < Back Share to: In the recent case of McGough v. Leslie, the Second Department ruled that the children of artist Alfred Leslie may not have their artwork back. The children commenced an action in both conversion and replevin against their father, whom they claimed previously gifted some of his artworks to them. Defendant Leslie countered that the claim was time barred, and the lower court disagreed. The appellate court, reversing the lower court held the claim was in fact time barred under the law of simple conversion. The Second Department held that this was not a case of replevin, but one of simple conversion. Relying on the Court of Appeals decision in State of New York v. Seventh Regiment Fund, the Second Department held that the statute of limitations for bringing an action sounding in conversion had already expired. The court stated: “The Seventh Regiment Fund Court reversed this Court, remitted the case to Supreme Court, and held that: ‘Supreme Court must determine upon remittal whether the Fund was a bona fide purchaser. If so, the State's claim will have accrued only after demand and refusal. If not, or if demand would have been futile, the claim will have accrued when the Fund actually interfered with the State's property" (98 NY2d at 261).’” Analogizing this claim to that of the plaintiffs in Seventh Regiment Fund, the court found that there had been interference by defendant to his children’s property since 1991. Despite pleadings by his children and ex-wife to turn over the artwork, defendant never did. The court stated that the claims are time-barred by more than a decade and dismissed plaintiffs’ complaint in its entirety. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06385.htm Previous Next Contact

News Emergency Is Valid Defense to Collision May 16, 2011 < Back Share to: In Zapata v. Sutton, 2011 NY Slip Op 03962, defendant was sued after his car collided with another car that had crossed over double yellow lines and into his lane from the opposite direction. Defendant moved for summary judgment and the court found that defendant could not be held responsible for any part of the accident as he was “presented with an emergency situation not of his own making” and had almost no time to react. As such, summary judgment was granted. The appellate court affirmed, finding that plaintiff’s expert report was nothing more than pure speculation and unsubstantiated by any facts and thus failed to raise a triable issue of fact. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03962.htm Thanks to Alison Weintraub for her contribution to this post. Previous Next Contact

News New Jersey Passes Insurance Fair Conduct Act (NJ) January 21, 2022 < Back Share to: On January 18, 2022, Governor Phil Murphy signed into law the New Jersey Insurance Fair Conduct Act. The Act establishes a private cause of action for first-party claimants against a UIM insurer for “unreasonably” denying or delaying claims. It also allows a claimant to sue the insurer if the insurer violates any provision of New Jersey’s Unfair Claims Settlement Practices Act which governs “unfair methods of competition and unfair and deceptive acts or practices in the business of insurance” which includes “unfair claim settlement practices.” Notably, the Act does not define what “unreasonable” conduct is. Thus, courts will be left to decide that issue. However, the statute provides 15 examples of “unfair claim settlement practices’ which include misrepresentation of the policy limit, failing to promptly investigate a claim, not making a good faith effort to settle a claim when liability becomes reasonably clear, and compelling insureds to institute litigation to recover benefits. A successful insured will be entitled to recover actual damages, including actual trial verdicts which shall not exceed three times the applicable coverage amount, pre and post judgment interest, reasonable attorneys’ fees and reasonable litigation expenses. The Act essentially creates a statutory “bad faith” cause of action. In New Jersey, bad faith claims have traditionally been grounded in the common law and elaborated upon by New Jersey judges over the past several decades. The statute serves to penalize insurers for certain types of conduct in handling claims for uninsured and underinsured motorist coverage. The Act leaves many questions unanswered which will lead to significant litigation. It will be left to the courts to decide what “unreasonable” conduct actually is, and it further straddled the gay between subjective and objective tests. Courts will have to decide how much time amounts to “unreasonable delay” and what an “unreasonable denial of a claim for benefits” is. Perhaps most importantly, courts will have to determine when a difference of opinion between an insurer and a claimant as to the value of a UM/UIM claim is unreasonable. Thus, insurers should consider reviewing their claims handling practices for objective reasonableness. Insurers should also consider educating their UM/UIM adjusters on the new law. If interested in a CLE on this topic, please contact WCM. Thanks to Mike Noblett for his contribution to this article. Previous Next Contact

News Beware of Res Ipsa Loquitur (NY) November 1, 2019 < Back Share to: In Orgina Carter v. New York City Housing Authority, the court addressed the applicability of res ipsa loquitur in the context of elevator accidents. Specifically, in Orgina, the plaintiff claimed she was injured while attempting to exit an elevator that malfunctioned and unexpectedly closed on her hand while she was in the defendant's building. According to the plaintiff, the elevator had been within the exclusive control of the defendant. In response to the plaintiff's claim, the defendant moved for summary judgment, which the Appellate Division, First Department determined was properly denied by the lower court, as the defendant had failed to establish, as a matter of law, that res ipsa loquitur was inapplicable to this case. The court explained, in order for this doctrine to apply: 1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; 2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and 3) it must not have been due to any voluntary action or contribution on part of the plaintiff. In denying the defendant's motion for summary judgment, the court reasoned that elevator malfunctions give rise to the possible application of res ipsa loquitur to prove negligence. The court also found that there were disputed issues regarding the defendant's control and whether the plaintiff's own actions may have affected the instrumentality involved in the accident. Lastly, the court reasoned that proof of notice of a dangerous condition may be presumed under the doctrine of res ipsa even where the defendant contended that it did not have notice of the dangerous condition alleged. This decision serves as a reminder that New York plaintiffs tend to raise the doctrine of res ipsa loquitur in elevator malfunction matters and this may be a difficult claim to beat on summary judgment in a New York court. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact

News Call Your Next Witness - M.C. Sungaila June 30, 2022 < Back Share to: On this episode of Call Your Next Witness, I interviewed M. C. Sungaila, a renowned appellate attorney based in Orange County, California. Her practice focuses on civil appeals, trial strategy and consulting. We discussed her role as a trial strategist, and how she recognized early in her career that appellate practice, as opposed to trial practice, was the right fit for her. We also discussed the unique HR situation we have been facing, given the significant turnover in the legal and insurance industries, and what we can do as law firm managers to keep our teams personally and professionally satisfied. This is a good listen not only for law firm managers, but also for younger associates looking for some insight on how to advance in the industry. M.C. also hosts a podcast called the Portia Project, which focuses on women lawyers and judges, and some insights from their respective journeys. For any additional information about the podcast, or about being a guest, please email Brian Gibbons.   Previous Next Contact

News "Regular Use" Auto Exclusion Upheld in NJ April 25, 2012 < Back Share to: Richard Vann sought med-pay coverage from Mercury Insurance Group, his personal insurance carrier for two automobiles that he owned, after he was injured in a car accident. After the court granted summary judgment in favor of Mercury, Vann appealed. Vann was injured while driving a truck belonging to Vann Trucking, a company owned and operated by his father. Vann Trucking owned three trucks, including the Mack CH600 that Vann was driving at the time of his accident. At his deposition, Vann explained that he drove that particular truck 90% of the time while working for Vann. Moreover, he typically parked the truck close to his home so that it was easily accessible and drove the truck between three to five days per week. The Mercury policy provided med-pay coverage for injuries sustained while using "a highway vehicle not owned by or furnished or available for the regular use of the named insured." Mercury disclaimed coverage due to the "regular use" exclusion under the policy. The appellate court upheld the trial court’s decision, finding that the policy exclusion applied to the particular circumstances of this case. Specifically, the use of the subject vehicle as described by Vann during his deposition constituted a "regular use" under the policy. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4264-10.pdf Previous Next Contact