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News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Iron Worker... Ladder... Elevation... No Labor Law § 240 Claim (NY) January 26, 2017 < Back Share to: Labor Law § 240 requires property owners, construction companies, and contractors to protect their workers from elevation-related risks, and holds them strictly liable for plaintiff’s injuries if they fail to do so. Counsel in Labor Law cases therefore spend large amounts of time and effort litigating whether plaintiff’s injuries implicate Labor Law § 240, as the answer will often significantly affect a case’s value. The Second Department’s recent decision in Guallpa v Canarsie Plaza, LLC informs us, however, that not all plaintiffs injured off the ground may assert Labor Law § 240 claims. In Guallpa, plaintiff, an iron worker, was standing on a ladder while working to secure an overhead steel beam to the building structure. While plaintiff was working, another employee, operating a forklift at ground level, struck a portion of the beam plaintiff was working on. This caused the beam to shift and, unfortunately, pinned plaintiff’s arm between the beam and a nearby concrete wall, inflicting injuries. Both plaintiff and defendants cross-moved for summary judgment as to plaintiff’s Labor Law § 240 claim, and the trial court denied both motions. On appeal, the Second Department reversed the trial court decision and granted summary judgment to defendants. The Second Department, focusing on the purpose of Labor Law § 240, noting that while the law is meant to protect workers from elevation-related risks, merely working above ground level does not automatically entitle workers to its protections. Specifically, the Second Department identified Labor Law § 240 as guarding workers against two types of risks: elevation-related (a worker falling from a height) and gravity-related (objects falling from a height onto the worker). Therefore, the Second Department concluded, because plaintiff was not injured by either a falling object or by falling from a height, he could not properly assert a claim under Labor Law § 240. Unfortunately for defendants, the Second Department then reversed the trial court’s ruling that they were entitled to summary judgment on plaintiff’s Labor Law § 241(6) claim, holding that they had failed to offer facts sufficient to refute plaintiff’s claim that the steel beam that injured him was improperly secured pursuant to a potentially applicable Industrial Code provision. Guallpa serves as a reminder to all Labor Law defense practitioners to carefully scrutinize a plaintiff’s bill of particulars and deposition transcript to establish the precise mechanism of plaintiff’s injury. In a field where ladders and heights often indicate increased settlements and damages awards, be sure to establish if plaintiff is in fact entitled to assert a Labor Law § 240 claim. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Game, Set, Match: Plaintiff Tripping On Tennis Court Has No Claim Under Primary Assumption of Risk Doctrine (NY) August 26, 2021 < Back Share to: In Schwartz v. Ramapo, 2021 NY Slip Op 04773 (2d Dept. 2021), a plaintiff was playing tennis when she suffered injuries after tripping on a raised sprinkler head in between two tennis courts owned and operated by the Town of Ramapo. The Rockland County Supreme Court Judge dismissed the Ramapo defendants’ under the doctrine of primary assumption of risk. “Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation. Assumption of risk is not an absolute defense but a measure of the defendant's duty of care (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d [2d Dept. 2020]); ‘the defendant's duty is to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty’ (Asprou, supra). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Asprou, supra). “Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played” (see Philius v City of New York, 161 A.D.3d 787 [2d Dept. 2018] ), including less than optimal conditions (Asprou, supra). The Second Dept. held the defendants’ satisfied their prima facie burden for summary judgment by showing the raised sprinkler head was open and obvious and plaintiff testified she knew sprinkler heads were present in between tennis courts. Plaintiff’s argument that she was not specifically aware of the sprinkler system causing her fall was unavailing. The court determined for the application of assumption of risk, the plaintiff need only know the potential exists for the mechanism of her fall i.e. she knew there were certain sprinkler heads present on the tennis court and she knew the tennis courts were cleaned with water from the sprinklers. Plaintiff also failed to offer any conclusive expert evidence that the sprinkler heads should have been flush with the court so as to avoid causing a tripping hazard. The Schwartz case sets an excellent example of the doctrine of primary assumption of risk. It highlights that if a certain condition exists in a recreational area, although it may be hazardous, it may also fall under the assumption doctrine so long as the condition is open and obvious and the public participants would have been made aware of the condition as a part of the recreational activity. Prudent property owners will warn public pedestrians about the potentially hazardous conditions on their recreational areas to avoid liability for subsequent injuries. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Modern Family Living Defies Labor Law 240 and 241 Application (NY) June 8, 2016 < Back Share to: New York's Labor Law 240 and 241place responsibility on construction companies, contractors and property owners for the safety of workers working at a height. There is an exemption for homeowners of one or two family homes. In Del Carnen Diaz v Bocheciamp, the First Department looked at the discreet issue of what constitutes a one or two family home and applied a "site and purpose test" in their analysis. The plaintiff's decedent-fell to his death while working on the defendant homeowner's roof. In a post-trial motion, the defendant-homeowner sought to dismiss the plaintiff’s claims under the exemption, but the lower court denied the motion. At issue was the plaintiff's contention that the home was used to house three families: the homeowners, their adult child with two children, and a family friend. The First Department held that, when applying the homeowner exemption, a court must apply the “site and purpose” test, which looks at the homeowner’s intention at the time of the accident and the purpose of the work. In this matter, the plaintiff tried to argue that the home was a three-family dwelling because the basement was rented out to a tenant and the homeowners' daughter and grandchildren were living on the top floor. However, the court found that there was uncontradicted evidence that the homeowners did not collect rent from their daughter/grandchildren and that the top floor was not a true apartment, as it only contained two bedrooms. Accordingly, the Appellate Division found that the two-family homeowner exemption applied. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News City Challenges Rejection of 9/11 Settlement April 15, 2010 < Back Share to: The 9/11 tragedy has generated a cottage industry of litigation about the definition of the term "occurrence" in a property policy, the obligations of a long term tenant to rebuild property destroyed by terrorists and the liability of owners of property and their contractors to workers who claim to have been injured in the aftermath of the 9/11 attack. After years of litigation, the City of New York and its contractors announced a global settlement with thousands of plaintiffs who seek compensation for respiratory injuries allegedly caused by the effects of 9/11. The settlement fund could reach as much as $657,000,000 if accepted by over 98% of the claimants. Judge Alvin Hellerstein rejected the proposed settlement as inadequate and prohibited the parties from implementing several key provisions in the agreement. The City of New York disputes the court's authority to approve the settlement or reject any provision in the agreement. The City has filed a notice of appeal with the Second Circuit in an effort to salvage the settlement as negotiated between the parties. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com City of New York Appeal Pdf Previous Next Contact

News Plaintiff’s Lack Of Diligence Merits Dismissal In PA January 20, 2023 < Back Share to: The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant's insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Dismissal Sanction at Trial Backfires on Defendant (NY) September 1, 2016 < Back Share to: All parties in civil suits in New York are obligated to provide relevant information—including documents, videos, and photographs—in response to demands for same. Parties that “willfully or contumaciously” fail to disclose this information are subject to sanction at the Court’s discretion. These sanctions may result in fines or exclusion of the evidence from use at trial, and can even result in the parties’ complaints or answers being stricken. In Fox v Grand Slam Banquet Hall , the plaintiff allegedly tripped and fell on wires while attending a party at the defendant’s facility. During plaintiff’s cross-examination on the third day of trial, she admitted that she had just the prior day found a video of the party. The video had been mislabeled and, consequently, never turned over to defendant in discovery. The plaintiff only provided the video to her attorney before testifying that day, but both the Court and defendant did not discover the video’s existence until during plaintiff’s testimony. The plaintiff did not attempt to introduce the video into evidence and agreed to preclude its admission into evidence (despite the fact that its footage may have been beneficial to her case). She also agreed to strike all testimony about the video. The defendant requested that the presiding judge strike plaintiff’s complaint as a discovery sanction. The judge did so, and plaintiff appealed. The First Department unanimously reversed the trial court’s ruling and ordered a retrial, holding that the trial court had abused its discretion when it dismissed the complaint for failure to disclose the video before trial. The Court held that the plaintiff’s failure to locate or disclose the video of the party did not appear sufficiently willful or contumacious. The Court was not persuaded that the failure to produce the video result in sufficient prejudice to defendant to warrant dismissal of the complaint, particularly in light of the fact that the video would not be introduced at trial. Furthermore, defendant’s discovery demands to plaintiff only requested she turn over photographs in her possession, there was no Court order during discovery requiring plaintiff to turn over video evidence, and there appeared to be confusion amongst the parties during discovery as to whether a video of the party even existed. Under these circumstances, the Court reversed the dismissal. To mitigate prejudice to the defendant in a retrial, the Court granted the defendant an opportunity to conduct additional discovery and to depose the videographer and plaintiff. However, critically, plaintiff may be permitted to introduce the video into evidence during the retrial. This case serves as a reminder to serve broad discovery demands upon opposing counsel. It also serves as a warning to parties against requesting their opponents’ pleadings be stricken where merely excluding the evidence would sufficiently protect their interests. The consequences of a retrial with additional, admissible evidence may be severe. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News MTA's Self Critical Standard of Care Higher? ... Not in the Courtroom (NY) July 9, 2013 < Back Share to: In Williams v. New York City Tr. Auth., the First Department re-iterated a long-standing rule that a defendant cannot be held to a higher standard of care than required by the common law. At the second trial of liability—the first judgment was vacated for a different reason—the plaintiff introduced testimony from an MTA investigator that the operator of the bus that struck plaintiff was driving too close to the curb. The investigator, however, testified that the MTA’s operating criteria and standards are much higher than anyone else’s. On appeal, the First Department vacated the judgment, finding that the admission of the investigator’s testimony that the MTA holds its driver to a higher standard of care than required by the common law was clearly erroneous. Let this be a reminder to all companies, common carriers especially: although your regulations may hold your employees to a higher standard, for the purposes of legal liability, what matters is the common law. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Our Remote Summer Associate Experience at WCM During COVID-19 August 10, 2020 < Back Share to: (The following post is a collaboration from our 6 Summer Associates for 2020, who, suffice it to say, received a very different WCM experience than we were all planning. They all did a great job, and hopefully, learned a lot in this unique, remote environment. Best of luck to Gina, Drew, Alex, Jessica, Daniel & Rebecca in their 3L year and beyond). When we accepted our offers to spend our 3L summer at WCM, we pictured 10 weeks of mingling with our coworkers in a bustling office, collaborating  in conference rooms and travelling between the office and  court to see the associates  and partners in action. Of course, COVID-19 had different plans. Instead, we collaborated over Microsoft Teams, observed remote depositions, and best of all, attended a remote happy hour or two. Although many of our peers were scrambling to find alternative opportunities for the summer, WCM honored their word and provided us each with a meaningful experience, despite the hardships caused by COVID-19. WCM made it possible for us to experience their firm culture without ever stepping foot in an office by adapting their summer program to be 100% remote, yet still effective. Over these past 10 weeks, we worked with various Partners and Associates on a wide range of assignments such as drafting memoranda of law, motions, and subpoenas, and various legal research assignments. These assignments introduced us to many different fields of law, like insurance coverage, torts, employment, and even environmental. Additionally, we collaborated on an extensive research project for a client, which provided an interesting gateway into the world of insurance coverage throughout the United States. We saw the product of our work come to life when two Partners presented our research in a client presentation. Even though the impact of COVID-19 completely changed the expectations we had for the summer program, working remotely had a silver lining: we were able to work with Partners and Associates from all of WCM’s offices, an opportunity we likely would not have had if our program were in-person. After spending 10 weeks at a law firm during a global pandemic, it is clear that the practice of law is likely forever changed and will continue to face obstacles. But WCM's ability to run effectively, and provide a fulfilling legal experience, offers hope for what is to come in the legal field. Despite the chaotic circumstances, we thank WCM for its mentorship, and for providing us with knowledge and skills that have better equipped us for a career as lawyers. Sincerely, Alex Goldberg, Drexel University’s Thomas R. Kline School of Law Daniel Axelrod, Maurice A. Deane School of Law at Hofstra University Drew Fryhoff, Brooklyn Law School Gina Rodriguez, New York Law School Jessica Melusky, Drexel University’s Thomas R. Kline School of Law Rebecca Stark, St. John’s University School of Law Previous Next Contact

News New NY Insurance Disclosure Obligations Effective December 31, 2021 (NY) July 6, 2017 < Back Share to: On December 31, 2021, New York State Governor signed into law a new act implementing much more rigorous insurance disclosure obligations than previously existed. While defendants in New York have always been required to disclose applicable insurance policies and coverage limits, defense attorneys had some flexibility as to the timing of such disclosures. Unless plaintiffs attorneys pressed the issue, it was often not necessary to disclose the full insurance policy as long as the policy information and limits were disclosed, or possibly provided along with the declarations page only (redacted as to the insured’s premiums). The newly-signed Comprehensive Insurance Disclosure Act modifies the insurance disclosure rules contained within CPLR §3101(f) by compelling strict and rigorous disclosure of the complete primary, excess, and umbrella policies implicated by a claim. The below changes will require swift action from defense counsel as well as carriers to obtain and disclose information regarding all currently-pending claims and all new claims moving forward within 60 days of the law taking effect: 1. Defendants will be required to provide plaintiffs with complete information for any insurance agreement through which a judgment could be satisfied within 60 days after serving an answer. This requirement extends to a complete copy of all applicable policies, including declarations, insuring agreements, conditions, exclusions, endorsements, and any other documents bearing upon coverage, including applications for insurance. 2. Defendants must disclose any other lawsuits that have already reduced or eroded, or could potentially reduce or erode, any policy limits, including the amount of attorneys fees that have eroded or reduced the face value of the policy, along with contact information for the attorney who received such legal fees. 3. Defendants must disclose the contact information of the claims adjusters, including the telephone number and email address. This includes third-party administrators and people within the insuring entity to whom the third-party administrator must report. 4. Additionally, the newly-added section, CPLR §3122-b, requires that all insurance disclosures made pursuant to CPLR §3101(f) must be certified by both the party themselves and the attorney to ensure that the information disclosed is accurate and complete. This would require an affirmation or an affidavit. The new disclosure obligations of CPLR §§ 3101(f) and 3122-b are effective throughout the life of an action, and defendants are directed to provide updated information within 30 days of receiving any information that would render the prior disclosure inaccurate or incomplete. The disclosures as detailed above are to be completed by March 1, 2022 for all currently pending actions, and within 60 days of service of an answer for all future new actions. Although there is already an amended version of the Comprehensive Insurance Disclosure Act in the works, if adopted the amended bill would likely leave in place the rigorous certification requirements. The amended version would relax some requirements, by lengthening the notification period from 60 days to 90 days, and eliminating the requirements to share insurance applications (which often contain an applicant’s private personal financial information) and related lawsuits. It is unclear at this time what type of penalties might be enacted for failure to disclose, and how rigorously the courts will enforce these new requirements. However, unless and until the new Comprehensive Insurance Disclosure Act is amended, all defense counsel and claims adjusters must take action to review their case loads and comply by the operative disclosure deadlines. At this time, we recommend that all carriers promptly review the following list of “action items” and cooperate with defense counsel in preparing to timely make the required disclosures by the March 1, 2022 deadline: • At the inception of a case, identify all policies at issue, procure copies of all policies at issue, and identify any lawsuits that have reduced or eroded the policies. • Disclose the above information to defense counsel. • Continuously monitor the policies at issue and immediately report any changes to defense counsel. • Provide name, telephone number, and e-mail address for claims adjusters (including TPAs). • Provide up-to-date contact information throughout litigation for insured. • Put the insured on notice that they will be required to prepare a certification in cooperation with defense counsel, and also advise that their insurance application will be turned over to plaintiff’s counsel. Thanks to Shira Straus for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News We Didn’t Start the Fire: First Dept. Reverses Trial Court and Grants Summary Judgement to Landlord February 9, 2017 < Back Share to: New York City real estate is often a Darwinian landscape with cramped living spaces and high prices. Despite this, if you are not prepared to deal with the conditions, a hundred other people will gladly stand in line to do so. However, disputes often arise between a tenant and landlord/management for injuries allegedly sustained within the premises due to appliances, stairways, and/or maintenance. In the matter of Sandra Kaplan v. Tai Properties, LLC, et al, a tenant plaintiff sustained a burn to her head when she used a match to try to light a burner on the top of her gas stove because the stove’s igniter did not work. The Supreme court’s denial the defendants’ motion for summary judgment was unanimously reversed by the First Department Appellate Division. The plaintiff herself had bought the stove and had it installed. The lease between the parties required the landlord to repair and maintain any appliance provided by the landlord, but imposed no specific duty to repair or maintain appliances supplied by the tenant. The Court found that since no duty to repair the appliance was imposed by statute, by regulation or by contract, the defendants were not liable. Plaintiff’s allegation that the accident was related to a condition created by defendants in the course of a gas pipe replacement project in the building was unsupported by the evidence. Defendants demonstrated that the project was performed by a licensed contractor, pursuant to permits, and was inspected and certified as safe when it was completed which was two year before the accident. The property manager also testified that the project did not involve any work on plaintiff’s stove, except to make sure that there was gas service with no leaks. This case demonstrates that merely because an injury was sustained within the premises is not enough to create fault. Further, management companies and landlords that follow proper procedures and document the same, can significantly increase their chances of dismissal in an instance when the alleged occurrence was not their creation and fault. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News No Immunity For Utility's Negligent Placement Of Pole May 15, 2012 < Back Share to: In Seals v. County of Morris , the New Jersey Supreme Court held that Jersey Central Power & Light was not immune from liability for its negligent placement of an electrical pole. The Court held that if a government entity directed the utility where to place the pole, then N.J.S.A. 48:3-17.1 conferred immunity on the utility. However, where there is no governmental dictate or order , as in Seals, ordinary negligence standards apply and utility companies that place their poles without considering whether they are in dangerous locations can be held liable for resulting injuries. In Seals , the utility pole had been at its location , an old stagecoach route, since approximately 1937. The location had been the site of several prior accidents and the pole had previously been replaced three times. http://lawlibrary.rutgers.edu/collections/courts/supreme/a-84-10.opn.html Please contact Robert Ball with any questions regarding this post.   Previous Next Contact