News Even Though He Couldn’t See, it’s Defendant’s Fault September 27, 2024 < Back Share to: In Fuentes v. 257 Toppings Path , Plaintiff Gregorio Fuentes was employed as a laborer to work on the new construction of a house on land owned by the defendant third-party plaintiff. During the course of construction, the plaintiff was spray-painting insulation in the attic space when he fell 16 feet through an opening in the attic floor. The opening was intended to be covered by a panel that would provide access to the attic upon completion of construction. Plaintiff alleged violations of Labor Law 240(1) and 241 (6). As we know, Labor Law 240(1) imposes upon owners, contractors, and their agents a nondelegable duty to provide workers proper protection from elevation-related hazards. In this matter, plaintiffs’ evidence established that the plaintiff was exposed to an elevation risk within the ambit of Labor Law 240(1) by virtue of the uncovered, unguarded opening in the attic floor, that he was not provided safety devices to protect him from that hazard, and that the failure to provide him proper protection from the uncovered, unguarded opening was a proximate cause of his injuries. The court granted plaintiffs’ summary judgment motion despite the fact that plaintiff testified that his visibility was poor due to the condition of a protective mask that he was wearing at the time of the accident. The court noted that any potential comparative negligence arising from this fact would not be a defense to the Labor Law 240(1) cause of action. Any comparative negligence on the part of the injured plaintiff does not preclude liability founded upon a violation of Labor Law 240(6). This decision is helpful and gives insight into our potential evaluations of cases where plaintiffs might be comparatively negligent. Despite plaintiff having his vision obstructed and then falling into the open space, it did not preclude the Labor Law violations. The fact that there is a violation of the labor law is enough and no negligence on plaintiff’s part is enough to preclude such violations. This is significant because we come across many cases where plaintiffs are negligent in the way they are conducting their work, however, if there is a labor law violation, it likely will not be precluded due to plaintiffs negligence. Fuentes v. 257 Toppings Path, LLC .pdf Download PDF • 332KB Previous Next Taylor Mitarotonda Taylor Mitarotonda Senior Associate +1 516 240 5938 tmitarotonda@wcmlaw.com Contact

News No PIP For You (NJ) July 11, 2019 < Back Share to: In Washington v. Progressive, the New Jersey Superior Court was asked to determine if the plaintiff, Jacquelyn Washington, was entitled to damages for personal injuries and UIM coverage following a January 2015 a motor vehicle accident on the Garden State Parkway. Following the accident, the plaintiff had applied for medical expense benefits under her Pennsylvania Progressive Insurance policy. She also filed suit against the defendant driver seeking damages for personal injuries. For purposes of background, Washington was living in New Jersey for about two years, but was driving a car owned by her brother that was registered and insured in Pennsylvania, which carried $5,000 in medical benefit coverage. She used the SUV frequently as her main means of transportation. Most importantly, she kept the car parked at her New Jersey apartment. After suit was filed, defendant moved for summary judgement asserting that plaintiff’s claim was barred because she had not procured the requisite amount of New Jersey PIP coverage, a minimum of $15,000. The judge agreed. The judge indicated that the plaintiff was barred from recovering damages under N.J.S.A. 39:6A-4.5(a), which stated that a person who failed to maintain the requisite coverage shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile. His reasoning was simple. The car was “principally garaged” in New Jersey and therefore plaintiff had to maintain New Jersey automobile liability insurance coverage, including the mandatory $15,000 PIP coverage. As noted above, the plaintiff only had $5,000 in medical coverage. Every automobile operator that has his or her car “principally garaged” in New Jersey, meaning it is chiefly kept in New Jersey, must have the requisite insurance coverage. Here, the plaintiff kept her car at her apartment in New Jersey and did not have proper coverage and, thus was barred from recovery as a result. Thus, this case reveals the importance of determining the applicable statutory requirements when analyzing a motor vehicle accident potentially involving multiple states. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News To What Degree Is it a Medical Certainty? (PA) May 6, 2020 < Back Share to: Recently, in Rolon v. Davies et. al., (2020 Pa. Super 106), the Pennsylvania Superior Court assessed the requisite degree of certainty required of a medical expert’s testimony. By way of background, the appellant filed a medical malpractice action, alleging, in part, that the appellees’ negligence led to his wife’s death. The suit alleged that appellees failed to diagnose an arterial blockage in the decedent’s pelvic area, which led to a pulmonary embolism that proved fatal. A jury trial later commenced, and appellant presented a medical expert on the operating surgeon’s alleged negligence. The medical expert, who practices in Boston, MA, testified during trial. The expert used the language of both the Massachusetts legal standard of “more likely than not” and the Pennsylvania legal standard opinion of “to a reasonable degree of medical certainty”. The expert testified that based upon decedent’s test results, symptoms, and prior surgery, the surgeon breached his duty of care by failing to perform further testing to determine if there were any blood clots in the decedent's pelvic area. During his testimony, the expert used the Pennsylvania legal standard when offering his opinion as to the surgeon’s alleged breach of the applicable standard of care. Whereas, he used the Massachusetts standard, with its more conditional language, when describing the potential effectiveness of alternative treatments. When asked, the expert testified that both phrases were interchangeable to him. At the close of appellant’s case at trial, the surgeon and surgical center moved for a nonsuit, arguing that the expert failed to offer his full opinion to a reasonable degree of medical certainty, citing the expert’s use of the Massachusetts standard and conditional language. The trial court agreed and granted their motion. The jury later returned defense verdicts for the remaining appellees. The Superior Court disagreed with the trial court, noting that under Pennsylvania law, the question is not whether the expert’s opinion actually used the words “to a reasonable degree of medical certainty,” or used conditional language, but whether the expert’s opinion, viewed in its entirety, was made to a reasonable degree of medical certainty. The Superior Court found that the expert's testimony met that standard, noting that he expressed his opinion in certain terms and provided a thorough explanation for the basis his opinion. Further, the Superior Court held that the medical expert’s testimony could not be read in isolation, as argued by appellees, as the isolated statements ignored other evidence relied upon by the medical expert during his testimony. As a result, the Superior Court determined that the medical expert provided his testimony to a reasonable degree of medical certainty awarding the appellant a new trial against the surgeon and the surgical center. This is a warning to anyone that engages an out-of-state expert - that it is the attorney's job to fully prepare expert witnesses for the evidentiary standards in the jurisdiction where the case is pending. Failing to lay a proper foundation for the expert's testimony can be a costly error at any stage of the litigation. Thanks to Benjamin G. Ferrell for his contribution to this post. Please contact Vincent F. Terrasi with any questions or comments. Previous Next Contact

News TransCanada Wins $48 Million Coverage Dispute March 11, 2016 < Back Share to: Earlier, we reported on TransCanada ’s assault on attorney-client privilege. Now we turn to TransCanada’s ultimate victory in the Supreme Court of New York County. The distinction between property damage and what causes property damage can be as subtle as it is important. As the New York Supreme Court’s recent decision in National Union Fire Ins, Co. v. TransCanada Energy USA, Inc. makes clear, multi-million dollar decisions can hinge on that distinction. In that action, TransCanada’s subsidiary was the operator of a power plant which generates electricity for New York City. On the day TransCanada acquired the facility, it obtained an all-risk property insurance policy. A couple of weeks after acquiring the facility, one of the facility’s electricity-generating units, which generated close to 40 percent of the facility’s capacity and majority of its revenue, was taken out of service due to excessive vibrations. While being repaired, TransCanada discovered a crack in the unit, which was then taken out of service for eight months. As a result of being taken out of service, the insured sought coverage for lost capacity revenue in the amount of $48 million. TransCanada’s insurer argued that there was no coverage under the policy because the loss or damage suffered during the policy period resulted from a crack which existed before the policy went into effect. The court disagreed, and ruled the all-risks policy provided coverage. In reaching that conclusion, the court reasoned that under New York law, it is not the cause of property damage which is relevant in determining when coverage is triggered. According to the court, “…it is irrelevant here whether the crack existed or could have been discovered before the policy period commenced. As the dispositive issue is not whether the event causing the loss or damage occurred during the policy period, but whether there was physical loss or damage during the policy period, the insurers fail to raise an issue of fact as to whether TransCanada’s loss is covered under the policy.” The same approach was also fatal to the insurer’s arguments that there was no coverage due to the fact that the resulting lost capacity sales took place after the policy expired. Again, the court focused not on the monetary consequences, but on the timing of the damage which led to those consequences: “the loss at issue here is the decreased capacity sustained during the period of liability, even though the amount of the loss was not ascertained until after the period of liability when the auctions were held.” TransCanada is a useful reminder that the trigger for property damage coverage under New York law is the moment when the property is actually damaged. Whether the dispute concerns a simple matter such as faulty workmanship on a single-family residence or property damage to equipment providing electricity to New York City, the trigger is not what ultimately causes the damage, but the damage itself. Timing is everything. Thanks to Mike Gauvin for his contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Call Your Next Witness - Shari Belitz on Litigation Consultation May 28, 2021 < Back Share to: On episode 6 of Call Your Next Witness, the Wade Clark Mulcahy LLP podcast, Brian Gibbons & Georgia Coats interview litigation consultant, author, attorney, Yankee fan (nobody's perfect!) and absolute force of nature Shari E. Belitz, Esq. As risk managers all know, knowledge is power -- Shari and her team offer unique knowledge and foresight to risk managers looking to prepare for jury trials, particularly on high exposure claims. But what does litigation consulting actually mean, and what intel can a consult provide that risk managers don't already have? Listen here, or wherever your download podcasts. If you're interested in discussing the podcast, or maybe even joining us as a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News PA Supreme Court Rejects Two Civil Procedure Changes That Would Have Impacted Insurers. November 20, 2009 < Back Share to: The PA Supreme Court Rules Committee has apparently declined to proceed with two proposed changes to the rules of civil procedure that would have impacted insurers. The first proposal, Recommendation 240, would have amended Rule 1020 to require pleading a single cause of action to recover for personal injury and property damage arising from the same accident. This would have had a large impact on subrogation cases (especially in the auto context) where a carrier paid a property damage claim, but then the insured wished to proceed with a personal injury action. Under the now rejected amendment, all of the claims would have had to have been brought in the same lawsuit. Recommendation 239 has also been tabled. Under this recommendation, Rule 212.3 and 212.5 would have been amended to give the court more authority to require the presence of an insurance representative at pre-trial and settlement conferences. Previous Next Contact

News Pennsylvania Court Addresses Whether Property Damages Occurred During the Policy Period April 21, 2016 < Back Share to: Generally the date of loss set forth in the complaint is the date that triggers coverage within a specific policy period. Where discovery uncovers an earlier trigger date, coverage may apply during a prior policy period. In Olde Glory Builders LLC v. Donegal Mut. Ins. Co., Olde Glory Builders, built a home and sold it to a third party in 2011. The plaintiff was insured under a CGL policy from December 2010 to December 2011. During the first year of owning the property, the buyer reported the property’s roof was leaking to Olde Glory Builders. Olde Glory Builders was unable to correct the problem. In June 2013, the property sustained significant water damage, which resulted in the buyer instituting suit against Olde Glory Builders. In the buyer’s lawsuit, the buyer made claims against Old Glory Builders for negligent construction and its failure to detect and correct problems, which had become apparent in or before November 2012. The insurer denied coverage contending that the alleged damages did not occur within the policy period. Subsequently, Olde Glory Builders filed a declaratory judgment action. In determining whether there was coverage under the policy, the court first reasoned that an insurer’s obligation to defend its insured was triggered when the allegations in a complaint could potentially fall within the scope of the policy’s coverage. The court further reasoned, in Pennsylvania, an occurrence takes place when the injurious effects of a negligent act “first manifest” themselves to a reasonable person. The court concluded that the effects of Olde Glory Builders’ alleged negligence “first manifested” themselves during the first year of the buyer owning the property (as he reported his complaints to Olde Glory Builders during that time). Thus, because Olde Glory Builders’ policy was in effect at the time that the damages manifested (in 2011), the insurer was obligated to defend Olde Glory Builders. This case illustrates how sometimes property damage that seemingly occurs outside the policy period may potentially be covered under a policy, under Pennsylvania law, if a court determines that the injury leading to the loss manifested itself while the policy was in effect. As such, discovery should be conducted to determine, as best as possible, when complaints began to be made about alleged property damage – as this may ultimately play an important role in determining whether coverage is provided under a policy. Thanks to Collen Hayes for her contribution to this post.     Previous Next Contact

News Sudden And Unexpected Circumstances In Motor Vehicle Accident Alleviates Defendant’s Liability (NY) March 24, 2023 < Back Share to: New York courts recognize the emergency doctrine as a defense to certain New York tort actions, depending on the circumstances. The doctrine holds that where a driver is faced with a sudden and unexpected circumstance, not of their own doing, leaving them with little or no time for reflection and forcing them to make a quick decision without waiving alternatives, the driver’s actions may not be negligent if their actions are reasonable under the circumstances of the emergency. The Appellate Division, Second Department recently addressed the emergency doctrine in Lizares v. Conklin. That case involved a multi-vehicle accident in which defendant’s vehicle hit plaintiff’s vehicle from behind, causing plaintiff’s vehicle to cross the double yellow line and strike a third vehicle. The third vehicle then struck a fourth vehicle. Plaintiff sued the three other drivers for negligence. The driver of the third vehicle cross-moved for summary judgment pursuant to the emergency doctrine, submitting deposition transcripts to establish that plaintiff’s vehicle was propelled into her vehicle within one second of the initial rear end collision. The Court stated that a “driver is not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into oncoming traffic, and such event constitutes a classic emergency situation, thus implicating the emergency doctrine” not of her own making, leaving her with no opportunity to avoid the collision. Since it found that an emergency existed and the driver acted reasonably with no opportunity to think, the court dismissed plaintiff’s complaint against the third driver. The takeaway from the Lizares case is that automobile accident lawsuit defendants should assert and pursue a defense based on the emergency doctrine where the accident involved sudden and unexpected circumstances in which the driver had no time to react or avoid a collision. Summary judgment should be pursued in cases where the facts are clear. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News WCM Publishes Article in America’s Oldest Auction House’s News Bulletin. January 11, 2019 < Back Share to: WCM Partner, Bob Cosgrove, and WCM associate, Lauren Berenbaum, published an article entitled Can You Resell Misappropriated Art? in Freeman’s Monthly Business Bulletin. The article discusses the potential copyright issues faced by art collectors who resell misappropriated art. In addition, the article explores the legal challenges posed by artists’ increased use of social media to share their work, advertise upcoming exhibits, and market themselves to a wider audience. For more information about this post, please contact Bob. Previous Next Contact

News Uncharted Waters - Hurricane Coverage Issues October 16, 2017 < Back Share to: With Harvey, Irma, and Maria roiling the insurance markets, we attach an article, first published by the New York State Bar Association, addressing the vexing wind and water issues that arise from such catastrophes. WCM is available to answer any questions you may have related to the weather calamity that is 2017. Please call Dennis or Mike with any queries.   Previous Next Contact

News Notice to Broker not Notice to Insurer -- and not a Valid Excuse for Lateness (NY) December 14, 2012 < Back Share to: Courts accept a lot of excuses for late notice -- even in New York, prior to the prejudice rule -- but a recent decision affirmed the concept that the insured's notice to its own broker does not constitute notice to the insurer. In Pfeffer v. Harleysville Group, Inc., the insured owned a building that was insured by Harleysville under a deluxe business owner’s insurance policy. The insured’s building suffered property damage in December 2006. The damage was allegedly caused by excavation and construction work performed on an adjacent property. The insured promptly notified his insurance broker, but his broker advised him to “wait and see” the extent of the damage before reporting the claim to the insurer. As such, the insured retained engineers to assess the damage to his building, and retained an attorney to commence a legal action against his neighbor. The insured finally notified his insurer, Harleysville, in January 2008 -- more than a year after he first received notice of the property damage. Accordingly, Harleysville disclaimed coverage to the insured based on the insured’s breach of the policy’s notice of occurrence clause. The insured commenced a declaratory judgment action, and the U.S. District Court for the Eastern District found in favor of Harleysville. On appeal, the Second Circuit Court of Appeals noted that New York courts “uphold notice-of-occurrence provisions in insurance contracts to aid insurers in early investigations, detection of fraudulent claims, and proper capital allocation.” The Second Circuit rejected the insured’s contention that his late notice should be excused because he had a good faith belief in non-liability and did not know that the Harleysville policy provided coverage. The panel found that the insured had a duty to notify its insurer even if it believed that a third-party was liable for the damage to the building. Of significance, the Second Circuit also rejected the insured’s excuse that it relied on his broker’s advice to “wait and see” the extent of any damage. The appellate panel ruled that the insured could not satisfy the policy’s notice requirements by giving notice of the loss to its insurance broker. Thanks to Steve Kaye for his contribution to this post. If you would like further information please write to mbono@wcmlaw.com . Previous Next Contact

News WCM Wins Appellate Victory in $25 Million Art Loss February 1, 2013 < Back Share to: In March 2010, the now infamous art dealer Larry Salander pleaded guilty to a $120 million fraud scheme, admitting to stealing numerous works of art. Renaissance Art Investors LLC claimed that it was entitled to coverage for Salander’s theft of approximately $25 million in artwork under insurance policies issued by AXA Art Insurance Corporation. Wade Clark Mulcahy successfully obtained affirmance of the trial court’s decision that RAI is not entitled to coverage under the policies. RAI consigned its artwork to Salander, a principal of RAI, and the Salander O’Reilly Galleries LLC, a member of RAI. Ultimately, Salander and the Gallery betrayed RAI, stealing artwork valued at over $42 million. RAI made a claim to AXA under its commercial inland marine insurance policies, seeking indemnity for the theft. Litigation followed and the trial court awarded summary judgment in AXA’s favor, finding that there was no coverage for the loss under AXA’s policies. In a unanimous decision, the Appellate Division, First Department, recently ruled that the AXA policies contained an unambiguous dishonesty exclusion. The exclusion precludes coverage for losses arising from the dishonesty of an insured, anyone with an interest in the property, or anyone to whom the covered property is entrusted. The Court held that this policy exclusion applied to both Salander and the Gallery, who were entrusted with the artwork. In the decision -- which is sure to add another arrow to an insurance carrier’s quiver -- the First Department held that as a matter of law, insurance coverage only extends to fortuitous losses, even under all-risk policies. The Court further held that whether there was a fortuitous loss is a legal question to be resolved by a court. Applying this standard, the Court held that the fraud perpetrated by Salander and the Gallery, which resulted in the loss, was not fortuitous. In context, the Court suggests that even in the absence of an unambiguous exclusion, where the insured’s principal steals from the insured entity, the loss is not fortuitous and therefore not covered. Also of note, the Court held that RAI’s claim that AXA breached the implied covenant of good faith and fair dealing was duplicative of its breach of contract claim. Previous Next Contact