News Stop Sign Means Stop... and Yield (NY) August 10, 2012 < Back Share to: Most drivers recognize that stopping at a stop sign is not the full extent of a driver's responsibility. Before proceeding, a driver must also make sure that it is safe to do so. However, there are those who don't understand the concept of yield to right of way. In Briggs v. Russo, the plaintiff was traveling down a street governed by a stop sign. The defendant was traveling down a street unencumbered by stop signs. The parties collided in the intersection. The defendant was granted summary judgment on the basis that the plaintiff stopped at the sign but failed to yield the right-of-way to the defendant's approaching vehicle. The Second Department upheld the decision, finding that the plaintiff's failure to yield the right-of-way after stopping was a violation of Vehicle and Traffic Law 1142(a) and was negligence as a matter of law. Further, the appellate court held the plaintiff's statements that she stopped but did not see any oncoming vehicle did not create an issue of fact. In fact, the court found that a driver is negligent when they fail to see that which, through proper use of senses, should have been seen. Thank you to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News NY High Court Upholds “Best Interest” Standard of Care for Insurance Producers October 21, 2022 < Back Share to: Finally, some clarity. A unanimous New York high court decided this week to uphold the Suitability and Best Interests in Life Insurance and Annuity Transactions Amendment to Insurance Regulation 187. The Department of Financial Services (DFS) in 2018 added this amendment because of concerns that the increasing complexity involved in purchasing annuities and life insurance made consumers more reliant on the advice of agents and brokers, who were incentivized to recommend transactions that prioritized their own compensation over the consumer’s best interest. The Amendment set forth a uniform standard of care for all insurance agents and brokers (i.e. producers) that provide retirement planning or investment advice: producers must act in the best interests of their clients by making reasonable efforts to obtain client suitability information and based any recommendation on that suitability information (i.e. age, annual income, and financial situation, needs, objectives, and experience, among other categories) and not on any compensation or other incentives. The Amendment requires producers to recommend only suitable transactions and have a reasonable basis to believe that the consumer has been reasonably informed of the consequences of the purchase and ultimately benefits from such a purchase. Such a standard of care had previously only applied to annuity contracts. The Amendment was challenged as arbitrary and capricious and unconstitutionally vague. In 2020, a Justice of the Supreme Court upheld the Amendment, but the Appellate Division, Third Department, reversed and held that the Amendment was unconstitutionally vague because it failed to provide concrete, practical guidance to insurance producers. On October 20, 2022, the New York Court of Appeals, reversed yet again, holding that DFS “appropriately exercised its authority to create a carefully considered and clear regulation” in concluding that the duty to act in the “best interest” of the consumer was a necessary standard of care “to protect consumers.” Thanks to Abed Bhuyan for his contribution to this post. Please contact Abed Bhuyan with any questions. 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 MTA's Self Critical Standard of Care Higher? ... Not in the Courtroom (NY) July 9, 2013 < Back Share to: In Williams v. New York City Tr. Auth., the First Department re-iterated a long-standing rule that a defendant cannot be held to a higher standard of care than required by the common law. At the second trial of liability—the first judgment was vacated for a different reason—the plaintiff introduced testimony from an MTA investigator that the operator of the bus that struck plaintiff was driving too close to the curb. The investigator, however, testified that the MTA’s operating criteria and standards are much higher than anyone else’s. On appeal, the First Department vacated the judgment, finding that the admission of the investigator’s testimony that the MTA holds its driver to a higher standard of care than required by the common law was clearly erroneous. Let this be a reminder to all companies, common carriers especially: although your regulations may hold your employees to a higher standard, for the purposes of legal liability, what matters is the common law. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Violation of Policy Condition By Named Insured Reduces Coverage for Additional Insured (NY) May 2, 2019 < Back Share to: While an insurance carrier must treat additional insureds and named insureds as if they are separately covered under the policy, it is important to keep in mind that in some instances one insured’s conduct can negatively impact coverage for other insureds. The Appellate Division, First Department, recently addressed this issue in Citizens Ins. Co. of America v. Illinois Union Ins. Co. Illinois Union Insurance Company issued a CGL policy to the “named insured,” who acted as a general contractor on a construction project performed on the property of an entity named as an “additional insured” under the Illinois policy. The policy contained a sub-limit endorsement, which provided that coverage for any loss will be reduced to $100,000 in the event that the named insured breaches any conditions to coverage listed in the endorsement. The sub-limit endorsement only imposed conditions on the named insured, and made no reference to any additional insured. Here, the named insured violated a condition to coverage which required its subcontractor to have in force an insurance policy that afforded coverage to the named insured contractor as an additional insured. Thus. Illinois Union argued that coverage was reduced to $100,000 for the additional insured. Citizens Insurance Company, the primary carrier for the additional insured, rejected Illinois Union’s position, and commenced a declaratory judgment action. The First Department affirmed the trial court’s decision that the sub-limit endorsement applied equally to the additional insured. The court declared that although the sub-limit endorsement only placed conditions on the named insured, once the named insured breached a policy condition, coverage for the additional insured was also reduced. According to the court, the “separation of insureds” doctrine did not alter the fact that the sub-limit endorsement applied to all insureds, named or otherwise. Finally, the First Department also rejected Citizens’ contention that Illinois Union was estopped by Insurance Law § 3420(d) from relying on the sub-limit endorsement because it allegedly provided late notice of the sub-limit. There was simply no evidence of any prejudice to the additional insured by any delay, as it received full payment of the sub-limit coverage, and there was no excess exposure because Citizens’ paid the balance of the settlement. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

News Gaming the System: Statutory Claims Under New Jersey’s Expansive Consumer Fraud Act Must Be Arbitrated February 4, 2022 < Back Share to: Last week, the Federal District Court in New Jersey further reinforced the arbitrability of claims involving the statutory rights of plaintiffs. In Ackies v. Scopely, Inc., 2022 WL 21451 (D.N.J. 2022), a class action complaint was brought against Scopely, Inc., a company that developed an online video game called Star Trek Fleet Command (“STFC”) available for download on Android and Apple devices. The game itself is free to play; however, players may use actual currency to purchase upgrades to enhance their ability to play the game. The plaintiff alleged that Scopely, Inc. fraudulently induced players to purchase these upgrades by stating that the upgrades would improve a player’s ranking, but defendant later decreased the effectiveness of these upgrades to the detriment of the players who purchased them. Plaintiff brought forth a slew of claims, including violation of New Jersey’s Consumer Fraud Act (“CFA”) which allows for treble damages. Defendant filed a motion to compel individual arbitration, citing an arbitration clause found in the terms of service (“TOS”). The TOS was presented to players on an initial loading screen upon download of the game which contained a notice that stated, “[b]y continuing to play, you agree to our terms of service.” The arbitration clause found in the TOS stated that the agreement precludes bringing any class action and the arbitration agreement applies to all claims under any legal theory except those related to intellectual property or those that are not subject to arbitration as a matter of applicable law. Plaintiff made a variety of arguments in opposition to defendant’s motion to compel arbitration, including that that his statutory CFA claim does not fall within the scope of the arbitration agreement. The Court rejected this argument. First, the Court found that defendant’s notice to plaintiff that by playing the game he was consenting to the terms of service was conspicuous enough to place plaintiff on constructive notice. Specifically, the notice appeared in the middle of the screen in legible size, font, and color. Therefore, plaintiff was bound to the arbitration agreement. Next, the Court found that the arbitration agreement was valid and enforceable, as it was unambiguous, was not fraudulently induced, and was not unconscionable. Finally, the Court stated that per the expansive terms of the arbitration agreement, it was for the arbitrator to decide whether claims under the CFA were within the scope of the arbitration agreement. Although the arbitration agreement stated “[N]othing in these Terms will affect the statutory rights of any consumer”, the Court cited to recent Supreme Court precedent stating that “where the parties delegate the arbitrability question to an arbitrator…a court possess no power to decide the arbitrability issue.” Therefore, defendant’s motion to compel arbitration was granted and plaintiff was forced to arbitrate whether his CFA claims fell within the scope of the arbitration agreement. This decision further highlights the power arbitration agreements have in helping defendants resolve issues outside of court, maintaining confidentiality in dispute resolution, and raising procedural roadblocks for plaintiffs seeking to get in front of juries. Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News PA Landowner Avoids Liability for Snowmobile Crash, Snowmobile Club Not So Lucky June 30, 2021 < Back Share to: In Conway v. N.E.P. Sno Trails, Inc., the Court of Common Pleas of Lackawanna determined that a landowner could not be held liable for a snowmobiler’s injuries that occurred on its property. The court did, however, find that the snowmobile club the snowmobiler was a member of could be held liable. Plaintiff, Brent Conway, filed a negligence action against a snowmobile club and landowner after he suffered numerous injuries, including shoulder and hip dislocations, in a snowmobile incident. He was a member of the snowmobile club and paid dues to use the snowmobile club’s trails. The landowner owned the land where the incident occurred. In response to Mr. Conway’s claims, both defendants filed motions for summary judgment. The defendants argued they were immune from liability based on an exception to the Recreational Use of Land and Water Act (“RULWA”). The exception “provides that the owner or occupant of land made available to the public for recreational use is immune from negligence liability to a recreational user for harm caused by a dangerous condition, unless the owner or occupant charges the recreational user to enter or use the land.” Both defendants claimed immunity on the basis they did not charge Mr. Conway to use the land. The snowmobile club also argued that Conway assumed the risk of his injuries, but the court found a dispute of material fact on this issue. The court granted the landowner’s motion for summary judgment, but did not grant the snowmobile club’s motion. The court found no evidence in the record that the landowner charged a fee to use its land. Further, there was no evidence in the record to show the landowner maliciously or wantonly created the six-foot-gully that caused the incident. In contrast, the record showed that Mr. Conway paid an annual fee to the club for a trail map and registration sticker to use the trail where the incident occurred. Thus, the court narrowly construed the RULWA exception and found that even where the payment was not directly for use of the land, the snowmobile club could not be immune from liability. The court determined that—although attenuated—the snowmobile club essentially received payment for Mr. Conway to use land that it occupied (the snowmobile club maintained the trail where the incident occurred). As such, the court found that the snowmobile club was not immune from liability. Thanks to John Lang for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Insulating Steam Risers Not Required In Old Buildings October 14, 2010 < Back Share to: In Ferguson v. The New York City Housing Authority, the plaintiff lost consciousness while sitting on the toilet and suffered burns when her forehead hit the steam riser pipe in the bathroom. The plaintiff alleged that the Housing Authority was required to insulate pipes that exceeded 165 degrees Fahrenheit, but failed to do so in violation of the Administrative Code. The Housing Authority moved for summary judgment on the grounds that the Administrative Code did not apply to it because the building had been constructed before the provision went into effect and the pipe had been properly maintained. The lower court granted the Housing Authority's motion. The Appellate Division, Second Department, affirmed holding that it was not foreseeable that the plaintiff would have been in contact with the steam riser for any sustained period of time. Further, the plaintiff failed to show that the Housing Authority had actual or constructive notice of a dangerous condition. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07309.htm Previous Next Contact

News Playgrounds Are Still Allowed to Pose Some Risk, In Theory Anyway (NY) August 22, 2019 < Back Share to: Most people older than a millennial remember the "good old days" when playgrounds resembled death traps, complete with metal slides that burned your skin, monkey bars the height of a small building, and swings that seemingly reached the sky. In a post-Stranger Things world, however, playgrounds are now constructed to comply with more stringent safety regulations, and to avoid even the slightest prospect of danger. But as one Second Department decision makes clear, all the fun-proofing in the world will not stop the lawsuits. In V.W. v. Middle Country Central School Dist., a school was sued by the parent of a girl who hurt herself falling off a set of monkey bars. According to the plaintiff, the school district should be held liable because it negligently supervised the girl and negligently maintained its premises. In the trial court, the school district was awarded granted summary judgment. However, the Second Department reversed. On appeal, the school district actually prevailed on the negligent supervision claim. According to the Second Department, the school district provided adequate supervision. The Court even held that falling off monkey bars is an incident which could not be prevented with closer monitoring. However, the Second Department reversed the decision on the negligent maintenance claim. Although the school district offered expert testimony showing the playground complied with applicable regulations, the expert also confirmed that the monkey bars had been removed by the time she inspected and she had also been unable to confirm surface conditions on the day of the accident. The Court’s decision in V.W. is significant because it does provide playground owners and operators some comfort that it is possible to avoid liability for risks that used to be a given. But it also shows that they must show constant vigilance in maintaining the ground and preserving the evidence. Here, the expert was rendered unable to inspect the monkey bars, because they had been discarded. Hence, an issue of fact to deny summary judgment. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any question.   Previous Next Contact

News Third Circuit Adds Depth to "Four Corners" Rule March 21, 2016 < Back Share to: The Third Circuit recently held that an additional insured is entitled to defense and indemnification under a named insured’s policy even where the named insured is not a defendant in a lawsuit, thus there are no allegations of negligence against the named insured. This case provides a notable caveat to Pennsylvania’s strict “four corners” interpretation of complaints. In Ramara Inc v. Westfield Insurance Co., et al.., Ramara, a property owner, sought coverage from Westfield, the insurer of a sub-contractor, Sentry Builders Corp., for a personal injury action commenced by a Sentry employee. The Westfield policy provided coverage for additional insureds for claims caused “in whole or in part” by the negligence of Sentry. Although Ramara was named as an additional insured in the Westfield policy, coverage was denied because Sentry was not named or alleged to have committed any negligent acts in the lawsuit. Under Pennsylvania’s strict “four corners” rule, courts determining whether there is coverage restrict review to the allegations in the complaint. Pennsylvania, like many other states, prohibits employees from suing their employers when the employee qualifies for compensation under the state’s Workers Compensation Act. The Third Circuit recognized that Sentry was not named in the underlying personal injury action because of Pennsylvania’s Workers Compensation Act, and also reasoned that the allegations in the complaint established that Sentry was a proximate cause of Axe’s injuries. Among other claims, the Third Circuit noted that Ramara’s alleged liability turned on the acts of its employees or agents, which necessarily included Sentry. In its holding, the Third Circuit avoided an inequitable result of an overly literal approach to the “four corners” rule. Even though Sentry did not appear on the surface of the complaint as a result of state pleading requirements, the court recognized its underlying relation to the claim. To the extent that there was any doubt that the “four corners” rule created a loophole through which subcontractors’ insurers could escape a duty to defend or indemnify in cases of employee injuries, the Third Circuit has gone a long way to eliminating it. Thanks to Christopher Soverow for his contribution to this post.       Previous Next Contact

News Substance of Pro Se Petition Rejected by Appellate Court (PA) November 14, 2018 < Back Share to: On November 02, 2018, the Superior Court of Pennsylvania affirmed a judgment entered in the Chester County Court of Common Pleas denying a petition to vacate an arbitration award in Jenn-Ching Luo v. Lowes Home Centers LLC The case arises out of a minor construction project gone wrong which resulted in property damage. Jenn-Ching Luo (“Luo”) contracted with Lowe’s Home Centers, LLC (“Lowe’s”) to install a new residential roof, skylights and gutters. Lowe’s hired Kolb Roofing Company to perform the installation, however, Luo claimed the installation did not protect against a brief rainstorm which caused damage. Attempting to rectify the problem, Lowe’s hired Charles S. Ernst to evaluate the property damage, but Luo didn’t agree with his assessment. Luo then proceeded to file suit in the Chester County Court of Common Pleas. However, the original installation contract contained an arbitration provision and thus the case proceeded to arbitration. The arbitrator found in favor of Luo and against Lowe’s and Walters in the amount of $2,034.07. Luo was unsatisfied with this award and filed a petition pro se to vacate the award. In doing so, Luo raised an astonishing 23 issues in her appellate brief. In dismissing the appeal, the court cited a litany of errors and violations of the Pennsylvania Rules of Appellate Procedure. Luo had failed to cite to any relevant legal authority, failed to divide her brief “into as many parts as there are questions to be argued,” failed to cite to the record and made a number of other errors not referenced in the opinion. This case, while extreme, highlights the importance understanding jurisdiction-specific procedural rules and strictly adhering to them. Failing to do so can have grave consequences including the potential for the dismissal of your case. As anyone who does appellate work, civil or criminal, will tell you, a skilled adversary presents a challenge. But a pro se adversary presents a more time-consuming challenge, because the attorney has to address all arguments, even nonsensical ones. Here, Lowe's had to oppose a 23 point appeal, on a $2,000 arbitration award. "Judicial economy" usually takes a backseat when pro se litigants are involved. Thanks to Garrett Gitler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News "Arising Out Of" and "Caused By": Different Meanings in AI Endorsements? Apparently Not. January 27, 2012 < Back Share to: In W&W Glass Systems v. Admiral Ins. Co., the plaintiff sought a judgment declaring that it was an additional insured under its subcontractor's insurance policy after an employee of the subcontractor was injured during the course of his employment. The policy provided that plaintiff was covered "only with respect to liability caused by [the subcontractor's] ongoing operations performed for that insured [i.e. plaintiff]." The defendant argued that the additional insured provision was not triggered because the injured employee's accident was not "caused by" the subcontractor's operations -- that the language "caused by" means that there must be a finding of negligence. The First Department rejected this argument, finding that the language "caused by" does not materially differ with the language "arising out of," and that language does not require a showing of negligence. Since the injured employee was working for the subcontractor at the time of the accident, the defendant's duty to defend was triggered. http://www.nycourts.gov/reporter/3dseries/2012/2012_00307.htm Thanks to Gabe Darwick for his contribution to this post. Previous Next Contact