News Hidden Defect Must Be Made Transparent (NJ) October 9, 2019 < Back Share to: In Cabrera v. Fairleigh Dickinson, the court considered whether a defendant owed a duty to alert an independent contractor to the existence of a hidden defect on the property. Defendant FDU hired KB Electric Services to change lights on the roof of its property. Defendant FDU was aware of a defect on the roof but failed to warn anyone at KB of the danger. The plaintiff was an employee of KB and he fell from the roof due to the defect, sustaining personal injuries. Of note, it was undisputed that a dangerous condition existed on the roof and that the defendant was aware of the defect. Accordingly, at issue was whether or not defendant FDU owed a duty of care to KB and KB’s employees. In New Jersey, the law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself. Based on this case law, the defendant argued that they did not owe a duty of care to KB. However, in this case, the defect on the roof was hidden and only known to defendant. The Appellate Court ultimately found that the defendant had a duty to warn the plaintiff of the dangerous condition. Thanks to Heather Aquino for her contribution to this post. Please email Georgia Coats with any questions.   Previous Next Contact

News Faulty Workmanship Is Not An Occurrence (PA) October 27, 2016 < Back Share to: Construction defect claims raise insurance coverage questions when the damages sought are essentially for the work of the insured. A federal court judge in the Eastern District of Pennsylvania recently ruled that an insurer had no duty to provide coverage or defend its insured, a contractor, for its negligent roof installation. The case State Farm Fire and Casualty Co. v. Kim’s Asia Construction, stemmed from an underlying lawsuit filed by Powerline Imports, Inc. alleged that the State Farm's insured, Kim’s Asia Construction negligently installed a new roof that leaked during minor rain storms. Kim’s Asia sought defense and indemnification from State Farm for the claim. State Farm began defending Kim Asia’s under a reservation of rights but subsequently filed a declaratory judgment action. State Farm argued that the underlying complaint essentially amounted to a claim of property damage based on faulty workmanship against its insured and that allegations of negligence against the insured did not bring the action within the scope of coverage. The court agreed with State Farm, ruling that State Farm had no duty to defend or indemnify Kim’s Asia under the policy. The court cited the well-established four corners rule namely that “an insurer’s duties under an insurance policy are triggered by the language of the complaint against the insured.” See Kvaerner Metals Div. of Kvaerner U.S., Inc. v. Commercial Union Ins. Co., 908 A.2d 888, 896 (Pa. 2006). In comparing the four corners of the underlying complaint to the insurance policy, the court held that leaks that arose from the contactor’s negligent installation of the roof were not entitled to defense or indemnity under the policy. Although Kim’s Asia argued that the leaks arose from alternative sources and were based upon claims of negligence, the analysis of the underlying complaint did not contain a causal nexus between the property damage and a fortuitous event, as required by the policy. The court, parsing the language of the complaint, arrived at the conclusion that the only claim alleged within the underlying complaint was faulty workmanship which does not qualify as an occurrence under the policy. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJAD Finds Attempted Suicide Operates to Exclude Coverage for MV Collision August 12, 2010 < Back Share to: On June 10, 2004, plaintiff was severely injured when a vehicle operated by defendant crossed the double-yellow line and struck his car head on, causing both cars to roll and become total losses. The plaintiff’s vehicle was insured by Proformance Insurance Co. ("Proformance"), while the Defendant’s vehicle was insured by New Jersey Manufacturers Insurance Co. ("NJM"). Defendant’s policy with NJM policy obligated the insurer, in pertinent part, to "pay damages for bodily injury or property damage for which any insured becomes legally responsible because of an auto accident [but] . . . [w]e have no duty to defend any suit or settle any claim for bodily injury or property damage not covered under this policy." The policy excluded liability coverage for any insured "[w]ho intentionally causes bodily injury or property damage." It appears that the defendant told the responding police officer that “after he viewed [plaintiff’s] a vehicle traveling toward him in the opposite lane, he let go of the steering wheel and his vehicle traveled into the oncoming lane, striking the plaintiff’s vehicle head on”. When asked by the trooper why he had let go of the wheel, the defendant responded that he "wanted to hit the other vehicle," and when asked the reason, Thomas said he "wanted to end it all." Accordingly, the trooper classified the accident as an attempted suicide. Thus, NJM declined coverage based on the policy exclusion for any insured "[w]ho intentionally causes bodily injury or property damage”. Plaintiff’s insurer, Proformance, filed a declaratory action against NJM and defendant seeking a ruling that NJM had wrongfully disclaimed coverage to defendant, and was obligated to defend or indemnify its insureds. The court found that Proformance failed to show that the language of NJM's exclusion would fairly support more than one meaning and, therefore, the plain language of the policy should apply. In this case it is undisputed that Thomas was speeding and he let go of the wheel after seeing Hammer's vehicle approaching in the opposite direction. Hammer's injury was an "inherently probable consequence" of Thomas' conduct. The court found that the record sufficiently demonstrated Thomas' subjective intent to cause some degree of injury. Thus, the court's decision upholding NJM’s declination of coverage was affirmed. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a0209-08-a0742-08.pdf Previous Next Contact

News Brooklyn Property Owner Abutting Sidewalk Liable For Injury Due To Slip On Snow April 15, 2010 < Back Share to: In Simon v. Astoria Federal Savings, Justice Battaglia in Kings County rejected a property owner’s argument that the property owner is relieved from liability for injuries caused by negligence in removing snow from the abutting sidewalk if the property owner hired a contractor to clean the snow and the contractor entirely displaced the property owner’s duty to maintain the premises. The court noted that New York City’s “Sidewalk Law” places a non-delegable duty on the property owner to keep the abutting sidewalk free of snow and ice. While a snow removal contract may permit indemnification for any loss, it does not relieve the abutting property owner from liability to the plaintiff. Of course, the court also found that the contract did not entirely displace the owner’s duty regarding removal of snow from the sidewalk. If you have any questions about this post, please email David Tavella at dtavella@wcmlaw.com Previous Next Contact

News Intentional or Unintentional? That Is The Question. February 22, 2018 < Back Share to: The Eastern District Court of Pennsylvania recently ruled that a loss caused by the acts of a mentally ill insured were barred from coverage, as the loss was not accidental. In Robinson v. Allstate, the husband, a co-insured set fire to his house resulting in various damage. The insurer disclaimed coverage for the loss contending that the loss was not “accidental”, as required by the policy. The wife, the other co-insured under the policy, argued that her husband’s actions were not intentional, as he was psychotic at the time of the occurrence. The wife produced various medical documents evidencing her husband’s subsequent involuntary hospitalization and treatment after the incident. In response to the wife’s argument, the insurer countered that neither of the insureds had proffered any expert medical evidence showing that the husband’s medical illness prevented him from performing an intentional act. Rather, the only evidence regarding intent was the husband’s prior statements, which indicated that he had intended to destroy the house because he believed it was “demonic and need[ed] to be taken down”. As such, the court concluded while the husband’s actions may have been irrational, it had no bearing in determining whether coverage was provided under the policy. Thus, the only evidence before the court indicated that the husband’s intent was to burn the house down and, therefore, there was no coverage provided under the policy on this basis. Consequently, this case illustrates if there is evidence suggesting that that an insured acted with intent, the insured will likely need to proffer additional evidence, in this instant case, medical expert testimony, establishing that the insured’s actions were not intentional –to defeat a claim that coverage is not provided under a policy because the loss was not “accidental”. Thanks to Colleen Hayes for her contribution to this post.       Previous Next Contact

News NY Dram Shop Act: An Update February 4, 2021 < Back Share to: In Heins v. Vanbourgondien, the minor plaintiff and her father brought a personal injury suit against several defendants as result of a motor vehicle accident on a Suffolk County road. This article focuses on the Court’s decision on the minor plaintiffs’ Dram Shop claim against two 7-11 stores. The 17-year-old plaintiff Abigail Heins was operating a vehicle owned by one of the co-defendants, after consuming alcohol with the vehicle’s three other passengers. A disagreement arose between vehicle’s occupants causing Ms. Heins to become distracted and causing her to swerve into the road’s median. The vehicle rolled over before coming to a stop in the median. GOL §11-101(1), known as New York’s Dram Shop Act (hereinafter “Act”) states in pertinent part and parcel that: “any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxicated person […] shall have a right of action against any person who by unlawful selling or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication.” In 1983, the Act was supplemented with GOL §11-100, to apply to “any provider unlawfully furnishing alcoholic beverages for minors.” However, liability under this portion of the Act can only be imposed on an individual “who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage.” Plaintiff Abigail Heins drove to two separate 7-11s with her friend and defendant Kimberly Vanbourgondien, 19 years old, and provided the cash for Ms. Vanbourgondien to purchase the alcohol Ms. Heins consumed. The Heins Court held that a plaintiff may generally recover for damage if they establish a “reasonable or practical connection between an illegal sale of alcohol and the plaintiff’s injuries.” Id at 1019, citing Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136, 1137, 100 N.Y.S.3d 35; Giordano v. Zepp, 163 A.D.3d 781, 782, 79 N.Y.S.3d 659; Covert v. Wisla Corp., 130 A.D.3d 966, 967, 14 N.Y.S.3d 455; Tavarez v. Sidetracks, LLC, 128 A.D.3d 806, 807, 9 N.Y.S.3d 368). However, the Court further held that the Dram Shop Act does not provide for a plaintiff who was injured as a result of their own intoxicated condition, and youth does not constitute an exception to the voluntary intoxication rule. The Court ultimately affirmed Summary Judgment in favor of the two 7-11 defendants. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Breach of Contract Supports Negligence Claim March 18, 2009 < Back Share to: In Munsch v. 205-209 East 57th Street Associates, LLC, a gemeral contractor hired an electrical contractor to install temporary lighting at a job site. The plaintiff, who worked at the site for another subcontractor, tripped on wood scraps or electrical debris because, he said, no lighting had been installed. He sued the electrician for negligence. The court ruled that the plaintiff was within his rights to assert such a negligence claim based upon the electrician's alleged breach of the electrician's contract with the general contractor. Posted by Maju Varghese. Previous Next Contact

News No Coverage If No Nexus Between Injury And Claimed Negligent Maintenance April 1, 2009 < Back Share to: In the recent decision of Penn National Ins. Co. v. Costa, the New Jersey Supreme Court held that in order for an injury to arise “out of the maintenance, operation or use of a motor vehicle” there must be a substantial nexus between the injury and the allegedly negligent maintenance, operation or use of the vehicle. In Costa, the mechanic plaintiff slipped and fell on his employer’s icy driveway and struck his head on a tire jack that was being used to change a flat tire. The plaintif was not involved in the tire repair at the time of his accident. Thus, the Court found that there was no substantial nexus between the plaintiff’s injuries and the allegedly negligent maintenance of the motor vehicle. Consequently, the automobile insurance policy did not provide coverage for the claim. Thanks to Claudia Condruz for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/Supreme%2008.pdf Previous Next Contact

News Second Circuit Reiterates Narrow Exception to Timely Disclaimer Rule January 26, 2018 < Back Share to: For the second time, the Second Circuit has confronted the question of how to apply Rule 3420 when a disclaimer is based on an auto exclusion and an endorsement that expands coverage to certain, but not all, classes of autos. In Citizens Ins. Co. of Amer. v. Risen Foods, LLC, the insured sought coverage from a businessowners policy and a follow form umbrella policy for a car accident involving the insured’s employee and business vehicle. The businessowners policy contained the standard “Aircraft, Auto or Watercraft” exclusion that barred coverage for claims arising from an auto owned by the insured. By endorsement entitled “Hired Auto and Non-Owned Auto Liability – New York,” the businessowners policy expanded coverage to include claims arising from accidents involving hired or non-owned autos. Coverage under the umbrella policy was determined based on these provisions. On summary judgment, the District Court held the disclaimer was ultimately based on the auto exclusion, and ruled Citizens had a duty to defend under both policies because the disclaimer was untimely pursuant to N.Y. Ins. L. § 3420. On appeal, the Second Circuit reversed. The Second Circuit previously encountered this issue in NGM Insurance Co. v. Blakely Pumping, Inc., 593 F.3d 150 (2d Cir. 2010). In NGM, the Second Circuit recognized that “[d]etermining whether there is no coverage by reason of exclusion as opposed to lack of inclusion can be problematic,” but ultimately held the endorsement and policy’s defined terms demonstrated that an employee’s auto “could never be covered….” (Emphasis in original). As a general rule, whereas § 3420 strictly requires timely notice of a disclaimer based on an exclusion, it does not apply when a disclaimer is based on the scope of coverage in the first instance (such as whether there is an “occurrence”). In Citizens, the Second Circuit reiterated its ruling in NGM and confirmed a narrow expansion to the general rule: “[n]otice is not required where there is no coverage by reason of lack of inclusion.” In other words, while the endorsement expanded coverage to accidents involving certain classes of autos, owned autos were not included and, therefore, the policies’ scope of coverage never included owned autos. In New York practice, understanding and adhering to § 3420 is of paramount concern, and this narrow exception to the timeliness standard is of critical importance. If an endorsement re-writes the scope of coverage afforded by policy (as opposed to endorsements which add exclusions), disclaimers should be issued based on lack of inclusion to the endorsement in addition to any applicable exclusions. Thanks to Chris Soverow for his contribution to this post.   Previous Next Contact

News Trivial Defect Not A Viable Summary Judgment Argument in NY January 2, 2013 < Back Share to: In Scelzo v. Acklinis Realty Holding, LLC, et al., Scelzo was injured when she tripped on a tree well outside of a Best Buy store. She eventually sued the landlord, its tenant and the general contractor who constructed the store. All three entities moved for and were granted summary judgment. On appeal, the First Department partially modified the trial court’s decision and reversed summary judgment in favor of the landlord, Acklinis Realty. Acklinis Realty had attempted to prevail by arguing that the subject defect was trivial. Under New York law, whether a defect is trivial is generally a matter for the jury in a personal injury action. Here, the lease between Acklinis Realty and Best Buy placed the duty to maintain the sidewalk areas solely on the landlord, so summary judgment was appropriate for Best Buy. Also, the general contractor was entitled to summary judgment, as there was no evidence that it had ever returned to the job site after it constructed the store 3 years before the plaintiff’s accident. However, the Acklinis Realty was not so lucky. The court held that the plaintiff’s photograph of the tree well, coupled with her testimony, sufficiently established a question of fact as to whether the defect was trivial. While a trivial defect is a viable defense at trial, it generally is not a successful defense for summary judgment purposes. Thanks to Michael Nunley for his contribution to this post. Previous Next Contact

News Routine Inspection Evidence Fails To Trump Notice Issue (NY) July 6, 2016 < Back Share to: Property owners have a duty to keep their premises safe and secure, and to protect visitors from slipping hazards. One of the key defenses available to property owners in premises liability actions is that they lacked notice of the slippery condition because it occurred and injured the plaintiff before the defendant had a reasonable opportunity to discover and correct it. In Sada v August Wilson Theater , the plaintiff was injured after he slipped and fell on a wet staircase. There had been one inch of snow that day. The plaintiff testified that he observed a soaked mat near the theater door when he first arrived. He specifically told an usher during intermission that the mat was wet and that the usher should do something about it. Plaintiff fell on a wet area near the mat roughly 15 minutes later. Defendant moved for summary judgment on the grounds that it lacked notice of the allegedly hazardous condition, and the trial court denied the motion. The First Department unanimously upheld the trial court’s ruling, holding that defendant had failed to establish that it lacked constructive notice of the slippery condition in its lobby. While defendant submitted testimony from both the porter on duty the night of plaintiff’s fall and a theater manager, both of whom testified at length regarding the theater’s policies and procedures for keeping the theater clean and free of pooled water, neither witness testified as to what the theater had done to inspect and clean pooled water on the night of plaintiff’s injury. The First Department concluded that without specific evidence of what the theater had done on the night of plaintiff’s injury, defendant could not establish a lack of notice of slipping hazards – particularly given the plaintiff’s testimony regarding the notice he had given the usher. Thus, the court concluded the plaintiff had presented a question for the factfinder about whether his warning to the usher 15 minutes before his fall was sufficient to give defendant notice of the slippery condition and time to remedy it. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Late Notice Defense Upheld When Corporate President Knew of Accident November 4, 2009 < Back Share to: In QBE Insurance Corporation v. D. Gangi Contracting Corp., plaintiff filed a declaratory judgment action in which it asserted that it was not obligated to defend and indemnify the defendant general contractor in an action for personal injuries filed by a worker injured on a construction site. QBE disclaimed coverage on the ground of late notice of the underlying accident, claiming that Gangi did not notify it of the accident for three years. The terms of QBE’s policy required Gangi to provide notice of an occurrence as soon as reasonably practicable. The policy also provided, “Knowledge…by Your agent, servant or employee shall not in itself constitute knowledge of you unless the Corporate Risk Manager of Your corporation shall have received notice of such Occurrence.” Gangi claimed that it was entitled to coverage, as its Corporate Risk Manager did not have knowledge of the incident during the three year period in which it failed to notify QBE of the accident. QBE moved for summary judgment. The trial court granted the motion. Gangi then appealed. In reaching its decision, the Appellate Division, First Department, noted that Gangi’s president admitted that he had knowledge of the accident as soon as it occurred. The court ultimately held that because Gangi’s president was an executive officer and not merely an “agent, servant or employee,” his knowledge was imputed to Gangi and triggered its duty to notify QBE of the accident. The First Department then affirmed the trial court’s decision and granted summary judgment to QBE. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07745.htm Previous Next Contact