News A Lease is a Lease, Regardless of Common Ownership (NJ) April 26, 2019 < Back Share to: In Mastrangelo v. Khanna, the court examined whether the common ownership of two entities that enter into a lease agreement has an impact on the provisions of the lease. Plaintiff Mary Mastrangelo was an employee of Metuchen Cardiology. The plaintiff worked in an office building owned by Khanna Realty, and leased to Metuchen Cardiology. Dr. Sunil Khanna was the owner of both Metuchen Cardiology and Khanna Realty. Under the terms of the lease agreement, Metuchen Cardiology was required to maintain and repair the property. The plaintiff was injured in the interior of the premises, and filed suit against the property owner Khanna Realty. The trial court dismissed the claims against Khanna, finding that Khanna Realty had no duty to repair and maintain the premises under the terms of the lease. The plaintiff appealed, arguing that Dr. Khanna’s common ownership of both entities negated the provisions of the lease insulating Khanna Realty for responsibility for the building. The Appellate Court upheld the findings of the trial court, noting that the lease provisions were clear and unambiguous, and the two distinct entities were free to delegate duties for the property regardless of common ownership. Thanks to Heather Aquino for her contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact

News Affidavit of Restaurant Manager Insufficient to Thwart Constructive Notice Claim (NY) February 7, 2018 < Back Share to: In Lewis v Carrols LLC, the Fourth Department recently discussed the practical obstacles faced by a defendant in showing that it neither created, nor had notice of, a defective condition. The claim arose from injuries suffered by plaintiff when she allegedly slipped on water in the vestibule of a restaurant owned by defendant. In plaintiff's complaint and bill of particulars, she alleged that defendants either created the dangerous condition or had actual or constructive notice of it. The Supreme Court denied defendant’s motion to dismiss to dismiss the complaint in its entirety, and defendant appealed. On appeal, the Fourth Department noted that defendant submitted evidence that it was raining on the date of loss, and that any water accumulation in the vestibule was a "result of the weather conditions as opposed to an employee spoiling anything in the floor." Accordingly, the Fourth Department held that defendant did not create the condition as a matter of law, and the Supreme Court erred in denying that part of defendant’s motion. The defendant also provided an affidavit from the restaurant manager establishing that she did not personally observe any dangerous condition when she inspected the vestibule approximately thirty minutes before plaintiff’s accident. However, defendants failed to submit evidence that 1) other employees did not observe water on the floor or 2) that there were no complaints about the allegedly wet floor prior to plaintiff’s accident. Accordingly, the Fourth Department held that defendant failed to establish that lacked actual notice of the allegedly dangerous condition, as a matter of law. In its discussion of constructive notice, the Court noted that defendant “cannot satisfy its burden merely by pointing out gaps in the plaintiff’s case, and instead must submit evidence concerning when the area was last cleaned and inspected prior to the accident.” In addition to submitting the restaurant manager’s testimony that she inspected the area approximately thirty minutes prior to plaintiff’s accident, defendant also submitted the testimony of plaintiff’s husband, another restaurant employee. In contrast to the manager’s testimony, plaintiff’s husband testified that the manager was not even present in the restaurant at the time of the accident. He also testified that the area had not been inspected for at least five hours prior to the plaintiff’s accident. While defendant tried to argue that the husband’s contrary testimony was not credible as a matter of law, the Fourth Department instead felt that this testimony created as issue of fact as to when the vestibule had last been inspected. Overall, this decision is interesting because, while defendant proved that it did not create the hazardous condition as a matter of law, the defendant’s own motion showed the existence of issues of fact regarding notice. The restaurant manager’s affidavit indicated that she inspected the area just half an hour prior to the accident. However, defendants also submitted a contradictory affidavit from plaintiff’s husband. Accordingly the Fourth Department held that that defendants failed to prove it lacked actual and constructive notice of the dangerous condition as a matter of law. This decision highlights the uphill battle defendants face in New York. This defendant provided an affidavit a restaurant manager, who inspected the subject area 30 minutes before the accident -- and this was not enough to avoid summary judgment. Thanks for Evan King for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Plaintiffs May Name Insurance Carriers as Defendants in UIM Cases (PA) October 24, 2013 < Back Share to: The Pennsylvania Superior Court recently held in Stepanovich v. McGraw that co-defendants in underinsured motorist cases are not prejudiced under the Rules of Civil Procedure where the plaintiff names his own insurance carrier as a defendant. In Stepanovich, the underlying action arose out of motor vehicle accident wherein defendant McGraw allegedly ran a red light and struck the plaintiff while he was crossing the street. In addition to suing McGraw, the plaintiff also named State Farm as a defendant for failure to pay underinsured motorist benefits. Despite the plaintiff’s foresight, however, the trial court sustained McGraw’s preliminary objections to the suit and bifurcated the claims so as to insulate the individual defendant from inadmissible evidence of (inadequate) insurance under Pa.R.C.P. 411. Still, the trial court allowed State Farm to participate in the case on the condition that it did not allude to insurance coverage or payments. Ultimately, an Allegheny County jury returned a complete defense verdict in McGraw’s favor and denied the plaintiff recovery for his injuries. Dissatisfied with the outcome below, the plaintiff appealed to the Pennsylvania Superior Court where he argued that the trial court unnecessarily confused the jury by refusing to identify State Farm as a defendant in the case. Moreover, the plaintiff contended that he was unfairly prejudiced by having both defendants contest liability while only one remained available on the verdict sheet. Interestingly, the Superior Court agreed with the plaintiff’s articulation of the law but nonetheless denied his request for a new trial. Specifically, the Superior Court explained that while Pa.R.C.P. 411 generally prohibits the introduction of liability insurance into evidence because it invites the jury to overvalue damages, allusions to underinsured motorist coverage are unlikely to prejudice the defendant where such benefits do not by their nature indemnify third-party tortfeasors. Nevertheless, the plaintiff in Stepanovich failed to demonstrate actual prejudice insofar as State Farm’s absence from the verdict sheet did not bear directly on the question of McGraw’s negligence. As a result, the plaintiff could not demonstrate reversible error and the trial verdict was affirmed in favor of the defense. Given the nature of the Superior Court’s decision, Stepanovich serves as a reminder that the prohibition against evidence of insurance is not absolute, but rather depends on the specific relationship between the type of insurance and the defendants in the case. Thank to law clerk Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Step Risers Into Showers Are Not Open And Obvious (NY) January 6, 2023 < Back Share to: New York Courts recently held that a step riser in a shower stall in a gym locker room is not obvious and not dangerous. In Lore v. Fitness International LLC , plaintiff tripped and fell on a tiled single-step riser while entering a shower stall in the locker room at defendant’s gym. The single-step riser was approximately 4.5 inches high but was tiled in the same color and pattern as the floor tiles. In New York, the possessor has a duty to maintain the property in a reasonably safe condition. However, there is no duty to protect against an open and obvious condition that is not inherently dangerous. The Supreme Court granted the defendant gym’s motion for summary judgment on the grounds that the single-step riser was open and obvious and not inherently dangerous. On appeal, the Second Department reversed and concluded that defendant gym did not establish that the step riser was not inherently dangerous under the surrounding circumstances, including the lighting conditions at the time of the accident. This decision will raise the bar on summary judgment when arguing open and obvious conditions. Circumstances surrounding the condition will need to be addressed in summary judgment arguments. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY App Div Rules Polished Floors Not a Cause of Action December 29, 2009 < Back Share to: In Acunia v. New York City Department of Education, the plaintiff was an eighth grader who slipped and fell while playing basketball in the school gymnasium. The Department of Education moved for summary judgment which was granted by the Supreme Court in Bronx County. The plaintiff appealed and the First Department affirmed finding that, although plaintiff does not bear the burden of identifying the precise cause of his slip and fall, mere speculation is inadequate. The court noted that, the fact that a floor is slippery by reason of its smoothness or polish, in the absence of any proof of the negligent application of wax or polish, does not give rise to a cause of action, or even an inference of negligence. At his deposition, the plaintiff testified that the waxed floor was not wet, that he did not see any accumulation of wax on the floor and he never experienced any slipperiness prior to his accident. Based on this testimony, the court found that, absent proof of negligent application of wax or polish, the fact that floor was slippery because of its smoothness or polished state did not rise to a cause of action. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_09537.htm Previous Next Contact

News Katrina and Loose Barges -- That Couldn't Possibly Cause a Coverage Dispute, Could It? March 18, 2010 < Back Share to: On August 29, 2005, New Orleans, Louisiana was devastated by Hurricane Katrina. During the course of the hurricane, hundreds of barges and vessels broke away from their moorings, causing substantial damage. Barge ING 4727 was one such barge which broke away during the storm. Afterwards, some theorized that Barge ING 4727 actually caused the breach in the levee on the Lower Ninth Ward of New Orleans. What followed was an onslaught of litigation for claims against several defendants, including Lafarge, a company which provides construction materials throughout the United States. Lafarge was the operator allegedly responsible for the terminal to which Barge ING 4727 was moored just prior to the storm. Lafarge had primary insurance coverage through NYMAGIC, and excess coverage through AHAC, NACA, and American Club. Upon learning of the potential casual connection between the barge and the breached levee, Lafarge took proactive steps to begin preparing a defense against any potential litigation. Thus, Lafarge hired two large (and thus very expensive) national law firms (Goodwin Proctor and H&K), as well as a local counsel (Chaffe), to begin assessing their potential mass tort liability. Upon notification that Lafarge had retained the three aforesaid firms, NYMAGIC informed Lafarge that they could not commit to paying for firms which they did not appoint, and instead offered a list of six New Orleans firms to handle the case. Lafarge declined to consent to the representation of any of the named firms, and instead continued to utilize their self-selected attorneys. Three separate declaratory judgment actions were filed in the United State District Court for the Southern District of New York seeking coverage. The District Court granted the American Club’s Motion for summary judgment in the matter, holding that coverage was not afforded under that excess policy. Furthermore, the court held that the excess carriers were obligated to cover Lafarge. Lastly, the district court held that the primary and excess carriers were obligated to cover the legal fees earned by Goodwin Proctor and H&K. An appeal resulted. On appeal, NYMAGIC, Lafarge, AHAC, and NACA argued that the American Club Policy covered Barge ING 4727. Lafarge also challenged the District Court’s holding that the primary and excess policies did not cover the legal fees earned by Chaffe; and the court’s refusal to award attorneys fees in connections with the motions for summary judgment. Finally, NYMAGIC, AHAC, and NACA challenged the decision that excess polices were triggered, and that the primary and excess policies covered the legal fees earned by Goodwin Proctor and H&K. The Second Circuit has now ruled. It first examined the excess policy issued to Lafarge by American Club. Although there was no explicit endorsement naming Barge ING 4727 as a vessel covered under the policy, Lafarge argued that the barge was automatically covered pursuant to the following provision: If Lafarge…acquires an insurable interest in any vessel in addition to or in substitution for those set forth herein, through purchase, charter, lease or otherwise,… . The appellate court declined to confer a broad interpretation of the phrase “or otherwise”, as such a broad interpretation would effectively nullify two entire phrases in the policy. The court also considered extrinsic evidence which revealed that the clause was never intended to cover barges such as Barge ING 4727. Ultimately, the court held that “otherwise” did not include the kind of relationship associated with a ship owner’s bailment to a terminal operator. Thus, the appellate court upheld the district court’s decision to grant summary judgment on behalf of the American Club. Next, the appellate court held that the primary and excess carriers were liable for the fees payable to Goodwin Proctor and Chaffe which were incurred prior to September 28, 2005. After that date, Lafarge acted in bad faith by failing to consider the list of firms proposed by NYMAGIC; thus, the insurers were not liable for any amounts incurred after that date. The court also held that the fees earned by H&K were recoverable because they were retained on a temporary basis for an investigative mission. Lastly, the appellate court found that the District Court did not abuse its discretion by denying Lafarge’s motion for attorney’s fees, as the denial was not based upon any attempt by the insurers to avoid their duty to defend Lafarge. Special thanks to Heather Aquino for her contributions to this post. If you have any questions about its contents, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9415075 Previous Next Contact

News Fraudulent Joinder To Retain State Jurisdiction Denied By Federal Court Of Appeals (PA) June 2, 2023 < Back Share to: In Williams v. John Middleton Company, the Third Circuit Court of Appeals recently issued an opinion instructive as to what might make for a fraudulent joinder of a defendant for the purposes of avoiding federal court. In the case, plaintiff filed a products liability action after allegedly being injured from attempting to light a cigar/cigarillo which resulted in an explosion. Of the four defendants in the case, two were residents of Pennsylvania and two were not. One of the non-Pennsylvania defendants removed the case to federal court, asserting that the two Pennsylvania defendants were fraudulently joined and that the federal court therefore had “diversity jurisdiction” over the case. The plaintiff subsequently filed to remand the case back. to Pennsylvania state court. The federal court’s review of joinder law recounted that, in a case with defendants who have the same residency as the plaintiff, a defendant who does not have that same residency may still remove the case to a federal court if “it can establish that the non-diverse defendants were ‘fraudulently’ named or joined solely to defeat diversity jurisdiction.” Williams v. John Middleton Co., No. CV 23-1158, 2023 WL 3393413, at *1 (E.D. Pa. May 11, 2023) (quoting In re Briscoe, 448 F.3d 201, 216 (3d Cir. 2006)). Likewise, if there “is no reasonable basis in fact or colorable ground supporting the claim against the joined defendant[s], or no real intention in good faith to prosecute the action against the defendant[s] or seek a joint judgment” then joinder is fraudulent. Id. Despite focusing on the plaintiff’s complaint and assuming that all allegations were true, and without deciding any merits of the case, the federal court decided that the 2 defendants were indeed fraudulently joined and thus denied the plaintiff’s motion to remand. To make this decision the federal court noted that it did however have the ability to look beyond the pleadings and consider other indicators of fraudulent joinder, such as affidavits presenting “undisputed facts.” Id at 2. The federal court found that the third defendant, who admitted to owning the premises, which in turn was leased to another company which manages a gas station on the property, could not be held liable for the alleged defective cigarillos or lighter, because it was merely a real estate holding company and the contention that it “manufactured, or distributed” the cigarillo or lighter was not supported by the records. Id. at 3. Thus, the court concluded that there was “no reasonable basis in fact or colorable ground supporting” the claims of the plaintiff. Id. The third defendant was accordingly dismissed from the case. The fourth defendant was likewise dismissed from the case, though for a different reason. Simply put, the fourth defendant was found to have been misidentified by the plaintiff, and the plaintiff’s records indicating similarly named entities therefore did not contradict the defendants’ assertions that the fourth defendant had nothing to do with the case. There are two important reminders to be taken from the federal court’s decision about fraudulently joined defendants: (1) an owner of a premises which sells products is, not necessarily, part of the manufacture and distribution of those products and therefore might be fraudulently joined; and (2) having the same, or a similar name, to an entity which would be a proper defendant certainly does not mean that one is itself a proper defendant, and any such joinder might be fraudulent. Thanks to Ryan Hunsicker for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Slip And Fall Recovery Requires Something More than Just: 1) A Slip and 2) A Fall (PA) January 9, 2020 < Back Share to: "Slip and fall" cases are so common that many people, even some seasoned professionals, lose sight of the fact that a plaintiff must establish more than a slip and fall in order to recover. In the recent case of Biggs v Sam's East the U.S. District Court for the Western District of Pennsylvania reaffirmed this basic principle. In Biggs, the plaintiff was a woman who slipped and fell at a Sam’s Club café in Monroeville, Pennsylvania. According to the plaintiff, she sat down at the store's café with her sister and saw an elderly woman fall to the ground. As she got up to the help the woman, she also fell to the floor. While the plaintiff admitted that she did not notice anything about the flooring or any substance on the ground, she claimed the floor was slippery, and that her pant leg felt damp after the fall. Similarly, the Sam’s Club customer incident report only stated that the floor was “very slippery” but made no mention to any substance or dangerous condition on the floor itself. Plaintiff’s complaint referred to the Sam’s Club floor as “an unnaturally slippery floor” and claimed that Defendant “knew or should have known of the dangerous condition and failed to warn or eliminate the hazard to its invitees.” With no identifiable dangerous condition, plaintiff’s counsel then attempted to depend upon surveillance video and claimed that prior to Plaintiff’s fall, a patron spilled a drink and wiped the drink with his foot. The Court found that the video was grainy and that “the video contains absolutely no visual of someone spilling a drink.” The Court held that it could not consider this theory pursuant to Federal Rule of Civil Procedure 56, as Plaintiff’s counsel was relying on a mere theory/speculation to what the video depicted. An expert also tested the floors for slip resistance and opined that the floors of Sam’s Club “met the scientific criteria for a slip resistant floor and that a slip and fall incident would not be expected or likely under normal conditions (i.e. without the presence of a foreign substance).” The Court relied upon the Restatement (Second) of Torts § 343 and stated that Pennsylvania courts, when construing § 343, found where the Plaintiff can show that a dangerous condition is “traceable to the proprietor or his agents, then the plaintiff need not prove that the owner had actual notice of the condition. . .” However, here, no reasonable jury could find that Defendant breached a duty to the Plaintiff as Plaintiff stated that she did not see the floor in front of her before she fell, and she never identified any foreign substance or dangerous condition on the floor. She merely described the floor as being “very slippery” and stated that her pant leg was damp. Thus, the Court granted the Defendant’s motion for summary judgment because Plaintiff failed to raise an issue of material fact that there was a dangerous condition in the café area of which Defendant had actual notice, or that the condition existed for such a length of time that Defendant should have known of it as required under Pennsylvania law. Biggs should provide some comfort to store owners and the insurers because it reaffirms that a slip, a fall, and a plaintiff's bald characterization is insufficient for a plaintiff to recover. Without a dangerous condition of some sort, no recovery can be had. Thanks to Emily Finnegan for her contribution to this post. Please email Michael Gauvin with any questions. Previous Next Contact

News NJ Plaintiff Injured During Tour of YMCA Is Barred From Suit August 16, 2012 < Back Share to: In a recent decision, the Appellate Court upheld summary judgment based upon New Jersey's Charitable Immunity Act. In Sapia v. Hunterdon County YMCA, Sapia’s parents, who do not speak English, were interested in obtaining a membership to the local YMCA. Sapia accompanied her parents to the facility for a tour and acted as a translator on their behalf. During the tour, Sapia slipped and fell on water near a locker room, injured herself and eventually brought a negligence suit against the YMCA. The YMCA filed a motion for summary judgment based on New Jersey's Charitable Immunity Act. Under the statute, a charitable organization is immune from suit if the plaintiff is a beneficiary of the organization and the organization was engaged in its charitable works at the time when the tortious conduct occurred. The court granted summary judgment to the YMCA and Sapia filed an appeal. In her appeal, she argued that she was not a beneficiary of the YMCA since she was not interested in their membership services and that the YMCA was not engaged in the performance of its charitable objectives at the time of her fall. The Appellate Court upheld the trial court’s decision, finding that Sapia was a beneficiary of the YMCA at the time of her accident. Under the statute, the term "beneficiary" is to be broadly interpreted. In aiding her parents during their tour, Sapia was educated regarding the nature of available services offered by and the proposed goals of the YMCA. Accordingly, she was a beneficiary under the terms of the statue. Moreover, the court found that the YMCA was advancing its charitable purposes at the time of the accident. Specifically, Sapia was injured while walking a guided tour of the facility where the YMCA conducts it activities and functions. The court found that this particular function bore a substantial and direct relationship to the YMCA's general purpose. Thanks to Heather Aquino for her contribution to this post. For more information, please contact nbrown@wcmlaw.com . Previous Next Contact

News The FSMA: There's Power, But Is There Will? November 8, 2011 < Back Share to: It is a basic tenet of policy and politics that there is a difference between having power and being willing to use it. The FSMA appears caught in the midst of just such a difference. The FSMA legislation (which surprisingly was passed with broad bipartisan support just last December) gave the FDA broad new powers, but it now appears that current Congress is unwilling to let those powers be used. The evidence for this claim can be found in the fact that a proposed Republican 2012 budget suggests on cutting the FDA's budget by 11.5%. Such a cut is inconsistent with the staffing growth necessary to implement the legislation's goals. Something will have to give if the FDA is actually going to be able to use the powers it has been given. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Shares the Holiday Spirit December 6, 2017 < Back Share to: On November 30, 2017, WCM Counsel Colleen Hayes and Associate Hillary Ladov, both of the Philadelphia office, helped make the holidays a little brighter for the children supported by Turning Points for Children with a donation at the annual Philadelphia Bar Association Young Lawyers Division Holiday Party. Colleen serves as the liaison for the Philadelphia Association of Defense Counsel and Hillary was recently elected Financial Secretary for the Young Lawyers Division Executive Committee. Turning Points for Children is the leading social service agency in Philadelphia, offering programs that help families in raising safe, healthy, educated, and strong children by partnering with caregivers to develop and strengthen protective qualities and by offering them the tools, skills, and resources needed to ensure their children's optimal development. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Insureds Get Two Strikes on EUO No-shows (NY) May 7, 2020 < Back Share to: Generally, the standard for an insurer to disclaim or withdraw coverage because of an insured’s noncooperation is a high one. Specifically, the Appellate Division First Department recently reiterated, “An insurer that seeks to disclaim coverage based on its insured's alleged noncooperation is required to demonstrate that it acted diligently in seeking to bring about its insured's cooperation, that its efforts were reasonably calculated to obtain its insured's cooperation, and that the attitude of its insured, after the cooperation of its insured was sought, was one of willful and avowed obstruction.” Often this can leave an insurer uncertain if their insured’s noncooperation rises to a sufficient level to meet this exacting, highly fact-dependent test. However, the First Department recently affirmed a ruling which gives a clear guideline for a specific scenario in Nationwide Affinity Ins. Co. of Am. v. Thomas. The defendants in this declaratory judgment action had filed claims arising out of a motor vehicle accident. The plaintiff insurer had proved that they had properly served defendants with notices for examinations under oath (“EUOs”) on two separate occasions each and the defendants failed to appear for any of them. The insurer moved for summary judgment, presenting evidence of proper service of the notices and denials of coverage, explained the basis for the EUO demands, and submitted statements on the record from attorneys who had appeared to take the EUOs. The trial court granted summary judgment and the First Department unanimously affirmed, holding appearance for properly noticed the EUOs, which were a condition precedent for coverage. 2018 WL 1587685 (N.Y. Sup. Ct. 2018); aff’d. 2020 NY Slip Op 02258 (1st Dep’t 2020). This decision provides welcome clarity on a scenario where an insurer can protect itself from the noncooperation of its insureds and the steps insurers can take to create the necessary paper trail to support a summary judgment motion. Thank you to Nicholas Schaefer for his contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact