News Bound to Your Transcript: Careful What You Say in NY September 16, 2009 < Back Share to: The long standing rule that a party cannot submit a self-serving affidavit nor allege a new theory of liability for the first time in opposition to a summary judgment motion was recently upheld in Nicholas v. New York City Housing Authority. In Nicholas, the plaintiff testified that he slipped on a wet condition located on a staircase owned by the NYCHA. NYCHA moved for summary judgment on the basis that it did not have actual or constructive notice of the condition. In opposition to the motion, the plaintiff submitted an affidavit alleging for the first time that he fell on a defective/broken stair. The lower court denied NYCHA’s motion, but the First Department reversed and dismissed the complaint based on the fact that the plaintiff tailored his affidavit to avoid the consequences of his deposition testimony. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06463.htm Previous Next Contact

News Defendant’s Motion To Amend Its Answer To Admit Averments It Previously Denied Two Years Previously Includes A Novel Attempt To Avoid Punitive Damages At Trial (PA) November 19, 2021 < Back Share to: A Lackawanna County judge has granted a defendant’s motion to amend his answer to admit averments that he had previously denied when filing the answer more than two years earlier. In Bellersen v. Gill, Plaintiff, Gina Bellersen, was injured in a rear- end, chain collision motor vehicle accident in October 2018. Defendant Gill was the last vehicle in the chain, and upon filing his initial answer in October 2019, Gill admitted the accident, but specifically denied that he “operated his vehicle in a negligent, careless, and reckless manner.” Two years later, Gill moved to amend his answer paragraphs 17, 18, 31, and 320 of the Complaint “to admit that his failure to use due care while driving his vehicle … caused him to rear-end the vehicle in front of him, which in turn caused that vehicle to rear-end the vehicle [Bellersen] was driving, and further caused the front of [her] vehicle to hit the vehicle in front of her.” Gill also requested that the Order granting his motion to amend expressly state that his admissions to paragraphs 17, 18, 31, and 32 “shall not be used as an admission of any type of conduct which could serve as a basis for imposition of punitive or exemplary damages.” Apparently, given that Gill had started a chain-reaction collision, he hoped that conceding negligence might preclude the need for raising that issue a trial and thereby avoid the potential for punitive or exemplary damages. Plaintiff opposed the motion to amend as untimely and objected to the inclusion of “unnecessary and prejudicial language” in the proposed Order. Judge Terrence R. Nealon rejected the untimeliness argument, noting that Rule 1033 imposed no time limit on amendments of a pleading. The prejudice sufficient to deny amendment of the pleadings must be more than an mere detriment to the other party. A delay of two years in seeking to amend a pleading, without more, does not furnish a sufficient basis for denying a motion to amend. Although Judge Nealon granted Gill’s motion to amend, he held that the request that Plaintiff be foreclosed from making any evidentiary use of those admissions in support of her punitive damages claim was not an appropriate consideration in seeking leave to amend under Rule 1033. Instead, the preclusion of evidence at trial is a proper subject for a motion in limine addressed to the trial judge. Interestingly, although Judge Nealon refused to add the language requested by Defendant Gill, he did append a footnote to clarify that only factual admissions are treated as binding judicial admissions on a party. Factual admissions by Gill that he failed “to brake his vehicle,” “keep his eye on the roadway,” “inspect the vehicle,” “record his duty status,” and “stop for traffic ahead” and that he was speeding, texting, “using a cellular phone without a Bluetooth or hands-free device,” and fell “asleep while driving,” would constitute judicial admissions.. However, legal conclusions, such as his alleged negligence, carelessness, and recklessness, would not qualify as judicial admissions. The import of this case is that a party may amended its pleadings at nearly any time during the pleadings with the consent of the other party or leave of court. The right to amend should be freely granted absent an error of law or resulting prejudice. The “resulting prejudice . . . must be something more than a detriment to the other party since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.” Thanks to Jim Scott for his contribution to this article. Should you have any questions concerning this case, please contact Thomas Bracken. Previous Next Contact

News NY Court of Appeals addresses high low agreements. September 22, 2007 < Back Share to: Court holds that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). http://www.nycourts.gov/ctapps/decisions/jun07/89opn07.pdf Previous Next Contact

News Injured Landscaper Settles for Philadelphia Record $26.55 Million June 23, 2016 < Back Share to: In the largest single personal injury settlement from the Philadelphia Court of Common Pleas, plaintiff David Williams recently resolved his lawsuit for $26.55 million dollars. Williams, a landscaper for TruGreen lawn care, was ejected from a TruGreen-owned truck after crashing in a rainstorm. Williams suffered a fractured spinal cord, resulting in paralysis. Plaintiff sued TruGreen, his employer who owned the truck involved in the accident; ServiceMaster, TruGreen’s parent company; and vehicle maintenance companies Dickinson Fleet Services and Brooks Auto Repair. Williams claimed that TruGreen had a duty to ensure its work vehicles were in safe working condition, yet failed to do so. Williams also argued that Dickinson Fleet Services was at fault as it failed to take the truck out of service when inspecting it three days prior to the accident. Although a Dickinson field technician found that the right rear tire had insufficient tread and needed to be replaced, he neglected to "sticker" the truck to indicate that it should be taken out of service. Williams also claimed that Brooks Auto repair failed to replace or rotate the back tires and just replaced the front tires. TruGreen contended that Dickinson was at blame as it failed to provide adequate notice about the tire treads and further argued that Williams was contributorily negligent because he drove too fast for the road conditions. Dickinson argued it did not have the authority to remove the truck from service and fulfilled the extent of its obligation. Ultimately, the parties agreed that ServiceMaster and TruGreen would contribute $16.75 million to settlement, while Dickinson would contribute $9.5 million and Brooks Auto Repair $300,000. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News State Farm Must Defend Cyberbully Accused of Instigating Suicide (PA) December 14, 2018 < Back Share to: While attending a Pennsylvania High School, Zach Trimbur repeatedly harassed his female classmate, both in person and online. In a tragic turn, the classmate committed suicide. The classmate’s parents filed a suit in Pennsylvania state court, bringing claims of negligence and wrongful death and survival against Trimbur. State Farm brought a declaratory judgment action after Trimbur’s parents asked State Farm to defend and indemnify him against the lawsuit by referring to their home insurance policy that provided personal liability coverage. State Farm’s policy covers the cost of defending against claims arising from “occurrences,” which Pennsylvania state law has defined as accidents. However, on December 11, 2018, U.S. District Judge Mark Kearney sided with the insured and held that State Farm must pay for Trimbur’s defense. According to Judge Kearney, although Trimbur may have intended to hurt the girl, it is not conclusive that death by suicide was foreseeable from his cyberbullying. Judge Kearney further stated that “the true test of whether an accident occurred comes from when the situation is viewed from the perspective of the insured” and from Trimbur’s perspective, suicide was not foreseeable. Judge Kearney declined to answer whether State Farm must also indemnify Trimbur. And with the duty to defend being broader than the duty to indemnify, indemnification is certainly on the table. This question may remain unanswered until the close of discovery. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Duty To Defend Extinguished With Tendering Of Policy Limits December 28, 2016 < Back Share to: The Superior Court of New Jersey recently addressed policy exhaustion and an insurer’s obligation to defend its insured. In National Surety Corp. v. First Specialty Insurance Corp., the Superior Court ruled that an insurer may exhaust its policy to settle claims, even if that settlement did not end all claims. The court also ruled that once the settlement was approved and the policy limits were exhausted, the insurer was no longer obligated to provide a defense under the policy in connection with any outstanding claims. In brief, the National Surety matter arose out of an underlying lawsuit commenced against, among others, Universal Protection Services, LLC (“UPS”) and Taubman Centers, Inc. (“Taubman”). At all times relevant First Specialty Insurance Corp. (“FSIC”) insured UPS under a CGL policy. Additionally, Taubman qualified as an additional insured under UPS’s FSIC policy. As such, FSIC began defending UPS and Taubman in connection with the underlying lawsuit. Ultimately, FSIC entered into a partial settlement with the plaintiff to settle claims against UPS. Although, FSIC’s settlement with the plaintiff exhausted the FSIC policy limits, the settlement did not include a release of the plaintiff’s claims against Taubman. After exhaustion of the policy’s limits, it was FSIC’s position that, inter alia, its duty to defend any insured had ended. National Surety Corp. (“National”), Taubman’s excess insurer, subsequently commenced a declaratory judgment action against FSIC seeking, among other things, a declaration that FSIC still had a duty to defend Taubman against claims and pay for defense costs, regardless of the fact that the FSIC policy limits had been exhausted by FSIC’s settlement for UPS. Ultimately, the Superior Court concluded that FSIC’s exhaustion of its policy limits extinguished its obligation to defend Taubman. Thus, this case illustrates, under New Jersey law, the circumstances in which an insurer’s obligation to defend its insured may be extinguished, even though the insured still has claims pending against it. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News Stay In Your Lane December 8, 2011 < Back Share to: In Jahangir v. Logan Bus, the decedent was killed when she was hit in the head by the side view mirror of a minibus. The defendant moved for summary judgment, arguing that the decedent darted out into the street from between two parked cars, away from the cross walk and directly into the defendant's path. The plaintiff opposed the motion by producing an affidavit of a non-party witness, in whose car the decedent was a passenger. The witness stated that the decedent got out of the car and crossed quickly in front of his car and stopped in the area between his car and a bus that was stopped directly in front of his car. As the decedent did this, she stuck her head out directly "above the double yellow line" separating eastbound and westbound traffic for about two to three seconds, at which time the decedent was struck in the head by the driver's side mirror of the defendant's minibus. The Supreme Court, Queens County granted the defendant’s motion, holding that there was sufficient evidence that the defendant driver could not have avoided contact with the decedent. The Appellate Division, Second Department reversed the lower court's decision holding that there can be more than one proximate cause of an accident and that the issue of comparative negligence is generally a question for the jury to decide. The court further noted that the fact that the decedent's head may have been directly above the double yellow line when she was struck suggests that the mirror may have been straddling the double-yellow line, in violation of Vehicle and Traffic Law section 1128 (a). Thus, an issue of fact existed as to whether the defendant committed a statutory violation and whether that violation was the proximate cause of this accident. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08729.htm Previous Next Contact

News Homeowners Continue To Avoid The Harsh Liability Imposed By The Labor Law (NY) January 28, 2020 < Back Share to: In Campanello v Cinquemani, the plaintiff allegedly was injured while removing trees from the backyard of the defendant's Long Island single family home. The plaintiff was hired by the defendant's cousin, whom he considered his boss. At the time of the accident, the plaintiff was using the defendant's chainsaw to cut branches from a downed tree while another worker assisted him by pulling away the branches after they were cut. The defendant's cousin was operating an excavator to move another downed tree that was situated on top of the tree the plaintiff was cutting. According to the plaintiff, as he was using the chainsaw to cut branches from the downed tree, the excavator moved the top tree, causing a branch underneath it to snap back and strike him on the forehead. The plaintiff filed a lawsuit against the defendant homeowner, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6). The defendant moved for summary judgment dismissing the Complaint. The lower court granted the defendant's motion and the plaintiff appealed to the Appellate Division, Second Department. On appeal, the Appellate Division discussed the scope of the Labor Law, and the important homeowner exemption provision. The Appellate Division noted that Labor Law §§ 240(1) and 241(6) provide an exemption from liability for "owners of one and two-family dwellings who contract for but do not direct or control the work." The evidence submitted by the defendant in support of his motion, including the plaintiff's deposition testimony, established, prima facie, that the work was being performed at the defendant's single-family residence, and that the defendant did not direct or control the plaintiff's work. Next the Appellate Division considered the plaintiff’s argument on appeal, that the defendant/homeowner’s activities in visiting the work site, providing plans for the area to be worked on, making general decisions, and reviewing the progress of the work, placed the defendant outside the protections of the homeowner’s exemption. The Appellate Division ruled that these types of activities were “no more extensive than would be expected of the ordinary homeowner." The Appellate Division also agreed with the Supreme Court that a common law negligence claim could not be upheld because the defendant did not create or have actual or constructive notice of any dangerous condition involving the tree branch and the defendant did not have authority to supervise or control the performance of the plaintiff’s work. Accordingly, the Appellate Division affirmed the dismissal of the action. Thanks to George Parpas for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News No Recovery for Bitten Broker (NJ) June 29, 2018 < Back Share to: In Ward v. Ochoa, plaintiff allegedly serious injuries after being attacked by a pitbull while performing an appraisal of a property. She brought suit against defendants Century 21 Worden & Green and Ken Song for her injuries. The trial court granted summary judgment in favor of defendants and dismissed plaintiff’s claims, leading to her subsequent appeal. Song had entered into a listing agreement with the homeowners with a view toward conducting a short sale of their foreclosed residential property. Song, a realtor employed by Century 21, was the listing agent and the buyer’s agent. It was Song’s responsibility to ascertain the number and breed of the dogs the homeowners owned during the period of the listing agreement. Plaintiff, a licensed real estate appraiser, was assigned to inspect and appraise the subject property. Plaintiff was contacted directly by Land Safe Appraisal Services to perform the appraisal of the property. She was unable to get in touch with the residential property owners, so she contacted Song to facilitate making the appointment for the appraisal. At her deposition, plaintiff testified that no inquiry was made as to whether the home was owner occupied or if dogs were on the premises. However, Song informed plaintiff that there was a dog on the premises prior to the date of the appraisal. The homeowners contended that their dog did not have any vicious propensities prior to this incident. When plaintiff arrived at the property for the appraisal, there were two dogs crated in the kitchen and an older, lethargic pitbull was in the bedroom. Plaintiff described the older dog as calm and docile and did not object to the presence of any of the dogs or request their removal. The first half of the appraisal was without incident. As plaintiff examined the exterior of the home, she observed that the dogs were now out of their crates and on the deck making noise. As plaintiff walked toward her car, one of the pitbulls charged her and she ran away in fear. At the foot of the driveway, plaintiff was repeatedly attacked by one of the pitbulls which resulted in her sustained a fractured radius and nerve damage requiring surgery. It was undisputed that plaintiff never had a written agreement with Century 21 or Song. Further, the court found that the defendants were in compliance with the Century 21 internal policy to ensure that pets were appropriately secured by homeowners, as evidenced by the fact that the dogs were restrained and crated at the time plaintiff arrived. The trial judge determined that plaintiff could not maintain a negligence claim because no duty of care existed between the parties. The appellate court on review determined that plaintiff was injured as a result of her employment with P&R. The record was devoid of any evidence to suggest that plaintiff was a “customer” of Century 21 or Song. Consequently, there was no legal relationship between the parties and no privity of contract. As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed with prejudice. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NJ App. Div. Interprets Notice Of Other Actions Requirement In Complaints. February 19, 2010 < Back Share to: In Kent Motor Cars, Inc. v. Reynolds and Reynolds, the New Jersey Appellate Division held that the trial court erred in dismissing a successive action since the defendant failed to establish that it was substantially prejudiced by the plaintiff's failure to comply with its Rule 4:5-1 ( b) notice obligations. Rule 4:5-1 (b) requires that a party provide notice it its first pleading of the names of other potentially liable parties. The failure to comply with this notice can result in dismissal if the failure to provide notice was inexcusable and the undisclosed parties right to defend the succesive action was substantially prejudiced. The Court found that the undisclosed defendant was not in a worse position defending the successive claim than it would have been in defending the first action. www.judiciary.state.nj.us/opinions/a5246-07.pdf Previous Next Contact

News Damages in Baseball February 16, 2018 < Back Share to: Those who remember Elliott Maddox may feel déjà vu to learn a Yankees outfielder is suing over an injury sustained in a game against the White Sox. On June 29, 2017, then-Yankees outfielder Dustin Fowler was making his major league debut in right field in a road game against the Chicago White Sox. In the bottom of the first inning, Fowler tried to chase down a Jose Abreu foul ball, and, in the process, struck his right knee on an unpadded electrical box along the stadium wall in foul territory, rupturing his patella tendon and ending his season. Now, he is suing the White Sox and the Illinois Sports Facilities Authority, which generally oversees the maintenance of the White Sox’ park. On the issue of damages alone, despite the well-documented, traumatic nature of the injury, Fowler is nonetheless presented with several daunting obstacles. For instance, although his complaint claims severe and permanent injury as a result of the accident, unlike most plaintiffs, Fowler has a significant incentive to argue he had no issues in his recovery. Major League Baseball (“MLB”) players are under team control upon arriving in the majors, typically earning the league minimum for their first three seasons. For the next three seasons, players are only allowed to negotiate a contract with the one team, while the team holds exclusive rights to the player and almost all of the leverage. Or, if they cannot agree, the team and player go to arbitration on a year-to-year basis before the player is allowed to negotiate on the much more lucrative, open market of free agency. Fowler is therefore incentivized to demonstrate none of his skills were diminished and he is at no risk for further injury down the road as a result, lest he provide ammunition for teams to negotiate him down in arbitration and agency. Unsurprisingly, Fowler is already telling reporters he is on pace to be 100% cleared to play on schedule, referring to the allegations in his claim as “worse-case scenario” and “just in case something comes up.” By that same token, should Fowler perform well in 2018, his ability to argue his career prospects or physical capabilities were harmed by the accident at trial will be severely undercut. Moreover, although Fowler’s complaint claims significant medical expenses as a component of his damages, the collective bargaining agreement between the MLB Players Association and MLB virtually guarantees all of his medical expenses were covered by the New York Yankees and Workers’ Compensation. Similarly, although Fowler’s complaint also claims his inability to play the remainder of the season as part of his damages, alleging past lost wages in addition to future lost wages, ironically, the injury may very well have been a financial windfall. First, but for the injury, Fowler’s time in the majors was likely to be brief, as he was only called up as a temporary stopgap for several players with minor injuries. Generally, the 2017 Yankees outfield was quite crowded. Further complicating matters, although Fowler was and is a well-regarded prospect, Clint Frazier is near-unanimously considered to be his superior at the same position, and he filled in for Fowler until Hicks returned after the accident. Because of the injury, Fowler was placed on the major league disabled list—meaning for the months he was injured and unable to play, he acquired major league service time, which is necessary to get to more lucrative pay in arbitration and free agency. Moreover, during that time, Fowler was compensated on a prorated basis at the major league minimum salary--$500,000—as opposed to the $2,150 he would have earned as a player in Triple-A had he remained healthy and been sent back down to the minors upon Hicks’ return. Finally, on July 31, 2017, the Yankees traded Fowler to the Oakland Athletics, which the A’s say would not have been possible but for Fowler’s injury. Now, Fowler has a clear path to playing time in Oakland when he would likely have been buried on the bench had he stayed in New York. Ultimately, it is clear Fowler suffered a very painful injury, but given the unique circumstances of a professional athlete subject to a collective bargaining agreement, and the peculiarities of player compensation, his damages beyond pain and suffering may be very difficult to prove. While this exact fact pattern is quite rare, it speaks to the myriad factors which may be implicated by a plaintiff’s damages claims, and the potential use of creative defenses to combat them. Thanks to Nicholas Schaefer for his contribution to this post. If you have any questions, please contact Vito A. Pinto. Previous Next Contact

News PA Senate Bill 1222: Peer-to-Peer Carsharing And Insurance Implications July 22, 2022 < Back Share to: A new law was introduced in the House Appropriations Committee as an amendment to Senate Bill 1222 and officially became law on July 11th. The amendment outlines the coverage requirements for companies engaging in peer-to-peer carsharing, mandating an additional layer of insurance so injured third parties won’t be left uninsured if a car owner’s policy includes exceptions for livery, or business activities. Peer to peer carsharing is the process of renting vehicles from other people rather than traditional car rental companies. It has been coined “AirBnB for cars” and provides many benefits including lower prices and more variety in vehicle choices. The fledgling industry is not without complications, primarily on the insurance and regulatory fronts. Chief among the insurance issues is that some carsharing networks’ fine print says a renter’s personal auto policy would be the primary source for paying claims, even though most personal policies typically exclude renting or driving car-sharing vehicles from coverage. Some attorneys have noted the amendment is similar in substance to another proposed bill on the topic – Senate Bill 548. The bill, introduced in April 2021, was aimed at putting carshare companies on a more equal footing with car rental companies and to ensure additional protections for owners, drivers and third parties now that carsharing is on the rise. From the defense and carrier standpoint, the new law does not invalidate exclusions that are already in place, and it requires carsharing companies to provide coverage that would otherwise be out of bounds under the owner’s policy. However, litigators on the plaintiffs side have raised questions about the measure’s effectiveness in protecting the parties. Some have expressed concerns that because consumers’ personal auto insurance may contain an exclusion, they may be forced to rent these cars using the companies’ minimum insurance policies, which likely won’t provide adequate coverage in the event of an accident. One thing lawyers on both sides of the issue can agree on is that these new disputes will be headed to the courts. Thanks to Sydney Kockler for her contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact