News PA Superior Court addresses effectiveness of recreational liability waiver. September 21, 2007 < Back Share to: Court in Wang v. Whitehall upholds release because of plaintiff's particularized statement of intent to release resort from liability resulting from risks inherent to snow-boarding. Decision from PA Supreme Court on this very issue is expected this fall. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News Warm Wishes From Our WCM Family To Yours December 23, 2016 < Back Share to: As 2016 draws to a close, WCM would like to wish you and yours a very happy holiday season and a healthy and joyful New Year!       Previous Next Contact

News Three Strikes and You’re Out on Coverage: COVID-19 Business Interruption Claim Fails (PA) December 18, 2020 < Back Share to: Of course, COVID-19 and accompanying shutdown orders impact on business interruption claims are still among the most pressing issues facing the courts. In Toppers Salon & Health Spa Inc v Travelers Property Casualty Company of America, the Eastern District of Pennsylvania has provided one of the most definitive answers on the issue with its rejection of an insured’s business interruption claim. Plaintiff Toppers operates a chain of day spas in Pennsylvania, New Jersey, and Delaware, all of which have been affected by government mandated shutdown orders. Toppers’ insurance policy covers interruption to its business which includes business income coverage and civil authority coverage. The key provision in the policy here is that it covers loss “due to the necessary suspension of your ‘operations’ during the ‘period of restoration,’” if the suspension was “caused by direct physical loss of or damage to property at [the insured's] premises.” “The ‘Civil Authority’ provision covers loss of Business Income and extra expenses incurred due to damage to property other than property at the insured's premises, when as a result of ‘dangerous physical conditions,’ a civil authority's actions prohibit access to both the insured's premises and the area immediately surrounding the damaged property.” The Court held that neither of these provisions applied in this case deciding that being forced to close as a result of the shutdown orders was not a “physical loss.” The language the Court primarily focused on was the period for which the policy would reimburse a loss. The policy provided that this period ended on the “date when the property at the described premises should be repaired, rebuilt or replaced.” The Court opined that for this language to make sense, a physical loss must have occurred to be repaired, and the shutdown order did not meet this definition. The Court believed the policy language demonstrated the intent of the parties that any loss must be some sort of physical damage. The Civil Authority coverage did not apply because, similarly, a physical loss had not occurred to neighboring property. The Court also looked at the specific Virus Exclusion holding Plaintiff would also lose its claim for coverage because of its plain language as well. The Virus Exclusion applies to “loss or damage caused by or resulting from any virus ... that induces or is capable of inducing physical distress, illness or disease.” The Court held that, “The language is not ambiguous, and it applies to Covid-19, which is caused by a coronavirus that causes physical illness and distress.” The Court held that similar language was held to exclude coverage in South Dakota and California. This opinion is one of the strongest yet to deny coverage for businesses forced to close due to government shutdown orders during the COVID-19 pandemic. A clear Virus Exclusion is one way for insurance companies to be sure that they will not be required to cover for these types of losses, but this Court went further, holding that COVID-19 is not a physical loss that could be covered by a business interruption or civil authority coverage. While courts will still wrestle for the time being as to how exactly COVID-19 and insurance overlap, this Court strongly casted its vote in favor of the lack of coverage camp. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Graves Amendment Immunity Denied To Auto Company If Liability Not Completely Based On Ownership (PA) March 10, 2023 < Back Share to: In the recent case of Burns v. Shama Express LLC, The United States District Court for the Western District of Pennsylvania found the Graves Amendment to the Safe, Accountable Flexible and Efficient Transportation Equity Action of 2004 is inapplicable when the liability attempting to be placed on an automobile company is grounded, even in part, in any basis other than ownership. Burns involves an automobile-trucking collision resulting in death of Plaintiff for negligence and negligent infliction of emotional distress, under Pennsylvania’s Wrongful Death and Survival Acts. Bowman owned the subject-truck that allegedly caused the accident. Plaintiff alleged, in part, that Bowman through its “employees, servants, or agents,” breached its duty, as the owner and operator of the subject-truck, “to be alert and maintain control of the vehicle,” and that Bowman negligently trained its truck operators. Bowman filed a Motion to Dismiss arguing that its only involvement in the underlying events was that it leased the subject-truck, months before the incident took place, and was therefore immune from vicarious liability under the Graves Amendment. The Graves Amendment provides: (a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if— (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C. § 30106. The magistrate determined that “[b]ecause plaintiff had sufficiently alleged, at this initial stage, that Bowman was negligent, the Graves Amendment cannot serve as a basis for immunity.” The court ultimately adopted the magistrate’s Report and Recommendation and dismissed the Motion to Dismiss. Burns is a cautionary tale for defendants engaged in the trade or business of renting or leasing motor vehicles. It makes clear that Graves Amendment immunity from liability is only applicable to liability grounded exclusively in ownership; on the other hand, vehicle owners who themselves, or through agents, engage in negligence, are not protected by the Amendment. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News When is a House your Home? This Answer Will Cost Insurers in Pennsylvania October 23, 2020 < Back Share to: In Erie Ins. Exch. v. Montesano, the Montgomery County Court of Common Pleas heard an issue of first impression in deciding who was covered under “physically living” with another “on a regular basis” language in an auto insurance policy. Christiana Montesano was a 19-year-old girl who lived in her father’s Boyertown, Pennsylvania home. Her father and mother divorced when she was young and Christiana would typically spend approximately five weeks out of the year with her mother in Florida. After an incident between her and father/stepmother, Christiana boarded a flight to Florida and moved in with her mother for about one month. During that time, she changed her voter registration to Florida. Christiana the again packed up and settled in with her grandparents in Alabama for two months. Again, Christiana changed her driver’s license and voter registration to Alabama while also starting a seasonal job. The family then all agreed Christiana was to come back to Boyertown, her father’s residence. However, before Christiana could return to Boyertown, she was involved in a motor vehicle accident as a passenger with her sister driving. Christiana was injured and Christiana’s mother was killed. The Montesanos sought coverage under the auto insurance policy issued to Christiana’s father, Anthony and stepmother, Donna. The case of first impression required the Court to determine what “physically living” with another “on a regular basis” meant. Judge Thomas Rogers issued a declaratory judgement that the Erie Policy issued to Christiana’s father covered her, specifically holding “Christiana had physically lived in the Boyertown home for 19 years before hastily departing with a carryon bag and a few clothes, shoes, and toiletries and leaving behind all her worldly possessions.” Judge Rogers’ concluded that Christiana was a guest in the home of both her mother and grandparents and that her stays were sporadic and temporary. To add additional weight to this outcome, the Court considered the fact that, “Christiana was making her way from her grandmother’s home to her home in Boyertown at the time of the accident.” The impact of this case, of course, is that while an individual may not currently be “physically living” within the policyholder’s home at the time of loss, a court may look to numerous factors to determine what “on a regular basis” means, including a look at the totality of the facts. This decision certainly increases risk to auto insurance companies by increasing the amount of people that may be covered under the policy. More questions of fact will be litigated on coverage issues and it will also increase litigation costs. Who lives where is a question that appears to be changing daily. This decision will certainly involve judicial reviews over other factual scenarios such as the teen runaway, the college student, and even more prescient issues such as COVID-19 impact? This ruling’s application under the present climate opens the door for complicated factual analyses as to who “physically resides” where and what a “regular basis” is under the policy. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

Saara Arshid Associate New York sarshid@wcmlaw.com (332) 345-2176 Professional Experience Saara Arshid works as an Associate in WCM’s New York office, where she focuses her practice on civil defense litigation, including premises liability and general liability matters. Her experience in both criminal and civil defense has provided her with significant courtroom experience and a practical approach to litigation. Prior to joining WCM, Saara practiced insurance defense, representing clients in a variety of general liability matters. She began her legal career with The Legal Aid Society in New York City, where she represented clients charged with misdemeanors and felonies from arraignment through trial. Her practice included litigating suppression and discovery issues, conducting hearings and trials, and representing clients in matters involving a wide range of criminal charges. During law school, Saara was a member of the Defenders Clinic, where she worked on clemency and compassionate release matters, selected as a Public Interest Fellow by the South Asian Bar Association of New York, and interned with The Legal Aid Society’s Homicide Defense Task Force. Honors and Distinctions South Asian Bar Association of New York (SABANY) Public Interest Fellow (2022) CUNY School of Law Public Interest Grant Recipient (2021) Jewish Foundation for Education of Women (JFEW) Eleanor Roosevelt Scholar, Roosevelt House Public Policy Institute (2016 – 2018) News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., CUNY School of Law CUNY Hunter College B.A. in Political Science and Sociology Certificate in Public Policy Bar Admissions New York

News Call Your Next Witness - The 15 Commandments of Billing February 4, 2010 < Back Share to: What better topic to discuss during these hot Summer months than effective legal billing! Georgia and Brian recently compiled "The 5 Commandments of Billing," and with new associates starting at firms across the United States after Labor Day weekend, we opted to commit our 15 Commandments to the podcast. Link to the episode is here. The goal of this episode is to focus on the skill of billing -- and it is a skill -- in order to maximize the recovery on the work we do as attorneys. Much like insurance, legal billing is an area that law school ignores completely, but is essential for the majority of attorneys to master. If you'd like a pdf of the 15 Commandments of Billing, or are interested in being a guest on the podcast, please email Brian Gibbons or Georgia Coats Previous Next Contact

News Threshold" motions still difficult to win in Second Department (NY) February 21, 2013 < Back Share to: The dreaded "90/180 day rule" is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff's injury is not "serious" enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident. Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants' doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs' doctors. In Calcano v. Rodriguez, a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant's doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident. The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury. Special thanks Brian Gibbons for his contributions to this post. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News No More Happy Meals – Court Finds Affirmative Duty For Franchise Restaurant To Protect Invitees From Third-Party Harm September 2, 2022 < Back Share to: In a recent presidential opinion by the Pennsylvania Superior Court in Massaro v. McDonald's Corp., 2022 Pa. Super. Lexis 320, 2022 WL 3036753 (Aug. 2, 2022), the court provided clarity on the affirmative duty of a property owner to protect a business invitee from intentional harmful acts of a third party. In Massaro, plaintiff, Thomas Massaro (“Plaintiff”) was assaulted by an allegedly mentally ill homeless man while tutoring a student at a busy McDonald’s in Philadelphia, Pennsylvania. The third-party assailant, Bryant Gordon (“Assailant”) began making virulent and hateful statements towards Plaintiff for nearly an hour, ultimately threatening to kill him when he left the property. Numerous McDonald’s employees observed the interaction and when asked to call 911, refused. When Plaintiff left McDonald’s in search of police aid and was followed by Assailant, Plaintiff had a heart attack and nearly died. It is alleged that Assailant had a history of provoking customers at the property which McDonald’s was likewise alleged to have full knowledge of. Naturally, Plaintiff filed a complaint in the Philadelphia Court of Common Pleas raising claims of negligence against McDonald’s for failing to take reasonable steps to protect him from the Assailant. The trial court granted McDonald’s preliminary objections finding that McDonald’s had no duty through a public policy analysis because Plaintiff was aware of the danger and voluntarily remained in the premise, assuming the risk of assault, and that it would have been unreasonable for McDonald’s to have intervened. Being that assumption of the risk can only be raised once duty is established, Plaintiff appealed this conflicting ruling to the Pennsylvania Superior Court, who ultimately reversed. Essentially, the Superior Court held that McDonald’s affirmative duty to protect a business invitee from intentional harmful acts of third parties was clearly established, at the pleadings stage. Thus, the issue was whether he had assumed the risk of harm by remaining in McDonald’s subjecting himself to the increased likelihood of harm. Considering it would have been more dangerous for Plaintiff to leave McDonald’s, he did not willfully remain on the property warranting assumption of the risk. Importantly, the court held that it is unnecessary to conduct a full-blown public policy duty assessment whenever a longstanding duty imposed arises in a novel factual scenario. Here, the Court largely determined that McDonald’s, at a bare minimum, possessed a duty to call the police after witnessing the interaction and constant requests from the plaintiff to call the police. Massaro acts as a reminder to business owners that minimal intervention is sufficient to satisfy their well-established affirmative duty to protect business invitees from third-party tortfeasors, irrespective of novel circumstances. Thanks to Kendal Hutchings for her contribution to this article. Should you have questions, contact Matthew Care. Previous Next Contact

Maria E. Dalmanieras Partner Florida mdalmanieras@wcmlaw.com Professional Experience Maria is a Board Certified Trial attorney by the Florida Bar. Her practice focuses in the areas of personal injury and insurance defense litigation, including construction litigation, premises liability, auto liability, products liability, legal malpractice, wrongful death litigation, indemnification, subrogation claims, first party insurance claims, and medical malpractice. She has successfully obtained numerous defense verdicts for her clients during her almost twenty years of practice and is well respected within the legal community as a trial lawyer. Honors and Distinctions While in law school, Maria was the Community Outreach Chairperson for Miami Law Women, and she was an editor for the law school newspaper, Res Ipsa Loquitur. Professional Activities Maria is a member of the Florida Bar. Publications News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Miami School of Law B.A., College of Holy Cross Bar Admissions Florida Court Admissions Southern District of Florida United States Supreme Court

News Stylish Setback: Tory Burch's Coverage Denial Amid New Jersey's COVID-19 Shutdowns December 15, 2023 < Back Share to: Insurance coverage for commercial retail stores is an essential safeguard against potential risks and unforeseen circumstances. However, within these policies, exclusions can significantly impact the extent of coverage, especially when it comes to clauses pertaining to 'contamination.' In the case of Tory Burch, LLC v. Zurich American Insurance Company in the Superior Court of New Jersey, Appellate Division, Plaintiff Tory Burch sought to appeal an order granting defendant Zurich American Insurance Company’s motion to dismiss because coverage was not afforded under the policy. Tory Burch is an American women’s fashion brand with over 300 stores globally, with three located in New Jersey. Tory Burch purchased an all-risk insurance policy from Zurich for the policy period from December 31, 2019 to December 31, 2020, and renewed for the period from December 31, 2020 to December 31, 2021. The policy insures against “direct physical loss of or damage to” Tory Burch’s property. The policy also contains an exclusion barring coverage for “contamination”, meaning “the actual presence of any foreign substance… bacteria, virus, disease causing or illness causing agent…”, including the inability to use or occupy property. As we all know, in response to the global COVID-19 pandemic, Governor Phil Murphy of New Jersey declared a state of emergency and issued executive orders to suspend all non-essential business operations, including retail stores such as Tory Burch. As a result, Tory Burch was forced to close its business to the public from March to May 2020. Tory Burch alleges it suffered substantial losses of business and income due to the executive orders. Defendant Zurich denied Tory Burch’s claim, stating that there was no coverage for COVID-19 losses and that the contamination exclusion barred coverage. Tory Burch then sued Zurich in New Jersey’s Union Superior Court in March 2021 for breach of contract. In response, Zurich filed a motion to dismiss which was granted by the trial court. Tory Burch appealed, arguing that the executive orders constituted physical loss or damage to the business, and that the contamination exclusion did not bar coverage. Tory Burch argued that it was the executive order that closed the business, not COVID-19. As such, Tory Burch argued that the contamination exclusion should not apply. The Appellate Court rejected this argument and upheld the trial court’s order. The Appellate Court reasoned that the governor’s orders prevented Tory Burch from operating its business, but it did not “physically deprive the company from possessing it” so there was no direct or physical loss. The Appellate Court also found that the contamination exclusion applied because COVID-19 was the cause of the governor’s orders, and therefore coverage was barred. Plaintiff further argued that the Policies’ Contamination Exclusion violated the doctrine of regulatory estoppel, and the trial court should have barred defendant from invoking the Exclusion. The basis of Plaintiff’s argument was that the insurance industry misrepresented the scope of the Exclusion language as it sought approval of the Virus Exclusion from regulators by claiming the Exclusion would not result in a reduction of coverage. However, the appellate court affirmed the trial court’s findings that the doctrine of regulatory estoppel cannot serve to estop the exclusion based on what defendant represented to another sovereign. The appellate court held that the record was devoid of any evidence of a false statement or misrepresentation to a regulatory body regarding the scope of the virus exclusion and rejected Plaintiff’s argument. The holding in this case directly follows the reasoning of a previous New Jersey case, Mac Property Group LLC v. Selective Fire & Casualty Insurance Co. , 278 A.3d 272 (N.J. Super. Ct., App. Div. 2022). COVID-19 has impacted various commercial businesses. Case law is now emerging that provides some insight for how the courts will handle the pending insurance claims related to various aspects of COVID-19. Tory Burch LLC v. Zurich American Insurance Company .pdf Download PDF • 173KB Previous Next Contact

News PA Appeals Court Holds that Damages for Dragonetti Violations Must be Proven – Not Presumed July 6, 2016 < Back Share to: Pennsylvania statute 42 Pa.C.S.A. § 8351 provides for a cause of action, also known as a Dragonetti action, allowing the defendant in a lawsuit to file suit against a plaintiff for abuse of civil proceedings when litigation is filed frivolously. On June 24, 2016, the Pennsylvania Superior Court issued an opinion clarifying the issue of damages for a Dragonetti violation in Miller v. St. Luke's University Health Network. In Miller, the original lawsuit stemmed from the arrest and conviction of one of St. Luke’s nurses, Charles Cullen (“Cullen”), who admitted to killing patients while acting in his capacity as a nurse for St. Luke’s. The families of two patients that were allegedly killed by Cullen sued St. Luke’s for wrongful death. Ultimately, the two lawsuits were dismissed on summary judgment. Thereafter, St. Luke’s filed a Dragonetti action against the two families of the patients, alleging both abuse of process and civil conspiracy. St. Luke’s, however, voluntarily dismissed this Dragonetti action after two years of litigation. Following the voluntary dismissal of St. Luke’s Dragonetti action against the two families, the two families turned around and filed their own Dragonetti action against St. Luke’s, alleging that it did not have probable cause to file its Dragonetti action against the two families and that it was filed for an improper purpose. On July 1, 2014, a Lehigh County Court of Common Pleas jury found that St. Luke’s did not have probable cause to bring the Dragonetti action against the two patients’ families. The jury, however, while finding St. Luke’s violated 42 Pa.C.S.A. § 8351, did not award any damages to the two families. Both St. Luke’s and the families appealed, giving rise to the Pennsylvania Superior Court’s June 24, 2016 opinion. On appeal, the families argued that if a violation of 42 Pa.C.S.A. § 8351 is found, then damages should be presumed otherwise a finding of such a violation would amount to just a “paper judgment.” Conversely, St. Luke’s argued that 42 Pa.C.S.A. § 8351 requires a plaintiff to prove both liability and damages separately. Moreover, St. Luke’s argued that while § 8353 states that a plaintiff is entitled to damages, § 8354 places the burden on the plaintiff to prove that she actually suffered damages. Ultimately, the Pennsylvania Superior Court decided in favor of St. Luke’s, ruling that in a Dragonetti action, damages must be proven – not presumed. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact