News But They Acted So Nice! Pleasant Social Interaction Does Not Excuse Late Notice of Claim April 6, 2012 < Back Share to: Disclaimers of coverage based on untimely notice are always a source of controversy, and it is interesting to see how various jurisdictions deal with the issue. Recently, the Connecticut Supreme Court made new law concerning the scope of an insured’s duty to notify its insurer of a potential claim. The Court ruled that the insured cannot excuse late notice simply because he spoke with the claimant who did not indicate that he would bring a claim. A subjective belief that there would not be liability does not excuse late notice where the circumstances would have led a reasonable person to believe that he/she could potentially be liable. In Arrowood Indem. Co. v. King, the insured’s son was driving an ATV and used a rope attached to the ATV to tow the claimant on a skateboard. The claimant fell off the skateboard and suffered severe head injuries. The insureds did not notify their insurance company of the accident because they met the injured boy’s parents and the parents did not indicate that they intended to bring a lawsuit. The court ruled that regardless of the insureds' belief based on the social interactions between the parents, a reasonable person would have believed that liability may have been incurred because of the severity of the injury. Therefore, the insureds failed to provide timely notice and the insurer could deny the claim as long as it proved prejudice. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com   Previous Next Contact

News Claims Of Bad Faith And Vicarious Liability Fall Like Dominoes With Speculative Damages (PA) November 24, 2021 < Back Share to: In an action brought by the Moses Taylor Foundation (the “Foundation”) in the Middle District of Pennsylvania, it sought to recover damages for an alleged breach of contract by Coverys and its primary insurer (“Coverys”) for failure to negotiate an appropriate settlement in a previous lawsuit. Moses Taylor, additionally, uniquely asserted a claim for bad faith for almost exhausting the available limits of insurance as well as vicarious liability through the breach of contract claim. In response, Coverys argued the breach of contract claim should be dismissed because the Foundation compiled and pled speculative damages, and therefore, the required predicate cause of action necessary to litigate a claim of bad faith––essential under 42 Pa. Con. Stat. § 8371––could not be established. Specifically, given that the insurance policy limits were not exhausted and there were no pending lawsuits utilizing the same limits, Coverys argued that the claimed damages were too speculative. Likewise, such a failure to establish the necessary cause of action disappeared the Foundation’s vicarious liability claim as well because, given the word’s syntactical underpinnings, “vicarious” implies a predicate cause-of-action. Under Pennsylvania law, damages are speculative when uncertainty exists concerning the existence of damages, not the amount, and the Court in Moses Taylor held that the possibility of future suits against the Foundation was not concrete enough to fit the law’s corporeal requirement. Therefore, like dominoes, the claims for bad faith and vicarious liability were downed in a fashion that would have made Rube Goldberg smile. This case represents the importance of attention to detail and provides another arrow in the litigator’s tactical quiver. Thanks to Richard Dunne for his contribution. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Open and Obvious Not Obvious Enough (NY) May 11, 2016 < Back Share to: Business owners have a duty to keep their premises safe and secure, and to protect invitees from potential hazards. One of the primary defenses in premises liability matters is that plaintiff was injured by an “open and obvious” condition, meaning a condition readily viewable by plaintiff. In Johnson-Glover v Fu Jun Hao Inc., plaintiff alleged that she was injured when she tripped and fell on a pulley bag/wheeled shopping bag that had a protruding metal stand that was left in one of the aisles of defendant’s store. At her deposition, plaintiff testified the aisles in defendant’s store were full of merchandise—making it difficult to pass—but that she saw the wheeled shopping bag in the aisle before she tripped over it. Defendant moved for summary judgment, arguing that the wheeled shopping bag was an “open and obvious” condition for which it owed no duty to plaintiff. The First Department upheld the denial of defendant’s motion for summary judgment. The court agreed with the defendant that the wheeled shopping bag, per plaintiff’s own testimony, was an “open and obvious” condition. However, while the court determined that defendant had no duty to warn plaintiff of the “open and obvious” condition, defendant failed to establish that it satisfied its obligation to maintain the store in a reasonably safe condition. The store manager’s deposition testimony that the store would occasionally leave merchandise in the aisles for several hours after a delivery raised an issue of fact as to whether defendant created the hazardous condition, and failed to establish that the store’s cleaning schedule deprived it of actual or constructive notice of the condition. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News New FSMA Rules Finally Issued! January 5, 2013 < Back Share to: At long last, the first two new FSMA rules have been issued. The first rule requires manufacturers of processed foods sold in the United States to come up with ways to reduce the risk of contamination. The second rule targets E. coli in fruits and vegetables by targeting the “four Ws” — water, waste, workers and wildlife. The only question now is – will Congress actually provide the funding necessary to implement the rules? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Insufficient Evidence on Aisle 5 (PA) October 19, 2018 < Back Share to: On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim. Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident. Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian GIbbons with any questions. Previous Next Contact

News Do As I Say, Not As I Do: Insurer Must Pay Benefits Despite Father's Misrepresentation May 15, 2008 < Back Share to: As parents, we counsel our children to be forthright and trustworthy in their business dealings. But some parents forget to take their own advice. In Rutgers Casualty v. LaCroix, Mr. LaCroix dutifully filled out an application for auto insurance but failed to list his 18 year old daughter as a licensed resident of his household in order to pay less in premium. His daughter was later involved in a serious accident while driving one of her father's cars. When the daughter submitted a claim for PIP benefits, Rutger's denied it and filed an action seeking a declaration that the policy was void ab initio and that it had no obligation to pay any PIP benefits. The New Jersey courts had previously upheld the denial of PIP benefits where a spouse was not listed as a resident member of the named insured's household. In that earlier case, the court had to decide whether the injured spouse was akin to an "innocent insured" who is entiled to coverage or whether the sins of a husband should be visited on his wife. Given the close relationship between adult spouses, the court refused to permit the wife to benefit from her husband's mispresentation and denied her PIP benefits. On the other hand, courts have awarded PIP benfits to an innocent party where, despite a named insured's misrepresentations, the injured party is unrelated to the named insured and is hurt in the named insured's vehicle. LaCroix was a close call. The motion court voided the policy ab initio and held that the daughter could not obtain PIP benefits based on her father's misrepresentations. The Appellate Division upheld the rescission but ordered Rutgers to pay the statutorily minimum PIP benefits. The New Jersey Supreme Court began by noting that recission was an equitable remedy, designed to promote justice and fairness. You see where this decision was going. The daughter was described as "a dependent child, newly licensed, only recently of driving age, and living with her parents...who placed her trust in her father" in insurance matters. Now we know that the insurer is in deep troube. Thus, in "these exceptional circumstances," the Supreme Court upheld the recission but ordered Rutger's to pay the statutorily minimum PIP benefits. Whether LaCroix is an anomaly remains to be seen. When pitting the equities of an injured party against an insurer, the personal interests frequently trump the corporate. On that level, LaCroix is not an ususual decision. However, the real danger is that LaCroix will result in a discomforting level of unpredictability in the battle against insurance fraud. http://lawlibrary.rutgers.edu/decisions/appellate/a4006-05.opn.html Previous Next Contact

News "Don't Deal with Lawyers" October 16, 2007 < Back Share to: Lawyer Elana Glatt was married recently in Manhattan and has now sued her florist for $400,000 because he allegedly substituted pastel pink and green hydrangeas for dark rust and green. These substituted flowers apparently clashed with the linens, favor boxes, and the wedding cake. The cost of the flowers was $27,000. The florist responded to the suit by saying his father told him, "Don't deal with lawyers. Maybe he was right, God bless his soul." And on a personal note, as the father of three daughters, we will be happy with any color and any bloom available, and $27,000 is out of the question. http://www.nytimes.com/2007/10/16/nyregion/16flowers.html?_r=1&ref=todayspaper&oref=slogin Previous Next Contact

News Handing Ring to Medical Technician Created Bailment October 6, 2011 < Back Share to: As if we didn’t have enough reasons to fear the doctor… In [i]New York Cent. Mut. Ins. Co. v. Med. Diagnostic Imaging[/i], the Poughkeepsie County City Court, was recently asked to determine if a medical provider was responsible for an engagement ring that was either lost or stolen after the technician requested that plaintiff remove it before undergoing a PET scan. Plaintiff’s subrogror, Rousseau, went to MD Imaging to undergo a PET scan and a CAT scan. At no point before the test did anyone advise Rousseau that she would need to remove her jewelry. In addition, there were no lockers or safes for personal belongings and no signs about what to do with one’s personal belongings. When the technician met with Rousseau, he did not tell her to remove her jewelry. It was only when Rousseau was alone and situated on the PET scan machine when the technician instructed Rousseau to remove her engagement ring. Upon taking the jewelry, the technician stated, “Don’t worry, I’ll take care of it.” The technician placed the ring atop the hamper in the PET scan room and it was never found again. After trial, the court found that plaintiff had established a bailment between the parties. This put the burden on the defendant failed to come forward with a reasonable explanation for the loss, which it did not. The court noted that had the defendant come forward with an adequate explanation, plaintiff would have had to prove negligence. Thanks to Gabriel Darwick for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_21345.htm Previous Next Contact

News “Terms and Conditions” In Bid Document Do Not Constitute Binding Agreement March 3, 2009 < Back Share to: In Illinois Nat. Ins. Co. v. American Alternative Ins. Corp., the School Construction Authority of the City of New York and its insurer brought an action against a subcontractor's insurer, seeking defense and indemnification for an underlying personal injury lawsuit. The insurance contract issued by the subcontractor's insurer included as an insured “any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.” The plaintiffs conceded that the subcontractor's contract with SCA did not contain an agreement that SCA be named as additional insureds. The plaintiffs, however, argued that a provision in the bid documents stated that the performance of work “shall be governed by” certain terms and conditions, among which was a requirement to name SCA as an additional insured. As such, the plaintiffs argued that this constituted an “agreement” in writing satisfying the additional insured provision of the subcontractor's insurance contract. The First Department disagreed and affirmed the lower court’s decision dismissing the plaintiffs’ claims. Thanks to Cheryl Fuchs for her contribution to this post. Previous Next Contact

News Claim Arising from Fall through a Hatch Door Lands Flat on its Face (NJ) May 2, 2019 < Back Share to: The New Jersey Appellate Court recently reviewed a trial court decision granting summary judgment in favor of defendants in Mastrangelo v. Khanna. Plaintiff Mastrangelo, an employee of Metuchen Cardiology, fell through an open hatch door within the office and sustained multiple injuries. Dr. Sunil Khanna, plaintiff's direct boss, was the sole owner of both Metuchen Cardiology and Khanna Realty. Khanna Realty had entered into a triple net lease of the building with Metuchen Cardiology. The lease provided that the property was “completely assigned to” Metuchen Cardiology, which was the sole tenant and occupied the entire structure. The lease gave Khanna Realty no duty or control with respect to the inspection, repair, or maintenance of the leased premises. Additionally, the lease stated that Khanna Realty is not responsible for any damage to any person arising from any defect in the building. There was a hatch in the floor of the kitchen area of the building. The hatch was covered by a door, which, when removed, provided access to the basement. Plaintiff accidentally stepped into the open hatch and fell into the basement. Although plaintiff had brought claims against Metuchen Cardiology and Dr. Khanna, those claims were dismissed leaving Khanna Realty as the only remaining defendant. Khanna Realty moved for summary judgment, arguing it had no duty to inspect, repair, or maintain the building and owed no duty to plaintiff. Plaintiff counter-argued that Dr. Khanna’s common ownership of Khanna Realty and Metuchen Cardiology negated the provisions of the lease insulating Khanna Realty from responsibility for the inspection, repair, and maintenance of the building. The trial court found that Khanna Realty and Metuchen Cardiology were distinct entities that executed a lease with an “effective delegation of duties between landlord and tenant in which the tenant retained control over the subject property.” The court ultimately concluded that Khanna Realty owed no duty to plaintiff with respect to condition or use of the hatch. The appellate court, upon review, agreed with the trial court’s decision, stating that there was a valid lease between the parties that clearly delegated the responsibilities to the tenant, thereby establishing that Khanna Realty had no duty to inspect, repair or maintain the building at which plaintiff was injured. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Associates all Pass New York Bar Exam October 21, 2022 < Back Share to: As attorneys, through all the wins and losses we experience in our careers, few victories match the sheer relief one experiences upon passing the bar exam. And some new WCM attorney got to experience that feeling this week. Wade Clark Mulcahy LLP's new class of first year associates who sat for the New York Bar Exam in July all received some good news Thursday morning -- all 5 passed the NY bar exam! Congratulations to Chris Palmieri, Rebecca Pasternak, Lauren Howard, Yifan "Sherry" Lin and Alexander Rabhan. Enjoy the weekend, perhaps an adult beverage or two, and then get back to work on Monday! Congratulations on a job well done. Previous Next Contact

News NJ App. Div. Affirms No Cause Verdict In Favor Of WCM In Insurance Broker E&O Case. March 15, 2010 < Back Share to: In Credit Suisse First Boston v. Lehman, et al, the plaintiff's had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims. After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, " little question" that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse's decision to settle the underlying claims without suing the insurance carrier " highly questionable". The latter point had been the basis of WCM's lack of proximate cause argument to the jury. If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office. http://www.judiciary.state.nj.us/opinions/a2031-08.pdf Previous Next Contact