News Defending the Labor Law 200 Claim November 5, 2008 < Back Share to: New York's Labor Law section 200 is a statutory restatement of an owner's common law duty to provide workers with a safe place to work. In Ortega v. Puccia, an appellate court explains that there are two avenues to liability (and thus two avenues of defense) when it comes to a section 200 claim. One category of case is where the worker is injured as a result of "dangerous or defective premises conditions" at the site. A second category of case is where the injury occurs as a result of "the manner in which the work is performed." In the Ortega case, the owner hired a contractor to do sheetrock work at his home. The contractor employed the plaintiff and provided the plaintiff with a scaffold. The plaintiff fell from the scaffold because the wheels did not lock and the scaffold moved. The court granted summary judgment to the owner because "the accident did not involve any dangerous or defective condition on the defendants' premises. The accident instead involved the manner in which the plaintiff performed the work, which was not supervised by the [owner], and which was performed on equipment provided by the plaintiff's employer, not by the [owner]." As a practical matter, owners who might wiggle out of a section 200 claim are usually still stuck with liability under the broader sweep of Labor Law sections 240 and/or 241. In this case, however, the owner escaped section 240 and 241 liability based upon the exclusion in those statutes applicable to owners of one- and two-family homes who do not direct or control the work. Thus, in this case, the section 200 claim became the plaintiff's last hope and the court's analysis is helpful to defendants in mapping out a successful defense to such claims. Previous Next Contact

News Philadelphia Jury Awards Man $2,729 in Past Medical Costs for Fractured Ankle December 2, 2016 < Back Share to: A “trial loss” is not always as bad as it sounds. In murray-v-tripoldi, a Philadelphia jury awarded the plaintiff, who fractured his ankle after slipping and falling on an icy residential sidewalk, just $2,729 in past medical expenses. In February of 2014, the plaintiff slipped and fell on ice accumulation on the defendants’ sidewalk, resulting in a fractured ankle. The plaintiff claimed the ice presence resulted from a snowstorm that occurred days earlier. The defendants argued that plaintiff assumed the risk of traversing the ice-laden sidewalk, as neighbors had shoveled their sidewalks and there were safer alternative routes the plaintiff could have taken. Defendants also argued that the accumulation was an open and obvious condition for which the defendants could not be held liable. The defendants successfully argued these defenses at court-mandated arbitration, which resulted in a no-cause award. The plaintiffs appealed the arbitration award and the case proceeded to trial. At trial, the plaintiff sought to recover $2,729 in past medical costs to treat the fracture and for physical therapy, plus damages for pain and suffering – especially for pain experienced while dancing. At trial, defendants relied only on their liability defenses and did not challenge the plaintiff’s injuries or medical treatment. The case went to verdict, and the typically plaintiff-friendly Philadelphia jury only awarded the plaintiff the exact amount of his medical expenses. Though an assumption of risk defense and open and obvious defense are intended to shield defendants from liability altogether, in this instance, it appears that these defenses influenced the jury to cap the plaintiff’s damages at their literal amount. This case demonstrates that taking a case to verdict can yield high rewards for defendants when there are low, undisputed damages, coupled with strong liability defenses that highlight common sense. Thanks to Rachel Freedman for her contribution to this post. Previous Next Contact

News Release From Insured Does Not Bar Claims By Co-insurer (NJ) September 19, 2013 < Back Share to: We previously posted about Potomac Ins. Co. of Illinois v. Pennsylvania Manufacturers Assoc. Ins., where the Appellate Division found that an insurer can pursue another carrier of a common insured for contribution to defense costs despite settlement by one insurer of the insured’s claim. Now, the New Jersey Supreme Court has upheld the decision allowing a claim of contribution as between two insurers sharing in the defense costs of a common insured. The underlying case involves a claim by the Evesham Board of Education against its general contractor, Aristone, for allegedly defective construction in the building of the school. Because the loss spanned a number of years, Aristone was insured by multiple carriers. One of those carriers, Pennsylvania Manufacturers Association (PMA) disclaimed coverage, leading to a separate declaratory judgment action between Aristone and PMA. PMA settled with Aristone for what it considered to be its share of defense costs and indemnity, in exchange for a release from its insured. The settlement of the DJ prompted a settlement of the underlying case with the Board of Education. But the carriers that had provided a defense, including One Beacon, looked to PMA to contribute to the defense costs. Taking the position that the settlement agreement with the insured shielded it from any claims of contribution for defense costs from any of the other insurers, PMA refused to pay, resulting in this litigation. In upholding the Appellate Division’s ruling awarding a share of defense costs to OneBeacon by PMA, the Supreme Court determined the terms of PMA’s settlement with the insured did not consider or extinguish OneBeacon’s right to assert a claim for contribution. Of note was the fact that One Beacon was not a party to the PMA settlement agreement with the insured, and the language of the agreement did not address One Beacon's contribution rights. In a case of first impression for the Supreme Court, the Court highlighted several public policy issues: the value in conservation of financial resources and efficient dispute resolution, as well as the incentive for carriers to actively participate in litigation involving an insured. It seemed apparent that the Court would have preferred that the insurers handled this matter globally rather than with parallel litigation. Thanks to Emily Kidder for her contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

News "Serious Injury" Threshold Addressed January 28, 2009 < Back Share to: In order to maintain an action arising from an automobile accident, a New York plaintiff must prove that he has suffered a "serious injury" as defined in the State Insurance Law. Failure to meet this burden results in dismissal of plaintiff's case. In Delfino v. Luzon, plaintiff claimed to have suffered a "serious injury" to his left shoulder and lumbar spine. The defendant moved for summary judgment and submitted an affirmation from a radiologist who reviewed MRI films (and not just the reports) of the plaintiff’s shoulder and lumbar spine, and found normal structures with only degenerative defects. The defendant also submitted an affirmation from an orthopedist, who conducted a physical examination of plaintiff and found full range of motion. The orthopedist further concluded that plaintiff’s operation on his left shoulder, which occurred shortly after the accident, was performed in order to correct a congenital condition. In opposition, plaintiff submitted an affirmation from a non-treating physiatrist who listed specific numeric losses of range of motion, but failed to describe what tests were used or any objective basis to substantiate his assessments. The Court found the plaintiff’s affirmation lacked objective findings and failed to address the findings of defendant’s experts that plaintiff’s conditions were congenital. The Appellate Division ultimately reversed the lower court’s decision denying defendant’s motion for summary judgment and dismissed the complaint. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00317.htm Previous Next Contact

News School Cannot Control Student's Every Movement (NY) May 15, 2013 < Back Share to: Although a school acts in loco parentis, it - like parents - cannot protect every child against every injury. In Donnelly v. St. Agnes Cathedral School , the parents of an eleven year old student brought an action against his school alleging premises liability and negligent supervision after a fire door closed on his fingertips. The undisputed facts of the case showed that the plaintiff had approached the door walking forward but turned around when he heard someone call him. He extended his hand to hold the door open. Unfortunately, his fingers were pinched within the hinged side of the door and the doorjamb when the door closed. Based upon these facts the Second Department reversed the lower court's denial of summary judgment. Although the plaintiff alleged that the school failed to regularly inspect the door, this was disproven by the school citing a State mandated fire safety inspection one month prior. Additionally, the plaintiff's engineer provided only a conclusory and speculative opinion that the door closed too quickly. Finally, there was no factual basis for a finding that the school had either actual or constructive notice of any defect with the door. The Court also summarily dismissed the negligent supervision claim recognizing that the school could not reasonably be expected to continuously supervise and control all of the student's movements and activities. A school can only be expected to provide supervision to guard against foreseeable injuries. In the instant matter, the plaintiff failed to raise a triable issue of fact as to the foreseeability of the plaintiff's injury. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .       Previous Next Contact

News NY Dealer Pleads Guilty In Fake Art Scheme September 20, 2013 < Back Share to: We previously posted about the indictment of Glafira Rosales, the art dealer indicted by the US Attorney's office in New York for her participation in an expansive scheme to sell fake art works to galleries, including the Knoedler Gallery. Rosales has now plead guilty to a number of significant felonies, including conspiracy to sell the fake art, money laundering, and tax crimes. Rosales claimed that she obtained the art -- purported to be painted by Modernist masters such as Pollack and Rothko -- from two anonymous collectors from Switzerland and Spain. Instead, all of the fake works were produced by a single painter who worked out of his garage in Woodhaven, Queens. The paintings were then treated so that they would have the false patina of age. According to the US Attorney's office, Rosales was paid approximately $33.2 million for the fake art. She agreed to forfeit that amount as part of her guilty plea, but it remains to be seen how much of that amount is actually recoverable. We were interested to see how the US Attorney's office was going to prove that the works were indeed fake, but that point is now moot. Indeed, during her plea Rosales admitted that the paintings were "fakes created by an individual in Queens." No doubt her statement will be used by the plaintiffs in the civil lawsuits filed against Rosales and the galleries, and the question of interest to now follow is whether the galleries are found liable. Please write to Mike Bono if you would like further information. Previous Next Contact

News NJ App. Div. Affirms No Cause Verdict In Favor Of WCM In Insurance Broker E&O Case. March 15, 2010 < Back Share to: In Credit Suisse First Boston v. Lehman, et al, the plaintiff's had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims. After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, " little question" that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse's decision to settle the underlying claims without suing the insurance carrier " highly questionable". The latter point had been the basis of WCM's lack of proximate cause argument to the jury. If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office. http://www.judiciary.state.nj.us/opinions/a2031-08.pdf Previous Next Contact

News Guidance Provided for Choice of Law Analysis for Coverage Disputes in NJ September 20, 2012 < Back Share to: The outcome of a conflict of laws analysis is often difficult to predict. But a recent Appellate Division decision may provide some guidance as to how allocation of coverage issues are decided in New Jersey where there is a conflict of laws. In the consolidated appeals of In The Matter Of The Liquidation Of Integrity Insurance Company/Sepco Corporation and In The Matter Of The Liquidation Of Integrity Insurance Company/Mine Safety Appliances Company, the Appellate Division was faced with the issue of which state’s laws should apply when apportioning insurance coverage in the mass tort context. Both Sepco Corporation, a California-based company, and Mine Safety Appliances Company, based in Pennsylvania, were insured under excess policies with Integrity, a New Jersey insurance company, in the mid-1980s. After Integrity’s Liquidator filed its liquidation plan, both Sepco and Mine Safety filed proofs of claim with the Liquidator for coverage under the policies. The Liquidator denied the claims based on the utilization of an “all-sums” (joint and several) allocation methodology. Under that methodology, “the insured may recover in full under any triggered policy that it chooses and leave the selected insurer to pursue cross-claims against other triggered carriers whose policies are also available.” While both California and Pennsylvania utilize this approach, New Jersey has rejected the joint and several allocation method for a pro-rata allocation method. The denials were referred to a Special Master, who affirmed the Liquidator’s decisions in both matters, citing New Jersey’s compelling interest in having its own law applied to the claims because Integrity was being liquidated pursuant to New Jersey law, and because the pro-rata approach was more equitable as to other claims filed against Integrity than was the joint and several approach. The Special Master’s determinations were affirmed by the trial court. On review, the Appellate Division affirmed the trial court’s decision to apply New Jersey law. While refusing to state a blanket rule that the law of the insurer’s home state would govern the analysis, the Appellate Division found that the balance of the equities favored applying New Jersey law to the claims against Integrity, who was in its twenty-fifth year in the liquidation process, even though the policy language confusingly seemed at times to favor an “all-sums” approach. The best way to guard against uncertainty is to add a provision as to choice of law; otherwise, an unintended and unexpected interpretation of policy terms may result. Thanks to Christina Emerson for her contribution to this post. If you would like further information please write to mbono@wcmlaw.com .     Previous Next Contact

News Concurrent Clause Exclusion Basis For Insured’s Bad Faith Claim. May 24, 2013 < Back Share to: The Pennsylvania Middle District Court recently held that concurrent clause exclusion provisions in insurance policies are unenforceable under Pennsylvania law. In Donahue v. State Farm, the plaintiff purchased homeowner’s insurance through State Farm Fire & Casualty Company. The policy insured the plaintiff’s home and provided a variety of coverage for the plaintiff’s dwelling and personal property. Additionally, the policy included numerous exclusions. One exclusion was the “Water Damage” exclusion. Essentially this exclusion barred coverage for any loss resulting from water or sewage overflow or back-up. As the insured wanted coverage for such potential losses, a “Back-Up Of Sewer” endorsement was added to the policy. Subsequently, the plaintiff’s sewer backed-up and caused damage to the plaintiff’s property. The plaintiff made a claim for coverage. State Farm denied coverage claiming that the property damage was caused by flood waters, for which coverage was excluded under the policy. In response to the denial of coverage, the plaintiff instituted a bad faith action against State Farm. State Farm filed a motion to dismiss. Ultimately, the Court concluded that the plaintiff had adequately pled a bad faith cause of action. In reaching its determination, the Court noted that State Farm had based its denial of coverage on concurrent causes. The Court stated, under Pennsylvania law, “concurrent clause exclusion provisions are unenforceable in the presence of an affirmative grant of coverage.” Thus, the plaintiff was able to proceed with his bad faith claim against State Farm. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News It’s Not Your Fault (PA) February 22, 2019 < Back Share to: In Precision Underground Pipe Servs. v. Penn Nat’l Mut. Cas., Verizon entered into a contract with Parkside to install an underground conduit for Verizon’s fiber optic cable in Villanova, Pa. Under this agreement, Parkside was required to name Verizon as an additional insured and to indemnify Verizon. Parkside subsequently contracted with Precision to provide additional labor. Under this agreement, Precision was required indemnify Parkside and Verizon and name them as additional insureds on their Penn National policy. The Penn National policy included an “Automatic Additional Insureds-Owners, Contractors, and Subcontractors" endorsement, which stated the following would constitute an additional insured under the policy: “[a]ny person(s) or organization (s) . . . with whom you are required in a written contract or agreement to name as an additional insured, . . . caused, in whole or in part, by: (1) your acts or omissions; or (2) the acts or omissions of those acting on your behalf in the performance of your ongoing operations”. An employee of Precision suffered injury while working at the work-site and filed a complaint against Verizon and Parkside. Penn National refused to provide a defense and indemnity to Verizon and Parkside. In determining whether Verizon and Parkside were entitled to defense and indemnity, the court looked to the underlying complaint. The court reasoned the complaint lacked any indication that Precision committed any act or omission that lead to the plaintiff’s injury. Specifically, the plaintiff’s complaint alleged wrongdoing on the part of Verizon and Parkside but did attribute fault Precision. Therefore, the court concluded no additional insured coverage was provided under the policy because there were no allegations that the plaintiff’s injuries were caused by Precision. Thus, this opinion emphasizes the importance of scrutinizing the underlying complaint’s language when dealing with duty-to-defend matters. Thanks to Rachel Thompson for her contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News How Timely Is Timely in Removal to Federal Court? (PA) June 12, 2013 < Back Share to: Judge Ludwig of the USDC, EDPA, was recently faced with the question of when removal from state court to federal court is proper. In the case of Alston v. Wal-Mart, Alston commenced a slip and fall lawsuit in the PA Court of Common Pleas, Philadelphia County, a venue that is consistently rated as one of the worst defense venues in the country. The case was originally filed as an arbitration court case and in its affirmative defenses Walmart alleged that plaintiff could not seek damages in excess of $50,000 (the arbitration court’s jurisdictional limit) or $75,000 (the minimum amount required to remove the case to federal court on diversity grounds). As the case progressed, it quickly became apparent that plaintiff’s demand exceeded $75,000. Wal-Mart thereafter removed the case to federal court. Plaintiff’s counsel objected and argued that the removal was untimely as it took place more than thirty days after service of the complaint. Wal-Mart argued that the removal was, in fact, timely because it was not until the plaintiff made it clear that the demand exceeded $75,000 that Wal-Mart was aware of its right to remove the case. Judge Ludwig sided with Wal-Mart. He held that the removal was timely as it was not until the value of the demand was made clear that Wal-Mart was on notice of its to remove the case. So what’s the takeaway from all of this? We suggest that if you have a case in state court which you would otherwise seek to remove to federal court but in which the value of the case does not seem to exceed $75,000, you ask the plaintiff to stipulate to a $75,000 award cap. If the plaintiff refuses, you probably then have the right to remove the case to federal court. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News PA Court Holds COVID-19 Excluded From “Property Damage” Coverage Under All-Risk Property Insurance Policy January 14, 2022 < Back Share to: In a recent case from the Eastern District of PA, Maggios Famous Pizza, Inc. v. Selective Ins. Co. of the Sw., the court granted the defendant’s summary judgment against the plaintiff who sought coverage under an all-risk property policy. Finding that COVID-19 related loss of business did not qualify as actual damage to the property required by the policy. The plaintiff in the case owned a large pizza and dining restaurant. The Pennsylvania Governor instituted a stay at home order in response to the COVID-19 pandemic. The large establishment was limited to takeout and delivery. Prior to the pandemic, the plaintiffs purchased property insurance from an insurance company in 2019. The plaintiff subsequently submitted a claim for “losses caused by the COVID-19,” which was denied by the defendant insurance company. The court found in favor of the insurer finding that the Insurance policy does not cover the losses caused by COVID-19. After reviewing the policy as written, the court reasoned this outcome based on three different theories. First, the insurance policy does not cover pure economic loss. The plaintiff’s policy covers direct physical loss to the property, here although the plaintiffs were limited in conducting business the property did not suffer damage. Second, the policy as written requires physical loss, not a loss of certain uses. The plaintiff’s claimed that when they were forced to serve only takeout, they lost used of the physical property. Again, the policy only is activated for physical damage to the property. Lastly, the insurance policy expressly excludes coverage for all losses caused by virus. The insurance policy is an “all-risk “policy, meaning it pays for all sources of damage except sources that are specifically excluded. Although not the insurance company’s intention, COVID-19 is a virus and consequentially falls under the exclusion. The insurer’s policy language dictates this outcome even if it is an all-risk policy. The exclusion was properly interpreted by the Court and denied the Covid-19 “property” claims. Thanks to Kevin Riley for his contribution to this article. Should you wish to discuss Covid-19 insurance claims, feel free to contact Thomas Bracken. Previous Next Contact