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News Slippery Issues of Fact Denies Party “Borrowed Servant” Defense (PA) May 31, 2018 < Back Share to: On May 30, 2018, the Superior Court of Pennsylvania overturned a trial court’s granting of summary judgment in Gardner v. MIA Products Company et al. In the underlying facts of the case, plaintiff Eric Gardner was an employee of DelVal Staffing, a temporary employment agency, that assigned him to work at MIA Products as a packer in their food freezer. While working in the freezer, Gardner slipped and fell and suffered injuries. He received workers’ compensation benefits through DelVal and then filed suit against MIA Products alleging negligence. MIA Products moved for summary judgment on the basis that Gardner was a “borrowed employee” and therefore ineligible to file a tort action against it under Pennsylvania’s Workers’ Compensation Act, which the trial court granted. Gardner then appealed. Under Pennsylvania’s workers’ compensation law, employees are limited from suing their employers for injuries on the job, as workers’ compensation is meant to be the avenue for their recovery. These limitations can also extend to other entities that are not individuals’ direct employers and are termed the “statutory employer defense” and the “borrowed servant defense”. If a worker falls under either of these definitions, then the workers’ compensation limitation extends to them and prevents them from then suing that company that hired them. In Pennsylvania, the requirements to be a “statutory employer” are defined in the Workers’ Compensation Act. In this case, whether an individual is a “borrowed servant” is analyzed under the common law. To determine if a worker who is furnished by one entity to another becomes the employee of the company to whom they are loaned, courts look at whether the latter company has the right to control the work that is being done and the manner in which it is being performed, irrespective of whether control is actually exercised. Courts also look at other factors like the right to discharge the employee, the skill and expertise required for the work, and the payment of wages. In the instant case, the Superior Court overturned the trial court’s granting of summary judgment for MIA Products as it found there were still genuine issues of material fact as to who actually controlled Gardner as an employee. Though the court conceded that MIA Products personnel were present and directed Gardner on certain aspects of the job, they also cited deposition testimony that showed that DelVal personnel also transported Gardner to the site, provided work clothing, lockers for personal items, directed him on packing methods, provided a walkthrough of the facility, among other actions. As such, the court concluded that there were still issues as to whether Gardner was truly “borrowed” by MIA Products. This case demonstrates the important statutory employer and borrowed servant defense in Pennsylvania. These defenses can provide a company a complete defense in a case and bar a plaintiff’s claims against it if a court agrees, as tort claims against an employer are barred under Pennsylvania’s Workers’ Compensation Act. This case also demonstrates the difficulty with establishing the defenses, as well, as they are both very fact intensive with multiple elements to meet. In addition, if these defenses backfire then the record is set up to establish that a defendant exercised significant control over an area or plaintiff, thus possibly setting it up for more exposure. Thus, though the statutory employer and borrowed servant defenses are powerful in Pennsylvania, they do come with risks. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Expected Rise in Class Action Lawsuits in Wake of to COVID-19 April 3, 2020 < Back Share to: There will likely be an increase of class action lawsuit filings following the COVID-19 mandatory closures and shelter at home orders. On March 26, 2020, Plaintiff Mary Namorato brought a class action lawsuit against Town Sports International, LLC, and Town Sports International Holdings, Inc. d/b/a New York Sports Clubs (collectively “TSI”). TSI operates numerous gyms under the brands New York Sports Clubs, Boston Sports Clubs, Washington Sports Clubs and Philadelphia Sports Clubs. Namorato claimed that TSI continues to charge its members monthly fees despite being closed due to the New York State’s order closing all non-essential businesses. Namorato asserted claims against TSI for consumer fraud in violation of New York General Business Law §349 and §624, as well as common law breach of contract. The complaint alleges that “TSI has also made it virtually impossible for members to cancel their memberships and has refused to honor many members’ cancellation requests. NYSC has a long history of refusing to honor member cancellation requests, but it is particularly reprehensible in this moment.” Unlike many other businesses that are freezing memberships and fees amidst the coronavirus pandemic and subsequent business closures, New York Sports Club is not automatically freezing or cancelling memberships. Namorato claims that New York Sports Club ceased providing gym services or accessibility on March 16, 2020, and despite her efforts to cancel her membership, she has been unable to do so. The complaint states that TSI “breached their contracts with Plaintiff and/or the Class by refusing to allow Plaintiff and/or the Class to cancel their memberships at any time.” It is probable that more class action lawsuits will follow this trend, as similar class actions have already been filed against 24 Hour Fitness in the Northern District of California, and LA Fitness in the Southern District of Florida. Thanks to Emily Finnegan for her contribution to this post. Please email Heather Aquino for her contribution to this post. Previous Next Contact

News Dennis Wade Addresses Social Media In Claim And Defense Litigation for New York State Bar August 7, 2013 < Back Share to: On October 10, 2013, Dennis is a presenter at the New York State Bar Association program entitled Law School For Insurance Professionals. Dennis will be addressing Social Media In Claim Investigations And Defense Litigation. Dennis's submission is entitled: A Carnival For the Skeptic: Using Social Media In Claim And Defense Litigation. The brochure for the program is attached. Dennis recruited Jill Huntley Taylor, Ph.D., a jury consultant and social media expert to help drive his presentation. If you have any questions about the program or the materials, please call or email Dennis. Previous Next Contact

News Personal Liability And The New Jersey Consumer Fraud Act March 8, 2024 < Back Share to: Individual defendants can be held personally liable under the New Jersey Consumer Fraud Act (“CFA”). The New Jersey Supreme Court has explained under what circumstances the owners and employees of a corporation may be individually liable for CFA violations that are directly attributable to acts undertaken by them through the corporate entity. Allen v. V & A Bros. , 208 N.J. 114, 117, 26 A.3d 430, 432 (2011). In 2002, plaintiffs purchased a home in Princeton Township that was in need of landscaping. The scope of that work included building a retaining wall and creating a level area on the property where the pool could be installed. Plaintiff contracted with V and A Brothers, Inc. to level the property and build the retaining wall. While constructing the retaining wall, V&A Bros did not obtain final approval to substitute the type of backfill used to support the wall. The construction of the retaining wall required the use of backfill to support the wall. Plaintiffs assert that V and A Brothers, Inc. did not use the specified backfill, but instead substituted an inferior grade of fill that defendants trucked to plaintiffs' property from one of defendants' other construction sites. The trial court granted a motion to dismiss the complaint against the individual defendants. Reasoning that the CFA did not create a direct cause of action against the individuals, the court instead applied a traditional veil-piercing approach to plaintiffs' claims against the individuals. The Appellate Division reversed the trial court’s order dismissing the claims against the individual defendants finding support for individual liability in the statutory language of the CFA. The Supreme Court of New Jersey granted defendants’ petition for certification in which they challenged the conclusions of the appellate panel as to the basis for imposing individual liability. They conclude that, “focusing first on the statute's definition of person, N.J.S.A. 56:8–1(d) , there can be no doubt that the CFA broadly contemplates imposition of individual liability . The very breadth of the definition itself lends strong support to the proposition that, the CFA permits the imposition of individual liability upon one whose acts are part of a violation by a corporation.” The more complicated question raised in Allen , was whether an employee or officer of a corporation may also be liable individually when the basis for the CFA claim is a regulatory violation rather than an affirmative act or knowing misrepresentation. The Supreme Court found this to be a more fact sensitive determination and used this example for instruction. “A distinction can be drawn between the principals of a corporation and its employees. However, if the employee unilaterally concludes that an inferior product should be used in place of one specified in a contract and does so without the knowledge of the homeowner, there is little reason to construe the CFA to limit liability to the corporate employer and permit that employee to escape bearing some individual liability . Allen v. V and A Bros Inc. .pdf Download PDF • 310KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Second Circuit Rules Discrimination Based on Sexual Orientation Violates Federal Law (NY) March 2, 2018 < Back Share to: On Monday, February 27, 2018, in Zarda v. Altitude Express, the Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is against federal law as unlawful discrimination, subsumed under discrimination on the basis of sex, as defined by the Civil Rights Act of 1964. The Second Circuit, which covers New York, Connecticut, and Vermont, joins the Sixth Circuit in holding that gay employees may not be discriminated against on the basis of sexual orientation. This case arises out of a claim of unlawful termination – Zarda claimed he was fired because he was gay. This en banc decision overruled a previous Second Circuit decision which held that, while sexual orientation discrimination should be outlawed as a policy matter, the plain reading of the statute did not encompass sexual orientation. Here, however, the Court determined (in part) that the associational claim. (i.e. that Zarda was fired because his boyfriend was gay) was enough to determine that Zarda was fired because of his sex. In other words, if Zarda’s significant other were of the opposite gender, he would not have been fired. This 10-3 decision is noteworthy, in part, as two different government agencies appeared on opposite sides of the case. The Equal Employment Opportunity Commission (EEOC) supported Zarda and argued that the Civil Rights Act of 1964 outlawed discrimination on the basis of sexual orientation whereas the Department of Justice, in a reversal of the Obama Administration’s position, argued that sexual orientation discrimination was not covered under the aegis of the Civil Rights Act of 1964. This is the third circuit court to rule on this question in the last 12 months – and the results have causes a circuit split, which raises the specter of a possible Supreme Court showdown. Thanks to Matt Care for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Labor Law And The "Construction Area" November 9, 2010 < Back Share to: In Pirog v. 5433 Preston Ct., LLC, Pirog injured his hand while he and his co-workers were stacking pipes on the defendant’s property. Pirog's employer used the defendant’s property to store construction materials for use on various construction projects throughout the City. Pirog commenced suit asserting that the defendant violated Labor Law sections 200, 240(1) and 241(6). The defendant moved for summary judgment, but its motion was denied. On appeal the Second Department reversed the lower court's decision and granted the defendant summary judgment holding that, at the time of his accident, the plaintiff was not engaged in construction work and was not working in a construction area within the meaning of the Labor Law. Thanks to Ed Lomena for his contribution ot this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07912.htm Previous Next Contact

News Exercise ... too risky? (NY) October 30, 2013 < Back Share to: Experts say that exercise is good for your health. But those who participate as weekend warriors or regular gym rats know that exercise can also lead to injury. In fact, injury is recognized as a common risk of sport. As such, those of us who choose to exercise in the face of the risk, do so at our own peril. The plaintiff in Ramirez v. Lucille Roberts Health Clubs, Inc. found out that the courts may not be receptive to claims for common injuries associated with exercise. Ramirez claimed that she was injured while attending one of the defendant gym’s step-aerobics classes. The gym moved for summary judgment, arguing that the plaintiff had participated in over a hundred step-aerobics classes prior to the accident and assumed the associated risks. The lower court granted the motion and the Second Department affirmed. The Appellate Division held that someone voluntarily participating in a recreational activity assumes the commonly appreciated risks. Given the plaintiff’s prior experience, the court found that the plaintiff knew the risks involved in exercising (presumably in a spandex leotard). Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Intentional Act Ruled An "Accident" By New York Appellate Court September 22, 2008 < Back Share to: In 2002, Neil Spicehandler was run down by a crazed motorist who jumped the sidewalk in an attempt to "kill as many people as possible." After his death, Spicehandler's estate submitted a claim seeking benefits under the uninsured motorist (UM) and personal injury protection (PIP) endorsements in his auto policy. The adverse driver eventually pleaded guilty to murder in the second degree, admitting that he intentionally caused Spicehandler's death by striking him with his car. State Farm denied the claim on both counts, arguing that Spicehandler's death was not "caused by an accident" given the driver's conceded intentional act. The Appellate Division, Second Department ruled that the UM endorsement excluded coverage for the incident because the UM coverage was limited to circumstances where the insured was injured in an automobile accident at the hands of an financially irresponsible motorist. Since the adverse driver intended to kill Spicehandler, there was no "accident" and hence no UM coverage. Finding a distinction between the policy's UM and PIP endorsements, the First Department did not find such a limitation with regard to the death benefits claim. In contrast to its UM analysis, the court looked at whether the event was "accidental" from the standpoint of the insured in the PIP context. Since Spicehandler's death was unforseen from his standpoint, the event was "accidental" and State Farm's duty to provide death benfits triggered. The opinion was decided 3-2, which gives State Farm the right of appeal to New York's highest court. Stay tuned. State Farm Mut. Auto. Ins. Co. v Langan 2008 NY Slip Op 06980 Decided on September 16, 2008 Appellate Division, Second Department http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06980.htm Previous Next Contact

News Who Let the Dogs Out? Not the Defendants (NY) October 25, 2013 < Back Share to: Plaintiffs bitten by vicious dogs often sustain serious injuries. Therefore, it is no surprise that they can also look forward to a significant payday. But that does not mean that courts won’t put a leash on plaintiffs’ ability to obtain judgments against those with a remote connection to the dog in question. In Mercado v. Ovalle, the plaintiff was attacked by two pit bulls that were kept on a lot next to a grocery store. According to the plaintiff, the defendants, the grocery store and its owner, helped care for the pit bulls, occasionally gave them food, once took them for a walk, and had access to the lot where they were kept. The defendants moved for summary judgment, which the Bronx County Supreme Court granted. The First Department affirmed the decision, holding that a defendant could not be held liable for the plaintiff’s injuries in the absence of any evidence that the defendant owned or harbored the dogs, or controlled the lot where they were kept. However, the court also noted that there was no evidence that the pit bulls were ever in the store or that the defendants entered the adjacent lot, suggesting that the outcome may have been different had the defendants had more significant contacts with the pit bulls. The lesson from Mercado may be that it is fine to enjoy animals, just don’t assume any responsibility for them. Thanks to Mike Gauvin for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News School District Fails to Slip Away from Liability for Plaintiff's Fall (NY) November 27, 2019 < Back Share to: In Williams v. Island Trees Union Free Sch. Dist., a New York court addresses the level of evidence required for a defendant to claim it lacked constructive notice of a dangerous condition. In Williams, the plaintiff allegedly slipped and fell on clear liquid in the south cafeteria of Island Trees High School, which was under the control of the Island Trees Union Free School District. According to plaintiff, the accident occurred when she was walking in the cafeteria toward an "Aquafina" vending machine and both of her feet slipped out from underneath her. She then fell to the ground where she noticed a puddle of water which was approximately two inches wide and three to four feet long trailing from her spot on the ground to the vending machine. Plaintiff commenced an action to recover damages for personal injuries against the School District and Dover Gourmet Corp., the company with which the School District allegedly contracted with to stock the vending machine. Plaintiff alleged the School District was negligent in, among other things, maintaining the premises. The School District subsequently moved for summary judgment dismissing the complaint asserted against it. The New York Supreme Court granted the School District's motion. In response, plaintiff appealed. The New York Appellate Division, Second Department determined that the School District had failed to demonstrate, on a prima facie level, that it did not have constructive notice of the alleged water condition that caused plaintiff to fall. The court reiterated that "to meet its initial burden on the issue of lack of constructive notice, the defendant must offer evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell." In this case, the Court found that the School District failed to provide evidence regarding any specific cleaning or inspection of the area in question relative to the time when plaintiff's accident occurred. Accordingly, the Court reversed the lower court’s order. This decision serves as an important reminder that it is crucial for a moving party to adequately demonstrate that it lacked constructive notice of a condition that allegedly caused a plaintiff's accident when making a motion for summary judgment. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News New Jersey Clarifies Punitive Damages April 1, 2008 < Back Share to: In Tarr v. Bob Ciasulli's Mack Auto Mall, the New Jersey Supreme Court clarified two thorny issues surrounding the Punitive Damages Act. First, it held that a jury can only award punitive damages as a deterrent to the defendant who committed the wrongful acts but not as a general deterrent to others. Thus, the court held that it was error for the plaintiff's attorney to argue that the amount of punitive damages provided the jury "an opportunity to send a message to deter this particular defendant and others" whether they are in the same industry or not. The court also criticized the jury charge that erroneously reinforced the argument that the deterence of third parties who were strangers to the lawsuit could be considered. Second, the court found that the defendant's wealth at the time of the wrongdoing as well as at the time of entry of judgment could be considered when the jury calculated punitive damage. Our advice is simple: if a case proceeds to trial with a claim for punitive damages in play, defense counsel must be alert to any argument that seeks to "send a message" to an entire industry. The focus should be limited to the defendant sued in the case at hand. http://www.wcmlaw.com/articles/A-19-07l.pdf Previous Next Contact

News NJ App. Div Interprets &quot;Control Of Affliliate&quot; In Deemer Statute. August 30, 2010 < Back Share to: In Cupido v. Perez, the plaintiff was a resident of Pa. involved in a motor vehicle accident in NJ. Plaintiff selected the full tort option under his personal automobile insurance policy giving him the right to sue for any injuries sustained in a motor vehicle accident. Plaintiff's carrier, Nationwide, was not authorized to transact any motor vehicle insurance business in NJ; however, it controlled 4 affiliated companies which were authorized to transact commercial motor vehicle insurance but not private passenger insurance business in NJ. The issue on appeal was whether the NJ Deemer Statute , N.J.S.A. 17 :28-1.4 applied based on the control of an affiliate company authorized to transact commercial motor vehicle insurance business in NJ. The Appellate Division found that the Deemer Statute applied, and therefore that the plaintiff was subject to the NJ verbal threshold limitations on his right to sue for injuries. Please contact Robert Ball with any questions. http://www.judiciary.state.nj.us/opinions/a4557-08.pdf Previous Next Contact