News Surrender to Sandy? November 1, 2012 < Back Share to: Not a chance. Even with -- power out; roadways and streets flooded and strewn with trees and crackling power lines; mass transit crippled; land line telephone service cut; and, cellular service spotty at best -- WCM attorneys and staff "texted" themselves back to serving you, our clients, and your insureds. Or else, we did business the old fashioned way -- meeting face-to face in small groups. We give thanks that all WCM personnel got through Frankenstorm in good form, though many of us are still without heat or power in our homes and apartments. Our hearts go out to those who have suffered greatly, and we have resolved to help others in any way we can. But we wanted everyone to know that we are fully back in business in New York, New Jersey and Pennsylvania and nothing has slipped between the cracks. Your Friends at WCM Previous Next Contact

News First Department Reverses NY Supreme Ruling on &quot;Triable Issues of Fact&quot; May 20, 2010 < Back Share to: Under §7-210 of the Administrative Code of the City of New York, a property owner is responsible to maintain the sidewalk abutting their property and keeping it in a reasonably safe condition. Moreovoer, liability for an accident on a sidewalk abutting real property will arise if a plaintiff can establish that the owner of the abutting property either created or had prior notice of the allegedly dangerous condition. In Early v Hilton Hotels Corp., 2010 NY Slip Op 04235 (1st Dept. 2010) plaintiff was injured on the sidewalk abutting the owners' premises, when she tripped and fell due to a plastic strap. In granting summary judgment to the defendants, the Court notes that defendants established lack of actual notice via the testimony of an employee at their loading dock, who testified that he never saw any plastic straps anywhere on the ground on the date in question. Plaintiff testified that she had never seen any plastic straps on the ground either. Based primariliy upon these two depositions, the Court granted summary judgment in favor of defendants. Given the facts, the First Department's decision should not be surprising. What should be surprising, however, is that in order to reach this decision, a unanimous reversal of the New York County Supreme Court decision was required. Thanks to Brian Gibbons to his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04235.htm Previous Next Contact

News New York TLC Ordered to Make Taxis Wheelchair Accessible December 30, 2011 < Back Share to: Last week Judge George Daniels of the Southern District of New York found that the New York Taxi and Limousine Commission was in violation of the Americans with Disabilities Act because of its failure to have enough wheelchair accessible taxis. Specifically, the Court found it unacceptable that only 232 of the over 13,000 taxis operating in New York City were so equipped. As a remedy, Judge Daniels enjoined the TLC from issuing new medallions to any taxi or livery cab unless the vehicle is wheelchair accessible. This ruling nullifies a deal that the TLC had recently struck with the State, in which the City had agreed that 20% of the first 6,000 street-hail livery licenses sold next year would be for wheelchair-accessible vehicles. Under this new ruling, no non-wheelchair accessible taxis will be issued medallions until the City is able to develop a long-term plan to provide “meaningful access” to disabled riders. http://www.insurancejournal.com/news/east/2011/12/27/228773.htm http://articles.nydailynews.com/2011-12-23/news/30552861_1_assemblyman-micah-kellner-wheelchair-accessible-cabs-wheelchair-accessible-vehicles Thanks to Brian Gibbons for his contribution to this post. Previous Next Contact

News Sidewalk Liability for Snow and Ice Continues to Evolve in NJ. May 29, 2012 < Back Share to: In the case of Gray v. Caldwell Wood Products, et al., New Jersey’s Appellate Division was faced with the question of whether a commercial owner of a vacant property has an obligation to remove snow and ice from the sidewalk. The trial court, relying on precedent, had ruled in the negative and dismissed the claim. The Appellate Division has now reinstated the claims. In reaching its decision, the Court focused on the fact that the property was not vacant land (with nothing on it), but rather a commercial property that simply lacked tenants (because it was for sale) when the accident occurred. Based on this fact, the Court was blunt – the property “had the capacity to generate income and, had, in fact, generated income in the recent past”. Thus, the Court reasoned it was proper to make the lot’s owners responsible for sidewalk accidents. In other words, if you make, can make, or have made money from your land in the past, you are responsible for the sidewalk. Harsh words for commercial property owners in New Jersey. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News N.J. Court Requires Higher Standard of Care for Fire Safety System Inspections. July 6, 2012 < Back Share to: In Wayne and Irene Davis v. Brickman Landscaping, Ltd., et. al., the N.J. Appellate Division discussed the standard of care applicable to fire-safety system inspection professionals. Here, plaintiffs (mother, daughter and son) were staying at a hotel in a second-floor suite from which their only means of ingress and egress was a staircase with a storage closet underneath it. The storage closet did not have any fire sprinklers installed. A lit cigarette was thrown onto landscaping mulch located next to the building. Thereafter, a fire ignited, spread to the storage closet and up the staircase to the second floor where both children died. The plaintiffs filed suit against the companies that inspected the sprinkler and fire alarm system. The Trial Court noted that New Jersey adopted the National Fire Protection Association’ (“NFPA”) regulations in determining the responsibilities of fire-safety inspection professionals. While the original version of the NFPA required installation of sprinklers throughout a residential building, subsequent versions only required inspectors to conduct visual examinations for normal wear and tear with no obligation to find installation flaws. Testimony revealed that the defendants (3 separate inspection companies) had periodically inspected the fire safety systems, but all failed to note that the storage closet was void of sprinklers. Plaintiffs’ expert opined that the NFPA was the minimum standard of care for sprinkler system inspections, and that inspectors have a higher standard (reasonable care). Defendants argued that there was no evidence that they violated the NFPA and plaintiffs’ expert’s testimony that a “reasonable care standard” applied was simply an unsupported “net opinion”. The Trial Court entered summary judgment in favor of the defendants finding that they complied with the NFPA which was dispositive on the issue of negligence. Plaintiffs appealed the Trial Court’s decision arguing that simple compliance with NFPA is in fact not dispositive on the issue of negligence. The Appellate Division agreed with the plaintiffs finding that the N.J. Supreme Court has announced many times that compliance with a safety regulation is not always dispositive on the issue of negligence. The risk posed by a certain trade or industry by dangerous hazards requires use of the “reasonable care” standard. The Court noted that the appropriate standard is what a reasonable member of that particular industry or community would have done. Compliance with a regulation does not prevent a finding of negligence if a reasonable person would have taken additional precautions. The Appellate Division therefore reversed the trial court and remanded the case finding a genuine issue of material fact as to whether defendants exercised reasonable care despite their compliance with the NFPA. Special thanks to Andrew Marra for his contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Fan Sues Yankees Over Steroids, Alleging Fraud January 14, 2008 < Back Share to: A longtime Yankee fan has brought a claim against the New York Yankees in small claims court. The fan is seeking reimbursement of $221 for tickets to games he attended, comparing the use of steroids and other performance enhancing drugs to consumer fraud. No word on the Yankees’ response. http://www.claimsjournal.com/news/national/2008/01/14/86394.htm Previous Next Contact

News Negligence After an Intentional Act Can Still Trigger Coverage (PA) December 5, 2013 < Back Share to: In a recent opinion, the Middle District of Pennsylvania held negligence after an intentional act, which would traditionally exclude coverage under an insurance policy, can still constitute an occurrence thus triggering an insurer’s duty to defend under a policy. The case, Nationwide General Insurance Company and Nationwide Mutual Fire Insurance Company v. Gary DiBileo, Jr., Jerald Coyne, and Jonathan Martines, No. 3:19-CV-01003, is a declaratory judgment action arising out of underlying action brought against various defendants, that involved a freshman at Penn State passing away as a result of a night of extensive drinking and hazing at a fraternity. Nationwide had issued homeowners policies to the named defendants’ parents. Nationwide commenced a declaratory judgment action seeking a declaration that it did not owe coverage for the underlying action. Ultimately, Nationwide filed a motion for summary judgment asserting exclusions to coverage. Nationwide’s arguments in its motion focused primarily on the defendants-insureds’ intentional actions, which were allegedly performed in an effort to provide some relief or care to the deceased prior to his passing. Nationwide claimed that since the acts were intentional, and the negligence thereafter resulted in the deceased’s passing, the criminal acts exclusion should apply. The court disagreed. The court reasoned that simply performing intentional acts that would traditionally fall within an exclusion prior to acting in a negligent manner did not discount the finding of an occurrence. The court continued, the negligence itself is the issue, not the intentional acts surrounding the negligence, and as such the negligence constitutes an occurrence that properly triggered Nationwide’s duty to defend. The court did preserve Nationwide’s ability to renew the motion as the underlying action factually developed. Thus, this case illustrates that Pennsylvania courts are likely to find a duty to defend when there are claims stemming from an insured’s intentional acts when there are also claims of negligence being asserted. Thanks to Abigail Wilson for her contribution. Please email Colleen Hayes with any questions. Previous Next Contact

News NJ Limits Employer's Right to Retain Employee Personal Email July 1, 2009 < Back Share to: Technology has changed our lives in profound ways. Few of us hand write letters or call our friends and relatives at their home telephone numbers. We email, text and tweet information whether at home, at work or in the car. This information revolution has challenged the courts to resolve competing interests in the use of these new technologies. Many businesses have responded by enacting policies that define as "company property" any communications sent through company servers or equipment. These policies generally reserve the right of an employer to review, inspect and intercept all electronic communications. What happens if an employee uses a company issued laptop to send an email to her attorney through a personal, web-based email account? May the employer access and review those communications if their images are found on the computer's hard drive? Put in the the broader context, does a company's electronic communications policy trump the attorney-client privilege when an employee uses firm equipment to facilitate her communications? No, according to Stengart v. Loving Care Agency, Inc. et al. In Stengart, an employee communicated with her attorney before she resigned from the company on a company issued laptop. After she resigned, the company extracted and created a forensic image of the hard drive. The company's attorneys later discovered numerous email communications between plaintiff and her attorney. In response to the defendant's disclosure of these emails in written discovery responses, the plaintiff requested, among other things, the return of all such documents and a ban of their use by the defendant on the basis of privilege. In a broadly written opinion, the Appellate Division held "the company policy is of insufficient weight when compared to the important societal considerations that undergird the attorney-client privilege." Moreover, the court seemed to suggest that an employer's right to access, review and retain private email communications was limited because "a policy imposed by an employer, purporting to transform all private communiations into company property [made on company owned equipment] ...furthers no legitimate interest." Stengart will not be the last word on this important and topical issue. http://www.judiciary.state.nj.us/opinions/a3506-08.pdf Previous Next Contact

News Speculative Cause of Accident Falls Flat (NY) March 30, 2018 < Back Share to: In Gani v Avenue R Sephardic Congregation, the plaintiff allegedly fell down an interior staircase in the defendant's synagogue. The plaintiff filed a lawsuit in Kings County Supreme Court claiming the defendant’s negligence caused the accident and his personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff was unable to identify the cause of his fall. The Supreme Court granted the motion and the plaintiff appealed. The Appellate Division’s decision recapped the law as it applies to real property landowners: “In a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.” However, the Court noted that there is another way to establish summary judgment: “a defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident.” This inability to identify the cause of the fall is fatal because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. The Appellate Division’s decision relied upon the plaintiff’s deposition testimony, which established that the plaintiff was unable to identify the cause of his fall. As such, the Appellate Division upheld the summary judgment finding of the trial court. Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News N.J. Court Determines Coverage For Injury Near Stores In Close Proximity April 12, 2012 < Back Share to: A recent N.J. Appellate Division case analyzed the often complicated assessment of insurance coverage for personal injuries that occur on a property with more than one commercial tenant. In VSH Realty, Inc. and Cumberland Farms v. Sub Busters, the underlying plaintiff visited a strip mall intending on visiting both Sub-Busters and Cumberland Farms. As she walked from her car towards the entrance of Cumberland, she slipped and fell. The jury subsequently found Cumberland liable for failing to clean and remove snow outside their store . The property owner sought indemnification from Sub-Busters’ insurer (Cumberland Mutual) based on policy language providing coverage to the property owner but only with respect to liability arising out of the maintenance, ownership or use of that part of the designated premises leased to Sub Busters. The Trial Court, based upon a review of the above language, declared that Cumberland was owed coverage from Sub-Busters' insurer. The Appellate Division reversed and held that the accident did not arise out of the maintenance or "use" of Sub-Busters' leased premises. Although under New Jersey law a commercial tenant may be "using" its premises even if a claimant/customer is injured when not physically present on their property, such was not the case in VSH Realty. Of significance, the plaintiff was walking into Cumberland Farms with only a future intention of going to Sub-Busters: plaintiff was never actually on Sub-Busters' property. Further, it was conclusively determined during underlying trial that the slip and fall occurred because of Cumberland’s sole negligence in failing to clear the walkway. A further review of Sub-Busters’ insurance policy demonstrated that Cumberland Mutual agreed to only indemnify VSH for claims arising out of the maintenance or use of the property leased to Sub Busters. Since the area where plaintiff fell was not leased to Sub-Busters nor did the accident arise out of Sub-Buster's "use" of the premises, Sub-Busters' insurer had no duty to defend or indemnify the strip mall owner. ("we reject an extension of that body of law to cover such an event [that] would suggest that leased premises were "used" merely because the injured patron intended, without acting on the intention, to patronize the premises."] This case once again highlights the tricky interpretation of commercial general liability policies when two or more entities are conducting business in a very close proximity and a patron is injured in a common area. Thank to Andrew Marra for this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com     Previous Next Contact

News Private Information Posted to Social Media Accounts To Be Produced When Relevant March 20, 2018 < Back Share to: The issue of discovery access to a party’s private social media postings had not previously been addressed by a Pennsylvania appellate court. The Monroe County Court of Common Pleas dealt with this question in Roth v. Great Wolf Lodge of the Poconos, LLC by referring to trial courts from other jurisdictions. It held that there was no evidentiary threshold that a party seeking private information from a social media account needs to meet so long as it can show that such information is relevant to the other party’s claims. In Roth, plaintiff, Michael Roth, claimed he collided with his daughter on a waterslide at the Great Wolf Lodge. Great Wolf Lodge demanded the Facebook wall posts of Michael and his wife, Lauren, made during the year immediately prior to the alleged accident and the year after. The Roths refused to comply. They objected on the grounds that Great Wolf Lodge failed to produce any evidence indicating that the private sections of their Facebook accounts would provide relevant information and argued that Great Wolf Lodge was entitled only to information posted to the public sections. Great Wolf Lodge filed a motion to compel responses to its requests for the private information. Without any binding Pennsylvania precedence, the court relied primarily on three cases from different federal district courts. The first, Georgel v. Preece, a Kentucky federal case, required an evidentiary bar, holding that private information from social media accounts is discoverable only if the party seeking the information can show that the other party’s public postings contain information that undermines that party’s claims. At the other end of the spectrum was Higgins v. Koch Development Corp., an Indiana federal case that held that all social media postings were relevant and required to be produced without any evidentiary showing by the party seeking the information. Finally, Giachetto v. Patchogue-Medford Union Free School District, a New York federal court held that the proper method was to have the non-seeking party’s counsel review the information and determine what is relevant to the claims, keeping in mind the broad scope of discovery. The Roth court favored the approach from Giachetto. It opined that imposing the Georgel evidentiary bar could shield relevant evidence from disclosure merely because a social media user chose not to share any information publicly. A more balanced approach was adopted. The court decided that counsel for the Roths would have to review the Facebook accounts for private postings related to the alleged accident, and the Roths’ ability or inability to enjoy physical activity, which it deemed relevant to the Roths’ claims. Thanks to Robert Truchick for his contribution to this post.     Previous Next Contact

News First Party Disclaimer "Collapses" in New York April 10, 2009 < Back Share to: A New York federal appellate court recently addressed the interpretation of the meaning of “collapse” as found in an all-risk policy in Dalton v. Harleysville Wor. Mut. Ins. Co. Plaintiffs owned a three-story townhouse in Brooklyn, and discovered damage to an interior wall. The damage was so extensive, that the NYC Department of Buildings ordered that the building be vacated. Harleysville disclaimed coverage under its all-risk policy, citing exclusions for decay, and settling. Although the policy had an additional coverage section that provided coverage for damages resulting from “risks of direct physical loss involving collapse of a building or any part of a building caused … by … hidden delay,” the policy did not provide coverage for a collapse that included “settling, cracking, shrinkage, bulging or expansion.” Harleysville also argued that to constitute a collapse, the buiding needed to sustain “total or near total destruction,” and that a “sudden destructive force” was necessary. The Second Circuit Court of Appeals found that under New York law, the meaning of the term “collapse” is unsettled, and it is not necessary that the building sustain total or near destruction, and that "substantial impairment of structural integrity" would suffice. The Court held the Harleysville policy was ambiguous, did not require “suddenness” as a condition, and notably cited to policy forms used by other insurers that “spoke more directly to the dispute involved here.” Thus, even though one would not typically consider what happened here to be a collapse, the Court held it was a covered loss. http://caselaw.lp.findlaw.com/data2/circs/2nd/073545p.pdf Previous Next Contact