News WCM Attorney Appointed to Vice-Chair of DRI Subcommittee. January 8, 2019 < Back Share to: WCM is pleased to announce Counsel Colleen Hayes was recently appointed the Co-Vice-Chair for Social Media for the DRI’s Young Lawyers Steering Committee. The selection process draws from a national pool of applicants from all practice areas within the defense bar. In her role as a Steering Committee Member, Colleen recently wrote an article offering advice to young attorneys on how to begin developing business. For more information about this post, please contact Colleen at chayes@wcmlaw.com . Previous Next Contact

News But They Acted So Nice! Pleasant Social Interaction Does Not Excuse Late Notice of Claim April 6, 2012 < Back Share to: Disclaimers of coverage based on untimely notice are always a source of controversy, and it is interesting to see how various jurisdictions deal with the issue. Recently, the Connecticut Supreme Court made new law concerning the scope of an insured’s duty to notify its insurer of a potential claim. The Court ruled that the insured cannot excuse late notice simply because he spoke with the claimant who did not indicate that he would bring a claim. A subjective belief that there would not be liability does not excuse late notice where the circumstances would have led a reasonable person to believe that he/she could potentially be liable. In Arrowood Indem. Co. v. King, the insured’s son was driving an ATV and used a rope attached to the ATV to tow the claimant on a skateboard. The claimant fell off the skateboard and suffered severe head injuries. The insureds did not notify their insurance company of the accident because they met the injured boy’s parents and the parents did not indicate that they intended to bring a lawsuit. The court ruled that regardless of the insureds' belief based on the social interactions between the parents, a reasonable person would have believed that liability may have been incurred because of the severity of the injury. Therefore, the insureds failed to provide timely notice and the insurer could deny the claim as long as it proved prejudice. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com   Previous Next Contact

News Claims Of Bad Faith And Vicarious Liability Fall Like Dominoes With Speculative Damages (PA) November 24, 2021 < Back Share to: In an action brought by the Moses Taylor Foundation (the “Foundation”) in the Middle District of Pennsylvania, it sought to recover damages for an alleged breach of contract by Coverys and its primary insurer (“Coverys”) for failure to negotiate an appropriate settlement in a previous lawsuit. Moses Taylor, additionally, uniquely asserted a claim for bad faith for almost exhausting the available limits of insurance as well as vicarious liability through the breach of contract claim. In response, Coverys argued the breach of contract claim should be dismissed because the Foundation compiled and pled speculative damages, and therefore, the required predicate cause of action necessary to litigate a claim of bad faith––essential under 42 Pa. Con. Stat. § 8371––could not be established. Specifically, given that the insurance policy limits were not exhausted and there were no pending lawsuits utilizing the same limits, Coverys argued that the claimed damages were too speculative. Likewise, such a failure to establish the necessary cause of action disappeared the Foundation’s vicarious liability claim as well because, given the word’s syntactical underpinnings, “vicarious” implies a predicate cause-of-action. Under Pennsylvania law, damages are speculative when uncertainty exists concerning the existence of damages, not the amount, and the Court in Moses Taylor held that the possibility of future suits against the Foundation was not concrete enough to fit the law’s corporeal requirement. Therefore, like dominoes, the claims for bad faith and vicarious liability were downed in a fashion that would have made Rube Goldberg smile. This case represents the importance of attention to detail and provides another arrow in the litigator’s tactical quiver. Thanks to Richard Dunne for his contribution. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Open and Obvious Not Obvious Enough (NY) May 11, 2016 < Back Share to: Business owners have a duty to keep their premises safe and secure, and to protect invitees from potential hazards. One of the primary defenses in premises liability matters is that plaintiff was injured by an “open and obvious” condition, meaning a condition readily viewable by plaintiff. In Johnson-Glover v Fu Jun Hao Inc., plaintiff alleged that she was injured when she tripped and fell on a pulley bag/wheeled shopping bag that had a protruding metal stand that was left in one of the aisles of defendant’s store. At her deposition, plaintiff testified the aisles in defendant’s store were full of merchandise—making it difficult to pass—but that she saw the wheeled shopping bag in the aisle before she tripped over it. Defendant moved for summary judgment, arguing that the wheeled shopping bag was an “open and obvious” condition for which it owed no duty to plaintiff. The First Department upheld the denial of defendant’s motion for summary judgment. The court agreed with the defendant that the wheeled shopping bag, per plaintiff’s own testimony, was an “open and obvious” condition. However, while the court determined that defendant had no duty to warn plaintiff of the “open and obvious” condition, defendant failed to establish that it satisfied its obligation to maintain the store in a reasonably safe condition. The store manager’s deposition testimony that the store would occasionally leave merchandise in the aisles for several hours after a delivery raised an issue of fact as to whether defendant created the hazardous condition, and failed to establish that the store’s cleaning schedule deprived it of actual or constructive notice of the condition. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News New FSMA Rules Finally Issued! January 5, 2013 < Back Share to: At long last, the first two new FSMA rules have been issued. The first rule requires manufacturers of processed foods sold in the United States to come up with ways to reduce the risk of contamination. The second rule targets E. coli in fruits and vegetables by targeting the “four Ws” — water, waste, workers and wildlife. The only question now is – will Congress actually provide the funding necessary to implement the rules? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Insufficient Evidence on Aisle 5 (PA) October 19, 2018 < Back Share to: On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim. Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident. Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian GIbbons with any questions. Previous Next Contact

News Do As I Say, Not As I Do: Insurer Must Pay Benefits Despite Father's Misrepresentation May 15, 2008 < Back Share to: As parents, we counsel our children to be forthright and trustworthy in their business dealings. But some parents forget to take their own advice. In Rutgers Casualty v. LaCroix, Mr. LaCroix dutifully filled out an application for auto insurance but failed to list his 18 year old daughter as a licensed resident of his household in order to pay less in premium. His daughter was later involved in a serious accident while driving one of her father's cars. When the daughter submitted a claim for PIP benefits, Rutger's denied it and filed an action seeking a declaration that the policy was void ab initio and that it had no obligation to pay any PIP benefits. The New Jersey courts had previously upheld the denial of PIP benefits where a spouse was not listed as a resident member of the named insured's household. In that earlier case, the court had to decide whether the injured spouse was akin to an "innocent insured" who is entiled to coverage or whether the sins of a husband should be visited on his wife. Given the close relationship between adult spouses, the court refused to permit the wife to benefit from her husband's mispresentation and denied her PIP benefits. On the other hand, courts have awarded PIP benfits to an innocent party where, despite a named insured's misrepresentations, the injured party is unrelated to the named insured and is hurt in the named insured's vehicle. LaCroix was a close call. The motion court voided the policy ab initio and held that the daughter could not obtain PIP benefits based on her father's misrepresentations. The Appellate Division upheld the rescission but ordered Rutgers to pay the statutorily minimum PIP benefits. The New Jersey Supreme Court began by noting that recission was an equitable remedy, designed to promote justice and fairness. You see where this decision was going. The daughter was described as "a dependent child, newly licensed, only recently of driving age, and living with her parents...who placed her trust in her father" in insurance matters. Now we know that the insurer is in deep troube. Thus, in "these exceptional circumstances," the Supreme Court upheld the recission but ordered Rutger's to pay the statutorily minimum PIP benefits. Whether LaCroix is an anomaly remains to be seen. When pitting the equities of an injured party against an insurer, the personal interests frequently trump the corporate. On that level, LaCroix is not an ususual decision. However, the real danger is that LaCroix will result in a discomforting level of unpredictability in the battle against insurance fraud. http://lawlibrary.rutgers.edu/decisions/appellate/a4006-05.opn.html Previous Next Contact

News Second Department Increases Jury Award for Past Pain and Suffering. March 10, 2009 < Back Share to: In Baird v V.I.P. Mgt. Co., Inc., plaintiff was injured in a fall and underwent three spinal surgeries. At trial, a Westchester County jury found the defendants 70% at fault, while plaintiff was found 30% at fault. Plaintiff was awarded damages in the amount of $100,000 for past pain and suffering and $300,000 for future pain and suffering. The Appellate Division held that the amount awarded for past pain and suffering was insufficient and represented a material deviation from what would be reasonable compensation. The surgeries involved spinal fusions at the C5-6 and C6-7 levels. The fusions failed requiring the third surgery. The plaintiff testified that she was in constant pain, and was unable to drive, work and otherwise engage in normal activities. The Appellate Division ordered a new trial on the issue of past pain and suffering, or in the alternative, that the defendants agree within 30 days to increase the verdict amount from $100,000 to $400,000. The Appellate Division found that the award for future pain and suffering, however, did not deviate from what would constitute reasonable compensation. Thanks to Alison Weintraub for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01599.htm Previous Next Contact

News Inspection Work Not Applicable Under Labor Law Statute (NY) August 25, 2023 < Back Share to: In Lauria v. Lippolis Constr., Inc., 2023 NY Slip Op 04374 (2nd Dept. 2023), a building inspector working for the Village of Port Washington was on a construction site. He lowered himself into an open excavation and then tripped and fell while inside the excavation. He subsequently filed suit against the property owner and general contractor under Labor Law Sections 200, 240(1), and 241(6). The defendants eventually filed their motion for summary judgment arguing plaintiff had no relief under Labor Law §§ 200, 240(1), and 241(6) because he was not an employee at the time of the accident. The trial judge granted the motion and the plaintiff appealed. The Second Department reasoned that in order to obtain relief under Labor Law §§ 200, 240(1), and 241(6), a plaintiff must first prove he was permitted to work on a building or structure and that he was hired by a either the owner, general contractor or a subcontractor. The Court also felt that whether inspection work falls within the umbrella of the Labor Law must be determined on a case-by-case basis, depending on the type of inspection work. The deposition testimony and evidence showed that neither the plaintiff nor his employer, the Village of Port Washington, had been hired to do any work on the construction site, and that the plaintiff was only performing a visual inspection of the excavation after the property had already been fully excavated. This case provides insight into a small caveat of Labor Law, which excludes an inspector, or someone of that profession, not hired by the property owner, general contractor or a subcontractor, who comes on to the construction site and is injured as a result of his work there. The distinction falls on whether an inspector is a “covered” person under Labor Law §§ 240 (1) and 241 (6) if “his inspections were essential, ongoing, and more than mere observation" (Dubin v S. DiFazio & Sons Constr., Inc., 34 AD3d at 627; see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]; cf. Martinez v City of New York, 93 NY2d 322 [1999]). Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

Emma M. Burch Law Clerk New York eburch@wcmlaw.com (332) 345-2264 Professional Experience Emma Burch is a Law Clerk in WCM’s New York office, where she assists with insurance defense and civil litigation matters. During law school, she worked as a Summer Law Clerk in the firm’s New Jersey office before transitioning to a full-time Law Clerk in New York. As a law student, Emma gained valuable legal experience and professional skills by engaging in both academic and corporate settings. She served as a Research Assistant, contributing to legal research on privacy and technology law, and Student Representative for the New York City Bar Association’s Technology, Cyber & Privacy Law Committee. While studying abroad in Belgium, she expanded her legal studies to include international law and developed in-house experience as a legal intern for an energy company. Prior to law school, Emma served as a judicial intern for a Federal Magistrate Judge in the United States District Court for the District of New Jersey and assisted on political campaigns throughout New Jersey. Honors and Distinctions Daniel Anderl Endowed Scholarship, Recipient (2024-25 & 2025-26) Westin Scholar Award, International Association of Privacy Professionals (Class of 2023-24) News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Seton Hall University School of Law B.A. in Political Science, The College of New Jersey

News In NJ MVA Case, "Discovery Rule" Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations March 28, 2012 < Back Share to: In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post. Previous Next Contact

News Inhaling Perfume At Work Deemed Compensable By N.J. Appellate Division. January 20, 2009 < Back Share to: In Sexton v. County of Cumberland, the alleged aggravation of an employee's pre-existing COPD caused by inhaling perfume sprayed into the air by a co-employee was found to satisfy the "arising out of employment" criterion of N.J.S.A. 34:15-7 , and was found to be compensable. The Appellate Division reversed the Workers Compensation Court's conclusion that the COPD was a proclivity of the employee, the aggravation of which while in the course of employment, did not arise out of the employment. http://www.judiciary.state.nj.us/opinions/a6414-06.pdf Previous Next Contact