News No Notice Means No Recovery in NY May 28, 2021 < Back Share to: In Barreto v. 750 Third Owner, LLC, 2021 NY Slip Op 02868 (1st Dept. 2021), the plaintiff slipped and fell in a commercial building’s lobby due to rainwater. Defendants argued that they had no constructive or actual notice of the defect on the floor because a record search did not show any complaints about water on the lobby floor prior to the accident. The defense further argued that a complaint made one year prior to the accident is insufficient to establish constructive notice. Further, plaintiff testified that it was sunny when she left for lunch, that it did not start raining that day until about five minutes before she reentered the building, and that she did not see the water until after she fell (see Perez v River Park Bronx Apts., Inc., 168 AD3d 465, 466 [1st Dept 2019]). Thus, the defendants could not have been charged with leaving rainwater on the lobby floor because an insufficient amount of time had passed to hold them accountable as such. A general awareness that the lobby floor could become wet during inclement weather is insufficient to raise a triable issue of fact as to whether defendants had constructive notice of the specific condition that caused plaintiff's fall (Jones v Icahn Assoc. Corp., 173 AD3d 546, 546-547 [1st Dept 2019]). The First Department is known for being plaintiff-friendly, but agreed with the defense here. This decision shows that if a property owner or tenant has shown in evidence that there were no prior warnings about a slippery or dangerous substance on its property, and if it cannot be shown that the dangerous or slippery substance was on the property for a definitive amount of time, then it will be difficult to attach constructive or actual notice of the condition to the property owner or tenant. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News New Jersey District Court Continues Trend Of Rejecting Coverage For COVID-19 Losses July 15, 2022 < Back Share to: The U.S. District Court for the District of New Jersey recently followed the national trend in rejecting a company’s claim that it was entitled to insurance coverage for losses related to the COVID-19 pandemic. In Tumi, Inc., et al. v. Factory Mutual Insurance Company, the plaintiff luggage retailer sought coverage for business losses caused by the closure of its retail stores as a result of COVID-19 orders. Many of the clauses under which plaintiff sought coverage require a showing of “physical loss or damage” to property, while the policy’s communicable disease coverages do not. The insurer declined coverage, asserting that the COVID-19 pandemic and resulting business losses do not fall within the policy definition of “physical loss or damage.” In holding that the plaintiff was not entitled to coverage, the court observed that while the issue has not yet been addressed by the Third Circuit, federal appellate courts were overwhelmingly opposed to claims that COVID-related business interruptions constitute physical damage. The court further emphasized that the word “physical” is crucial in determining whether the claims should be covered. It reasoned that plaintiff’s claims are economic consequences and that “lost profits, lost goodwill, or similar types of losses, no matter how significant, are not covered under the policy unless they are caused by physical damage.” The Judge added that the sole New Jersey state case to find that COVID-related losses were physical damages, AC Ocean Walk, LLC v. American Guarantee and Liability Ins. Co., has since been reversed. The court also found that there was no coverage under the “communicable diseases” clauses in the policy, focusing on the fact that each policy clause had the statement “actual not suspected presence of communicable disease.” No parties contested that COVID-19 was a communicable disease and the court held that the plaintiff failed to state any claim that COVID-19 infections were actually present within their retail stores. While plaintiff’s motion brief did make claims that they could prove employees had tested positive for the virus, such claims were not made in the complaint. The Tumi decision follows the recent trend of courts not supporting claims that business losses from the COVID-19 pandemic qualify in the absence of physical loss or damage. Further, while courts may consider the claim that COVID-19 losses fall under communicable disease clauses, language requiring actual proof will be considered against such claims. Thank you to Ryan Dame for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Volunteer Not Afforded Scaffold Law Protection October 22, 2008 < Back Share to: In Stringer v. Musacchia, the plaintiff, a hunting enthusiast, volunteered to build a shed on the defendant's land in exchange for a chance to hunt for turkey with the defendant, a prominent cable television bow hunter. While building this shed, the plaintiff was injured after he fell 8 to 10 feet from a ladder. He sued the defendant citing a violation of Labor Law §240(1). In dismissing the plaintiff's claim, the NY Court of Appeals ruled that the plaintiff lacked the requisite status as an employee to pursue such a claim because the plaintiff was not paid for his work; was not obligated to finish the shed; and was not personally directed by the defendant on how to do the job. http://www.nycourts.gov/ctapps/decisions/oct08/158opn08.pdf Previous Next Contact

News Defense Duty Triggered by Bill of Particulars (NY/NJ) July 22, 2016 < Back Share to: An insurer's duty to defend is generally governed by the allegations in a complaint, but whether or not extrinsic evidence -- or information later revealed during discovery -- can be used when making a coverage determination differs greatly from state to state. A New York court (applying New Jersey law) recently dealt with the issues of whether facts in a Bill of Particulars triggered coverage in CB Richard Ellis, Inc. v Harleysville Ins. Co. of N.J. In this case, the underlying complaint alleged that the plaintiff fell on the sidewalk due to ice and snow. Harleysville’s insurance policy had an exclusion for claims related to the removal of snow and ice, so they disclaimed coverage, and during the ensuing lawsuit, moved for summary judgment based upon the exclusion. The trial court denied the motion and instead granted the plaintiff's cross-motion. On appeal, the Court noted that the underlying complaint also alleged general negligence in the ownership, operation, management, maintenance and control of the premises and/or sidewalk where the accident occurred. The bill of particulars then explained these allegations by claiming that the insured was negligent by failing to safeguard, cordon off or provide warning signs in the unsafe, slippery area of the accident. Thus, the allegations in the underlying complaint, as amplified by the bill of particulars, did not all arise out of ice and snow removal and the trial court found for coverage. As a result, the First Department upheld the decision requiring coverage. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. 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 Appellate Court Upholds Defense Verdict In Left Turn Case (PA) April 7, 2023 < Back Share to: In Wilmer v. Bethman, the Superior Court upheld a defense verdict in a case arising from a familiar scenario – a driver attempting to make a left turn is involved in a accident when a second driver coming from the opposite direction pauses and “waives” the first driver through, resulting in a collision with an unseen vehicle passing to the right of the second driver. Plaintiff was driving eastbound on Street Road, which has two lanes of traffic in each direction. Bethman pulled into a separate left turning lane in preparation for entering a housing development across the road. She stopped in the turning lane and waited for westbound traffic to stop. The driver of the car in the westbound turning lane, a police officer, stopped, left a gap, and made a gesture indicating that Bethman should proceed. Bethman waited one second to make sure that the car had stopped. The officer’s car blocked Bethman’s view of the second westbound lane until she began her turn. Bethman successfully turned into the first westbound lane. As she was entering the housing development after crossing over the second westbound lane, a van in which Kristine Wilmer was traveling struck the rear passenger side of Bethman’s car. Wilmer was in the front passenger seat of the van when the collision occurred. She suffered facial injuries when the airbag deployed. Wilmer sued Bethman for her injuries resulting from the collision, and the case proceeded to a jury trial. At the conclusion of her case, Bethman moved for judgment as a matter of law, asserting that Wilmer had violated Section 3322 of the Pennsylvania Motor Vehicle Code governing left turns, and was therefore negligent per se. The trial court denied Wilmer’s motion. At the close of Bethman’s case, Wilmer moved for a directed verdict on the same grounds. The court denied the motion. Wilmer then requested a jury instruction on negligence based on the alleged violation of the left turn statute, and requested that the jury not be charged separately on negligence. The court denied Wilmer’s requests, but in its closing instruction, the court instructed the jury on both negligence and negligence per se. The jury found Bethman was not negligent, and Wilmer moved for judgment notwithstanding the verdict. The court denied that motion and Wilmer’s post trial motion, and she appealed to Superior Court. On appeal, the Superior Court focused primarily on the issue of negligence per se. To prove negligence per se, a plaintiff must demonstrate: (1) the existence of a statute designed at least in part to protect the interests of a group of individuals, as opposed to the public generally; (2) the clear application of the statute to the defendant’s conduct; (3) the defendant’s violation of the statute; and (4) that the violation was the proximate cause of plaintiff’s injuries. The Superior Court found no abuse of discretion in trial court’s conclusion that the evidence was sufficient to permit the jury to conclude that Bethman acted reasonably and waited until she thought it was safe to proceed and was therefore not negligent. Wilmer presented no evidence about the distance between the van in which she was riding and Bethman’s car when it turned left. Thus, there was no evidence that Bethman violated the left turn statute by failing to yield the right-of-way to a vehicle that was so close as to constitute a hazard, and no evidence that a statutory violation caused the accident. Wilmer did not see the collision. She did not present any evidence that the van in which she was riding had a green light, was following the speed limit, or remained it its lane, leaving open the possibility that the van’s driver was contributorily or comparatively negligent and partially responsible for the collision. Although Wilmer claimed that Bethman failed to look as she entered the intersection, Bethman testified without contradiction that she did look for oncoming traffic. Wilmer did not prove that Bethman failed to signal her turn. Interestingly, Wilmer failed to introduce into evidence the ticket that Bethman paid, and failed to cite authority for the proposition that issuance of the ticket alone establish negligence per se. The opinion does not indicate the grounds for the ticket that Bethman received. This case stands for the proposition than a plaintiff must establish all elements to prove negligence per se, and not merely assume the a collision with a vehicle making a left turn will invariably result in liability on the part of the turning driver. Though the opinion did not address the ramifications of the failure to introduce evidence of payment of the traffic ticket, it seems likely that payment of any ticket would effectively be a guilty plea which would have established violation of the statute, thereby justifying a finding of negligence per se. Thanks to James Scott for his assistance with this article. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Hospitals’ Internal Self-Reviews Remain Internal (NJ) August 31, 2018 < Back Share to: In Brugaletta v. Garcia, the plaintiff sought emergency medical treatment at Chilton Memorial Hospital (“CMH”) and underwent multiple surgeries. Plaintiff’s doctor recorded that plaintiff missed doses of an ordered antibiotic, which plaintiff discovered after her medical records were turned over in discovery. When plaintiff inquired further, CMH admitted it possessed two internal self-critical reports regarding plaintiff’s care – but refused to produce them on the basis of privilege. Plaintiff filed a motion to compel their production, and CMH filed a cross-motion for a protective order. The New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq., sought to enhance patient safety by establishing an environment that mandates the confidential disclosure of the most serious, preventable adverse effects. Once disclosed, hospitals and other licensed healthcare facilities must convene patient safety committees, conduct self-critical peer reviews, and perform Root Cause Analyses to reconstruct and analyze cases to determine “what went wrong.” Serious Preventable Adverse Events (SPAE) must be reported. To encourage disclosures and self-reporting, these reports are protected by an absolute privilege. N.J.S.A. 26:2H-12.25(f). Unsurprisingly, the New Jersey plaintiffs’ bar has sought these internal records ever since. In Brugaletta, the plaintiffs’ bar secured an initial victory. The trial court heard argument on plaintiff’s motion to compel and CMH’s cross-motion for a protective order and conducted an in camera review of the related incident reports. After the review, the trial court found the reports were correctly classified as self-critical analyses under the PSA. Surprisingly, however, the trial court usurped CMH’s decision that plaintiff’s case did not amount to a SPAE. The trial court fashioned a remedy – the disclosure of a redacted self-critical report – that attempted to honor the privilege but reveal the SPAE to the plaintiff. The New Jersey Supreme Court agreed with the Appellate Division and ruled the trial court exceeded its authority in declaring a SPAE actually occurred, and in issuing related orders that CMH disclose to plaintiff a redacted version of the self-critical report. According to the Court, the legislature inserted no role for a trial court to play in reviewing the SPAE determination made by a patient safety committee of a health care facility. Additionally, the Court ruled the legislature intended to encase the entire self-critical analysis process in privilege; it is not limited to Serioues Preventable Adverse Events. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Pennsylvania Court Upholds Unlisted Resident Driver Exclusion As Valid Basis To Disclaim Coverage October 3, 2017 < Back Share to: The Pennsylvania Superior Court recently upheld a policy’s Unlisted Resident Driver Exclusion. Specifically, in Safe Auto v. Rene Oriental-Guillermo, the underlying plaintiff was involved in a motor vehicle accident. Following the accident, the underlying plaintiff sued, among others, the driver of the other car, Dixon, as well as the owner of the other car, Dixon’s boyfriend, Oriental-Guillermo. Safe Auto insured Oriental-Guillermo. The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the policyholder, but were not related to the policyholder and whom the policyholder did not specifically list on the policy. Based on this exclusion, Safe Auto denied coverage, as Dixon was living with Oriental-Guillermo, but was neither related to him nor specifically listed on the policy. On appeal, the Pennsylvania Superior Court concluded that the Unlisted Resident Driver Exclusion was unambiguous. The Court also concluded that the Unlisted Resident Driver Exclusion did not violate Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) nor was it void against public policy. As such, the Superior Court ultimately concluded the Unlisted Resident Driver Exclusion provided a valid basis to deny coverage. Often times drivers will attempt to seek coverage under a policy based on a public policy argument that an insurance company must insure every individual who uses an insured’s vehicle unless the insured specifically asked the insurance company not to provide coverage for that driver. This can lead to unintentional coverage being provided under policies. However, as this case illustrates, with the inclusion of the Unlisted Resident Driver Exclusion (or a similarly worded exclusion), an insurer can limit the scope of coverage provided under its policies, and limit the potential drivers who may seek coverage under a policy. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

Craig D. Dietel Associate New Jersey cdietel@wcmlaw.com (862) 294-3567 Professional Experience Craig is an Associate in WCM’s New Jersey office, where he focuses his practice on insurance coverage and construction litigation. Prior to joining WCM, Craig practiced at a small firm in New Brunswick, New Jersey, where he focused extensively on personal injury and Municipal Court matters. He also served as a law clerk to the Presiding Judge of the Essex County Family Part in Newark, New Jersey. His diverse litigation experience has helped him develop as a confident and effective litigator, providing a strong foundation for representing clients in complex matters and advocating for their interests. Professional Activities Middlesex County Bar Association, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Elisabeth Haub School of Law at Pace University, cum laude B.A. in Journalism and Professional Writing, The College of New Jersey Bar Admissions New Jersey

News Three Strikes and You’re Out on Coverage: COVID-19 Business Interruption Claim Fails (PA) December 18, 2020 < Back Share to: Of course, COVID-19 and accompanying shutdown orders impact on business interruption claims are still among the most pressing issues facing the courts. In Toppers Salon & Health Spa Inc v Travelers Property Casualty Company of America, the Eastern District of Pennsylvania has provided one of the most definitive answers on the issue with its rejection of an insured’s business interruption claim. Plaintiff Toppers operates a chain of day spas in Pennsylvania, New Jersey, and Delaware, all of which have been affected by government mandated shutdown orders. Toppers’ insurance policy covers interruption to its business which includes business income coverage and civil authority coverage. The key provision in the policy here is that it covers loss “due to the necessary suspension of your ‘operations’ during the ‘period of restoration,’” if the suspension was “caused by direct physical loss of or damage to property at [the insured's] premises.” “The ‘Civil Authority’ provision covers loss of Business Income and extra expenses incurred due to damage to property other than property at the insured's premises, when as a result of ‘dangerous physical conditions,’ a civil authority's actions prohibit access to both the insured's premises and the area immediately surrounding the damaged property.” The Court held that neither of these provisions applied in this case deciding that being forced to close as a result of the shutdown orders was not a “physical loss.” The language the Court primarily focused on was the period for which the policy would reimburse a loss. The policy provided that this period ended on the “date when the property at the described premises should be repaired, rebuilt or replaced.” The Court opined that for this language to make sense, a physical loss must have occurred to be repaired, and the shutdown order did not meet this definition. The Court believed the policy language demonstrated the intent of the parties that any loss must be some sort of physical damage. The Civil Authority coverage did not apply because, similarly, a physical loss had not occurred to neighboring property. The Court also looked at the specific Virus Exclusion holding Plaintiff would also lose its claim for coverage because of its plain language as well. The Virus Exclusion applies to “loss or damage caused by or resulting from any virus ... that induces or is capable of inducing physical distress, illness or disease.” The Court held that, “The language is not ambiguous, and it applies to Covid-19, which is caused by a coronavirus that causes physical illness and distress.” The Court held that similar language was held to exclude coverage in South Dakota and California. This opinion is one of the strongest yet to deny coverage for businesses forced to close due to government shutdown orders during the COVID-19 pandemic. A clear Virus Exclusion is one way for insurance companies to be sure that they will not be required to cover for these types of losses, but this Court went further, holding that COVID-19 is not a physical loss that could be covered by a business interruption or civil authority coverage. While courts will still wrestle for the time being as to how exactly COVID-19 and insurance overlap, this Court strongly casted its vote in favor of the lack of coverage camp. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News ALL BARK NO BITE-A Dangerous Dog Registry is Among the Bills to be Voted on by Nassau County Legislature Next Week (NY) February 12, 2021 < Back Share to: Legislator John Ferretti proposed a bill entitled, "Benny's Law" to help protect people and pets within the community. The bill was inspired after the lawmaker’s 1-year old terrier, Benny, was attacked by a neighbor’s dog. Although the dog who attacked Benny is currently on probation, the Ferretti fears that since the dog was returned to its owners, other incidents between dogs and even humans may occur. Ferretti believes that the dog database proposition, which aims to list all dogs legally deemed dangerous by a Judge, will make all neighbors in the community fully aware of the vicious nature of not only the dog that attacked Benny, but all dangerous dogs alike, and thus, neighbors will start exhibiting the necessary vigilance and caution while within those potentially unsafe zones. The framework of “Benny’s Law” will look similar to that of a sex registry. The proposed dog database will comprise of the dog owner’s address, the date of the incident, and “the pet owner will have to mail a letter to all property owners within 1,000 feet of the home notifying them that the owner’s dog has been deemed dangerous.” In addition to the address and date of incident, the database will also feature more detailed accounts of each dog, such as, the dog’s weight, age, breed, color, and the duration of dangerous dog designation. “Benny’s Law” also recommends that the failure to register the dangerous dog on the database will result in consequences, starting with a $500 fine. The bill is scheduled to be voted on within the next week with legislator’s hopes it is fully enacted and implemented before any future incidents arise. Thanks to Irving Fayman for his contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited October 3, 2013 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact