News Insurer: Know Thine Own Policy! January 21, 2011 < Back Share to: It’s somewhat surprising, but insurers consistently seem to get themselves in trouble for misrepresenting the scope of their policy coverages to their insureds. Wisinski v. American Commerce, a Pittsburgh federal court case, again proves the point. Wisinski was involved in an auto accident with an uninsured driver on December 20, 2001. She put in a claim with her insurer for first party benefits. The claim was not even partially resolved until 2007 at which point Wisinski commenced a bad faith action against ACIC. During the discovery process, it became clear that ACIC considered its reserves as for “aggravation” only and misadvised Wisinski on the policy limits. The court found this type of behavior was “unreasonable and done either intentionally or recklessly” -- http://pdf.wcmlaw.com/pdf/WisDec.pdf. It therefore awarded bad faith damages to Wisinski and turned a small claim into a big problem for ACIC. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News UIM Denial Triggers Statute of Limitations (PA) December 20, 2017 < Back Share to: The Pennsylvania Supreme Court has recently decided that, when it comes to an uninsured motorist claim, the statute of limitations only begins to run upon an alleged breach of a contractual duty. In Erie Insurance Exchange v. Bristol, a commercial automobile insurer brought declaratory judgment action seeking determination that an uninsured motorist claim filed by an injured employee of the insured was barred by the statute of limitations. This lawsuit was initiated when Michael Bristol reported a hit-and-run accident that occurred within the scope of his employment on July 22, 2005. Bristol was employed by RCC, Inc. as a lineman, and RCC, Inc. was insured through Erie Insurance Exchange. This policy contained an Uninsured/Underinsured Motorist Coverage Endorsement, which provided coverage of $500,000.00 per accident. The Endorsement also included an arbitration clause which provided for binding resolution of liability disputes and the amount of damages under the Endorsement, reserving other disputes, including the applicability of any statute of limitations, to the courts. On June 19, 2007, Bristol sent a letter to Erie regarding his claim. On July 9, 2007, Erie reserved its rights. Each party selected arbitrators and Erie obtained a statement under oath from Bristol. Mire than seven years post accident, in September 2012, the parties exchanged correspondence surrounding Bristol’s unrelated incarceration and the qualified delay this would cause. On May 29, 2013, Erie filed an action for declaratory judgment stating that Bristol’s claim was now barred by the statute of limitations. Specifically, Erie claimed that the statute of limitations began to run on the date of the accident when Bristol was unable to identify the vehicle involved in the hit-in-run, thereby qualifying it as an uninsured motorist claim. Bristol’s position was that Erie’s reservation of rights and agreement to arbitrate precluded application of the statute of limitations because there was no contractual requirement to file a court action. The Pennsylvania Superior Court held that, for purposes of uninsured motorist claims, the statute of limitation begins to run when a claimant injured in an automobile accident initially learns that the other driver is uninsured. The Pennsylvania Supreme Court disagreed and found that this conclusion was not based in the pertinent statutory text, prevailing statute of limitations doctrine, or significant public policy concerns. The Pennsylvania Supreme Court relied on the general rule for computing periods of limitation under Section 5502 of the Judicial Code. That rule states that “the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises, and only at such a time, that is, as soon as the right to institute and maintain a suit arises, or when there is a demand capable of present enforcement.” Therefore, the statute of limitations would begin to run when the insurer is alleged to have breached its duty under the insurance contract. Additionally, the Pennsylvania Supreme Court looked to public policy issues to determine if this circumstance required a special rule for determining when the statute of limitations begins in uninsured motorist cases. The Court concluded that although uninsured motorist coverage serves the purpose of protecting innocent victims from uninsured motorists, that purpose does not rise to the level of a public policy overriding every other consideration of statutory construction. Additionally, the Court noted that any concerns about an insured delaying submission of a claim or an insurer delaying action on a claim do not justify departing from breach of contract principles attendant to triggering the statute of limitations. The Court concluded that the proper circumstance to begin the running of the limitation period is an alleged breach of the insurance contract, which will be occasioned by a denial of a claim or the refusal to arbitrate. Thanks to Zhanna Dubinsky for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Failure to Show Property Owner Had Knowledge of Dangerous Condition Seals the Deal in a Premises Liability Action (PA) November 1, 2019 < Back Share to: In Billie Jo Raker, the Commonwealth Court of Pennsylvania addressed the sufficiency of evidence needed for a plaintiff to sustain his or her burden for a negligence claim. Specifically, the plaintiff, Raker, appealed the trial court’s order granting summary judgment in favor of the defendants, Keystone Blind Association (“Keystone”) and the Pennsylvania Department of Transportation (“DOT”). In brief, Raker fell and allegedly sustained injuries after stepping off a curb and into a hole on the premises of a Pennsylvania rest stop. Following discovery, the DOT and Keystone moved for summary judgment based on Raker’s failure to establish a prima facie showing of negligence and DOT’s insulation from suit by sovereign immunity. The issue on appeal was whether Raker made out a cause of action for negligence. With respect to the Raker’s negligence claim, the court held that a possessor of land is liable for harm caused by a condition on the land only if the possessor: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Applying this standard, the court looked to Raker’s deposition testimony in which she stated that she fell after stepping into what “felt like” a hole. Additionally, the court noted, the only evidence Raker introduced was a Quality Assurance Evaluation form noting the curb in the lot had a chip. Conversely, Keystone and DOT introduced photographs taken by Raker that did not depict any defect in the land and did not establish a dangerous condition. Accordingly, the Pennsylvania Commonwealth Court held that assuming, arguendo, the evidence was sufficient to establish that a hole existed, there was insufficient evidence to demonstrate that either the DOT or Keystone had notice of the alleged hole. Furthermore, Raker’s own testimony indicated that the chipped curb mentioned in Quality Assurance Evaluation did not lead to her fall, rather the hole in the ground is what caused her injury. As such, the court affirmed that the plaintiff had failed to establish a prima facie case of negligence. This case reaffirms the notion that a plaintiff merely providing evidence of a dangerous condition alone is insufficient to establish a negligence claim. There must be some further evidence indicating the landowner had knowledge of the dangerous condition. As such, defendants should keep this in mind, as a possible argument, when contemplating dispositive motion practice. Thank you to Rachel Thompson for her contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact

News Stupid Criminals (You Can't Make This Stuff Up) January 9, 2008 < Back Share to: Two men were recently arrested after wheeling a dead man through the streets of New York City in an office chair to a check-cashing store to try to cash his $355 Social Security check. Witnesses saw the two pushing the chair with the deceased flopping from side to side and the two individuals trying to prop him up. They then left the body outside the store, went inside and tried to cash his check. The store's clerk, who knew the deceased, asked the men where he was and they responded that they would go get him. Unbeknowst to them, there was a police detective having lunch at the restaurant next door who noticed a crowd gathering around the body. It was immediately apparent to him that the guy in the chair was dead. The two were arrested as they were in the process of wheeling the body into the check-cashing store. The deceased apparently died the day before of natural causes and the two face check fraud charges. www.wnbc.com Previous Next Contact

News Plaintiff Allowed To Take Swing against City For Fall at Citi Field (NY) September 14, 2018 < Back Share to: In Henn v. City of New York, Sterling Mets, et. al, plaintiff allegedly sustained injuries as a result of tripping and falling upon the sidewalk abutting Citi Field on July 6, 2014. Plaintiff alleges that defendants were responsible for the maintenance of the sidewalk and created the defective condition of the sidewalk. Defendants moved to dismiss under 3211(a)(7) – failure to state a cause of action. The lower Court denied defendants’ motion to dismiss and the defendants appealed. The Appellate Division Second Department concurred with the lower court and ruled that defendants did not reach their burden to dismiss. The sole criterion on a 3211(a)(7) motion is whether the factual allegations articulated in the four corners of the complaint itself manifest any cognizable cause of action. “When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” The Second Department held that the documentary evidence submitted by the ballpark defendants in support of their motion failed to conclusively establish a defense as a matter of law. Further, the ballpark defendants failed to establish conclusively that the plaintiff had no cause of action. That the complaint alleged the ballpark defendants owned, operated, managed, maintained, or controlled the subject sidewalk upon which the plaintiff was injured was sufficient to go forward on a cause of action and the documentary evidence submitted by the ballpark defendants—a “Stadium Lease Agreement” and a “First Amendment to Stadium Lease Agreement" – was insufficient to show they did not own, operate, manage or control the subject sidewalk and therefore, was insufficient to provide a basis for dismissal under that subsection. The case was allowed to move forward to discovery and depositions of all parties. Thanks to Paul W. Vitale for his contribution to this post. Previous Next Contact

News Rain on Someone Else’s Parade for Liability August 4, 2023 < Back Share to: In a recent decision by the Second Department, Kathy Bockstruck et al. v. Town of Islip et al., 2019-13793, the Court held that organizing a parade does not equate to liability in a trip-and-fall accident. In 2012, Kathy Bockstruck was injured while marching in a parade organized by West Islip Post #1738 of the American Legion and subsequently fell into an open utility hole, resulting in injuries. As a result of this accident, the Plaintiff sued the Town of Islip, the Suffolk County Water Authority, and the American Legion Post 1738. Both the American Legion and the Water Authority filed for summary judgment, resulting in success for the American Legion but a denial the latter. Both the Plaintiff and Water Authority appealed. On appeal, the Second Department found the Supreme Court had properly ruled on these motions. In short, even though the American Legion had been the organizers of the parade, it was clearly established that it did not own the road or the utility hole, which were owned by the County and the Water Authority. Additionally, the Legion critically did not possess control over either. It was further established that the Legion did not own or control the condition of the parade route nor did it have any role in the creation of the same. Overall, the Second Department did not find any duty owed to the Plaintiff by the American Legion for simply holding the parade where and when they did. And so, the moral of the story: if you’re hosting a parade, do it on someone else’s property. Thanks to Patrick Argento for his contribution to this article. Should you have any question, contact Matthew Care. Previous Next Contact

News PA Superior Court Tackles Bad Faith. December 3, 2007 < Back Share to: Greene v. United Services Automobile Ass'n arises out of a leaking roof first party claim. When the carrier only paid for repairs to the part of the roof actually damaged, the insured commenced a bad faith/breach of contract suit and argued that the carrier was obligated to pay for replacing the whole roof. The trial court agreed with the carrier in respect of how much roof repair it was obligated to pay for. The trial court also denied the bad faith claim. On appeal, the Suprerior Court held that to prove bad faith, "an insured must show there was no reasonable basis for denying benefits and the insurer knew or recklessly disregarded that it lacked such a basis. In addition, a party must show that the insurer breached its duty of good faith through some motive of self-interest or ill-will." The Superior Court further noted that self-interest or ill-will was not a third prong of a bad faith test, but rather bore on the issue of whether the insurer lacked a good faith basis to deny the claim. http://www.palawweekly.com/plw/printarticle.aspx?ID=24548 Previous Next Contact

News NJ: Evidentiary Rule of Res Ipsa Loquitur Only Available if Proximate Cause is Proven February 10, 2010 < Back Share to: It was an icy night on January 2, 2003 when a UPS truck driver crested a hill on the New Jersey Turnpike to find an accident between two cars in progress in front of him. Fending off a phantom truck that sideswiped him as they both tried to slow down, the truck driver braked but not enough to prevent a collision with one of the cars now stopped on the roadway. The scene continued to unfold when a distraught woman emerged from the second car stopped on the shoulder and exclaimed that her boyfriend had jumped over the highway barrier to his death 100’ below. Under these curious facts, in Cockerline v. Menendez, --N.J.—2010 WL 374766 (App.Div. 2010), the NJ Appellate Division reversed a trial court’s application of the evidentiary doctrine of res ipsa loquitur. After settling with the driver of the passenger car, the soon to be ex-wife of the deceased pursued her claim against UPS alleging that her husband had died as a result of the actions of the UPS driver. In fact, she argued that the instrumentality that caused her husband’s death was in the defendants’ exclusive control. The Appellate Division disagreed zeroing in on the issue of proximate cause questioning the proof in the case on what exact instrumentality had caused the fatal jump. The investigating police officer had determined that there had been no contact between the truck and the decedent’s car. After an extensive review of the evidence, the Court found it unclear what led the decedent to go over the barrier and when in the accident sequence he had done so. Since the plaintiff failed to establish proximate cause, res ipsa loquitur was not properly applied, and the Court reversed a $2.3 million verdict. See Cockerline v. Menendez, --N.J.—2010 WL 374766 (App.Div. 2010) at http://www.judiciary.state.nj.us/opinions/a4635-07.pdf If you would like more information, contact dricci@wcmlaw.com Previous Next Contact

News Throw Enough Mud at the Wall, Some Will Stick (NY) July 24, 2018 < Back Share to: In PDF Singletary v. Alhalal Rest., Inc., 2018 WL 3371313, at *1 (2nd Dept. 2018), the plaintiff appealed an order of the Supreme Court, Kings County, that granted the defendants’ motion for summary judgment. Plaintiff alleges that on March 17, 2015, while walking on a sidewalk adjacent to the defendants’ premises in Brooklyn (hereinafter the premises), a “hanging awning, its steel supports and mounting infrastructure suddenly and unexpectedly fell" and injured the plaintiff. The defendants moved for summary judgment, contending that the plaintiff was not struck by the awning. The defendants produced what they claim is photographic evidence of the plaintiff arriving at the premises after the awning fell, and alleged that the plaintiff falsely claimed that she had been struck by the awning. The plaintiff opposed the motion, submitting her own affidavit, photographic evidence of her and ambulance and hospital records. The Second Department reversed and reinstated the complaint, reasoning that the photographic evidence submitted by the defendants did not establish that the plaintiff fabricated her claims. Summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility.” See Ruggiero v DePalo, 153 AD3d 870, 872. Furthermore, the Supreme Court should not have granted summary judgment on an issue not raised by the defendants’ motion. The plaintiff had no opportunity to address the issue of whether the defendants had notice of the defective condition that allegedly caused the accident. The plaintiff’s “lack of notice and opportunity to be heard implicates the fundamental issue of fairness that is the cornerstone of due process. ” See Rosenblatt v St. George Health & Racquetball Assoc., LLC, 119 AD3d 45, 54.. Apart from considerations of simple fairness, allowing a summary judgment motion by a defendant to bring up for review every possible defense that could be asserted by that defendant would be tantamount to shifting the well-accepted burden of proof on summary judgment motions. Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the complaint. It is not uncommon for a judge to make a ruling based on his or her own interpretation of the law and facts as they were presented. However, the judge must make their ruling pursuant to the law and arguments presented in the motion papers. Therefore, when moving for summary judgment, it is imperative to make every argument possible as the judge is unable to fill in the gaps for you. Some of the issues argued at the appellate level were not preserved for appeal. So here, the defendants are left with a strong liability defense at trial, but are also left with litigation costs, expert costs, and the the risk of a potentially compelling plaintiff to a jury. Thanks to Jonathan Avolio for his contribution to this post. Please email Brian Gibbons with any questions.         Previous Next Contact

News Duh. You Need a Cause to Have a Claim (NY) October 9, 2019 < Back Share to: In Phillips v LSS Leasing Ltd., the plaintiff claimed she fell inside the lobby of the defendant's building in Queens, and filed a negligence based lawsuit in Queens County Supreme Court. At the plaintiff’s deposition, when asked what caused her to fall, the plaintiff surmised that she tripped and fell on a defective part of a runner mat that was located in the lobby. After discovery was complete, the defendant filed a motion for summary judgment, arguing that the case should be dismissed because the plaintiff could not identify the actual cause of the accident. Queens County Supreme Court denied the defendant’s motion, but the defendant appealed the decision. The Appellate Division, Second Department, reversed the lower court’s finding, and addressed the standard when alleging a defective property condition caused a fall. The appellate decision held that in order to impose liability upon a defendant for a plaintiff's injuries, there must be evidence showing the existence of a dangerous or defective condition, and that the defendant either created the condition or had actual or constructive notice of it and failed to remedy it within a reasonable time. Further, in a trip-and-fall case, a plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. In this case, the plaintiff, who traversed the building’s lobby practically every work day, testified that she did not see the alleged defect either before or after she fell. The Appellate Division found that plaintiff’s claim that she tripped and fell on a defective part of a lobby mat was speculation which cannot support a negligence claim. Applying this standard, the Appellate Division reversed the denial of summary judgment, and dismissed the lawsuit. Thanks to George Parpas for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Art Thief Threatens to Sue Museum for Lax Security November 15, 2013 < Back Share to: In what can only be described as a novel approach to pending civil claims against him, a Romanian art thief who has admitted to stealing masterpieces by Gauguin, Monet and Picasso has threatened to sue the Dutch museum he took them from for making his robbery too easy. Radu Dogaru is among six Romanians arrested for last year's "spectacular three-minute heist" from the Kunsthal museum in Rotterdam. Despite the fact that the art had an estimated value of $24 million, apparently none of the paintings were equipped with an alarm. As a result, Dogaru's attorney told the court that the museum's negligence ought to have "serious consequences," and that his client was considering hiring Dutch lawyers to bring a lawsuit against the museum for its comparative negligence for the potential civil claims faced by the thief. Unfortunately, it seems his attorneys were not as creative in defending the criminal action, as Dogaru has already pleaded guilty and faces a maximum sentence of 20 years in prison. Whether he takes a break from his incarceration to file his proposed lawsuit remains to be seen. Previous Next Contact

News The Show Must Go On: New Jersey State Bar Association Releases Report to Help NJ State Courts Resume Jury Trials Amidst Pandemic July 23, 2020 < Back Share to: As we head into the fifth month since the COVID-19 pandemic halted court operations, the New Jersey State Bar Association released a report and recommendations for the resumption of jury trials in the New Jersey courts. The report released in early July was created to help New Jersey courts restart jury trials in a way that will keep all participants healthy and safe, while accommodating and preserving essential constitutional protections. Curtailed court proceedings due to COVID-19 have caused a 153% increase in backlogged cases in New Jersey statewide. The number of backlogged cases statewide in May 2020 represents a 153% increase over May 2019, according to data provided by the Administrative Office of the Courts. The courts counted 50,185 backlogged cases just this May. In the Special Civil Part, the overall number of backlogged cases rose 5,662% - from 316 in May 2019 to 18,210 this May. Auto negligence cases have also seen a jump in backlogs, from 19 statewide in May 2019 to 88 this May, an increase of 363%. The NJSBA Pandemic Task Force Committee noted that certain potential changes should be off-limits, such as virtual jury trials. The report states, “A live, in-person jury is the cornerstone of our civil and criminal justice system,” and “we do not believe that virtual jury trials will satisfy constitutional mandates. That being said, we believe communication technology can be used to make the jury selection process safer, while conserving judicial resources.” The proposal sets forth a structure that includes introductory virtual communications that are available to all potential jurors, while including essential in-person observation during the final phase of jury selection. The proposed plan includes: Jury duty notification and video introduction to the court system;Available screening of jurors by jury management;Preliminary voir dire via remote questionnaire; and,Final voir dire of jurors in person at the courthouse. The recommendations are intended to be a starting point, and are designed to be flexible to accommodate the tide of changing events that continue to impact the courts. We look forward to receiving additional recommendations from the NJSBA going forward. Thanks to Irving Fayman for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact