News Call Your Next Witness - Dr. Justin P. Schorr August 4, 2021 < Back Share to: On this week's episode, Georgia Coats and Brian Gibbons interview Dr. Justin P Schor an engineer and collision reconstruction expert with DJS Associates, Inc. -- a family owned forensic engineering firm where Dr. Schorr has worked since he was a child. In addition to his collision reconstruction and biomechanical experience, we spent much of the interview discussing autonomous vehicles. Many of us have heard or read about self-driving cars and the potential impact -- good or bad -- on the number of accidents that would result from their rollout. But as Justin points out, autonomous vehicles will necessarily be data collection systems so that they can communicate with other autonomous vehicles. Will the majority of drivers sign up to have all their vehicle's movements recorded? What's more, some studies show 90% of vehicles will need to be autonomous before we realize tangible safety improvements. Even if we start mass producing autonomous cars exclusively -- which we are not -- that 90% threshold is years away. Very interesting topic, that veered into data privacy issues that we did not anticipate. Listen here: https://lnkd.in/eZ4yebHe. For more info about Justin and his team of engineers, check out www.forensicDJS.com . If you're interesting in being a guest on Call Your Next Witness, please contact Brian Gibbons or Georgia Coats. Previous Next Contact

News First Department Holds Insurer May Disclaim Under Construction Classification Codes June 7, 2024 < Back Share to: In Wesco Ins. Co. v. SR Delco C.S.M. Inc., 226 A.D.3d 630 (N.Y. App. Div. 2024), the New York Appellate Division, First Department was faced with a familiar insurance coverage fact pattern: an insurance carrier issued a policy to a general contractor, which hired an interior carpentry subcontractor and, during the subcontractor’s work, an employee of the subcontractor was injured and sued the subcontractor and general contractor. The general contractor sought insurance coverage from its insurance company in the form of a defense against the injured employee’s claim. In Wesco v. Delco, the insurer initially provided the insured with a defense. However, several months into the defense, the insurer disclaimed coverage based on the insurance policy’s classification codes. The policy included language limiting its coverage to specified types of construction work. Although the covered classification codes included interior carpentry, the insurer argued that the insured general contractor was not itself performing interior carpentry work, and therefore the general contractor was not entitled to coverage. The court agreed and affirmed the trial court’s grant of summary judgment in favor of the insurer because the claim for coverage fell outside the scope of the policy. The First Department also noted that a disclaimer of coverage under a policy classification code is not an exclusion and is therefore not subject to the timeliness requirements of New York Insurance Law § 3420(d)(2). Wesco Insurance Company v. SR Delco CSM Inc .pdf Download PDF • 138KB Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com Contact

News Is Mailed Notice of a Policy Change Sufficient? A PA Jury Will Decide. February 1, 2013 < Back Share to: A jury is set to determine whether the addition of a “household exclusion” provision in an automobile insurance policy rises to the level of a material change, such that it would require proof that the insured was notified of and understood the change to his subsequent coverage. In Oesterling v. Allstate Insurance, the plaintiff, Robert Oesterling, was injured in a 2006 accident involving his motor scooter which was not covered under his Allstate insurance policy. Though his original 1998 policy did not include a household exclusion, it was incorporated into the terms of his policy in 2005, and he received notice in the mail which he now contests was inadequate. When faced with the issue, Lawrence County Court of Common Pleas Judge Thomas M. Piccione distinguished cases where an insured specifically requests a level of coverage that was unilaterally reduced at a later point in time, from those where the insured failed to read the policy with the detail necessary to discover regular exclusions. The judge noted that although Oesterling’s original 1998 policy would have provided him with coverage for his accident, the household exclusion served to block coverage for vehicles not specifically covered under the policy, including his motor scooter. While Allstate notified Oesterling of the change to his policy in a mailer with “Important Notice” printed in large, bold font and the mailer clearly and unambiguously expressed the addition of the household exclusion provision, and instructed Oesterling to read the relevant changes and contact his insurance agent if he was confused or needed clarification, the court ruled that a jury must decide whether an "Important Notice" advisory notice was legally sufficient to change the scope of coverage. Special thanks to Samantha Berman for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Additional Insurance Claim Torched Based on Lack of Indemnity Agreement (NY) January 8, 2016 < Back Share to: In American Ins. Co. v Schnall, the Appellate Division, First Department recently dealt with the issue of whether blanket additional insured coverage could be triggered simply by an agreement between the parties to procure such coverage - without an indemnity agreement between the parties. Brooklynbaca, LLC, doing business as The Brooklyn Star operated a bar and restaurant in the Brooklyn neighborhood of Williamsburg. In order to better serve its (hipster) patrons, Brooklynbaca contracted with Scientific Fire Prevention Company to install a cooking exhaust duct in the restaurant. The service agreement contained an insurance procurement provision in favor of Scientific but Brooklynbaca did not assume Scientific’s tort liability. A fire erupted in the restaurant’s kitchen damaging the building owner’s property. American Insurance Company insured Brooklynbaca under a liability policy. Scientific sought coverage under the American policy’s additional insured endorsement which provided coverage to organizations that Brooklynbaca was “required by a written insured contract to include as an insured.” The parties became embroiled in litigation and Scientific sought a declaration that it was entitled to additional insured coverage. A New York State trial court denied the insurers’ motion for summary judgment and an appeal followed. The First Department reversed the trial court finding that although the service agreement contained an insurance procurement provision it did not require that Brooklynbaca assume any tort liability on the part of Scientific. As such, without a clause requiring Brooklynbaca’s assumption of tort liability, the service agreement did not constitute a “written insured contract.” The First Department thus found that Scientific was not entitled to additional insured coverage under the American policy. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

Theories of claimed premises defects resulting in injury or death have virtually no limits, save for the creativity of the plaintiffs’ bar. WCM attorneys have an unmatched reputation for challenging those theories and developing creative defenses to avoid or mitigate liability. WCM lawyers have defended cases across the entire spectrum of premises liability–cranes, scaffolds, elevators, explosions, defective mechanisms, slippery surfaces, cracked sidewalks, and more. WCM is also expert in security cases. We have successfully defended many businesses, including hotels and shopping centers, against claims that patrons suffered attacks for want of adequate security. We may not have seen everything (yet) but our deep experience gives us an edge in meeting the challenges of what is around the corner. Premises Liability Theories of claimed premises defects resulting in injury or death have virtually no limits, save for the creativity of the plaintiffs’ bar. WCM attorneys have an unmatched reputation for challenging those theories and developing creative defenses to avoid or mitigate liability. WCM lawyers have defended cases across the entire spectrum of premises liability–cranes, scaffolds, elevators, explosions, defective mechanisms, slippery surfaces, cracked sidewalks, and more. WCM is also expert in security cases. We have successfully defended many businesses, including hotels and shopping centers, against claims that patrons suffered attacks for want of adequate security. We may not have seen everything (yet) but our deep experience gives us an edge in meeting the challenges of what is around the corner. Practice Lead Georgia Coats Partner +1 212 267 1900 gcoats@wcmlaw.com Download Download

News Pennsylvania Court Further Dilutes the Legal Landscape on Business Insurance Coverage During Covid-19 June 3, 2021 < Back Share to: In MacMiles LLC v. Erie Insurance Exchange, the Allegheny Court of Common Pleas granted partial summary judgment in favor of plaintiff, a Pittsburgh tavern, holding it suffered “physical loss” because of the COVID-19 pandemic, and therefore entitled to reimbursement by its insurer. Erie issued MacMiles (d/b/a Grant Street Tavern) an insurance policy providing coverage for any direct “physical loss or direct physical damage,” unless the loss or damage is specifically excluded or limited by the policy. After MacMiles was forced to close on Governor Wolf’s orders as it was a “non-essential business” in Pennsylvania, it submitted a claim for coverage to Erie, who thereafter denied the claim. MacMiles sued Erie for breach of contract and declaratory judgment as to the business income protection provision of the policy. Then, MacMiles filed a motion for summary judgment arguing it suffered “direct physical loss or damage,” and therefore should be reimbursed because “direct physical loss or damage” includes loss of use of the tavern. Erie argued “direct physical loss or damage” requires some physical altercation or demonstrable harm to the property. The court ruled against Erie holding the insurer did not define the terms at issue, and thus, the court must use the words’ ordinary meaning to ascertain the parties’ intent. Here, the court focused on the disjunctive “or” to find that MacMiles’ interpretation was reasonable if it either suffered “direct physical loss” or “damage.” The court accepted the definition of damage as “loss of harm resulting from injury to person, property, or reputation.” The court also defined loss as “destruction, ruin . . . [and/or] the act of losing possession [and/or] deprivation.” MacMiles suffered loss because it was deprived of business due to COVID-19 closure. Granting the policyholder summary judgment here was departure from the majority of Pennsylvania courts that have found in favor of insurers denying claims by restaurants for COVID-19 related business losses. Thanks to John Lang for his contribution to this post. Should you have questions, please feel free to contact Tom Bracken. Previous Next Contact

News Tort Claim Must Be Valid In Pennsylvania To Claim Civil Conspiracy April 7, 2023 < Back Share to: In recent case Summers v. Extrity LLC, United States District Court for the Eastern District of Pennsylvania held that in order to state a viable cause of action for a civil conspiracy to engage in some underlying conduct, the underlying conduct must itself give rise to a “valid underlying tort claim.” Summers v. Extrity, LLC, No. CV 22-3918, 2023 WL 1102334, at *1 (E.D. Pa. Jan. 30, 2023). In Summers, Plaintiff was hired and working as a security guard for Defendants, when his supervisor began “outing” him as transgender to various other employees. Consequently, Plaintiff began receiving threats, and harassing texts from coworkers, and despite reporting this to Defendant-employer, nothing was done to address the situation, and eventually one of Plaintiff’s coworkers assaulted him. Threats continued coming from various coworkers, and when Plaintiff finally confronted his boss about the dangers of having outed him, Plaintiff was fired. Upon being fired, Plaintiff continued to receive threatening texts from his former coworkers. Plaintiff “filed a ‘Charge of Discrimination’ with the United States Equal Employment Opportunity Commission (“EEOC”) for gender discrimination in violation of Title VII and the Pennsylvania Human Relations Act. … He received a ‘Right to Sue’ letter and brought this action [alleging in part, Intentional Infliction of Emotional Distress (“IIED”), and Civil Conspiracy to Commit the same]. … Defendants now move to dismiss Counts VI and VII of the Amended Complaint for failure to state a claim upon which relief may be granted.” Summers grounded his IIED claim on the allegation, that his employer, Extrity, “directed its employees or agents …to message him, with the intent to intimidate him and dissuade him from suing the company.” Exrity argued that this allegation was entirely conclusory, and that the pleadings did not sufficiently connect the company to the post-termination texts. The court agreed with Extrity, finding that Summer’s allegations while possible, were not plausible. As such the Court dismissed the IIED claim. The Court then addressed the separate count of civil conspiracy to commit IIED. The court posited that: To state a claim for civil conspiracy, a plaintiff must show: “(1) a combination of two or more persons acting with a common purpose to do an unlawful act ...; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.” (internal citations omitted). However, “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” From here the court concluded because there was no viable claim for IIED, there cannot be a viable claim for Civil Conspiracy to commit IIED. Summers is a victory for civil defendants, in that it upholds an important obstacle to proving civil conspiracy. It makes clear that a necessary element for sustaining a claim for civil conspiracy, is a viable claim for the underlying tort/unlawful act that a given set of defendants allegedly conspired to commit. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News "Caution Watch Your Step" Sign Constitutes Adequate Warning of a Step November 6, 2009 < Back Share to: In Broodie v. Gibco Enters, Ltd., the plaintiff fell and injured herself when she tripped on a step separating the bar area from the restaurant area at defendant's restaurant. Plaintiff claimed that while the step itself was safe, insufficient lighting in the area created a condition which was both inherently dangerous and a hidden trap, resulting in her fall and subsequent injury. Bronx Supreme Court disagreed, and defendants were awarded Summary Judgment. Plaintiff appealed. In affirming the decision of Supreme Court, Bronx County, the Appellate Division, First Department found that while landowners owe a reasonable duty of care to invitees, summary judgment may still be appropriate when the complained-of condition is both "open and obvious." The respondents offered evidence that a recessed lighting fixture in the ceiling provided adequate light to the step area. Moreover, there were one or more black and yellow signs warning "CAUTION WATCH YOUR STEP" posted in the vicinity. The plaintiff's deposition testimony that she still did not see the step before she fell was insufficient to raise a triable issue of fact. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact

News Jury Finds Against Building Owner in 5 Pointz VARA Case November 9, 2017 < Back Share to: 5 Pointz was a warehouse in Long Island City, Queens that was very well known because it was covered with ornate graffiti murals. The property owner, Jerry Wolkfoff, actually encouraged the graffiti and allowed a “curator” to organize the various artists and their projects. But eventually Wolfkoff decided to sell the warehouse to housing developers. The artists filed suit under Visual Artists Rights Act (VARA) in Cohen v. G&M Realty. VARA is part of the United States Copyright law (17 U.S.C. Section 106A), and applies to works of visual art such as paintings, drawings, prints, sculptures or photographs created for exhibition purposes. VARA grants two primary rights: The right of attribution permits artists to prevent the use of their name as the creator of a work in the event of distortion, mutilation, or other modification of the work that would be prejudicial to their honor or reputation.The right of integrity enables artists to prevent the intentional distortion, mutilation or other modification of a work that is harmful to their honor or reputation. For a work of a “recognized stature,” the right of integrity includes the right to prevent any intentional or grossly negligent destruction of the work. The 5 Pointz artists sought to obtain a preliminary injunction to protect the art and to prevent the sale of the building, but Wolkoff suddenly painted the building white in the middle of the night to cover the graffiti. Judge Frederic Block, in federal court in Brooklyn, 5 Pointz TRO decision, finding that there was limited proof as to whether Five Pointz was a work of “visual art” of “recognized stature” as required by the VARA statute. Last month the case went to trial, and this week the jury returned its verdict, finding in favor of plaintiff. The specific verdict is not yet clear, but it appears that the jury considered whether 49 different works were of “recognized stature” and also whether the works were “distorted, mutilated, or modified in a way that would be prejudicial to the author’s honor or reputation.” It seems they reached different decisions for different works, and awarded a variety of damages. The entire verdict should be released shortly. And there is an interesting quirk: the parties agreed the jury verdict will be "advisory" and that the Judge will render the final decision -- so we will be certain to report in the future on the final outcome. Please e-mail Mike Bono with any questions or for more information. Previous Next Contact

News New Jersey Ongoing Storm Rule Applies to Commercial Private Property July 14, 2023 < Back Share to: In Pareja v. Princeton Int’l Prop., 246 N.J. 546 (2021), the New Jersey Supreme Court adopted the “Ongoing Storm Rule” which holds that a commercial landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after cessation of the precipitation. The Supreme Court created two exceptions to the rule: (1) where a commercial landowner creates an “unusual circumstance” that increases the risk to pedestrians and invitees on their property; and 2) if the dangerous condition is pre-existing such as failure to remove or reduce snow or ice from a previous storm. The rule has been extended to snow removal contractors. In Smith v. Costco Wholesale Corp., the Appellate Division recently addressed this rule in a case where plaintiff was injured in a fall in a Costco parking lot during a snowstorm. The trial court granted defendants motion for summary judgement based on the “Ongoing Storm Rule” and plaintiff appealed. The Appellate Division affirmed, holding that the trial court correctly found that plaintiff was unable to establish that the defendants owed a duty of care because the Ongoing Storm Rule applied. Plaintiff argued that the rule did not apply to privately-owned commercial property, and that exceptions to the rule applied. However, the Court observed that if a storm is ongoing, commercial landowners do not have an absolute duty, and the “impossible burden,” to keep sidewalks or walkways on their property free from snow or ice. The Court also noted that there was no indication in Pareja that the Supreme Court intended to apply the rule only to public property, adding that the task of removing snow during an ongoing storm was just as burdensome to commercial landowners on private property as it is on public property. The Court also found that plaintiff failed to show that an exception to the rule applied. Plaintiff argued that defendants exacerbated the risk because they did not allow her to take her shopping cart to her vehicle for support and also began snow removal operations before the storm. However, the Court found the argument without merit because plaintiff failed to tell Costco employees that she intended to use the cart as a means of support, and failed to show that the snow removal was done in a manner that would have increased her risk of injury. The Smith decision is significant in that it extends the “Ongoing Storm Rule” in Pareja to commercial private property and serves as a reminder that a landowner will generally avoid liability for accidents which occur during a snow/ice storm unless one of the exceptions apply. Landowners must act to remove the snow and ice within a reasonable time after a storm or face liability for any resulting accidents. Thank you to Jordan Davis for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Owner Not Liable For Unforeseeable Criminal Acts June 19, 2012 < Back Share to: In Rodriguez v. Camaway Realty Inc., Rodriguez was allegedly attacked by an intruder while at the defendant’s building and sued Camaway under a general negligence theory. The lower court denied Camaway’s motion for summary judgment. However, the appellate court reversed based on a finding that the alleged criminal activity was unforeseeable. Both parties testified that they knew of no prior criminal activity at the premises. Rodriguez did submit an affidavit from the building superintendent who stated that he had previously been struck by a tenant’s boyfriend, but the court noted that such an attack was insufficient to establish the necessary notice of prior criminal activity. Therefore, the court held that the attack on Rodriguez was unforeseeable as a matter of law. Thanks to Sandy Debbas for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2012/2012_04410.htm Previous Next Contact

News The New Normal (NY) August 21, 2020 < Back Share to: The New York Supreme Court Commercial Division has enacted a new rule that allows attorneys to request permission to appear remotely before commercial judges based on a showing of a good cause. The new rule is a clear shift from the status quo of courts operating on an ad hoc basis filled with administrative court adjournments and trial delays. However, what separates the Commercial Division's new rules from most other courts is that it provides attorneys with more autonomy to facilitate the progress of their client’s cases on the trial calendar. It is now incumbent on courts to allow a transition to a more digital platform by allowing remote participation and paperless submissions. We can safely assume that we are in the new normal, and the idea of returning back to pre-covid days any time soon is just a pipe dream that only delays bureaucratic operations even more than they were before the pandemic. Attorneys and court staff continue to acclimate themselves to the new changes and adapt to attending hearings and conferences remotely. Thanks to James Papadakis for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact