News Res Judicata Not Applicable to Claim Against Professional Employee September 6, 2011 < Back Share to: In Farren v. Lisogorsky, the plaintiff sued Metro pharmacy after plaintiff had a prescription filled at Metro, however Metro filled the prescription with the wrong drug, causing plaintiff to sustain personal injuries. In plaintiff’s action against Metro, it conceded liability, however contested damages. Prior to trial, Metro and plaintiff settled for $300,000 and executed a stipulation of discontinuance with prejudice. Plaintiff then commenced an action against Lisogorsky, part owner of Metro and the pharmacist/employee that allegedly improperly filled the plaintiff’s prescription. Prior to answering, Lisogorsky moved to dismiss under CPLR 3211(a)(5) and (7). With respect to (a)(5), the trial court granted Lisogorsky’s motion to dismiss on the basis of res judicata. Plaintiff appealed. The Appellate Division, Second Department reversed, finding that the doctrine of res judicata was inapplicable to plaintiff’s action against Lisogorsky. The Second Department reasoned that plaintiff was entitled to pursue Lisogorsky in his professional capacity as a pharmacist, which was entirely distinct than the suit against Metro. As such, the doctrine of res judicata was inapplicable and the trial court improperly granted Lisogorsky’s motion to dismiss on that basis. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_06366.htm Thanks to Alison Weintraub for her contribution to this post. Previous Next Contact

News WCM Obtains Defense Verdict in Philadelphia In-Person Trial June 4, 2021 < Back Share to: WCM Partner Bob Cosgrove and Counsel Matthew Care with the assistance of associates Ben Ferrell and John Lang and summer associates Halley Matthes and Jean Scanlan obtained a defense verdict in the case of Hakim Scott v. Murano Deli v. Charlie Kim. In this complicated procedural case, in May 2013, Hakim Scott was stabbed in his left thumb while leaving a deli/bar. The stabbing was committed by an intoxicated patron. When Hakim Scott sued the deli/bar, the deli/bar’s insurance company, Leading Insurance, disclaimed coverage based upon the policy’s assault and battery exclusion. The deli/bar then sued Leading Insurance and, our client, Charlie Kim, the broker who procured the policy. As relevant to Charlie Kim, this third-party complaint was originally filed in 2015 as a broker professional negligence claim. On May 7, after thrice denying our motion to bifurcate the E&O claims from the underlying assault case, a COVID protocol in-person jury was selected and Hakim Scott’s doctor examined/cross-examined on video. Opening statements were set for May 10. On the morning of opening statements, the court granted Hakim Scott’s motion to bifurcate the assault claims from the E&O claims. An hour later, after we were excused from the courtroom, Hakim Scott entered into a $900,000 consent judgement against the deli/bar owner and the deli/bar owner assigned all of its rights against Charlie Kim to Hakim Scott. On May 28, the Friday before Memorial Day, a second COVID protocol in-person jury was selected. Trial was set to begin on the Tuesday after Memorial Day. On that Tuesday, right before opening statements, the court “trifurcated” out the issue of damages (and the reasonableness of the plaintiff’s $900,000 settlement) and allowed the deli/bar owner (through its new counsel) to file an amended complaint asserting a new theory of liability, i.e. negligent misrepresentation. The professional negligence claim was dropped. Trial thereafter began. The jury was effectively presented with two alternative versions of the facts – one in which our client, the broker, claimed that he advised the deli/bar owner that the policy had Dram Shop coverage, but not assault and battery coverage, or one in which the deli/bar owner claimed that our client, the broker, told him that the policy covered “everything”. After a three day trial, the jury got the case. They were asked four questions (and we’re paraphrasing slightly): Did Charlie Kim make a material misrepresentation to the deli/bar owner in respect of the insurance?If yes, did he know or should have he known that the statement was false when made?If yes, did he make the statement with the intent to induce the deli/bar owner to rely on it?If yes, did the deli/bar owner justifiably rely upon the statement and suffer damages? In an 8-0 verdict, the jury answered the first question in the negative thereby granting us a defense verdict. For more information about this win, or WCM’s trial practice, please contact Bob. Previous Next Contact

News NY Limits Facebook Discovery. November 4, 2011 < Back Share to: How discoverable is a Facebook account? The courts have been all over the map as the posts from this blawg have made clear. In the case of [i]Patterson v. Turner Construction[/i], NY’s First Department grappled with this issue. In [i]Patterson[/i], the plaintiff claimed physical injuries. Defendant demanded access. Motion practice ensued. After an in camera review, the trial court granted defendant access on the basis that disclosure would “result in the disclosure of relevant evidence or is reasonably calculated to lead to the discovery of information bearing on the claims.” The First Department has now reversed. It has demanded that the trial court (or defendant -- it is unclear from the order who has the responsibility) provide “a more specific identification of plaintiff's Facebook information that is relevant, in that it contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims.” The moral of this story is that it if overworked (and underpaid?) trial court judges are required to perform in camera Facebook reviews, it is likely to become infinitely more difficult to obtain Facebook access. In the meantime, the best advice for defense attorneys seems to be to modify their Facebook demands to only seek access to records that “contradict or conflict with plaintiff's alleged restrictions, disabilities, and losses, and other claims.” Of course, the resulting self-selection will be performed by plaintiff’s counsel, so… If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News "Arising Out of Bodily Injury Sustained By An Employee Of Any Insured" Examined in NY. July 23, 2010 < Back Share to: In the case of Baker v. Safety Casualty, American Safety insured Point Recycling. Point Recycling was a tenant in a building owned by Baker. Robert Ruiz, a Point employee, was injured working in Baker's building. He sued Baker. Baker tendered to Safety as it was a named additional insured under that policy. Safety disclaimed based upon an exclusion that barred from coverage all claims "arising out of bodily injury sustained by an employee of any insured." The trial court rejected that argument, but the 2nd Dept. reversed and found for the insurer based upon the exclusion. Please contact Bob Cosgrove at rcosgrove@wcmlaw.com for any questions about this post. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9702877 Previous Next Contact

News New York's Top Court Upholds Removal Of Niagra Falls Judge Over Ringing Cell Phone June 6, 2008 < Back Share to: The New York State Court Of Appeals unanimously affirmed the removal of Judge Robert Restaino, who jailed 46 people in his courtroom after no one would own up to a ringing cell phone. After the cell phone rang during the Court session, Judge Restaino called each defendant in the courtroom before him and ordered them into custody when they denied knowledge of the cell phone. The Court of Appeals called the punishment of innocent people under the circumstances "inexcusable". http://www.law.com/jsp/article.jsp?id=1202421984572 Previous Next Contact

News NY's Highest Court Again Tackles Duty to Defend/Indemnify Additional Insured. June 7, 2010 < Back Share to: The fight for additional insured coverage is central to the game of risk transfer. NY's highest court, the Court of Appeals, has again weighed in on the subject. In the case of Regal Construction Corp. v. National Union Fire, 2010 NY Slip Op 04661 (6/3/10), URS was hired by the City of New York to serve as a construction manager. URS hired Regal as a prime contractor. Pursuant to contract, Regal was obligated to procure a CGL policy that named URS as an additional insured. The policy Regal obtained was with Insurance Corporation of New York and contained a limitation that URS was only an additional insured "with respect to liability arising out of [Regal's] ongoing operations performed for [URS]." As luck would have it, Regal's project manager, Ronald LeClair was walking through the job site when he slipped and fell on a URS improperly painted joist and injured his back. He thereafter commenced a lawsuit against the City and URS. A coverage action ensued in which Insurance Corp argued that because the claim did not arise out of Regal's work, but rather exclusively URS's work [and negligence], there was no duty to defend or indemnify URS. The Court of Appeals disagreed with URS. It held that the "phrase "arising out of" in an additional insured means: "originating from, incident to, or having connection with" (Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472 [2005] ). It requires "only that there be some causal relationship between the injury and the risk for which coverage is provided" (id.) and the "focus of the inquiry "is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained" ([i]Worth, 10 NY3d at 416 [internal quotation marks and citation omitted]). In light of this case law, the Court held that Insurance Corp was obligated to defend or indemnify URS even though the accident was solely the result of URS negligence. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9601301 Previous Next Contact

News NJ Court: Water Slides Are Obviously Dangerous May 30, 2013 < Back Share to: With temperatures rising and summer around the corner, area waterparks are sure to see a high volume of guests looking to beat the heat. While most visitors enjoy their day, leaving with at worst a sunburn, unfortunately some depart with injuries, turning guests into litigants. Such was the case at New Jersey’s Six Flags Great Adventure, and the Appellate Division recently (and timely) decided in Morgan v. Great Adventure that Great Adventure was not liable for plaintiff’s injury where no duty to warn, by statute or otherwise, existed where the risks associated with using a water slide are open and obvious. Plaintiff Lisha Morgan waited in line for an hour with her daughter and granddaughter to ride the “Big Bambu,” a popular water slide which propels a multi-person raft through the twists and turns, splashing into the pool below. As plaintiff ascended the stairs to the top of the slide, she observed the posted warning signs regarding height and personal health. She was instructed as to the proper sitting position by the attendant and followed the instructions. As the raft neared the end of the slide, plaintiff alleges that it went briefly airborne. Instead of landing squarely in the pool, the raft struck the edge of the slide causing plaintiff’s foot to become pinned between the raft and her body. She suffered a fracture of her fifth metatarsal (the long outer bone connecting the fifth toe to the foot). Plaintiff argued that Great Adventure was negligent in the design, manufacture, operation and maintenance of the slide, had failed to warn against the risks associated with using the slide, and violated New Jersey’s Products Liability Act. In affirming the lower court’s dismissal of plaintiff’s complaint, the Appellate Division held that where Great Adventure did not manufacture or design the water slide, the Products Liability Act was inapplicable, which, by extension, rendered the park immune from liability based upon a failure to warn. Recognizing that plaintiff’s exclusive remedy was under the Products Liability Act, the Court went even further to articulate that Great Adventure also had no duty to warn plaintiff of the risk of injury. From a legal perspective, Great Adventure did not know or have reason to know that plaintiff would be injured, nor did it overtly facilitate the injury. Practically speaking, the court found that plaintiff, like any reasonable person, was, or should have been, aware of the open, obvious and inherent risks of using the water slide. In this case, plaintiff assumed the risk of using the slide through no negligence of the park. While this surely will not be the last lawsuit of its kind, in ruling for Great Adventure, the court highlighted the open and obvious nature of amusement rides and the inherent risks that accompany them. Thanks to Emily Kidder for her contribution to this post. If you would like more information please write to Mike Bono.   Previous Next Contact

News PA Supreme Court Finds Shooting of Third-Party During Murder-Suicide is an "Occurrence" May 29, 2020 < Back Share to: The Pennsylvania Supreme Court recently opined that the duty to defend extended to claims arising from injuries sustained when the insured shot a victim in the face. In Erie Insurance Exchange v. Moore, et al., No 20 WAP 2018, 2020 WL 193242 (Pa. April 22, 2020), the insured broke into his ex-wife’s home intending to murder her and then commit suicide. The ex-wife's boyfriend arrived on the scene, a struggle ensured, and the boyfriend was shot in the face. The boyfriend filed suit against the insured’s estate and the estate sought coverage under two separate policies issued by Erie: (1) a homeowner’s policy; and (2) a Personal Catastrophe Liability Policy. Erie filed a declaratory judgment action seeking a declaration regarding its duty to defend an insured for injuries allegedly sustained in a shooting. Erie argued it was entitled to summary judgment for two reasons: (1) the injuries did not arise from an occurrence as defined in the respective policies; and (2) even if there was an occurrence, the policies expressly excluded coverage for personal injury expected or intended by the insured. The estate filed a cross motion for summary judgment. The trial court granted Erie’s motion holding that the “prospect of an injury from a gun firing during a physical struggle over that gun was no less plainly and reasonably anticipated.” The court reasoned that the shooting cannot fall within the definition of an accident given the deliberate conduct of the insured. The Superior Court reversed on appeal. In considering whether the shooting constituted an occurrence under the policies, the court reasoned that “gunshot wounds commonly are inflicted deliberately, but not all injuries from gun violence are intentional.” Ultimately the panel concluded the complaint pleads an occurrence because the allegations “fairly portray a situation in which injury may have been inflicted unintentionally.” On appeal, the majority concluded that the specific facts plead in the complaint established only that the insured intended to kill his ex-wife and himself, and to pull the victim into the house and fight while wielding a firearm. Despite finding the insured’s decision to pull the victim into the home and engage in a fight was intentional, the majority found that the discharge of the weapon in said circumstances was both unintentional and accidental. The majority suggested a different result if the policies at issue contained exclusions expressly excluding coverage for “incidents involving firearms, or during the commission of a crime.” Since the policies contain no such language, the majority reasoned, the complaint must be construed in favor of coverage because the factual allegations presented create an ambiguity as to whether the injuries were expected or intended. Thanks to Jennifer Seme for her contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News NY's First Department clarifies law of sidewalk liability. September 19, 2007 < Back Share to: In this decision, the First Department clarified that neither trees nor tree wells are part of the sidewalk and as such § 7-210 does not apply. http://www.courts.state.ny.us/reporter/3dseries/2007/2007_06577.htm Previous Next Contact

News First Party Disclaimer "Collapses" in New York April 10, 2009 < Back Share to: A New York federal appellate court recently addressed the interpretation of the meaning of “collapse” as found in an all-risk policy in Dalton v. Harleysville Wor. Mut. Ins. Co. Plaintiffs owned a three-story townhouse in Brooklyn, and discovered damage to an interior wall. The damage was so extensive, that the NYC Department of Buildings ordered that the building be vacated. Harleysville disclaimed coverage under its all-risk policy, citing exclusions for decay, and settling. Although the policy had an additional coverage section that provided coverage for damages resulting from “risks of direct physical loss involving collapse of a building or any part of a building caused … by … hidden delay,” the policy did not provide coverage for a collapse that included “settling, cracking, shrinkage, bulging or expansion.” Harleysville also argued that to constitute a collapse, the buiding needed to sustain “total or near total destruction,” and that a “sudden destructive force” was necessary. The Second Circuit Court of Appeals found that under New York law, the meaning of the term “collapse” is unsettled, and it is not necessary that the building sustain total or near destruction, and that "substantial impairment of structural integrity" would suffice. The Court held the Harleysville policy was ambiguous, did not require “suddenness” as a condition, and notably cited to policy forms used by other insurers that “spoke more directly to the dispute involved here.” Thus, even though one would not typically consider what happened here to be a collapse, the Court held it was a covered loss. http://caselaw.lp.findlaw.com/data2/circs/2nd/073545p.pdf Previous Next Contact

News Surveillance Footage Key To Establishing Open And Obvious Defense (NY) September 9, 2022 < Back Share to: New York courts generally hold that a landowner has no duty to warn of open and obvious dangers. In Lebron v. City of New York, the Appellate Division, Second Department recently addressed whether an inspection pit that plaintiff fell into on the defendants’ property was an open and obvious, and not inherently, dangerous. The defendants introduced surveillance of the accident as evidence of the nature of the condition, but the Supreme Court denied their motion for summary judgment. On appeal, the Second Department observed that: "A landowner has a duty to exercise reasonable care in maintaining [its] property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property". However, "there is no duty to protect or warn against an open and obvious condition that, as a matter of law, is not inherently dangerous" or "where the condition on the property is inherent or incidental to the nature of the property and could be reasonably anticipated by those using it". Based on this framework and the evidence provided by the defendants, the Second Department reversed and held that the inspection pit that plaintiff fell into was an open and obvious condition and the Supreme Court should have granted defendants’ motion for summary judgment. The Lebron decision serves as a reminder that the open and obvious defense can serve as a complete defense in applicable cases and that video surveillance of an accident can be beneficial to establish this defense. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Fire Insurance Policies Must Follow The Standard Policy (NY) March 25, 2022 < Back Share to: The Supreme Court of New York, Niagara County, recently rejected an attempt by a property insurer to rely on an exclusion not included in New York’s standard fire policy. In Niagara BYG Capital, LLC v. Leatherstocking Coop. Ins. Co., the plaintiff property owner hired a company to manage and renovate a multi-family home. The property manager hired several workers to perform certain work at the site, and plaintiff agreed to allow them to live in the home while they performed the work. One of the workers intentionally set fire to the premises and plaintiff sought coverage. The property insurer denied coverage for the fire, relying on a “Dishonest or Criminal Acts” exclusion in the policy. The insurer claimed that plaintiff knowingly “entrusted” the property to the person who set the fire, thereby triggering the exclusion. However, this exclusion is not contained in the standard fire insurance policy statutorily set forth in New York Insurance Law Section 3404 and provides less favorable coverage than the statutory policy. As such, plaintiff moved for summary judgment on the basis that the defendant’s denial violated the provisions of Insurance Law section 3404. The court observed that Insurance Law section 3404(b)(1) requires that any policy that insures against fire must incorporate terms and provisions no less favorable to the insured than those contained in the standard policy. It further found that while the standard policy includes several exclusions, it does not include the exclusion upon which the insurer relied in the case. As such, the exclusion impermissibly restricted the coverage mandated by statute by imputing the intentional act of another onto an innocent insured. Accordingly, the court declined to enforce the exclusion and granted plaintiff’s motion. The takeaway of the Niagara BYG case is that New York fire insurers should be careful to ensure that their policy exclusions should match those in New York’s standard fire policy set forth in Insurance Law section 3404. Exclusions not contained in the standard policy will be rejected by New York courts. Thank you to Tristan Montague for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact