News Pennsylvania Courts Further Divided on Restatement. March 15, 2013 < Back Share to: As previously reported, a growing rift has emerged between Pennsylvania’s state and federal courts regarding the applicability of the Restatement (Third) of Torts to product liability actions. True to form, a recent decision from the Western District of Pennsylvania further complicated matters when Judge Arthur J. Schwab declined to follow the Third Circuit’s ruling in Covell v. Bell Sports, Inc. and instead adopted the State Supreme Court’s adherence to the Second Restatement. In Gilmore v. Ford Motor Company, Judge Schwab previously ruled that the Restatement (Second) of Torts governed plaintiff’s claim of strict liability against Ford where the decedents were ejected from their 2000 Ranger pick-up.Ford took exception and moved for reconsideration, arguing that the Third Circuit’s decisions in Covell and Sikkelee v. Precision Airmotive Corp. compelled the court to apply the Restatement (Third) of Torts. Despite Ford’s lofty citations, Judge Schwab remained unconvinced and held that because the Third Circuit’s ruling in Sikkelee was non-precedential, it was free to stand by the position that recent state decisions contradict the federal courts’ predisposition to the Third Restatement. Specifically, Judge Schwab implied that the relevant Third Circuit opinions were obsolete in light of two state Supreme Court decisions issued after Covell and Sikkeleewhere the court continued to apply the Second Restatement. As a result, Judge Schwab concluded that there was no change in Pennsylvania’s controlling law and endorsed the Second Restatement’s application by federal courts sitting in diversity. Although Judge Schwab’s district-level opinion is non-binding, it serves as a succinct, yet persuasive analysis of the tension between state and federal courts regarding the Restatement’s future in Pennsylvania. The opinion’s latent advocacy for comity between the courts should catalyze further consideration of the issue and, at a minimum, indicates that the debate is all but over. Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Court Holds Renewal Requirement Does Not Apply to Surplus Lines Policy (NY) May 1, 2013 < Back Share to: The IDW Group is a employment recruitment firm that obtained Errors and Omissions policies from Liberty Surplus Insurance Corporation through its insurance broker, Levine Insurance Risk Management. Policies were issued for the periods of 2005/2006, 2006/2007, 2008/2009, and 2009/2010. During 2007, there was some sort of mix-up involving the premium check, and no policy was issued for the 2007/2008 policy year. During that time period, JP Morgan sued IDW, alleging that IDW violated a non-solicitation clause of a recruiting contract between the two companies. When Liberty learned that there was no policy in place, it disclaimed coverage for the JP Morgan claim. IDW then sued Levine for failing to obtain coverage and Liberty for, among other reasons, failing to provide IDW with the non-renewal notice required under the New York Insurance Law. NY Insurance Law §3426 generally requires that a commercial insurer provide written notice to the insured of its intention not to renew a policy. IDW alleged that because Liberty failed to provide such notice of non-renewal for the 2007/2008 policy year, that policy remained in effect and IDW was therefore entitled to coverage for the JP Morgan lawsuit. But Liberty argued that its policy was exempt from the statute, because the statute states it does not apply to an “excess liability policy,” and here Liberty issued a surplus lines policy. Although the statute seemingly applies to policies that provide excess coverage over primary policies, Liberty cited to an opinion from the New York Department of Insurance that said the term “surplus lines” is synonymous with “excess lines.” Therefore, Liberty argued the statute did not apply to a surplus lines policy. The Court found that the Department of Insurance opinion was persuasive (albeit not binding) and awarded Liberty summary judgment, dismissing IDW’s claims. Frankly, while we think that credible arguments can be made that the certain requirements of the Insurance Law do not apply to excess/surplus lines carriers, here the Court may have conflated two similar terms and we are interested to see whether this decision holds up on appeal. If you would like more information about this case, please write to Mike Bono.     Previous Next Contact

News This Isn’t Cash Cab (NY) November 1, 2019 < Back Share to: In Roazzi v. What’s Next Taxi, Inc., the New York County Supreme Court re-emphasized that a plaintiff’s purely conclusory assertion that an injury was causally related to an accident is legally insufficient to defeat a summary judgment motion based on threshold. Plaintiff sued after his vehicle was struck by a taxicab on the FDR, alleging injuries to his cervical spine, lumbar spine, and meniscus tears. Defendants moved for summary judgment under Insurance Law § 5102(d), on the grounds that plaintiff had not met the “serious injury” threshold because his injuries stemmed from degenerative spine conditions, as well as prior and subsequent motor vehicle accidents. Plaintiff’s medical records, deposition testimony, and independent medical examinations established that plaintiff had degenerative conditions in both his cervical spine and leg. In opposition to defendants’ motions, plaintiff submitted a report of his doctor opining that his conditions were causally related to the subject accident, but completely failed to even address the degenerative conditions in the plaintiff’s cervical spine and leg. The doctor did, however, state that the plaintiff’s degenerative lumbar spine condition was exacerbated by the subject accident. The Supreme Court followed the precedent set by the Court of Appeals in Rosa v. DelaCruz (2018), which states that where a plaintiff’s doctor opines that injuries are causally related to an accident, but does not acknowledge or attempt to explain how the claimed injuries affected preexisting or degenerative conditions, this fails to raise a triable issue of fact sufficient to establish a “serious injury” as defined in the Insurance Law §§ 5102 and 4104. Accordingly, defendants’ motions were granted as to the cervical spine and leg injuries, and the Court found that plaintiff Roazzi had only established a “serious injury” pursuant to the Insurance Law with regard to his lumbar spine. Thank you to Shira Straus for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News New Federal Discovery Rules in Action as Eastern District Quashes Spousal Deposition April 6, 2016 < Back Share to: The Federal Rules of Civil Procedure were recently amended in December 2015 to increase the efficiency – and civility – with which litigation is conducted. The amendments partially focused on streamlining discovery by implementing a “proportionality” standard that would limit the scope of permissible disclosure, thereby reducing the number of disputes that would result in unnecessary motion practice. A recent decision from the United States District Court for the Eastern District of Pennsylvania makes clear that federal judges are committed to implementing this new standard – as well as old principles – in an effort to make discovery more efficient. In the case of Tong v. Mangar Industries, the plaintiff sued her former employer, alleging that she was effectively discharged as a result of a sexually hostile environment created by one of her supervisors that eventually led to sexual assault. During the course of discovery, the plaintiff noticed the deposition of the offending supervisor’s wife, prompting the employer to timely file a motion for a protective order quashing the deposition on the basis that any disclosures made therein would lead to the destruction of their marriage. In fact, as part of its petition to quash, the employer went so far as to stipulate that the offending supervisor lied to his wife about his relationship with the plaintiff, and accordingly no deposition was factually necessary. Ultimately granting the motion for a protective order, the Honorable Michael J. Baylson first noted that the new Federal Rules of Civil Procedure specifically include the concept of “proportionality” in discovery. However, although the inclusion of “proportionality” in Rule 26 arose largely out of the concern that discovery had become too costly, Judge Baylson also explained that the standard “applies as much to the concept of relevancy as to expenses.” With this in mind, Judge Baylson stated that “proportionality” in this case compelled a finding that the likelihood of embarrassment, coupled with the potential destruction of the deponent’s marriage, vastly outweighed the discovery of any probative evidence in addition to the employer’s aforementioned stipulation. While the Court’s discovery order in Tong is in many ways limited to the facts and circumstances of that case, it is loaded with insight for counsel and their clients. Specifically, there is little doubt in light of the Tong decision that the new standard for discovery under Rule 26 is being actively applied by federal jurists. With that said, however, it is equally clear that traditional evidentiary principles like prejudice and relevancy persist as discovery challenges inasmuch as the value of discovery must always be weighed against more than just its economic costs. Thanks to Adam Gomez for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News When Does the Homeowner’s Exemption Apply in a Labor Law Case? (NY) December 30, 2021 < Back Share to: In Capuzzi v. Fuller, 2021 NY Slip Op 07335 (3d Dep’t, December 23, 2021), the Third Department recently addressed whether a homeowner was entitled to the homeowner’s exemption in a New York Labor Law lawsuit. Plaintiff in that case alleged that he was hired to perform construction at defendant’s home and sustained injuries in a fall while installing floor joists. Plaintiff sued the homeowner for negligence and violations of Labor Law § 200, 240 (1) and 241 (6). Defendant moved for summary judgment on the basis of the homeowner’s exemption, arguing that although he visited the construction site and observed the progress of the work, he did not supervise, control, or direct the plaintiff’s work. In opposition, plaintiff alleged that he discussed “work orders, logistics, materials and the architectural drawings” with the defendant. The trial court denied the motion. The Third Department outlined the exemption by noting that “[A]lthough both Labor Law § 240 (1) and § 241 impose nondelegable duties upon contractors, owners and their agents to comply with certain safety practices for the protection of workers engaged in various construction-related activities, the Legislature has carved out an exemption for the owners of one and two-family dwellings who contract for but do not direct or control the work.” Based upon the facts of the case, the court reversed the decision of the trial court and found that plaintiff could not demonstrate that the defendant “directed or controlled the manner of plaintiff's work”, and that the §241 and 240 claims should have been dismissed. The court also held that the Labor Law § 200 claim should have been dismissed as the defendant did not control the “manner or means in which plaintiff was to install the floor joists.” Capuzzi serves as a reminder that: 1) New York homeowners could have potential Labor Law liability if they are directly involved in supervising and controlling construction work in their homes; and 2) the homeowner’s exemption should be pursued in cases where such involvement or control does not exist. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Will Amazon Be On The Hook? Awaiting Important Precedent in PA April 28, 2023 < Back Share to: We are still on watch for a current pending Pennsylvania Supreme Court decision that could impact Amazon’s liability in this case. In Oberdorf v. Amazon.com Inc., 930 F.3d 136, 150 (3d Cir.), reh'g en banc granted, opinion vacated, 936 F.3d 182 (3d Cir. 2019), the plaintiff filed a strict products liability action against Amazon alleging failure to warn and design defect from an allegedly faulty retractable dog collar purchased from a third-party vender on Amazon. In Pennsylvania, the Restatement (Second) of Torts, §402A strict products liability actions extend only to “sellers” of products. The court reasoned that determining whether an entity is a “seller” requires the consideration of multiple factors analyzing the level of control an entity has, such as warranty, title, control sufficient to inspect, economic benefit, and control over design and manufacture. The Third Circuit held that Amazon did meet the criteria of a “seller,” but this holding was nullified when the Third Circuit agreed to hear the case en banc. After the Third Circuit expressed uncertainty over what test to utilize in determining whether Amazon is a “seller,” the Pennsylvania Supreme Court agreed in 2020 to address the following issue: “Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?” Oberdorf v. Amazon.com, Inc., 661 Pa. 535, 237 A.3d 394 (2020). While the Petition for Certification of Law was Granted in 2020, we are still awaiting a schedule for oral argument. However, this could have an immense impact on products liability cases; more specifically on whether Amazon may be exposed to liability for products sold by third parties in Pennsylvania and other jurisdictions. If Amazon is not considered to be a “seller,” liability will fall heavier on sellers, and even sellers who stand in the shoes of a foreign manufacturer in litigation. Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Not Enough Judges in NJ? May 11, 2012 < Back Share to: Litigation can be slow enough, but, in NJ, it's likely to get even slower. There are as many as 60 judicial vacancies in NJ. This seems unlikely to change in light of NJ's budget deficits and (potentially) Governor's Christie's role as a vice-presidential candidate. As if there wasn't enough to worry about in litigation... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Second Circuit Vacates District Court and Remands Sandy Case October 31, 2018 < Back Share to: It has been just over six years since Hurricane Sandy made its devastating landfall in New York and New Jersey, causing nearly $70 billion in damages, but Sandy-related insurance litigation is still steadily making its way through the courts. In Madelaine Chocolate Novelties Inc v Great Northern Insurance Company., the Second Circuit Court of Appeals recently held that a potential internal ambiguity in the policy mandated that the District Court’s judgment in favor of the insurer be vacated and remanded for further proceedings. The relevant facts are straightforward: Madelaine Chocolate suffered significant damage caused by the Sandy “storm surge,” the water pushed onto land by the force of the storm winds. Madelaine timely submitted its claim to Great Northern for $40 million in property damage, and $13.5 million in extra operational expenses. Great Northern disclaimed most of the claim on the basis that storm surge damage was excluded from coverage. The Policy contained a ‘Windstorm Endorsement’ that provided coverage for “wind, wind-driven rain, erosion of soil….regardless of any other cause or event that directly or indirectly: contributes concurrently to; or contributed in any sequence to, the loss or damage…,” an anti-concurrent causation clause (“ACC”). Great Northern’s disclaimer, upheld by the District Court, was premised on the Policy’s Flood Exclusion, which states that there is no coverage for “waves, tidal water or tidal waves, rising, overflowing…of any.. body of water or watercourse…, regardless of any other cause or event that directly or indirectly contributes concurrently to, or contributes in any sequence to, the loss or damage.” While the District Court agreed that the Flood Exclusion unambiguously excluded storm surge damage, the Appellate Court disagreed, parsing the lower court’s analysis. First, the Court ruled that the District Court relied on non-precedential opinions to decide that a storm surge can be fairly categorized as a “flood,” noting that the cases relied upon did not include endorsements that added an ACC to the definition of covered peril. Second, the Court found that the District Court’s reliance on several 5th Circuit Katrina cases was also misplaced, as none of the policies at issue in those cases likewise added an ACC to the definition of covered peril insured. The key question on remand is whether or not the ACC clause in the Windstorm Endorsement conflicts with, or creates an ambiguity, with respect to the Flood Exclusion, reminding the District Court to “be mindful of well-established precedents requiring exclusions to be set out in clear and unmistakable language.” ACC clauses have been held ambiguous in certain Katrian cases. As Madelaine Chocolate continues its path through the New York court system, further clarity to these complex coverage questions will continue to inform the way coverage is analyzed, and perhaps how coverage is written, as significant storms become more common. Thanks to Vivian Turetsky for her contribution to this post.       Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

News New York's Top Court Upholds Removal Of Niagra Falls Judge Over Ringing Cell Phone June 6, 2008 < Back Share to: The New York State Court Of Appeals unanimously affirmed the removal of Judge Robert Restaino, who jailed 46 people in his courtroom after no one would own up to a ringing cell phone. After the cell phone rang during the Court session, Judge Restaino called each defendant in the courtroom before him and ordered them into custody when they denied knowledge of the cell phone. The Court of Appeals called the punishment of innocent people under the circumstances "inexcusable". http://www.law.com/jsp/article.jsp?id=1202421984572 Previous Next Contact

News ALL BARK NO BITE-A Dangerous Dog Registry is Among the Bills to be Voted on by Nassau County Legislature Next Week (NY) February 12, 2021 < Back Share to: Legislator John Ferretti proposed a bill entitled, "Benny's Law" to help protect people and pets within the community. The bill was inspired after the lawmaker’s 1-year old terrier, Benny, was attacked by a neighbor’s dog. Although the dog who attacked Benny is currently on probation, the Ferretti fears that since the dog was returned to its owners, other incidents between dogs and even humans may occur. Ferretti believes that the dog database proposition, which aims to list all dogs legally deemed dangerous by a Judge, will make all neighbors in the community fully aware of the vicious nature of not only the dog that attacked Benny, but all dangerous dogs alike, and thus, neighbors will start exhibiting the necessary vigilance and caution while within those potentially unsafe zones. The framework of “Benny’s Law” will look similar to that of a sex registry. The proposed dog database will comprise of the dog owner’s address, the date of the incident, and “the pet owner will have to mail a letter to all property owners within 1,000 feet of the home notifying them that the owner’s dog has been deemed dangerous.” In addition to the address and date of incident, the database will also feature more detailed accounts of each dog, such as, the dog’s weight, age, breed, color, and the duration of dangerous dog designation. “Benny’s Law” also recommends that the failure to register the dangerous dog on the database will result in consequences, starting with a $500 fine. The bill is scheduled to be voted on within the next week with legislator’s hopes it is fully enacted and implemented before any future incidents arise. Thanks to Irving Fayman for his contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Labor Law Liability Imposed Against Catholic Church (NY) January 3, 2020 < Back Share to: New York’s Labor Law, section 241(6), imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ortega v Roman Catholic Diocese of Brooklyn is a prime example of how strict this rule is. In that case, plaintiff was working as a concrete laborer at property owned by Roman Catholic Diocese of Brooklyn. He was injured when the front leg of a three-wheeled compressor gave way, causing a portion of plaintiff’s ring finger to become severed by the bent leg of the compressor. At his deposition, plaintiff testified that the locking mechanism that served to stabilize the front leg and wheel of the compressor had broken about two months before the accident. To remedy it, plaintiff’s boss replaced the broken component with an ordinary screwdriver. The accident occurred when the screwdriver popped out of the locking mechanism as he and coworkers were attempting to the push the compressor up a driveway. The Appellate Division, 2nd Judicial Department, overruled the Kings County trial court’s denial of summary judgment sought by plaintiff. It held that there were violations of the Labor Law, and therefore the owner of the property, Catholic Diocese, was liable for said violations pursuant to Labor Law section 241(6). The fact that Catholic Diocese had nothing to do with fixing the compressor was irrelevant, for the Labor Law imposes a nondelegable duty on landowners to provide a safe working place for workers. Thanks to Mike Noblett for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact