News Material Misrepresentation in Auto Policy Application February 27, 2009 < Back Share to: In Consumer First Insurance v. Lee, the plaintiff appealed a dismissal of its declaratory judgment action against its insured. The Superior Court Appellate Division reversed and remanded, concluding that the insured made a material misrepresentation on his automobile insurance application regarding his lifelong epilepsy. As a result, plaintiff was required to extend only minimum mandatory statutory amounts of coverage to all claimants. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5821-06.pdf Previous Next Contact

News Creative Pleading In PA Requires A Duty To Defend September 30, 2022 < Back Share to: In Siehl v. City of Johnstown, et al., the plaintiff was convicted of murder and was incarcerated for twenty-five years. The plaintiff alleged that, during his period of incarceration, the defendant city and county withheld exculpatory evidence and produced false disclosure statements. After multiple hearings, the Court determined that the defendant officers were untruthful and hid exculpatory evidence. The plaintiff was thereafter free. The plaintiff therefore sought damages for wrongful imprisonment, loss of freedom, economic loss, and critically, exposure to physically harmful prison conditions (e.g. a bodily injury). The defendant city and county thereafter added their insurance carrier to the action with a third-party complaint. The third-party defendant insurer issued an insurance policy to Cambria County, Pennsylvania. The policy in question included general liability coverage and law enforcement liability coverage that extended to cover damages because of “injury, sickness, disease, disability, shock, mental anguish, mental injury and humiliation” as well as false imprisonment, malicious prosecution, and deprivation of constitutional rights. The Eastern District began its analysis by citing the foundational pillars of insurance coverage law in Pennsylvania: the insurer's duty to defend is broader than the duty to indemnify and the duty to defend arises whenever an underlying complaint may potentially come within the insurance coverage. The insurer argued that it owed no duty to defend the claims that were derivative of the initial malicious prosecution. The court disagreed. Concluding that the allegations in the lawsuit would, if true, be covered by the policy, the Eastern District concluded that “under the legally appropriate interpretation/evaluation of the applicable language at issue, [the insurer] owe[d] a duty to defend” partially because of the allegations in the complaint concerning a bodily injury caused by an occurrence. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Fine Art and Specie For 25 years, foreign and domestic insurers have looked to WCM to represent their interests in controversies involving fine art and specie. Our claims and defense work in this niche market is international in scope and has taken WCM lawyers to many parts of the globe–London, Paris, Antwerp, Rome, Dubai and Hong Kong. Our work embraces claim investigation and litigation relating to fraud, theft, physical damage, authenticity and recovery of stolen property. Our reputation for excellence and deep understanding of the issues that confront the Underwriters who insure the world’s valuables give our clients a distinct advantage in this highly competitive arena, and we are often called upon to conduct seminars on emerging trends and to give advice on policy wordings. WCM lawyers know this world and we achieve consistently superior outcomes for our clients. Practice Lead Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Download Download

News Issues Of Fact Paint Defendants Into A Corner Under Labor Law §241(6) (NY) December 17, 2021 < Back Share to: Recently, New Yorks’ Second Department analyzed the homeowner’s exemption under Labor Law §241(6). In Venter v. Cherkasky, plaintiff was a painter employed with a company hired by the defendant homeowners to paint and re-finish kitchen cabinets and a kitchen island in their home. In an unusual accident, the painter was injured when an electrical explosion occurred on the kitchen island as he was applying lacquer paint thinner to remove the paint. He asserted defendants violated Labor Law §241 by controlling and supervising his work which led to the injury. The defendant homeowners moved for summary judgment to dismiss the Labor Law §241 claim citing their exemption under the statute. The trial court denied summary judgment citing issues of fact on whether they supervised his work. Under the exemption of Labor Law §241(6), owners of 1 or 2 family dwellings are exempt from liability unless it can be proven the defendants directed or controlled the work being performed. The phrase “direct or control,” as used in Labor Law §241(6), “is construed strictly and refers to the situation where the owner supervises the method and manner of the work.” [Bulux v Moran, 189 AD3d at 762 (2d Dept. 2019)]. “The relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee” [Rajkumar v Lal, 170 AD3d 761, 762 (2d Dept. 2019)]. Plaintiff testified that the defendant homeowner Betsy Cherkasky told him to apply the lacquer paint thinner to the kitchen island instead of sanding off the paint on the island as he did on the kitchen cabinets the previous day, as she did not want any more dust. Although the defendants testified they did not give plaintiff any instructions on how to do his work, and even submitted an affidavit from plaintiff’s employer to that effect, the trial court concluded that it was a triable issue of fact for a jury to determine. The Second Department agreed with the trial court’s reasoning and upheld the decision to deny summary judgment on that claim. The decision accentuates that any instructions given by a homeowner to a worker that can be related or connected to the injury arising from that work may create an issue of fact precluding exemption from liability under the Labor Law §241(6). A residential homeowner should avoid any instructions or comments to a worker on how, when or where to do their work. Simply put, leave the work to the professionals and their supervisors. Any deviation from that standard may lead to liability of the homeowners in a work-related accident under Labor Law §241. Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Plaintiff’s Premises Liability Case Gets Iced (PA) December 18, 2020 < Back Share to: In Derito v. Walmart Stores East, L.P. (District Court of the Western District of Pennsylvania), plaintiffs Charles and Kimberly DeRito (collectively “DeRito”) were unable to overcome defendant Walmart’s summary judgment motion in this slip and fall action. According to DeRito, Walmart’s front door was stuck open for approximately 31 seconds due to a malfunction while it was actively snowing. Snow and ice was allegedly blowing into the store when Mr. DeRito slipped and fell due to an accumulation of “powdery” snow and ice inside the store. Walmart had salted the pathway leading to its entrance and had weather mats laid out at the entry of the store. Walmart filed a motion for summary judgment arguing that its employees did not have notice of an allegedly dangerous condition. The Court granted the motion dismissing DeRito’s claims. In Pennsylvania, landowners owe business invitees the highest duty of care. However, the simple fact that a plaintiff was allegedly injured on a defendant’s premises does not automatically prove negligence. While Mr. DeRito testified powdery snow had been blowing into the store because the door was stuck open, Walmart employees testified they saw no accumulation of snow, ice or water at the entrance when they went to inspect the malfunctioning door. While accepting DeRito’s allegations that the malfunctioning door and alleged powdery snow/ice may be hazardous conditions, DeRito failed to prove that Walmart had actual notice of them. Also, DeRito did not demonstrate Walmart had actual knowledge of snow accumulation or the malfunctioning door, nor did DeRito offer any evidence that the malfunctioning door was a recurring problem. Thus, he could not prove “actual notice” to Walmart. Concerning “constructive notice,” Pennsylvania courts recognize the the length of time an allegedly hazardous condition remains in place is indicative of a property owner’s constructive notice. Here, the malfunctioning door was only open for thirty-one seconds before Mr. DeRito fell. Thus, Walmart employees would not have had sufficient time to discover the condition prior to his alleged slip and fall and DeRito provided no evidence to support a claim there was snow inside the store entrance prior to his arrival. Thus, DeRito’s claim slipped and fell short of the legal requirements for negligence. Given our recent winter storm and forecast for more, this is a reminder that a slip and fall on snow or ice does not automatically confer liability on a property owner. Plaintiff still has the burden to prove the property owner violated the standard of care owed to an invitee. Thanks to Gabrielle Outlaw for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Does The Operator Of A Snowplow Need To Operate By The Rules Of The Road? (NY) January 29, 2021 < Back Share to: In Kaffash v. Village of Great Neck Estates, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after the defendant struck the plaintiff while operating a snowplow. On the date in question, one of the defendants was operating a snowplow owned by his employer (co-defendant). While moving the plow in reverse, the rear bumper struck the plaintiff in the back while plaintiff was walking in the middle of the street. The defendants eventually moved for summary judgment dismissing the complaint as asserted against them. The court stated, “A snowplow operator 'actually engaged in work on a highway' is exempt from the rules of the road and may be held liable only for damages caused by an act done in 'reckless disregard for the safety of others”. (citations omitted). Reckless disregard requires more than a momentary lapse in judgment. (citations omitted). "This requires a showing that the operator acted in conscious disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow". (citations omitted). The defendants were able to show they were entitled to summary judgment by submitting the testimony of the defendant – operator which stated: 1) he was traveling at a speed of five to seven miles per hour; 2) that the lights and beeping alert were activated at the time of the accident; and 3) that the defendant was looking in the mirrors of the snowplow and did not see the plaintiff prior to the accident. As such, the Court held that the defendant did not act recklessly, and plaintiff failed to show a triable issue of fact. This decision serves as a reminder that the plaintiff has a higher burden to meet when alleging personal injuries against the operator of a snow plow while engaged in work on a highway. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News WCM Obtains Directed Verdict in NY Civil Court Jury Trial July 19, 2012 < Back Share to: New York, NY Associate Lora H. Gleicher obtained a directed verdict in a jury trial in a New York County Civil Court matter. In Newmark v. New York Urban Athletic League, plaintiff, an experienced volleyball player, was participating in a volleyball scrimmage on an allegedly sub-par volleyball court. Prior to his participation, plaintiff did not execute a waiver or release because the scrimmage was conducted pre-season. During the game, plaintiff was injured and he commenced suit as a result. At trial, plaintiff testified that his injury occurred because the court was not regulation size and had poor lighting. He also claimed that the use of stanchions to secure the volleyball net was improper and caused the net to sag. During an aggressive volleyball scrimmage, plaintiff jumped up to block the ball. When he did so, the opposing front-center player jumped as well, got caught in the net, and fell forward onto the plaintiff, causing the plaintiff to injure his left ankle/foot on the metal stanchion. At trial, through our cross-examination, we were able to attack the plaintiff’s credibility and prove that, contrary to his representations, he was aware of the dangers in playing volleyball and yet decided to play all the same. The trial court agreed and, before the jury got the case, granted a directed verdict in favor of our client, the New York Urban Professional Athletic League. Previous Next Contact

News Mystery eye poker … pencil toting toddler? (NY) September 7, 2012 < Back Share to: How much evidence is enough to prove that a day care center was negligent when there is an allegation that one toddler injured another? The Second Department addressed this recently in a case of a mystery injury. In Ivan v. Lolita Child Day Care, the day care provider admitted that a fellow toddler poked the infant-plaintiff in the eye while at day care. However, doctors found that the infant-plaintiff's cornea had actually been scratched by a pencil. The lower court granted the day care's summary judgment motion, finding that there was no proof that the infant was poked in the eye by a pencil while at day care. The Second Department reversed the lower court's decision, finding that a plaintiff is not required to exclude possible cause. A plaintiff need only offer evidence from which proximate cause may be inferred. In the instant matter, the day care admitted that the plaintiff sustained an eye injury while in its care and further admitted that no one at the day care witnessed the eye-poking incident. Accordingly, the Appellate Division found issues of fact as to whether the infant-plaintiff's injury was proximately caused by the day care's inadequate supervision. Thanks to Georgia Stagias for this contribution. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Failure to Memorialize Mediated Settlement in Writing Fatal to Motion to Enforce Settlement May 17, 2024 < Back Share to: In Napolitano v. European Construction Professionals LLC, et al., the Appellate Court granted two Plaintiffs’ appeals: one from a motion to enforce a settlement filed on behalf of Defendants, and one denying Plaintiffs’ motion for reconsideration. Plaintiffs hired Defendant European Construction Professionals to build a home on their vacant lot in Bayonne, New Jersey. The parties signed a construction contract, and European began work on the new construction in June 2014. By the fall of 2014, Plaintiffs noticed a significant delay in the progress the parties had agreed upon in their contract. In 2015, the City of Bayonne took notice that the house had failed multiple inspections and ordered Defendants to cease all work on the home. European was given a deadline of May 1, 2015 to remedy all deficiencies in the house, which they were unable to do. Plaintiffs filed suit, alleging breach of contract, breach of warranty, fraudulent misrepresentation, unjust enrichment, negligence, and multiple statutory violations. The parties attended a mediation in November 2022, which resulted in the mediator providing both parties a letter suggesting a settlement amount of $840,000. Plaintiffs’ and Defendants’ counsel initially expressed a willingness to discuss with their clients, but conversations tapered off when Defendants’ counsel had surgery. The parties never executed a formal settlement agreement and no release was circulated. Nonetheless, Defendants filed a motion to enforce the settlement, which Plaintiffs opposed. The trial judge found that the mediator’s 2022 letter constituted a “meeting of the minds” to which Plaintiffs were bound. On appeal, the Appellate Court found that the trial judge was mistaken in her conclusion. New Jersey’s prior case law holds that a settlement reached at mediation is not enforceable without a written agreement signed by each party. This case law applies regardless of whether the mediation was voluntary or court-ordered. While mediation can lead to early settlements prior to trial, it is imperative that lawyers follow the court rules properly and stay diligent with their deadlines regardless of any personal problems or difficulties. Napolitano v. European Construction Professionals LLC .pdf Download PDF • 130KB Previous Next Contact

News Dismissal Of Complaint Filed One Day Late Affirmed By NJ Appellate Division July 9, 2009 < Back Share to: In McMillan v. Wal-Mart Stores, Inc. , the appellate division affirmed the dismissal with prejudice of a complaint filed one day after the two year statute of limitations had expired. Plaintiff had claimed the statute was equitably tolled due to ongoing settlement negotiations, however, the court noted that there was never any discussion about the statute of limitations, nor any communication stating any understanding that plaintiff would not be filing a complaint while the parties continued to negotiate. The Court held that an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlement before the statute runs. http://www.judiciary.state.nj.us/opinions/a1043-08.pdf Previous Next Contact

News Non-Parties Cannot Intervene In Insurance Company’s Declaratory Judgment Action August 19, 2022 < Back Share to: In County Hall Insurance Company, Inc. v. Mountain View Transportation, LLC, the M.D.P.A ruled that non-parties who had a personal injury claim against an insured individual cannot intervene in the insurance’s company’s declaratory judgment action that it filed against the same insured. The underlying state court suit stemmed from a motor vehicle accident in which a number of occupants were seriously injured. Following this accident, County Hall, Mountain View’s Insurance provider, filed a declaratory judgment action against Mountain View and John Humes, arguing it was not obligated to provide coverage under the policy because John Humes was not a scheduled driver of Mountain View and any punitive damages awarded are not recoverable under the policy. When Mountain View and Humes failed to file an answer, County Hall requested default judgment be entered against them. Around the same time, individuals who were allegedly involved in the underlying motor vehicle accident filed a motion to intervene, arguing that they had a claim to the property at the center of insurance company’s declaratory judgment, and thus they should have the ability to protect their interests. The Court denied the non-parties attempt to get involved in County Hall’s declaratory judgment against Mountain View. The Court ruled that under federal law, “strangers to an insurance contract cannot intervene as of right in a declaratory judgment action…to establish scope of coverage.” Although the non-parties claimed their economic interest in the applicability of the policy was sufficient to support their motion, the Court disagreed, stating the “mere economic interest in the outcome of litigation” is insufficient to the support the motion. In short, despite the outcome of County Hall’s declaratory judgment having a practical effect on the non-parties ability to recover in their personal injury suit, they have no right to participate in the action. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Who’s Behind the Wheel? Unlisted Resident Driver Exclusion Applies (PA) September 19, 2017 < Back Share to: On September 18, 2017, the Superior Court of Pennsylvania affirmed summary judgement in favor of Safe Auto Insurance Company (“Safe Auto”) in Safe Auto v Oriental Guillermo. The case stems from a two-car motor vehicle accident in Allentown, Pennsylvania on April 29, 2013. Rachel Dixon was driving a car that her boyfriend, Rene Oriental-Guillermo (“Oriental-Guillermo”) owned, and Priscila Jimenez was a passenger in the other vehicle. Guillermo insured his car through Safe Auto, which had an Unlisted Resident Driver Exclusion, which excluded from coverage those individuals who lived with Oriental-Guillermo, but were not related to him and whom he did not specifically list on the policy. Here, Dixon lived with Oriental-Guillermo, but was not related to him and was not listed as a driver on his policy. On May 13, 2015, Safe Auto filed a declaratory judgment action to enforce the Exclusion, and Safe Auto's a motion for summary judgement was granted by the trial court. The trial court enforced the Exclusion and held that Safe Auto had no duty to defend or indemnify Dixon. Priscila Jimenez and Luis Jimenez timely appealed arguing that: (1) the Exclusion does not apply to the facts of the case; and (2) the Exclusion is unenforceable because it violates the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. 7501 et seq. (“MVFRL”) and public policy of the Commonwealth of Pennsylvania. The court held that the policy language was unambiguous, and further stated that there is no dispute that Dixon lived with Oriental-Guillermo, is unrelated to him, and he did not list her as an additional driver on the policy. Thus, the trial court properly found that the exclusion applied and Safe Auto was not obligated to defend Dixon. Next, the court considered whether the Exclusion violated the public policy expressed in the MVFRL. Appellants specifically argued that the Exclusion contravenes the MVFRL’s requirement that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance. The court held that this argument supports the trial courts interpretation of the exception because it places the onus on the owner of the vehicle to ensure that everyone who drives his car have insurance. There is no provision in the MVFRL that suggests the legislature intended to shift the risk to insurance companies to insure unidentified individuals who live with the insured, but are not related to the insured. Finally, the court held that the Exclusion does not violate public policy. Appellants argued that the Exclusion is contrary to the MVFRL by analogizing it to a Named Driver Only Exclusion. This type of policy allows a policyholder to exclude certain individuals from his or her policy. But the court ruled that the legislature placed the burden on the insured to make sure that individuals who drive the insured’s vehicle have insurance -- the insurance company does not bear that burden. Thus, the court affirmed the trial court ruling and concluded that Safe Auto was entitled to Summary Judgment. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact