News Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA) November 16, 2017 < Back Share to: A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis. In Brand Energy Services, LLC v. Worker's Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions. The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients. His employer was paid by the foot for the scaffolding erected. The employee had been working days. When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts. He worked thirteen days in a row and had only one day off. Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift. He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding. In the night shift, he was building between 1000 and 1200 leg feet. The worker’s hands became swollen under this new work regimen. He sought treatment for his hands, as they continued to be numb, swollen, and tingly. His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist. When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off. On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent. In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony. At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award. The court disagreed with the employer’s argument in this regard. It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported. However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven. In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks. While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him. Given this testimony, the Court considered the doctor competent to render an opinion. Thanks to Lauren Berenbaum for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Consider Reconsideration Carefully (NJ) March 7, 2013 < Back Share to: New Jersey’s Rules of Court allow parties to seek relief from judgments and orders based upon a showing of exceptional circumstances. However, it is important to remember that once such a motion has been decided, any subsequent motion seeking identical relief, no matter how it is presented, may be treated by the court as a motion for reconsideration and subject to specific standards. The plaintiff’s attorneys in the recent Appellate Division decision in Cafuli v. Paszul learned this lesson the hard way. The plaintiff’s trial attorney was unable to locate an expert witness who had been named during discovery, and who was needed to testify on plaintiff’s behalf to overcome the “verbal threshold” needed to avoid dismissal. Although plaintiff’s trial attorney was aware of the issue as of the first trial call, he did not inform the court of the issue or request additional time to obtain a new expert report until the sixth trial call -- approximately one year after discovery in the matter had ended. After the plaintiff’s trial attorney acknowledged that the plaintiff could not prove the case without an expert, the trial judge dismissed the matter. Plaintiff did not appeal that decision or file a motion for reconsideration. Four months later, plaintiff filed a motion to reinstate the complaint. That motion was denied. Again, plaintiff did not appeal or file a timely motion for reconsideration. Two months later, plaintiff again moved to reinstate the complaint, citing lack of diligence on the part of the plaintiff’s trial attorney. The trial court again denied that motion, ruling that it was essentially one for reconsideration, filed untimely and without merit. Plaintiff then filed a motion for reconsideration, which was denied. On review, the Appellate Division affirmed the trial court’s denial of the motion for relief from judgment and the motion for reconsideration. The court stated that the trial judge correctly recognized that plaintiff’s second motion, although couched as a motion for relief from judgment, sought the same relief as the first motion. Therefore, it was an improperly filed motion for reconsideration. As a result, the motion for relief from judgment and the motion for reconsideration were both properly denied. This case is a stark reminder that time limitations, especially on motions for reconsideration and appeals, are taken very seriously by the courts. This case also serves as a reminder that, no matter how a motion is “packaged,” the court will look to the substance of the requests for relief in determining whether the motion has been correctly filed. Thanks to Christina Emerson for her contribution to this post. If you would like further information please write to Mike Bono. Previous Next Contact

News Broken Real Estate Contract not Deemed a "Pending Claim" Against Law Firm June 3, 2009 < Back Share to: When applying for a professional indemnity policy, a typical question asks the applicant whether it is aware of any legal work performed that might lead to a claim against the law firm. Recently, in United National v. Granoff Walker & Forlenza, P.C., a New York federal court held that there was no duty of a law firm to answer this question in the affirmative despite the fact that the firm worked on a real estate transaction that ended unfavorably for its client. In the underlying case, GWF represented a client in a real estate transaction. The contract contained a mortgage contingency clause, which permitted the client 30 days to secure a mortgage commitment. The client told GWF that he intended to pay in cash for the purchase; the attorney relayed this information to the seller; the 30 days expired; and the seller cancelled the transaction. The seller’s right to cancel was ultimately upheld on appeal, and the client sued GWF for malpractice in not advising him of the consequences of the contingency clause. When GWF applied for insurance coverage, it answered “no” to the question regarding any potential claims. At that point, the real estate contract had already been cancelled, and a trial level court had already ruled against the client; but the matter was still on appeal. After the appeal was denied, GWF’s client told them they intended to file a malpractice claim. GWF then notified its professional indemnity carrier, United National, who disclaimed coverage on the basis that GWF knew about the cancelled contract when it applied for coverage. The court cited to a number of facts, including the point that GWF reviewed the clause with its client, who was a sophisticated real estate purchaser, and said a reasonable attorney would not have foreseen that the client would assert a malpractice claim. The court cited the “heavy burden” that an insurance carrier needs to establish in disclaiming coverage based on a prior knowledge exception, and indicated an attorney only needs to answer the question in the affirmative when the matters involve a “clear breach of duty, such as the failure to comply with the statute of limitations, attorney neglect, criticism by the court or disciplinary proceeding, or explicit threats of litigation.” Previous Next Contact

News No Insurance Experience-No English-No Excuse For Misrepresentation in NJ September 29, 2010 < Back Share to: In Rashabov v. Alfuso, the New Jersey Appellate Division affirmed summary judgment in favor of Selective Insurance Company based on plaintiff's misrepresentation in the application. The issue was whether Selective was required to provide PIP benefits to the plaintiff/insured and three other family members despite inaccurate information in the application regarding the number of adult residents in his household. Plaintiff argued that he lacked experience in obtaining automobile insurance and did not speak English. His application was completed with assistance from the dealership where he purchased the vehicle and listed the plaintiff as the only resident of his household. Investigation revealed that plaintiff resided with his wife, father, mother and two brothers who were all adults and three of whom also sustained injuries in the accident. The Appellate Division affirmed summary judgment finding a material misrepresentation. Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a3684-08.pdf Previous Next Contact

News In Pennsylvania, Homeowners Need Not Show Diminution In Value When Calculating Damages for Defective Construction Claims November 20, 2020 < Back Share to: In Woullard v. Sanner Concrete and Supply, the Pennsylvania Superior Court recently affirmed the lower court’s damages ruling, stating that the plaintiff homeowners were not required to present evidence of diminution in value of their home, attributable to the defective work, as part of calculating damages. Plaintiff homeowners hired several contractors to perform work on the home’s stonework, back porch, fireplaces, staircases, flooring, and windows. The homeowners filed suit for defective work against one contractor, Sanner Concrete, for defective stone veneer work, defective work on the back porch, and defective masonry work on the garage floor. The trial court ultimately concluded the work was defective and calculated the cost of repair to be $221,500, which was then awarded to the homeowners. Sanner Concrete appealed, arguing that the trial court incorrectly calculated damages because it only based its amount on the cost of repair, and did not consider the diminution in the home’s value. The Superior Court affirmed the trial court’s decision. It held that where the cost of repair is not grossly disproportionate on its face to the market value of the real property, the injured party is not required to present evidence of the value of the real property. Further, to determine whether cost of repair is grossly disproportionate to a home’s value, the comparison must be between the specific defect and the cost of repair—not the entire value of the home. Therefore, the trial court’s determination of damages was not grossly disproportionate on its face when compared individually to the market value of the home without the corresponding defects caused by Sanner Concrete. Thus, the homeowners did not have to show evidence of any diminution in value. Special thanks to John Lang for his contributions to this post. If you have any questions, kindly contact Thomas Bracken. Previous Next Contact

News Potential Playground Hijinx Lead to Dismissal of Case Dismissal for NYCHA (NY) August 12, 2020 < Back Share to: In Wilson v. New York City Housing Authority, the plaintiff, a minor, allegedly was injured when he slipped and fell off a wet playground equipment on a playground owned by the New York City Housing Authority (hereinafter NYCHA). The infant plaintiff slipped and fell when he climbed on the second step of a ladder which led to monkey bars. The plaintiffs allege that a built-in sprinkler, which shot water into the air for children to play in, was located in too close a proximity to the monkey bars and that this proximity caused the wind to blow water from the sprinkler onto the equipment. The lower court denied NYCHA’s motion for summary judgment on the grounds that there was a question of fact as to NYCHA’s creation of this alleged dangerous condition. However, on appeal, the Second Department reversed the lower court’s decision on the grounds that the manner by which the water got on the handlebars was speculative. Plaintiff at his deposition stated immediately before he went on the ladder to the monkey bars, two children who were wet from playing in the sprinkler climbed on the ladder. The Appellate Court reasoned that the wet children who preceded the infant plaintiff on the ladder, it would require impermissible speculation to conclude that the water on which the infant plaintiff slipped was caused by the proximity of the sprinkler to the monkey bars. Since there was a reason given for plaintiff’s fall, the Appellate Court ruled that NYCHA’s motion should have been granted. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News SDNY Holds That “Strikes, Riots, and Civil Commotion” Endorsement Extends Coverage to Summer 2020 Civil Rioting < Back Share to: In the wake of the civil unrest that occurred during the summer of 2020, the Southern District of New York has clarified its position with respect to insurance policy endorsements for retail storage losses caused by strikes, riots, and civil commotion (SR&CC) in Navigators Ins. Co. v. Goyard, Inc. , 2024 WL 360969 (S.D.N.Y. Jan. 31, 2024). In June 2020, the luxury leather storefront owned by Goyard suffered an overnight break-in and a loss of nearly $700,000 in merchandise. After recounting a few foundational pillars of New York’s insurance coverage law (including that an insurance contract must be read in its entirety, with endorsements taking precedence over standard form language, and that ambiguities in a policy are to be read against the insurer), the court addressed the parties’ dispute. The key point of contention was whether the policy’s SR&CC endorsement, which extended coverage for losses due to “labor disturbances or riots or civil commotions,” “vandalism, sabotage, or malicious acts,” and acts that were “carried out for political, terroristic, or ideological purposes,” would apply to retail storage losses. The court relied on extrinsic evidence in the form of email correspondence between the insurer and the retail broker, in which the insurer confirmed that the coverage afforded by the policy was to be more comprehensive than its standard-issue policy. This was supported by the significant increase in policy premium corresponding to the endorsement in question. The court granted the insured’s motion for summary judgment and ordered the insurer to reimburse the cost of the losses from the rioting. However, the court concluded by denying the insured’s request for attorneys’ fees because, generally, an insured cannot recover his legal expenses in an action against a carrier over coverage, even if the carrier loses the suit and is held responsible for the risk. Navigators Ins Co. v. Goyard Inc .pdf Download PDF • 172KB Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com Contact

News Fraudulent Claims Involving Staged Accidents on the Rise (NY) June 4, 2010 < Back Share to: In difficult economic times, an increase in insurance fraud often follows. Recently, the National Insurance Crime Bureau published a report showing that staged auto accident questionable claims increased by 46% from 2007-2009, despite the fact that auto personal injury claims and claims for PIP benefits decreased during that period. New York was the second highest state for such claims, falling only behind Florida. And the number one city? New York, with more than 1,300 claims. If you would like more information about this post, contact mbono@wcmlaw.com https://www.nicb.org//newsroom/press_releases/staged-accident-questionable-claims-up Previous Next Contact

News First to Strike? First to File? Court Allows Counterclaim After Statute Runs (NJ) October 27, 2017 < Back Share to: When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident? In Veronica Barley v. Arnell Barley, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations. Along with Arnell's answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint. Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant's counterclaim to be heard. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Heads up! NJ Appellate Division Holds That An Injured Plaintiff Need Not Establish Reckless Conduct On The Part Of Her Field Hockey Coach (NJ) October 1, 2021 < Back Share to: A recent decision from the New Jersey Appellate Division held that a student-athlete does not have to prove reckless conduct on the part of her coach to sue the coach and the board of education. See Dennehy v. East Windsor Regional Board of Education. In this instant case, the girls’ field hockey team were performing corner drills while the other members of the team were observing the drills from a “safe area” behind a ball stopper. At that time, the boys’ soccer team was practicing on the adjacent field and plaintiff observed several soccer balls vault the ball stopper. After the team had finished the corner drills, plaintiff asked her coach if she could take a shot on goal. The coach agreed because plaintiff, who was the goalie, rarely had an opportunity to take a shot on goal. Plaintiff left the area directly behind the ball stopper. Plaintiff was then struck in the back of the neck by a soccer ball. The trial court, of course, granted summary judgment, holding that case law required plaintiff to show that the coach engaged in reckless conduct. The appellate division reversed, reasoning that recklessness is the standard when the alleged tortfeasor is a co-participant in the sport. The Court distinguished the instant matter on that basis as here the coach was not a participant. This case is a good illustration of how an innocuous “instruction” by a coach led to tort liability on behalf of the school district. Nonetheless, this illustrates that Courts will occasionally bend over backwards to allow suits with minors to survive. Thanks to Michael Noblett for his contribution to this post. If you have any questions, please email Matthew Care Previous Next Contact

News Is the Value of Art Going Down? January 16, 2013 < Back Share to: Given our fine arts practice, we are tuned in to market value fluctuations since those fluctuations often dictate what an insurer must pay when a covered loss occurs. If this recent article is to be believed, the value of art is beginning to go down. If true, this could be good news for insurers. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Does Unloading Gas Line Pipes Off A Trailer Fall Under §240(1) Of The Labor Law? (NY) April 21, 2023 < Back Share to: Section 240 of New York Labor Law involves liability for injuries of construction workers who suffer a fall or are struck by a falling object. Liability is contingent upon the existence of an elevation hazard contemplated in §240(1) and the failure to use, or the inadequacy of, a safety device. In Castano v. Algonquin Gas Transmission, LLC, 213 A.D.3d 905 (2d Dep’t 2023), the Appellate Division, Second Department recently addressed whether §240(1) applied in a case where a worker was injured while working on a project to replace a section of an interstate natural gas pipeline beneath the Hudson River. Plaintiff testified that at the time of the accident, he was unloading pipes that weighed approximately 1,000 pounds each from a flatbed trailer. After he secured one of the pipes with a “choker” strap, a coworker lifted the pipe using a CAT excavator, the pipe dropped and struck the plaintiff’s leg. Plaintiff sued the pipeline owner and general contractor asserting various Labor Law claims. The defendants moved for summary judgment seeking a dismissal of the Labor Law §240 (1) claim, and plaintiff cross-moved on the issue of liability under the same provision. The trial court granted the defendants’ motion, denied plaintiff’s cross-motion, and plaintiff appealed. The Appellate Division reversed the decision of the trial court granting defendants’ motion as to the §240(1) claim, holding that the defendants failed to eliminate all triable issues of fact concerning that claim. In reaching its determination and focusing on applicability of the statute to falling objects, the Court reasoned that a plaintiff must show when the object fell it was being hoisted, secured, or needed securing for purposes of the undertaking. Further, the Court determined that a plaintiff must also show the object fell because of the absence or inadequacy of a safety device of the kind enumerated in the statute. With these considerations, the Court found the defendants failed to establish, prima facie, their entitlement to judgment as a matter of law on this claim. This case serves as a reminder that while certain tasks such as removing items off a flatbed trailer may not seem to fall within the purview of the Labor Law, accidents involving falling objects can trigger liability and courts will examine the facts to determine whether a plaintiff can meet the statutory requirements. Please contact John Diffley with any questions. Previous Next Contact