News Sexual Relationship With Tenant Outside the Scope of Tenant Advocate's Employment. October 11, 2011 < Back Share to: In [i]Larson v. Cooper Square Comm. Develop. Committee & Bus. Assoc., Inc.[/i], 11243/11, NYLJ 1202517524591 (Sup. Qu. Sept. 26, 2011), plaintiff claimed that she was sexually assaulted by a tenant advocate for Cooper Square Development Committee and Businessman's Association. Specifically, the plaintiff claimed that she had nonconsensual sex with the advocate on 12 occasions when he made home visits to her apartment in Cooper Square. Plaintiff asserted that Cooper Square was liable under the respondeat superior theory. The court found that the advocate's actions were outside the scope of his employment. The fact that it was part of the advocate's employment to make home visits did not bring the acts of the sexual assaults or sexual relationship into the scope of the employment. The acts were not done in furtherance of Cooper Square's business and were a departure from the acts of a tenant advocate and, thus, outside the scope of his employment. The court dismissed the negligent hiring, retention and supervision claims against Cooper Square because plaintiff could not establish that Cooper Square knew or should have known about the advocate's alleged tortious propensities. Special thanks to Cheryl Fuchs for her contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News In PA, a Conditional Offer Same as a Rejection June 22, 2018 < Back Share to: In Discover Bank v. Ryan, the defendant filed an emergency motion to enforce a post-trial settlement agreement, claiming that the parties had entered into an agreement to resolve the case for if the defendant withdrew her appeal. Upon receipt of the settlement agreement, which had been prepared by the plaintiff, the defendant requested three modifications, which included changing her name designation, adding two account numbers and making certain paragraphs of the agreement apply to both plaintiff and defendant. The plaintiff agreed to one of the requested changes, but refused to comply with the other two requested modifications. Plaintiff informed defendant that if they did not receive the signed settlement agreement by a certain date, the plaintiff would withdraw the offer of settlement. Defendant argued in her emergency motion that the plaintiff did not have the right to withdraw the settlement offer that the defendant had previously accepted, because the requested modifications did not prejudice the plaintiff. The court denied the motion, finding that the defendant never accepted the plaintiff’s initial offer. The court found that a reply to an offer which purports to accept the offer but instead changes the terms is not an acceptance, but rather, a counteroffer, which had the effect of terminating the original offer. Under Pennsylvania law, an acceptance must be unconditional and absolute. As the defendant never unconditionally accepted the plaintiff’s offer, it was terminated, and therefore the defendant’s emergency motion was denied. Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News WCM Awarded Summary Judgment in Hunterdon County, New Jersey Sports Liability Lawsuit. July 8, 2013 < Back Share to: Mountainside, NJ Partner, Denise Fontana Ricci, obtained summary judgment in Deska v. Wildcat Wrestling Club, a personal injury lawsuit in which a spectator at a wrestling match allegedly fell due to water on a gym floor from melted snow. The central issue in the case was whether the New Jersey Charitable Immunity Act precluded the plaintiff ’s claim as the Wildcat Wrestling Club fell under the Act’s protections and all negligence claims were barred. In a creative attempt to escape this immunity, the plaintiff argued that the Club had been grossly negligent in holding the match on a night when it snowed – as gross negligence would overcome the statutory immunity. In opposition, we argued that although the plaintiff asserted that the snowstorm on the night of the match was a nor’easter or blizzard, historical data dispelled this account. We therefore argued that under the facts presented, there simply was no evidence to support a claim of gross negligence based upon a failure to cancel the match for mere snow. The trial court agreed and granted our motion. Previous Next Contact

News Soccer Game Spectator's Recovery Barred By Assumption of Risk July 6, 2009 < Back Share to: The plaintiff, a spectator at a soccer game, brought suit against Nassau County and a soccer league for injuries she sustained when a soccer player kicked her as she watched a game. The plaintiff was standing roughly three feet from the out of bounds line. The league provided bleachers for spectators and had security guards on hand enforcing the league policy barring spectators from standing on the sidelines. The court granted the defendants' motion for summary judgment because the plaintiff chose to stand near the sidelines even though she witnessed players chase the ball after it went of bounds on at least three times prior to her accident. The court held that the plaintiff placed herself in close proximity to the field of play despite observing the precise risks that caused her accident and despite the fact that the league provided her with a safe alternative place to watch the game. Therefore, applying the doctrine of assumption of the risk, the plaintiff's recovery is barred. Thanks to Maju Varghese for his contribution to this post. Previous Next Contact

News WCM Wins on Employer Liability Exclusion in NJ Coverage Dispute. April 4, 2016 < Back Share to: Partner Bob Cosgrove and associate Colleen Hayes were awarded summary judgment dismissing all claims in a New Jersey coverage action arising out of the alleged degloving of a construction worker. In the case of Nautilus Insurance company v. ATN, et al., the underlying plaintiff suffered degloving injuries while working at a construction site where the Nautilus insured was the general contractor. At all times relevant to that action, the underlying plaintiff was employed by a sub-subcontractor of the insured. At the close of discovery, we moved for summary judgment. We argued that based on the policy’s Injury To Employees, Contractors, Volunteers, and Other Workers Exclusion, there was no coverage available to the insured as the Policy defined "employee" to include the employees of contractors (and subcontractors) hired by the insured. The trial court agreed and held that no coverage was owed to the Nautilus insured. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

News WCM Sponsors 2012 Wordings Specialists’ Gathering November 9, 2012 < Back Share to: New York, NY WCM, along with many international insurers and law firms, was pleased to act as a sponsor for the 2012 Wordings Specialists’ Gathering XX in London, England on November 9, 2012. An annual event, now in its 20th year, the Wordings Gathering brings together Underwriters, claims professionals and service providers from the Lloyd’s of London and London company markets to discuss differences in policy wordings -- and hoist a pint or two in celebration. Previous Next Contact

News Pennsylvania Law Stands Firm: Unlicensed Driver Exclusion Rejected For Medical Expense Coverage December 15, 2023 < Back Share to: Insurance policies often contain exclusion clauses designed to mitigate risks, yet the treatment of unlicensed drivers within these agreements remains a contentious issue. In particular, the denial of coverage for accidents involving unlicensed drivers has sparked legal debates across various states. The Superior Court of Pennsylvania held in Nationwide v. Castaneda that for the purposes of first-party medical expense benefits, unlicensed driver exclusions may not apply under Pennsylvania law. Nationwide Prop. & Cas. Ins. Co. v. Castaneda, 2023 PA Super 253, 2023 WL 8391516 (Dec. 5, 2023). In the underlying case, the daughter of the insured, with her mother’s permission but without a valid license, was rear-ended while operating her mother’s car. The daughter subsequently sustained severe injuries. The mother, under her auto policy, submitted a claim for first party medical expense benefits, which Nationwide denied under the policy’s “unlicensed driver exclusion”. The trial court agreed no coverage was owed. On appeal, the insured argued that even if the exclusion as written applied, the Motor Vehicle Financial Responsibility Law (“MVFRL”) made the exclusion invalid for the purposes of first party medical expense benefits . The Superior Court agreed. Citing to Section 1711 of the MVFRL, the court noted that it “specifically mandates that policyholders purchase, and insurers provide coverage for, first party medical expenses for injuries arising from the use of a motor vehicle”. Castaneda at 4. In other words, medical coverage was explicitly listed as the single benefit under Section 1711 that was to be considered a “Required Benefit”. The Court then dug into the intent of the General Assembly and remarked that by making medical expense coverage mandatory under the law, it was clearly intended to be treated differently from other first party benefit coverage. As the final nail in the coffin, the court cited to Section 1718 of the MVRFL, which sets out an enumerated list of limited circumstances when the insurer may exclude someone from the benefits of medical expense coverage. As an “unlicensed driver” exclusion was not part of the enumerated list written by the legislature, it could not be used as a means of denying “otherwise mandated coverage for first party medical benefits”. Id. at 6. The Court noted that if insurers could add to the statutory list of exclusions to deny coverage, the mandate would unreasonably be diluted to the point of losing its effect. In conclusion, because the insured’s medical expense claim did not fall under one of the limited exclusions set forth in Section 1718, Nationwide did not have a valid exclusion to rely on to refuse coverage in this limited context. The Superior Court was clear that their conclusion was to be read strictly within the confines of claims made for first party medical expense benefits. Insurers may still exclude benefits if injury arises out of intentional action by the insured, or other enumerated reasons set forth in 1718. Nationwide Property and Casualty Insurance Company v. Castaneda .pdf Download PDF • 195KB Previous Next Contact

News NFL's Insurers Win Home Field Advantage in NY May 31, 2013 < Back Share to: The NFL has been sued by over 4,000 former players who allege that they suffered brain injuries during their careers, claiming that the NFL negligently failed to protect their players against such long-term injuries. These claims have spawned insurance coverage litigation in New York involving 187 policies that were issued between 1968-2012. Many of the insurers have taken the position that their policies do not provide coverage for the claims and that the alleged injuries do not fall within their policy’s period of coverage. Meanwhile, the NFL filed suit in California, believing that state was a more favorable venue for the coverage litigation. The NFL argued that all of the insurers owe defense and indemnity for the players’ claims because the injuries continued through multiple policy periods and should be treated as occurring during each period. The NFL argued that California was the best forum for the litigation because California has greater contacts with the parties. For example, three teams play in California: the San Francisco 49ers, Oakland Raiders and San Diego Chargers. Further, the NFL raised an issue well known to fans -- only one team, the Buffalo Bills, plays in New York. Despite their names, the New York Giants and New York Jets play in New Jersey. The Court nevertheless ruled that the insurers' lawsuits in New York should take precedence over the California litigation because the NFL is headquartered in New York and most of the insurers are headquartered on the East Coast. 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 Texas Justice -- Lloyd's Must Pay for Billionaire Criminal's Defense. January 29, 2010 < Back Share to: A Carribbean knighthood. Ownership of cricket teams. A fleet of private jets. Texas billionaire Allen Stanford claimed that these things came from his worth ethic and natural abillities. That may be true, if you consider that his worth ethic and natural abilities were sired to criminal undertakings. Stanford and his company are accused of defrauding investors in excess of $8 billion dollars. Criminal indictments and civil lawsuits have resulted. Unfortunately, it appears that Lloyd's insured Stanford and his company at the relevant times. And now, a Texas judge has ruled that Lloyd's must pay for the defense of Stanford and his group in the pending SEC and crminal cases. Hopefully, Lloyd's won't end up spending billions in legal fees, but tens of millions seems like a reasonable estimate. If you would like more information about this post, please ctontact Bob Cosgrove http://www.insurancejournal.com/news/national/2010/01/27/106889.htm http://pdf.wcmlaw.com/pdf/PendergestDecision.pdf Previous Next Contact

News Policy Excludes Coverage For Injuries To Subcontractor's Employees (NJ) May 9, 2013 < Back Share to: The New Jersey Appellate Division in Essex v. Pine Towers Group, recently analyzed whether a CGL policy of insurance issued to a general contractor provided coverage for an action seeking damages for bodily injuries to an employee of a subcontractor. Pine Towers ("Pine") was the general contractor for a construction project in Newark and was issued a policy of general liability insurance underwritten by Essex Insurance Company ("Essex"). Pine hired FM Home Improvement, Inc. ("FM") who, in turn, hired Brothers Home Construction ("Brothers") to install siding. One of Brothers’ employees was injured when he fell through an opening in a scaffold, which he alleged was hazardous and dangerous. Pine sought coverage for these claims from Essex. Essex denied the claim for coverage. The trial court found that Pine was entitled to coverage as an additional insured under the policy of insurance issued to FM. However, it also found that the Essex policy excluded coverage because of an endorsement barred coverage for bodily injury sustained by any contractor, subcontractor or their employees. The Appellate Division upheld the trial court’s denial of coverage under the Essex policy. The Essex policy contained an "Additional Conditions Endorsement," which required Pine’s contractors and subcontractors to maintain minimum commercial general liability coverage. While failure to comply with this provision would not void coverage, it did reduce the limits of liability. These two paragraphs were interpreted by the Court to apply to contractors that were in privity with Pine. The third paragraph of the endorsement stated that there would be no coverage for "bodily injury" sustained by any contractor, subcontractor or their employees. Pine argued that the subject provision was ambiguous, and should only apply to exclude coverage for claims of bodily injury by contractors that were in privity with Pine, that is, those that Pine contracted with as opposed to the subcontractors of Pine’s subcontractors. Pine also argued that the condition barring coverage for subcontractors did not apply as it was intended only to protect Essex from covering workers compensation claims. The Appellate Division disagreed finding that the clear intent of the third-paragraph was to limit the insurer’s exposure to all claims for "bodily injury" asserted by any contractors and subcontractors. Therefore, the lower court properly denied coverage under the Essex policy. Thanks to Andrew Marra for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News PA Appellate Division Grapples With Contractor Liability for Employees and Independent Contractors. April 12, 2012 < Back Share to: In the case of Patton, et al v. Worthington Associates, Inc., Pennsylvania’s appellate division was faced with the defendant’s appeal of an adverse trial verdict. The case’s relevant facts are as follows. The Christ Methodist Church hired Worthington to perform construction work. Worthington subcontracted the work to Patton Construction. While Patton Construction was performing work, Patton (its principal) fell 14 feet to the ground and suffered injuries that a Bucks County jury valued at more than $1,500,000. He sued Worthington. At the close of discovery, Worthington filled a motion for summary judgment and argued that it was the “statutory employer of Patton under the Pennsylvania Worker’s Compensation Act.” Specifically, Worthington argued that it was entitled to the benefits of §52 of the Act which states: “An employer who permits the entry upon premises occupied by him or under his control of a laborer or an assistant hired by an employee or contractor, for the performance upon such premises of a part of the employer’s regular business entrusted to such employee or contractor, shall be liable to such laborer or assistant in the same manner and to the same extent as to his own employee.” Worthington further argued that Patton was not an independent contractor (which would negate the defense), but rather a statutory employee because: (a) Worthington was under contract with Patton Construction; (b) the site where the accident occurred was under Worthington’s control; (c) Worthington’s regular business at the accident site was entrusted to Patton Construction; and (d) Patton was a direct employee of Patton Construction. The motion was denied and the court allowed the jury to decide if Patton was an independent contractor or a statutory employee. The jury ruled that he was an independent contractor, the award was given and the appeal resulted. The Superior Court has now ruled that the trial court was correct to submit the question to the jury as the issue was one of fact and not law. Yet another hurdle to overcome in Pennsylvania construction accident cases! For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Plaintiff's Medical Records Insufficient to Prove Serious Injury May 19, 2009 < Back Share to: In Chery v. Jones, the plaintiff sued to recover for personal injuries sustained in an automobile accident. The trial court granted the defendant’s motion for summary judgment and dismissed the plaintiff’s complaint. On appeal, the Appellate Division, Second Department, held that plaintiff’s submissions in opposition to defendant’s motion for summary judgment were not substantive enough to meet plaintiff’s burden of proving serious injury under Insurance Law § 5102 (d). In Chery, the plaintiff submitted affirmations of all the treating physicians, including the examining orthopedist and radiologist. The affirmations were based on medical examinations conducted three years prior to the defendant’s motion for summary judgment. The affirmation of the plaintiff’s orthopedist also failed to address the findings of the defendant’s examining radiologist, which stated that there were no post-traumatic damages, but only long-standing degenerative conditions. Finally, the plaintiff failed to provide the court with competent medical evidence that he was unable to perform substantially all of his usual and customary daily activities for not less than 90 of the first 180 days subsequent to the subject accident. The court held that plaintiff’s submissions, including the three-year-old medical examinations relied upon in affirmations, did not raise a triable issue of fact. The court affirmed the lower court’s order granting the defendant’s motion for summary judgment. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03859.htm Previous Next Contact