News Insureds "Opt Out" of Significant UIM Award (PA) April 11, 2019 < Back Share to: Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insurer must provide uninsured (“UM”) and underinsured (“UIM”) motorist coverage equal to the bodily injury liability limits under an automobile insurance policy. However, like most laws and regulations, there is an exception to the rule: an insurer is not required to provide such coverage where an insured submits a written request for lower limits. Recently, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether a named insured changes the UM/UIM coverage limits for insured vehicles when, on a subsequent form adding another vehicle to the policy, he or she fails to affirmatively indicate an intention to “sign down” coverage for the originally insured vehicles. In Limandri v. Allstate Ins. Co, the Court examined the unique factual circumstances surrounding the named insureds’ procurement of coverage to determine whether a second automobile coverage form superseded the named insureds’ initial designation for lower UM/UIM coverage limits. In 2001, the named insureds obtained automobile insurance coverage with Allstate for four vehicles. Simultaneously, the named insureds executed a form requesting lower UM/UIM coverage. Soon thereafter, the insureds decided to add another vehicle to the policy, and signed another form (“2003 Form”) that “unequivocally requested lower UM/UIM limits for this new vehicle.” The form also listed the other vehicles covered by the policy; however, the parents did not check any boxes on the 2003 Form indicating they sought lower UM/UIM limits for the vehicles. The coverage dispute arose when the named insureds’ daughter sustained bodily injury while driving a covered vehicle. When Allstate notified the daughter that she was only entitled to the reduced coverage limit per the 2001 Form, the daughter commenced the instant action against Allstate seeking, inter alia, UIM coverage equal to the bodily injury liability limits. Essentially, she argued her parents did not check any boxes for lower UM/UIM coverage in the 2003 Forms. The daughter also argued: (1) the lower UM/UIM limits did not apply based on the plain language of the 2003 Form; (2) the 2003 Form was ambiguous; and (3) the bi-annual renewals and payments of lower premiums were irrelevant to the Court’s coverage determination. In applying Pennsylvania case law, the Court weighed the language contained at the top of the 2001 and 2003 forms, which included Pennsylvania’s MFVFRL requirement – if a named insured does not select lower UM/UIM limits, the limits set equaled the policy’s bodily injury liability limits – against the purpose of the 2003 Form to affirmatively provide information related to the new vehicle the named insureds sought to insure. In doing so, the Court reasoned that because the named insureds’ selection in 2001 for the initial three vehicles applied “to all future renewals” and the named insureds made no attempt to actively procure higher UM/UIM coverage for those vehicles, the named insureds “unequivocally signed-down” the UM/UIM coverage limits when they executed the 2001 Form. Moreover, the Court determined that the named insureds’ decision to leave the check boxes blank on the 2003 Form was not affirmative evidence of their choice to increase UM/UIM coverage limits since the named insureds provided no evidence to support that this was their intention. In sum, this ruling illuminates the weight given to the plain language of an insurance policy and how, in the context of UM/UIM coverage disputes, affirmative steps are needed to alter coverage limits. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions. 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 National Arbitration Forum’s Participation Necessary For Enforceability Of Arbitration Agreement November 22, 2010 < Back Share to: In Davidson v. Golden Living Center, the Pennslyvania Superior Court had to determine whether an arbitration agreement is enforceable when the clause states that a specific arbitration entity, in this case the National Arbitration Forum (NAF), but the arbitration entity is no longer accepting arbitration cases. The severability clause in the agreement stated that if a court finds any portion of the agreement unenforceable, that portion will be unenforceable but the rest of the agreement will remain effective. Here the arbitration forum selection clause of the arbitration agreement was held unenforceable because the specific arbitration forum was unavailable. Thus the court had to consider whether that clause was an essential term of the agreement and if that rendered the entire agreement unenforceable. The trial court held that the agreement was unenforceable because an essential term failed. The court said that the severability clause could not save the agreement because it would require the court to rewrite the arbitration clause and devise “a new form and mode of arbitration for the parties.” At the appellate level the defendants argued that the forum selection clause was not an essential part of the agreement because the primary purpose was not to have NAF arbitrate the dispute, but to have the dispute be submitted to arbitration. However the Court disagreed. Although generally an arbitration agreement will not fail because of the unavailability of a chosen arbitration forum, it will if the parties’ choice of forum is an integral part of the agreement. The court cited case law from other circuits holding that NAF’s participation in the arbitration process was an integral part of the agreement. The court adopted this reasoning as it own and held that in Pennsylvania, an arbitration agreement with a clause requiring the parties to arbitrate in front of the NAF will be rendered unenforceable because of the failure of an essential term of the agreement. Thanks to Remy Lapidus for her contribution to this post. http://www.superior.court.state.pa.us/opinions/A31040_10.pdf Previous Next Contact

News Is Getting The Right Panel Key to Appeal In NY's First Department ? May 17, 2012 < Back Share to: In New York's Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant's side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court. On appeal, the defendant did not challenge the Supreme Court's finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff's comparative negligence, precluding summary judgment. In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma. After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm Thank you for Gabe Darwick for this post. Previous Next Contact

News But Is It Covered By A Fine Arts All Risk Policy? March 23, 2010 < Back Share to: Shipping claims are the most common types of claims that arise under an all risks fine arts policy. Disputes over the applicability of the Carmack Amendment and diminution in market value inevitably ensue. With all this as background you would think packers would be ever more vigilant about the work they perform. And no doubt many are. But, fine art lifting Olympics certainly can't be a step in the right direction! Fine Art Lifting Olympics If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Playgrounds Are Still Allowed to Pose Some Risk, In Theory Anyway (NY) August 22, 2019 < Back Share to: Most people older than a millennial remember the "good old days" when playgrounds resembled death traps, complete with metal slides that burned your skin, monkey bars the height of a small building, and swings that seemingly reached the sky. In a post-Stranger Things world, however, playgrounds are now constructed to comply with more stringent safety regulations, and to avoid even the slightest prospect of danger. But as one Second Department decision makes clear, all the fun-proofing in the world will not stop the lawsuits. In V.W. v. Middle Country Central School Dist., a school was sued by the parent of a girl who hurt herself falling off a set of monkey bars. According to the plaintiff, the school district should be held liable because it negligently supervised the girl and negligently maintained its premises. In the trial court, the school district was awarded granted summary judgment. However, the Second Department reversed. On appeal, the school district actually prevailed on the negligent supervision claim. According to the Second Department, the school district provided adequate supervision. The Court even held that falling off monkey bars is an incident which could not be prevented with closer monitoring. However, the Second Department reversed the decision on the negligent maintenance claim. Although the school district offered expert testimony showing the playground complied with applicable regulations, the expert also confirmed that the monkey bars had been removed by the time she inspected and she had also been unable to confirm surface conditions on the day of the accident. The Court’s decision in V.W. is significant because it does provide playground owners and operators some comfort that it is possible to avoid liability for risks that used to be a given. But it also shows that they must show constant vigilance in maintaining the ground and preserving the evidence. Here, the expert was rendered unable to inspect the monkey bars, because they had been discarded. Hence, an issue of fact to deny summary judgment. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any question.   Previous Next Contact

News PA Common Pleas -- Property Owner Is Not Responsible For Poor Drainage. January 4, 2008 < Back Share to: In the case of Gayhardt-Stang v. Dept. of Transportation, PICS Case No. 07-2110 (C.P. Lehigh Nov. 5, 2007), the Court ruled that a property owner is not responsible for poor drainage conditions on an adjacent highway. http://www.palawweekly.com/plw/printarticle.aspx?ID=24778 Previous Next Contact

News Labor Law And The "Construction Area" November 9, 2010 < Back Share to: In Pirog v. 5433 Preston Ct., LLC, Pirog injured his hand while he and his co-workers were stacking pipes on the defendant’s property. Pirog's employer used the defendant’s property to store construction materials for use on various construction projects throughout the City. Pirog commenced suit asserting that the defendant violated Labor Law sections 200, 240(1) and 241(6). The defendant moved for summary judgment, but its motion was denied. On appeal the Second Department reversed the lower court's decision and granted the defendant summary judgment holding that, at the time of his accident, the plaintiff was not engaged in construction work and was not working in a construction area within the meaning of the Labor Law. Thanks to Ed Lomena for his contribution ot this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07912.htm Previous Next Contact

News Court Dismisses Defamation Suit Stemming From Negative Google Review (NY) October 27, 2022 < Back Share to: This past week, in DeRicco v Maidman, the First Department of the Appellate Division of the Supreme Court of New York reversed a trial court decision that denied a defendant patient’s motion to dismiss an orthodontist’s defamation claims against them. The claims were brought by the orthodontist and his professional corporation against the patient and his parents after the parents posted an unfavorable (but anonymous) Google review. The First Department held that the review, which asserted that the orthodontist charged hidden fees, was not open during his stated business hours, and “did a horrible job” on the patient’s braces rendering the patient’s teeth “crooked and misplaced”, contained elements of both fact and opinion but was not actionable under New York law. Generally, NY courts presented with defamation suits must consider the “circumstances and [ ] the broader social context (i.e., the factual background)” to evaluate whether the message would be taken literally or figuratively by the ordinary person. Steinhilber v. Alphonse, 501 N.E.2d 550, 555 (N.Y. 1986). Here, the First Department considered the review in its overall context; for more than a decade, New York courts have noted that readers “give less credence to allegedly defamatory remarks published on the Internet than to similar remarks made in other contexts.” With this in mind, the court held that the review of the orthodontist posted by the patient’s parents would be understood by a reasonable reader to be “pure opinion” based on its anonymity and its “arguably loose, figurative, or hyperbolic tone.” Thus, the First Department ordered the trial court to dismiss the orthodontist’s complaint against the patient and his parents. Thanks to Jason Laicha for his contribution to this post. Please email Brian Gibbons with any questions about defamation claims and the defenses thereto. Previous Next Contact

News School Properly Responded To Threat Against Student (NY) June 7, 2013 < Back Share to: Schools have a duty to adequately supervise students, but are not insurers of student safety. A school will only be held liable for injuries intentionally inflicted by another student where it is established that the dangerous conduct could have been reasonably anticipated. Following this rationale, in Conklin v. Saugerties Central School the Third Department dismissed a claim for negligent supervision. There, plaintiff’s father discovered comments on his daughters MySpace account indicating that another student, Edwards, intended to fight her. The next day, the school’s social worker met with the girls, and both denied any intention to engage in a physical altercation. School officials also met Edwards to discuss the disciplinary implications of fighting. Edwards told the school she had no intention of fighting and had made no threats to do so. Later, Edwards pulled plaintiff to the ground by her hair and repeatedly punched her in the head. Notwithstanding the prior notice of the attack, the Appellate Division found that the school reasonably responded to the rumor of a threat, determined it was unfounded and could not have anticipated the assault. The court also noted that Edwards's disciplinary file showed no history of fighting or violence. Finally, the court found that the MySpace post was merely a rumor rather than a direct threat. Accordingly, the school was awarded summary judgment. When a school receives notice of a potential threat, the Appellate Division will carefully scrutinize all efforts made to address and prevent the assault. If a school has taken reasonable steps to address the claim, the school may avoid liability. Thanks to Bill Kirrane for his contribution to this post. If you have any questions about this post please email Paul Clark at pclark@wcmlaw.com .   Previous Next Contact

News Eight (Years) is Enough -- Plaintiff's Delinquent Discovery Finally Prompts Dismissal (NY) January 8, 2019 < Back Share to: As every litigator is well aware, particularly in New York, the wheels of justice tends to turn slowly. This concept was never more apparent than in the case of Harris v. Kay. This 2019 First Department decision has a 2006 index number. Plaintiff appealed from a 2017 order granting defendant’s motion to strike the complaint. The Appellate Division found the trial court did not abuse its discretion in striking the complaint given plaintiff’s repeated, willful and contumacious refusals to provide discovery and comply with court orders over EIGHT years. This decision goes to show the level of leniency courts grant plaintiffs before entertaining the sanction of dismissal. Plaintiff’s response to defendants’ first set of interrogatories were served SIX years after the initial demands were made and the response failed to show a good-faith effort to address the requests meaningfully. It is a point of great frustration for defendants when plaintiff’s initiate lawsuits and then fail to prosecute and it takes years of good faith letters and motion practice, only to get an inadequate response. While this decision gives plaintiffs significant leeway, it is heartening to know there are limits to a court’s generosity. Let’s hope more judges make the resolution to keep more stringent discovery schedules! The salient point for defendants is simple -- when plaintiffs fail to adhere to discovery orders, document those failures by publishing letters to the plaintiff. The more failures documented, the more persuasive the eventual dismissal motion will be. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Allstate Blocked From Writing New Policies In Florida January 16, 2008 < Back Share to: The Florida Insurance Commissioner has blocked Allstate from writing new policies in that state until Allstate complies with subpoenas issued by the Florida Office of Insurance Regulation. The Subpoenas seek documents regarding Allstate’s reinsurance program, it’s relationship with risk modeling companies, insurance rating organizations and insurance trade associations. http://www.insurancejournal.com/news/southeast/2008/01/16/86463.htm Previous Next Contact