News Electrician's Fall Not Covered By New York's Labor Law April 21, 2009 < Back Share to: In Romeo v. Property Owner (USA) LLC, et al., plaintiff, an electrician, was injured when, while walking on a raised computer floor, he stepped on a floor tile that suddenly dislodged, causing his right foot to fall through the opening and strike the concrete sub-floor 18 inches below. Plaintiff sued the property owner and general contractor, alleging violations of Labor Law 200, 240(1), and 241(6). The Supreme Court, New York County granted the defendants' motion to dismiss. The Appellate Division, First Department found that plaintiff's injury did not involve an elevation-related hazard, as defined by 240(1). Plaintiff's 200 claim (common law negligence) was unsupported by evidence that the owner and general contractor either had notice of the tile condition or that they directly controlled and supervised the electrical work. Plaintiff testified that his work instructions came only from a supervisor who was also employed by the electrical subcontractor. As to the 241(6) claim, the First Department found that the Industrial Code 23-1.7(b)(1) (hazardous openings) provision relied upon by plaintiff was inapplicable. The opening in question was not of significant depth and size to warrant the protection of the provision. Plaintiff's reliance upon Industrial Code 23-1.7(e)(2) (work area debris and tripping hazards) was also held to be inapplicable because he was not injured as a result of tripping over debris, dirt, tools or materials. Ultimately, the First Department unanimously affirmed the lower court's ruling in favor of the defendant. Thanks to Robin Green for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_02848.htm Previous Next Contact

News Double Rear-End Collision Considered Two Separate Accidents (PA) November 13, 2019 < Back Share to: The Eastern District of Pennsylvania recently granted a motion for summary judgment finding that a motor vehicle accident involving two consecutive rear-end collisions, often called an "accordion collision," was considered two separate accidents for purposes of insurance coverage. The underlying case took place in the Philadelphia Court of Common Pleas. On October 29, 2016, Plaintiff Robin Busby (“Busby”) was a customer of Lyft’s rideshare service when her Lyft driver, Thomas Curtin, rear-ended the car in front of them on the Schuylkill Expressway. According to the Curtin’s vehicle data, approximately one second later his vehicle was rear-ended by a 2005 Dodge Grand Caravan driven by Gerald Crossley. Busby sued Curtin and Crossley in the Philadelphia Court of Common Pleas for her personal injury claims. Curtin’s Lyft policy was provided by Steadfast Insurance Company, and Busby’s own insurance, USAA, had UIM coverage of $200,000 per person which was involved. Busby settled her claims with defendants and the lawsuit was thereafter dismissed. The settlement is confidential, but it is undisputed that Steadfast tendered to Busby the full policy limits, which was one million dollars. Busby’s USAA policy tendered to Busby $200,000 under her UIM coverage, and Crossley’s insurer tendered to Busby the limits of Crossley’s liability coverage, which was $300,000 in liability coverage. Busby now sues Steadfast and USAA for breach of contract and bad faith and seeks an additional one million dollars in UIM coverage from Steadfast and an additional $200,000 in UIM coverage from USAA from what she terms as the “second accident involving the Crossley vehicle.” The Court ultimately had to determine whether Busby was involved in one or two motor vehicle accidents for the purposes of insurance coverage. The Court discussed the two competing approaches used by courts to determine the number of accidents for purposes of insurance coverage: the “cause” approach and the “effects” approach. Ultimately, the Court applied the “cause” approach, and found that there were two independent actors involved who caused two separate collisions, Curtin’s Lyft vehicle and Crossley’s Dodge Grand Caravan. The Court noted that although the time between the two collisions was only one second, Curtin’s Lyft vehicle had come to a complete stop after the first collision, and Busby was thrown forward in the second collision. The Court also highlighted the fact that Steadfast’s insurance policy defined an accident as “continuous or repeated exposure to the same conditions resulting in bodily injury or property damage.” The Court stated that Busby was not subject to continuous and repeated exposure to the same condition, and said that Steadfast’s policy does not fit the facts of this case. Thus, Busby’s motion for partial summary judgment finding that she was involved in two separate accidents was granted. The UIM exposure is therefore doubled. A frustrating decision for USAA and Steadfast. Thanks to Emily Finnegan for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Physical Distance and Adjoining Properties (PA) March 4, 2022 < Back Share to: On March 2, 2022, the Eastern District of Pennsylvania in Daisy Larcena Walker v. Foremost Insurance Company Grand Rapids, Michigan and Debra Elaine Tucker, granted Foremost Insurance Company Grand Rapids, Michigan (“Formeost”) and Debra Elaine Tucker’s (“Tucker”) motion for summary judgment in an insurance coverage dispute. By way of brief background, the plaintiff, Daisy Larcena Walker (“Walker”), owns a single-family home, which she rents out to tenants. Foremost issued a Dwelling Fire Three Policy Landlord to Walker. In October 2019, a branch from a tree located on Walker’s property fell on Walker’s property and the adjourning property. The owner of the neighboring property claimed the fallen tree branch caused damage to her property. Walker and the neighbor requested coverage and in response, Foremost disclaimed coverage. The neighbor was insured by State Farm Fire and Casualty Company (“State Farm”) – State Farm covered the majority of damages. Subsequently, the neighbor filed a lawsuit against Walker. This matter settled; however, Foremost declined to reimburse Walker for the settlement and costs of defense stating the policy did not provide coverage for the loss. State Farm then demanded subrogation form Walker for the monies paid by State Farm to resolve the neighbor’s claim. After seeking coverage from Foremost with respect to the State Farm action, Foremost agreed to defend Walker pursuant to a reservation of rights. Foremost filed a motion for summary judgment seeking a declaration of no coverage. Based on the policy language and the location where the damage occurred, the court granted Foremost’s motion declaring the policy did not provide coverage to Walker. Walker argued the policy covered the damage to the neighbor’s property since the policy term “your premises” is extended to include the neighboring property as it is “adjacent to” an “other structure”. The court disagreed. The court first held Walker failed to set forth evidence allowing a reasonable jury to find in Walker’s favor regarding the location of the fence. Second, the court held the location of the fence did not impact whether there was coverage because the fence did not constitute an “other structure” as defined by the policy. The court also held the tree did not constitute an “other structure” under the policy’s definition of “premises”. In addition, the court held the dwelling on the insured property is not “immediately adjoining” the area where the tree fell and caused damage. Specifically, the court relied on the plain language of the policy and the fact that ample land and a driveway intervened between the dwelling and the location where the damage occurred. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY Extends time to file 9/11 Claims September 25, 2009 < Back Share to: Generally, a party that seeks to file suit against a New York municipality has 90 days to provide notice of a claim. With the types of injuries arising out of 9/11, this date usually begins to run from the date the injured party discovered the injury. However, last week, New York’s governor signed a bill opening a new one-year window, reviving claims that would otherwise be time-barred. As you might expect, New York City was fiercely opposed to this move, arguing that thousands of new lawsuits may result with hundreds of millions of dollars in exposure. In addition, the City’s ability to defend older claims may also be compromised. But the State legislature believed it was more important to provide injured parties with their day in court. http://assembly.state.ny.us/leg/?bn=A07122&sh=t Previous Next Contact

News NJ Appellate Court Reverses Summary Judgment Granted Based On Ordinance or Law Policy Exclusion September 12, 2012 < Back Share to: In Leda Puhlovsky v. Rutgers Casualty Insurance Company, the Appellate Court overturned a trial court’s Order of summary judgment in favor of the insurer. The plaintiff owned a four-story commercial building in Paterson. In March 2008, the adjacent building collapsed and was ultimately demolished. The western brick wall of plaintiff’s building was built into the wood frame of the adjacent building, creating a common wall in between them. After the collapse of the adjacent building, a municipal engineer examined the plaintiff’s building and found it to be unsafe. City officials instructed the plaintiff to either demolish the building or repair it so as to conform to Code. She opted to demolish the building and afterwards filed a claim with her insurer, Rutgers Casualty, under the policy issued for the commercial property. An engineer retained by Rutgers examined the building and determined that there had been gradual movement in the building in the past few years due to the earth sinking and settling and that the loss of support from the adjacent building exacerbated the condition. Plaintiff’s expert also inspected the building and determined that the damage occurred due to the partial collapse of the adjacent building and vibrations from demolition of the adjacent building. Rutgers eventually denied coverage under the policy's exclusions for losses occasioned by the enforcement of any ordinance or law, or arising from neglect, faulty construction or earth movement. The trial court agreed with Rutgers’ position and granted summary judgment its favor. The Appellate Court reversed and found that the exclusions in the policy did not apply to the specific circumstances of this case. Noting that insurance policy exclusions must be narrowly construed, the court determined that the “ordinance or law exclusion” did not apply to the facts of this case, since the building was not demolished at the direction of the City of Paterson. Rather, the City gave plaintiff the choice either to demolish the structure or immediately correct the hazards and render the building safe. Moreover, the exclusion in the Rutgers policy refers to code enforcement requiring the tearing down of any property, which is not what happened in this case. Further, similar exclusions in other policies have been construed to apply to the increased expenses incurred by an insured in repairing or rebuilding a damaged structure so as to bring it into compliance with a local code or ordinance. Lastly, the Appellate court held that the motion judge's reliance on the "earth movement" exclusion was not warranted in the context of a motion for summary judgment. Rather, the question of whether or not the settling, cracking or other disarrangement of plaintiff's building occurred as a consequence of "earth movement" was a question of fact for a jury. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5100-10.pdf Previous Next Contact

News Movie Theater Employee’s Outside the Box Assault is Outside Scope of Employment (NY) February 11, 2020 < Back Share to: Due to the principle of respondeat superior, more employees mean more exposure to the employer for their employees’ actions. That said, the First Department recently emphasized the potential strength of an employer distinguishing the employee’s actions from their actual job duties as a defense. In Gregory v. National Amusements, Inc., the plaintiff Gregory claimed she viewed a film at the defendants’ movie theater. While walking out of the movie, Gregory alleged she tapped the defendant’s employee on the shoulder to say she liked the movie and then employee turned and without warning slashed Gregory’s face with a box cutter. Encouragingly for defendants, even though the employee in question was a security guard and was working at the time of the incident, the First Department found that an alleged unprovoked assault was outside the scope of his employment as a matter of law. Specifically, the appellate court framed the alleged actions as “not in furtherance of [the employer’s] business interests,” even if plaintiff may have argued a security guard’s duties theoretically include physical altercations with customers. As a result, the First Department modified in part and affirmed in part an order from the trial court such that all claims against National Amusements were dismissed. This decision is helpful for defendants who seek to aggressively pursue motion practice by advancing this theory in similar scenarios. Thanks to Nicholas Schaefer for his contribution. If you have any questions or comments please contact Vincent Terrasi. Previous Next Contact

News Does a Property Owner have a Duty to Protect against a Driver who Jumps a Curb and Crashes into Their Building? (NY) May 21, 2021 < Back Share to: In Collins v. Delaware Ave. Enters, Inc., the Appellate Division, Second Department addressed whether the defendant was entitled to summary judgment dismissing the plaintiff’s complaint. Plaintiff brought this cause of action when a motor vehicle jumped a curb and sidewalk and crashed into a strip mall owned by the defendants. At the time of the crash, plaintiff was inside of the building when the vehicle struck him after going through the front window. The court stated, “A property owner has a duty to exercise reasonable care to maintain its premises in a reasonably safe condition”. "However, there is no legal duty to protect against an occurrence which is extraordinary in nature and, as such, would not suggest itself to a reasonably careful and prudent person as one which should be guarded against." There will ordinarily be no duty imposed on a defendant to prevent a third party from causing harm to another unless the intervening act which caused the plaintiff's injuries was a normal or foreseeable consequence of the situation created by the defendant's negligence". (citations omitted) The court held that the defendants were properly granted summary judgment because they 1) maintained their premises in a “reasonably safe condition” and that it did not have a duty to protect plaintiff against the “unforeseen intervening conduct” of the driver. This decision serves as a reminder that although property owners have a duty to maintain its premises in a safe condition, that the duty does not extend to unforeseen conduct. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Texas Leads The Way In The Execution Of Prisoners December 26, 2007 < Back Share to: As other states look to follow New Jersey and abolish capital punishment, Texas steadfastly continues to execute prisoners in its uniquely, efficient manner so that 60% of the Country's executions occur in the Lone Star State. http://www.nytimes.com/2007/12/26/us/26death.html?pagewanted=1&_r=1&ref=todayspaper&adxnnlx=1198670845-RmN68upQhD1iQaVB8L6w9Q Previous Next Contact

