News Who Is Responsible For Con Edison Transformer Vaults? May 24, 2011 < Back Share to: In Egan v. Consolidated Edison and New York Yankee Partnership, the plaintiff sustained personal injuries when she slipped and fell on snow and ice that was on the edge of a transformer vault where Con Edison was working. In New York, it is well established that snow and ice removal is the responsibility of the abutting landowner. As such, the Supreme Court, Bronx County denied the Yankees’ motion for summary judgment, holding that there was a question of fact as to whether the Yankees’ snow removal efforts created the condition or exacerbated it. On Appeal the Appellate Division, First Department reversed the lower court’s decision and held that because Con Edison owned the vault, Con Edison and not the Yankees was responsible for maintaining it. Thanks to Ed Lomena for his contribution to this post. http://law.justia.com/cases/new-york/appellate-division-first-department/2011/2011-04174.html Previous Next Contact

Our commercial practice is built upon the results achieved for our insurance clients. Having seen our work in insured cases, many of our corporate clients have hired us to fight their battles outside the zone of insurance protection. They know we are a firm of trial lawyers rather than “litigators.” We see discovery as a means to an end, either a successful negotiation or a trial victory. Our clients like that approach and have retained us in cases across the spectrum of commercial disputes, including Breach of Contract, Intellectual Property, Employment, Construction, Regulatory, Compliance and Licensing Issues, Corporate and Fiduciary, and Directors and Officers. Commercial Litigation Our commercial practice is built upon the results achieved for our insurance clients. Having seen our work in insured cases, many of our corporate clients have hired us to fight their battles outside the zone of insurance protection. They know we are a firm of trial lawyers rather than “litigators.” We see discovery as a means to an end, either a successful negotiation or a trial victory. Our clients like that approach and have retained us in cases across the spectrum of commercial disputes, including Breach of Contract, Intellectual Property, Employment, Construction, Regulatory, Compliance and Licensing Issues, Corporate and Fiduciary, and Directors and Officers. Practice Lead Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Download Download

News The Importance Of Being An Expert (PA) July 11, 2019 < Back Share to: Experts reports and opinions are paramount in proving a party’s theory of the case. In State Auto v. Kim Eagan Woods, the Middle District Court of Pennsylvania addressed a situation where a Defendant-Insured moved for summary judgment against a Plaintiff-Insurer over an apartment fire. Defendant's apartment was insured by the plaintiff and was damaged by fire. Plaintiff, relying on its expert's report, asserted the fire was started by defendant's negligently lit cigarette and commenced a declaratory judgment action. Defendant argued the fire was caused by a lamp, and further that there was no evidence to support the plaintiff’s claim. However, defendant did not retain an expert to support her contention. Plaintiff’s expert reviewed the evidence supplied in the case and conducted an examination of the scene of the fire. The expert determined that the fire was caused by a negligently lit cigarette, noting a lighter and ten empty cigarette packs in the apartment. He determined that, although the wire of the lamp showed fire damage, it was not the cause of the fire. Subsequently, the defendant moved for summary judgment. In analyzing the motion, the Court found that the plaintiff’s expert report, and other supporting evidence, set forth a prima facie case of negligence sufficient to survive summary judgment. Importantly, the Court noted that the defendant did not move to exclude the expert report or preclude the expert's testimony in her motion. The Court further noted that even if the defendant had moved to exclude the expert’s testimony, the judge would not have granted it because of the wealth of support for the expert’s opinion. In most cases, all parties to a case will retain an expert who will conduct a review of the evidence/location of interest and author a report that supports the respective party’s theory of the case. Here, the defendant moved for summary judgment based on a lack of evidence to support the plaintiff’s case. Crucially, the defendant failed to retain an expert to support her theory of the case. The Court was, thus, faced with a situation where a layman’s theory of the case was pitted against that of an expert. As such, this case exemplifies the importance of retaining an expert when a case involves technical issues, especially if the opposing party has already obtained an expert. Thank you to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News NJ Appellate Court Determines that “Ambulatory Surgical Center” Not Entitled to Reimbursement from Insurer (NJ) February 7, 2020 < Back Share to: After a 2014 automobile accident, Claire Fiore underwent a lower back surgery at the Ambulatory Surgical Center (“ASC”) operated by Specialty Surgical Center of North Brunswick. Following the procedure, ASC sought reimbursement from Fiore’s automobile insurer, New Jersey Manufacturer’s Insurance Company (“NJM”). NJM denied payment. The dispute then went to arbitration, where a panel awarded ASC its $32,500 in reimbursement. But NJM filed suit to vacate that award and the trial court did so. In New Jersey Manufacturers Ins Co. v. Specialty Surgery Center of North Brunswick, NJM argued that it was not required to reimburse the insurer because the New Jersey personal injury protection (“PIP”) fee schedule did not specifically provide for a reimbursement value for ASCs. The ASC disagreed, and argued it was entitled to reimbursement because lower back surgery (the procedure ASC performed) was listed as a reimbursable procedure. The Court ruled that NJM was not entitled to reimbursement. In doing so, the court reasoned that the plain language of the fee schedule applied. The court also reasoned that the fee schedule provided for reimbursement only to “physicians.” The New Jersey Appellate Court’s decision is important because it lends support to a strict construction of regulatory language. Thanks to John Lang for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

Shonette K. Greene Law Clerk New Jersey sgreene@wcmlaw.com 862 294 3456 Professional Experience Prior to joining WCM, Shonette interned with the New York State Office of the Attorney General’s Investor Protection Bureau, where she assisted in investigations involving securities and anti-fraud statutes. She also worked at Reckitt Benckiser on contract management, intellectual property litigation, and compliance projects. Shonette also participated in the Child Support Mediation Clinic as a mediator for the Suffolk County Family Court, helping to resolve child support disputes. In her free time, Shonette enjoys traveling and has visited more than 37 countries over the past decade. Professional Activities Member, Caribbean Attorney Network News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education M.A., CUNY John Jay College of Criminal Justice J.D., Maurice A. Deane School of Law at Hofstra University

News Policy Declaring Itself Excess is Ruled to be Excess May 14, 2009 < Back Share to: Petzl America, Inc. manufactured a harness for use by people climbing wall-climbing systems. They sold such a harness to Sport Rock International, Inc., which incorporated it into a wall climbing system that they manufactured. The system was then installed in a gym. Joseph Anaya fell while climbing the wall because an employee at the gym had attached the safety line to the wrong place on the harness. Anaya filed suit. American Casualty covered Petzl. The American Casualty policy named Sport Rock as an additional insured and contained an "other insurance" clause that said that the coverage was primary and that if there were other coverage, "we will share with all that other insurance by..." equal shares or in proportion to policy limits depending on what the other policy permits. Evanston Insurance Company covered Sport Rock. The Evanston policy said that "When you are added to a manufacturer's or distributor's policy as an additional insured....the coverage afforded under this Coverage Part will be excess ...." American Casualty disputed its obligation to bear the entire defense, pointing out that some of the claims against Sport Rock arose from its own alleged negligence, separate and apart from the product defect allegations surrounding the manufacture of the harness. Thus, reasoned, American Casualty, Evanston should bear part of the cost of defense. The court ruled that the clause in the Evanston policy declaring itself excess to the American Casualty policy was to be respected. The court held that the Evanston policy "is rendered excess by reason of the competing "other insurance" clauses" and "will not become obligated to defend the insured until the other carrier's coverage has been exhausted." http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03794.htm Previous Next Contact

News Bound to Your Transcript: Careful What You Say in NY September 16, 2009 < Back Share to: The long standing rule that a party cannot submit a self-serving affidavit nor allege a new theory of liability for the first time in opposition to a summary judgment motion was recently upheld in Nicholas v. New York City Housing Authority. In Nicholas, the plaintiff testified that he slipped on a wet condition located on a staircase owned by the NYCHA. NYCHA moved for summary judgment on the basis that it did not have actual or constructive notice of the condition. In opposition to the motion, the plaintiff submitted an affidavit alleging for the first time that he fell on a defective/broken stair. The lower court denied NYCHA’s motion, but the First Department reversed and dismissed the complaint based on the fact that the plaintiff tailored his affidavit to avoid the consequences of his deposition testimony. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06463.htm Previous Next Contact

News Defendant’s Motion To Amend Its Answer To Admit Averments It Previously Denied Two Years Previously Includes A Novel Attempt To Avoid Punitive Damages At Trial (PA) November 19, 2021 < Back Share to: A Lackawanna County judge has granted a defendant’s motion to amend his answer to admit averments that he had previously denied when filing the answer more than two years earlier. In Bellersen v. Gill, Plaintiff, Gina Bellersen, was injured in a rear- end, chain collision motor vehicle accident in October 2018. Defendant Gill was the last vehicle in the chain, and upon filing his initial answer in October 2019, Gill admitted the accident, but specifically denied that he “operated his vehicle in a negligent, careless, and reckless manner.” Two years later, Gill moved to amend his answer paragraphs 17, 18, 31, and 320 of the Complaint “to admit that his failure to use due care while driving his vehicle … caused him to rear-end the vehicle in front of him, which in turn caused that vehicle to rear-end the vehicle [Bellersen] was driving, and further caused the front of [her] vehicle to hit the vehicle in front of her.” Gill also requested that the Order granting his motion to amend expressly state that his admissions to paragraphs 17, 18, 31, and 32 “shall not be used as an admission of any type of conduct which could serve as a basis for imposition of punitive or exemplary damages.” Apparently, given that Gill had started a chain-reaction collision, he hoped that conceding negligence might preclude the need for raising that issue a trial and thereby avoid the potential for punitive or exemplary damages. Plaintiff opposed the motion to amend as untimely and objected to the inclusion of “unnecessary and prejudicial language” in the proposed Order. Judge Terrence R. Nealon rejected the untimeliness argument, noting that Rule 1033 imposed no time limit on amendments of a pleading. The prejudice sufficient to deny amendment of the pleadings must be more than an mere detriment to the other party. A delay of two years in seeking to amend a pleading, without more, does not furnish a sufficient basis for denying a motion to amend. Although Judge Nealon granted Gill’s motion to amend, he held that the request that Plaintiff be foreclosed from making any evidentiary use of those admissions in support of her punitive damages claim was not an appropriate consideration in seeking leave to amend under Rule 1033. Instead, the preclusion of evidence at trial is a proper subject for a motion in limine addressed to the trial judge. Interestingly, although Judge Nealon refused to add the language requested by Defendant Gill, he did append a footnote to clarify that only factual admissions are treated as binding judicial admissions on a party. Factual admissions by Gill that he failed “to brake his vehicle,” “keep his eye on the roadway,” “inspect the vehicle,” “record his duty status,” and “stop for traffic ahead” and that he was speeding, texting, “using a cellular phone without a Bluetooth or hands-free device,” and fell “asleep while driving,” would constitute judicial admissions.. However, legal conclusions, such as his alleged negligence, carelessness, and recklessness, would not qualify as judicial admissions. The import of this case is that a party may amended its pleadings at nearly any time during the pleadings with the consent of the other party or leave of court. The right to amend should be freely granted absent an error of law or resulting prejudice. The “resulting prejudice . . . must be something more than a detriment to the other party since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.” Thanks to Jim Scott for his contribution to this article. Should you have any questions concerning this case, please contact Thomas Bracken. Previous Next Contact

News NY Court of Appeals addresses high low agreements. September 22, 2007 < Back Share to: Court holds that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). http://www.nycourts.gov/ctapps/decisions/jun07/89opn07.pdf Previous Next Contact

News Injured Landscaper Settles for Philadelphia Record $26.55 Million June 23, 2016 < Back Share to: In the largest single personal injury settlement from the Philadelphia Court of Common Pleas, plaintiff David Williams recently resolved his lawsuit for $26.55 million dollars. Williams, a landscaper for TruGreen lawn care, was ejected from a TruGreen-owned truck after crashing in a rainstorm. Williams suffered a fractured spinal cord, resulting in paralysis. Plaintiff sued TruGreen, his employer who owned the truck involved in the accident; ServiceMaster, TruGreen’s parent company; and vehicle maintenance companies Dickinson Fleet Services and Brooks Auto Repair. Williams claimed that TruGreen had a duty to ensure its work vehicles were in safe working condition, yet failed to do so. Williams also argued that Dickinson Fleet Services was at fault as it failed to take the truck out of service when inspecting it three days prior to the accident. Although a Dickinson field technician found that the right rear tire had insufficient tread and needed to be replaced, he neglected to "sticker" the truck to indicate that it should be taken out of service. Williams also claimed that Brooks Auto repair failed to replace or rotate the back tires and just replaced the front tires. TruGreen contended that Dickinson was at blame as it failed to provide adequate notice about the tire treads and further argued that Williams was contributorily negligent because he drove too fast for the road conditions. Dickinson argued it did not have the authority to remove the truck from service and fulfilled the extent of its obligation. Ultimately, the parties agreed that ServiceMaster and TruGreen would contribute $16.75 million to settlement, while Dickinson would contribute $9.5 million and Brooks Auto Repair $300,000. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News State Farm Must Defend Cyberbully Accused of Instigating Suicide (PA) December 14, 2018 < Back Share to: While attending a Pennsylvania High School, Zach Trimbur repeatedly harassed his female classmate, both in person and online. In a tragic turn, the classmate committed suicide. The classmate’s parents filed a suit in Pennsylvania state court, bringing claims of negligence and wrongful death and survival against Trimbur. State Farm brought a declaratory judgment action after Trimbur’s parents asked State Farm to defend and indemnify him against the lawsuit by referring to their home insurance policy that provided personal liability coverage. State Farm’s policy covers the cost of defending against claims arising from “occurrences,” which Pennsylvania state law has defined as accidents. However, on December 11, 2018, U.S. District Judge Mark Kearney sided with the insured and held that State Farm must pay for Trimbur’s defense. According to Judge Kearney, although Trimbur may have intended to hurt the girl, it is not conclusive that death by suicide was foreseeable from his cyberbullying. Judge Kearney further stated that “the true test of whether an accident occurred comes from when the situation is viewed from the perspective of the insured” and from Trimbur’s perspective, suicide was not foreseeable. Judge Kearney declined to answer whether State Farm must also indemnify Trimbur. And with the duty to defend being broader than the duty to indemnify, indemnification is certainly on the table. This question may remain unanswered until the close of discovery. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Duty To Defend Extinguished With Tendering Of Policy Limits December 28, 2016 < Back Share to: The Superior Court of New Jersey recently addressed policy exhaustion and an insurer’s obligation to defend its insured. In National Surety Corp. v. First Specialty Insurance Corp., the Superior Court ruled that an insurer may exhaust its policy to settle claims, even if that settlement did not end all claims. The court also ruled that once the settlement was approved and the policy limits were exhausted, the insurer was no longer obligated to provide a defense under the policy in connection with any outstanding claims. In brief, the National Surety matter arose out of an underlying lawsuit commenced against, among others, Universal Protection Services, LLC (“UPS”) and Taubman Centers, Inc. (“Taubman”). At all times relevant First Specialty Insurance Corp. (“FSIC”) insured UPS under a CGL policy. Additionally, Taubman qualified as an additional insured under UPS’s FSIC policy. As such, FSIC began defending UPS and Taubman in connection with the underlying lawsuit. Ultimately, FSIC entered into a partial settlement with the plaintiff to settle claims against UPS. Although, FSIC’s settlement with the plaintiff exhausted the FSIC policy limits, the settlement did not include a release of the plaintiff’s claims against Taubman. After exhaustion of the policy’s limits, it was FSIC’s position that, inter alia, its duty to defend any insured had ended. National Surety Corp. (“National”), Taubman’s excess insurer, subsequently commenced a declaratory judgment action against FSIC seeking, among other things, a declaration that FSIC still had a duty to defend Taubman against claims and pay for defense costs, regardless of the fact that the FSIC policy limits had been exhausted by FSIC’s settlement for UPS. Ultimately, the Superior Court concluded that FSIC’s exhaustion of its policy limits extinguished its obligation to defend Taubman. Thus, this case illustrates, under New Jersey law, the circumstances in which an insurer’s obligation to defend its insured may be extinguished, even though the insured still has claims pending against it. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact