News Quality-Quantity Analysis Transfers Plaintiffs’ Lawsuit To New Venue (PA) December 4, 2020 < Back Share to: The Court of Common Pleas of Monroe County recently denied a plaintiff’s attempt to venue a lawsuit in Monroe County, Pennsylvania. In Baughman v Hershey, the plaintiff’s accident took place in Daupin County, Pennsylvania and the plaintiff attempted to argue that sufficient contacts were made in Monroe County, Pennsylvania as well. The incident involved a slip and fall which took place at Hershey Park Stadium in Dauphin County, Pennsylvania. However, the plaintiffs filed their lawsuit in Monroe County, where they purchased the tickets. Hershey objected to venue in Monroe County and filed preliminary objections pursuant to Pa.R.C.P. 1028(a)(1) and Pa.R.C.P. 2179(a). In response to the preliminary objections, the plaintiffs sought leave to take discovery on the issue of venue which was granted by the court. After discovery was completed, the court stated that “in determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis.” The court went on to find that, while Hershey had sufficient quality of contacts in Monroe County, it did not have a sufficient quantity of contacts for venue purposes. The court specified that Hershey’s total sales in Monroe County were a mere 0.24% in 2019. While Pennsylvania courts have found that venue was proper when a defendant’s sales in a county were 1-2% of total business, they also previously refused to confer venue when sales ranges from 0.08% to 0.17% of total sales. Overall, the court found that the percentage of income that Hershey generated from all contacts with the Monroe County market was minimal and that the necessary quantity of acts is not present to render Monroe County a proper venue based upon the provision in Pa.R.C.P 2179(a)(2). The plaintiffs also attempted to give weight to the fact that the ticket was purchased through Ticketmaster and that the ticket was the source of the plaintiffs’ status as business visitors at Hershey’s premises, thereby qualifying under Pa.R.C.P. 2179(a)(4) as a transaction from which the cause of action arose. Although the court agreed that, since the ticket was purchased in Monroe County, the contract may be considered to have been accepted in that venue, it ultimately concluded that the issue did not surround a contract dispute and the place of purchase carried little weight. Thanks to Zhanna Dubinksy for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News The Benefit Of The Auto Insurance Bargain (PA) July 8, 2022 < Back Share to: On July 6, 2022, in an appeal from the Western District of Pennsylvania, the Third Circuit upheld the district court's grant of summary judgment in favor auto insurer State Farm’s motion for summary judgment. The case, Tina Bubonovich v. State Farm Mutual Auto Ins. Co., was initiated by the plaintiff when, after recovering the available limits of the other driver’s liability coverage, as well as her own underinsured motorist coverage (“UIM”), she was precluded from stacking her son’s UIM coverage. Hence, the question before the court was whether the plaintiff can stack her son’s UIM policy on top of her own recovery when stacking was selected in one policy (the plaintiff’s) but waived in the other (the son’s). The relevant facts are as follows: (1) plaintiff was driving her car at the time of the accident; (2) plaintiff was residing with her son at the time of the accident; (3) plaintiff’s son is the named insured under his own State Farm policy; (4) the son’s policy does not include the plaintiff’s vehicle as an insured vehicle; and (5) the plaintiff’s son executed a non-stacking waiver as to his policy. The Third Circuit rearticulated the holding in Craley v. State Farm Fire & Casualty Co., 895 A.2d 530 (Pa. 2006), which stated it is the concerned policy and its exclusions that are applicable to the legal issues, nothing else. Accordingly, although the plaintiff in Bubonovich argued that she elected stacking and should receive the benefit of that bargain, the Third Circuit acknowledged the bargain did not include the ability to draw on other policies of insurance under which the named insured waived stacking. Thanks to Richard Dunne for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News NJ Court Finds Death Certificate Inadmissible Hearsay Without Medical Examiner Testimony June 13, 2018 < Back Share to: In Quail v. Shop-Rite Supermarkets, Inc., plaintiff alleged his wife died as a result of blunt trauma from a cash register station that fell on her leg. After the accident, plaintiff's wife told Shop-Rite she was fine, not in need of medical attention. Four days later, however, she was transported to the hospital where she died. The following day, a Certificate of Death was issued. It stated the cause of death was complications of blunt trauma to the right leg. Plaintiff sought to forego calling the Examiner who issued the Certificate to the witness stand. Instead, plaintiff sought to rely on the Certificate only. The Appellate Division upheld the trial court’s dismissal of plaintiff’s case on Summary Judgment because plaintiff had no medical expert on the issue of medical causation. The Court held that the Certificate, by itself, was inadmissible hearsay despite Rules of Evidence expressly deeming the Certificate to be admissible. The Court reasoned that despite these Rules, the Certificate, by itself, was inadmissible without the Examiner being called to the witness stand to explain his findings. This case serves as a reminder to attorneys to ensure that evidence is admitted properly at trial, and if not, motions to dismiss should be filed. Thanks to Michael Noblett for his contribution to this post. Previous Next Contact

News Peer-to-Peer Carsharing and Insurance Implications (PA) July 22, 2022 < Back Share to: A new law was introduced in the House Appropriations Committee as an amendment to Senate Bill 1222 and officially became law on July 11th. The amendment outlines the coverage requirements for companies engaging in peer-to-peer carsharing, mandating an additional layer of insurance so injured third parties won’t be left uninsured if a car owner’s policy includes exceptions for livery, or business activities. Peer to peer carsharing is the process of renting vehicles from other people rather than traditional car rental companies. It has been coined “AirBnB for cars” and provides many benefits including lower prices and more variety in vehicle choices. The fledgling industry is not without complications, primarily on the insurance and regulatory fronts. Chief among the insurance issues is that some carsharing networks’ fine print says a renter’s personal auto policy would be the primary source for paying claims, even though most personal policies typically exclude renting or driving car-sharing vehicles from coverage. Some attorneys have noted the amendment is similar in substance to another proposed bill on the topic – Senate Bill 548. The bill, introduced in April 2021, was aimed at putting carshare companies on a more equal footing with car rental companies and to ensure additional protections for owners, drivers and third parties now that carsharing is on the rise. From the defense and carrier standpoint, the new law does not invalidate exclusions that are already in place, and it requires carsharing companies to provide coverage that would otherwise be out of bounds under the owner’s policy. However, litigators on the plaintiffs side have raised questions about the measure’s effectiveness in protecting the parties. Some have expressed concerns that because consumers’ personal auto insurance may contain an exclusion, they may be forced to rent these cars using the companies’ minimum insurance policies, which likely won’t provide adequate coverage in the event of an accident. One thing lawyers on both sides of the issue can agree on is that these new disputes will be headed to the courts. Thanks to Sydney Kockler for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY Appellate Division Finds Single Step Riser Not Inherently Dangerous December 2, 2009 < Back Share to: In Bretts v. Lincoln Plaza Associates, the plaintiff injured herself in Johnny’s Pizza when she allegedly tripped and fell over a single-step riser separating the workers' area and the patrons' area at premises owned by the defendant Lincoln Plaza Associates, Inc., and leased to the defendant Johnny's Pizza. Johnny’s moved for summary judgment, which the lower court denied. On appeal, the Second Department determined that Johnny’s had made the requisite showing for summary judgment. There was a gold-color nosing on the step, and the pattern of the tiles on top of the step was different from the pattern of the tiles below the step. There was also a sign stating "Watch Your Step" adjacent to the step. Though, plaintiff testified she did not see the step or the sign before the accident, the Second Department held that the step was “open and obvious” and “not inherently dangerous.” Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08771.htm Previous Next Contact

News Preventing Prejudice With Severance February 3, 2016 < Back Share to: Oftentimes when an insured sues its insurer for breach of contract, it asserts a claim for bad faith. Insurers should consider severing the claims to avoid prejudice. In Custom Designs & Mfg. Co. Inc. v. Atlantic States Ins. Co., the plaintiff’s property was destroyed in a fire. Atlantic States Ins. Co. insured the property. Following the fire, the plaintiff made a claim under its insurance policy for the loss. Upon investigation of the loss, Atlantic calculated the plaintiff’s business interruption losses at approximately $1.2 million, which it paid the plaintiff. The plaintiff disputed this total and a neutral appraiser was retained to calculate the loss. Ultimately, the appraiser concluded the plaintiff’s losses totaled approximately $2.1 million, almost $900,000 more than Atlantic had calculated. The plaintiff filed a petition with the court seeking an award for the calculated difference as well as prejudgment interest. Atlantic paid the difference but refused to pay the prejudgment interest. Consequently, the plaintiff filed a complaint against Atlantic for breach of contract and bad faith. In its complaint, the plaintiff contended that Atlantic breached the insurance contract, when it deliberately refused to provide coverage for the plaintiff’s claim. In respect of its bad faith claim, the plaintiff averred Atlantic failed to properly investigate the plaintiff’s claims, failed to make payment of the prejudgment interest, breached its fiduciary duty, and caused the plaintiff severe financial harm. In response to the plaintiff’s complaint, Atlantic filed a motion seeking a protective order and to sever the plaintiff’s bad faith claims. Atlantic argued allowing the plaintiff to conduct discovery, in respect of its bad faith claim, would cause severe prejudice to Atlantic. Ultimately, the court denied Atlantic’s request for a protective order, concluding Atlantic failed to show the scope of the plaintiff’s requested discovery contained information protected by attorney-client privilege or work product. Conversely, the court granted Atlantic’s request to sever the plaintiff’s bad faith claim, holding Atlantic could be prejudiced by trying the plaintiff’s breach of contract claim simultaneously with its bad faith claim, as the bad faith claim was not relevant to the breach of contract claim, and the bad faith claim could prejudice and confuse a jury in reaching a verdict. However, regardless of this holding, the court refused to stay discovery for the bad faith claim. Thus, as this case illustrates, if a breach of contract and a bad faith claim are both asserted against an insurer, a court may grant an insurer’s motion to sever the bad faith claim, as prior courts have held trying breach of contract claims simultaneously with bad faith claims could result in unnecessary prejudice to an insurer. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News Email Can Seal a Settlement (NY) July 29, 2013 < Back Share to: Although most of us aspire to be "men [and women] of our word," New York requires more than a handshake or oral agreement to constitute a binding settlement. CPLR 2104 insists on "a writing subscribed by [a party] or his attorney." In this age of emails, text messages, posts and tweats, the vexing question is what constitutes such a writing. In Forcelli v. Gelco Corporation, the defendants filed a motion for summary judgment in this motor vehicle accident case. While the motion was pending, the parties participated in an unsuccessful mediation but continued their negotiations thereafter. After the usual back and forth, the third party administrator for the defendants wrote a email to plaintiff's counsel confirming that her settlement offer of $230,000 had been accepted, conditioned on the tender of the customary settlement documents. She also ended her correspondence, "Thanks Brenda Greene." As bad luck would have it, the motion judge issued a favorable decision granting the defendants' summary judgment motion about 3 weeks later but before the plaintiff sent the requested settlement documents to the adjuster. It appears that the defense attorney had not been advised of the settlement and rejected the papers once received because "no settlement had been consummated..." A dispute then arose about whether an actual enforceable settlement had been reached. Adopting a common sense approach and embracing email as a ubiquitous method of communication, the Appellate Division, Second Department held that the email confirmation meet New York's statutory requirement that a settlement be confirmed in "a writing subscribed by [a party] or his attorney." The third party administrator was deemed an agent of the defendants' insurer. As important, the adjuster's type written insertion of the simple phrase, "Thanks Brenda Greene," satisfied the requirement that the settlement be subscribed in writing. Of note, the court hinted that an automatic return address may not be sufficient but that is for another day. Emails are here to stay and it is encouraging to observe the court's embrace of newer methods of doing business. The lesson for both sides of the bar is simple: insist that your adversaries add their type written names at the end of an email if you want a binding agreement. If you have any questions about this post, please email Paul at pclark@wcmlaw.com .       Previous Next Contact

News Pundits Debate Mandatory Gun Liability Insurance February 7, 2013 < Back Share to: Over the past few weeks, media outlets such as Fox News, the Huffington Post, and the Economist have weighed in on the prospect of mandatory liability insurance for gun owners, similar to the current requirement for motor vehicle insurance in most states. The CDC estimates that in 2000, approximately $822 million in damages were caused by gunshot injuries. So the argument in support of insurance alleges that there is a significant risk of potential injuries, and thus ensuing claims and lawsuits. Insurers would be able to assess this risk and pass the cost for such claims onto the owners of the firearms, as opposed to the injured parties of health care system. As Jonathan Diamond suggested in his editorial in the Huffington Post, "(r)equiring owners of firearms to carry, say, $1 million in liability insurance ... would offer recourse to those affected by gun violence, and it would raise the bar of responsibility for gun owners." Opponents claim this is simply a tactic to increase the cost of gun ownership in order to serve as a deterrent. Individual states have already begun to propose their own legislation, such as California and Illinois cited in the above-referenced articles. Thanks to Brian Gibbons for his contribution to this post.   Previous Next Contact

News The Soft Market Blues Continue. October 21, 2009 < Back Share to: The last few years have not been kind to insurers and the market has remained soft. A new study suggests that these soft market blues will continue into at least 2010 as excess capacity and recessionary economic conditions continue. If you would like more information regarding this post, please email rcosgrove@wcmlaw.com . http://www.businessinsurance.com/article/20091021/NEWS/910219997 Previous Next Contact

News New Atmosphere for Ongoing-Storm Rule (NJ) May 7, 2020 < Back Share to: Recently, in Pareja v. Princeton International Properties, the New Jersey Appellate Court analyzed whether the ongoing-storm rule applies in New Jersey. One winter day at 7:50 a.m., the plaintiff, Angel Alberto Pareja (“Parejca”), was walking from his car to the defendant, Princeton International Properties’ (“Princeton”) property (“Property”) when he slipped and fell on black ice after stepping onto the Property’s driveway apron. At the time of the accident, it was not snowing, nor did Pareja observe any ice on the roadway. Nevertheless, as it was thirty-two degrees and drizzling sleet, Pareja wore slip-resistant shoes. Moreover, one day prior to the accident, the National Weather Service issued an advisory predicting an inch of snow and sleet accumulations and trace amounts of ice for the time period between 1:00 a.m. and 10:00 a.m. the next day, i.e., the day of the accident. In addition, the National Weather Service warned that untreated surfaces might become slippery due to the precipitation. Although Princeton traditionally retained ice and snow removal services for the Property, no such services occurred the day of the accident. As such, there had been no snow or ice pre-treatment or removal before Pareja’s fall. Ultimately, Princeton filed a motion for summary judgment in the trial court asserting the on-going storm rule applied. In agreement, the trial court granted Princeton’s motion and held the on-going storm rule operated to preclude Princeton’s liability for the Accident. Significantly, the trial court determined that Princeton, as a commercial landowner, had no duty to keep the premises free and clear of snow and ice until after a reasonable amount of time passed following the cessation of the storm. In response, the plaintiff appealed. In pertinent part, Pareja argued the ongoing-storm rule was inapplicable. On appeal, the Court first considered the facts and circumstances surrounding the accident. Specifically, based on the record, the Court presumed that, at the time of the Accident, pedestrians were using the public sidewalks to go in and out of the defendant’s property, as the property consisted of a combination of business offices and apartments. Moreover, the Court reasonably inferred the defendant knew about the weather advisory providing that untreated surfaces might become slippery. The Court next analyzed the rationale of the ongoing-storm rule. In doing so, the Court concluded the ongoing-storm rule arbitrarily relieves commercial landowners from any obligation to ensure safety at their property while it is snowing. Specifically, the Court determined the ongoing-storm rule fails to deter tortious behavior and prevent accidents because it ignores situations where it is reasonable for a commercial landowner to remove or reduce foreseeable/known snow or ice hazards. Accordingly, based on the facts and circumstances of the accident, and the basis of the ongoing-storm rule, the Court held Princeton had a duty to take reasonable steps to ensure the Property and the public walkway abutting the Property was reasonably safe from snow or ice on the day of the accident. The Court reasoned that a commercial landowner’s duty of removing or reducing the foreseeable harm associated with snow and ice is not fulfilled by always waiting to act until after a storm ends. By extension, the Court held a commercial landowner may be liable if, after actual or constructive notice, it fails to act reasonably and prudently under the circumstances to remove or reduce the foreseeable hazard caused by snow and ice. In reversing the trial court’s decision, however, the Court stressed that its holding does not impose absolute liability for every slip and fall on snow and ice that occurs during a continuous storm, nor does it require landowners to take unreasonable precautionary measures or immediately clear snow and ice falling during an active storm. Rather, the duty of ordinary care, which was applicable in the instant matter, requires commercial landowners to act in a reasonably prudent manner in all circumstances. Finally, the Court held the question of whether a landowner acted reasonably was a question for the jury to decide. In sum, while this New Jersey Appellate Court decision precludes landowners from relying on the ongoing-storm rule to justify inaction, it stresses the importance of the reasonableness standard. And perhaps just as important, the reasonableness of a commercial landlord's acts and omissions during a storm are left for a jury to decide. It will be interesting to see how the standard of reasonableness develops in this context as defense of future cases of this kind will be reliant on specific facts. Thanks to Lauren Berenbaum for this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Improper Service: No Harm, No Foul (PA) January 25, 2019 < Back Share to: A Pennsylvania Court determined that a plaintiff’s good faith attempts to effectuate service tolled the statute of limitations. In Mandarano v Plink, the Pennsylvania Court of Common Pleas in Lackawanna County heard an interesting case regarding a failure to comply with the Pennsylvania service statute. In Mandarano, the Plaintiff commenced a premises-liability action one day before the statute of limitations expired by serving the President of the Defendant company via a detective agency. Under Pa.R.C.P. 400(a), original service in Pennsylvania is only to be effectuated by a Sheriff. As a result, the Defendant filed preliminary objections seeking that the complaint be dismissed for failure to comply with Pa.R.C.P. 400(a). The Defendant argued the statute of limitations is tolled only if the plaintiff makes a good faith effort to effectuate service of process on the opposing party, which he argued did not occur. Plaintiff countered, stating that Pa.R.C.P. 126 enables a court to “disregard any error or defect of procedure which does not affect the substantial rights of the parties.” In analyzing the situation, the Court first relayed the standard for evaluating untimely service. To warrant the dismissal of an action based upon the untimely service of original process, the record must reflect that either (1) plaintiff demonstrated an intent to stall the judicial machinery by delaying the proper service of process, or (2) the defendant was prejudiced by plaintiff’s failure to comply with the procedural rules governing service. The type of prejudice required to warrant a dismissal based upon improper service of process involves a “substantial diminution of the defendant’s ability to present factual information in the event of trial which has been brought about by plaintiff’s delay” in the proper service of original process. The Court found no evidence of any prejudice nor that the plaintiff intentionally acted in a manner that was designed to stall the judicial process. Moreover, since the Defendant’s officer was furnished with timely notice of the filing of this suit, the Court found that the purpose of the statute of limitations was satisfied. This case poses an interesting situation, where the specific requirements of a statute were not met, but where the Plaintiff’s action complied with the spirit and purpose of the statute. Most states contain statutes and regulations allowing Courts to disregard any defect of procedure that does not prejudice another party. The Defendant could not provide any evidence that he was prejudiced, and the Plaintiff was allowed to proceed in his lawsuit. There was no-harm, and, thus, the Court found no-foul. Thanks to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News A Connecticut Auto Dealer in Pennsylvania’s Court: Personal Jurisdiction over the Internet (PA) March 12, 2021 < Back Share to: Does the Commonwealth of Pennsylvania have personal jurisdiction over an auto dealer in Connecticut? This was the question recently examined by the Lackawanna County Court of Common Pleas in D&S Auto Sales v. Commercial Sales & Marketing. The Defendant, a Ford dealership located in Mystic, Connecticut filed a preliminary objection to a claim of faulty service and repair of a vehicle filed in Lackawanna County, PA arguing that there can be no showing of personal jurisdiction over their business with only one location, several sates away. The Plaintiff argued that the dealership, “advertises through national media outlets, including the internet, for the sale of its vehicles to Pennsylvania residents” and “shipped merchandise, including vehicles and parts, directly or indirectly into Pennsylvania.” Defendant responded that less than 1% of their business involved Pennsylvania residents and that “[s]uch figures fall substantially below the continuous and systematic contacts required” t5o establish jurisdiction. The Court looked to Pennsylvania’s “sliding scale” test of jurisdiction that is used to examine the degree and type of interactivity of a website to determine whether there are sufficient contacts with Pennsylvania to establish jurisdiction. The Court found that “Valente's website, at a minimum, falls within the ‘middle ground’ where a user can exchange information with the host computer. It is also markedly interactive.” The Court pointed to the ability to schedule maintenance, order parts, request test drives to demonstrate interactivity and also pointed to a page on their website that specifically explained the process for out of state purchasers. The Court held that personal jurisdiction was proper under these circumstances. This case demonstrates that in the age of the internet, even one location businesses could be subject to suit several states away. A business knowingly doing business with customers outside of the state they physically operate in can open themselves up to the risk of suit across the country, even if this business is an insignificant percentage of their sales. Thanks to Ryan Geib for his contribution to this post. Should you have any questions, please do not hesitate to contact Tom Bracken. Previous Next Contact