News United States Supreme Court Rejects Attempt To Upset WCM's Win In $25 Million Art Loss December 9, 2013 < Back Share to: On November 6, 2013, in Renaissance Art Investors, LLC (“RAI”) v. AXA Art Insurance Corp., the United States Supreme Court denied RAI’s petition for a Writ of Certiorari, bringing to a close a coverage battle that stemmed from the collapse of the Salander O’Reilly Art Gallery. In March 2010, the now infamous art dealer Larry Salander pleaded guilty to a $120 million fraud scheme, admitting to stealing numerous works of art. Renaissance Art Investors LLC claimed that it was entitled to coverage for Salander’s theft of approximately $25 million in artwork under insurance policies issued by AXA Art Insurance Corporation. RAI consigned its artwork to Salander, a principal of RAI, and the Salander O’Reilly Galleries LLC, a member of RAI. Ultimately, Salander and the Gallery betrayed RAI, stealing artwork valued at over $42 million. RAI made a claim to AXA under its commercial inland marine insurance policies, seeking indemnity for the theft. Litigation followed and the trial court awarded summary judgment in AXA’s favor, finding that there was no coverage for the loss under AXA’s policies. In a unanimous decision, the Appellate Division, First Department, that the AXA policies contained unambiguous dishonesty exclusion. The exclusion precludes coverage for losses arising from the dishonesty of an insured, anyone with an interest in the property, or anyone to whom the covered property is entrusted. The Court held that this policy exclusion applied to both Salander and the Gallery, who were entrusted with the artwork. The First Department affirmed the trial court’s decision, holding that as a matter of law, insurance coverage only extends to fortuitous losses, even under all-risk policies. The Court explained that whether there was a fortuitous loss is a legal question to be resolved by a court. Applying this standard, the Court held that the fraud perpetrated by Salander and the Gallery, which resulted in the loss, was not fortuitous. The Court of Appeals (New York’s highest court) refused leave to appeal from the First Department’s unanimous decision. RAI then sought review from the United States Supreme Court, citing conflicts in authority on procedural and jurisdictural issues. But the top court in the land rejected RAI’s petition. And so, WCM’s summary judgment win stands after levels of judicial scrutiny rarely seen in insurance cases. Previous Next Contact

News Passageway to Port O Potty Protected Under New York Labor Law (NY) March 25, 2013 < Back Share to: In Alfano v. LC Main, LLC, plaintiff slipped and fell on ice in front of an outdoor portable toilet while working at a construction site. Plaintiff alleged violations of New York Labor Law §§ 200, 240 and 241(6), predicated on 12 NYCRR §23-1.7(d). Since all parties agreed that the area where plaintiff fell was on ground level, the court dismissed the Labor Law § 240 cause of action (“fall from height”). The court would not dismiss the Labor Law §241(6) cause of action because though the portable toilet was in a common area of construction, to access it, the workers had to walk through a path of fenced in materials demarcated on one side by dumpsters and on the other side by stockpiles of construction materials. As such, to get to the portable toilets, plaintiff had to walk through a “passageway or walkway” as contemplated by 12 NYCRR §23-1.7(d). Labor Law cases are extremely fact specific. If there is any remote possibility that an action can fit into a Labor Law category, courts will typically find a way to do so. As such, it is important to analyze labor law applicability--or lack thereof--early on, to appropriately defend your case. For more information about this post, contact cfuchs@wcmlaw.com . Previous Next Contact

News NY's First Department rules that SDNY has exclusive jurisdiction over WTC claims. September 21, 2007 < Back Share to: The decision focuses on the federal pre-emption doctrine as applied to both "any statute-of-limitations arguments or arguments addressed to the sufficiency of the pleadings". http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06810.htm Previous Next Contact

News Manufacturer Avoids Products Liability Where Third Party Altered Products (NY) April 22, 2022 < Back Share to: In a products liability action, merely claiming failure to warn does not amount to the standard necessary to prove proximate cause. The New York Appellate Division, Second Department, recently addressed this issue in John Kosta v. WDF, Inc. In that case, defendant Serpentix Conveyor Corporation manufactured three conveyor machines to be placed in a New York City Department of Environmental Protection facility, which was undergoing renovations by defendant WDF, Inc. After the conveyors were delivered, WDF added caster wheels to them so that they could be moved. It was during this move that plaintiff suffered fatal injuries. In New York, a manufacturer who places a defective product into the stream of commerce may be liable for the injuries caused thereby. However, a manufacturer who has designed a safe product is not liable for substantial modifications or alterations made by a third party which renders the product defective or unsafe. In moving for summary judgment, Serpentix established that when the conveyors were delivered, they were required to be affixed to the ground. Serpentix also established that upon learning of the alterations, it informed WDF and the DEP of the need for the conveyors to be affixed to the ground. Under these circumstances, the Second Department affirmed the Supreme Court’s dismissal of plaintiff’s product liability claims against Serpentix based on design defect and failure to warn. The court held that “for there to be recovery for damages stemming from a product defective because of the inadequacy or absence of warnings, the failure to warn must be a substantial cause of the events producing injury.” The Kosta case reaffirms the general rule that a product manufacturer may avoid strict product liability where substantial modifications or alterations are made to its otherwise safe product by a third party. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Plaintiff’s Slip and Fall on Wet Floor Goes to Jury as Summary Judgment is Denied (NY) July 29, 2021 < Back Share to: In Lopez v. 1355 Morris Ave, LLC (1st Dept. 2021), the First Department upheld a trial court’s decision to deny defendants’ motion for summary judgment. In some premises liability cases, a defendant can occasionally avoid liability if it shows that it warned the bystander of a dangerous condition, or that the bystander had knowledge of the dangerous condition prior to the accident. Here, however, plaintiff slipped and fell on a wet floor when defendants were mopping the floor at the time of the accident. Defendants moved for summary judgment arguing plaintiff knew that the floor was being mopped and knew the floor was wet prior thereto. The First Dept. in upholding denial of summary judgment, held defendants failed to establish that it cannot be held liable for the injuries plaintiff sustained because, even if they were relieved of their duty to warn her of a hazardous condition by the open and obvious nature of the wet floor, the defendants were not relieved of their duty to maintain the floor in reasonably safe condition. Moreover, an issue of fact existed because plaintiff testified that she saw the superintendent only cleaning the floor, not mopping it, and that she did not see the wet floor before she fell. Whether or not she should have seen it would remain a triable issue of fact for a jury to determine. The First Dept. was also not convinced by defendant’s arguments that plaintiff was primarily at fault because she was not paying attention or holding the handrail when walking, because plaintiff did not need to show complete absence of her own comparative fault in order to defeat defendant’s motion for summary judgment on liability. This case highlights the rigorous duty property owners are being held to keep premises free from dangerous conditions. Of course, all floors must be mopped on occasion, and a wet floor invites liability in a slip and fall accident. However, courts are making owners go further to floors safe from patron traffic with “reasonable means” perhaps such as blocking off the section of the wet floor. Property owners would be prudent in using any available means possible to keep the public safe on their premises. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Insureds "Opt Out" of Significant UIM Award (PA) April 11, 2019 < Back Share to: Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insurer must provide uninsured (“UM”) and underinsured (“UIM”) motorist coverage equal to the bodily injury liability limits under an automobile insurance policy. However, like most laws and regulations, there is an exception to the rule: an insurer is not required to provide such coverage where an insured submits a written request for lower limits. Recently, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether a named insured changes the UM/UIM coverage limits for insured vehicles when, on a subsequent form adding another vehicle to the policy, he or she fails to affirmatively indicate an intention to “sign down” coverage for the originally insured vehicles. In Limandri v. Allstate Ins. Co, the Court examined the unique factual circumstances surrounding the named insureds’ procurement of coverage to determine whether a second automobile coverage form superseded the named insureds’ initial designation for lower UM/UIM coverage limits. In 2001, the named insureds obtained automobile insurance coverage with Allstate for four vehicles. Simultaneously, the named insureds executed a form requesting lower UM/UIM coverage. Soon thereafter, the insureds decided to add another vehicle to the policy, and signed another form (“2003 Form”) that “unequivocally requested lower UM/UIM limits for this new vehicle.” The form also listed the other vehicles covered by the policy; however, the parents did not check any boxes on the 2003 Form indicating they sought lower UM/UIM limits for the vehicles. The coverage dispute arose when the named insureds’ daughter sustained bodily injury while driving a covered vehicle. When Allstate notified the daughter that she was only entitled to the reduced coverage limit per the 2001 Form, the daughter commenced the instant action against Allstate seeking, inter alia, UIM coverage equal to the bodily injury liability limits. Essentially, she argued her parents did not check any boxes for lower UM/UIM coverage in the 2003 Forms. The daughter also argued: (1) the lower UM/UIM limits did not apply based on the plain language of the 2003 Form; (2) the 2003 Form was ambiguous; and (3) the bi-annual renewals and payments of lower premiums were irrelevant to the Court’s coverage determination. In applying Pennsylvania case law, the Court weighed the language contained at the top of the 2001 and 2003 forms, which included Pennsylvania’s MFVFRL requirement – if a named insured does not select lower UM/UIM limits, the limits set equaled the policy’s bodily injury liability limits – against the purpose of the 2003 Form to affirmatively provide information related to the new vehicle the named insureds sought to insure. In doing so, the Court reasoned that because the named insureds’ selection in 2001 for the initial three vehicles applied “to all future renewals” and the named insureds made no attempt to actively procure higher UM/UIM coverage for those vehicles, the named insureds “unequivocally signed-down” the UM/UIM coverage limits when they executed the 2001 Form. Moreover, the Court determined that the named insureds’ decision to leave the check boxes blank on the 2003 Form was not affirmative evidence of their choice to increase UM/UIM coverage limits since the named insureds provided no evidence to support that this was their intention. In sum, this ruling illuminates the weight given to the plain language of an insurance policy and how, in the context of UM/UIM coverage disputes, affirmative steps are needed to alter coverage limits. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Game, Set, Match: Plaintiff Tripping On Tennis Court Has No Claim Under Primary Assumption of Risk Doctrine (NY) August 26, 2021 < Back Share to: In Schwartz v. Ramapo, 2021 NY Slip Op 04773 (2d Dept. 2021), a plaintiff was playing tennis when she suffered injuries after tripping on a raised sprinkler head in between two tennis courts owned and operated by the Town of Ramapo. The Rockland County Supreme Court Judge dismissed the Ramapo defendants’ under the doctrine of primary assumption of risk. “Pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks [that] are inherent in and arise out of the nature of the sport generally and flow from such participation. Assumption of risk is not an absolute defense but a measure of the defendant's duty of care (Asprou v Hellenic Orthodox Community of Astoria, 185 A.D.3d [2d Dept. 2020]); ‘the defendant's duty is to exercise care to make the conditions as safe as they appear to be. If the risks of the activity are fully comprehended or perfectly obvious, [the participant] has consented to them and defendant has performed its duty’ (Asprou, supra). “Risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation” (Asprou, supra). “Among the risks inherent in participating in a sport are the risks involved in the construction of the field, and any open and obvious conditions of the place where the sport is played” (see Philius v City of New York, 161 A.D.3d 787 [2d Dept. 2018] ), including less than optimal conditions (Asprou, supra). The Second Dept. held the defendants’ satisfied their prima facie burden for summary judgment by showing the raised sprinkler head was open and obvious and plaintiff testified she knew sprinkler heads were present in between tennis courts. Plaintiff’s argument that she was not specifically aware of the sprinkler system causing her fall was unavailing. The court determined for the application of assumption of risk, the plaintiff need only know the potential exists for the mechanism of her fall i.e. she knew there were certain sprinkler heads present on the tennis court and she knew the tennis courts were cleaned with water from the sprinklers. Plaintiff also failed to offer any conclusive expert evidence that the sprinkler heads should have been flush with the court so as to avoid causing a tripping hazard. The Schwartz case sets an excellent example of the doctrine of primary assumption of risk. It highlights that if a certain condition exists in a recreational area, although it may be hazardous, it may also fall under the assumption doctrine so long as the condition is open and obvious and the public participants would have been made aware of the condition as a part of the recreational activity. Prudent property owners will warn public pedestrians about the potentially hazardous conditions on their recreational areas to avoid liability for subsequent injuries. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News National Arbitration Forum’s Participation Necessary For Enforceability Of Arbitration Agreement November 22, 2010 < Back Share to: In Davidson v. Golden Living Center, the Pennslyvania Superior Court had to determine whether an arbitration agreement is enforceable when the clause states that a specific arbitration entity, in this case the National Arbitration Forum (NAF), but the arbitration entity is no longer accepting arbitration cases. The severability clause in the agreement stated that if a court finds any portion of the agreement unenforceable, that portion will be unenforceable but the rest of the agreement will remain effective. Here the arbitration forum selection clause of the arbitration agreement was held unenforceable because the specific arbitration forum was unavailable. Thus the court had to consider whether that clause was an essential term of the agreement and if that rendered the entire agreement unenforceable. The trial court held that the agreement was unenforceable because an essential term failed. The court said that the severability clause could not save the agreement because it would require the court to rewrite the arbitration clause and devise “a new form and mode of arbitration for the parties.” At the appellate level the defendants argued that the forum selection clause was not an essential part of the agreement because the primary purpose was not to have NAF arbitrate the dispute, but to have the dispute be submitted to arbitration. However the Court disagreed. Although generally an arbitration agreement will not fail because of the unavailability of a chosen arbitration forum, it will if the parties’ choice of forum is an integral part of the agreement. The court cited case law from other circuits holding that NAF’s participation in the arbitration process was an integral part of the agreement. The court adopted this reasoning as it own and held that in Pennsylvania, an arbitration agreement with a clause requiring the parties to arbitrate in front of the NAF will be rendered unenforceable because of the failure of an essential term of the agreement. Thanks to Remy Lapidus for her contribution to this post. http://www.superior.court.state.pa.us/opinions/A31040_10.pdf Previous Next Contact

News Is Getting The Right Panel Key to Appeal In NY's First Department ? May 17, 2012 < Back Share to: In New York's Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant's side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court. On appeal, the defendant did not challenge the Supreme Court's finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff's comparative negligence, precluding summary judgment. In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma. After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm Thank you for Gabe Darwick for this post. Previous Next Contact

News But Is It Covered By A Fine Arts All Risk Policy? March 23, 2010 < Back Share to: Shipping claims are the most common types of claims that arise under an all risks fine arts policy. Disputes over the applicability of the Carmack Amendment and diminution in market value inevitably ensue. With all this as background you would think packers would be ever more vigilant about the work they perform. And no doubt many are. But, fine art lifting Olympics certainly can't be a step in the right direction! Fine Art Lifting Olympics If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Playgrounds Are Still Allowed to Pose Some Risk, In Theory Anyway (NY) August 22, 2019 < Back Share to: Most people older than a millennial remember the "good old days" when playgrounds resembled death traps, complete with metal slides that burned your skin, monkey bars the height of a small building, and swings that seemingly reached the sky. In a post-Stranger Things world, however, playgrounds are now constructed to comply with more stringent safety regulations, and to avoid even the slightest prospect of danger. But as one Second Department decision makes clear, all the fun-proofing in the world will not stop the lawsuits. In V.W. v. Middle Country Central School Dist., a school was sued by the parent of a girl who hurt herself falling off a set of monkey bars. According to the plaintiff, the school district should be held liable because it negligently supervised the girl and negligently maintained its premises. In the trial court, the school district was awarded granted summary judgment. However, the Second Department reversed. On appeal, the school district actually prevailed on the negligent supervision claim. According to the Second Department, the school district provided adequate supervision. The Court even held that falling off monkey bars is an incident which could not be prevented with closer monitoring. However, the Second Department reversed the decision on the negligent maintenance claim. Although the school district offered expert testimony showing the playground complied with applicable regulations, the expert also confirmed that the monkey bars had been removed by the time she inspected and she had also been unable to confirm surface conditions on the day of the accident. The Court’s decision in V.W. is significant because it does provide playground owners and operators some comfort that it is possible to avoid liability for risks that used to be a given. But it also shows that they must show constant vigilance in maintaining the ground and preserving the evidence. Here, the expert was rendered unable to inspect the monkey bars, because they had been discarded. Hence, an issue of fact to deny summary judgment. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any question.   Previous Next Contact

News PA Common Pleas -- Property Owner Is Not Responsible For Poor Drainage. January 4, 2008 < Back Share to: In the case of Gayhardt-Stang v. Dept. of Transportation, PICS Case No. 07-2110 (C.P. Lehigh Nov. 5, 2007), the Court ruled that a property owner is not responsible for poor drainage conditions on an adjacent highway. http://www.palawweekly.com/plw/printarticle.aspx?ID=24778 Previous Next Contact