News Property Insurers Are Not Responsible For Financial Losses (NY) March 3, 2023 < Back Share to: Over the three years since the start of the pandemic, business owners have filed over 2,400 lawsuits over business interruption losses resulting from the pandemic and government orders. Both federal and state courts have upheld motions to dismiss these claims. The Second Circuit in 10012 Holdings, Inc. v. Sentinel Insurance Co. applied New York law to affirm the dismissal of an art gallery's Covid-19 business interruption claim, holding that "'direct physical loss' and 'physical damage' ... do not extend to mere loss of use of a premise, where there has been no physical damage to such premises; those terms instead require actual physical loss of or damage to the insured's property." This decision falls in line with the 10 other circuit courts, having all unanimously said that property insurance does not encompass economic losses from Covid-19-related business interruption claims. Business interruption insurance typically appears as an add-on to commercial property insurance policies. This coverage is designed to make the insured whole for lost income and additional expenses incurred during a period when business operations are interrupted because of a covered cause of loss. Loss of use of premises when there is no physical damage does not constitute a “direct physical loss” that is covered by the policy’s business income and extra income provisions. Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Mets Owners Owe No Duty To Patron Who Fell On Boardwalk On The Way To Shea October 30, 2008 < Back Share to: In the movie, Field of Dreams, players made their way onto a baseball diamond by walking out of a cornfield. In Ruffino v. New York City Transit Authority and Sterling Mets, L.P., plaintiff tripped and fell over an uneven piece of wood while walking on a boardwalk that spanned over a Long Island Railroad train station and fed into a New York City Transit Authority number 7 subway station, on her way to Shea Stadium, now the former home of the New York Mets. Sterling Mets, L.P., moved to dismiss plaintiff's complaint, pursuant CPLR §3211(a) (1) and (7), since it did not own, occupy, control or make special use of the boardwalk. In denying Sterling's motion, the trial court essentially found a triable issue as to special use since it determined that the defendant failed to establish that it did not have a duty to maintain the boardwalk in a safe condition even if it did not own, occupy or control the boardwalk. After restating the standard by which CPLR §3211(a) (1) and (7) motions are to be decided, the Appellate Division, Second Department, found that Sterling’s evidence in support of its motion established that the subject boardwalk is a public thoroughfare. Agreeing with the defendant’s rationale, the Court determined that the mere use of boardwalk by Sterling’s customers is not a special benefit, giving rise to a special use. Thus, while they may come if you build it, be sure they do so using public thoroughfares. http://www.nycourts.gov/reporter/3dseries/2008/2008_08114.htm Previous Next Contact

News An Owner's Lack Of Supervisory Control Is Not A Defense In A NY Labor Law § 200 Claim November 29, 2012 < Back Share to: In Raffa v. The City of New York, the plaintiff was injured when he slipped and fell on a sheet of ice at a construction site, while walking from his car to a construction trailer. The plaintiff testified that two days prior to the accident, he complained to the foreman and superintendent about snow and ice covering the area where he fell. Additionally, the day prior to the plaintiff's accident, the project manager was notified that another worker slipped and fell on ice in that area. The plaintiff sued the owner of the property, the City of New York, and the general contractor, U.R.S. Corp. under Labor Law § 200 and common law negligence in the Supreme Court, Bronx County. The City of New York moved for summary judgment on the grounds that as an owner, it had no supervisory control of the plaintiff or control over the means, methods or materials used in the work. The court agreed and granted the City of New York's motion. On appeal the Appellate Division, First Department reversed the lower court's decision. The First Department held that because the plaintiff's Labor Law § 200 and common law negligence claims are based on a dangerous condition on the site, not on the means, methods or materials used in the work, the only issue was whether the City of New York had notice of the condition, not whether it excercised supervisory control over the manner of performance of plaintiff's work. Thus, there was a question of fact as to whether the City of New York had actual or constructive notice of the icy condition that caused the plaintiff's accident. Thanks to Ed Lomena for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News A "Threshold" Motion and Doctor Affidavit Needs Specifics, even for a De Minimis Injury (NY) September 20, 2018 < Back Share to: If you are a Defendant in a motor vehicle injury case, and move for summary judgement on the "threshold" grounds (that plaintiff did not sustain a “serious injury” under the New York Insurance Law) a proper expert report is critical to make a prima facie showing that the Plaintiff did not sustain a serious injury. Sometimes, defendants learn the hard way. In Cabrera-Verduzo v. Shortis, a case concerning a chain-reaction, rear-end motor vehicle accident, all the defendants moved for summary judgement claiming that both Plaintiffs did not sustain serious injuries. The courts in New York have been clear that when filing summary judgement motions the defendants bear the burden of showing that the Plaintiff did not sustain a “serious injury” under New York Insurance Law §5120(d). In the case at bar, the court concluded that the defendants failed to make a prima facie showing that both of the Plaintiffs did not sustain a serious injury. First up was the Plaintiff, Maria Cabrea Verduzo. Specifically, this Plaintiff claimed to have injured her right knee. She claimed in her bill of particulars that she was confined to her home for approximately four months and that during that time period she was totally incapacitated. Cabrera-Verduzo also testified at her deposition that she missed approximately four and a half to five months of work. Dr. David Weissberg, defendants' examining orthopedist, examined this Plaintiff approximately five years after the accident and did not say that any of his findings were related to the time period immediately after the subject accident. The court said that the defendants failed to meet their initial burden by failing to negate the issue of fact as to the 90/180 claim. Therefore, the motion was denied. As for the second Plaintiff, Mr. Montenegro, the court came to the same conclusion. Mr. Montenegro claimed to have injured his right knee and that he suffered appendicitis as a result of the motor vehicle accident. The defendants had two medical experts examine this Plaintiff. Dr. Raymond Shebairo, an orthopedist, did many tests regarding Mr. Montenegro’s right knee, but failed to effectively discuss Plaintiff’s claim of appendicitis. Dr. Ilan Weisberg, a gastroenterologist, concluded that it is “more likely to be coincidental to, rather than caused by the subject accident.” However, he does not back that claim up with any actual evidence. The court stated that this conclusion was extremely speculative. Therefore, they denied this part of the motion as well. This case illustrates that defendants and their clients should take a second look at their expert medical reports, particularly before moving for SJ on "threshold" grounds. If the reports cannot meet the initial burden, the motion may not be worth the paper its written on. Thanks to Marc Schauer for his contribution to this post. Please contact Brian Gibbons by email or on Twitter @bgibbons35 with any questions.       Previous Next Contact

News Pet Insurance on the Rise January 24, 2012 < Back Share to: Over the past fifteen years, the pet insurance industry has gone from virtually nonexistent to an estimated $880 million in premium revenues by 2014. As costs for veterinary services (and, more importantly, demand for veterinary services) has skyrocketed in recent years, so has the demand of insureds attempting to reduce their own costs for such procedures. Some companies offer monthly premiums for pet medical insurance, with a variable per-incident cap, depending on the amount of the premium. Such insurance makes pet owners more comfortable, rather than face the potential of an exorbitant bill for pet surgery. For example, the attached article references a cat undergoing kidney replacement surgery at a cost of $18,000. A pet insurance endorsement may not cover the entire cost of such a procedure, but it could certainly reduce the final bill. http://www.insurancejournal.com/news/east/2012/01/20/231917.htm Thanks to Brian Gibbons for his contribution to this post.   Previous Next Contact

News Don't Insult the System: Second Department Orders New Trial June 29, 2008 < Back Share to: Defense counsel argued that because the plaintiff's husband was collecting disability payments from the NYPD, plaintiff was now trying to "snow" the jury and "max out" the civil justice system. The Second Department held such "inflammatory comments" by counsel required a new trial on damages. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19135.pdf Previous Next Contact

News Wade Clark Mulcahy LLP Associate Sarah Polacek Participates in London Secondment March 25, 2024 < Back Share to: Wade Clark Mulcahy is pleased to announce Associate Sarah Polacek as its first-ever secondee on loan to the Lloyd’s of London Insurance Market. Sarah is working with Hamilton Insurance Group. Sarah, an Associate in WCM’s Philadelphia office, litigates general liability actions, including premises liability, commercial auto, products liability and construction defect lawsuits. Sarah’s work involves all aspects of her cases, including drafting pleadings and motions, conducting depositions, performing legal research, attending hearings, arbitrations, and mediations, and preparing for trial. Sarah is a graduate of the University of Delaware and Drexel Law School. At Drexel, Sarah served as an associate editor of the Drexel Law Review and a judicial intern for the Honorable Chad F. Kenney of the United States District Court Eastern District of Pennsylvania. Bob Cosgrove, Philadelphia Office Managing Partner, said “While we miss Sarah here in the Philadelphia office, we are excited to showcase some of our young talent to our friends in London and to give Sarah the chance to learn, grow and develop. Previous Next Contact

News 911 Operators Safe from Negligence in NJ. March 16, 2012 < Back Share to: NJ’s highest court’s decision in Wilson v. Jersey City has now been issued. The court, in a unanimous decision, held that N.J.’s 911 immunity statute bars a plaintiff from suing a 911 operator or his or her employer for the negligent handling of an emergency call. However, the court noted that liability could still attach if the plaintiff could show that the defendants engaged in “wanton and willful disregard for the safety of persons” – a recklessness standard that is hard to prove. Good news for municipalities, but bad news for anyone trying to join them to a litigation. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Permanent Structures Afforded Labor Law § 240 Protection July 19, 2012 < Back Share to: In Burton v. CW Equities, LLC, et al, , the First Department reversed the lower court’s denial of plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim. The plaintiff had fallen from a permanent concrete walkway that provided access to the rear yard of a building under construction. The walkway extended over a 15-foot deep vaulted area below grade level and had no guardrails or barriers. In reversing the lower court, the First Department held that simply because the walkway was a permanent structure did not mean that it was not protected under Labor Law § 240(1). Rather, since the plaintiff’s injuries were the direct result of a failure to provide adequate protection against a risk arising from a physically significant elevation differential, he was entitled to the protections afforded by Labor Law § 240. As for the Labor Law § 200 claim, the fact that the plaintiff’s injury did not arise from the method he used to perform his work, but from a dangerous condition, was not dispositive on the issue of defendant CW Equities’ control of the worksite. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05596.htm Previous Next Contact

News Microwave "Popcorn Lung" Claim Filed In Denver January 18, 2008 < Back Share to: Wayne Watson has filed suit against Kroger Co. in U.S. District Court in Denver claiming injury from the buttery flavor added to microwave popcorn. Watson generally eats 2 bags of microwave popcorn a day and has been diagnosed with bronchiolitis obliterans, also known as "popcorn lung". The vapor from the chemical , diacetyl, which is used to provide the butter flavor to microwave popcorn, has been associated with respiratory illness in popcorn plantworkers by some experts. http://www.njlnews.com/daily_briefing Previous Next Contact

News NJ Appellate Court Weighs in on Frivolous Litigation September 29, 2016 < Back Share to: As anyone familiar with our legal system knows, anyone can file a complaint at any time. While our court rules includes a provision for frivolous litigation filed to harass a party, it is difficult to prevail on the court to dismiss an action on this basis. The courts are especially mindful of the need to have open access to the judicial system for everyone to have their case heard. Recently, the Appellate Division addressed the standard for imposing sanctions for frivolous conduct in Tagayun v. Americhoice of NJ pursuant to Rule 1:4-8 and N.J.S.A. § 2A:15-59.1. The case arose out of a contractual relationship between a doctor and an HMO. Americhoice terminated Dr. Tagayun, a neurologist, as a participating provider for HMO members. In response, the neurologist filed a complaint against Americhoice requesting injunctive relief to prevent the termination. The defendants notified the plaintiff that the contract required arbitration of all disputes and, therefore, the pleading was frivolous. When Dr. Tagayun refused to withdraw her complaint, the defendants filed a motion to dismiss and sought attorney’s fees. The Judge dismissed the complaint without prejudice and ordered the parties to arbitration based upon the contractual arbitration provision but declined to award frivolous litigation sanctions. In response, the plaintiff filed an amended complaint, which was substantively the same as the original complaint, with added defendants. At the same time, plaintiff appealed the Order dismissing the initial complaint. The Appellate Division affirmed the Order sending the plaintiff’s claim to arbitration. In the meantime, the defendants filed a motion to have both complaints declared frivolous and sought attorney’s fees. The Court agreed with the defendants that the original complaint was frivolous and granted a fee award of $10,073.20. Additionally, the Court dismissed the plaintiff’s amended complaint holding it was also frivolous and, although the Judge made very limited findings, awarded reimbursement of defendant’s counsel fees in the amount of $6,599.40. Attorney’s fees as a form of sanctions are rarely granted and, when permitted, there must be a specific a finding of bad faith, in other words, the litigation must have been designed solely for the purposes of harassment, delay or malicious injury. “Sanctions for frivolous litigation are not imposed because a party is wrong about the law and loses his or her case.” In Tagayun, the Court vacated the first award of attorney’s fees against plaintiff for filing the initial complaint even though arbitration was ultimately required pursuant to the contract. On the other hand, the Court affirmed the award of fees for the defense costs incurred in connection with the amended complaint because they merely asserted the same claims that had already been dismissed. However, the Court cautioned that the “term frivolous should not be employed broadly or it could limit access to the court system.” This decision demonstrates that even when the party ultimately succeeds, the cost of defense cannot be typically be recouped. However, if a party persists in pursuing a theory that the Court has dismissed, there may be a chance of recovery if there is a specific finding of bad faith based upon a pattern of conduct that was unreasonable. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJ The Price of Insurance Fraud for Homeowners Claim ... $175,000 January 14, 2010 < Back Share to: What started as a classic homeowners claim for damage from a fallen tree limb onto the roof of their cabin turned into a ten year saga when the homeowner and his nephew, a public adjuster, decided to enhance the damages. The neighbor, whose tree limb had caused the damage, observed men on the roof of the cabin repeatedly smashing the roof with the limb. Not wanting to be responsible for this additional damage, he videotaped the men at work. With the videotape in hand the homeowners insurer filed a declaratory judgment action denying coverage and making a claim under the New Jersey Insurance Fraud Prevention Act. After two jury verdicts finding by a preponderance of the evidence that fraud was committed and appeals that included two trips to the appellate division and one to the Supreme Court, the final decision is in… the homeowners owe their insurer $175,000. This reflects treble damages of the insurer’s investigation expenses, costs of suit, and attorneys’ fees as determined to be reasonable by the judge following the jury verdict of fraud. See Liberty Mutual Insurance Company v. Land at http://www.judiciary.state.nj.us/opinions/a6126-06.pdf For more information contact Denise Ricci at dricci@wcmlaw.com . Previous Next Contact