News Watch Where You’re Walking in NY October 12, 2011 < Back Share to: In [i]Vazquez v. Genovese Drugs, Inc[/i]., the plaintiff sustained injuries after tripping and falling over a raised portion of a rug at the entrance to the defendants' drugstore. However, at her deposition, the plaintiff testified that everything looked “normal” and that she did not notice anything until [i]after[/i] she fell. The defendants moved for and were granted summary judgment. On appeal, the Appellate Division, First Department affirmed holding that the plaintiff failed to offer any evidence as to actual or constructive notice and that all observations as to the rug were made after she fell. Furthermore, without evidence of a defect, the drug store did not have to demonstrate when it last inspected the rug. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/REPORTER/3dseries/2011/2011_06982.htm Previous Next Contact

News IRS Wants $29 Million for Artwork That Can't Be Sold August 24, 2012 < Back Share to: The heirs of New York art dealer Ileana Sonnabend have been placed in quite the quandary. They have inherited a work of art that cannot legally be sold -- but the IRS claims that they owe $29 million in taxes based on their appraised value of the work. Robert Rauschenberg was an American artist known for his unique "combines," in which he put together various objects, often to accompany paintings. The work at issue here, Canyon, included a stuffed bald eagle. Sale of a bald eagle is illegal under federal law. Indeed, possession of a bald eagle, alive or dead, is a violation of the Bald and Golden Eagle Protection Act, but a waiver was obtained for this work years ago because it was shown that the eagle was killed before the law went into effect. Because of that law, it would be illegal for the heirs to sell the work. But the IRS's Advisory Law Panel put a valuation of $65 million on the work, allegedly because it could, in theory, be sold on the black market. That appraised value created a tax bill of more than $29 million. The ruling has been challenged in tax court, and we will continue to follow this matter. If you would like more information, please write to Mike Bono at mbono@wcmlaw.com       Previous Next Contact

News What’s "Exceptional" about a Late Notice to a Public Entity in NJ October 4, 2012 < Back Share to: The New Jersey Tort Claims Act is the New Jersey Legislature’s answer to the State courts’ attempt to abrogate common law sovereign immunity. This legislation permits certain tort actions against public entities, but it places significant limitations on a plaintiff. One of those limitations is a requirement that a potential plaintiff give the public entity notice of the claim before filing suit. To this end, a claimant must file a Notice of Claim with the public entity within 90 days of accrual of the claim to permit it time to investigate and, perhaps, resolve it. But what happens when a plaintiff fails to file in 90 days? The statute says that the claimant must then show exceptional circumstances to permit a late notice. What exactly qualifies as exceptional circumstances is a matter in that the New Jersey Supreme Court recently took up oral argument of D.D. v. University of Medicine and Dentistry of New Jersey. In D.D. , the plaintiff sought to file a claim when her AIDS status was revealed despite her expectation of privacy of this confidential information. She wrote to UMDNJ to demand that it stop disseminating the information. She also contacted an attorney who met with the school to address the situation. However, the attorney never filed a notice of claim. The plaintiff followed up with the attorney, but he did not take her calls. After 90 days expired, she sought out a new attorney. The Supreme Court justices grilled UMDNJ’s counsel on the issue of exceptional circumstances and whether attorney negligence is "ordinary" "these days." Justice Albin noted the plaintiff’s poor health and unsuccessful efforts to reach her counsel. Albin suggested that an average person would not know about the 90-day deadline. UMDNJ’s counsel pointed out that the current state of the law is that ignorance of law is not sufficiently exceptional. We’ll have to wait to see whether the Supreme Court agrees. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News WCM Attorney Appointed to Vice-Chair of DRI Subcommittee. January 8, 2019 < Back Share to: WCM is pleased to announce Counsel Colleen Hayes was recently appointed the Co-Vice-Chair for Social Media for the DRI’s Young Lawyers Steering Committee. The selection process draws from a national pool of applicants from all practice areas within the defense bar. In her role as a Steering Committee Member, Colleen recently wrote an article offering advice to young attorneys on how to begin developing business. For more information about this post, please contact Colleen at chayes@wcmlaw.com . Previous Next Contact

News But They Acted So Nice! Pleasant Social Interaction Does Not Excuse Late Notice of Claim April 6, 2012 < Back Share to: Disclaimers of coverage based on untimely notice are always a source of controversy, and it is interesting to see how various jurisdictions deal with the issue. Recently, the Connecticut Supreme Court made new law concerning the scope of an insured’s duty to notify its insurer of a potential claim. The Court ruled that the insured cannot excuse late notice simply because he spoke with the claimant who did not indicate that he would bring a claim. A subjective belief that there would not be liability does not excuse late notice where the circumstances would have led a reasonable person to believe that he/she could potentially be liable. In Arrowood Indem. Co. v. King, the insured’s son was driving an ATV and used a rope attached to the ATV to tow the claimant on a skateboard. The claimant fell off the skateboard and suffered severe head injuries. The insureds did not notify their insurance company of the accident because they met the injured boy’s parents and the parents did not indicate that they intended to bring a lawsuit. The court ruled that regardless of the insureds' belief based on the social interactions between the parents, a reasonable person would have believed that liability may have been incurred because of the severity of the injury. Therefore, the insureds failed to provide timely notice and the insurer could deny the claim as long as it proved prejudice. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com   Previous Next Contact

News Claims Of Bad Faith And Vicarious Liability Fall Like Dominoes With Speculative Damages (PA) November 24, 2021 < Back Share to: In an action brought by the Moses Taylor Foundation (the “Foundation”) in the Middle District of Pennsylvania, it sought to recover damages for an alleged breach of contract by Coverys and its primary insurer (“Coverys”) for failure to negotiate an appropriate settlement in a previous lawsuit. Moses Taylor, additionally, uniquely asserted a claim for bad faith for almost exhausting the available limits of insurance as well as vicarious liability through the breach of contract claim. In response, Coverys argued the breach of contract claim should be dismissed because the Foundation compiled and pled speculative damages, and therefore, the required predicate cause of action necessary to litigate a claim of bad faith––essential under 42 Pa. Con. Stat. § 8371––could not be established. Specifically, given that the insurance policy limits were not exhausted and there were no pending lawsuits utilizing the same limits, Coverys argued that the claimed damages were too speculative. Likewise, such a failure to establish the necessary cause of action disappeared the Foundation’s vicarious liability claim as well because, given the word’s syntactical underpinnings, “vicarious” implies a predicate cause-of-action. Under Pennsylvania law, damages are speculative when uncertainty exists concerning the existence of damages, not the amount, and the Court in Moses Taylor held that the possibility of future suits against the Foundation was not concrete enough to fit the law’s corporeal requirement. Therefore, like dominoes, the claims for bad faith and vicarious liability were downed in a fashion that would have made Rube Goldberg smile. This case represents the importance of attention to detail and provides another arrow in the litigator’s tactical quiver. Thanks to Richard Dunne for his contribution. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Open and Obvious Not Obvious Enough (NY) May 11, 2016 < Back Share to: Business owners have a duty to keep their premises safe and secure, and to protect invitees from potential hazards. One of the primary defenses in premises liability matters is that plaintiff was injured by an “open and obvious” condition, meaning a condition readily viewable by plaintiff. In Johnson-Glover v Fu Jun Hao Inc., plaintiff alleged that she was injured when she tripped and fell on a pulley bag/wheeled shopping bag that had a protruding metal stand that was left in one of the aisles of defendant’s store. At her deposition, plaintiff testified the aisles in defendant’s store were full of merchandise—making it difficult to pass—but that she saw the wheeled shopping bag in the aisle before she tripped over it. Defendant moved for summary judgment, arguing that the wheeled shopping bag was an “open and obvious” condition for which it owed no duty to plaintiff. The First Department upheld the denial of defendant’s motion for summary judgment. The court agreed with the defendant that the wheeled shopping bag, per plaintiff’s own testimony, was an “open and obvious” condition. However, while the court determined that defendant had no duty to warn plaintiff of the “open and obvious” condition, defendant failed to establish that it satisfied its obligation to maintain the store in a reasonably safe condition. The store manager’s deposition testimony that the store would occasionally leave merchandise in the aisles for several hours after a delivery raised an issue of fact as to whether defendant created the hazardous condition, and failed to establish that the store’s cleaning schedule deprived it of actual or constructive notice of the condition. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News New FSMA Rules Finally Issued! January 5, 2013 < Back Share to: At long last, the first two new FSMA rules have been issued. The first rule requires manufacturers of processed foods sold in the United States to come up with ways to reduce the risk of contamination. The second rule targets E. coli in fruits and vegetables by targeting the “four Ws” — water, waste, workers and wildlife. The only question now is – will Congress actually provide the funding necessary to implement the rules? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Insufficient Evidence on Aisle 5 (PA) October 19, 2018 < Back Share to: On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim. Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident. Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case. Thanks to Melisa Buchowiec for her contribution to this post. Please email Brian GIbbons with any questions. Previous Next Contact

News Do As I Say, Not As I Do: Insurer Must Pay Benefits Despite Father's Misrepresentation May 15, 2008 < Back Share to: As parents, we counsel our children to be forthright and trustworthy in their business dealings. But some parents forget to take their own advice. In Rutgers Casualty v. LaCroix, Mr. LaCroix dutifully filled out an application for auto insurance but failed to list his 18 year old daughter as a licensed resident of his household in order to pay less in premium. His daughter was later involved in a serious accident while driving one of her father's cars. When the daughter submitted a claim for PIP benefits, Rutger's denied it and filed an action seeking a declaration that the policy was void ab initio and that it had no obligation to pay any PIP benefits. The New Jersey courts had previously upheld the denial of PIP benefits where a spouse was not listed as a resident member of the named insured's household. In that earlier case, the court had to decide whether the injured spouse was akin to an "innocent insured" who is entiled to coverage or whether the sins of a husband should be visited on his wife. Given the close relationship between adult spouses, the court refused to permit the wife to benefit from her husband's mispresentation and denied her PIP benefits. On the other hand, courts have awarded PIP benfits to an innocent party where, despite a named insured's misrepresentations, the injured party is unrelated to the named insured and is hurt in the named insured's vehicle. LaCroix was a close call. The motion court voided the policy ab initio and held that the daughter could not obtain PIP benefits based on her father's misrepresentations. The Appellate Division upheld the rescission but ordered Rutgers to pay the statutorily minimum PIP benefits. The New Jersey Supreme Court began by noting that recission was an equitable remedy, designed to promote justice and fairness. You see where this decision was going. The daughter was described as "a dependent child, newly licensed, only recently of driving age, and living with her parents...who placed her trust in her father" in insurance matters. Now we know that the insurer is in deep troube. Thus, in "these exceptional circumstances," the Supreme Court upheld the recission but ordered Rutger's to pay the statutorily minimum PIP benefits. Whether LaCroix is an anomaly remains to be seen. When pitting the equities of an injured party against an insurer, the personal interests frequently trump the corporate. On that level, LaCroix is not an ususual decision. However, the real danger is that LaCroix will result in a discomforting level of unpredictability in the battle against insurance fraud. http://lawlibrary.rutgers.edu/decisions/appellate/a4006-05.opn.html Previous Next Contact

News "Don't Deal with Lawyers" October 16, 2007 < Back Share to: Lawyer Elana Glatt was married recently in Manhattan and has now sued her florist for $400,000 because he allegedly substituted pastel pink and green hydrangeas for dark rust and green. These substituted flowers apparently clashed with the linens, favor boxes, and the wedding cake. The cost of the flowers was $27,000. The florist responded to the suit by saying his father told him, "Don't deal with lawyers. Maybe he was right, God bless his soul." And on a personal note, as the father of three daughters, we will be happy with any color and any bloom available, and $27,000 is out of the question. http://www.nytimes.com/2007/10/16/nyregion/16flowers.html?_r=1&ref=todayspaper&oref=slogin Previous Next Contact

News Handing Ring to Medical Technician Created Bailment October 6, 2011 < Back Share to: As if we didn’t have enough reasons to fear the doctor… In [i]New York Cent. Mut. Ins. Co. v. Med. Diagnostic Imaging[/i], the Poughkeepsie County City Court, was recently asked to determine if a medical provider was responsible for an engagement ring that was either lost or stolen after the technician requested that plaintiff remove it before undergoing a PET scan. Plaintiff’s subrogror, Rousseau, went to MD Imaging to undergo a PET scan and a CAT scan. At no point before the test did anyone advise Rousseau that she would need to remove her jewelry. In addition, there were no lockers or safes for personal belongings and no signs about what to do with one’s personal belongings. When the technician met with Rousseau, he did not tell her to remove her jewelry. It was only when Rousseau was alone and situated on the PET scan machine when the technician instructed Rousseau to remove her engagement ring. Upon taking the jewelry, the technician stated, “Don’t worry, I’ll take care of it.” The technician placed the ring atop the hamper in the PET scan room and it was never found again. After trial, the court found that plaintiff had established a bailment between the parties. This put the burden on the defendant failed to come forward with a reasonable explanation for the loss, which it did not. The court noted that had the defendant come forward with an adequate explanation, plaintiff would have had to prove negligence. Thanks to Gabriel Darwick for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_21345.htm Previous Next Contact