News Defense Jury Overruled (NY) November 21, 2013 < Back Share to: In DiDonna v. Houck, the Second Department granted plaintiff’s motion to set aside a verdict that was contrary to the weight of the evidence. The plaintiff was struck while crossing the street in a crosswalk by a vehicle driven by the defendant. After trial, the jury found that the plaintiff was 60% at fault while the defendants were 40% at fault for the accident. The court found that the plaintiff began crossing the street on a “walk” signal and at all times stayed within the crosswalk. There was no evidence presented indicating otherwise. Pursuant to Vehicle and Traffic Law §1112, a pedestrian crossing a roadway during a steady walk signal must be given the right of way. If a pedestrian partially completes his or her crossing on the walk signal, that pedestrian may proceed on a flashing or steady “don’t walk” signal. Applying the law, the court could not find a fair interpretation of the evidence that was consistent with the jury’s findings. As such, the court held that the verdict was contrary to the weight of the evidence, quite a high standard to meet. The court set aside the verdict and granted a new trial on liability, unless the parties stipulated to a finding that the plaintiff was 5% at fault and the defendants were 95% at fault for the accident. The verdict is not all that surprising for a case tried in Westchester County, a defendant-friendly venue. However, the court’s decision is not as predictable. The court essentially made its own finding on liability, conditioning it with the threat of a new trial. As seen in this case, a favorable jury verdict, or a favorable venue, will not automatically help a party when the evidence presented does not discharge a party’s liability under the law. However, the defendant will get the benefit of that same jury deciding the damages issues in a bifurcated trial. Thanks to Anne Mulcahy for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Checking it Twice: 2nd Circuit Affirms Dismissal of Doctor’s Suit Against Insurer for Bad Faith Reporting (NY) December 23, 2019 < Back Share to: Recently, in the lawsuit captioned: Haar v. Nationwide, the Second Circuit affirmed the New York Court of Appeals decision that a doctor is unable to sue an insurer for bad faith reporting under New York Public Health Law § 230(11)(b) because the statute does not create a private right of action. In 2017, Harr sued Nationwide because it submitted a complaint to the New York Department of Health’s Office of Professional Misconduct (OPMC) based on Harr’s conduct in the treatment of four patients in 2012 and 2013. Each of the patients was injured in a vehicle insured by Nationwide and each claim was either partially or fully denied because of the absence of a “cause and effect relationship” between the injuries and the accident or because of the applicable fee schedule. The OPMC investigated the complaint and cleared Harr. Harr subsequently sued Nationwide arguing that the insurer was guilty of bad faith reporting. The statute states that “[a]ny person, organization, institution, insurance company, osteopathic or medical society who reports or provides information to the [state board for professional misconduct] in good faith, and without malice shall not be subject to an action for civil damages or other relief as the result of such report.” The Court utilized the three Schlessinger factors to determine whether an implied right of action exists under this statute: 1) whether the plaintiff is one of the class for whose particular benefit the statute was enacted; (2) whether recognition of a private right of action would promote the legislative purpose; and (3) whether creation of such a right would be consistent with the legislative scheme. Schlessinger v. Valspar Corp., 686 F.3d 81, 87 (2d Cir. 2012). The Court found that Harr did not meet any of the factors. First, the statute was not enacted to benefit the individual being reported, but rather to protect the individual making the complaint. Second, the legislative purpose was to encourage reporting, not to discourage bad faith reporting as Harr argued. Lastly, allowing for a private right of action would be inconsistent with the legislative scheme because the statute specifically states that reports of misconduct are confidential and inadmissible in administrative or judicial proceedings. The case brings interesting closure to an issue that lacked high court precedent in New York. Thanks to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Batten Down the Hatches! NJ Appellate Court to Examine Fortuity Question (NJ) November 15, 2019 < Back Share to: A New Jersey couple, the Inganamorts, recently filed an appeal to the 3rd U.S. Circuit Court of Appeals after losing to their insurer, Chartis, in a coverage battle that truly rocked the lower court’s boat. The original dispute arose after the Inganamorts sought coverage with Chartis when their yacht partially sank while docked at a marina in Boca Raton, Florida. Chartis denied coverage for the incident and filed suit, seeking a declaratory judgment that it owed no coverage for the couple's claim because the policy only covers a loss that is proven to be the result of a fortuitous event. U.S. District Judge WIlliam H. Walls of the District of New Jersey granted Chartis' motion for summary judgment (which we reported on earlier this year) on the basis the Inganamorts failed to show that the amount of rainfall on the days in question was sufficiently fortuitous to have caused the yachts partial sinking. Chartis argued that the vessel's damage was not fortuitous because they stemmed from a hole in the boat that we brought about by years of lack of upkeep. Conversely, the Inganamorts contend that the heavy rainstorms had overwhelmed the vessel and caused it to partially sink. The lower court’s decision serves as a useful illustration of how courts apply the fortuity rule. Generally, the insured need only prove that a loss or damage to property occurred while the policy was in force and that the loss arose from a cause that is not excluded under the policy. Interestingly enough, Chartis asserts in their reply brief that even if the Inganamorts were able to demonstrate a fortuitous loss in the case at hand, coverage would nevertheless still be barred by several policy exclusions. The Inganamorts may inevitably be cornered into two dangerous alternatives, or as the harbor master may say, be stuck between the devil and the blue sea. Thanks to James Papadakis for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Greenbrier Classic Loses Hole-in-One Case, Now Sues Broker March 3, 2017 < Back Share to: One of the events at the well-known Greenbrier Classic golf tournament in West Virginia is the Hole-in-one Jackpot, where the fans seated in the grandstands win cash prizes if the golfers land a hole-in-one on the 18th hole. In order to limit their exposure, the operators of the golf tournament (Old White) obtained an insurance policy that would pay out in the event they awarded prize money. One of the conditions of the policy required that the 18th hole be at least 150 yards from the tee. During the 2015 tournament, two golfers nailed holes-in-one, and the operators paid out about $200,000 in prize money. But the insurers disclaimed coverage because the hole was only 137 yards. The organizers sued, claiming that they made it plain when they applied for coverage that the PGA was in charge of pin placement and that they would not know -- or have any control -- over the distance of the hole. Each party moved for summary judgment, and the insurers' argument was simple: that despite whatever expectation that the organizer had, the language of the policy regarding the 150 yard minimum was very clear. The Court thus ruled in favor of the insurers. But Old White has now sued their insurance brokers, claiming that the brokers were fully aware that the organizers had no control over pin placement, that the organizers were never advised about the distance limits, and that the brokers knew that Old White did not want a policy with a distance limit. WCM will continue to follow this saga, and please write to Mike Bono for more information. Previous Next Contact

News Does New York’s “Storm in Progress” Rule Apply To Concealed Hazards? January 28, 2022 < Back Share to: In New York, when a plaintiff is injured due to a slip and fall on snow and ice, a landowner’s duty to take reasonable measures to remedy a dangerous condition caused by a storm is suspended while the storm is ongoing until a reasonable time after the storm has ended. It is also well settled that the New York City Administrative Code Section 7-210 imposes tort liability on property owners who fail to maintain city-owned sidewalks in a reasonably safe condition, but the Court of Appeals has held that a tree well is not part of a sidewalk under this Section. The First Department recently addressed these holdings in deciding whether a homeowner was exempt from liability where a tripping hazard from a tree well was concealed by an ongoing snowstorm. In Kovel v. Glenwood Mgmt. Corp., 200 A.D.3d 460 (1st Dep’t 2021), the plaintiff tripped and fell on a stone tree well border on a sidewalk abutting a building owned by defendants. Plaintiff’s accident occurred at night during a snow fall. Plaintiff claimed that her accident occurred because the border surrounding the tree well was an inherently dangerous condition that was neither open nor obvious at the time of her fall because it was covered in snow from the storm. The trial court denied defendants’ motion for summary judgment and First Department reversed, holding that the claims against the defendants should be dismissed. The court found that defendants established that the tree well border was not an inherently dangerous condition and that plaintiff failed to rebut defendants’ meteorological proof establishing that there was a storm in progress at the time of her fall. Accordingly, the court held that there was no duty to remove the snow at the time of the accident because “when the accumulation of snow is the reason for liability there is no basis to limit the storm in progress doctrine to only icy conditions.” The Kovel case makes it clear that the “storm in progress” rule can protect a landowner from liability where an accident occurs during a storm, even where snow from a storm creates or conceals a potentially dangerous condition. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News EPA Notice Letter A Suit Under Policy (NJ) September 16, 2016 < Back Share to: Cooper Industries v. Wasau is an insurance coverage dispute that arose out of a massive Passaic River cleanup effort by the EPA and State of New Jersey and their efforts to collect payment from potentially responsible parties (PRP). Cooper received a PRP letter from the EPA stating that Cooper may be responsible for costs of the cleanup project due to alleged conditions created by manufacturing facilities owned by Cooper companies. Cooper alerted OneBeacon of this notice, but the insurer refused to cover the company’s defense costs in the EPA proceedings, asserting that the policy language provided that “OneBeacon "shall have the right and duty to defend any suit...” and that this letter was not a suit. The Court looked to other jurisdictions that held that a PRP letter was, in essence, a pleading, and that these letters compelled information that would similarly be produced in discovery. The Court also pointed out that the PRP letter stated that the EPA could initiate a lawsuit if Cooper declined to assist with the project. The Court found that the letter used the threat of legal proceedings to compel payment or conduct by a policyholder, which brought the letter within the definition of “suit” under the policies and ultimately found that OneBeacon must defend Cooper Industries in connection with the cleanup project. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information.       Previous Next Contact

News (Serious) Injury is in the Eye of the Beholder May 18, 2016 < Back Share to: “Beauty is in the eye of the beholder” is an ancient and resonant proverb. We know intuitively that beauty is not judged objectively but according to the beholder’s estimation. But what does the eye of the beholder have to do with torts? Everything it seems. Paulema v. Alam (Index# 157041/2014), involved a garden variety auto accident in which defendant sought dismissal of the complaint because plaintiff did not sustain a “serious injury” as required by Insurance Law §5102(d). The contest before Judge Ramirez involved two sets of eyes. The plaintiffs’ doctors saw permanent injury resulting from the crash. The defendant’s doctors saw degeneration resulting from age and no causative nexus between the crash and the complaints. What to do? Motion for summary judgment denied because the differing views of the medical beholders raised a question of fact. This decision, though important to the litigants, is of no great significance. But it is a useful reminder that expert evidence, like judgments on beauty, are often wholly subjective. And the frustration is that opposing experts looking at the same diagnostic films or the same data, can “behold” completely different views on severity and causation. This post reveals nothing new to our readers, save for the author’s frequent musings about the judgments of highly paid expert beholders. Thanks to Dana Purcaro for her contribution to this post. For more information, please email Dennis M. Wade at dwade@wcmlaw.com .   Previous Next Contact

News Open And Obvious Still Good Basis For Summary Judgment In The 2nd Department February 3, 2012 < Back Share to: In 2004, the Appellate Division had limited the “open and obvious” defense in the case of Westbrook v. WR Activities stating that "the duty to maintain premises in a reasonably safe condition is analytically distinct from the duty to warn, and that liability may be premised on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn." However, the doctrine can still be used to obtain summary judgment. In Holdos v. American Consumer Shows, Inc., the plaintiff tripped over a yellow and blue cable cover while attending a trade show in a community college gymnasium. In affirming the decision that granted the defendant summary judgment, the 2nd Department held that there is no duty to protect or warn against an open and obvious condition which, as a matter of law, is not inherently dangerous. Thus, a defendant can still prevail on the defense of the claimed condition being open and obvious provided the defendant presents evidence that the condition is not inherently dangerous. Thanks To Bill Kirrane for his contribution to this post. If you would like more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2012/2012_00489.htm   Previous Next Contact

News New Jersey No-Fault Doctors Cry Foul October 1, 2007 < Back Share to: A new No-Fault fee schedule is set to go into effect in New Jersey, but physicians claim it won't pay their fees. http://www.nj.com/starledger/stories/index.ssf?/base/news-12/1190867971202880.xml&coll=1 Previous Next Contact

News Expanded Insurance Certificate? Don't Even Ask (NY) June 28, 2013 < Back Share to: The New York State Senate and Assembly have passed a bill that will make it illegal for any person to request or require that a certificate of insurance be issued with additional terms that are not contained in the insurance policy. Currently, insurance producers are prohibited from issuing certificates of insurance that alter, expand or otherwise modify the terms of the actual policy. However, many times the producer’s clients require certificates that contain these additional terms. For instance, in the construction context, property owners may require contractors to not only provide certificates of insurance that evidence that the owner has been added as an insured under the contractor’s policy, but that the contractor will also be bound by a“hold harmless” agreement. If the contractor fails to obtain such a certificate it risks losing the job. In such cases the insurance producer is faced with a no-win situation. On the one hand, the producer is prohibited from issuing such a certificate under current regulations and, on the other hand, it risks losing a client who will likely find another producer who will issue the certificate. Therefore, the legislators have passed this bill which prohibits parties such as the owner and contractor, in this example, from requesting that the certificate contain terms not present in the policy. The next step is for the bill to be delivered to Governor Cuomo to be signed into law. We will keep you posted on the progress. Thanks to Mendel Simon for his contribution to this post. If you would like more information please write to Mike Bono.   Previous Next Contact

News NJ: Counsel's Inflammatory Comments Do Not Warrant A New Trial June 20, 2012 < Back Share to: Barbara Jones filed suit against Albert Pannici for injuries sustained in a motor vehicle accident. In turn, Pannici filed a third-party complaint against a phantom driver he claims caused the accident. Jones’ insurer, Allstate, intervened due to their potential liability under the Uninsured Motorist provision of Jones’ automobile insurance policy. At trial, Allstate’s attorney made several statements to suggest that Pannici was not telling the truth as to the cause of the accident. Specifically, in his opening and closing statements, counsel alleged that Pannici became nervous after the accident and lied about the phantom vehicle. Additionally, during his cross-examination, counsel attempted to elicit testimony to suggest that Pannici’s status as a former police officer made it easy for him to concoct a story about the phantom vehicle. Pannici’s attorney did not object to any of the comments made. Ultimately, the jury returned a substantial verdict against Pannici. Pannici moved for a new trial, arguing that Allstate's counsel's comments in the opening, during the cross-examination and in summation led the jury to believe that something improper had occurred and that Pannici was not being truthful. The court disagreed with Pannici’s position and found that the comments made by counsel for Allstate did not amount to error so prejudicial as to require a new trial. Rather, the court found that there was sufficient evidence for the jury to reject Pannici’s version of the accident. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4834-10.pdf Previous Next Contact

News NJ Supreme Court Holds that NJ Transit is held to Heightened Duty of Care to its Passengers February 18, 2021 < Back Share to: On February 17, 2021, the New Jersey Supreme Court in Maison v. New Jersey Transit Corporation held that NJ Transit, which is a public common carrier of passengers, is held to the same heightened duty of care regulating private carriers. By way of background, the case involved a young woman whose forehead was severely injured after teenage passengers threw a bottle at her face. The teenagers were never arrested and the NJ Transit bus operator never told the teenagers to stop harassing plaintiff. Plaintiff ultimately sued NJ Transit which resulted in a trial verdict of $1,800,000. The trial court determined that the common-carrier standard applied to NJ Transit, and that Tort Claims Act immunities did not shield NJ Transit from liability. The trial court also held that the jury could not allocate fault to the unidentified bottle thrower. The Appellate Division affirmed, except that it found the trial court erred when it instructed the jury to not allocate fault on the intentional tortfeasor. The case was remanded to the jury to determine what percentage of fault should be allocated to the bottle thrower. The New Jersey Supreme Court agreed with the lower courts and held that NJ Transit and its bus drivers are held to the same duty of care governing private common carriers. That duty required NJ Transit “to exercise the utmost caution to protect their passengers as would a very careful and prudent person under similar circumstances.” Tort Claims Act immunities that may be available do not impact this duty of care. Finally, the Tort Claims Act required the jury to consider allocating fault not only between NJ Transit and the bus driver, but also the bottle thrower. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact