News WCM Wins Summary Judgment in Philadelphia Penile Numbing Cream Products Case. August 9, 2017 < Back Share to: Partner Bob Cosgrove and associate Matt Care were awarded summary judgment in Philadelphia County in the case of Lowe v. The Kama Sutra Company, et. al. In Lowe, the plaintiff, a MMA fighter, sued the designer, manufacturer, and distributor of a prolonging gel, meant to prevent premature ejaculation, after alleging injuries to his penis after repeated use. Lowe utilized the gel in combination with other products and alleged that the gel caused permanent disfigurement to his member and decreased sexual performance. After years of discovery and countless depositions, WCM was able to convince the court that our client, a wholesale distributor of adult novelties and romance products, did not distribute a defective product. Consequently, the court dismissed all of the plaintiff's negligence, strict product liability, breach of express warranty, breach of implied warranty of merchantability, and breach of implied warranty of fitness for a particular purpose claims, and all cross-claims against our client. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Insurer Has Heavy Burden on Proving Timeliness of Disclaimer in NY November 26, 2007 < Back Share to: New York is notoriously strict in requiring insurers to promptly disclaim coverage. In Lloyd's v. Gray, the insurer delayed 56 days in disclaiming on an apparently air tight exclusion based on bodily injury to any employee of an independent contractor engaged by the insured. The insurer received notice of the suit, engaged an investigator to interview the insured, and disclaimed coverage in a 56 day period. The Appellate Division, First Department held that whether the insurer disclaimed "as soon as is reasonable possible" was a fact question that precluded summary judgment in favor of the insurer. A life's lesson for insurers underwriting risks in New York: disclaim promptly and cite all potential grounds that preclude coverage. http://www.nycourts.gov/reporter/3dseries/2007/2007_08885.htm Previous Next Contact

News 9/11 $575,000,000 Settlement Rejected by Court. March 20, 2010 < Back Share to: In a stunning development, Judge Alvin Hellerstein has rejected the $575,000,000 settlement reached by the parties. Judge Hellerstein ruled that the settlement was "not enough." It's back to the drawing board in MC 100. http://www.1010wins.com/-This-Settlement-Is-Not-Enough-/6615869 Previous Next Contact

News Ouch! When Bedbugs Bite, Must Landlords Feel the Pain? June 21, 2010 < Back Share to: It is this exact question that a New Jersey appellate court has just decided. In the case of Mitchell v. Capitol Management, Marilyn Mitchell's one bedroom apartment in an 800 unit complex was indisputably infested with bedbugs. She sued the landlord on a negligence theory. At trial, the trial court directed a verdict for the defense holding that there was no evidence "about how the bed bugs got into her apartment or that the landlord was at fault." An appeal resulted and the Superior Court, in an unpublished opinion, has just weighed in. The appellate division upheld the trial court and held that the plaintiff's burden is to prove, at trial, that landlord negligence caused the infestation. Landlord negligence cannot be assumed merely because the bedbugs exist. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/nj/PubArticleNJ.jsp?id=1202462790452&slreturn=1&hbxlogin=1 Previous Next Contact

News Tee Off Be-“fore” It’s Safe And Face Liability (NY) May 22, 2019 < Back Share to: As the weather gets warmer, it appears that more people are participating in outdoor activities. This leads to the inevitable injury and the, you guessed it, subsequent lawsuit. In Krych v. Bredenberg, the plaintiff was golfing with friends when he was struck by a golf ball hit by the defendant, who was playing in the following group. The defendant moved for summary judgment, arguing assumption of risk. The lower court denied the motion. In affirming the decision, the Fourth Department held that a plaintiff ‘will not be deemed to have assumed the risks of reckless or intentional conduct or concealed or unreasonably increased risks.’ The appellate court noted that the defendant admitted that he teed off prematurely and that the plaintiff was still in the fairway before he yelled ‘fore.’ The Court admitted that “although the object of the game of golf is to drive the ball as cleanly and directly as possible toward its ultimate intended goal (the hole), the possibility that the ball will fly off in another direction is a risk inherent in the game.” Moreover, the mere fact that a ball does not travel in the intended direction, does not establish a viable negligence claim. Nevertheless, in the instant action, the Appellate Division found that the defendant failed to exercise due care when he teed off too soon and this action created a triable issue of fact as to whether the defendant unreasonably increased the risk of harm to the plaintiff. Simply put, the plaintiff could not have assumed the increased risk created by defendant’s reckless conduct. Thank you to Paul Vitale for his contribution to this post. Previous Next Contact

News An Education In Pricing For U.S. College Students Studying Abroad March 10, 2008 < Back Share to: As a student at Wheaton College, Jennifer Bombasaro-Brady spent a semester studying in South Africa. Although away from the Wheaton campus, Ms. Bombasaro-Brady was still required to pay full tuition, room and board, despite the fact that the program she attended, without all the amenities provided at Wheaton, cost less. Accusing Wheaton of engaging in deceptive practice, the Bombasaro-Brady family has filed suit in Massachusetts state court. Meanwhile, the relationship between universities and study-abroad programs have already come under the scrutiny of the attorney generals of New York and Connecticut. http://www.nytimes.com/2008/03/09/education/09studyabroad.html Previous Next Contact

News NJ Reinforces Litgation Privilege and Dismisses Action Against Attorney March 21, 2009 < Back Share to: Litigation can be a contact sport. It is not for the meek or mild, certainly in emotionally charged or high exposure cases. While the line between permissble probing and abusive litigation tactics can blur, the New Jersey Appellate Division recently made clear that the nature and scope of inquiry during a deposition will rarely support a claim against an attorney for the intentional infliction of emotional distress, outrage and the like. In Rabinowitz v. Wahrenberger, the parents of an infant filed a medical malpractice action against a hospital and emergency room physician for the death of their child. The parents claimed that the physician refused to admit their infant who later died at home of respiratory distress. The father summoned the local police and asked to speak to the chief of police because "he suspected that there had been a murder." During his deposition, the defense lawyer probed the basis for the father's reference to murder: did he refer to the hospital, the child's nanny, baby nurse or possibly mother? Had anyone handled the baby roughly in the past? When the questioning continued, the plaintiff's lawyer interrupted and said "if you ask one question that is suggestive of the garbage I just heard from your mouth, this deposition will end." The following month, the plaintiff's attorney on behalf of the parents filed the above mentioned action against the defense lawyer. The trial court dismissed the parents' action and awarded costs and sanctions against plaintiffs and their attorney. On appeal, the Appellate Division discussed the wide scope of New Jersey's litgation privilege. The decision made clear that the privlege is applicable to communications made during judicial proceedings, pretrial investigation and now discovery depositions. Good judgment should guide the scope of discovery on the part of all attorneys. However, it is our professional duty, at times, to ask unccomfortable questions during the course of the zealous representation of our clients. It is reassuring to know that we do not subject ourselves to personal liability because we ask the tough questions. http://www.judiciary.state.nj.us/opinions/a1626-07.pdf Previous Next Contact

News “Other Insurance” Provision Allows Insurer To Cap Limits (PA) April 15, 2022 < Back Share to: In Meyers v. Travelers Insurance Company, 2022 WL 1028705 (E.D. Pa. 2022), the plaintiff sued one of her auto liability insurers for extensive damages sustained in an automobile accident. This common occurrence led to a rather uncommon insurance coverage issue. The plaintiff recovered funds from her own primary auto insurance, plus two additional uninsured motorist (“UIM”) insurance policies. The fourth insurer, Travelers, argued that the plaintiff’s UIM recovery was capped based on an “Other Insurance” clause in its policy. By way of context, Travelers insured the vehicle of the plaintiff’s mother. The plaintiff waived her right to stacking of UIM coverage in the Travelers policy, but not in the other two UIM policies. Thus, the question for the court was: what happens when a car accident a victim is insured under multiple policies of equal priority but has waived stacking in only one of the relevant policies? In Pennsylvania, UIM benefits are stacked by default – but an insured may waive this privilege in exchange for a lower premium. Here, Travelers argued that its policy included a waiver of plaintiff’s right to stacked coverage pursuant to an “Other Insurance” provision that capped limits, and this provision therefore limited the plaintiff’s UIM recovery to the single highest applicable coverage limit among the three UIM insurers. The plaintiff argued that this waiver of stacking via the “Other Insurance” clause violated Pennsylvania’s Motor Vehicle Financial Responsibility Law as well as public policy in the Commonwealth. Specifically, the relevant “Other Insurance” language provided: The maximum recovery under all policies in the Second priority may equal but not exceed the highest applicable limit of liability for any one vehicle under any one policy providing coverage to you or any “family member”. The Eastern District agreed with the insurer, holding that an insurer may cap an insured’s maximum non-stacked secondary priority UIM policy at the highest liability limit applicable to the other insurance policies. Therefore, the court found that an “Other Insurance” clause was a valid manner by which an insurer could limit the coverage amounts. This is a case with unique facts, but it behooves all interested parties to be aware of the potential to cap limits via “Other Insurance” provisions. Thanks to Jason Laicha for his contribution to this article. Should you wish to discuss, please feel free to contact Matthew Care. Previous Next Contact

News Office Party Gone Wild: No Liability Where CFO Strikes Co-Worker December 1, 2011 < Back Share to: In Milosevic v. O’Donnell, plaintiff sued to recover for injuries she sustained after she was struck by her company’s CFO at an office party. Plaintiff sued her employer under the doctrine of respondeat superior, seeking to hold it responsible for the CFO’s actions. Plaintiff also sought to hold her employer liable in negligence for sponsoring the event, claiming that there was a “culture” of alcohol use at off-premises, company events. With regard to the respondeat superior claim, the court held that there was no allegation that the CFO was acting within the scope of his employment when the attack occurred or that a work-related issue precipitated the assault. Rather, the evidence showed that the CFO “lost control of his senses” and attacked plaintiff “for no apparent reason.” With regard to plaintiff’s claim that the defendant negligently sponsored the office party, the court held that there was no evidence that the defendant knew of the CFO’s violent propensities when intoxicated or the possibility of an assault. Therefore, the appellate court affirmed the lower court’s dismissal of the negligence and "intentional and/or wanton conduct" causes of action against the employer. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08633.htm Thanks to Gabe Darwick for his contribution to this post. Previous Next Contact

News NY Judge -- Sexism at Depositions Is Bad. December 12, 2007 < Back Share to: Certain things should be taken for granted between lawyers. Things like civility, professionalism and respect. Unfortunately, in the case of Laddcap Value Partners, LP v. Lowenstein Sandler, PC, a legal malpractice claim, counsel for the plaintiff forgot these basic principles. During a deposition, on the record, he repeatedly referred to defense counsel as "hon" and "girl" and otherwise made inappropriate remarks. This has now landed him in hot water and all of his future depositions will be supervised by the Court. http://www.nylawyer.com/adgifs/decisions/121207edmead.pdf Previous Next Contact

News Concrete Coverage Opinion to Aid Covid Cases (NY) June 18, 2020 < Back Share to: With recent COVID-19 related coverage cases being filed on a daily basis, the ongoing question of how courts will interpret business interruption provisions remain. Business interruption insurance is designed to indemnify the insured against losses arising from the inability to continue normal business operation and functions due to the damage sustained as a result of the hazard insured against. Such a provision was interpreted in Binghamton Precast & Supply Corp. v. Liberty Mut. Fire Ins. Co, 182 A.D.3d 721 (N.Y. App. Div. 2020). In this case, the plaintiff was a manufacturer, seller, and distributor of concrete products covered by an Equipment Breakdown Policy. When the plaintiff’s concrete mixer broke, plaintiff was forced to close his business for two days until the mixer could be repaired. As a result, the plaintiff filed a claim for loss of business income. The defendant insurance company argued that because the plaintiff could not establish a loss of specific sales resulting from the breakdown, there could be no recovery under the policy. The policy provided coverage for the “actual loss of business income during the period of restoration.” The Appellate Division noted that the key to interpreting this particular policy is to focus on the expectation of the parties. An insurance policy must be interpreted so that clear and unambiguous provisions are afforded their plain and ordinary meaning. In plaintiff’s case, because the provision’s plain meaning expressly includes profits and losses when defining ‘business income’ and not specific sales, defendant’s reliance on such a contention would not be consistent with the insured’s expectations. However, the Appellate Division agreed with defendant that a triable issue of fact remained as to whether the plaintiff mitigated his losses. Pursuant to plaintiff’s policy, the insured is required to “reduce its losses by undertaking efforts to make up for lost business within a reasonable period of time and to make use of every reasonable means to reduce losses.” The Court held that plaintiff’s decision to make up for lost production during its normal work hours rather than by scheduling overtime shifts on the weekends, is a triable issue of fact. In relation to business interruption insurance for businesses effected by the COVID-19 pandemic, this case articulates an example of how the courts might place importance on the intent of the provisions within each policy and on the efforts an insured made to mitigate their damage. Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Collateral Estoppel Not Applicable to $5,000,000 Judgment in Underlying Action (PA) April 26, 2019 < Back Share to: Kelly v. Carman Corporation is an insurance litigation action initiated by Ronald and Patrice Kelly as assignees of BBK Tavern, Inc., which asserts negligence and breach of contract claims against Carman as BBK’s insurance broker in failing to notify BBK’s insurer of an underlying dram shop action. The Kelly’s filed a complaint in the Philadelphia Court of Common Pleas, alleging that a $5,000,000 stipulated default judgment in the underlying dram shop action constituted the injury in the instant action. In the underlying action, BBK Tavern never filed an answer to the plaintiff’s complaint, and default judgment was entered against it. BBK’s attempts to open the default judgment were unsuccessful. In addition, BBK’s insurer obtained a declaratory judgment that it owed no duty to defend or indemnify BBK in the underlying dram shop case. A damages hearing was held following the entry of default judgment and the Court entered a $5,000,000 judgment against BBK in the underlying action. BBK then assigned its rights against its insurance broker, Carman, to plaintiffs in the underlying action and the instant action was filed by Ronald and Patrice Kelly. In the instant action, plaintiffs alleged that defendants acted negligently and in breach of contract when they failed to notify BBK’s insurer of the underlying dram shop action, resulting in a default judgment and $5,000,000 verdict against BBK. Following trial, the jury returned a verdict in favor of plaintiffs; however, the Court entered a judgment notwithstanding the verdict in favor of defendants, holding that the negligence claims were time barred. The Court also concluded that the previous hearing on damages was inadequate and ordered a new trial on the damages issue. On appeal, plaintiffs claimed that judgment should have been entered for $5,000,000 based on the default judgment from the underlying dram shop case. The plaintiffs argued that the law of the case required the Court to enter judgment in this amount. The Court, rejecting this argument, reasoned that although collateral estoppel could allow damages to be set based on an underlying proceeding, that concept did not apply here as defendants were not a party to the underlying dram shop proceeding. The liability of defendants was not decided in the underlying proceeding as they were not a party to that case (in the underlying proceeding, BBK was the defendant). The Court further reasoned that defendants in the instant action had no opportunity to litigate their defenses, and thus a manifest injustice would result of collateral estoppel applied to impose a $5,000,000 judgment on these defendants. Collateral estoppel is only appropriate where a party, or one with him it is in privity, had the opportunity to participate in the earlier case. Thanks to Alexandra Perry for her contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact