News NJ Appellate Division Limits Release in Equine Liability Case August 5, 2009 < Back Share to: Although known as the "Garden State," New Jersey is also home to many riding schools, stables and horse farms. It has the Meadowlands Racetrack, Monmouth Park Racetrack and Freehold Raceway just to name a few. Not surprisingly, New Jersey has a statute limiting the liability of the operators of equine activities. Many experienced operators supplement these statutory protections by requiring participants to sign detailed release and waiver forms to protect the operator from any claims for bodily injury. Can a release provide protection beyond those provided by statute? In other words, may a release protect an operator from risks that are specifically beyond the scope of immunities provided by New Jersey's Equine Activities Liability Act? According to Hubner v. Spring Valley Equestrian Center, the answer is "no." In Hubner, plaintiff was injured when her horse tripped over training poles embedded in the the floor of defendant's barn. Two issues confronted the appellate court. First, did the statute protect the equine operator under these circumstances? Second, if not, did the release signed by plaintiff release the defendant from liability? The court decided that the statute did not apply under the facts presented in Hubner. But, more importantly, the court invalidated the release as a violation of public policy. It reasoned that the legislature set forth the circumstances under which an equine operator would be entitled to immunity for claims arising out of equine activities. Thus, the enforcement of the release in a scenario where the operator is not entitled to statutory immunity would undermine "the balance of risks and costs" made by the legislature in the Equine Activities Liability Act. http://www.judiciary.state.nj.us/opinions/a4723-07.pdf Previous Next Contact

News Court Denies Class Certification; Rules Each Insurance Policy Must Be Considered as an Individual Contract February 7, 2020 < Back Share to: Insurance policies are contracts. For that reason and others, insurers benefit when courts approach their policies from a contract perspective rather than a public policy perspective. Related to this point, a Tennessee federal judge recently denied class certification to a group of policyholders who brought suit against North Carolina Mutual Life Insurance Company. The underlying complaint alleges breach of contract and claiming problems with policy loans and rider benefits affecting thousands of other policies. In order for a group of plaintiffs with an array of claims to even be considered for class certification, a court must first determine whether the particular class action is the best option to manage the multiple claims. In McClendon v. North Carolina Mutual Life Insurance Company, Marietta McClendon of Brentwood, Tennessee sued North Carolina Mutual, alleging breach of contract, alleging problems with policy loans and rider benefits affected thousands of other policyholders. The complaint alleges that her mother had taken out a life insurance policy of $10,000 on her son in the 1980s in Alabama. McClendon then took a $1,500 loan out against the policy in 1995, agreeing to a 5% interest rate, and when she died in 2005 her son took over payments. In 2009, when North Carolina Mutual assumed more than 52,000 insurance policies from several Alabama companies, that particular portfolio also included McDaniel’s policy. After taking over the policy, the company then charged a higher 6% rate on the loan. Plaintiff’s Complaint further asserts that the payments made on the loan amount by McDaniel’s son after her death, during the period of 2009 to 2016, was snaffled by the company. Moreover, plaintiff claims that the life insurance payment McClendon received after her brother died last year was then reduced. A motion for class certification under Rule 23 requires class members to satisfy all four of the Rule 23(a) prerequisites: numerosity, commonality, typicality, and adequate representation. The four requirements serve to limit class claims to those that are fairly encompassed within the claims of the named Plaintiffs, because class representatives must share the same interests and injury as the class members. Failure to meet any of these elements will result in the denial of class certification. In addition to the four prong criteria, Courts must also take into account a second part to the overall analysis whereby a class must fall within one of the three typed of actions listed in Rule 23(b). Most importantly, the party seeking class certification has the burden to prove the Rule 23 certification requirements. Following a rigorous analysis of the aforementioned criteria by the Court, Judge Campbell eventually disagreed with Plaintiff’s contention that the loan class members shared the same injury. The court determined that the interest rate on each loan being identical does not in itself establish breach of contract, and that each individual contract’s terms would have to examined to determine whether there was a breach of contract. Moreover, the issue as to whether the loan payments were improperly applied to each loan balance, would require a case by case examination of each loan. In other words, each contract would be treated as an individual contract. And that benefits insurers. Thanks to James Papadakis for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News Plaintiff Shocked by Decision Granting Defendants Summary Judgment (NY) August 25, 2016 < Back Share to: The Appellate Division, Second Department, recently decided Lococo v. Mater Cristi Catholic High School, et al. 2016 NY Slip Op 05796, wherein it reversed the decision of the lower Court and granted summary judgment in the defendants' favor. Plaintiff, an employee of an independent catering company, was injured while working at defendant school when she tried to plug an extension cord she found on the premises into the wall. (The Court does not elaborate on the injury -- there may have been an electrical shock, based upon the reference to the extension cord, but this is speculation on our part.) Plaintiff claimed that the defendant school created the condition, had both actual and constructive notice of the condition and were liable under the theory of res ipsa loquitor, the theory that the incident could not have occurred absent an act of negligence. While the lower Court found a question of fact as to notice, the Appellate Division found that the School proved it did not create the condition, or have any notice thereof. Additionally, the Court stated that res ipsa loquitor is inapplicable as it was established that the extension cord was not in the school’s exclusive control as plaintiff and her company also had access to it. This decision emphasize the importance of the notice requirement in a premises case. The doctrine of res ipsa loquituir, alleged by plaintiff, is misplaced here. Frankly, any reference to the doctrine operates as a tacit admission that shows that plaintiff cannot prove notice. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Court Denies Discontinuance Request Due to Improper Venue (NY) May 27, 2016 < Back Share to: A recent decision dealt with an interesting tactical issue and the consequences for filing in the wrong venue. In Marinelli v Wimmer, plaintiff filed a personal injury case in Kings County Supreme Court (which is Brooklyn - a plaintiff friendly venue). However, the defendants contended venue was not proper because plaintiff no longer lived at the address as pleaded in the complaint and moved to change venue to Suffolk County. In response, the plaintiff filed a cross-motion for leave to discontinue the case without prejudice if the Court granted the motion to change venue. Plaintiff intended to re-file the action in Kings County, and plead a different Brooklyn address. The Kings County Supreme Court issued a decision changing venue to Suffolk County, and denying the plaintiff’s cross-motion to discontinue. The plaintiff filed an appeal to the Second Department Appellate Division, admitting that venue was not proper in Kings County, but arguing that his cross-motion to discontinue should have been granted by the trial court. The appellate decision held that an application to discontinue should generally be granted; however a plaintiff is not entitled to this relief as right, but with the sound discretion of the court. A court should not grant a motion to discontinue when “the discontinuance would prejudice a substantial right of another party, circumvent an order of the court, avoid the consequences of a potentially adverse determination, or produce other improper results.” Applying these principles, the Court found that the Kings County Supreme Court providently exercised its discretion in denying the plaintiff’s request for leave to discontinue, since the request was improperly sought to avoid the consequences of the Court’s decision to change venue to Suffolk County. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Workers’ Compensation Carriers can Subrogate against tortfeasor, even though Plaintiff Couldn't (NJ) December 14, 2018 < Back Share to: On December 14, 2015, David Mercogliano, an NJ Transit employee, was driving a car owned by NJ Transit when he was struck by another motorist. As a result of the accident, Mr. Mercogliano only suffered minor injuries and therefore his injuries did not overcome the verbal threshold. He was barred from suing the other driver. However, he was still able to receive workers’ compensation benefits through NJ Transit’s workers’ compensation carrier. They paid out a total of $33,625 as compensation for his medical bills and indemnity benefits. In an effort to recoup the money that was paid out, the workers’ compensation carrier filed a subrogation action against the driver of the other vehicle. A Superior Court judge granted summary judgment against the workers’ compensation carrier, ruling that the Automobile Insurance Cost Reduction Act barred the subrogation claim. The workers’ compensation carrier appealed this decision and the Appellate Division overturned the lower court’s ruling. Last week, the three-judge panel held that even though Mr. Mercogliano could not recover benefits from his own automobile insurance or sue the other driver for non-economic damages, the workers’ compensation carrier had the right to file a subrogation claim. Their rationale was all about legislative intent. The court said that the Workers’ Compensation Act applies, not the Automobile Insurance Cost Reduction Act. And if the legislature wanted to bar these claims they would have included that language in the AICRA, which was drafted 87 years after the WCA, but they didn’t. What does this ruling mean? Well, if it is determined that a plaintiff’s injuries do not meet the verbal threshold in NJ, that doesn’t mean the insurance carrier is in clear. Yes, the insurance carrier won’t need to pay out non-economic damages to the plaintiff, but if the plaintiff was in the scope of his employment at the time of the accident, the motor vehicle insurance carrier needs to be aware of a potential subrogation claim from his employer’s worker’s compensation carrier. Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Don’t Be Shocked by Denial of Labor Law 240(1) (NY) June 18, 2021 < Back Share to: The New York Supreme Court, Kings County has recently held that if a plaintiff is doing non-electrical work at a construction job site but touches live electrical wires and then falls from a height after being electrocuted, that plaintiff is not entitled to summary judgment pursuant to Labor Law 240(1). In Synysta v. 450 Partners LLC, the plaintiff, a painter, was on a Baker’s scaffold and was spackling the tops of columns 10-12 feet high. The plaintiff’s employer had been hired to paint walls, ceilings, and doors, at a renovation. In the process of performing this work, the plaintiff was trying to reach around the column and held onto an electrical box for support. The plaintiff claimed that when he grabbed the electrical box he received an electric shock, which caused him to fall from the Baker’s scaffold to the ground and sustain injuries. The plaintiff asserted causes of action against the property owner and the general contractor based upon alleged violations of Labor Law 240(1), 241(6), 200, and common law negligence, but only moved for summary judgment on the Labor Law 240(1) and 241(6) claims. The plaintiff’s motion for summary judgment on Labor Law 240(1) and 241(6) claims centered on the argument that the Baker’s scaffold was defective in some way and did not have proper safety railings. However, the Supreme Court held that although the plaintiff was performing work covered under Labor Law 240(1) when he was injured, his work had nothing to do with the electrical box which contained the live wires – and therefore the defendants had not violated Labor Law 240(1) by failing to provide safety materials specifically to prevent plaintiff from falling as a result of being electrocuted. Thanks to Shira Strauss for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Duty of Care as to Open and Obvious Dangers is not always Open and Obvious August 16, 2024 < Back Share to: In Robinson v. Seven Springs Mountain Resort, Inc. , Plaintiff Robinson was a business invitee at Seven Springs, playing a round of disc golf when she slipped on a steep slope consisting of loose gravel, and fractured her ankle. Seven Springs field a Motion for Summary Judgment arguing that Robinson “failed to present prima facie evidence that Seven Springs owed a duty of care to her because the condition of the hillside was obvious.” See 2024 WL 2955263, at 1 (Pa. Super. Ct. June 12, 2024). The trial court granted Seven Springs' Motion for Summary Judgment, stating “the natural condition was known and obvious” since Ms. Robinson knew “she was traversing a steep slope with patches of rocky and loose dirt.” Id. at 3. On appeal, the court reversed Seven Springs' Motion for Summary Judgment, holding that there was a question of material fact as to whether the hazard was open and obvious. The Court explained that, based on the Restatement (Second) of Torts § 343A, “Seven Springs is not relieved of its duty of care for open and obvious dangers when it has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it.” Id. at 5. The Court explained that Robinson’s testimony about the condition of the loose rocks was not “unquestionably obvious.” Id. at 4. Lastly, the Court reasoned that Seven Springs could anticipate that “any invitee's attention may be distracted while playing disc golf and attempting to retrieve discs mid-play.” Id. at *5. Robinson v. Seven Springs Mountain Resort Inc. .pdf Download PDF • 174KB Previous Next Contact

Teresa G. Bohne Partner Texas tbohne@wcmlaw.com +2147852187 Professional Experience Teresa joins WCM committed to providing insurance coverage, bad faith, and legal liability representation for insurance companies and claims administrators. Teresa started her own law firm as a sole practitioner in 2022. She successfully represented insurance companies and policyholders on multiple lines of business, with particular emphasis involving insurance coverage opinions, and litigation of declaratory actions and bad faith actions regarding commercial general liability and commercial motor vehicle liability, including parameters of legal and statutory liability. Her work included legal liability analysis and appellate analysis as needed. Prior to 2022, she practiced with various law firms in differing roles, serving as partner, of counsel, co-counsel of record, expert consultant, and expert witness, and provided legal analysis and writing regarding a litany of insurance coverage and bad faith issues, as well as appellate and legal liability analysis and opinions. Her consultation and co-counsel work spans over multiple jurisdictions in state and federal courts. She has also served as a mediator and arbitrator on many insurance coverage, bad faith and legal liability cases. Prior to 2005, she worked for many years in-house at the home office of a major property and casualty insurance company. During this time, she served and learned in many roles, including as a Coverage and Large Loss Attorney, an Associate General Counsel, a Reinsurance Operations Manager, and the Corporate Insurance Manager including management of corporate insurance placements, policy provisions, premium payments, and risk control issues. Teresa initially practiced as an appellate and medical malpractice defense advocate, as well as handling insurance coverage and bad faith issues and cases. Her litigation experience includes jury and bench trials from start to finish, including the appellate briefing and advocate process. She has written many appellate briefs, and argued appeals at the Texas Court of Appeals, the Fifth Circuit Court of Appeals, and the California State Court of Appeals (by admission pro hac vice ). Professional Activities Teresa is a member of the American Bar Association, Tort and Insurance Practice Section, and of the Insurance Section of the State Bar of Texas. She has written papers and presented speeches and mock arguments for the American Bar Association Tort and Insurance Section and the Defense Research Institute. She also served as a Vice Chair of the ABA TIPS Corporate Counsel Committee. Teresa has also served as a coach for many moot court and mock trial teams. She was elected to be an Honorary Member of the Southern Methodist University Law School Board of Advocates, having served as a coach for several moot court teams. She also coached and assisted with several high school mock trial teams, including teams from the Cistercian Preparatory School of Dallas, the Cambridge School of Dallas, and Thomas Jefferson High School. While in law school, Teresa was a member of the Order of Barristers, and Chair of the Student Recruitment and Student Orientation Committees. While in college, she was a member of Student Congress and Student Foundation. Teresa enjoys spending time with her family and friends and dog Coco, taking long walks, and is training to become a certified yoga instructor. Publications Fundamentals of Reinsurance and Reinsurance Markets ; co-authored with Steve McElhiney; book published by International Risk Management Institute, Inc., September 2011. Multidisciplinary Practice. American Bar Association Annual Meeting; New York, New York; June 2000. Independent Counsel: A Multistate Review. Defense Research Institute Seminar; Boston, Massachusetts; October, 1998. Also presented for DRI Seminar; Des Moines, Iowa; May, 1998. Additional Insureds: Recent Issues . American Bar Association Seminar; Los Angeles California; February 1998. The Tripartite Relationship. American Bar Association Seminar; Tucson, Arizona; March, 1997. Additional Insureds. American Bar Association Tort and Insurance Practice Section Seminar; San Antonio, Texas; February 1997. Recent Developments Regarding the Attorney-Client and Attorney Work-Product Privileges. Texas Association of Defense Counsel Seminar; Crested Butte, Colorado; January, 1994. Non-Statutory Privileges and Immunities from Discovery . Texas Association of Defense Counsel Seminar; Austin, Texas; September, 1993. Also presented at Tarrant County Legal Secretaries Association Seminar; Fort Worth, Texas; September, 1993 and State Bar of Texas Continuing Legal Education; Legal Assistants Division Seminar; Fort Worth, Texas; June, 1993. Annual Survey of Federal Law; Evidence , 24 Tex.Tech.L.Rev. 645 (Spring 1993). Crime: Who Pays the Price? ; CLE for attorneys and clients; Cowles & Thompson; October, 1991. Tips Regarding Expert Testimony . CLE for attorneys and clients; Cowles & Thompson; March, 1991. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Baylor University School of Law. B.B.A., Baylor University. Bar Admissions Texas Court Admissions U.S. Court of Appeals for the Fifth Circuit Eastern District of Texas Northern District of Texas Southern District of Texas Western District of Texas

News Default is not a Total Loss (NY) September 24, 2020 < Back Share to: In a personal injury action, plaintiff Castaldini claims personal injury when a propane tank exploded at the home of defendant Walsh. Upon defendant’s failure to answer, plaintiff’s motion to enter default judgment was granted by the trial court, and the case was sent to inquest for a trial on damages. At the inquest trial, plaintiff testified as to his injury and submitted a written sworn statement by one of his treating physicians. Defendant objected to the admission of the sworn statement arguing that he should be allowed to cross-examine the physician testifying as to plaintiff’s injuries. The trial court admitted the sworn statement into evidence and handed down a judgment totaling $275,000 for plaintiff’s past and future suffering. Defendant appealed to the Second Department arguing plaintiff failed to establish the accident caused his injuries and argued he had a right to cross-examine the physician. The Second Department held in Castaldini v. Walsh, that a defaulting defendant admits all allegations in the Complaint as true, but does not admit the plaintiff’s conclusory statements as to its damages. Once defendant defaulted by failing to answer the Complaint, plaintiff did not need to prove the accident caused his injuries. The purpose of an inquest court is to ascertain the amount of damages. (Gonzalez v Wu, 131 AD3d 1205, 1206; see Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d at 730; Arluck v Brezinska, 180 AD3d 634; Jihun Kim v S & M Caterers, Inc.,136 AD3d 755, 756). The Second Department agreed with defendant that he had a right to cross-examine the plaintiff’s physician. Since the inquest is to ascertain damages, and defendant is present at the inquest, then plaintiff must make any treating physicians available for cross-examination. See Reynolds Sec. v Underwriters Bank &Trust Co., 44 NY2d 568, 572. Thus, the trial court should not have admitted the physician’s sworn statement into evidence and the case was remitted back to the trial court for a new inquest on the amount of damages. The key takeaway in this case is that even though a defendant failed in timely answering the complaint, and thus cannot argue causation, a defendant can still, and should, object as to plaintiff’s evidence for damages. Moreover, at that inquest trial for damages, a defendant has the right to cross-examine plaintiff’s treating physicians to contest damages even when in default. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent F. Terrasi with and questions. Previous Next Contact

News District Court of New Jersey Holds Additional Insured Coverage is Triggered by Allegations of Vicarious and Direct Liability July 19, 2024 < Back Share to: The District Court of New Jersey recently considered whether an insurance company’s duty to defend an additional insured is triggered by allegations of direct liability, vicarious liability, or both under New Jersey law. Navigators Specialty Insurance Company v. Citizens Insurance Company of America , 2024 WL 3287848 (D.N.J. July 3, 2024). In the underlying lawsuit, a construction worker sued his employer, Men of Steel, and the general contractor at the project site, AJD Construction. Id. at 1. AJD’s insurer, Navigators Specialty, tendered the defense of AJD to Citizens Insurance, Men of Steel’s insurer. Id. Citizens Insurance disclaimed coverage, asserting the claims of direct liability raised against AJD were not covered by its policy’s additional insured provision. Id. The Policy stated that an additional insured is only covered “with respect to liability for bodily injury … caused, in whole or in part by, the acts or omissions” of Men of Steel or someone acting on its behalf. Id. at 3. Citizens Insurance argued the “in whole or in part” language limited the Policy’s coverage to claims of derivative liability. Id. at *4. Navigators Specialty contended the language encompassed claims of derivative and direct liability. Id. On review, the Court noted the issue was one of first impression under New Jersey law. Id. Nevertheless, the Court predicted the New Jersey Supreme Court would rule that an insurer’s duty to defend is triggered by allegations of vicarious or direct liability, citing four reasons in support. Id. at *5. First, lower New Jersey decisions evaluating this provision concluded that both types of allegations triggered the duty to defend. Id. Second, District Court precedent affirmed the same interpretation of the “in whole or in part” language. Id. at 6. Third, New Jersey’s approach to “going with the consensus” when interpreting standard form policies indicated the Supreme Court would follow the rationale of other jurisdictions. Id. at 7. The “overwhelming majority rule” is that the “in whole or in part” language triggers a duty to defend allegations of direct and vicarious liability. Id. Finally, under the “plain and ordinary meaning” of the Policy, the provision at issue did not “purport to limit coverage to an ‘injury’ that is ‘caused’ in one particular way or another, direct or vicarious.” Id. at *8. The Court reasoned that, had the Policy intended to limit coverage to claims of vicarious liability, it could have done so. Id. Navigators Specialty Insurance Company v. Citizens Insurance Company of America .pdf Download PDF • 246KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Unlicensed Use of Product Trademarks is not Personal and Advertising Injury August 10, 2017 < Back Share to: The Fifth Circuit recently ruled that the duty to defend “personal and advertising injury” did not extend to the unlicensed use of a product and trademarks. In Laney Chiropractic v. Nationwide, Laney sued its insurer for a declaration of coverage after Nationwide refused to defend Laney against allegations of federal trademark infringement, false advertising, deceptive business practice, breach of contract and unfair competition arising out of Laney’s use of soft tissue massage techniques. Nationwide had determined that the lawsuit lacked an advertising, trade dress or slogan claim and refused to cover the defense. The Fifth Circuit reached its conclusion by reasoning that “[w]hen an insured is accused of using another’s product, they are generally not using another’s ‘advertising idea … because without more, taking and then advertising another’s product is different from taking another’s ‘advertising idea’. The court also did not accept that the false-advertising allegation that Laney’s website mimicked underlying plaintiff’s style of doing business constituted a trade dress claim. The court said trade dress protection is not designed for “patent-like rights” in innovative product designs, and “protects the distinctive look of the product, not the functional product itself.” As creative an insured can be in seeking coverage, the underlying claim governs an insurer’s duty to defend. Thanks to Hillary Ladov for her contribution to this post. Previous Next Contact

Jonathan H. Adams Counsel Louisiana jadams@wcmlaw.com (504) 203-4393 Professional Experience Jonathan has significant experience in casualty, medical malpractice and civil rights defense. He has extensive knowledge of all aspects of litigation, including strategy, budgeting, discovery, pre-trial motion practice, settlement negotiation, witness preparation and trial. In his free time, Jonathan enjoys reading, playing with his dogs, and visiting his grandchildren. Honors and Distinctions J. Stanford Levy Best Brief Competition, Loyola University School of Law Certified Litigation Management Professional (CLMP) Professional Activities New Orleans Bar Association, Member Louisiana State Bar Association, Member Claims & Litigation Management Alliance, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education Spring Hill College, B.S., Magna Cum Laude Loyola University School of Law, J.D., Cum Laude Bar Admissions Louisiana Court Admissions U.S. District Court Eastern District of Louisiana U.S. District Court Middle District of Louisiana U.S. District Court Western District of Louisiana U.S. Court of Appeals 5th Circuit