News NY Sports Clubs: Careful, Or New Year's Resolutions May End Up Costing You December 27, 2012 < Back Share to: In Levy v. Town Sports International, Inc., the First Department demonstrated just how narrowly the doctrine of assumption of risk is applied to bar a negligence claim. The assumption of risk doctrine bars a participant injured while engaged in a sport or recreational activity from bringing suit because the participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. The doctrine does not apply, however, to unassumed, concealed, or unreasonably increased risks. In Levy, the plaintiff, who recently had surgery and suffered from osteoporosis, was directed by her personal trainer to perform jump repetitions on an exercise ball. After one too many jumps, she fell and was injured. The defendants were granted summary judgment on the basis that plaintiff assumed the risk of injured. The First Department reversed, finding that an issue of fact as to whether the trainer knew of the recent surgery and osteoporosis, and whether he increased the risk of injury to plaintiff by having her perform an advanced number of repetitions. The court also found that the trainer may have increased the risk of injury by not properly positioning himself to guard her against a fall. Thanks to Gabe Darwick for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com .   Previous Next Contact

News If I Only Had a Hammer: NJ Supreme Court Rules on Key Construction Defect Coverage Issue August 5, 2016 < Back Share to: Constructive defect litigation has bedeviled the insurance industry for years, particularly in New Jersey, California, and Florida. These claims are complex and generate years of expensive litigation. While many insurers have abandoned the construction/contractor’s market or excluded these risks with “Tract Homes” or Condominium exclusions, others find themselves mired in disputes over the scope of coverage available to contractors involved in construction defect litigation. In New Jersey, one unresolved question was whether the standard 1986 ISO form CGL policy covered a developer/general contractor against claims of consequential damage caused by the faulty workmanship of a sub-contractor. Do such claims satisfy the requirement that “property damage” must be caused by an “occurrence”? If so, are those claims barred by Exclusion l. as “property damage” to “your work”? In Cypress Point Condominium Association, Inc. v. Adria Towers, L.L.C., et al., the New Jersey Supreme Court used a three step process in resolving these coverage issues. First, it held that the consequential damages caused by a subcontractor’s shoddy work qualified as “property damage.” Further, the Supreme Court found the water damage to common elements and individual units caused by the subcontractor’s faulty workmanship was an occurrence, because “the consequential harm caused by negligent work is an ‘accident.’” Second, the Supreme Court observed the “Your Work” exclusion likely eliminated coverage for the ensuing water damage. However, on the final step of analysis, the “Your Work” exclusion was nullified by the exception for damage arising out of work performed “on your behalf by a subcontractor.” There are two main takeaways from Cypress Point. First, a standard CGL policy provides coverage to a general contractor for claims of consequential damage caused by a subcontractor. The insurer for a general contractor can no longer disclaim coverage on the basis that the entire project is the GC’s work and therefore excluded from coverage. Second, the Supreme Court invited insurers to exclude this specific risk – participants in the Excess & Surplus Lines market take note – by eliminating the subcontractor exception from the “Your Work” exclusion or adding a breach of contract exclusion. If you have an questions or comments, please email Paul at pclark@wcmlaw.com .   Previous Next Contact

News Look Out Below! Do Things Fall Out of the Sky for No Reason? August 19, 2010 < Back Share to: In Montalvo v. Mumpus Restorations, Inc., a building porter was hit in the head by a bucket of roofing adhesive that fell from the roof as he was leaving the building. He sued the contractor that had repaired the roof several weeks earlier. The contractor moved for summary judgment arguing that its employees did not leave a bucket on the roof. The plaintiff opposed the motion by arguing "res ipsa loquitur." That is, ordinarily things do not fall from roofs unless someone was negligent. To establish a claim under res ipsa, however, a plaintiff must prove that the accident was “caused by an instrumentality within the exclusive control of the defendant.” The court held that there was an issue of fact as to whether access to the roof had been in exclusive control of the roofer (i.e., that no one else had been permitted up there since they left). Accordingly, the court denied the roofer's motion for summary judgment and will let a jury decide if things just fall out of the sky (or off a roof) for no reason. Thanks to Cheryl Fuchs for her contribution to this post. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D27589.pdf Previous Next Contact

News Dennis Wade to Speak at New York State Bar Insurance Coverage Update 2019 on May 17, 2019 May 1, 2019 < Back Share to: Dennis’s topic is: The Representation of Insurance Companies and Insureds Where Misrepresentation or Fraud Is Suspected in the Insurance Application or in the Presentment of a Claim If you would like a copy of Dennis’s written submission The Many-Faceted Examination Under Oath, please call or email Suzi Cherichetti. Previous Next Contact

News Ignorance of the Tort Claims Act Will Not Excuse Late Notice (NJ) April 20, 2016 < Back Share to: In a recent decision, the New Jersey Appellate Court clarified that the requirements of the New Jersey Torts Claims Act, which governs claims against a public entity, cannot be relaxed due to a plaintiff’s lack of awareness of the statute. In Friday v. New Jersey Transit, the plaintiff was allegedly injured when she fell on ice near the Brick Train Station. Even though the plaintiff knew she was injured due to the fault of New Jersey Transit on the date that the accident occurred, she failed to file a timely notice of claim within ninety (90) days as required under the statute. One year later, the plaintiff moved for leave to file a notice of late claim, stating that she was not aware of the requirement to file a notice of claim, and was focused on medical treatment for her torn rotator cuff. The Appellate Court confirmed the trial court’s denial of plaintiff’s motion for leave, noting that plaintiff did not establish “exceptional circumstances” which would warrant the late filing of a notice of claim. Thanks to Heather Aquino for her contribution to this post.     Previous Next Contact

News Twenty Months of Tincher: Redevelopment in PA Products Law Slow but Defendant-Friendly So Far July 15, 2016 < Back Share to: This coming week marks twentieth month since the Pennsylvania Supreme Court overhauled its product liability jurisprudence in Tincher v. Omega Flex, Inc. In Tincher, the Pennsylvania Supreme Court overturned nearly forty years of product liability law by putting the determination of whether a product was unreasonably dangerous in the jury’s hands, but also allowing the consideration of negligence concepts within what was, to date, a strict liability standard. It also provided two tests to use to evaluate whether a product was defective, which were the “consumer expectations” test and the “risk-utility” test. Tincher raised as many questions as it provided answers, and to date, the Pennsylvania Supreme Court has provided no additional guidance on the allowable “negligence concepts” or the relevant tests. However, lower courts, particularly trial courts, to address these issues on the merits have often read Tincher in ways favorable to product manufacturers, particularly in the following cases. High v Pennsy Supply Inc. – In High, the Court of Common Pleas of Dauphin County applied Tincher’s Risk-Utility test to find that no evidence had been presented to allow a jury to find liquid concrete in its natural state could be defective based on liquid concrete’s natural properties, and granted summary judgment for defendants.Sliker v Nat Feeding Systems Inc. – In Silker, the Court of Common Pleas of Clarion County allowed the consideration of industry standards in an evaluation of a manufacturer’s reasonableness under the Risk-Utility test, where it would have been excluded pre-TincherAmato v. Bell & Gossett et. al.– In Amato, the Superior Court held that Tincher applied to a failure to warn case; however, the court nevertheless held that defendant was not entitled to a jury instruction on whether a product was unreasonably dangerous when defendant had argued it was not dangerous. Despite the lack of guidance to date, it is probable that the Pennsylvania Supreme Court will issue further guidance on Tincher in the near future. The Court granted an appeal from Amato and another case, Vinciguerra v. Bayer CropScience, Inc. this past February on the issue of whether the defendants were entitled to a jury instruction as to whether their products were “unreasonably dangerous.” We expect this opinion to offer further clarification on the application of Tincher’s negligence concepts once it is issued, and we will offer an analysis of this opinion at that time. Thanks to Konrad Krebs for his contribution to this post. Previous Next Contact

News Clarity on Role of Non-Treating Provider in Worker's Compensation Matter (PA) January 7, 2022 < Back Share to: On December 22, 2021 in the case captioned Keystone Rx LLC v. Bureau of Workers' Compensation, the Pennsylvania Supreme Court ruled that non-treating providers, such as pharmacies and imaging centers, may not have a role in the process of non-utilization review. This case arose when Claimant Thomas Shaw, an employee of the Roman Catholic Archdiocese of Philadelphia, was injured and subsequently prescribed medications by his physician. Keystone Rx LLC dispensed the drugs and billed the employer’s insurer, Compservices/AmeriHealth Casualty Services. The insurer filed a utilization review request. The utilization review organization determined that all medications dispensed after Nov. 2, 2016 were unreasonable and unnecessary because they were unrelated to Shaw’s workplace knee injury. The unanimous opinion says the Workers Compensation Act makes it clear that providers have no property interest in their claims until after utilization review determines the goods or service are reasonable and necessary. Therefore, the Court established that a non-treating provider, such as a pharmacy, does not need to be given either notice or an opportunity to defend in utilization review (UR) proceedings. The Pennsylvania Chamber of Business and Industry. Insurance Federation of Pennsylvania, American Property Casualty Insurance Association and the National Association of Mutual Insurance Companies were among groups that filed amicus briefs after Compservices appealed to the Supreme Court. Thanks to Alex DiMeo for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Plaintiff's Claim Dismissed After Counsel Ignores Court Order (NY) December 5, 2018 < Back Share to: In Soto v Chelsea W26, LLC (2018 NY Slip Op 08170), the Appellate Division sent a message that cursory excuses for disregarding Court Orders or opposing motions will not be tolerated. The plaintiff, Missael Soto, filed a lawsuit alleging violations of Labor Law §§ 240(1), 241(6), and 200, and common-law negligence. In April 2015, the defendants served an Answer and initial discovery demands. In November 2015, a preliminary conference was held in Queens County Supreme Court, with an Order issued, directing the plaintiff to serve a Bill of Particulars within 30 days. The plaintiff did not comply, and six months later, in May 2016, two separate Court Orders required the plaintiff to serve a Bill of Particulars and responses to the initial discovery demands on the defendants. In June 2016, the defendants moved pursuant to CPLR 3126(3) to strike the complaint based upon the plaintiff's failure to produce a Bill of Particulars and responses to the combined discovery demands. The plaintiff did not file any opposition to this motion. As such, by Order entered November 7, 2016, the Supreme Court granted the defendants' unopposed motion pursuant to CPLR 3126(3) to strike the Complaint. Then, the plaintiff moved pursuant to CPLR 5015(a)(1) to vacate the Order striking the Complaint, arguing that a law office failure resulted in the per diem attorney hired to cover the motion appearance, failing to appear in Court. But the Supreme Court denied this motion, resulting in the plaintiff appealing this decision to the Appellate Division, Second Department. The Appellate Division affirmed the denial. To vacate an order, the plaintiff must 1) demonstrate both a reasonable excuse for the default and 2) a potentially meritorious opposition to the motion. The Appellate Division took issue with the first prong of this standard, the reasonable excuse. Regardless of whether the firm's per diem attorney appeared on the return date, the evidence submitted by the plaintiff in support of his motion demonstrates that the plaintiff's attorney made a conscious decision to send a per diem attorney on the motion's return date to attempt to resolve the motion by stipulation rather than file and serve any papers in opposition. Plaintiff's attorney’s decision not to oppose the motion constituted a strategy, not law office failure, and thus was not a reasonable excuse. The Appellate Division affirmed the Supreme Court’s denial of plaintiff’s motion to vacate the Order striking the Complaint. Thanks to George Parpas for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Don’t Judge A Book By Its Cover (NJ) February 22, 2019 < Back Share to: In Evanston Insurance Co. v. A&R Homes Development, LLC, et al., the New Jersey Superior Appellate Division held that a declarations page alone cannot create a reasonable expectation of coverage. Evanston Insurance issued a CGL policy to A&R Homes, a development company hired to construct an apartment building in Jersey City. The injured plaintiff in the underlying action was an employee of a subcontractor engaged by A&R. The Plaintiff was allegedly injured at the job site when he fell more than twenty feet. Evanston initially agreed to provide A&R a defense pursuant to a reservation of its rights. However, once Evanston confirmed that the Plaintiff was a subcontractor employee, it initiated the instant declaratory judgment action seeking a ruling of no coverage based on the policy’s Employer’s Liability Exclusion. On appeal, the Insured argued, inter alia, that the policy’s declarations page created a reasonable expectation of coverage for the Plaintiff’s injuries, which was sufficient to overcome any policy exclusions. Specifically, the Insured relied upon Lehroff v. Aetna, a 1994 App. Div. case that found UIM coverage based upon the policy declarations page, holding that “the average automobile policy holder” should not be held responsible to “undertake to attempt to analyze the entire policy in order to penetrate its layers of cross-referenced, qualified and re-qualified meanings.” Ultimately, the Evanston Court did not find the holding in Lehroff to be analogous to the Evanston CGL policy, noting also that the Evanston declarations page did specifically state that all coverage would be subject to the “following forms and endorsement.” Thus, this ruling is useful as it holds that prior case law regarding reasonable expectations of coverage in the UIM context are not always applicable to CGL policies. Thanks to Vivian Turetsky for her contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Pro-defense Damages Verdict Set Aside as a "shock one's sense of justice" (PA) April 5, 2017 < Back Share to: A Plaintiff who was denied pain and suffering damages in a 2015 jury verdict was recently granted a new trial on non-economic (pain and suffering) damages by the Pennsylvania Superior Court. In Zielke v. Mullen, the appellate court reversed a Delaware County Court of Common Pleas’ order denying Plaintiff’s post-trial motion for a new trial relating to her non-economic damages. The plaintiff suffered a fracture in her left foot when she fell while descending stairs at the defendants' home. Plaintiff’s injury required surgery and the removal of the fractured bone, followed by the use of a recuperative boot for several months after the surgery. The defendants had removed the handrail on the staircase in order to paint, and had neglected to reinstall the handrail before plaintiff and her husband attended a wedding reception at their home. The absence of a handrail contributed to the fall, and a jury determined that the defendants'negligence was a cause of plaintiff’s injuries. The jury awarded plaintiff approximately $13,000 in damages for past and future medical expenses, as well as lost earnings. However, the jury awarded zero damages for non-economic loss (pain and suffering, embarrassment/humiliation, loss of life’s pleasures, and disfigurement). Following the verdict, Plaintiff’s motion for additur, or in the alternative, a new trial solely on the issue of non-economic loss, and the trial court denied the motion. In reversing the trial court’s denial, the Superior Court of Pennsylvania determined that Plaintiff’s injuries were serious enough that they were “of the type that natural and normally cause pain and suffering.” The Superior Court determined that the jury verdict should be set aside because it “clearly appear[ed] from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff [and] is so contrary to the evidence as to ‘shock one’s sense of justice,’” citing Davis v. Mullen, 773 A.2d 764, 767 (Pa. 2001). This was certainly a frustrating decision for defendants and their attorneys, who appear to have done "too good" of a job defending the damages claimed against them. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Is a Facebook "Friend" Request Ethically Dishonest? September 5, 2012 < Back Share to: Social media may offer a treasure trove of information in personal injury litigation and its lure can be strong. However, there may be a wicked hook to contend with if an attorney goes fishing too far. A plaintiff’s attorney has filed an ethics complaint against two defense lawyers after damaging information was discovered on his client’s Facebook page. The trouble for the defense team began when the plaintiff upgraded his privacy settings on Facebook. A paralegal at the defense firm "friended" the plaintiff to obtain photos and a video of him wrestling. After settling the case, the plaintiff’s attorney cried foul claiming that the paralegal’s friend request was tantamount to improper contact with his client in violation of ethical rules. The ethical charges include failing to properly supervise a nonlawyer assistant, dishonesty and violations of ethics rules, and conduct prejudicial to the administration of justice. There will be a hearing this fall that should give some guidance on the issues raised. While New Jersey has not weighed in on the issue yet, other jurisdictions have found it to be unethical to "friend" someone under false pretenses and without proper disclosure. For more information, contact Denise Ricci at dricci@wcmlaw.com . Previous Next Contact

News PA Duty To Defend = Duty To Indemnify? In Some Situations, Yes. December 13, 2021 < Back Share to: On November 18, 2021, the U.S. Court of Appeals for the Third Circuit issued a non-precedential opinion in the case of Liberty Mutual Insurance Co v. Penn National Mutual Casualty arising out of an appeal filed by Penn National Mutual Insurance Company (“Penn National”) of an order directing Penn National to defend and indemnify an entity insured by Liberty Mutual Insurance Company (“Liberty Mutual”) as an additional insured. By way of brief background, the underlying action involves a wrongful death and survival suit brought against Cost Company (“Cost”), insured by Liberty Mutual, and Pittsburgh Flexicore Co. (“Flexicore”), insured by Penn National, for the death of Yamil Alexander Gonzalez allegedly caused by Cost’s and Flexicore’s inter alia, negligence, failure to maintain adequate safety measures during a construction project and failure to provide proper warnings or instructions. Cost and Flexicore entered a subcontract, which required, inter alia, Flexicore to obtain general liability insurance, name Cost as an additional insured and indemnify Cost “against any and all claims, causes of action, suits, losses, costs or damages, including attorneys’ fees, resulting from the acts, failure to act, omissions, negligence, or fault” of Flexicore, “whether or not said claim . . . is alleged to be caused in part by any act, omission, negligence, or fault” of Cost. Pursuant to the subcontract, Flexicore obtained a general liability policy from Penn National, which contained a Completed Operations endorsement providing additional insured coverage to any person(s)/organization(s) where required by a written contract to name such person(s)/organization(s) as an additional insured for the “products-completed operations hazard”, but only with respect to, bodily injury” caused by “your work” at the location/project designated in the subcontract and performed for that additional insured and included in the products-completed operations hazard. In response to the underlying action, Cost requested defense and indemnify from Penn National; however, Penn National disclaimed coverage as it determined (1) the Subcontract did “not clearly and unambiguously” establish Flexicore agreed to indemnify Cost for its own negligence and (2) any additional insured coverage owed to Cost terminated at the completion of Flexicore’s operations. As such, Liberty Mutual defended Cost and Penn National defended Flexicore. Ultimately, the underlying action settled and Liberty Mutual and Penn National indemnified their respective insureds. Following settlement, Liberty Mutual commenced the instant action claiming Cost was an additional insured under the Penn National policy and seeking reimbursement for the sums it paid to defend and indemnify Cost in the underlying action. The parties then moved for summary judgment. Examining the allegations in the complaint of the underlying action, the District Court granted Liberty Mutual’s motion holding Penn National had a duty to defend and indemnify Cost. Penn National’s appeal ensued. On appeal, the Third Circuit first analyzed whether Penn National had a duty to defend Cost. Applying long-standing Pennsylvania case law, the Court held Penn National’s duty to defend was triggered because Cost qualified as an additional insured under the Policy’s Completed Operations endorsement as (1) the subcontract named Cost as an additional insured; (2) the underlying action alleged the “bodily injury” was caused, at least in part, by Flexicore’s work; and (3) the Policy’s “products-completed operations hazard covered such work as the underlying action alleged Gonzalez’s death was caused, in part, by Flexicore’s failure to provide warnings, i.e., Flexicore’s “work” as defined by the Policy. The Third Circuit then analyzed whether Penn National had a duty to indemnify Cost. Beginning with the principle that a duty to indemnify analysis typically considers evidence beyond the four corners of the underlying tort claim, in cases where the underlying action settles, the Court held extrinsic evidence may not necessarily come into consideration. Specifically, the Court stressed that in cases where the underlying tort action settles and the necessary factfinding to aid in coverage determinations does not occur, insurers are only permitted to seek resolution of factual disputes that would not have been resolved even if the underlying action was tried. In other words, factual disputes that could have been addressed at trial (if the underlying action did not settle) cannot be resolved in coverage litigation. In such situations, the Court held the duty to indemnify is triggered where there is a duty to defend. In affirming the District Court’s holding, the Court held the underlying settlement made it impossible to determine the basis of Costs’ and Flexicore’s precise liability for coverage purposes as the underlying action involved multiple claims against multiple defendants, covered by multiple insurers – therefore, the underlying settlement made it impossible for the District Court to determine whether Flexicore was liable for its “work”. As such, the Court held Penn National’s duty to indemnify flowed from its duty to defend. This decision is interesting as it seems to adhere to the sentiment of Pennsylvania courts that insurers declining coverage do so at their own peril as one could argue this decision precludes an insurer – that improperly disclaims coverage – from litigating indemnity and coverage issues in cases where the underlying action settles. Either way, this decision amplifies the importance of addressing coverage issues head on to ensure such issues are properly preserved where necessary. For more information about this post please contact Lauren Berenbaum. Previous Next Contact