News Vacant Two-Family Home not “Commercial” for Purposes of NJ Sidewalk Liability May 17, 2018 < Back Share to: In Vega v. Muthapandi, plaintiff alleged to have fallen due to snow on a sidewalk abutting a two-family house. The defendant had recently purchased that two-family house which was vacant at the time of purchase. The defendant was not residing in the house at the time of the fall, but neither was he renting out any portion of it. The roof had also collapsed before plaintiff’s accident rendering the house uninhabitable. The defendant moved for summary judgment, arguing that the house was not commercial. In New Jersey, only “commercial” property owners are liable for failing to maintain an adjacent sidewalk. The trial court agreed with the defendant and dismissed the complaint. On appeal, plaintiff argued the property was commercial because the defendant did not actually intend to move into the property or, at the very least, there was a question of fact over what his intentions were. Specifically, plaintiff argued that if defendant intended to rent out both units, then the house was commercial. According to the Appellate Division, defendant was not liable because the property was vacant and uninhabitable. Therefore, the reasons behind holding commercial property owners liable for sidewalk injuries were not present. Those reasons include the ability to carry liability insurance and the implied invitation of the public to the commercial enterprise which requires the commercial owner to provide safe ingress and egress. The problem for defendant in this case was that he did not reside in the house at the time of the accident. The case law relative to residential v. commercial generally requires the owner to reside in the property to be deemed residential. The Appellate Division crafted a simple explanation for finding that defendant had no liability. Simply put, the property was vacant and no business was being conducted there. Accordingly, it was not “commercial.” Thanks to Michael Noblett for his contribution to this post.         Previous Next Contact

News Labor Law 240(1) Does Not Apply To Scaffold Accident Where Fall Was Caused by Separate Hazard (NY) January 27, 2023 < Back Share to: New York Labor Law section 240, the so called “Scaffold Law”, imposes strict liability on property owners and contractors where a construction worker sustains an elevation-related injury. However, section 240 does not apply to all worksite hazards and courts will examine the specific facts to determine if the section will apply. For example, in Krarunzhiy v. 91 Cent. Park W. Owners Corp., the Appellate Division, Second Department addressed the issue of whether a defendant owner violated Labor Law 240(1) when plaintiff fell while working in the defendant’s building. At the time of the accident, plaintiff was working as a mason and painter, and fell over a rug as he descended a temporary staircase from an upper to a lower scaffold. The trial court awarded summary judgment to the defendant. The Second Department affirmed, holding that Section 240(1) did not impose liability under the circumstances. The Court observed that "[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity.'" The Court added that the “core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling. Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists." Give these principles, the Court held that the owner established that plaintiff’s injury was unrelated to the need for a safety device, and that there was no indication that the scaffold stairs did not allow him to “safely complete his work at a height.” The deficiency with the device “did not interfere with or increase the danger of injury in the performance of his elevation-related task” and therefore plaintiff’s Labor Law 240(1) claim against the owner was dismissed. This decision serves as a reminder that not all elevation-related falls on a construction site will trigger section 240 liability. When defending a Labor Law 240(1) claim, defendants should investigate if a plaintiff’s fall was from a hazard that is unrelated to the plaintiff’s risk. Thank you to Corey Morgenstern for his contribution to this post. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

News The Language of the Industrial Code is Important in Determining Liability Under New York Labor Law §241(6) July 14, 2023 < Back Share to: New York Labor Law 241(6) imposes a non-delegable duty on property owners and contractors to provide reasonable and adequate protection to those performing work on the property and to comply with specific safety rules. The language of those rules can be critical in determining whether a defendant violated this Labor Law section. For example, in Dyszkiewicz v. City of New York, plaintiff was working on a school renovation project and was injured when he slipped on a clear, sticky liquid and fell down a flight of stairs. Plaintiff commenced an action asserting claims for common-law negligence and violations of Labor Law §§ 200 and 241(6). The Labor Law § 241(6) claims were based on alleged violations of certain sections of the New York Industrial Code. Defendants moved for summary judgment as to all of plaintiff’s claims while plaintiff sought summary judgment on the issue of liability under Labor Law § 241(6) based upon the code violations. The Supreme Court granted that portion of the defendants' motion addressing Labor Law § 241(6) as predicated upon violations of 12 NYCRR 23-1.7(e) and 23-2.1(b) and denied that portion of plaintiff's motion seeking summary judgment as to Labor Law § 241(6) based on violations of 12 NYCRR 23-1.7(d) and 23-3.3(e). After a jury found in favor of the defendants as to the remaining claims, plaintiff appealed. The Second Department affirmed as to the summary judgment decision and the jury’s verdict. With regard to the alleged violation of 12 NYCRR 23-1.7(e)(1) and (e)(2), the Court observed that those sections protect workers from tripping hazards and did not apply since plaintiff testified that he fell after he slipped. The Court also found that defendants had properly established that 12 NYCRR 23-1.7(e)(2) did not apply because it applies to “working areas” and plaintiff’s testimony established that he fell on a staircase which qualified as a "passageway." The Court also found that there was insufficient grounds to disturb the jury’s finding as to no liability under certain industrial code sections, including 12 NYCRR 23-3.3(e) which addresses the removal of debris during demolition work. The Court found that the jury could have reasonably found that there was no violation because the plaintiff was moving debris within the school and not removing it from the building. Dyszkiewicz is a good example of how New York courts will analyze the specific language of the applicable Industrial Code sections in determining whether there is a violation for the purposes of liability under Labor Law § 241(6). That language is important, and defendants should seek a dismissal where a code section does not clearly apply. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Authenticity Battles Continue to Haunt the Art World. July 26, 2010 < Back Share to: One of the more common disputes that art insurers end up embroiled in are disputes over authenticity. Consider for example, a loss in market value claim. If the object at issue is really an Old Master, the loss could be significant. However, if it is a later copy, the loss could be quite nominal. To assist with authenticity claims, restorers and experts vet a painting by analyzing (among other things) brushstrokes, composition, iconography and pigments. A subjective finding results. The latest craze attempts to turn subjective opinion into an objective science through the use of fingerprints. Peter Paul Biro is among the pioneers in this field. However, according to The New Yorker, all that glitters might not be gold. In this interesting article, Biro’s techniques are called into question -- http://www.newyorker.com/reporting/2010/07/12/100712fa_fact_grann?currentPage=all. Food for thought for all those who thought science could turn appraisals into a hard science. If you would like more information about this post, or WCM’s fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Millions Awarded To Plaintiff for Economic Loss Despite Increased Earnings - NJ November 17, 2011 < Back Share to: A plaintiff whose annual earnings actually increased by hundreds of thousands of dollars after an auto accident was awarded $3.6 million for economic losses. In a strange twist, this award for economic losses followed a summary judgment granted to the public entity defendant barring the plaintiff’s claim for non-economic losses/pain and suffering. The case arose out of an auto accident on a New Jersey State highway. The plaintiff sued the driver who caused the collision as well as the State and its Department of Transportation employee. The trial proceeded against the State and its employee after the plaintiff settled with the defendant driver with a liability finding of 60% on that driver and 40% on the State. The molded verdict resulted in an award against the State of $1.44 million. The plaintiff alleged that he sustained a traumatic brain injury in the accident. However, the Court found that he did not vault the bar of a permanent loss of a substantial bodily function as required by the New Jersey Tort Claim Act for a claim against a pubic entity. Indeed, the evidence showed that he was able to fully function at home and at work. While he claimed that he had some cognitive impairments, the Court expressly found that he was able to function very well in his chosen profession – securities trading. Notwithstanding the fact that he was not able to pursue non-economic damages for his alleged brain injury, the court permitted the case to go forward on the issue of economic damages. The plaintiff had earned over $800,000 the year prior to the accident and over $500,000 in the five months just prior in structured finance. He had resigned from that post just days before the accident to work as a trader in asset-backed securities. In that position, his earnings increased to $1.4 million in the next three years. With increased earnings and no significant injury, the plaintiff was nonetheless able to convince a jury that his earning potential was diminished as a result of his cognitive impairment. Over net opinion objections by the defendant, the plaintiff’s expert testified that worker’s of his age with a professional degree and cognitive impairment earn 6.1% less and retire 7.1 years earlier than their counterparts with no injury. He estimated the plaintiff’s loss at $6.4 million. Despite the fact that this plaintiff’s income was in the top 99% of workers and he was earning more after an injury not significant enough to permit recovery for non-economic losses, the Appellate Division affirmed the award. See Knitowski v. Gundy, http://www.judiciary.state.nj.us/opinions/a5945-09.pdf For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Additional Insured Coverage Analyzed in PA February 4, 2022 < Back Share to: Earlier this week, on January 31, 2022, in Cincinnati Insurance Company v. Colony Insurance Company, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether a general contractor constituted an additional insured on its subcontractor’s insurance policy. By way of brief background, Cincinnati Insurance Company (“Cincinnati”) commenced a declaratory judgment action (“DJ”) against Colony Insurance Company (“Colony”) alleging Colony is obligated to defend and indemnify Cincinnati’s named insured, Lobar, Inc. (“Lobar”) in connection with an underlying personal injury lawsuit commenced by Robert Sokoloff (“Sokoloff”). Sokoloff commenced the underlying lawsuit against Lobar alleging he sustained injuries when he slipped and fell on ice at a construction site controlled by Lobar. As the general contractor and/or construction manager, Sokoloff alleges Lobar was responsible for the dangerous condition created by the accumulation of ice that caused his fall. At the time of Sokoloff’s accident, Architectural Steel, Colony’s named insured, was a subcontractor to Lobar at the construction site. Lobar joined Architectural Steel to the underlying lawsuit. As Lobar and Architectural Steel entered a subcontract requiring Architectural steel to include Lobar as an additional insured for ongoing and completed operations, Cincinnati commenced the instant declaratory action. Applying well-established Pennsylvania case law, the Court determined Lobar was not an additional insured under the Colony Policy. Looking to the plain language of the policy, the court analyzed the Additional Insured – Owners, Lessees or Contractors – Scheduled Person or Organization endorsement, which modified the Who Is An Insured section to include additional insured coverage with respect to liability “caused, in whole or in part, by “[y]our actions or omissions” or “[t]he acts or omissions of those acting on your behalf; in the performance of your ongoing operations…”. As there was no Pennsylvania case law on point, the Court looked to federal court opinions decided under Pennsylvania law. Citing Dale Corporation v. Cumberland Mutual Fire Insurance Company, the Court determined Sokoloff was not an employee of Architectural Steel at the time of the accident. This, coupled with the fact that the only mention of Architectural Steel was in the joinder complaint filed by Lobar, the Court determined Lobar did not constitute additional insured. Further, although Cincinnati included a certificate of insurance naming Lobar as an additional insured on the Colony policy, the Court rejected that argument as certificates of liability insurance do not constitute insurance contracts and do not, on their own, confer additional insured status. The Court also noted Architectural Steel was not responsible for the snow and ice removal. The Court held the subcontract between Lobar and Architectural Steel did not require Architectural Steel to remove snow and ice from the accident site. In doing so, the Court reasoned there is no basis to find Sokoloff’s injuries were “caused in whole or in part of” by Architectural Steel as required to confer coverage to Lobar under the Colony policy. This ruling is significant because the Court looked beyond the four corners of the complaint to consider extrinsic evidence, such as the deposition testimony from the Underlying action. Ultimately, the Court denied Cincinnati’s motion for summary judgment and ruled in favor of Colony, therefore holding Lobar was not an additional insured under the Colony policy. This case is significant as it reaffirms the principle set forth in Dale that a third party complaint cannot be used to bolster allegations in the original complaint to support coverage as doing so would violate the rule that “the obligation of a casualty insurance company to defend an action against the insured is to be determined solely by the allegations of the complaint in the action." Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Excess Insurer Denied Right to Disclaim After Attending Mediation (NY) October 19, 2011 < Back Share to: Pursuant to New York Insurance Law §3420(d), insurers seeking to disclaim coverage to an insured must act expeditiously or risk being estopped from disclaiming coverage. The application of §3420 to excess insurers continues to evolve, and was addressed in a recent decision by the Appellate Division, First Department, in Yoda, LLC, et al. v. National Union Fire Insurance Company of Pittsburgh, PA. In 2003, Yoda, a general contractor, tendered its defense and indemnification for an underlying personal injury suit to a subcontractor, and the subcontractor’s primary insurer accepted the tender. National Union, the subcontractor’s excess insurer, monitored and actively participated in the litigation for three years, including attending a mediation and engaging in settlement negotiations, without ever issuing any position letter. In 2006, after plaintiff was granted partial summary judgment in the underlying suit, National Union disclaimed coverage, arguing that the certificates of insurance it was previously provided were improper and that Yoda was not an additional insured, and, in any event, the loss was excluded based on a specific policy exclusion. However, the Court held that the excess insurer’s inexplicable delay in issuing a disclaimer, based, in part, on its failure to timely obtain a copy of the primary policy, estopped the excess insurer from denying the tender three years later. As such, National Union was required to provide the owner and general contractor with coverage for the underlying action. Thanks to Chris O'Leary for his contribution to this post. If you would like more information, please contact Mike Bono at mbono@wcmlaw.com . Previous Next Contact

News Pa. Court Holds That Individuals Cannot "Drink Themselves" Into Coverage. December 23, 2009 < Back Share to: The Third Circuit Court of Appeals in Pennsylvania held that an individual's inebriated state did not render his attempted shooting of a woman accidental, and therefore did not trigger coverage under either his homeowner's policy or his personal umbrella liability policy. On March 25, 2005, Dr. Thomas Mehlman spent the afternoon drinking excessive amounts of alcohol at a restaurant. Afterwards, he was involved in a confrontation with Maria Iacono. In a drunken rage, he shot at her three times , and then killed himself. Iacono filed suit against Mehlman's estate, which sought coverage under his policies. Both policies excluded coverage for bodily injury caused by "willful and malicious acts of the insured". The court held that Mehlman's intoxication did not negate the intent on his part to harm Iacono. Mehlman's repeated attempts to shoot Iacono revealed unmistakable intent on his behalf, therefore, the insurer did not have a duty to defend or indemnify Mehlman's estate in the action. http://www.claimsjournal.com/news/east/2009/12/22/106109.htm Thanks to Heather Aquino for her contribution to this post. Previous Next Contact

News New York Court Analyzes Additional Insured Coverage (NY) October 1, 2020 < Back Share to: In a recent case decided by the New York Supreme Court, an insurer sought summary judgment on its action seeking defense and indemnity from another insurer. The Court rejected the insurer’s summary judgment motion, holding coverage for additional insureds is limited to situations where the insured is the proximate cause of the injury. The Court found “liability exists precisely where there is fault.” In Greater Mutual New York Insurance Company v. New York Mercantile General, Judge Bluth of the Supreme Court, New York County denied a motion for summary judgment that the defendant insurer had a primary and noncontributory duty to defend a property owner for an underlying slip and fall lawsuit. Greater New York (GNY) filed suit claiming the owner was an additional insured under the NYMG policy for a suit wherein the underlying plaintiff tripped and fell while walking in front of the owner’s sidewalk. GNY insured the owner and tendered to NYMG because it had insured a contractor who contracted to provide scaffolding work being undertaken at the owner’s premises. Of note, the underlying plaintiff sued the Owner and did not allege that the dangerous condition that caused his fall was related to scaffolding work. The Court noted that the pedestrian alleged he was simply lawfully on the premises, and not an employee nor employee of contractor. In opposition to GNY’s summary judgment for defense and indemnity, NYMG argued the contract between the owner and contractor did not specifically provide coverage for the owner as it only identified the real estate manager and not the Owner as additional insureds. The court took notice of the fact that an insurance policy additional insured endorsement providing “caused, in whole or in part” requires proximate causation since “but for” causation cannot be partial. The Court provided an event may not be wholly or partially connected to a result, “it either is or is not connected.” Further, although there may be more than one “proximate cause,” all “but for” causes bear some connection to the outcome, even if all do not lead to legal liability. The terms “caused, in whole or in part by,” and “solely caused by” are not synonymous. Thus, Coverage for additional insureds is limited only to situations where the insured is the proximate cause of the injury. This case illustrates the importance of examining the language utilized in an additional insured endorsement, as this likely will impact the circumstances under which an entity is determined to be an additional insured under a policy. Thanks to Thomas J. Bracken for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Attorney Client Privilege Under Siege in PA? February 24, 2011 < Back Share to: The attorney-client privilege is used to protect communications between clients and their attorneys, but a Philadelphia judge has recently ruled that it is not nearly as broad as some might think. In Kolar v. Preferred Unlimited Inc., Judge Mark Bernstein ruled that under Pennsylvania law the attorney-client privilege protects only a client’s communications to the attorney, not communications from the attorney to the client (unless they reveal the client’s communications). Although some attorney communications may be protected as attorney work-product, they are not protected as communications per se. Despite this ruling, this does not appear to be the last word on this subject in Pennsylvania and we will keep you posted of further developments in this area. Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/PA Priv.pdf * * * * * UPDATE: 2/23/11 Pennsylvania's highest court has just issued a ruling http://www.pacourts.us/OpPosting/Supreme/out/J-58-2010mo.pdf that, in Pennsylvania, "the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice." This is a big development -- especially in the coverage context. Previous Next Contact

News PA Commonwealth Court Unanimously Rejects Lead Paint Claims Brought Under a Novel Public Nuisance Theory May 12, 2023 < Back Share to: On May 5, 2023 in a lawsuit entitled Atlantic Richfield Company, et al. v. The County of Montgomery, Pennsylvania, No. 1338 C.D. 2021 (Pa. Comm. Ct. 2023), an unanimous en banc panel for the Pennsylvania Commonwealth Court ordered the dismissal of a suit filed by Montgomery County seeking to hold paint manufacturers liable for lead paint in residential structures under a novel theory of public nuisance. Specifically, Montgomery County, Pennsylvania (“Montgomery County”) filed a complaint against various paint manufacturers seeking a declaratory judgment that lead paint is a public nuisance under the common law as well as the Lead Certification Act (Certification Act), Act of July 6, 1995, P.L. 291, No. 44, 35 P.S. §§ 5901-5916. In doing so, Montgomery County pursued a novel legal theory that lead paint is a public nuisance under the Lead Certification Act, which regulates activities involving lead-based paint, but does not outright identify lead paint to be a public nuisance. Despite this, Montgomery County argued that the statute nonetheless makes the connection through its language, calling lead poisoning a public health threat and that its citizens have a common right to be free from the detrimental effects of exposure to lead paints/pigments in, on, and around private homes / residences throughout the county. In appealing the trial court’s dismissal of the paint manufacturers’ preliminary objections, the manufacturers argued that the County’s proposed interpretation of the Certification Act was contrary to its plain language and legislative intent and that even if proven, Montgomery County had failed to establish proximate causation under Pennsylvania tort law. Ultimately, the Commonwealth Court agreed and reversed the trial court, thereby dismissing the lawsuit. The Commonwealth Court unanimously rejected Montgomery County’s argument that lead paint constitutes a public nuisance under the Certification Act and determined that even if so, the Act does not empower a Pennsylvania county to sue paint manufacturers for creating a public nuisance. In approaching the merits of the common law public nuisance claims, the Commonwealth Court determined that the existence of lead paint in one dwelling was not necessarily transitory in nature where the surrounding community members would also be impacted as necessary to constitute a public nuisance. Furthermore, such a finding would be in contrast to Pennsylvania precedent related to lead paint claims. Pennsylvania courts have declined to apply market share liability theory to lead paint claims. Instead, Pennsylvania law requires that such claims be made on a property-by-property basis proving that lead paint or pigment manufactured by a particular identified defendant is present and causing harm at a particular property. In dismissing the claims against the manufacturers, the Commonwealth Court acknowledged that Montgomery County’s allegations were essentially a products liability claim raised improperly under the guise of a public nuisance action. Through this precedential ruling in Atlantic Richfield Company, the Pennsylvania Commonwealth Court shut down Montgomery County’s attempt to pave a novel avenue for fellow political subdivisions to combat exposure risks related to lead paint injuries its residents. Yet, had Montgomery County been successful, shifting risk to the paint manufacturers through any subsequent lawsuits could have rewarded irresponsible landlords for failing to follow existing laws and subjecting vulnerable communities to substandard housing. Thanks to Kendal Hutchings for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Fore? NY Court Rules on Golfer's Duty to Warn June 2, 2009 < Back Share to: A friendly round of golf between two doctors took an unfortunate turn when plaintiff Azad Anand was struck in the eye by an errant shot struck by his friend, defendant Anoop Kapoor. In Anand v. Kapoor, New York’s Second Department Court granted the defendant’s motion for summary judgment, holding that the plaintiff assumed the risk of being struck by an errant shot when he voluntarily participated in the game. The Court held that, even if there was no assumption of the risk, the plaintiff was at such a “great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone.” Thus, the defendant owed no duty to plaintiff to warn him of his intent to hit the ball. Some may say that the Court simply took pity on the defendant, in not adding insult to injury for defendant’s bad shot. In any event, the decision gives the struggling golfer one less worry. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D19706.pdf Previous Next Contact