News Data Sellers Face Increased Risks for Vendor Breaches May 9, 2019 < Back Share to: As data breaches, and claims related to data breaches, become more prevalent, parties that collect or sell data have employed contractual means to insulate themselves from exposure, in the event a third-party vendor mishandles the data. To draw an analogy, think of this in the context of the New York Labor Law - building owners contract with general contractors, who in turn, contract with subcontractors, with indemnification flowing "downstream." The idea being, building owners and general contractors look to protect themselves from liability stemming from the negligence of third parties, and utilize contractual indemnification to protect themselves. The data breach world has a similar dynamic. Parties that process, collect and sell data employ, and employ vendors for various reasons, seek to protect themselves from liability stemming from a vendor's mishandling of data. But according to a recent Legaltech News article on breach exposure, the legal responsibility for a breach may still rest with the original seller of that data, regardless of whatever contractual protections that seller has in place. So much for pushing the liability "downstream!" The legal analysis of data breaches is literally evolving by the day, both federally and state by state. If you have questions about this post, or our cyber-liability practice, please contact Brian Gibbons. Previous Next Contact

News Rush Hour Traffic Bars Recovery In Slip And Fall Action August 18, 2010 < Back Share to: In Thomas v. Boston Props., the plaintiff allegedly slipped on ice that formed on the floor of a revolving door during the evening rush hour. Defendants offered evidence that they had no notice of the condition, never received complaints regarding the accumulation of snow or ice, and never received any reports that the area was poorly lit. In reversing the lower court’s denial of defendants’ motions for summary judgment, the First Department noted that plaintiff’s concession that she did not see the ice was susceptible to the interpretation that it formed as a result of moisture tracked in by pedestrians. Since defendants were not alleged to have created the condition, and the law does not impose an obligation to take continuous remedial action to remove moisture accumulating as a result of pedestrian traffic, the First Department reversed the lower court, holding that the plaintiff failed to demonstrate that the condition existed for a sufficient length of time to place the defendants on notice. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06398.htm Previous Next Contact

Michelle B. Gonsoulin Chief Operating Officer New York mgonsoulin@wcmlaw.com 332-345-4980 Professional Experience As Chief Operating Officer and a key part of the executive team of Wade Clark Mulcahy LLP, Michelle is engaged in all phases of Firm administration including strategic planning, marketing and finances, and she directly manages personnel, facilities, technology, security and the day-to-day operations of the Firm. Michelle brings knowledge and experience from a variety of industries including insurance, hospitality and automotive. Michelle was previously the Chief Financial Officer of a multi-million dollar Non-Standard Auto insurer which exposed her to many of the same issues which impact the Firm's insurance defense practice. More recently, Michelle acted as the Chief Operating Officer of an insurance defense firm in New Orleans for over a decade. Michelle is a Certified Public Accountant, a Certified Insurance Consultant, a Certified Risk Manager and holds a Louisiana Property and Casualty license. Michelle was born and raised in New Orleans and truly loves the culture, the music and the pageantry that are the Big Easy. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education University of New Orleans, B.A. Post Graduate Pre CPA Curriculum Bar Admissions

News NJ Appellate Division Approves Auto Policy's Family Member Exclusion July 7, 2009 < Back Share to: In Cassini v. Soussou, the Appellate Division ruled that an injured driver could not recover from an excess policy purchased by the son of the defendant, due to an exclusion denying coverage when use of a family member owned vehicle other than the named insured's " covered auto" was involved. The Court found the exclusion to be unambiguous, and that excluding coverage for a separately insured family member's use of a noncovered auto was not uncommon, was legally sound and was supported by the policy. http://www.judiciary.state.nj.us/opinions/a5205-07.pdf Previous Next Contact

News NJ Court Dismisses Plaintiff's Claim against Parent (NJ) December 5, 2018 < Back Share to: A motion for summary judgment should only be granted when the record reveals no genuine issue as to any material facts. A recent New Jersey Appellate Court decision examined whether conflicting expert reports served to create a genuine issue of fact to overcome summary judgment. In Platvoet v. Mancini, the plaintiff sued her own mother after she suffered an injury when she fell into the pool on her mother’s property. Plaintiff’s engineering expert found that the pool’s deck was a "dangerous condition," violated applicable codes, and that the defendant should have warned the plaintiff of the dangerous condition on the property. Defendant’s expert disagreed on the condition of the property, whether defendant should have warned the plaintiff, and the cause of the accident. The plaintiff appealed the trial court’s dismissal of her claim, arguing that the conflicting expert opinions created genuine issues of fact that precluded summary judgment. The Appellate Court upheld the dismissal of the plaintiff’s claim, noting that there was absolutely no evidence that the alleged dangerous condition of the pool had anything to do with the accident, and it was undisputed that the plaintiff was thoroughly familiar with the pool configuration. This case is important because it reveals that the mere existence of an expert report may not be enough to create a genuine issue of material fact sufficient to overcome dismissal of a claim. The plaintiff still needs to connect the expert's findings to the cause of the accident. Hopefully the lawsuit did not dominate conversation at this family's Thanksgiving dinner! Thanks to Heather Aquino for her contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Gun dealers strike back -- in Georgia. October 5, 2007 < Back Share to: In 2006, NYC sued gun dealers and argued that their illegal activities had resulted in crime in NYC. The suit is scheduled for trial in January. The dealers responded with a suit of their own in Georgia. That suit has been cleared to proceed. http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1191488595580 Previous Next Contact

News District of NJ Denies Insurer’s Attempt to Dismiss Claims for Sexual Abuse Coverage February 4, 2021 < Back Share to: In School Excess Liability Joint Ins. Fund v. Illinois Union Ins. Co., the United States District Court for the District of New Jersey recently considered whether the plaintiffs, School Excess Liability Joint Insurance Fund (“SEL”), Diploma Joint Insurance Fund (“Diploma”), and School Alliance Insurance Fund’s (“SAIF”) sufficiently pled that they have incurred losses that eroded their retained risk and triggered coverage under the excess insurance policies issued by the defendant, Illinois Union Insurance Company (“Illinois”). The plaintiffs sought defense expenses and liability costs for defending sexual abuse claims. By way of brief background, the plaintiffs are joint insurance funds, i.e., public entities composed of “members” who pool resources to self-insure against losses for claims up to a specific amount, and purchase excess insurance from insurance companies to cover losses that exceed that amount. Defendant Illinois issued multiple excess insurance policies to the plaintiffs. Specifically, the excess policies provided Illinois will pay the “Ultimate Net Loss in excess of the Underlying Coverage that the Insured becomes legally obligated to pay as damages because of the injury or damage to which this insurance applies.” In their complaint, the plaintiffs averred that the policies provide coverage for general liability, which encompasses sexual abuse claims, as the policies specifically identify limits of insurance for “sexual abuse” in the Schedule of Underlying Coverage. Therefore, plaintiffs claimed that Illinois breached its contractual duty and duty of good faith and fair dealing by failing to indemnify the plaintiffs for defense expenses and amounts paid for liability and defense expenses for sexual abuse claims. Upon analyzing whether the plaintiffs asserted a valid breach of contract claim, the court the held that, since the plaintiffs are “self-insured”, i.e., without insurance, pursuant to N.J.S.A. 18A:18B-1 et seq., the plaintiffs have no Underlying Coverage as defined by the insurance policies. Therefore, the court reasoned that, by self-insuring, the plaintiffs bore the burden of paying defense expenses. With respect to whether the sexual abuse claims were covered under the policies, the court compared the averments of the complaint with the policies and, treating the factual averments as true and construing the complaint in the light most favorable to the plaintiffs, held the plaintiffs sufficiently pled the sexual abuse claims were covered by the policies and the plaintiffs payments towards those claims eroded their retained risk and triggered Illinois’ indemnification obligation. In denying Illinois’ motion with respect to the breach of contract claim, the Court focused on the policies’ definition of sexual abuse, which the plaintiffs pleaded fell within the ambit of “General Liability”, and identification of aggregate limits for sexual abuse claims. It is important to note that, upon rendering its decision, the court did not take a position as to whether the plaintiffs would ultimately succeed on the merits of their claims, as this determination could only take place after the completion of discovery. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Premises Coverage Limited to Location, Not Operation (PA) May 3, 2013 < Back Share to: Many commercial carriers seek to control their exposure by limiting coverage to a particular location or a particular business pursuit of the insured. There have been some decisions that have expanded this coverage by finding that a seemingly non-covered loss was "incidental" to the business and therefore covered. This issue recently arose in Am. W. Home Ins. Co. v. Donnelly Distribution, Inc., in which the insured ran a newspaper distribution business and obtained insurance for its distribution facility. The policy contained a "Premises Provision" that limited coverage to injuries arising out of the ownership, maintenance or use of the premises and “operations necessary or incidental to those premises.” The insured was sued by a claimant who injured herself when she slipped on a plastic tie used to bind newspapers together. The injury occurred on a city street and not at the insured’s distribution facility. The insurance carrier denied coverage because the policy’s Premises Provision only provided coverage for operations that are necessary or incidental to the insured premises, not to the insured’s business operations. The Third Circuit court of Appeals upheld the denial because the use of the plastic tie was not necessary for the operation of the distribution center itself. In sum, it found that the wording of the policy limited coverage to injuries arising out of a business location and not the insured’s business operations. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

News NY's First Department examines occurrences in the popcorn lung context. October 31, 2007 < Back Share to: In the case of International Flavors & Fragrances, Inc. v. Royal Insurance, et al., the plaintiffs sought coverage for personal injury claims filed by its workers who were exposed to butter flavoring containing diacetyl and other volatile organic compounds at a microwave popcorn packaging plant in Jasper County, Missouri. The workers alleged that the exposure resulted in lung impairment and other respiratory system injuries. The defendant insurers accepted coverage but sought to employ multiple deductibles -- deductibles that were quite high. The plaintiffs objected and filed suit. In affirming the lower court's grant of summary judgment, the First Department held that under the policies' definition of occurrence, "the exposure of numerous persons to a hazardous condition cannot be deemed a single "occurrence" in the absence of any identifiable precipitating event or accident." http://www.courts.state.ny.us/reporter/3dseries/2007/2007_08122.htm Previous Next Contact

News 38 Allegations But A Bad Faith Claim Ain’t One (PA) September 24, 2021 < Back Share to: In Brown v. Liberty Mut. Ins. Co., the Eastern U.S District Court for Pennsylvania granted the defendant’s motion to dismiss against a plaintiff’s bad faith claim citing statutory insurance violations against the defendant. The plaintiff was involved in a motor vehicle accident, and sought benefits form her insurer for uninsured motorist benefits. As a result, the plaintiff brought a bad faith claim against the insurer in the initial complaint. The court dismissed the initial bad faith claim made under 42 Pa C.S. § 8371, but allowed the plaintiff to amend and replead the complaint. After amendment, the court still ruled in favor of the defendant. While plaintiff alleged “dilatory” and “abusive claim handling” in the investigation and negotiation of her UIM claim, the court concluded that the amended complaint’s 38 ways in which Liberty Mutual may have acted in the bad faith, they were all merely conclusions. The Court reminded the policyholder that merely because you have a particular policy limit, that is the “theoretical maximum that an insured could recover.” It is not the de facto value of a claim. Thus Liberty Mutual’s motion to dismiss the bad faith claim with prejudice was granted. In order to make a bad faith claim, the policyholder must show that there was no reasonable basis to deny a benefit, and demonstrate evidence that the insurer knew or recklessly disregarded its knowledge of a reasonable basis. A mere disagreement over a settlement claim does not reach this level. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News No Doctor-Patient Relationship Created For Statutory Medical Examinations September 28, 2008 < Back Share to: In Bazakos v. Lewis, the litigious plaintiff claimed Dr. Lewis injured him when the doctor examined plaintiff during an independent medical examination performed on behalf of tortfeasors in a separate personal injury action stemming from a motor vehicle accident. The trial court dismissed this negligence action deeming it "founded in medical malpractice" bound by a 2 ½- year statute of limitations that was untimely commenced. The Appellate Division, Second Department reversed finding plaintiff's claim was properly brought as a negligence action and timely filed within the 3-year statute of limitations. This decision examines the relationship inherent in the performance of a statutory medical examination, the legislative intent of a shorter statute of limitations for malpractice claims and the legal principle of stare decisis. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07081.htm Previous Next Contact

News WCM Is Pleased to Announce That Colleen Hayes Has Been Promoted to Counsel. June 30, 2017 < Back Share to: Effective July 1, 2017, WCM is pleased to announce that Colleen Hayes has been promoted to the rank of counsel. Colleen, who is based in WCM's Philadelphia office, focuses her practice on commercial work and specifically insurance contract interpretation and coverage and bad faith litigation. Colleen joined WCM after her 2011 graduation from Villanova University School of Law where she graduated magna cum laude and was elected to the Order of the Coif. She is also a cum laude graduate of Villanova University where she received a B.A. in Psychology. Colleen is barred in New Jersey and Pennsylvania (with a pending admission in New York). She was recently elected to the Executive Committee of the Philadelphia Association of Defense Counsel. Previous Next Contact