News Appellate Court holds Suicide Triggers Workers' Comp. Benefits (NY) October 22, 2010 < Back Share to: In the Matter of Smith v. Cornell University, the university appealed a decision of the Workers’ Compensation Board which ruled that the suicide of Smith’s husband was causally related to his employment. Mr. Smith was a painter employed by Cornell when he sustained work-related injuries in 2000 and 2001. Smith’s workers’ compensation claims arising out of a 2001 accident were based on a variety of ailments, including consequential depression. In 2007, Mr. Smith committed suicide and his wife filed a claim for workers’ compensation death benefits, which was approved by the Board. The Third Department upheld the award finding that death benefits may be awarded for a suicide that “resulted from insanity, brain derangement or a pattern of mental deterioration caused by work-related injury.” The Court found that Mr. Smith had previously alleged depression as an ailment resulting from the accident and his treating psychiatrist confirmed that Smith’s disability and accompanying chronic pain led to his eventual suicide. Although Cornell asserted that other factors contributed to Smith’s suicide, a compensable act need only be a contributing cause of a resulting mental injury. Thanks to Chris O'Leary for his contribution to this post. If you would like further information about this case, please e-mail mbono@wmclaw.com http://www.nycourts.gov/reporter/3dseries/2010/2010_07102.htm Previous Next Contact

News Too Sexy for Bank = Bank Dress Code? December 15, 2010 < Back Share to: You might have followed the story about the Citibank employee who claimed that she was fired for being "too sexy" -- http://abclocal.go.com/wabc/story?section=news/local&id=7525073 She is now pursuing her legal options. Perhaps in direct response to this problem UBS has just announced a bank dress code -- http://views.washingtonpost.com/leadership/post_leadership/2010/12/ubs-bank-dress-code.html?hpid=topnews. The code is quite specific and details such things as hair coloring (okay for women (so long as the roots don't show), but not okay for men (because it makes them look old) and what types of food are acceptable to eat at lunch (avoid garlic and onions). While the policy no doubt was well-intended, it seems certain that some type of discrimination claim will arise from its publication and/or enforcement. If you would like more information about this post or WCM's employment practice, please contact Paul Clark at pclark@wcmlaw.com or Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Made-Whole Doctrine Does not Apply to Deductibles or Self-Insured Retentions (NJ) July 30, 2020 < Back Share to: The Supreme Court of New Jersey recently determined that the made-whole doctrine does not apply to first-dollar risk allocated to the insured. In City of Asbury Park v. Star Insurance Company, the plaintiff filed a declaratory judgment action against a workers’ compensation insurer seeking determination that it was entitled to full reimbursement before the insurer could assert subrogation rights to settlement proceeds. The underlying incident involved a firefighter for the Asbury Park Fire Department who suffered injuries on the job. The injured party filed a Workers’ Compensation claim against the City of Asbury, which paid him its full self-insured retention limit of $400,000.00. Star Insurance Company (“Star”) supplemented that payment in the amount of $2,607,227.40. These two payments created a Workers’ Compensation lien entitling the City of Asbury and Star to reimbursement on any recovery against a third party. Eventually, the injured party pursued legal action against a third party surrounding the same incident. The parties reached a settlement agreement for $2,700,000.00. Thereafter, the City of Asbury and Star agreed that $935,968.25 of the settlement proceeds would be set aside for the workers’ compensation lien. Subsequent to this agreement, Star demanded the entire $935,968.25 amount claiming that, pursuant to its policy, it was entitled to reimbursement in full before the City of Asbury could recover anything paid on the self-insured retention. Conversely, the City of Asbury argued that it was entitled to reimbursement in full before Star could assert its subrogation right under the made-whole doctrine. In response, Star argued that the made whole doctrine did not apply to self-insured retentions as such application would unjustly enrich the self-insured party. Both parties moved for summary judgment on the issue. The District Court reasoned that an insured’s right to be made whole before the insurer can recover anything from a third-party tortfeasor can be altered by the insurance contract. As such, the Court found that the policy’s subrogation provision altered the City of Asbury’s right to be made whole. Additionally, the Court determined that the made-whole doctrine did not apply to first-dollar coverage such as deductibles or self-insured retentions because to hold otherwise would convert the policy to an insurance policy without a deductible. This, the Court concluded, would result in the City of Asbury gaining “an unbargained-for windfall at the expense of [Star].” The City of Asbury appealed the District Court’s decision and the Third Circuit eventually determined that the issue should be resolved under New Jersey Law. In its opinion, the Supreme Court of New Jersey relied on both the equitable principles of subrogation, such as the made-whole doctrine, as well as the rights agreed upon in the contract. The Court pointed out that it had never addressed the issue of whether the doctrine applies to first-dollar risk, such as deductibles and self-insured retentions, borne by insureds. The Court referenced similar case law in Connecticut, Pennsylvania, and Washington to ultimately determine that the made-whole doctrine does not apply to first-dollar risk allocated to the insured. Specifically, the Court noted that a self-insured retention or deductible is an amount of risk that the insured assumed in exchange for a lower premium cost. As such, where the award from a subrogation action against a third party is insufficient to reimburse both the self-insured and the excess carrier, to place priority to the self-insured would convert the policy into one without a self-insured retention. The Court determined that an interference like that would result in a windfall to the self-insured party and declined to find “that the equity dictates a departure from the terms of the insurance contract into which the parties voluntarily entered under such circumstances.” Overall, the Court opined that if the policy unambiguously provided Star with all of the City of Asbury’s rights to recovery against third-party tortfeasors in the event Star makes a payment under the policy, the made-whole doctrine would not apply to override that agreement. Thanks to Zhanna Dubinsky for this post. Please contact Vincent Terrasi if you have any questions or comments. Previous Next Contact

News Court Resists Urge to Assault English Language, and Enforces Assault Exclusion (NY) May 5, 2017 < Back Share to: Insurers are well aware of the length courts go to in declining to enforce intentional acts exclusions. Even in cases where the intentional nature of alleged misconduct is obvious, courts often refuse to apply intentional acts exclusions. While the reasoning is often artfully worded, the logic often goes something like this - - “well, the defendant may have intended to set that house on fire, but he may not have. Exclusion inapplicable." The Third Department recently resisted this approach in Graytwig v. Dryden. There, the insured was the owner of a bar whose employee allegedly injured a claimant when he forcibly ejected him from a bar. In the underlying action, the claimant alleged that he suffered injuries when the insured’s employee put him in a headlock and pushed him onto an icy sidewalk, where he allegedly hit his head. The insured sought coverage under his policy, which contained an assault exclusion. The exclusion, which stated it was “subject to the terms contained in the General Liability Coverage,” provided that “notwithstanding anything contained herein to the contrary…this policy excludes any and all claims arising out of assault, battery, fight, altercation, or similar misconduct…” The insured argued the exclusion was inapplicable because it was subject to the terms contained in the policy’s general liability coverage. The court rejected this "attempted assault" on the English language, based on the fact the exclusion contained the words “notwithstanding anything contained herein to the contrary.” The insured also argued the assault exclusion was inapplicable because the insured could be held liable under a negligence theory, the implication being that assault is an intentional tort. The court also rejected this argument, based on the reasoning that no cause of action would exist but for the alleged assault. Thus, there was no coverage. Negligence theories can often defeat intentional acts exclusions, but that often isn’t the case when the theory is assault, and the exclusion is specific. An exclusion generally referring to intent is often insufficient, but Graytwig is an excellent reminder that exclusions are more likely to apply when they are specific. Thanks to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News The Parents Aren’t Always To Blame September 9, 2016 < Back Share to: The Pennsylvania Superior Court ruled a parent-company was not responsible for its subsidiary’s actions. In Barnes v. Alcoa, Inc., Kawneer Company Inc. was a wholly owned subsidiary of Alcoa Inc. Kawneer hired G&M Crawford Inc. to remove snow and ice from Kawneer’s parking lot. A Kawneer employee, David Barnes, slipped and fell on ice while walking through the Kawneer parking lot, and sued Alcoa (among others) based on a theory of negligent hiring and negligent supervision. In response, Alcoa filed a motion to dismiss. In opposition, Barnes attempted to argue that the Kawneer employees who were responsible for the hiring and supervision of G&M were actually Alcoa employees. In assessing the validity of this argument, the court noted that the relevant employees had testified that they were employees of Kawneer (not Alcoa) and that Barnes had produced no evidence that Alcoa exercised direction or control over the employees’ actions. Conversely, the only evidence that had been produced by Barnes were paychecks that were issued from Alcoa to the employees, which the court deemed insufficient. Barnes also attempted to argue that the G&M snow and ice contract, at issue, was actually a contract between G&M and Alcoa. The court disagreed. Specifically, the court reasoned since the contract expressly stated that it was between G&M and Kawneer, the contract could not be found to be between G&M and Alcoa. Finally, Barnes attempted to argue that Alcoa exercised control over the parking lot. The court again disagreed. Although the court noted that Alcoa did send safety inspectors to the Kawneer facility, there was no evidence that the inspectors conducted any inspections / provided any services in connection with the parking lot. Consequently, the court concluded that Barnes could not sustain a claim for negligent hiring or negligent supervision against the Alcoa, the parent-company of the owner of the parking lot in which Barnes fell. This case reveals that Pennsylvania courts will likely analyze a parent company’s liability for the actions of its subsidiary on a case-by-case and fact-by-fact basis. Thanks to Colleen Hayes for her contribution to this post.       Previous Next Contact

News The Grave Importance of Record Keeping (NY) February 12, 2020 < Back Share to: In Couchman v. Nunez, Plaintiff was operating a motorcycle when involved in an accident with a delivery vehicle owned by defendant MTLR and leased to co-defendant BAM Produce Inc. Plaintiff alleged MTLR was negligent in failing to maintain and repair its vehicle. The trial court granted summary judgment to MTLR on the grounds that defendant could not be liable under the Graves Amendment (49 USC §30106), which preempts New York Law that all owners of vehicles are vicariously liable for the negligent acts of their permissive driver. Specifically, the Graves Amendment provides that the owner of a leased or rented vehicle cannot be held liable for personal injuries resulting from the use of such vehicle by reason of being the owner of the vehicle for harm to persons or property that results out of the operation of the vehicle during the period of the rental or lease if: (1) the owner is engaged in the trade or business of renting or leasing vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner. On Appeal, the Second Department ruled that summary judgment was improper because MTLR failed its prima facie burden. The court held that "where 'a plaintiff seeks to hold a vehicle owner liable for the alleged failure to maintain a rented vehicle' the owner is not afforded protection under the Graves Amendment if it fails to demonstrate that it did not negligently maintain its vehicle." Although the Court conceded that MTLR owned/leased the vehicle and was in the business of leasing vehicles, it concluded that MTLR's failure to produce evidence demonstrating the condition of the vehicle at the time of delivery to BAM Produce, or at any time up to the point of the accident, it found that MTLR was not entitled to summary judgment. The lesson learned for vehicle leasing companies is to create and maintain proper proof of regularly scheduled maintenance and vehicle condition. This will ensure that when sued, their lawyers can seek an early resolution under the protection of the Federal Law. As evidenced in this decision, a leasing company cannot take cover behind the Graves Amendment simply because it is engaged in the trade or business of renting vehicles. A regularly scheduled, detailed maintenance record under these circumstances could cut off liability of any potential claims by an injured plaintiff. Thanks to Raymond Gonzalez for his contribution to this post. For any questions or comments, please contact Vincent Terrasi. Previous Next Contact

News PA Court of Common Pleas -- All Interested Parties Must Be in the DJ. December 17, 2007 < Back Share to: Section 7440(a) of the Declaratory Judgment Act requires all interested parties to be joined in a declaratory judgment action -- or relief cannot be granted. In the case of Mine Safety Appliances Co. v. Century Indemnity Co., PICS Case No. 07- 2016, (which arises out of the manufacture of allegedly defective respiratory protection products) a Court of Common Pleas judge denied the insurer's motion for failure to name all interested parties -- which in this case included people who have not yet been identified, but someday might come forward with a claim or lawsuit. http://www.palawweekly.com/plw/printarticle.aspx?ID=24635 Previous Next Contact

News Storm "In Progress" Twelve Hours After Snow Stopped (NY) November 15, 2013 < Back Share to: The “storm in progress” rule provides that a property owner is not responsible for accidents occurring as a result of snow and ice accumulation on its premises until an “adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm." In Wei Wen Xie v Ye Jiang Yong, the Courts will provided an example of what constitutes an “adequate period of time.” Snow had been falling on February 10, 2010, during which the defendant homeowner shoveled his sidewalk between 5:00 and 8:00 p.m. The snow finally stopped around midnight that evening. Thereafter, the plaintiff fell on ice in front of the residence at about 8:15 a.m. the following morning. The homeowner moved for summary judgment and the trial court granted the motion. In affirming the decision, the Second Department held that a “reasonably sufficient time had not elapsed after the cessation of the storm to permit him to remove any additional snow or ice that had accumulated after his initial snow removal efforts.” Specifically, the time of 8:15 a.m., when plaintiff fell, was not sufficient time for the owner to remove the snow or ice, as the snow had stopped during the overnight hours. The Court also confirmed that the owner’s prior snow removal efforts did not exacerbate the icy conditions, as the owner salted the area after his shoveling, and the plaintiff’s unsworn expert report failed to raise a triable issue of fact. We do note, however, such circumstances may be fact specific, as this particular case was in regards to snow removal on a residential homeowner’s premises and the standard could be different in the case of a commercial property owner. Thanks to Jung Lee for his contribution to this post. Previous Next Contact

News Plaintiff's Suit against Golf Course Not Up to Par (NJ) February 6, 2019 < Back Share to: Plaintiff, a New Jersey resident, visited Greenbrier golf course in West Virginia after seeing advertisements during golf events broadcast on national network television and in nationally circulated golf magazines. While staying at Greenbrier, plaintiff slipped and fell on the golf course, suffering significant injuries. He treated for his injuries in New Jersey and New York City. Plaintiff sued Greenbrier in New Jersey, and Greenbrier subsequently moved to dismiss based on lack of jurisdiction. During discovery, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines. Its advertisements were limited to nationally televised media sources, national golf magazines, and social media pages. Greenbrier’s only direct contact with New Jersey was through letters and e-mails sent to New Jersey residents who had previously stayed at Greenbrier. Following discovery exchange, Greenbrier renewed its motion to dismiss for lack of jurisdiction in New Jersey. The trial court, upon reviewing Greenbrier’s position, granted the motion and dismissed plaintiff’s claim because Greenbrier did not have any direct contact with New Jersey, and there was no evidence of the minimum contacts required from Greenbrier to permit New Jersey Courts to exercise jurisdiction over the golf course located in West Virginia. Plaintiff filed a motion for reconsideration, arguing general jurisdiction, rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey courts. Even with the change in plaintiff’s legal position, Delgatto v. Greenbrier that general jurisdiction required systematic and continuous activity in New Jersey, and plaintiff failed to demonstrate such activity. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News You Might Not Need An Expert…But You Have To Show Something < Back Share to: In a recent federal court case in Pennsylvania, a judge ruled that expert testimony is not always required to show that a product is defective – but a plaintiff is required to show enough non–expert evidence to permit a jury to reasonably reach that conclusion. Block v. Gen. Motors LLC , No. CV 22-556, 2023 WL 8651376, at *1 (E.D. Pa. Dec. 14, 2023). In that case, Derek Block, an automobile technician, injured his finger on a jagged piece of metal while replacing a batter on a GMC Yukon. In his lawsuit, one of Block’s allegations was that GM “‘plac[ed] into the stream of commerce a defective’ metal bracing that caused his injury.” Id. GM moved for summary judgment, arguing in part that Block’s product liability claims failed because he did not produce expert testimony that the vehicle had a defect. Block argued that Pennsylvania law did not require him to produce expert testimony to prove his claims – and even if it did, Block could serve as his own expert given his experience as an automobile technician. The Court granted summary judgment in favor of GM on the products liability claims. At the outset, the Court stated that from the claims, arguments and limited evidence that had been presented thus far, it appeared Mr. Block was pursuing a design or manufacturing defect claim. The Court then distinguished when expert testimony is required in a case like this, and when it is not. Expert testimony is required is the subject matter of a products liability claim is of a “highly technical nature.” Id. at *3 (quoting McCracken v. Ford Motor Co. , 392 F. App'x 1, 3 (3d Cir. 2010)). On the contrary, expert testimony is not required where “testimony and pictures may enable the jury to clearly see the construction of the [allegedly defective product] and the manner of its use.” Id. (quoting Padillas v. Stork-Gamco, Inc. , 186 F.3d 412, 416 (3d Cir. 1999)). The issue here was whether Block produced enough non-expert evidence for a jury to find in his favor. The Court found that Block’s non-expert evidence, which consisted of his own deposition testimony and three photographs of the vehicle’s interior, was not sufficient to submit his claim to a jury. Finally, the Court noted that Block could prove his claim without an expert – but – there was just not enough non-expert evidence. This case reminds us of the importance of expert testimony in a products liability case – and in the alternative, provides an understanding of the extent of non-expert evidence a Plaintiff must show to prove their claim without the use of an expert. Block v. General Motors LLC .pdf Download PDF • 482KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

News No Fault Abuse Reexamined December 2, 2011 < Back Share to: The Court of Appeals recently addressed no fault abuse in reassessing three cases that dealt with allegations of “serious injuries” resulting from motor vehicle accidents. In Perl v. Meher and Adler v. Bayer, the Court reversed the Appellate Division, concluding that plaintiffs put forth evidence that was legally sufficient to make out their claims. In both instances, the plaintiffs had been initially examined by a physician who did not make contemporaneous quantitative measurements. Several years later, in preparation for trial, the physician made quantitative measurements regarding the plaintiffs’ limitation. The Court held that a physician who initially treats a patient need not make contemporaneous quantitative measurements since their primary concern is treating the patient. Taking the measurements years later - in preparation for trial - was deemed sufficient to meet the serious injury requirement. This decision clearly damages defendants’ abilities to obtain threshold dismissals, as it permits plaintiffs the opportunity to establish the existence of a serious injury years after their accident, in anticipation of trial, as well as in opposition to a defendant’s motion for summary judgment. On a positive note for defendants, the Court affirmed the dismissal of Travis v. Batchi, holding that a physician’s conclusion that a plaintiff has a “mild partial permanent disability,” absent a description of the disability, is insufficient to meet the serious injury standard. http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/206-208opn11.pdf Previous Next Contact

News New York Recognizes Claim For Consequential Damages Where Insurer Denies Claim in Bad Faith February 21, 2008 < Back Share to: New York has traditionally been a hospitable jurisdction for insurers. However, consistent with an alarming trend for the insurance industry , the New York Court of Appeals recently ruled that an insurer may be liable for consequential damages –including the collapse of a business—if it fails to “timely investigate, adjust and pay [a] claim.” Bi-Economy Market, Inc. v. Harleysville, involved a garden variety fire loss that resulted in the complete loss of a meat market’s inventory along with structural damage. Not unexpectedly, the insured put in a claim for buildings, contents and business interruption loss. The claim appears to have been disputed solely on the issue of the quantum of the loss. The dispute was submitted to alternate dispute resolution that resulted in an award in favor of the insured. However, the insured claimed that the delay and inadequacy of the insurer’s initial payment led to the destruction of its business, which never reopened after the loss. It filed suit against Harleysville seeking, among other things, consequential damages including those associated with the demise of its business. Breaking new legal ground in New York, the Court of Appeals recognized a cause of action for the bad faith denial of an insurance claim. More significantly, such a failure to act in good faith exposes an insurer to damages in excess of its policy limits, which in Bi-Economy Market included the destruction of the insured’s business. The Court did not explain what acts constituted “bad faith” on the part insurer but inferred that an insurer’s failure to proceed “honestly, adequately, and –most importantly—promptly” could support such a finding. Under Bi-Economy Market, insurers writing first party coverage in New York are now subject to extra contractual claims for consequential damages where they deny a claim in bad faith. We foresee that allegations of bad faith, particularly in the business interruption arena, will be pressed by those acting on behalf of insureds to force premature and inflated resolutions of first party claims. At WCM, we urge insurers to respond quickly when notified of a first party loss and be prepared to demonstrate that any dispute was the result of a good faith difference of opinion rather than one of indifference or worse. http://www.nycourts.gov/ctapps/decisions/feb08/14opn08.pdf Previous Next Contact