News Non-cumulation Clause “Leads” The Way for Insurer Victory (NY) February 15, 2013 < Back Share to: At issue in this appeal is whether Allstate’s insurance policy required Allstate to pay a second full policy limit or whether plaintiffs' losses were encompassed by the per occurrence limit in single insurance policy. As was the case here, most lead-based paint claims involve exposure, injuries, and/or damage that take place or continues through several policy periods. As such, exposure/injuries/damage may not be known by a claimant at the time of the exposure/injury/damage takes places, the precise date or dates when the exposure/injury/damage took place is often very difficult to pinpoint. In November 1991, Allstate issued an insurance policy to Tony Wilson, the owner of an apartment building in Rochester, New York. The insurance policy had a per-occurrence limit of $500,000, and was renewed for two additional one-year periods. In 1993, two children were exposed to lead paint while living in an apartment in Wilson’s building, with one suffering injuries due to the lead exposure. The mother of those children later commenced an action against, among others, Wilson, seeking damages for injuries sustained by the child as a result of exposure to lead. According to Wilson's deposition testimony, he attempted to remediate the lead paint after learning that the children had been exposed to the substance, however, the extent of his remediation attempts were never made clear in the record. In 1994, two more children of a subsequent tenant were exposed to lead in the same apartment involved in the first litigation. A separate action was commenced to recover damages for injuries sustained by those subsequent children. While the second action was pending, the original action settled for $350,000, which Allstate paid pursuant to its policy. Allstate then took the position that the non-cumulation clause in the policy limited its liability for all lead exposures in the apartment in question to a single policy limit of $500,000, offering the plaintiffs in the second action the remaining $150,000 of coverage to settle the action. Plaintiffs believed they could also seek $500,000 from a different policy year, and as such, commenced the declaratory judgment action to resolve that issue. Allstate appealed the lower court’s decision granting plaintiffs' cross-motion seeking a declaration that the amount of insurance coverage to which plaintiffs were entitled was the full policy limit of the second policy. In Nesmith v. Allstate, the Appellate Division, Fourth Department, likened these lead exposure facts with those of a recent decision in the First Department involving asbestos, Mt. McKinley Ins. Co. v. Corning Inc. In Mt. KcKinley Ins. Co., the court concluded that "any group of claims arising from exposure to an asbestos condition at a common location, at approximately the same time may be found to have arisen from the same occurrence.” Here, the Fourth Department reversed the lower court’s decision, finding that the evidence established the two sets of children lived in the same apartment at different times, less than a year apart. Despite Wilson’s testimony that he attempted to remediate the lead hazard, there was nothing in the record establishing that he removed all of the lead paint from the subject apartment. Accordingly, the Court found the lead paint that injured the second set of children was the same lead paint that was present in the apartment when the first set of children lived there, and concluding that the lead exposure arose from the same occurrence. As the lead exposure was viewed as a single occurrence within the meaning of the policy, all plaintiffs’ losses were encompassed by the single $500,000 per occurrence limit. Special thanks to Joe Fusco for his contribution to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com .       Previous Next Contact

News An Issue Of First Impression For PA: Are Minor Children Bound To Arbitration Agreements Signed On Their Behalf? June 9, 2023 < Back Share to: In Santiago v. Philly Trampoline Park LLC, the Superior Court of Pennsylvania was tasked with deciding an issue of first impression in the state: whether a parent’s role as a natural guardian entitles that parent to bind their minor child to an arbitration agreement and waive that child’s right to seek redress for injuries in a court of law. Santiago v. Philly Trampoline Park, LLC., 291 A.3d 1213, 1216 (Pa. Super. Ct., 2023). The case involved several parents bringing separate claims against the defendant, Sky Zone, a Philadelphia trampoline park. Id at 1217. In 2019, a mother and his two daughters visited Sky Zone and signed a “Participant Agreement, Release and Assumption of Risk” (the “Agreement”). Among other things, the agreement provided that “if I or any of my children are injured in any way, this waiver prevents and prohibits any recovery of money from any Sky Zone related entity.” After one of the children was injured at the facility, her father filed a complaint on behalf of his child. Sky zone moved to compel the arbitration agreement, signed by the other parent, contending that the Agreement was a valid agreement that both the parents and child were within its scope. The Court noted that as a general rule of contract law, only the parties to an arbitration agreement may be compelled to arbitrate. That said, a party can still be compelled to arbitrate under an agreement, regardless of whether she signed it, if common law principles of agency and contract support such an obligation on her part. Whether an agency relationship exists is a question of fact, the burden of proof weighing on the party asserting the agency relationship. An agency relationship may exist by: 1) express authority; 2) implied authority; 3) apparent authority; and/or 4) authority by estoppel. Relevant to this case is “apparent authority,” which exists where the principal, “by word or conduct” causes people with whom the agent deals to believe that the principal has granted the agent authority to act. The focus is on the principal’s conduct to determine whether an agency relationship exists, for the purposes of this analysis, the purported agent’s conduct is irrelevant. After analyzing the issue of whether an agency relationship existed as between spouses through apparent authority and finding one did not exist because the principal had no interaction with Sky Zone, the court moved to the novel question of this case. . At the outset, the court acknowledged that the minor children could not have entered into the arbitration agreement themselves, as minors lack the capacity to contract in their own right. Id. As such, the court held that minors also lack the capacity to “grant express authority to an agent to contract on their behaves, rendering any such resulting contracts voidable.” The court held that, “Natural guardianship confers no inherent right to intermeddle with the property of the minor child, and the natural guardian has no inherent authority to demand or power to receive, hold or manage the minor’s property unless the natural guardian has also been appointed as guardian of the minor’s estate.” Id. This is an interesting decision that we expect to be appealed. Thanks to Hannah Garber for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News 5 Day Mail Rule No Longer Applies to NY Summary Judgment Filing Deadline February 1, 2011 < Back Share to: < ![CDATA[5 Day Mail Rule No Longer Applies to NY Summary Judgment Filing Deadline]]> Previous Next Contact

News There is No Such Thing as the “Sudden Emergency Defense” according to the Pennsylvania Supreme Court (PA) January 15, 2021 < Back Share to: In Graham v. Check, the Pennsylvania Supreme Court held that the “sudden emergency doctrine” should not be understood as a defense to alleged negligent driving. Further, a claimed “sudden emergency” will not diminish the standard of care drivers should exercise. In the early morning hours of March 6, 2018, plaintiff Francis Graham crossed the street without a “walk signal.” He was wearing all dark clothing. The defendant, Larry Check, did not see Graham until he was only about seven feet away, and at that point, although he applied his brakes, it was too late to stop. Check struck Graham, causing him injuries. Graham subsequently filed suit against Check for negligent driving. Check defended on the basis that he had faced a sudden emergency, which he did not create, and that his response was reasonable under the circumstances. The trial court instructed the jury of the elements Check was required show to prove the “sudden emergency” defense. The jury then returned a verdict for Check; Graham appealed; the Superior Court affirmed, and the Pennsylvania Supreme Court ultimately granted review. The Pennsylvania Supreme Court found that the “sudden emergency doctrine” is not a defense; but rather, it is a set of circumstances the jury should apply when considering the defendant’s conduct. The court indicated that regardless of any “sudden emergency,” a driver has a higher burden to act carefully while operating an automobile—especially at street crossings. The court reasoned further that whether a “sudden emergency” present itself should be considered in the context of defendant’s negligence as a whole. Accordingly, the court reversed and remanded the case based on the trial court’s improper jury charge. Thanks to John Lang for his contribution to this post. Please contact Thomas Bracken with any questions. Previous Next Contact

News Harm but no Foul: School not Liable for Injury During Gym Class (NY) September 25, 2009 < Back Share to: In Paragas v. Comsewogue Union Free School District, the infant plaintiff was injured when he accidentally collided with another student during gym class. Plaintiff brought an action against the school district for negligent supervision. Stating that the school's standard of care to be exercised toward the student is that of a reasonably prudent parent, the Appellate Division found that the defendant provided adequate supervision. The children in the gym class were playing an age-appropriate game and the supervising teacher had several years of experience. Moreover, any alleged inadequacy in the supervision was not a proximate cause of the accident. The collision was accidental and more intense supervision would not have prevented it. Accordingly, the Appellate Division determined that the trial court properly granted defendant's motion for summary judgment dismissing the complaint. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06521.htm Previous Next Contact

News Need Surveillance Footage To Frame A Complaint? Well, That’s Too Bad (NY) September 30, 2022 < Back Share to: In Villani v. Rite Aid of N.Y., Inc., Index no. 155613/2022, the Hon. Arlene P. Bluth of New York County Supreme Court has denied a petitioner’s request for a pre-action disclosure of in-store surveillance video from an October 2021 accident. The petitioner claims she suffered severe facial and eye injuries when she collapsed and struck her head in a Rite Aid in Manhattan after fainting from a COVID-19 booster. The petitioner argued that the surveillance video was material and necessary to frame her complaint because the staff present at the time of her accident may be responsible for her injuries, and the video will assist in identifying the employees that were present at the time. In opposition, respondent argued that the petition presents sufficient facts in framing a complaint, such as the time, date, and location of the incident. In denying petitioner’s request, Hon. Arlene P. Bluth explained that the purpose of a pre-action disclosure is to assist a potential plaintiff with identifying the specific causes of action that may be asserted or with identifying potential defendants. However, petitioner here demonstrated both. The petitioner knows when the incident happened, where it happened, and the events immediately preceding the incident, and predicts she will pursue a negligence claim. The petitioner’s request for surveillance to identify the employees who were working that day presumes these employees were wearing nametags and the ability to see the names. As such, identification is better suited for a plenary action rather than pre-action disclosure of surveillance. This case demonstrates that a pre-action discovery for surveillance is not permissible as a “fishing expedition” to determine whether a cause of action exists, unless it is shown the information sought is material and necessary. A petition that already presents the time, date, and location of the accident, including the events immediately preceding the incident, is sufficient to frame a complaint. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Recent Class Action Settlement in Federal Court Could Impact Negligent Supervision Cases Involving Allegations of Bullying (NY) August 3, 2018 < Back Share to: In the case Doe v. New York City Department of Education, twenty-three public school students brought claims against the New York City Department of Education for its alleged failure to prevent or adequately address bullying. The plaintiffs claimed that, in doing so, the DOE violated their rights to procedural due process, substantive due process, equal protection rights, and the Individuals with Disabilities in Education Act. While the plaintiffs in this case sought only declaratory and injunctive (not monetary) relief, the terms of the settlement could provide fader for the plaintiff’s bar in its pursuit of negligent supervision claims. In particular, according to the terms of the settlement, the DOE is required to: (1) introduce an electronic reporting system allowing parents to report bullying electronically; (2) direct school staff members who witness bullying to report the incident to the principal within one day; (3) require principals to log complaints of bullying in electronic databases; (4) mandate schools to include anti-bullying techniques in their annual training sessions for teachers and staff; (5) investigate complaints of bullying within ten days (except in extenuating circumstances); and, (6) approve requests for school-transfer made by a parent whose child was the victim of a Material Incident. As argued by the Legal Aid Society in their amicus papers (and freely admitted by Judge Garaufis in his Decision), these measures do nothing to address the root cause of bullying. Rather, they dictate what school staff must do once bullying has already occurred. The heightened documentation requirements will make it easier for the plaintiff’s bar to bring such negligent supervision claims as they create more opportunity for concretely establishing notice, not to mention the occurrence itself. While the settlement shields the DOE from “systemic, bullying-related litigation”, claimants are still permitted to request relief in their individual capacity. By resisting the implementation of measures that would prevent bullying itself while, at the same time, making these types of personal injury cases easier to prove, public city schools are vulnerable to an uptick in negligent supervision cases involving bullying. Even in cases involving private schools, the plaintiff’s bar can offer the settlement terms as evidence of a “standard” for addressing bullying incidents at school. Are private schools required to implement electronic systems to report bullying? Must private school staff report all instances of bullying (which is not defined by the Decision) within one day? A plaintiff’s attorney could point to this settlement, voluntarily entered into by the Department of Education, and argue that failure to accord with these measures constitutes a departure from a standard widely adopted in this region. Hopefully the legislature will not be as reluctant to address the root cause of this important issue. Thanks to Kristina Duffy for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News NY Court Requires No Specificity Of Hazardous Condition In Premises Liability Case April 7, 2023 < Back Share to: In Diaz v. SCG 502, LLC, 2023 NY Slip Op 01779 (2d Dept. 2023), plaintiff alleged serious injuries from a slip and fall on an interior staircase in an apartment building. NY law permits dismissal of slip-and-fall cases if “the plaintiff did not know what caused the fall" (Lamour v. Decimus, 118 AD3d 851, 851; see Aleman v 760 8th Ave. Rest., Inc., 187 AD3d 1106, 1106; Kerzhner v. New York City Tr. Auth., 170 AD3d 982, 983). "[A] plaintiff's inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation" (Rivera v. J. Nazzaro Partnership, L.P., 122 AD3d 826, 827; see Madden v. 3240 Henry Hudson Parkway, LLC, 192 AD3d 1095, 1096). However, the New York appellate court recently let a plaintiff off the hook At her deposition, plaintiff testified she slipped and fell on a “wet step,” but did not know the precise type of liquid. While trial court granted summary judgment, the Second Department overturned that decision reasoning that the precise type of liquid was inconsequential to her claim of negligence of injury caused by a hazardous substance on a public space. Here, the defendant failed to establish, prima facie, that the plaintiff did not know what caused her to fall. “Contrary to the defendant's contention, the plaintiff's alleged inability to identify the "precise nature of the wet substance upon which she allegedly slipped and fell cannot be equated with a failure to identify the cause of her fall (Burrus v. Douglaston Realty Mgt. Corp., 175 AD3d 461).” The Second Department’s determination shows that a slip and fall on a wet surface does not require the claimant to specifically identify the hazardous substance that caused her to fall. Courts will allow a plaintiff to have her day in court so long as she can testify, generally, as to what caused her to fall in a premises liability claim. Thanks to Raymond Gonzalez for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Father Knows Best: Church Assets May Be Valued In a Pastor's Divorce Proceeding November 15, 2007 < Back Share to: The wife of a pastor sued for divorce in New York. Her attorney argued that the pastor --the wife's estranged husband-- used the church's assets as his "personal piggy bank." Not suprisingly, the pastor protested that he was merely a humble "W-2" employee of a duly registered not for profit religious corporation. Ruling that the church and its finances may be considered the pastor's "alter ego" if he had unfettered control of its assets for his personal use, the court permitted the wife to pursue the valuation of the church's assets for equitable distribution purposes. We are reminded of the biblical admonition: You reap what you sow. (Galatians 6-7) Or the more practical lesson to be careful how much you tell your spouse if your marriage is on shaky ground. http://www.nylawyer.com/adgifs/decisions/111507diamond.pdf Previous Next Contact

News Authenticity and Provenance Questions in the NY Art World. February 27, 2012 < Back Share to: The recent collapse of the Knoedler gallery has been well-documented. Today's NYT had an interesting long form article on the collapse and the resulting litigation arising out of questions as to the provenance and authenticity of various pieces sold by the gallery. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Wade to Speak at NYSBA Seminar September 18, 2009 < Back Share to: The New York State Bar Association has invited WCM partner Dennis M. Wade to lecture at Law School for Claims Professionals. Dennis will be lecturing and conducting a workshop on handling the premises liability claim on October 23, 2009. With assistance from associate Alison Weintraub, Dennis wrote a monograph entitled The Anatomy of a Premises Case which will be published in the course materials. Attached is a brochure with information about the program. If you would like more information about the program or the materials please feel free to contact Dennis or me. Sincerely, Shana Hughes Communications Director NYSBA Announcement Previous Next Contact

News Auto Insurer Can’t Put the Brakes on Bad-Faith Case October 31, 2017 < Back Share to: In Newhouse v. Geico Casualty Company, the court denied an insurer's motion to sever and stay the bad faith portion of a claim filed by its insured for uninsured motorist benefits. In March 2015, plaintiff was driving a rental car when he was struck from behind while stopped at a stop sign . As a result of the accident, plaintiff suffered a variety of injuries, some of which required medical treatment. Following payment of the tortfeasor’s policy limits, plaintiff sought UIM benefits from his auto insurer. Plaintiff claimed he was owed the full amount of the UIM coverage offered by the policy, $100,000. The insurer evaluated the claim and offered $10,000. Newhouse believed his injuries exceeded the offer, and filed suit alleging breach of contract regarding the offer, bad faith in relation to making such an offer, and loss of consortium on behalf of plaintiff's wife. In denying the insurer's motion to sever and stay the litigation the court examined four factors: (1) whether the issues are significantly different from each other; (2) whether they require separate witnesses and documents; (3) whether the nonmoving party would be prejudiced by bifurcation; and (4) whether the moving party would be prejudiced if bifurcation is not granted. While the insurer argued the issues were distinct, and the evidence in the UIM claim differed from the bad-faith claim, the court disagreed. The court also rejected the insurer's argument that it would be prejudiced by a lack of bifurcation because, relative to the bad faith action, the carrier would have to present information on how it valued a claim before the jury assessed liability and damages in the UIM portion of the claim. Bifurcation is a common strategy for defending allegations of bad faith arising out of UIM claims handling. The court’s decision signals a turn away from severing cases in favor of judicial economy and is something that should be monitored. Thanks for Hillary Ladov for her contribution to this post.   Previous Next Contact