News Intentional-Acts Exclusion Inapplicable to Innocent Abuse Victim (PA) June 7, 2013 < Back Share to: In a recent case of first impression, the Pennsylvania Superior Court held that the Commonwealth’s Unfair Insurance Practices Act prohibits carriers from relying on intentional-acts exclusions to disclaim coverage of claims under a property policy arising out of domestic abuse by another insured. The Superior Court also held that the unauthorized and fraudulent cancellation of a couple’s homeowner’s policy by one spouse as part of a pattern of domestic abuse against the other cannot effectively cancel the policy. In the case of Lynn v. Nationwide Insurance Company, an insured presented property damage claims under his homeowners policy following a failed murder-suicide in which his co-insured wife attempted to kill herself and her children by burning down the family home. She left a disturbing suicide note to her estranged husband that stated "Have a great fucking life knowing that the kids will always be with me now. I leave you absolutely nothing." Following Nationwide’s disclaimer of coverage on the basis of an intentional-acts exclusion contained within the policy, the insured filed suit alleging breach of contract and bad faith. Specifically, the insured argued that while the exclusion would ordinarily bar coverage, Pennsylvania’s Unfair Insurance Practices Act nonetheless prohibits carriers from denying claims under a property policy that arise out of incidences of domestic abuse by an insured. To this end, the insured presented evidence demonstrating a systematic pattern of abuse by his wife that culminated in arson as a means of forever depriving him of his children. Still, the trial court was unconvinced and granted Nationwide summary judgment on the basis that the Act proscribes only those disclaimers that intentionally discriminate against victims of abuse. On appeal, however, the Pennsylvania Superior Court reversed, holding that the relevant portion of the UIPA was enacted specifically “to create a statutory prohibition against an insurance company’s refusal to pay a homeowners policy/casualty claim arising out of abuse to an innocent claimant when an abusive spouse caused the property damage.” Further, the Court explained that the lower court’s interpretation would run afoul the statute’s clear purpose by virtually guaranteeing that innocent co-insured’s would never be paid for intentional acts of abuse. As a matter of law and policy, therefore, the Superior Court readily concluded that traditional intentional-acts exclusions are largely inapplicable to those claims stemming from purposeful abuse. While the decision in Lynn v. Nationwide Insurance Company clearly illustrates that Pennsylvania’s public policy favors insurance coverage for those innocent insureds who have suffered losses as the result of domestic abuse, the Superior Court was also quick to caution that the UIPA does not create per se coverage of the abused. To the contrary, the Lynn Court found that the Act’s structure and history expressly reject the notion of “a special class of insureds who would be automatically covered solely because they are victims of abuse,” reaching instead only those claims derived directly from the abuse. Thanks to law clerk (and soon to be law school graduate and attorney) Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com   Previous Next Contact

News Falling Object: Labor Law Violation or Simple Premises Liability (NY) May 23, 2019 < Back Share to: Plaintiffs have come to rely on the strict liability imposed by Labor Law 240 to secure high settlements/verdicts. However, the case below demonstrates that not every complaint that comes in with allegations of Labor Law violations is grounds for concern. In Djuric v. City of New York, a pollution control plant that had previously sustained fire damage was undergoing renovation work. The plaintiff was employed by the steamfitting subcontractor hired to perform mechanical work in the building. While working, the plaintiff was struck in the back of the neck by a pipe saddle that came lose from an overhead pipe hanger. All of the defendants moved to dismiss the plaintiff’s Labor Law 240 and 241(6) claims. The lower court granted the motion. The First Department affirmed the decision, finding that the pipe saddle did not constitute a “falling object” under Labor Law 240 because it was not in the process of being hoisted or secured and there was no evidence that the pipe saddle fell because of the absence of a safety device. The appellate court further noted that the pipe saddle was a permanent part of the structure and that its defect was latent and, as such, the defendants could not have known of its potential condition prior to the accident. Finally, the Court held that the Industrial Code cited by the plaintiff under Labor Law section 241(6) was inapplicable because this object that fell from above was not part of the construction debris but, rather, was a fixture of the building which became dislodged. In other words, because the object that fell from above was not installed, altered, or in any way tampered with during the construction, the Court in the above case analyzed the defendants’ potential liability exposure through the lens of a premises liability action rather than scrutinizing it more strictly under the Labor Law’s guidelines. Thank you to Margaret Adamczak for her contribution to this post.   Previous Next Contact

News NY's First Department rules that SDNY has exclusive jurisdiction over WTC claims. September 21, 2007 < Back Share to: The decision focuses on the federal pre-emption doctrine as applied to both "any statute-of-limitations arguments or arguments addressed to the sufficiency of the pleadings". http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06810.htm Previous Next Contact

News Facebook Disclosure Trends in PA. November 23, 2011 < Back Share to: We have previously reported on the status of Facebook discovery in PA. The law continues to evolve. In the case of Largent v. Reed, a Franklin County, PA trial court was faced with the question of whether, in the context of an auto accident, the plaintiff had to turn over her Facebook username and password to the defendant. The trial court ruled for the defendant and ordered the disclosure. In the lengthy ruling, the court held that there can be "little expectation of privacy" on a social networking site because "only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets." More good news for defendants looking to unearth a secret or two to impeach the plaintiff's credibility! For more information about this post, or WCM's Pennsylvania practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Hot Cup of Tea and a Wobbly Table: Not a Recipe for Summary Judgment. November 5, 2013 < Back Share to: In Hassan v. Barnes & Noble Booksellers, Inc., the plaintiff was allegedly burned when a hot cup of tea fell off a wobbly table in a Barnes & Noble. The plaintiff sued Barnes & Noble and Starbucks for serving tea that was too hot, improperly securing the lid, and allowing customers to use a wobbly table. The court granted Starbucks summary judgment on the basis that it did not supply the tea (it supplied coffee products), did not train Barnes & Noble employees in preparation of the tea, and did not purchase or maintain the tables. The court, however, denied Barnes & Noble’s motion since it failed to establish that it did not have constructive notice of the allegedly defective table. To disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence. Barnes & Noble offered no evidence as to when the table was last cleaned or inspected relative to the time of the plaintiff’s accident. It therefore failed to meet its prima facie showing of lack of notice of the dangerous or defective condition. As such, the court did not need to consider the other points of contention regarding the temperature of the tea and the lid. The moral is that in cases that rest on lack of notice, it is important to identify the routine inspections that occurred with regard to the defect early on in the case. It is imperative that your witnesses are prepared to face the constructive notice challenge. Without testimony of specific inspection, constructive notice will be difficult to disprove. For questions about this post, please contact cfuchs@wcmlaw.com Previous Next Contact

News Court Finds Defendants Did Not Exacerbate Hazard Though Engaged In Snow Removal During Storm August 12, 2022 < Back Share to: In Keeney v. Hempstead Turnpike, LLC, et al., the plaintiff appealed from an order granting summary judgment to defendant/second third-party plaintiff, Stop and Shop Supermarket Company, LLC (“Stop & Shop”), to defendant/third-party plaintiff, Hempstead Turnpike, LLC (“Hempstead Turnpike”), the second third-party defendant, S & S Levittown, LLC (“S & S”), and, on a separate motion, granted summary judgment to third-party defendant, East Coast Lot & Pavement Maintenance Corporation (“EC Lot & Pavement”) dismissing the complaint as against the defendant/third-party plaintiff, Hempstead Turnpike. Plaintiff slipped and fell on snow on a sidewalk in front of a store operated by Defendant Stop & Shop. The plaintiff sued Stop & Shop and the owner of the property, defendant Hempstead Turnpike, which in turn commenced a third-party action against EC Lot & Pavement, a snow removal contractor. Stop & Shop commenced a second third-party action against S & S, the holder of the ground lease for the property. The Court examined the facts under the now well-settled storm-in-progress rule citing that a property owner, tenant in possession, or, where relevant, a snow removal contractor is not liable for accidents caused by snow or ice that accumulates during a storm until sufficient time since a storm’s cessation has passed to allow the opportunity to mitigate any hazards caused by the storm. The Court noted, however, that if a landowner or tenant in possession decides to remove snow during a snowstorm, then, in such an instance, the landowner and tenant in possession must act with reasonable care not to create a hazardous condition or make worse a hazardous condition created by the storm. Though the plaintiff in the underlying action claimed the sidewalk looked like someone removed snow earlier in the day with parts of it having melted spots, did not have no salt or sand on it, had about ½ an inch of snow where the plaintiff slipped, and the parking lot was salted and sanded, the defendants here successfully established that their efforts to remove snow and ice from the sidewalk during the storm did not create a hazardous condition or exacerbate the natural hazard caused by the storm. This case serves as a reminder of the potential liability exposure of owners and tenants in possession along with those they contract with, such as a snow removal contractor, when attempting to ameliorate a snowy condition while snow is still falling from the sky, as well as, the factual depth and development necessary for the defense of such cases. Should you have any questions, contact John Diffley. Previous Next Contact

News Silence can be Deadly - Failure to Disclose Witness is Fatal to Plaintiff's Claim (NY) October 19, 2016 < Back Share to: The Second Department recently upheld a pretrial win for Muintir, LLC over claims launched by a customer who tripped on Muintir’s property in Gallway v. Muintir, LLC. In affirming, the Court found that there was no showing that Mutinir had actual or constructive notice of the defective condition that allegedly caused plaintiff's fall. On October 28, 2011, Gallway, was dining at Dalton Sea Side Grill, a Tenant of Muintir, with her granddaughter. Upon exiting the restaurant, plaintiff allegedly tripped and fell on a defect in the sidewalk abutting the premises, which was owned by Muintir, LLC. Plaintiff describes the defect as a crack radiating from a hole 1.5 inches deep with a diameter larger than a silver dollar. In her deposition she stated that she had visited the restaurant ten times in the year preceding her accident where she had never observed the alleged sidewalk defect. Muintir moved for summary judgment claiming they lacked actual or constructive notice of the defect in the sidewalk. In support of the motion, included was the deposition of an employee of the restaurant who testified that he did not observe the defect in the sidewalk. In opposition, Gallway submitted an affidavit of her granddaughter, a witness not previously disclosed, who stated she had seen the defect on a prior occasion. The Court refused to consider the granddaughters affidavit, finding for Muintir. The Appellate Court held that the motion court properly refused to consider the affidavit of the Plaintiff’s granddaughter to establish that Defendants had notice of the sidewalk defect that caused her grandmother to fall. Plaintiff failed to disclose her as a notice witness during discovery and did not offer a valid excuse for that failure. Without the granddaughter’s affidavit, the Appellate court found that plaintiff failed to establish the claimed defect was present for a sufficient length of time to give the Defendant constructive notice of its existence. The Court's ruling demonstrates that plaintiffs must take discovery seriously, including witness disclosure, lest they be precluded from relying upon such undisclosed information at trial. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Labor Law Defenses Doomed by Debris (NY) November 11, 2016 < Back Share to: In Victor Saavedra v. 89 Park Avenue LLC, the plaintiff was injured while climbing down from the top rung of a ladder. Plaintiff moved for summary judgment, under Labor Law §240, but the motion was denied. The defendants argued that plaintiff was provided with a ladder and plaintiff was the sole proximate cause of his injuries because he the fall occurred because plaintiff was standing on the top run. Defendant also argued plaintiff was a recalcitrant worker because he was told not to work on the date of the accident because of a debris in the area, and the trial court denied the motion. But on appeal, the First Department held that despite being on the top rung of the ladder, the plaintiff was not the sole proximate cause of his injuries because a taller ladder could not fit in the workspace due to the continued presence of debris in the workspace. The court also held that plaintiff was not a recalcitrant worker despite being told by the site safety manager that the room was unsafe. The site safety manager testified that she lacked authority to stop plaintiff from working and the evidence demonstrated that debris was on ongoing safety concern. Plaintiff previously complained to the site safety manager about the debris which demonstrated that debris was a recurring condition, known to exist for a period of months. Due to the recurring nature of the debris, plaintiff had no reason to believe that the site safety manager was directing him to stop work and therefore was not a recalcitrant worker. Thanks to Geoffrey Blue for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News PA Court Affirms Summary Judgment On Grounds Of Assumption Of The Risk And Open And Obvious Condition June 28, 2023 < Back Share to: In Hinerman v. Westmoreland County Airport Authority, the Hinermans arrived at an airport and attempted to pick up a rental car. They utilized the car’s remote-control features to determine where the car was located. After realizing the car was in a different parking lot than the one in which they were located, the Hinermans chose to cut across the snow-covered grass rather than use cleared walkways. While Mr. Hinerman crossed the snowy divide, Mrs. Hinerman, who took a slightly different route, fell to her knees due to an alleged snow-covered depression of the terrain, injuring her left foot. The Hinermans then claimed the rental car and drove home, and thereafter visited a hospital and sought subsequent medical attention. The Hinermans’ complaint alleged “a dangerous, defective, hazardous[,] and/or unsafe condition ... characterized by an unmarked hole and/or drop in elevation, located adjacent to a broken, cracked, and uneven parking lot area” and thus there was negligence on the part of the Airport Authority, because the Airport Authority had allegedly failed to “remove, repair[,] or cordon off the unsafe condition….” Id. By way of defense, the Airport Authority offered the Hinermans’ claims were barred because the Hinermans “voluntarily departed from a paved, cleared street adjacent to the Lot, and was instead deliberately traversing a grassy, unpaved, snow-covered area that she took as a shortcut….” Id. at 2. The Airport Authority thus raised the defenses of open and obvious condition, assumption of the risk, choice-of-ways, contributory negligence, and failure to mitigate damages. Ultimately, the appellate court agreed and affirmed the trial court’s decision to grant summary judgment in that the Airport Authority did not owe a duty to the Hinermans, because the Hinermans had chosen to cut across an unimproved snow-covered area. They chose a shortcut, rather than using the cleared walkway or roadway. Whereas the Hinermans’ contended that the dangerous condition was the ground itself, that the Airport Authority should have known that the dangerous condition existed, and that the snow merely concealed the danger from the Hinermans, the appellate court explained that because the Hinermans had chosen to forego the use of the maintained walkway and roadway, and because the snow itself “due to its inherent tendency to cover uneven patches of ground or other tripping hazards, which constituted the open and obvsious danger,” the Hinermans had accepted the risks involved with traveling across the unimproved land. Simply stated, when a plaintiff could have avoid danger, but chooses not to, a claim of negligence might be barred due to the plaintiff’s own choice to assume the risk of an open and obvious condition. Thanks to Ryan Hunsicker for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Soccer Player Denied Recovery in "out of bounds" Injury (NY) July 18, 2018 < Back Share to: Now that the World Cup is over, the in the U.S. focus shifts from football back to American football. But soccer / football still finds its way into the news every now and again. In O'Toole v Long Island Jr. Soccer, plaintiff alleged he was injured while retrieving a soccer ball that went out of bounds as his cleat got caught on a drainage grate near the field where he was playing. The Supreme Court granted the defendant’s motion for summary judgment under the theory of assumption of risk. Plaintiff appealed. The Appellate Division, Second Department found that pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity ‘consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.’ Although the grate was not part of the field of play, the plaintiff admitted in his deposition testimony that in order to gain access to the field, he had to walk on the grate, and so, was aware of its presence. The Court held defendant demonstrated that it did not violate its duty to exercise ordinary reasonable care to protect the plaintiff from concealed, or unreasonably increased risks, and that the plaintiff assumed the risk of injury by voluntarily participating in a soccer game despite his knowledge that doing so could bring him into contact with an open and obvious grate near the field of play. The Appellate Division also determined the grate was NOT concealed or defective in any manner. In opposition to the defendant's motion, the plaintiffs merely offered speculative expert opinions and failed to raise a triable issue of fact. The Second Department agreed with the lower Court’s decision and found defendant’s argument persuasive and affirmed summary judgment. When you call the sport soccer or football, well, let's say the plaintiff and counsel called it a day after the Second Department's ruling. Thanks to Paul Vitale for his contribution to this post. Please email Vincent Terrasi with any questions. Previous Next Contact

News Skier Maneuvers Through Summary Judgment Minefield (NY) April 5, 2012 < Back Share to: In Sopkovich v. Smith, Plaintiff commenced this action seeking damages for injuries sustained when he and defendant, a snowboarder, collided on a ski trail. Defendant moved for summary judgment under the theory of assumption of the risk and that defendant did not engage in any “reckless, intentional, or other risk-enhancing conduct not inherent in the activity.” The lower court dismissed this case and the plaintiff appealed. The Appellate Division, Fourth Department reviewed the facts and ruled the lower court erred in its granting of summary judgment. Although there is an inherent danger in skiing and snowboarding, the other prong of the test was that the defendant was not reckless or engaged in conduct not inherent in the activity. Both plaintiff and defendant were veteran skiers/snowboarders. Plaintiff testified that he was “slow[ly]” skiing down a beginner trail when defendant merged onto that trail from an intermediate trail and impacted plaintiff from the left.” By contrast, defendant, an “advanced” snowboarder who was familiar with the trails, testified that he had already safely merged onto the beginner trail at an “average” or “normal” speed, was further down the beginner trail than plaintiff and was “very close to a complete stop” at the time of the collision, having observed plaintiff “going fast” “down the hill in a straight line.” Plaintiff submitted an affidavit from an emergency room physician who was also an 11–year veteran of the National Ski Patrol. Based on his review of the depositions and other records related to the case, the expert opined that, given the nature and extent of plaintiff's injuries, “there [was] no question [that] the force with which [defendant] impacted [plaintiff's] left side and back was immense” and that plaintiff's injuries were “not consistent with [defendant's] deposition testimony” that he had come to or nearly come to a complete stop. The expert thus concluded that defendant had “unreasonably increased the risk of harm” to plaintiff. The Appellate Division concluded that plaintiffs raised triable issues of fact whether defendant engaged in reckless conduct. As the record established that the collision was exceedingly violent there is “at least a question of fact ... whether ... defendant's speed in the vicinity and overall conduct was reckless.” As such, the expert testimony contradicted the defendant, thus creating a question of fact. A fine maneuver by the plaintiff and a reminder that summary judgment will rarely be upheld if there is credible expert testimony sufficient to take the case before a jury. Thanks to Paul Vitale for his contribution to this post.   Previous Next Contact

News Law Firm Seeks Business Interruption Coverage Due to Hurricane Sandy (NJ) July 8, 2013 < Back Share to: The Atlantic City law firm of Cooper, Levenson, April, Niedelman & Wagenheim is suing its insurance company for denying its business interruption claim after being forced to close due to Hurricane Sandy. Harleysville Insurance Company paid Cooper Levenson $25,000 for loss of electrical service following Sandy. The firm contends, however, that being forced to remain closed for business during the storm resulted in approximately $900,000 in additional damage for which it has not yet been compensated. Following Governor Christie’s order for the mandatory evacuation of Atlantic County, in effect from October 28, 2012 through October 30, 2012, the firm made a timely claim against its policy, which was allegedly written to provide coverage for professional liability, business interruptions and extra expenses. According to Harleysville, the claim was accompanied by tax returns listing an annual gross income of $28.6 million, from which the $900,000 damages claim was calculated. Harleysville denied coverage on two occasions, except for the $25,000 mentioned above. The suit, originally filed in state court in Atlantic County, was removed to federal court in Camden. Cooper Levenson seeks a declaratory judgment that Harleysville owes the firm coverage. Additionally, Cooper Levenson alleges that Harleysville engaged in unfair claims settlement practices, deceptive conduct, misrepresentations and false information by issuing the policy and then improperly denying coverage. Finally, Cooper Levenson seeks compensatory and punitive damages, pursuant to the Consumer Fraud Act. The firm contends that Harleysville denied coverage based on the wording of the policy; however, it disputes the insurer's interpretation of its policy language. Coverage is often contingent on physical damage to property. However, in this case, the firm's claim focuses on Governor Christie's Order of mandatory evacuation of Atlantic County areas and civil authority coverage. Harleysville maintains no coverage is owed and that the firm will not be able to sustain the bad faith claim. Special thanks to Samantha Epstein for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact