News Young People Understand, and Ignore, Risk of Texting While Driving May 15, 2012 < Back Share to: While it is unclear whether a funded study was necessary for this conclusion, a recent Consumer Reports survey has found the following two statements to be true: First, young people (ages 16 to 21) fully understand the increased danger of texting while driving. Second, that same age demographic nevertheless continues to text while driving. Moreover, a recent study conducted by the U.S. National Highway Traffic Safety Administration found that drivers age 18-20 are three times more likely to send or receive texts or emails while driving than drivers older than 25. Studies like these will most likely be cited in the growing movement (among some special interest groups, at least) to ban all cell phone use, even with a hands-free device, while driving. It is unclear exactly how much steam this movement has gained, but we suspect lobbyists in the employ of companies like Bluetooth would "respectfully disagree" with such a pervasive ban of hands-free devices. Thanks to Brian Gibbbons for this contribution.   Previous Next Contact

News One Small (Legal) Step for Insurers, One Giant Recovery for Insureds: Southern District of New York Clarifies Scope of the “Legal Step” Exception to Insured’s Recovery of Attorney’s Fees March 29, 2024 < Back Share to: In Match Group, LLC v. Beazley Underwriting Limited , the Southern District of New York clarified the scope of the “legal step” exception to the rule that an insured may not recover legal fees in an affirmative lawsuit brought against its insurer. No. 22 CIV. 4629 (LGS), 2024 WL 863468 (S.D.N.Y. Feb. 29, 2024). Match sued its insurer, Beazley, for breach of contract and equitable estoppel based on Beazley’s refusal to defend Match in an underlying lawsuit. Id. at *1. The Court entered judgment for Match on its breach of contract claims. Id. Thereafter, Match moved to recover attorney’s fees incurred from the action. Id. On review, a magistrate judge recommended denial of Match’s motion because Match brought an affirmative action against its insurer. Id. On review, the Court affirmed the recommendation and the general prohibition on an insured’s recovery of attorney’s fees. Id. The Court’s analysis primarily discussed the rule’s exception—that an insured can recover attorneys’ fees if they prevail on the merits and are placed in a defensive position by “legal steps” taken by the insurer. Id. at *2. Invoking this exception, Match argued that Beazley took four “legal steps”: (1) appealing the judgment; (2) issuing a disclaimer; (3) directing Match to file suit; and (4) filing a motion to dismiss. Id. First, the Court concluded that Beazley’s appeal did not place Match in a defensive position, as Beazley did not introduce any “new theory” on appeal. Id. Rather, Beazley’s appeal merely continued the legal process initiated by Match. Id. Second, the Court emphasized that a routine disclaimer is not a “legal step”—even when written by a lawyer and including legal analysis. Id. Third, the Court found that Beazley’s communications with Match about jurisdictional matters did not constitute an “instruction to sue” or a “legal step.” Id. Finally, the Court opined that Beazley’s motion to dismiss was a defense to Match’s action, rather than a “legal step” equivalent to filing a new suit. Id. The Match decision reflects courts’ unwillingness to extend the scope of the “legal step” exception to require an insurer to pay an insured’s legal fees based on routine defense and coverage actions. Match Group LLC v. Beazley Underwriting Limited .pdf Download PDF • 174KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Pump The Brakes - Punitives Aren't Always Prudent March 8, 2024 < Back Share to: Let’s say you have a delivery business and that that business employs truckers. One day, one of the truck drivers employed by the business gets into an accident. Now not only is the driver and your business being sued for negligence, but the plaintiff says they want punitive damages too! In a society that is, at this point, built around the use of automobiles for transportation, are punitive damages always available? Applying Pennsylvania law, the United States District Court for the Western District of Pennsylvania recently decided a motion to dismiss for failure to state a claim in Jones v. Silver Creek Transport , LLC, which dealt with the availability of punitive damages. Roy Jones (“Jones”) brought an action in negligence against Silver Creek Transport, LLC (“Silver Creek”) and Aaron Baxter (“Baxter”). Jones v. Silver Creek Transp., LLC, No. 2:23-CV-01461-MJH, 2023 WL 7301076, at *1 (W.D. Pa. Nov. 6, 2023). As part of Jones’ complaint he alleged “recklessness,” “outrageous conduct,” and “gross negligence.” Id . In response to the complaint, the defendants filed a motion to dismiss allegations of recklessness, outrageous conduct, and gross negligence, and the claim for punitive damages. Id . The defendants argued that “Jones's punitive damages claim should be dismissed because the Complaint fails to establish the ‘something more’ component beyond the ordinary negligence averments required for punitive damages.” Id . at 4. Further, the defendants argued that Jones’ complaint “alleges no conduct that elevates Mr. Baxter's actions to outrageous or egregious actions” and that the allegations against Silver Creek were “boilerplate, conclusory allegations regarding whether it trained Mr. Baxter inadequately, failed to monitor or supervise him adequately, failed maintain its vehicles adequately, or otherwise failed to properly comply with certain, undefined statutes or regulations.” Id. Whereas Jones argued that his complaint did in fact meet the requirements for punitive damages, id., the court granted the motion to dismiss the allegations and claim for punitive damages. Id. at 5. What was the court’s reasoning? The court stated that in “Pennsylvania, the assessment of punitive damages is proper when a person's actions are of such an outrageous nature as to demonstrate intentional, willful, wanton or reckless conduct.” Id . at *4 (internal quotations omitted) (citing SHV Coal, Inc. v. Cont'l Grain Co. , 587 A.2d 702, 704 (Pa. 1991)). Likewise, the court articulated that the Pennsylvania Supreme Court has previously adopted Section 908(2) of the Restatement (Second) of Torts, which states that: Punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant's act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause[,] and the wealth of the defendant. Id .; see also Restatement (Second) of Torts § 908(2). Specifically, in “the motor vehicle context, ‘simple allegations limited only to a defendant failing to comply with traffic laws are not sufficient for punitive damages.’” Id . (citing Carson v. Tucker , 2020 WL 4015244 at 4 (E.D. Pa. July 16, 2020)). Moreover the court observed that the Pennsylvania Supreme Court had also held “that defendant's negligent speeding, failure to properly signal, and failure to properly observe roadways did not warrant punitive damages” Id. (summarizing Babenko v. Dillon, No. 5:19-cv-00199, 2019 WL 3548833 at 3 (E.D. Pa. Aug. 2, 2019)). The upshot of the court’s application of the legal standards for punitive damages and ruling on a motion to dismiss the punitive damages claim was that the court recognized that Jones’ complaint “contains conclusory allegations that label Defendants’ conduct as reckless, wanton, or outrageous. Moreover, said allegations are devoid of facts that would support any specified conduct or violations of specific regulations or statutes.” Id . Specifically, the court noted that “[t]he inclusion of simple allegations that a truck driver did not comply with the law or violated regulations does not, by itself, satisfy the requirements of Pennsylvania law for awarding punitive damages.” Id. (citing Elmi v. Kornilenko , 2018 WL 1157996, at *5 (W.D. Pa. Mar. 2, 2018)). Simply stated, the court held that Jones’ complaint “contains a litany of allegations against Defendants that are unsupported by the requisite specificity to reach a plausible conclusion regarding Defendants’ conduct which would buttress a punitive damage claim. Therefore, Mr. Jones's claim against Defendants for punitive damages and the averments purporting to support the same will be dismissed.” Id . What does this mean for you and your delivery business or for your truck driver employee? An accident on the road which leads to a negligence suit against the business, or the driver, might or might not have facts and circumstances that would make a punitive damages claim viable. Be wary of punitive damages claims, because unless the plaintiff can aver the facts that make our business and employee’s conduct into conduct that is outrageous because of an evil motive, or recklessly indifference to the rights of others, there is a very good chance that the punitive damages claim can be dismissed. Jones v. Silver Creek Transport LLC .pdf Download PDF • 207KB Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Frozen Pizza Quest no Excuse of PA Fall June 22, 2018 < Back Share to: Recently, a Pennsylvania court evaluated a grocery store’s liability for injuries caused by known or obvious conditions. In Walker v. Save-a-Lot. Plaintiff was shopping in a grocery store when she tripped and fell on a pallet displaying cases of water in the middle of the frozen food aisle. Plaintiff walked toward the pallet on her way to the freezer and situated her cart adjacent to the pallet. After grabbing a frozen pizza, plaintiff stepped away from the freezer and tripped over the pallet. Defendant sought summary judgment on the ground that the pallet created a known or obvious condition. Plaintiff claimed she did not see the pallet as she was focused on finding a frozen pizza. Surveillance footage showed that the plaintiff walked by one pallet displaying cases of water before she approached a second pallet displaying the same. The court turned to prior decisions addressing the duty of care owed to invitees and concluded that it is established Pennsylvania law that a person must look where he is going, further explaining that customers are not relieved of this responsibility even if they are distracted by sales displays. The court concluded that the fact that the plaintiff claims she did not see the pallet because she was focused on finding her frozen pizza does not excuse the fact that the pallet was a known or obvious condition that she failed to avoid by the exercise of ordinary care. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Read it and Weep: Plaintiff’s Case Against Insurer Dismissed for Failure to Understand the Insurance Policy (NJ) February 12, 2021 < Back Share to: In Giselle Polizzi v. Liberty Mutual Fire Insurance Company, the United States District Court for the District of New Jersey case gave a lesson in policy interpretation following a dispute over an automobile policy. In this case, Giselle Polizzi (“Polizzi”) was injured in a car accident with an underinsured motorist while borrowing her parents’ vehicle. Due to language in an endorsement within the policy, Polizzi was not able to claim the full policy limits for an accident with an underinsured motorist (“UIM”). In this matter, Polizzi was listed as a driver on the declaration page of her parents’ insurance policy but was not listed as a named insured. The policy included an endorsement (“step-down provision”), which stated the UIM limit would be decreased if the insured is not a named insured or a family member as defined by the policy. The policy defined family member as “a person related to you by blood, marriage or adoption who is a resident of your household.” Following the accident, Polizzi learned the other driver had a bodily injury insurance limit of only $100,000. Thus, she alerted Liberty Mutual that she would make a UIM benefits claim under the policy issued to her parents. At the time of the incident, Polizzi did not live with her parents. Thus, the step-down provision came into effect. Eventually, both parties filed motions for summary judgment. The issue before the Court was whether the step-down endorsement was applicable to Polizzi’s claim, thereby reducing any UIM benefits to the full available policy limit of the other driver. Thus, there was nothing to be recovered from Liberty Mutual. The Court reasoned that in instances of claimed ambiguities within an insurance policy, it must assess the “reasonable expectations” of the policyholder. The Court, however, found the section at issue to be clear and unambiguous. Thus, the reasonable expectations doctrine did not apply. The policy included several references to the endorsement, including the language “THIS ENDORSEMENT CHANGES THE POLICY”. Thus, the Court found Liberty Mutual produced sufficient evidence to demonstrate the endorsement applies in this case and summary judgment was granting dismissing Polizzi’s case. The rationale of the Court confirmed that torturing policy language would not be permitted by the claimant. Thanks to Gabi Outlaw for her contribution to this article. Should you have any questions, kindly contact Thomas Bracken. Previous Next Contact

News PA Supreme Court: Operational Control Over Contractor Work Is Needed for Property Owner Liability February 18, 2011 < Back Share to: In the case of Beil v. Telesis Construction Inc., et al., Pennsylvania’s Supreme Court has just issued a significant decision clarifying a property owner’s responsibility for personal injury actions arising out of the work of its contractors. In Beil, Lafayette College hired Telesis, a construction company, to work on one of its campus engineering buildings. In turn Telesis, subcontracted with another company, Kusman, to perform roofing work. Beil, the plaintiff, was a Kusman employee and was injured when he fell from the roof on which Kusman was working. He sued Telesis and Lafayette. Justice Debra Todd addressed the scope of Lafayette’s exposure -- http://www.pacourts.us/OpPosting/Supreme/out/J-89-2009mo.pdf Using the Restatement Second of Torts as a guidepost, Justice Todd’s majority opinion held that a landowner can only be liable for a personal injury action arising out of a subcontractor’s work, if the landowner retained control over that work “such that it renders the contractor not entirely free to do the work in his own way.” Merely maintaining some general responsibility for safety issues does not constitute the requisite degree of control. Rather, to be exposed to liability, the landowner must maintain some operational control over the means and methods of the subcontractor’s work. This is good news for property owners and not such good news for plaintiffs attorneys. Special thanks to Remy Cahn for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News "Any" Means "Any," even in New Jersey May 30, 2012 < Back Share to: The “employee exclusion” of the CGL policy has been upheld by courts throughout the country, and the trend continued in New Jersey in the recent case of Gabriele v. Lyndhurst Residential Community, L.L.C. There, a construction management company hired a subcontractor to install a sprinkler system in a new construction project. The foreman of the subcontractor was killed when he was struck by a pallet that fell from the sixth floor of the building project. The construction management company filed a third party suit against the subcontractor’s insurance company, seeking a declaration that the insurer was required to defend and indemnify the management company as an additional insured under the policy. The insurer argued that two exclusions in its policy applied to this accident: exclusions of claims 1) for personal injuries to “an employee of any insured”; and 2) for any liability for personal injuries that do not arise solely out of the named insured’s work. The trial court decided, on cross-motions for summary judgment, that neither of the exclusions applied, and thus that the insurer was required to provide the coverage sought. On review, the Appellate Division reversed the trial court’s declaratory judgment, citing the first exclusion as the basis for its decision. The court held that an endorsement to the policy clearly stated that the coverage did not apply to personal injury to an employee of any insured arising out of or in course of, or as a consequence of, employment by any insured. Furthermore, the language in the endorsement clearly superseded the original policy language that merely excluded from coverage those claims for personal injury made by “an employee of the insured,” because the endorsement itself stated that it changed the policy. Thanks to Christina Emerson for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com . Previous Next Contact

News NJ: How much is an hour’s worth of pain worth… now multiply it.. science or suggestion? November 17, 2010 < Back Share to: New Jersey court rules specifically permit a plaintiff to “suggest” to a jury that unliquidated damages can be calculated on a time unit basis without reference to a specific sum. In other words, a plaintiff may argue to the jury that it can consider what an hour’s worth of pain is worth and then multiply it by the number of hours in a day, then in a week, and in a year over a life expectancy. To balance this argument when a plaintiff chooses to make it, the court is directed to instruct the jury that the analysis is argument only and should not be considered as evidence. But what if a plaintiff elevates the “suggestion” to “scientific” analysis in his argument? In Shoemaker v. Chinappi the plaintiff’s attorney did just this when he told the jury that this computation would be a “rather scientific way” to calculate damages. The trial judge disagreed with the injection of science into what was otherwise just permissible argument. Needless to say counsel was none too happy when the judge clarified for the jurors that the requested computation was in fact “not a scientific approach” but rather just a suggestion. The Appellate Division was not persuaded by counsel’s argument that he merely meant to imply that “scientific” was “logical” and agreed with the trial judge’s corrective instruction. See Shoemaker v. Chinappi, http://www.judiciary.state.nj.us/opinions/a2027-09.pdf If you have any questions or comments about this post, please email Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Bathroom Surveillance Program Invades Privacy (NJ) October 22, 2013 < Back Share to: Technology is supposed to make our lives more efficient, connected, and safer. Yet many new technologies have a darker side as well. The difficulty is deciding when our use of technology has crossed the line and invaded our cherished sense of privacy. In Soliman v. The Kushner Companies, the New Jersey Appellate Division explored the contours of this brave, new world. In Soliman, the managers of a commercial office building received complaints from their tenants about vandalism and damage that rendered the bathroom facilities unusable. In response, the managers installed video surveillance equipment and concealed cameras inside the bathroom smoke detectors in effort to deter the vandalism and capture evidence against the alleged vandals. The managers claimed that the cameras were only focused on the wash basin areas and it was undisputed that the surveillance program was not made known to anyone entering the bathrooms through signage or otherwise. A tenant's employee discovered the monitoring operation when the employee opened a closet door that was inadvertently left ajar and found video monitors displaying live video feeds from the building’s four bathrooms. The police were called and the county prosecutor’s office investigated this discovery. Ultimately no criminal charges were filed related to the video surveillance operation. Plaintiffs were employees of tenants and their families as well as others who had used the building’s bathrooms. They alleged that the defendants had invaded their privacy as well as intentionally or negligently inflicted emotional distress on them through the sub rosa video surveillance in the bathrooms. The lower court seemingly accepted the building’s explanation that the monitoring was limited to the wash basin area and dismissed the case. On closer review, the Appellate Division reinstated the counts related to invasion of privacy and punitive damages. In short, the court concluded that “a rational jury could find that shielding the cameras from detection by placing them inside facially innocuous yet ubiquitous safety devices, such as smoke detectors, is more suggestive of a sinister voyeuristic purpose than a good faith attempt at combating vandalism.” A key factual point was the absence of any signs announcing that the area may be under video surveillance, thus undermining the defendants’ professed goal of deterrence and strengthening the plaintiffs’ claims that they had a reasonable expectation of privacy when using the bathroom. Video surveillance is a powerful tool in the prevention and investigation of crime. However, bathrooms and other traditional areas of privacy are apparently poor venues in which to employ this intrusive tool. If you have any questions about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News An Enterprising Theory of Liability Against Car Rental Company Fails. September 27, 2010 < Back Share to: Miguel Mojica was once convicted of driving while ability impaired. But that was in the past, and when he walked into an Enterprise Rent a Car office in Wappingers Falls, NY one day in 2006, he held a valid NY driver license. He showed the license to the Enterprise agent, who checked that the photo and the expiration date were in order, and rented him a pick-up truck. Mojica then allegedly drove the truck while intoxicated, crashing into a police car and badly injuring a police officer. The police officer sued Enterprise. Enterprise is, of course, protected from vicarious liability as the owner of the vehicle by the Graves Amendment, which prohibits such vicarious liability for the owners of rental cars. But the plaintiff sought to recover from Enterprise on a theory that it was negligent in not doing a full background check on Mojica's driving history. A trial court in Dutchess County, New York, in the case of Poluzzi v. Mojica, has rejected the plaintiff's argument, holding that the law imposes no such duty on a car rental company to investigate the driving record of its customers who proffer a valid driver license. Previous Next Contact

News Recent Wave Of High Jury Verdicts In Premises Liability Cases March 4, 2022 < Back Share to: Highlighted by a recent decision by CVS Pharmacies, to close around 900 stores across the country after a Georgia court upheld a $43 million premises liability verdict against the company, there has been a noted increase in high verdicts across the United States. These premises liability cases have involved a number of issues, including criminal acts and inadequate security. The string of recent results has led some commercial insurers to refine their underwriting standards to ensure that their retail business have adequate security measures in place. Nationwide, verdicts in excess of $10 million appear to be on the rise. Verisk, which compiles insurance data from around the country, reported that the average size of jury awards climbed almost 1,000% from 2010 to 2018, to about $22 million. The increase in these verdict amounts has led to some insurance companies reconsidering their policies to increase their levels of reinsurance in areas with plaintiff-friendly jurisdictions. Thanks to Alexander N. DiMeo for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News MSJ Denied, Largely Due to (Missing) Easement Exhibit (NY) June 1, 2017 < Back Share to: A key factor in determining whether a party is liable in a trip and fall accident is the ownership, occupancy, control or special use of the subject property. Generally, the testimony of someone with personal knowledge that the property is not under their control or used for any special purpose is sufficient to support a motion for summary judgment on a defendants’ behalf. In Turano v. Two Hillside Avenue Realty Corp., 2017 NY Slip Op 04313 (2d Dept. 2017), plaintiff tripped and fell in the parking lot of a commercial building. The building is comprised of eight apartments which are individually owned. Each owner also owns the parking spot nearest to their respective unit. Plaintiff commenced the action against all eight unit owners and the overall property owner who maintains the common areas of the premises. One of the defendant unit owners moved for summary judgment stating that they did not have a duty to plaintiff due to the fact that the incident occurred on the common portions of the parking lot wherein they do not have a duty to maintain. The Court upheld the lower court’s decision which denied the property owners motion. The Court held that despite the testimony and affidavit of the homeowner the deed referred to a “Declaration of Common Driveway Easement and Restrictive Covenant.” The Court held that without any information or testimony about the easement and covenant a question of fact remained as to whether the property owner made special use, through an easement or covenant of the portion of the property at issue. This decision emphasizes how each potential factor for liability on the part of a defendant should be addressed in making a dispositive motion and that any stone left unturned could result in a denial of a motion, despite how strong the other evidence may be. One assumes the defendant will opt to re-move, with the easement as an additional exhibit -- unless the Court denies leave to re-move. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact