News Jury's Web Research Leads to Mistrial (NY) May 2, 2013 < Back Share to: Speaking with the jury after a trial is always fraught with peril. That issue recently came to light in Olshantesky v. NYCTA, where it was discovered after the trial that the jury consulted an on-line dictionary to help them define the term “substantial.” The trial court found, and the appellate court agreed, that such research constituted juror misconduct, warranting a mistrial. Interestingly, the appellate court allowed the damages award to stand, finding no evidence that the misconduct affected the jury’s determination on damages. However, the parties will be required to retry the liability case. If you would like more information, please write to Mike Bono. Previous Next Contact

News Discarded Video Leads to Sanctions (NY) September 28, 2016 < Back Share to: The common law doctrine of spoliation permits the sanctioning of a party where that party negligently loses or intentionally destroys key evidence. The burden of demonstrating that party’s intentional or negligent disposal rests with the litigant moving for sanctions, who must also demonstrate that the lost evidence was critical and the litigant’s ability to provide its claim or defense was fatally compromised as a result. The question of what sort of sanction is appropriate was at issue in the case Peters v. Hernandez, in which a tavern disposed of a video recording of the incident in question. This decision is discretionary based on considerations of fundamental fairness. The court must evaluate the prejudice that resulted from the spoliation to determine whether the drastic relief of striking a party’s pleading is warranted or if a lesser sanction is more appropriate. In Peters, the Appellate Divison, Second Department, found that the lower court improvidently exercised its discretion in striking the answer of the appealing defendants. While the plaintiff did demonstrate that the tavern negligently disposed of the video of the subject incident, his ability to prove his case was not fatally compromised. The Court found that the appropriate sanction would have been an adverse inference charge given to the jury at the time of trial. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Lawyer Inattentiveness Not Extraordinary Enough To Waive Notice for Tort Claims Act (NJ) March 18, 2013 < Back Share to: In common law, a subject could not sue the sovereign for a tort action. New Jersey courts abrogated this common law to the displeasure of the Legislature. The Legislature responded by re-establishing sovereign immunity - but allowing limited exceptions when a person could sue a public entity. However, in an effort to minimize litigation against public entities, the TCA requires a claimant to give timely notice, i.e. within 90 days so that the claim can be investigated and perhaps resolved outside litigation. A tardy notice can only be excused for "extraordinary circumstances" - and then only if presented within one year after accrual of the claim. This notice provision has been the subject of much scrutiny with many theories advanced to attempt soften its effects. In D.D. v. UMDNJ, the New Jersey Supreme Court addressed two common themes: 1) late notice should be excused because of lawyer inattention, either independently offered or in conjunction with a claim that the plaintiff's medical condition influenced the ability to give timely notice; and 2) whether oral notice of the claim could be considered substantial compliance. In short, a divided Supreme court said, no and no. The majority opinion hewed to the legislative intent that immunity is the general rule and liability is the exception. Guided by this, the Court held that it was not authorized to grant leave for late notice in a case based upon disclosure of a participant's medical history in connection with a World AIDS Day program. Although the plaintiff described physical and emotional effects related to the disclosure, the Court did not consider her circumstances to meet the standard of "severe and debilitating." Moreover, combining this with the foibles of her attorney did not create exceptional circumstances. In fact, the Court found that a claim of attorney incompetence, inattentiveness or malpractice was not an extraordinary circumstance to justify late notice. Thus, medical complaints that do not demand immeidate attention and did not significantly interfere with the pursuit of a claim will not excuse late notice even if coupled with lawyer inattention. Finally, the required notice must be written. The Court ruled that oral notice is simply not substantial compliance underof the Act. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News A Guidepost in the World of Nazi Restitution (CA) September 28, 2018 < Back Share to: The issue of provenance in the art world in the context of Nazi restitution can be a thorny one. The Ninth Circuit recently issued a decision which may give actors in this marketplace more certainty. Von Saher v. Norton Simon Museum of Art at Pasadena concerns two 16th Century Dutch masterpieces titled “Adam” and “Eve” by Lucas Cranach the Elder. The Cranachs were purchased by a Dutch art dealer named Jacques Goudstikker in 1931 and became his firm’s property, but, in May 1940, Goudstikker and his family fled the country ahead of the Nazi invasion. Hermann Göring acquired all of the firm’s works in a forced sale with the help of an accomplice. Following the war, the Allies returned the works to the Dutch government, which in turn issued a series of decrees setting up a restitution process for those who lost property during the war. The deadline to submit a claim was 1951. With the advice of legal counsel, Goudstikker’s widow formally waived any claim to the Cranachs. The Dutch government ultimately sold the works in 1966 to an individual named Stroganoff to settle a restitution claim of his own. Stroganoff subsequently sold the piece to the Museum in 1971. Von Saher, Goudstikker’s daughter-in-law attempted to recover the Cranachs and made applications to the Dutch government in 1999 and 2001. However, the Dutch government concluded that, under the rules of the restitution process, Goudstikker’s widow’s informed waiver validated the sale, and converted the works into enemy property. In turn, enemy property became property of the state, who could sell such property as a form of compensation for damages in the war. Her remedies in Holland exhausted, Von Saher sued in California to recover the Cranachs. After years of litigation, the Ninth Circuit affirmed summary judgment primarily relying on the act of state doctrine, which is a rule of decision requiring that “the acts of foreign sovereigns taken within their own jurisdictions shall be deemed valid.” Evaluating the processes established and followed by the Dutch government, the Court concluded none of the potential exceptions applied, and it would be improper to declare invalid official acts of the Dutch government in its own territory. As a matter of law, the Dutch government had acquired good title to the Cranachs in 1951 and passed good title to Stroganoff in the 1966 sale. While each restitution case requires fact-specific analysis, this case provides some helpful predictability. In the event provenance is potentially impacted by Nazi activity, United States Courts are likely to honor title decisions and restitution processes issued by other jurisdictions should such a ruling exist in the subject piece’s history. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto by email with any questions. Previous Next Contact

News Additur: Lowest Possible Verdict Standard Applies (NJ) July 26, 2017 < Back Share to:   Additur is a legal mechanism, seldom seen in some jurisdictions, wherein a court may correct a damages verdict, if the court feels 1) the verdict rendered constitutes a manifest injustice, 2) the verdict can be corrected without disturbing the liability verdict. Appellate-plaintiff attempted to use this mechanism in the Orientale v. Jennings case, wherein a jury trial resulted in a $200 award for pain and suffering on behalf of the plaintiff. Following a motor vehicle accident, plaintiff settled with the negligent driver for $100,000 and subsequently filed suit against her own insurer, defendant Allstate New Jersey Insurance Company, under the UIM provision of her policy. A damages trial was conducted to determine the extent of plaintiff’s injuries. The jury awarded no money on the loss of consortium claim. Although the jury found that plaintiff had suffered permanent injury, they awarded $200 in damages. Plaintiffs sought a new trial and filed a motion for an additur. The trial judge determined that the $200 award constituted a miscarriage of justice and that additur was appropriate. The judge determined that the lowest verdict that a reasonable jury could have reached based on the proofs of the case was $47,500. Apparently, this increased award was not enough for the plaintiff, who then filed an appeal arguing that the trial court applied the wrong standard for additur. Plaintiffs argued that the trial court should not have made the award calculations based on the lowest value that a reasonable jury could find, but rather that it should have issued an award based on what a reasonable jury would find. The appellate court determined that the principles that applied to additur included a presumption that the jury verdict was correct and deference should be given to the award. The trial record underlying an additur motion must be viewed in the light most favorable to the defendant and the judge should not sit as a decisive juror and should not overturn a damages award falling within a wide acceptable range. The court’s role in assessing a jury verdict is to assure that compensatory damages awarded to a plaintiff encompasses no more than the amount that will make the plaintiff whole. The appellate court thereby determined that the trial court properly applied the standard of “the lowest verdict that a reasonable jury could have reached based on the proof[s].” The appellate court affirmed the trial court decision. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Ambiguous Additional Insurance Provision Results In Denial Of Summary Judgment All Around (NY) January 21, 2022 < Back Share to: In Corter-Longwell v. Juliano, the New York Appellate Division evaluated a common commercial contract provision, in which a transportation company was responsible for naming its contract partner, a landfill operator, as an additional insured. The dispute arose as the contract was imprecise regarding this responsibility, and the parties disputed whether a subsidiary of the landfill operator was covered as an additional insured. It has long been the law in New York that an ambiguous contract provision is subject to the court’s interpretation. The Juliano court applied reasoning from the First, Second, and Fourth Departments of the Appellate Division and held that a contract “cannot be interpreted as requiring the procurement of additional insured coverage unless such a requirement is expressly and specifically stated.” Here, the contract did not mention any obligation for the transportation company to name the landfill operator as an additional insured on its employers’ liability, workers’ compensation, or excess coverage policies. The contract did require additional insured coverage on the commercial general liability and automobile liability policies, but these contract provisions named only the landfill parent company (not the subsidiary). The court analyzed this ambiguity in the contract and denied the motions for summary judgment of both parties. It refused to hold as a matter of law that the above-referenced provisions provided (or failed to provide) coverage for the landfill’s subsidiary company, instead holding that the ambiguity was a matter of fact that required a trial. The parties could have avoided this ongoing litigation altogether if they had more specifically described the obligations of the respective parties in the contract. Thanks to Jason Laicha for his contribution to this article. If you have any questions, please contact Matthew Care. Previous Next Contact

News NY Court of Appeals Issues Important Decision on an Insurer's Duty to Defend June 28, 2013 < Back Share to: We previously posted about the potential significance of the K2 Investment Group, LLP v. American Guarantee & Liability Ins. Co. case, and now the Court of Appeals has issued an important ruling that will impact how insurance companies approach the decision whether to disclaim coverage. Previously, if a New York court disagreed with the insurer’s decision not to defend a case, the court still undertook an analysis as to whether the insurer owed indemnification. Now, however, the Court of Appeals has held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on Policy exclusions" to avoid indemnification. In K2, plaintiffs brought a legal malpractice action against their attorney, Daniels, for his failure to record mortgages. Daniels’ malpractice insurer immediately denied coverage for the lawsuit based on a policy exclusion that barred coverage for Daniels’ acts for a business enterprise in which he had a controlling interest. The insurer contended that Daniels’ liability arose out of his actions to obtain a loan for his own company. The policy also excluded claims arising out of Daniels’ status as a shareholder of a business enterprise. The thrust of the insurer’s argument was that Daniels was not acting as plaintiffs’ attorney, but rather in furtherance of his own company -- acts that were excluded from the malpractice policy. When the insurer failed to pick up Daniels’ defense, the insured defaulted and assigned his rights under the policy to the plaintiffs, who then commenced a declaratory judgment action against the insurer and were awarded summary judgment by the trial court. The Appellate Division, First Department, issued a split decision affirming the trial court’s denial of the motion. The majority of the appellate panel found that that the exclusions did not apply because, according solely to the allegations in the complaint, the insured’s liability did not arise out of Daniel’s ownership interest in his company but instead in his role as attorney to the plaintiffs/lenders. The First Department held that the insurer did not have a right to litigate this factual issue in the declaratory judgment action because a default judgment had already been entered in the underlying suit due to the insurer’s failure to defend Daniels. In their dissent, the two dissenting judges argued that the insurer’s duty to indemnify is based on a determination of all applicable facts and because the issue was not litigated in the underlying action, the insurer was entitled to litigate the issue in the DJ action. Upon review, the Court of Appeals did not even analyze whether the exclusions applied, holding instead that the insurer “lost its right to rely on these exclusions in litigation over its indemnity obligation” because it breached its duty to defend the insured Daniels. The Court’s stated purpose was so that “[t]his rule will give insurers an incentive to defend the cases they are bound by law to defend, and thus to give insureds the full benefit of their bargain.” The Court of Appeals did recognize the possibility of some exceptions, such as where indemnifying the insured would be against public policy (e.g. where the insured is liable for intentional conduct). Based on this decision, in many circumstances insurers will need to strongly consider agreeing to defend the insured under a reservation of rights and then immediately commence a declaratory judgment action to supports its coverage position. Otherwise, they risk being precluded from asserting policy exclusions that very well may apply to the facts of the loss. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to Mike Bono.                       Previous Next Contact

News Insurance Investigation Unambiguously Pays for Itself (NY) March 10, 2020 < Back Share to: MIC General Insurance Corporation (“MIC”) issued an insurance policy to a client which provided liability coverage for the insured’s “residence premise,” which the contract defined as a dwelling where the insured resides. After an accident at a property, the insured sought defense and indemnification from MIC for the subsequent personal injury lawsuit. However, MIC did not accept their insured’s claim at face value and retained a private investigator to look further into the details of the case. The investigator inspected the home in question and collected a statement from the insured, revealing they actually lived elsewhere. With this evidence in hand, and after appellate practice, the First Department, in MIC General Insurance Corporation v. Campbell, agreed with MIC’s summary judgment position and ruled there was no coverage to the insured in the first instance, based on the insured’s statement to the investigator. Moreover, the panel also held the policy’s endorsement modifying “residence premises” from a “one-family dwelling…where you reside” to include three- and four-family dwellings without the phrase “where you reside” was not ambiguous, and read the policy as a whole to extend “where you reside” to apply to all forms of residence premises. Together, the decision illustrates the merits of exploring doubts in the facts presented in a claim and conducting a thorough investigation, and a reminder that although ambiguities can create coverage, a common sense approach should guide an analysis of whether an ambiguity actually exists at all. Thanks to Nick Schaefer for his contribution to this post. If you have any questions or comments, please contact Vincent Terrasi. Previous Next Contact

News Toddler On Tricycle At Fault For Car Collision (NY) July 7, 2023 < Back Share to: It’s important to learn the rules of the road as early as you can; this apparently includes kids on bikes. Specifically, this case warns that if you do not teach toddlers the rules of the road you might be at fault for being hit by a car. In a recent decision in the case A.B. v. Stephanie A. Waring, Index No. 715613/18, the Second Department ruled that the defendants were not liable for striking the infant Plaintiff with the owning defendant’s car. This was due to the fact that the driving defendant had the right of way when the accident occurred and the infant Plaintiff, who was riding her bike, came out onto the road from in-front of a parked car while the driving defendant was heading in that direction. The defendant had minimal time to respond. The Second Department cited to Vehicle and Traffic Law sections 1143, which requires drivers to yield the right of way to all approaching vehicles on a road they are attempting to enter or cross, and 1231, which notes that anyone riding a bicycle is required to follow these rules as if they were driving a car. While this makes no reference to negligence per se, this nonetheless appears to be a case where negligence per se would potentially apply as the infant Plaintiff violated two state-level statutes, even though they are likely not yet old enough to drive on their own. The moral of this story: if you are thinking of getting your child a tricycle for the holidays this year, you MIGHT want to include a copy of the VTL with it… assuming the child can read. Thanks to Patrick Argento for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Are Plaintiffs Still Masters of their Claims? The Changing Legal Landscape After Tincher (PA) September 19, 2019 < Back Share to: In the seminal products liability case, Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), which we reported on here, the Pennsylvania Supreme Court stated that the plaintiff is the “master of the claim.” But there may now be limitations on such "mastery." In Davis v. Volkswagen Grp. Of Am., 2019 WL 3252054, the Pennsylvania Superior Court held that the trial court could instruct the jury to use either the consumer expectation test or the risk-utility test. The court did not have to use the test advocated by the plaintiff. In Davis, Jane E. Davis brought a claim on behalf of her husband after he had died in an accident while driving the couple’s Volkswagen. The accident involved a head on collision where another car crossed the center line and hit the Davis’ Volkswagen. The car eventually burst into flames and Mr. Davis died later due to injuries from the fire. Mrs. Davis filed suit against, among others, Volkswagen. Mrs. Davis’s claims included a products liability claim alleging that the Volkswagen was in a defective condition. She attempted to prove this through the consumer expectation test. As such, she requested that the court instruct the jury to use the consumer expectation test. The court declined to do so. Subsequently, Davis lost and appealed the decision to the Pennsylvania Superior Court. She argued that because a plaintiff is the “master of the claim,” the court should allow the plaintiff to pursue her chosen theory of liability in jury instructions. The court disagreed. In its opinion, the Pennsylvania Superior Court acknowledged the language in Tincher; however, the court upheld the trial court’s decision instructing the jury on both the consumer expectation test—advocated by Davis—and the risk-utility test—advocated by Volkswagen. The court said that because there was evidence pointing to the test advocated by Volkswagen, it was not limited to instruct the jury only on plaintiff’s theory of liability. Further, the court said that by instructing the jury on any applicable test, it enabled Davis to pursue her claim, and it allowed the jury to apply all relevant tests to the facts. Davis suggests that going forward, defendants may not be be forced endure jury instructions only using plaintiffs’ theories of the case. Davis demonstrates that the court will honor plaintiffs’ theories, and at the same time, allow defendants to submit its instructions if supported by evidence. Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News PA Superior Court -- Head Injuries Inherent to Softball June 30, 2008 < Back Share to: In the case of Craig v. Amateur Softball Association of America,(Pa. Superior Ct. June 4, 2008), the plaintiff (who was not wearing a helmet at the time) was struck in the head by an errantly thrown ball while running the bases at a softball game. He claimed various physical injuries as a result. He subsequently sued the softball association that had sponsored the game and argued that the league had a duty to mandate or at least recommend the wearing of helmets. The trial court granted summary judgment for the defendant and the plaintiff appealed. The Superior Court affirmed the dismissal and held that the defendant association did not owe a duty to warn, protect or insure against risks that are “common, frequent, expected and inherent” to the injury causing activity. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News NY's 2nd Dept. addresses timely notice. November 5, 2007 < Back Share to: The Second Department revered the trial court's grant of summary judgment to the insurer on late notice grounds and held that the insured raised questions of fact regarding its "reasonable belief in non-liability." http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7058832 Previous Next Contact