News PA Court Reverses $21 Million Bad Faith Judgment Against Auto Insurer April 26, 2018 < Back Share to: In Berg v. Nationwide Mutual Insurance Company, plaintiff sought coverage from Nationwide for repairs to their vehicle after an auto accident. Ultimately, the plaintiffs ended up suing Nationwide for bad faith, due to Nationwide's decision to repair the plaintiffs’ vehicle rather than declaring it a total loss. Nationwide initially received an estimate that the vehicle should be totaled, but rejected it, repaired the vehicle, and returned what it allegedly knew was a dangerous vehicle back to its insured. Plaintiffs asserted claims for negligence, fraud, conspiracy and insurance bad faith. After a trial, the jury found in favor of Nationwide on all counts except for the catchall provision of the Unfair Trade Practices and Consumer Protection Law, or UTPCPL. The jury awarded the plaintiffs $295.00. But in the second phase, the trial court found that Nationwide acted in bad faith by repairing the plaintiffs’ vehicle rather than declaring it a total loss and ordered Nationwide to pay $18 million in punitive damages and $3 million in attorneys fees. On appeal, the Superior Court noted that a finding of bad faith will be reversed where the trial court’s critical findings are either unsupported by the record or do not rise to the level of bad faith. In this case, the Superior Court reversed the trial court’s finding of bath faith, finding that the evidence of record did not support the trial court’s finding that Nationwide overrode or vetoed a total loss appraisal. Upon review of the record, the Superior Court found that the record indicated that Nationwide and the entity handling repairs had support to determine that plaintiffs’ vehicle was repairable. In support of its reversal, the Superior Court noted that the record did not support a finding that Nationwide had actual knowledge of or recklessly disregarded any knowledge of the vehicle’s allegedly faulty condition when the repairing entity returned it to plaintiffs. In addition, the Superior Court admonished the trial court for incorporating an irrelevant critique of the insurance industry in its holding, stating that a judge sitting as fact finder should confine his or her analysis to the facts of the case at bar without consideration of the perceived ills of the insurance industry in general. Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Never Too Spoiled (PA) July 11, 2019 < Back Share to: The Pennsylvania Superior Court concluded that spoliation of evidence could be found even when the party was not guilty of bad faith in failing to preserve the evidence. In Marshall v. Brown's IA, Marshall slipped and fell on a wet surface in a ShopRite. Immediately after her fall, she filed an incident report with the staff at ShopRite. Two weeks later, her attorney sent ShopRite a letter of representation and requested that ShopRite retain surveillance video of the area of the fall for six hours prior to the accident and three hours after it. ShopRite did have video of the fall, but it determined to preserve only thirty-seven minutes prior to the fall and twenty minutes after it because ShopRite felt the remainder of the footage was irrelevant. Ultimately, the matter went to trial, and in closing arguments, counsel for Marshall argued that Marshall was entitled to an adverse inference based upon ShopRite’s deletion of most of the surveillance footage, e.g., that ShopRite did not preserve it because it was harmful to its defense. The trial court disagreed with Marshall, and a jury returned a verdict for ShopRite. On appeal, the Superior Court vacated the judgement and remanded for a new trial. It discussed the standard for spoliation claims and adverse inferences. It reasoned the duty to retain evidence is established as soon as a party knows that litigation is pending or likely, and it is foreseeable that discarding evidence would prejudice the other parties. In this case, ShopRite had notice of the litigation when Marshall sent a letter of representation two weeks after the accident. The decision therefore hinged on the issue of prejudice. So, while ShopRite was not guilty of bad faith in discarding the footage, its conscious decision to only retain a small portion of the surveillance video constituted spoliation of evidence. Thus, this case illustrates the importance of ensuring that all potential evidence is preserved, as soon as there is notice of a potential claim, as to avoid an adverse inference at trial. Thank you to Robert Turchick for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News The New Judicial Hellhole Rankings Are Out! January 28, 2011 < Back Share to: And Philly tops the list -- http://www.judicialhellholes.org/wp-content/uploads/2010/12/JH2010.pdf Atlantic County, New Jersey and New York City are merely on the "watch list." Of course, as with all rankings, this ranking from the American Tort Reform Association must be taken with more than a grain of salt. A large part of Philadelphia's number one ranking can be attributed to the rise in mass tort cases. But, an equally large part of the ranking seems to flow from the fact that Pennsylvania remains (notwithstanding the introduction of proposed bills in the legislature -- http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2011&sind=0&body=S&type=B&bn=0002) one of the few states to retain joint and several liability, i.e. the principle that 1% of negligence buys a defendant the potential of having to satisfy the entire judgment. Insurers beware! Philadelphia might not be so brotherly in its love for you! If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Reliance Upon American Society of Testing Material and Consumer Product Safety Commission Not Enough to Overcome Prima Facie Showing of Entitlement to Summary Judgment August 16, 2018 < Back Share to: In Boland v. North Bellmore Union Free Sch. Dist., the Appellate Division, Second Department reversed a denial of summary judgment for defendant. The court found that plaintiff’s opposition, which contained an expert citing to the American Society of Testing Material and Consumer Product Safety Commission was improperly considered by the lower court. The appellate decision held “these standards…are guidelines and not mandatory, and are insufficient to raise a triable issue of fact regarding negligent installation or maintenance. The case involved a student that was injured when she fell from an apparatus in the defendant's school playground during recess. The child and her mother filed a lawsuit in Nassau County Supreme Court against the school district, alleging negligent training and supervision and negligent maintenance of the playground. Once the lawsuit was filed, the defendant school district filed a motion for summary judgment, asking the Court to dismiss the lawsuit. In opposition to the motion, the plaintiffs submitted an expert report that found that the ground cover beneath the apparatus from which the plaintiff fell was inherently dangerous as installed and/or maintained, because it did not meet American Society of Testing Material standards or standards established by the Consumer Product Safety Commission. The Supreme Court granted part of the motion, dismissing the allegations of negligent training and supervision, but the Court denied the motion to dismiss the allegation of negligent maintenance of the playground, based upon the expert report submitted by the plaintiffs. On appeal, the Appellate Division, Second Department found that the Supreme Court’s ruling dismissing the negligent training and supervision claim was correct because school district demonstrated that it provided adequate training of its staff and playground supervision, and that the level of training or supervision was not a proximate cause of the accident. However, the Appellate Division found that the Supreme Court incorrectly denied the motion to dismiss the negligent maintenance claim. The Appellate Division reversed the Supreme Court’s findings, and held that the defendant established its prima facie entitlement to judgment as a matter of law. The appellate decision notes that the defendant submitted evidence which demonstrated that it adequately maintained the playground and that it did not create an unsafe or defective condition. Accordingly, Appellate Division found that the Supreme Court should have granted that branch of the defendant's motion, which was for summary judgment dismissing so much of the complaint as alleged negligent maintenance of its premises, despite the plaintiff’s expert’s reliance on the guidelines. Thanks to George Parpas for his contribution to this post. Previous Next Contact

News Step Class Not Inherently Dangerous June 25, 2009 < Back Share to: In Devorah Meisels v. Lucille Roberts Health Clubs, Inc., the plaintiff was injured when she slipped on an excercise step while participating in a step class. The plaintiff claimed that she slipped because the fuzz from a newly-installed carpet had become caught in the grooves of the step. The defendant moved for summary judgment arguing that the plaintiff testified that she first noticed the fuzz 30 minutes prior to the accident, but continued to use the step without complaint. The trial court denied the defendant's motion for summary judgment, but the Appellate Division reversed and granted the defendant's motion for summary judgment reasoning that the condition of the carpet fuzz was open and obvious and not inherently dangerous condition. http://www.nycourts.gov/reporter/3dseries/2009/2009_05303.htm Previous Next Contact

News Vaccinate the Cow? Is There a Silver Bullet in the Fight Against E Coli? December 4, 2009 < Back Share to: E coli contamination (usually from O157:H7) is the major source of beef recalls. New vaccines that have just been approved for use in the US market are designed to reduce e coli outbreaks. According to preliminary studies, use of the new vaccines will reduce the number of animals carrying the e coli bacteria by 65 to 75%. Use of the vaccines is also predicted to reduce the number of supershedders, i.e. those cows that carry particularly high levels of e coli in their digestive tracks. If you would like more information about this post or our product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.nytimes.com/2009/12/04/business/04vaccine.html?hp Previous Next Contact

News Dead Men Tell No Tales (PA) May 2, 2019 < Back Share to: On April 15, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of defendant David K. McMullin, Administrator of the Estate of Zachary Hohman, on the ground that the action was barred by the statute of limitations. The case arose out of a motor vehicle accident that occurred in Turtle Creek Borough, Pennsylvania on July 13, 2014, when the car Kayley Ryan was riding was rear-ended by a car driven by the deceased. However, the decedent passed away on April 8, 2015 from a cause unrelated to the accident and plaintiff did not commence a lawsuit against the decedent until July 7, 2016. Once plaintiff found out decedent was no longer alive, plaintiff had McMullin appointed as the administrator of decedent’s estate. Once McMullin was appointed, plaintiff sought to amend his complaint to substitute decedent’s estate rather than decedent himself. However, the Court denied the motion to amend. Plaintiff then commenced a new action on December 2, 2016 which was filed more than 2 years after the accident and more than 1 year after decedent’s death. As such, defendant filed a motion for summary judgment seeking dismissal of the complaint on the ground that it was barred by the statute of limitations. Plaintiff countered that defendant was estopped from asserting a statute of limitations defense on grounds of fraudulent concealment because decedent’s insurer had not told her counsel that decedent had died. There was no dispute that the statute of limitations expired before plaintiff filed this action and the Court deemed plaintiff’s fraudulent concealment claim meritless. To show fraudulent concealment, a plaintiff must prove by clear and convincing evidence that the defendant or his agent made an affirmative misrepresentation or committed an affirmative act of concealment on which the plaintiff justifiably relied. Mere silence by the defendant or his agent in the absence of a duty to speak does not bar the defendant from asserting a statute of limitations defense. Additionally, an insurer is under no duty to notify opposing counsel of its insured’s death. Thus, the Court ruled that defendant did not making any false representations about decedent and therefore summary judgment was warranted. As such, the Court affirmed the trial court’s grant of summary judgment and dismissed the case. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM is Pleased to Announce that James W. Scott, Jr. has been Promoted to Partner July 1, 2022 < Back Share to: Effective July 1, 2022, Jim Scott, who works in our Philadelphia office, has been promoted to partner. Jim is the current President of the Pennsylvania Defense Institute and a past-President of the Philadelphia Association of Defense Counsel. As such he is the only attorney ever elected president of both defense organizations. Jim is a graduate of Duke University and Temple University School of Law. With 28 years of experience, Jim focuses his practice on the defense of construction defect, construction accident, premises liability, and products liability claims. Prior to becoming an attorney, Jim was the Assistant Director of Operations with the largest fabricator/erector of structural steel in the Delaware Valley. As such, his construction defect practice has been substantially enhanced by significant real world experience. Previous Next Contact

News Pennsylvania Court Provides Gateway for Insureds to Keep Lawsuits in State Court (PA) August 3, 2018 < Back Share to: The Eastern District of Pennsylvania recently issued a decision that may help insureds interested in having their cases heard in state court rather than allowing those cases to be removed to federal court. In Dominque Ellis v. Liberty Mutual Insurance Company, et al., a plaintiff defeated diversity by naming both the insurer and the claims adjuster as defendants. Initially, a lawsuit was brought by Dominique Ellis (“Ellis”) who was hit by a car while she was walking down the street. At the time, Ellis was insured by a Liberty Mutual auto insurance policy that listed her mother as the “named insured.” Since the motorist was underinsured, Ellis sought to recover medical expenses from Liberty Mutual. Liberty Mutual later denied her claim and Ellis sued both Liberty Mutual and the claims adjuster, Clare MacNabb (“MacNabb”). MacNabb was added to the lawsuit because Ellis claimed that she dragged her feet during a six-month investigation into whether Ellis lived at the address listed within the policy. Once MacNabb concluded that Ellis was being truthful about her address, she denied her claim on the ground that her medical expenses were less than the limit of the policy owned by the underinsured driver. Ellis alleged that the investigation was fraudulent and meant to intimidate her from pursuing her claim. Ellis’ lawsuit was brought in state court and consisted of three counts against Liberty Mutual: (1) an “underinsured motorist claim,” (2) a claim for bad faith insurance denial, and (3) a claim for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). The UTPCPL claim was also brought against MacNabb. As both Ellis and MacNabb were residents of Pennsylvania, there was no diversity of citizenship grounds to remove that case to federal court. However, Liberty Mutual argued that MacNabb was fraudulently joined and removed the case to federal court. As a result, Ellis moved to remand the matter back to state court. The District Court granted the motion to remand, rejecting all three reasons asserted by Liberty Mutual to support that MacNabb had been fraudulently joined. First, the Court explained that claims under the UTPCPL against claims adjusters were “colorable under Pennsylvania law.” Under the law, UTPCPL claims against individual insurance claims representatives were allowed. Second, the Court determined that it was too early to tell whether Ellis’s claim was for mere nonfeasance. Ellis’ complaint alleged nonfeasance by MacNabb in MacNabb taking too long to investigate her claim and ultimately denying coverage. However, a UTPCPL claim requires malfeasance, rather than nonfeasance. The Court determined that Ellis’ complaint also supported “an inference of malfeasance” in that the adjuster’s investigation was intended to intimidate or harass Ellis. According to the Court, malfeasance may exist if an insurer conducted a post-loss investigation in an unfair or unreasonable manner. The Court noted that, at this stage, Ellis still had the opportunity to prove malfeasance by MacNabb and that to dive further into this issue would require an assessment of the merits of the claim itself. Finally, the District Court rejected Liberty Mutual’s argument that Ellis cannot maintain a claim under the UTPCPL because she did not purchase the insurance policy herself. The UTPCPL grants a claim to any person who, among other requirements, purchases or leases goods or services. In the instant matter, Ellis’s mother was the purchaser and the named insured. However, the Court determined that, although support that Ellis herself purchased the policy was “admittedly slim,” it should remain mindful that “all doubts should be resolved in favor of remand” and that remand was required if there was even a possibility that a state court would find the complaint stated a claim against MacNabb. The District Court thus concluded that the “lenient standard” had been satisfied and that it remained unclear whether Ellis had been making payments under the insurance policy. As a result, Ellis’s motion to remand was granted. Thank you to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ) November 16, 2017 < Back Share to: In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery. Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment. In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome. By all accounts, plaintiff enjoyed a good surgical outcome, and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the accident. Although she complained of debilitating pain, plaintiff had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief. Plaintiff's medical expert found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased, or how that resulted in the substantial loss of any bodily function. The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, "a mere limitation on a bodily function" will not suffice. Similarly, "an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain," is insufficient. The court dismissed the plaintiff's claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act. Even surgery may vault the requirement of a substantial and permanent injury. The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person's function. Thanks to Heather Aquino Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Insurance Coverage Granted for Restaurant’s Loss of Business Income Caused by COVID-19 May 28, 2021 < Back Share to: By way of brief background, in response to the spread of COVID-19, the Pennsylvania Governor issued mandates and orders that required all non-life sustaining businesses in Pennsylvania to cease operations and close physical locations, and citizens to stay at home. Due to these mandates and the spread of COVID-19, the plaintiff, Macmiles, LLC D/B/A Grant Street Tavern (“MacMiles”), suspended its business operations and submitted a claim to the defendant, Erie Insurance Exchange (“Erie”), under an all-risk ultra plus commercial general liability policy, which provides coverage for any direct physical loss or damage, unless the loss or damage is specifically excluded or limited by the policy. Erie denied MacMiles’ claim and, in response, MacMiles commenced a lawsuit in the Court of Common Pleas of Allegheny County seeking, inter alia, declaratory judgment with respect to the policy’s business income protection, civil authority and extra expense provisions. Subsequently, MacMiles filed a motion for partial summary judgment and, in response, Erie filed a cross-motion for judgment on the pleadings. After oral argument, the court granted, in part, MacMiles’ partial summary judgment motion and denied Erie’s cross-motion for judgment on the pleadings. First, the court granted MacMiles’ motion for partial summary judgment with respect to MacMiles’ claim for declaratory judgment that MacMiles is entitled to coverage under the policy’s income protection provision. To make this determination, the court looked to the plain language of the policy and noted, to establish coverage under the provision, MacMiles must establish it suffered “direct physical loss of or damage to” its property. MacMiles argued a reasonable interpretation of the phrase “direct physical loss of . . . property” includes the loss of use of its property; whereas, in contrast, Erie argued this phrase requires some physical altercation of or demonstrable harm to MacMiles’ property. Focusing on the word “or”, the court reasoned the phrase “direct physical loss of” had a different meaning than the phrase “direct physical . . . damage to”. With this in mind, the court conducted an in-depth analysis to determine the meaning of the terms “damage” and “loss” as the policy did not define every term in the phrase “direct physical loss of or damage to” property. Citing to their common usage and dictionary definitions – as considered through the context of the policy and specific facts of the case – the court concluded the term “loss” reasonably encompasses the act of losing possession and/or deprivation, which includes the loss of use of property absent any harm to property, while “damage” encompasses all forms of harm to property. As such, the court held MacMiles’ loss of use of its property was “direct” and “physical” as the spread of COVID-19 had a close relationship to the way MacMiles utilized its property and physical space. In other words, the court held the spread of COVID-19 caused physical loss to MacMiles. In doing so, the court rejected Erie’s argument that the spread of COVID-19 merely imposed economic losses thereby clarifying that actual physical harm to property is not always required. The court also rejected Erie’s argument that the policy’s Amount of Insurance Provision is inconsistent with the interpretation that “direct physical loss of . . . property” encompasses MacMiles’ loss of use of its property absent tangible damage. The court held the policy’s Amount of Insurance provision does not necessitate the existence of damaged or destroyed property or require repairs, rebuilding or replacement of damaged or destroyed property to entitle MacMiles to coverage. Rather, the provision merely imposes a time limit on the available coverage, which ends when MacMiles’ business is operating at normal capacity after any required rebuilding, repairs or replacements are completed, or twelve (12) months after the initial date of the loss. In granting this component of MacMiles’ motion, the court also noted its disagreement with Erie’s argument that the policy’s compliance with laws and ordinance exclusion barred coverage as the court reasoned MacMiles’ sought coverage for losses suffered in relation to the COVID-19 pandemic and the civil authority orders. In doing so, the court also stated, in a footnote, this exclusion could not have been intended to exclude coverage under the policy’s civil authority provision as it would make any extended coverage for the actions of civil authority illusory. Second, the court denied, without prejudice, MacMiles’ partial motion for summary judgment with respect to MacMiles’ claim for a declaration that the policy’s civil authority provision provides coverage for the losses MacMiles allegedly sustained as a result of the Governors’ orders to mitigate the spread of COVID-19. Specifically, the court determined, unlike the income protection provision, the policy’s civil authority provision does not provide coverage for the loss of use of property other than MacMiles’ property. As such, the court determined, to establish coverage under the civil authority provision, MacMiles must demonstrate COVID-19 was actually present on property other than its own property, such damage occurred within one mile of its property and the Governors’ orders were “taken in response to dangerous physical conditions resulting from the damage or continuation of the peril insured against that caused the damage, or the action is taken to enable a civil authority to have unimpeded access to the damaged property.” As the court determined genuine issues of material fact exist as to the foregoing elements, MacMiles’ motion was denied, in part. This decision is significant, as it seemingly provides plaintiffs with an avenue to obtain coverage for any losses sustained to their business as a result of COVID-19. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Motion to Change Venue Denied Despite Being Unopposed (NY) April 8, 2021 < Back Share to: In Francoise Mervil v. Eric Johnson and Marcia St. Urbain, Judge Francois A. Rivera denied Defendants’ unopposed motion to transfer venue because the only evidence in support of the Defendants’ motion constructed of inadmissible hearsay. Plaintiff, Francoise Mervil (“Mervil”) commenced a personal injury action against the Defendants in Kings County Supreme Court, alleging Urbain was negligent in the operation of his vehicle so as to cause a collision with Mervil’s vehicle, severely injuring Mervil. The Defendants’ answer asserted improper venue as an affirmative defense and moved to change the venue from Kings County to Nassau County. In their motion, the Defendants argued that the venue was improper because Mervil did not maintain a residence in Kings County. However, the only evidence the Defendants provided in support of their argument was an uncertified police report. Despite the Defendants’ motion going unopposed, Judge Rivera denied the Defendants’ motion because the uncertified police report proffered by the Defendants was inadmissible and was the only evidence submitted to support their motion, thereby deeming the motion unsupported. Even if the Defendants certified the police report, making the exhibit now admissible evidence, Judge Rivera would have still denied their motion. Judge Rivera conveyed that an individual can be a resident of more than one county and a police report alone is not sufficient evidence to demonstrate that the plaintiff does not reside in the county where he chose to commence the instant lawsuit. Thanks to Irving Fayman for his contribution to this article. For more information, please contact Tom Bracken. Previous Next Contact