News NY's First Department Addresses Distributor's Liability In Strict Products Action June 26, 2009 < Back Share to: In Fernandez v. Riverdale Terrace, et. al, the First Department dealt with the liability of distributors in strict products liability cases. In Fernandez, the plaintiff sustained injuries while cleaning a defective building trash compactor. The general contractor had purchased the compactor from subcontractor Action, who pursuant to the sale, was obligated to install the compactor. Action chose the make and model of the subject compactor, purchased it directly from an entity related to the manufacturer at a "distributor" price, and then subcontracted the installation of the compactor to that entity. In affirming the lower court’s denial of Action’s motion for summary judgment, the First Department reaffirmed that a party who sustains an injury from a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury. Consequently, a distributor of a defective product is subject to strict liability, regardless of whether they merely took an order or shipped a product, and never actually inspected, controlled, installed or serviced the product. Since Action failed to submit evidence to establish that it was not a distributor, and only asserted that it did not design, manufacture, install or maintain the compactor, its motion was denied. The court’s decision implied that Action actually stepped into the shoes of the distributor. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05167.htm Previous Next Contact

News Context Important in ERISA Dispute Over Unclear Language (PA) November 23, 2022 < Back Share to: On November 16, 2022 in a lawsuit entitled, Frietas, et al. v. Geisinger Health Plan, et al., No. 4:20-CV-01236, Third Circuit Chief Judge Brann disposed of a proposed class action alleging that Geisinger Health Plan (“GHP”) illegally tried to recoup payments from plan users following their injury settlements, finding that documents uncovered through discovery explicitly gave the company the right to do so. Specifically, Lori Freitas and Kaylee McWilliams, lead plaintiffs in the subject lawsuit (“Plaintiffs”), were subscribers to employer-based health insurance provided by defendant, Geisinger Health Plan (“GHP”). Unfortunately, Plaintiffs were involved in separate car accidents resulting in personal injuries, and subsequently, personal injury settlements from the respective third-party tortfeasors. Prior to settlement, Plaintiffs filed respective claims with GHP for costs related to treatment of their injuries. Upon learning of Plaintiffs’ settlement(s), GHP brought reimbursement action(s) against Plaintiffs to recover costs from their settlements related to health insurance benefits provided by GHP relying on a clause in the Group Subscription Certificate (“Certificate”). However, the clause in the Certificate did not explicitly set out GHP’s right to reimbursement or include the ERISA Employer Welfare Plan (“Plan”) and its declarations. Plaintiffs, in protest, paid a portion of GHP’s demand and countersued in the form of class action. Specifically, Plaintiffs sought monetary relief and alleged that GHP violated the Employee Income Security Act (“ERISA”) and its fiduciary duties therein. When GHP’s initial motion to dismiss was denied, the case proceeded to discovery giving rise to the Plan and its declarations, which authorized GHP to seek both reimbursement from Plaintiffs and subrogation from third-parties. GHP filed a FRCP 12(b)(6) motion, which was converted into a motion summary judgement, stating that the related plan documents, when read in its entirety, allowed GHP to seek reimbursement of such costs. Ultimately, the court agreed and granted GHP’s motion for summary judgment. Specifically, the court found no inconsistency between the Certificate and the Plan. While the Certificate only provided a general right to subrogation from third-parties (rather than reimbursement from Plaintiffs), the language of the Certificate as supplemented by the Plan, authorized more expansive rights for GHP to enforce recovery. The court additionally found that the Plaintiffs’ allegations did not establish willful or bad faith conduct by GHP which would constitute a violation of its fiduciary duty as an aggravated beneficiary under ERISA. Importantly, the court indicated that GHP could have violated federal law by seeking reimbursement through the Certificate alone, however, any such violation could not have been willful being that GHP believed in good faith that they were enforcing the terms of the Plan in its entirety. Further, GHP’s good faith interest of enforcing its own reimbursement provisions did not give rise to a violation of GHP’s fiduciary duty of loyalty. Interestingly, after Plaintiffs’ suit had commenced, each of their respective employers elected to use a non-GHP plan and GHP ceased any further demand for reimbursement. Thus, since Plaintiffs had already agreed to and paid a portion of the demand, and GHP was no longer seeking reimbursement, the court rendered the rest of Plaintiffs’ claims as moot. In practice, Fritas acts as a word of caution to insurers and subscribers alike. When seeking reimbursement from subscribers, insurers are not necessarily limited to the language on the certificate of subscription so long as such authority is contained elsewhere in the plan. However, recovery efforts must abide by federal laws and be executed through the specific clause providing such authority. Conversely, subscribers are reminded of the age-old expression – be careful what you sign up for. Thanks to Kendal Hutchings contribution to this post. Should you have questions, contact Matthew Care. Previous Next Contact

Peter R. Restani Partner Florida prestani@wcmlaw.com +1 561 231 2689 Professional Experience Peter R. Restani is a partner with the Firm and a Florida Bar Board Certified Civil Trial attorney. Peter has also been awarded Board Certification in civil trial by the National Board  of Trial Advocacy. He is a Martindale-Hubbell AV-rated lawyer, a member of the Defense Research Institute Diversity Law Institute and a fellow (by invitation only) of both the Litigation Counsel of America and The American Board of Trial Advocates. Peter has been a trial lawyer for over 30 years and a partner in his various firms since 1995. Peter has extensive jury trial experience in state and federal courts. He has tried approximately 150 jury trials trials to verdict throughout Florida including personal injury, wrongful death, medical malpractice and insurance law. In the past 20 years, he has completed approximately 60 jury trials to verdict involving serious injury, wrongful death and medical malpractice, with a winning record which includes 30 defense verdicts. While in law school, Peter began his training as an intern with the United States Attorney, Organized Crime Strike Force. After graduation, he accepted a position from the Miami-Dade State Attorney, Janet Reno, as a State Prosecutor in Miami. There, he served the community for four years as a trial lawyer prosecuting all types of criminal offenses from misdemeanors to capital felonies. He also served three years as a member and chair of a Florida Bar grievance committee. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.A., Boston College J.D., University of Miami School of Law Bar Admissions Florida

News On the Road = Bad for Health = Claims? November 22, 2011 < Back Share to: When I think of truckers, I think of Smokey and the Bandit. But, alas, the reality seems far different! According to the NYT, truckers' sedentary lifestyles is bad for their health. This is bad news for Americans since it is estimated that truckers' poor health is a contributing cause of many highway accidents. Something for insurers and self-insureds to be aware of, since, no doubt, plaintiffs' counsel will seize on this problem in their attempts to establish negligent hiring or training against trucking companies. For more information about this post or WCM's trucking practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Putting A Ring on It Doesn't Bind Driver to Auto Policy Tort Election in PA February 6, 2013 < Back Share to: In many states, auto policy holders need to decide under what circumstances they will be able to pursue pain and suffering claims when they sign up for coverage. The Superior Court of Pennsylvania recently addressed what parties are bound to the policy holder's choice in Sally McWeeney v. Estate of Janet R. Strickler. McWeeney was injured in an auto accident with Janet Strickler, and the York County Court of Common Pleas granted summary judgment to Strickler on the basis that McWeeney was insured under her fiancee’s Progressive Insurance policy and that her claims were barred under the policy's limited tort option. McWeeney’s fiancé, Richard Brant, was the named insured on the policy but McWeeney was listed as a principal driver along with Brant, and was also a permissive driver at the time of the accident. The lower court held that McWeeney was a named insured for the purposes of the Pennsylvania Motor Vehicle Financial Responsibilities Law, and thus bound to Brant’s limited tort election, because her name was listed on the declarations page as a principal driver. McWeeney appealed the York County Court decision, focusing on whether or not McWeeney was forced to accept the limited tort option under Brant’s policy or could elect the full tort option. The Superior Court, performing a statutory analysis, held that that a "named insured" on a policy is only that one person who is identified by name as an insured on the policy, as defined in the MVFRL. The MVFRL holds that only one who is identified by name as an insured can elect the limited court option The court also considered the issue of McWeeney’s position as a permissive driver and whether that bound her as an “insured” driver to Brant’s election of limited tort because the Progressive policy stated that all permissive drivers are considered insureds for purposes of tort election. The Superior Court found that the Progressive policy “impermissibly bars more drivers from claiming non-economic damages against third party tortfeasors than was contemplated in Section 1705”, and was therefore not enforceable. This case thus serves to clarify the meaning of “insured” under section 1705 of MVFRL and Pennsylvania insurance policies. A motorist who owns no vehicle and is unrelated to the owner of the car she drives may seek non-economic damages against a third party torfeasor, even if she was a fiancee of the named insured and a permissive driver under the policy. Any insurance policy that seeks to expand the definition of insured beyond that which is described in section 1705 will be invalidated. Thanks to Remy Cahn for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com . Previous Next Contact

News Father Knows Best: Church Assets May Be Valued In a Pastor's Divorce Proceeding November 15, 2007 < Back Share to: The wife of a pastor sued for divorce in New York. Her attorney argued that the pastor --the wife's estranged husband-- used the church's assets as his "personal piggy bank." Not suprisingly, the pastor protested that he was merely a humble "W-2" employee of a duly registered not for profit religious corporation. Ruling that the church and its finances may be considered the pastor's "alter ego" if he had unfettered control of its assets for his personal use, the court permitted the wife to pursue the valuation of the church's assets for equitable distribution purposes. We are reminded of the biblical admonition: You reap what you sow. (Galatians 6-7) Or the more practical lesson to be careful how much you tell your spouse if your marriage is on shaky ground. http://www.nylawyer.com/adgifs/decisions/111507diamond.pdf Previous Next Contact

News “Terms and Conditions” In Bid Document Do Not Constitute Binding Agreement March 3, 2009 < Back Share to: In Illinois Nat. Ins. Co. v. American Alternative Ins. Corp., the School Construction Authority of the City of New York and its insurer brought an action against a subcontractor's insurer, seeking defense and indemnification for an underlying personal injury lawsuit. The insurance contract issued by the subcontractor's insurer included as an insured “any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization be added as an additional insured on your policy.” The plaintiffs conceded that the subcontractor's contract with SCA did not contain an agreement that SCA be named as additional insureds. The plaintiffs, however, argued that a provision in the bid documents stated that the performance of work “shall be governed by” certain terms and conditions, among which was a requirement to name SCA as an additional insured. As such, the plaintiffs argued that this constituted an “agreement” in writing satisfying the additional insured provision of the subcontractor's insurance contract. The First Department disagreed and affirmed the lower court’s decision dismissing the plaintiffs’ claims. Thanks to Cheryl Fuchs for her contribution to this post. Previous Next Contact

Florida Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – West Palm Beach WCM established its Florida office in 2021. Since then, the office has earned a strong reputation for handling a broad range of matters, including insurance defense, insurance coverage, commercial litigation, and appellate work. Led by two Board-Certified Trial Attorneys, our Florida team litigates cases in all state court vicinages throughout Florida, as well as in federal courts. Over the past year, the office has experienced significant growth—reflecting our unwavering commitment to achieving positive results through high-quality legal work, professional integrity, and outstanding client service. In addition to our litigation capabilities, the Florida office maintains a dedicated focus on insurance coverage and coverage litigation. Our team is well-equipped to handle the full spectrum of insurance matters, from cargo and jeweler’s block/specie to homeowner’s and general liability claims. Contact Details 1555 Palm Beach Lakes Blvd, Suite 580, West Palm Beach, FL 33401 561 231 2744 561 828 4620 Attorneys and Professional Staff Laurence Cancel Senior Associate Vanancia C. Hyppolite Associate Maria E. Dalmanieras Partner Nishall N. Jairam Counsel Helene E. Dalmanieras Paralegal Peter R. Restani Partner Chip M-P George Of Counsel

News No Fault? No Problem (NJ) June 13, 2019 < Back Share to: In Liberty v. Penske, the New Jersey Superior Court was asked to address whether: New Jersey’s No-Fault Act, N.J.S.A. 39:6A-9.1 compels arbitration when there is a disputed question of fact regarding whether a party is a tortfeasor. By way of background, in October 2016, a tractor trailer being operated by a CEVA employee collided with a pickup truck driven by Eugene Jerinsky in New Jersey. Jerinsky was injured as a result of the accident and subsequently obtained no fault benefits through Liberty Mutual, his insurance company. After all was said and done, Liberty Mutual requested that Ceva, who was self-insured at the time of the accident, reimburse the claim because its employee was at fault. Ceva declined and then Liberty Mutual requested an arbitration to arbitrate the reimbursement claim. Ceva again declined. In September 2017, Liberty Mutual filed suit against Ceva. The main issue being whether the reimbursement claim should be heard by an arbitrator or a judge and jury. The lower court ruled in favor of Ceva, stating that a judge or jury had to first determine the employee’s fault before an arbitrator could hear a reimbursement claim. The appeals court disagreed. The court held that arbitrators can determine issues of fact. It stated that whether or not the Ceva employee was at fault involved a factual question of negligence. In the end Liberty Mutual was allowed to arbitrate the claim. Long story short, this is a win for insurance companies in the State of New Jersey looking to arbitrate PIP reimbursement claims. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Insurer Off the Hook for Loss of Business Income Due to Clogged Toilet (NJ) January 3, 2019 < Back Share to: A New Jersey appellate court recently decided whether an insurer must provide additional coverage for damage caused to a restaurant by sewage backup in FOUZIA SALIH v. OHIO SECURITY INSURANCE. After a dreadful toilet clog in a New Jersey restaurant, plaintiff sought coverage in excess of its policy’s $25,000 limit for heavy damage to the restaurant under a lost business income provision. The clog destroyed the water heater, furnace, restaurant’s tiles, basement, first-floor bathroom, and kitchen, causing $162,933.63 in total damage. The policy’s general provisions excluded coverage for water damage caused by backup or overflow but included a custom endorsement which provided a $25,000 sublimit for such events. A public claims adjuster determined that the loss was caused by water discharge while the insurer determined that the cause of loss was raw sewage backup. The insurer issued checks for $25,000 for the damage and plaintiff filed a lawsuit after finding that the damages far exceeded the endorsement limit. In the lawsuit, plaintiff sought more coverage and alleged that the insurer breached its terms to provide benefits covered under the policy. The insurer moved for summary judgment and plaintiff filed an opposition relying on the business income provision, which states that the insurer will cover the actual loss of income sustained due to damage. The lower court ruled in favor of the insurer, finding that the custom endorsement put plaintiff on notice that the business income provision would not cover damages if the water damage coverage was only created as a result of the endorsement. Finding that the policy terms were clear, unambiguous, and supported the insurer’s interpretation of the policy, the appellate court affirmed the lower court’s decision. Thanks to Chelsea Rendelman for her contribution to this post. Previous Next Contact

News Legislature Gives Green Light to Boarding Excess PIP Medical Expenses as "Economic Losses" (NJ) August 29, 2019 < Back Share to: Back in March, the New Jersey Supreme Court issued a landmark decision in Haines v. Taft, that substantially impacted boardable medical expenses in motor vehicle accident cases. As Brian Gibbons and Steve Kim first reported back in April, the Court’s decision essentially barred plaintiffs from admitting evidence of medical expenses that exceeded PIP policy limits. In reaching its conclusion, the Court analyzed the intent of the No-Fault scheme and evaluated the legislative history underpinning its formation – and invited lawmakers to intervene if they disagreed. The New Jersey Legislature responded, at breakneck speed, and recently passed two laws that supersede the Haines decision. The first piece of legislation, S-2432, allows injured victims of motor vehicle accidents to seek payment for medical expenses due to another’s negligence specifically when they exceed PIP coverage limits. The second piece of legislation, S-3963, confirms that injured victims may only recover unreimbursed medical expenses and clarifies that any excess expense must be limited to costs prescribed by the statutory PIP medical fee schedule. The result is a boon for the plaintiff’s bar, which has increasingly used snowballing medical expenses to raise arbitration awards and shock juries into increasing verdict amounts across the state. With the passing of S-2432 and S-3963, plaintiffs will now be firmly permitted to board any and all medical expenses in excess of PIP policy limits as “economic loss” damages – subject only to the cost limits prescribed by the existing statutory PIP medical fee schedule. Oddly enough, the Haines Court disapproved of the very outcome the legislature adopted, warning that treating excess medical expenses as boardable economic losses (while not permitting the recovery of PIP medical expenses themselves) may result in instances where lower PIP coverage limits ($15,000) with high boardable “economic loss” medical expenses yield higher reimbursements than standard PIP policies ($250,000) with no boardable medicals. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Imprecise Policy Language Leads to Unintended Coverage in New Jersey Dog Bite Case December 1, 2023 < Back Share to: The general rule in New Jersey is that courts will interpret an insurance policy in accordance with its "plain and ordinary meaning." If the terms ae clear, courts should interpret the policy as written and avoid “writing a better policy” than the one purchased. However, any ambiguity will be construed in favor of coverage. The outcome of a coverage dispute often turns on a court’s unique interpretation of the policy at issue, with some courts finding coverage where none was intended if the language is not specific. This can be seen in the Appellate Division’s recent decision in Berardi v. FMI Insurance Company . In that case, FMI issued a homeowner’s policy covering plaintiff’s primary home in New Jersey. Plaintiffs also owned a vacation home in New York which was insured by another company. The PMI policy had a $1,000,000 personal liability limit with a sub-limit of $10,000 limit for medical payments to others. The PMI Policy also had a “Personal Excess Liability Umbrella Coverage” endorsement providing for $5,000,000 in umbrella coverage "[i]f the occurrence is covered by a primary policy, the limit of liability under the MPL 80 applies to any damages which exceed the limits of the primary policies described in this coverage form…” The policy also contained an exclusion for bodily injury or property damage “arising out of any premises owned, rented, or controlled by you, other than an insured premises covered by this policy” but the exclusion contained an exception for “bodily injury to a residence employee while performing such duties at other premises.” The plaintiffs’ dog bit a housekeeper at their New York home and she filed suit for personal injuries. Plaintiffs sought coverage from both insurers but PMI disclaimed coverage. A declaratory judgment action was filed, and the court granted plaintiffs’ cross motion for summary judgment, finding that FMI had a duty to defend plaintiffs in the underlying lawsuit and to reimburse them for defense costs not covered by any other policy. The Appellate Division affirmed, first finding that the “locations not insured” exclusion did not preclude coverage since the housekeeper was injured while performing duties at a location other than the insured primary residence and the first sentence in the exclusion did not preempt the exception in the second sentence. The Court also found that the umbrella coverage applied to damages above the $10,000 sublimit for medical payments, not the $1,000,000 personal liability limit. In so ruling, the Court stressed that the language of the umbrella endorsement was not specific as to the term “limits”, which could refer to the maximum limits of the policies or the various sub-limits. As such, the Court found that the endorsement was ambiguous and that PMI could have made it clear that it wanted the umbrella coverage to apply solely to damages above the liability limit, and not to any sub-limits in the policies. The Berardi decision is an example of a court employing a liberal interpretation of a policy to find coverage where none was intended. It also highlights the importance of specificity in insurance language, particularly for limitations and exclusions. Anthony Berardi and Janet Berardi v. FMI Insurance Company, et al. .pdf Download PDF • 80KB Previous Next Contact