News NY App. Div. Holds Landlord Liable For Lead Paint Exposure January 7, 2010 < Back Share to: In Rivas v. Cruciata & Sons, LLC, the infant plaintiffs were diagnosed with lead poisoning while they were tenants in a building owned by Cruciata. The NYC Department of Health and Mental Hygiene (DHMH) found unlawfully high levels of lead on the painted surfaces of the radiator and the exterior window casings in the plaintiffs' apartment and issued an abatement order. The plaintiffs subsequently sued Cruciata for damages arising out of their five-month exposure to lead. Cruciata moved for summary judgment arguing that it did not have notice of the lead condition until the DHMH issued the abatement order and that it promptly abated the lead once notified. The lower court granted Cruciata's motion, but the appellate court reversed holding that there were issues of fact as to whether Cruciata knew that children lived in the apartment; was aware of the dangers of lead paint; and whether there was peeling paint in their apartment. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09015.htm Previous Next Contact

News Third Circuit Joins First, Second, Fifth and Eleventh Circuits in Holding an Insured Bears the Burden to Show a Loss is Fortuitous (NJ) April 9, 2020 < Back Share to: Recently, in Chartis Prop. Cas. Co. v. Inganamort, the United States Court of Appeals for the Third Circuit considered whether Joan and John Inganamort (“Inganamort”) met their burden of proof to establish a “fortuitous” loss under an all-risk insurance policy issued to Ingagamort by Chartis Property Casualty Company (“Chartis”). By way of brief background, in September 2011, Iganamort’s 65-foot fishing vessel sustained serious damage when it was partially sunk while docked at Iganamort’s Florida residence. After submitting the claim under its all-risk policy, Chartis sent a claims specialist to conduct a preliminary survey of the boat. After various testing, the claims specialist ultimately concluded there was “obvious water intrusion”, caused by multiple potential sources of water ingress. Chartis concluded Inganamort’s loss was not covered by the pertinent policy and decided to file a declaratory judgment action in the United States District Court for the District of New Jersey to affirm its position that, inter alia, Chartis was not liable for the damage to Iganamort’s boat. Subsequently, Chartis won summary judgment, which was affirmed by the District of New Jersey. In response, Inganamort appealed. In pertinent part, Inganamort argued it was not required to prove the loss was fortuitous. In addition, Inganamort, nevertheless, asserted the boat sustained damage from “heavy rainfall”, which constituted a fortuitous loss as a matter of law. On appeal, the Third Circuit narrowed the issues to one simple question: who bore the burden of proving a fortuitous loss. Based on well-established precedent, and the reasoning applied by the First, Second, Fifth and Eleventh Circuits, the Third Circuit noted a “fortuitous loss” – in the context of an all-risk insurance policy – equated to an unexplainable loss or something that was “dependent on chance”. While an insured is not required to show the exact cause of the loss, an insured does bear the burden of proving the loss was fortuitous. The Court next considered whether the “heavy rain” constituted a “fortuitous loss”. In doing so, the Court relied on Chartis’ statement of undisputed facts, which did not contain any data substantiating Inganamort’s arguments that there were “heavy rainfalls” on or around the alleged date of loss. Accordingly, the Court determined Ignanamort failed to show the damage to its boat was caused by a fortuitous loss. Thanks to Lauren Berenbaum for this post. If you have any questions or comment, please contact Vincent Terrasi.   Previous Next Contact

News Pranking On The Job April 19, 2019 < Back Share to: In Johns v. Wengerter, the New Jersey Superior Court addressed a prank gone wrong. Plaintiff worked as a firefighter for the City of Linden. He was injured by a firework that was placed in a firehouse toilet by his co-worker. Plaintiff was treated at the hospital for a burn and a contusion and was placed off duty. After two weeks, plaintiff returned to work. He never lost wages and he never filed a workers compensation claim. Instead, plaintiff filed a civil suit for damages against his co-worker. The co-worker in turn impleaded the City alleging that it allowed pervasive pranking at the fire department. The trial court dismissed all claims against both defendants, holding that the claims were barred by the exclusivity provision of the Workers Compensation Act. In New Jersey, an injured employee has one exclusive remedy which is to file a workers compensation claim with the employer’s workers compensation insurance carrier. There are, however, exceptions to the rule. For example, an employer engaged in grossly negligent or intentional wrongdoing can be sued despite the exclusivity provision. Johns argued just that. He claimed defendants could be sued because they were grossly negligent or engaged in intentional wrongdoing. The Appellate Division, on appeal, agreed with the trial court’s decision that the accident occurred as the result “horseplay or skylarking,” and that a prank fell within the definition of same. Employers in New Jersey can rest easy knowing that an employee’s prank gone awry likely will not subject them to a civil tort lawsuit. Thanks to Mike Noblett for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News “Always Low Prices” Does Not Mean Always Spill-Free (PA) August 29, 2019 < Back Share to: In Boukassi v. Wal-Mart Stores, Inc., the Superior Court affirmed a grant of summary judgment in favor of defendants Wal-Mart Stores Inc. and Wal-Mart Store #2141 (hereinafter “Wal-Mart”) in a premises liability case. The court decided that there was a lack of evidence that store employees had constructive notice of a spilled substance, so summary judgment remained appropriate. Appellant alleged that she slipped on an unforeseen oil-like substance during a brief visit to Wal-Mart. In its motion for summary judgment, Wal-Mart argued that there was no genuine issue of material fact due to insufficient evidence of actual or constructive notice of the spill or a breach of its duty of care. The appellant responded that as a business invitee, Wal-Mart had a duty to protect her from injury on its premises. The trial court granted Wal-Mart’s motion. In her appeal, appellant argued that the circumstantial evidence that she fell on spill in a “busy section” of its store should allow her to overcome summary judgment. She further argued that equitable principles would allow her to recover regardless of negligence by either party and that Wal-Mart was in violation of its own “Slip, Trip and Fall Guidelines”. The guidelines require employees to regularly monitor and “sweep” the area in anticipation of an unsafe condition. Wal-Mart conceded that appellant was a business invitee at the time of the incident. Under the Restatement (Second) of Torts § 343, in order for a party to be liable to an invitee, the plaintiff must prove that the defendant (1) knew of or should have discovered the dangerous condition through reasonable diligence; (2) recognized that the plaintiff was unaware of the unsafe condition; and (3) breached the duty of care that they owed. While Wal-Mart as the landowner owed a duty to appellant, the court states that there is no evidence to support that they had actual or constructive notice of the spilled substance. The decision comes down to the issue of time. Appellant does not present any evidence that Wal-Mart had a sufficient length of time to become aware of the spill. The appellant stated herself that even she did not notice the spill when she entered the store or walked to exit. The court compares this case to Toro v. Fitness International LLC., 150 A.3d 968 (Pa. Super. 2016), where the plaintiff similarly filed a negligence claim following a slip and fall on a soapy substance at a gym. Similar to Wal-Mart in this case, there was an expectation that the floor was being monitored, but a lack of sufficient evidence to indicate that the fitness center had constructive notice of the spill. Ultimately, here as in Toro, the Superior Court finds that “mere speculation” that the spill may have lingered is insufficient to demonstrate a genuine issue of material fact. In order to survive summary judgment, there must be concrete evidence of either actual knowledge or unreasonable disregard of a dangerous condition for a period of time. Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News WCM Wins Third Circuit Affirmance in Civil Rights Violation Case. April 3, 2016 < Back Share to: Philadelphia Partner Bob Cosgrove and associate Colleen Hayes were awarded summary affirmance by the United States Court of Appeals for the Third Circuit. In Nona Farrar v. John McNesby, et al., the plaintiff filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that various defendants, including our client, had conspired, over a ten year period, to deprive her of her constitutional rights. In response, we moved to dismiss the plaintiff’s complaint pursuant to Federal Rule 12(b)(6) contending that the plaintiff failed to state a claim upon which relief could be granted. The district court granted our motion and dismissed all claims against our client. Subsequently, the plaintiff appealed to the Third Circuit. In response, we filed a motion for summary affirmance contending the plaintiff’s appeal presented no substantial question and, as such, the lower court’s order should be affirmed. The Third Circuit upheld the district court’s order and dismissed all claims against our client. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

News Media Liability Exposures? May 17, 2011 < Back Share to: Facebook, Twitter, LinkedIn. We live a click away from publishing our thoughts and impressions to an ever-expanding digital audience. But who is going to respond to claims that we have defamed or infringed the intellectual property rights of others? Good question. Many U.S. EPL insurers are expanding the scope of their coverage to address Media Liability Risks. But to be sure, all companies that use social media ought to have written protocols in place to guide their employees on the Do’s and Don’ts of communicating in a digital environment. Previous Next Contact

News Uniquely Dangerous Condition at Water Park Can't be Assumed (NY) October 18, 2012 < Back Share to: Anyone who has ever been to a water park appreciates there are a lot of different ways to get hurt. But recently, in Mussara v. Mega Funworks, a New York appellate court held that because the type of dangerous condition was "unique," plaintiff's lawsuit was not barred by the assumption of risk doctrine and could proceed. As the plaintiff exited the water slide, he was thrown across a 50-foot pool and hit the cement on the other side. The water park argued that the plaintiff had assumed the risk of injury when he rode the slide. The park posted a warning sign and the plaintiff admitted that he checked the sign but did not read the warning. Nevertheless, the court ruled against the water park and held that the assumption of risk doctrine does not apply where the dangerous condition posed by the ride is unique and is "over and above the usual dangers that are inherent in riding down a water slide." In this case, the court ruled, the plaintiff had not assumed the risk of being thrown across a pool because there was no evidence that he was aware of that possibility. Indeed, the Court list a number of potential ways that a person might expect to get hurt at a water park, but this wasn't one of them. Rather, the plaintiff only assumed the risk that he would be injured despite the slide working as intended. Thanks to Mendel Simon for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News Gym Owner Found Not Liable For Treadmill Accident (NY) April 21, 2023 < Back Share to: New York gym and health club owners are held to the same duty of care as commercial landowners with regard to defective or dangerous conditions on their premises. In Alcantara v. Blink Fitness, the Supreme Court, New York County addressed whether a gym was negligent and responsible for an accident involving a treadmill. The plaintiff in that case was allegedly injured when she was “thrown off” a treadmill after it allegedly “sped up beyond her ability”. The gym moved for summary judgment, arguing that there was no defective or dangerous condition and that the gym lacked notice of any such condition. The Court observed that the gym was required to affirmatively demonstrate either (1) the absence of a defective or dangerous condition or (2) that it did not launch an instrument of harm and that they lack actual or constructive notice of a dangerous or defective condition. The Court held that there was no evidence that the treadmill malfunctioned and that the plaintiff “apparently pressed a control button that caused the machine to operate at a pace that apparently exceeded her ability to safely utilize the treadmill.” The Court added that the plaintiff had previously used the machine and that this was an “obvious risk” inherent in using this specific treadmill. The Court further found that there were no records of complaints regarding the treadmill and granted the gym’s motion. The Alcantara decision serves as a reminder that gym and health club owners are subject to the standard burden of proof and defenses in New York premises liability cases but may also have an “inherent risk” defense if the claim involves exercise equipment. Please contact Corey Morgenstern with any questions. Previous Next Contact

News Hotel Owed No Duty to Shooting Victims at Music Event (NJ) May 26, 2017 < Back Share to: In Higgins v. Holiday Inn, the Appellate Division analyzed whether a hotel owed a duty to take reasonable precautions by providing security for an event held at the hotel. For nineteen weeks, Disc Jockey Clarence Francis hosted and performed at a weekly “Caribbean Nights” event held at the hotel without any incidents of violence. However, on the twentieth week, plaintiffs were smoking outside the hotel when an unidentified, masked gunman approached and shot them, wounding them in their legs. Subsequently, plaintiffs sued the hotel and during discovery found information relating to criminal activity at the hotel, which included assault, robbery, and rape. Plaintiffs argued that the hotel had a duty to provide security at the Caribbean Nights event because the hotel’s history of criminal activity created a reasonable foreseeable risk of harm to the plaintiffs. Specifically, plaintiffs contended that the circumstances involving the prior criminal activity at the hotel, the late hour, and the festive environment of the Caribbean Night event should have caused defendant to anticipate "loitering, under-age drinking, drugs and fights." Thus, plaintiffs argued when these circumstances are considered together, they imposed upon the hotel a heightened duty to take safeguards against criminal acts of third parties, which include the shooting that caused plaintiffs’ injuries. The Appellate Division disagreed with the plaintiffs, holding that there was no competent evidence supporting a finding that the hotel could have reasonably foreseen plaintiffs’ shooting. The court reasoned that during the nineteen prior Caribbean Night events there were no criminal incidents. Further, during the hotel’s entire ten-year history, there were no incidents of shooting. Although the hotel had some past criminal activity, the court found this history was not so "alarming" or "escalating" that it would be reasonably predictive that attendees at the event could be affected by such a random act of violence. Thus, this case demonstrates that New Jersey courts utilize a "totality of the circumstances" analysis to determine an owner's liability to prevent third-party criminal conduct on the owner’s premises. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Declaratory Judgment Actions Are Not A Discovery Tool (NJ) July 26, 2012 < Back Share to: One of the methods used by No-Fault providers to fight fraudulent claims is to establish that improprieties with a health care provider’s ownership structure, billing practices, and regulatory compliance. But recently, the Supreme Court of New Jersey held that an insurance company cannot file a declaratory judgment action solely seeking discovery of in an effort to prevent insurance fraud, even where an insured patient has assigned personal injury protection (PIP) benefits to the health care provider. In Selective Insurance Company of America v. Hudson East Pain Management, Selective filed for declaratory judgment against Hudson East Pain Management and several other entities because it noticed what it considered to be “suspicious patterns” in the treatments rendered to Selective’s insured patients, as well as in the corporate links among the various entities. Selective’s insureds had assigned their PIP benefits to the health care providers after being injured in motor vehicle accidents. Although it had requested information on ownership, billing practices, and regulatory compliance from the various entities, Selective did not receive the information it sought, and as a result, filed its declaratory judgment action, citing the “cooperation clause” in its insurance policies, as well as New Jersey statutory authority. The trial court sided with Selective, and ordered the health care providers to produce the requested materials. The Appellate Division reversed this order, holding that Selective’s reliance on the cooperation clause in its insurance policies was improper, and that its demands for discovery went beyond the statutory authority of New Jersey law. On review, the Supreme Court of New Jersey affirmed the Appellate Division, but for different reasons than expressed in the Appellate Division’s decision. The court held that because an assignee of benefits as no greater rights than an assignor, the assignee also cannot have greater duties than the assignor under the contract. Therefore, because the Selective insurance policies did not require the insured patients to provide the information sought by Selective in its declaratory judgment action, the policies could not require the health care providers to present that information. Additionally, the court agreed with the Appellate Division that the PIP statute, N.J.S.A. 39:6A-13, did not provide for the sort of discovery sought by Selective. Finally, the court held that, although New Jersey had a clear public policy against insurance fraud, the means employed by Selective were not the correct avenue for preventing insurance fraud. Although this case does not undermine the ability of an insurance company to seek injunctive or other relief, along with discovery, through the use of a declaratory judgment complaint, it does stand for the proposition that a quest for this sort of discovery cannot be the sole object of the complaint. Thanks to Christina Emerson for her contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

Hannah M. Garber Associate Pennsylvania hgarber@wcmlaw.com Professional Experience Hannah works on a variety of insurance coverage and civil litigation matters. Her work includes analyzing coverage questions, contracts, and policies, drafting coverage opinions, and advising insurers on coverage obligations. She also assists on civil litigation matters, defending clients in products liability, premises liability, personal injury, and property damage cases. Her litigation work includes investigation and fact analysis, drafting pleadings and motions, conducting depositions and legal research, and appearing for hearings, arbitrations, mediations, and trial preparation. During law school, Hannah competed on Temple’s Sports Law Negotiation Team at Villanova’s Baseball Filing Day Competition and at Tulane’s Annual International Baseball Arbitration Competition. Honors and Distinctions Recipient of the Beasley Law Scholarship Pi Sigma Alpha News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education JD, Temple University, Beasley School of Law BA, Arcadia University Bar Admissions New York Pennsylvania Court Admissions Eastern District of Pennsylvania

News Assignor Contract May Create Additional Insured Status November 10, 2023 < Back Share to: In Catlin Insurance Company v. Colony Insurance Company , the Supreme Court of New York County considered whether plaintiffs, Sandy Clarkson LLC (“Sandy Clarkson”) and McAlpine Contracting Company (“McAlpine”), were entitled to coverage from Colony Insurance Company (“Colony”), as Additional Insureds. 80 Misc. 3d 1227(A) (N.Y. Sup. Ct. 2023). The dispute arose out of a series of contracts and insurance agreements entered into by the parties. First, Sandy Clarkson and McAlpine entered a construction contract. Id . at 1. Next, McAlpine and Kingspan entered into a subcontract, which required Kingspan to procure liability insurance. Id. Thereafter, Kingspan assigned the subcontract to Kingstone, which purchased a commercial general liability policy from Colony (the “Policy”). Id. at 2. In 2017, a personal injury action was commenced against Sandy Clarkson and McAlpine by an employee of a McAlpine subcontractor for injuries sustained at the construction site. Id . at *3. Kingstone and its assignor were thereafter joined to the case through a third-party action. Id. Sandy Clarkson and McAlpine argued that the underlying personal injury action entitled them to a defense from Colony as Additional Insureds pursuant to the Policy. Id. at *5. Colony disagreed because its insured, Kingstone, never entered a written contract with either party. Id. The Court held that McAlpine qualified as an Additional Insured pursuant to the Policy because it entered into a written contract with Kingstone’s assignor regarding coverage. Id. at 6. The Court noted that the Policy defined Additional Insureds as “[a]ll persons or organizations as required by written contract with the Named Insured.” Id. Thus, the Court reasoned, the provision implicitly extended coverage to any party with whom Kingstone contracted—including McAlpine through Kingstone’s assignor, Kingspan. Id. Conversely, Sandy Clarkson was not entitled to coverage as an Additional Insured because neither Kingstone nor Kingspan entered into a contract with it. Id. The Court next considered whether McAlpine was entitled to indemnification or defense in the lawsuit. Ultimately, the Court found that McAlpine was entitled to defense because the allegations in the lawsuit “suggested a reasonable possibility of coverage,” but could not obtain indemnification due to limiting language in the Policies. Id. at *6-7. One key takeaway from the Catlin decision is that New York insurers should be wary of policy provisions and definitions implicating contracts made by an insured’s assignor or predecessor in interest. As Catlin reflects, these prior contractual agreements may ultimately trigger Additional Insured coverage and additional duties of the insured to defend or indemnify. Catlin Insurance Company v. Colony Insurance Company .pdf Download PDF • 232KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact