News Does PA Allow for a Wrongful Birth Claim? It Does Now. December 28, 2012 < Back Share to: In 1988, Pennsylvania passed 42 Pa.C.S. 8305 that clarified that Pennsylvania does not allow for a cause of action based on a claim that "but for an act or omission of the defendant, the person would not have been conceived or, once conceived, would or should have been aborted." This law has remained intact until the past 30 days. In the case of Sernovitz v. Dershaw, shortly after the Sernovitzes' son was born, he was diagnosed with Riley-Day syndrome, a serious health defect. The Sernovitzes claimed that the failure of their ob-gyn to reveal that Mrs. Sernovitz was a carrier of the genetic mutation that causes Riley-Day resulted in their failure to conduct additional testing -- testing which (because of the positive results) would have resulted in their abortion of their son. On its face, this cause of action was barred by 8305, and so the trial court dismissed the action. An appeal was lodged and the plaintiffs argued that the 8305 was unconstitutional because the bill contained more than one subject (the bill's focus was post-trial criminal procedure) and thus violated the single-subject rule of the Pennsylvania constitution. The Superior Court agreed and reinstated the plaintiffs' complaint. So, for the moment (and an appeal to the Supreme Court or legislative action is likely), you can file a wrongful birth claim in Pennsylvania. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News In NY Unrelated Pre-Existing Medical Condition Relevant to Plaintiff's Loss of Enjoyment Claim October 12, 2009 < Back Share to: In Amoroso v City of New York, the defendant sought to compel the plaintiff to provide authorizations for the release of medical records pertaining to a preexisting kidney, cardiac and diabetic condition. The trial court denied the motion, but the Appellate Division reversed, holding that the nature and severity of the plaintiff's prior medical condition may have an impact upon the amount of damages, if any, recoverable for a claim of loss of enjoyment of life. Accordingly, the records regarding the plaintiff’s preexisting medical condition were material and necessary to the defense. Thanks to Bill Kirrane for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07212.htm Previous Next Contact

News Defense vs. Indemnity: The Four Corners Rule (PA) September 20, 2019 < Back Share to: On August 9, 2019, a panel of the U.S. Court of Appeals for the Third Circuit rejected an aluminum parts manufacture's argument that courts should look at the facts pleaded in a complaint when considering whether carriers should indemnify them. Product manufacturers looking to recover insurance coverage for disputes stemming from allegedly defective product must base their claims solely on the plain language of the policies, and underlying product liability complaint, and may not look to outside facts. Judge Porter stated that courts should follow the "four-corners" rule consistently applied by Pennsylvania state courts, which holds that when a carrier is sued, its duty to defend is triggered by the factual allegations made in the underlying complaint. A duty to indemnify, however, is not necessarily limited to the factual allegations of the underlying complaint. Rather, there must be a determination that the insurer's policy actually covers a claimed incident. The strict applicability of the four corners rules here hampers product manufacturers that are seeking to recover insurance coverage for disputes stemming from allegedly defective products since they can only base their claims on the plain language of the policies and the underlying products liability complaint. Thus, the duty to defend remains broader than the duty to indemnify. From a practical standpoint, if a carrier plans to defend a lawsuit, but maintain that it has no duty to indemnify its insured, a declaratory judgment action should be filed sooner than later. Otherwise, that coverage defense is unpersuasive. Thanks to James Papadakis for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News New Jersey's High Court Rules On The Interplay Between The Discovery Rule and The Product Liability Act's Presumption Of Adequacy Of FDA Approved Warnings February 27, 2012 < Back Share to: In Kendall v. Hoffman-LaRoche, Inc., et. al., New Jersey’s High Court found that plaintiff’s action for personal injuries arising out of her use of the prescription drug Accutane was timely, despite the fact that her first appearance of inflammatory bowel disease (the injury alleged) and her receipt of an FDA approved presumed adequate warning was more than 2 years (the relevant statute of limitations period pursuant to N.J.S.A. 2A:14-2) prior to her commencement of the action. Plaintiff was first prescribed Accutane in 1997. She had outbreaks of inflammatory bowel disease starting in 1999. Plaintiff was prescribed Accutane again in 1998, 2000 and 2003. Over that time period, the warnings associated with Accutane and inflammatory bowel disease became stronger, and plaintiff received said strengthened warnings and signed a consent form acknowledging as such in 2003. As a result, defendant contended that by 2003, plaintiff should have been aware of the possibility of a causal link, given that she had received increased warning. Plaintiff explained, however, that the warnings she had been given never specifically mentioned inflammatory bowel disease or ulcerative colitis. Moreover, critical in this case was the fact that plaintiff had been prescribed the drug for a significant period of time prior to her receipt of any warnings regarding a causal link between the drug and inflammatory bowel disease. In reaching its conclusion, New Jersey’s High Court considered New Jersey’s "discovery rule" and "whether the facts presented would alert a reasonable person exercising ordinary diligence that he or she was injured due to the fault of another." In addition, the High Court considered the effect of New Jersey’s Product Liability Act, if any, on the timeliness of plaintiff’s filing, and found that although the PLA provided a "presumption of adequacy" for the warnings (since the product had been approved by the FDA), such a presumption could be overcome if the plaintiff proved that a reasonable person in her circumstances would not have been aware, within the prescribed time period, that she had been injured by the defendant’s product. The Supreme Court held that because plaintiff, in this case and under these circumstances, proved that she reasonably failed to appreciate the cause of her injury by the requisite time, her filing of the complaint was timely. http://www.judiciary.state.nj.us/opinions/supreme/A7310KendallvHoffmanLaRoche.pdf Previous Next Contact

News Super Storm Sandy not a Hurricane November 16, 2012 < Back Share to: New York Governor Andrew Cuomo announced that hurricane deductibles in homeowners’ policies were not triggered because there were no hurricane force winds at the time that Sandy hit New York. In addition, the New York Department of Financial Services has imposed a 30-day moratorium on cancellation of homeowners’ policies in “storm-stricken areas.” The Department also indicated it will be monitoring how insurers will be handling such claims. These pronouncements, however, do not alter policy language, so it will be interesting to see whether there is any impact on insurer's coverage determinations. Thanks to Mendel Simon for his contribution to this post. Previous Next Contact

News Ironclad Arbitration Clause Shields Insurer (NY) October 25, 2019 < Back Share to: The First Department recently gave New York insurers reason to be confident in the arbitration clauses in their policies and the strength of arbitration determinations resulting therefrom in Matter of McKenna, Long & Aldridge, LLP v Ironshore Specialty Ins. Co. In this appeal the insurer, Ironshore was co-defendants with a number of entities collectively known as Eidos. The Southern District of New York held Eidos was bound by the arbitration contained in the insurance policy issued by Ironshore as an intended third-party beneficiary. Eidos’ appeal sought to reverse that finding and, alternatively, to reverse the arbitration award, arguing it was issued in manifest disregard of the law. The First Department unanimously rejected both arguments. First, the appellate court held the dispute was clearly arbitrable, ruling that the arbitration clause referring to “any controversy, claim or dispute arising in connection with [the insurance] policy [issued by Ironshore,” reflects “such a broad grant of power to the arbitrators as to evidence the parties’ clear intent to arbitrate issues of arbitrability.” Eidos also tried to argue the arbitration panel knew of a governing legal principle that was well defined, explicit, and clearly applicable and yet refused to apply it or ignored it altogether. The First Department ruled Eidos could not make this showing, because even though the panel considered the applicability of Delaware law, they distinguished the proposed governing precedent—meaning, that the arbitration panel may have made a mistake of law, but they did not manifestly disregard it. This case gives fresh, and clear support for the arbitration clause used here and reinforces the extremely high standard required to disturb an arbitration award. Indeed, even an express mistake of law in and of itself would not be enough to reverse the ruling. Insurers should feel confident in their arbitration language if it resembles the language in this case, and should feel confident that the result reached in arbitration will stand. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Second Circuit to Decide Whether ‘Grammarian’s Argument’ Governs IP Exclusion March 26, 2020 < Back Share to: In a prior Of Interest post, we highlighted a Southern District of New York opinion in which the court held a policy’s IP exclusion barred coverage for an underlying lawsuit in which Hartford’s insured Spandex House was sued for copyright infringement. The parties have now filed their appellate brief in the Second Circuit, narrowing the issues before the Appellate Court. The exclusion at issue bars coverage for personal and advertising injury arising out of “any actual or alleged infringement or violation of any intellectual property right,” including copyright and trademark, and “any injury or damage alleged in any claim or suit that also alleges an infringement or violation of any intellectual property right.” In this way, the IP Exclusion excludes from coverage cases that include any allegation of an IP violation. The District Court found that this exclusion was unambiguous and applicable. Notably, in between the District Court’s decision and this appeal, the Second Circuit also upheld the unambiguous terms of the IP Exclusion in Lepore v. Hartford Fire Ins. Co., 2020 WL 598539 (2d Cir. Feb. 7, 2020). In light of the fact that the exclusion is likely unambiguous, Spandex House spends much of their brief arguing that the exception to the IP Exclusion applies. In so doing, they rely on what Hartford classifies as a “grammarian’s argument” that distorts the plain text of the exclusion. The Advertising Exception at issue provides that the IP Exclusion does not apply if the suit alleging the violation is limited to “Infringement, in your ‘advertisement’ or on ‘your web site’, of: (a) Copyright….” Spandex House argues that the that “the clause ‘in your advertisement or on your website’” can be “removed from the sentence without changing its basic meaning.” In other words, they argue that the exception applies when the suit alleging the violation is limited to “infringement” and not “infringement in your advertisement.” As Hartford points out, such a reading would give the exception an unlimited meaning, and prevent the IP Exclusion from applying where the suit contained all types of copyright and trademark infringement claims, so long as all of the claims were in fact were for “infringement.” Hartford’s brief keenly points out a prominent example of where Spandex House’s reading would have an absurd effect if implemented. The 26th Amendment provides that “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Under Spandex House’s logic, the clause “who are eighteen years of age or older” is a so-called “nonrestrictive relative clause” which can be removed without changing the clause’s meaning. Of course, had this been the interpretation of the 26th Amendment, toddlers would have the right to vote alongside their grandparents. Given their recent decision in Lepore, the Second Circuit is very likely to find that the IP Exclusion is unambiguous. We are hopeful that the Court will not also distort the plain language of an exception to find coverage where the drafters plainly intended there be none. We will keep you apprised of the decision when it is handed down. Thanks to Douglas Giombarrese on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Decision Stinks for Sanitation Worker (NY) September 20, 2012 < Back Share to: In Wagner v. Wody, the plaintiff was injured during his work as a sanitation worker when taking a 30 to 40 gallon garbage bag from the curb in front of the defendants’ home to the sanitation truck. When the plaintiff was turning to throw the bag into the back of the truck, the bag made contact with his leg, and a piece of glass approximately one inch thick and approximately three inches long cut into the plaintiff. Inside of the bag was mail addressed to the defendants, as well as other pieces of broken glass. The defendants moved for summary judgment and the trial court granted the motion. The Second Appellate Department affirmed, holding that “a small piece of glass constitutes ordinary garbage or a common item of trash, the disposal of which is a hazard inherent in the duty of a sanitation worker.” The Court also noted that, although there are certain similar situations where a question of negligence might exist -- such as where heavy construction debris is placed into an ordinary trash receptacle, the small piece of glass was clearly distinguishable. The Court found that plaintiff was responsible for the manner in which he chose to dispose of the trash, throwin this large plastic bag into the sanitation truck. A worker who "confronts the ordinary and obvious hazards of his [or her] employment, and has at his [or her] disposal the time . . . to enable him [or her] to proceed safely . . . may not hold others responsible if he [or she] elects to perform his [or her] job so incautiously as to injure himself [or herself]." Thanks to Jung Lee for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com . Previous Next Contact

News A Significant Injury? No, Just a Transient Rub of Life (PA) March 10, 2016 < Back Share to: The Pennsylvania Superior Court recently upheld a Montgomery Court of Common Pleas jury decision to award no damages in a car accident case. In Gold v. Rosen, No. 3303 EDA 2014, 2016 Pa. Super. 44, (Pa. Super. Feb. 19, 2016, Stevens, J.), the plaintiff was rear-ended by defendant Terri Rosen. She claims to have suffered headaches, back pain and neck pain as a result of the accident. At trial, the parties stipulated that Rosen was negligent and that her negligence caused plaintiff to suffer a neck sprain/strain. However, the defense disputed the extent of Gold’s neck injuries and defense experts testified that her injuries were primarily the result of prior accidents. The jury subsequently found that although Rosen was negligent, Gold was not entitled to a monetary award. Gold filed a motion to overturn the verdict but the trial court denied that motion. Gold then appealed. The Superior Court recognized that not all injuries are serious enough to warrant compensation, even though there may be some pain. The Court noted that Gold had a long history of cervical and lumbar injuries. Thus in circumstances where it was reasonable for the jury to believe that the plaintiff did not suffer any pain or that a preexisting injury was the sole cause of the alleged pain, the nonmonetary verdict should not be disturbed. This is known as the “transient rub of life” doctrine. This is case is worthwhile as a reminder that in cases where the plaintiff has significant pre-existing injuries, a strong presentation of those injuries can significantly reduce the potential award. Thanks to Remy Cahn for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Happy Holidays from Your Friends at Wade Clark Mulcahy! December 22, 2021 < Back Share to: 2021 has presented us all with new challenges. Some anticipated, and some, well, of the Omicron variety. WCM continues to grow, in large part due to the loyalty and collaboration of our friends and clients in the United States and abroad. Please accept our Holiday E-Card, offering our gratitude and best wishes for a better 2022. A Happy and Healthy Holiday Season to all! Previous Next Contact

News Denial Of Summary Judgment Reversed In Trip & Fall Due To “Insignificant” Discrepancy In Height Defect (NY) January 14, 2022 < Back Share to: In Dingman v. Linchris Hotel Corp., NY Slip Op 00168 (2d Dept. 2022), a plaintiff sustained injury in a trip and fall in a hotel lobby undergoing construction where the lobby floor was being re-tiled. Some parts had new tile, while others had no tile at all, exposing the cement floor. Plaintiff tripped on the difference in elevation from the new tiles and the lobby floor, which the hotel manager testified was approximately ¼ inch in height difference. The hotel moved for summary judgment arguing the “defect” on the lobby floor was trivial. The trial judge denied summary judgment to the defendant and the Second Department overturned that decision thereby granting summary judgment to the hotel and dismissing the claim. “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury’ (Trincere v County of Suffolk, 90 NY2d at 978. There is no ‘minimal dimension test’ or per se rule that the condition must be of a certain height or depth in order to be actionable.” By submitting photographs and testimony from the construction workers, the Second Department reasoned that the small height difference between the newly tiled floor and the cement sub-flooring was “physically insignificant.” The Appellate Court took note that the physical defect and the surrounding circumstances did not increase the risk of a tripping hazard. Plaintiff could not establish any triable issues of fact in opposition to that argument, and the claims against the defendant were dismissed. The Court showed some clarity in affording property owners some relief for trivial defects on a premises liability claim. In the event of a reported personal injury involving a trip and fall, property owners/tenants would be prudent to take multiple photographs immediately upon learning of the accident. The photographs of the alleged defect should be taken, up close and preferably with a measurements to establish the height differential of the alleged defect. Photographs should also be taken of the surrounding scene of the accident to establish that the defect did not increase the risk of a trip and fall. Taking down statements and photographs of the scene of the accident can also prove vital in defending against liability if and when a claim heads to court. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News PA’s Appellate Division: “Household” Is Ambiguous as a Matter of Insurance Contract Interpretation. June 18, 2012 < Back Share to: In the case of Miller, et al. v. Daniel Poole, et al., Pennsylvania’s Superior Court was faced with the question of whether a homeowner’s policy provided coverage to Poole, a young man who accidentally set his grandmother’s house on fire and thereby damaged the neighbor’s (i.e. Miller’s) house. The homeowner’s carrier argued (and the trial court agreed) that no coverage was owed because Poole did not move into his grandmother’s house until after her death. Thus the carrier argued that Poole was not a “resident” of the grandmother’s “household” for purposes of coverage. The Appellate Division has now reversed the trial court. Relying on case law from other jurisdictions, the Appellate Division held that the phrase “household” was ambiguous as: “It plausibly could mean either that Helen Poole’s relatives qualified as “insureds” (1) if they lived in the same house with her, or (2) if they lived on the premises insured by her under the Wall Rose policy.” Wall Rose is now required to defend and indemnity Poole. Who would have thought that the word “household” was ambiguous? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact