News Appellate Court Upholds Defense Verdict In Left Turn Case (PA) April 7, 2023 < Back Share to: In Wilmer v. Bethman, the Superior Court upheld a defense verdict in a case arising from a familiar scenario – a driver attempting to make a left turn is involved in a accident when a second driver coming from the opposite direction pauses and “waives” the first driver through, resulting in a collision with an unseen vehicle passing to the right of the second driver. Plaintiff was driving eastbound on Street Road, which has two lanes of traffic in each direction. Bethman pulled into a separate left turning lane in preparation for entering a housing development across the road. She stopped in the turning lane and waited for westbound traffic to stop. The driver of the car in the westbound turning lane, a police officer, stopped, left a gap, and made a gesture indicating that Bethman should proceed. Bethman waited one second to make sure that the car had stopped. The officer’s car blocked Bethman’s view of the second westbound lane until she began her turn. Bethman successfully turned into the first westbound lane. As she was entering the housing development after crossing over the second westbound lane, a van in which Kristine Wilmer was traveling struck the rear passenger side of Bethman’s car. Wilmer was in the front passenger seat of the van when the collision occurred. She suffered facial injuries when the airbag deployed. Wilmer sued Bethman for her injuries resulting from the collision, and the case proceeded to a jury trial. At the conclusion of her case, Bethman moved for judgment as a matter of law, asserting that Wilmer had violated Section 3322 of the Pennsylvania Motor Vehicle Code governing left turns, and was therefore negligent per se. The trial court denied Wilmer’s motion. At the close of Bethman’s case, Wilmer moved for a directed verdict on the same grounds. The court denied the motion. Wilmer then requested a jury instruction on negligence based on the alleged violation of the left turn statute, and requested that the jury not be charged separately on negligence. The court denied Wilmer’s requests, but in its closing instruction, the court instructed the jury on both negligence and negligence per se. The jury found Bethman was not negligent, and Wilmer moved for judgment notwithstanding the verdict. The court denied that motion and Wilmer’s post trial motion, and she appealed to Superior Court. On appeal, the Superior Court focused primarily on the issue of negligence per se. To prove negligence per se, a plaintiff must demonstrate: (1) the existence of a statute designed at least in part to protect the interests of a group of individuals, as opposed to the public generally; (2) the clear application of the statute to the defendant’s conduct; (3) the defendant’s violation of the statute; and (4) that the violation was the proximate cause of plaintiff’s injuries. The Superior Court found no abuse of discretion in trial court’s conclusion that the evidence was sufficient to permit the jury to conclude that Bethman acted reasonably and waited until she thought it was safe to proceed and was therefore not negligent. Wilmer presented no evidence about the distance between the van in which she was riding and Bethman’s car when it turned left. Thus, there was no evidence that Bethman violated the left turn statute by failing to yield the right-of-way to a vehicle that was so close as to constitute a hazard, and no evidence that a statutory violation caused the accident. Wilmer did not see the collision. She did not present any evidence that the van in which she was riding had a green light, was following the speed limit, or remained it its lane, leaving open the possibility that the van’s driver was contributorily or comparatively negligent and partially responsible for the collision. Although Wilmer claimed that Bethman failed to look as she entered the intersection, Bethman testified without contradiction that she did look for oncoming traffic. Wilmer did not prove that Bethman failed to signal her turn. Interestingly, Wilmer failed to introduce into evidence the ticket that Bethman paid, and failed to cite authority for the proposition that issuance of the ticket alone establish negligence per se. The opinion does not indicate the grounds for the ticket that Bethman received. This case stands for the proposition than a plaintiff must establish all elements to prove negligence per se, and not merely assume the a collision with a vehicle making a left turn will invariably result in liability on the part of the turning driver. Though the opinion did not address the ramifications of the failure to introduce evidence of payment of the traffic ticket, it seems likely that payment of any ticket would effectively be a guilty plea which would have established violation of the statute, thereby justifying a finding of negligence per se. Thanks to James Scott for his assistance with this article. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Hospitals’ Internal Self-Reviews Remain Internal (NJ) August 31, 2018 < Back Share to: In Brugaletta v. Garcia, the plaintiff sought emergency medical treatment at Chilton Memorial Hospital (“CMH”) and underwent multiple surgeries. Plaintiff’s doctor recorded that plaintiff missed doses of an ordered antibiotic, which plaintiff discovered after her medical records were turned over in discovery. When plaintiff inquired further, CMH admitted it possessed two internal self-critical reports regarding plaintiff’s care – but refused to produce them on the basis of privilege. Plaintiff filed a motion to compel their production, and CMH filed a cross-motion for a protective order. The New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq., sought to enhance patient safety by establishing an environment that mandates the confidential disclosure of the most serious, preventable adverse effects. Once disclosed, hospitals and other licensed healthcare facilities must convene patient safety committees, conduct self-critical peer reviews, and perform Root Cause Analyses to reconstruct and analyze cases to determine “what went wrong.” Serious Preventable Adverse Events (SPAE) must be reported. To encourage disclosures and self-reporting, these reports are protected by an absolute privilege. N.J.S.A. 26:2H-12.25(f). Unsurprisingly, the New Jersey plaintiffs’ bar has sought these internal records ever since. In Brugaletta, the plaintiffs’ bar secured an initial victory. The trial court heard argument on plaintiff’s motion to compel and CMH’s cross-motion for a protective order and conducted an in camera review of the related incident reports. After the review, the trial court found the reports were correctly classified as self-critical analyses under the PSA. Surprisingly, however, the trial court usurped CMH’s decision that plaintiff’s case did not amount to a SPAE. The trial court fashioned a remedy – the disclosure of a redacted self-critical report – that attempted to honor the privilege but reveal the SPAE to the plaintiff. The New Jersey Supreme Court agreed with the Appellate Division and ruled the trial court exceeded its authority in declaring a SPAE actually occurred, and in issuing related orders that CMH disclose to plaintiff a redacted version of the self-critical report. According to the Court, the legislature inserted no role for a trial court to play in reviewing the SPAE determination made by a patient safety committee of a health care facility. Additionally, the Court ruled the legislature intended to encase the entire self-critical analysis process in privilege; it is not limited to Serioues Preventable Adverse Events. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Pennsylvania Court Upholds Unlisted Resident Driver Exclusion As Valid Basis To Disclaim Coverage October 3, 2017 < Back Share to: The Pennsylvania Superior Court recently upheld a policy’s Unlisted Resident Driver Exclusion. Specifically, in Safe Auto v. Rene Oriental-Guillermo, the underlying plaintiff was involved in a motor vehicle accident. Following the accident, the underlying plaintiff sued, among others, the driver of the other car, Dixon, as well as the owner of the other car, Dixon’s boyfriend, Oriental-Guillermo. Safe Auto insured Oriental-Guillermo. The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the policyholder, but were not related to the policyholder and whom the policyholder did not specifically list on the policy. Based on this exclusion, Safe Auto denied coverage, as Dixon was living with Oriental-Guillermo, but was neither related to him nor specifically listed on the policy. On appeal, the Pennsylvania Superior Court concluded that the Unlisted Resident Driver Exclusion was unambiguous. The Court also concluded that the Unlisted Resident Driver Exclusion did not violate Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) nor was it void against public policy. As such, the Superior Court ultimately concluded the Unlisted Resident Driver Exclusion provided a valid basis to deny coverage. Often times drivers will attempt to seek coverage under a policy based on a public policy argument that an insurance company must insure every individual who uses an insured’s vehicle unless the insured specifically asked the insurance company not to provide coverage for that driver. This can lead to unintentional coverage being provided under policies. However, as this case illustrates, with the inclusion of the Unlisted Resident Driver Exclusion (or a similarly worded exclusion), an insurer can limit the scope of coverage provided under its policies, and limit the potential drivers who may seek coverage under a policy. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

Craig D. Dietel Associate New Jersey cdietel@wcmlaw.com (862) 294-3567 Professional Experience Craig is an Associate in WCM’s New Jersey office, where he focuses his practice on insurance coverage and construction litigation. Prior to joining WCM, Craig practiced at a small firm in New Brunswick, New Jersey, where he focused extensively on personal injury and Municipal Court matters. He also served as a law clerk to the Presiding Judge of the Essex County Family Part in Newark, New Jersey. His diverse litigation experience has helped him develop as a confident and effective litigator, providing a strong foundation for representing clients in complex matters and advocating for their interests. Professional Activities Middlesex County Bar Association, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Elisabeth Haub School of Law at Pace University, cum laude B.A. in Journalism and Professional Writing, The College of New Jersey Bar Admissions New Jersey

News NJ Supreme Court Rules No Independent Duty to Monitor Alcohol Consumption January 27, 2009 < Back Share to: Alcohol related injuries and fatalities present difficult cases that frequently turn on the fine factual determination of whether someone is " visibly intoxicated." In New Jersey, a licensed alcoholic beverage server is liable only if he serves a "visibly intoxicated" person and that service proximately causes an accident. What happens if the license holder does not actual serve the alcohol but rather arranges for a beer truck to be available for patrons to self serve their own alcohol? Can the server be found negligent for failure to properly monitor the alchohol consumption of its guests even in the absence of a finding that it served or "allowed to be served" a visibly intoxicated person? In Mazzacano v. Happy Hour Social and Athletic Club of Maple Shade, the New Jersey Supreme Court held that the self service of alcohol by patrons is tantamount to service by the Club. Thus, the Club would be potentially liable if a patron serves himself from the beer truck while visibly intoxciated. It is not required that an employee of the Club put the drink directly in the hand of the drunk. Rather the Club is liable if it either serves or "allows" a visibly intoxicated person to be served. In Mazzano, the Club "allows" a patron to be served by making alcohol available from a self service beer truck. Further, and more to the point in Mazzacano, there is no separate and independent duty to monitor the alcohol consumption of the patrons. If the Club did not serve or allow to be served a visibly intoxicated person, there can be no liability. The plaintiff cannot avoid this requirement by arguing that the Club was negligent because it failed to properly monitor the alcohol consumption of its guests. Thus the Club cannot be liable because the jury concluded that the drunk did not appear "visibly intoxicated" when he served himself from the beer truck. Bottom line: licensed servers are strictly held to the requirements of New Jersey's Dram Shop Act but the courts should be reluctant to impose additional requirements. http://lawlibrary.rutgers.edu/courts/supreme/a-102-07.opn.html Previous Next Contact

News Additional Insurance Claim Torched Based on Lack of Indemnity Agreement (NY) January 8, 2016 < Back Share to: In American Ins. Co. v Schnall, the Appellate Division, First Department recently dealt with the issue of whether blanket additional insured coverage could be triggered simply by an agreement between the parties to procure such coverage - without an indemnity agreement between the parties. Brooklynbaca, LLC, doing business as The Brooklyn Star operated a bar and restaurant in the Brooklyn neighborhood of Williamsburg. In order to better serve its (hipster) patrons, Brooklynbaca contracted with Scientific Fire Prevention Company to install a cooking exhaust duct in the restaurant. The service agreement contained an insurance procurement provision in favor of Scientific but Brooklynbaca did not assume Scientific’s tort liability. A fire erupted in the restaurant’s kitchen damaging the building owner’s property. American Insurance Company insured Brooklynbaca under a liability policy. Scientific sought coverage under the American policy’s additional insured endorsement which provided coverage to organizations that Brooklynbaca was “required by a written insured contract to include as an insured.” The parties became embroiled in litigation and Scientific sought a declaration that it was entitled to additional insured coverage. A New York State trial court denied the insurers’ motion for summary judgment and an appeal followed. The First Department reversed the trial court finding that although the service agreement contained an insurance procurement provision it did not require that Brooklynbaca assume any tort liability on the part of Scientific. As such, without a clause requiring Brooklynbaca’s assumption of tort liability, the service agreement did not constitute a “written insured contract.” The First Department thus found that Scientific was not entitled to additional insured coverage under the American policy. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News NJ Appellate Court Reverses Summary Judgment Granted Based On Ordinance or Law Policy Exclusion September 12, 2012 < Back Share to: In Leda Puhlovsky v. Rutgers Casualty Insurance Company, the Appellate Court overturned a trial court’s Order of summary judgment in favor of the insurer. The plaintiff owned a four-story commercial building in Paterson. In March 2008, the adjacent building collapsed and was ultimately demolished. The western brick wall of plaintiff’s building was built into the wood frame of the adjacent building, creating a common wall in between them. After the collapse of the adjacent building, a municipal engineer examined the plaintiff’s building and found it to be unsafe. City officials instructed the plaintiff to either demolish the building or repair it so as to conform to Code. She opted to demolish the building and afterwards filed a claim with her insurer, Rutgers Casualty, under the policy issued for the commercial property. An engineer retained by Rutgers examined the building and determined that there had been gradual movement in the building in the past few years due to the earth sinking and settling and that the loss of support from the adjacent building exacerbated the condition. Plaintiff’s expert also inspected the building and determined that the damage occurred due to the partial collapse of the adjacent building and vibrations from demolition of the adjacent building. Rutgers eventually denied coverage under the policy's exclusions for losses occasioned by the enforcement of any ordinance or law, or arising from neglect, faulty construction or earth movement. The trial court agreed with Rutgers’ position and granted summary judgment its favor. The Appellate Court reversed and found that the exclusions in the policy did not apply to the specific circumstances of this case. Noting that insurance policy exclusions must be narrowly construed, the court determined that the “ordinance or law exclusion” did not apply to the facts of this case, since the building was not demolished at the direction of the City of Paterson. Rather, the City gave plaintiff the choice either to demolish the structure or immediately correct the hazards and render the building safe. Moreover, the exclusion in the Rutgers policy refers to code enforcement requiring the tearing down of any property, which is not what happened in this case. Further, similar exclusions in other policies have been construed to apply to the increased expenses incurred by an insured in repairing or rebuilding a damaged structure so as to bring it into compliance with a local code or ordinance. Lastly, the Appellate court held that the motion judge's reliance on the "earth movement" exclusion was not warranted in the context of a motion for summary judgment. Rather, the question of whether or not the settling, cracking or other disarrangement of plaintiff's building occurred as a consequence of "earth movement" was a question of fact for a jury. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5100-10.pdf Previous Next Contact

News Barring Expert Testimony Based On Net Opinion Upheld by NJ App Div. November 24, 2010 < Back Share to: In Sims v. Deltec Power Systems, the Appellate Court upheld an Order barring a plaintiff's liability expert from testifying at the time of trial. Plaintiff, Calvert Smith, alleged personal injuries due to exposure to sulfuric acid fumes. According to the plaintiff, a group of batteries attached to an uninerruptible power supply unit malfunctioned, and caused the release of fumes. Plaintiff brought suit against the manufacturer of the batteries. Plaintiff's expert, Mark Keith, testified that a manufacturing defect caused the leak, an opinion which was premised upon the fact that the battery casing was cracked. However, there was no evidence in the record to suggest that any of the batteries were cracked. Furthermore, plainitff's expert acknowledged that one of two things could have caused the release of the fumes- negligence or a product defect. Ultimately, the appellate court upheld the trial court's opinion that plaintiff's expert's testimony constituted an inadmissable net opinion which was properly excluded. Thank you to Heather Aquino for this post. http://www.judiciary.state.nj.us/opinions/a1058-09.pdf Previous Next Contact

News NY: A&B Sub-Limit Applies To Primary But Not Excess Policy November 30, 2011 < Back Share to: It is a harsh reality that courts will give policyholders every benefit of the doubt in interpreting the terms, conditions and limits of policies of insurance. Insurers must be careful to place their insureds on notice of significant exclusions and limitations through the use of clear, concise and plain language in their policy forms. Even trickier, most states require that insurers timely advise their insureds and claimants if they conclude that the policy does not cover a particular claim or loss. What obligation does an insurer have if it does not deny coverage outright but seeks to enforce a significant sub-limit of liability? Is the insurer bound by the same rules that control when the insurer seeks to disclaim liability? Recently, in Santa v. Capitol Specialty Insurance, LTD., et al., plaintiffs filed suit against a Manhattan night club arising out of an alleged assault on plaintiffs. The third party administrator for the primary insurer became aware of the claim after it received the summons and complaint, which contained a specific count based on assault. Nine months later during discovery, the attorneys for the policyholder disclosed, for the first time, that the primary policy was subject to an assault and battery sub-limit of $50,000. The insurance disclosure also identified an excess policy with limits of $4,000,000 but made no reference to the sub-limit contained in the primary policy. The claimants protested that the primary insurer must provide its full policy limits because it failed to provide timely notice of the assault and battery sub-limit. Further, they argued that the excess insurer must make its full policy limits available because its policy did not contain any explicit exclusion or sub-limit for claims based on assault and battery. Of significance, the court held that the primary insurer was not subject to the normal rules requiring timely notice of disclaimer because it was not disclaiming or otherwise denying coverage. Rather, it was providing “the full measure of coverage available for the incident,” just with a reduced sub-limit of liability. On the other hand, the excess insurer did not fare as well. The court cited a number of problems with the excess insurer’s stance including its failure to exclude or specifically minimize its limits of liability for claims based on assault and battery. Further, the court was troubled by the excess insurer’s failure to put the claimant on notice of the sublimit when the insurance disclosure was furnished to the claimant’s attorney during discovery. The lesson of Santa is clear: while Santa may overlook minor errors in conduct and still arrive bearing gifts, insurers can expect no such generosity from the courts. Be clear, accurate and specific in the language contained in your policies and the disclosures made to your insureds and claimants. http://pdf.wcmlaw.com/pdf/santa.pdf If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com Previous Next Contact

News PA Superior Court Analyzes The "Regular Use" Exclusion November 5, 2012 < Back Share to: In Rother v. Erie Insurance, Patrick Rother was injured in a car accident. At the time of the accident Rother was living with his mother but was driving his father’s car. Two weeks before the accident, Rother’s father had given him permission the use the car to commute to work for the indefinite future. After Rother recovered liability benefits from the other driver’s policy, he and his mother initiated an action seeking a declaration that Erie Insurance was obligated to provide underinsured motorist coverage under his mother’s policy. Erie contended that coverage was excluded under the “regular use” exclusion in the policy. The trial court granted summary judgment in favor of Rother. Erie appealed. On appeal, the Superior Court first noted that, generally, policy exclusions should be narrowly construed. Next the Court held that the duration of Rother’s use of the car was irrelevant in determining if the test for “regular use” had been met. Further, the fact that Rother’s father had placed restrictions on the use of the car would not preclude there being a finding of “regular use.” The Court held that the determining factor was there was no indication that Rother’s use of the car was on a temporary basis. As such, the test for “regular use” had been met and there was no coverage under Erie’s policy. Thanks to Colleen Hayes for her contribution to this post. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202576475740 Previous Next Contact

News A Prime Time For A Buyer To Beware (NY) December 23, 2019 < Back Share to: In a recent lawsuit filed in the Eastern District of New York, Amazon.com Inc.’s summary judgment motion was granted by the federal court, rejecting subrogation claims by an insurer. In Philadelphia Indemnity Ins Co v. Amazon.com Inc., Amazon was sued for losses to a sushi restaurant from a fire allegedly ignited by a defective commercial blender, which was sold and delivered through Amazon’s fulfillment program. The online seller never took title to the blender, even though it had warehoused and delivered the product, so it could not be held strictly liable for its defects, U.S. District Judge Dennis R. Hurley of the Eastern District of New York wrote in the opinion granting Amazon’s summary judgment motion. According to the opinion, Guangzhou Glantop E-Business Co. Ltd., a Chinese seller of kitchen products, entered an Amazon Services Business Solutions Agreement, through which Amazon agreed to offer the products and process payments in exchange for referrals and service fees. The contract also provided for fulfillment services, whereby Amazon would warehouse, pick up, deliver, and provide customer service for Glantop’s products. A&K Sushi Corp., a restaurant in Wantaugh, New York, which was located in a strip mall owned by Niat Realty Group, purchased a blender from Glantop through Amazon in April of 2016. The blender was warehoused by Amazon. In May of 2016, the blender allegedly caused a fire at A&K that caused substantial property damage. Philadelphia Indemnity, Niat Realty’s insurer, sued Amazon for product liability, breach of warranty and negligence in a subrogation action, seeking to recover the $200,000 it paid Niat for the fire damage. Amazon moved for summary judgment to dismiss the claims. Amazon argued it could not be held liable because Philadelphia Indemnity could not establish that the company manufactured, distributed, or sold the blender. The insurer countered that Amazon was at the top of the blender’s distribution chain and that it was in the best position to further the public policy considerations underlying the doctrine of strict product liability. Whether Amazon can be held strictly liable for defects in products sold by third-party vendors is a “developing area of law,” Judge Hurley noted in the opinion. He cited Eberhart v. Amazon.com Inc., 326 F.Supp. 3d 393 (S.D.N.Y. 2018), which held that strict liability applies only to those entities that are within the distribution chain. New York's highest court has not yet addressed whether an online marketplace is subject to strict product liability, so Eberhart predicted how the New York Court of Appeals would decide, Judge Hurley stated. Under the terms of the business-solutions agreement, Amazon never took title to the blender, so it could not be considered a "distributor" within the distribution chain. Judge Hurley also stated Amazon did not know who manufactured the blender, so it was not in a position to influence the manufacturer. Philadelphia Indemnity's negligence and breach-of-warranty claims likewise failed because Amazon did not manufacture, sell or distribute the blender, Judge Hurley ruled. Thus, this case illustrates that, while this area of the law is still developing, recent decisions may make it more difficult to prevail in certain subrogation matters. Thanks to Joseph Anzalone for his contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Middle Car In “Chain Collision” Can Escape On Summary Judgment February 10, 2023 < Back Share to: Defending a rear-end collision when plaintiff is in a stopped car can be difficult, the cards are stacked against you and generally speaking, so is the law. Plaintiff only needs to establish that they were stopped as prima facie showing that the operator of the rear vehicle was negligent. However, the Second Department has recently held that, the same rules do not apply for a “middle” car in an accordion accident. In the matter of Liya Robinson v. New York City Transit Authority and Ghilan Noman Ali, 2023 N.Y. Slip Op 00683, Ms. Robinson brought suit to recover for personal injuries resulting from a multiple car pileup. Here, Ms. Robinson was sitting at a red light, when a New York City Bus struck her from the rear, resulting in two other cars being struck. Ms. Robinson brought suit against the NYCTA, as well as the drivers of the two vehicles in front of her. While it may seem clear that the two front vehicles would have no liability in such an action, and in fact summary judgment was held awarded in their favor, the court widened its holding, specifically stating that “in a chain-collision accident, the defendant operator/owner of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead when it was struck from behind by the rear vehicle and propelled into the lead vehicle.” Id., citing Nicola v Nicolas, 208 AD3d 791, 793. Thus, the mere fact that the insured was in a rear-end collision and was not the lead, is not dispositive of the action. In fact, if they were in the middle of the collision, they may be able to successfully obtain summary judgment and share no liability whatsoever. Thanks to Christopher Palmieri for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact