News Even In Victory, The Rules Of Professional Conduct Still Apply September 6, 2017 < Back Share to: Following a favorable judgment in a bad faith case, plaintiff’s counsel in Clemens v. New York Central Mutual Fire Ins. Co., sought $1.12 million in fees, costs and interest. While Pennsylvania’s bad faith statute does permit an award of attorneys’ fees when an insurer has acted in bad faith, U.S. District Judge Malachy E. Mannion of the Middle District of Pennsylvania denied counsel’s request and referred the case to the Disciplinary Board of the Supreme Court of Pennsylvania. The plaintiff's attorneys sought $48,050 for their work on the UIM claim, $827,515 for working on the bad-faith claim and $27,090 for preparing the fee petition, for a total of $902,655 in fees for a case that had been litigated for nearly nine years. Judge Mannion began his memorandum opinion with a cautionary reminder that “attorneys are quasi-officers of the court and they are expected to be careful and scrupulously honest in their representations to the court . . . they must exercise care, judgment, and ethical sensitivity in the delicate task of billing time and excluding hours that are vague, redundant, excessive or unnecessary.” Judge Mannion then spent the next 100-pages going through plaintiff’s counsel’s request line-by-line, slashing fees he deemed vague, duplicative and excessive. Even in victory, lawyers are expected to adhere to the rules of professional conduct. As a self-policing profession, the enforcement of such rules can be lax, but this federal case is a strong reminder that unscrupulous conduct has no place in the court room. Thanks to Hillary Ladov for her contribution to this post. Previous Next Contact

News WDPA: Destruction of Personal Property Can Serve as Basis for Emotional Distress Tort. August 12, 2009 < Back Share to: In Seymour v. Life Care Retirement Communities, Inc., the decedent owned a residential unit and storage garage at a retirement community. Plaintiffs (the decedents' children) alleged that representatives of the retirement community entered their father's storage unit subsequent to his death and discarded his personal property. Plaintiffs further alleged that the retirement community failed to provide them with notice that its representatives would be entering the storage facility. They therefore asserted claims for conversion and intentional infliction of emotional distress, and sought both compensatory and punitive damages. The retirement community moved to dismiss plaintiffs' emotional distress claim as well as plaintiffs' claim for punitive damages. The United States District Court, Western District of Pennsylvania, denied the defendant’s motion in its entirety. In its opinion, the court stated that it could find no edict in Pennsylvania law precluding a claim for the intentional infliction of emotional distress based upon the fact that only personal property was damaged. The court stated that the merits of plaintiff's claim for intentional infliction of emotional distress depended on the facts of the case and the state of mind of the retirement community's representatives at the time they discarded the decedent's belongings. With regard to the plaintiffs' claim for punitive damages, the court held that the plaintiffs sufficiently alleged that the conduct of the retirement community's representatives was outrageous, reckless and/or wanton and caused them great emotional distress. As such, based upon the pleadings, the court held that it could not grant the defendant's motion as to plaintiffs' claim for punitive damages. Thanks to Brad Thelander for his contributions to this post! http://www.palawweekly.com/printarticle.aspx?ID=29705 Previous Next Contact

News Sender of Text Message to Driver Not Liable for Accident (NJ) May 30, 2012 < Back Share to: Everyone knows that sending or reading a text message while you drive can cause an accident. But recently, New Jersey plaintiffs tried to extend liability to a party that sent a text message to a driver involved in an accident in Kubert v. Best. On Sept. 21, 2009, Kyle Best, age 19, lost control of his pick-up truck, crossed the yellow line and struck David and Linda Kubert on their motorcycle. Both of the plaintiffs lost a leg due to injuries sustained in the accident. The Kuberts claimed that because Best was answering a text when he lost control, Shannon Colonna, who sent the text, was “electronically present” and also at fault. They also alleged that Colonna knew or should have known that Best was driving when she sent the text. They premised their legal theory on civil aiding and abetting and forseeability and proximate cause. Evidence developed during discovery showed that the defendants exchanged 62 texts that day, and three messages within about eight minutes prior to the accident, including one text within a minute of Best calling 911 to report the accident. Defendant Colonna argued against imposing liability, as texters have no control over when, where or how recipients will read and respond to their messages. In an oral opinion from the bench, Morris County Superior Court Judge David Rand agreed, and granted summary judgment dismissing civil aiding-and-abetting claims against Colonna, finding she had no duty of care under the facts of the case. If you would like further information about this case, please write to mbono@wcmlaw.com   Previous Next Contact

News Make Sure Your Expert Backs Up Their Findings (NY) November 18, 2022 < Back Share to: In Augustus v. Negron, 2022 NY Slip Op 06255 (2nd Dep’t, Nov 9, 2022), plaintiff brought suit after a motor vehicle accident. Pursuant to New York State Insurance Law, a plaintiff has to establish that he/she suffered a serious injury pursuant to Insurance Law § 5102(d). A failure to do so in motor vehicle accident means the plaintiff would not be able to sustain a lawsuit in New York. After Justin Augustus brought suit to recover for his personal injuries, the defendants moved for summary judgment stating plaintiff failed to establish he suffered a serious injury within the meaning of Insurance Law § 5102(d), and presented evidence of the independent medical examination in support. The motion was granted by the trial court. On appeal, the plaintiff argued the defense failed to proffer competent medical evidence that the plaintiff did not sustain a serious injury causing either permanent consequential limitation of use or significant limitation of use categories under the Insurance Law. This argument was not persuasive to the Second Department. Specifically, the Second Department held defendant’s expert, although finding that there were no significant limitations, “failed to substantiate his belief that the limitations were self-imposed.” As it applied to the back injuries allegedly suffered, the defendants were found to have similarly failed to make a showing that the injury was not caused by the accident. As such, the court did not even review plaintiff’s appealing papers, and granted plaintiff’s appeal, overturning the initial grant for summary judgment. Thus, it is imperative to ensure that the expert reports do far more than merely stating the injury sustained was not casually related, or that the injury is self-limiting in nature. The IME doctor, particularly in his/her report, must provide a sufficient medical explanation for how they made such a determination, otherwise summary judgment may not be in the cards. Thanks to Christopher Palmieri for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Beer Pong Decision Bounces the Wrong Way for Bar Owners (NY) August 25, 2011 < Back Share to: Beer pong is one of the many activities that college students participate in when they tell their parents that they are studying. But take the game away from college, and disaster can ensue, as seen in Venito v. Salverson, et. al. Plaintiff Thomas Venito and defendant Mark Salverson were playing beer pong at KJ’s Ale House on Staten Island, and the two had an argument about the rules of the game. The bartender twice tried unsuccessfully to intervene. The argument then escalated into fight, which the bartender also could not stop, so he called 911. Salverson was arrested, convicted of misdemeanor assault, and served 60 days in jail. Plaintiff suffered facial and ankle fractures and sued Salverson and the bar. The bar moved for summary judgment, claiming the responsibility for plaintiff’s injuries fell solely on defendant Salverson. The judge denied the motion, holding that a jury might find that staffing the bar with only one bartender was insufficient security over Memorial Day weekend. The court also pointed out that the bartenders multiple efforts to stop the dispute were ineffective, and a jury might find that he should have called 911 before things escalated. It therefore held there was an issue of fact as to the claims of negligent security, hiring, and training. Interestingly, the court also found that plaintiff presented a prima facie case for liability under the Dram Shop. Plaintiff needed, in essence, to establish that the bar served alcohol to a knowingly intoxicated person. The court pointed out that, under any set of rules, the common objective of beer pong is the “copious consumption of alcoholic beverages.” The game encouraged excessive drinking at the bar, and the bar provided the alcohol to the participants. The court said that Salverson’s “aggression” was a common sense way for the bartender to observe visible evidence of intoxication. It remains to be seen whether this decision stands up on appeal. But I think one lesson learned is to agree on the rules before you play bar games. If you would like more information about this post, please write to mbono@wcmlaw.com Previous Next Contact

News Knock, Knock..Make Sure to Ask “Who’s There?” May 17, 2024 < Back Share to: There are often many avenues to finding an apartment complex liable for any injury that occurs to a plaintiff while on the premises, even in their own apartment. However, a recent first department case found otherwise. In Weiss v. Park Towers S.Co.,LLC , the court held that where a plaintiff tenant invited the possibility of danger into their own unit, plaintiff acted as an intervening and superseding proximate cause of the attack, and the building could not be held liable for his injuries. In Weiss , plaintiff was conducting a patient session in his home when an assailant barged into his home demanding certain documents that belonged to the plaintiffs ex-partner. Plaintiff was able to successfully expel the assailant out of his apartment. Once his patient session was over, plaintiff was made aware that the assailant was roaming in the common areas of the building. Plaintiff confronted him and after a brief discussion, permitted him to enter his apartment and use the bathroom. While in the apartment, the assailant suddenly emerged from the bathroom and attacked him with a sledgehammer and knife. Plaintiff sued his apartment building, raising concerns over the buildings security protocol in allowing the assailant to wander the building for an extended period of time and allowing him to freely re-enter the building after having left the first time. The court held that when a plaintiff invites the possibility of danger, or fails to take measures against a threat, the plaintiff breaks the causal chain that would otherwise hold a building complex negligent for these types of security breaches. In Weiss , plaintiff knowingly allowed the assailant, who had bizarrely barged into his apartment merely minutes before, and constituted an intervening act and superseding proximate cause. The court held that the defendant building owner and management company should be awarded summary judgment. Weiss v. Park Towers South Company LLC .pdf Download PDF • 131KB Previous Next Contact

News PA Supreme Court Affirms Prejudice Requirement for Late Notice Disclaimer. July 9, 2010 < Back Share to: In the case of Vanderhoff v. Harleysville Insurance, Harleysville disclaimed coverage to its insured on the basis of the insured's failure to provide timely notice. After working its way through the system, the Supreme Court was confronted with the issue of what the insurer needed to prove to deny coverage. The Supreme Court held that a late notice disclaimer requires a carrier to demonstrate prejudice (even in the case of an uninsured motorist claim involving a phantom vehicle). http://www.pacourts.us/OpPosting/Supreme/out/J-43-2008mo.pdf http://www.pacourts.us/OpPosting/Supreme/out/J-43-2008do.pdf If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News You Make the Call: Legal Ethics in PA. August 31, 2012 < Back Share to: In the case of Sutch v. Roxborough Memorial, the plaintiff claimed that a doctor’s failure to obtain diagnostic testing resulted in an untimely diagnosis of lung cancer. To prove the case, the plaintiff retained Dr. Porges, an expert from the University of Pennsylvania’s Hospital. Before the trial and after Dr. Porges had issued his report, the defendant’s lawyer wrote a letter to the University of Pennsylvania and said: Dr. Porges has clearly overlooked the well-established concept of hand-off to an accepting inpatient team and I thought you might want to know that, if this is her position and plaintiff’s attorneys become aware of it, it could expose the Hospital of the University of Pennsylvania to significant liability. For obvious reasons, this letter outraged plaintiff’s counsel who filed a motion for sanctions against the defense lawyer. Judge Allen, the trial court judge agreed that the behavior was improper, and disqualified the defense attorney from continuing to represent her client. She also ordered the defense counsel to pay $44,693 in fees and fines. True Philadelphia lawyering or improper interference? You make the call. From my perspective, this was a bridge too far that should not have been crossed. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Replacing A Neighbor's Sidewalk Flag Does Not Create A Duty to Maintain the Sidewalk May 25, 2011 < Back Share to: In Montalbano v 136 W. 80 St., the plaintiff fell on a raised sidewalk flag and sued the owners of the two adjacent properties because it was unclear who was responsible for that area of the sidewalk where he fell. Initially, Callanan thought he owned that area of the sidewalk because on two prior occasions he had replaced the sidewalk in front of his property, including the elevated flag that caused the plaintiff to fall. Also, Consolidated Edison had installed a gas line for Callanan's building and left an oil cap in the flag. However, a survey revealed that the sidewalk flag actually abutted Owners Corp.'s property. As such, the Appellate Division found that Callanan was entitled to summary judgment. The Appellate Division rejected Owners Corp.'s argument that Callanan's actions in making prior repairs constituted a special use of the sidewalk because there was no evidence suggesting that any such special use caused the claimed defect. Thanks to Bill Kirrane for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_04161.htm Previous Next Contact

News Does the Nature of a Dog Bite always Demonstrate Knowledge of Vicious Propensities? (NY) December 4, 2020 < Back Share to: In Costanza v Scarlata, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after defendant’s dog bit plaintiff on her face. The plaintiff alleged that defendants had a dog with vicious propensities, and as such, defendants moved for summary judgment on the basis that they didn’t have knowledge of any vicious propensities. The court stated, “The owner of a domestic animal who either knows or should have known of that animal's vicious propensities will be held liable for the harm the animal causes as a result of those propensities. Vicious propensities include the propensity to do any act that might endanger the safety of the persons and property of others in a given situation. Evidence tending to prove that a dog has vicious propensities includes a prior attack, the dog's tendency to growl, snap, or bare its teeth, the manner in which the dog was restrained, and a proclivity to act in a way that puts others at risk of harm" (citations omitted). The defendants were able to show they were entitled to summary judgment by showing: 1) they were not aware (or should have been aware), that their dog ever bit anyone; 2) they were not aware that their dog ever exhibited prior aggressive behavior; and 3) that although their dog occasionally jumped on people when greeting them, it was not enough to create an issue of fact as to whether the dog had vicious propensities. The court added that the “nature and severity of the attack does not demonstrate that the defendants knew or should have known of the dog’s vicious propensities”. This decision serves as a reminder that in a dog bite case, just because the attack may be severe, it does not mean the defendant is always liable. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Examinations Under Oath: Helpful Whether the Insured Appears or Not (NY) December 21, 2018 < Back Share to: Examinations under oath or “EUOs” are an excellent tool to flesh out the details of a claim which at first glance appears confusing or suspicious. The New York Supreme Court recently issued a reminder that these proceedings are not a mere formality, but a condition precedent for coverage at all. In Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C.,the claimant submitted bills for medical treatment rendered pursuant to a no-fault insurance policy. However, the principal of the claimant had previously been found guilty of Medicare fraud, and there was reason to believe he was himself hospitalized at a time when some of the services claimed were rendered. 2017 NY Slip Op 32943(U) The insurer served the claimant with four notices requesting an EUO, one in each of July, August, September, and October of 2016 and the claimant failed to appear. The insurer commenced a declaratory judgment action, arguing no coverage whatsoever was owed under the policy for this failure to appear, submitting affidavits explaining the reason for the necessity of the EUO and attempts to serve the claimant with the proper notices. Judge Greenwood granted the insurer’s motion for summary judgment, ruling the claimant had violated a condition precedent to coverage, contained both within the insurance policies at issue and the relevant regulation governing no-fault insurance, which vitiated the contract as a matter of law. When in doubt, an EUO can shed important light on critical areas in questions of coverage—and, sometimes, if the insured fails to cooperate, may provide a basis to disclaim coverage in its own right. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Don’t Forget to Turn On the Lights . . . PA Supreme Court Highlights New Exception to Sovereign Immunity May 6, 2021 < Back Share to: In an April 28, 2021 opinion, the Pennsylvania Supreme Court held that the Commonwealth of Pennsylvania cannot claim sovereign immunity where a dangerous condition, caused by poor lighting, exists on its property. The Pennsylvania Supreme Court’s decision in Wise v. Huntingdon County Housing Development Corporation, et al. overturned a Commonwealth Court’s contrary decision. Plaintiff, Shannon Wise, filed a negligence action against the County Housing Authority claiming she tripped and fell because of “insufficient lighting.” Defendants filed motions for summary judgment, arguing that sovereign immunity barred Wise’s claims. Defendants conceded in their motions for summary judgment that the only potentially applicable exception to sovereign immunity was the “dangerous condition” exception, where the State will not be immune from liability when a dangerous condition originates from its property. Defendants argued further that because there was no defect in the sidewalk, no dangerous condition derived from their property, and therefore, Wise’s claims were barred. Defendants argued that the poor lighting was simply a result of nighttime darkness. However, the court saw things differently. The Pennsylvania Supreme Court found the “dangerous exception” to sovereign immunity applied because the poor lighting, caused in part by certain placement of a pole by the State, derived from State property and was not just typical nighttime darkness. The Court reasoned that for the “dangerous exception” to apply, the condition need not be on State property; rather, it need only be contiguous to State property and the State need to have known, or should have known, of its existence. It focused on the exception’s requirement that the condition derive from State property. Here, the poorly lit sidewalk (dangerous condition) derived from the State’s poor placement of the outdoor lighting fixtures. As such, the Pennsylvania Supreme Court conducted a more expansive reading of the exceptions to sovereign immunity, where a dangerous condition need not be clearly connected to the land itself. Thanks to John Lang for his contribution to this post. Should you have questions, please feel free to contact Tom Bracken. Previous Next Contact