News Right to Deny Spousal Coverage Upheld (NY) July 25, 2012 < Back Share to: Although “spousal immunity” no longer exists in New York as a bar to civil lawsuits by one spouse against another, under Section 3420(g) of the New York Insurance Law, an insurer does not need to provide coverage for a personal injury claim asserted by a spouse unless the policy provides for that specific type of coverage. The legislature passed the statute with the intent to prevent spouses from colluding to seek to recover for fraudulent liability claims. Recently, in Osuna v. GEICO, the Eastern District of New York was presented with a interesting challenge to Section 3420(g) on the basis that the law was unconstitutional as a “bill of attainder.” The insured commenced an action against GEICO, his auto insurer, seeking coverage for a personal injury claim made by his wife. The insured then moved for summary judgment claiming that Section 3420(g) is a constitutionally prohibited bill of attainder. In prior litigation, the Supreme Court has held that a “bill of attainder is a legislative act which inflicts punishment without a judicial trial.” United States v. Lovett. In brief, plaintiff claimed that the statute “specifically targets lawfully married persons solely by virtue of their marriages,” which was, in effect a marriage penalty. The court did not agree with the insured’s characterization of Section 3420(g), and ruled that the law is constitutional because there is no “punishment” as defined by both the Supreme Court and the Second Circuit. The noted that the increased premium required for supplemental spousal insurance pursuant to Section 3420(g) does not compare to historically forms of “punishment,” such as death and imprisonment. Citing the Second Circuit’s decision in ACORN v. U.S., the court ruled that there was also no “grave imbalance or disproportion between the burden and purported nonpunitive purpose.” The “burden” was not a heavy one, as the insured simply had to pay an additional premium to include a spouse in the insurance policy. Requiring the payment of a fee to extend coverage to a spouse “can be reasonably said to further the nonpunitive ends of the statute,” which is to prevent collusion and fraud. Finally, the court found that the insured failed to demonstrate that the legislature clearly intended to inflict punishment. Thanks to Steve Kay for his contribution to this post. If you would like more information please write to mbono@wcmlaw.com Previous Next Contact

News Borgata goes All In on Marked Card Theory (NJ) July 25, 2019 < Back Share to: The odds are always in the house’s favor. While that maxim has proven true over the years, the Borgata Hotel has been testing that theory in a court of law. After poker star Phil Ivey and Cheng Sun flipped the odds in a series of baccarat games back in 2012, the house filed a federal lawsuit on the grounds that Ivey and Sun won $10 million by creating marked cards to shift the odds in their favor. But how exactly did Ivey and Sun mark the cards? In 2012, Ivey and Sun agreed to play a series of Baccarat games at the casino, under a number of agreed-upon conditions. For example, the games would take place in a private room, the cards were to be purple-backed and dealt from a shoe. During the game, Sun arranged for the cards to be arranged in a certain manner and because she could identify small differences on the back of the cards, and the players bet accordingly, the odds shifted in the players’ favor and they won millions. Although the Trial Court decision acknowledged the players did not mark the cards “in a traditional way,” it held that Ivey and Sun engaged in a scheme to create a set of marked cards and placed bets on the markings. In doing so, the court reasoned that the term “marking” in this context includes setting the orientation of a card in such a way that the value of a flipped card can be determined. Obviously, the case is on appeal to the Third Circuit. On appeal, attorneys for the players argue that turning of cards violates none of the rules of baccarat and that a criminal statute banning the marking of cards should be narrowly applied only to cards that are marked, in other words, physically altered. Casinos have long taken the Hunger Games greeting of “may the odds be ever in your favor” to heart. At some point in the future, the odds will be ever in their favor. The question is, will new legislation tilt the odds back to the house? Or will Ivey pay through the nose? Stay tuned. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

Michael A. Bono Executive Partner New York, New Jersey mbono@wcmlaw.com +1 212 267 1900 Professional Experience Michael A. Bono is an Executive Partner at Wade Clark Mulcahy LLP and a leading New York litigator, whose practice centers on high-exposure property, casualty, construction, and specialty-risk disputes. He represents businesses and individuals, including public figures in media, sports, entertainment, and politics. He also defends regional, national, and international insurers, lawyers and other professionals in E&O matters, property owners and construction entities in Labor Law cases with catastrophic injuries, and transport and art-world clients in complex state and federal litigation. With more than twenty-five years of litigation and trial experience, Michael has handled cases at every level of New York’s courts— from trial courts to the New York Court of Appeals, where he successfully argued Forman v. Henkin , the landmark decision setting the statewide standard for social-media discovery in personal-injury litigation. Michael regularly serves as counsel to insurers in first-party property claims, including fraud investigations, coverage litigation, jewelers block and diamond recovery, cargo/bailee, art law cases, subrogation, and other specialty risk matters. Before joining WCM, Michael was a Senior Assistant District Attorney with the Kings County District Attorney’s Office. As an ADA, Michael prosecuted violent felonies and investigated complex narcotic networks and conspiracies. Michael also supervised junior prosecutors and assisted in the training of attorneys and police officers. Michael has also worked for a law firm specializing in the defense of fraudulent insurance claims. Honors and Distinctions At Fordham University, Michael served on the Environmental Law Journal and was a member of the Dean’s List. He was also a magna cum laude graduate of Villanova University. Professional Activities Michael has been elected to membership in the Federation of Defense & Corporate Counsel and the Claims and Litigation Management Alliance. He is also a member of DRI, the Professional Liability Underwriting Society, and the North American Contingency Association. Michael is a frequent lecturer and has conducted seminars before such organizations as the International Underwriting Association of London, the New York State Bar Association, as well as for numerous clients. Publications The Poison Pill? Settling Damage Claims Involving Living Artists (co-author Michael A. Bono): International Fine Art and Specie Conference, Rome, Italy. Sandy’s Impact on Fine Art and Property Insurers IUA Event: London (co-author with Dennis M. Wade). Fine Art and Collectible Losses: Framing the Value Issues (International Underwriting Association, London, England) (co-author with Dennis M. Wade). The Basics of Oral Examination: Understanding the Rules and Law of Depositions Pursuant to the CPLR (New York State Bar Association). The Examination Before Trial: What to Do Before Calling the Court (New York State Bar Association). What Fine Art Insurers Really Need to Know About the Visual Artists Rights Act (VARA) (co-author with Dennis M. Wade). The Anatomy of a Bust Out: The Implications of Bankruptcy and Bankruptcy Fraud for Property, Fine Art and Specie Insurers (International Underwriting Association, London, England) (co-author with Dennis M. Wade). Defending Underwriters, Claim Professionals and Brokers in US Coverage Litigation (International Underwriting Association, London, England) (co-Author with Dennis M. Wade). Getting it Back: Recovering Stolen Property in the United States (International Underwriting Association) (co-author with Dennis M. Wade). News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Fordham University School of Law B.S.B.A. Villanova University Bar Admissions New York New Jersey Pennsylvania Court Admissions Eastern District of New York Southern District of New York District of New Jersey

News "Watch your Step" - Court Upholds Defense Verdict in Light of Jury Instruction (PA) April 10, 2019 < Back Share to: The phrase “watch your step!” has new meaning when it comes to jury instructions. At least that’s what the plaintiff, Donna Kaminski, found out in Kaminski v. Sosmetal Products, Inc., et al. (Pa. Commw. Ct. 2019) when she filed a negligence suit against the defendant property owners. The Commonwealth Court of Pennsylvania decided the case following the plaintiff’s appeal of her post-trial motions after the trial court ruled against her. Plaintiff tripped and sustained injuries while walking on a public sidewalk that abutted the Defendants’ property. As a result, Kaminski sued Sosmetal Products, Inc. and the trustees, who are the property owners. In her complaint, Kaminski argued that “a dangerous, negligent and/or defective condition, existed on [D]efendants’ premises and sidewalk . . . and [D]efendants knew or should have known of the existence.” Ultimately, the defendants admitted to responsibility for the sidewalk and its upkeep. Despite this fact, after asking clarifying questions, the jury decided in favor of the defendants. The decision ultimately came down to three jury instructions that were given. Following the trial court decision, plaintiff filed an appeal arguing that only one jury instruction, Pa. SSJI (Civ) 18.80, should have been given. This instruction basically says that those who have the obligation to maintain a sidewalk that abuts their property have a duty to keep the sidewalk “reasonably safe” and to avoid “unreasonable risk of harm to pedestrians who properly use the sidewalk.” The other two instructions dealt with the classification of a pedestrian walking on a public sidewalk (invitee, licensee, or trespasser) and the duty of care for a licensee, respectively. In this appeal, the plaintiff had to demonstrate that the court below had made an error of law or abused its discretion. Plaintiff disagreed with the fact that she was considered a licensee and felt that this instruction unfairly influenced the jury. The court disagreed with the plaintiff’s assertions. First, it contended that it has been well-established under Pennsylvania case law that those who use public sidewalks in the manner of Kaminski’s case are considered licensees, citing Alexander v. City of Meadville, 61 A.3d 218, 221-22 (Pa. Super. 2012). Additionally, the court stated that Restatement Section 342 clearly outlines how licensees, such as the plaintiff, are to be treated by the property owners in regards to a duty of care. Ultimately, the court felt that it would be inappropriate to allow for Pa. SSJI (Civ) 18.80 to be read to the jury without the other two instructions. Therefore, the lower court did not act in error. The bottom line is that plaintiffs cannot dictate the inclusion or exclusion of jury instructions in negligence cases just to suit their arguments and they cannot ignore case law that has clearly established a specific position that may not suit their case. The trial court did not abuse its discretion by including all three jury instructions -- contrary to plaintiff's argument on appeal. Thanks to Gabi Outlaw for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News DUI: Compensatory or Punitive Damages? (PA) June 13, 2019 < Back Share to: The Pennsylvania Court of Common Pleas, Lawrence County, recently addressed whether individuals who cause damages as a result of driving while intoxicated are automatically liable for punitive damages. In Tornabene v. Crivelli, Defendant Crivelli operated a vehicle while under the influence of alcohol when he struck Plaintiff’s vehicle causing significant injuries to the Plaintiff. Plaintiff sued the Defendant seeking, inter alia, punitive damages. Under Pennsylvania law, "punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. In Tornabene, the court found there was no evidence that the Defendant had a subjective appreciation of the risk of his actions. Specifically, Plaintiff's complaint lacked any specific details of Defendant’s state of mind at the time of the crash, or that in his state he consciously disregarded the risk of driving while intoxicated. Additionally, there was no evidence of how Defendant's inebriation affected his driving. Further, there were no details about the manner in which Defendant operated his vehicle such as: his estimated rate of speed in relation to other traffic; his use/nonuse of turn signals as he changed lanes; any near collisions with other drivers; any use of a cell phone while behind the wheel; or any other distractions or decisions that would have impeded his safe operation of the vehicle. Further, the Court laid out certain criteria that could have been included to bolster the punitive damages claim: whether Defendant consumed alcoholic beverages while behind the wheel or prior to entering the vehicle, and how many; whether Defendant manifested signs of intoxication at the incident scene (such as slurred speech, bloodshot eyes or an unsteady gait); whether any tests were performed by law enforcement and the results, if any, such as blood alcohol concentration (BAC) or field sobriety tests; or whether Defendant was criminally cited for any alcohol consumption. Although arguments were made that driving while intoxicated necessarily indicates a conscious disregard such that punitive damages should apply, based on this case, it appears that some Pennsylvania courts may not agree with this argument. Thank you to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News US Government Sues Dinosaur; Court Says Fossil Skeleton is like Frankenstein September 20, 2012 < Back Share to: The US Attorney’s Office recently filed a complaint seeking the forfeiture of a Tyrannosaurus skeleton. The skeleton was imported from Great Britain to Florida to a company called Florida Fossils and later auctioned in New York. The Mongolian government obtained a temporary restraining order to prevent the sale from being finalized, alleging that the Tyrannosaurus was a “bataar,” a species native to Mongolia. Pursuant to Mongolian law, fossils are considered property of the government and Mongolia is a signatory to the United Nations Convention that prohibits the smuggling of cultural property. The US Attorney’s office thus filed this forfeiture action (against the name of the property to be seized) in an effort to have the skeleton returned to Mongolia. Florida Fossils, however, moved to dismiss the complaint, alleging that a significant portion of the skeleton came from different bones already owned by the claimant that were not related to the bataar, and that the claimant had assembled different pieces into a larger skeleton. The Court, who referred to the skeleton as a “kind of Frankenstein model,” gave the Government an opportunity to amend the complaint to clarify this point as well as other issues, including whether such a dinosaur could have come from a place other than Mongolia. It will be interesting to see whether the “Frankenstein defense” works, either in this matter or in other cases involving disputes over cultural property, including art. If you have any questions about this post, please write to mbono@wcmlaw.com Previous Next Contact

News Advertise Away, It Has Little to Do With Venue (PA) March 10, 2017 < Back Share to: On March 8, the Superior Court of Pennsylvania affirmed a lower court’s decision to transfer venue in Wyszynski v. Greenwood Gaming & Entertainment, Inc. Wyszynski v. Greenwood Gaming & Entertainment, Inc., The case arises out of an alleged slip and fall that Wyszynski suffered in the restroom of Parx Casino in Bensalem, Pennsylvania. The complaint was originally filed in Philadelphia. Defendant Greenwood Gaming & Entertainment, Inc. (“Greenwood”) filed preliminary objections, arguing that venue was improper and that the case should have been filed in Bucks County. Greenwood argued that it did not regularly conduct business in Philadelphia. The Philadelphia Court of Common Pleas granted Greenwood’s preliminary objections and transferred the case to Bucks County. Wyszynski then appealed, arguing that Greenwood advertises heavily in Philadelphia. In Pennsylvania, a plaintiff’s choice of forum is given great weight. An action against a corporation, in Pennsylvania, may be brought in the county where its registered office or principal place of business is located, a county where it regularly conducts business, the county where the cause of action arose, or a county where the transaction or occurrence took place out of which the cause of action arose. Greenwood has its office in Bucks County and neither party disputed that the cause of action arose in Bucks County as well. Wyszynski argued, however, that Greenwood “regularly conducts business” in Philadelphia. Pennsylvania applies a quality and quantity test to determine if a business regularly conducts activity in a county. Quality acts mean those directly, furthering, or essential to corporate objectives. It does not include incidental acts. Quantity means those acts that are so continuous and sufficient to be general or habitual. Those acts in aid of a main purpose are incidental while those necessary for the corporation’s existence are direct. Numerous courts in Pennsylvania have held that mere solicitation of business does not amount to conducting business in a county. Wyszynski pointed to the fact that Greenwood had substantial advertisements in Philadelphia newspapers, magazines, on radio stations, on television, and sponsoring events in Philadelphia. The court disagreed with her, however, and held that advertising is incidental to the purpose of business. They further stated that advertising, no matter how pervasive, cannot satisfy the quality and quantity analysis. This case demonstrates the importance of analyzing a business’s activities in different counties when it is a defendant in a case. Looking at a company’s website and asking a corporate rep about their advertising and activities in the area can give defense counsel an insight into whether the case can be transferred to a more defense-friendly venue. This little bit of homework at the beginning of a case can lessen liability and lead to reduced verdicts in the long run. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News In Philly, Neither Artists Nor &quot;Red Hot Sex&quot; Give Rise to a Federal Cause of Action. June 16, 2010 < Back Share to: Perry Milou is a pop artist -- http://www.perrymilou.com/website/. To make himself better known, back in 2007, he decided to host an art exhibition and show entitled "Red Hot: The Art of Sensuality and Sexuality" -- http://pdf.wcmlaw.com/pdf/Red Hot Website.pdf. The exhibition included art work and couple's sessions on such topics as body piercing, pole dancing and spanking. The problem? His landlord at Rittenhouse Plaza in Philadelphia -- one of the most prestigious buildings and locations in the City -- didn't want such an exhibition on its premises. He was told that if the exhibition went forward, his month to month lease would be terminated. So what did Mr. Milou do? He had the exhibition. And, his landlord terminated the lease. A press furor resulted. http://abclocal.go.com/wpvi/story?section=news/local&id=5746584 But then the public lost interest and the case went away, until, that is, this past February when Mr. Milou went legal. He claimed that his First Amendment rights had been violated. He made this claim by first alleging that he, an artist, was a member of a suspect class entitled to Sec. 1985 protection. When this didn't work, he claimed that his landlord was acting under color of state law and made a Sec. 1983 claim. In a case with which we are quite familiar, the lawsuit has just been dismissed by USDC Judge Dalzell in the Eastern District of Pennsylvania. http://pdf.wcmlaw.com/pdf/Red Hot Opinion.pdf The decision is quite funny on its own (especially footnote # 1) and James Madison does not have to roll over in his grave. If you would like more information about this post or WCM's First Amendment defense practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Do CGL Policies Now Insure Data Breaches? April 29, 2016 < Back Share to: The case that everyone is talking about is Travelers Indemnity v. Portal Health, a just released, unpublished Fourth Circuit opinion. The quick story is that the Fourth Circuit affirmed the trial court opinion and held that Travelers owed coverage (specifically defense) under a CGL policy for a data breach. The real story is a bit more nuanced. In the case, Portal Healthcare, a Virginia based company, was sued in NY in a class action lawsuit. In the lawsuit, patients of Glen Falls Hospital claimed that Portal Healthcare failed to safeguard medical records entrusted to Portal Healthcare by the hospital and instead allowed those records to be posted on the internet – accessible to everyone via a Google search. Portal Healthcare was insured by Travelers under two consecutive commercial general liability insurance policies – a 2012 policy and a 2013 policy. The Policies were not standard policies – rather they contained special endorsements that expanded the scope of personal injury, advertising injury and web site injury. Specifically, the 2012 Policy contained a Web Xtend Liability Endorsement that deleted and replaced the definition of Personal and Advertising Injury liability. The 2013 Policy contained an Amendment of Coverage B – Personal And Advertising Liability Endorsement that deleted and replaced the definition of Personal and Advertising Injury liability. Under both endorsements, the parties (and court) seemed to agree that coverage was triggered if the underlying complaint alleged: (1) injury arising out of the offense of “electronic publication of material that . . . gives unreasonable publicity to a person’s private life” (the language utilized in the insuring agreement of the 2012 Policy) or (2) injury caused by the offense of “electronic publication of material that . . . discloses information about a person’s private life” (the language utilized in the insuring agreement of the 2013 Policy). In respect of the first point, Travelers argued that, although the data was available to the general public, since Portal Healthcare did not intend to publish it, publication did not occur. This argument was rejected by the court which held that it was the fact of publication (and not the intent of publisher) that mattered. In respect of the second point, Travelers argued that there was no “publicity” given to a person’s private life as the leak was not intended to generate publicity. This argument was also rejected by the court which held that since the leaked data was available to the general public, publicity had occurred. All of this seems rather straightforward, so why all the fuss? It seems that a top sheet review might be to blame. When you look at the trial court’s decision and the policies themselves, you see that the Travelers’ decision to broaden the scope of potential claims that would qualify as “personal and advertising injury” is the root cause of the decision. So, it’s true that CGL policies might have more potential exposure to data breaches – but only if you enhance the coverages. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Failure to Retain Evidence Leads to Dismissal of Plaintiff's Case January 23, 2009 < Back Share to: In Firemen's Insurance Company of Washington v. Krenitsky, a New York judge held that the failure of the plaintiff to retain a key piece of evidence in a subrogation action warranted dismissal of the complaint. The case arose from a fire on July 11, 2004 in a Manhattan apartment building. After gaining access to the apartment and upon concluding that the stove was the source of the fire, the plaintiff's expert advised the plaintff's subrogor, the building owner, to retain the stove for future examination by interested parties. However, when the defendants requested an inspection of the stove during discovery, the plaintiff advised that the stove could not be found. The court granted the defendants' spoliation motion based on the failure of the plaintiff to preserve the stove after the plaintiff was put on notice, based on its own expert's report, that the stove held the key to the cause and origin of the fire. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50066.htm Previous Next Contact

News Recycled Supermarket Video not Spoliated (NJ) January 8, 2016 < Back Share to: Injured plaintiffs typically request video surveillance footage from the commercial location where he or she is injured and such videos must be turned over during discovery. When footage that previously existed is no longer available, a claim for spoliation of evidence - or the intentional, bad faith destruction of relevant evidence – may be made under certain circumstances. If successful, such a claim can warrant sanctions like exclusion of an expert report or dismissal of a claim. But a recent case, Van De Wiele v. Acme Supermarkets, shows that not every case of missing footage will be considered spoliated. Immediately following the plaintiff’s fall in a supermarket, she reported the accident to the assistant store manager who promptly reviewed the surveillance footage; neither the plaintiff nor her accident was captured by the store’s cameras. Fast forward eight months: the plaintiff notifies Acme of a lawsuit and demands the video, which had been recycled within 30 to 60 days from the date of the accident in accordance with the store’s retention policy. In response to the plaintiff’s claim for spoliation of evidence, the District Court looked at five factors: whether the evidence was in the party’s control; whether the evidence is relevant to the claims or defenses in the case; whether there had been actual suppression or withholding of the evidence; whether the duty to preserve the evidence was reasonably foreseeable to the party in possession of it; and whether or not the destruction was done in bad faith. When put to the test, plaintiff’s claim survived only the first element. The Court found that the failure of the cameras to capture the plaintiff or her accident rendered the video irrelevant, and an eight month delay in the first notice of a lawsuit relieved Acme of reasonable foreseeability of potential litigation. Although the Court did not directly address the third element, it found that automated destruction of video footage pursuant to an established policy does not sound in bad faith. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News NJ Insurance Rescinded For Misrepresented "Spouses" January 13, 2010 < Back Share to: New Jersey Manufacturers Insurance Company was granted dismissal of an uninsured motorist claim when its rescission of a policy was enforced. The insured driver had misrepresented in her insurance application that she was married when, in fact, she was living with her fiancé. The insurer presented evidence that it would not have issued the policy had it known that the two were not wed. Instead, she would have been referred to a subsidiary company and quoted a significantly higher premium. Thus, the misrepresentation was material to the decision to write the policy. The insured persuaded the trial judge that her misstatement was not a willful concealment to induce the insurer to issue the policy. However, in an unreported decision, the Appellate Division made clear that a misrepresentation of an objective truth that is material to the underwriting process will support rescission if the insurer relied upon it regardless of the insured’s motive for the misrepresentation. See Henriques v. New Jersey Manufacturers Insurance Co., 2009 WL 5125021 found at http://www.judiciary.state.nj.us/opinions/a2755-08.pdf If you would like more information regarding this post, please email Denise Ricci at dricci@wcmlaw.com . Previous Next Contact