News Pennsylvania Supreme Court Weighing Bad Faith (PA) November 27, 2019 < Back Share to: Back in April, we noted all eyes were on the PA Supreme Court to further clarify the bad faith standard with respect to insurance coverage in the lawsuit captioned: Berg v. Nationwide Mut. Ins. Co., Inc. On Thursday, November 21, oral arguments were finally held in this matter. During arguments, the PA Supreme Court was asked to consider whether the PA Superior Court abused its discretion by reweighing evidence relied upon by the trial court in its finding of bad faith on the part of an insurance carrier. By way of background, this lawsuit stems from a 1996 car accident involving Sharon Berg which led to well over a decade of litigation between Berg and her automobile insurer. The insurance company chose to send the vehicle for repairs rather than deem it totaled. Berg sued her insurer on the premise that the repairs were defective and the car was no longer crashworthy. One of the hotly contested issues became whether the insurer had, in bad faith, decided to repair the vehicle because it was half the cost of rendering it totaled, although the car was in fact totaled. A Berk’s County jury found almost entirely in favor of the insurer and only found it should pay $295 for violating the Pennsylvania Unfair Trade Practices and Consumer Protection Law. However, the trial judge found bad faith on the part of the insurer and added $18M in punitive damages and $3M in counsel fees to Berg’s verdict. Specifically, the trial judge cited to the insurer’s later decision to deem the car totaled, its failures to disclose information about the vehicle’s condition, abusing the discovery process, and its failure to negotiate in good faith. On appeal, the Superior Court found the evidence relied upon by the trial judge to be unconvincing and reversed the trial court’s verdict. Specifically, it found that there was no evidence that the insurer knew the vehicle was not safe to be put back on the road nor that it acted in bad faith, stating, “The trial court simply ignored a large body of evidence that rendered is finding unsupported.” In addition, the appellate court found bias on the part of the trial judge because of language in the judge’s opinion that appeared to condemn the insurance industry in broad terms. On Thursday, the PA Supreme heard oral arguments after granting Berg’s appeal. It will issue its decision on, among other things, whether the appellate court abused its discretion “by reweighing and disregarding clear and convincing evidence introduced in the trial court upon which the trial court relied to enter a finding of insurance bad faith.” Continue to stay tuned for the PA Supreme Court’s ruling and its impact on PA bad faith litigation. Thank you to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Failure to Prevent Bullying = Liability for Discrimination? September 29, 2011 < Back Share to: Last week New Jersey legislators passed an "Anti-Bullying Bill of Rights." The bill revised the 2002 New Jersey law on harassment, intimidation, and bullying in public schools. According to one legislator, the Bill "makes it clear that preventing and responding to incidents of harassment, intimidation and bullying are not optional." Rather the Bill sets forth specific protocols for investigating, reporting and training necessary to deal with bullying. The question for schools and courts to consider going forward is whether implementation of the protocols and/or the failure to do so, will render the schools liable in discrimination suits commenced by/on behalf of the bullied students. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nj.com/news/index.ssf/2010/11/nj_legislature_sends_anti-bull.html http://www.njleg.state.nj.us/2010/Bills/A3500/3466_S1.PDF Previous Next Contact

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News Criminal Penalties for "Tweeting" Jurors August 12, 2011 < Back Share to: We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge's instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against "any form of electronic or wireless communication." Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A "tweeting juror" in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post. Previous Next Contact

News Pennsylvania Court Holds Auto Carriers Subject To Bad Faith Statute February 15, 2011 < Back Share to: < ![CDATA[Pennsylvania Court Holds Auto Carriers Subject To Bad Faith Statute]]> Previous Next Contact

News In NY, a Tender Requires Support. August 12, 2011 < Back Share to: In Admiral Ins. Co. v. State Farm Fire & Cas. Co., the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows. In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification. On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&K requesting a copy of the file since it had no information on the accident. On March 19, 2004, State Farm sent UCS, plaintiff, P&K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&K’s failure to give prompt notice. Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In affirming the trial court's decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later. The moral of the story is -- if you're pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you're going to be fighting a long legal battle. Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM's coverage practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Reality or Wishful Thinking: Is the Admitted Market About to Get Hammered? February 15, 2011 < Back Share to: The softness of the current insurance market has impacted everyone. One specific way in which it has impacted the E&S market is that admitted carriers (to increase premium intake) have underwritten risks that usually reverted to the E&S market. Some professionals believe that the worm is about to turn as the admitted carriers flee the newly written risks because of bad loss ratios -- http://www.insurancejournal.com/news/national/2011/02/10/184165.htm. The question is -- when? And to that question, no-one knows the answer. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Partner Speaks to Academy of Experts in London. March 23, 2018 < Back Share to: On March 14, 2018, WCM Partner Bob Cosgrove spoke to The Academy of Experts at Gray’s Inn, Inns of Court, London, UK. His presentation was entitled “I’m a Bit of an Expert: The Use of Experts in US Litigation.” The seminar explained the differences between US and UK approaches on experts and how that impacts the ultimate outcomes of litigation. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Spiderman, Spiderman -- Does Whatever a Lawyer Can? February 14, 2011 < Back Share to: The artistic and technical problems of the new Spiderman musical are well-chronicled -- http://www.huffingtonpost.com/2011/02/09/spider-man-reviews_n_820640.html. And, it is certainly a good thing that NY's Labor Law does not apply to actors' falls from heights -- http://abcnews.go.com/Entertainment/wireStory?id=12446206. But, since the odds of some kind of lawsuit ultimately arising are, at least, decent, Saturday Night Live has decided to have some fun -- http://www.nbc.com/saturday-night-live/video/spider-man-lawsuit/1291746/. If only, there wasn't some truth to the absence of professional standards. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News PA Appellate Court Clarifies Insured’s Right to Own Counsel. August 8, 2011 < Back Share to: In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman for false statements made during a local election campaign. Eckman presented the claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a reservation of rights. The ROR noted that intentional acts and punitive damages were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead demanded counsel of its own choosing. When that offer was rejected, Eckman commenced a declaratory judgment action and sought injunctive relief to force Erie to provide Eckman with counsel of Eckman’s choosing. In making its argument, Eckman relied upon admittedly non-binding Pennsylvania case law and suggested that “a conflict of interest is a conflict of interest, exclusive of Pennsylvania case law.” Eckman argued that any attorney selected by an insurer under a reservation of rights, and paid by that insurer, would ipso facto breach his or her obligations to the insured/client. Eckman’s claim was rejected both by the trial court and the Superior Court. In a good result for insurers, the court reasoned that a conflict of interest (such to support the assignment of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with controlling PA precedent and as the court rightfully noted, it is bound to “follow controlling precedent as long as decision has not been overturned by the Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not automatically trigger a right to independent counsel. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Erupting Toilets In Mall Found To Be The Act of God February 15, 2011 < Back Share to: In Abarca v. Clark Shoes, et al., the plaintiff was the manager of a Coach store, located in the Queens Center Mall. In July of 2007, a large storm hit Queens, causing severe flooding within many of the mall's stores. The toilet in the Clark Shoes store, located above the Coach store, erupted, causing severe flooding that leaked down into the Coach store. The plaintiff sustained injuries after slipping on this puddle. The lower court dismissed the claims against the owner of the mall. The Second Department affirmed that decision, finding that the storm was an act of God and that the resulting damage was unforeseeable. Thanks to Georgia G. Stagias for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_00992.htm Previous Next Contact

News SDNY: Suit Alleging Christie’s Misidentification of da Vinci Work Time Barred February 12, 2011 < Back Share to: While the art world is riddled with forgeries and stolen works or art, some dealers may also have to be mindful of the reputable auction houses which display their collections. Last week, District Judge John Koetl of the Southern District of New York, dismissed as time barred an action by Jeanne Marchig, and her charitable trust, against Christie’s -- http://www.courthousenews.com/2011/02/02/DaVinci.pdf The suit alleged that Christie's negligently failed to identify her piece of art as a valuable drawing done by Leonardo da Vinci. The relevant facts are as follows. Jeanne Marchig approached the London location of the famed auction house seeking to consign and auction off a drawing she believed was composed by a late-Renaissance Italian painter. Christie’s resident old master drawing’s expert examined the piece and set an estimated value of $12,000-15,000. In January 1998, it ultimately sold at auction for $22,000. More than 11 years later, in July 2009, Marchig was approached by other experts in the art world who believed her previously sold drawing was actually the work of da Vinci, and could be valued as high as $100 million. Marchig brought an action against Christie’s claiming the auction house had been careless and failed to properly investigate her drawing. While both sides engaged experts to determine the authenticity and true origin of the work, Christie’s moved to bar the claims as untimely, alleging the applicable statute of limitations (3 years – negligence, breach of fiduciary duty and 6 years – negligent appraisal) had long since expired. Judge Koetl agreed and dismissed the action as too much time had passed between the appraisal in question and the suit. Special thanks to Chris O'Leary for his contributions to this post. For more information about it, or WCM's fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact