News Bronx Trial Judge Tops Jury Award February 10, 2009 < Back Share to: In Zimmerman v. Bd. of Ed., a Bronx Supreme Court judge recently found that a jury's failure to award damages for future pain and suffering, future lost wages and for a loss of consortium claim was substantially unjust and against the weight of the evidence. Plaintiff, a teacher, was injured when falling backward on her head while separating two students in a fight. The jury awarded plaintiff $100,000 for past pain and suffering and $300,000 for lost wages. In deciding that this was insufficient, the Court looked to the uncontroverted medical evidence that plaintiff's condition was severe and permanent, and that she could not return to work because of her inability to control her seizures. The Court also looked to other cases involving traumatically induced epilepsy, all of which involved settlements or awards well into the millions. The Court thus granted plaintiff's motion for a new trial on damages, unless the defendant was willing to stipulate to a judgment of more than $1.3 million -- nearly a million more than the jury's award. A lesson that sometimes, even a brilliant trial verdict may wind up a pyrrhic victory. Thanks to Stephanie Chen for her contribution. http://www.nycourts.gov/reporter/3dseries/2008/2008_52518.htm Previous Next Contact

News Nosy Neighbor Raises Question Of Fact In NY May 26, 2023 < Back Share to: In September 2017, plaintiff in Abramson v. Janowski’s Hamburgers Inc tripped and fell over a crack in a sidewalk in residential Rockville Center, NY. Across the street from where she was injured is the loading dock and driveway of defendants, a wholesale and retail hamburger products business. Plaintiff alleged that defendants affirmatively caused and created the defective sidewalk condition on the public property. In opposing defendants’ motion for summary judgment, plaintiff produced the testimony and evidence provided by defendants’ neighbor who had lived on the block for over 50 years. That neighbor regularly saw 18-wheel trucks coming and going from his street and testified that he observed defendant employees guiding the trucks onto the sidewalk while assisting them up to the loading dock. The neighbor had even taken photographs of tire marks near the alleged defect upon which plaintiff later fell and who saw the employees directing the trucks. At oral argument, the Court opined that although there was no video surveillance there was a very “nosy neighbor,” for whom plaintiff’s counsel was grateful. The Second Department, Appellate Division, decided that the evidence provided by that neighbor raised a triable issue of fact as to whether defendants caused or created the sidewalk defect by directing the trucks onto the sidewalk, and reversed summary judgment. This case highlights the importance of conducting a thorough investigation in bringing or defending against such premises liability claims, including knocking on doors hoping for a nosy neighbor. Thanks to Abed Bhuyan for his contribution to this post. Please contact Abed with any questions. Previous Next Contact

News New Notification: PA Updates Status on Facebook Disclosures April 13, 2012 < Back Share to: While the phenomenon of social media continues to expand, so too does the courts’ understanding of the nexus between Facebook and discovery disclosures. As we have noted previously, the trend in both state and federal court has been to allow the defendant access to a claimant’s Facebook account for the purpose of challenging credibility. However, a recent decision from the Montgomery County Court of Common Pleas has extended the doctrine in Pennsylvania to permit the plaintiff’s investigation of Facebook for evidence of the underlying incident. In the case of Gallagher v. Urbanovich, the court considered a motion to compel access to the defendant’s Facebook credentials following a claim that the he sucker-punched a man during a work-sponsored soccer game. Although Pennsylvania judges have ordinarily required an initial review of the party’s public information before granting such discovery, the court in Gallagher agreed with the plaintiff’s contention that Facebook is simply another source for admissible statements made by an opponent and therefore allowed unbridled access to the defendant’s account. Additionally, the court’s order implicated the potential for spoliation issues and forewarned the defendant against destructing or altering the information contained on the site. While Pennsylvania appellate courts have yet to comment on the appropriateness of Facebook disclosures, the expanse of Gallagher is certainly noteworthy. In the absence of a uniform approach, Gallagher may have the potential to create a new standard for the discovery of Facebook evidence when material to the actual incident. Thanks to Adam Gomez, law clerk, for this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com .     Previous Next Contact

News When Does Claim For Unlawful Harvesting Of Body Parts Occur ? NJ Supreme Court Decides. July 12, 2012 < Back Share to: In Memorial Properties v. Zurich American Ins. Co. , the New Jersey Supreme Court held that 2 insurance companies that issued policies to a cemetary are not obligated to cover claims for the illegal harvesting of human remains sent to the cemetary for cremation. Seven lawsuits were filed against the cemetary by family members of decedents alleging emotional distress when they learned of the unlawful harvesting of tissue and organs from loved ones prior to being sent for cremation. Zurich denied coverage on the ground that the occurrences were outside the policy period. Another carrier relied on an "improper handling " exclusion. For purposes of determining coverage , the Supreme Court held that the relevant occurrence took place in 2006 which was outside Zurich's policy period, when the decedent's families learned of the unlawful harvesting, not in 2003 when the harvesting took place. The Supreme Court affirmed trial and appellate court decisions that neither policy was required to defend or indemnify the cemetary . Please contact Robert Ball with any questions regarding this post.   http://www.judiciary.state.nj.us/opinions/supreme/A11910MemorialPropertiesvZurichInsurance.pdf Previous Next Contact

News You Snooze, You Lose: Late Notice Means No Coverage in Dolphins Stadium Construction Dispute (NY) August 12, 2020 < Back Share to: In Berkley Assurance Company v. Hunt Construction Group Inc, a Manhattan federal judge for the Southern District of New York addressed a high-profile dispute about the duty to defend or indemnify a construction firm in litigation over renovations of the Miami Dolphins' stadium. The court ruled that the insurer rightly denied coverage to the insured construction company, Hunt Construction Group Inc., because they waited nearly three months to notify them of the underlying dispute. Hard Rock Stadium's owner and operator, South Florida Stadium LLC, hired Hunt in 2014 as a construction manager on a project to significantly renovate the facility. As part of the project, Hunt entered into a subcontract with Hillside Fabricators for certain design and steel-fabrication services for the stadium's rooftop structure. During the project, a dispute arose between Hunt and Hillside concerning the scope and cost of the work that was being performed under their subcontract agreement, according to the opinion. The feud prompted Hunt and SFS to sue Hillside in October 2016 in Florida state court, seeking a ruling regarding the parties' respective rights and duties under the subcontract agreement. In response, Hillside filed counterclaims against Hunt and SFS on March 30, 2017, alleging that Hunt was liable for breach of contract and abandonment of contract. Hunt sought coverage from Berkley for Hillside's counterclaims as well as SFS' May 21, 2018, demand that the construction company indemnify it for the underlying action under the terms of their construction management agreement. The insurer denied coverage. It then filed suit in April 2019, seeking confirmation that it is off the hook for the underlying litigation due to Hunt's alleged failure to timely report the counterclaim. Specifically, Berkley argued that Hunt did not report the underlying counterclaim to Berkley during its initial policy period, which ran from June 15, 2016, through June 15, 2017. The construction company also failed to tell Berkley about the underlying dispute when it filled out its application form to renew the 2016-2017 policy on June 1, 2017, according to the insurer. It was not until July 20, 2017, five days after the 2017-2018 policy period began, that Hunt reported the underlying claim to Berkley. Ultimately, the court agreed with Berkley, affirming their denial of coverage due to late notice. The court stated that “[i]n short, because Hunt did not report the Hillsdale Claim until after the 2016-2017 Policy expired, it is not covered by that policy, and Berkley has no duty to defend Hunt from it.” In doing so, the court rejected Hunt’s argument that Berkley waived its right to deny coverage based on late notice since it failed to cite it as a basis in its initial disclaimer, finding that the doctrine of waiver cannot create coverage where it never existed in the first place. Moreover, the court found that SFS’s demands for indemnification arose out of the same “acts errors and omissions” making it an identical claim that could be denied on the same basis. This decision represents a win for insurers and underscores the importance of timeliness in reporting claims. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News SCOTUS RULES AGAINST ANDY WARHOL ESTATE IN COPYRIGHT DISPUTE May 23, 2023 < Back Share to: In dueling rulings, Justice Sonya Sotomayor (for the 7 Justice majority) and Elena Kagan (for the dissent, J. Roberts, concurring) took on the issue that has vexed the art world: How to balance the rights of copyright holders versus the rights of artists to “appropriate” all or some part of the copyrighted work to create something new or different--without paying or even crediting the copyright holder. See, Andy Warhol Foundation for the Visual Arts v. Goldsmith. The majority gave Goldsmith the win. Warhol took Lynne Goldsmith’s copyrighted photograph of rock icon Prince and, as with Marilyn Monroe and Liz Taylor, cropped the photograph, flattened the image, projected it onto a canvas, and then, using different color washes created a startling portrait of Prince--all without altering the moment Goldsmith captured on film. Justice Sotomayor took pains to make clear that the majority decision turned solely on the licensing agreement between the Warhol Foundation and Condé Nast for the use of Orange Prince in a magazine article for which the Warhol Foundation got $10k and Goldsmith got zip. But Justice Kagan chose to read the majority’s rationale in broad and sweeping terms declaring that: “[The ruling will] stifle creativity of every sort. It will impede new art and music and literature. It will thwart the expression of new ideas and the attainment of new knowledge. It will make our world poorer.” Wow! To be sure, the scope of this ruling will be debated for years to come. And, no doubt, SCOTUS scholars, intrigued by the ordinance lobbed back and forth between the majority and dissent, will use this text as a case study in Supreme Court jurisprudence. Yet, the question at hand is how much does this ruling really settle what is considered “fair use” of copyrighted works. I suspect its applicability is quite narrow and merely affords copyright holders a thin slice of the pie when the artist licenses a creation for commercial purposes. But the decision does not address, as the art world had hoped, what an artist may or may not do when a copyrighted work is the foundation for an imaginative creation. In this brief note, I cannot do justice to the extraordinary and often acerbic dialogue between Justices Sotomayor and Kagan about how the balance ought to be struck between copyright holders and the creativity of an artist in using that work. But I can outline the main points upon which Justice Sotomayor relied. The Copyright Act, while protecting the rights of creators of original works, also provides a defense of “fair use.” Accordingly, the “fair use” of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship, or research is not an infringement of copyright. 17 U.S.C. §107. To determine whether a particular use is “fair,” courts consider four factors as set forth in the fair use statute, namely: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Because the Warhol Foundation did not challenge that the second, third, and fourth factors favored Goldsmith, the Court analyzed only the first factor. Sotomayor noted that in considering “whether the use of a copyrighted work has a further purpose or different character, which is a matter of degree,” the “degree of difference must be balanced against the commercial nature of the use.” After analyzing the various uses of the work at issue, Sotomayor concluded that the use of the photo by Condé Nast, as the cover of a commemorative edition magazine about Prince, served “substantially the same” purpose as the use of Goldsmith’s original photo of Prince, as “[b]oth are portraits of Prince used in magazines to illustrate stories about Prince.” Sotomayor also found that the Warhol Foundation’s use was commercial in nature. Thus although a use’s transformativeness may outweigh its commercial character, because both elements here “point[ed] in the same direction,” Sotomayor concluded, they counseled against fair use absent some other justification for copying. Having found no persuasive justification, Sotomayor concluded that the first factor weighed in Goldsmith’s favor, and accordingly affirmed the Second Circuit’s decision. In sum, despite the understandable worry expressed by Justice Kagan about the potential scope of the majority ruling, the decision is actually quite narrow. My takeaway is this: If an artist licenses a derivative work for commercial purposes (such as a magazine cover or an advertisement, as examples), the copyright holder ought to be recognized and given a slice of the licensing fee. The issue of what constitutes “fair use” in the world of appropriation art (and the sale of such art to collectors or museums) is a question left to another day. My thanks to my colleague Erin Gallagher for assistance in preparation of this article. If you have any questions regarding this decision, please call or email Dennis Wade. Previous Next Contact

News NJ App. Div. Affirms No Cause Verdict In Favor Of WCM In Insurance Broker E&O Case. March 15, 2010 < Back Share to: In Credit Suisse First Boston v. Lehman, et al, the plaintiff's had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims. After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, " little question" that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse's decision to settle the underlying claims without suing the insurance carrier " highly questionable". The latter point had been the basis of WCM's lack of proximate cause argument to the jury. If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office. http://www.judiciary.state.nj.us/opinions/a2031-08.pdf Previous Next Contact

Brian Gibbons Partner New York, Long Island bgibbons@wcmlaw.com +1 332 345 7164 Professional Experience A consummate legal strategist with a well-earned reputation as a formidable opponent who is not afraid to take the right cases to trial, Brian Gibbons knows how to achieve advantageous and cost-effective outcomes for his clients, whether that’s early case dismissal through tactical pleadings and motions, resolution on favorable terms, or, where needed, a jury trial, bench trial or appeal. Brian’s keen ability to identify critical issues, devise effective approaches and leverage those approaches at key decisions points contributes to his successes on behalf of WCM clients in state and federal courts both in New York and nationally. Brian handles a very wide range of civil litigation, from property and casualty defense, premises liability, personal injury and automobile claims, and employment disputes to lawsuits involving catastrophic injuries and significant property losses. He defends individuals and businesses in complex professional liability cases, advises clients on fraud-based insurance coverage matters and investigates and litigates Jewelers Block policy disputes. Brian also uses his extensive litigation experience to advise clients on risk assessment and allocation and to help them avoid disputes and litigation. Brian knows his way around a courtroom, having previously served as an assistant district attorney in Bronx County, New York, prosecuting high-level narcotics and violent felonies and trying dozens of cases. He also understands that trials bring risk — one that many clients would prefer to avoid. Clients rely on Brian to cut through the “noise” of complex disputes, uncover the core issues and bring their cases to an optimal conclusion as quickly as possible. A compelling advocate both in the courtroom and at the settlement table, Brian’s direct, commonsense approach and his skill with witnesses, investigators and other experts enable him to clearly and credibly convey the facts and issues at the heart of lawsuits and disputes to judges, juries and adversaries. Brian prides himself on being a straightforward, practical and trustworthy partner to his clients, guiding them through the complexities and nuances of litigation and explaining issues and strategic choices clearly so that clients — from sophisticated business owners and corporate counsel to individuals, small-business owners and new clients who have never been involved in litigation before — can make informed decisions. Brian regularly writes and lectures on civil and criminal litigation in New York and on practical trial practice. A Certified Information Privacy Professional, US, (CIPP/US) and a Certified Information Privacy Manager (CIPM), through the International Association of Privacy Professionals (IAPP), he also lectures on cyber liability. Brian is also the resident partner in WCM’s Long Island office. +1 212 267 1900 Select Representations Defended property owners against a trip and fall case in New York County involving significant injuries and potential exposure, obtaining the reversal of a lower court order denying summary judgment, and ultimately securing dismissal of the case by successfully arguing that the plaintiff failed to meet his burden in demonstrating that our clients’ actions created a hazardous condition. In a motor vehicle accident involving a young adult plaintiff with no prior injuries and a $7 million damages demand, we secured a jury verdict of $300,000 — the amount we initially suggested — after a monthlong damages-only trial in Queens County. Defended a builder in a personal injury case alleging that the plaintiff sustained fractures and subsequently underwent surgery after falling down a set of stairs, arguing that the stairs were finemaintaining the pretrial settlement offer in line with our position through jury selection, and finally securing the plaintiff’s agreement to the original offer and settlement during trial. Secured summary judgment and dismissal of a plaintiff’s Labor Law §240(1) claim based on the one- and two-family dwelling exemption by pointing out the inconsistencies in the plaintiff’s pleadings and our clients’ entitlement to the statutory exemption. Secured a favorable mediated settlement in a significant personal injury case stemming from a plaintiff’s accident on our client’s commercial outdoor staircase, leveraging the absence of any code violations and the plaintiff’s apparent intoxication at the time of the accident to reach a settlement of less than 10% of the verdict value of the claim. Brian lives in Port Washington, New York, with his wife, Laurie, and four daughters, Elena, Meara, Alice and Olive. The Gibbons family spends its free time at Citi Field cheering on the Mets and at Belmont Racetrack - once it reopens - cheering for (usually the wrong) horses. Honors and Distinctions St. John’s University School of Law Winner, Honorable Milton Mollen Moot Court Competition Member, Moot Court National Team Boston College Dean’s List Honors Program Professional Activities Brian regularly lectures on both civil and criminal litigation in New York, and also on practical trial practice and cyber-liability. In addition, Brian is a member of the following organizations: Regis Bar Association Nassau County Bar Association Defense Association of New York Defense Research Institute Claims and Litigation Management Alliance New York Claim Association International Association of Privacy Professionals Publications Plato’s Republic, Churchill and Law Firm Cyber-Liability (September 2019, for DRI) We Finally Got A Piece of the Pii: Data Privacy and Cyber Security Litigation in the US (March 2019) Admitting Evidence Obtained through Discovery & Investigation – A Primer for Attorneys and Guideline for Claim Professionals (April 2018) The ABC’s of Claims – a Primer for Handling Accidents and Occurrences on NY, NJ and PA. (May 2018) (Co-author with Robert Cosgrove) News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., St. John’s University School of Law B.A., Boston College Regis High School (NY) Bar Admissions New York Court Admissions Southern District of New York Eastern District of New York United States Court of Appeals for the 2nd Circuit Supreme Court of the United States

News High School Football Players Not Barred From Suing For Sideline Condition (NY) August 18, 2017 < Back Share to: A recent NY case dealt with whether High School football players assume the risk of getting injured on a steel plate on the sidelines. In September 2010, Andrew Deserto, Jr., a high school student in Goshen Central School District, allegedly was injured while playing in a varsity football game at Franklin D. Roosevelt High School, located in Hyde Park Central School District. Mr. Deserto allegedly was tackled by two players from the opposing team and forced out of bounds, causing him to hit his head on a steel plate covering a pole vault pit several feet from the football field sideline. As a result of the accident, Mr. Deserto filed a lawsuit in Orange County Supreme Court against Goshen Central School Districk and Hyde Park Central School District, claiming the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the players. Both school districts moved for summary judgment, arguing that the lawsuit should be dismissed because it was barred by the legal doctrine known as the primary assumption of the risk. The Supreme Court did not agree that the case should be dismissed without a jury ruling on whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the football players. The Supreme Court’s decision was appealed, and the Appellate Division focused on whether the risk at issue was a “commonly appreciated risk.” The Court’s decision held 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.” Further, participants in sporting events are “not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks." In line with these principles, the Court ruled that “[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks." Ultimately, the Appellate Division decided that the Supreme Court’s decision was correct in determining that the defendants were not entitled to summary judgment because they failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Plain Language Rule Still Governs Interpretation of Coverage Exclusion (NJ) June 28, 2017 < Back Share to: The appellate court interpreted an “insured vs. insured” exclusion in a directors and officers liability policy in Michael Abboud v. National Union Fire Insurance Company of Pittsburgh. Generally, such exclusions bar coverage for claims by one insured director or officer against another. Plaintiff Abboud sought indemnity and a defense in connection with counterclaims made against him by fellow officers of Monarch, a company which operates and leases PET/CT equipment. Defendant National Union Fire Insurance Company of Pittsburgh (NUFIC) denied coverage based on the “insured vs. insured” exclusion. Abboud filed a declaratory judgment action against National Union which ended in summary judgment dismissal and a subsequent appeal. In the underlying litigation, plaintiff Abboud sued four members of the board of managers of Monarch. Abboud alleged the four member-managers tried to remove him from Monarch’s board of managers and his position as its chief executive office. Monarch and the individual defendants asserted various counterclaims against Abboud, alleging that he engaged in self-dealing and exploited Monarch’s opportunities for his personal gain or that of his other companies. Defendants in Abboud’s underlying suit obtained an acknowledgement of partial coverage from National Union, subject to a reservation of rights, under the Employment Practices Liability (EPL) section of Monarch’s multi-coverage policy which also included a D&O liability section. By contrast, Abboud did not notify National Union of the counterclaims against him until 8 months after suit was initiated. Abboud attempted to excuse his late notice because Monarch and National Union had delayed responding to his requests for information about coverage. Abboud subsequently filed his declaratory judgment action, expressly invoking and quoting the policy’s D&O section, Abboud sought indemnity and defense costs for the counterclaims in the underlying lawsuit. National Union denied its policy provided indemnity or defense costs coverage for the counterclaims. National Union filed a motion for summary judgment, contending the insured vs. insured exclusion within the D&O section precluded coverage. The trial court granted summary judgment in favor of National Union, finding that the insured vs. insured exclusion plainly barred Abboud’s claim for coverage. The appellate court reviewed the language of the insurance policy and found that there was nothing ambiguous, convoluted, or opaque about the exclusions in the D&O section. The exclusion disallows coverage when the claim is raised by either an executive of the company or the company itself. Abboud sought to avoid the plain interpretation of this provision contending it violates his reasonable expectations and claiming that the exclusion applies only in cases of collusion between the individual insureds. The appellate court found that insurance contracts should be construed to reflect the reasonable expectations of the insured in the face of ambiguous language and phrasing, and in exceptional circumstances when the literal meaning of the policy is plain. The appellate court found no exceptional circumstances in Abboud’s claim, stating that the record is devoid of competent evidence of Abboud’s expectations of coverage or proof that such expectations would be objectively reasonable. As such, the appellate court affirmed the trial court’s holding. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Is Facebook Fair Game For Investigation? October 11, 2010 < Back Share to: Technology almost always advances quicker than the law can keep up with it. However, attorneys may now have some guidance to an unanswered question – is Facebook fair game for investigation? Last week the New York State Bar Association and the New York City Bar Association both issued ethics opinions addressing when lawyers may use Facebook or other social networking sites to aid in litigation. The NYSBA addressed the question of whether an attorney, during a pending action, may view the profile page of a party that is not their client in order to obtain information, including impeachment material. The Association answered that this was an ethical practice, so long as the page was open for “public” viewing. The NYSBA contrasted this with a 2009 Philadelphia Bar Association opinion in which it was deemed fraudulent, deceitful, and against the ethics code for an attorney to have a third-party make a “friend request” to a non-represented witness in order to view that party’s private profile. The NYSBA opinion follows the logic that public information is available for anyone to view, while private information is not. In a very technical and detailed opinion, the NYCBA opined that attorneys or third-parties acting on the attorney’s behalf may send “friend” requests to individuals not represented by an attorney, provided that they identify who they are and why they are making a friend request. Similar to the Philadelphia Bar Association opinion, the NYCBA believes that the ethics code would prohibit attorneys from obtaining private information through deceitful means. While not specifically noted in either opinion, it seems to follow that the ethics code would prohibit sending a “friend request” to an individual represented by counsel. Of course if the party is represented by counsel, but has a public profile, then it would not violate any ethics codes if an attorney were to view the profile. Thanks to Alex Niederman for his contribution to this post. http://cityroom.blogs.nytimes.com/2010/10/01/when-lawyers-can-peek-at-facebook/ NYSBA opinion: http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=43208&TEMPLATE=/CM/ContentDisplay.cfm NYCBA opinion: http://www.nycbar.org/pdf/report/uploads/20071997-FormalOpinion2010-2.pdf Previous Next Contact

News No Delay Damages After Rejection of Settlement Offer (PA) June 10, 2013 < Back Share to: The Montgomery County Court of Common Pleas recently denied delay damages to insureds in an automobile accident case. Delay damages compensate the plaintiff when there is a delay in the ultimate resolution of a matter, including the failure of the defendant to make a timely written settlement offer. Pursuant to Pa.R.Civ.P 238, damages begin to run from a date one year following the proper service of process. In Dickerman v. Erie Ins. Exch., Plaintiff William Dickerman was injured in an automobile accident by the vehicle of Joseph Danilla that crossed a center dividing line. Allstate, Danilla’s insurer, paid Dickerman and his wife the policy limit of $100,000 and was thereby released from all claims. Subsequently, Plaintiffs filed a complaint against their own insurer, Erie Insurance Exchange, for alleged breach of policy and loss of consortium. Plaintiffs requested damages in amounts representing the policy limit of their underinsured motorists (UIM) coverage ($250,000) and incident coverage ($500,000). Erie claimed to be entitled to a credit in the amount of Allstate’s original payment to the Plaintiffs ($100,000). Prior to trial, Plaintiffs refused multiple written settlement offers in the amounts of $250,000, $300,000 and $400,000. Defendant made a final oral offer of $450,000 on the morning of trial which was again rejected. The jury found in favor of the Plaintiffs, awarding $530,000 in damages ($495,000 in non-economic damages and $35,000 for loss of consortium). Ultimately the court molded the verdict to $430,000, reflecting the deduction of the $100,000 credit requested by the Defendant, and denied delay damages outright. On appeal, the court held that Plaintiffs first claim, alleging that the court failed to properly apply Pa.R.Civ.P. 238 to the issue of delay damages, was too vague for the court to review and was therefore considered waived. Plaintiff’s second claim was another broad statement positing that the court erred in ruling that the pretrial written settlement offers in this case barred the award of delay damages. Ultimately, the court held the denial of delay damages under these circumstances appropriate. The court reasoned that the requisite elements for awarding delay damages were not met here. Pursuant to Pa.R.Civ.P. 238, the Plaintiff cannot recover delay damages in this case because he refused all pretrial written settlement offers (open for 90 days up to the date of trial) and, because neither the jury award nor molded verdict surpassed 125% of any of the those settlement offers. The court also noted as a general matter that delay damages are not recoverable on loss of consortium claims. Special Thanks to Samantha Epstein for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact