News Insurer Has No Duty to Indemnify NY Insured for the Wrongful Death of Another Insured. May 13, 2010 < Back Share to: The Fourth Department, in Cragg v. Allstate Indem. Corp., was recently presented with an issue of first impression. The plaintiff-decedent and her mother lived with her grandparents and were covered under the grandparent's homeowners' insurance policy. The decedent drowned in the grandparent's pool and the decedent's father, who did not live with the decedent, brought an action against the mother on the decedent's behalf. The court held that the insurer did not have a duty to defend the mother against a wrongful death action brought by a noninsured party for the death of another insured party. The court pointed to the policy's coverage exclusion clause, which excluded coverage for "bodily injury to an insured person. . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person." In other words, it would go against the purpose of the policy to provide coverage to the decedent's mother and allow her to benefit from such coverage. Thanks to Georgia Stagias for her contributions to this post. if you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9544136 Previous Next Contact

News More Baseball Litigation in the News. June 13, 2012 < Back Share to: Tis the season and baseball related litigation is in the news (or we're just baseball happy this week). In New York, as all sports fans, and many non-sports fans, are now well aware, Johan Santana threw the first no-hitter in Mets history on June 1. (Ed. Note: This no-hitter seems largely the result of a questionable foul ball call). In any event, one particularly excited Mets fan in attendance at the historic no-hitter was Rafael Diaz, whose emotions trumped his better judgment, prompting him to run onto the field after the last out. Diaz was arrested and detained for 36 hours before his arraignment in Queens Criminal Court. He now faces prosecution for criminal trespass, and faces up to a year in jail. (He will most likely not face actual jail time, although he may end up with a criminal record, which can be a lifelong detriment.) A notable aspect of Diaz's arrest, as this article points out, is that running onto the field at a sporting event is no longer viewed by sports teams and management as a celebratory event, whereas in years past, running onto the field was practically encouraged. Both Chris Chambliss' pennant winning home run for the 1976 Yankees and the Mets division clinching celebration in 1986 resulted in literally thousands of fans storming each field. Even more recently, nearly every major upset at home in college basketball still results in the a good portion of the student body storming onto the court in celebration. Diaz's case is illustrative of the dynamic nature of the landscape in which we all operate. Trespassing onto a baseball field was once overlooked, but is now prosecuted. Certain injuries, RSD for example, were hardly appreciated or understood until recently, whereas it is now routinely diagnosed (often correctly, often not) and alleged. Regarding discovery, authorizations to access facebook and other social media are now a common discovery demand, whereas no such media existed even ten years ago. Our profession is consistent in that it is always changing, with either new technology, medical advances, or even as to how society views certain actions differently than it did fifteen to twenty years ago. Too bad no one told Mr. Diaz this in the eighth inning. In the meantime, in Philadelphia, the Philly Phanatic is in trouble again. This time he is accused of tossing a woman into a pool while engaging in horseplay. At least, Mr. Met doesn't have these problems and we will leave to the side the question of why the current Yankees don't need a make believe mascot. Special thanks to Brian Gibbons for his contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News New Connecticut Law Provides Tort Protections For Cyber-Savvy Businesses (CT) August 13, 2021 < Back Share to: On July 6, 2021, Connecticut Governor Ned Lamont signed into law a bill designed to incentivize Connecticut businesses to implement stronger cybersecurity practices to combat the rise in cyber and ransomware attacks. In doing so, the state becomes only one of three states, the others being Ohio and Utah, to adopt an incentive-based approach for businesses to improve cybersecurity best practices. The new law, which will become effective on October 1, 2021, gives statutory protection from punitive damages claims brought under Connecticut law in Connecticut state court to those companies who enact reasonable cybersecurity controls. This includes the adoption of a formal written cybersecurity program that contains “administrative, technical and physical safeguards for the protection of personal or restricted information.” The program must also conform to certain cybersecurity standards set forth in the statute, including those established by the National Institute of Standards and Technology (NIST) and the Payment Card Industry (PCI) Security Standards Council, as well as any applicable regulations relevant to the business (e.g., HIPAA or FISMA). Connecticut businesses which do not have strong cybersecurity protocols in place should strongly consider complying with the new law to avoid potential punitive damages exposure from future cyber losses. Thanks to Andrew Gibbs for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News An Unexplained Delay of 28 Days In Disclaiming Coverage May Be Untimely May 18, 2010 < Back Share to: Zevrone Realty Corporation, a holding company for a residential apartment building in the Bronx, sought coverage from its insurers for a sexual assault claim. Bronx Justice Kenneth Thompson, Jr. accepted, as a factual matter, that Zevrone's notice of the occurrence was untimely (a delay of almost one year to report an incident that would likely give rise to a claim against management). But Judge Thompson was asked to determine whether the insurers delay in issuing disclaimers on grounds of late notice were untimely. Citing the general principle that an insurer must give written notice of disclaimer as soon as is reasonably possible after it first learns of grounds for disclaimer of liability, Judge Thompson found that a delay of 98 days was unreasonable as a matter of law (thus granting summary judgment against Federal Insurance Company), and ruled that American International's delay of 28 days raised a question of fact as to whether the delay was "reasonable" under the circumstances (thus allowing the action to continue against American). Previous Next Contact

News Principal Not Liable for Wrongful Conduct of an Independent Contractor (NJ) October 22, 2020 < Back Share to: In Krough v. Calpine, the United Stated District Court for the District of New Jersey analyzed whether a principal/contractee is responsible for the wrongful conduct of an independent contractor. While granting summary judgment against the Plaintiff, the Court reiterated the 3 requirements available to find a Principal liable. Calpine Corporation (“Calpine”) owned a powerplant in New Jersey (the “Property”). Krough was employed by an independent contractor, Brandenburg Industrial Service Company (“Brandenburg”), to perform demolition at the Property. Krough was injured while working at the Property and brought a worker’s compensation claim against Brandenburg and a negligence action against Calpine. While Krough conceded that "is well settled law in New Jersey, [] that one who hires independent contractors is not liable for the wrongful conduct of those contractors in the performance of their duties and services." See Baldasarre v. Butler, 625 A.2d 458, 465 (NJ 1993), Krough argued that there are exceptions that exist when a principal/contractee is responsible for the wrongful conduct of its independent contractors. Those exceptions exist when: (1) the principal retains control over the manner and means of doing the work the contractor provided; (2) the principal has engaged an incompetent contractor; or (3) the services provided by the contractor are a nuisance per se (i.e., "inherently dangerous"). See Majestic Realty Associates, Inc. v. Toti Contracting Co., 153 A.2d 321 (NJ 1959). Here, Krough was unable to prove that the first exception existed because Calpine did not have the requisite control of the means and methods of the work, and only had merely supervisory power over the result. Krough conceded that the second exception failed because there is no presumption of negligence of an employer who hires an independent contractor that, after being hired, is negligent in the performance of his/her duties. See Mavrikidis v. Petullo, 707 A.2d 977 at 986 (NJ 1998). Lastly, Krough also averred that demolition is “inherently dangerous,” however, the Court noted that an inherently dangerous activity alone does not constitute a cause of action against the landowner; the plaintiff’s injuries must also arise from the activity that is defined as inherently dangerous. See Rodrigues v. Elizabethtown Gas Co., 250 A.2d 408, 413 (App. Div. 1969). Krough was merely a “spotter” for a co-worker who was operating heavy machinery, and he was not involved in any inherently dangerous activity at the time of his injury. The Court granted Calpine’s motion for summary judgment and found that Krough did not have a prima facie case of negligence against Calpine. The opinion confirms the three strict exceptions when a principal may be liable for the wrongful conduct of an independent contractor. It also highlights that partaking in an “inherently dangerous activity” is not enough to survive the well-established rule that a principal is not liable for the wrongful conduct of its independent contractors. Thanks to Emily Finnegan for her contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Join WCM on our Brand New Podcast - "Call Your Next Witness" May 6, 2021 < Back Share to: For purposes of this post, we will assume that our readers are mostly insurance claim professionals, attorneys, underwriters and others involved in the insurance industry. Now, think back to before you were involved in this industry, whether just out of college or law school, or before you changed careers and started working in insurance. What were your pre-conceived notions of "insurance defense," "insurance claim handling" or even "insurance coverage litigation?" Chances are, your perception -- if you even had one -- was that insurance defense was mundane, and certainly not a career filled with excitement. The insurance industry gets a bad rap. You know what insurance defense and claim handling involve, on every single case? Interesting characters. Heated disputes about liability, and most of all -- stories. Every claim comes with its own story, or series of stories. How many people in other fields can say that every day, a new fact pattern lands on his or her desk, involving a completely different cast of characters, all of whom have their own unique version of a disputed event? And your job is to figure out which version is true (or tru-est, as the case may be) and which will have the most appeal to a jury of six strangers! Every claim involves a puzzle that requires solving. That sounds a more appealing than the moniker "insurance defense," doesn't it? In fact, as you read this, there's a good chance one or two stories from claims you have handled came to mind. Our industry is filled with unique personalities and "war stories," whether from trials, claim disputes, mediations or otherwise. The idea behind the Call Your Next Witness podcast is to share some of those stories, and lessons learned along the way, with people inside and outside of our industry. With storytelling being a theme here, naturally, our first interviewee is Dennis Wade, one of the founders of Wade Clark Mulcahy LLP. You can listen to Part 1 of our interview with Dennis here, on Spotify or search "Call Your Next Witness" on ITunes, Google podcasts, or other platforms. We hope you'll download, subscribe and give us a listen. (We also have an episode posted explaining why WCM started a podcast in the first place. Think of that episode as a prequel to the Dennis interview). If you have questions about the podcast, or are interested in joining us as a guest, feel free to email Brian Gibbons or Georgia Coats. Previous Next Contact

News No Free Lunch: Court Holds Finance Company Only Entitled to Return of Premium Paid (NY) April 6, 2018 < Back Share to: Insurance Law § 3428(d) provides that when a policy obtained through a premium finance agreement is cancelled, the insurer must return the gross unearned premiums to the finance company. Recently, in All Island Credit Corp. v. Countrywide, a premium finance company alleged it was entitled to the pro rata return of premium not on the amount of premium that was actually paid – but on the total cost of the policy. They key facts are as follows. Plaintiff was a premium finance company that financed an auto insurance policy issued by Country-Wide Insurance Company to Gotham Logistics. Inc. The cost of the policy was $90,522. All Island made a payment to Country-Wide for $67,891.00, but soon thereafter cancelled the policy. The time that the policy was in effect was about 25% of the year, which calculated to $22,493.91 based on the total cost of the policy. Country-Wide thus returned about $45,000 to All Island. But All-Island claimed that because the gross value of the policy was $90,337, it was entitled to about $77,000, because the total earned premium should be deducted from the gross value. All Island argued that the phrase "gross unearned premiums" meant the value of the premiums due for the remaining period following the cancellation or termination of the policy irrespective of whether such premiums were actually paid. But the court found that argument “illogical and contrary to the plain terms of the statute.” It held that implicit in the statue was the notion that the insurer actually received the premiums that it was obligated by law to return, as it could otherwise result in a windfall to the insurer. If you would like more information, please write to mbono@wcmlaw.com .   Previous Next Contact

News NJ Discovery Sanctions – IME Fees for No Show March 20, 2017 < Back Share to: Defense litigators in New Jersey now have a published trial court decision to support motions compelling plaintiffs to pay an independent medical examination “no show” or “late cancellation” fee. In McInroy v. Village Supermarket, Inc., defendants scheduled plaintiff an IME with an orthopedic surgeon. Not having attended her IME, defense counsel re-scheduled it. Plaintiff again failed to attend, and defendants were charged a $375 “no show” fee from the examiner. Defendants re-scheduled the IME, this time expressly advising that plaintiff’s failure to comply with the examiners late cancellation/no show fee policy would result in those fees being passed onto her personally. She once again failed to attend. Defendants filed a motion to compel the IME, and reimbursement of the no show fees. The court ordered plaintiff to reimburse defendants for the missed appointments. Under New Jersey Court Rule 4:19, defendant was entitled to an order compelling the IME and/or dismissing plaintiff’s complaint. Additionally, and because New Jersey trial court judges have broad discretionary powers to impose discovery sanctions which are “just and reasonable,” defendant was entitled to an order compelling plaintiff to reimburse it for the examiner’s now show fees. The Court rejected the notion that plaintiff should be excused from paying the no show fees because her sole source of income was Social Security Disability since it was plaintiff who failed to proffer a reasonable explanation for the failure to keep the appointments. Defense litigators in New Jersey are now armed with the rationale of Judge Savio when moving to compel plaintiff’s to undergo medical examinations, in addition to moving to compel reimbursement of late cancellation/no show fees under appropriate circumstances. Thanks to Michael Noblett for his contribution to this post.       Previous Next Contact

News Amended Bill of Particulars Disguised as Supplemental Bill of Particulars May be Stricken on the Eve of Trial April 20, 2016 < Back Share to: It is well settled that if plaintiff is not merely updating allegations of special damages previously asserted, then court permission is required to an amended bill of particulars. While leave to amend is routinely granted in the absence of prejudice and surprise, when leave to amend is sought on the eve of trial, judicial discretion may reject such amendment. In Nieto v. Deveau, plaintiff alleged “post-concussion syndrome” and “post-traumatic headaches” in the original bill of particulars. On the eve of trial, plaintiff served defendant with a “second supplemental bill of particulars,” to add an allegation of “traumatic brain injury.” After being served with the supplemental bill, defendant moved to strike the traumatic brain injury allegation arguing the traumatic brain injury was not merely a consequential injury described in the original bill of particulars (i.e. a “supplement”), but a new injury (an “amendment”). The court agreed, and granted defendant’s motion finding the symptoms alleged in the original bill of particulars could just as well be “consistent with someone suffering from the flu with a fever but does not otherwise suggest a ‘traumatic brain injury.’” Moving to strike an amended or supplemental bill of particulars is a helpful tool for practitioners. While the Courts typically give plaintiffs extreme leeway, in the event new allegations are alleged on the eve of trial, these allegations may be stricken. Thanks to Caroline Freilich for her contribution to this post.     Previous Next Contact

News Call Your Next Witness - Aisling Jumper of Trans Re June 3, 2021 < Back Share to: Aisling Jumper had a "typical" introduction into the insurance world -- by working at a call center in County Galway, Ireland, speaking Spanish to international travelers on holiday. You know -- "typical." Aisling ended up going to law school, and has been involved in the insurance world ever since, whether at a law firm, with a third-party administrator, or working directly for Trans Re, where she is currently working as a coverage attorney. Aisling's enthusiasm for insurance is palpable in this interview, as Georgia Coats and Brian Gibbons delve (unironically) into the "glamorous and sexy" world of D & O claims and insurance policy analysis with Aisling. If you've ever wondered what prompts a young lawyer to enter -- and stay in -- the world of insurance, then our interview with Aisling on "Call Your Next Witness," is certainly worth a listen. You can download here. Previous Next Contact

News The End Is Near. Statutory Bad Faith Begins in NJ January 20, 2022 < Back Share to: Well, it finally happened. After a few years of debates and a not insignificant amount of plaintiff lobbying, this week, Governor Murphy signed into law the New Jersey Insurance Fair Conduct Act. The law creates statutory bad faith in NJ. Fortunately (although this is likely the canary in the coal mine), the law ONLY applies to parties injured in a motor vehicle accident who are entitled to uninsured or underinsured benefits. If the insurer "unreasonably" denies a claim or "unreasonably" delays payment of owed benefits, then the insurer is subject to: (a) actual damages (including trial verdicts) up to 3x the applicable coverage amount; (b) pre and post judgment interest; (c) reasonable attorneys fees; and (d) reasonable litigation expenses. In other words, the insurer has exposure to what are basically "standard" bad faith damages. In terms of "reasonableness", I think the policyholder bar is going to push for 30 day turnarounds. Sounds like fun during this time of the Great Resignation It's safe to say that we can expect a flood of new lawsuits in 2022 (all the while insurers are trying to comply with the onerous new NY insurance disclosure obligations --https://www.wcmlaw.com/2022/01/new-ny-insurance-disclosure-obligations-effective-december-31-2021/). The policyholder bar just does a much better job at getting legislation passed -- even when that legislation appears to be a solution in search of a problem. For more information about this new law, please contact Bob Cosgrove. Previous Next Contact

News UPS Mechanic Delivered Half-Victory on Strict Products Claim (PA) April 26, 2019 < Back Share to: In ELGERT v. SIEMENS INDUSTRY, INC., Dist.... Industries, plaintiff, a mechanic employed by the United Parcel Service (“UPS”), sustained severe injuries while repairing a conveyor at a UPS facility and sued the manufacturers, producers, and distributors of the machine as a result. In his complaint, plaintiff raised two claims: (1) strict liability under §402A of the Restatement of Torts and (2) negligence. Defendants filed a motion for summary judgment on the strict liability claim pursuant to Tincher v. Omega Flex, the foremost products liability decision that establishes the test for determining whether a product is defective and when a supplier of the product is strictly liable for injuries caused by the apparent defect. Under Tincher, to establish a prima facie warning, design or manufacturing defect claim under Pennsylvania law, a plaintiff must show (1) the product was defective, (2) the defect existed when the product left the seller's hands, and (3) that the defect caused the plaintiff's harm. In this case, the question to be answered is whether the defective design of the conveyor caused plaintiff’s injury. A plaintiff may prove a defective condition by using either the consumer expectations standard or the risk-utility standard; in this case plaintiff relied on the risk-utility standard. The court determined that material factual issues precluded summary judgment on risk/utility theory analysis as such questions should be reserved for a jury, not the court, and denied this part of defendants’ motion. Defendants also sought summary judgment on plaintiff’s negligence claim. Plaintiff claimed defendants were liable for negligence in failing to warn him of the dangers of the conveyor. Whether a warning is adequate is a question of law to be decided by the court, not a jury, and in this case, defendants met their duty to provide a reasonable and adequate warning of the inherent dangers of the conveyor. Furthermore, plaintiff admitted he never read the product manual, therefore summary judgment on this claim was granted as no different warning could have been useful to him. Thanks to Chelsea Rendelman for her contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact