News Is US Maritime Law About to Significantly Change? July 7, 2010 < Back Share to: Some would argue that crisis begets opportunity. It appears that the BP oil spill may be the opportunity needed by US legislators to fundamentally change US maritime law. According to press accounts, Congress is currently considering revisions to the Death on the High Seas Act, the Limitation of Liability Act and the Jones Act. Congress is also considering revisiting the appropriateness of punitive damages awards in maritime cases. Obviously, if any of these statutes are changed, the "seascape" of maritime law in the US will be altered. http://www.nytimes.com/2010/07/06/business/06seas.html?_r=1&scp=1&sq=maritime&st=cse If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Risk of Falling Masonry Subject to 240 Claim December 15, 2010 < Back Share to: A New York motion court has held that falling masonry and other structural components, unsecured as a part of demolition work, is not an inherent or ordinary risk of the workplace and is therefore covered by the Labor Law §240(1) statute. In Castro v. JK USA Group, Inc., (19396/08), plaintiff, a demolition worker who was in the process of dismantling a wall by striking cement blocks with a hammer, allegedly sustained injuries when a co-worker ”hit something" that caused a cement block to fall on plaintiff's left hand. Kings County Justice Jack Battaglia held that defendants are not entitled to a dismissal of Labor Law §240(1) claims on the grounds that the falling objects were not being hoisted or secured at the time they fell and there was a minimal height difference between where the brick was situated and where it struck the plaintiff. The court added that defendants failed to establish that the cement block did not "require securing for the purposes of the undertaking" or that there was any protective device designed to catch the cement blocks as the wall was being dismantled. Rulings such as these continue to expand the scope of strict liability Labor Law claims owner defendants face in New York. Special thanks to Chris O’Leary for this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com http://www.law.com/jsp/nylj/CaseDecisionNY.jsp?id=1202475940334 Previous Next Contact

News Watersport or Horseplay? Risk Assumption Either Way. November 23, 2016 < Back Share to: Plaintiff, Jin Chung, an experienced watersports instructor, was filming a wakeboarder while both were being towed by a boat on 60’ and 65’ towropes respectively. When the boat turned as it neared the shoreline, it crossed its own wake. The plaintiff was propelled into water and struck by the wakeboarder. In the ensuing litigation, the issue was whether the plaintiff had assumed the risk of injury inherent in this recreational activity. In Chung v. Lehmann, the Appellate Division, First Department affirmed dismissal of the action because it found that the plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged. Although the plaintiff argued that the filming activity was actually horseplay rather than recreation, the court gave short shrift to this argument. After all, the plaintiff was filming watersports on a lake known for this type of recreational activity. The court also discounted plaintiff’s unsubstantiated argument that the boat’s operator acted recklessly. Plaintiff argued that, even assuming the application of the assumption of risk doctrine, he could not be deemed to have assumed certain increased risks based upon the operator’s purported reckless behavior. However, the plaintiff’s various criticisms with respect to the boat operator’s lack of attention, speeding, or sharp maneuvers were conclusory and without expert support. As this case demonstrates, injuries resulting from commonly appreciated risks inherent in a recreational activity do not raise triable claims. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Lender Beware– Suit Against Motorcycle Owner Survives MSJ (NY) April 7, 2017 < Back Share to: The Tompkins County Supreme Court recently denied summary judgment to a motorcycle owner in Perkins v. Cnty of Tompkins, 2014-0037 (March 2017) because of an issue of fact as to the owner’s entrustment to the operator of her motorcycle. Perkins arose in 2012 when a motorcycle owner lent her motorcycle to her 30 year old brother, an experienced rider. She also spent 10 minutes showing her brother how to operate that specific motorcycle. Shortly thereafter, the operator’s brother collided with another motorist. The motorcycle operator brother brought suit against the other motorist claiming negligence. The motorist then brought a third party action against the motorcycle owner, seeking contribution/indemnification claiming the operator negligently entrusted the motorcycle to her brother. The motorcycle owner moved for summary judgment arguing that the motorist lacked standing for his claims since the operator is not a third party injured by the entrustment. The court found that “unquestionably the harm to third parties in this case is not the direct, physical injury ordinarily caused by dangerous instruments.” Id. But that the financial harm resulting from potential liability of a ‘concurrent tort-feasor’ is sufficient to give rise to a cause of action for indemnification. Here, the operator had standing to bring a claim against the motorcycle owner. The court found that although most cases of negligent entrustment involve an adult entrusting a dangerous instrumentality to a minor, negligent entrustment can be based upon “the degree of knowledge the supplier had concerning the entrustee’s propensity to use the chattel in an improper fashion.” The Owner argued that the operator was not a minor and she was aware that the operator had previously owned and operated a motorcycle. Unfortunately, she denied knowledge of knowing whether the operator had a license to operate a motorcycle or whether the operator had undergone any training or instruction on the motorcycle. The court found that as a matter of law, it cannot be said that Owner exercised reasonable care in determining whether the operator possessed the requisite intelligence and training, finding at a minimum she should have inquired as to the status of his license. The Court’s ruling demonstrates the extreme importance of taking precaution before lending your vehicle -- especially a motorcycle. Frankly, the ruling is not surprising, considering that motor vehicle owners are often kept in lawsuits under similar circumstances. Thanks to Patrick Burns for his contribution to this suit. Please email Brian Gibbons with any questions. Previous Next Contact

News A “Spouse” or Just a Spouse? May 24, 2024 < Back Share to: Keeping with Florida law holding that one cannot “marry into a cause of action” and the common law “marriage before injury rule,” Florida’s appellate courts have held that a spouse who marries a decedent after injury but before death, is not considered a “surviving spouse” under Fla. Stat. § 768.21(2), Florida’s Wrongful Death Act. [1] In Domino’s Pizza, LLC v. Wiederhold , 248 So. 3d 212, 221 (Fla. 5th DCA 2018) Florida’s Fifth District Court of Appeal departed from the common law rule, holding that a spouse who marries after the injury but before decedent’s death may recover damages as a “surviving spouse” under section 768.21(2). In Ripple v. CBS Corp. , 337 So. 3d 45 (Fla. 4th DCA 2022), the Fourth District Court of Appeal disagreed with the holding in Domino’s Pizza and applied the common law. Recognizing the divergence between the Districts, Florida’s Supreme Court accepted jurisdiction to resolve the conflict. In Ripple , a man filed an asbestos lawsuit, he married a few months later, and died of mesothelioma a few months after marriage. The defendants successfully argued that the wife could not recover loss of consortium damages because she was not a “surviving spouse” under Florida’s Wrongful Death Act. Ironically, defendants also argued that decedent’s adult children could not recover because decedent, pursuant to § 768.21(3), because there was a “surviving spouse. [2] After reviewing Ripple , Domino’s Pizza and the Wrongful Death Act, Florida’s Supreme Court approved of the decision in Domino’s Pizza , holding that “survivorship under section 768.21(2) is determined at the time of the decedent’s death, which is the time when the spouse outlives the decedent.” Recognizing the potential for inconsistency in the law – a spouse who married after the injury could not recover loss of consortium damages while their spouse lived but could recover those damages if their spouse died from the injury – the Ripple Court found that “it is up to the Legislature, not the courts, to decide whether this is a problem that needs fixing and, if so, how.” Finally, the Ripple Court “note[d] that as the finder of fact, a jury may, in considering the evidence, determine whether a spouse’s conduct amounts to an attempt to marry into a section 768.21(2) claim [and that] [n]othing in our decision today prevents juries from considering the timing and duration of a couple’s marriage when evaluating a claim for damages under section 768.21(2).” The holding in Ripple may have opened a pandora’s box the common law struggled to keep closed: sham consortium claims. It also forces claims handlers and defense counsel to rethink defense strategies and the assessment of wrongful death claims. The Takeaway. Ripple recognizes a new class of claimants under Florida’s Wrongful Death Act – spouses married after injury and before death – and the impact this change will have remains to be seen. [1] “The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.” [2] Fla. Stat. § 768.21(3) states: “Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” Ripple v. CBS .pdf Download PDF • 165KB Previous Next Chip M-P George Chip M-P George Of Counsel +1 786 636 1541 cgeorge@wcmlaw.com Contact

News Ejection By Bouncers A Covered Event November 3, 2009 < Back Share to: In Cotugno v. Euro Lounge, the plaintiff sued for injuries suffered when he was escorted from defendant’s premises and accidentally tripped over a parking block. Plaintiff was successful at a non-jury trial and QBE Insurance Corporation, the defendant’s insurer and a third party defendant in the action appealed. The appellate court agreed with the trial court’s interpretation of the policy. In addressing the policy, the court noted that bodily injury is or is not covered, as a general proposition, depending on the circumstances. It recognized that where bodily injury or property damage is expected or intended, it is not excluded from coverage if the bodily injury results from the use of reasonable force to protect persons or property. The court determined that the means of removing plaintiff from the lounge after he was punched was a reasonable use of force by the security personnel. The court then addressed the assault and battery exclusion, which was an added exclusion to the policy. The court determined that the actions of the bouncers could not constitute an assault or battery because they did not possess the required intent to cause bodily injury; therefore, the court rejected the notion that the security personnel had committed an assault on plaintiff. As a result, the Appellate Division Court held that under the facts as found by the trial court, the provisions of the policy were properly applied and coverage was available to Euro Lounge. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a2357-08.pdf Previous Next Contact

News PA Supreme Court Affirms that Evidence of Compliance With Industry and Governmental Standard is Inadmissible in a Products Liability Case < Back Share to: In Sullivan v. Werner Company, et al , the Pennsylvania Supreme Court affirmed that evidence of a product’s compliance with industry and governmental safety standards is inadmissible in an products liability case. Plaintiff, Michael Sullivan was injured on the job when the platform of the scaffold he was standing on collapsed, resulting in multiple physical injuries. Sullivan brought a defective design claim against defendants, alleging the system of spring-loaded deck pins used to cover the scaffold when the platform was grounded could be triggered unintentionally, causing the platform to collapse. Defendants introduced an expert report showing that the platform was compliant with Occupational Safety and Health Administration (OSHA) regulations. The trial court granted Sullivan’s motion in limine to preclude defendants from introducing the report at trial. Relying on Tincher v. Omega Flex, Inc. , 104 A.3d 328 (Pa. 2014), the trial court determined that defendants were prohibited from introducing evidence of the product’s compliance with industry and governmental safety standards. On appeal, the Pennsylvania Supreme Court affirmed. The Court cited Lewis v. Coffing Hoist Div., 528 A.2d 590, 594 (Pa. 1987), where it held that “evidence of industry standards and a product’s widespread design within an industry go to the reasonableness of the defendant’s conduct in making its design choice, and such evidence would have been improperly brought into the case concepts of negligence law.” In Sullivan , the Court applied the same factors under the risk-utility standard established in Lewis . Under the risk-utility standard, “a product is in a defective condition if a ‘reasonable person’ would conclude that the probability and seriousness of harm caused by the product outweigh the burden or costs of taking precautions.” Tincher , 104 A.2d at 389. Accordingly, the Court held that evidence of a product’s compliance with industry and governmental standards is inadmissible in design defect cases to show that a product is not defective under the risk-utility theory. Sullivan v. Werner Company, et al .pdf Download PDF • 232KB Previous Next Contact

News A Butterfly Effect of Business Interruption Claims? November 28, 2011 < Back Share to: In chaos theory, there is a concept known as the butterfly effect. In essence, the theory is that depending on when a butterfly flaps its wings in Tokyo, you get rain and not sunshine in New York. The underlying premise of the butterfly effect is that the world is interconnected in ways that we cannot possibly fully predict or understand. The recent Thailand floods may support this proposition. To the layperson, “Thailand” may elicit a number of different thoughts, but major manufacturing center is not likely to be one of them. Yet, many of the component parts used in advanced electronics (for example 45% of the world’s computer hard-drives) are produced in Thailand. The recent floods submerged these factories and there is no known resumption date. This is bad news for any manufacturer which production abilities rest, in whole or in part, on the state of the Thailand factories. Major insurers and re-insurers should pay close attention to the developments in Thailand since business interruption claims could be significant. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Bar To Coverage! Assault & Battery Exclusion Upheld On Appeal NY) November 20, 2020 < Back Share to: Can a premises liability cause of action in a complaint based upon a shove down the stairs overcome an assault and battery insurance exclusion? In NHJB Inc v. Utica First Insurance Company, New York’s Appellate Division, Fourth Department heard argument over whether insurance coverage was properly denied when the policy involved an assault and battery exclusion but Plaintiff’s claim also included a premises liability cause of action. Here, a nightclub owner got into a physical confrontation with a patron that allegedly ended with the patron being pushed down a set of stairs by the nightclub owner. The patron later died from his injuries. The nightclub sought coverage from their insurer for the litigation brought by the decedent’s estate. The nightclub’s insurance provider disclaimed coverage based on the assault and battery exclusion within the policy. The nightclub then sued the provider for wrongful denial. Plaintiff moved for summary judgement, seeking a declaration that the insurance company was required to defend and indemnify the nightclub in the underlying litigation, while the insurance company cross moved to dismiss Plaintiff’s complaint. The trial court ruled in favor of Plaintiff and required the insurance company to defend Plaintiff at least through the completion of discovery. On appeal, the Court reversed and ruled that while Plaintiff’s 27th cause of action was based on premises liability, “all of the claims against plaintiffs in the underlying action are ‘based on’ or ‘arise out’ of the bar manager's assault” and that there would be no cause of action without the owner’s alleged assault and battery. Importantly, the Court also held that a determination on this issue did not need to wait until the close of discovery because whether an exclusion applies depends on the facts plead in the complaint, not its conclusory assertions. “Even if it were learned during discovery that there was a defect with respect to the stairs, the fact remains that, but for the bar manager's assault, decedent would not have fallen down the stairs.” The Court finally clarified that just because the Court had earlier ruled that there were sufficient facts plead for the premises liability claim to survive a motion to dismiss, holding that coverage did not apply was not contradictory. “There is a distinction between the ultimate liability of the insured and the insured's right to coverage based on the language of the insurance policy.” This case is a reminder that it is not the conclusory allegations or the titling of a cause of action that ultimately determines whether insurance coverage applies, but the underlying plead facts that allegedly give rise to those claims. Special thanks to Ryan Geib for his contribution to this post. If you have any questions, kindly contact Thomas Bracken. Previous Next Contact

News There’s S(no)w Proximate Cause (NY) February 7, 2018 < Back Share to: In Tchouke, et al. v. The City of New York and Montefiore Medical Center, the Appellate Division, First Department, upheld a Supreme Court decision dismissing plaintiff’s complaint against Montefiore Medical Center. The plaintiff alleged that he was injured upon exiting his car when he slipped and fell on snow and ice alongside the sidewalk abutting Montefiore’s property. Though the plaintiff claimed that Montefiore negligently failed to clear a path between the street and sidewalk, the court held that Montefiore’s conduct was not the proximate cause of the plaintiff’s injury. Montefiore had no duty to place a path between the street and the sidewalk, not on hospital property, at the spot where plaintiff parked his car. In reading through the decision, we were struck by the nonsensical nature of the claim, which plaintiff's counsel sought to pursue through motion practice and even appellate practice. In light of recent decisions highlighting the high standard to obtain summary judgment, perhaps plaintiff's counsel felt this claim was worth a roll of the dice. Thanks to Alicia Massidas for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Obtains "No Cause" in NJ Arbitration. July 14, 2016 < Back Share to: Partner, Robert Cosgrove and associate, Rachel Freedman secured a “no cause for action” ruling at arbitration in Gloucester County, New Jersey in a slip-and-fall case involving stormwater runoff at a residential home. In Oya Garonski, et al. v. Robert Bockius, et al., the plaintiff fractured her wrist after allegedly slipping and falling on a large accumulation of slippery stormwater that was draining across the defendant-homeowners’ sidewalk after days of significant rainstorms. Per Judge Robert Morgan’s law of the case, under New Jersey water runoff law, the plaintiffs could not recover against the defendants if draining stormwater alone caused her fall, due to the fact that there was no evidence that the defendants took any action to change the delivery of stormwater to the sidewalk. The arbitration panel held that there was no evidence that the defendants had actual or constructive notice that there was dirt, silt, or any other slipper substances hidden under the flowing stormwater that would have caused the plaintiff’s fall, and thus, 0% liability was assessed to the defendants. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

News Computer Fraud Policy Covers Computer Fraud Only March 24, 2017 < Back Share to: A Georgia court recently ruled that a computer fraud provision in an insurance policy did not provide coverage in an $11.4 million fraudulent debit card redemptions made over the phone and processed by computers. In InComm Holdings, Inc. v. Great American Insurance Company, InComm provided a service enabling consumers to load funds onto prepaid bank issued debit cards. Cardholders could purchase “chits” from retailers to add additional funds onto their cards. The retailers sent InComm the payment made for the chit, which the cardholder could redeem by calling InComm. InComm then transferred the funds to the issuing bank for the cardholder to draw on. When the cardholder called InComm, their call was processed by the interactive voice response (“IVR”) system. The IVR used computers that allowed a debit cardholder, using telephone voice commands or telephone touch-tone codes, to monitor and request transactions on their debit card account. The loss in question resulted from a coding error in InComm’s system that allowed cardholders to redeem their chits more than once, which resulted in more than $11.4 million in unauthorized charges to InComm. InComm made a claim on its insurance policy that provided coverage for “computer fraud,” specifically, a “loss of . . . money . . . resulting directly from the use of any computer to fraudulently cause a transfer of that [money] from inside the premises or banking premises” to a person or place “outside those premises.” InComm believed it was entitled to coverage because the IVR system was the “computer” that was “used” when the chits were redeemed, and thus that the Policy’s “use of any computer” requirement is satisfied. The insurer denied coverage on the grounds that the redemptions were made over the phone and not by computer. The court agreed, using dictionary definitions of “phone” and “computer” to reach its conclusion that the cardholders used telephones to provide information to InComm’s IVR system, which then processed the information incorrectly, resulting in multiple redemptions of a single chit. As technology advances and the interdependency between telephones and computers increases, it is comforting to know that courts are taking a straightforward approach to defining terms in an insurance policy to determine the scope of coverage. For now, a phone is a phone and computer is a computer, and a computer fraud provision in an insurance policy only covers computer fraud. Thanks to Hillary Ladov and Chris Sovorow for their contributions to this post. Previous Next Contact