News Missouri Court Affirms Arbitration Award For Damages For STI Contracted In Vehicle June 17, 2022 < Back Share to: In M.O. v. Geico General Insurance Company and Government Employees Insurance Company, a Missouri appellate court affirmed the confirmation of a large arbitration award stemming from a claim by a plaintiff that she sustained damages when she contracted HPV while having unprotected sex with her partner in his vehicle. Plaintiff submitted a settlement offer to her partner’s automobile insurer GEICO, asserting that its insured negligently infected her in his automobile, and that the GEICO policy provided coverage for her injuries. GEICO denied coverage and rejected her settlement offer. Plaintiff and the insured subsequently agreed to arbitrate plaintiff’s claims and an arbitrator found that the insured negligently infected plaintiff and awarded her $5.2 million in damages. Plaintiff filed an action to confirm the award while GEICO moved to intervene. The trial court confirmed the award and GEICO appealed asserting, among other things, that it was not given a meaningful opportunity to defend its interests or move to vacate the arbitration award. The Missouri Court of Appels, Western District, affirmed the trial court’s decision and found that GEICO had an opportunity to defend this matter during the arbitration and had no right to re-litigate the issues once the arbitration award was affirmed. GEICO also filed a declaratory judgment action in which it asserts that plaintiff’s damages have no nexus to the “ownership, maintenance, or use” of the vehicle, and that her injuries were caused by an intervening cause, namely her own failure to have protected sex. A decision regarding the coverage issues is pending. While the M.O. v. GEICO decision was procedural in nature, the case raises an interesting coverage issue that will be decided by a Missouri federal and could have a potential impact on automobile coverage in other states. WCM will monitor the coverage developments and provide an update in the future. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Wedding Venue Brings Federal Action Against Governor Cuomo Over 50 Person Limit (NY) September 4, 2020 < Back Share to: In an attempt to limit the transmission of COVID-19, Governor Cuomo issued a mandate limiting the amount of people allowed at a social or recreational gathering to no more than fifty (50) people. In response to this Order, on August 28, 2020, New York wedding venues field a federal class action lawsuit against Governor Cuomo and other state officials. In Bill & Ted’s Riviera, Inc., plaintiffs allege that Governor Cuomo’s Order violates the equal protection clause of the Fourteenth Amendment. The Plaintiffs argue that while the mandate is neutral on its face, it is applied in unequal ways. Specifically, it is alleged that Governor Cuomo makes exceptions for restaurants, which are allowed to serve patrons up to 50% their regular occupancy limit, while the 50-person cap is strictly applied for weddings. It is further alleged that Governor Cuomo has enacted this 50-person restriction despite the fact that “there is no material difference between a wedding and regular dinner service to justify disparate treatment.” Plaintiffs seek, inter alia, an injunction restraining defendants from enforcing the 50-person limit and a declaration that the 50-person limit is unconstitutional on its face and as applied to the Plaintiffs. This is not the first instance where a government official has been sued over COVID-19 restrictions. In March, Pennsylvania business owners filed an emergency petition against Tom Wolf over his Executive Order mandating the closure of all non-essential businesses. The Pennsylvania Supreme Court rejected plaintiff’s constitutional challenge and upheld Governor Wolf’s Order. In deciding these issues, the courts will need to balance the interest of public safety with the interests of the business. Only time will tell how courts will decide these constitutional challenges. In the meantime, it is likely more lawsuits will be commenced over other various government orders related to COVID. We will continue to keep you updated as events progress. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News PA Appeals Court Holds that Damages for Dragonetti Violations Must be Proven – Not Presumed July 6, 2016 < Back Share to: Pennsylvania statute 42 Pa.C.S.A. § 8351 provides for a cause of action, also known as a Dragonetti action, allowing the defendant in a lawsuit to file suit against a plaintiff for abuse of civil proceedings when litigation is filed frivolously. On June 24, 2016, the Pennsylvania Superior Court issued an opinion clarifying the issue of damages for a Dragonetti violation in Miller v. St. Luke's University Health Network. In Miller, the original lawsuit stemmed from the arrest and conviction of one of St. Luke’s nurses, Charles Cullen (“Cullen”), who admitted to killing patients while acting in his capacity as a nurse for St. Luke’s. The families of two patients that were allegedly killed by Cullen sued St. Luke’s for wrongful death. Ultimately, the two lawsuits were dismissed on summary judgment. Thereafter, St. Luke’s filed a Dragonetti action against the two families of the patients, alleging both abuse of process and civil conspiracy. St. Luke’s, however, voluntarily dismissed this Dragonetti action after two years of litigation. Following the voluntary dismissal of St. Luke’s Dragonetti action against the two families, the two families turned around and filed their own Dragonetti action against St. Luke’s, alleging that it did not have probable cause to file its Dragonetti action against the two families and that it was filed for an improper purpose. On July 1, 2014, a Lehigh County Court of Common Pleas jury found that St. Luke’s did not have probable cause to bring the Dragonetti action against the two patients’ families. The jury, however, while finding St. Luke’s violated 42 Pa.C.S.A. § 8351, did not award any damages to the two families. Both St. Luke’s and the families appealed, giving rise to the Pennsylvania Superior Court’s June 24, 2016 opinion. On appeal, the families argued that if a violation of 42 Pa.C.S.A. § 8351 is found, then damages should be presumed otherwise a finding of such a violation would amount to just a “paper judgment.” Conversely, St. Luke’s argued that 42 Pa.C.S.A. § 8351 requires a plaintiff to prove both liability and damages separately. Moreover, St. Luke’s argued that while § 8353 states that a plaintiff is entitled to damages, § 8354 places the burden on the plaintiff to prove that she actually suffered damages. Ultimately, the Pennsylvania Superior Court decided in favor of St. Luke’s, ruling that in a Dragonetti action, damages must be proven – not presumed. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Non-Parties Cannot Intervene In Insurance Company’s Declaratory Judgment Action August 19, 2022 < Back Share to: In County Hall Insurance Company, Inc. v. Mountain View Transportation, LLC, the M.D.P.A ruled that non-parties who had a personal injury claim against an insured individual cannot intervene in the insurance’s company’s declaratory judgment action that it filed against the same insured. The underlying state court suit stemmed from a motor vehicle accident in which a number of occupants were seriously injured. Following this accident, County Hall, Mountain View’s Insurance provider, filed a declaratory judgment action against Mountain View and John Humes, arguing it was not obligated to provide coverage under the policy because John Humes was not a scheduled driver of Mountain View and any punitive damages awarded are not recoverable under the policy. When Mountain View and Humes failed to file an answer, County Hall requested default judgment be entered against them. Around the same time, individuals who were allegedly involved in the underlying motor vehicle accident filed a motion to intervene, arguing that they had a claim to the property at the center of insurance company’s declaratory judgment, and thus they should have the ability to protect their interests. The Court denied the non-parties attempt to get involved in County Hall’s declaratory judgment against Mountain View. The Court ruled that under federal law, “strangers to an insurance contract cannot intervene as of right in a declaratory judgment action…to establish scope of coverage.” Although the non-parties claimed their economic interest in the applicability of the policy was sufficient to support their motion, the Court disagreed, stating the “mere economic interest in the outcome of litigation” is insufficient to the support the motion. In short, despite the outcome of County Hall’s declaratory judgment having a practical effect on the non-parties ability to recover in their personal injury suit, they have no right to participate in the action. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM to Co-Host October 12 Product Recall Webinar September 16, 2020 < Back Share to: Total Recall: An In-Depth Look At Issues That Arise With Product Recall Policies Bill Johnstone and Matthew Hagan of Johnstone Partners, https://johnstone-partners.com/, and Bob Cosgrove and Colleen Hayes of Wade Clark Mulcahy, LLP, https://www.wcmlaw.com/, are pleased to invite you to a product recall webinar on Monday, October 12, 2020 at 11 a.m. EST. This webinar will take an in-depth look and discuss, from both a legal and expert perspective, a variety of topical and complex issues that tend to arise in connection with product recall policies. Specifically, the webinar will address: Fashion Before Function in Wordings We will first venture into a comparative analysis of the Customer Loss Of Profit Endorsement and the Recall Liability Endorsement. We will delve into a discussion regarding the distinction of these two separate endorsements, as well as a discussion regarding their potential coverage for commonly claimed customer lost profits. Life in the Grey Area Second, we will address the ever-present question of what constitutes “property damage” under a product recall policy, especially if no harmful trigger language is included. We will also discuss the interplay between “property damage” coverage under a product recall policy and a commercial general liability policy -- given that CGL policies typically broadly define “property damage”. Loose Lips Sinks Ships Next, we will address how an insured advertises its product could potentially impact coverage when a claim is made under a product recall policy. Gordon Gekko’s Quality Assurance Programme Finally, no discussion in 2020 would be complete without some discussion on how COVID may potentially impact coverage. In this webinar, we will address the coverage implications if an insured’s quality control processes are impacted by the realities of COVID and no longer comport with underwriting’s understanding of these processes, at the time the policy was placed. If you have interest in attending this webinar, you can register at: https://zoom.us/meeting/register/tJMsfuCoqjsqGdbBEDfjy0LSwen2tSexs26W. You can also contact Bob at rcosgrove@wcmlaw.com for more information. The webinar is approved for CLE credits in NY and CE credits in North Carolina with Texas and California CE credit approval pending. Previous Next Contact

News Prior Arguments Between Students? Don’t Let Them Wrestle During Gym Class (NY) October 8, 2013 < Back Share to: In Carter v. Uniondale Union Free School District, middle student Alonzo Carter, fractured his arm when another student, Kevon Hennit slammed him to the ground during a wrestling match in gym class. Carter filed suit against the school district, claiming it was negligent in its supervision and control of the students. After depositions, the school district moved for summary judgment arguing that it had no prior notice of any incidents between the boys and that Carter had voluntarily assumed the risk of injury. Under New York law, in order to find that the school district breached its duty to provide adequate supervision in the context of injuries caused by the acts of fellow students, Carter had to demonstrate that the school had sufficiently specific knowledge or notice of the dangerous conduct that caused the injury, i.e., that Hennit’s acts could reasonably have been anticipated. In denying the motion, the court relied on testimony from sixth grade guidance counselor, Robert Rivas, and math teacher Leonard Florentino, who testified that there had been prior verbal and physical confrontations between the boys. Rivas further testified that Florentino advised him that Hennit had struck Carter several weeks earlier, following which Rivas held meetings with the boys and their parents wherein he advised the boys to stop bothering each other. Additionally, the court noted that Carter had filled out a separate Student Standard form prior to the accident wherein he complained that Hennit had threatened to put his hands on him. Based on these incidents, the court concluded that the school district had prior actual notice of similar conduct between the students and, as such, there was an issue of fact exists as to whether the school district reasonably could have known that the subject incident would occur. Finally, the court discounted the assumption of risk argument, finding that while wrestling is an inherently violent sport and Carter had been instructed not to reach out his arm while falling, it was unreasonable for the gym teacher to assume that all students would follow his instructions precisely. Even though the district contended that Carter voluntarily took part in the wresting match and picked Hennit as his partner, this was a required gym class and the school had sufficient notice that the students should not have been allowed to wrestle one another. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News A “Legal Obligation” to Pay Requires a Legal Action Against You (NJ) May 15, 2020 < Back Share to: The New Jersey Appellate Division, in the context of an insurance coverage dispute, recently held that where the insured sought reimbursement for payments made to its landlord for damage to property, coverage was not triggered because a legal obligation to pay cannot arise absent a legal judgment. In Churchill Corp. Svc, Inc. v. Rockhill Insurance Co., et al., the Appellate Division recently affirmed the lower court’s grant of Rockhill Ins. Co.’s motion for summary judgement that the insurance policy issued to Plaintiff provided no coverage for the reimbursement sought. The payment at issue was close to $80,000, made to the Plaintiff-Insured’s landlord for property damage caused by a fire in an empty unit. Rockhill initiated a claim investigation, and while it was neither speedy nor entirely conclusive, it did seem that the likely cause of the fire was a cleaning company that may have accidentally engaged a stove top knob igniting cardboard boxes left on the stove by movers. The landlord applied pressure to the insured for the significant repair costs necessitated by the fire, advising Plaintiff that it had a legal obligation to pay, regardless of whether its insurer would cover the claim. Plaintiff, ultimately relented to that pressure, and made the payment. Subsequently Rockhill declined coverage, finding that it could not amount to a covered “legal obligation” where the insured was never even sued. On appeal, Plaintiff argued that the lower court should have considered Rockhill’s duty to reasonably investigate claims and to settle covered claims, arguing its actions with respect to both amounted to a breach of fiduciary duty. The Court, however, affirmed the lower court’s decision. In so doing, the Appellate Division affirmed that an insured’s legal obligation to pay another party cannot arise out of those parties’ interpretation of contractual obligations, but must be a part of a judicially rendered decision, following suit. The stark reminder to insureds is, of course, to wary of settling potentially covered disputes on their own. Thanks to Vivian Turetsky for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Overpowering Food Odors Not Pollution Under CGL Policy August 4, 2010 < Back Share to: In Barney Greengrass Inc. v. Lumberman's Mutual Casualty Co., 09 Civ. 7697 (S.D.N.Y. 2010), the insured -- a well-known Manhattan deli celebrated for its sturgeon -- was sued by its landlord for claims by a resident that “overpowering food odors” emanating from the deli caused his apartment to be uninhabitable. The deli tendered the claim to its insurer who then disclaimed on the grounds of the pollution exclusion. The federal court ruled that the “pollution” exclusion does not apply to restaurant odors because a reasonable insured would not understand the exclusion to cover the natural byproduct of its business for which it is celebrated. The court pointed to a Zagat survey of the restaurant that stated: “The smells alone are worth the price of admission.” http://cityroom.blogs.nytimes.com/2010/08/02/in-many-ways-judge-says-insurers-argument-stinks/ http://pdf.wcmlaw.com/pdf/Greengrass.pdf Thanks to Mendel Simon for his contribution to this post. Previous Next Contact

News At Least the City is Still Responsible for Fire Hydrants! July 16, 2012 < Back Share to: In Burwell v City of New York, the plaintiff was allegedly injured when her car hit the protruding base of a fire hydrant as she drove over a sidewalk while attempting to enter the parking lot of a commercial premises. Plaintiff sued the property owners, tenant and the City of New York alleging that defendants negligently maintained the curb, sidewalk, and hydrant in violation of Administrative Code of the City of New York §§ 7-210 and 19-152. Specifically, plaintiff alleged that defendants negligently permitted the curb of the sidewalk to deteriorate to such an extent that it provided no barrier between the sidewalk flagstone and the roadway, and that they permitted the broken hydrant to obstruct the normal flow of traffic into and out of the parking lot. The property owners and tenant moved for summary judgment arguing that (1) the alleged deterioration of the curb was not a proximate cause of the accident; and (2) they had no duty to maintain or repair the hydrant. The lower court denied the motion, but the Second Department reversed and dismissed the case as against the property owners and tenant. The Second Department affirmed the denial of the City’s summary judgment motion on the basis that there may have been notice of the defective hydrant by virtue of a notation in a Big Apple Pothole and Sidewalk Protection Corporation Map. This case is one of those rare instances where the City still faced liability while the adjacent landowners got out. We note, however, that the Big Apple Pothole and Sidewalk Protection Corporation has stopped producing their maps, and so notice against the City is harder for a plaintiff to prove in more recent sidewalk accident cases. http://www.nycourts.gov/reporter/3dseries/2012/2012_05489.htm   Previous Next Contact

News PA Appellate Court Clarifies Collateral Review Concerning In Camera Review of Disputed Discovery (PA) July 9, 2021 < Back Share to: On June 25, 2021, in Fisher v. Erie Ins. Exchange, the Superior Court clarified when a party had an immediately appealable right, pursuant to Pa.R.A.P. 313, concerning the forced production of discovery materials for which a party asserts a privilege that the court denies. Typically, for an order to be considered a collateral order and therefore immediately appealable under Pa.R.A.P. 313, it must meet three separate prongs: (1) it is collateral to the main cause of action since it may be analyzed without analyzing the central issues of the case; (2) it implicates important rights too important to be denied review; and (3) such important rights will be lost if review is postponed. Here, in Fisher, the dispute centered around attorney-client privilege and production of documents for in camera review – but not to the opposing party - in which Erie asserted said privilege. Specifically, after a discovery dispute, Erie asserted privilege and withheld production of documents, while Fisher filed a motion to compel said production. After a hearing, the trial Court required Erie to produce the documents for in camera review. This appeal followed. The only issue on appeal was the third prong as to whether the discovery order was a collateral order and therefore immediately appealable, i.e., where an important right will be lost if review is postponed. The critical question was whether production to a court for in camera review would also equate to the loss of an important right – here, the attorney-client privilege. Specifically, case law is clear that the production of documents, for which a party asserts attorney client privilege, and is compelled to produce, satisfies prong three. However, if the production is only required to be produced to a court for an in camera review, the question became: does this still qualify as a “lost” right? The Fisher Court answered in the negative. The trial court held, and the appellate court agreed, that Erie’s objections were boilerplate objections and the trial court was well within its discretion to review the documents to assess whether the asserted privilege was valid. Ultimately, the Superior Court determined that an in camera review does not satisfy the third prong of the collateral order test, as the adverse party will not have the contested documents. Moreover, if the trial court ordered the production of the disputed documents to an adverse party, Erie would then have had the opportunity to appeal said order. This case stands for the propositions that specific objections should be asserted and a court reviewing documents itself does not result in an irrevocable “lose” of rights. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NJ Appellate Court Holds Transmission of STD Not a Covered Claim February 7, 2011 < Back Share to: < ![CDATA[NJ Appellate Court Holds Transmission of STD Not a Covered Claim]]> Previous Next Contact

News Summary Judgment Granted in Favor of Plaintiff in Trip and Fall on Sidewalk Upon Determine that There was a Substantial Defect of the Sidewalk July 12, 2024 < Back Share to: Polibio Abreu tripped and fell on a sidewalk adjacent to 129 Duane Condominium. His left foot contacted an uneven sidewalk flag, over which he tripped and fell, causing injuries that required acervical fusion. At the time that he fell, Abreu testified that he was looking straight ahead, his hands were empty, and his cell phone was in his pocket. He also alleged that the sidewalk was dimly lit at that time. The property manager of 129 Duane testified that 129 Duane was aware of the condition of the sidewalk prior to the accident, and that he had notified the Board of 129 Duane of the uneven flag. He further testified that the adjoining property had redone their sidewalk and he thought that the condition needed to be repaired by the adjoining property, 200 Church Street Associates LLC. The court noted that as a general matter, 129 Duane has a “non-delegable duty to maintain its property in a reasonably safe condition, taking into account the foreseeability of injury to others.” The court found that it was undisputed that the sidewalk flag was in front of 129 Duane’s property. Even still, 200 Church’s potential responsibility for the sidewalk maintenance did not create an issue of fact regarding 129 Duane’s failure to maintain the sidewalk. Abreu produced a photograph with a ruler showing the height differential to be more than one-half inch deep. The court deemed this differential to be a “substantial defect” as defined by the Administrative Code. A “substantial defect,” is not so easily defined. Therefore, to have this example is helpful for our analysis when assessing the liability in other sidewalk cases. Although 129 Duane argued that the defect was “open and obvious,” the court found that the Defendant was unable to demonstrate that the defect was open and obvious in a manner that should preclude liability. The photographs provided were taken during the day and Abreu testified that the lighting was dim when he tripped. The court found that even if they did find the defect to be open and obvious, it would only relieve the 129 Duane of its duty to warn of the defect and not preclude liability for allowing the defect in the first place. This case stands for the proposition that when making an argument that a defect is open and obvious, we must also establish the property owner was not liable for the defect in the first place. Because even though the defect may be open and obvious, if a property owner knew of the defect and failed to remedy it, they still may be liable. Abreu v. Brutus Assoc .pdf Download PDF • 728KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact