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News Pink Slime: Cause for Concern for Product Recall Underwriters? March 31, 2012 < Back Share to: Pink slime is all over the news these days. It is the derogatory term for "meat product made by processing leftover beef trimmings." In other words, it's meat filler made from leftovers with the addition of amonia. It sure doesn't sound very tasty, but it's been in use for more than 20 years. Public concerns about its safety have led some stores to offer free refunds/recalls. A claim to the insurers of those stores or suppliers cannot be far behind. It also makes you think that maybe you want to stick with lamb or chicken for Easter or Passover dinner... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Pennsylvania Federal Court Holds the Line on Kvaerner February 18, 2022 < Back Share to: The District Court for the Eastern District of Pennsylvania recently opined on a liability insurer’s duty to defend and/or indemnify its named insured and additional insured in a lawsuit arising out of alleged construction defects in a new housing development. This decision reinforces that Kvaerner – while nibbled at the edges – still arguably remains good law in Pennsylvania. The case, captioned Main Street America Assurance Co. v. Howard Lynch Plastering, Inc., follows a familiar factual pattern: a builder contracted with a subcontractor, who was required to acquire liability insurance for itself and the builder. The insurance policy issued to the subcontractor contained common policy language and defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” In the course of the project, the builder and/or the subcontractor allegedly constructed the homes in a defective manner, requiring the homeowners to obtain extensive repairs to their homes. Thus, the question before the court was whether defective construction constituted an “occurrence” under the usual policy definition. The insurer therefore argued that “the effects of faulty construction” are not “occurrences.” The Eastern District agreed with the insurer, tracing the history of Pennsylvania courts’ case law on the subject. The court concluded that commercial general liability policies do not cover defective construction or damages to the property caused by defective construction. Based on this, the court entered summary judgment declaring the insurer has no obligation to defend or indemnity any party for the alleged construction defects. Thanks to Jason Laicha for his contribution to this article. If you have any questions, contact Matthew Care. Previous Next Contact

News Undocumented Worker Loses Bid to Recover Lost Wages Due to Fraud September 8, 2008 < Back Share to: Two years ago in Balbuena v. IDR Realty LLC. [/i], the New York Court of Appeals ruled that an undocumented worker does not automatically lose the right to pursue a lost wage claim because of his unauthorized immigration status. In Balbuena, the court zeroed in on whether the plaintiff provided false documentation in order to obtain his job as a crucial fact and in the absence of such a finding, the plaintiff could seek lost wages. In Macedo v. J.D. Posillico, a New York motion court held that a worker who submits fradulent work documents including a bogus social security number loses the right to pursue a lost wage claim. Focusing on the language of Balbuena, the court emphasized that an unauthorized alien is penalized under the prevailing immigration laws where the employer takes reasonable measures to confirm an employee's right to work in the United States and the worker perpetrates a fraud. Macedo v J.D. Posillico, Inc. 2008 NY Slip Op 51787(U) Supreme Court, New York County Judge Carol Robinson Edmead Previous Next Contact

News Cabana Can Be Insured Premises January 17, 2013 < Back Share to: In Raner v. Security Mutual Insurance Company, the First Department found an insurance policy exclusion for "liability...resulting from premises owned, rented or controlled by an insured other than the insured premises" ambiguous because the policy provided that the "insured premises" includes "that part of any premises occasionally rented to an insured for other than business purposes." Of significance, the policy did not define the term “occasionally rented.” In this case, the premises at issue was a beach club cabana rented by the insured for 20 successive summers, albeit under separate yearly membership agreements. The First Department found that since the term "occasionally rented" could apply in this context, the exclusion was ambiguous and must be construed against the insurer. In Raner, the First Department cautions that policy terms must be clearly defined or subject to only one reasonable interpretation or else it will have no effect. If the terms can be open to more than one reasonable interpretation, proceed with caution. Thanks for Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Court Sees Through Plaintiff's Claim of Optical Confusion (NY) March 8, 2012 < Back Share to: In Hanger v. 116 Lexington Ave., Inc., plaintiff fell on a five-inch single step transition at the entrance to a second-floor banquet room at a restaurant in midtown Manhattan. Plaintiffs' engineering expert opined that the similarity in the flooring of the hallway and the banquet room obscured the step. However, defendants moved for, and were granted summary judgment, arguing that the step was not a latent dangerous condition, and even if it was, adequate warnings of the step were provided. Plaintiff appealed, arguing that the motion court erred in dismissing their complaint because the conditions of the step area created "optical confusion," rendering the step dangerous. Although a step may be dangerous where the conditions create optical confusion, certain factors need to be considered. Specifically, courts will look to the similarity in surface colors, and whether the edge of the step created the illusion of a level surface and if there were any signs warning of the step. The Appellate Division found no “optical confusion” existed and affirmed the lower court’s ruling, as the step in question had four reflective strips positioned parallel to the step and a sign, which read "Step Down" with an arrow pointing diagonally downward toward the step. Thanks to Joe Fusco for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News A Synysta Labor Law Case (NY) June 10, 2021 < Back Share to: Volodmyr Synysta v. 450 Partners LLC, NY Slip Op. 50508(U), 2021 WL 2213821 (Kings County, May 20, 2021) is a Labor Law action. Plaintiff brought Labor Law §§240(1), 241(6), 200, and common law negligence claims against various parties for injuries sustained after falling from a scaffold at a construction site. In the instant motion, Plaintiff sought summary judgment on his §§ 240(1), 241(6) claims against the owner and general contractor of the premises (“defendants”). Plaintiff claims he fell from a Baker’s scaffold after being shocked by an electrical box, which he grabbed onto while painting. His §240(1) claim was supported by testimony that the scaffold did not have any ropes or other devices to tie off the scaffolding, and that the scaffold did not have any safety rails. Plaintiff also claimed that even if there were safety rails, they were not adequate in preventing the fall. Plaintiff’s §241(6) claim was supported by testimony that there were live wires in the workspace, and defendants failed to warn the workers about the live wires. In response, defendants argued, inter alia, that the issue of whether a safety device provided proper protection is a triable issue of fact within the jury’s purview. They argued Plaintiff’s supporting evidence was insufficient to prevail on summary judgment, since he did not submit any evidence or expert report about the adequacy (or deficiency) of the scaffold’s safety measures for the work being performed. The defendants also asserted the scaffold did not fail, and that issues of fact exist about whether the scaffolding had safety rails, and if so, whether Plaintiff used them or failed to adjust them properly. Defendants further maintained there was an issue of fact as to whether Plaintiff was the sole proximate cause of the accident, based on testimony he chose not to use an accessible ladder. Furthermore, defendants asserted Plaintiff did not need to grab the electrical box to perform his painting task. Based on the foregoing, the Court denied Plaintiff’s motion for summary judgment as to both his §§240(1), 241(6) claims. As to the former, the Court noted that, generally, the issue of whether a particular safety device provided proper protection is a question of fact for the jury. A fall from a scaffold does not establish, in and of itself, that proper protection was not provided. Defendants properly raised issues of fact about the existence of safety rails on the scaffolding, including whether safety rails would have prevented Plaintiff's fall. As to the latter, the Court noted that the alleged Industrial Code violations do not unequivocally translate into a granting of summary judgment in every situation. Rather, the Industrial Code violation constitutes some evidence of negligence and “thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Based on a plain reading of this decision, the main takeaway from Synysta is that a Labor Law § 240(1) claim can be defeated at the summary judgment stage when genuine issues of fact exist about the adequacy of the safety measures employed. As to Plaintiff’s § 241(6) claim, however, it is unclear whether the Court properly denied summary judgment. If Plaintiff properly proved violations of the specified Industrial Code provisions, perhaps the Court misinterpreted the guidance in Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343 (1998). If so, it would be unsurprising if an appeal followed. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Wrap Up Exclusion Ambiguity Renders Provision Null April 19, 2017 < Back Share to: A federal judge in the District Court of Connecticut issued a decision that should serve as a warning to insurers that policy provisions may be rendered useless if the terms are ambiguous by a “reasonable layperson.” In Thompson v. National Union Fire Insurance Co. of Pittsburgh, PA., plaintiffs sought insurance coverage from National Union for the $13.5 million judgment awarded against National Union’s insured. The underlying action involved an explosion at a natural gas power plant in 2010. National Union disclaimed coverage based upon an endorsement that provided, “[t]his insurance does not apply to…any liability arising out of any project insured under a ‘wrap-up’ or similar rating plan,” arguing that the consolidated insurance program that the project was insured under was plainly the type of “wrap-up” program the endorsement specifically excluded from coverage. The Court disagreed, holding that “[i]f defendant wanted to exclude coverage for any project that “involves” a wrap-up of is in any way affiliated with a consolidated insurance program, it should have explicitly included such limitations and defined the term “wrap-up.” The Court found that while “insurance experts and attorneys” could familiarly discuss the meaning of ‘wrap-up’ or ‘rating plan’, the fact that a “reasonable layperson” would not understand the terms or their coverage implications was fatal, and meant that the ambiguity had to be resolved in favor of the insured and against the insurer. This decision is a reminder that additional definitions, explanations and precision, particularly with respect to exclusions and endorsements, will benefit the insurers and the insureds, and may provide clarity as to questions of coverage. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Specificity and Clarity Required in Big Apple Maps March 24, 2009 < Back Share to: In 1982, plaintiffs' tort lawyers created Big Apple Pothole & Sidewalk Protection Committee to keep track of sidewalk defects in the five boroughs. The company periodically files "Big Apple maps" with the City of New York in an attempt to provide the city with the legally required notice of sidewalk, curb and crosswalk defects necessary to sustain negligence claims. In two recent cases that reached the Court of Appeals, the Court ruled that the symbols on Big Apple maps must be clear in their representation of the defect and the plaintiff's case must show that the fall was caused by that particular defect. In D'Onofrio v. City of New York, the symbol of a raised sidewalk was clear, but the plaintiff claimed that he fell on a grate or broken concrete. Since there was no evidence of an uneven sidewalk on the map, the Court rejected the jury verdict in favor of the plaintiff and dismissed the case as a matter of law. In the companion case of Shaperonovitch v. City of New York, the plaintiff alleged a fall on a raised sidewalk. The Court found the symbol at that location was ambiguous and did not indicate an elevation. The Court rejected the jury verdict in favor of the plaintiff. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09860.htm Previous Next Contact

News The First Department Wants You To Think Twice Before Hitting Send (NY) October 20, 2021 < Back Share to: Reaching a settlement via email is easier than you think, so be careful. In a recent decision by New York’s First Department, an email reflecting an agreement between attorneys is sufficiently subscribed for purposes of CPLR §2104 even where the attorney does not retype their name above the signature block. In Philadelphia Insurance Indemnity Company v. Kendall, 197 A.D.3d 75 (1st Dep’t 2021), an insurer petitioned to enforce a settlement agreement and vacate an arbitration award related to an underinsured motorist claim brought by an employee of the insured. The employee settled a claim with an underinsured third-party and later made a claim under a Supplementary Underinsured Motorist Benefit Provision in their employer’s automobile policy with the insurer. The employee and the insurer proceeded to arbitration where the employee was awarded $975,000. However, despite the arbitration decision being sent the parties’ counsel, neither counsel received the decision and they continued to negotiate a settlement. Consequently, the parties agreed to settle the dispute for $400,000. After reaching a settlement, the employee’s counsel memorialized the agreement in an email; at the bottom of the email appeared “Sincerely,” followed by counsel’s name and contact information within the signature block. In response, insurer’s counsel replied with an email containing a Release and Trust Agreement to be signed by the employee. Subsequently, the employee’s counsel received the arbitrator’s decision and indicated that they would not proceed with the $400,000 settlement. Instead, they demanded payment of the $975,000 awarded by the arbitrator. Insurer petitioned to enforce the settlement agreement and to vacate the arbitration award. However, the Supreme Court denied the insurer’s petition finding that the employee’s attorney failed to subscribe his email because he did not retype his name to supplement the signature block. The insurer appealed to the Appellate Division. On appeal, the First Department reversed the Supreme Court’s ruling and held that the settlement agreement was enforceable. Pursuant to CPLR §2104, a stipulation between parties or their attorneys is not binding upon a party unless it is in a writing subscribed by him or his attorney. The First Department explained that the Court of Appeals has not opined on whether emails can satisfy CPLR §2104, and that the issue on appeal was a matter of first impression. The First Department held that the distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is practiced today. Essentially, it is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Accordingly, the First Department reversed the Supreme Court’s ruling. Thanks to Drew Fryhoff for his contribution to this post. Should you have any questions, please feel free to contact Thomas Bracken. Previous Next Contact

News No Duty on Landlord to Protect Against Staircase Full of Urine August 3, 2010 < Back Share to: Plaintiff slipped in a puddle of urine in the staircase of her building owned by the New York City Housing Authority. The plaintiff had affidavits from several nonparty witnesses who alleged that urine puddles in the staircase were a recurring problem. However, the plaintiff failed to disclose the names of those witnesses. As such, the court granted the Housing Authorities' motion for summary judgment, finding that the plaintiff failed to show that the building owner had actual or constructive notice of the gross and hazardous condition. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06235.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News NY Appellate Division Rules Address of Defendant Corporation Determines Venue February 22, 2010 < Back Share to: In Biaggi & Biaggi v. 175 Medical Vision Properties LLC, plaintiffs brought suit for breach of contract and fraud in Westchester County. Defendants cross-moved for a transfer of venue to Kings County, which the lower court granted. Plaintiffs appealed the transfer of venue on the basis of CPLR 510(1) and 510(3). They argued that venue is proper in any county in which any of the parties resided at the time of commencement, and that the corporate defendants were residents of Westchester County at the time of commencement. Plaintiffs produced the corporate defendants certificate of incorporation, demonstrating a principal office address in Westchester County. Corporate defendants produced no evidence that the certificate was incorrect or had otherwise been amended and thus the Appellate Division held that Westchester was the proper venue for the action. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01448.htm Previous Next Contact

News Food Safety Laws Still Delayed. August 25, 2012 < Back Share to: There is no news to report on the status of the new FSMA regulations. As this WAPO op-ed makes clear, there is no "true" explanation for the delay, but politics seems to be the root cause. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact