News Killer Whales Are Not People. February 9, 2012 < Back Share to: We've been following the killer whales-as-people controversy. The federal court has now weighed in. Killer whales are not people. So, they don't get the benefit of the 13th Amendment's prohibition against slavery. Sorry, Shamu. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Covid Cases Looming? Maybe Not. Some States Are Giving Companies The Antibodies To Fight Covid-19 Lawsuits June 26, 2020 < Back Share to: On Friday, June 19, 2020, Senate Majority Leader Mitch McConnell, stated a potential second COVID-19 “rescue” package could be in the works. McConnell said he wants to prioritize investing in” future generations” in this legislative package. If passed, this would be the second piece of legislation by Congress to aid families and businesses impacted by the COVID-19 coronavirus pandemic. On March 27, President Trump signed in law H.R. 748, the “Coronavirus Aid, Relief and Economic Securities Act” (CARES Act). McConnell stated that his priority was to ensure that the next package included “liability shields” for universities and corporations that would protect such institutions from COVID-19 related lawsuits. The Senator didn’t give much specifics about his goal to “invest” in the future, but some states aren’t waiting around for McConnell to elaborate. States like Tennessee and Iowa are already passing laws to make it harder for an individual to prevail in a negligence action stemming from the pandemic. On June 16, 2020, the Tennessee House of Representatives passed legislation that would require a person to demonstrate with clear and convincing evidence that an entity operated with gross negligence or willful misconduct, causing a person to contact the coronavirus. The law would also require a person to show that the business did not act in substantial compliance with any federal or state public health guidance. Similarly, on June 5, 2020, Iowa Legislature passed a law that covers meatpacking plants, hospitals, and nursing homes from claims by employees, customers, and family members, for coronavirus-related hospitalizations or deaths. The new bill directly separates and limits who can file lawsuits against a business for COVID-19 related illnesses. There is no doubt that these new legislations raise the bar for liability for coronavirus exposure at certain businesses. However, this is an uncharted territory for insurance companies and lawyers. It is safe to say that the world of personal injury law is entering a new phase, just as we are. Thanks to Irving Fayman for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News Wedding Videographer Deemed Independent Contractor (NY) April 27, 2017 < Back Share to: In Weinfeld v HR Photography, Inc. a videographer knocked a wedding guest to the ground with his video equipment during a wedding reception, resulting in a lawsuit where the issue of the videographer’s employment status was at issue. HR photography Inc. was hired to provide photography and video services at the wedding. In turn, HR Photography hired a videographer to handle the video aspect of the work. The plaintiff, the injured wedding guest, filed suit in Nassau County Supreme Court against the individual videographer under a theory of negligence, and against the photography company claiming negligent hiring, negligent retention, and negligent supervision. The Nassau County Supreme Court granted HR Photography’s motion for summary judgment, concluding that the videographer was an independent contractor and that there was no evidence that HR Photography was negligent in hiring, supervising, or retaining the videographer. On appeal, the Appellate Division discussed the status of the law and the rule for liability based upon negligent hiring. The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts. The key consideration in determining whether an employer-employee relationship exists is whether the alleged employer exercises control over the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule. In this case, the Court looked to the deposition testimony, which showed this wedding was the first time HR Photography hired the videographer, did not provide the videographer with health insurance, did not provide the videographer with a W-2 form, and the videographer used his own equipment at the wedding. Further, the Court ruled that HR Photography demonstrated, prima facie, that it did not know and that it did not have reason to know of any propensity on the part of the videographer to engage in the conduct that allegedly caused the accident. As such, the trial court's decision was affirmed. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News One Shipment, Many Claims, Single Occurrence (PA) March 1, 2013 < Back Share to: The U.S. District Court in Pennsylvania recently addressed the issue of whether multiple claims arising from a single shipment of an allegedly defective product constitutes a single "occurrence" for coverage purposes in the case of Cincinnati Insurance Co. v. Devon International, Inc. In 2006, Devon International Inc., an import company, received an order for Chinese drywall from one of its customers, North Pacific Group. Devon filled this order by purchasing drywall from a Chinese manufacturer. The purchased drywall was shipped to Devon via one shipment. Once Devon received this shipment, it in turn, delivered the drywall to North Pacific. By 2009, a number of plaintiffs had sued North Pacific for damages allegedly sustained between 2008 and 2009 in connection with claims that the drywall contained an improper amount of sulfur. North Pacific requested that Devon defend and indemnify it against these claims. During the period at issue Devon was insured by Cincinnati Insurance Co. under two separate "occurrence" based commercial general liability policies. Cincinnati and Devon disagreed over the extent to which Cincinnati was required to provide Devon with a defense and indemnification in litigation stemming from the single shipment of allegedly defective drywall. The main dispute was whether the underlying claims against Devon arose out of a single occurrence or multiple occurrences. In order to determine the number of occurrences, the court applied the "cause" test that looks to the cause of the injury. Specifically, if all claims stem from one proximate cause and the insured had some control over the cause, then this would constitute a single occurrence. Applying this test, the Court concluded that the underlying claims all originated from the single shipment of allegedly defective drywall. Additionally, Devon had some control over the cause of the injuries because it chose to purchase and distribute the defective drywall. Thus, for coverage purposes, the Court held there was only one "occurrence" and since some plaintiffs claimed damages as early as 2008, the court further ruled that Devon's 2008-2009 policy was the one triggered since coverage is triggered under an "occurrence" based policy when the negligent act first manifests itself. Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Surrender to Sandy? November 1, 2012 < Back Share to: Not a chance. Even with -- power out; roadways and streets flooded and strewn with trees and crackling power lines; mass transit crippled; land line telephone service cut; and, cellular service spotty at best -- WCM attorneys and staff "texted" themselves back to serving you, our clients, and your insureds. Or else, we did business the old fashioned way -- meeting face-to face in small groups. We give thanks that all WCM personnel got through Frankenstorm in good form, though many of us are still without heat or power in our homes and apartments. Our hearts go out to those who have suffered greatly, and we have resolved to help others in any way we can. But we wanted everyone to know that we are fully back in business in New York, New Jersey and Pennsylvania and nothing has slipped between the cracks. Your Friends at WCM Previous Next Contact

News First Department Reverses NY Supreme Ruling on &quot;Triable Issues of Fact&quot; May 20, 2010 < Back Share to: Under §7-210 of the Administrative Code of the City of New York, a property owner is responsible to maintain the sidewalk abutting their property and keeping it in a reasonably safe condition. Moreovoer, liability for an accident on a sidewalk abutting real property will arise if a plaintiff can establish that the owner of the abutting property either created or had prior notice of the allegedly dangerous condition. In Early v Hilton Hotels Corp., 2010 NY Slip Op 04235 (1st Dept. 2010) plaintiff was injured on the sidewalk abutting the owners' premises, when she tripped and fell due to a plastic strap. In granting summary judgment to the defendants, the Court notes that defendants established lack of actual notice via the testimony of an employee at their loading dock, who testified that he never saw any plastic straps anywhere on the ground on the date in question. Plaintiff testified that she had never seen any plastic straps on the ground either. Based primariliy upon these two depositions, the Court granted summary judgment in favor of defendants. Given the facts, the First Department's decision should not be surprising. What should be surprising, however, is that in order to reach this decision, a unanimous reversal of the New York County Supreme Court decision was required. Thanks to Brian Gibbons to his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04235.htm Previous Next Contact

News New York TLC Ordered to Make Taxis Wheelchair Accessible December 30, 2011 < Back Share to: Last week Judge George Daniels of the Southern District of New York found that the New York Taxi and Limousine Commission was in violation of the Americans with Disabilities Act because of its failure to have enough wheelchair accessible taxis. Specifically, the Court found it unacceptable that only 232 of the over 13,000 taxis operating in New York City were so equipped. As a remedy, Judge Daniels enjoined the TLC from issuing new medallions to any taxi or livery cab unless the vehicle is wheelchair accessible. This ruling nullifies a deal that the TLC had recently struck with the State, in which the City had agreed that 20% of the first 6,000 street-hail livery licenses sold next year would be for wheelchair-accessible vehicles. Under this new ruling, no non-wheelchair accessible taxis will be issued medallions until the City is able to develop a long-term plan to provide “meaningful access” to disabled riders. http://www.insurancejournal.com/news/east/2011/12/27/228773.htm http://articles.nydailynews.com/2011-12-23/news/30552861_1_assemblyman-micah-kellner-wheelchair-accessible-cabs-wheelchair-accessible-vehicles Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Sidewalk Liability for Snow and Ice Continues to Evolve in NJ. May 29, 2012 < Back Share to: In the case of Gray v. Caldwell Wood Products, et al., New Jersey’s Appellate Division was faced with the question of whether a commercial owner of a vacant property has an obligation to remove snow and ice from the sidewalk. The trial court, relying on precedent, had ruled in the negative and dismissed the claim. The Appellate Division has now reinstated the claims. In reaching its decision, the Court focused on the fact that the property was not vacant land (with nothing on it), but rather a commercial property that simply lacked tenants (because it was for sale) when the accident occurred. Based on this fact, the Court was blunt – the property “had the capacity to generate income and, had, in fact, generated income in the recent past”. Thus, the Court reasoned it was proper to make the lot’s owners responsible for sidewalk accidents. In other words, if you make, can make, or have made money from your land in the past, you are responsible for the sidewalk. Harsh words for commercial property owners in New Jersey. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News N.J. Court Requires Higher Standard of Care for Fire Safety System Inspections. July 6, 2012 < Back Share to: In Wayne and Irene Davis v. Brickman Landscaping, Ltd., et. al., the N.J. Appellate Division discussed the standard of care applicable to fire-safety system inspection professionals. Here, plaintiffs (mother, daughter and son) were staying at a hotel in a second-floor suite from which their only means of ingress and egress was a staircase with a storage closet underneath it. The storage closet did not have any fire sprinklers installed. A lit cigarette was thrown onto landscaping mulch located next to the building. Thereafter, a fire ignited, spread to the storage closet and up the staircase to the second floor where both children died. The plaintiffs filed suit against the companies that inspected the sprinkler and fire alarm system. The Trial Court noted that New Jersey adopted the National Fire Protection Association’ (“NFPA”) regulations in determining the responsibilities of fire-safety inspection professionals. While the original version of the NFPA required installation of sprinklers throughout a residential building, subsequent versions only required inspectors to conduct visual examinations for normal wear and tear with no obligation to find installation flaws. Testimony revealed that the defendants (3 separate inspection companies) had periodically inspected the fire safety systems, but all failed to note that the storage closet was void of sprinklers. Plaintiffs’ expert opined that the NFPA was the minimum standard of care for sprinkler system inspections, and that inspectors have a higher standard (reasonable care). Defendants argued that there was no evidence that they violated the NFPA and plaintiffs’ expert’s testimony that a “reasonable care standard” applied was simply an unsupported “net opinion”. The Trial Court entered summary judgment in favor of the defendants finding that they complied with the NFPA which was dispositive on the issue of negligence. Plaintiffs appealed the Trial Court’s decision arguing that simple compliance with NFPA is in fact not dispositive on the issue of negligence. The Appellate Division agreed with the plaintiffs finding that the N.J. Supreme Court has announced many times that compliance with a safety regulation is not always dispositive on the issue of negligence. The risk posed by a certain trade or industry by dangerous hazards requires use of the “reasonable care” standard. The Court noted that the appropriate standard is what a reasonable member of that particular industry or community would have done. Compliance with a regulation does not prevent a finding of negligence if a reasonable person would have taken additional precautions. The Appellate Division therefore reversed the trial court and remanded the case finding a genuine issue of material fact as to whether defendants exercised reasonable care despite their compliance with the NFPA. Special thanks to Andrew Marra for his contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Plaintiff’s Now Occasionally Entitled To Recording IMEs In NJ May 13, 2022 < Back Share to: Recently, the Appellate Division dealt with three separate cases consolidated into one appeal on the issue of when a plaintiff’s attorney may have a third-party attend a plaintiff’s medical exam with a defense doctor, as well as whether it is permissible for a plaintiff’s attorney to audio and/or video record his client’s exam with a defense doctor. Difiore et. al. v. Pezic, et al. dealt with three plaintiffs against their respective defendants. The defendants scheduled neuropsychological and orthopedic evaluations of the three plaintiffs. Counsel for those plaintiffs insisted upon the presence of a third-party practitioner at the medical exam, as well as insisting that the exams be audio and/or video recorded. The law on this subject dating back roughly 20 years is that the plaintiff may be entitled to “unobstructive” audio recording of a psychiatric exam if the plaintiff is claiming emotional distress. In addition, case law allows a minor child to be accompanied by parents or other relatives during the child’s medical exam. Normally, trial judges in this state generally prohibit any recordings or the presence of third-parties at routine orthopedic exams. In a departure from this precedent, the Appellate Division vaguely held, in a published decision, that any disagreement over whether to permit third-party observation of any defense medical exam (including orthopedic exams of fully grown adults), are to be evaluated by trial judges on a case-by-case basis. Moreover, it is the plaintiff’s burden to show the court that third-party presence or recording, or both, is appropriate in a particular case. Video recordings are also now allowed, and any video taken will be allowed to be shown at trial. Third-party observers, however, are not allowed to interact with the plaintiff or otherwise interfere with the exam. However, the Court emphasized that the presence of a third party or recording the exam required “special conditions”. Perhaps the most egregious part of this decision is that it only applies to defense medical exams. Plaintiff attorneys have been and remain allowed to schedule medical exams of their clients without any notice to the defense, thus providing the defense no chance to audio record, video record or have a third-party attend the plaintiff’s exam scheduled by his attorneys. Moreover, the court expressly held that if the plaintiff’s expert is his treating physician, then there is a blanket prohibition on any of the above. Rules for me, but not for thee. We expect many contentious motions and appeals on this issue in the future. Thanks to Mike Noblett for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Insurer Mailing Error Discloses Thousands of Social Security Numbers, Prompting Settlement with AG (NY) March 8, 2018 < Back Share to: The New York Attorney General recently announced a $575,000 settlement with EmblemHealth, one of the largest health plans in the United States, after a “mailing error” resulted in the accidental disclosure of more than 80,000 social security numbers. In October of 2016, EmblemHealth mailed over 80,000 policyholders, including approximately 55,000 New York residents, paper copies of their Medicare Prescription Drug Plan Evidence of Coverage. The mailing label affixed to each envelope included the policyholder’s Health Insurance Claim Number, which incorporated their social security number. According to the Attorney General’s Office, EmblemHealth’s actions violated many standards and procedures required by HIPAA. It also violated New York’s General Business Law § 399-ddd(2)(e), which prohibits printing an individual’s social security number “on a postcard or other mailer not requiring an envelope, or visible on the envelope or without the envelope having been opened.” As part of the negotiated settlement with the Attorney General’s office, EmblemHealth agreed to implement a Corrective Action Plan that included a thorough risk analysis of security risks associated with the mailing of policy documents, and submit a report of its findings to the Attorney General’s office within 180 days of the settlement. It also agreed to review and revise its policies and procedures based on the results of the assessment, and notify the Attorney General’s office of any action it takes. In addition, EmblemHealth pledged to make reasonable efforts to ensure that all relevant employees are adequately trained to avoid similar disclosures in future mailings, to report any known violations of EmblemHealth policies and procedures relating to the HIPAA Minimum Necessary Standard, and remediate all violations as soon as practicable. Lastly, for the next three years, EmblemHealth must report the loss or compromise of New York residents’ information to the Attorney General’s office, even in situations that would not otherwise trigger New York State reporting requirements. So, while this breach only costs EmblemHealth $575,000 to the AG's office, it will cost significantly more in terms of future compliance time and expense. EmblemHealth’s decision to settle, the amount of the settlement, and its agreement to be scrutinized by the Attorney General all speak volumes about the publicity risks associated with these kinds of privacy violations. First, the same subsection of the General Business Law discussed above limits judicial fines for violations arising from a single occurrence to $100,000 for the first offense. Fines for the second offense are also limited to $250,000. Second, the General Business Law provides would-be violators with an out: the provisions will not be “deemed . . . violated” if the entity demonstrates, by a preponderance of the evidence, that the violation was unintentional “and resulted from a bona fide error made notwithstanding . . . procedures reasonably adopted to avoid such error.” It is unclear whether any of the individual policyholders will be able to maintain direct actions against EmblemHealth, provided they can correlate damages to the breach. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Insurers Battle in DJ Action Stemming from Assault at NFL Game (CA) December 15, 2016 < Back Share to: We don't often report on California cases, but First Mercury Insurance Company v Great Divide Insurance Company presents an interesting insurance coverage dispute over defense costs and indemnity pertaining to a serious assault at a 49ers game. Specifically, the insurers are battling over the cost of defending the San Francisco 49ers against a suit brought by two men who were assaulted at a game, with First Mercury contending that Great Divide has flouted the California court’s previous duty to defend finding. In October 2014, San Francisco 49ers season-ticket holders Amish and Kiran Patel were at Levi’s Stadium for a game. The brothers went to the restroom, where one of them “nudged” the shoulder of the gentleman ahead of him to alert him to an available urinal, which resulted in the Patels being on the receiving end of a savage beating from the man and his friends. The Patels sued the team, the stadium, and the stadium security company, Elite, for negligently failing to screen people entering the stadium and failing to kick out people who were problematically drunk. The 49ers soon requested defense and indemnity from First Mercury, Elite's insurer, citing its status as an additional insured pursuant to the Elite service agreement. First Mercury accepted the request; however, it now seeks to share the costs with Great Divide, which insures the 49ers and Levi’s Stadium. First Mercury commenced a declaratory judgment action, and Great Divide filed a motion to dismiss. The U.S. District Court for the Northern District of California, San Jose Division denied Great Divide’s motion to dismiss, ruling that the underlying case over the assault might shift at least some liability away from First Mercury’s client, Elite Services, which handles security at the stadium, to the stadium and team, suggesting Great Divide should have to assist in the defense. This week, both insurers moved for summary judgment. First Mercury contends that Great Divide has continued to shirk its obligation to share in the cost of defending the brothers’ lawsuit, despite the District Court’s finding that the team and stadium might be held partially responsible for the incident, and that such a refusal to defend is bad faith. On the other hand, in its own motion for summary judgment, Great Divide pointed out that the District Court’s order denying dismissal was an interlocutory order, not a final judgment, thus First Mercury’s claim that it’s acting in bad faith must fail. At a glance, we presume the 49ers' primary argument against Elite's insurer is: "If Elite's responsibility as stadium security doesn't cover this type of assault, then what does it cover?" Alas, it appears that the 49ers uncertain "defense strategy" extends both on the field and off. (They are 1-12 on the season, fresh off a loss to the much maligned Jets.) Thanks to Hillary Ladov for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact