News Excess Verbiage and Commas Do Not Negate Indemnification in NJ January 21, 2013 < Back Share to: Increasingly businesses are considering risk allocation issues as they contract with one another. Who bears the risk of claims for personal injury and property damage has a direct bearing on the bottom line of the profitability of the agreement for each party. In this regard, indemnification language can be a negotiating point as parties attempt to place the risk for each other's and even their own negligence. It is well settled in New Jersey that in order to transfer the risk of loss for one’s own negligence, the contract language must be specific and include an unambiguous statement that the indemnitee will be indemnified for its own negligence. Azurak v. Corporate Property Investors, 175 N.J. 110 (2003). To the extent that a clause may be ambiguous, the courts will construe it strictly against the indemnitee. Thus, it is important to clearly word such language to capture the true intent of the contracting parties. Of course, as legalize creeps into a document, clarity can sometimes be obscured. Yet, recently, the appellate division drew a line in the sand. In Sayles v. G & G Hotels, Inc., a hotel franchisor was granted indemnification from a hotel owner and operator. The trial court agreed that the clause in question included “too many, far too many disjunctives, conjunctives, commas and an insufficient amount of periods.” And yet, the court applied a common sense interpretation of the clause. The term in question included several scenarios for indemnification ending with the phrase “including when the active or passive negligence of [the indemnitee] is alleged or proven.” In an argument worthy of author Lynn Truss of Eats, Shoots and Leaves fame, the indemnitor argued comma placement and relied upon what the court found to be a “crabbed” and contrived reading of the term to avoid indemnification. The appellate division concurred that the clause could have been better written, but refused to find an ambiguity simply because the language was perhaps cumbersome. The lesson of the case is that while New Jersey courts scrutinize indemnification agreements and strictly construe them against the indemnitee, if the term fairly expresses the intent that the indemnitee is to be indemnified for its active or passive negligence, alleged or proven, our courts will enforce it as written. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Mental Health and Substance Abuse Records not Always Discoverable in NY March 3, 2017 < Back Share to: In New York Personal Injury litigation, a plaintiff is said to affirmatively place their health at issue when bringing suit. The defense is entitled to obtain all medical records “material and necessary” to the medical conditions plaintiff claims to have suffered as a result of an accident. As a matter of course, Complaints and Bill of Particulars generally include certain “catch-all” allegations for damages, such as the loss of enjoyment of life, mental anguish, and future pain and suffering. Under New York’s liberal discovery rules, defendants often use these allegations to support demands for a broad range of medical records. The Appellate Division, First Department recently dealt with the appropriate scope of such discovery with respect to medical records related to substance abuse and mental health treatment in James v. 1620 Westchester Avenue, LLC. In James, the plaintiff brought an action to recover for personal injuries suffered in a trip and fall. The complaint included allegations of future pain and suffering, general anxiety, mental anguish, and the loss of enjoyment of life – standard fare in a personal injury action. Based on these allegations, the defendant moved to compel production of authorizations to obtain medical records related to treatment the plaintiff received for mental health and substance abuse, and the plaintiff cross-moved for a protective order to prevent discovery of those records. The trial court granted plaintiff’s motion, ruling that records related to plaintiff’s mental health and substance abuse treatment were not at issue in this case, and therefore not discoverable. On appeal, the First Department affirmed, holding that plaintiff’s broad allegations of general anxiety and mental anguish were not sufficient to place her mental health at issue. Thus, records related to plaintiff’s mental health and substance abuse treatment were not discoverable by the defendant, as the defendant failed to establish that those records were “material and necessary” to the defense of the lawsuit. In the dissent, Judge Saxe noted that mental health records are certainly useful in evaluating claims of future pain and suffering and the loss of enjoyment of life and such records are often an invaluable source of additional information about the plaintiff. They sometimes include additional information regarding the happening of an accident, subsequent and intervening injuries, and other tertiary information about the post-accident activities of a plaintiff. While mental health and substance abuse records themselves may ultimately prove inadmissible at trial due to their prejudicial nature, they often lead to discovery of valuable information that would otherwise remain concealed. The First Department’s decision in James reflects that defendants cannot exclusively rely on boilerplate allegations such as mental anguish, general anxiety, and the loss of enjoyment of life to justify a demand for mental health or substance abuse records. Litigants will need to confirm a specific nexus between the accident and the plaintiff’s mental health to support a demand for these records. And WCM will continue to follow this case to see whether the Court of Appeals shows interest in this decision with two dissents. Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Just Because the Ceiling Fell Does Not Mean Labor Law 240 Applies. July 19, 2013 < Back Share to: In Flossos v. Waterside Redevelopment Co., plaintiff leaned a closed 4-foot A-frame ladder against a closet door and climbed up to paint without locking the horizontal bars. While plaintiff was on the ladder, a piece of ceiling fell propelling plaintiff and the ladder to the floor. Plaintiff sued alleging violations of Labor Law §§ 200, 240(1), and 241(6), and common law negligence. The lower court denied defendants’ motion to dismiss the Labor Law 240 cause of action. On appeal, the Second Department reversed noting that plaintiff had to “show more than simply that an object fell causing injury.” Plaintiff had to show (1) at the time the object fell, it was "being hoisted or secured" or had to be secured; and, (2) the object fell "because of the absence or inadequacy of a safety device of the kind enumerated in the statute." The court found that the ceiling was not “being hoisted or secured” as it was part of the permanent structure of the building, and plaintiff was provided with a ladder that was appropriate for the job. The court dismissed the Labor Law 240 claim, but did not dismiss the common law negligence claim because the defendants failed to establish that the doctrine of res ipsa loquitur did not apply. Not a complete victory, but with the Labor Law 240 claim out, the defendants can present plaintiff’s comparative negligence (i.e. the closed ladder). Special thanks to Lora Gleicher for her contribution to this post. For any questions contact cfuchs@wcmlaw.com . Previous Next Contact

News NY: No Duty For Health Clubs To Use AEDs February 8, 2013 < Back Share to: In Miglino v. Bally Total Fitness of Greater New York, New York's High Court addressed the issue of whether General Business Law §627-a creates an independent duty to use automated external defibrillators ("AEDs") in the face of a medical emergency. By way of background, GBL §627-a requires health clubs to have AEDs and employees trained and certified in their use. In Miglino, New York's highest court held that this statute does not create any such duty and exonerated a health club and its certified employee for failing to use the club's AED in the face of a cardiac event. The Court of Appeals recognized the statute's limitation of liability when health clubs and their agents voluntarily provide aid to their members and determined that the legislature did not intend to impose liability on health clubs for failing to use their AEDs. Moreover, the Court noted that to hold otherwise would spawn a whole new field of tort litigation and create increased costs, uncertainty and difficulty for health clubs. In addition, the Court of Appeals emphasized that the common law imposed only a limited duty on health clubs during a medical emergency. The common law only requires that health clubs call 911 and provide basic CPR or defer to an individual with medical experience. Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Standard For Affidavits in Support of Summary Judgment Motions January 5, 2011 < Back Share to: In Rodriguez v. 3251 Third Avenue, the plaintiff fell from an unsecured ladder while preparing to paint office space in the defendant’s building. The plaintiff moved for summary judgment under Labor Law 240(1) claiming that he was not provided with proper safety equipment. The owner opposed the motion by submitting an unsworn statement from the plaintiff's employer stating that he did not know the plaintiff and the plaintiff did not work for him. The lower court denied the plaintiff's motion, but the Appellate Division, First Department reversed holding that the plaintiff was entitled to the protections of the Labor Law and that the unsworn statement of the plaintiff's employer was hearsay and unaccompanied by any other evidence to show that the plaintiff's presence on the work site was unauthorized. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00022.htm Previous Next Contact

News Calcium Chloride – Not Only Melts Ice, But Also Liability (NY) May 15, 2013 < Back Share to: A lack of an icy condition does not require a person to remove “ice melt” from their property. In Rivers v. Villford Realty Corporation, the Appellate Division, First Department, affirmed summary judgment where the plaintiff alleged that she slipped on calcium chloride -- a substance used to treat and prevent icy conditions, while exiting her apartment building. The defendant’s expert established that the use of calcium chloride in an effort to ward off snow and ice conditions was a good, accepted, and safe practice, consistent with industry standards. Further, there were no standards that required removing ‘ice melt’ when ice was not present. Most importantly, the expert opined that the calcium chloride would not have been slippery at the time of the accident. In affirming summary judgment, the Appellate Division found that plaintiff failed to raise a triable issue of fact as to the existence of a dangerous condition. Special thanks to Johan Obregon for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJ Judge's Defense To Groping Charges-Don't Try This At Home February 15, 2012 < Back Share to: An Ocean County judge accused of breaching judicial ethics by inappropriately touching and making sexually suggestive remarks to female probation officers at a holiday party has filed an answer to the charges. While he says he is embarrassed and mortified, he claims that he has no recollection of the incident- but that if it did happen it was the result of drinking too much.   Previous Next Contact

News Treating Physicians Can Be Retained as Experts in Similar Litigation in New Jersey June 6, 2012 < Back Share to: In In Re Pelvic Mesh/Gynecare Litigation, several hundred plaintiffs filed suit individually inNew Jersey against Johnson & Johnson and Ethicon, Inc. for injuries allegedly caused by the pelvic mesh devices J&J manufactured and sold. In retaining expert witnesses, the defendants proposed a set of protective measures to ensure that counsel would not utilize physicians as experts in those cases brought by their respective patients. Nevertheless, theAtlanticCounty trial court assigned to jointly manage the litigation entered an order barring the defendants from consulting with or retaining physicians who had at any time treated any of the plaintiffs even for those cases involving a different plaintiff. In so ordering, the Law Division held that allowing physicians to render an opinion on the litigation would impinge upon the doctor-patient relationship and be harmful to the plaintiffs’ “litigation interests.” The defendants sought leave to appeal and the Appellate Division reversed, noting a distinction between the plaintiffs’ “litigation interests” and “medical interests.” The court explained that a physician’s duty to a patient is not defined by the substantive position she may take on litigation, but rather the treatment she provides. Moreover, such a sweeping restriction would unfairly disadvantage the defendants by denying them access to the best-qualified experts in the field. For example, as of the date of the appeal, there were nearly 450 plaintiffs and about 1,300 treating physicians, potentially conflicting many highly qualified experts from J&J’s retention. Instead, Appellate Division reversed and found that the defendants’ protective measures struck an adequate balance between the parties’ interest in allowing the retention of physician-experts and safeguarding plaintiff’s privacy rights. Thanks to law clerk Adam Gomez for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Insurance Company Loses In School Food Fight September 9, 2008 < Back Share to: In Medrano v. State Farm Fire & Casualty, the court issued a judgment declaring that the defendant insurance company had an obligation to defend and indemnify its insured, the Filers, under their homeowners policy, in the underlying personal injury action entitled Medrano v. Filer. The underlying action stemmed from a food fight that occurred in an Ozone Park middle school when student Robert Filer threw a garbage can into the air and struck teacher's aide Elsa Medrano, injuring her. State Farm had disclaimed coverage since the incident did not qualify as an "occurrence" as defined in the policy. Also, there was an exclusion for bodily injury that either was expected or intended by the insured or was the result of willful and malicious acts of the insured. State Farm appealed this order and judgment. In affirming the lower court's decision, the Appellate Division, Second Department, found that neither the policy definition of "occurrence" which was simply "an accident which results in bodily injury" nor the aforementioned exclusion for bodily injury caused this incident to fall outside of coverage or within any valid policy exclusion. Additionally, the fact that the claims asserted against the Filers were grounded in negligence implied an unintentional or unexpected event which gives rise to a covered claim as against the Filers. This finding was further supported by the deposition testimony of Robert Filer that demonstrated his actions were not meant to cause injury to Ms. Medrano. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06699.htm Previous Next Contact

News Pre-existing Injuries Present Hurdle to Plaintiff Proving Serious Injury "Threshold" April 6, 2017 < Back Share to: In Khan v. Goldman Hacking Corp., the Appellate Division, First Department unanimously reversed the Supreme Court’s denial of defendant’s summary judgment motion, stemming from a BI motor vehicle accident case. Plaintiff alleged serious injuries in a rear-end motor-vehicle accident, including cervical bulges, lumbar and thoracic sprains, and dysfunction of the jaw. Defendants met their prima facie burden of showing that plaintiff did not suffer permanent consequential or significant limitations of the use of his jaw or his cervical, thoracic, and lumbar spine through affirmed reports of a dentist and neurologist. Defendants also relied on plaintiff’s medical records that indicated he complained of back pain less than a month before the accident and was diagnosed with thoracic strain and sprain. In reversing the lower court's denial of defendant's "threshold" motion, the First Department found that plaintiff failed to raise an issue of fact as to causation regarding plaintiff’s cervical and thoracic spine because he failed to address the findings of degeneration in plaintiff’s own MRI by offering another, legally sufficient, cause for the claimed spinal injuries. The Court found that plaintiff’s expert’s opinion that the alleged accident itself caused the alleged injuries was insufficient to raise an issue of fact as the expert first examined plaintiff approximately six years after the accident. While plaintiff’s expert acknowledged plaintiff’s prior diagnosis of thoracic strain, he did not offer any opinion as to how the claimed thoracic injury differed from the pre-existing condition. Further, plaintiff did not submit objective medical evidence of lumbar spine injury as the MRI was performed more than five years after the accident which was too remote to show a causal connection to the accident, and incidentally were not part of the record. This decision emphasizes the importance of counsel zealously pursuing all records of a plaintiff’s pre-accident condition in defending a matter. Further, this decision highlights the importance of carefully parsing a plaintiff’s expert’s opinion and attacking its logical and evidentiary gaps, particularly as to causation. Generally, "threshold" motions are difficult to win -- but holding a plaintiff to his burden can sometimes be fruitful. Had plaintiff and his expert crafted a more tailored affidavit alleging exacerbation of the pre-existing condition, we suspect the First Department would have affirmed the lower court's ruling. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News How Excess is an Excess Insurance Policy? August 14, 2012 < Back Share to: The Appellate Division, Second Department recently addressed a declaratory judgment action brought by Utica Insurance Company that sought a declaration that Utica’s umbrella policy was excess to GEICO’s umbrella policy and that Utica, therefore, was not required to contribute until the GEICO policy had been fully exhausted. In upholding the lower court’s decision that granted Utica summary judgment the Appellate Division addressed a specific provision in GEICO’s policy that stated the policy was “excess over any insurance.” In comparison, Utica’s policy stated that it was “excess over, and shall not contribute with any of the other insurance, whether primary, excess, contingent or on any other basis.” The court explained that when a policy does not specifically negate contribution with other excess policies, “it must contribute ratably with similar policies, [or be] exhausted before a policy which expressly negates contribution or otherwise manifests that it is intended to be excess over other excess policies.” Utica’s specificity on how its excess umbrella policy should be treated prevailed over GEICO’s vague language in its excess umbrella policy. Accordingly, insurers should take careful consideration of this language in determining when coverage is triggered on an excess policy. Thanks to Michael Nunley for his contribution to this post. For more information, please contact nbrown@wcmlaw.com .   Previous Next Contact

News NJ Supreme Court Rules No Independent Duty to Monitor Alcohol Consumption January 27, 2009 < Back Share to: Alcohol related injuries and fatalities present difficult cases that frequently turn on the fine factual determination of whether someone is " visibly intoxicated." In New Jersey, a licensed alcoholic beverage server is liable only if he serves a "visibly intoxicated" person and that service proximately causes an accident. What happens if the license holder does not actual serve the alcohol but rather arranges for a beer truck to be available for patrons to self serve their own alcohol? Can the server be found negligent for failure to properly monitor the alchohol consumption of its guests even in the absence of a finding that it served or "allowed to be served" a visibly intoxicated person? In Mazzacano v. Happy Hour Social and Athletic Club of Maple Shade, the New Jersey Supreme Court held that the self service of alcohol by patrons is tantamount to service by the Club. Thus, the Club would be potentially liable if a patron serves himself from the beer truck while visibly intoxciated. It is not required that an employee of the Club put the drink directly in the hand of the drunk. Rather the Club is liable if it either serves or "allows" a visibly intoxicated person to be served. In Mazzano, the Club "allows" a patron to be served by making alcohol available from a self service beer truck. Further, and more to the point in Mazzacano, there is no separate and independent duty to monitor the alcohol consumption of the patrons. If the Club did not serve or allow to be served a visibly intoxicated person, there can be no liability. The plaintiff cannot avoid this requirement by arguing that the Club was negligent because it failed to properly monitor the alcohol consumption of its guests. Thus the Club cannot be liable because the jury concluded that the drunk did not appear "visibly intoxicated" when he served himself from the beer truck. Bottom line: licensed servers are strictly held to the requirements of New Jersey's Dram Shop Act but the courts should be reluctant to impose additional requirements. http://lawlibrary.rutgers.edu/courts/supreme/a-102-07.opn.html Previous Next Contact