Wade Clark Mulcahy LLP

News Beware the Insufficiently Detailed Expert Affidavit in NY. May 25, 2012 < Back Share to: In Wing Wong Realty Corp. v. Flintlock Constr. Servs., LLC, the plaintiff alleged damages to its building as the result of excavation work at an adjacent construction site. In support of its motion for summary judgment, one of the defendants (the project's engineering consulting firm) submitted an affidavit from an expert asserting that the engineering firm had acted in accordance with good and accepted engineering practice. The affidavit failed to indicate whether the expert had done such things as examined the excavation site, reviewed the drawings of the shoring and underpinning that were alleged to be faulty, or reviewed the designs that engineering firm had proposed changing (to prevent an incident). In affirming the denial of the motion for summary judgment, the First Department noted that the expert affidavit (which was the basis for the motion) was not good enough to support the award of summary judgment. This decision warns parties -- do your homework and actually draft a good and detailed affidavit, or don't bother drafting one at all. Special thanks to Lora Gleicher for her contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News Seinfeld Suit Over Hidden Vegetables, Not That There's Anything Wrong With That January 8, 2008 < Back Share to: Former publisher of "Eating Well" magazine, Missy Chase Lapine commenced a lawsuit against Jerry Seinfeld and his wife Jessica Seinfeld, accusing Mrs. Seinfeld of copying her children's diet cookbook and Mr. Seinfeld of defaming her on Late Night With David Letterman and E! News. http://www.nytimes.com/reuters/arts/entertainment-seinfeld-lawsuit.html?_r=1&oref=slogin Previous Next Contact

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News NY's First Dept. Finds Lull in Snow May Defeat Storm in Progress Defense January 25, 2010 < Back Share to: In Pipero v. New York City Transit Authority, plaintiff fell and injured himself on a snowy day in the city. Defendant tried to avoid liability by invoking the “Storm-In-Progress” doctrine to claim they had no duty to clear the snow until the cessation of the storm. Summary judgment was denied, and the Appellate Division, First Department affirmed the trial court’s denial. Defendant produced weather reports showing that the storm was in progress for the entire day of the Plaintiff’s fall. However, the Plaintiff disputed the accuracy of the report by his testimony regarding a significant lull in the storm. The Courts found that this, and the question of the defendant's negligent maintenance provided triable issues of fact. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00390.htm Previous Next Contact

News Hockey Game Violence Not Foreseeable (NY) October 28, 2016 < Back Share to: Spectators at youth sporting events have been known to get over-emotional, shall we say. In light of this, USA Hockey established a “Zero Tolerance” policy empowering on-ice officials to remove spectators due to obscene or vulgar language and for threatening or using violence. The question of whether this policy can be used to establish a floor for legal duty has been wending its way through New York courts in Pink v. Rome Youth Hockey Association, Inc.. The New York Court of Appeals has just laid the issue to rest. In a nutshell, the policy is an internal rule for the Association that does not supersede the standard of ordinary care imposed in a negligence action. The plaintiff had attended a hockey tournament game between 13 year olds. There were approximately 50 to 75 spectators in attendance. During the game, several fights broke out on the ice between the players. Some were penalized; some were ejected from the game. The coach of one of the teams was ejected when he threw an object onto the ice. The spectators, who were mostly family members, were also emotionally invested in the game and were yelling and calling names. Nonetheless, the game ended without any spectators coming to blows. But not for long, as two female spectators got into a fight in the stands. The plaintiff alleged he was injured while stepping in to break up the fight between the two female spectators. In the process, the brother of one of the girls punched the plaintiff in the head causing a brain injury. The assailant pled guilty to criminal assault. Plaintiff filed suit against various parties including the hockey league. Relying upon the USA Hockey policy, he argued that the hockey association breached its duty to him by failing to protect him from assault. The hockey association filed a motion for summary judgment, arguing that it did not have a duty to protect the plaintiff from a random assault where there was no history of violence or physical confrontation. The Court held that the WYHA had a duty to protect spectators from foreseeable criminal conduct. However, the Court distinguished between “foreseeability and duty”. Although the fans behavior became rowdy during the game, this was insufficient to provide notice that failure to eject any specific spectator would result in criminal conduct. Significantly, the Court held that the violation of an organization’s internal rules is not negligence in and of itself. Thanks to Christopher Goia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Residential Property Exclusion Holds Water Following Hurricane (PA) March 11, 2020 < Back Share to: Recently, in Elite Restoration Inc. v. First Mercury Insurance Company, the Eastern District of Pennsylvania considered whether First Mercury Insurance Company (“FMIC”) was entitled to judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and a declaration that it was not obligated to defend and indemnify Elite Restoration, Inc. (“Elite”) in respect of an underlying claim for property damage. By way of background, while Elite was working on the restoration of a condominium property (“Property”), there was a hurricane, which damaged the Property. Due to the damage and potential that Elite could face liability for the damage, Elite submitted a claim to the Property’s insurer, FMIC. After FMIC denied Elite’s claim, Elite commenced the instant action against FMIC alleging claims for breach of contract and bad faith. In addition, Elite sought a declaratory judgment that FMIC must defend and indemnify Elite from litigation related to the Property damage/claims, FMIC breached its duty to Elite, and Elite may settle or compromise any claims from or related to the Property. In response, FMIC filed a motion for judgment on the pleadings on all counts and a declaration that it does not have a duty to defend or indemnify Elite in respect of the Property claim. FMIC’s motion for judgment on the pleadings stemmed from the relevant policy’s “residential property” exclusion (“Exclusion”), which provides, in pertinent part that “[t]his insurance does not apply to any claim, ‘suit,’ demand or loss that alleges … ‘property damage’ … that … relates to … ‘residential property …”. The Exclusion defines “residential property” as, inter alia, “condominiums”. However, the Exclusion contains an exception that states the Exclusion “does not apply to the following designated exception(s): Single-family dwellings that are not ‘tract homes’, condominiums (as defined by the applicable controlling statute) or ‘townhouse projects.’” In support of its motion, FMIC argued the exception to the Exclusion clause only applies to certain single-family dwellings, a category that does not include condominiums. Elite, however, asserted the exception creates three separate exceptions to the Exclusion for (1) condominiums, (2) townhouse projects, and (3) single-family dwellings that are not ‘tract homes.’ In consideration of Elite’s breach of contract claim through the Court’s well-established standard of review, the Court held that, based on the plain language of the policy, the Exclusion Clause explicitly provides that “condominiums” are excluded from coverage. Accordingly, the Court concluded, as a matter of law, the policy excludes coverage for the Property, and therefore, Elite’s claim. The Court next addressed Elite’s declaratory judgment claim. As the Court determined the policy did not provide coverage for Elite’s claim, the Court held, as a matter of Pennsylvania law, FMIC does not have a duty to defend or indemnify Elite in respect of any third-party lawsuits related to the Property damage. Finally, in regard to Elite’s bad faith claim against FMIC, the Court applied traditional Pennsylvania case law to determine whether FMIC acted in bad faith under 42 Pa.C.S. § 8371. In doing so, the Court considered whether FMIC lacked “a reasonable basis for denying benefits under the policy” and “either knowingly or recklessly disregarded its lack of reasonable basis in denying the claim.” Since the policy did not provide coverage, FMIC did not lack a reasonable basis for denying the claim. Accordingly, the Court granted FMIC’s motion for judgment on the pleadings in its entirety. Ultimately, this case is a reminder of the impact motions for judgment on the pleadings can have on litigation in federal courts, and the significance of the plain language of the policy. Thanks to Lauren Berenbaum for her contribution to this post. If you have any questions or comments, please contact Vincent Terrasi. Previous Next Contact

News NY weighs new alchohol liability law. October 16, 2007 < Back Share to: Under the proposed law, sellers of fake ids would be held liable for the damages caused by their patrons. http://www.insurancejournal.com/news/east/2007/10/16/84308.htm?print=1 Previous Next Contact

News Insurer Just In Nick Of Time Under Statute Of Limitations For Indemnity Loss (PA) February 21, 2013 < Back Share to: The statute of limitations, effectively the timeline gatekeeper of the courts, is an important consideration for anyone looking to bring a claim, as well as for those looking to defend one. A lawsuit is most appropriate when the evidence is still fresh, the related property or scene of an accident remains unchanged, and the memories of those involved have not yet begun to fade. The applicable statute of limitation is contingent upon the cause of action pled. In Lincoln General Insurance Co. v. Kingsway America Agency Inc., the court applied a statute of limitations analysis that allowed the insurance company to bring suit in an effort to collect losses it had incurred as a result of its agent’s sloppy (and expensive) mistakes. Lincoln General was permitted to resume an indemnity suit against Kingsway America Agency, a brokerage firm, to recoup a settlement to the estate of a truck driver involved in a fatal accident. The language of the contract between the parties unambiguously provided that Lincoln General was to be indemnified by Kingsway America for both loss and liability claims. The crucial issue addressed by the court that ultimately led to Lincoln General’s success, surrounded the determination as to when the statute of limitations clock began to tick for each claim—a starting point which may differ depending on whether it is applied to a loss or liability provision. The court determined that the statute of limitations for Lincoln General’s loss claim could not have begun until the company settled a claim made by its insured. With regard to indemnity against loss in Pennsylvania, the courts have agreed that the clock does not begin to tick until payment is made. In the case at hand, Lincoln General settled the claim brought by the truck driver’s estate for $1 million in September of 2007. It in turn brought suit against Kingsway America in June of 2011, after it determined that the broker’s failure to get a proper write-down resulted in its payment of the settlement. Since the indemnity suit was brought three months shy of the four year time frame permitted by the statute of limitations, Lincoln General appears to have just been saved by the bell. Special thanks to Samantha Kaskey Berman for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Guidance Provided for Choice of Law Analysis for Coverage Disputes in NJ September 20, 2012 < Back Share to: The outcome of a conflict of laws analysis is often difficult to predict. But a recent Appellate Division decision may provide some guidance as to how allocation of coverage issues are decided in New Jersey where there is a conflict of laws. In the consolidated appeals of In The Matter Of The Liquidation Of Integrity Insurance Company/Sepco Corporation and In The Matter Of The Liquidation Of Integrity Insurance Company/Mine Safety Appliances Company, the Appellate Division was faced with the issue of which state’s laws should apply when apportioning insurance coverage in the mass tort context. Both Sepco Corporation, a California-based company, and Mine Safety Appliances Company, based in Pennsylvania, were insured under excess policies with Integrity, a New Jersey insurance company, in the mid-1980s. After Integrity’s Liquidator filed its liquidation plan, both Sepco and Mine Safety filed proofs of claim with the Liquidator for coverage under the policies. The Liquidator denied the claims based on the utilization of an “all-sums” (joint and several) allocation methodology. Under that methodology, “the insured may recover in full under any triggered policy that it chooses and leave the selected insurer to pursue cross-claims against other triggered carriers whose policies are also available.” While both California and Pennsylvania utilize this approach, New Jersey has rejected the joint and several allocation method for a pro-rata allocation method. The denials were referred to a Special Master, who affirmed the Liquidator’s decisions in both matters, citing New Jersey’s compelling interest in having its own law applied to the claims because Integrity was being liquidated pursuant to New Jersey law, and because the pro-rata approach was more equitable as to other claims filed against Integrity than was the joint and several approach. The Special Master’s determinations were affirmed by the trial court. On review, the Appellate Division affirmed the trial court’s decision to apply New Jersey law. While refusing to state a blanket rule that the law of the insurer’s home state would govern the analysis, the Appellate Division found that the balance of the equities favored applying New Jersey law to the claims against Integrity, who was in its twenty-fifth year in the liquidation process, even though the policy language confusingly seemed at times to favor an “all-sums” approach. The best way to guard against uncertainty is to add a provision as to choice of law; otherwise, an unintended and unexpected interpretation of policy terms may result. Thanks to Christina Emerson for her contribution to this post. If you would like further information please write to mbono@wcmlaw.com .     Previous Next Contact

News Is Your Car Safe in the Parking Lot? An Interesting Case in Property Damage March 23, 2016 < Back Share to: A night out at the movies is a favorite activity for many. Have you ever considered what would happen if you came out of a movie only to find that your car had sustained serious damage while it was sitting in the parking lot? Your initial reaction might be to blame the movie theater. You might think that the theater had a responsibility to ensure the safety of your vehicle. New York Courts however have provided some insight about this issue and why the owner of a movie theater parking lot does not have a duty to protect your car. In the recent case of Smith v. Regal Entertainment, plaintiff sued the owner/operator of a movie theater and adjacent self-service parking lot for damages her car sustained while she was at a movie. She claimed defendant was negligent in failing to maintain an appropriate level of security in the parking lot. Defendant argued it was not liable because no bailment relationship was created between the parties. A bailment is defined as “the delivery of personal property for a particular purpose under an express or implied contract with the understanding that it shall be redelivered to the person delivering it, or kept until he reclaims it after fulfillment of the purposes for which it was delivered.” The Court explained that when the bailor (the transferor) does not relinquish possession, control and dominion of the property to the bailee, no bailment exists. Further, the Court reasoned that since the plaintiff “did not relinquish possession or control of her vehicle at any time, as she could enter and exit the lot without supervision, select her own parking space, lock her own car, and retain the keys, no bailor-bailee relationship was created.” Even though plaintiff payed for her ticket to the movies and the defendant benefitted by her business, this transaction did not constitute sufficient consideration to find that a bailment relationship existed since “the essence of consideration is relinquishment of dominion and control.” Therefore, the Court held that since no bailment relationship existed, the defendant was not liable for damages to the plaintiff’s car. Property damage claims can sometimes come down to this issue of whether a bailment relationship has been established. This is especially so when the damage occurs while the property owner does not have possession of the property. However, defendants should note that if the property owner has not clearly relinquished control, possession, and dominion of the property to the defendant, there can be no bailment relationship. In these types of cases, where there is no bailment, defendants may seek to have the property damage claims dismissed. Thanks to Jeremy Seeman for his contribution to this post. Previous Next Contact

News WCM Attorney Appointed to Vice-Chair of DRI Subcommittee. January 8, 2019 < Back Share to: WCM is pleased to announce Counsel Colleen Hayes was recently appointed the Co-Vice-Chair for Social Media for the DRI’s Young Lawyers Steering Committee. The selection process draws from a national pool of applicants from all practice areas within the defense bar. In her role as a Steering Committee Member, Colleen recently wrote an article offering advice to young attorneys on how to begin developing business. For more information about this post, please contact Colleen at chayes@wcmlaw.com . Previous Next Contact

News WCM Sponsors 2012 Wordings Specialists’ Gathering November 9, 2012 < Back Share to: New York, NY WCM, along with many international insurers and law firms, was pleased to act as a sponsor for the 2012 Wordings Specialists’ Gathering XX in London, England on November 9, 2012. An annual event, now in its 20th year, the Wordings Gathering brings together Underwriters, claims professionals and service providers from the Lloyd’s of London and London company markets to discuss differences in policy wordings -- and hoist a pint or two in celebration. Previous Next Contact