News Insurer Wins On Anti-Stacking Provision In UIM Case (PA) June 3, 2022 < Back Share to: In a recent case from the Eastern District of PA, Meyers v. Travelers Ins. Co. the court granted the defendant insurance company’s motion for summary judgment consistent with the Motor Vehicle Financial Responsibility Law and focused on a secondary policy’s waiver of inter-policy stacking. The plaintiff in the case was in a car accident, in which she received the policy limit of the at fault driver. However, this did not cover the extent of her injuries. She then recovered from her own primary policy, and attempted to “stack” UIM polices. The policy at issue in the case was the plaintiff’s mother’s policy in which she waived inter-policy stacking. The inter-policy stacking waiver provision is made by the holder in exchange for reduced insurance payments. The plaintiff attempted to argue that waiver against inter-policy stacking had significant public policy concerns and prevented her from being made whole. However, the court ruled in favor of the defendant, stating The Supreme Court of Pennsylvania “consistently ha[s] been reluctant to invalidate a contractual provision due to public policy concerns.” Williams v. GEICO Gov’t Emps. Ins. Co., 32 A.3d 1195, 1200 (Pa. 2011). As a result, amongst other arguments the court ruled in favor of the defendant insurance company’s motion for summary judgment. Thus, this case continues the PA insurance law case where courts have upheld waiver of inter policy stacking provisions as a valid. Thanks to Kevin Riley for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News "Don't Deal with Lawyers" October 16, 2007 < Back Share to: Lawyer Elana Glatt was married recently in Manhattan and has now sued her florist for $400,000 because he allegedly substituted pastel pink and green hydrangeas for dark rust and green. These substituted flowers apparently clashed with the linens, favor boxes, and the wedding cake. The cost of the flowers was $27,000. The florist responded to the suit by saying his father told him, "Don't deal with lawyers. Maybe he was right, God bless his soul." And on a personal note, as the father of three daughters, we will be happy with any color and any bloom available, and $27,000 is out of the question. http://www.nytimes.com/2007/10/16/nyregion/16flowers.html?_r=1&ref=todayspaper&oref=slogin Previous Next Contact

News PA Supreme Court Confirms Third-Party Contractor Has Duty to Warn of Obvious Dangers August 4, 2023 < Back Share to: In a May 2023 opinion, the Supreme Court of Pennsylvania potentially expanded contractor liability to third parties injured by construction defects. See Brown v. City of Oil City, 294 A.3d 413 (Pa. 2023). In 2011, due to weathering and aging, the condition of Oil City Library’s concreate entrance stairs significantly declined since their construction in 1904. Id at 419. As a result, Oil City (“City”) contracted with Harlod Best and Struxures, LLC (collectively “contractors”) to develop plans to reconstruct the stairs and oversee the implementation of those plans. Id. The actual reconstruction work of removing and replacing the stairs was performed by subcontractor Fred Burns Inc., pursuant to a contract with the City and Contractors. Id. Shortly after the stairs were installed, the City began receiving reports about imperfections in the concrete surface, which also began to degrade; these imperfections prompted the City to inform Struxures that it considered the stairs to be “dangerous and defective.” Id. Over the years, the condition of the stairs continued to worsen, neither the City nor Contractors made repairs. Id. In November 2015, David and Kathryn Brown was exiting the library; Kathryn tripped and fell on one of the deteriorated sections, and struck her head, resulting in a fatal head injury. David brought a lawsuit against the City, Contractors, and Fred Burn’s Inc. Id. With respect to the Contractors and Fred Burns, Brown argued that their work on the steps created a dangerous condition and an unreasonable risk of harm. Id. At the trial level, the Contractors filed a successful motion for summary judgement based on the argument that § 385 of the Restatement (second) of Torts provides no duty to out of possession contractors to third parties harmed by conditions of their work done on behalf of another. Id. at 420. However, on appeal, the Supreme Court of Pennsylvania found that nothing in the Restatement that would exempt an out-of-possession contractor from liability when it makes a repair to a chattel that it reasonably should foresee would render it dangerous to a third party who uses it, even when its dangerous condition is obvious. Id at 430. Further, the Court found that a contractor has a duty to inform a third-party user of a dangerous condition when the contractor “has no reason to believe the third party will realize the dangerous condition which the contractor created.” Id. The Court found that a contractor who has created a dangerous condition through work performed for a possessor of land may be liable to all persons injured by the dangerous condition, even if that condition is obvious or apparent in nature. Id at 435. The Court reversed the order for Summary Judgment and remanded the case to the trial court. Id. While this case does not provide a holding that these contractors should be held liable, the Court did hold that these contractors, and those in similar positions could be held liable in these kinds of situations. It is early to tell if this ruling will spark changes in plaintiff’s decisions on what parties to name in a lawsuit. Thanks to Hannah Garber for her contribution to this article. Should you have any question, contact Matthew Care. Previous Next Contact

News Trying to Anticipate a Plaintiff’s Opposition to Your Summary Judgment Motion September 9, 2016 < Back Share to: At the summary judgment stage of motor vehicle cases, defendants bear the burden of establishing that he or she was not at fault in the happening of the accident. This can often prove quite difficult since the plaintiff need only raise a single factual issue in opposition to defeat the summary judgment motion. In Hurst v. Belomme, plaintiff was attempting to make a left turn from the southbound lane of travel when it was struck by the defendant’s vehicle, which was traveling in the northbound lane. In moving for summary judgment, defendant argued that he was not negligent and that the plaintiff’s negligence was the sole proximate cause of the accident. The Court denied the motion reasoning that the plaintiff was able to raise triable issues of fact as to whether the defendant kept a proper lookout and exercised reasonable care to avoid a collision with the plaintiff’s car that was already in the intersection. The Court also noted that there was an issue of fact as to whether the defendant violated the Vehicle and Traffic Law in failing to display lighted headlights at the time of the accident. Defense counsel should be aware that a plaintiff can defeat a summary judgment motion by raising a single factual issue that needs to be decided by a jury. Factual issues can be as simple as whether a defendant “exercised reasonable care.” In moving for summary judgment in a motor vehicle case, defendants should always consider how a plaintiff may try and raise an issue of fact. More often than not, it is impossible to have an “airtight” summary judgment argument, but the closer a defendant can get, the better the chances that they will get out of the case. Thanks to Jeremy Seeman for his contribution to this post.       Previous Next Contact

News Unambiguous Limitations In Agency Agreement Enforced By NJ Appellate Division. December 22, 2009 < Back Share to: Traverso v. Guthaim, et al, was an insurance coverage case involving a dispute between, Charles Heidt , Inc, an insurance agency, and Encompass Insurance Company. Pursuant to the terms of an Agency Agreement , Encompass authorized Heidt to bind certain kinds of insurance contracts issued by Encompass, but subject to various limitations and underwriting quidelines. The trial court granted Encompass' Motion for a directed verdict finding that Heidt's authority to bind coverage was clearly and unambiguously limited by the Agency Agreement and the underwriting guidelines issued by Encompass, and that Heidt exceeded its authority when it attempted to add a three-family house to the insured's existing homeowner's policy. The Appellate Division affirmed . http://www.judiciary.state.nj.us/opinions/a1562-07.pdf Previous Next Contact

News New Jersey Tolerates Mulligans December 4, 2013 < Back Share to: Here, in America, among friends, mulligans are part of the game. In fact, President Clinton refused to count "do-overs" when calculating his score. In Scotland, by contrast, a mulligan off the tee, even among friends, is known as "Hitting Three." In Schick v. Ferlito, the New Jersey Supreme Court ruled that taking a mulligan when another golfer was in the "line of fire" (and failing to yell fore) constituted "reckless" conduct, and thus liability attached. In other words, in the context of recreational sports, to constitute a tort, conduct must exceed the level of ordinary negligence. A recent New Jersey decision, Corino v. Duffy, et. al., seemingly endorsed the free grant of mulligans among playing partners. Corino suffered a serious eye injury after being struck by a mulligan sliced off the tee box adjoining the fairway on which Corino was playing. According to Corino, he carefully watched the threesome on the adjoining tee hit their drives. Unaware that Duffy's playing partners allowed Duffy to take a mulligan, Corino took dead aim on his iron shot to the green, only to be struck by Duffy's mulligan. In light of Schick, Duffy sued the threesome claiming that all three engaged in reckless conduct by allowing a mulligan in the first instance, and then failing to yell fore as Duffy's shot sliced toward Corino. As the matter unfolded, Duffy's playing partners turned against him, claiming that Duffy struck the mulligan that injured plaintiff, and that they had no duty to yell fore. The trial court agreed. Reading the Rules of Golf strictly, the court ruled that only the "player" who strikes the errant shot has the duty to yell fore. Beyond that, the court suggested that only a jury could make a determination of whether Duffy's failure to yell fore constituted reckless conduct. Presumably, the court felt that, unlike Schick, Corino was not directly in the "line of fire," and thus presented a much closer question of fact. While it's true that the Rules of Golf impose upon the player the duty to yell fore when an errant shot is struck, the rules also mandate that the ball must be played as it lies. If Duffy had followed the rules, Corino would have played on without injury. And that is the irony of New Jersey's golf jurisprudence.   Previous Next Contact

News Gym Member Tries to Race Past Waiver (PA) February 2, 2018 < Back Share to: Recently, in Vinson v. Fitness International LLC., a Pennsylvania court evaluated whether release and waiver language found in a membership agreement shielded a fitness center from liability when a member slipped and fell at the fitness center. Plaintiff fell over a wet and worn floor mat at was injured. Prior to joining, plaintiff signed a membership agreement that stated that a member acknowledges that they gave up any claim or demand due to injury, whether by active or passive negligence on the part of the fitness center. The notice introducing the release was in bold and capital print. Defendant sought summary judgment arguing: (1) Plaintiff could not demonstrate that Defendants created or had notice of the condition; (2) Plaintiff identified no expert and expert testimony was required for Plaintiff to meet her burden; and (3) upon signing the membership agreement and joining the fitness center, Plaintiff executed a valid waiver of all future claims of negligence. In response to this argument, Plaintiff alleged that the waiver was void as against public policy. The court turned to prior decisions addressing the validity of a waiver clauses, namely Evans v. Fitness & Sports Clubs, LLC. In that case, the court determined that a waiver of liability only violates public policy if it involves a matter of interest to the public or the state, including matters involving an employer-employee relationship, public service, public utilities, common carriers, and hospitals. In the Evan case, the court determined that the agreement at issue in that case related solely to the private affairs of those parties and did not affect a matter of interest to the public or the state, and therefore did not contravene public policy. After reviewing the law and applying the facts at hand, the Vinson court decided the waiver clause was identical to clauses that the court previously ruled on, and found the waiver in this case to be valid and enforceable. The court granted summary judgment based solely upon Defendant’s claim that Plaintiff executed a valid waiver of all future claims of negligence when she signed the membership agreement and joined the club. Thanks to Chelsea Rendelman for her contribution to this post and please write to Michael Bono with any questions. Previous Next Contact

News Handicap Ramp is not “Special Use” of the Curb December 2, 2016 < Back Share to: Although a landowner is responsible for maintaining sidewalks that abut its property, it is not responsible for curbs or ramps unless there is a defect on the curb/ramp that was created by the landowner or due to the landowner’s special use. In Lebron v. City of New York, the plaintiff fell on the curb cut and handicapped ramp area outside Bronx Lebanon Hospital. The First Department concluded that Bronx Lebanon did not derive a special benefit from the curb cut and handicapped ramp area where plaintiff fell because the area was accessible and used by the general public, and there was no evidence that the curb cut and ramp were installed by Bronx Lebanon or its predecessor. The duty to maintain an area of special use is not dependent on a finding that the landowner actually installed or repaired the area, only that it derived the special benefit. This decision shows the physical limitations of premises liability and can be beneficial in arguing summary judgment motions in cases where an accident occurs on a defect near, but not on, a property owner’s abutting sidewalk. Thanks to Lauren Branchini for her contribution to this post. Previous Next Contact

News Scheindlin Affirms Onerous E-Discovery Standards Applicable to Federal Litigation. February 3, 2010 < Back Share to: In Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422 (S.D.N.Y. 2004), the Southern District of New York set certain standards for e-discovery. These standards have become the standards for federal litigation across the U.S. On January 15, 2010, the Southern District of New York revisited Zublake, in Pension Committee of the University of Montreal Pension Plan v. Banc of America Securities, LLC, No. 05 Civ. 9016 (SAS), 2010 WL 184312 (S.D.N.Y. Jan. 15, 2010). In Pension Committee, the Court reemphasized the standards previously set, and cautioned litigants to view them as "guidance" that should not be ignored. The consequences of ignoring the "guidance", and failure to implement certain standards range from monetary sanctions for negligent failure or case dismissal for willful/bad faith failures. In between negligent and willful/bad faith, is of course, gross negligence for failing to implement certain discovery standards. The Court provided several examples of discovery "failures" that constitute gross negligence, namely: 1. Failure to issue a written litigation hold; 2. Failure to identify the "key players" and ensure their electronic and paper records are preserved; 3. Failure to cease deletion of e-mail or preservation of records of former employees in a party's control; and 4. Failure to preserve backup tapes of "key players" or other employees if that is the sole source of that employees' records. The appropriate consequences for grossly negligent failures range from mandatory to permissive adverse inference jury charges. In providing some specific examples of gross negligence and the consequential sanctions, the Pension Committee court warns those that attempt to permit employees to engage in self-collection/preservation (without attorney guidance), or to limit the number of employees involved. According to the decision, the only way to ensure compliance with the Pension Committee standards is for retained counsel to meet with "key players" early on to discuss preservation, identify other employees who may have necessary records (however incidental they may seem), and issue/implement a litigation hold to those individuals. If you have any questions about this article or ESI, please contact Bob Cosgrove. Special thanks to Cheryl Fuchs for her contributions to this post. http://ralphlosey.files.wordpress.com/2010/01/05cv9016-january-15-2010-amended-opinion.pdf Previous Next Contact

News Insurance Disputes Being Filed More Often in Federal Courts November 15, 2018 < Back Share to: Lex Machina, a LexisNexis company, announced the release of its first annual Insurance Litigation Report, which encompasses data on more than ninety-three thousand insurance cases pending in federal court since 2009. The Insurance Litigation Report showcases data and tends involving disputes between an insurer and a policyholder, a beneficiary, or another insurer asserting the rights of a policy holder. The report includes analytics from both the broad insurance data set as well as five common insurance types: Automobile, Homeowners, Life, Uninsured/Underinsured, and Business Liability. The report shows that there has been a major increase in the numbers of filed federal insurance cases in the last several years. The report also confirmed that federal courts are far more likely to rule in favor of insurers than claimants. The two areas that had the biggest jump were automobile claims and homeowner claims. Automobile claims rose by thirty nine percent, uninsured/underinsured motorist claims rose by fifty percent, and homeowner’s claims rose by eighty percent. While claims are going up, insurers tend to be satisfied due to the insurer friendly outcomes in federal courts. For instance, insurers were victorious in eighty-five percent of duty to indemnify cases and in eighty percent of duty to defend cases. However, if cases went to trial, claimant prevailed more than fifty five percent of the time. We suspect the federal courts offer "incentives" to both plaintiffs and defendants, since plaintiff's appreciate the expedited nature of federal courts, whereas, insurer-defendants enjoy the "friendly confines" of stricter federal courts and statically more favorable outcomes. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Pennsylvania Superior Court Addresses Condition Precedent For An Insurer’s Duty To Indemnify (PA) August 8, 2019 < Back Share to: In Nationwide v. Arnold, the Pennsylvania Superior Court recently addressed a policy’s business pursuits exclusion, as well as the conditions under which an insurer may be required to indemnify its insured. By way of background, Nationwide insured August Arnold under a personal umbrella policy. Nationwide commenced a declaratory judgment action seeking a determination that it was not obligated to defend and indemnify Arnold in a lawsuit filed by CMC against, among others, Arnold. CMC commenced its action against Arnold following the unsuccessful prosecution of a qui tam action (i.e., a whistleblower action brought under the False Claims Act) brought on behalf of the United States by Arnold against, inter alia, CMC. Nationwide argued that its policy’s business pursuits exclusion barred coverage to Arnold for the CMC lawsuit. The trial court ultimately concluded that Nationwide had a duty to defend and indemnify Arnold, as the business pursuits exclusion was not applicable. Nationwide appealed. On appeal, the Superior Court first affirmed that the business pursuits exclusion would not act as a bar to coverage. In reaching this determination, the court reasoned that an activity would fall under a business pursuits exclusion if it had “1) continuity, and 2) a profit motive”. Further, a profit motive may be shown “by such activity as a means of livelihood, a means of earning a living, procuring subsistence or profit, commercial transactions or engagements”. Looking to the instant facts, the Superior Court concluded all of the conduct for which CMC complained were actions taken by Arnold outside of his job and, therefore Nationwide’s business pursuits exclusion would not bar coverage on this basis. However, the Superior Court concluded that the trial court erred in ordering that Nationwide had a duty to indemnify Arnold. The Superior Court concluded that Nationwide could only be required to indemnify Arnold once it was determined that Arnold had been found liable for a covered claim. Thus, as this condition had not been met, Nationwide could not yet be required to indemnify Arnold. Accordingly, this case offers clarification on a policy’s business pursuits exclusion, as well as reconfirms that there cannot be a finding regarding an insurer’s duty to indemnify, until there has been a determination that the insured is liable for a covered claim. Please email Colleen E. Hayes with any questions. Previous Next Contact

News To Avoid Further Litigation On “Settled” Matters, It Is Essential That A Settlement Agreement Does Not Leave Loose Ends January 14, 2022 < Back Share to: Settlement agreements typically signify the end of a legal dispute. However, to avoid a headache and potential for further litigation on “settled” matters, it is essential that the settlement agreement does not leave any loose ends. In Cincinnati Insurance Company v. Acadia Insurance Company, 2021 WL 6071718 (4th Dep’t 2021), a woman fell on property owned by 60 LBC, insured by Plaintiff Cincinnati Insurance. 60 LBC hired a contractor to clear snow and ice from the area where the woman fell. Pursuant to the snowplow contract, the contractor was required to defend and indemnify 60 LBC for any injuries and to list 60 LBC as an additional insured. As such, the contractor procured coverage from Defendant Acadia Insurance. Of course, the woman sued 60 LBC for negligence, and 60 LBC consequently requested defense and indemnity from Acadia Insurance on the basis that it was an additional insured on the contractor’s policy. However, Acadia Insurance disclaimed coverage to 60 LBC on the ground that it was not an additional insured. Subsequently, in the litigation that ensued, 60 LBC was defended by Cincinnati Insurance. During the litigation, Cincinnati Insurance brought a third-party action against the contractor, asserting a breach of contract based on contractor’s failure to defend or indemnify 60 LBC and obtain coverage for 60 LBC as an additional insured. Eventually, the underlying personal injury action was settled in an agreement whereby the woman received $350,000 from the contractor (paid by Acadia) and $50,000 from 60 LBC (paid by Cincinnati). After the settlement, Cincinnati commenced an action against Acadia for breach of contract, alleging Acadia breached the contractor’s insurance policy by disclaiming coverage to 60 LBC as an additional insured. Acadia moved to dismiss the complaint, contending that 60 LBC’s coverage claim against Acadia was encompassed in the settlement and was barred by res judicata. Upon review, the Appellate Division, Fourth Department held that that 60 LBC’s coverage claim against Acadia was not barred by res judicata because it was not encompassed in the settlement. The settlement made no mention of any claims directly against Acadia Insurance by 60 LBC or anyone else, nor did the stipulation of discontinuance. Essentially, Cincinnati Insurance’s cause of action against Acadia Insurance was considered to be separate and distinct from the disputes discussed in the settlement because Acadia Insurance was never sued for wrongly disclaiming coverage to 60 LBC. Therefore, since the settlement was inapplicable, the Fourth Department permitted Cincinnati Insurance—having paid $50,000 on behalf of 60 LBC—to proceed against Acadia Insurance on the coverage claim as a subrogee of 60 LBC. This alarming overlook by the party(ies) finalizing settlement left an insurer subject to further coverage litigation and significant exposure. It is a painful lesson to learn, given the ability of the party(ies) to initially conclude the matter and mitigate loss when the underlying suit was being settled. Thanks to Drew Fryhoff for his contribution to this post. Should you wish to discuss, please contact Thomas Bracken. Previous Next Contact