News New Jersey Ruling Makes Construction Subrogation Cases More Difficult for Insurers April 19, 2019 < Back Share to: In Wichot v. Allstate, the New Jersey appellate court recently held that ACE American Insurance was unable to subrogate its claim against a subcontractor plumber for over $1 million in damages. In interpreting a standard construction contract, the court held that ACE’s insured waived its right to assert a claim, even though the contracted work had been completed prior to the loss. ACE insured Equinox Development under a policy covering, in part, “property while in the course of construction.” ACE’s policy with Equinox was effective from September 2012 until September 2013. It also contained a standard subrogation clause. Equinox Development contracted with general contractor Grace Construction to build the “core and shell” of a new Equinox gym. Grace then subcontracted the plumbing work to American Medical Plumbing. In April 2013, after the contracted work had been completed, a water main broke, flooding the club and causing about $8,000 in damage to the “core and shell” and approximately $1.2 million overall. ACE then paid Equinox $1.2 million for the total damages and filed suit against AM Plumbing, alleging that they were at fault for the water break. AM Plumbing filed a motion for summary judgment arguing that ACE’s claims were barred by the terms in the A-201 construction contract to which Equinox and AM Plumbing where parties. The contract required Equinox to obtain builder’s risk insurance and provided for a waiver of subrogation clause which stated that the parties waived their rights with respect to damages “to the extent covered by property insurance applicable to the Work.” Although the damages were almost all unrelated to the “core and shell’ work, the court ultimately held that waiver prevented ACE from suing AM Plumbing because all of the damages were “covered” by “property insurance applicable to the Work.” The court stated that this was the “majority view” in other jurisdictions. Further, the court held that additional terms in the contract meant that the waiver applied whether or not AM Plumbing had an insurable interest in the property. Thus, ACE was unable to recover from AM Plumbing, notwithstanding the fact that the damages occurred after the contracted work had been completed. This decision creates an additional hurdle for insurers in pursuing subrogation claims against New Jersey contractors. However, subrogating insurers would be wise to check to see whether, as is frequently the case, the parties modify the standard contract in some way. Further, the New Jersey Supreme Court has not yet interpreted these provisions, meaning insurers may still be able to distinguish this case on the facts presented. Thanks to Doug Giombarrese for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News The Boy Who Cried Wolf? February 21, 2011 < Back Share to: We're all familiar with the story of the boy who cried wolf. It sometimes seems that talking about mold, the "next" asbestos, in the context of New York is like crying wolf. But, if recent news articles are to be believed, mold may really be about to be a problem in NY -- http://nyti.ms/ePGzbl. Maybe this time, there really is a wolf. For more information, about this post please contact Bob Cosgrove at rcosgrove@wcmlaw.com Previous Next Contact

News Foreign Country Ruled The Appropriate Forum For Damages Sustained in Dubai (NY) October 25, 2013 < Back Share to: In Boyle v. Starwood Hotels & Resorts Worldwide, Inc., New York’s Appellate Division, Second Department affirmed the granting of defendant’s motion to dismiss the action on the basis of forum nonconveniens. The Appellate Division explained that the doctrine of forum nonconveniens allows a court to stay or dismiss an action when, although there may be jurisdiction, it is determined that there is another forum with closer ties to the case. In Boyle, plaintiffs are residents of the United Kingdom and France. The complaint alleges that plaintiffs contracted a disease during separate stays at defendant’s hotel in Dubai. The sole connection to New York in this case was defendant’s principal place of business. The trial court granted defendant's motion, noting that the action had closer ties to the United Kingdom, France or the United Arab Emirates. The Appellate Division conditioned the order on the the defendant accepting service in any new action and waiving any defenses, including statute of limitations, that were not available when suit was initially filed in New York. Both modifications provided that the new action should be commenced within 30 days after defendant provided plaintiff with a signed stipulation. When filing a motion to dismiss based upon forum nonconveniens in New York, make sure that you are comfortable with the jurisdiction you believe is proper for the case because you will be required to agree to the alternate forum’s jurisdiction should your motion be granted. Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News No Way Out - Additional Insured Coverage Owed (NY) March 18, 2013 < Back Share to: As often happens when more than one insurance policy may provide coverage for a claim, the court is called upon to resolve the dispute between insurers. Recently, in 4815 Dev. Corp. v Harleysville Ins. Co. of N.Y., the Appellate Division, Second Department addressed such a claim between two insurers who provided additional insured coverage for the same leased space to the landlord. The underlying claim involved a wrongful death claim wherein the descendent fell through a door and down a flight of stairs at premises leased to a laundramat. By way of background, the plaintiff leased space in a building it owned to Today's Laundromat, Inc. In accordance with the lease, Today’s Laundromat obtained comprehensive general liability insurance from United National Specialty Insurance, naming plaintiff as an additional insured. However, during the course of the original lease with plaintiff, Today’s Laundromat assigned its lease to New Today's Laundromat, Inc. Harleysville Insurance issued a commercial general liability policy to New Today’s, also naming plaintiff as an additional insured. The accident for which plaintiff sought coverage occurred during the terms of both the United and Harleysville policies. When the decedent's estate commenced an action to recover damages for personal injuries, plaintiff requested that United defend and indemnify it. In its notice of claim, plaintiff informed United that the allegedly defective door which caused the decedent's accident had been installed by United's named insured, Today’s Laundromat. Approximately 49 days after receiving plaintiff’s notice of claim, United disclaimed coverage to its putative additional insured on a variety of bases. Plaintiff then commenced a declaratory judgment action. Harleysville agreed to defend and indemnify plaintiff but cross-moved for summary judgment declaring that United was obligated to contribute equally to plaintiff’s defense. Harleysville brought an appeal after the Supreme Court denied it’s cross-motion. The Appellate Division found Harleysville made a prima facie showing that United was obligated to contribute equally to plaintiff’s defense pursuant to the additional insured endorsement in United's general liability policy. Specifically, section 1(b) of the endorsement provided that: "If liability or damage is imposed or sought to be imposed on the additional insured because of: . . . Its acts or omissions and those of the named insured, as to the defense of the additional insured, this insurance will act as coinsurance with any other insurance available to the additional insured, in proportion to the limits of liability of all involved policies." Harleysville provided evidence documenting that a claim asserted against the plaintiff was based upon the acts or omissions of Today's Laudramat, triggering United's duty to contribute to plaintiff’s defense under the additional insured endorsement. Additionally, the Court found that contrary to United's argument, there is no "requirement with respect to a liability policy that an insured have an insurable interest in the covered premises.” The Appellate Court also rejected United's contention that disclaimer was appropriate because plaintiff failed to give notice of the claim "as soon as reasonably practicable," as required by the policy. In countering United’s argument, Harleysville demonstrated that United's 49-day delay in issuing a notice of disclaimer to plaintiff was unreasonable as a matter of law, and, therefore, United was precluded from disclaiming coverage based on the alleged lateness of the notice of claim. Special thanks to Joseph Fusco for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Third Party Action Dismissed For Failing to Prove "Acquired Brain Injury" (NY) November 22, 2012 < Back Share to: In Anton v. West Manor Construction Corp et al., the First Department highlighted the difficulty in proving that a plaintiff suffered a "grave injury" when he is claiming a brain injury. By way of background, New York only permits a third party claim against an employer when its employee has sustained a “grave injury.” One category of “grave injury” is “an acquired injury to the brain.” In Anton, a construction worker was injured when a cinder block was dropped from a height and hit the plaintiff. Plaintiff claimed he was permanently disabled and could no longer work. Relying on Rubeis v. Aqua Club, Inc. 3 N.Y.3d 408 (2004), the Appellate Division agreed that plaintiff’s inability to work was caused by injuries to his neck and shoulder, not by an acquired injury to the brain. In addition, plaintiff’s daily headaches and inability to focus were not sufficient to satisfy the acquired brain injury standard. As a result, all common law negligence claims against plaintiff's employer were dismissed because plaintiff did not sustain a "grave injury" within the meaning of Workers' Compensation Law §11. Thus, when litigating employee/employer "brain injury" cases, a thorough evaluation of the injuries must be conducted to determine whether or not the injury meets the Rubeis standard, i.e. whether the injuries are directly related to the brain. Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Attorney Client Privilege Under Siege in Philadelphia. September 28, 2018 < Back Share to: An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees. The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions). This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly). In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg. The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services. In the regular course of discovery, the defense attorney identified 16 employee fact witnesses. He then interviewed them and took their statements. Privileged, right? "No" said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege. The Waste Services’ attorney was ordered to produce all of the interview notes and statements. Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal. Where the appellate court ultimately comes down remains to be seen. But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent. Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged. For more information about this post, please e-mail Bob at RCOSGROVE@wcmlaw.com Previous Next Contact

News U.S. Consumer Product Safety Commission To Open Office In China January 20, 2011 < Back Share to: The U.S. Consumer Product Safety Commission announced that it will open an office in China, its first office outside the U.S. The move is in response to recent recalls of Chinese products, including food, toys and drywall. The office will be located in the U.S. Embassy in Beijing. The idea is for the U.S. to be more proactive and to prevent problems, rather than relying on recalls. The office will work to help educate Chinese manufacturers about American safety and product standards. Over the years there have been numerous recalls of Chinese products, including lead-tainted toys, counterfeit electrical products, flammable children’s cloths, and drywall. For additional information regarding this post, please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News Landowner Not Vicariously Liable For Negligent Acts Of Independent Contractor February 20, 2008 < Back Share to: In Stagno v. 143-50 Hoover Owners Corp., et al., plaintiff claimed to have sustained injuries in defendants' building when a contractor, hired by defendants, closed a balcony door on her hand. In reversing the trial court, the Appellate Division - Second Department held that one who hires an independent contractor is not liable for the independent contractor's negligent acts because the employer has no right to control the manner in which the work is to be done. Since the plaintiff failed to raise an issue of fact as to whether the defendants exercised any control over the method or manner in which the independent contractor performed its duties, plaintiff's opposition was insufficient to raise a triable issue of fact as to whether defendants supervised the independent contractor for vicarious liability purposes. http://www.nycourts.gov/reporter/3dseries/2008/2008_01329.htm Previous Next Contact

News No Issue With The Ladder, No Problem May 11, 2018 < Back Share to: In Wu v. Yang, the plaintiff fell from an A-frame ladder while working in the defendants’ apartment. The plaintiff testified that he had no prior issues with the ladder and was working well from the ladder when it suddenly moved and he fell. The plaintiff did not know why the ladder shifted. The plaintiff moved for summary judgment on his Labor Law 240 claim against the defendants, the defendants cross-moved to dismiss the compliant. The lower court found that there was no §240 violation, as the plaintiff could not articulate how the ladder had failed. All parties appealed. The Second Department upheld the lower court’s decision as to the plaintiff’s motion but reversed the finding with regard to the defendants and re-instated the plaintiff’s Labor Law 240 claim against them. The Appellate Division confirmed that not every fall from a height is a guaranteed 240 case and that, in order to prevail on a 240 claim, a plaintiff must establish that proper fall protection was not provided. In other words, the plaintiff in the instant-action had to show that a proper ladder was not provided. Nevertheless, the Court held that the question of whether proper protection was provided (whether there was in fact something wrong with the ladder that caused it to wobble) is a question of fact for a jury to decide, even in a case such as this where the plaintiff cannot articulate the reason for the ladder’s failure. As defense counsel, we frequently defend against 240 claims where the plaintiff cannot articulate why the ladder moved and why they were caused to fall. We frequently ask what else could we have given the plaintiff to protect them from this fall short of a plastic bubble to encase them in to prevent injuries. While the Appellate Court’s decision once again protects workers who fall from a height, regardless of their description of the accident, it is not a guarantee win for the plaintiff at trial. A jury in this action would still hear defense counsel’s argument (as opposed to cases where the plaintiff has already been awarded 240 and the matter proceeds to a damages-only trial) that the ladder was in good condition before the fall and was possibly not the reason why plaintiff fell. The question of “what else could have been given to the plaintiff?” will be posed to a jury, affording the defendants a chance on prevailing with a defense verdict. Thanks to Georgia Coats for her contribution to this post. Please contact Tony Pinto for more information.   Previous Next Contact

News SDNY: Expert Claims Analysis Protected Under Work Product Doctrine November 23, 2009 < Back Share to: In Gross Construction Associates v. American Manufacturers Mutual Insurance Company, 07 Civ. 10639, Magistrate Judge Andrew Peck of the United States District Court, Southern District of New York examined the work product doctrine to a claims analysis by a contractor hired by an attorney. Gross Construction involved a multi-million dollar dispute over defects and delays in the construction of the Bronx Hall of Justice. The construction manager was not a party, and was not expected to be called to testify at trial. The owner’s attorney hired the “Claims Analysis Group” of the construction manager to perform a claims analysis, including the potential for litigation, and possible litigation strategy. The Claims Analysis Group only reviewed documents produced in discovery, and did not contact any party to perform its investigation. The court analyzed the work product doctrine, and found that the claims analysis report was protected work product. While litigation had not been commenced at the time the Claims Analysis Group was hired by counsel, litigation was clearly contemplated; the Claims Analysis Group was a non-testifying expert; and, because the Claims Analysis Group relied on documents exchanged in discovery, substantial need could not be demonstrated. Therefore, the work product doctrine was applicable. If you would like more information regarding this post, please email dtavella@wcmlaw.com . Previous Next Contact

News Definition Of 'Appropriate Licensed Professional' For Expert Purposes Narrowed In Federal Medical Malpractice Case (PA) May 5, 2023 < Back Share to: In the recent case of Joseph Geiger v. United States of America, the United States District Court for the Middle District of Pennsylvania, held that only a physician can qualify as “an ‘appropriate licensed professional’ for the purposes of providing expert testimony regarding the applicable standard of care or a statement in support of a certificate of merit against a physician. Joseph Geiger v. United States of America, No. 3:22-CV-01079, 2023 WL 3136405, at *3 (M.D. Pa. Apr. 27, 2023). In Geiger, Geiger filed a civil action against the Federal government, under the Federal Torts claim Act (“FTCA”), alleging that he received negligent medical care, in Pennsylvania, from the United States Department of Veteran Affairs. Under the FTCA, federal courts, sit in federal question jurisdiction but apply “the substantive tort laws of the state in which the alleged tort arose,” and Pennsylvania substantive law requires a certificate of merit to be filed when pursuing a medical malpractice action. The certificate of merit “must attest either that an appropriate licensed professional supplied a written statement that there exists a reasonable probability that the care provided fell outside acceptable professional standards, or that expert testimony of an appropriate licensed professional is unnecessary.” Defendant-United States of America, motioned to strike Geiger’s certificate of merit because it relied upon a written statement by his optometrist, and optometrists are not physicians, i.e., not MDs. The court agreed with the Defendant. The court reasoned that while optometrists are licensed professionals, they are not “appropriate” licensed professionals for purposes of satisfying Pennsylvania’s certificate of merit requirement. The court relied upon a variety of precedents and various Sections of Pennsylvania’s MCare Act, which, in a variety of contexts repeatedly differentiated between MD-holding physicians, and other non-physician medical professionals, such as optometrists and podiatrists. Geiger is a victory for civil defendants, in that it posits a narrow definition of “appropriate licensed professional” which plaintiffs need satisfy to state a claim for medical malpractice. By limiting “appropriate licensed professional” to physicians in this context, the Court has shrunk the pool of licensed professionals that Plaintiffs can rely upon to help them satisfy their certificate of merit requirements, thus making it harder, as a practical matter, for plaintiffs to state claims for medical malpractice. Thanks to Stephen Kerstein for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact