News NY Appellate Court Upholds Life Insurance Denial for Material Misrepresentation (NY) December 6, 2019 < Back Share to: In Neiditch v. William Penn Life Ins. Co. of N.Y., the Appellate Division, Second Department, addressed the issue of when an insurance policy may be rescinded for material misrepresentation on a summary judgment motion. The case involved a dispute over life insurance. The plaintiff was the named beneficiary under the policy and sued the insurer to recover the $1 million benefit under the life insurance policy after the decedent died from an anaphylactic reaction to a food allergen. The defendant insurer denied coverage, arguing that the policy should be rescinded because the decedent’s application for the policy contained a material misrepresentation with regard to the decedents prior medical history. The trial court agreed with the insurer and dismissed the case on summary judgment. On appeal, the Appellate Division considered the issue with particular attention to whether material misrepresentation was a question of law or fact. “Ordinarily,” the court found, “the question of materiality of misrepresentation is a question of fact for the jury. However, where the evidence concerning the materiality is clear and substantially uncontradicted, the matter is one of law for the court to determine”. The Second Department affirmed the trial court's decision and held that the insurer was entitled to summary judgment and that the policy was properly rescinded due to material misrepresentation, since the record was clear that the decedent did not disclose information about his prior hospitalizations for anaphylactic reactions. The decision serves as a reminder to both insureds and insurers about the gravity of material misrepresentations on insurance applications. Where the record shows a clear misrepresentation, courts will not hesitate, even on dispositive motions, to uphold policy rescissions. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News PA Court – A Mere ROR Does Not Give the Insured the Right to Its Own Counsel. September 9, 2010 < Back Share to: One of the constant issues a carrier must face is whether, by issuing a ROR, it has granted the insured the right to choose its own counsel. In the case of Eckman v. Erie Ins., a Pennsylvania trial court was confronted with just this issue -- http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1202470836794. In Eckman, the carrier assigned defense counsel to represent Eckman in a defamation lawsuit (under a ROR) while it investigated coverage. The Eckmans objected and argued that the ROR created a conflict of interest between themselves, assigned defense counsel and the carrier. They argued that the ROR entitled them to choose their own counsel at Erie’s expense. The court rejected this plea. It held that in the absence of an actual conflict of interest, the Eckmans were not entitled to choose their own attorney since the assigned defense counsel (under PA’s rules of professional responsibility) was ethically bound to exclusively advocate on behalf of the insured client. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

Gina M. Arnedos Partner Long Island garnedos@wcmlaw.com +1 516 873 0011 Professional Experience Over the last 35 years, Gina has gained vast experience litigating in State District Courts, Supreme Courts all over the State of New York, and Federal Courts in New York. She also has gained extensive experience in aviation defense work in the District of Columbia. Gina has amassed extensive experience in guiding clients on risk management issues and evaluating cases for settlement, motions for summary judgment, appeals and trial. Gina started her career with the Nassau County Attorney’s Office in 1987, while still attending law school. Under a practice Order from the Appellate Division, Second Department, Gina was able to litigate in State and Federal Court on behalf of the County and so gained valuable hands-on litigation experience before ever graduating and getting her law license. Since that time, Gina has litigated premises liability cases for a multitude of clients over the years, including department stores, camps, gyms, rock climbing facilities, horse farms, nursery schools, all manner of business and individual clients. She knows her way around a courtroom. Gina prides herself on being responsive and proactive in serving her clients’ needs and offering practical and sound legal advice. She strives to represent her clients in a cost-effective and straightforward manner in a logical and amicable fashion. She has demonstrated, however, that she will be aggressive in her representation when necessary. Gina has created and delivered presentations for various insurance companies, with her former partner, on practicing both in the New York State Courts and Federal Courts. Select Representations Gina represented Alaska Airlines in a plane crash of the coast of California and mediated multi-million-dollar death cases of passengers along with depositions of family members in order to value each individual passenger death case. Gina was part of a team of attorneys representing U.S. Airlines in a crash in Pennsylvania. Gina represents J.C. Penney in premises liability cases in several venues in New York and in Federal Court. She has also represented them in discrimination suits and false arrest matters stemming from arrests for shoplifting and stops in the store by Asset Protection personnel. Gina litigates for rock climbing facilities in New York toward trial and has negotiated favorable settlements on behalf of the facilities through mediation and direct negotiation with adversarial counsel in assumption of risk cases. Gina represents a high-end body shop on Long Island in multi-case litigation against such insurance carriers as Allstate, State Farm, Liberty Mutual, Progressive and others in both Supreme Court and Federal Court. Although the majority of the litigation is on breach of contract matters, Gina also litigates for them in Federal Court in multi-million-dollar suits stemming from various major insurance carriers’ photo-estimating programs. Gina represents various clients in construction accidents litigated in Labor Law matters. Gina also represents a manufacturer of industrial equipment in various personal injury matters. Honors and Distinctions The National Society of Leadership & Success 2021 Nassau County Bar Association News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education JD, New York Law School BS, Stony Book University Bar Admissions New York Court Admissions United States District Court for the Eastern District of New York United States District Court for the Southern District of New York United States District Court for the Western District of New York

News Minority Tolling Under N.J.S.A. 2A:14-2(a) Does Not Apply To New Jersey Wrongful Death Claims September 9, 2022 < Back Share to: In Monk v. Kennedy University Hospital, Inc., the New Jersey Appellate Division recently addressed whether the minority tolling provision in N.J.S.A. 2A:14-2(a), which allows minors to file medical malpractice claims until the age of 13, applies to wrongful death lawsuits filed on behalf of minor decedents or their estates. In that case, the parents of a deceased minor who died six months after his premature birth sued several defendants for medical malpractice and wrongful death. The lawsuit was filed more than 4 years after the minor’s death and defendants moved for summary judgment, arguing that the plaintiffs’ claims were barred by the two-year statute of limitations for wrongful death and survival claims. Relying on the minority tolling provision in N.J.S.A. 2A:14-2(a), the trial court denied the motion and found that the statute of limitations was tolled until the minor would have reached the age of 13. The Appellate Division reversed, holding that the minority tolling provision did not apply under the Wrongful Death Act, N.J.S.A. 2A:31-4. The court noted that when the Wrongful Death Act was drafted, the legislature intended for wrongful death cases be filed within two years of a decedent’s death and not to include minority tolling for claims brought on behalf of deceased minors. The court held that the minority tolling provision did not apply because the statute allows only actions “by or on behalf of a minor” and a “minor” refers to a living infant or person under the age of legal competence. The Court reasoned that had the Wrongful Death Act intended to apply minority tolling to claims brought on behalf of deceased minors, it would have stated so, and there was nothing in the plain language of the statute to suggest that. The court further observed that the purpose of the minority tolling was to give a minor the opportunity to assert his or her legal rights at an age of maturity. However, this opportunity does not exist once a minor dies. Because the minor in the case was deceased when the complaint was filed, the Court found that the two-year statute of limitations applied. However, the court also remanded the case back to the trial court to address the plaintiffs’ argument that they had substantially complied with the statute of limitations, an issue that had not been reached by the trial court. The Monk decision makes clear that wrongful death claims involving minors must be filed within the two-year statute of limitations and that the minority tolling provision for medical malpractice does not apply to such claims. Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Property owner has a non-delegable duty? Not when an independent contractor is involved in NJ. January 12, 2012 < Back Share to: When faced with a potential verdict against an uninsured construction manager, the plaintiff’s attorney tried to outflank the property owner with legal maneuvers to no avail. In Onda v. Ingegneri, a subcontractor’s employee was injured on a worksite while making a delivery. The worksite was a kitchen renovation project at an Inn. The owners had retained a construction manager for the large renovation project. However, that manager turned out to be uninsured. On the eve of trial, the plaintiff’s attorney realized the very real potential that a verdict might be rendered against the construction manager but leave his client without remedy. Thus, he sought to pin liability on the owners under the theory of non-delegable duty to maintain the premises for business invitees that is normally placed on an owner or occupier of land. To this end, the plaintiff sought to bar the owner from pursuing its cross-claim against the contractor. He also dismissed his claims against the contractor and then filed a motion to make a claim against the owners for negligent hiring of an uninsured contractor. The problem with the plaintiff’s strategy was that generally, one who engages an independent contractor is not liable for that party’s negligence in the performance of the contract unless the owner retains control of the manner and means the work is performed, the contractor is incompetent, or the activity involved is a nuisance. The court denied the plaintiff’s motions. First, the court recognized the owners’ right to pursue a cross-claim against their contractor. Second, the court rightly expressed concern that the motion to amend would entail presenting insurance information to the jury, something that is not permitted under our evidence rules due to potential for prejudice. Moreover, coming on the eve of trial, the court used its discretion to preclude a completely new theory against the defendants. At trial, the jury placed no fault on the property owner and divided liability between the plaintiff (31%) and construction manager (69%). The appellate division affirmed. See Onda v. Ingegneri, http://www.judiciary.state.nj.us/opinions/a5826-09.pdf For more information, contact Denise Ricci at dricci@wcmlaw.com Previous Next Contact

News Continuous Trigger Coverage Expanding in PA or Still Only About Asbestos? May 15, 2017 < Back Share to: That was the question (effectively) posed before the Commonwealth Court in the case of Pennsylvania Manufacturers' Association Insurance Company v. Johnson Matthey, et al. In the case (which was brought in the Commonwealth Court because PA's Department of Environmental Protection was a defendant), Pennsylvania Manufacturers sought a declaration that it did not owe coverage for an environmental contamination lawsuit filed by DEP against Johnson Mathey. In the underlying lawsuit, DEP alleged that from 1951 through to 1969, a Johnson Mathey predecessor company allowed hazardous substances (arising out of the manufacture of alloy tubes) to escape into Chester County, PA. Pennsylvania Manufacturers insured Johnson Mathey from 1969 through to 1971. The contamination was not discovered until 1980 and thus no contamination at the Site was detected during the Policy period. Pennsylvania Manufacturers, which assumed its insured’s defense under a reservation of rights, argued that for coverage to attach, the property damage must manifest itself during the policy period. The Commonwealth Court agreed with this basic coverage principle and noted that the “trigger of coverage under an “occurrence” insurance policy is ordinarily the first manifestation of the injury that is alleged to have been caused by the insured.” If only the decision had ended there! However, the court went on to write that under the reasoning of the J.H. France Refractories Co. v. Allstate Insurance Co., 626 A.2d 502 (Pa. 1993) decision (which expanded the trigger of coverage with respect to asbestos bodily injury claims and held that all “occurrence” policies from the date of exposure to the date of first manifestation are triggered), there was no specific reason for continuous trigger coverage to be limited to asbestos cases. The Commonwealth Court wrote that “the justification for the multiple trigger of coverage was not the peculiar nature of asbestos disease, but the long latency of the claim for which coverage was sought.” Applying this reasoning to the facts at bar, the Commonwealth Court held “On the record before us, this case therefore presents the long latency of continuing, undetected injury or damage that supports a trigger of insurance coverage prior to manifestation under the Supreme Court’s decisions in J.H. France Refractories Co. and St. John.” So, what does this mean for the insurance marketplace? What it means is that there are now, at least, two possible scenarios in which continuous trigger exposure applies in PA – asbestos and environmental pollution. We suspect to see the plaintiff’s bar citing Pennsylvania Manufacturers' Association Insurance Company v. Johnson Matthey, et al. in other contexts – and our suspicion is that the attack will start in the construction defect arena. Stay tuned for what happens next! For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Second Circuit Rules: A “Spoofing” Attack on Insured’s Email System Is a Covered “Computer Violation” July 11, 2018 < Back Share to: The U.S. Court of Appeals for the Second Circuit struck the final blow to an insurer’s attempt to narrowly construe a policy provision insuring against computer crimes in Medidata Solutions Inc v Federal Insurance Company. Judge Carter for the Court of Appeals recently upheld a S.D.N.Y. ruling that Federal Insurance owed coverage to its insured, Medidata Soultions, Inc., under its policy Computer Fraud Insuring Clause. In so holding, the Second Circuit, like the District Court before it, refused to countenance Federal’s argument that the policy definition for “Computer Violation” covered instances of hacking only, and not spoofing. Medidata’s policy with Federal insured it against any “direct loss… resulting from Computer Fraud committed by a Third Party.” A Computer Fraud was defined to result from a “Computer Violation,” which, in turn, was defined as the fraudulent entry, change or deletion of data from a computer system. In 2014, Medidata fell victim to a sophisticated spoofing attack in which unknown (and never apprehended) criminals manipulated computer code so that apparently genuine emails from a Medidata executive were sent to other Medidata employees. The recipients of the emails, believing that they were following the instructions of their boss with respect to Medidata’s acquisition of another company, transferred $4.7 million into the fraudster’s account. Federal insurance denied coverage for the loss, claiming that spoofed emails do not fall within the policy definition of a “Computer Violation,” because a spoofing attack is not a covered “hacking.” The S.D.N.Y. disagreed, finding that the unambiguous policy language plainly covered the spoofing attack at issue, because the fraudsters manipulated and changed the company email system with the spoofing code used to create the emails. Medidata was awarded $5,841,767 by the district court, representing their total losses plus interest. On appeal, Federal argued that the S.D.N.Y. decision created an overbroad precedent for computer fraud insurance coverage by allowing it “to cover all transfers that involve both a computer and fraud at some point in the transaction.” Federal also unsuccessfully argued that Medidata’s loss was not “direct” (and therefore not covered) because Medidata employees transferred the funds themselves. The Second Circuit affirmed the S.D.N.Y.’s reasoning that the manipulation of email coding was a clearly covered Computer Violation, and also held that the employee’s unwitting transfer of millions of dollars to the criminals was part of the spoofing attack, and not an intervening event. This decision provides further assurance to companies in New York that their computer fraud coverage insures against many variations of computer attacks and fraud. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Cheers, and Happy New Year from your Friends at Wade Clark Mulcahy! December 27, 2018 < Back Share to: Previous Next Contact

News Uncertainty with Per Occurrence Cap Regarding Loss and Expenses December 28, 2016 < Back Share to: In an interesting turn of events, the United States Court of Appeals for the Second Circuit did not issue a ruling in Global Reinsurance Corp. of America v. Century Indemnity Co.15-2164-cv (Decided December 8, 2016), and instead certified a question back to the New York Court of Appeals as to whether a per occurrence liability cap in a reinsurance contract limits the total reinsurance available under the contract to the amount of the cap regardless of whether the underlying policy is understood to cover expenses. In Global, the plaintiff moved for partial summary judgment seeking a declaration that certain reinsurance certificates capped the maximum amount that Global could be obligated to pay for both loss and expenses (including defense costs) combined. Under reinsurance certificates issued to Century, Global was to reinsure specified portion of general liability insurance policies that Century had issued to non-party Caterpillar Tractor Company. As a result of separate litigation, Century was required to reimburse Caterpillar for both indemnity limits of the policy and defense expenses, for which Century sought reimbursement from Global. Century argued that the reinsurance certificates only capped the amount of “loss” that Global was required to pay, and that Global was also required to pay any expenses, such as defense costs, that exceeded the “loss” amount. The Second Circuit found that there was uncertainty in whether there was a rule or a rebuttable presumption that “where a reinsurance contract is subject to a per occurrence liability cap, the cap limits the total reinsurance available regardless of whether the underlying insurance policy is understood to include expenses other than losses, for instance, defense costs.” The Second Circuit has asked the Court of Appeals to take up the issue. The resolution of this issue would determine whether in future cases the Court would construe each reinsurance policy solely based on its own language or based on a standard rule to be utilized uniformly. Once the Court of Appeals makes its decision, it will impact whether reinsurers will be able to cap the amount paid for defense costs. In the meantime, reinsurers should consider specific contractual language limiting the amount to be paid for defense costs. Thanks to Valeria Prizimenter for her contribution to this post.           Previous Next Contact

News Fact Issues Concerning Plaintiff’s Fault Precludes Summary Judgment in New York Labor Case (NY) September 8, 2023 < Back Share to: New York courts hold that comparative negligence is not a defense in cases involving a claim under Labor Law § 240(1). However, plaintiff’s fault can still form the basis for a defense and prevent plaintiffs from obtaining summary judgment as to a defendant’s liability under § 240(1). The Appellate Division, Second Department, recently addressed these issues in Elibox v. Nehemiah Spring Cr. IV Mixed Income Hous. Dev. Fund Co., Inc. In that case, the plaintiff was performing work on a construction project and was allegedly injured when a scaffold he was working on collapsed. Plaintiff sued the owner and general contractor on the project alleging violations of Labor Law § 240(1) and § 241(6). Plaintiff moved for summary judgment as to defendants’ liability under those sections and the trial court denied the motion. The Second Department affirmed, recognizing that although plaintiff’s comparative negligence is not a defense to a cause of action under Labor Law § 240(1), "[a] defendant is not liable under Labor Law § 240(1) where the plaintiff's own actions are the sole proximate cause of the accident." Viewing the evidence in a light most favorable to defendants as the non-moving party, the Court found that the trial court’s denial of plaintiff’s summary judgment motion was proper because the defendants raised a triable issue of fact by showing that (1) the scaffold was correctly constructed, and (2) that plaintiff affected the condition of the scaffold by removing the nails securing the plank upon which he was standing "in such a manner as to create the condition causing its collapse." In doing so, defendants were able to avoid summary judgment as to their liability and preserve the proximate cause defense for trial. The Elibox decision serves as a reminder that plaintiff’s fault is still a valid consideration in Labor Law cases and can represent a complete defense where a defendant can establish that plaintiff’s conduct was the sole proximate cause of an accident. Courts may find the existence of fact issues as in Elibox, but defendants should pursue the defense if there is evidence that plaintiff was at fault. It should also be noted that defendants in Elibox did not cross move for summary judgment, which would have imposed a higher burden of proof. Instead, they opposed the plaintiff’s motion and benefited from the reasonable inferences given to the non-moving party. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News D-Day for 9/11 Lawsuits? December 30, 2011 < Back Share to: The horrific events of 9/11 have spurred much litigation ranging in type from the scope of available insurance coverage to whether various foreign governments can be sued for their role in fostering the development of the terrorists who committed the attacks. One of the more complicated sets of litigation, however, has been the MC 100, MC 102 and MC 103 litigation in NY's Southern District. This litigation deals with individuals who claim they became sick after participating in the clean-up of lower Manhattan or in attempting to engage in rescue or other emergency operations. As you can imagine, the litigation is quite enormous and includes many thousands of plaintiffs. On January 3, 2012, many of those litigants must make a choice -- continue with their litigation or become eligible to share in a $2.76 billion federal fund that was created for people who developed illnesses after their 9/11 work. We shall see if this deadline brings the 9/11 litigation to a temporary end. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Evidence is Only Spoiled if Done with Spoilable Mindset < Back Share to: There is always a risk of evidence being spoliated in a case. Things can be unwittingly misplaced in the least severe case or intentionally destroyed in the most severe. However, just because the evidence was lost or destroyed does not always mean that the spoliating party is liable for sanctions. While a court does have generally wide discretion to award sanctions, in order to warrant it, a party must show: (1) that the evidence sought was key to that party’s claim/defense; (2) was in possession of the allegedly offending party; (3) that the offending party had an obligation to preserve it at the time of spoliation; and (4) that the offending party had the requisite state of mind, which includes ordinary negligence. Generally, if the offending party does not have knowledge of a pending or to-be-filed litigation and gets rid of the evidence pursuant to their standard business practices, such as auto-deleting surveillance video after 30 days or shredding papers after the requisite number of years it had to be held, then they will not be sanctioned. This was the case in DeVeerdonk v. North Westchester Restorative Therapy and Nursing Center . The decedent was a patient at a nursing and therapy center where she suffered two falls. The first fall was caught on camera in November 2013, but automatically overwritten two weeks later. Plaintiff was discharged to her home in 2014 and died in 2015. The lawsuit in this case was not filed until November 2016, almost exactly three years later. The Plaintiff sought sanctions from the nursing home for this, but the Court denied them, finding that at the time the footage was automatically deleted, the nursing home lacked the requisite notice to preserve the footage to warrant awarding Plaintiff sanctions. The Second Department agreed with the trial court and upheld the denial. In short, if you don’t have reason to think you’ll be getting sued anytime soon, you should be able to get rid of those old papers or property you no longer need. DeVeerdonk v. North Westchester Restorative Therapy and Nursing Center .pdf Download PDF • 814KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact