News California Dreamin': Professional Athletes Flock to CA To File WC Claims April 6, 2010 < Back Share to: As the old saying goes, "it could only happen in California." California's workers compensation system apparently is the venue of choice for many professional athletes who sustain "work related" injuries during professional athletic activities. The typical injuries are orthopedic in nature and involve painful --and expensive-- joint replacements many years after the athletes have stopped playing their sport. The basis for California jurisdiction is easy to satisfy. The claimant need not have played for a California based team or be resident of the state; playing an isolated game in California will do the trick. The first few claims seeking workers compensation benefits for the permanent effects of concussion and closed head trauma are working their way through California's system. Although it has been decades since many of the claimants have played in a professional game, they seek life time benefits for the costs related to the care and treatment of what they contend is work related head trauma including dementia and brain damage. The battle lines have been drawn about which states can adjudicate these workers compensation claims and whether the claimants can medically establish that their injuries were caused by head trauma sustained decades ago. Right now the NFL is the primary target of these claims but other professional sporting organizations will surely follow close behind. Stay tuned in this high stakes and high profile litigation. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com http://www.nytimes.com/2010/04/06/sports/football/06worker.html?ref=football Previous Next Contact

News The Devil Is in the Details… of the Lease (NY) April 9, 2020 < Back Share to: In settled law, an out-of-possession landlord is not responsible for any injuries which occur on its premises unless the landlord has retained control over the premises, and (i) has a duty imposed by law or statute, (ii) has a duty imposed pursuant to a contract; or (iii) takes up that duty through course of conduct. But this rule is not infallible. In Broughal v. Tae J. Kwon, the plaintiff was injured in a slip and fall on ice located on the walkway of a strip mall owned by defendant landlord. Plaintiff, in this case, was also the tenant/lessor of the premises, slipping on the icy sidewalk of his own business. In a summary judgment motion, the landlord established that the lease agreement held the tenant responsible for removing any snow and ice from the walkway where the accident occurred. Plaintiff never rebutted owner’s argument on this issue. The Second Department, however, found that the landlord failed to provide any evidence that they had no duty to maintain the drainage system, that they adequately maintained the drainage system, and/or that the drainage system was not the proximate cause of the slip and fall (a drainage malfunction could have prevented an accumulation of water which froze into ice). The Second Department agreed that landlord defendant failed to prove that the drainage system was not a possible cause of the ice on the sidewalk and found it to be an issue to be determined at trial. This case highlights an important element in applications for summary judgment under the guise that a lease agreement absolves a landlord from liability for injuries occurring on the premises. The Second Department does not look favorably to releasing a landlord from any liability, leaving an injured plaintiff with no recourse at law, simply because the lease language places the responsibility on the tenant for maintaining the premises free from snow and ice. If the landlord does not prove that his maintenance of the building was not the proximate cause of a slip and fall by keeping detailed maintenance records and performing regular check-ups on the premises, then he will need to prove the same trial. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent Terrasi with any questions or comments Previous Next Contact

News Contractor's $300 Site Safety Budget Leads Liability for Horrific Injury (NJ) May 30, 2019 < Back Share to: The New Jersey Appellate Court recently reviewed a trial court decision granting summary judgment in favor of defendants in Cortes v. Garrard. Plaintiff Alexander Cortes and his friend, Seth Patterson, both sixteen-years old, trespassed onto a construction site controlled by defendants Garrard Construction Group, Inc. and Holz and Henry, Inc. The teens took turns operating a forklift inside of a building that was being constructed, after finding that the keys were left in the forklift ignition. The building where Alex’s accident occurred was located within a shopping center in Sicklerville, and Seth testified that there was no caution tape or plywood behind any of the door frames in the entrance-ways when they entered the building. While, essentially, horsing around with the forklift, Alex's right leg to get caught between the forklift and a pillar resulting in serious injuries that required an above-the-knee amputation. Although the trial court granted defendants motions for summary judgment, holding that Alex failed to establish that the defendants knew, or had reason to know, that minors were likely to trespass onto the construction site, the appellate court reversed and remanded the decision following a review of the record. During discovery, defendant Garrard produced its safety manual. Under a sub-heading titles “Children and Construction,” the manual indicated that construction sites attract children, as children like to explore. Additionally, the manual went on to state that children should not be allowed on site during the day and that fences should be placed on site, equipment should be locked up, and “No Trespassing” signs should be placed in the area. Further, Garrard’s project manager testified that he knew that teenagers were not in school from June through early September and that he was aware the site was located in an active shopping center occupied by ongoing business. Most notably, Garrard’s Director of Construction stated that the project was valued between one and two million dollars, but Garrard’s safety budget was $300. Plaintiffs produced an expert that opined that defendants should have visited the site and conducted a Life/Safety Exposure Analysis (‘LSEA’) which is essential to the development of the project site security policy and plan. Further, he opined that had the keys not been left in the forklift ignition, Alex would not have suffered his catastrophic injury. The appellate court ruled that the site was on an active shopping center open to the public, and the location posed a greater risk of increased traffic by teenagers, which created an issue of fact as to the defendants' liability. As such, the Appellate Court reversed and remanded to the trial court for further proceedings. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Denial of Summary Judgment Motion on Undefined Policy Term did not Preclude Litigating the Term at Trial July 10, 2017 < Back Share to: In Windows v. Erie Ins. Exch., homeowners claimed coverage under their policy after raw sewage entered their home. The insurance company denied coverage based on a water damage exclusion that stated there was no coverage for damage caused by “water or sewage which backs up through the sewers and drains”. After the denial, the homeowners commenced the instant action. Ultimately, the insurance company filed for summary judgment seeking a declaration of no coverage based on the exclusion. The trial court denied the insurer’s motion on the basis that “backs up” was not defined. The insurer then filed a motion in limine seeking a ruling that the law of the case did not apply, and it should not be precluded from presenting evidence of its coverage defenses, i.e. the water damage exclusion barred coverage under the policy. The trial court also denied this motion stating the previous summary judgment order had already concluded that the water damage exclusion could not preclude coverage for the homeowners’ instant claim. As such, the denial of summary judgment established the law of the case. On appeal, the Superior Court reasoned that while the policy term “backs up” was ambiguous, and the trial court had correctly denied the insurer’s motion for summary judgment, the trial court had erred nonetheless by reading into the denial of summary judgment the legal conclusion that the insurer was precluded from further litigating the water damage exclusion. As such, the case was remanded. Accordingly, this case stands for the proposition that a denial of a summary judgment does not mean an insurer will be precluded from continuing to litigate its position that coverage does not apply, regardless of whether its reasons for disclaimer were included in a previously denied motion for summary judgment. Thanks to Colleen Hayes for her contribution to this post.               Previous Next Contact

News Getting What You Need in PA Bad Faith Law. September 29, 2017 < Back Share to: Yesterday, in the case of Matthew Rancosky, et al. v. Washington National Insurance, et al., the Pennsylvania Supreme Court ruled on what qualifies as insurer bad faith. In Rancosky, the decedent plaintiff purchased a cancer insurance policy as a supplement to her health insurance. Unfortunately, some 11 years after first purchasing this insurance, she was diagnosed with cancer. She battled cancer on and off for several years, but ultimately the insurer denied any additional benefits because of a mistake made by plaintiff's physician as to when her disability began. The insurer, despite having access to forms, never sought to rectify or clarify the mistake although it had access to the information and was advised of the mistake's existence. An §8371 PA bad faith claim was ultimately brought. The trial court found for the insurer, but the appellate court found for the plaintiff. The question before the PA Supreme Court was whether under the Terletsky standard, a PA bad faith claim still turns on evidence that (1) the defendant did not have a reasonable basis for denying benefits under the policy, and (2) that the defendant knew or recklessly disregarded its lack of a reasonable basis in denying the claim. The Supreme Court has answered that question in the affirmative. In answering that question, the Supreme Court made a few interesting observations. First, the Court noted that the first prong of the Terletsky test is an "objective inquiry into whether a reasonable insurer would have denied payment of the claim under the facts and circumstances presented." Second, in respect of the second prong of the Terletsky test (and the part of the opinion that will no doubt generate the most public comment), the Court held that "proof of an insurer's motive of self-interest or ill-will, while potentially probative of the second prong, is not a mandatory prerequisite to bad faith recovery." In other words, to prove the "reckless disregard" requirement, the insured need not prove almost intentional insurer misconduct. Third, and perhaps most significantly, and almost as an aside, the PA Supreme Court also noted that "mere negligence is insufficient for a finding of bad faith under Section 8371." This part of the opinion runs contrary to some recent federal case law that suggests that a bad faith claim can sound in mere negligence. To us, the decision is good news for the insurance world. While it might have been nice to have the PA Supreme Court hold that intentional misconduct is a condition precedent to a bad faith claim, reconfirmation of the Terletsky standard and a repudiation of the idea that mere negligence can give rise to a bad faith claim are good, solid developments. As the Rolling Stones sang, you can't always get what you want, but if you try sometimes, you might find, you get what you need. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Court of Appeals finds Question as to Constructive Notice Despite Security Footage (NY) October 13, 2017 < Back Share to: Premises cases can hinge on notice of an allegedly defective condition, and an eventual accident. For defendant property owners, proving that you did not create or have notice of the dangerous condition is a continuous uphill battle. It is even more difficult when the condition is water or debris that is transient and could manifest at any time. Under such circumstances, a defendant property owner must show when the area was last inspected and/or cleaned on the date of the accident to establish that the condition was not present for a sufficient period of time to constitute constructive notice. In Parietti v. Wal-Mart Stores, Inc., 140 A.D.3d 1039, 34 N.Y.S.3d 474 (2d Dept. 2016), reversed (Sept. 14, 2017), plaintiff slipped and fell on a wet spot near an ice machine inside a Wal-Mart store. Wal-Mart submitted affidavits from store employees who were working in the area at and around the time of the accident and surveillance footage which showed a Wal-Mart employee constantly walking and inspecting the area where the accident occurred. The Appellate Division, Second Department, reversed the trial court’s initial denial of the defendants motion and found that defendant Wal-Mart established that the alleged wet condition was not present for a sufficient period of time for Wal-Mart’s employees to discover and remedy it prior to the accident. This was supported by plaintiff’s own testimony that she did not see the water when she initially walked in the area. Thereafter, plaintiff sought leave to appeal to the Court of Appeals. The Court of Appeals heard the case and concluded that despite the evidence presented, a question of fact exists as to the length of time the water was present and if it were long enough that Wal-Mart should have discovered and remedied the condition. While the Court did not elaborate, it is possible that the footage actually hurt Wal-Mart’s position in that the area was constantly inspected so the condition, should have been noticed and cleaned immediately. This decision highlights the difficulty in obtaining summary judgment on a slip and fall case for a defendant. It is even more difficult when the defendant does not have footage or a witness to testify about when the area was last inspected or cleaned on the date of the accident. We expect Parietti to be widely cited by the plaintiff''s bar in summary judgment motion practice going forward. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

All dram shop plaintiffs are either: (a) intoxicated patrons who claim that because they were overserved, they lacked the capacity to avoid the accident; or (b) third-parties (who may or may or not be innocent) who claim that an intoxicated patron injured them. Whether there is evidence of visible intoxication is the dispositive issue in the case. Our focus in defending these cases – be it a drunk driving car crash, a fatality or a sexual assault case – is a focus on the facts. This means working with our network of trained investigators to make sure we find out what the witnesses know before the plaintiffs do. That knowledge might be good, it might be bad, it might even be indifferent, but knowing the facts makes all the difference in getting the best possible result. Dram Shop All dram shop plaintiffs are either: (a) intoxicated patrons who claim that because they were overserved, they lacked the capacity to avoid the accident; or (b) third-parties (who may or may or not be innocent) who claim that an intoxicated patron injured them. Whether there is evidence of visible intoxication is the dispositive issue in the case. Our focus in defending these cases – be it a drunk driving car crash, a fatality or a sexual assault case – is a focus on the facts. This means working with our network of trained investigators to make sure we find out what the witnesses know before the plaintiffs do. That knowledge might be good, it might be bad, it might even be indifferent, but knowing the facts makes all the difference in getting the best possible result. Practice Lead Download Download

News Whistleblowers While You Work – Pennsylvania District Court Analyzes Whistleblower Claim and Grants Summary Judgment for Employer May 6, 2021 < Back Share to: Recently, the United States District Court for the Eastern District of Pennsylvania partially granted a Defendant’s motion for summary judgment on the basis that the Plaintiff lacked any reasonable belief that the company violated any law of the Sarbanes-Oxley Whistleblower (“SOX”) Act. In Ngai v. Urban Outfitters Inc., plaintiff, who was Director of Sourcing and Technical Design for Urban Outfitters, had made allegations of improper conduct by certain outside vendors Urban Outfitters worked with. Specifically, Plaintiff believed suppliers were purposely inflating production costs, paying kickbacks to senior executives, and creating conflicts of interest in violation of Urban Outfitter’s policies. Additionally, Plaintiff claimed his employer created a hostile work environment. Plaintiff complained to supervisors, then hired a lawyer, and five months thereafter, Plaintiff was terminated from his employment. Plaintiff sued, believing his termination was due to retaliation for his complaints of age and national origin discrimination. Defendant’s Motion for Summary Judgment was denied with respect to Plaintiff’s claim that his termination was motivated by age in violation of ADEA and his complaints about national origin and age discrimination. However, the Court held the Plaintiff failed to establish any reasonable belief his previous employer engaged in conduct under SOX. Section 806 of SOX prohibits publicly traded companies from retaliating against whistleblowers for providing information to their supervisors regarding any conduct which the employee reasonably believes constitutes a violation of various SOX sections. The Court determined Plaintiff failed to prove he had a subjectively reasonable belief of a violation because the Plaintiff believed he was reporting violations of company policies, not violations of federal statues covered by SOX. Therefore, the Court held summary judgment in favor of the Defendant’s regarding Plaintiff’s SOX claim. This decision highlights a whistleblower’s need to believe a violation of one of the provisions in SOX is reasonable, in addition to claiming a violation of company policies. Thanks to Madeline Troutman for her contribution to this post. Should you have questions, please contact Thomas Bracken. Previous Next Contact

Jennifer Corbett Kerrick Associate Pennsylvania jkerrick@wcmlaw.com 267.857.3510 Professional Experience Before joining WCM, Jen worked as a federal contractor with FSA Federal, LLC for the United States Attorneys Office for the Eastern District of Pennsylvania for over 12 years. There, Jen handled a wide range of forfeiture matters, both civil and criminal, ranging from white collar/economic crimes to narcotics and violent crimes to public corruption. Prior to joining FSA Federal at the USAO, as a solo practitioner, Jen handled a wide range of cases, again, both criminal and civil, ranging from landlord tenant disputes, evictions, and land acquisition, to contract negotiation, to transactional drafting of wills, lease agreements, and business contracts. Honors and Distinctions LaSalle University: Valedictorian of Sociology Department Florida Coastal School of Law: Pro Bono Award - graduated with 125+ hours, 2010 Best Opening Statement - Trial Advocacy, 2009 FSA Federal, LLC: Employee of the Quarter, 1st Quarter, 2015 Employee of the Quarter, 2nd Quarter, 2025 News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.A., LaSalle University, Magna Cum Laude J.D., Florida Coastal School of Law Bar Admissions Pennsylvania Court Admissions Supreme Court of Pennsylvania

News PA Court Underscores NY-PA Split in Indemnity Allocation January 18, 2013 < Back Share to: In the recent Commerce Court decision of Anheuser-Bush, Inc. v. INA, Philadelphia Common Pleas judge Patricia McInerney elected to apply New York’s “time on risk” approach in denying an insured’s claim for indemnity of a $1 million asbestos settlement despite Pennsylvania’s explicit rejection of that method in previous cases. Beginning in 1981, INA issued several policies to Anheuser-Busch including a standard Employer’s Liability Policy and Excess Blanket Catastrophic Liability Policy. Although INA denied coverage for the original asbestos action under the former, it agreed to defend Anheuser-Busch under the excess policy subject to a reservation of rights. Ultimately, Anheuser-Busch settled the underlying claim for $1 million, but was denied indemnity when INA claimed that the policy was not required to respond until the insured paid $100,000 for each of the thirty years of exposure alleged in the complaint. Unsurprisingly, Anheuser-Busch took exception to INA’s decision and filed suit in the First Judicial District, claiming that the carrier breached its contract and acted in bad faith. In particular, Anheuser-Busch contended that the policy was subject to Pennsylvania’s “all sums” approach wherein the loss is presumed to occur within a finite policy period and therefore subject to a single self-insured retention of $100,000. In contrast, INA contended that New York’s “time on risk” methodology controlled the policy and demanded the allocation of damages across those policies in effect during the time the loss occurred. In spite of Pennsylvania’s bright-line repudiation of the “time on risk” approach, Judge McInerney couched the issue as a conflict of laws in which the policy’s operation was governed by the law of the most interested state. To this end, she considered each jurisdiction’s contacts with the policy and concluded that New York was more closely associated than Pennsylvania because the contract was negotiated, created, and performed in that state. Consequently, Judge McInerney found that New York’s “time on risk” controlled and INA was therefore correct to require Anheuser-Busch’s payment of the aggregate retention before responding to the claim. While Anheuser-Busch, Inc. v. INA is arguably a routine application of the traditional conflict of laws analysis, the opinion is a reminder of both the divergent interpretations of indemnity allocation across the country and the extent to which the laws of conflicting jurisdictions may produce dramatically different results. Thanks to law clerk Adam Gomez for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

Dennis M. Wade Partner New York dwade@wcmlaw.com +1 212 267 1900 Professional Experience Dennis M. Wade has litigated headline-worthy cases in state and federal courts across the country and in international forums around the world for more than four decades. A skilled trial and appellate lawyer, Dennis handles complex commercial and insurance law defense matters, in particular, high-exposure casualty cases, complicated insurance coverage disputes, and the defense of errors and omissions and professional liability claims. Dennis handles fine art and in specie matters for both domestic and international insurers, including a recent notable case in which he successfully defended a major art insurer against a $42 million claim, from judgment in the trial court through appeals to New York’s Appellate Division and the Court of Appeals (the state high court) and ultimately to the United States Supreme Court. Over the past 20 years, he has helped recover stolen art and diamonds throughout the United States and has collaborated with counsel to achieve recoveries in Europe and elsewhere around the world. Because of his background and experience, clients frequently call on him to investigate and advise them in matters involving suspected fraudulent activity. Dennis has been a trial lawyer his entire career. He served for nearly seven years with the Manhattan District Attorney’s Office, including as Deputy Chief, Rackets Bureau, where he investigated and prosecuted organized crime cases involving high-level members of New York’s Gambino and Bonanno crime families, violent felons from gangs such as The Ghost Shadows and Flying Dragons, and corrupt public officials. He entered private practice as a name partner in a midsize Manhattan firm, handling a diverse range of defense litigation. The matters Dennis handles are often sophisticated and multifaceted, and his strength as an advocate lies in his keen ability to make the complex simple and understandable. A master of clear and compelling storytelling — a skill he attributes not to his time practicing law but to his study of Shakespeare — Dennis’s direct and practiced approach enables him to clearly and persuasively convey the facts and issues at the heart of disputes to clients, judges, juries and adversaries. His successes on behalf of clients are as much a result of his persuasive advocacy as they are due to his abiding belief that clients are critical partners in a common endeavor — charting the best path to an optimal outcome — and that the strategy of a case should be a cooperative effort. With the other named partners, Dennis founded WCM in 1994 to provide all the firm’s clients with this kind of personal and collaborative representation. Dennis has been called on to appear as an expert witness on points of American insurance law in the High Court of England and Wales. He also lectures frequently on insurance topics, including “The Art of Insuring Art” and “Art at Risk,” as well as on trial strategy and techniques, and has published extensively on topics such as settling damage claims, bad faith rulings and examinations under oath. Select Representations Successfully defended a major art insurer against a $42 million claim in a case that ultimately went to the United States Supreme Court. Successfully defended Lloyd’s of London underwriters, through summary judgment and on appeal, against a $2 million claim under a jeweler’s block policy based on the dishonest entrustment exclusion, where the insured, a high-end Manhattan jeweler, had been duped into “renting out” the pieces for a fictitious Jennifer Lopez video shoot in a wide-ranging scam orchestrated by a member of the Gambino crime family posing as a Sony Pictures representative. Successfully unmasked fraudulent insurance schemes across the country for domestic and international insurers, including arson-for-profit, bogus diamond and precious jewelry losses, and other scams involving real and insured personal property. Successfully tried, mediated or otherwise resolved scores of fine art and collectible disputes involving iconic works ranging from Old Masters and Picasso to Warhol and Basquiat. Honors and Distinctions Fordham University School of Law Editor in Chief, Moot Court Board Hobart College Magna cum laude Phi Beta Kappa Boswell and Crawford prizes for scholarship in the humanities Elected to membership in the Federation of Defense and Corporate Counsel (FDCC) Selected to the list of AV Preeminent Lawyers by Martindale-Hubbell. (A description of the selection methodology can be found at www.martindale.com/ratings-and-reviews/ . No aspect of this advertisement has been approved by the Supreme Court of New Jersey.) Professional Activities New York City Bar Association, Civil Trial Section, faculty member Defense Research Institute, First Party Insurance Committee, faculty member American Bar Association, Tort and Insurance Committees New York State Bar Association, Tort and Insurance Committees New Jersey State Bar Association, Tort and Insurance Committees Federation of Defense and Corporate Counsel, elected member Council on Litigation Management The National Arts Club The Armadillo Club Publications The Art of Insuring Art: Federal Bar Association Art & Litigation Conference. February 6, 2020 The Multi-Faceted Examination Under Oath: New York State Bar Association Coverage Update (with co-author Michael Gauvin). Spring, 2019 Art at Risk: John’s University Center for Executive Education. Dennis lectured on the legal aspects of Fine Art Claims. May 16, 2019 The Business of Art Observed: New York’s Roosevelt Hotel. Dennis lectured on insurance and risk management issues in today’s competitive art world. May 21, 2019 Money, Power, Beauty: The Value of Art: Federal Bar Association Art Law and Litigation Seminar, Miami, Florida, 2017 The Poison Pill? Settling Damage Claims Involving Living Artists (co-author Michael A. Bono): International Fine Art and Specie Conference. Rome, Italy, 2017 Recent Developments in First and Third Party Bad Faith Rulings (New York State Bar Association May 2017 Seminar: Updates and Hot Trending Topics Affecting Insurance Coverage) (co-author Michael Gauvin) CounterPoint: Pennsylvania Defense Institute: Assault on the Citadel of Privilege (with co-author Colleen E. Hayes). February 2017 9th Annual Art Litigation and Dispute Resolution Practice Institute: The Collision Between Art & Insurance Law—And A Word About VARA’s Impact on the Collision. November, 2016 International Fine Art and Specie Conference, Athens, Greece, 2016, Workshop: Guilt, Innocence and Coverage under JB policies (Co-presenter: Michael Bono). Some thoughts on the Art of Persuasion: Aristotle to Steve Jobs: 2016 (Georgetown University, Leadership Development Program). Insurance Issues in Art Law: (Fordham University School of Law). 2016 How Using A Professional Engineer Can Help You Win: (New York State Bar Association: 2016 Law School for Insurance Professionals—September 2016) (co-author with Daniel Beatty). Attorney Client Privilege Under Attack: (Philadelphia Association of Defense Counsel: December 2015) (Co-Author Colleen Hayes) Deposition Boot Camp: Dennis recently served as faculty member at a program sponsored by the Federation of Defense & Corporate Counsel designed to hone the deposition skills of young lawyers. Dennis focused on the examination of plaintiffs and expert witnesses. November 2014. International Fine Arts and Specie Conference, Malta, 2014: Workshop: Getting It Back: The Challenges of Recovering Stolen Property – – United States v. European Union (Co-Presenter: Giando Boglione). Assault on the Citadel of Privilege: Bad Facts Make Really Bad Law (New York State Bar Association Seminar: 2014 Law School for Insurance Professionals) (Co-Author: Michael Gauvin). MARKET BRIEFING: Sandy’s Impact on Fine Art and Property Insurers – IUA Event: London – November 2013 (co-author with Michael Bono). Liability for Sporting and Recreational Activities: A Balancing Act (New York State Bar Association Seminar: Premises Liability – What You Need to Know in New York, March 2015) (co-author with Alison Weintraub). A Carnival for the Skeptic: Using Social Media In Claim And Defense Litigation – (The New York State Bar Association Seminar: 2013 Law School for Insurance Professionals – October 2013) (co-author with Michael Gauvin). UNCHARTED WATERS: Coverage Litigation After SuperStorm Sandy – (The New York State Bar Association Seminar: Advanced Insurance Coverage: Hot Topics, Touch Issues and a Look Ahead – May 2013 (co-author Steven M. Kaye, Jr). The Examination Before Trial – Honing your Deposition Skills in Tort and Personal Injury Cases (New York State Bar Association, May 2012, Program Chair). What Fine Art Insurers Really Need to Know About The Visual Artists Rights Act (VARA) (co-author with Michael A. Bono). The Anatomy of a Bust Out: The Implications of Bankruptcy and Bankruptcy Fraud for Property, Fine Art and Specie Insurers (International Underwriting Association, London, England, November 2011 – co-author with Michael A. Bono). Liability for Sporting and Recreational Activities: A Balancing Act (New York State Bar Association Seminar: Premises Liability – What You Need to Know in New York, April 2011) (co-author with Alison Weintraub). Recent Landmark Insurance Decisions: A Guided Tour (New York State Bar Association Seminar: 2010 Law School for Insurance Professionals – More than the Basics, September 2010). Into the Serbonian Bog: A Consideration of Extra-Contractual Damages Under Bad Faith Theories in First Party Litigation (New York State Bar Association Seminar: 2010 Insurance Coverage Update: Insurance Coverage Issues in the Commercial General Liability Policy – Emerging Issues for the Next Decade, June 2010). Mediation for the Casualty Adjuster (Liability Insurance Research Bureau, San Antonio, TX March 2010). Defending Underwriters, Claim Professionals and Brokers in US Coverage Litigation (International Underwriting Association, London, England, November 2009) (co-author with Michael A. Bono). The Anatomy of a Premises Case (New York State Bar Association: Claims University, October 2009). Transferring Risk: The Interplay Between Contractual Indemnity Agreements and Additional Insured Coverage (New York State Bar Association Seminar: Additional Insured Coverage: Hot Topics & Critical Issues for 2009, May 2009). Getting it Back: Recovering Stolen Property in the United States (International Underwriting Association, October 2008) (co-author with Michael A. Bono). The Employee Exclusion in a Contractor’s CGL Policy and Related Limiting Endorsements (New York State Bar Association Spring Coverage Seminar, May 2008). Behind the Curtain: An Insider’s Guide to Mediation (Liability Insurance Research Bureau, Seattle, WA April 2008). Defending the Insurance Professional in Coverage and Bad Faith Litigation (International Underwriting Association, December 2006). The Intellectual Property Claim: A Strategic Approach To Analyzing Coverage And Defense Issues (Liability Insurance Research Bureau, April 2007). Into the Vortex – New Duty for Insurance Defense Counsel?, 237 N.Y.L.J. 61 (2007) (co-author with David F. Tavella). The World After ”Pecker”: A Case of Unintended Consequences, 236 N.Y.L.J. 36 (2006) (co-author with David F. Tavella). No-Prejudice Rule Lives (Apparently), 232 N.Y.L.J. 115 (2004) (co-author with David F. Tavella). The Emerging Doctrine of Contractual Contribution, 228 N.Y.L.J. 98 (2002) (co-author with David F. Tavella). Brokers and Agents are not “Professionals,” 226 N.Y.L.J. 52 (2001) (co-author with David F. Tavella). The Direct Examination of the Lay and Expert Witness, in A Guide to Civil Trials in New York State Supreme Court (Association of the Bar of the City of New York) (1999). The Many-Faceted Examination Under Oath, Defense Research Institute (Spring 1999). News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Fordham University B.A. Hobart College, magna cum laude Bar Admissions Pennsylvania New York New Jersey Court Admissions Southern District of New York Eastern District of New York Western District of New York Northern District of New York District of New Jersey Eastern District of Pennsylvania United States Court of Appeals, Second Circuit United States Court of Appeals, Third Circuit United States Supreme Court

News Superior Court Declines to Expand Personal Jurisdiction over Foreign Corporations (PA) July 30, 2020 < Back Share to: In Fulano v. Fanjul Corp., the Pennsylvania Superior Court recently considered whether forty-one foreign plaintiffs could establish personal jurisdiction over four corporate defendants all located in different states or countries. Plaintiffs were forty-one Dominican agricultural workers who alleged they became sick after exposure to toxic chemicals while working in the Dominican Republic. Plaintiffs sued the corporate parents of their employers, Fanjul Corp. and Inicia Ltd, who were both large sugar producers and distributors based in Florida and the British Virgin Islands, as well as the pesticide manufacturers, Drexel Chemical Company and UPL Limited, who were based in Tennessee and India, respectively. Plaintiffs asserted various theories attempting to establish personal jurisdiction over each of the Defendants and Defendants filed preliminary objections for lack of personal jurisdiction. The trial court sustained the Defendants’ objections and dismissed the claims with prejudice. Plaintiffs appealed. The Superior Court affirmed the trial court’s decision. Regarding the sugar producers, the Superior Court determined that plaintiffs could not assert a “stream of commerce” theory. Although the producers’ products made its way to Pennsylvania, Plaintiffs did not allege they were injured from those products. Plaintiffs failure to show injury from these products proved fatal to their personal jurisdiction claim. As the Superior Court noted, such a theory would subject a foreign corporation to any forum in which their products entered, regardless of their connection to a claim. Regarding Drexel, Plaintiffs attempted to show that Drexel contacts with Pennsylvania were “so substantial as to render it at home in Pennsylvania.” The Superior Court rejected this argument, noting that approximately 5% of Drexel revenue came from the Pennsylvania market, Drexel sole presence in Pennsylvania was a leased warehouse in Bucks County, and Drexel did not directly advertise or market its products in Pennsylvania. Plaintiffs also alleged that personal jurisdiction existed over Drexel because Drexel registered its products under Pennsylvania’s Pesticide Control Act. The Superior Court rejected this argument, as well, noting that the Pesticide Control Act does not notify its registrants of their consent to jurisdiction by registering. Finally, the Superior Court declined to follow Plaintiffs’ argument that UPL had an “alter-ego” subsidiary based in Pennsylvania. Under the “alter-ego” theory, jurisdiction is granted if the degree of control exercised by the parent is greater than normally associated with common ownership and control. The Superior Court agreed with UPL, noting that such control over UPL’s subsidiary did not exist. Specifically, UPL did not own any of the subsidiary’s stock, there were no common officers, directors, or employees, no interchange of managerial personnel, and did not share financial accounts. As a result, the Superior Court found that Plaintiffs were unable to show personal jurisdiction through this theory. Although Plaintiffs’ personal jurisdiction attempts were unsuccessful, this opinion serves as an illustration of the various theories of personal jurisdiction the defense attorney may face. Thanks to Benjamin G. Ferrell for this post. Please contact Vincent Terrasi if you have any questions or comments. Previous Next Contact