News US Government Shutdown = More Contaminated Food? October 10, 2013 < Back Share to: Having spent some of the last week in London (between deposition prep sessions) talking to people about the US (and, yes, with apologies to my partner and friend Mike Bono I did use apocalyptic political language), one question that has come up is -- what effect does the shutdown (we'll leave the debt ceiling discussion for a later post) have on the business I underwrite? Well, at least for the product recall market, it appears that the answer is -- "significant." A chicken related salmonella outbreak has arisen in California and, it appears that, even if the release of contaminated product is not the result of a lack of government funding, the government's inability to respond may be. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

Laina T. Goldwin Associate Pennsylvania lgoldwin@wcmlaw.com Professional Experience Laina is an associate attorney in our Philadelphia office assisting with civil litigation for liability actions. Laina obtained her J.D. from American University Washington College of Law in Washington, D.C. Following her successful completion of law school, Laina clerked for the Hon. Benjamin Podolnick in Atlantic City. Prior to joining WCM, Laina worked as a family law attorney at a union side labor firm with offices in both Pennsylvania and New Jersey. Honors and Distinctions Summa cum Laude from Arizona State University News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., American University Washington College of Law B.A., Arizona State University Bar Admissions Pennsylvania New Jersey

Rachel A. Wade Director of Human Resources New York rwade@wcmlaw.com +1 267 279 9926 Professional Experience As Director of Human Resources Rachel plans, leads, develops, coordinates, and implements policies, processes, training, initiatives, and surveys to support the organization's human resource compliance and strategy needs. Rachel collaborates with senior leadership to understand the organization's goals and strategy related to staffing, recruiting, and retention. She also serves as a key tactical partner in monitoring and ensuring the organization's compliance with federal, state, and local employment laws and regulations, and recommended best practices; and reviews and modifies policies and practices to maintain compliance. Rachel has spent her entire career at WCM, joining the firm in 1998 as a receptionist while studying at St. John’s University and then working as a legal assistant and paralegal before taking on the administrative and operational responsibilities that ultimately led to the transition to her role as Director of Human Resources. Honors and Distinctions St. John’s University, Bachelor of Science, cum laude News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.S., St. John's University

News Sports Injuries - Some Risks are Still Assumed (NY) March 10, 2017 < Back Share to: One piece of common sense courts tend to follow is that people usually assume the risks inherent in the games they play. Whether it’s a hockey player who might slip on the ice or a gymnast who might fall off the rings, people cannot expect to recover in a court of law just because they hurt themselves while playing a sport. Liability attaches when a property owner fails to correct risks outside the scope of a given activity. A recent First Department decision should provide a degree of comfort to property owners whose facilities host multiple sports. In Egbebemwen v. Nerw York City Department of Education, the plaintiff was a 15 year old boy who injured himself on a wrestling mat after trying to dunk a basketball. Though the mat was a few feet out of bounds, the plaintiff argued the defendant was negligent by leaving the mat so close to the court. The First Department rejected this argument, and held that the defendant was entitled to summary judgment, because the plaintiff was aware of the mat, and that it posed a tripping hazard. In other words, the risk was open and obvious. On a personal note, this facts pattern reminds me of a similar situation when I was a junior at Regis High School. While playing basketball, I sustained a high ankle sprain when my classmates and I neglected to move a small hockey goal from underneath the backboard in our lower gym. Predictably, I landed awkwardly on the goal and badly sprained my ankle. Adding insult to injury, I didn't secure the rebound. Ah, I can still hear the sympathetic cries of one of my classmates: "Sub! I'm in for Gibbons, he's down!" Men for Others, indeed. (No, there was no insurance claim or lawsuit. In fact, I think we were reprimanded for being careless and damaging the goal. The good ol' days.) Despite this decision, property owners should still take care to properly maintain their facilities. In Egbebemwen, the Court was careful to note that the Plaintiff had observed the dangerous conditions before. While a plaintiff who is aware of risk may be barred from recovery by assuming the risk, there may have been a different outcome if a newcomer to the facility had fallen to the mat. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Failing to Allege a Cause of a Fall Can Cause Your Claim to Fall Flat May 13, 2024 < Back Share to: It is no surprise that the failure to identify the cause of a fall is fatal to a Plaintiff’s claim in a slip-and-fall accident. However, what happens if a party identifies a potential cause of their fall and fails to assert that it was a potential cause of their accident? Unsurprisingly, as is often the case, if a plaintiff fails to include or assert a claim, then the Court will not consider it, even if it has potential validity. This was the case in the matter William T. Lucas v. Genting New York, LLC . Plaintiff, Alice Lucas, prior to her death, testified she was unable to identify what caused her to trip and fall while walking on a walkway outside the property owned by the Defendant. When the defendants moved for summary judgment because of this, Lucas opposed the motion by claiming that the area where she was walking had not been properly illuminated. However, the Court did not find this to be a triable issue of fact that warranted denial of summary judgment because Plaintiff never alleged that the inadequate lighting was the proximate cause of her fall. and as such, even if that was true, because it had not been alleged this was the proximate cause of the accident, the Plaintiff still failed to identify what caused her to trip and fall, thereby warranting dismissal of her case. This case clearly demonstrates the importance of accounting for every possible cause of a fall in a trip-and-fall case, and this is true regardless of which side of the lawsuit you fall on, no pun intended. As the Plaintiff, you need to be sure you can accurately identify what caused you to fall. As a Defendant, if a potential cause is noticed, but Plaintiff does not initially argue that is the cause but tries to do so later, be sure to call out the improper use, as it may just provide you a win in your case. Lucas v.. Genting NY .pdf Download PDF • 93KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News A Decade Later, New Evidence Vacates SJ Decision September 2, 2021 < Back Share to: In Abrams v. Berelson, venued in Supreme Court, Richmond County, the court granted the plaintiff's motion to renew and set aside an order granting the defendant summary judgment that was granted 10 years earlier. The case stemmed from an accidental shooting that occurred in the home owned by the defendant on November 3, 1997. The plaintiff and a co-worker, Michael Torres, were hired to clean carpets and perform generally cleaning out of the home following the death of the defendant's mother. During the course of the cleaning, Torres found a gun in a bedroom and accidentally shot his co-worker, the plaintiff. In a 2000 decision, the court granted the defendant's summary judgment motion holding that the plaintiff could not establish actual or constructive notice of the injury-producing condition. Specifically, the plaintiff could offer no proof to establish where the rifle was found, whether it was visible and apparent or how long it was present in the house prior to the shooting. In granting the motion, the court stated that the only person who could testify as to the location of the rifle was Torres and at that time, he had given no testimony and could not be located by either party. The plaintiffs, after a diligent search, located Mr. Torres and submitted an affidavit from him in which he admitted that he had made himself hard to find after the police determined the shooting was an accident. He stated the he lived with family members over the years and instructed them to advise others, especially the plaintiff's family, that they did not know how to contact him. Based on this affidavit, Torres' willingness to appear for a non-party deposition and the discovery that the police had not destroyed the rifle in question, the court set aside the summary judgment order and ordered an expedited discovery schedule. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51515.htm Previous Next Contact

News Court Rejects Jeweler's Fragile Argument Against Brinks February 8, 2012 < Back Share to: Anyone dealing in the world of jewelry, fine art, or specie is all too aware of the limitation of liability clauses that appear in shipping contracts. That issue was front and center in a recent appellate court decision in New York, Maxine v. Brinks. Plaintiff, a jewelry retailer, used Brinks to ship 157 “ornate pieces of handmade jewelry” from plaintiff's New York City facility to a department store in Virginia. The items were contained in a soft-sided rolling suitcase, and the airbill listed a declared value of $2 million. The retail value, according to invoices, was more than $6,000,000, with a wholesale value about half that amount. While in transport, the shipment was damaged, and plaintiff’s claim was over $600,000. In the trial court, Brinks was awarded summary judgment and the complaint was dismissed. The airbill contained a provision limiting Brink’s liability to lost shipments, unless specific items were identified and their values declared – which would have required plaintiff to pay additional charges for the shipment. On appeal, plaintiff claimed that the limitation of liability was ambiguous, because it required identification of a “fragile” item -- a term not defined anywhere in the Brink’s airbill. But in its decision, the appellate court pointed out that plaintiff was unable to overcome the other provision in the airbill that excluded breakage for jewelry. Specifically, the provision excluded “BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles…” Plaintiff tried to claim that provision was buried in small print and was also ambiguous because it lumped together a number of items in an unclear manner, and appeared to only apply to breakage of “fragile jewelry” or certain decorative items. But the Court rejected plaintiff’s claims, finding that the list clearly excluded the enumerated items, including jewelry, and that a definition for fragile only needed to be applied if an item was not specifically listed. Thus, the trial court’s decision to dismiss the complaint was upheld. If you would like more information about this case, please write to mbono@wcmlaw.com .     Previous Next Contact

News NJ Court Affirms PIP Insurer's Right To Settle Even If Policy Limits Are Exhausted For Other Claims December 21, 2009 < Back Share to: Marilus Rodriquez suffered personal injuries in a motor vehicle accident with medical bills for treatment totaling $623,677. The Allstate policy providing PIP benefits to her had $250,000 per accident limits. After Allstate paid $250,000, another unpaid provider, Endo Surgical sought additional benefits over the Allstate policy limits. It argued that while its demand for arbitration was pending, Allstate had a duty to notify it that the insured's PIP benefits were going to be exhausted. The appellate division rejected this argument and affirmed , finding that, absent bad faith, an insurer may settle with one claimant, notwithstanding that the settlement may exhaust the policy limits available for other claimants. http://www.judiciary.state.nj.us/opinions/a2146-08.pdf Previous Next Contact

News South Philadelphia Restaurant Lawsuit Speaks to Trends for Business Interruption Claims (PA) May 15, 2020 < Back Share to: Following similar news resulting from the COVID-19 pandemic, a South Philadelphia restaurant, River Twice, has filed a declaratory judgment action against its insurer. In its complaint, River Twice is requesting that the U.S. District Court in Philadelphia declare its entitlement to business interruption coverage due to coronavirus losses. River Twice’s lawsuit against its insurer, which does not mention that a claim had previously been filed, is largely a preemptive move. The declaratory judgment complaint, filed on April 10, 2020, makes two arguments: that the virus damages property by living on surfaces for hours or days, causing potential danger, and the shutdown, which began on March 16, in Philadelphia, that was ordered by city and state authorities, also resulted in damages. River Twice’s lawsuit is representative of what other insureds have begun to argue in similar declaratory judgment actions against insurers, namely that the presence of the virus on surfaces for hours or days constitutes physical damage and, thus, triggers property damage coverage under their policies. We will continue to keep you updated as case law emerges in this new area of law. Thanks to Joseph Anzalone for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Condo's are not Owners under Labor Law (NY) December 13, 2012 < Back Share to: As CGL insurers are well aware, New York's Labor Law, originally designed to protect construction workers from unsafe practices, often ensnares small property owners with its strict liability conditions. Labor Law § 241(6) imposes a nondelegable duty upon "owners," "contractors" and their "agent" involved in construction, excavation, or demolition work to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Recently, the New York Court of Appeals ruled that condominiums generally cannot be found liable under New York Labor Law § 241(6). In Guryev v. Tomchinsky, the plaintiff suffered an eye injury while working in the defendants' condominium unit. Guryev sued the condominium under Labor Law, arguing that the condominium was an “owner” of the unit because it owned the land underneath the building. In addition, the condominium entered into an alteration agreement with the Tomchinskys in which the condominium retained many important rights and control over how the work would be performed and contractor choice. Plaintiff further argued that co-operatives are deemed to be "owners" and condominiums should also be deemed owners for public policy reasons. The Court of Appeals, over the dissent of its Chief Judge, ruled in favor of the condominium because the condominium, unlike a co-op, did not hold title to the actual unit in which the injury occurred. Therefore, the condominium could not be an “owner” under Labor Law § 241(6). In addition, the alteration agreement with the Tomachinskys simply reflected the condominium's interest in making sure that the renovations would protect the building and other units and did not grant the condominium the prerogative to ensure that the contractor was using adequate safety precautions. Thanks to Mendel Simon for his contribution to this post. If you have any questions, please write to mbono@wcmlaw.com . Previous Next Contact

News Homeowner's Exception And Mixed Use May 26, 2010 < Back Share to: Generally, Labor Law Section 240(1) imposes absolute liability on homeowners and general contractors. The Legislature carved out an exception for owners of one-and two-family dwellings who are not in a position to realize, understand and insure against the responsibilities of absolute liability imposed by Labor Law Sections 240(1) and 241(6). The exception, however, does not apply to single-family residences that are used for commercial purposes In Chester Lenda v. Breeze Concrete Corp. the defendant homeowner moved for summary judgment seeking dismissal of the plaintiff's Labor Law 240(1) and 241(6) claims arguing that he was entitled to the protection of the homeowner's exception because he planned to use the residence for potential overflow for family guests during vacations. The lower court denied the motion and the Appellate Division, Second Department upheld the denial noting that the evidence showed that a caretaker, employed by the owner, lived in the residence rent free as part of his compensation for maintaining two of the owner's other properties. Thus, the court held that the owner’s use of the property was strictly commercial. In cases of mixed use, the court’s determination on whether the homeowner's exception applies is based on the site and purpose test. This test takes into account the intention of the homeowner at the time of the injury and not their hopes for the future. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04341.htm Previous Next Contact

News Although Kings of Their Courtroom, Judges Cannot Be Comedians (NJ) September 25, 2013 < Back Share to: After being admitted to the bar, Vincenzo August Sicari enrolled in acting classes and pursued dual careers, a plaintiff’s attorney by day and “Vincent August,” a stand-up comedian by night. Sicari maintains that he has two, carefully distinct identities and neither interferes with the other. For one thing, he refuses to do law jokes (which I’m sure is a challenge in it of itself). Trouble occurred in 2008 when Sicari took office as a part-time municipal court judge in South Hackensack. He was forthcoming and immediately discussed his entertainment career with those who appointed him to the position. When he was asked to do an interview for a local paper, Sicari sought out the Advisory Committee on Extrajudicial Affairs to see if an interview was copasetic with his new judicial appointment. Unfortunately, it was not. The Advisory Committee issued two opinions, an initial opinion and a supplemental opinion after Sicari asked for reconsideration of the initial opinion, both of which advised Sicari that his entertainment career was not compatible with judicial career. Sicari maintained that his two careers were separate and therefore did not create any ethical concerns. He appealed to the Supreme Court of New Jersey. The Court agreed with the Advisory Committee In the Matter of Advisory 2 Letter No. 3-11 and Opinion 2 No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities. The reasoning behind the Supreme Court’s decision lies in Sicari’s actual work as a comedian. The Court watched numerous tapes of Sicari’s comedic work, and feared his work may bring his impartiality into question. The Court watched skits of Sicari playing a person engaged in racial profiling, a homophobic bar patron and even one about how much he hates kids. Sicari admitted his entertainment is inspired by current events as well as based on his personal experiences growing up in an Italian-American Catholic family, but also argued that he really believes Vincent August is a completely separate identity from Judge Sicari. The Court held that although his dual careers may be OK for a lawyer, they do not work for a judge. The Code of Judicial Conduct subjects even part-time judge’s to a heightened ethical standard. Judges cannot pursue any activity, and particularly cannot pursue those that may put the judge’s impartiality on the line. The Court would not risk Vincent August’s audience commingling with Judge Sicari’s courtroom. While he sits as a municipal court judge, Sicari must put his entertainment career on hold. Thanks to Anne Mulcahy for her contribution of this post. If you have any questions -- or jokes--, you can email Paul at pclark@wcmlaw.com   Previous Next Contact