News Failure to Prevent Bullying = Liability for Discrimination? September 29, 2011 < Back Share to: Last week New Jersey legislators passed an "Anti-Bullying Bill of Rights." The bill revised the 2002 New Jersey law on harassment, intimidation, and bullying in public schools. According to one legislator, the Bill "makes it clear that preventing and responding to incidents of harassment, intimidation and bullying are not optional." Rather the Bill sets forth specific protocols for investigating, reporting and training necessary to deal with bullying. The question for schools and courts to consider going forward is whether implementation of the protocols and/or the failure to do so, will render the schools liable in discrimination suits commenced by/on behalf of the bullied students. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nj.com/news/index.ssf/2010/11/nj_legislature_sends_anti-bull.html http://www.njleg.state.nj.us/2010/Bills/A3500/3466_S1.PDF Previous Next Contact

News NY App. Div. Rules Landowner's Lack of Snow Removal Documentation Thwarts Summary Judgment June 16, 2010 < Back Share to: In Ferguson v Shu Ham Lam, the Second Department examined a snow/ice related slip & fall from January 2001. While the Administrative Code of the City of New York § 7-210 creates a duty to remove snow and ice, that statute was not yet in effect in 2001. Nevertheless, an owner of property abutting a public sidewalk may be held liable for personal injuries sustained on that sidewalk if the owner undertook snow removal efforts that made the sidewalk even more dangerous than it would otherwise have been. The onus, then, is on the defendant property owner to demonstrate that it did not worsen the condition of the sidewalk in its shoveling practices. Unfortunately for the owners (and their carrier), they maintained no employee/maintenance records whatsoever regarding who shoveled, when they shoveled and where they shoveled in relation to this sidewalk. According to the Court, the lack of documentation regarding the shoveling creates triable issues of fact as to whether the defendant/owner may have exacerbated the hazardous nature of the ice. Had they maintained work logs regarding the who/when/where of their shoveling practices, it seems they would have satisfied the Court's standard for summary judgment. While the Court seems to mandate the unreasonable here (i.e., that the landowner prove a negative), work logs would probably have done the trick here. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04948.htm Previous Next Contact

News Pedestrian Knockdown Outside the Crosswalk? Presence of Traffic Signal is Key June 16, 2016 < Back Share to: When dealing with a pedestrian knockdown case, defendants will often try to determine whether the plaintiff should bear any comparative negligence based on where the accident happened. According to New York State Vehicle and Traffic Law §1151(b), “[n]o pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.” In most cases, if a pedestrian walks or runs into the middle of a street outside of a crosswalk, and he or she is struck by a vehicle, plaintiff may be assessed some comparative negligence. In Bush v Kovacevic, plaintiff was struck by defendant’s vehicle while crossing the street. The defendant driver testified that because she struck plaintiff on the passenger side of her car, the plaintiff must have been approximately two feet outside of the crosswalk. However, the Court explained that §1151(b) “by its plain terms, applies only where there are no traffic signals.” In this case, there was a traffic signal at the intersection, and the Court held that §1151 of the Vehicle and Traffic Law did not apply. Defense counsel should always be mindful to consider whether a personal injury plaintiff may have been comparatively negligent in an effort to shift liability. In pedestrian knockdown cases, defendants must keep in mind that if the plaintiff is struck at an intersection with a traffic signal, the exact location of the accident will bear much less significance. Thanks to Jeremy Seaman for his contribution to this post. Previous Next Contact

News Amendment to NJ UIM Statute Denied Retroactive Application December 2, 2009 < Back Share to: In Ruoff v. American Asphalt Company, the plaintiff was driving an automobile owned by his employer, defendant American Asphalt Company, Inc. (American Asphalt). Penn National insured the vehicle. Plaintiff filed a claim for UM/UIM coverage with Penn National. The insurer "stepped down” the amount recoverable by plaintiff from $1,000,000 to $100,000, the maximum amount of coverage available under plaintiff's wife's auto insurance policy. Having exercised the step-down provision, Penn National denied the claim. The plaintiff subsequently filed a complaint against his employer and Penn National alleging that the step-down provision was vague and ambiguous, that the broker and Penn National owed a duty to disclose to his employer the consequences of the step-down provision to its employees and deprived the employer of exercising an informed choice, and that enforcement of the step-down provision by insurers, such as Penn National, was against public policy The trial court denied plaintiff’s motion and dismissed all claims against defendant Penn National. Soon thereafter, the Legislature passed and the Governor signed an amendment to N.J.S.A. 17:28- 1.1 (f), which provides: …” a motor vehicle liability policy or renewal of such policy of insurance insuring against loss sustained by any person arising out of the ownership, maintenance or use of motor vehicle issued to a corporate or business entity shall not provide less uninsured or underinsured motorist coverage for an individual employed by the corporate or business entity…” The Appellate Division was asked to determine whether the subsequent amendment to the statute should be applied prospectively or retroactively. The court held that the amendment is to be applied prospectively. The Appellate Division reasoned that at the time of his accident, neither plaintiff nor Penn National had any reasonable expectation that the step-down provision was unenforceable. Retroactive application of the amendment to plaintiff would amount to a windfall for him and a dramatic alteration of expectations founded in contract for Penn National. Thus, retroactive application of the amendment would defeat the insurer's reasonable reliance on settled legal principles and its reasonable expectations. Furthermore, plaintiff had no reasonable expectation of the greater benefit. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a0958-08.pdf Previous Next Contact

News Threshold Motions: Not Just A Threat For Leverage (NY) March 15, 2019 < Back Share to: Even though New York’s Insurance Law § 5102(d) was supposed to help weed out law suits for non-serious injuries in motor vehicle accidents, every defense attorney has handled a case arising out of a fender bender with minor injuries. Plaintiffs will often bet that defendants’ cost of litigation and motion practice weighed against the risk of failing on that motion will make a weak damages case more worthwhile. Indeed, many assume that any expert-versus-expert motion is doomed to failure. But the Bronx Supreme Court recently demonstrated that showed it is still possible to have these cases dismissed on summary judgment. In Bogle-v.-Paredes, the plaintiff claimed she suffered minor soft tissue injury to the cervical and lumbar spine as well as the wrists and right knee. She underwent three-to-six months of treatment and then stopped. Defendant, with supporting affidavits from an orthopedist, a radiologist, and a neurologist, cited plaintiff’s prior car accident and voluntary cessation of treatment and argued that he met his prima facie burden of demonstrating plaintiff’s injuries were not “serious” as a matter of law. Plaintiff’s opposition relied on a physician who did not evaluate plaintiff until four years after the accident which was insufficient to rebut the defense’s arguments. The First Department unanimously affirmed granting summary judgment to the defendant. This decision highlights some of the issues with making such motions—it required a tenacious defense and the retention of three expert witnesses, which is costly. Clearly, each case will turn on its own merits and require a decision to be made as to the specific value of defending or settling each case. However, it is important to remember some plaintiffs will not be reasonable, and, in some cases, even when the defendant is otherwise dead to rights on liability, threshold motions are not simply idle threats for leverage during settlement negotiations. They are a tool that can, in fact, win outright. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Excess Coverage: Unlimited Exposure for the Excess Carrier? (PA) January 8, 2021 < Back Share to: In Jin Ming Chen v. Insurance Company of the State of Pennsylvania (Ct. of Appeals, 2020), Plaintiff commenced a personal injury suit after sustaining an injury at a construction site. At the time of the suit, defendant Kam Cheung Construction maintained both primary and excess coverage. The combined coverage limits totaled five million dollars per occurrence: one million per occurrence from the primary carrier and four million dollars per occurrence from the excess carrier. Partial summary judgment was entered in favor of the Plaintiff, in the amount of $2,330,000 plus $396,933.70, in prejudgment interest. Following the judgment, the defendant’s primary carrier was granted a declaratory judgment rescinding the primary policy, on the basis of material misrepresentations made by the defendant in his application for coverage. In an effort to obtain the entire policy, the Plaintiff concluded that the excess carrier, Insurance Company of the State of Pennsylvania (‘ICSOP”) was liable for the entire judgment, pursuant to the policy’s “ultimate net loss” and “follow form” provisions. ICSOP contended that it was not liable for the portion of the judgment that would have otherwise been paid by the primary carrier, had coverage not been voided, as the excess policy did not “drop down.” Insurance contracts are governed by the rules of contract law. As such, the language included in an insurance policy/agreement are governed by the plain meaning of the language included in the agreement. Here, the Court of Appeals rejected Plaintiff’s arguments on the basis of the unambiguous language contained in the insurance contracts. While the Court of Appeals chose not to read beyond the language of the insurance agreement, if the Court had done so, ICOSP could have been liable for a judgment that exceeded the scope of coverage for this claim. Thus, many carriers could then be liable for judgments that far exceed coverage limits. For now, pursuant to the highest Court in the State of New York, the liability of carriers does not exceed the provisions of the insurance agreement, thus highlighting the importance of unambiguity in such agreements. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News To Cover Or Not To Cover - That Is The Question (NY) June 26, 2020 < Back Share to: Many insurers are now receiving claims for damaged or lost property due to the protests in major cities across the United States, and are probably wondering whether their policy covers such loss or damage during this period of unrest. In short, it’s tricky. Of course, the answer depends on the language of the specific policy and the circumstances concerning the claimed loss or damage. But generally, many policies contain a “War Risk” exclusion provision, such as the following: EXCLUDED FROM COVERAGE: loss or damage caused, directly or indirectly, by: (a) enemy attack by armed forces, including action taken by military, naval or air forces in resisting an actual or an immediately impending enemy attack; (b) invasion; (c) insurrection; (d) rebellion; (e) revolution; (f) civil war; (g) usurped power. Much of the legal analysis on War Risk exclusion provisions hinges on the word “insurrection,” which is seemingly the most applicable word to the current state of affairs. “Insurrection” is defined as a “violent revolt against an oppressive authority.” Insurrection, Black's Law Dictionary (11th ed. 2019). Based on this definition, a reasonable plain language reading of a boiler-plate War Risk exclusion provision could be a basis to exclude coverage for loss and damage under these circumstances. However, case-law in various jurisdictions does not support this interpretation. The Third Circuit adopted the following definition of “insurrection”: to constitute an insurrection or rebellion within the meaning of these policies, there must have been a movement accompanied by action specifically intended to overthrow the constituted government and to take possession of the inherent powers thereof. Youngis Bros. & Co., 91 F.3d at 14 (citing Home Ins. Co. of New York v. Davila, 212 F.2d 731, 736 (1st Cir. 1954) (quotation marks omitted); accord Pan Am. World Airways, Inc. v. Aetna Cas. & Sur. Co., 505 F.2d 989, 1005 (2d Cir. 1974) (stating “for there to be an ‘insurrection’ there must be an intent to overthrow a lawfully constituted regime”). Under leading American authority, the test for insurrection is two-pronged: was there an identifiable group or movement; and, if so, did that group or movement have the requisite intent to overthrow the established government and assume at least de facto governmental control itself. Holiday Inns Inc. v. Aetna Ins. Co., 571 F. Supp. 1460, 1487–88 (S.D.N.Y. 1983). Thus, a demonstrative understanding of the movement's objectives is critical to determine whether the violence constitutes “insurrection” under a War Risk exclusion provision. As current events unfold, only time and context will dictate whether a legal basis exists for coverage denial based on damage and loss caused by the protests. Thanks to John Amato for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News No Duty on Landlord to Protect Against Staircase Full of Urine August 3, 2010 < Back Share to: Plaintiff slipped in a puddle of urine in the staircase of her building owned by the New York City Housing Authority. The plaintiff had affidavits from several nonparty witnesses who alleged that urine puddles in the staircase were a recurring problem. However, the plaintiff failed to disclose the names of those witnesses. As such, the court granted the Housing Authorities' motion for summary judgment, finding that the plaintiff failed to show that the building owner had actual or constructive notice of the gross and hazardous condition. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06235.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News Indiana Jones Comes to Long Island in NY Art Recovery Dispute. April 6, 2010 < Back Share to: A recent decision by a New York surrogate court in Matter of Flamenbaum reads more like the plot of an Indiana Jones movie than a typical estate dispute. In 1913, a group of German archaeologists discovered an ancient gold tablet in Iraq., and it was ultimately placed on display in a Berlin museum. The museum was closed during World War II, and when it re-opened in 1945, the museum discovered that the tablet was missing. The tablet appeared as an asset in the estate of Riven Flamenbaum. Although there was speculation that the tablet was taken from the museum by Russian troops, how it wound up in Flamenbaum’s possession remains a mystery. Nevertheless when the estate was put to probate, the Berlin museum entered a notice of appearance and notice of claim in the surrogate’s court, bringing a replevin claim against the estate. The Court held that, while the legal claim of the museum was timely under the statute of limitations, the equitable doctrine of laches barred recovery. The Court pointed out that the museum did not take any steps to investigate the loss, and did not even report the tablet missing to law enforcement or to art loss registries. Apparently, there was word that the tablet surfaced with a dealer in 1954, but the museum made no effort to contact that dealer. The Court held that the delay severely prejudiced the possessor, in large part because their main witness was obviously now deceased. Under those circumstances, the Court held that the doctrine of laches must be applied. We suspect some sort of settlement will be worked out with the museum, as there is not a particularly extensive market for ancient gold tablets. But if not, it will be interesting to see how an appellate court deals with this case. If you would like more information about this post, please e-mail mbono@wcmlaw.com http://www.nylj.com/nylawyer/adgifs/decisions/040510riordan.pdf Previous Next Contact

News Scooter Lessor Off the Hook for Incident at County Fair in NY January 23, 2013 < Back Share to: In Couture v. Miskovitz, the plaintiff complained that she was struck by a motorized scooter operated by defendant Miskovitz. Miskovitz had rented the scooter from defendant Stillwater Ramps and Mobility Center and was operating the scooter at the county fair at the time of the accident. Defendant Dutchess County Agricultural Society owned the premises. The lower court denied Stillwater's and Dutchess County's motions for summary judgment. In reversing the lower court's decision, the Second Department held that Stillwater was entitled to summary judgment because it was not vicariously liable for Miskovitz' actions pursuant to Vehicle and Traffic Law 388. Specifically, the fact that the scooter was not operated on a public highway relieved Stillwater from vicarious liability. Moreover, Stillwater demonstrated that it was not negligent in maintaining the scooter, entrusting the scooter to Miskovitz or in training him how to use it. The Court also held that Dutchess County was entitled to summary judgment because it did not have the ability or opportunity, through the exercise of reasonable measures, to control Miskovitz's actions. Thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Skiers Assume Risks -- But Not All Risks (NY) October 18, 2018 < Back Share to: A lawsuit was brought on behalf of a girl who allegedly broke her leg in a skiing accident at Catamount Ski Resort, located in upstate New York on the Massachusetts border. Apparently, plaintiff ran into an unpadded pole that was located in an area where skiing was permitted. After discovery, the ski resort moved for summary judgment arguing that the plaintiff assumed the risks associated with skiing. Justice Manuel Mendez, a judge sitting on the Supreme Court in New York County granted Catamount's motion, because plaintiff “assumed the risks” associated with skiing. Plaintiff appealed to the Appellate Division, First Department. On appeal, the Appellate Division, First Department heard all arguments in regards to the case. When both sides rested, the court decided that the plaintiff did not assume the risk of hitting an unpadded pole in a skiing area and that it was an increased risk, not contemplated by the General Obligations Law section that barred such suits. The panel stated that because of the location of the unpadded pole, it could be determined that the defendant failed to keep their property in a reasonably safe condition. Thanks to March Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News The First Department Wants You To Think Twice Before Hitting Send (NY) October 20, 2021 < Back Share to: Reaching a settlement via email is easier than you think, so be careful. In a recent decision by New York’s First Department, an email reflecting an agreement between attorneys is sufficiently subscribed for purposes of CPLR §2104 even where the attorney does not retype their name above the signature block. In Philadelphia Insurance Indemnity Company v. Kendall, 197 A.D.3d 75 (1st Dep’t 2021), an insurer petitioned to enforce a settlement agreement and vacate an arbitration award related to an underinsured motorist claim brought by an employee of the insured. The employee settled a claim with an underinsured third-party and later made a claim under a Supplementary Underinsured Motorist Benefit Provision in their employer’s automobile policy with the insurer. The employee and the insurer proceeded to arbitration where the employee was awarded $975,000. However, despite the arbitration decision being sent the parties’ counsel, neither counsel received the decision and they continued to negotiate a settlement. Consequently, the parties agreed to settle the dispute for $400,000. After reaching a settlement, the employee’s counsel memorialized the agreement in an email; at the bottom of the email appeared “Sincerely,” followed by counsel’s name and contact information within the signature block. In response, insurer’s counsel replied with an email containing a Release and Trust Agreement to be signed by the employee. Subsequently, the employee’s counsel received the arbitrator’s decision and indicated that they would not proceed with the $400,000 settlement. Instead, they demanded payment of the $975,000 awarded by the arbitrator. Insurer petitioned to enforce the settlement agreement and to vacate the arbitration award. However, the Supreme Court denied the insurer’s petition finding that the employee’s attorney failed to subscribe his email because he did not retype his name to supplement the signature block. The insurer appealed to the Appellate Division. On appeal, the First Department reversed the Supreme Court’s ruling and held that the settlement agreement was enforceable. Pursuant to CPLR §2104, a stipulation between parties or their attorneys is not binding upon a party unless it is in a writing subscribed by him or his attorney. The First Department explained that the Court of Appeals has not opined on whether emails can satisfy CPLR §2104, and that the issue on appeal was a matter of first impression. The First Department held that the distinction between prepopulated and retyped signatures in emails reflects a needless formality that does not reflect how law is practiced today. Essentially, it is not the signoff that indicates whether the parties intended to reach a settlement via email, but rather the fact that the email was sent. Accordingly, the First Department reversed the Supreme Court’s ruling. Thanks to Drew Fryhoff for his contribution to this post. Should you have any questions, please feel free to contact Thomas Bracken. Previous Next Contact