News You're Fired! Court Weighs Admissibility Of Termination Letter (NJ) April 30, 2021 < Back Share to: In Hassan v. Williams and ABF Freight, Inc., the plaintiff truck driver was injured when his tractor trailer was rear-ended by the tractor driven by defendant Roland Williams. Plaintiff brought suit alleging negligence and negligence per se for his injuries. Defendants argued that plaintiff merged onto the highway from the entrance at a slow speed cutting in front of defendant. Following trial, the jury issued a verdict finding plaintiff 51% at fault, and the court issued a judgment of no cause. Plaintiff appealed. On appeal, plaintiff asserted that the trial court committed various errors requiring a new trial. In part, plaintiff contends that the trial court erred in barring the admission of evidence pertaining to ABF Freight’s termination of the defendant driver following the accident and the post-accident investigation which preceded his termination on the basis it was evidence of a subsequent remedial measure. Under New Jersey Rules of Evidence Rule 407, “Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues.” With Rule 407 in mind, the Appellate Division found that while the portion of the letter terminating Williams was inadmissible as a remedial measure, the remainder of the letter which described the post-accident investigation was admissible. The Appellate Division noted that the termination and investigation are distinguishable, as the investigation is conducted to investigate the accident’s cause and is not a remedial measure by itself. In other words, the investigation is conducted, in part, to determine what remedial measures, if any, are required. On that basis, the Appellate Division determined that the letter was admissible so long as the portion describing the defendant’s termination was redacted. The Appellate Division also found that this evidence was relevant as it was likely to aid the jury in assessing what safety protocols were in place and broken by the defendant driver. Ultimately, the Appellate Division granted a new trial due to the trial court’s ruling on the letter and other related evidence. Given that plaintiff was initially found 51% at fault, the admission of that evidence could have led the jury to come to a different conclusion. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Time Is Not On Your Side! Policyholder’s Claim Dismissed As A Result Of “wear and tear” Damages Under Homeowner’s Insurance Policy (PA) December 17, 2021 < Back Share to: Recently, the Western District of PA, in Blanton v. State Farm Fire & Cas. Co., dismissed a claim of an insured homeowner who failed to claim the wear and tear damage to her home fell within the policy’s provisions. In Blanton, the policyholder suffered water damage to her home, alleging the damage was a result of water being trapped behind stucco. The water, over time, was trapped like a bubble, and the build up caused the damage to the home when released. While the policy specifically covered sudden and accidental damage from weather conditions, the insurer averred it did not cover damages over time, such as wear and tear, and deterioration. These additional damages were argued to be “resulting damages” and covered under the policy. Ultimately, State Farm moved to dismiss the complaint based on the fact that the policy did not cover “continuous exposure of water from the downspout” and the Court agreed with this analysis. Judicial review of this policy’s insuring agreement and exclusions provided no ambiguities, and the Court properly dismissed the policyholder’s vague, unsubstantiated claims of a covered loss. Thanks to Kevin Riley for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News WCM Welcomes A New Class Of Summer Associates May 30, 2023 < Back Share to: WCM's Summer Associate program welcomes a new crop of law students for the Summer of 2023. New Jersey Jordan Davis is a 2L at Widener University Delaware Law School. Jordan is a graduate of St. Joseph’s University with a degree in political science. Prior to joining WCM, Jordan was a paralegal for a Philadelphia personal injury law firm. Susan Derasmo is a 3L at Rutgers Law School and a member of Rutgers’ Computer and Technology Law Journal. Susan is a graduate of Elon University with a degree in policy studies and strategic communications and earned a masters in higher and postsecondary education from Teachers College, Columbia University. Prior to joining WCM, Susan interned as a judicial clerk in Monmouth County Superior Court and before that was a legal research assistant in the Office of General Counsel, Teachers College, Columbia University. Matthew Staniloff is a 3L at Rutgers Law School and a member of the Entertainment, Arts, and Sports Law Society. Matthew is a graduate of the University of Victoria in British Columbia, Canada with a degree in psychology. Prior to joining WCM, Matthew participated in a variety of internships, including a legal intern with a New York personal injury law firm and a judicial intern with the United States Bankruptcy Court for the District of New Jersey. Matthew is an avid hockey fan, having worked part time for the Victoria Grizzlies while in undergrad. New York Jordan Joachim-James is a 3L at Fordham University School of Law and a member of the Environmental Law Review. Jordan is a graduate of Fordham University with a degree in sociology. Prior to joining WCM, Jordan interned with Manhattan Legal Services, Bronx Legal Services and with the Industrial Court of Trinidad and Tobago in Port of Spain, Trinidad. Jacob Popeck is a 3L at Fordham University School of Law and a member of the International Law Journal. Jacob is a graduate of SUNY Binghamton with a degree in political science and philosophy, politics, and law. Prior to joining WCM, Jacob participated in a legal extern with Housing Conservation Coordinators and interned with Travelers, Broome County District Attorney Office, and a well-known New York asbestos firm. Jacob is an avid Rangers and Yankees fan. Seamus Rooney is a 3L at Fordham University School of Law and a member of the Environmental Law Review. Seamus is a graduate of Rowan University with a degree in philosophy and world religions. Prior to joining WCM, Seamus was a legal fellow for a Philadelphia law firm and interned with the Gloucester County Clerk’s Office and Gloucester County Surrogate Court in New Jersey. Corey Weisfeld is a 3L at Brooklyn Law School and a member of the Entertainment and Sports Law Society. Corey is a graduate of SUNY Binghamton with a degree in philosophy, politics, and law. Prior to joining WCM, Corey worked as a paralegal for a personal injury law firm on Long Island and interned with the Nassau County District Attorney’s Office. Pennsylvania Allen Dejewski is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor. Allen is a graduate of Temple University with a degree in economics. Prior to joining WCM, Allen was a judicial intern with the Philadelphia Court of Common Pleas. Allen is a former football player and an Eagles enthusiast. Hannah Garber is a 2L at Temple University Beasley School of Law. Hannah is a graduate of Arcadia University with a degree in politics, government, and law. Prior to joining WCM, Hannah interned with the Montgomery County Public Defender’s Office and worked as a crisis counselor. Gianna Hroncich is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor. Gianna is a graduate of Lafayette College with a degree in government and law. Prior to joining WCM, Gianna was a law clerk for a Florida law firm and paralegal at a New York law firm. Gianna is a beam gymnast champion. Nicolas Ozorowski is a 3L at Villanova University Charles Widger School of Law and a member of the Moot Court Board. Nicholas is a graduate of the University of Massachusetts Amherst Commonwealth Honors College with a degree in political science. Prior to joining WCM, Nicholas interned with Fanatics and was a paralegal for a Philadelphia real estate firm. Nicholas is a distance runner. Benjamin Salvatore is a 3L at Rutgers School of Law and a member of the Law Review. Benjamin is a graduate of Rowan University with degrees in mathematics and political science. Prior to joining WCM, Benjamin was a judicial extern for the USDC for the District of New Jersey and interned with Rutgers Civil Practice Clinic – Veterans Advocacy Program. Previous Next Contact

News Court Splits on Electrical Upgrade Issue (NY) October 20, 2017 < Back Share to: In Daly v 9 E. 36th LLC, a New York court wrestled with the issue of whether an apartment building has a duty to update its electrical system to meet the modern electrical needs of tenants, and the question of who is responsible when electrical overuse by a tenant results in a fire. The plaintiff in this case was a tenant in the defendant’s building, who was injured by a fire in his rent-stabilized studio apartment. The fire was described in the fire incident report as originating "in an area of electrical wiring"; the report also noted the presence of "multiple extension cords plugged in to one outlet with a power strip." The apartment building was built in the 1930s and the plaintiff's apartment had three electrical outlets in the main living space, with additional ones in the hall, the bathroom, and the kitchen. No interior electrical upgrade had ever been done to the apartment, although the plaintiff made several requests to the building to install more outlets. In addition, the plaintiff had shown the superintendent that the existing receptacles were in disrepair. Plaintiff told the superintendent that he "didn't feel comfortable with using the extension cords," and did not use them for long periods of time because they would get hot. From all accounts the fire was caused by the overuse of the electrical outlets in the apartment. Plaintiff argued that the building’s decision not to upgrade the electricity in his apartment, despite the apartment's history and his requests over the years, was a breach of the duty to keep the building safe and functional for all tenants. The building filed a motion for summary judgment in New York County Supreme Court, and the court denied the motion. On appeal, the majority of the court agreed that a jury should decide whether plaintiff's lifestyle and electrical consumption are above and beyond the reasonable needs of any modern tenant, and whether the building had a duty that it breached to keep the apartment building, and plaintiff's apartment, reasonably safe. The dissenting opinion, however, was that “rather than moderating his use of power to conform to the building's electrical capacity (or at least using different outlets for different appliances), plaintiff was entitled to have defendant upgrade the building's wiring to accommodate his demand.” The dissent concluded that summary judgment should have been granted on the ground that plaintiff's negligent use of extension cords to operate numerous appliances simultaneously, as opposed to any alleged defect in the apartment's electrical wiring, was the sole cause of the fire. In its conclusion, the dissent found plaintiff's "lifestyle and electrical consumption" must still be in accord with the building's electrical capacity. Based on the 3-2 decision, it will be interesting to see if this decision winds up with the Court of Appeals. Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News No Dram Shop Liability for Pennsylvania Employers Serving Alcohol to Intoxicated Employees (PA) January 27, 2023 < Back Share to: Work-sponsored outings and events are normally seen as a much-welcomed reprieve from the old “9-5”. However, when alcohol is involved, Pennsylvania employers have potential liability to third parties who are injured by suffer at the hands of an intoxicated employee. In Klar v. Dairy Farmers of America Inc., the Superior Court of Pennsylvania addressed the standard which applied to an employer in such a situation. In that case, the Dairy Farmers of America (DFA) held a golf outing for its employees who had to pay a monetary contribution to participate in the outing. An employee became intoxicated and the DFA continued to serve him even though they knew he was an alcoholic and visibly intoxicated. The employee drove home and hit plaintiff who was riding on his motorcycle, causing serious injuries. Plaintiff sued the driver and the DFA, alleging that it was liable for serving the employee when they knew he was an alcoholic and intoxicated. The DFA moved for judgment on the pleadings, arguing that it was a “social host” and not subject to Dram Shop liability because they did not qualify as a “licensee” under PA’s Liquor Code and did not obtain “licensee status.” DFA further argued that there is no liability on the part of a social host who serves alcoholic beverages to their adult guests. The trial court granted DFA’s motion for judgment and Klar appealed, arguing that an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee in exchange for remuneration is liable to injured third parties. The Superior Court disagreed and affirmed, observing that “only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties.” The Court further noted that a social host is not liable for serving alcoholic beverages to a guest as “it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” The Court ruled that an employer is a non-licensee under the liquor code and is not subject to standard civil liability because it acted as a social host and was not in the business of furnishing and selling alcohol. The Klar decision makes it clear that Pennsylvania employers cannot be subject to Dram Shop liability for serving alcohol to intoxicated employees. However, the Supreme Court of Pennsylvania has agreed to hear the appeal of the Superior Court’s ruling and a decision is expected this year. WCM will monitor the appeal and provide an update once a decision is announced. Thank you to Haley Matthes for her contribution to this post. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

News Expanded Insurance Certificate? Don't Even Ask (NY) June 28, 2013 < Back Share to: The New York State Senate and Assembly have passed a bill that will make it illegal for any person to request or require that a certificate of insurance be issued with additional terms that are not contained in the insurance policy. Currently, insurance producers are prohibited from issuing certificates of insurance that alter, expand or otherwise modify the terms of the actual policy. However, many times the producer’s clients require certificates that contain these additional terms. For instance, in the construction context, property owners may require contractors to not only provide certificates of insurance that evidence that the owner has been added as an insured under the contractor’s policy, but that the contractor will also be bound by a“hold harmless” agreement. If the contractor fails to obtain such a certificate it risks losing the job. In such cases the insurance producer is faced with a no-win situation. On the one hand, the producer is prohibited from issuing such a certificate under current regulations and, on the other hand, it risks losing a client who will likely find another producer who will issue the certificate. Therefore, the legislators have passed this bill which prohibits parties such as the owner and contractor, in this example, from requesting that the certificate contain terms not present in the policy. The next step is for the bill to be delivered to Governor Cuomo to be signed into law. We will keep you posted on the progress. Thanks to Mendel Simon for his contribution to this post. If you would like more information please write to Mike Bono.   Previous Next Contact

News PA Court Heard Interlocutory Appeal on Public Policy of Attorney/Client Privilege June 13, 2018 < Back Share to: Pennsylvania Courts generally do not hear interlocutory appeals. Rather, a litigant must wait for the case to conclude to file all appeals. However, the court found an exception in Knopick v. Boyle & Boyle Litigation. There, plaintiff sued an attorney and his firm for commingling client funds with firm accounts to pay firm expenses. During discovery, Knopick noticed the deposition of a former employee of Boyle Litigation, and subpoenaed certain items from him. Included in this list were emails between the former employee and Boyle Litigation that would provide evidence supportive of Knopick’s claim. Boyle’s attorney represented the former employee at the deposition, and argued the emails sought were protected from disclosure by Pennsylvania’s attorney-client privilege and refused to produce them. Knopick filed and succeeded on a motion to compel Boyle to produce the emails , and Boyle appealed t. Knopick sought to quash the appeal, arguing the order was interlocutory and, thus, unreviewable. Ordinarily, the Superior Court will not provide “interim supervision” of discovery practice at the trial court level. However, the court found the collateral order exception to the general rule to be applicable. Rule 313(b) defines collateral order as one that is separable from the main cause of action and involves a party’s right that is too important to deny review. The discovery order was separable from Knopick’s underlying claims. Additionally, because the issue of attorney-client privilege was one that implicated public policy, the right at stake was too great to deny review. As such, the appeal proceeded. However, it was all for naught since because the court determined that the emails at the center of the dispute were not privileged after all. This case serves as a reminder that though interlocutory appeals are usually impermissible in Pennsylvania, on occasion, where it is separable or a matter of public policy, the Superior Court may hear the appeal. Thanks to Robert Turchick for his contribution to this post. Previous Next Contact

News Second Department Sends Towns Back To The Future May 25, 2010 < Back Share to: Various towns in Nassau and Suffolk County commenced a slew of construction defect cases against contractors that installed sewer systems for them in the 70s and 80s. To avoid the statute of limitation obstacles they faced, the towns couched their claims as "continuing public nuisances." They alleged that because the damage stemming from the defective installation was continuing, the statute of limitations did not apply. In two such cases, the lower court agreed with the plaintiffs and denied the defendants’ motions for summary judgment. However, in Town of Islip v. H.T. Schneider Associates and Town of Babylon v. H.T. Schneider Associates the Second Department reversed the lower court’s decision. The Second Department found that "the acts underlying the cause of action sounding in continuing nuisance are the very same acts that underlie the breach of contract and negligence causes of actions, that is, the failure of the defendants to properly backfill the trenches during their performance of construction contracts. Since the alleged continuing nuisance “has its genesis in the contractual relationship of the parties, the cause of action sounding in continuing nuisance accrued when the construction work pursuant to the contract was substantially complete." The Second Department has now made it clear that plaintiffs wishing to recover for damages sustained far back into the past will be brought back to the future by the statute of limitations. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_04366.htm Previous Next Contact

News Passenger Has No Duty To Stop Intoxicated Driver From Driving His Own Car February 5, 2008 < Back Share to: On January 31, 2008, the New Jersey Appellate Division approved for publication the opinion in Champion v. Dunfee A-3167-06T2. The Court held that a guest passenger who did not own nor control the car, and had no special relationship to and had not encouraged the tortfeasors wrongful behavior, owed no duty to a fellow passenger to prevent a visibly intoxicated driver from driving his own car. http://www.judiciary.state.nj.us/opinions/a3167-06.pdf Previous Next Contact

News United States Supreme Court Rejects Attempt To Upset WCM's Win In $25 Million Art Loss December 9, 2013 < Back Share to: On November 6, 2013, in Renaissance Art Investors, LLC (“RAI”) v. AXA Art Insurance Corp., the United States Supreme Court denied RAI’s petition for a Writ of Certiorari, bringing to a close a coverage battle that stemmed from the collapse of the Salander O’Reilly Art Gallery. In March 2010, the now infamous art dealer Larry Salander pleaded guilty to a $120 million fraud scheme, admitting to stealing numerous works of art. Renaissance Art Investors LLC claimed that it was entitled to coverage for Salander’s theft of approximately $25 million in artwork under insurance policies issued by AXA Art Insurance Corporation. RAI consigned its artwork to Salander, a principal of RAI, and the Salander O’Reilly Galleries LLC, a member of RAI. Ultimately, Salander and the Gallery betrayed RAI, stealing artwork valued at over $42 million. RAI made a claim to AXA under its commercial inland marine insurance policies, seeking indemnity for the theft. Litigation followed and the trial court awarded summary judgment in AXA’s favor, finding that there was no coverage for the loss under AXA’s policies. In a unanimous decision, the Appellate Division, First Department, that the AXA policies contained unambiguous dishonesty exclusion. The exclusion precludes coverage for losses arising from the dishonesty of an insured, anyone with an interest in the property, or anyone to whom the covered property is entrusted. The Court held that this policy exclusion applied to both Salander and the Gallery, who were entrusted with the artwork. The First Department affirmed the trial court’s decision, holding that as a matter of law, insurance coverage only extends to fortuitous losses, even under all-risk policies. The Court explained that whether there was a fortuitous loss is a legal question to be resolved by a court. Applying this standard, the Court held that the fraud perpetrated by Salander and the Gallery, which resulted in the loss, was not fortuitous. The Court of Appeals (New York’s highest court) refused leave to appeal from the First Department’s unanimous decision. RAI then sought review from the United States Supreme Court, citing conflicts in authority on procedural and jurisdictural issues. But the top court in the land rejected RAI’s petition. And so, WCM’s summary judgment win stands after levels of judicial scrutiny rarely seen in insurance cases. Previous Next Contact

News Put Me in Coach – But Only on a Regulation Field (NY) June 1, 2017 < Back Share to: In Legac v South Glens Falls Cent. Sch. Dist, the Third Department recently held that the assumption of risk doctrine can apply even in atypical sporting situations. In March of 2015, 5 year-old Mathew Legac was struck in the face by a baseball while fielding ground balls during try-outs for his school’s junior varsity baseball team. Because of rain, the JV coach, defendant Edward Potter, held the multi-day tryouts in the high school’s gymnasium. Legac argued that because the tryouts were held indoors, as opposed to a normal baseball field, the school created an unusual and unsafe condition for students to play the sport. Defendants moved for summary judgment on the basis that Legac assumed the risk of being struck by a baseball during tryouts. The trial court found that plaintiffs raised a triable issue of fact, and denied summary judgment. Defendants appealed. On appeal, the Third Department began by explaining the common law doctrine of the assumption of the risk. In New York, when a participant engages in a sport or recreational activity and is aware of the risks, he or she consents to the “commonly appreciated risks” that are inherent in the activity. By extension, the participant “negates any duty on the part of the defendant to safeguard him or her from th[ose] risk[s].” As baseball is a common activity with inherent risks, the Court's focus was solely on whether Legac was sufficiently aware of those risks such that the doctrine would apply. While awareness of the risk is assessed on a case-by-case basis, taking the skill and experience of the participant into account, the Court explained that where the “risks of the activity are fully comprehended or perfectly obvious,” the consenting participant will be deemed to have assumed that risk. Legac testified that he began playing baseball approximately ten years prior, had fielded multiple ground balls during that time, and was aware that baseballs commonly make unexpected hops on the ground. Overall, it was uncontested that Legac was far from a rookie, despite his age. Accordingly, the Court focused on whether the conditions of the gymnasium, which differed from traditional baseball fields, changed conditions such that Legac’s experience did not help him appreciate the particular risks at issue. Legac argued that a smooth gymnasium floor allowed ground balls to maintain greater speeds than would be possible on grass. Moreover, Legac hired a “baseball expert” who opined that the school made the drill more unsafe by allowing the hitter – the coach – to use an aluminum bat to hit ground balls across the gymnasium, which was only 48 feet away from Legac. The expert explained that on a regulation field, the fielder closest to the batter (besides the catcher) is the pitcher, who stands 60’ 6” away. Accordingly, these unrealistic and unfamiliar conditions negated Legac’s baseball experience, and therefore made it impossible for him to appreciate and ultimately assume the risk. A majority of the Court held that, although these particular conditions may have varied from Legac’s prior experience, Legac could still be deemed to assume the risk. Critically, Legac testified that he had the opportunity to observe other participants field ground balls just moments before he was called into the drill. Moreover, Legac had the opportunity to interact with ground balls during the first several days of the multi-day tryout. Accordingly, the Court reversed the trial court and held that Legac assumed the risk of injury and his complaint must be dismissed. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News As if Hurricanes Weren't Bad Enough -- Florida's Supreme Court Tackles Bad Faith. March 10, 2010 < Back Share to: A case that may influence future hurricane claims in Florida -- and perhaps bad faith claims in general -- was recently before the Florida Supreme Court on certification from the 11th Circuit Court of Appeals. In Chalfonte Condominium Apartment Ass'n, Inc. v. QBE Ins. Corp., S.D. Fl., No. 06-81046-CV-DMM, a Florida condominium association won an $8.1 million jury verdict against its insurer for its claim after Hurricane Wilma in 2005. In its lawsuit, the condo association set forth two claims against its insurer: breach of contract and breach of implied obligation to act in good faith. The trial court allowed the insured to present evidence at trial -- before the jury had assessed the amount of the insured's damages -- that it took the insurer about 18 months to assess damages. On appeal, the insurer argued that the evidence "tainted" the damages portion of the trial and thus the jury increased the insured's damages award after learning about the insurer's alleged delay tactics. When confronted with the appeal, the 11th Circuit asked the Florida Supreme Court to opine on whether an insured's claim of breach of good faith should be treated as a claim of bad faith. This is important because generally, evidence supporting a bad faith claim is presented only after the jury has assessed the amount of damages under a breach of contract claim to avoid prejudice against the insurer. QBE argued that claims of bad faith and lack of good faith are equivalent in this respect and the trial court erred in allowing the evidence to go before the jury. At oral argument, the Florida justices seemed receptive to the argument that the insured's presentation of the claim as lack of good faith rather than as bad faith "is a distinction without a difference." Some justices also stressed that potential prejudice to the insurer is one of the reasons that bad faith claims should not be brought together with breach of contract claims. We now shall have to wait and see if sympathy at oral argument translates into good law. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Specials thanks to Mendel Simon for his contributions to this post. http://www.law.com/jsp/article.jsp?id=1202445786445&src=EMC-Email&et=edi Previous Next Contact