News Policy Limit Conundrum or Creative Lawyering? (PA) September 27, 2017 < Back Share to: Though courts strictly interpret insurance policies with an eye towards finding coverage whenever possible, they will enforce clear and unambiguous policy terms. In Good v. Frankie & Eddie's Hanover Inn, LLP and RCA Ins. Group on Behalf of State Nat'l Ins. Co., the issue before the Superior Court of Pennsylvania was the interpretation of the limit of coverage offered under a liquor liability coverage part in connection with a wrongful death/survival action. The insured tavern had served alcohol to a driver who subsequently drove under the influence and crashed into the deceased motorcycle operator. The tavern’s insurance policy included a Liquor Liability Coverage Form, which provided coverage with an “Aggregate Limit” and an “Each Common Cause Limit.” The form expressly defined the each common cause limit as “the most we will pay for all ‘injury’ sustained by one or more persons or organizations as the result of the selling, serving or furnishing of any alcoholic beverage to any one person.” The policy’s declarations page did not include this latter term but expressed the applicable liquor liability limits as $500,000 for “Each Occurrence” and $1 million “Aggregate.” The plaintiff took the position that the term “each common cause limit” was ambiguous and not parallel to the declarations page’s “occurrence” language. During the pendency of the litigation against the tavern, the parties reached a settlement agreement whereby the insurer agreed to pay its $500,000 limit on behalf of its insured with the understanding that a declaratory action would proceed to resolve the limit of coverage issue. As a result of cross-motions filed by the parties, the trial court found that the policy terms unambiguously expressed the intent of the contracting parties that there would be separate liquor liability limits for Each Common Cause, i.e. claims arising from alcoholic beverage service to one person, and for the Aggregate of all claims made involving service to more than one person. Per the clear terms of the policy, there had to be a distinction between the two limits, and the declarations page, while using different terminology, provided for this in the $500,000 per occurrence limit and the $1 million aggregate limit. The plaintiff made creative arguments to subvert the clear policy language that the court and appellate court roundly rejected. For example, she argued that the “occurrence” limit simply did not apply because this term was not defined in the liquor liability coverage part. Alternatively, she argued that “occurrence” is ambiguous without definition and should be read to provide $500,000 per each category of damages (i.e. wrongful death and survival actions). Finally, she claimed that the phrases “Each Occurrence” and “Each Common Cause” were not interchangeable within the insurance industry. In affirming the lower court, the appellate court held “the only reasonable conclusion, consistent with the intention of the parties and the reasonable expectations of the insureds, is to apply the “Each Occurrence Limit” as the “Each Common Clause Limit.” Thanks to Lauren Berenbaum for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Insurer Wins Declaratory Judgment On Personal and Advertising Injury Claim (NY) August 23, 2023 < Back Share to: The United States District Court for the Southern District of New York recently granted an insurer-defendant’s motion to dismiss in a coverage declaratory judgment action. In Tzumi Innovations LLC v. Twin City Fire Insurance Company, the action involves plaintiff Tzumi Innovations LLC, who brought an action against defendant Twin City Fire Insurance Company seeking defense and indemnity in an underlying consumer protection action. Tzumi sought coverage under the policy’s “personal and advertising injury” coverage, arguing that the complaint in the underlying action alleged commercial disparagement. The policy defined “personal and advertising injury,” in relevant part, as injury arising out of “oral, written, or electronic publication of material that . . . disparages a person’s or organization’s goods, products or services.” The underlying action alleged that Tzumi made false and misleading claims on the labels of three of its products — antibacterial wipes — that made the purchaser believe the wipes were approved “as safe and effective for use as an antimicrobial agent on surfaces in homes.” The underlying action alleged that Tzumi’s mislabeling was purposeful and reflected Tzumi’s intent to market its wipes as surface disinfectants rather than personal care products. The underlying action alleged that due to Tzumi’s deceptive practices, retailers placed Tzumi’s wipes with household surface cleaning and disinfection products, and in close proximity to EPA-registered disinfectants, rather than with personal care or hand sanitizing products in the health and beauty aisle. Tzumi’s theory of coverage was that by misleading customers into thinking Tzumi’s products were approved for anti-microbial purposes and useful in cleaning surfaces, Tzumi “inevitably created doubt as to the authenticity of the claims of similarly situated products, thereby disparaging its competitors.” Put differently, Tzumi alleged that per the complaint, it disparaged its competitors by creating a link between its products and competitors’ products, thereby undermining the credibility of all products similar to its wipes. The Court found no possible legal or factual basis in the underlying complaint to support Tzumi’s theory of a disparagement claim, and therefore found that Twin City did not owe Tzumi defense or indemnity in the underlying action. The Court noted that the allegations in the underlying complaint focused solely on Tzumi’s own products, and not on Tzumi’s competitors. Beyond the lack of allegations in the underlying complaint that Tzumi disparaged its competitors, the Court also noted that New York law clearly requires “specific assertions of unfavorable facts reflecting upon the rival product” in order for disparagement claims to be actionable. This decision is noteworthy in that it demonstrates a court’s willingness to reject an insured’s theory of coverage — no matter how creative — where that theory is not supported by the allegations in a complaint. Thanks to Erin Gallagher for her assistance with this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Does Fewer Super-Rich = More Fine Art and JB Claims? August 21, 2009 < Back Share to: According to the New York Times, that class of people known as the "super-rich" is declining. Since the members of this class are most likely to possess jewelery, works of art and other valuable objects insured by the specialty markets, the question is -- will claims increase as the now "merely rich" search for new ways to pay off their debts and/or maintain their lifestyles? http://www.nytimes.com/2009/08/21/business/economy/21inequality.html?_r=2&ref=business Previous Next Contact

News Real Estate Agent a "Volunteer" and Thus Not Covered By New York's Labor Law February 25, 2011 < Back Share to: In Lipsker v. 650 Crown Equities, the plaintiff, a real estate agent for defendant Skyline, was injured when he fell from a ladder while putting up a sign at Skyline’s office. The plaintiff commenced suit against the owner and manager of the building alleging violations of the Labor Law and common-law negligence. The lower court dismissed the plaintiff’s Labor Law claims, finding that plaintiff was a volunteer and thereby not entitled to the protections of the Labor Law. The First Department affirmed. In doing so, the court focused on the fact that plaintiff was acting as a volunteer when he helped his boss put up the sign and that he was paid on commission. Thanks to Gabriel Darwick for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_01246.htm Previous Next Contact

News Pennsylvania, Not English Law, Applies to Lloyd's Dispute. June 29, 2010 < Back Share to: In commercial disputes, the choice of law applied to the policy or contract is often dispositive -- a point that has been proven in a recent PA decision. In the case of Ario v. Underwriting Members of Lloyd's Of London Syndicates 33, 205 and 506, a Pennsylvania court was faced with the question of which law to apply in the context of a reinsurance dispute involving a Pennsylvania company and Lloyd's syndicates. The choice of law issue was important in that depending on which law applied the cause of action may have been time barred. The PA court ruled that Pennsylvania law should apply because the case involved a Pennsylvania resident -- a decision which allowed the lawsuit to proceed. The opinion cites to many deep legal principles in respect of why this is just and appropriate, but it seems to us that the case once again proves the merit of having a home court advantage when litigation results. We query whether the result would have been different if the reinsurance treaty had been clearer in respect of the choice of law that applied to disputes under its terms. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Lloyd's Law.pdf http://pdf.wcmlaw.com/pdf/Lloyd's Law Op.pdf Previous Next Contact

News Cards Against Humanity Sues SpaceX Over Texas Trespass September 23, 2024 < Back Share to: SpaceX received an embarrassing reminder last Thursday to ensure they own property before undertaking major projects. Cards Against Humanity, a company known for their irreverent party game and national pranks, filed a lawsuit against SpaceX for trespass on land they have owned in Texas since 2017. Cards Against Humanity purchased the land adjoining the border between the United States and Mexico in 2017 as part of a protest against then-President Donald Trump’s planned border wall. Since that time, CAH reports, the land has been kept in pristine condition, maintained with regular mowing, fencing and “no trespassing” signs. That was, of course, until Elon Musk’s SpaceX moved in next door and began using the CAH acreage as worksite. Per CAH’s public statement , SpaceX “completely f***ed that land with gravel, tractors, and space garbage.” From the lawsuit : “The site was cleared of vegetation, and the soil was compacted with gravel or other substance to allow SpaceX and its contractors to run and park its vehicles all over the Property. Generators were brought in to run equipment and lights while work was being performed before and after daylight. An enormous mound of gravel was unloaded onto the Property; the gravel is being stored and used for the construction of buildings by SpaceX’s contractors along the road. Large pieces of construction equipment and numerous construction-related vehicles are utilized and stored on the Property continuously. And, of course, workers are present performing construction work and staging materials and vehicles for work to be performed on other tracts. In short, SpaceX has treated the Property as its own for at least six (6) months without regard for CAH’s property rights nor the safety of anyone entering what has become a worksite that is presumably governed by OSHA safety requirements.” (Emphasis in original) After being alerted to the trespass, SpaceX reportedly gave CAH a “lowball offer for less than half” of the lands value, with a 12-hour window to accept. CAH politely declined, and filed suit against SpaceX. Per the lawsuit, SpaceX never asked permission to conduct these activities and has continued to use the plot as a staging ground for construction projects to this day. As a result of this trespass, CAH claims that it has been deprived of the property’s full use. Additionally CAH states that the work has irrevocably damaged its reputation, tying their land to Elon Musk by association and preventing CAH from fulfilling its promise to backers that the land would be protected from “racist billionaires and their dumb vanity projects.” CAH accordingly has sued SpaceX for Trespass Nuisance, Unjust Enrichment, and Tortious Interference to the tune of $15 million. CAH promises to distribute the proceeds among the original backers as an apology for allowing SpaceX to damage the land. This lawsuit, while sensationalized by the nature of the litigants, can serve as an important reminder to anyone engaging in a construction project – check to make sure you have all the permits before beginning work. Lastly, knowing CAH's brand, motion papers could contain some interesting verbiage going forward. Previous Next Emily C. Walpole Emily C. Walpole Of Counsel 332 345 2226 ewalpole@wcmlaw.com Contact

News Bikini Top “Emergency” Averts Liability for Fatal Crash (NY) December 4, 2013 < Back Share to: In a 3-1 decision, the Appellate Division, Second Department recently upheld a trial court’s decision declining to set aside a defense verdict in favor of a driver who caused a fatal accident after a passenger in her vehicle undid the driver’s bikini top thereby exposing her breasts. In Pelletier v. Lahm, Brittany Lahm was driving her vehicle on the New York Thruway when her passenger, Brandon Berman, suddenly pulled the strings on Lahm’s bikini top, thereby causing it to fall. Lahm reacted by taking her hands off the steering wheel for a split second to cover herself. While her hands were off the steering wheel, the car suddenly veered to the right. When she tried to correct this, she lost control and the car struck the center guardrail, flipped over and came to rest upside down in the southbound lanes, killing the plaintiff who was also a passenger in Lahm’s car. After testimony, the court charged the jury on the “emergency doctrine.” Under New York law, the “emergency doctrine” recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. Unexpectedly, the jury came back with a defense verdict in favor of Lahm, finding that her reaction to her bikini top suddenly being undone was reasonable. The plaintiffs moved to set aside the jury’s verdict and the trial court denied the motion. In upholding the decision, the Appellate Division found that the trial court properly charged the jury with the emergency doctrine because there was a reasonable view of the evidence supporting the occurrence of a qualifying emergency that was not of Lahm’s doing, which left it in the hands of the jury to determine whether there was an emergency and if so, whether Lahm’s actions were reasonable and prudent. This case demonstrates the wide latitude with which the emergency doctrine can be used as a defense to negligence. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News “Liar Liar Pants On Fire!” Public Figure Has Higher Burden In Defamation Action (NY). February 26, 2013 < Back Share to: In Farber v. Jefferys, plaintiff published multiple articles in nationally distributed magazines on the controversial debate on whether HIV causes AIDS, and won a journalism award on the issue. Defendant made numerous statements on an Internet site regarding misstatements and misrepresentations in plaintiff’s articles, and used the term “liar” in reference to plaintiff’s work. The court held that plaintiff was a limited public figure because she voluntarily injected herself into the debate. As such, she was subject to the heightened standard of proving defendant acted with actual malice or gross irresponsibility. Defendant provided documentation to support that his statements about plaintiff’s journalism was based on his research, articles signed by plaintiff’s critiques, and various studies plaintiff wrote about. As such, the court concluded that defendant did not act with actual malice or gross irresponsibility, notwithstanding plaintiff's assertion that the defendant was biased against her. In addition, the court found that the word “liar” was not actionable because the broad context of the statement and surrounding circumstances lead to the conclusion that what was being read was “likely to be opinion, not fact.” Accordingly, the First Department, affirmed the trial court’s pre-discovery dismissal of the case. In analyzing defamation claims, one must focus on the allegedly defamed party, statements made and their context to ascertain the opposing party’s burden of proof in establishing their claim. If the appropriate burden cannot be met, a pre-discovery motion to dismiss may be viable. For more information about this case, please contact Cheryl Fuchs at cfuchs@wcmlaw.com Previous Next Contact

News Read The Fine Print: Choice of Law Predetermined and Upheld (NJ) May 22, 2019 < Back Share to: A New Jersey Appellate Court recently confirmed a contracting party’s right to enforce a choice of law provision in a contract. In National Fire v. Cintas, the plaintiff filed a subrogation claim for property damage caused by a faulty sprinkler system in a nursing home. The contract between the nursing home and Cintas included a clause stating that the rights and obligations of the parties would be governed by the laws of Ohio. The contract also included a waiver of subrogation clause. The trial court granted defendant Cinta’s motion for summary judgment due to the waiver clause in the contract, noting that such a waiver was valid and enforceable under Ohio law. On appeal, the appellate court upheld the dismissal, noting that 1) the choice of law clause was valid, as Ohio has a substantial relationship to the transaction, because Cintas was headquartered in Ohio, and 2) Ohio courts have repeatedly held that waiver of subrogation clauses are valid and enforceable. This case reinforces the right of contracting parties to choose which laws will govern any potential disputes and a party’s ability to rely on contract clauses when litigation arises. Thank you to Heather L. Aquino for her contribution to this post. Previous Next Contact

News Court of Appeals Redefines Summary Judgment Landscape (NY) April 6, 2018 < Back Share to: Earlier this week, the Court of Appeals, New York’s highest Court, issued a decision which is certain to change the landscape of personal injury litigation in New York. In Rodriguez v. City of NY, decided on April 3, 2018, four of the seven Justices agreed that a plaintiff can obtain summary judgment against a negligent defendant even if there is evidence that the plaintiff bears comparative fault. (Yes, you read that correctly.) In Rodriguez, plaintiff was at work, standing between a parked car and a tire rack, when a City of NY vehicle rolled into the parked car, causing plaintiff to get "sandwiched," and sustain back and neck injuries. Both parties moved for summary judgment on the issue of liability. Both motions were denied by the trial Court. The trial court denied plaintiff’s motion, in part, because issues of fact existed as plaintiff’s comparative negligence. The plaintiff appealed and the Appellate Division upheld the trial Court’s decision. Thereafter, plaintiff was granted leave to appeal to the Court of Appeals. While the Court did not address the facts of this case specifically[1], they did decide that, contrary to precedent, a plaintiff can obtain summary judgment against a defendant even if there are questions as to plaintiff’s comparative fault. It was found that it was against the intent of New York’s comparative fault statutes to permit a total bar of recovery (or here, summary judgment relief), due to comparative fault. The Court found that where a plaintiff has been awarded summary judgment on liability against a defendant, the liability trial will only ask a jury to determine how much of the total liability is attributed to plaintiff, after they are told that the defendant has already been found liable. The Court based this decision on the supposed legislative intent of the comparative fault statutes in New York and found that it is only to be considered when calculating the percentage of damages attributable to both parties, not in assessing whether the defendant was in fact, negligent. Furthermore, the Court found that it is not a plaintiff’s burden to prove the absence of comparative fault to obtain summary judgment, but instead to prove only that the defendant was negligent or somehow responsible for the damages plaintiff sustained. The Court goes so far as to say that “comparative fault is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action.” Because it is not a defense, issues of fact related to it are insufficient to raise triable issues of fact precluding summary judgment and as such, should not be considered when deciding a motion made under CPLR 3212. As a result of this decision, every case, even where a plaintiff may be 99% liable, is a potential summary judgment win for plaintiffs, including slip and fall on ice cases, sidewalk defect cases, and likely pedestrian knockdown cases. This fact alone will embolden the plaintiff's bar. Now, if we may editorialize, this decision flies in the face of both precedent and of common sense. Summary judgment is designed to confirm that there are no triable issues of fact for jury consideration. Now defendants will be forced to litigate a plaintiff's comparative fault at trial, with the jury already likely knowing the defendant has been found liable. This scenario strikes us as prejudicial to defendants. We also note that, while currently unclear, it is possible that interest may be running (at 9% per annum) from the date SJ is entered up to trial. We'll keep tabs on this issue. If there is a silver lining, the Court of Appeals has redefined what summary judgment means. Now, plaintiffs who are awarded summary judgment on liability have not truly been awarded summary judgment, since they must still litigate liability at trial, with their comparative fault at issue. The silver lining is limited, however, and is certainly a huge win for the plaintiff's bar. The ramifications of Rodriguez will be felt for years to come, and the number of cases where plaintiffs move for SJ will increase immediately. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. [1] The Court remanded the ultimate decision on plaintiff’s motion for summary judgment back down to the Appellate Division and focused this decision only on whether a plaintiff can obtain partial summary judgment even where there may be comparative fault. Previous Next Contact

News “Voluntary Parting” Exclusion Upheld in Stolen Jewelry Case May 4, 2010 < Back Share to: A common legal issue faced in many jewelry losses is whether goods freely provided by the insured jeweler to a third-party -- and then not returned -- constitutes a physical loss covered under the policy. Many courts across the country have held that, absent a specific exclusion, such a loss is fortuitous and covered under a typical property policy. Recently, a California appellate court upheld one of those key exclusions in PNS Jewelry v. Penn-America Ins. Co. PNS is a jewelry wholesaler, and delivered more than $1.5 million in jewelry and watches to a thief posing as an armored car worker. The insurer denied coverage, citing the Voluntary Parting exclusion, which stated there was no coverage for “..voluntary parting with any property by [PNS] or anyone else to whom you have entrusted the property if induced to do so by any fraudulent scheme, trick, device or false pretense.” PNS sued for breach of contract, arguing that “voluntary” means the insured acted with full knowledge of the facts and consequences of its actions. In essence, it argued that if an insured is induced to deliver property by fraud or deceit, that delivery could not be voluntary. The Court rejected PNS’s arguments and granted summary judgment in favor of the insurer, finding the language of the exclusion clear and unambiguous. If you have any questions about this post, please contact mbono@wcmlaw.com http://www.courtinfo.ca.gov/opinions/nonpub/B212348.PDF Previous Next Contact

News Sovereign Immunity and Charter Schools June 21, 2024 < Back Share to: In a case of first impression, Florida’s Fourth District Court of Appeal recently held, in Soto v. Franklin Academy Foundation, Inc. , Case Number 4D2023-2108 (Fla. 4th DCA May 8, 2024), that a private school chartered by the local school board was a state agency entitled to the pre-suit protections afforded by Florida Statute § 768.28(6)(a), Florida’s sovereign immunity statute. In Soto , a charter school student was injured in a playground accident and sued. The student did not provide the school the statutory pre-suit notice required by Florida Statute § 762.28 and the trial court dismissed. On appeal, the student argued that because the school was chartered by the local school board, which in turn was chartered by the local county, and not the state, the school was not a “state agency” and, thus, was not entitled to sovereign immunity under Florida Statute § 768.28(6)(a). The appellate court disagreed, finding that under Florida law “[a]ll charter schools in Florida are public schools and shall be part of the state’s program of [public] education.” Fla. Sat. § 1002.33(1) (2018). The court also found that because schools operated by a local school board are entitled to sovereign immunity under Florida Statute § 768.28(6)(a), there is no reason to treat schools chartered by the same local school board differently. Applying this reasoning to the case at hand, the appellate court affirmed, holding that private schools chartered by a local school board were entitled to sovereign immunity under § 768.28 of the Florida Statutes. The Takeaway. In defending a claim against a private school, claim’s handlers and attorneys alike must be cognizant of the jurisdiction’s sovereign immunity laws and the application of that law to privately operated but publicly chartered schools. Soto v. Franklin Academy Foundation, Inc. .pdf Download PDF • 90KB Previous Next Chip M-P George Chip M-P George Of Counsel +1 786 636 1541 cgeorge@wcmlaw.com Contact