Craig D. Dietel Associate New Jersey cdietel@wcmlaw.com (862) 294-3567 Professional Experience Craig is an Associate in WCM’s New Jersey office, where he focuses his practice on insurance coverage and construction litigation. Prior to joining WCM, Craig practiced at a small firm in New Brunswick, New Jersey, where he focused extensively on personal injury and Municipal Court matters. He also served as a law clerk to the Presiding Judge of the Essex County Family Part in Newark, New Jersey. His diverse litigation experience has helped him develop as a confident and effective litigator, providing a strong foundation for representing clients in complex matters and advocating for their interests. Professional Activities Middlesex County Bar Association, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Elisabeth Haub School of Law at Pace University, cum laude B.A. in Journalism and Professional Writing, The College of New Jersey Bar Admissions New Jersey

News NJ Supreme Court Rules No Independent Duty to Monitor Alcohol Consumption January 27, 2009 < Back Share to: Alcohol related injuries and fatalities present difficult cases that frequently turn on the fine factual determination of whether someone is " visibly intoxicated." In New Jersey, a licensed alcoholic beverage server is liable only if he serves a "visibly intoxicated" person and that service proximately causes an accident. What happens if the license holder does not actual serve the alcohol but rather arranges for a beer truck to be available for patrons to self serve their own alcohol? Can the server be found negligent for failure to properly monitor the alchohol consumption of its guests even in the absence of a finding that it served or "allowed to be served" a visibly intoxicated person? In Mazzacano v. Happy Hour Social and Athletic Club of Maple Shade, the New Jersey Supreme Court held that the self service of alcohol by patrons is tantamount to service by the Club. Thus, the Club would be potentially liable if a patron serves himself from the beer truck while visibly intoxciated. It is not required that an employee of the Club put the drink directly in the hand of the drunk. Rather the Club is liable if it either serves or "allows" a visibly intoxicated person to be served. In Mazzano, the Club "allows" a patron to be served by making alcohol available from a self service beer truck. Further, and more to the point in Mazzacano, there is no separate and independent duty to monitor the alcohol consumption of the patrons. If the Club did not serve or allow to be served a visibly intoxicated person, there can be no liability. The plaintiff cannot avoid this requirement by arguing that the Club was negligent because it failed to properly monitor the alcohol consumption of its guests. Thus the Club cannot be liable because the jury concluded that the drunk did not appear "visibly intoxicated" when he served himself from the beer truck. Bottom line: licensed servers are strictly held to the requirements of New Jersey's Dram Shop Act but the courts should be reluctant to impose additional requirements. http://lawlibrary.rutgers.edu/courts/supreme/a-102-07.opn.html Previous Next Contact

News Additional Insurance Claim Torched Based on Lack of Indemnity Agreement (NY) January 8, 2016 < Back Share to: In American Ins. Co. v Schnall, the Appellate Division, First Department recently dealt with the issue of whether blanket additional insured coverage could be triggered simply by an agreement between the parties to procure such coverage - without an indemnity agreement between the parties. Brooklynbaca, LLC, doing business as The Brooklyn Star operated a bar and restaurant in the Brooklyn neighborhood of Williamsburg. In order to better serve its (hipster) patrons, Brooklynbaca contracted with Scientific Fire Prevention Company to install a cooking exhaust duct in the restaurant. The service agreement contained an insurance procurement provision in favor of Scientific but Brooklynbaca did not assume Scientific’s tort liability. A fire erupted in the restaurant’s kitchen damaging the building owner’s property. American Insurance Company insured Brooklynbaca under a liability policy. Scientific sought coverage under the American policy’s additional insured endorsement which provided coverage to organizations that Brooklynbaca was “required by a written insured contract to include as an insured.” The parties became embroiled in litigation and Scientific sought a declaration that it was entitled to additional insured coverage. A New York State trial court denied the insurers’ motion for summary judgment and an appeal followed. The First Department reversed the trial court finding that although the service agreement contained an insurance procurement provision it did not require that Brooklynbaca assume any tort liability on the part of Scientific. As such, without a clause requiring Brooklynbaca’s assumption of tort liability, the service agreement did not constitute a “written insured contract.” The First Department thus found that Scientific was not entitled to additional insured coverage under the American policy. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News NJ Appellate Court Reverses Summary Judgment Granted Based On Ordinance or Law Policy Exclusion September 12, 2012 < Back Share to: In Leda Puhlovsky v. Rutgers Casualty Insurance Company, the Appellate Court overturned a trial court’s Order of summary judgment in favor of the insurer. The plaintiff owned a four-story commercial building in Paterson. In March 2008, the adjacent building collapsed and was ultimately demolished. The western brick wall of plaintiff’s building was built into the wood frame of the adjacent building, creating a common wall in between them. After the collapse of the adjacent building, a municipal engineer examined the plaintiff’s building and found it to be unsafe. City officials instructed the plaintiff to either demolish the building or repair it so as to conform to Code. She opted to demolish the building and afterwards filed a claim with her insurer, Rutgers Casualty, under the policy issued for the commercial property. An engineer retained by Rutgers examined the building and determined that there had been gradual movement in the building in the past few years due to the earth sinking and settling and that the loss of support from the adjacent building exacerbated the condition. Plaintiff’s expert also inspected the building and determined that the damage occurred due to the partial collapse of the adjacent building and vibrations from demolition of the adjacent building. Rutgers eventually denied coverage under the policy's exclusions for losses occasioned by the enforcement of any ordinance or law, or arising from neglect, faulty construction or earth movement. The trial court agreed with Rutgers’ position and granted summary judgment its favor. The Appellate Court reversed and found that the exclusions in the policy did not apply to the specific circumstances of this case. Noting that insurance policy exclusions must be narrowly construed, the court determined that the “ordinance or law exclusion” did not apply to the facts of this case, since the building was not demolished at the direction of the City of Paterson. Rather, the City gave plaintiff the choice either to demolish the structure or immediately correct the hazards and render the building safe. Moreover, the exclusion in the Rutgers policy refers to code enforcement requiring the tearing down of any property, which is not what happened in this case. Further, similar exclusions in other policies have been construed to apply to the increased expenses incurred by an insured in repairing or rebuilding a damaged structure so as to bring it into compliance with a local code or ordinance. Lastly, the Appellate court held that the motion judge's reliance on the "earth movement" exclusion was not warranted in the context of a motion for summary judgment. Rather, the question of whether or not the settling, cracking or other disarrangement of plaintiff's building occurred as a consequence of "earth movement" was a question of fact for a jury. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5100-10.pdf Previous Next Contact

News Barring Expert Testimony Based On Net Opinion Upheld by NJ App Div. November 24, 2010 < Back Share to: In Sims v. Deltec Power Systems, the Appellate Court upheld an Order barring a plaintiff's liability expert from testifying at the time of trial. Plaintiff, Calvert Smith, alleged personal injuries due to exposure to sulfuric acid fumes. According to the plaintiff, a group of batteries attached to an uninerruptible power supply unit malfunctioned, and caused the release of fumes. Plaintiff brought suit against the manufacturer of the batteries. Plaintiff's expert, Mark Keith, testified that a manufacturing defect caused the leak, an opinion which was premised upon the fact that the battery casing was cracked. However, there was no evidence in the record to suggest that any of the batteries were cracked. Furthermore, plainitff's expert acknowledged that one of two things could have caused the release of the fumes- negligence or a product defect. Ultimately, the appellate court upheld the trial court's opinion that plaintiff's expert's testimony constituted an inadmissable net opinion which was properly excluded. Thank you to Heather Aquino for this post. http://www.judiciary.state.nj.us/opinions/a1058-09.pdf Previous Next Contact

News NY: A&B Sub-Limit Applies To Primary But Not Excess Policy November 30, 2011 < Back Share to: It is a harsh reality that courts will give policyholders every benefit of the doubt in interpreting the terms, conditions and limits of policies of insurance. Insurers must be careful to place their insureds on notice of significant exclusions and limitations through the use of clear, concise and plain language in their policy forms. Even trickier, most states require that insurers timely advise their insureds and claimants if they conclude that the policy does not cover a particular claim or loss. What obligation does an insurer have if it does not deny coverage outright but seeks to enforce a significant sub-limit of liability? Is the insurer bound by the same rules that control when the insurer seeks to disclaim liability? Recently, in Santa v. Capitol Specialty Insurance, LTD., et al., plaintiffs filed suit against a Manhattan night club arising out of an alleged assault on plaintiffs. The third party administrator for the primary insurer became aware of the claim after it received the summons and complaint, which contained a specific count based on assault. Nine months later during discovery, the attorneys for the policyholder disclosed, for the first time, that the primary policy was subject to an assault and battery sub-limit of $50,000. The insurance disclosure also identified an excess policy with limits of $4,000,000 but made no reference to the sub-limit contained in the primary policy. The claimants protested that the primary insurer must provide its full policy limits because it failed to provide timely notice of the assault and battery sub-limit. Further, they argued that the excess insurer must make its full policy limits available because its policy did not contain any explicit exclusion or sub-limit for claims based on assault and battery. Of significance, the court held that the primary insurer was not subject to the normal rules requiring timely notice of disclaimer because it was not disclaiming or otherwise denying coverage. Rather, it was providing “the full measure of coverage available for the incident,” just with a reduced sub-limit of liability. On the other hand, the excess insurer did not fare as well. The court cited a number of problems with the excess insurer’s stance including its failure to exclude or specifically minimize its limits of liability for claims based on assault and battery. Further, the court was troubled by the excess insurer’s failure to put the claimant on notice of the sublimit when the insurance disclosure was furnished to the claimant’s attorney during discovery. The lesson of Santa is clear: while Santa may overlook minor errors in conduct and still arrive bearing gifts, insurers can expect no such generosity from the courts. Be clear, accurate and specific in the language contained in your policies and the disclosures made to your insureds and claimants. http://pdf.wcmlaw.com/pdf/santa.pdf If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com Previous Next Contact

News PA Superior Court Analyzes The "Regular Use" Exclusion November 5, 2012 < Back Share to: In Rother v. Erie Insurance, Patrick Rother was injured in a car accident. At the time of the accident Rother was living with his mother but was driving his father’s car. Two weeks before the accident, Rother’s father had given him permission the use the car to commute to work for the indefinite future. After Rother recovered liability benefits from the other driver’s policy, he and his mother initiated an action seeking a declaration that Erie Insurance was obligated to provide underinsured motorist coverage under his mother’s policy. Erie contended that coverage was excluded under the “regular use” exclusion in the policy. The trial court granted summary judgment in favor of Rother. Erie appealed. On appeal, the Superior Court first noted that, generally, policy exclusions should be narrowly construed. Next the Court held that the duration of Rother’s use of the car was irrelevant in determining if the test for “regular use” had been met. Further, the fact that Rother’s father had placed restrictions on the use of the car would not preclude there being a finding of “regular use.” The Court held that the determining factor was there was no indication that Rother’s use of the car was on a temporary basis. As such, the test for “regular use” had been met and there was no coverage under Erie’s policy. Thanks to Colleen Hayes for her contribution to this post. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202576475740 Previous Next Contact

News A Prime Time For A Buyer To Beware (NY) December 23, 2019 < Back Share to: In a recent lawsuit filed in the Eastern District of New York, Amazon.com Inc.’s summary judgment motion was granted by the federal court, rejecting subrogation claims by an insurer. In Philadelphia Indemnity Ins Co v. Amazon.com Inc., Amazon was sued for losses to a sushi restaurant from a fire allegedly ignited by a defective commercial blender, which was sold and delivered through Amazon’s fulfillment program. The online seller never took title to the blender, even though it had warehoused and delivered the product, so it could not be held strictly liable for its defects, U.S. District Judge Dennis R. Hurley of the Eastern District of New York wrote in the opinion granting Amazon’s summary judgment motion. According to the opinion, Guangzhou Glantop E-Business Co. Ltd., a Chinese seller of kitchen products, entered an Amazon Services Business Solutions Agreement, through which Amazon agreed to offer the products and process payments in exchange for referrals and service fees. The contract also provided for fulfillment services, whereby Amazon would warehouse, pick up, deliver, and provide customer service for Glantop’s products. A&K Sushi Corp., a restaurant in Wantaugh, New York, which was located in a strip mall owned by Niat Realty Group, purchased a blender from Glantop through Amazon in April of 2016. The blender was warehoused by Amazon. In May of 2016, the blender allegedly caused a fire at A&K that caused substantial property damage. Philadelphia Indemnity, Niat Realty’s insurer, sued Amazon for product liability, breach of warranty and negligence in a subrogation action, seeking to recover the $200,000 it paid Niat for the fire damage. Amazon moved for summary judgment to dismiss the claims. Amazon argued it could not be held liable because Philadelphia Indemnity could not establish that the company manufactured, distributed, or sold the blender. The insurer countered that Amazon was at the top of the blender’s distribution chain and that it was in the best position to further the public policy considerations underlying the doctrine of strict product liability. Whether Amazon can be held strictly liable for defects in products sold by third-party vendors is a “developing area of law,” Judge Hurley noted in the opinion. He cited Eberhart v. Amazon.com Inc., 326 F.Supp. 3d 393 (S.D.N.Y. 2018), which held that strict liability applies only to those entities that are within the distribution chain. New York's highest court has not yet addressed whether an online marketplace is subject to strict product liability, so Eberhart predicted how the New York Court of Appeals would decide, Judge Hurley stated. Under the terms of the business-solutions agreement, Amazon never took title to the blender, so it could not be considered a "distributor" within the distribution chain. Judge Hurley also stated Amazon did not know who manufactured the blender, so it was not in a position to influence the manufacturer. Philadelphia Indemnity's negligence and breach-of-warranty claims likewise failed because Amazon did not manufacture, sell or distribute the blender, Judge Hurley ruled. Thus, this case illustrates that, while this area of the law is still developing, recent decisions may make it more difficult to prevail in certain subrogation matters. Thanks to Joseph Anzalone for his contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Middle Car In “Chain Collision” Can Escape On Summary Judgment February 10, 2023 < Back Share to: Defending a rear-end collision when plaintiff is in a stopped car can be difficult, the cards are stacked against you and generally speaking, so is the law. Plaintiff only needs to establish that they were stopped as prima facie showing that the operator of the rear vehicle was negligent. However, the Second Department has recently held that, the same rules do not apply for a “middle” car in an accordion accident. In the matter of Liya Robinson v. New York City Transit Authority and Ghilan Noman Ali, 2023 N.Y. Slip Op 00683, Ms. Robinson brought suit to recover for personal injuries resulting from a multiple car pileup. Here, Ms. Robinson was sitting at a red light, when a New York City Bus struck her from the rear, resulting in two other cars being struck. Ms. Robinson brought suit against the NYCTA, as well as the drivers of the two vehicles in front of her. While it may seem clear that the two front vehicles would have no liability in such an action, and in fact summary judgment was held awarded in their favor, the court widened its holding, specifically stating that “in a chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead when it was struck from behind by the rear vehicle and propelled into the lead vehicle.” Id., citing Nicola v Nicolas, 208 AD3d 791, 793. Thus, the mere fact that the insured was in a rear-end collision and was not the lead, is not dispositive of the action. In fact, if they were in the middle of the collision, they may be able to successfully obtain summary judgment and share no liability whatsoever. Thanks to Christopher Palmieri for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Don’t Judge A Book By Its Cover (NJ) February 22, 2019 < Back Share to: In Evanston Insurance Co. v. A&R Homes Development, LLC, et al., the New Jersey Superior Appellate Division held that a declarations page alone cannot create a reasonable expectation of coverage. Evanston Insurance issued a CGL policy to A&R Homes, a development company hired to construct an apartment building in Jersey City. The injured plaintiff in the underlying action was an employee of a subcontractor engaged by A&R. The Plaintiff was allegedly injured at the job site when he fell more than twenty feet. Evanston initially agreed to provide A&R a defense pursuant to a reservation of its rights. However, once Evanston confirmed that the Plaintiff was a subcontractor employee, it initiated the instant declaratory judgment action seeking a ruling of no coverage based on the policy’s Employer’s Liability Exclusion. On appeal, the Insured argued, inter alia, that the policy’s declarations page created a reasonable expectation of coverage for the Plaintiff’s injuries, which was sufficient to overcome any policy exclusions. Specifically, the Insured relied upon Lehroff v. Aetna, a 1994 App. Div. case that found UIM coverage based upon the policy declarations page, holding that “the average automobile policy holder” should not be held responsible to “undertake to attempt to analyze the entire policy in order to penetrate its layers of cross-referenced, qualified and re-qualified meanings.” Ultimately, the Evanston Court did not find the holding in Lehroff to be analogous to the Evanston CGL policy, noting also that the Evanston declarations page did specifically state that all coverage would be subject to the “following forms and endorsement.” Thus, this ruling is useful as it holds that prior case law regarding reasonable expectations of coverage in the UIM context are not always applicable to CGL policies. Thanks to Vivian Turetsky for her contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Ladder In the Snow? A Shifting Target (NY) September 17, 2021 < Back Share to: In theory, Labor Law 240(1) strict liability will not attach if the plaintiff is the sole proximate cause of his accident – such as if the plaintiff improperly sets up a ladder by placing it on snow. However, the Third Department recently held that if a ladder shifts or otherwise fails to perform its function as a result of how the worker set it up, the failure of the ladder constitutes a statutory violation as one proximate cause of the accident – therefore precluding a defendant from arguing that the plaintiff was the sole proximate cause of the accident sufficient to defeat Labor Law 240(1) strict liability. In Begeal v. Jackson, 2021 WL 4201557 (3d Dep’t 2021) the plaintiff was employed by an industrial painting company and was instructed to construct a ventilation stack on top of a commercial building which was one of his employer’s facilities. To accomplish this task, the plaintiff brought an aluminum extension ladder outside alone with no assistance or supervision, raised the extension part of the ladder, and then placed the ladder in an area that had snow. He then ascended the ladder, which he testified felt secure. While on the ladder, he testified that he shifted his position to get another screw out of his pocket when the ladder shifted and began to fall. Plaintiff fell with the ladder and sustained injuries after falling approximately 12 feet. Thereafter, he filed suit and raised claims of common law negligence as well as Labor Law 200, 240(1), and 241(6). After the completion of discovery, the defendants moved for summary judgment to dismiss the complaint in its entirety, and the plaintiff cross- moved for partial summary judgment regarding his Labor Law 240(1) claim only. The motion court denied both motions, and the parties thereafter filed cross-appeals. The Third Department ultimately held that the defendants had failed to establish that the plaintiff was the sole proximate cause of his injuries. Although the defendants raised a number of points as to how the plaintiff caused his own accident – by not using alternative safety devices or a scaffold, not requesting assistance in using the ladder, and (most critically) not clearing the snow before placing the feet of the ladder – the Third Department held that these circumstances only touched upon the plaintiff’s comparative negligence and were ultimately irrelevant in the face of the statutory violation. Specifically, the Appellate Division held that when a ladder “slips or otherwise fails to perform its function of supporting the worker”, that is sufficient to establish a prima facie Labor Law 240(1) statutory violation as the proximate cause of the accident which therefore precludes the plaintiff’s negligence from being the sole proximate cause. As such, the Third Department reversed the trial court and granted the plaintiff’s cross-motion for partial summary judgment on his Labor Law 240(1) claim. Thanks to Shira Straus for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Lack of Explanation in Coverage Decision May Constitute Bad Faith October 7, 2016 < Back Share to: Making the wrong coverage decision generally does not constitute bad faith. However, failing to explain the decision might. In Rosewood Cancer Care Inc. et al. v. The Travelers Indemnity Co., a water leak damaged $1 million radiation machine. The insurer agreed to cover the radiation machine as “business personal property” which allowed up to $103,000 in coverage per the policy to replace the machine. Rosewood argued that the machine was a “building fixture,” which warranted $560,000 in coverage per the policy. The insured sued for a declaration that the radiation machine should have been covered as a building fixture, rather than business personal property. The insured also alleged bad faith and breach of contract claims against the insurer for failing to provide coverage for the machine as a fixture, and for allegedly failing to provide an explanation for the denial of coverage as a building fixture after multiple requests. The insurer maintained that the radiation machine was business personal property since it was capable of being bought, sold, moved, installed or removed from the building. On motion, the court ruled that the radiation machine should have been covered as a building fixture, since the machine was permanently attached to the building and would have required significant drilling through concrete to remove. The court allowed plaintiff to proceed to trial on the allegation of bad faith stemming from the alleged failure to provide a written explanation for its coverage decision. This case demonstrates that for an insurer to prevent viable bad faith claims, communication with the insured and explanation is key. Thanks to Rachel Freedman for her contribution to this post.     Previous Next Contact