News PA Court Clarifies When Use Of Plaintiff's Behavior Can Be Used In Products Liability Cases September 28, 2010 < Back Share to: In a recent products liability case, the PA Superior Court clarified when a defendant in a products liability case can introduce evidence of the plaintiff’s behavior. In the case of Reott v. Asia Trend et. al., the court explained that there are only three limited circumstances when a defendant is permitted to introduce evidence of a plaintiff’s behavior in a strict liability products liability case. These are voluntary assumption of risk, misuse of the product and highly reckless behavior. This case involves a plaintiff, Duane Reott, who was injured while attempting to use a tree stand manufactured by the defendants. The plaintiff failed to use the device as prescribed by the instruction manual. However, the device also did not work properly. The issue at trial focused mainly on whether the wrongful use of the tree stand by the plaintiff counted as highly reckless behavior. The court was confronted with the issue of whether the defendants had met their burdens of proof. The court confirmed that highly reckless conduct is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. In order to prove reckless conduct, the defendant must show that the plaintiff (1) knew of facts which created a significant risk of physical harm or that plaintiff “deliberately proceed to act, or failed to act, in conscious disregard of that risk,” and (2) that the plaintiff’s conduct was the sole or superseding cause of the injury. In this appeal the court ruled that the defense had not proven that Reott’s injury was the sole or superseding cause of his injury, thus he was entitled to a directed verdict on the issue. Thanks to Remy Lapidus for her contribution to this post. http://www.aopc.org/OpPosting/Superior/out/a25020_10.pdf Previous Next Contact

News NY App. Div. Dismisses Plaintiff's Complaint on Various Grounds May 17, 2010 < Back Share to: In Khedouri v. Equinox, First Department affirmed the dismissal of plaintiff’s complaint because plaintiff failed to serve the complaint within 120 days of filing as prescribed by the CPLR. Moreover the court found that granting the plaintiff an extension of time was not in the interests of justice, as she claimed to have been injured in a fitness center competition, an activity for which she voluntarily assumed the risk. Finally, the court also denied plaintiffs request to serve a supplemental summons and amended complaint, as plaintiff’s amended complaint was served more than 20 days after service of defendant’s answer and without leave of court, which is not allowed under the CPLR. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04110.htm Previous Next Contact

News Bronx Jury's Verdict Underscores the Value of Independent Medical Examinations (NY) October 4, 2018 < Back Share to: In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages. In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan's FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff's motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had "sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff's injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court's instruction, defendant's expert had failed to find any objective evidence of injury to plaintiff's neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities. After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff's evidence as to her pain and suffering was "not compelling," and that a jury could reasonably have found that plaintiff's claims were inconsistent with the objective medical findings of defendant's expert orthopedic surgeon. The court found that plaintiff's counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury's verdict was inconsistent when counsel failed to object to the contents of the jury's verdict sheet during the charge conference. Had it not been for the defense's expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News No Duty to Defend: Insurers Off the Hook in "Ghost Gun" Sales Case September 20, 2024 < Back Share to: In Granite State Ins. Co. v. Primary Arms LLC , insurance company plaintiffs Granite State Insurance Company ("GSIC") and National Union Fire Insurance Company of Pittsburgh, Pa. ("National Union") sought a declaratory judgment that they did not owe a duty to defend or indemnify their insured, Texas-based firearms dealer Primary Arms LLC ("Primary"), in three underlying lawsuits filed in New York. These lawsuits were brought against Primary under the insuring agreements in their commercial general liability policies. Granite State Ins. Co. v. Primary Arms LLC , No. 23 CIV. 7651 (LGS), 2024 WL 4008167, at *1 (S.D.N.Y. Aug. 30, 2024). In the underlying lawsuits, plaintiffs allege that Primary sold and shipped unfinished firearm parts that evaded gun control laws and regulations, and that its sales contributed to an increase in gun violence. The untraceable firearms made from these parts are referred to as “ghost guns.” Applying Texas law, the court found that the underlying lawsuits contained allegations that Primary “took deliberate action to enable the anonymous acquisition of uncontrolled firearms with the predictable outcome of increasing gun violence.” Therefore, Primary’s actions did not constitute an “accident” or “occurrence” triggering coverage under the GSIC and National Union policies. The court noted, “The claim is not that [Primary] forgot to run a background check on certain customers or misplaced its paperwork; rather, the allegations are that [Primary] made a deliberate choice not to implement internal controls.” Accordingly, the court granted the insurance companies' motions for summary judgment, finding that neither owed a duty to defend Primary in the lawsuits involving injuries due to Primary’s allegedly intentional conduct. Granite State Insurance Company v. Primary Arms LLC .pdf Download PDF • 169KB Previous Next Contact

News Failure To Facilitate A Meeting Of The Minds On A Pretrial Agreement Is Perilous February 3, 2023 < Back Share to: In Jones v. Blue Ridge Mfg., LLC, 4D21-1799 (Fla. 4th DCA Dec. 14, 2022), the parties stipulated that the death was the result of decedent’s head’s “direct or indirect contact” with defendant’s vehicle. There was evidence that decedent suffered a basal skull fracture caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. There was also evidence that the basal skull fracture was the result of inertial forces (the fatal injury believed to have been suffered by race car driver Dale Earnhardt) not caused by decedent’s head’s “direct or indirect contact” with defendant’s truck. The defendant sought to withdraw the stipulation pretrial, arguing that the meaning of “direct or indirect contact” was not clear. The court declined to do so but did allow the defendant to argue its interpretation of the stipulation and put on evidence supporting that interpretation. On appeal, the court discussed the purpose of, legal analysis applied to, pretrial stipulations. The court recognized that stipulations were valuable to a “well-run and fair trial,” warned that “the failure to facilitate a meeting of the minds on a pretrial agreement is perilous,” and cautioned that “stipulations be clear, positive, definitive, and unambiguous.” Because it could “fairly be read to mean that the parties intended the ‘direct or indirect’ contact issues to be determined by the jury,” the appellate court found the stipulation ambiguous. Applying this finding, the Court held that the trial court did not abuse its discretion in allowing the jury to determine the meaning of the stipulation or in allowing extrinsic evidence regarding the meaning of the stipulation. The takeaway: Be aware of the nuances presented by the evidence, and do not let your familiarity with the evidence result in a less than clear stipulation. Thanks to Charles "Chip" George for this article. Please contact Chip with any questions. Previous Next Contact

News Intentional Assault Does Not Trigger Duty to Defend (PA) April 10, 2019 < Back Share to: The Superior Court of Pennsylvania recently affirmed a trial court’s entry of compulsory nonsuit in favor of the carrier surrounding a coverage issue pertaining to both a Homeowner’s insurance policy and an Umbrella insurance policy. In Kiely on Behalf of Feinstein v Philadelphia Contributionship Insurance Company, the Court determined that the intentional tort allegations set forth in the underlying complaint did not constitute an occurrence triggering coverage by the insurance carrier. The underlying lawsuit arose when the plaintiff, Kiely, negotiated an oral employment contract for home aid services on behalf of Christine Feinstein with Nydia Parkin. After Parkin began her employment, Feinstein allegedly attacked her. Thereafter, Kiely terminated Parkin’s employment. As a result of the attack, Parkin filed a lawsuit alleging the following claims: (1) assault and battery; (2) intentional infliction of emotional distress; (3) breach of contract; (4) false imprisonment; and (5) punitive damages. At the time of the attack, Feinstein maintained two insurance policies with Philadelphia Contributionship Insurance Company (“PCIC”) which included a Homeowners policy and an Umbrella policy. Under the Homeowner’s policy, coverage was available for personal liability resulting from bodily injury caused by an “occurrence.” The “occurrence” language was defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy also included limitations such as excluding coverage for an expected or intended injury. At the same time, the Umbrella policy provided extended coverage for liability arising from bodily injury as well as for liability arising from certain personal injuries. The Umbrella policy also included limitations such as excluding coverage for an expected or intended injury as well as personal injuries “sustained by any person as a result of an offense directly or indirectly related to the employment of this person by the insured.” As such, both policies provided coverage in the event a suit was brought against the insured in which the policies applied. In respect to the current lawsuit, PCIC declined to coverage to Feinstein under both policies. In response, Kiely commenced this litigation seeking declaratory judgment and further asserting breach of contract and bad faith claims. PCIC asserted that the intentional torts alleged in the underlying lawsuit were not “occurrences” as defined under the policies. In contrast, Kiely introduced evidence that Feinstein lacked the mental capacity to intentionally assault Parkin in the underlying matter. The trial court entered a nonsuit in favor of PCIC after finding that Kiely failed to introduce evidence of an “accident” which was required in order to trigger coverage for an “occurrence” under the policy. Upon review of the Superior Court, the trial court’s entry of a compulsory nonsuit was approved. The Court held that, given the allegations set forth in her complaint, Feinstein’s assault on Parkin was an intentional tort rather than an accident which would not trigger any duty to defend or indemnify under the policies. Furthermore, the Court noted that it was improper for the trial court to allow Kiely to attempt to introduce evidence of Feinstein’s lack of mental capacity for the purposes of committing intentional torts. Rather, when insurance coverage issues are concerned within a declaratory judgment action, the allegations in the underlying lawsuit should control the analysis without the entrance of extrinsic evidence. As the underlying lawsuit did not aver that Feinstein lacked the mental capacity for intentional conduct, such evidence cannot be introduced into the record or considered by the trial court. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News The Customer is Always Right (NY) February 6, 2020 < Back Share to: Retailers should be weary of holiday shoppers this season, particularly in light of the Second Department’s recent decision siding with a customer who tripped and fell on a low table in a Hollister Co. store. Defendant moved for summary judgment on the basis that the placement of the table was open and obvious, and further that plaintiff walked in an area not meant for ingress/egress. In support of its motion, defendant submitted plaintiff’s deposition transcript, where plaintiff testified that he did not see the table before falling because the store was dark, and the low table was obscured by a taller, larger table placed near it. The Second Department overruled the lower court’s dismissal, finding that defendant failed to establish, prima facie, that the condition created by the subject table was open and obvious in light of the surrounding circumstances despite defendants submitting evidence as to the lighting conditions and presence of other customers in that area. The Court also noted that the testimony of defendant’s employees further demonstrated that the area traversed by plaintiff was an "egress," which made a possible accident more foreseeable. Thanks to Theresa Dinh for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Biomechanical Engineer’s Testimony Precluded at Trial under Frye Hearing Standard August 12, 2016 < Back Share to: In accordance with the Frye hearing standard, Courts will go a long way in admitting expert testimony from a well-recognized scientific principle or discovery. However, the testimony must be sufficiently established to have gained general acceptance in the particular field in which it belongs. In Singh v. Siddique, plaintiff was a driver in a car hit in the rear by another car inside Kennedy Airport. As a result of the collision, plaintiff sustained various injuries. On the issue of damages, defendant sought to introduce the expert testimony of Dr. Kevin Tossi, a biomechanical engineer, to opine that the forces involved in the accident could not have caused plaintiff’s injuries. In support of this opinion, Dr. Tossi relied upon the average weight and age of the occupants for purposes of determining the weight of each vehicle/measuring velocity. Plaintiff moved in limine to preclude Dr. Tossi’s testimony on the grounds the opinion was unreliable since the methods employed by Dr. Tossi did not adhere to accepted standards of reliability within the field of biomechanical engineering. The Supreme Court, Kings County granted plaintiff’s motion finding Dr. Toosi’s methods did not adhere to the accepted standards of reliability since he did not directly measure the mass of the occupants in the vehicles. Further, the Supreme Court found Dr. Toosi was not sufficiently competent in his claimed field of expertise since he did not present one peer-reviewed item of scientific literature to validate the methods he used. The take-away from this case is prior to presenting an expert testimony at trial, a lawyer should ensure the expert is well versed in the field he is called to testify and the methods he employs are the accepted methods in his industry. Otherwise, at the time of trial, this expert’s testimony may be precluded based on the Frye hearing standards. Thanks to Caroline Freilich for her contribution to this post.             Previous Next Contact

News Product Recalls on the Rise? May 23, 2011 < Back Share to: We have spilled much ink over the past six months commenting on the potential implications of the FSMA. However, it appears that not only food recalls are on the rise. According to recent reports, new regulations (like the FSMA) and ease of access to product complaints, are driving the increase. Brand protection recalls are also trending upwards. Food for thought for Underwriters when assessing their appetite for risk in product recall coverage. For more information about this post, or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Failure to Call, as Trial Witness, Attorney Present at EUO results in award to Insured-Plaintiff (NY) August 23, 2017 < Back Share to: In Pierre J. Renelique MD, P.C. v Travelers Ins. Co., Kings County Civil Court recently examined whether a defendant-insurer owed first party benefits to a claimant, after the insurer disclaimed coverage due to a claimant's failure to appear for an EUO. The Court found that here, the defendant-insurer failed to prove that plaintiff’s assignor failed to attend the scheduled Examination Under Oath EUO. At a bench trial in Kings County, the insurer-defendant contended that the assignor of the plaintiff, failed to attend any of the several scheduled Examinations Under Oath impeding their ability to investigate the matter. In order to establish this defense, the defendant must have shown that not only were the EUO requests timely made to the assignor, but that the assignor failed to appear. Each of these elements must be met by someone with personal knowledge. Defendant produced as a witness, an attorney who oversaw EUO scheduling and the EUO process for the firm representing the defendant in this matter. The attorney testified as to the office procedure regarding the scheduling of EUO’s and the procedure followed when an assignor failed to appear for an EUO. The attorney testified that she mailed out each EUO request to the assignor according to office procedure and she based the requests upon attorney affirmations that the assignor failed to appear for the EUO. The Court credited her testimony regarding the preparation and mailing of the letters scheduling the EUO but found that the witness had no personal knowledge of the assignor’s actual failure to appear. Despite the fact that she testified that she reviewed affirmations from attorneys at the EUO who swore that assignor failed to appear, the Court found this failed to meet the threshold for personal knowledge. Accordingly, Judgment was awarded in favor of the plaintiff. The Court’s ruling demonstrates importance of laying a complete and proper foundation for establishing all the elements of the defense. Had the defense called someone present at the EUO’s, or perhaps, produced a certified transcript of the EUO, documenting the assignor's failure to appear, the insurer may have prevailed. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Policy Exclusion Upheld May 20, 2008 < Back Share to: In Aspinwall Building Corp v. Sirius America Ins. Co., a New York state court judge has upheld an exclusion that requires an insured to use a written contract whenever hiring a subcontractor and to require in that contract that the subcontractor indemnify the contractor. The facts of the case are that an owner hired Aspinwall for some construction work and Aspinwal subcontracted the job to Madonia Development. An employee of Madonia was injured and he sued Aspinwall. Aspinwall asked its carrier (Sirius) for defense and indemnity. Sirius denied coverage and won summary judgment and a ruling that it had no obligation to defend or indemnify its insured. The court upheld policy wording that excluded coverage if the insured subcontracted work to another contractor without obtaining a written contract requiring that the insured be indemnified and held harmless in the event of a loss, e.g., to a subcontractor's employee. Previous Next Contact

News Visions in the Night: A PA Settlement Wipes Out Years of Precedent. August 21, 2009 < Back Share to: In the case of Klein v. Amtrak , two trespassing teenagers climbed atop a train car parked in a lot owned by Antrak. They suffered serious burns when they got too close to a 12,000-volt wire. The jury found for the plaintiffs (finding them 0% liable) and awarded $24,000,000 in compensatory and punitive damages. During the progression of the case, the court made new law on the "attractive nuisance" doctrine, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents. The case has now been settled during the pendency of an appeal. As a condition of the settlement, and with the approval of the district court, all prior decisions were vacated. But for the money, it's as if the case never happened. http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=TopStories&id=1202433146538&slreturn=1&hbxlogin=1&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20Most%20Viewed%20Alert&cn=TLI_MOST_VIEWED_ALERT20090821&kw=After%20Settlement%2C%20Opinions%20Erased%20in%20Amtrak%20Case Previous Next Contact