News WCM Wins Third Circuit Affirmance in Civil Rights Violation Case. April 3, 2016 < Back Share to: Philadelphia Partner Bob Cosgrove and associate Colleen Hayes were awarded summary affirmance by the United States Court of Appeals for the Third Circuit. In Nona Farrar v. John McNesby, et al., the plaintiff filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging that various defendants, including our client, had conspired, over a ten year period, to deprive her of her constitutional rights. In response, we moved to dismiss the plaintiff’s complaint pursuant to Federal Rule 12(b)(6) contending that the plaintiff failed to state a claim upon which relief could be granted. The district court granted our motion and dismissed all claims against our client. Subsequently, the plaintiff appealed to the Third Circuit. In response, we filed a motion for summary affirmance contending the plaintiff’s appeal presented no substantial question and, as such, the lower court’s order should be affirmed. The Third Circuit upheld the district court’s order and dismissed all claims against our client. For more information about this post please e-mail Bob Cosgrove . Previous Next Contact

News Media Liability Exposures? May 17, 2011 < Back Share to: Facebook, Twitter, LinkedIn. We live a click away from publishing our thoughts and impressions to an ever-expanding digital audience. But who is going to respond to claims that we have defamed or infringed the intellectual property rights of others? Good question. Many U.S. EPL insurers are expanding the scope of their coverage to address Media Liability Risks. But to be sure, all companies that use social media ought to have written protocols in place to guide their employees on the Do’s and Don’ts of communicating in a digital environment. 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 Gym Owner Found Not Liable For Treadmill Accident (NY) April 21, 2023 < Back Share to: New York gym and health club owners are held to the same duty of care as commercial landowners with regard to defective or dangerous conditions on their premises. In Alcantara v. Blink Fitness, the Supreme Court, New York County addressed whether a gym was negligent and responsible for an accident involving a treadmill. The plaintiff in that case was allegedly injured when she was “thrown off” a treadmill after it allegedly “sped up beyond her ability”. The gym moved for summary judgment, arguing that there was no defective or dangerous condition and that the gym lacked notice of any such condition. The Court observed that the gym was required to affirmatively demonstrate either (1) the absence of a defective or dangerous condition or (2) that it did not launch an instrument of harm and that they lack actual or constructive notice of a dangerous or defective condition. The Court held that there was no evidence that the treadmill malfunctioned and that the plaintiff “apparently pressed a control button that caused the machine to operate at a pace that apparently exceeded her ability to safely utilize the treadmill.” The Court added that the plaintiff had previously used the machine and that this was an “obvious risk” inherent in using this specific treadmill. The Court further found that there were no records of complaints regarding the treadmill and granted the gym’s motion. The Alcantara decision serves as a reminder that gym and health club owners are subject to the standard burden of proof and defenses in New York premises liability cases but may also have an “inherent risk” defense if the claim involves exercise equipment. Please contact Corey Morgenstern with any questions. Previous Next Contact

News Hotel Owed No Duty to Shooting Victims at Music Event (NJ) May 26, 2017 < Back Share to: In Higgins v. Holiday Inn, the Appellate Division analyzed whether a hotel owed a duty to take reasonable precautions by providing security for an event held at the hotel. For nineteen weeks, Disc Jockey Clarence Francis hosted and performed at a weekly “Caribbean Nights” event held at the hotel without any incidents of violence. However, on the twentieth week, plaintiffs were smoking outside the hotel when an unidentified, masked gunman approached and shot them, wounding them in their legs. Subsequently, plaintiffs sued the hotel and during discovery found information relating to criminal activity at the hotel, which included assault, robbery, and rape. Plaintiffs argued that the hotel had a duty to provide security at the Caribbean Nights event because the hotel’s history of criminal activity created a reasonable foreseeable risk of harm to the plaintiffs. Specifically, plaintiffs contended that the circumstances involving the prior criminal activity at the hotel, the late hour, and the festive environment of the Caribbean Night event should have caused defendant to anticipate "loitering, under-age drinking, drugs and fights." Thus, plaintiffs argued when these circumstances are considered together, they imposed upon the hotel a heightened duty to take safeguards against criminal acts of third parties, which include the shooting that caused plaintiffs’ injuries. The Appellate Division disagreed with the plaintiffs, holding that there was no competent evidence supporting a finding that the hotel could have reasonably foreseen plaintiffs’ shooting. The court reasoned that during the nineteen prior Caribbean Night events there were no criminal incidents. Further, during the hotel’s entire ten-year history, there were no incidents of shooting. Although the hotel had some past criminal activity, the court found this history was not so "alarming" or "escalating" that it would be reasonably predictive that attendees at the event could be affected by such a random act of violence. Thus, this case demonstrates that New Jersey courts utilize a "totality of the circumstances" analysis to determine an owner's liability to prevent third-party criminal conduct on the owner’s premises. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Declaratory Judgment Actions Are Not A Discovery Tool (NJ) July 26, 2012 < Back Share to: One of the methods used by No-Fault providers to fight fraudulent claims is to establish that improprieties with a health care provider’s ownership structure, billing practices, and regulatory compliance. But recently, the Supreme Court of New Jersey held that an insurance company cannot file a declaratory judgment action solely seeking discovery of in an effort to prevent insurance fraud, even where an insured patient has assigned personal injury protection (PIP) benefits to the health care provider. In Selective Insurance Company of America v. Hudson East Pain Management, Selective filed for declaratory judgment against Hudson East Pain Management and several other entities because it noticed what it considered to be “suspicious patterns” in the treatments rendered to Selective’s insured patients, as well as in the corporate links among the various entities. Selective’s insureds had assigned their PIP benefits to the health care providers after being injured in motor vehicle accidents. Although it had requested information on ownership, billing practices, and regulatory compliance from the various entities, Selective did not receive the information it sought, and as a result, filed its declaratory judgment action, citing the “cooperation clause” in its insurance policies, as well as New Jersey statutory authority. The trial court sided with Selective, and ordered the health care providers to produce the requested materials. The Appellate Division reversed this order, holding that Selective’s reliance on the cooperation clause in its insurance policies was improper, and that its demands for discovery went beyond the statutory authority of New Jersey law. On review, the Supreme Court of New Jersey affirmed the Appellate Division, but for different reasons than expressed in the Appellate Division’s decision. The court held that because an assignee of benefits as no greater rights than an assignor, the assignee also cannot have greater duties than the assignor under the contract. Therefore, because the Selective insurance policies did not require the insured patients to provide the information sought by Selective in its declaratory judgment action, the policies could not require the health care providers to present that information. Additionally, the court agreed with the Appellate Division that the PIP statute, N.J.S.A. 39:6A-13, did not provide for the sort of discovery sought by Selective. Finally, the court held that, although New Jersey had a clear public policy against insurance fraud, the means employed by Selective were not the correct avenue for preventing insurance fraud. Although this case does not undermine the ability of an insurance company to seek injunctive or other relief, along with discovery, through the use of a declaratory judgment complaint, it does stand for the proposition that a quest for this sort of discovery cannot be the sole object of the complaint. Thanks to Christina Emerson for her contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

Hannah M. Garber Associate Pennsylvania hgarber@wcmlaw.com Professional Experience Hannah works on a variety of insurance coverage and civil litigation matters. Her work includes analyzing coverage questions, contracts, and policies, drafting coverage opinions, and advising insurers on coverage obligations. She also assists on civil litigation matters, defending clients in products liability, premises liability, personal injury, and property damage cases. Her litigation work includes investigation and fact analysis, drafting pleadings and motions, conducting depositions and legal research, and appearing for hearings, arbitrations, mediations, and trial preparation. During law school, Hannah competed on Temple’s Sports Law Negotiation Team at Villanova’s Baseball Filing Day Competition and at Tulane’s Annual International Baseball Arbitration Competition. Honors and Distinctions Recipient of the Beasley Law Scholarship Pi Sigma Alpha News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education JD, Temple University, Beasley School of Law BA, Arcadia University Bar Admissions New York Pennsylvania Court Admissions Eastern District of Pennsylvania

News Assignor Contract May Create Additional Insured Status November 10, 2023 < Back Share to: In Catlin Insurance Company v. Colony Insurance Company , the Supreme Court of New York County considered whether plaintiffs, Sandy Clarkson LLC (“Sandy Clarkson”) and McAlpine Contracting Company (“McAlpine”), were entitled to coverage from Colony Insurance Company (“Colony”), as Additional Insureds. 80 Misc. 3d 1227(A) (N.Y. Sup. Ct. 2023). The dispute arose out of a series of contracts and insurance agreements entered into by the parties. First, Sandy Clarkson and McAlpine entered a construction contract. Id . at 1. Next, McAlpine and Kingspan entered into a subcontract, which required Kingspan to procure liability insurance. Id. Thereafter, Kingspan assigned the subcontract to Kingstone, which purchased a commercial general liability policy from Colony (the “Policy”). Id. at 2. In 2017, a personal injury action was commenced against Sandy Clarkson and McAlpine by an employee of a McAlpine subcontractor for injuries sustained at the construction site. Id . at *3. Kingstone and its assignor were thereafter joined to the case through a third-party action. Id. Sandy Clarkson and McAlpine argued that the underlying personal injury action entitled them to a defense from Colony as Additional Insureds pursuant to the Policy. Id. at *5. Colony disagreed because its insured, Kingstone, never entered a written contract with either party. Id. The Court held that McAlpine qualified as an Additional Insured pursuant to the Policy because it entered into a written contract with Kingstone’s assignor regarding coverage. Id. at 6. The Court noted that the Policy defined Additional Insureds as “[a]ll persons or organizations as required by written contract with the Named Insured.” Id. Thus, the Court reasoned, the provision implicitly extended coverage to any party with whom Kingstone contracted—including McAlpine through Kingstone’s assignor, Kingspan. Id. Conversely, Sandy Clarkson was not entitled to coverage as an Additional Insured because neither Kingstone nor Kingspan entered into a contract with it. Id. The Court next considered whether McAlpine was entitled to indemnification or defense in the lawsuit. Ultimately, the Court found that McAlpine was entitled to defense because the allegations in the lawsuit “suggested a reasonable possibility of coverage,” but could not obtain indemnification due to limiting language in the Policies. Id. at *6-7. One key takeaway from the Catlin decision is that New York insurers should be wary of policy provisions and definitions implicating contracts made by an insured’s assignor or predecessor in interest. As Catlin reflects, these prior contractual agreements may ultimately trigger Additional Insured coverage and additional duties of the insured to defend or indemnify. Catlin Insurance Company v. Colony Insurance Company .pdf Download PDF • 232KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News E-Discovery: Cost Shifting Limited March 1, 2012 < Back Share to: In the recent First Department case of U.S. Bank Nat’l Assn, et al. v. GreenPoint Mortgage Funding, Inc., 2012 NY Slip Op 01515, plaintiff appealed from a New York County decision that required plaintiff to bear the cost incurred in the production of electronic discovery. Prior to the First Department’s decision, New York courts generally required the party requesting the discovery to bear the cost. This held plaintiffs back from making large scale demands for e-discovery because they would have to pay the cost involved with e-discovery. This decision, following the well known Zubulake decision, held that “it is the producing party that is to bear the cost of the searching for, retrieving, and producing documents, including electronically stored information.” Although cost shifting is permitted, the First Department follows the factors set forth in Zubulake, 217 FRD at 222, in deciding who bears the cost of production. Those factors are: (1) the extent to which the request is specifically tailored to discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the importance of the issues at stake in the litigation; and, (7) the relative benefits to the parties of obtaining the information. The First Department states that the Zubulake factors are not a “check list,” but rather should be used as a “guide” by the trial court when determining whether or not the discovery request constitutes an undue burden or expense on the responding party. Interestingly, the Court concludes that “the adoption of the Zubulake standard is consistent with the long-standing rule in New York that the expenses incurred in connection with disclosure are to be paid by the respective producing parties and said expenses may be taxed as disbursements by the prevailing litigant.” It remains to be seen whether tens of thousands of dollars in e-discovery expenses can be taxed against a losing plaintiff and, even if allowed, defendants will never be able to collect it. However, the threat of taxing a losing plaintiff significant amounts of money in a judgment may still provide some deterrent to a plaintiff’s counsel seeking to use e-discovery as a weapon of mass discovery. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01515.htm   Previous Next Contact

News Imagine That! Scarce Funding Behind the Lack of FSMA Rules. October 2, 2012 < Back Share to: We have commented at length about the lack of new FSMA regulations. According to FDA chief Margaret Hamburg, the FDA is getting ready to issue the new regulations "soon." The problem is a lack of funding. With the elections but six weeks away, I wouldn't expect anything meaningful to happen before November. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Don't Forget to Use the Medical Records! January 5, 2011 < Back Share to: An important lesson to remember -- statements in medical records can be useful (which is, after all, why we subpoena the records in the first place!) Take this recent Second Department case. In Kamalov v. BIA Group, LLC, plaintiff moved for summary judgment under Labor Law § 240(1). The trial court found that although plaintiff made a prima facie showing of entitlement to judgment as a matter of law, defendant raised a triable issue of fact as to the manner in which the accident occurred through statements contained in plaintiff’s medical records. The Second Department affirmed the trial court’s decision, -- http://www.nycourts.gov/reporter/3dseries/2010/2010_09890.htm -- finding that plaintiff failed to demonstrate that the relevant portions of the medical records submitted by the defendants in opposition constituted inadmissible hearsay. The Court reasoned that because the statements were germane to the diagnosis and/or treatment of plaintiff, they were properly considered business records. Special thanks to Gabe Darwick for his contributions to this post. For additional information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com Previous Next Contact

News Do Insureds Need to Execute A Sign Down Form Each Time a Vehicle is Added to the Policy? (PA) July 3, 2019 < Back Share to: Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insurer must provide uninsured (“UM”) and underinsured (“UIM”) motorist coverage equal to the bodily injury liability limits under an automobile insurance policy. However, under Pennsylvania law, where an insured executes a valid sign down form, the UM/UIM coverage limits are reduced. Recently, in Alcedo v. State Farm, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether an automobile insurer must obtain a new writing “signing down” UM and UIM coverage from bodily injury liability limits under § 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL) when an insured adds another vehicle to the policy. In 2005, State Farm issued an automobile insurance policy to John Alcedo (“Mr. Alcedo”), which covered a Nissan Pathfinder and a Nissan Maxima. The policy provided UM/UIM bodily injury liability limits of $100,000 per person and $300,000 per accident. However, at the time Mr. Alcedo was applying for coverage, Mr. Alcedo signed and executed a sign down form reducing the UM/UIM coverage limits to $25,000 per person and $50,000 per accident. Simultaneously, Mr. Alcedo signed a § 1791 notice, which indicated he acknowledged that higher UM/UIM limits were available under the policy. Some years later, Mr. Alcedo added and removed vehicles to the policy. Although he added new vehicles to the policy, Mr. Alcedo did not execute any additional sign down forms. The coverage dispute arose when Susan Alcedo (“Mrs. Alcedo”) sustained bodily injury while driving a covered vehicle. When State Farm refused to pay the UIM benefits in the amount of the policy’s stacked bodily injury limits of $400,000, Mr. and Mrs. Alcedo commenced the instant action against State Farm. Subsequently, State Farm filed a motion for judgment on the pleadings. In its motion, State Farm asserted the available UM/UIM coverage for Mrs. Alcedo was the lower coverage limit as set forth in the sign down waiver signed by Mr. Alcedo in 2005 – therefore, arguing State Farm was not required to have Mr. Alcedo execute additional sign down forms when adding vehicles to the policy. In opposition, Mr. and Mrs. Alcedo argued that, since a sign down form was not executed contemporaneously with the newly added vehicle, the policy provided coverage up to the maximum UM/UIM limits of $100,00 per person and $300,00 per accident. To support their argument, Mr. and Mrs. Alcedo relied on cases discussing waiver of stacking coverage under § 1738. After considering the alleged facts pled in the complaint and the documents attached as exhibits per Rule 12(c) of the Federal Rules of Civil Procedure, the Court noted a sign down of UM/UIM benefits remains in effect unless it is affirmatively changed by the insured. Although the Court’s reliance on Pennsylvania law was limited because the Supreme Court of Pennsylvania had not addressed the specific issue, the Court in Alcedo determined a § 1734 “sign down” survives the addition of vehicles to the policy. In other words, the Court held State Farm fulfilled its obligations under the MVFRL by (1) offering UM/UIM coverage up to the amount of the bodily injury liability limits; and (2) obtaining confirmation in writing from the insured. Further, the Court determined Mr. and Mrs. Alcedo’s reliance on the waiver of stacking under § 1738 was inapplicable to the issue at bar. In sum, this ruling serves as a reminder for insurers to provide clear notice at the time a policy is issued, and how, in the context of UM/UIM coverage disputes, affirmative steps are needed to alter coverage limits. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact