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News Silence can be Deadly - Failure to Disclose Witness is Fatal to Plaintiff's Claim (NY) October 19, 2016 < Back Share to: The Second Department recently upheld a pretrial win for Muintir, LLC over claims launched by a customer who tripped on Muintir’s property in Gallway v. Muintir, LLC. In affirming, the Court found that there was no showing that Mutinir had actual or constructive notice of the defective condition that allegedly caused plaintiff's fall. On October 28, 2011, Gallway, was dining at Dalton Sea Side Grill, a Tenant of Muintir, with her granddaughter. Upon exiting the restaurant, plaintiff allegedly tripped and fell on a defect in the sidewalk abutting the premises, which was owned by Muintir, LLC. Plaintiff describes the defect as a crack radiating from a hole 1.5 inches deep with a diameter larger than a silver dollar. In her deposition she stated that she had visited the restaurant ten times in the year preceding her accident where she had never observed the alleged sidewalk defect. Muintir moved for summary judgment claiming they lacked actual or constructive notice of the defect in the sidewalk. In support of the motion, included was the deposition of an employee of the restaurant who testified that he did not observe the defect in the sidewalk. In opposition, Gallway submitted an affidavit of her granddaughter, a witness not previously disclosed, who stated she had seen the defect on a prior occasion. The Court refused to consider the granddaughters affidavit, finding for Muintir. The Appellate Court held that the motion court properly refused to consider the affidavit of the Plaintiff’s granddaughter to establish that Defendants had notice of the sidewalk defect that caused her grandmother to fall. Plaintiff failed to disclose her as a notice witness during discovery and did not offer a valid excuse for that failure. Without the granddaughter’s affidavit, the Appellate court found that plaintiff failed to establish the claimed defect was present for a sufficient length of time to give the Defendant constructive notice of its existence. The Court's ruling demonstrates that plaintiffs must take discovery seriously, including witness disclosure, lest they be precluded from relying upon such undisclosed information at trial. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Not Enough Judges in NJ? May 11, 2012 < Back Share to: Litigation can be slow enough, but, in NJ, it's likely to get even slower. There are as many as 60 judicial vacancies in NJ. This seems unlikely to change in light of NJ's budget deficits and (potentially) Governor's Christie's role as a vice-presidential candidate. As if there wasn't enough to worry about in litigation... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Plaintiff’s Case Slips Away on Unsuccessful “Mode-of-operation” Theory (NJ) November 10, 2016 < Back Share to: The defense bar scored another small victory in the ever-evolving “mode-of-operation” argument which focuses on the manner in which a commercial establishment conducts its business. If argued successfully, a plaintiff may be relieved of the typical burden to prove notice if they can instead prove that the commercial defendant should have been aware of the reasonable possibility that a hazardous condition could be created solely based upon the defendant’s business practice. The plaintiff in Anderson v. Stop and Shop Supermarket Company, L.L.C. claimed to have slipped and fallen on a "semi-solid substance" on the grocery store aisle while shopping in the frozen food section. She could not identify the substance, where it came from, or how long it had been there. After the fall, the store manager was quickly notified. He found the floor to be dry and semi-solid substance free. He also testified that maintenance porters routinely walk the store monitoring for hazardous conditions. The defendant successfully moved for summary judgment arguing that the plaintiff could not prove that the store had actual or constructive notice of the presence of the substance which she claims caused her accident. On appeal, the plaintiff argued that the self-service nature of the store’s business practice warranted a finding of constructive notice. But the Appellate Division was not convinced. Prior decisions in this long line of cases have held a food store liable when a customer sustains injury due to a hazardous condition inside the store, such as a grape on the floor in the checkout area. However, the Court highlighted the plaintiff’s failure to demonstrate the necessary nexus between the hazardous condition and the defendant’s business operation. A grape, for example could reasonably be expected to fall onto the floor due to careless handling in the checkout area. On the other hand, the Anderson Court found it unreasonable to impute constructive notice for an unknown substance in an aisle containing packaged and sealed containers. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Appellate Division Clarifies “Own Property” Exclusion. May 13, 2009 < Back Share to: In Castle Village Owners Corp. v. New York Mutual Insurance Co., a retaining wall on plaintiff’s property collapsed, causing tons of dirt and debris to fall on the adjacent roads, including the Henry Hudson Parkway. As a result, Parkway had to be closed, and passing automobiles and adjacent property were damaged. The City of New York immediately ordered remediation steps, including stabilization of the wall, additional protection from rainwater, and a temporary means of protecting vehicles. The plaintiff sought coverage from its liability excess carrier (the primary policy was exhausted in paying the damage claims). New York Mutual disclaimed coverage for remediation under the “own property” exclusion contained in the policy. Because there was no imminent threat of damage to other property, there was no coverage. http://www.nycourts.gov/reporter/3dseries/2009/2009_03625.htm Previous Next Contact

News SDNY Holds That “Strikes, Riots, and Civil Commotion” Endorsement Extends Coverage to Summer 2020 Civil Rioting < Back Share to: In the wake of the civil unrest that occurred during the summer of 2020, the Southern District of New York has clarified its position with respect to insurance policy endorsements for retail storage losses caused by strikes, riots, and civil commotion (SR&CC) in Navigators Ins. Co. v. Goyard, Inc. , 2024 WL 360969 (S.D.N.Y. Jan. 31, 2024). In June 2020, the luxury leather storefront owned by Goyard suffered an overnight break-in and a loss of nearly $700,000 in merchandise. After recounting a few foundational pillars of New York’s insurance coverage law (including that an insurance contract must be read in its entirety, with endorsements taking precedence over standard form language, and that ambiguities in a policy are to be read against the insurer), the court addressed the parties’ dispute. The key point of contention was whether the policy’s SR&CC endorsement, which extended coverage for losses due to “labor disturbances or riots or civil commotions,” “vandalism, sabotage, or malicious acts,” and acts that were “carried out for political, terroristic, or ideological purposes,” would apply to retail storage losses. The court relied on extrinsic evidence in the form of email correspondence between the insurer and the retail broker, in which the insurer confirmed that the coverage afforded by the policy was to be more comprehensive than its standard-issue policy. This was supported by the significant increase in policy premium corresponding to the endorsement in question. The court granted the insured’s motion for summary judgment and ordered the insurer to reimburse the cost of the losses from the rioting. However, the court concluded by denying the insured’s request for attorneys’ fees because, generally, an insured cannot recover his legal expenses in an action against a carrier over coverage, even if the carrier loses the suit and is held responsible for the risk. Navigators Ins Co. v. Goyard Inc .pdf Download PDF • 172KB Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com Contact

News No More Happy Meals – Court Finds Affirmative Duty For Franchise Restaurant To Protect Invitees From Third-Party Harm September 2, 2022 < Back Share to: In a recent presidential opinion by the Pennsylvania Superior Court in Massaro v. McDonald's Corp., 2022 Pa. Super. Lexis 320, 2022 WL 3036753 (Aug. 2, 2022), the court provided clarity on the affirmative duty of a property owner to protect a business invitee from intentional harmful acts of a third party. In Massaro, plaintiff, Thomas Massaro (“Plaintiff”) was assaulted by an allegedly mentally ill homeless man while tutoring a student at a busy McDonald’s in Philadelphia, Pennsylvania. The third-party assailant, Bryant Gordon (“Assailant”) began making virulent and hateful statements towards Plaintiff for nearly an hour, ultimately threatening to kill him when he left the property. Numerous McDonald’s employees observed the interaction and when asked to call 911, refused. When Plaintiff left McDonald’s in search of police aid and was followed by Assailant, Plaintiff had a heart attack and nearly died. It is alleged that Assailant had a history of provoking customers at the property which McDonald’s was likewise alleged to have full knowledge of. Naturally, Plaintiff filed a complaint in the Philadelphia Court of Common Pleas raising claims of negligence against McDonald’s for failing to take reasonable steps to protect him from the Assailant. The trial court granted McDonald’s preliminary objections finding that McDonald’s had no duty through a public policy analysis because Plaintiff was aware of the danger and voluntarily remained in the premise, assuming the risk of assault, and that it would have been unreasonable for McDonald’s to have intervened. Being that assumption of the risk can only be raised once duty is established, Plaintiff appealed this conflicting ruling to the Pennsylvania Superior Court, who ultimately reversed. Essentially, the Superior Court held that McDonald’s affirmative duty to protect a business invitee from intentional harmful acts of third parties was clearly established, at the pleadings stage. Thus, the issue was whether he had assumed the risk of harm by remaining in McDonald’s subjecting himself to the increased likelihood of harm. Considering it would have been more dangerous for Plaintiff to leave McDonald’s, he did not willfully remain on the property warranting assumption of the risk. Importantly, the court held that it is unnecessary to conduct a full-blown public policy duty assessment whenever a longstanding duty imposed arises in a novel factual scenario. Here, the Court largely determined that McDonald’s, at a bare minimum, possessed a duty to call the police after witnessing the interaction and constant requests from the plaintiff to call the police. Massaro acts as a reminder to business owners that minimal intervention is sufficient to satisfy their well-established affirmative duty to protect business invitees from third-party tortfeasors, irrespective of novel circumstances. Thanks to Kendal Hutchings for her contribution to this article. Should you have questions, contact Matthew Care. Previous Next Contact

News NY District Court Breaks with Other States on COVID-19 Insurance Coverage but Leaves Door Open July 29, 2021 < Back Share to: New York courts have been stricter on businesses seeking insurance coverage for pandemic related damages, however, there are still possibilities of coverage even if the policy includes contamination or loss of use exclusions, as exemplified in Thor Equities, LLC v. Factory Mutual Insurance Company. Plaintiff, Thor Equities LLC (“Thor”), a commercial landlord, rents hundreds of properties across the country for business use. Thor purchased an insurance policy from Factory Mutual Insurance Company (“FM”) that provided coverage for property damage and business interruption losses. Due to COVID-19, many of Thor’s tenants were unable to generate revenue and requested abatements or other accommodations, leading Thor to experience significant business interruption. Broadly, the FM policy includes any insured time element loss arising out of or caused by an event of physical loss or damage. The time element provisions cover losses from the interruption of Thor’s business caused by restriction of access to the property due to an order by an authority or loss caused by physical damage. The policy also contains a “contamination” exclusion and a “loss of market or loss of use” exclusion. The contamination exclusion more specifically excludes coverage for “contamination, and any cost due to contamination including the inability to use or occupy property or any cost of making property safe or suitable for use or occupancy... only physical damage caused by such contamination may be insured....” Thor and FM dispute whether the exclusions bar the claimed losses. The Southern District Court of New York concluded the language of the contamination exclusion is ambiguous and issues of language should not be decided in the early stages of litigation. Thor argued the exclusion failed to mention any loss due to contamination, but explicitly referenced any cost due to contamination, which indicates the exclusion does not bar coverage. FM contended the exclusion’s mention of inability to use or occupy property unambiguously excludes losses due to contamination of COVID-19. The court found the language can be reasonably debated especially when, in other parts of the policy, the difference between “cost” and “loss” is distinguished. The court, however, refused to label COVID-19 damage as physical, which differs from cases decided in New Jersey and Pennsylvania. Regarding the loss of use market or loss of use exclusion, the court cited recent New York state court case, Visconti Bus Service, LLC v. Utica National Insurance Group, where that exclusion stated, “We will not pay for loss or damage caused by or resulting from a delay or loss of use or loss of market.” There, as in Thor, a party sought coverage for “loss of use” resulting from a COVID-19 governmental order. The court likened “loss of use” to “loss of functionality,” and found that coverage for such losses was barred by the exclusion. In New York, government shutdown orders during COVID-19 have been interpreted to cause a loss of use of property, but not the direct physical loss of property. However, even with persuasive precedent, the court also refused to decide whether the market loss of use exclusion encompasses Thor’s alleged losses at an early stage without discovery, as Thor will further be making an argument that the losses may have been caused, not by COVID-19 itself, but by the orders of state and local authorities. Thanks to Jamie O’Neill for contributing to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Don’t Forget to Turn On the Lights . . . PA Supreme Court Highlights New Exception to Sovereign Immunity May 6, 2021 < Back Share to: In an April 28, 2021 opinion, the Pennsylvania Supreme Court held that the Commonwealth of Pennsylvania cannot claim sovereign immunity where a dangerous condition, caused by poor lighting, exists on its property. The Pennsylvania Supreme Court’s decision in Wise v. Huntingdon County Housing Development Corporation, et al. overturned a Commonwealth Court’s contrary decision. Plaintiff, Shannon Wise, filed a negligence action against the County Housing Authority claiming she tripped and fell because of “insufficient lighting.” Defendants filed motions for summary judgment, arguing that sovereign immunity barred Wise’s claims. Defendants conceded in their motions for summary judgment that the only potentially applicable exception to sovereign immunity was the “dangerous condition” exception, where the State will not be immune from liability when a dangerous condition originates from its property. Defendants argued further that because there was no defect in the sidewalk, no dangerous condition derived from their property, and therefore, Wise’s claims were barred. Defendants argued that the poor lighting was simply a result of nighttime darkness. However, the court saw things differently. The Pennsylvania Supreme Court found the “dangerous exception” to sovereign immunity applied because the poor lighting, caused in part by certain placement of a pole by the State, derived from State property and was not just typical nighttime darkness. The Court reasoned that for the “dangerous exception” to apply, the condition need not be on State property; rather, it need only be contiguous to State property and the State need to have known, or should have known, of its existence. It focused on the exception’s requirement that the condition derive from State property. Here, the poorly lit sidewalk (dangerous condition) derived from the State’s poor placement of the outdoor lighting fixtures. As such, the Pennsylvania Supreme Court conducted a more expansive reading of the exceptions to sovereign immunity, where a dangerous condition need not be clearly connected to the land itself. Thanks to John Lang for his contribution to this post. Should you have questions, please feel free to contact Tom Bracken. Previous Next Contact

News No Duty to Defend or Indemnify Additional Insured for its Own Negligence (NJ) September 6, 2012 < Back Share to: Where language in an insurance endorsement agreed to cover the additional insured for bodily injury “caused, in whole or in part, by [the named insured’s] acts or omissions or the acts or omissions of those actions on [the named insured’s] behalf,” the New Jersey Appellate Division declined to extend coverage for the additional insured’s own negligence. The concise decision in Smith v. Toys “R” Us – Delaware, Inc. gave no credence to Toys “R” Us’ claim that its agreement with a temporary employment agency entitled it to defense and indemnification for an injury to a temporary employee. The injured worker sued Toys “R” Us after he fell about fifteen feet to a concrete floor from a mezzanine level while working in a warehouse. He alleged that the there were no guardrails or safety precautions in the area where he fell. Toys “R” Us brought a third-party action against the temporary agency as well as its insurer. Both were granted summary judgment inasmuch as the contract did not explicitly and unequivocally require indemnification for Toys “R” Us’ own negligence. The trial court had found “substantial” evidence to support a finding that Toys “R” Us was responsible for the safety of its equipment and machinery. In affirming summary judgment for the temporary agency and its insurer, the Court summarily dismissed arguments that the additional insured endorsement offered coverage under the facts presented. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Pennsylvania Court Finds Underinsured Motorist Rejection Void January 17, 2017 < Back Share to: In John Bielec v. American Int’l Group Inc., et al., the Pennsylvania Court of Common Pleas, Philadelphia County, addressed the validity of an insurer’s rejection of underinsured motorist (“UIM”) coverage. In brief, the plaintiff was an employee of Verizon Communications, Inc. (“Verizon”), who was involved in an automobile accident during the course of his employment. At all times relevant, Verizon was insured by National Union Fire Ins. Co. (“National Union”). Following the accident, the plaintiff attempted to claim UIM coverage under Verizon’s National Union policy. National Union rejected the plaintiff’s UIM claim contending there was no UIM coverage provided under its policy. The plaintiff commenced the instant declaratory judgment action seeking UIM coverage under the National Union policy. In determining whether the plaintiff was entitled to UIM coverage, the court first looked to the requirements of the relevant Pennsylvania statute, i.e. the Motor Vehicle Financial Responsibility Law (“MVFRL”). Under the MVFRL, Verizon was required to insure its fleet of commercial vehicles under a commercial insurance policy. However, before obtaining such a policy, its insurer needed to provide Verizon the option of obtaining UIM coverage. Upon receipt of this offer, Verizon was required to either accept or decline such coverage. Under the MVFRL, the rejection of such coverage required specific steps to be taken or else the rejection would be deemed void. Ultimately, Verizon opted to reject UIM coverage. However, although Verizon opted to reject such coverage, the Verizon representative did not sign and date the UIM Rejection Form in the space immediately below the UIM rejection language. Conversely, the representative placed a signature and date and the very bottom of the document leaving multiple paragraphs of text in between the UIM rejection language and her signature. Ultimately, the court concluded that the UIM Rejection Form was void. Looking to the specific facts of this case, the court noted that although the Rejection Form was signed, the form allowed for at least three paragraphs to intervene between the specific UIM rejection language and Verizon’s signature and date. Specifically, the court noted that one of the intervening paragraphs allowed for the rejection of stacked limits of UIM coverage, which the court stated voided the validity of Verizon’s attempt to reject UIM coverage. Moreover, notwithstanding the foregoing, the court also reasoned that Verizon’s failure to notify its employees that it was rejecting UIM coverage also gave rise to a public policy argument as to why Verizon’s rejection was void. Thus, the court concluded that Verizon’s rejection of UIM coverage was void and not a basis to deny the plaintiff’s claim for coverage. Consequently, this case illustrates that courts will strictly interpret Pennsylvania statute when it comes to rejecting UIM coverage. Thus, an insurer needs to be cognizant of the statute’s requirements or else it may find itself providing coverage where it did not intend to do so. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News In Defense Of Diligence: Second Department Stresses Timely Inspections For Alleged Defects March 8, 2024 < Back Share to: Recently, in Vazquez v. Fordham University , 2024 N.Y. Slip Op. 01124, the Second Department ruled on a plaintiff’s appeal, after the lower court granted summary judgment in favor of premises owner defendant. Plaintiff alleged a trip and fall, where she fell down a flight of steps, which she attributed to a light outage which prevented her from seeing the unevenness of the steps she was traversing. In moving for summary judgment, defendant argued that they lacked actual or constructive notice of the light outage, and admitted a report compiled by an expert who examined the stairs at issue in an attempt to argue that the alleged defect was trivial. The Second Department reversed the lower court’s granting of summary judgment to defendants. Although the court agreed with defendant that they lacked both actual and constructive notice of the light outage, the court disagreed with their argument that the condition of the defective steps was trivial. The court noted that the main support defendants used in arguing the defect was trivial was an expert report. However, according to the court, “the report by [defendant’s] expert had no probative value because the expert did not examine the steps until more than three years after plaintiff’s accident.” Because of this long time-difference between plaintiff’s accident and defendant’s expert report, defendant failed to demonstrate, prima facie , that the alleged defect was trivial, and thus plaintiff’s claim was reinstated. This case serves as a reminder of the importance of quickly organizing an inspection of an alleged defect shortly after an alleged accident. Otherwise, the court will severely discount the probative value of an inspection conducted much later after the accident. Vasquez v. Fordham University .pdf Download PDF • 137KB Previous Next Contact

News President Bush Signs TRIA Extension Into Law December 31, 2007 < Back Share to: On December 27, 2007, President Bush signed legislation extending TRIA for an additional 7 years until December 31, 2014. Hailed as a successful partnership between the private and public sectors, the Act provides federal protection to the insurance industry against potentially catastrophic terrorism related risks. TRIA was originally enacted in 2002 and renewed once before in 2005. http://www.insurancejournal.com/news/national/2007/12/27/85948.htm Previous Next Contact