News Non-cumulation Clause “Leads” The Way for Insurer Victory (NY) February 15, 2013 < Back Share to: At issue in this appeal is whether Allstate’s insurance policy required Allstate to pay a second full policy limit or whether plaintiffs' losses were encompassed by the per occurrence limit in single insurance policy. As was the case here, most lead-based paint claims involve exposure, injuries, and/or damage that take place or continues through several policy periods. As such, exposure/injuries/damage may not be known by a claimant at the time of the exposure/injury/damage takes places, the precise date or dates when the exposure/injury/damage took place is often very difficult to pinpoint. In November 1991, Allstate issued an insurance policy to Tony Wilson, the owner of an apartment building in Rochester, New York. The insurance policy had a per-occurrence limit of $500,000, and was renewed for two additional one-year periods. In 1993, two children were exposed to lead paint while living in an apartment in Wilson’s building, with one suffering injuries due to the lead exposure. The mother of those children later commenced an action against, among others, Wilson, seeking damages for injuries sustained by the child as a result of exposure to lead. According to Wilson's deposition testimony, he attempted to remediate the lead paint after learning that the children had been exposed to the substance, however, the extent of his remediation attempts were never made clear in the record. In 1994, two more children of a subsequent tenant were exposed to lead in the same apartment involved in the first litigation. A separate action was commenced to recover damages for injuries sustained by those subsequent children. While the second action was pending, the original action settled for $350,000, which Allstate paid pursuant to its policy. Allstate then took the position that the non-cumulation clause in the policy limited its liability for all lead exposures in the apartment in question to a single policy limit of $500,000, offering the plaintiffs in the second action the remaining $150,000 of coverage to settle the action. Plaintiffs believed they could also seek $500,000 from a different policy year, and as such, commenced the declaratory judgment action to resolve that issue. Allstate appealed the lower court’s decision granting plaintiffs' cross-motion seeking a declaration that the amount of insurance coverage to which plaintiffs were entitled was the full policy limit of the second policy. In Nesmith v. Allstate, the Appellate Division, Fourth Department, likened these lead exposure facts with those of a recent decision in the First Department involving asbestos, Mt. McKinley Ins. Co. v. Corning Inc. In Mt. KcKinley Ins. Co., the court concluded that "any group of claims arising from exposure to an asbestos condition at a common location, at approximately the same time may be found to have arisen from the same occurrence.” Here, the Fourth Department reversed the lower court’s decision, finding that the evidence established the two sets of children lived in the same apartment at different times, less than a year apart. Despite Wilson’s testimony that he attempted to remediate the lead hazard, there was nothing in the record establishing that he removed all of the lead paint from the subject apartment. Accordingly, the Court found the lead paint that injured the second set of children was the same lead paint that was present in the apartment when the first set of children lived there, and concluding that the lead exposure arose from the same occurrence. As the lead exposure was viewed as a single occurrence within the meaning of the policy, all plaintiffs’ losses were encompassed by the single $500,000 per occurrence limit. Special thanks to Joe Fusco for his contribution to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com .       Previous Next Contact

News An Issue Of First Impression For PA: Are Minor Children Bound To Arbitration Agreements Signed On Their Behalf? June 9, 2023 < Back Share to: In Santiago v. Philly Trampoline Park LLC, the Superior Court of Pennsylvania was tasked with deciding an issue of first impression in the state: whether a parent’s role as a natural guardian entitles that parent to bind their minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law. Santiago v. Philly Trampoline Park, LLC., 291 A.3d 1213, 1216 (Pa. Super. Ct., 2023). The case involved several parents bringing separate claims against the defendant, Sky Zone, a Philadelphia trampoline park. Id at 1217. In 2019, a mother and his two daughters visited Sky Zone and signed a “Participant Agreement, Release and Assumption of Risk” (the “Agreement”). Among other things, the agreement provided that “if I or any of my children are injured in any way, this waiver prevents and prohibits any recovery of money from any Sky Zone related entity.” After one of the children was injured at the facility, her father filed a complaint on behalf of his child. Sky zone moved to compel the arbitration agreement, signed by the other parent, contending that the Agreement was a valid agreement that both the parents and child were within its scope. The Court noted that as a general rule of contract law, only the parties to an arbitration agreement may be compelled to arbitrate. That said, a party can still be compelled to arbitrate under an agreement, regardless of whether she signed it, if common law principles of agency and contract support such an obligation on her part. Whether an agency relationship exists is a question of fact, the burden of proof weighing on the party asserting the agency relationship. An agency relationship may exist by: 1) express authority; 2) implied authority; 3) apparent authority; and/or 4) authority by estoppel. Relevant to this case is “apparent authority,” which exists where the principal, “by word or conduct” causes people with whom the agent deals to believe that the principal has granted the agent authority to act. The focus is on the principal’s conduct to determine whether an agency relationship exists, for the purposes of this analysis, the purported agent’s conduct is irrelevant. After analyzing the issue of whether an agency relationship existed as between spouses through apparent authority and finding one did not exist because the principal had no interaction with Sky Zone, the court moved to the novel question of this case. . At the outset, the court acknowledged that the minor children could not have entered into the arbitration agreement themselves, as minors lack the capacity to contract in their own right. Id. As such, the court held that minors also lack the capacity to “grant express authority to an agent to contract on their behaves, rendering any such resulting contracts voidable.” The court held that, “Natural guardianship confers no inherent right to intermeddle with the property of the minor child, and the natural guardian has no inherent authority to demand or power to receive, hold or manage the minor’s property unless the natural guardian has also been appointed as guardian of the minor’s estate.” Id. This is an interesting decision that we expect to be appealed. Thanks to Hannah Garber for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News 5 Day Mail Rule No Longer Applies to NY Summary Judgment Filing Deadline February 1, 2011 < Back Share to: < ![CDATA[5 Day Mail Rule No Longer Applies to NY Summary Judgment Filing Deadline]]> Previous Next Contact

News There is No Such Thing as the “Sudden Emergency Defense” according to the Pennsylvania Supreme Court (PA) January 15, 2021 < Back Share to: In Graham v. Check, the Pennsylvania Supreme Court held that the “sudden emergency doctrine” should not be understood as a defense to alleged negligent driving. Further, a claimed “sudden emergency” will not diminish the standard of care drivers should exercise. In the early morning hours of March 6, 2018, plaintiff Francis Graham crossed the street without a “walk signal.” He was wearing all dark clothing. The defendant, Larry Check, did not see Graham until he was only about seven feet away, and at that point, although he applied his brakes, it was too late to stop. Check struck Graham, causing him injuries. Graham subsequently filed suit against Check for negligent driving. Check defended on the basis that he had faced a sudden emergency, which he did not create, and that his response was reasonable under the circumstances. The trial court instructed the jury of the elements Check was required show to prove the “sudden emergency” defense. The jury then returned a verdict for Check; Graham appealed; the Superior Court affirmed, and the Pennsylvania Supreme Court ultimately granted review. The Pennsylvania Supreme Court found that the “sudden emergency doctrine” is not a defense; but rather, it is a set of circumstances the jury should apply when considering the defendant’s conduct. The court indicated that regardless of any “sudden emergency,” a driver has a higher burden to act carefully while operating an automobile—especially at street crossings. The court reasoned further that whether a “sudden emergency” present itself should be considered in the context of defendant’s negligence as a whole. Accordingly, the court reversed and remanded the case based on the trial court’s improper jury charge. Thanks to John Lang for his contribution to this post. Please contact Thomas Bracken with any questions. Previous Next Contact

News Harm but no Foul: School not Liable for Injury During Gym Class (NY) September 25, 2009 < Back Share to: In Paragas v. Comsewogue Union Free School District, the infant plaintiff was injured when he accidentally collided with another student during gym class. Plaintiff brought an action against the school district for negligent supervision. Stating that the school's standard of care to be exercised toward the student is that of a reasonably prudent parent, the Appellate Division found that the defendant provided adequate supervision. The children in the gym class were playing an age-appropriate game and the supervising teacher had several years of experience. Moreover, any alleged inadequacy in the supervision was not a proximate cause of the accident. The collision was accidental and more intense supervision would not have prevented it. Accordingly, the Appellate Division determined that the trial court properly granted defendant's motion for summary judgment dismissing the complaint. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06521.htm Previous Next Contact

News Need Surveillance Footage To Frame A Complaint? Well, That’s Too Bad (NY) September 30, 2022 < Back Share to: In Villani v. Rite Aid of N.Y., Inc., Index no. 155613/2022, the Hon. Arlene P. Bluth of New York County Supreme Court has denied a petitioner’s request for a pre-action disclosure of in-store surveillance video from an October 2021 accident. The petitioner claims she suffered severe facial and eye injuries when she collapsed and struck her head in a Rite Aid in Manhattan after fainting from a COVID-19 booster. The petitioner argued that the surveillance video was material and necessary to frame her complaint because the staff present at the time of her accident may be responsible for her injuries, and the video will assist in identifying the employees that were present at the time. In opposition, respondent argued that the petition presents sufficient facts in framing a complaint, such as the time, date, and location of the incident. In denying petitioner’s request, Hon. Arlene P. Bluth explained that the purpose of a pre-action disclosure is to assist a potential plaintiff with identifying the specific causes of action that may be asserted or with identifying potential defendants. However, petitioner here demonstrated both. The petitioner knows when the incident happened, where it happened, and the events immediately preceding the incident, and predicts she will pursue a negligence claim. The petitioner’s request for surveillance to identify the employees who were working that day presumes these employees were wearing nametags and the ability to see the names. As such, identification is better suited for a plenary action rather than pre-action disclosure of surveillance. This case demonstrates that a pre-action discovery for surveillance is not permissible as a “fishing expedition” to determine whether a cause of action exists, unless it is shown the information sought is material and necessary. A petition that already presents the time, date, and location of the accident, including the events immediately preceding the incident, is sufficient to frame a complaint. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Recent Class Action Settlement in Federal Court Could Impact Negligent Supervision Cases Involving Allegations of Bullying (NY) August 3, 2018 < Back Share to: In the case Doe v. New York City Department of Education, twenty-three public school students brought claims against the New York City Department of Education for its alleged failure to prevent or adequately address bullying. The plaintiffs claimed that, in doing so, the DOE violated their rights to procedural due process, substantive due process, equal protection rights, and the Individuals with Disabilities in Education Act. While the plaintiffs in this case sought only declaratory and injunctive (not monetary) relief, the terms of the settlement could provide fader for the plaintiff’s bar in its pursuit of negligent supervision claims. In particular, according to the terms of the settlement, the DOE is required to: (1) introduce an electronic reporting system allowing parents to report bullying electronically; (2) direct school staff members who witness bullying to report the incident to the principal within one day; (3) require principals to log complaints of bullying in electronic databases; (4) mandate schools to include anti-bullying techniques in their annual training sessions for teachers and staff; (5) investigate complaints of bullying within ten days (except in extenuating circumstances); and, (6) approve requests for school-transfer made by a parent whose child was the victim of a Material Incident. As argued by the Legal Aid Society in their amicus papers (and freely admitted by Judge Garaufis in his Decision), these measures do nothing to address the root cause of bullying. Rather, they dictate what school staff must do once bullying has already occurred. The heightened documentation requirements will make it easier for the plaintiff’s bar to bring such negligent supervision claims as they create more opportunity for concretely establishing notice, not to mention the occurrence itself. While the settlement shields the DOE from “systemic, bullying-related litigation”, claimants are still permitted to request relief in their individual capacity. By resisting the implementation of measures that would prevent bullying itself while, at the same time, making these types of personal injury cases easier to prove, public city schools are vulnerable to an uptick in negligent supervision cases involving bullying. Even in cases involving private schools, the plaintiff’s bar can offer the settlement terms as evidence of a “standard” for addressing bullying incidents at school. Are private schools required to implement electronic systems to report bullying? Must private school staff report all instances of bullying (which is not defined by the Decision) within one day? A plaintiff’s attorney could point to this settlement, voluntarily entered into by the Department of Education, and argue that failure to accord with these measures constitutes a departure from a standard widely adopted in this region. Hopefully the legislature will not be as reluctant to address the root cause of this important issue. Thanks to Kristina Duffy for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Jury Trial Suspension Due to COVID-19 November 20, 2020 < Back Share to: Courts in the tri-state area have recently announced the suspension of jury trials due to the increase of COVID-19 cases. Philadelphia County and other Pennsylvania counties began resuming jury trials in September. On November 17, 2020, the Court of Common Pleas of Philadelphia County suspended jury trials until January 2021. https://www.courts.phila.gov/juryservice/; https://www.courts.phila.gov/covid-19/t. Additional Pennsylvania counties will likely implement suspensions of jury trials. Bucks County announced that no criminal or civil jury trials with a jury of 12 people will be heard prior to January 1, 2021, and no civil jury trials will be heard from November 30, 2020 until January 1, 2021. http://www.buckscounty.org/docs/default-source/coronavirus/emergencyorder22.pdf?sfvrsn=5a730eef_0 In New Jersey, Courts began resuming jury trials in September, and approximately one dozen jury trials were held. On November 16, 2020 the New Jersey Judiciary announced that all jury trials are suspended, but the current ongoing jury trials are permitted to continue. https://njcourts.gov/pressrel/2020/pr111620d.pdf?c=WX7 New York resumed jury trials in October, but the revised pandemic procedures of trial courts announced on November 13, 2020 noted that no prospective civil or criminal jury trials will go forward, and any pending jury trials will continue to conclusion.http://www.nycourts.gov/whatsnew/pdf/JT_Memo_Nov13-001.pdf. All jurors in New York were asked not to appear as of November 16, 2020. http://www.nycourts.gov/whatsnew/pdf/JT_Memo_Nov13-001.pdf. It is probable that many states will suspend jury trials due to the rising cases of coronavirus, and the Courts concerns for public health. Special thanks to Emily Finnegan for her contribution to this post. For more information, please contact Thomas Bracken.       Previous Next Contact

News Appellate Division Discusses Jury Instructions on increased Susceptibility and Failure to Mitigate Damages August 5, 2024 < Back Share to: In Anthony Rivera v. Elizabeth G. Kolsky, a recent decision from the Second Department helps to clear up the use of the increased susceptibility instruction given by the Supreme Court to the jury. The case also discussed the standard to be met to secure a jury instruction on failure to mitigate damages. Anthony Rivera was 30 years old in 2010, when he sustained personal injuries as a result of a motor vehicle accident. The injuries included a fracture of his hip, an injury to his knee and a preexisting back injury that was aggravated as a result of the accident. The Court granted the plaintiff’s motion for summary judgment on the issue of liability and the case proceeded to trial on damages. Over the defendant’s objection the Supreme Court granted the plaintiff’s request for an increased susceptibility jury instruction and instructed the jury as follows, “The fact that the plaintiff…may have a physical condition that makes him more susceptible to injury than the normal healthy person, does not relive the defendant of liability for all the injuries sustained as a result of her negligence. Defendant is liable even though those injuries are greater than those that would have been sustained by a normal, healthy person under the same circumstances.” The jury found in favor of plaintiff and award damages of $1,865,305.43, and the defendants appealed. The defendants argued that the jury instruction prejudiced the jury. The Court found that the increased susceptibility instruction did not refer to any condition specifically and was similar to that of the instruction for aggravation of a preexisting injury. On the issue of aggravation of the preexisting back condition, the jury found in favor of the defendants. Under these circumstances, the jury instructions did not affect the verdict. “A party seeking to avail itself of the affirmative defense of failure to mitigate damages must establish that the injured party failed to make diligent efforts to mitigate damages, and the extent to which such efforts would have diminished those damages.” In this matter, the defendants failed to meet that burden, and the Supreme Court therefore declined to instruct the jury on that issue. This case is relevant to our practice because it clears up the susceptibility instruction and the standard that we must meet to prove that plaintiff did not make diligent efforts to mitigate those damages. Rivera v. Kolsky .pdf Download PDF • 76KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News Participation is Not Always Direction or Control under NY's Labor Law February 10, 2009 < Back Share to: Owners of one and two-family homes are typically exempt from Labor Law §240 and 241, except in situations where they “direct or control” the work. In Snyder v. Gnall, the Third Department in New York recently held that despite clear involvement by the owner in the construction project, his actions did not rise to the level of direction or control. The owner was identified on the building permit as the general contractor; he personally arranged for building inspections; he hired all contractors and sub-contractors; and he ordered and paid for certain building materials. However, because all of these activities took place pursuant to directions or recommendations set forth in plaintiff’s comprehensive proposal, the Court held the owner’s participation was not as significant to support the conclusion that he directed or controlled the work. The claims were thus dismissed. Snyder v. Gnall Previous Next Contact

News Unlimited WC Coverage Prevents Excess Coverage from Being Triggered (NY) January 11, 2018 < Back Share to: In Vincent & Sons Construction v. Century Surety Insurance, et al, the Second Department recently discussed the unlimited workers compensation coverage interacts with excess policies. This declaratory judgment action was brought by Arthur Vincent & Sons Construction seeking defense and indemnification from defendants Century Surety Insurance Company and Admiral Insurance Company in an underlying action wrongful death action, which arose during a project in which Fordham University hired Vincent Construction to install a new roof on one of its research buildings. As part of their contract, Vincent Construction agreed to indemnify Fordham against any claims arising out of Vincent Construction’s negligence and to carry comprehensive commercial general liability insurance naming Fordham as an additional insured. During the course of the project, one of Vincent Construction’s employees had a fatal accident, and his estate commenced a wrongful death action against Fordham. In turn, Fordham commenced a third-party action against Vincent Construction seeking contribution, common-law indemnification, and contractual indemnification. At the time of the accident, Vincent Construction was covered by three policies: (1) a worker’s compensation and employer’s liability policy issued by Commerce and Industry Insurance Company (“Commerce”) that covered common-law indemnification claims and excluded coverage for contractual indemnification claims, (2) a CGL policy issued by Century that covered contractual indemnification claims, and (3) an excess policy issued by Admiral that also covered contractual indemnification claims. After learning of the accident, only Commerce acknowledged coverage and provided Vincent Construction with defense, so Vincent Construction commenced this action to obtain a judgment declaring that Admiral was obligated to defend and indemnify it, and to defend and indemnify Fordham as an additional insured in the underlying wrongful death action. Admiral moved for summary judgment, arguing that it was not obligated to defend or indemnify Vincent Construction because Vincent Construction’s primary coverage under the Commerce policy was unlimited, so excess coverage could never be triggered. Vincent Construction argued that because the Commerce policy excluded claims for contractual indemnification, the Admiral policy provided it with excess coverage for those claims. The Supreme Court agreed with Vincent Construction, and declared that Admiral must indemnify Vincent Construction in the underlying action with excess, noncontributory coverage. Admiral appealed. On appeal, the Second Department noted that the Admiral excess policy stated that it provided coverage in the amount of the “ultimate net loss” in excess of the “underlying insurance limit.” The policy defined “underlying insurance limit” as the sum of the amounts of “other insurance” and “underlying insurance.” At issue for the Second Department was the meaning of “underlying insurance,” which the Admiral policy defined as “coverage(s) afforded under insurance policies, for the limits shown, as designated in the schedule of underlying insurance.” The schedule of “underlying insurance” listed Century’s CGL policy, but it did not list Commerce Workers’ Compensation policy. Despite this, the court explained that the coverage afforded under the Commerce policy was included in the “underlying insurance limit,” because it was considered “other insurance.” Here, the Commerce policy contained a New York Limit of Liability Endorsement providing Vincent Construction with unlimited coverage in cases where bodily injury to an employee arises in the course of employment. Because there was no question that the facts of the wrongful death action fell within the meaning of the endorsement, Admiral was correct that Vincent Construction’s primary policy provided unlimited coverage. Accordingly, the Second Department reversed the trial court, and held that by its “clear and unambiguous terms” the Admiral excess policy was not could be triggered for the wrongful death suit, regardless of the exclusion for contractual claims. Admiral's policy language governed, and the WC carrier is responsible for the entire underlying judgment, whatever that may be. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff's Comparative Negligence Does Not Trigger an Employer's Contractual Indemnification Obligation (NY) September 7, 2012 < Back Share to: In a bid to trigger an employer’s contractual indemnity provision, some defendants are arguing that the plaintiff’s comparative negligence constitutes the employer’s negligence. While creative, this argument, as discussed by the Second Department in Arrendal v. Trizechahan, is flawed and does not comport with the intent of indemnity provisions. In Arrendal, the plaintiff, a Daisy Subway employee, was injured while placing garbage into a trash compactor. He commenced suit against Trizechahan, the owner of the building, who in turn filed a third party claim against Subway Real Estate Group for contractual indemnification. Subway Real Estate Group then sued Daisy Subway, the plaintiff’s employer. The indemnity provision in the lease provided that Subway Real Estate Group would indemnify Trizechahn from losses caused by an agent or licensee of Subway Real Estate, which plaintiff was. It also provided that Subway Real Estate would indemnify Trizechahn from losses caused by employees of Daisy Subway, which plaintiff was. Trizechahn argued that plaintiff’s comparative negligence constituted negligence and, thus, triggered Subway’s indemnity obligations. The Supreme Court bought this argument, but the Second Department did not. It held that the term "negligence," as employed by the lease does not encompass the comparative negligence of the injured plaintiff. Rather, the indemnification provision would only be triggered in the event of a finding of negligence by the indemnitor’s agent or employee for a tort committed against the plaintiff. Thanks to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact