News Summertime at the Shore: NJ Limits Realtor's Duty for Rentals April 13, 2010 < Back Share to: Bad enough the real estate market has been in tatters for the last few years. Realtors have also faced expanding liability to entirely new classes of plaintiffs during this time period. Does their duty of care extend to a family that rents a summer shore house for a mere 2 weeks? A half-hearted "no," according to the New Jersey Supreme Court. In an unusual procedural twist, the justices split 3 to 3 (with one justice obstaining), a result that led to the affirmance of the appellate division decision dismssing the case. The Supreme Court noted that the renters had been in the rental home for 9 days before the accident occurred, more than enough time to observe the alleged defectively designed deck stairs. Focusing on the tenant's opportunity to inspect the premises, the majority stressed that it did not seek to absolve tenants from "personal responsibility for awareness of their surroundings and the dangers inherent in those surroundings." If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A9008ReyesvEgner.pdf Previous Next Contact

News Call Your Next Witness Podcast - Brian Gibbons Interviews Dan Solinsky of Edelman Krasin & Jaye PLLC May 19, 2021 < Back Share to: Check out the newest episode of the Call Your Next Witness podcast, where Brian Gibbons interviews plaintiff's attorney extraordinaire, fellow Bronx County District Attorney's Office & St. John's University School of Law alum, and all around good guy, Dan Solinsky of Edelman, Krasin & Jaye PLLC. Dan and I discuss our career paths, which began as prosecutors in the Bronx, and led us to where we are now, on "different sides of the aisle" as a plaintiff's and defense attorney, respectively. We also talk trial practice, mediation, client management, "playing nicely in the sandbox" as attorneys, and also, important things like Mets baseball, and whether Jacob deGrom will end 2021 with more hits or wins. Available here: http://ow.ly/osSy50EQvH1 or wherever you download podcasts. We hope you enjoy, and if you're interested in discussing podcast content, or being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News No Liability for Failure to Prepare for Snowstorm (PA) March 2, 2018 < Back Share to: In Pennsylvania, property owners’ duty to address ice and snow is delineated in the “hills and ridges” doctrine. The doctrine shields landowners from liability for generally slippery conditions resulting from ice and snow where the owner has not permitted the ice and snow to unreasonably accumulate in ridges or elevations. Typically, the doctrine provides a safe harbor after recent snow or ice accumulation. The doctrine’s principle is to preclude liability when general slippery conditions prevail in the community due to the weather as ice and snow is a reality of the climate. The limits of the hills and ridges doctrine were explored in Collins v. Philadelphia Suburban Development Corporation (“PSDC”). Collins slipped while leaving work and fell on an ice/snow covered sidewalk owned by PSDC and leased to Collins’ employer. That day, a blizzard started at 7 am and continued until about 1 pm. Collins admitted that he walked outside during the blizzard. PSDC filed a motion for summary judgment based on the hills and ridges doctrine, which the trial court granted. On appeal, Collins tried to convince the Superior Court that PSDC was liable because it did not take any steps before the forecasted storm to mitigate the icy effects. An exception to the hills and ridges doctrine is where the landowner’s neglect caused the icy/snowy condition. Collins argued that PSDC knew the blizzard was coming and failed to pretreat the sidewalk. Therefore, its neglect caused the icy/snowy condition. The court was unconvinced and held that PSDC’s failure to pretreat the sidewalk did not trigger the exception to the hills and ridges doctrine. The court found that PSDC had no affirmative duty to ensure the removal after the storm, and if the caselaw finds no duty during or after the event, then it makes no sense to impose a duty before the event. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News Ruff Witnesses: Pennsylvania Court to Analyze the Use of Emotional Support Animals During Trial March 12, 2021 < Back Share to: Testifying at Trial can be stressful for anyone. So stressful that some Courts agree to have emotional support animals present during trials. Recently, the Supreme Court of Pennsylvania, Middle District, granted a petition for allowance to appeal in which the Supreme Court will consider if the Superior Court erred in affirming the trial court’s decision to permit a dog to accompany a testifying witness. Additionally, the Court will decide that if a dog can be permitted to accompany a testifying witness, should a showing of need for special accommodation be required prior to its allowance? This will be the first time the Pennsylvania Supreme Court will consider when exactly support animals are proper during trials and what parameters are needed to implement this new guideline. This question arose when Sheron Jalen Purnell Commonwealth v. Purnell filed a petition for allowance of appeal challenging a May 2020 Superior Court ruling. The Superior Court had affirmed a trial court’s decision to permit a comfort dog to accompany an anxious witness to the stand. The underlying trial involved a 2016 shooting in which one of the witnesses was an autistic minor. This witness was permitted to have a comfort dog at the witness stand. While some may argue support animals may cause a distraction for jurors or lead to a more sympathetic jury, support animals may be necessary to aid a material witness in testifying at a trial. With no precedent in Pennsylvania regarding comfort animals, the Supreme Court’s decision could set up guidelines for both criminal and civil trials moving forward and set a more specific framework of when the use of a support dog is appropriate and what need must be shown for this special accommodation. Thanks to Madeline Troutman for her contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Federal Court Shuts Down Plaintiff On A Products Liability Warning/Defect Case (PA) December 16, 2022 < Back Share to: In the recent case of Mains v. Sherwin-Williams Company, United States District Court for the Eastern District of Pennsylvania reiterated a plaintiff must actually read the product’s warning labels, or provide evidence to support a reasonable inference that additional warnings may have prevented the injury. Plaintiffs’ suit for strict liability, negligence, and breach of implied warranty, alleged fire damage to their residence resulting from spontaneous combustion of defendants’ wood stain product. Defendant-Sherwin-Williams moved for summary judgment, arguing plaintiffs cannot prove causation on their strict-liability-failure-to-warn claim because they admitted to not reading the product’s warning labels. Plaintiffs’ home burned the night after Defendant’s wood stain had been used to stain the home’s outdoor deck. Plaintiffs alleged rags with the spontaneously combustible stain on them were improperly left out in the sun after use, which caused them to heat up and catch fire. The can of wood stain did have a small warning in the back of it, advising users of proper disposal methods, and the risk of combustion if such warning wasn’t adhered to.[1] Court held plaintiffs must show “evidence in the record to support a reasonable inference additional reminders may have forestalled” injury. While Plaintiff argued that “he may have read warnings on the can if they had ‘jumped out’ at him,” but he provided no expert to opine that the defective warning, or the product in general, caused the fire. The court found Plaintiff’s statement to be purely “speculative” and therefore insufficient to establish causation. Mains case clarifies necessity of causation evidence in a claim for defective warnings, and they must demonstrate that they either read the allegedly defective warnings, or provide evidence, beyond mere speculation, to support a reasonable inference that additional reminders may have prevented the underlying injury. By establishing these prerequisite hurdles for plaintiffs looking to sustain a defective-warning cause of action, the District Court’s decision is a victory for defendants and/or potential defendants subjected to products-liability-warning-defect claims.[1] Id. at 3. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Art Smuggling Practice Tips. October 15, 2012 < Back Share to: The black market in stolen art is big business. This interesting essay contains an interview of Michel Van Rijn, who was once the world's foremost art smuggler. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Rental Car Vicarious Liability February 5, 2008 < Back Share to: An appellate court in NY has ruled that federal law trumps state law with regard to vicarious liability of car-rental and long-term leasing companies. While NY law imposes vicarious liability on car owners - including rental and leasing companies - for accidents involving permissive users, the Transportation Equity Act of 2005 bars the imposition of vicarious liability on companies in the car rental and leasing businesses. With this decision, NY recognizes the primacy of federal law on this point. This is the first appellate ruling on the issue in NY and it now remains to be seen if the matter will be heard by NY's highest court. Previous Next Contact

News NJ Bounce House Can't Enforce Arbitration Clause July 22, 2016 < Back Share to: Anyone who has young children knows how popular the "bounce places" are for birthday parties, and has also needed to sign a waiver/release in order to allow their kid to participate. Typically, the waivers include the participant’s acknowledgment and acceptance of the risks involved in the activity, and a release of liability in the event of injury. These waivers are generally enforceable, but in Defina v. Go Ahead and Jump 1, a New Jersey court ruled on whether a party can also require the releasee to attend binding arbitration. The plaintiff’s father signed a waiver allowing the plaintiff to use the trampoline facility, and the waiver included an acknowledgment that the participant was giving up the right to a trial and agreeing to resolve any dispute allegedly arising out of the facility’s gross negligence at arbitration. Plaintiff was injured and (through his parents) filed a lawsuit in the Superior Court, which was met by the defendant’s successful motion to compel arbitration pursuant to the waiver. On appeal of the order compelling arbitration, the plaintiff argued that the arbitration provision was unenforceable because it did not clearly and unambiguously inform the consumer that they were giving up the right to file a lawsuit and have their claims resolved by a jury. The Appellate Division agreed. Importantly, the Court found that mere reference to a “trial” did not adequately explain to the plaintiff that he was waiving his right to pursue the remedies available in a court of law. Not surprisingly, now the defendant’s release includes specific reference to waiver of the right to a “trial in a court of law before a judge and jury.” Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

Pennsylvania Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – Pennsylvania WCM opened its Philadelphia Office in 2007 by WCM Partner Bob Cosgrove. Its attorneys stand ready to assist clients in defense and professional liability matters from Philadelphia to Harrisburg and in coverage matters throughout the Commonwealth. WCM’s Philadelphia office also handles work venued in NJ’s southern counties, like Camden. WCM’s Cyber and Data Breach Litigation Practice Group is also based in Philadelphia. WCM’s Philadelphia office also values working for the common good and its attorneys are active in volunteering for bar organizations and performing pro bono and community service activities. Contact Details 1515 Market St, Suite 2050, Philadelphia, PA 19102 267 239 5526 267 565 1236 Attorneys and Professional Staff Nabin Adhikari Law Clerk James D. Dudley Associate Bianca N. Gonzales Law Clerk Jason Laicha Counsel Caroline G. Nelson Associate James W. Scott Jr. Partner Jessica Whelan Associate Garrett Bolton Associate Charles N. Frank Associate Simone N. Henderson Associate Alexandra McShane, Pa.C.P. Litigation Paralegal Brian T. Noel Partner Sophia M. Summerill Law Clerk Robert J. Cosgrove Executive Partner Hannah M. Garber Associate Ryan Hunsicker Senior Associate Alison T. Maxwell Law Clerk Caroline O Associate Anand P. Tayal Associate D.J. Dawson Partner Laina T. Goldwin Associate Jennifer Corbett Kerrick Associate Jonathan I. Molchany Associate Dara S. Omotayo-Bradley Associate Jamonica D. Warren Associate

News Pennsylvania Supreme Court Expands UIM Stacking Waiver Requirements (PA) October 4, 2019 < Back Share to: The Pennsylvania Supreme Court recently held that increasing underinsured motorist (UIM) coverage constitutes a “purchase” which voids prior stacking waivers and requires insurance companies to offer insureds a new opportunity to waive stacking. In Barnard v. Travelers Home & Marine Ins. Co., the insured, Michelle Barnard, brought suit against Travelers Home and Insurance Company, claiming that the stacking waiver she signed with her initial policy purchase was no longer in effect because she subsequently increased her UIM coverage. In September 2007, Barnard purchased a personal automobile policy from Travelers, including UIM coverage of $50,000 for each of her vehicles, for which she waived stacking. In May 2009, she increased the UIM coverage to $100,000 for each vehicle and Travelers did not give her a waiver option. In June 2016, Barnard was involved in an accident and Travelers offered her $100,000, relying on her stacking waiver from 2007. Barnard sued Travelers for $200,000 claiming that her decision to increase her UIM coverage on both of her vehicles in 2009 constituted a “purchase”, and because Travelers did not give her the option to waive stacking, her policy defaulted to stacked UIM coverage. Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insured must be offered the option to waive stacked UIM coverage whenever a “purchase” occurs. Although the courts had previously held that simply replacing vehicles covered under a policy without changing policy limits did not constitute a purchase, there was no case law on point addressing whether increasing policy limits constituted a purchase. This case turned on the plain and literal meaning of “purchase”, which the Court found requires: (1) the acquisition of something; and (2) payment. This literal interpretation overcame Travelers’ numerous attempts to persuade the Court that a “purchase” refers to the initial policy purchase. Travelers argued that requiring an insurance company to offer a new stacking waiver every time policy limits are increased would be akin to requiring it to offer a new stacking waiver every time premiums increase due to inflation or because a new vehicle is added to the policy. Ultimately, the Court found that an insured can only “knowingly and voluntarily [reject] the stacked limits of coverage” for the present limits of the policy, and an insured cannot knowingly and voluntarily reject future stacked limits because he or she is unaware of what those limits will be. Thus, Barnard could not have knowingly and voluntarily rejected the stacked limits of $100,000 when she only had limits of $50,000 in 2007. Furthermore, requiring an insurance company to offer a stacking waiver with increased UIM policy limits is not akin to requiring it to offer a stacking waiver with increased premiums because although the second part of a “purchase” is satisfied (“payment”), the first is not (“the acquisition of something”). When premiums increase, the insured is not getting anything beyond what was stated in the initial policy. When policy limits are increased, the insured is getting more coverage and making a payment for it. The Court also rejected Travelers’ public policy argument, finding that public policy simply cannot contravene the plain meaning of the statute. Thus, the Court concluded, when an insured increases his or her UIM coverage on more than one vehicle, the insured must be offered a new stacking waiver or else the insured's UIM coverage automatically stacks. Accordingly, insurers should keep in this case in mind when UIM coverage is being increased under a policy. Thank you to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News A Policyholder Involved In Numerous Lawsuits On Same Subject Matter Can Be Precluded If Default Judgment Is Entered In One Of The Actions Under The Doctrine Of Res Judicata (NY) December 17, 2021 < Back Share to: Default judgment entered against an insured in one action can impact affirmative litigation by that insured in other lawsuits it they address the same subject matter. In Columbus Imaging Center v. Country Wide Insurance Company, 2021 WL 4127246 (Civil Ct., Queens County 2021) (“Civil Court Action”), Plaintiff (“Columbus Imaging”) sued Insurance Company (“Country Wide”) to recover unpaid first party No-Fault benefits for medical services provided to Columbus Imaging’s assignor Javier for injuries sustained in an automobile accident. In a separate lawsuit filed with the Supreme Court in New York County (“Supreme Court Action”), Country Wide sued Javier, Columbus Imaging, and other nonparty medical service providers seeking a judgment declaring Country Wide owed no duty to pay No Fault claims arising from Javier’s automobile accident. In the Supreme Court Action, Country Wide argued they had no duty to pay due to Javier failing to appear for a scheduled examination under oath (“EUO”). Country Wide moved for default judgment against all defendants in the Supreme Court Action, including Javier and Columbus Imaging. The Supreme Court granted Country Wide’s motion for default judgment and declared Country Wide was “not required to provide, pay or honor any current or future claim for no-fault benefits” under Country Wide’s policy to Javier. After securing the default judgment in the Supreme Court Action, Country Wide moved for summary judgment in the Civil Court Action on the ground that the action is barred by res judicata. Under the doctrine of res judicata, a party may not litigate a claim where a judgment on the merits exists from a prior action between the parties involving the same subject matter. That is, once a claim is brought to a final conclusion in one action, all other claims arising out of the same transaction are barred, even if based on different theories or if seeking a different remedy. The Civil Court determined the parties and the subject matter in the Civil Court Action were identical to those in the Supreme Court Action. As such, the Civil Court held that any judgment in Columbus Imaging’s favor would adversely affect the rights and interest created by the default judgment in the Supreme Court Action. Ultimately, res judicata barred Columbus Imaging from continuing with the Civil Court Action, and Country Wide’s motion for summary judgment was granted. Thanks to Drew Fryhoff for his contribution to this article. If you have any questions, please contact Tom Bracken. Previous Next Contact

News New York Contractor Battles For Coverage (NY) June 26, 2020 < Back Share to: Queens Pioneer Construction Corp. (“Queens Pioneer”) commenced a breach of insurance contract action in the United States District Court for the Eastern District of New York seeking damages and a declaratory judgment associated with insurer Illinois Union’s coverage disclaimer and withdrawal from the defense of a civil suit. The underlying lawsuit was initiated by Juan Algeria Reyes, an employee of Queens Pioneer, who was allegedly injured while working on a construction project. Mr. Reyes brought a personal injury action against ILE Construction Group, the general contractor who was responsible for hiring Reye’s employer, Queens Pioneer, to perform work at the project. In turn, ILE impleaded plaintiff's employer, Queens Pioneer. Queens Pioneer tendered to its liability insurer, Illinois National, who initially assumed the defense of the claims against Queens Pioneer. However, they later sent a follow-up letter stating, “we regret to inform you that no coverage exists.” Queens Pioneer states in their Complaint, that as a result of their reliance on Illinois National initially controlling the defense, Queens Pioneer did not hire personal counsel or pursue early resolution. Illinois National’s decision to revoke the defense coverage stemmed from language in the policy limiting the type of work that can qualify for coverage when an incident occurs. Queens Pioneer asserts in their complaint that the specific type of work they perform falls under the policy's covered classifications - including carpentry, wall installation, door assembly, dry wall, painting, flooring, siding and masonry. Queens Pioneer’s breach of contract action against its insurer illustrates the challenges both construction companies and insurers face when a contractor's trade is not clearly documented in the construction agreements, scope of work, certificates of insurance, or by policy endorsement. Notwithstanding the current pandemic, the construction industry in New York has maintained a relatively stable pace of production, without any signs of slowing down. Accordingly, now, more than ever, it is incumbent on both owners and general contractors to take into account a prospective contractor’s general liability coverage to the same degree as they would consider costs and reputation. Thanks to James Papadakis for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact