News Toddler On Tricycle At Fault For Car Collision (NY) July 7, 2023 < Back Share to: It’s important to learn the rules of the road as early as you can; this apparently includes kids on bikes. Specifically, this case warns that if you do not teach toddlers the rules of the road you might be at fault for being hit by a car. In a recent decision in the case A.B. v. Stephanie A. Waring, Index No. 715613/18, the Second Department ruled that the defendants were not liable for striking the infant Plaintiff with the owning defendant’s car. This was due to the fact that the driving defendant had the right of way when the accident occurred and the infant Plaintiff, who was riding her bike, came out onto the road from in-front of a parked car while the driving defendant was heading in that direction. The defendant had minimal time to respond. The Second Department cited to Vehicle and Traffic Law sections 1143, which requires drivers to yield the right of way to all approaching vehicles on a road they are attempting to enter or cross, and 1231, which notes that anyone riding a bicycle is required to follow these rules as if they were driving a car. While this makes no reference to negligence per se, this nonetheless appears to be a case where negligence per se would potentially apply as the infant Plaintiff violated two state-level statutes, even though they are likely not yet old enough to drive on their own. The moral of this story: if you are thinking of getting your child a tricycle for the holidays this year, you MIGHT want to include a copy of the VTL with it… assuming the child can read. Thanks to Patrick Argento for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Are Plaintiffs Still Masters of their Claims? The Changing Legal Landscape After Tincher (PA) September 19, 2019 < Back Share to: In the seminal products liability case, Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014), which we reported on here, the Pennsylvania Supreme Court stated that the plaintiff is the “master of the claim.” But there may now be limitations on such "mastery." In Davis v. Volkswagen Grp. Of Am., 2019 WL 3252054, the Pennsylvania Superior Court held that the trial court could instruct the jury to use either the consumer expectation test or the risk-utility test. The court did not have to use the test advocated by the plaintiff. In Davis, Jane E. Davis brought a claim on behalf of her husband after he had died in an accident while driving the couple’s Volkswagen. The accident involved a head on collision where another car crossed the center line and hit the Davis’ Volkswagen. The car eventually burst into flames and Mr. Davis died later due to injuries from the fire. Mrs. Davis filed suit against, among others, Volkswagen. Mrs. Davis’s claims included a products liability claim alleging that the Volkswagen was in a defective condition. She attempted to prove this through the consumer expectation test. As such, she requested that the court instruct the jury to use the consumer expectation test. The court declined to do so. Subsequently, Davis lost and appealed the decision to the Pennsylvania Superior Court. She argued that because a plaintiff is the “master of the claim,” the court should allow the plaintiff to pursue her chosen theory of liability in jury instructions. The court disagreed. In its opinion, the Pennsylvania Superior Court acknowledged the language in Tincher; however, the court upheld the trial court’s decision instructing the jury on both the consumer expectation test—advocated by Davis—and the risk-utility test—advocated by Volkswagen. The court said that because there was evidence pointing to the test advocated by Volkswagen, it was not limited to instruct the jury only on plaintiff’s theory of liability. Further, the court said that by instructing the jury on any applicable test, it enabled Davis to pursue her claim, and it allowed the jury to apply all relevant tests to the facts. Davis suggests that going forward, defendants may not be be forced endure jury instructions only using plaintiffs’ theories of the case. Davis demonstrates that the court will honor plaintiffs’ theories, and at the same time, allow defendants to submit its instructions if supported by evidence. Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News PA Superior Court -- Head Injuries Inherent to Softball June 30, 2008 < Back Share to: In the case of Craig v. Amateur Softball Association of America,(Pa. Superior Ct. June 4, 2008), the plaintiff (who was not wearing a helmet at the time) was struck in the head by an errantly thrown ball while running the bases at a softball game. He claimed various physical injuries as a result. He subsequently sued the softball association that had sponsored the game and argued that the league had a duty to mandate or at least recommend the wearing of helmets. The trial court granted summary judgment for the defendant and the plaintiff appealed. The Superior Court affirmed the dismissal and held that the defendant association did not owe a duty to warn, protect or insure against risks that are “common, frequent, expected and inherent” to the injury causing activity. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News NY's 2nd Dept. addresses timely notice. November 5, 2007 < Back Share to: The Second Department revered the trial court's grant of summary judgment to the insurer on late notice grounds and held that the insured raised questions of fact regarding its "reasonable belief in non-liability." http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7058832 Previous Next Contact

News Plaintiff Doesn't Hold All The Marbles In Determining Venue January 7, 2008 < Back Share to: A case for all geography lovers. In Montesano v. New York City Housing Authority, 2007 NY Slip Opinion 09955, AD and Bronx Co. Index 24323/05, plaintiff incorrectly chose venue when she brought her action in Bronx County claiming that she injured herself while descending an interior staircase in the New York City Housing Authority apartment building where she lives, located at 5480 Broadway in the Marble Hill section of New York City. Having lived there for 18 years, the plaintiff was confident that she was a Bronx resident. As it turns out, plaintiff was duped by her surroundings. The 52 acres of Marble Hill were originally connected to the Borough of Manhattan (coterminous with New York County) until 1885 whereupon the Harlem River Ship Canal was created. Although separated from Manhattan by water and connected to the Bronx, and while bearing a Bronx zip code, and using a Bronx area code, Marble Hill actually remains part of New York County. For this reason, defendant correctly demanded and moved for change of venue that was ultimately granted by the Appellate Division- First Department since the New York Adminsistrative Code section 2-202(1) places Marble Hill with New York County for all purposes. http://www.courts.state.ny.us/reporter/3dseries/2007/2007_09955.htm Previous Next Contact

News An Insured’s Failure To Recognize The Difference Between An Underlying Lawsuit And A Coverage Action Is Not “Willful” Such That Its Insurer Is Entitled To Default Judgment < Back Share to: In Peleus Insurance Company v. Milestone Construction Corp., et al. , the United States District Court for the Southern District of New York held that an insured’s failure to realize the difference between a coverage action (in which it was sued by its insurer) and the underlying action (for which the insurer was seeking to disclaim coverage) was not sufficiently “willful” to prohibit the insured from setting aside the default. Peleus Insurance Company, the plaintiff in the coverage action, issued two commercial insurance policies to the owner of the premises and the general contractor. The Peleus policy required any contractor retained by the owners of the property to maintain “adequate insurance” including commercial general liability insurance, workers’ compensation insurance, and employer’s liability insurance. As is the case in nearly any New York Labor Law claim, the general contractor, in turn, hired a subcontractor to perform the work. The subcontractor was insured by Northfield Insurance Company. The facts underlying the coverage action are familiar: an employee of the subcontractor was injured while performing work at the construction site and he sued the contractor and the owner. Peleus initially agreed to provide coverage to its insureds for the lawsuit. On the other hand, Northfield disclaimed coverage to the subcontractor. Because of Northfield’s disclaimer, Peleus sought to disclaim coverage under its own policy because, it argued, its insureds did not ensure that its subcontractor maintained adequate insurance as required by the Peleus policy. Northfield sued its insureds in a separate coverage action. The insureds did not answer or otherwise respond to Northfield’s complaint because, they asserted, “a non-lawyer did not understand that a separate suit had been filed.” Peleus defaulted its insureds in accordance with federal court rules. The non-attorney member of the insured company asserted that he was not even aware what a declaratory judgment action was until his defense counsel became aware of the pending default. After becoming aware of the distinction between the underlying personal injury action and the coverage action, the insureds moved to set aside the default. The district court set forth the three-part test used to analyze whether a default should be set aside: (i) whether the defendant’s failure to appear in the case was “willful”, (ii) whether the defendant can demonstrate a complete defense in the case, and (iii) whether setting aside the default would prejudice the plaintiff. The court’s holding was threefold. First, it held that the insureds’ initial failure to realize the distinction between the underlying lawsuit and the coverage action was not “willful.” Second, it held that, even though the insureds could not demonstrate a “completely meritorious defense” in the coverage action, that failure did not warrant the entry of default against them. Finally, it held that, in light of New York’s strong presumption in favor of adjudicating a case on the merits, mere litigation costs were insufficient to constitute “prejudice” to Peleus. Peleus Insurance Company v. Milestone Construction Corp .pdf Download PDF • 168KB Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com Contact

News Business Interruption Claims in the Covid-19 Era: The Trend Continues December 11, 2020 < Back Share to: Earlier this week, a federal judge in the U.S. District Court for the Southern District of Florida dismissed a lawsuit seeking coverage for losses associated with the COVID-19 pandemic. In El Novillo Restaurant, et al. v. Certain Underwriters at Lloyd’s, London, et al., the plaintiffs filed suit seeking coverage for business income losses due to Covid-19. In response to the amended complaint, the defendants filed a motion to dismiss. In support of their motion, the defendants argued that the complaint did not contain any allegations that the insureds’ losses are the result of “direct physical loss of or damage to” the insureds’ properties sufficient to trigger coverage. The plaintiffs opposed the dismissal, arguing that the policy is an “all-risk” property insurance policy. They argued that the policy “covers loss or damage to the covered premises resulting from all risks other than those expressly excluded.” The plaintiffs argued that the policy’s definition of “direct physical loss of or damage to property” is broad and encompasses more than mere structural damage to property. Accordingly, the plaintiffs argued that the policy provides coverage for the business income losses due to the COVID-19 pandemic. Citing the specific language of the policy, the court held that the plaintiffs failed to sufficiently allege that their properties sustained property damage. In making this determination, the court cited other federal district courts – including, inter alia, the Middle District of Florida, District of Minnesota, Central District of California, Southern District of Alabama – that dismissed similar COVID-19 related lawsuits for failing to state a claim for business income coverage. This case is an example of the trend that the courts are taking with respect to coverage for losses due to COVID-19 closures. Significantly, this decision emphasizes the importance of the plain language of the policy and how, in the context of the COVID-19 pandemic, courts are unwilling to expand the definition of “direct physical damage” to provide coverage for economic losses when no tangible property damage is sustained. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

Harris D. Bresowsky Associate New York hbresowsky@wcmlaw.com 332 345 4396 Professional Experience Harris Bresowsky litigates general liability actions, including property damage cases, premises liability and construction defect claims, contractual disputes, and trucking accidents. He handles claims from inspection up to the time of trial, including fact analysis and investigation, drafting pleadings and motions, depositions, legal research, arbitrations, mediations, and preparing for trial. Harris graduated from Albany Law School of Union University, where he received a distinct nomination for the role of a Government Law Center Fellow. After law school, Harris was selected as an Excelsior Fellow under Governor Kathy Hochul, working at the New York State Insurance Fund. Following his time as a Fellow, Harris went on to work as a Congressional Aide for the United States House Minority Leader’s Office. Prior to joining WCM, Harris specialized in medical malpractice, general liability, and asbestos litigation. Professional Activities New York State Bar Association NY Chapter of the American Constitution Society, Vice Chair News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Albany Law School of Union University B.A., State University of New York at Buffalo Bar Admissions New York

News Is The Pennsylvania Bad Faith Test Bad? September 9, 2016 < Back Share to: On August 30, 2016, the Pennsylvania Supreme Court granted a Petition for Allowance of Appeal in Rancosky v. Washington National Insurance Company, agreeing to review certain current requirements to prove bad faith. In its order, the Supreme Court agreed to review the current requirements for proving insurer bad faith in Pennsylvania, and if it determined these requirements were proper, it agreed to review whether the factor of “motive of self-interest or ill-will” was a mandatory prerequisite to proving bad faith, or whether it was merely a discretionary condition. In the intermediate appellate court, the Superior Court had previously held that proving a “dishonest purpose” or “motive of self-interest or ill-will” was merely a discretionary condition that was probative of the issue of whether “the insurer knew of or recklessly disregarded its lack of reasonable basis in denying the claim.” The Opinion of the Supreme Court, when issued, could drastically reshape the current landscape in Pennsylvania’s bad faith law. Pennsylvania’s statute on bad faith does not define a standard for bad faith, and the current rule was established by the Superior Court in Terletsky v. Prudential Prop. And Cas. Ins. Co. 437 Pa.Super 108 (1994). The Terletsky rule requires a plaintiff to satisfy a two-part test: (1) that the insurer did not have a reasonable basis for denying benefits under the policy; and (2) the insurer knew or recklessly disregarded its lack of reasonable basis in denying the claim.” The Pennsylvania Supreme Court’s order granting review offered a sweeping basis for reviewing the Terletsky test, and could alter how insurers are forced to approach defending bad faith in the future. We will issue further guidance on this issue once the Court issues its opinion. Thanks to Konrad Kreb for his contribution to this post.       Previous Next Contact

When WCM takes on a case, we take the long view. It starts with critical thinking in how best to make a record to protect our clients. As skilled trial advocates, we know that ultimate success depends upon vindicating our position in Motions and Appellate Practice. We have earned a reputation for excellence in our written work and in our many successes in state and federal appellate courts. Our skill in the appellate arena is manifest in a weekly law blog in which we keep our clients current in developments and emerging legal trends in our practice areas. WCM attorneys also contribute to insurance and defense scholarship by writing articles for Insurance and bar association journals, as well as conducting continuing education seminars for claim professionals and attorneys. Appellate When WCM takes on a case, we take the long view. It starts with critical thinking in how best to make a record to protect our clients. As skilled trial advocates, we know that ultimate success depends upon vindicating our position in Motions and Appellate Practice. We have earned a reputation for excellence in our written work and in our many successes in state and federal appellate courts. Our skill in the appellate arena is manifest in a weekly law blog in which we keep our clients current in developments and emerging legal trends in our practice areas. WCM attorneys also contribute to insurance and defense scholarship by writing articles for Insurance and bar association journals, as well as conducting continuing education seminars for claim professionals and attorneys. Practice Lead Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Download Download

News Pennsylvania Out-Of-Possession Landlord Has No Duty Absent Exceptions August 8, 2016 < Back Share to: The general rule in Pennsylvania is that an out of possession landlord does not owe a duty to business invitees when it leases premises to another. There are some exceptions. In Vasilik v Voipoch, LLC, plaintiff slipped and fell in a stairwell with no handrails. After discovery, defendant moved for summary judgment arguing that as an out-of-possession landlord it owed no duty to plaintiff. In opposition, plaintiff argued that defendant was responsible for any defect that existed at the time a lease was signed. The court noted that generally, out-of-possession landlords are not liable for defective conditions that prior to the inception a lease. However, there were exceptions to the rule. For example, if the landlord retained control over the premises or negligently made repairs. In analyzing the potential exceptions, the court found that the entire property was leased to the tenant, including the stairwell, thus the landlord did not retain control over the stairwell. As to repairs, though the landlord had made repairs to other parts of the building, it never performed repairs in the stairwell. As such, there was no exception to the general rule, and the out-of-possession landlord was not liable for the defective conditions in this matter. This case illustrates the importance of conducting discovery to develop sufficient evidence to enable a party to carry its burden of proof and prevail on a motion (or to successfully defeat an opponent’s motion for its lack of evidence). Thanks to Collen Hayes for her contribution to this post. Previous Next Contact

Brian T. Noel Partner Pennsylvania bnoel@wcmlaw.com +1 267 331 3891 Professional Experience Brian Noel is a trial attorney whose practice spans a broad range of civil litigation, representing clients in complex matters involving products liability, construction defects, construction accidents, premises liability, trucking and automobile claims, and disputes arising from catastrophic injuries and significant property losses. His work includes defending high exposure cases and navigating the technical, regulatory, and industry-specific issues that often accompany them. In addition to his litigation practice, Brian investigates and litigates insurance coverage disputes and advises insurers on fraud-based coverage issues. His work includes policy language analysis, evaluation of coverage positions, and guiding clients through first-party and third-party coverage challenges. Known for his thorough case preparation and practical, results-oriented approach, Brian works closely with clients to assess risk, develop strategy, and resolve matters efficiently — whether through negotiation or trial. Prior to joining WCM, Brian served as a judicial law clerk to the Hon. John M. Gallagher of the United States District Court for the Eastern District of Pennsylvania. Brian also served as an Assistant District Attorney in the New York County District Attorney’s Office, where he was assigned to the Office of the Special Narcotics Prosecutor for the City of New York. In that role, he tried a number of jury trials to verdict and handled long-term complex investigations with local and federal law enforcement authorities. Brian was also an adjunct professor at New York Law School. Brian also serves on the Board of Directors for the Noel Soccer Foundation and is the chairman of its Scholarship Committee. In his free time, Brian enjoys spending time with his wife and three children in the Philadelphia area. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education New York Law School, J.D. Temple University, B.A. Bar Admissions New York Pennsylvania New Jersey Court Admissions Eastern District of PA Southern District of NY Eastern District of NY New Jersey District Court