News Pennsylvania Weighs in on GPS Driving. August 30, 2013 < Back Share to: This appears to be the season for decisions on distracted driving. In Rockwell v. Knott, et al., a case of first impression, a Pennsylvania trial court was faced with the question of whether an individual who was involved in a car accident while looking at a GPS (or sat-nav for our friends across the pond) screen, can be liable for punitive damages. In a lengthy 20 page decision (which is quite unusual for Pennsylvania), Judge Terrence Nealon of the Lackawanna County trial court ruled that the answer is “maybe.” While denying the request for punitive damages in the case before him, Judge Nealon wrote that “a motorist’s use of a GPS device may, or may not, cause distracted driving depending upon the type and placement of the GPS device and the concomitant operation of the vehicle….[In making that decision, the court must look at] the position of the GPS device, the extent of the driver’s distraction and the distance travelled by the vehicle during that period of diversion.” Judge Nealon noted that if distracted driving evidence was produced, a jury would get to decide whether that distraction constituted reckless indifference such that an award of punitive damages was appropriate. Just something else to worry about as our reliance on technology in cars ever increases. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News U.S. Supreme Court Re-Writes the Rules of Personal Jurisdiction in Mallory v. Norfolk Southern Railway Co. July 14, 2023 < Back Share to: Perhaps overshadowed by landmark opinions in other areas, the U.S. Supreme Court’s recent 5-4 decision concerning personal jurisdiction in Mallory v. Norfolk may dramatically impact the nature of civil litigation against out-of-state defendants across the nation. Personal jurisdiction refers to a court’s power to hear a claim against a certain entity. Generally, plaintiffs in civil claims can establish personal jurisdiction over a defendant if: (1) the defendant is “at home” in the forum state meaning they are incorporated or headquartered there (referred to as “general” jurisdiction); or (2) the defendant has “minimum contacts” with the state such that defending would not threaten “traditional notions of fair play and justice,” referred to as “specific” jurisdiction. However, Mallory upheld a Pennsylvania law that requires any entity registering to do business in the state to consent to the general jurisdiction of the state’s courts, potentially subjecting businesses to general jurisdiction in any state where it registers to do business. In Mallory, the plaintiff worked as a freight mechanic with Norfolk Southern Railway Co. (“Norfolk”) in Ohio and Virginia for twenty years, and then briefly moved to Pennsylvania until his diagnosis with cancer. After moving back to Virginia, Mallory sued Norfolk for alleged workplace injuries in Pennsylvania court. In response, Norfolk argued the court lacked personal jurisdiction because Norfolk was not headquartered or incorporated in Pennsylvania and did not have sufficient contacts with the state. Norfolk also argued that the consent statute violated the Due Process Clause and that the U.S. Supreme Court’s decision in Pennsylvania Fire Insurance Co. v. Gold Issue Mining and Milling Company, 243 U.S. 93 (1917), which found that a similar statute did not violate due process, had been overruled by subsequent cases addressing personal jurisdiction. The Supreme Court of Pennsylvania agreed with Norfolk and held that the statute was unconstitutional. The U.S. Supreme Court majority disagreed, finding that the Due Process Clause does not prohibit states from requiring an out-of-state corporation to consent to being sued as a condition of doing business in the state. The Court found that it was irrelevant that Mr. Mallory no longer lived in Pennsylvania and was likely injured in Virginia and Ohio; instead, the Court acknowledged that entities like Norfolk can statutorily consent to jurisdiction by registering to do business in a state. The Court also found that the Pennsylvania Fire case had not been overruled and was controlling precedent. While some fear that the Mallory decision will allow plaintiffs to engage in “litigation tourism” and “forum shopping,” others predict that it may be subject to challenge. Three members of the Court joined Justice Barrett in dissent, opining that Pennsylvania’s registration law violates the Due Process Clause while Justice Alito noted in his concurrence that the law also raises Dormant Commerce Clause concerns. That issue was not addressed in the decision and may form the basis for a subsequent challenge. Nonetheless, the decision will likely result in other states passing similar laws and expand the ability of states to obtain general jurisdiction over foreign and domestic companies doing business in multiple states. Thank you to Nicholas Ozorowski for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News NY App. Div.: "As Is" Condition Defeats Products Liability Claim November 20, 2009 < Back Share to: One policy underlying products liability law is to shift responsibility where it seems most just when a product causes physical injury. The choices are few, with the law generally titling in favor of the injured party as opposed to a product manufacturer. In Meyer v. Alex Lyon & Son, plaintiff purchased a man lift at an auction on an "as is" basis for use at work. After picking up the lift, he brought it to an equipment company for service and inspection, aware that it was not safe for use. Before that company could complete its inspection, plaintiff took possession of the lift. Ever the careful company, the inspector obtained a written assurance that plaintiff understood the dangerous condition of the equipment and required that he sign a hold harmless agreeement before the lift was released. Plaintiff took the lift and used it for two days at work without incident. But as [bad] luck would have it, he was injured in a fall after the lift failed at his home. Not short on chutzpah, he sued the product manufacturer, the auctioneer and service company seeking recovery based on strict products liability, breach of warranty and negligence. Citing the plaintiff's explicit knowledge of the product's defect, the Appellate Division upheld the dismissal of plaintiff's complaint. Plaintiff was aware of the dangerous state of the lift and was in the best position to avoid his own injuries. Every now and then, common sense prevails...even in the law. If you have any questions about this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08484.htm Previous Next Contact

News Student Driver Not Liable To Road Test Inspector January 7, 2008 < Back Share to: In Yetemian v. Vega, the Supreme Court, Queens County denied a road test operator's application for summary judgment against his student driver following a motor vehicle accident that occurred when the student driver lost control of the vehicle during a driving test. The court ruled that the plaintiff inspector, a licensed operator, knew that the defendant was unlicensed and was aware of the dangers of driving with an unskilled driver and, thereby, assumed the risk of such an accident occurring. New York Law Journal, Jan. 7, 2008, p. 17. Previous Next Contact

News Inspection Work Not Applicable Under Labor Law Statute (NY) August 25, 2023 < Back Share to: In Lauria v. Lippolis Constr., Inc., 2023 NY Slip Op 04374 (2nd Dept. 2023), a building inspector working for the Village of Port Washington was on a construction site. He lowered himself into an open excavation and then tripped and fell while inside the excavation. He subsequently filed suit against the property owner and general contractor under Labor Law Sections 200, 240(1), and 241(6). The defendants eventually filed their motion for summary judgment arguing plaintiff had no relief under Labor Law §§ 200, 240(1), and 241(6) because he was not an employee at the time of the accident. The trial judge granted the motion and the plaintiff appealed. The Second Department reasoned that in order to obtain relief under Labor Law §§ 200, 240(1), and 241(6), a plaintiff must first prove he was permitted to work on a building or structure and that he was hired by a either the owner, general contractor or a subcontractor. The Court also felt that whether inspection work falls within the umbrella of the Labor Law must be determined on a case-by-case basis, depending on the type of inspection work. The deposition testimony and evidence showed that neither the plaintiff nor his employer, the Village of Port Washington, had been hired to do any work on the construction site, and that the plaintiff was only performing a visual inspection of the excavation after the property had already been fully excavated. This case provides insight into a small caveat of Labor Law, which excludes an inspector, or someone of that profession, not hired by the property owner, general contractor or a subcontractor, who comes on to the construction site and is injured as a result of his work there. The distinction falls on whether an inspector is a “covered” person under Labor Law §§ 240 (1) and 241 (6) if “his inspections were essential, ongoing, and more than mere observation" (Dubin v S. DiFazio & Sons Constr., Inc., 34 AD3d at 627; see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]; cf. Martinez v City of New York, 93 NY2d 322 [1999]). Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News First Department Denies Defendant's &quot;Threshold Motion&quot; Due to Untimely IME? January 25, 2011 < Back Share to: In Quinones v. Ksieniewicz, the First Department modified the decision of New York County Supreme Court, which had granted defendant's "threshold" summary judgment motion. Plaintiff' underwent an IME, which demonstrated no "permanent consequential limitation of use". Plaintiff then failed to raise a triable issue of fact in opposition to defendant's motion. The First Department noted, however, that defendants failed to prove that plaintiff did not sustain a non-permanent injury for 90 of the 180 days immediately following the accident. The Court notes that the medical reports relied upon by defendants are dated approximately 2 years after the accident, as opposed to the six months immediately following the accident. The Court implies, then, that if plaintiff's medical reports are dated later than 6 months after the date of loss, no defendant can meet their burden of demonstrating that plaintiff did not sustain a non-permanent injury. This is troubling, because the statute of limitations for negligence, the most common cause of action in auto accidents, is three years. A plaintiff could conceivably wait a year to bring suit, thereby rendering a defendant's threshold motion moot, at least as to a non-permanent injury. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00270.htm Previous Next Contact

News PA Superior Court -- Insurers Cannot Recover Defense Fees Absent Express Contractual Provision. May 9, 2008 < Back Share to: In the case of American and Foreign Insurance Company, et. al. v. Jerry’s Sport Center (2008 PA Super 94), the defendant Jerry's Sport Center was a PA based firearm distributor. In June 2000, the NAACP sued Jerry's Sports for negligently distributing handguns that were then used to commit crimes. At all times relevant to the suit, Jerry's was insured by Royal Insurance. Upon receipt of the claim, Royal agreed to defend Jerry's but reserved on the issue of indemnity. The ROR also noted that Royal retained the right to recover defense fees if a court determined that the Royal policy did not provide coverage to Jerry's for the NAACP suit. Ultimately, Royal was able to obtain a judgment that its policy did not provide coverage to Jerry's. It then sought (and successfully obtained at the trial level) a judgment requiring Jerry's to reimburse Royal for paid defense fees. Jerry's appealed and the Superior Court got the case. The Superior Court reversed the trial court and held that Jerry's was not required to reimburse Royal. In reaching its decision (which was a case of first impression for a PA appellate court), the Superior Court analyzed the majority view (which holds that there is a “a right of reimbursement based on the existence of an implied contract between the insurer and its insured created through a reservation of rights letter”) and the minority view (which holds that reimbursement is only possible if there is a “specific reimbursement clause in the Policy”). The Court sided with the minority view and held that if “an insurer wishes to retain its right to seek reimbursement of defense costs in the event it later is determined that the underlying claim is not covered by the policy, the insurer is free to include such a term in its insurance contract.” http://www.courts.state.pa.us/OpPosting/Superior/out/a02040_08.pdf Previous Next Contact

News Taut Tape Injury Not Within the Ambit of Labor Law 240(1) December 6, 2018 < Back Share to: In Garcia v. DPA Wallace Avenue I, LLC, et al., the First Department reaffirmed the lower court’s decision, awarding DPA Wallace summary judgment, and denying plaintiff’s cross motion for summary judgment on the issue of liability on his Labor Law §§ 240(1) and 241-a claims. Garcia, an elevator mechanic, was preparing to dismantle components of an elevator when the "selector tape," a thin strip of metal, broke and "snapped" upwards, cutting his hand. Garcia creatively argued that the tension put on the tape was created by a gravitational force from a weight in the overhead room, which essentially acted as a counterweight to keep the tape taut. The First Department rejected plaintiff’s argument, noting that the object upon which the force of gravity was applied -- the weight in the overhead room -- was not material being hoisted, nor was it a load requiring securing for plaintiff’s work. Thus, the snapping of the tape was not the result of the gravitational pull, necessary to put the case within the ambit of Labor Law 240(1). The First Department also upheld the dismissal of the Labor Law § 241(6) and Labor Law § 241-a claims since plaintiff was not subject to the overhead hazard of falling objects. While the courts have continually expanded the breadth of Labor Law 240(1), this case reinforces that plaintiffs must prove that their resultant injury stems from a true gravity-related hazard.   Previous Next Contact

Nishall N. Jairam Counsel Florida njairam@wcmlaw.com 561 231 2684 Professional Experience As a seasoned insurance attorney with more than two decades of experience, Nishall represents insurers in first‑party property and complex insurance matters. Over the course of his career, Nishall has handled cases from their initial stages through final resolution, developing a reputation for steadiness under pressure and meticulous in execution. His practice encompasses residential and commercial property claims, assignment‑of‑benefits disputes, coverage issues, and high‑exposure litigation, requiring both legal precision and practical problem‑solving. Throughout his career, Nishall has worked closely with claims professionals, consultants, and experts, valuing collaboration as an essential part of effective advocacy. He understands that insurance litigation is not just about winning motions or defending depositions, but about managing risk, controlling costs, and aligning legal strategy with business objectives. His approach emphasizes clear communication, realistic evaluations of exposure, and measured decision‑making. Qualities that reflect his belief that patience, when paired with experience, leads to sound judgment. What distinguishes Nishall is his ability to remain composed and focused even in contentious, high‑stakes environments. He brings a balanced perspective shaped by years of courtroom experience, negotiations, and client counseling. Rather than reacting to conflict, he approaches each matter with patience and foresight, understanding that the best outcomes often come from restraint, preparation, and timing. Outside of the technical aspects of the law, Nishall views his work as a responsibility to bring clarity to complex situations. Whether advising on litigation strategy, evaluating coverage issues, or resolving disputes, he strives to be a steady presence for clients navigating uncertainty. His career reflects a commitment to professionalism, integrity, and the belief that patience—applied consistently over time—is not only a virtue, but a lasting advantage. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., St. John’s University School of Law B.S. in Management, St. John’s University, cum laude Bar Admissions Florida

News Court Finds No Defense Duty Due to Damage Claim (NY) December 13, 2013 < Back Share to: When evaluating whether a lawsuit against an insured triggers a duty to defend, insurers often focus on the complaint's factual allegations of liability. Recently, in Certain Underwriters at Lloyd’s London Subscribing to Policy Number SYN-1000263 v. Lacher & Lovell-Taylor, it was determined that the damages alleged in the underlying action brought the claim outside of the scope of coverage of the professional liability policy issued by the plaintiffs. The Appellate Division, First Department upheld the trial court’s award of summary judgment declaring that the insurer was not obligated to defend or indemnify the defendants in the underlying estate proceeding, and also granted summary judgment on its cause of action for reimbursement of its defense costs. The complaint in the underlying action claimed that the defendants overbilled their client in the underlying estate proceeding, but they never alleged facts which would have shown that if not for their negligence, they would have obtained a better result. The Court also focused on the fact that a damage claim for the return of legal fees is not a claim for “damages” in a legal malpractice action as defined by the professional liability policy the insurers issued. Based on the court’s determination that the insurer did not owe an obligation to defend and indemnify, it is important that insurers evaluate not only the facts of the event which give rise to potential liability for a claim, but also the damages sought, in order to determine whether there is an obligation to provide coverage. Thanks to Jorgelina Foglietta for her contribution to this post. Previous Next Contact

News Labor Law in the Time of COVID-19 (NY) April 17, 2020 < Back Share to: Will plaintiffs be able to pursue claims under the New York Labor Law if they contracted COVID-19 and developed serious complications after working at a construction job site? Although it is highly likely the plaintiff’s bar will attempt to use Labor Law §200 or §241(6) to make out violations against owners and general contractors for these types of claims, it is unclear if these attempts will ultimately be successful. With regard to Labor Law §241(6), plaintiffs will likely cite violations of the following two Industrial Code provisions: §23-1.7(g), which requires employers to test “unventilated confined areas” for dangerous air contaminants prior to permitting workers to work in that area; or §12-1.4, which bans employers from permitting workers to work in a room “in which there exist dangerous air contaminants.” However, we suspect, the majority of coronavirus Labor Law claims are likely to fall under Labor Law §200 or common law negligence claims, which would require plaintiffs to show that the owner or general contractor had notice of an unsafe condition. It is arguable whether the New York State and New York City directives to avoid non-essential work due to the coronavirus would constitute “notice of an unsafe condition.” Given the dearth of direct case law, we expect plaintiffs to turn to somewhat analogous case law involving employees infected with HIV or Swine Flu (Wiener v. City of New York, 939 N.Y.S.2d 745 (Sup. Ct. Qns. Cty. 2011)), or case law relating post 9/11 asbestos remediation work in New York City. In one such case, the First Department addressed the two Industrial Code sections discussed above and held that, where §23-1.7 was inapplicable, §12-1.4 alone was not sufficiently specific to support a cause of action under Labor Law §241(6). See Kagen v. BFT One Liberty Plaza, 62 A.D.3d 531 (1st Dep’t 2009). Thus, while it appears there are likely several arguments plaintiffs may attempt to raise in connection with the New York Labor Law, the ultimate success of these arguments may be limited, at least, for now. However, as this likely will be a highly litigated area, we will continue to keep you updated as new case law emerges. Thanks to Shira Straus for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Slip Slidin’ Away – Student’s Fracture Occurred too Quickly for School to React (NY) July 28, 2016 < Back Share to: In Elbadwi v Saugerties Cent. Sch. Dist, the Third Department recently discussed the standard of care that schools must exercise to prevent children from being injured by snow and ice. Plaintiff, a 10-year-old student attending Cahill Elementary, she slipped and fell on any icy surface in December 2012 on the school’s playground during recess. On the day of plaintiff’s injury, the school’s lunch monitor expressly told all students, including plaintiff, that they had to remain in a specific area of the blacktop during recess. According to the lunch monitor, the students were told that they could not walk onto the actual playground, as its rubber surface was icy and all the equipment was covered with snow. Less than a minute after recess began, the plaintiff claimed that, in order to avoid colliding with another classmate, she jumped onto a slide on the playground, slipped, and fractured her upper left arm. The infant plaintiff and her mother brought suit against the Cahill Elementary school district for 1) failing to maintain its property in a reasonably safe condition and 2), negligently supervising the infant plaintiff. After completing discovery, the defendant moved for summary judgment dismissing plaintiff’s complaint. The Supreme Court granted defendant’s motion as to the negligent supervision claim, but denied the portion of defendant’s motion seeking to dismiss the premises liability claim. According to the Supreme Court, there were questions of fact that precluded summary judgment regarding whether the defendant maintained the playground in a reasonably safe condition. The parties cross-appealed. The Appellate Division, Third Department, held that the complaint should have been dismissed in its entirety. In terms of plaintiff’s negligent supervision claim, the Court noted that while schools have a duty to adequately supervise children in their care, they are not “insurers of their students’ safety.” Instead, schools are charged with the same degree of care that would be exercised by a reasonably prudent parent in similar circumstances, and when a child’s accident occurs in such a short period of time that “even the most intense supervision could not have prevented it, lack of supervision is not the proximate [cause] of the injury,” and summary judgment is warranted. In the case at bar, the defendant’s expert, an experienced school administrator, argued that the ratio of students-to-monitors was sufficient to provide proper supervision and that the lunch monitor provided reasonable supervision to the plaintiff on the day in question. Even more important to the Court was the infant plaintiff’s own testimony. According to the infant plaintiff, as soon as the doors opened for recess, she and two friends ran toward the playground. When her friends turned to play kickball on the blacktop, she kept running toward the playground. Her friends called out her name, she turned, and when she “wasn’t paying attention” nearly collided with another classmate. To avoid the classmate, she swerved toward the playground equipment only to realize that she was about to trip over the slide. On instinct, she jumped up to avoid tripping, landed on the icy slide, slipped, and broke her arm. Because the plaintiff confirmed that “no amount of supervision” could have prevented her injury in such a short period, the Third Department affirmed the Supreme Court’s dismissal of plaintiff’s negligent supervision claim. With regards to plaintiff’s premises liability claim, the Third Department reversed the Supreme Court. According to the defendants’ expert, because the plaintiff was expressly instructed not to use the playground or playground equipment, the school had no duty to clear that area of snow. Further, it would have been “nearly impossible” to remove all the snow the rubberized playground surface. In response, the plaintiff failed to provide their own expert or submit any evidence sufficient to raise a question of fact as to the defendant’s obligations to remove snow from the playground. Instead, the plaintiff only provided a bare assertion that the school was required to remove snow and ice from the playground. The Court concluded that, even if plaintiff submitted sufficient evidence to raise a question of fact, the plaintiff’s injury were likely the result of her own inattentiveness, not the condition of the slide. Please note the importance of the appropriate experts in the defendants prevailing on both causes of action. Without them, this case would have found itself before a potentially sympathetic jury. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact