News Super Storm Sandy not a Hurricane November 16, 2012 < Back Share to: New York Governor Andrew Cuomo announced that hurricane deductibles in homeowners’ policies were not triggered because there were no hurricane force winds at the time that Sandy hit New York. In addition, the New York Department of Financial Services has imposed a 30-day moratorium on cancellation of homeowners’ policies in “storm-stricken areas.” The Department also indicated it will be monitoring how insurers will be handling such claims. These pronouncements, however, do not alter policy language, so it will be interesting to see whether there is any impact on insurer's coverage determinations. Thanks to Mendel Simon for his contribution to this post. Previous Next Contact

News Ironclad Arbitration Clause Shields Insurer (NY) October 25, 2019 < Back Share to: The First Department recently gave New York insurers reason to be confident in the arbitration clauses in their policies and the strength of arbitration determinations resulting therefrom in Matter of McKenna, Long & Aldridge, LLP v Ironshore Specialty Ins. Co. In this appeal the insurer, Ironshore was co-defendants with a number of entities collectively known as Eidos. The Southern District of New York held Eidos was bound by the arbitration contained in the insurance policy issued by Ironshore as an intended third-party beneficiary. Eidos’ appeal sought to reverse that finding and, alternatively, to reverse the arbitration award, arguing it was issued in manifest disregard of the law. The First Department unanimously rejected both arguments. First, the appellate court held the dispute was clearly arbitrable, ruling that the arbitration clause referring to “any controversy, claim or dispute arising in connection with [the insurance] policy [issued by Ironshore,” reflects “such a broad grant of power to the arbitrators as to evidence the parties’ clear intent to arbitrate issues of arbitrability.” Eidos also tried to argue the arbitration panel knew of a governing legal principle that was well defined, explicit, and clearly applicable and yet refused to apply it or ignored it altogether. The First Department ruled Eidos could not make this showing, because even though the panel considered the applicability of Delaware law, they distinguished the proposed governing precedent—meaning, that the arbitration panel may have made a mistake of law, but they did not manifestly disregard it. This case gives fresh, and clear support for the arbitration clause used here and reinforces the extremely high standard required to disturb an arbitration award. Indeed, even an express mistake of law in and of itself would not be enough to reverse the ruling. Insurers should feel confident in their arbitration language if it resembles the language in this case, and should feel confident that the result reached in arbitration will stand. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Second Circuit to Decide Whether ‘Grammarian’s Argument’ Governs IP Exclusion March 26, 2020 < Back Share to: In a prior Of Interest post, we highlighted a Southern District of New York opinion in which the court held a policy’s IP exclusion barred coverage for an underlying lawsuit in which Hartford’s insured Spandex House was sued for copyright infringement. The parties have now filed their appellate brief in the Second Circuit, narrowing the issues before the Appellate Court. The exclusion at issue bars coverage for personal and advertising injury arising out of “any actual or alleged infringement or violation of any intellectual property right,” including copyright and trademark, and “any injury or damage alleged in any claim or suit that also alleges an infringement or violation of any intellectual property right.” In this way, the IP Exclusion excludes from coverage cases that include any allegation of an IP violation. The District Court found that this exclusion was unambiguous and applicable. Notably, in between the District Court’s decision and this appeal, the Second Circuit also upheld the unambiguous terms of the IP Exclusion in Lepore v. Hartford Fire Ins. Co., 2020 WL 598539 (2d Cir. Feb. 7, 2020). In light of the fact that the exclusion is likely unambiguous, Spandex House spends much of their brief arguing that the exception to the IP Exclusion applies. In so doing, they rely on what Hartford classifies as a “grammarian’s argument” that distorts the plain text of the exclusion. The Advertising Exception at issue provides that the IP Exclusion does not apply if the suit alleging the violation is limited to “Infringement, in your ‘advertisement’ or on ‘your web site’, of: (a) Copyright….” Spandex House argues that the that “the clause ‘in your advertisement or on your website’” can be “removed from the sentence without changing its basic meaning.” In other words, they argue that the exception applies when the suit alleging the violation is limited to “infringement” and not “infringement in your advertisement.” As Hartford points out, such a reading would give the exception an unlimited meaning, and prevent the IP Exclusion from applying where the suit contained all types of copyright and trademark infringement claims, so long as all of the claims were in fact were for “infringement.” Hartford’s brief keenly points out a prominent example of where Spandex House’s reading would have an absurd effect if implemented. The 26th Amendment provides that “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.” Under Spandex House’s logic, the clause “who are eighteen years of age or older” is a so-called “nonrestrictive relative clause” which can be removed without changing the clause’s meaning. Of course, had this been the interpretation of the 26th Amendment, toddlers would have the right to vote alongside their grandparents. Given their recent decision in Lepore, the Second Circuit is very likely to find that the IP Exclusion is unambiguous. We are hopeful that the Court will not also distort the plain language of an exception to find coverage where the drafters plainly intended there be none. We will keep you apprised of the decision when it is handed down. Thanks to Douglas Giombarrese on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Decision Stinks for Sanitation Worker (NY) September 20, 2012 < Back Share to: In Wagner v. Wody, the plaintiff was injured during his work as a sanitation worker when taking a 30 to 40 gallon garbage bag from the curb in front of the defendants’ home to the sanitation truck. When the plaintiff was turning to throw the bag into the back of the truck, the bag made contact with his leg, and a piece of glass approximately one inch thick and approximately three inches long cut into the plaintiff. Inside of the bag was mail addressed to the defendants, as well as other pieces of broken glass. The defendants moved for summary judgment and the trial court granted the motion. The Second Appellate Department affirmed, holding that “a small piece of glass constitutes ordinary garbage or a common item of trash, the disposal of which is a hazard inherent in the duty of a sanitation worker.” The Court also noted that, although there are certain similar situations where a question of negligence might exist -- such as where heavy construction debris is placed into an ordinary trash receptacle, the small piece of glass was clearly distinguishable. The Court found that plaintiff was responsible for the manner in which he chose to dispose of the trash, throwin this large plastic bag into the sanitation truck. A worker who "confronts the ordinary and obvious hazards of his [or her] employment, and has at his [or her] disposal the time . . . to enable him [or her] to proceed safely . . . may not hold others responsible if he [or she] elects to perform his [or her] job so incautiously as to injure himself [or herself]." Thanks to Jung Lee for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com . Previous Next Contact

News A Significant Injury? No, Just a Transient Rub of Life (PA) March 10, 2016 < Back Share to: The Pennsylvania Superior Court recently upheld a Montgomery Court of Common Pleas jury decision to award no damages in a car accident case. In Gold v. Rosen, No. 3303 EDA 2014, 2016 Pa. Super. 44, (Pa. Super. Feb. 19, 2016, Stevens, J.), the plaintiff was rear-ended by defendant Terri Rosen. She claims to have suffered headaches, back pain and neck pain as a result of the accident. At trial, the parties stipulated that Rosen was negligent and that her negligence caused plaintiff to suffer a neck sprain/strain. However, the defense disputed the extent of Gold’s neck injuries and defense experts testified that her injuries were primarily the result of prior accidents. The jury subsequently found that although Rosen was negligent, Gold was not entitled to a monetary award. Gold filed a motion to overturn the verdict but the trial court denied that motion. Gold then appealed. The Superior Court recognized that not all injuries are serious enough to warrant compensation, even though there may be some pain. The Court noted that Gold had a long history of cervical and lumbar injuries. Thus in circumstances where it was reasonable for the jury to believe that the plaintiff did not suffer any pain or that a preexisting injury was the sole cause of the alleged pain, the nonmonetary verdict should not be disturbed. This is known as the “transient rub of life” doctrine. This is case is worthwhile as a reminder that in cases where the plaintiff has significant pre-existing injuries, a strong presentation of those injuries can significantly reduce the potential award. Thanks to Remy Cahn for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Happy Holidays from Your Friends at Wade Clark Mulcahy! December 22, 2021 < Back Share to: 2021 has presented us all with new challenges. Some anticipated, and some, well, of the Omicron variety. WCM continues to grow, in large part due to the loyalty and collaboration of our friends and clients in the United States and abroad. Please accept our Holiday E-Card, offering our gratitude and best wishes for a better 2022. A Happy and Healthy Holiday Season to all! Previous Next Contact

News Denial Of Summary Judgment Reversed In Trip & Fall Due To “Insignificant” Discrepancy In Height Defect (NY) January 14, 2022 < Back Share to: In Dingman v. Linchris Hotel Corp., NY Slip Op 00168 (2d Dept. 2022), a plaintiff sustained injury in a trip and fall in a hotel lobby undergoing construction where the lobby floor was being re-tiled. Some parts had new tile, while others had no tile at all, exposing the cement floor. Plaintiff tripped on the difference in elevation from the new tiles and the lobby floor, which the hotel manager testified was approximately ¼ inch in height difference. The hotel moved for summary judgment arguing the “defect” on the lobby floor was trivial. The trial judge denied summary judgment to the defendant and the Second Department overturned that decision thereby granting summary judgment to the hotel and dismissing the claim. “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses. In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury’ (Trincere v County of Suffolk, 90 NY2d at 978. There is no ‘minimal dimension test’ or per se rule that the condition must be of a certain height or depth in order to be actionable.” By submitting photographs and testimony from the construction workers, the Second Department reasoned that the small height difference between the newly tiled floor and the cement sub-flooring was “physically insignificant.” The Appellate Court took note that the physical defect and the surrounding circumstances did not increase the risk of a tripping hazard. Plaintiff could not establish any triable issues of fact in opposition to that argument, and the claims against the defendant were dismissed. The Court showed some clarity in affording property owners some relief for trivial defects on a premises liability claim. In the event of a reported personal injury involving a trip and fall, property owners/tenants would be prudent to take multiple photographs immediately upon learning of the accident. The photographs of the alleged defect should be taken, up close and preferably with a measurements to establish the height differential of the alleged defect. Photographs should also be taken of the surrounding scene of the accident to establish that the defect did not increase the risk of a trip and fall. Taking down statements and photographs of the scene of the accident can also prove vital in defending against liability if and when a claim heads to court. Thanks to Raymond Gonzalez for his contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News PA’s Appellate Division: “Household” Is Ambiguous as a Matter of Insurance Contract Interpretation. June 18, 2012 < Back Share to: In the case of Miller, et al. v. Daniel Poole, et al., Pennsylvania’s Superior Court was faced with the question of whether a homeowner’s policy provided coverage to Poole, a young man who accidentally set his grandmother’s house on fire and thereby damaged the neighbor’s (i.e. Miller’s) house. The homeowner’s carrier argued (and the trial court agreed) that no coverage was owed because Poole did not move into his grandmother’s house until after her death. Thus the carrier argued that Poole was not a “resident” of the grandmother’s “household” for purposes of coverage. The Appellate Division has now reversed the trial court. Relying on case law from other jurisdictions, the Appellate Division held that the phrase “household” was ambiguous as: “It plausibly could mean either that Helen Poole’s relatives qualified as “insureds” (1) if they lived in the same house with her, or (2) if they lived on the premises insured by her under the Wall Rose policy.” Wall Rose is now required to defend and indemnity Poole. Who would have thought that the word “household” was ambiguous? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Court Cleans Up Definition of Employee Under Worker's Comp Law (NJ) August 24, 2012 < Back Share to: One of the key issues in dealing with workers' compensation benefits is who is considered to be an “employee” under the law. Recently, the Appellate Division determined that an employee is not necessarily someone who comes to clean your home. In Lukasik v. Holloway, the Appellate Division reversed the judgment of the workers’ compensation judge who found that a cleaning woman was an employee of the owners of the home where she was injured. The cleaning woman, Luz Lukasik, had contracted with the homeowners to clean their home once per week for the sum of $100. On the first day of her scheduled cleaning she was injured, sustaining a fractured hand and wrist. Thereafter, she returned to work, but had others do the cleaning at her direction. The workers’ compensation court found that Lukasik was an employee under the statute, and that she was entitled to more than 110 weeks of benefits due to her injuries. The Appellate Division reversed, holding that Lukasik was an independent contractor because she retained primary control over what work she would do, when she would do it, and how the work would be performed. Additionally, Lukasik was not substantially financially dependent upon the homeowners for her income, nor were her services somehow integral to the homeowners’ regular business. Lukasik was merely cleaning their home. While the Appellate Division specifically stated that it did not find that cleaning people are always independent contractors, this opinion does clarify where the line will be drawn. Thanks to Christina Fullam-Emerson for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com       Previous Next Contact

News Insurer Has No Duty to Indemnify NY Insured for the Wrongful Death of Another Insured. May 13, 2010 < Back Share to: The Fourth Department, in Cragg v. Allstate Indem. Corp., was recently presented with an issue of first impression. The plaintiff-decedent and her mother lived with her grandparents and were covered under the grandparent's homeowners' insurance policy. The decedent drowned in the grandparent's pool and the decedent's father, who did not live with the decedent, brought an action against the mother on the decedent's behalf. The court held that the insurer did not have a duty to defend the mother against a wrongful death action brought by a noninsured party for the death of another insured party. The court pointed to the policy's coverage exclusion clause, which excluded coverage for "bodily injury to an insured person. . . . whenever any benefit of this coverage would accrue directly or indirectly to an insured person." In other words, it would go against the purpose of the policy to provide coverage to the decedent's mother and allow her to benefit from such coverage. Thanks to Georgia Stagias for her contributions to this post. if you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9544136 Previous Next Contact

News More Baseball Litigation in the News. June 13, 2012 < Back Share to: Tis the season and baseball related litigation is in the news (or we're just baseball happy this week). In New York, as all sports fans, and many non-sports fans, are now well aware, Johan Santana threw the first no-hitter in Mets history on June 1. (Ed. Note: This no-hitter seems largely the result of a questionable foul ball call). In any event, one particularly excited Mets fan in attendance at the historic no-hitter was Rafael Diaz, whose emotions trumped his better judgment, prompting him to run onto the field after the last out. Diaz was arrested and detained for 36 hours before his arraignment in Queens Criminal Court. He now faces prosecution for criminal trespass, and faces up to a year in jail. (He will most likely not face actual jail time, although he may end up with a criminal record, which can be a lifelong detriment.) A notable aspect of Diaz's arrest, as this article points out, is that running onto the field at a sporting event is no longer viewed by sports teams and management as a celebratory event, whereas in years past, running onto the field was practically encouraged. Both Chris Chambliss' pennant winning home run for the 1976 Yankees and the Mets division clinching celebration in 1986 resulted in literally thousands of fans storming each field. Even more recently, nearly every major upset at home in college basketball still results in the a good portion of the student body storming onto the court in celebration. Diaz's case is illustrative of the dynamic nature of the landscape in which we all operate. Trespassing onto a baseball field was once overlooked, but is now prosecuted. Certain injuries, RSD for example, were hardly appreciated or understood until recently, whereas it is now routinely diagnosed (often correctly, often not) and alleged. Regarding discovery, authorizations to access facebook and other social media are now a common discovery demand, whereas no such media existed even ten years ago. Our profession is consistent in that it is always changing, with either new technology, medical advances, or even as to how society views certain actions differently than it did fifteen to twenty years ago. Too bad no one told Mr. Diaz this in the eighth inning. In the meantime, in Philadelphia, the Philly Phanatic is in trouble again. This time he is accused of tossing a woman into a pool while engaging in horseplay. At least, Mr. Met doesn't have these problems and we will leave to the side the question of why the current Yankees don't need a make believe mascot. Special thanks to Brian Gibbons for his contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News New Connecticut Law Provides Tort Protections For Cyber-Savvy Businesses (CT) August 13, 2021 < Back Share to: On July 6, 2021, Connecticut Governor Ned Lamont signed into law a bill designed to incentivize Connecticut businesses to implement stronger cybersecurity practices to combat the rise in cyber and ransomware attacks. In doing so, the state becomes only one of three states, the others being Ohio and Utah, to adopt an incentive-based approach for businesses to improve cybersecurity best practices. The new law, which will become effective on October 1, 2021, gives statutory protection from punitive damages claims brought under Connecticut law in Connecticut state court to those companies who enact reasonable cybersecurity controls. This includes the adoption of a formal written cybersecurity program that contains “administrative, technical and physical safeguards for the protection of personal or restricted information.” The program must also conform to certain cybersecurity standards set forth in the statute, including those established by the National Institute of Standards and Technology (NIST) and the Payment Card Industry (PCI) Security Standards Council, as well as any applicable regulations relevant to the business (e.g., HIPAA or FISMA). Connecticut businesses which do not have strong cybersecurity protocols in place should strongly consider complying with the new law to avoid potential punitive damages exposure from future cyber losses. Thanks to Andrew Gibbs for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact