News WCM PA Associate Is Recipient of Defense Association Award. June 28, 2017 < Back Share to: On June 6, 2017, the Philadelphia Association of Defense Counsel, one of the oldest local defense organization in the country (now in its 70th year), awarded the 2017 Joseph H. Foster Young Lawyer Award to Hillary Ladov, a coverage and commercial litigator in Wade Clark Mulcahy, LLP's Philadelphia office. The award is given to a “young lawyer who best exemplifies the qualities of professionalism and dedication as defense counsel in the practice of law and in the promotion of the highest ideals of justice in the community”. Hillary received the award in recognition of her quality legal work as well as her pro bono work with non-profits, low-wage workers, and Jewish graduate students in Philadelphia as well as her service to the Philadelphia Bar Association. A donation will be made by the PADC to Hillary’s designated charity. Previous Next Contact

News Exploding Gas Not Utility Company’s Fault (NY) October 26, 2018 < Back Share to: In Deitrick v. Long Island Power Authority, Hurricane Sandy uprooted a tree in front of the plaintiff’s neighbor’s home. In the process, the tree disturbed the natural gas service line leading to the neighbor’s home. An explosion ensued, sending debris into the plaintiff’s home and injuring the plaintiffs. Keyspan Gas, the utility company responsible for this gas line, moved for summary judgment and the lower court denied its motion. Upon appeal, the Second Department found that utility companies can only be held responsible for accidents that occur as a result of their negligent installation or negligent maintenance of their systems. Specifically, the Appellate Division held that utility companies cannot be expected to unearth their entire system and go beneath sidewalks and roadways to inspect for possible defects. Rather, there has to be some warning or notice alerting the company of a possible defect, such as a pre-existing condition on the property before the gas line is installed or reports of gas leaks. In the instant matter, Keyspan Gas proved that the tree was not present when the gas line was initially installed through the use of an expert that measured the age of the tree that uprooted the gas line. The expert concluded that the tree was installed after the gas line had been installed and before the community in the area had even been formed. Moreover, Keyspan Gas provided reports of inspections it had conducted in the area mere three years prior to the accident, which detected no issues. Accordingly, the Appellate Court was satisfied that Keyspan could not have known that the tree would uproot its gas line because the tree was not present when the gas line was installed and there were no records of reported issues with the subject line. Of interest are the large number of ongoing cases related to Hurricane Sandy and the court’s treatment of accidents that resulted from this natural disaster. The Deitrick action indicates that courts are not willing to place responsibility on parties for accidents that did not result from their direct negligence but, rather, were caused by this unfortunate “force majeure.” Thanks to Georgia Coats for her contribution to this post. Please contact Vito A. Pinto with any questions. Previous Next Contact

News "To My Knowledge" Deemed Superfluous By The Second Circuit March 18, 2009 < Back Share to: Often during depositions, the attorney defending the deposition will interrupt an answer with the phrase “if you know,” meaning that the witness should only answer the question if the witness has personal knowledge. An answer to a deposition question, or a statement in an affidavit, stating “to my knowledge” has the same meaning, according to a recent decision by the U.S. Court of Appeals for the Second Circuit. In SCR Joint Venture, LP v. Warshawsky, the question was whether certain debts had been paid in full. The statement “to my knowledge” the creditor had not been paid in full was the same as “I know that” the creditor was not paid. The “to my knowledge” language was redundant. http://www.ca2.uscourts.gov/decisions Previous Next Contact

News NY Court Of Appeals Protects One and Two Family Dwelling Homeowners From Labor Law. November 25, 2009 < Back Share to: In Affri v. Basch, the defendant owned a two-family home and hired plaintiff to perform renovations on one of his apartments. While installing a vent on the roof of defendant's home, plaintiff fell from a ladder and sustained severe injuries. The lower court held that defendant was entitled to summary judgment because plaintiff failed to show that the defendant maintained such a level of control over his actions as to exclude him from the Labor Law's two-family dwelling exception. The Court of Appeals affirmed that decision, finding that defendant had merely controlled the aesthetic decisions and exercised general supervision with respect to the project. The Court found that the fact that the defendant had requested that the vent run through the roof "did nothing more than what an ordinary homeowner would do in deciding how they wanted the home to look upon completion." The Court's decision indicates that, unless a two-family dwelling homeowner provides their worker with equipment, work materials or direct supervision on the manner and method of the work, one and two family homeowners will be free from liability resulting from injuries to the workers they hired to beautify their home. Thanks to Georgia Stagias for her contirbution to this post. http://caselaw.lp.findlaw.com/data/ny/cases/app/159opn09.pdf Previous Next Contact

News Insurer Stays Out of the Penalty Box in NY's Fourth Department June 22, 2012 < Back Share to: Raymond Pink, his wife Michelle, and Matthew Ricci were spectators at a youth hockey game when a fight broke out in the stands and Ricci assaulted Pink. The Pinks filed a personal injury suit seeking damages for injuries caused by Ricci. Ricci held a homeowner’s insurance policy through State Farm and notified State Farm of this claim. State Farm promptly sent Ricci a letter five days after receiving notice of the suit, reserving its right to deny and disclaim coverage. Nine days after receiving notice, State Farm advised Ricci that based on the question of coverage he had the right to select counsel to defend him at State Farm’s expense in the underlying action. Ricci declined to do so. Two years later, State Farm commenced a declaratory judgment action seeking a declaration of the rights of the parties under the homeowner’s policy. Ricci answered and alleged several counterclaims, most notably that State Farm had engaged in bad faith and improper conduct. State Farm moved for partial summary judgment to dismiss this counterclaim and several others. The trial court denied State Farm’s summary judgment motion as to the bad faith counterclaim. On appeal, Ricci did not submit any opposition, but the Pinks did. The Fourth Department ultimately granted State Farm’s summary judgment motion, stating that State Farm’s approach to clarifying its obligations under the policy was “not only permissible but advisable.” Addressing the two-year lapse between reserving the right to disclaim and filing the declaratory judgment, the court held that failure to disclaim in a timely manner is insufficient to establish bad faith. The court also noted that if State Farm had simply disclaimed coverage after two years instead of filing a declaratory judgment, the untimely disclaimer would have been ineffective with respect to the Pinks. Finally, the court noted that where a claim falls outside the scope of coverage afforded by the policy, no disclaimer is required. Thanks to Michael Nunley for his contribution to this post. http://www.nycourts.gov/courts/ad4/clerk/decisions/2012/06-15-12/PDF/0639.pdf Previous Next Contact

News Defendant Slips Away from Liability in Snow Case (NY) July 25, 2018 < Back Share to: In Williams v New York City Hous. Auth., the Appellate Division, First Department unanimously affirmed a lower court ruling that granted defendant’s motion for summary judgment. In Williams, plaintiff allegedly slipped and fell on ice while walking on a concrete walkway in front of defendant’s building. While the defendant was unable to use the storm-in-progress defense, plaintiff failed to prove notice, or that defendant created the condition. The weather records showed that trace amounts of freezing rain had stopped several hours before plaintiff’s accident and as such, the storm in progress defense was inapplicable. Plaintiff’s own evidence, however, belied her contention that defendant created the icy condition. Plaintiff testified that she did not see ice the day before the accident when she walked through the area and her expert averred that weather records showed that ice was not present on untreated exposed surfaces for several days before plaintiff’s fall. The expert speculated that the ice formed as a result of the melting and refreezing of snow that was piled along the fence in connection with a snowstorm the previous week. However, the weather records showed that the temperature never went above freezing in the days before the accident and only rose to 34 degrees less than an hour before plaintiff fell. Additionally, defendant was able to establish lack of notice. The assistant superintendent testified that the area plaintiff fell was salted and sanded three times during her shift and she inspected the area an hour before the accident. No complaints were received about the area nor were there any prior incidents. Defendants have to be able to show reasonable measures taken during snow removal and proper inspections. As such, record keeping is very important in order to win affirmative summary judgment motions. In short, the plaintiff's theory was that the snow had a "freeze and thaw" effect, which lead to the icy condition. Except the weather records disproved the "thaw" half of plaintiff's theory. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. 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 Finding of "Alteration" and Notice Sufficient to Defeat Summary Judgment May 20, 2009 < Back Share to: In Fuchs v. Austin Mall Assoc. LLC, plaintiff's decedent was electrocuted while replacing the ceiling of an elevator located on property owned and/or managed by the defendants. The decedent's representative commenced an action against the defendants alleging common law negligence and causes of action pursuant to Labor Law sections 200, 240, and 241(6). The defendants then filed a motion for summary judgment in relation to plaintiff's claim for common-law negligence and for violations of Labor Law sections 241(6) and 200. The Supreme Court, Queens County, granted the defendants' motion. Plaintiff appealed. The Appellate Division, Second Department, reversed the Supreme Court's ruling and denied the defendants' motion in its entirety. The Court stated that the work the decedent was performing at the time of death constituted an "alteration," and therefore fell within the scope of Labor Law section 241(6). The Court also stated that because the defendants were aware that there were energized electrical circuits in the area where the decedent was working, they had notice of a dangerous condition. As such, even if they did not have control over the decedent's work area, the fact that they were aware of the condition precluded them from prevailing on summary judgment. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03863.htm Previous Next Contact

News First Department Finds Texas Law Applies in Asbestos Case due to Flight Attendant’s Tenuous Connection to New York May 24, 2024 < Back Share to: The Estate of Linda English brought suit in New York against defendant Colgate-Palmolive alleging English used the manufacturer’s talcum powder products contaminated by asbestos, which caused her to develop mesothelioma. The New York-based Colgate-Palmolive moved for summary judgment on choice-of-law grounds that Texas law should apply, as plaintiff was a Texas resident and purchased the product in Texas, and that plaintiff had not demonstrated causation in accordance with Texas’ standard. The Supreme Court denied Colgate-Palmolive’s motion, holding that New York law applied as plaintiff, a flight attendant, used the talcum powder frequently in New York and that Colgate-Palmolive failed to refute causation. Rasso v. Avon Products, Inc. , No. 190346/2018 (N.Y. Sup. Ct. Sep. 11. 2023). The First Department reversed, holding that New York’s connection to Plaintiff’s action was “tenuous at best.” In re New York City Asbestos Litig. , 2024 NY Slip Op 02786 (N.Y. App. Div. May 21, 2024). The Court elaborated that while plaintiff used defendant’s talcum powder while in New York during layovers in the course of her work as a flight attendant, her use of the product was primarily in Texas, her domicile, and she did not recall ever purchasing talcum powder in New York. The Court held that due to this tenuous connection, Texas law regarding “proof of specific causation in toxic tort cases” applied. Id . The Court further held that plaintiff, who could not show specific causation, failed to meet Texas’s standard for evidence in the form of epidemiological studies to show that the subject product “more than doubled a plaintiff’s risk of injury.” Id . citing Bostic v. Georgia-Pac. Corp., 439 S.W.3d 332 (Texas. 2014). In the Matter of NYC Asbestos Litigation .pdf Download PDF • 1.90MB Previous Next Contact

News Is Lead Paint a Pollutant? That Depends on Who, and Where, You Ask March 25, 2016 < Back Share to: While Total Pollution exclusions have generally been applied broadly, insurers must be cognizant of a fascinating conflict between different state’s jurisprudence. This conflict involves the question of whether lead or lead based products and by-products are considered “pollutants” under a total pollution exclusion. This conflict was highlighted recently when the Georgia Supreme Court found that a policy’s pollution exclusion applied to an injury that resulted from the ingestion of lead-based paint. In Georgia Farm Bureau Mut. Ins. Co. v. Smith, 2016 Ga. LEXIS 245 (Ga. Mar. 21, 2016), a minor tenant was injured due to ingestion of lead-based paint chips. The plaintiff insurer moved to disclaim coverage based on the policy’s pollution exclusion. Following the insurer’s victory at the trial level, the Georgia Court of Appeals reversed, claiming that lead-based paint was not a “pollutant” as defined under the policy because it wasn’t specifically mentioned in the exclusion. The Georgia Supreme Court noted that the pollution exclusion was not limited to environmental harms and that the exclusion needs to be evaluated by its terms in accordance with Georgia law. Additionally, the court referenced a prior Georgia case, Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 667 S.E.2d 90 (2008), where the court found that the pollution exclusion applied to a claim related to carbon monoxide poisoning despite carbon monoxide poisoning not being explicitly mentioned as a pollutant. Using the same analysis, the Supreme Court held for the insurer, declaring lead based paint to be a pollutant for the purposes of the pollution exclusion. Notably, New York courts take the opposite stance. The case of Westview Associates v. Guar. Nat. Ins. Co., 95 N.Y.2d 334, 338, 740 N.E.2d 220, 222 (2000) concerned essentially identical facts as Georgia Farm Bureau, in that a minor suffered bodily injury due to the ingestion of lead-based paint chips. The New York Court of Appeals, equivalent in stature to the Georgia Supreme Court, held that the lead-based paint chips did not constitute a pollutant. The Court of Appeals reasoned that, if lead-based paint chips were meant to be excluded by the policy, as the insurer claimed, then they would have been specifically mentioned in the exclusion. Since they were not, the court ruled that the issue constituted an ambiguity in the policy and interpreted it against the insurer. The key difference between each states approach resides in their respective analytical framework. Georgia courts have a history of enforcing pollution exclusions without requiring the pollutants to be explicitly named in the policy—taking a common sense view of what is regarded as a pollutant. By contrast, New York plays by the card, requiring more specificity. This decision, once again, calls upon Underwriters to develop wording with enough breadth to carve-out the risks they are unwilling to embrace. What works in Georgia may not work elsewhere. Insurers have to be cognizant of where a given action is being litigated and where a given policy is issued. Thanks to Joshua Gornitsky for his contribution to this post. For more information, please email Dennis M. Wade at dwade@wcmlaw.com . Previous Next Contact

News Texas Justice -- Lloyd's Must Pay for Billionaire Criminal's Defense. January 29, 2010 < Back Share to: A Carribbean knighthood. Ownership of cricket teams. A fleet of private jets. Texas billionaire Allen Stanford claimed that these things came from his worth ethic and natural abillities. That may be true, if you consider that his worth ethic and natural abilities were sired to criminal undertakings. Stanford and his company are accused of defrauding investors in excess of $8 billion dollars. Criminal indictments and civil lawsuits have resulted. Unfortunately, it appears that Lloyd's insured Stanford and his company at the relevant times. And now, a Texas judge has ruled that Lloyd's must pay for the defense of Stanford and his group in the pending SEC and crminal cases. Hopefully, Lloyd's won't end up spending billions in legal fees, but tens of millions seems like a reasonable estimate. If you would like more information about this post, please ctontact Bob Cosgrove http://www.insurancejournal.com/news/national/2010/01/27/106889.htm http://pdf.wcmlaw.com/pdf/PendergestDecision.pdf Previous Next Contact

News Turnabout Is Fair Play? Does Twombly Apply to Affirmative Defenses? (NJ) July 24, 2013 < Back Share to: Folks are familiar with Twombly, the United States Supreme Court decision that makes it clear that federal court plaintiffs must plead their cases with specific particularity to provide full notice of the claims in order to survive a motion to dismiss. The question is – does Twombly apply to affirmative defenses or counterclaims? There is no binding nationwide federal precedent that answers that question and different trial courts have come up with different answers; for example, New York courts have held that Twombly does apply to counterclaims and affirmative defenses. In one of the more recent decisions from NJ, Signature Bank v. Check-X-Change, LLC, District Court Judge Esther Sallas was forced to address the issue when Signature moved to dismiss Check-X-Change’s counterclaim and strike its affirmative defenses. Judge Sallas ruled against Signature and held that Twombly (under Third Circuit precedent) only applies to complaints and not the responses thereto. Underscoring her reasoning was the notion that “substantial issues of fact and law are properly viewed only after the opportunity for discovery.” Although Signature is a positive developments for NJ (and possibly all Third Circuit (including PA)) defendants, the issue is something to be wary of. Form denials and rote pleadings may be going the way of the dodo bird and fact based and specific pleadings may be the wave of the future as federal courts (in the age of the sequester) attempt to keep cases out of the system. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact