News This Means War! NJ Court Examines Whether Cyber Attack Is Excluded Under Policy November 10, 2022 < Back Share to: In January, 2022, in Merck v. ACE American Insurance Company, a New Jersey Superior Court Law Division Judge ruled that a cyberattack, for insurance coverage purposes, cannot simply be excluded based on a wartime exclusion. What does it mean for insurance companies? A cyberattack is an unfortunate side effect of the advances in technology and it is clear that this form of attack is not going away anytime soon. Some insurance policies have the longstanding wartime exclusion language that meant to apply to armed conflict but in this case, the court placed the burden on insurance companies to put its insured on notice that cyberattacks are not covered because of the wartime exclusion. If such notice is not sufficient, then insurance company cannot escape the coverage. The court emphasis the importance of phrasing the contract to properly reflect the reasonable expectations of the insured when facing ambiguous language in the policy. This decision can mean two things for insurance companies: 1) it's time to take a look at the policy and add in language to clarify the scope of wartime exclusion to put insured on notice, or 2) for non-cyber polices, it's time to add an ironclad cyber exclusion to limit exposure. Thanks to Yifan Li for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Unavoidable Accident or Negligence... Only the Jury Knows For Sure (NY) July 5, 2017 < Back Share to: A New York court recently fleshed out the concept of an unavoidable accident in a motor vehicle accident case in which the plaintiff sought summary judgment. The claim in Wood v. Deschamps arose out of a winter storm related motor vehicle accident. By all accounts, the plaintiff was entirely blameless in the accident. She had been proceeding at a reasonable speed, well below the posted limit, and within her lane of travel when the defendant’s vehicle fishtailed and entered her lane of travel. It had been snowing for some time with about 1.5" accumulation on the ground. The defendant had been traveling somewhat under the speed limit, in light of the weather conditions, but lost control of her vehicle as she rounded a bend. She agreed that the accident occurred quickly after she entered the plaintiff’s lane. The defense fought plaintiff's partial summary judgment motion on the issue of liability arguing that the emergency doctrine or unavoidable accident theory applied. The Court declined to extend the "emergency doctrine" to this situation finding that there had not been a sudden and unexpected event. Although the accident was certainly sudden, the factors leading up to it were not. The defendant admittedly knew that it was snowing and that the roads were slick as she continued on her journey. However, the Court found that a jury could conclude that the collision was an unavoidable accident if neither party was negligent. In this case, the plaintiff was clearly free from fault as she drove at a reasonable speed and maintained control of her vehicle when she was struck by a vehicle that fishtailed into her path of travel. Similarly, the Court found that a jury could find the defendant blameless if they believed that she was traveling in a reasonable and prudent manner given the weather conditions and that her loss of control was beyond her control. Thanks to Christopher Gioia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Does An Email Exchange Constitute Enforceable Settlement Agreement? (PA) November 29, 2018 < Back Share to: In Hatchigan v. Kaplin, the Pennsylvania Court of Common Pleas analyzed whether an email exchange resulted in an enforceable settlement agreement. In brief, the plaintiff filed a lawsuit. Subsequently, following an exchange of telephone conversations, defense counsel sent an email to the plaintiff offering a settlement amount and also sought a general release and dismissal of the plaintiff’s lawsuit. Plaintiff’s counsel responded to the email stating “Agreed and accepted. Plaintiff will end, discontinue, settle accordingly to the defendants’ conditions …”. In response to the plaintiff’s email, defense counsel drafted a release, noting that the settlement was based on the prior exchange of emails, which the plaintiff signed. Upon receipt of the signed release, defense counsel requested that plaintiff have his signature notarized. At which time, the plaintiff advised he no longer agreed to the settlement. The defendants moved to enforce the settlement. Ultimately, the court found the agreement to be enforceable. The court reasoned that in their emails the parties agreed on the essential terms of the settlement, which formed a valid and enforceable contract. Accordingly, this case reveals that Pennsylvania courts may look to the communications between parties to determine if an enforceable settlement has been reached. Thanks to Collen Hayes for her contribution to this post.   Previous Next Contact

News Weddings: Falling in Love and Falling Under the Labor Law (NY) September 20, 2012 < Back Share to: While many people have been known to fall in love at weddings, some just fall, and now the owner of the wedding facility may be on the hook. New York’s Appellate Division recently held that a wedding chupah (canopy) can qualify as a “structure” under New York State Labor Law. In McCoy v. Abigail Kirsch at Tappan Hill, Inc., the defendants hosted a wedding ceremony at its facility, which included use of a chupah. A chupah is a canopy under which a bride and groom are married as part of Jewish wedding tradition. The chupah was 10-feet high, and made of pipe and wood. The defendant provided the plaintiff, a truck driver for a florist, with a six-foot high aluminum ladder, which he used to try and disassemble the chupah. While plaintiff was standing on the ladder, which was being held by another employee, the ladder slipped and plaintiff fell. The plaintiff brought an action for violations of the Labor Law. New York’s Labor Law requires that all owners and general contractures provide safety devices to protect their employees from the inherent risks of working at elevated heights. The statute expressly provides that safety devices are necessary “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Labor Law § 240(1). The court noted that whether something is a “structure” depends on the specific facts of the case, and requires a balancing of numerous factors. The court found a number of facts relevant to finding that the chupah was a “structure,” including that the chupah “consisted of various interconnected pipes... secured to steel metal bases.… “ The court also found it significant that the assembly and disassembly of the chupah required a ladder, tools and “an experienced worker more than a few minutes to complete.” Finally, the court stressed that its decision should not be interpreted as a finding that every chupah is a “structure” under the Labor Law. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to mbono@wcmlaw.com     Previous Next Contact

News Can a Resident of a Homeowners’ Association Be Deemed an Invitee in the Common Areas of Their Own Community? (PA) September 14, 2018 < Back Share to: In Hackett v. Indian King Residents Association, the plaintiff, a resident of the defendant homeowners’ association, brought suit to recover for injuries she sustained after she fell on a common area leading to her town home in a residential community managed by the defendant. The residential community in which she lived is a mixed town home/single family residence community in West Chester, Pennsylvania. The plaintiff claimed that she could not see branches in the dark as she climbed the steps that evening. After two days of trial, the jury found that the defendant homeowners’ association was not negligent. On appeal, the plaintiff argued that the trial court erred by charging the jury that the plaintiff was a licensee rather than an invitee. Particularly, she argued that by paying maintenance fees, she became an invitee, and that the defendant’s business is that of property manager and thus it is responsible for keeping common areas safely maintained. Pursuant to the declaration of the homeowners’ association, the plaintiff used the common areas with the defendant’s permission. The duty of the defendant to a licensee versus that of an invitee is different; the duty to an invitee is more stringent. The Court reviewed the definition of licensee, and also looked to the facts, determining that the plaintiff was a resident of the community, she used the common area with the defendant’s permission, not by invitation, and the declaration granted residents an easement of enjoyment regarding common areas. The Court found that this essentially conferred permission to each resident to use the common areas. The Superior Court found that the trial court properly instructed the jury that the plaintiff was a licensee, as there was no evidence offered that the plaintiff entered the property upon invitation or for a purpose for which land is held open to the public. The court noted that the distinction between invitation and permission forms the basis for distinguishing an invitee from a licensee. Thus, the trial court’s conclusion that the plaintiff was a licensee was affirmed on appeal. Thanks to Alexandra M. Perry for her contribution to this post. Previous Next Contact

News Second Circuit Rejects Ambiguity Argument Regarding Policy’s Action Over Exclusion (NY) January 25, 2019 < Back Share to: An additional insured attempted to argue the “separation of insureds” clause rendered the Action Over Exclusion, an iteration of an employer’s liability exclusion, inapplicable, as it was not the employer of the claimant. The Second Circuit disagreed based on the plain language of the exclusion. In Endurance American Specialty Insurance Co. v. Century Surety Co., Hayden Building Maintenance Corp. was the general contractor on a construction project at which the plaintiff, who was an employee of Pinnacle Constr. and Renovation Corp., was injured. Hayden sought coverage as an additional insured under the CGL insurance policy issued to Pinnacle by Century Surety Co. Century denied coverage based on the policy’s Action Over Exclusion, which provided that there was no coverage for “bodily injury” to an “employee” of the named insured arising out of and in the course of employment by the named insured, or performing duties related to the conduct of the named insured’s business. Hayden challenged the disclaimer, arguing the exclusion did not apply because Hayden did not employ the plaintiff and the policy’s terms must be applied separately to each insured seeking coverage as per the policy’s Separation of Insureds provision. Although the district court agreed with Hayden, the Second Circuit reversed and held the Action Over Exclusion unambiguously barred coverage. In particular, the appellate court held the exclusion barred coverage for bodily injury claims brought by an employee of “the named insured,” as opposed to “the insured.” The Court further observed the Action Over Exclusion specifically replaced the Employer’s Liability Exclusion, which used the term “the insured.” The Second Circuit ultimately reversed “because to do otherwise would render the unambiguous language…a nullity.” Insurance policies are arguably the most hyper-scrutinized class of contracts. As a result, in evaluating coverage, it is critical to evaluate even the most minute distinction in policy terms. Here, an endorsement altered an exclusion by redefining the pertinent class of insured by changing “the insured” to “the named insured.” Thanks to Christopher Soverow for his contribution to this post. Please contact Colleen E. Hayes with any questions. Previous Next Contact

News Landlord's Duty Arises From Ability And Opportunity To Control Conduct April 28, 2012 < Back Share to: In Banner vs. New York City Housing Authority, the infant plaintiff was injured when, while sitting on his bicycle in the courtyard at the rear of the defendant's building, he was hit in the eye by a bottle that was allegedly thrown from the roof of the building. The plaintiffs allege that NYCHA was negligent in failing to secure the roof and in allowing persons to use it in a dangerous and defective manner. The court noted that "a landowner has a duty to exercise reasonable care in maintaining his own property in a reasonably safe condition under the circumstances." This duty includes an obligation "to take minimal precautions to protect tenants from foreseeable harm, including foreseeable criminal conduct by a third person. However, this duty only arises when there is an ability and opportunity to control such conduct, and an awareness of the need to do so." The defendant submitted affidavits from its supervisor of caretakers and a professional engineer establishing that the defendant was required to keep the door to the roof unlocked for fire safety purposes. The testimony of the infant plaintiff established that neither he nor his friends actually saw a person on the roof throw a bottle, and that the alleged perpetrator was unknown, making it possible that the perpetrator was a resident of the building who would have had access to the roof despite any amount of security provided. The plaintiffs failed to raise a triable issue of fact that the defendants had the ability and opportunity to control the conduct through the exercise of reasonable measures, and that the failure to have done so was a proximate cause of the injuries alleged. As such, summary judgment was granted to the defendant. Thanks to Sandy Debbas for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03269.htm Previous Next Contact

News No Foul: Plaintiff Assumed the Risk of Playing Basketball (NY) December 7, 2017 < Back Share to: In Hanson v. Sewanhaka, et. al, the plaintiff allegedly was injured during a basketball game in a gym class at Elmont Memorial High School when he was kicked in the leg by another student, the defendant Malik Freeman. The plaintiff sued the other student and the Sewanhaka Central High School District. Both defendants moved for summary judgment and the Supreme Court granted both motions. On appeal, the defendants cited to the doctrine of assumption of risk, which holds that when a person consents to the commonly associated risks inherent in the sport and freely assumes a known risk, a plaintiff commensurately negates any duty on the part of the defendant to safeguard him or her from the risk. Here, a leg injury caused by a collision between two players is certainly a commonly associated risk while playing basketball. In his brief, plaintiff alleged that Freeman kicked plaintiff intentionally; however, in his complaint the plaintiff had not asserted a cause of action for an intentional tort, and neither the second amended complaint nor the bills of particulars alleged intentional conduct. The court held that a plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars. Therefore, since the defendants established prima facie proof that the plaintiff voluntarily engaged in the activity of basketball and was aware of the risks inherent in the activity, including the possibility of contact or collision with other participants, the Second Department did not find the plaintiff’s argument persuasive. The Second Department also held because the plaintiff testified he chose to play basketball from a number of options, the inherent compulsion doctrine was inapplicable. Voluntary participants in sporting or recreational activity consents to those commonly appreciated risks that are inherent in and arise out of nature of sport or activity generally and flow from such participation; however, the defense is not applicable if the participant is forced to compete or take part in the activity. Since, the plaintiff had options as to which sport to play, he was not forced to participate in this activity; therefore, the Second Department denied that argument and affirmed the Supreme Court’s decision granting summary judgment to both defendants. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News WCM VOLUNTEERS IN PHILADELPHIA FOR ALEX’S LEMONADE STAND April 19, 2024 < Back Share to: On April 10, 2024, amidst the hustle and bustle of Philadelphia, WCM associate Ryan Hunsicker and WCM paralegal Anne Skiles joined with the Pennsylvania Defense Institute, the Philadelphia Association of Defense Counsel and Drexel University’s Thomas R. Kline School of Law, to host an Alex’s Lemonade Stand Foundation fundraiser. The fundraiser was held on Drexel’s campus next to the famous statue of Mario the Dragon at 33rd & Market Street. All in all, a lovely day, an excellent and worthy cause, and a good time was had by all. Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Finding of "Alteration" and Notice Sufficient to Defeat Summary Judgment May 20, 2009 < Back Share to: In Fuchs v. Austin Mall Assoc. LLC, plaintiff's decedent was electrocuted while replacing the ceiling of an elevator located on property owned and/or managed by the defendants. The decedent's representative commenced an action against the defendants alleging common law negligence and causes of action pursuant to Labor Law sections 200, 240, and 241(6). The defendants then filed a motion for summary judgment in relation to plaintiff's claim for common-law negligence and for violations of Labor Law sections 241(6) and 200. The Supreme Court, Queens County, granted the defendants' motion. Plaintiff appealed. The Appellate Division, Second Department, reversed the Supreme Court's ruling and denied the defendants' motion in its entirety. The Court stated that the work the decedent was performing at the time of death constituted an "alteration," and therefore fell within the scope of Labor Law section 241(6). The Court also stated that because the defendants were aware that there were energized electrical circuits in the area where the decedent was working, they had notice of a dangerous condition. As such, even if they did not have control over the decedent's work area, the fact that they were aware of the condition precluded them from prevailing on summary judgment. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03863.htm Previous Next Contact

News Title Claim to $1 Million Sculpture Time Barred (NY) June 3, 2021 < Back Share to: Yula Lipchitz, the wife of famed sculptor Jacques Lipchitz, died on July 20, 2003. During the probate of her will, Biond Fury asserted a claim of ownership in The Cry a 1,100 pound bronze sculpture, valued at around $1 million. Fury claimed that Lipchitz gave him the sculpture in 1997, citing a handwritten note on the back of a photograph of the sculpture as proof. Fury said he stored the sculpture in a warehouse at his expense until it was removed by Hanno Mott, Lipschitz son, who shipped it to a gallery and then loaned it to the French government. Fury subsequently sold his interest in the work to Petitioners David Mirmish, who filed the action against Mott. The Surrogate’s Court ruled in favor of the Fury/Mirmish, finding that a valid gift was made by Lipchitz to Fury. On appeal, the First Department held that the Surrogate Court improperly granted summary judgment because Fury’s testimony as to the transaction with Lipschitz was inadmissible pursuant to New York’s “Dead Man’s” statute. The Appellate Court also held there was in issue of fact as to whether a gift was made because there was conflicting evidence as to whether Lipchitz parted with “dominion and control” of the sculpture. However, the Court held that the petitioner’s claims were barred by the three year statute of limitations for conversion and replevin claims. The court noted a conversion cause of action accrues upon the occurrence of "some affirmative act of asportation” – which occurred here no later than 1998, when respondent had The Cry removed from the Michael Leonard Warehouse without Fury's permission, delivered to the Marlborough gallery and then loaned to the French Government, all in the name of the Lipchitz family. Thus, the Appellate Court reversed the Surrogate’s Court's decision and held Mirmish’s claims of ownership were time barred. For more information about this post, please e-mail mbono@wcmlaw.com http://www.leagle.com/unsecure/page.htm?shortname=innyco20100527413 Previous Next Contact

News Owner Escapes Labor Law Liability By Not Supervising Project (NY) February 28, 2020 < Back Share to: In Boody v El Sol Contr. the Appellate Division addressed the standard a defendant needs to establish to prevail on summary judgment on a Labor Law § 200 claim. The plaintiff was employed as a construction worker for nonparty Caribe Construction Co., a subcontractor hired by the general contractor El Sol Contracting and Construction Corporation, to install temporary scaffolding for a repair project on a bridge in Queens. In order to complete its work, Caribe hired North East Marine, Inc. to provide tugboats and work barges, to transport Caribe's employees, supplies, and equipment around the work site. The plaintiff allegedly was injured while he was attempting to cross between two barges positioned on either side of a pier supporting the bridge. The plaintiff alleged that as he was walking, one of the mooring lines from the tug-barge combination tightened and caught his leg, pinning it against the pillar next to which he was walking. Sol unsuccessfully moved for summary judgment dismissing the claims against it. On appeal, the Appellate Division reversed the ruling and awarded summary judgment to El Sol. The Appellate Division held that Labor Law § 200(1) is a codification of the common-law duty of an owner or general contractor to provide workers with a safe place to work. Cases involving Labor Law § 200 fall into two broad categories: namely, those where workers are injured as a result of dangerous or defective premises conditions at a work site, and those involving the manner in which the work is performed. Where a claim arises out of alleged defects or dangers arising from a subcontractor's methods or materials, recovery against the owner or general contractor cannot be had unless it is shown that the party to be charged exercised some supervisory control over the operation. Expanding on the requirement of supervisory control under the “means and methods” context, the Court held that "a defendant has the authority to supervise or control the work for purposes of Labor Law § 200 when that defendant bears the responsibility for the manner in which the work is performed." In contrast, “mere general supervisory authority at a work site for the purpose of overseeing the progress of the work and inspecting the work product is insufficient to impose liability under Labor Law § 200.” Using this standard, El Sol, established that it did not exercise supervision or control over the performance of the work giving rise to the accident. Thanks to George Parpas for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact