News Plaintiff’s Lack Of Diligence Merits Dismissal In PA January 20, 2023 < Back Share to: The Superior Court of Pennsylvania recently issued an opinion in which the court laid out the burden that a plaintiff must satisfy when she files a writ of summons to commence a lawsuit. In Senyk v. Ukrainian Catholic Archeparchy of Philadelphia, 2023 WL 127520 (Pa. Super. Jan. 9, 2023), the plaintiff was injured when she slipped and fell while visiting a cemetery in Philadelphia. She thereafter retained counsel and, four days before the expiration of the two-year statute of limitations, she filed a praecipe for a writ of summons to commence a lawsuit against the church organization that operates the cemetery. The plaintiff, however, made no formal attempt to effectuate service on the defendant church organization. Instead, her counsel communicated directly with a claims specialist employed by the organization’s third-party insurance administrator both before and after the filing of the writ of summons. Importantly, in the days between the filing of the writ and the expiration of the statute of limitations, counsel for the plaintiff exchanged emails with the third-party administrator concerning the plaintiff’s accident but did not mention the filing of the writ of summons. Approximately six months after the writ of summons was file and the statute of limitations expired, the plaintiff filed her complaint. The church organization filed preliminary objections in the nature of a demurrer asserting that the plaintiff failed to comply with the rule set forth in Lamp v. Heyman, 366 A.2d 882 (Pa. 1976), in which the Supreme Court of Pennsylvania held that a writ of summons is effective to commence a lawsuit only if the plaintiff thereafter “refrains from a course of conduct which serves to stall in its tracks the legal machinery he has just set in motion.” The Superior Court held that the plaintiff did not make a “good-faith effort to effectuate notice of commencement of the action” within the thirty-day window following the writ of summons. The key holding of the case is that generally, in Pennsylvania, communication between a plaintiff and a defendant's insurance carrier does not qualify as a good faith attempt at service under Lamp. In Pennsylvania, “the plaintiff is always required to undertake diligent efforts to effectuate notice under Lamp.” Where, as in Senyk, the plaintiff does not comply with their obligations to make a good-faith attempt and undertake diligent efforts, the court will grant preliminary objections in the nature of a demurrer in favor of the defendant. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Does Facebook Friendship Warrant a Judge's Recusal? (NY) November 29, 2018 < Back Share to: As social media has become more integrated with our lives over the past twenty years, a myriad of legal issues have come to light ranging from the discoverability of social media records to, now, whether Facebook activity can support a request for judicial recusal. In Law Offices of Herssein and Herssein PA et al. v. United Services Automobile Association, the Florida Supreme Court ruled 4-3 the mere existence of a Facebook friendship between a judge and an attorney, by itself, is not sufficient to support a demand for recusal. The Court reasoned judges and attorneys have long diligently exercised discretion in recusal when personal connections exist, and that recusal has always been warranted when the friendship surpasses mere acquaintance. Mindful of the need to preserve judicial integrity, the Florida high court expanded that social media records could constitute grounds for recusal provided there is ample evidence of social contact between the judge and an attorney or fact witness. Justice Labarga, who concurred with the majority, penned a short opinion in order to underscore concern over the appearance of judicial impropriety. While a social media “friendship” may be innocuous, Justice Labarga argued the safest course of action for judges would be to not engage in social media at all, or, failing that, to carefully limit friendships to close friends and family. The dissent disagreed with the majority’s analogizing of social media and real life friendships, and urged instead a standard prohibiting judges from friending attorneys on social media. The dissent relied upon a local district court’s decision and the Florida Judicial Ethics Advisory Committee’s opinion recommending staunch regulation of judicial use of social media. As social media has rapidly become the leading form of communication, the dissent notes many users share ideological musings or newspaper articles. The mere review of such postings, of which there may be no evidence, could infringe on the impartiality of the judge. Further, the friend is privy to all sorts of personal information about the judge. The dissent expressed concern that litigants or their attorneys may seek to curry favor by means of social media and thus determined the reasonable course of action was to either require recusal in all cases in which there is a friend relationship or simply ban judges from social media. Both the majority and dissent express the same valid concerns, but reach radically different results. The common overlap, though, is that litigants have the reasonable expectation that any significant personal relationship will be disclosed either for waiver of any conflict or as sua sponte grounds for recusal. In any case, to the extent no such disclosure was forthcoming, we should be mindful that social media records could map out the extent of an undisclosed relationship and should be used to support a demand for recusal. Thanks to Chris Soverow for his contribution to this post. Previous Next Contact

News NY federal court addresses e-discovery obligations. September 21, 2007 < Back Share to: Two important points in this decision bear mention. First, producing party (usually) bears costs of discovery. Second, December 2006 e-discovery obligations apply retroactively to demands issued before the rules went into effect. http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1190192576781 Previous Next Contact

News PA’s Third Circuit Revitalizes Rule 68 Offer of Judgment July 16, 2013 < Back Share to: In Interfaith Community Organization v. Honeywell International, the Third Circuit revitalized the use of Federal Rule 68 Offer of Judgment in the context of environmental suits. Under Rule 68, a defendant may serve on an opposing party an offer to allow judgment. If the offer is not accept and the judgment that is eventually obtained is less favorable than the rejected offer, then the rejecting party must pay the costs incurred after the offer was made. The purpose of this rule is to make a plaintiff carefully consider a settlement offer before rejecting it and continuing to litigate his or her claim. Previously, courts had declined to use this rule because the cost-shifting provision was seen as inapposite to the goal of encouraging law firms to represent plaintiffs, especially in environmental actions. This was due, in large part, to the fact that in environmental actions, certain statutes specifically allow for the recovery of attorney’s fees as part of the costs. Thus to apply this rule, would force plaintiffs to risk paying their attorney’s fees, as well as costs to the opposing side and also risk losing their right to recover all post-offer attorney’s fees if they rejected a settlement offer. Although, the court noted that this ruling might have a chilling effect on whether an attorney will take on a plaintiff’s environmental action, ultimately it held that applying the rule did not abridge or modify the plaintiff’s substantive rights and was thus valid. Although, the ruling in this case is specific to environmental actions, it may ultimately have wider implications if other courts follow suit and continue to apply Rule 68; thus, making this rule a useful tool for defendants to encourage plaintiffs to enter into reasonable settlement agreements. Special thanks to Colleen Hayes for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News What The Plaintiff Was Cleaning Determined The Applicability of Labor Law § 240 May 4, 2009 < Back Share to: Since the Court of Appeals decided that Labor Law § 240 covered non-construction, routine cleaning in Broggy v. Rockefeller Group, Inc., the lower appellate courts have grappled with defining covered "cleaning" under the statute. In Wicks v. Trigen Syracuse Energy Corp., the plaintiff was working at a facility that processed shredded paper as an alternative fuel source. Several times a day, dust particles from the facility would get clogged in one of the machines and the plaintiff would climb a ladder, use a broom and push out the dust particles to be burned with the other paper as fuel. On one of those occasions, the plaintiff fell from the ladder. The court concluded that because the dust particles pushed out were ultimately also used as fuel, they could not be considered dirt or extraneous material. In addition, because the plaintiff’s work was integral to the facility’s function, the court ultimately found that the plaintiff was not cleaning, instead he was maintaining the system operation. Therefore, the court held that the plaintiff was not engaged in cleaning within the meaning of Labor Law § 240. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nycourts.gov/ad4/ Previous Next Contact

News Water Water Everywhere – Court Holds Off-Premises Flood Is Still A Flood, and Policy’s Flood Exclusion Controls (NY) April 6, 2016 < Back Share to: In Northern Spy Food Co., LLC v. Tower National Insurance, Justice Carol Edmead of New York County Supreme Court recently granted an insurer summary judgment, dismissing a Manhattan restaurant’s cause of action arising from the carrier’s coverage denial for damages resulting from a flood-related power failure. After Hurricane Sandy, Northern Spy Food Co., LLC submitted a claim to Tower National Insurance for “power outage/food spoilage” that resulted when a restaurant owned by Northern (“Premises”) lost power for several days. Tower’s investigation of Northern’s claim revealed that the “loss of business income and food spoilage claims resulted from an off premises power failure . . . due to flood.” Like many other properties in Manhattan, the Premises lost power from October 29, 2012 to November 2, 2012 when ConEd’s East 13th Street Substation was shut down due to severe flooding. Because the loss was caused by flooding, which was expressly excluded from coverage under the Policy’s flood damage exclusion, Tower denied the claim. Northern went to New York Supreme Court to contest Tower’s denial. Northern argued that the cause of loss was not a flood, but an “off premises power failure” that resulted in two types of covered losses: 1) loss of business income and 2) property damage (in the form of food spoilage). First, Northern contended that the Policy’s flood damage exclusion was inapplicable to their claim, as there was never any flood on the Premises; the only flooding occurred at the ConEd Substation, a location that Northern did not own, operate, occupy, possess, or control. Secondly, the Policy expressly identified “Covered Property” as “Stock,” which included the food that sustained damaged because of the power failure. According to Northern, this kind of property damage was not excluded by the Policy. Lastly, Northern felt that to the extent there were any ambiguities in the Policy, those ambiguities should be construed against Tower. Tower moved for summary judgment, arguing that Northern’s loss resulted from a flood, which was not a “Covered Cause of Loss” within the clear language of the Policy. Therefore, both aspects of Northern’s claim should fail. First, in opposition to Northern’s claim for loss of business income, Tower explained that the Policy did not provide business income coverage because there was no direct physical loss or damage to Premises. To support this assertion, Tower noted that a ConEd engineer attested that the power loss at the Premises was due to the failure at the 13th Street Substation, which in turn was due to flooding. Secondly, Tower claimed that Northern’s claim for food spoilage was not covered under the Policy because the Policy’s Commercial Property Deluxe Restaurant Enhancement Endorsement provided coverage only where the spoliation resulted from a covered cause, which did not include flooding. In essence, Tower argued the undisputed facts demonstrated that Northern’s loss was caused entirely by a flood, and that Northern was trying to create ambiguity where none existed. Justice Edmead agreed with Tower, noting that she was guided by the principals of contract interpretation. As with any other case of contract interpretation, unambiguous language in an insurance agreement must be given its plain and ordinary meaning. Here, the Policy stated that Tower would pay for lost business income due to the necessary suspension of operations that resulted from a “direct physical loss or damage to property” at the Premises. However, with regards to Northern’s claim for lost business income, the Policy’s flood damage exclusion expressly said that Tower “will not pay for loss or damage caused directly or indirectly by . . . . Flood, surface water, waves, tides, tidal waves, overflow of any body of water, other their spray, all whether driven by wind or not.” A second subsection, concerning food spoilage, similarly stated that Tower “will not pay for loss or damage directly or indirectly caused by . . .the failure of power supplied to the described premises, however caused, if the failure occurs away from the described premises.” It was uncontested that Northern’s claims for loss of business income and food spoilage resulted from a power outage, and that power outage was due to flooding of the ConEd Substation. Although Northern’s loss of business income was caused by the direct physical loss or damage to property at the Premises (in the form of food spoilage), the food spoilage itself was not caused by a “covered cause of loss” within the Policy. Because both of Northern’s claims were caused, albeit indirectly, by flooding, which was not a covered cause of loss, the Court granted Tower’s motion for summary judgment dismissing the complaint. Thanks to Evan King for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News Middle District of Pennsylvania Dismisses Bad Faith Claim Against Underinsured Motorist Claim for Inadequately Pled Complaint (PA) January 18, 2019 < Back Share to: The Middle District of Pennsylvania recently dismissed a bad faith claim which lacked adequate factual support that an insurance company acted unreasonably in valuing an underinsured motorist claim. In Clarke v. Liberty Mutual Insurance Company and LM General Insurance Company, the Court granted an insurer’s Motion to Dismiss and dismissed the matter without prejudice once it found that the plaintiffs’ complaint did not state a plausible bad faith claim. The lawsuit arose when the plaintiff, Angela Clarke, was injured in a motor vehicle accident with an underinsured motorist. Angela Clarke and her husband (“Plaintiffs”) settled their claim with the underinsured motorist for the policy limits of $15,000.00 and later sought out additional benefits from Liberty Mutual Insurance Company and LM General Insurance Company (“Defendants”). The Defendants refused to provide the additional benefits because they believed that the Plaintiffs’ claim was not worth more than the amount they already received from the initial settlement. As such, the Plaintiffs alleged that the Defendants breached the terms of their insurance agreement and acted in bad faith in violation of Pennsylvania law, 42 Pa. C.S.A. § 8371. In response, Defendants moved to dismiss the bad faith claim, arguing that the Plaintiffs’ claims were devoid of any well-pled factual allegations of bad faith and that the complaint only pled a disagreement as to the value of their claim. In siding with the Defendants, the Court determined that the Plaintiffs failed to plead adequate factual mater to support the allegation that Defendants did not act reasonably in valuing the underinsured motorist claim. The Defendants Motion to Dismiss was granted without prejudice and the Plaintiffs were able a further amended complaint to set forth sufficient facts to state a plausible bad faith insurance claim. In reaching its conclusion, the Court reviewed the standard for recovery in a bad faith action which requires a plaintiff to “present clear and convincing evidence (1) that the insurer did not have a reasonable basis for denying benefits under the policy and (2) that the insurer knew of or recklessly disregarded its lack of a reasonable basis.” Rancosky v. Washington Nat’l Ins. Co., 170 A.3d 364, 365 (Pa. 2017). In deciding whether an insurer has a reasonable basis for denying benefits, a court examines the factors the insurer considered in evaluating the claim. The Court explained that “[b]ad faith claims are fact specific and dependent on the conduct of the insurer vis á vis the insured.” The Court noted that, in this case, the Plaintiffs’ claim was simply that that the Defendants acted in bad faith without providing any factual support to establish that claim. Rather, the Court explained, the Plaintiffs would need to provide details as to how the Defendants allegedly acted unreasonably in valuing the claim. The Court also emphasized that, as a general matter, an insurer’s failure to immediately accede to a demand for the policy limit cannot, without more, amount to bad faith. Thus, the Court did not find that the Defendants violated § 8371 and granted their Motion to Dismiss. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News NY App. Div. Dismisses Plaintiff's Complaint on Various Grounds May 17, 2010 < Back Share to: In Khedouri v. Equinox, First Department affirmed the dismissal of plaintiff’s complaint because plaintiff failed to serve the complaint within 120 days of filing as prescribed by the CPLR. Moreover the court found that granting the plaintiff an extension of time was not in the interests of justice, as she claimed to have been injured in a fitness center competition, an activity for which she voluntarily assumed the risk. Finally, the court also denied plaintiffs request to serve a supplemental summons and amended complaint, as plaintiff’s amended complaint was served more than 20 days after service of defendant’s answer and without leave of court, which is not allowed under the CPLR. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04110.htm Previous Next Contact

News Appellate Division Finds Sequestering Of Expert Witness Was Improper. February 18, 2009 < Back Share to: In State v. Popovich, the New Jersey Appellate Division reversed a DWI conviction finding that it was error for the trial court to order sequestration of the defendant's breathalyzer expert. The Court noted that the defendant's expert was not being called to testify with respect to his knowledge of underlying facts, which might support sequestration. Rather, he was offering opinions regarding the validity and reliability of the BAC readings obtained through the breathalyzer. The Court found that the expert was entitled to hear the testimony being offered by the State as to the BAC results. http://www.judiciary.state.nj.us/opinions/a2862-07.pdf Previous Next Contact

News Will Dispute over Alleged Warhol Works Finally be Resolved? (NY) January 14, 2011 < Back Share to: Plaintiff Gerard Malanga was, for a number of years, the “right hand man” of Andy Warhol. Defendant John Chamberlain is a famed sculptor, who was a good friend and colleague of Warhol. The two have been involved in litigation for more than five years over a series of portraits of Chamberlain’s face. Malanga claims that he and other artists created the Warhol inspired works, without any direct involvement by Warhol. Malanga also claims that the works were given to Chamberlain to store at his apartment, and they remained in Chamberlain’s possession for several years. In 2004, Malanga learned that Chamberlain sold the works for $5 million, alleging that the portraits were created by Warhol. Malanga then demanded the return of the works and filed a replevin action. Chamberlain alleges that Warhol did create the portraits, which he gave to Chamberlain in exchange for a sculpture. Chamberlain then assembled the portraits into a single work, which he sold in 2000. Chamberlain recently moved for summary judgment for a second time, but both times the Court denied the motions as the two factual accounts are simply too different. The matter is now set for trial. Will this matter finally come to an end? Stay tuned. http://www.courts.state.ny.us/reporter//3dseries/2010/2010_52147.htm If you have any comments or questions, please write to mbono@wcmlaw.com Previous Next Contact

News Stray Plastic Trips Woman Not Application of Mode of Operation (NJ) February 20, 2013 < Back Share to: As a general premise, business owners must use reasonable care to provide a safe place for their invitees. This duty requires them to discover and eliminate dangerous conditions. However, in order to prove negligence of a business for a condition on its property, a plaintiff must show that the business owner had notice that a dangerous condition exists. Proof of notice, actual or constructive, is thus an essential element of plaintiff’s case – except when the business’s mode of operation is likely to result in dangerous conditions. In such cases, the plaintiff is relieved from proving notice. Mode of operation has been applied in a variety of scenarios involving self –serve items in groceries or other businesses. Thus, where a customer slips on a dropped grape or piece of lettuce in a produce aisle, there is no need to prove notice. The same holds true when a cafeteria patron slips on spillage at a self serve station. Our courts even applied mode of operation when IKEA permitted its customers to use self serve string and a customer slipped on loose string that was not properly coiled after customer use. So, of course, plaintiffs would like to extend mode of operation to broader issues to absolve them of the need to prove notice. Recently in Cashour v. Dover Parkade, LLC, a clever attorney attempted to use this theory in connection with a slip and fall outside a shopping plaza. The plaintiff alleged that she fell on a plastic bag. She attributed it to an overflowing garbage can. However, she had no factual support for specifically where the bag came from or how long it had been present prior to her fall. The Appellate Division had no trouble distinguishing this case from the traditional mode of operation case. It noted that there was no direct causal link between the plastic bag and the store’s business operations. It was, in fact, entirely unclear where the bag originated. More particularly, the court was unpersuaded that the defendants should have been charged with anticipating hazardous overflow from the trash cans such as to remove the plaintiff’s proof burden on notice. With insufficient proof of notice and no application of mode of operation, the court affirmed summary judgment that had been granted to the defendants. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News New York Court Of Appeals Expands Reach Of Scaffold Law December 21, 2009 < Back Share to: Section 240 of the New York Labor Law, commonly known as the “scaffold law,” is well known to apply strict liability to injuries relating to gravity related accidents. Previously, liability was imposed when a worker fell from a height, or when a falling object struck a worker. The New York Court of Appeals recently held liability under Labor Law 240 was no so limited. In Runner v. New York Stock Exchange, a worker was moving an 800-pound reel of wire down 4 stairs. He tied one end of a rope to the reel, and looped the other end around a horizontal bar placed against a doorframe. The worker held onto the loose end of the rope, acting as a counter weight to control the reel’s decent. While the reel was moving down the stairs, the worker was pulled towards the horizontal bar and injured his hands. The jury found that the accident was not gravity related, but the trial judge granted a directed verdict in favor of the plaintiff. Defendants appealed. The New York Court of Appeals unanimously held that the single decisive issue was whether plaintiff’s injuries were the result of the failure to provide adequate protection against a risk arising from a “physically significant elevation differential.” The question to ask is whether the harm flows directly from the application of the force of gravity to the object. If the answer is yes, there is strict liability under Labor Law 240. There is no requirement that the worker must fall or be hit by a falling object. If you would like more information about this post, please contact David Tavella at dtavella@wcmlaw.com . http://www.nycourts.gov/ctapps/decisions/2009/dec09/197opn09.pdf Previous Next Contact