News Accident Report Alone Sufficient for Summary Judgment in Labor Law Claim (NY) March 31, 2017 < Back Share to: In Weicht v. City of New York, the plaintiff was injured when he fell from a ladder while working on the job site. However, plaintiff could not provide any details regarding the cause of his fall to support his motion for summary judgment under Labor Law § 240(1). Instead, plaintiff relied on a post-accident OSHA report to establish that the bottom of the ladder he was standing on suddenly slipped out from beneath him, causing his fall. The lower court ruled that the evidence set forth was sufficient and granted plaintiff summary judgment. On appeal, the First Department held that the defendant failed to properly challenge the admissibility of accident report during the original motion and could not raise the issue on appeal. But regardless, the First Department also opined that the report was admissible evidence because it constituted a business record. In addition, contained within the OSHA report was a statement from the defendant employer regarding the cause of the accident which was was admitted as a vicarious admission of an employee. As such, the award of summary judgment was affirmed - despite any testimony from plaintiff regarding how the accident occurred. Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Lawful Possession Not Found For Passenger in Vehicle (PA) June 7, 2018 < Back Share to: In State Farm Mutual Automobile Ins. Co. v. Erin C. Dooner, Jean A. Fonte, Jeffrey J. Kowalski, Gary J. Fedorczyk, and Progressive Advanced Ins. Co., the Superior Court reaffirmed a trial court decision that determined the Appellee, State Farm Mutual Automobile Insurance Company (“State Farm”), did not owe coverage to its insured, Erin C. Dooner (“Dooner”). In the underlying case to this declaratory judgment action, the appellant, Jean. A Fonte (“Fonte”), and Dooner were traveling in Dooner’s car when they were involved in a one-car accident. At the time of the accident, Dooner had a motor vehicle insurance policy through State Farm. Due to the accident, Dooner was arrested so Fonte retrieved her own vehicle to pick up Dooner at the police station. On the way home, a fight arose at which time Dooner grabbed the bottom of the steering wheel causing Fonte’s car to swerve into oncoming traffic and collide with a police cruiser. The police officer and his wife then sued Dooner. Subsequently, State Farm initiated this action seeking a declaration that it had no duty to defend, indemnify, or otherwise provide liability coverage to Dooner. The trial court agreed and granted summary judgment in favor of State Farm. The following issue was raised for review: “Did the trial court abuse its discretion and commit error by granting [s]ummary [j]udgment on behalf of [State Farm], improperly determining that State Farm did not owe a duty of coverage to [its] insured[,] [Ms.] Dooner, and all parties who suffered injuries through [Ms.] Dooner’s negligence, thus misapplying case law and relevant precedent? The insurance policy in question was a motor vehicle insurance policy that provided coverage for a “non-owned car” if the car was “in lawful possession of you or any resident relative.” As the policy did not define the terms “possession” and “lawful,” Fonte argued, on appeal, that the policy was ambiguous and should have been construed in her favor. In compliance with Pennsylvania law, the Superior Court evaluated the type of coverage afforded under the policy by analyzing the policy’s language. To determine whether the policy language was ambiguous, the Superior Court relied on Pennsylvania’s long-standing principles regarding insurance policy interpretation. As noted by the Superior Court, policy language is only ambiguous if it is susceptible to more than one meaning. Policy language is not ambiguous merely because the parties disagree as to the meaning of the policy’s language. Accordingly, policy language must be construed in its plain and ordinary sense and read to avoid any ambiguity. Therefore, the Superior Court determined that if the policy’s language is “plain and unambiguous,” then it is bound by the policy’s language. As the Superior Court found the policy’s language to be clear, it determined State Farm only owed liability coverage to Fonte if Fonte’s car qualified as a “non-owned car” of the insured [Donner]. Further, the policy only provided coverage if the insured [Donner] was in “lawful possession” of Fonte’s car at the time of the accident. On appeal, Fonte argued “possession” involved an aspect of control, however, the Superior Court disagreed with Fonte’s analysis because under Pennsylvania law “control” did not necessarily equate to “possession.” Nevertheless, since the policy in question was a motor vehicle insurance policy, the Superior Court evaluated whether the insured was in “possession” by considering who was in “control” in terms of the entire vehicle. In doing so, the Superior Court focused on the fact that Fonte was in the driver’s seat at the time of the accident. Even though Dooner grabbed the bottom of the steering wheel and ultimately caused the accident, the Superior Court determined that based on the totality of the circumstances the insured’s briefly grabbing the steering wheel did not amount to her taking lawful possession or control of the vehicle. Simply, Dooner’s actions in grabbing the steering wheel merely constituted an interference with Fonte’s operation of the vehicle. Accordingly, the Superior Court reaffirmed the trial court decision and held that because Fonte failed to establish a genuine issue of material fact, the trial court did not commit an error of law or abuse its discretion. Thanks to Lauren Brenbaum for her contribution to this post. Please write to Tony Pinto for more information. Previous Next Contact

News Construction Defect Litigation -- Now Playing In the Big Apple? October 25, 2009 < Back Share to: Construction defect litigation is the bane of commercial general liability policy insurers. Given that the duty to defend is far broader than the duty to indemnify, insurers often find themselves defending very expensive cases where "negligence" is alleged, even though the actual damage in the case is defective work product. To date, New York, with its old housing stock, has been immune to this phenomenon. However, as a result of a construction boom over the past few years, some are predicting that defective workmanship claims are set to hit New York. Claims against insurers and expensive litigation will follow. As if New York's Labor Law wasn't enough to worry about! http://www.nytimes.com/2009/10/25/realestate/25cov.html?_r=1 On an unrelated construction defect matter (on which we previously reported), Chinese drywall is a major source of claims. The search for a causal linkage between the drywall and the claimed injuries/damages continues. http://www.nytimes.com/2009/10/30/business/30drywall.html?_r=1&scp=1&sq=chinese%20drywall&st=cse If you would like more information regarding this post, please email rcosgrove@wcmlaw.com . Previous Next Contact

News Court Declines To Expand Applicability of Labor Law §240(1) January 5, 2009 < Back Share to: In yet another ruling that limits the applicability of Labor Law §240, the Second Department recently affirmed the lower court’s decision that granted the defendant summary judgment even though the plaintiff’s accident involved a fall in an elevated area. In Rau v. Bagels N Brunch, the plaintiff was hired to install the defendant’s security system. In order to access the attic, he used a ladder already standing beneath an opening in the drop ceiling. Once in the attic, however, in order to run wires for the system, the plaintiff decided to walk along the metal studs, rather than working from below the drop ceiling which would have required going up the ladder, removing the ceiling tiles, installing the wires, then coming down the ladder and moving it to the next area. As he walked along the studs he lost his balance and fell. The plaintiff argued that since his job required him to work in an elevated area Labor Law 240 applied. The Second Department concluded that the plaintiff's accident did not occur because he was in an elevated area and held that although Labor Law 240(1) provides protection for workers against the “special hazards” that arise when the work site itself is elevated "these special hazards do not encompass any and all perils that may be connected in some tangential way with the effects of gravity." http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D21600.pdf Previous Next Contact

News Register as a Foreign Corporation = Consent to Jurisdiction (PA) September 29, 2016 < Back Share to: In Bors v. Johnson & Johnson, U.S. District Court denied the defendant’s motion for dismissal and concluded that despite the U.S. Supreme Court’s ruling in Daimler AG v. Bauman, Pennsylvania had personal jurisdiction over the defendants who had consented to jurisdiction by registering in the State. In Bors, the plaintiff, as administrator of the estate of Maureen Milliken, brought suit against Johnson & Johnson and Imerys Talc American for various product and negligence claims. The plaintiff alleged that the defendants’ products lead to Ms. Milliken’s ovarian cancer and death. Ms. Milliken was a Philadelphia resident at the time of her death and during her prior usage of the defendants’ products. However, Imerys’ only connection to Pennsylvania was its decision in 2007 to register to do business as a foreign corporation in Pennsylvania. Imerys has no offices, conducts no business, sells none of its products, nor manufactures any of its products in Pennsylvania. Accordingly, relying on the U.S. Supreme Court’s reasoning in Daimler, Imerys argued that its registration was not enough to submit it to personal jurisdiction. In Daimler, the court limited general personal jurisdiction over a foreign corporation to where the corporation was essentially at home. Unfortunately for Imerys, the Daimler court did not address consent to general personal jurisdiction, and Pennsylvania’s rules on personal jurisdiction are pretty unambiguous. Personal jurisdiction can be established in Pennsylvania if there has been consent to general jurisdiction, general jurisdiction, or specific jurisdiction. Imerys must have missed the fine print attached to its application to register as a foreign corporation which essentially states that by registering as a foreign company, the company consents to general jurisdiction. Moral of the story, read before signing or it may cost you. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Discovery Can Sometimes Proceed In New York After the Note of Issue Is Filed. February 16, 2012 < Back Share to: In Stock v. Morizzo, the Appellate Division, Second Department reversed the lower court's decision that had denied the defendant's motion to compel the plaintiff to submit to an independent neuropsychiatric examination. In reversing the trial court, the Appellate Division held that parties are entitled to additional discovery after the filing of a note of issue when "unusual or unanticipated circumstances" develop. In this case, the plaintiff served the defendant with a neuropsychiatric report two years after filing the note of issue, which alleged new psychiatric injuries stemming from the accident. Accordingly, an independent examination was warranted so as to prevent the defendant from suffering substantial prejudice. Thanks to Georgia G. Stagias for her contribution to this post. Previous Next Contact

News Move It Or Lose It - Timeliness When Making A Claim March 8, 2024 < Back Share to: Prompt notice of loss or damage to an insurer by an insured is key to first-party insurance coverage. In cases where an insured lets a problem develop for months or even years, insurer’s must confront issues such as what loss exactly is covered during the term of the policy or may be prejudiced in their ability to timely investigate a claim. Therefore, most policies include time bars to both claims and suits against them in order to justifiably protect against these concerns. The Supreme Court of New York recently confronted such an issue in the matter of Bronstein Properties LLC v. Wesco Ins. Co. See Bronstein Properties LLC v. Wesco Ins. Co., No. 155806/2018, 2024 WL 839419 (N.Y. Sup. Ct. Feb. 27, 2024). In this declaratory judgement action, plaintiffs sought coverage for damage to the walls of a building due to water flow from beneath. Plaintiff’s believed the cause was from short-term increased water flow from a sewer pipe, while Defendant’s engineer saw the issue as one indicating long-term settlement. Wesco disclaimed coverage, in part because of the long amount of time the insured took to actually report the issue. As the court order reveals, Bronstein became aware of water damage cracks in the building as early as 2014, four years prior to commencing the suit. The court further noted that the policy clearly limited suits to two years in which the direct physical loss or damage occurred. Such policy terms were “clear and unambiguous” and that even “[g]iving plaintiffs the benefit of the most generous interpretation of when their loss occurred” (2016), any causes of action against defendant insurer had to be time barred. The claim was dismissed, and Wesco was not required to provide coverage. While the court in this case declined to comment extensively on prejudice, this case highlights the importance of prompt notice by insureds to get the claims process moving along smoothly. Just as important is for insurer’s to question when exactly losses occur and to inquire about how long their insured’s sit on a problem before deciding to address it. Bronstein Properties LLC v. Wesco Ins Co .pdf Download PDF • 147KB Previous Next Contact

News Bad Faith Claim Stands Where Insurer Allegedly Ignored Evidence August 23, 2024 < Back Share to: In Hudson v. Econ. Fire & Cas. Co. , plaintiff Frank Hudson commenced suit against his insurer, Economy Fire & Casualty Company seeking coverage for losses due to a fire which occurred in October 2020. Hudson v. Econ. Fire & Cas. Co ., No. CV 23-185, 2024 WL 3585691 at *1 (W.D. Pa. July 30, 2024). Hudson’s home had previously sustained secondary damage from a house fire that occurred at a neighboring home in May of 2020. Id . In April of 2021, Hudson retained an independent adjuster, Bryan Finnicum, to generate a damage loss estimate. Id . Finnicum estimated the replacement cost value at $75,635.98. Id . Defendant Economy Fire & Casualty Company generated its own loss estimate, calculating a replacement cost value of $4,565.01, an actual cash value of $3,946.09, and a net claim value of $2,946.09. Id . Finnicum wrote a letter to Economy Fire & Casualty Company’s counsel stating that its estimate was grossly understated and “a clear attempt to deny coverage for items that were undamaged in the May fire but damaged in the October fire.” Id . And, after Economy Fire & Casualty Company rejected an agreement to obtain a third, separate appraisal, Hudson filed suit for breach of contract and bad faith. Id . Economy Fire & Casualty Company sought to dismiss the bad faith claim, arguing that Hudson’s claim “essentially amounts to a dispute as to the value of the claimed loss, which does not rise to the level of bad faith conduct.” Id . at 3. The court, however, disagreed, finding that Hudon’s allegations that Economy Fire & Casualty Company’s adjuster failed to reasonably evaluate or review photographs, video footage, and damage estimates in Economy Fire & Casualty Company‘s possession were minimally sufficient to show that Economy Fire & Casualty Company did not have a reasonable basis for denying coverage and “knew or recklessly disregarded its lack of reasonable basis in denying the claim.” Id. Accordingly, Economy Fire & Casualty Company’s motion to dismiss Hudson’s bad faith claim was denied. Id. at 4. While claims involving a dispute as to the value of a claimed loss generally do not rise to the level of bad faith conduct, an insurer is responsible for adequately investigating and analyzing the evidence in its possession when determining claim value. Hudson v. Economy Fire And Casualty Company .pdf Download PDF • 154KB Previous Next Contact

News What is Considered Adequate Inspection Of An Establishment? September 20, 2024 < Back Share to: When someone trips and falls and becomes injured due to some sort of “defect” in a store, have you ever thought about what constitutes an adequate inspection of that area and if the store actually did enough on their end to prevent the injury? How often must a store inspect an area to make sure it is clear to escape liability? Recently, in Sheva Arbit v. Costco Wholesale Corporation (Index No: 150925/19), the Supreme Court Appellate Division reversed an order from the Supreme Court in Richmond County, which had denied summary judgment. The plaintiff brought this action after she slipped and fell on food on the floor at the defendant’s store. Costco filed a motion for summary judgment to dismiss the complaint, but the Supreme Court of Richmond County denied the defendant’s motion. On appeal, the Supreme Court Appellate Division reversed the order. In a slip and fall case, the defendant moving for summary judgment has the burden of showing 1) they neither created the hazardous condition and 2) they did not have actual or constructive notice of the condition and a reasonable time to correct or warn about its existence. To meet its burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time of the fall. In this case, the incident occurred at approximately 4:00 p.m. The defendant submitted evidence through its daily inspection log that the area in question was last cleaned between 2:47 p.m. and 3:40 p.m., and at that time, no hazardous condition was found. The Costco employee testified that if any hazardous condition was observed, it would have been immediately cleaned. The court ruled that this inspection was sufficient to negate actual or constructive notice on behalf of the defendant. The Supreme Court of Richmond County should have granted the defendant’s motion for summary judgment. Arbit v. Costco Wholesale Corporation .pdf Download PDF • 736KB Previous Next Corey Stein Corey Stein Associate CStein@wcmlaw.com Contact

News Eastern District of Pennsylvania Grants Casualty Insurer’s Motion for Summary Judgment, Finding No Duty to Indemnify (PA) January 25, 2019 < Back Share to: In Myers v. GEICO Casualty Insurance Co.., the Eastern District of Pennsylvania Court granted Summary Judgment in favor of a casualty insurance company, holding that it acted properly because the driver of the vehicle was not an insured under its policy. In brief, Chapman and Bond had attended an event together and after entering the event venue, Chapman asked for the keys to Bond’s vehicle because she needed to retrieve something. Upon arriving to the vehicle, Chapman noticed a parking spot closer to the event venue and proceeded to move Bond’s car to the closer spot without obtaining permission from Bond. While moving the vehicle, Chapman was involved in a collision with Myers. Jasmine Tucker, Bond’s girlfriend, was the named insured on the GEICO Policy, while Bond was listed as an additional driver. Chapman was not named under the Policy in any capacity. Myers sued Chapman, Tucker and Bond alleging negligence. GEICO did not defend Chapman, determining that she was not covered under the Policy because she operated the vehicle without permission. In determining whether Chapman was an insured under the policy, the Court looked to the terms of the Policy. The Policy stated the insurer would “pay damages which an insured becomes legally obligated to pay” because of injury or damages from the use or ownership of an “owned auto.” Under the policy, an “insured” included “any . . . person using the auto with your permission.” The omnibus clause of an automobile insurance policy designated an insured as “any person using the insured vehicle with the permission of the owner, the permission necessary to elevate the user to the status of an additional insured may be express or implied.” The court determined that implied permission could be established through a relationship or conduct surrounding the incident that demonstrated both parties acquiesced. In finding that Chapman was not an insured under the policy, the Court considered the lack of express consent and the fact that Chapman had never driven Bond’s car previously. The Court rejected Chapman’s argument that Bond’s conduct of giving Chapman the keys amounted to consent. This opinion demonstrates that it is possible for individuals not named on an automobile insurance policy to be deemed “insured” if there is consent to operate the vehicle, whether express or implied. However, in order to establish implied consent, the court will look to all the factors surrounding the incident to determine the presence of mutual acquiescence. Thanks to Rachel Thompson for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Interesting Spin in Pennsylvania Blender Case January 10, 2013 < Back Share to: In Pennsylvania, there is no statutory framework for Pennsylvania judges to determine general jurisdiction, so of interest was a recent case by Judge New of the Philadelphia Court of Common Pleas. In Derringer v. Conair, the Court found that a Pennsylvania trial court lacked personal jurisdiction over a Delaware corporation headquartered in Connecticut. Sandra Derringer, a New Jersey plaintiff, was injured while using a Conair Smart Stick blender. She brought two actions against Conair, one in Pennsylvania and one in New Jersey. Judge New dismissed the Pennsylvania action holding that Derringer failed to show that Conair purposefully distributed it’s products in Pennsylvania. He noted that the incident occurred in New Jersey, so there was no personal jurisdiction, and furthermore, the court had no general jurisdiction because there was no demonstrable evidence of continuous and systematic contacts between Conair’s business activities and Pennsylvania. Although Derringer demonstrated that stores in Pennsylvania sell Conair’s products, without proof of relationships between Conair and third-party Pennsylvania retailers, this evidence was insufficient to prove that Conair purposefully distributed the products into the “stream of commerce”. Based on the lack of statutory guidance and limited case precedent, this case could prove useful when considering the issue of corporate jurisdiction. In adjudicating Derringer, Judge New looked to U.S. Supreme Court case law, specifically Goodyear Dunlop Tires Operations v. Brown, which held that merely putting products into the stream of commerce is insufficient to establish general jurisdiction. Non-resident corporations are only subject to general jurisdiction in circumstances where the corporations’ association with the state is so “continuous and systematic as to render them essentially home in the state.” Moving forward it appears that more Pennsylvania judges will start the fact-sensitive jurisdiction inquiry from this position. Thanks to Remy Cahn for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com .   Previous Next Contact

News Passageway to Port O Potty Protected Under New York Labor Law (NY) March 25, 2013 < Back Share to: In Alfano v. LC Main, LLC, plaintiff slipped and fell on ice in front of an outdoor portable toilet while working at a construction site. Plaintiff alleged violations of New York Labor Law §§ 200, 240 and 241(6), predicated on 12 NYCRR §23-1.7(d). Since all parties agreed that the area where plaintiff fell was on ground level, the court dismissed the Labor Law § 240 cause of action (“fall from height”). The court would not dismiss the Labor Law §241(6) cause of action because though the portable toilet was in a common area of construction, to access it, the workers had to walk through a path of fenced in materials demarcated on one side by dumpsters and on the other side by stockpiles of construction materials. As such, to get to the portable toilets, plaintiff had to walk through a “passageway or walkway” as contemplated by 12 NYCRR §23-1.7(d). Labor Law cases are extremely fact specific. If there is any remote possibility that an action can fit into a Labor Law category, courts will typically find a way to do so. As such, it is important to analyze labor law applicability--or lack thereof--early on, to appropriately defend your case. For more information about this post, contact cfuchs@wcmlaw.com . Previous Next Contact