News Update & Interpretation: NY Venue Statute For Personal Injury Actions Amended May 11, 2018 < Back Share to: As we wrote in our October 2017 post, a new amendment to CPLR 503, changed the basis of venue determinations to include, not only where the parties reside, but added “the county in which a substantial part of the events or omissions giving rise to the claim occurred”. The justification for the amendment was to give the courts and jurors of communities with the most interest in setting community standards the ability to decide these cases and controversies, and case law is beginning to develop in this area. Contemplated as an advancement in forum shopping for the plaintiffs’ bar, the statute has favorable implications for the defense bar as well. In Taylor v. Montreign Operating Co., Inc. , a well-known New York City plaintiff’s firm placed venue of a personal injury action in New York County. Defendant moved to change venue to Sullivan County, a rural upstate county, where the accident occurred. The lower court denied defendant’s motion and the Appellate Division, First Department reversed, and changed venue to Sullivan County. In finding that defendant demonstrated that the convenience of nonparty witnesses would be better served by the venue change, the First Department ruled that the trial court improvidently exercised its discretion in denying the motion. Other than one defendant’s registered principal place of business, and one of plaintiff's physicians maintaining an office in the county, the case had no contact with New York County. Defendants sought to move the case to the county where the accident occurred. Importantly, Defendants submitted the affidavits of four first responders and plaintiff's coworker, all of whom averred that they would testify as witnesses, but would be inconvenienced by traveling to New York County. The court brushed off plaintiff’s arguments that the affidavits were not sufficiently detailed and accepted that the non-party witnesses were material and necessary. Moreover, plaintiff’s argument that there was a likelihood of summary judgment on liability under the Labor Law was deemed irrelevant. Savvy plaintiffs will always look to place the controversy in the most plaintiff-friendly venue. Yet, defense counsel could use the application of the amendment to CPLR 503 to nullify that perceived advantage. With any new lawsuit, careful consideration must be given to the location of the accident and the convenience of witnesses in that venue. Results from a detailed and early investigation into witnesses could bolster support for a venue change to the proper community and perhaps result in a more balanced jury pool. Thanks to Vincent Terrasi for his contribution for this post. Please write to Tony Pinto for more information. Previous Next Contact

News NY's First Department Allows Insurer to Rescind April 9, 2009 < Back Share to: The First Department recently reiterated its position in respect of policy recision in Kiss Construction NY Inc. v. Rutgers Cas. Ins. Co. In applying for insurance coverage, Kiss represented that it was solely a painting company. However, it was sued by a construction worker and during the claim investigation, Rutgers learned Kiss had been serving as a general contractor and disclaimed coverage for the underlying action based on this material misrepresentation. Kiss filed a declaratory judgment action against Rutgers seeking a defense and indemnification, and in an affirmative defense, Rutgers moved for recision of the policy. Rutgers motion for summary judgment was denied, but the Appellate Division reversed the decision and held the policy was rescinded. Of interest is the fact that Rutgers did not formerly give notice of the recision prior to this action, nor did it return the premium. In addition, prior decisions of the Court held that an insurer’s duty to defend existed pending a judicial determination of its right to rescind. Although that point was reiterated here, it appears that an insurer with knowledge of a misrepresentation is not forced to assume a defense, provided it is ultimately successful in obtaining a judgment that recision was proper. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02540.htm Previous Next Contact

News Adjacent Property Owner Not Liable Where Plaintiff Struck By Falling Tree Branch June 22, 2009 < Back Share to: In Rivers v. City of New York, the plaintiff was injured when a large tree branch fell and struck her on the head while walking along a public sidewalk. In granting the adjacent property owner's motion for summary judgment, the court acknowledged that the law imposes a duty to maintain ones property free and clear of dangerous or defective conditions, but held that the property owner demonstrated that they neither owned the tree nor exercised any control over it. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_05102.htm Previous Next Contact

News NJ Court: Mom is a Mom, not a Volunteer June 5, 2020 < Back Share to: In New Jersey, under the Charitable Immunity Act, a charitable organization is immune from negligence suits filed by "beneficiaries" of the organization's works. Recently, in Smith v. Diocese of Camden, a mother delivering sweets to her second grader’s class argued that she was a "volunteer" for the parochial school and therefore not barred from filing suit when she sustained personal injury on school property. The Appellate Division saw through this mother’s claim, noting that she would not have gone to the school but for the fact that her child was in the class. She was not a volunteer with specific duties that required her to be present at the school on the date in question, and had gone there simply to bring treats to her child’s class. As a parent of a child in the school when she entered the property, she was a "beneficiary of the works" of the school and, as such, the Appellate Division affirmed summary judgment in favor of the Diocese based upon the Charitable Immunity Act. Thanks to Denise Ricci for her contribution. http://lawlibrary.rutgers.edu/decisions/appellate/a5261-07.opn.html Previous Next Contact