News Fore! Was the Swing Foreseeable? (NY) July 16, 2020 < Back Share to: In Carpaneto v. Middle Bay Golf Club, the Appellate Division, Second Department addressed whether the defendant, Middle Bay Golf Club, satisfied its duty of supervision over the children it was charged with training. Plaintiff, seven years old, participated in Junior Golf Day at the defendant’s club. Plaintiff was part of a group of children at the club’s chipping station where there were two instructors assigned - one oversaw the children hitting the ball, the other was 30 yards away. After each child would practice chipping the ball, they would then go to another line away from the green. Plaintiff’s father testified that as plaintiff was running behind another child going from the chipping station to the other line, the other child swung his club and struck plaintiff in the face. Defendant's summary judgment motion was granted and plaintiff appealed. The Appellate Division affirmed the decision, stating: “An entity to whom the custody of a child is entrusted has a duty to adequately supervise children in its charge and may be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” The Court held that the defendant golf club submitted evidence proving that they adequately supervised the plaintiff and that “….the accident occurred abruptly, and in so short a span of time that even the most intense supervision could not have prevented it, any lack of supervision is not the proximate cause of the injury….” As such, the defendants were granted summary judgment dismissing the plaintiff’s complaint. This decision serves as a reminder that when supervising children that you must have a strict system in place, as the key to successfully dismissing a complaint lays with the foreseeability of the incident. The stricter the supervision, the more likely a Court will hold that an entity adequately foresaw all possible events and thus adequately supervised the children in its charge. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Court Rejects Jeweler's Fragile Argument Against Brinks February 8, 2012 < Back Share to: Anyone dealing in the world of jewelry, fine art, or specie is all too aware of the limitation of liability clauses that appear in shipping contracts. That issue was front and center in a recent appellate court decision in New York, Maxine v. Brinks. Plaintiff, a jewelry retailer, used Brinks to ship 157 “ornate pieces of handmade jewelry” from plaintiff's New York City facility to a department store in Virginia. The items were contained in a soft-sided rolling suitcase, and the airbill listed a declared value of $2 million. The retail value, according to invoices, was more than $6,000,000, with a wholesale value about half that amount. While in transport, the shipment was damaged, and plaintiff’s claim was over $600,000. In the trial court, Brinks was awarded summary judgment and the complaint was dismissed. The airbill contained a provision limiting Brink’s liability to lost shipments, unless specific items were identified and their values declared – which would have required plaintiff to pay additional charges for the shipment. On appeal, plaintiff claimed that the limitation of liability was ambiguous, because it required identification of a “fragile” item -- a term not defined anywhere in the Brink’s airbill. But in its decision, the appellate court pointed out that plaintiff was unable to overcome the other provision in the airbill that excluded breakage for jewelry. Specifically, the provision excluded “BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles…” Plaintiff tried to claim that provision was buried in small print and was also ambiguous because it lumped together a number of items in an unclear manner, and appeared to only apply to breakage of “fragile jewelry” or certain decorative items. But the Court rejected plaintiff’s claims, finding that the list clearly excluded the enumerated items, including jewelry, and that a definition for fragile only needed to be applied if an item was not specifically listed. Thus, the trial court’s decision to dismiss the complaint was upheld. If you would like more information about this case, please write to mbono@wcmlaw.com .     Previous Next Contact

News PA Superior Court addresses effectiveness of recreational liability waiver. September 21, 2007 < Back Share to: Court in Wang v. Whitehall upholds release because of plaintiff's particularized statement of intent to release resort from liability resulting from risks inherent to snow-boarding. Decision from PA Supreme Court on this very issue is expected this fall. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News Warm Wishes From Our WCM Family To Yours December 23, 2016 < Back Share to: As 2016 draws to a close, WCM would like to wish you and yours a very happy holiday season and a healthy and joyful New Year!       Previous Next Contact

News Three Strikes and You’re Out on Coverage: COVID-19 Business Interruption Claim Fails (PA) December 18, 2020 < Back Share to: Of course, COVID-19 and accompanying shutdown orders impact on business interruption claims are still among the most pressing issues facing the courts. In Toppers Salon & Health Spa Inc v Travelers Property Casualty Company of America, the Eastern District of Pennsylvania has provided one of the most definitive answers on the issue with its rejection of an insured’s business interruption claim. Plaintiff Toppers operates a chain of day spas in Pennsylvania, New Jersey, and Delaware, all of which have been affected by government mandated shutdown orders. Toppers’ insurance policy covers interruption to its business which includes business income coverage and civil authority coverage. The key provision in the policy here is that it covers loss “due to the necessary suspension of your ‘operations’ during the ‘period of restoration,’” if the suspension was “caused by direct physical loss of or damage to property at [the insured's] premises.” “The ‘Civil Authority’ provision covers loss of Business Income and extra expenses incurred due to damage to property other than property at the insured's premises, when as a result of ‘dangerous physical conditions,’ a civil authority's actions prohibit access to both the insured's premises and the area immediately surrounding the damaged property.” The Court held that neither of these provisions applied in this case deciding that being forced to close as a result of the shutdown orders was not a “physical loss.” The language the Court primarily focused on was the period for which the policy would reimburse a loss. The policy provided that this period ended on the “date when the property at the described premises should be repaired, rebuilt or replaced.” The Court opined that for this language to make sense, a physical loss must have occurred to be repaired, and the shutdown order did not meet this definition. The Court believed the policy language demonstrated the intent of the parties that any loss must be some sort of physical damage. The Civil Authority coverage did not apply because, similarly, a physical loss had not occurred to neighboring property. The Court also looked at the specific Virus Exclusion holding Plaintiff would also lose its claim for coverage because of its plain language as well. The Virus Exclusion applies to “loss or damage caused by or resulting from any virus ... that induces or is capable of inducing physical distress, illness or disease.” The Court held that, “The language is not ambiguous, and it applies to Covid-19, which is caused by a coronavirus that causes physical illness and distress.” The Court held that similar language was held to exclude coverage in South Dakota and California. This opinion is one of the strongest yet to deny coverage for businesses forced to close due to government shutdown orders during the COVID-19 pandemic. A clear Virus Exclusion is one way for insurance companies to be sure that they will not be required to cover for these types of losses, but this Court went further, holding that COVID-19 is not a physical loss that could be covered by a business interruption or civil authority coverage. While courts will still wrestle for the time being as to how exactly COVID-19 and insurance overlap, this Court strongly casted its vote in favor of the lack of coverage camp. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Graves Amendment Immunity Denied To Auto Company If Liability Not Completely Based On Ownership (PA) March 10, 2023 < Back Share to: In the recent case of Burns v. Shama Express LLC, The United States District Court for the Western District of Pennsylvania found the Graves Amendment to the Safe, Accountable Flexible and Efficient Transportation Equity Action of 2004 is inapplicable when the liability attempting to be placed on an automobile company is grounded, even in part, in any basis other than ownership. Burns involves an automobile-trucking collision resulting in death of Plaintiff for negligence and negligent infliction of emotional distress, under Pennsylvania’s Wrongful Death and Survival Acts. Bowman owned the subject-truck that allegedly caused the accident. Plaintiff alleged, in part, that Bowman through its “employees, servants, or agents,” breached its duty, as the owner and operator of the subject-truck, “to be alert and maintain control of the vehicle,” and that Bowman negligently trained its truck operators. Bowman filed a Motion to Dismiss arguing that its only involvement in the underlying events was that it leased the subject-truck, months before the incident took place, and was therefore immune from vicarious liability under the Graves Amendment. The Graves Amendment provides: (a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if— (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C. § 30106. The magistrate determined that “[b]ecause plaintiff had sufficiently alleged, at this initial stage, that Bowman was negligent, the Graves Amendment cannot serve as a basis for immunity.” The court ultimately adopted the magistrate’s Report and Recommendation and dismissed the Motion to Dismiss. Burns is a cautionary tale for defendants engaged in the trade or business of renting or leasing motor vehicles. It makes clear that Graves Amendment immunity from liability is only applicable to liability grounded exclusively in ownership; on the other hand, vehicle owners who themselves, or through agents, engage in negligence, are not protected by the Amendment. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News When is a House your Home? This Answer Will Cost Insurers in Pennsylvania October 23, 2020 < Back Share to: In Erie Ins. Exch. v. Montesano, the Montgomery County Court of Common Pleas heard an issue of first impression in deciding who was covered under “physically living” with another “on a regular basis” language in an auto insurance policy. Christiana Montesano was a 19-year-old girl who lived in her father’s Boyertown, Pennsylvania home. Her father and mother divorced when she was young and Christiana would typically spend approximately five weeks out of the year with her mother in Florida. After an incident between her and father/stepmother, Christiana boarded a flight to Florida and moved in with her mother for about one month. During that time, she changed her voter registration to Florida. Christiana the again packed up and settled in with her grandparents in Alabama for two months. Again, Christiana changed her driver’s license and voter registration to Alabama while also starting a seasonal job. The family then all agreed Christiana was to come back to Boyertown, her father’s residence. However, before Christiana could return to Boyertown, she was involved in a motor vehicle accident as a passenger with her sister driving. Christiana was injured and Christiana’s mother was killed. The Montesanos sought coverage under the auto insurance policy issued to Christiana’s father, Anthony and stepmother, Donna. The case of first impression required the Court to determine what “physically living” with another “on a regular basis” meant. Judge Thomas Rogers issued a declaratory judgement that the Erie Policy issued to Christiana’s father covered her, specifically holding “Christiana had physically lived in the Boyertown home for 19 years before hastily departing with a carryon bag and a few clothes, shoes, and toiletries and leaving behind all her worldly possessions.” Judge Rogers’ concluded that Christiana was a guest in the home of both her mother and grandparents and that her stays were sporadic and temporary. To add additional weight to this outcome, the Court considered the fact that, “Christiana was making her way from her grandmother’s home to her home in Boyertown at the time of the accident.” The impact of this case, of course, is that while an individual may not currently be “physically living” within the policyholder’s home at the time of loss, a court may look to numerous factors to determine what “on a regular basis” means, including a look at the totality of the facts. This decision certainly increases risk to auto insurance companies by increasing the amount of people that may be covered under the policy. More questions of fact will be litigated on coverage issues and it will also increase litigation costs. Who lives where is a question that appears to be changing daily. This decision will certainly involve judicial reviews over other factual scenarios such as the teen runaway, the college student, and even more prescient issues such as COVID-19 impact? This ruling’s application under the present climate opens the door for complicated factual analyses as to who “physically resides” where and what a “regular basis” is under the policy. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

Saara Arshid Associate New York sarshid@wcmlaw.com (332) 345-2176 Professional Experience Saara Arshid works as an Associate in WCM’s New York office, where she focuses her practice on civil defense litigation, including premises liability and general liability matters. Her experience in both criminal and civil defense has provided her with significant courtroom experience and a practical approach to litigation. Prior to joining WCM, Saara practiced insurance defense, representing clients in a variety of general liability matters. She began her legal career with The Legal Aid Society in New York City, where she represented clients charged with misdemeanors and felonies from arraignment through trial. Her practice included litigating suppression and discovery issues, conducting hearings and trials, and representing clients in matters involving a wide range of criminal charges. During law school, Saara was a member of the Defenders Clinic, where she worked on clemency and compassionate release matters, selected as a Public Interest Fellow by the South Asian Bar Association of New York, and interned with The Legal Aid Society’s Homicide Defense Task Force. Honors and Distinctions South Asian Bar Association of New York (SABANY) Public Interest Fellow (2022) CUNY School of Law Public Interest Grant Recipient (2021) Jewish Foundation for Education of Women (JFEW) Eleanor Roosevelt Scholar, Roosevelt House Public Policy Institute (2016 – 2018) News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., CUNY School of Law CUNY Hunter College B.A. in Political Science and Sociology Certificate in Public Policy Bar Admissions New York

News Call Your Next Witness - The 15 Commandments of Billing February 4, 2010 < Back Share to: What better topic to discuss during these hot Summer months than effective legal billing! Georgia and Brian recently compiled "The 5 Commandments of Billing," and with new associates starting at firms across the United States after Labor Day weekend, we opted to commit our 15 Commandments to the podcast. Link to the episode is here. The goal of this episode is to focus on the skill of billing -- and it is a skill -- in order to maximize the recovery on the work we do as attorneys. Much like insurance, legal billing is an area that law school ignores completely, but is essential for the majority of attorneys to master. If you'd like a pdf of the 15 Commandments of Billing, or are interested in being a guest on the podcast, please email Brian Gibbons or Georgia Coats Previous Next Contact

News Threshold" motions still difficult to win in Second Department (NY) February 21, 2013 < Back Share to: The dreaded "90/180 day rule" is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff's injury is not "serious" enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident. Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants' doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs' doctors. In Calcano v. Rodriguez, a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant's doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident. The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury. Special thanks Brian Gibbons for his contributions to this post. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News No More Happy Meals – Court Finds Affirmative Duty For Franchise Restaurant To Protect Invitees From Third-Party Harm September 2, 2022 < Back Share to: In a recent presidential opinion by the Pennsylvania Superior Court in Massaro v. McDonald's Corp., 2022 Pa. Super. Lexis 320, 2022 WL 3036753 (Aug. 2, 2022), the court provided clarity on the affirmative duty of a property owner to protect a business invitee from intentional harmful acts of a third party. In Massaro, plaintiff, Thomas Massaro (“Plaintiff”) was assaulted by an allegedly mentally ill homeless man while tutoring a student at a busy McDonald’s in Philadelphia, Pennsylvania. The third-party assailant, Bryant Gordon (“Assailant”) began making virulent and hateful statements towards Plaintiff for nearly an hour, ultimately threatening to kill him when he left the property. Numerous McDonald’s employees observed the interaction and when asked to call 911, refused. When Plaintiff left McDonald’s in search of police aid and was followed by Assailant, Plaintiff had a heart attack and nearly died. It is alleged that Assailant had a history of provoking customers at the property which McDonald’s was likewise alleged to have full knowledge of. Naturally, Plaintiff filed a complaint in the Philadelphia Court of Common Pleas raising claims of negligence against McDonald’s for failing to take reasonable steps to protect him from the Assailant. The trial court granted McDonald’s preliminary objections finding that McDonald’s had no duty through a public policy analysis because Plaintiff was aware of the danger and voluntarily remained in the premise, assuming the risk of assault, and that it would have been unreasonable for McDonald’s to have intervened. Being that assumption of the risk can only be raised once duty is established, Plaintiff appealed this conflicting ruling to the Pennsylvania Superior Court, who ultimately reversed. Essentially, the Superior Court held that McDonald’s affirmative duty to protect a business invitee from intentional harmful acts of third parties was clearly established, at the pleadings stage. Thus, the issue was whether he had assumed the risk of harm by remaining in McDonald’s subjecting himself to the increased likelihood of harm. Considering it would have been more dangerous for Plaintiff to leave McDonald’s, he did not willfully remain on the property warranting assumption of the risk. Importantly, the court held that it is unnecessary to conduct a full-blown public policy duty assessment whenever a longstanding duty imposed arises in a novel factual scenario. Here, the Court largely determined that McDonald’s, at a bare minimum, possessed a duty to call the police after witnessing the interaction and constant requests from the plaintiff to call the police. Massaro acts as a reminder to business owners that minimal intervention is sufficient to satisfy their well-established affirmative duty to protect business invitees from third-party tortfeasors, irrespective of novel circumstances. Thanks to Kendal Hutchings for her contribution to this article. Should you have questions, contact Matthew Care. Previous Next Contact

Maria E. Dalmanieras Partner Florida mdalmanieras@wcmlaw.com Professional Experience Maria is a Board Certified Trial attorney by the Florida Bar. Her practice focuses in the areas of personal injury and insurance defense litigation, including construction litigation, premises liability, auto liability, products liability, legal malpractice, wrongful death litigation, indemnification, subrogation claims, first party insurance claims, and medical malpractice. She has successfully obtained numerous defense verdicts for her clients during her almost twenty years of practice and is well respected within the legal community as a trial lawyer. Honors and Distinctions While in law school, Maria was the Community Outreach Chairperson for Miami Law Women, and she was an editor for the law school newspaper, Res Ipsa Loquitur. Professional Activities Maria is a member of the Florida Bar. Publications News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Miami School of Law B.A., College of Holy Cross Bar Admissions Florida Court Admissions Southern District of Florida United States Supreme Court