News New Jersey Increases the Amount of Liability Insurance Required for Commercial Vehicles < Back Share to: On January 16, 2024, Governor Murphy signed into law a bipartisan bill, NJ S2841 2R, raising the minimum amount of liability coverage required for commercial motor vehicles. The bill requires every commercial motor vehicle either registered or principally garaged in New Jersey to maintain motor vehicle liability insurance at different minimum levels depending on the weight of the vehicle. Commercial trucks weighing between 10,000 pounds and 26,001 pounds, which include most medium duty trucks, will be required to maintain liability insurance coverage of at least $300,000. Commercial trucks at or over 26,001 pounds, which include most long-haul heavy-duty vehicles, will be required to maintain coverage of at least $1,500,000, double the prior level and the federal minimum set at $750,000. The type of liability coverage remains unchanged, with commercial vehicles required to insure against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle. One of the sponsors of the bill, New Jersey Senate President Nick Scutari, stated that the changes to the minimum limits are “common-sense reforms to protect consumers from the insurance companies”, reasoning that lower premiums have kept lower quality, more dangerous trucking companies in business. The Federal Motor Carrier Safety Administration (FMCSA) carries its own minimum insurance requirements. Besides vehicles carrying hazardous materials other than oil, trucks over 10,000 pounds must maintain trucking liability insurance of at least $750,000, while those under 10,001 pounds are required to maintain at least $300,000 in coverage. New Jersey’s new law differs in that it has a lower minimum requirement for trucks between 10,000 pounds and 26,000 pounds, but a larger requirement for trucks over 26,000 pounds. The new law takes effect on July 16, 2024, and will apply to new and renewal policies issued on or after that date. While the effect on premiums remains unknown, Reliance Partners, an insurance agency specializing in insurance for the logistics industry, has estimated that every $1 million increase in the minimum requirement would increase premiums by 40% to 60%. Thus, owners of large commercial vehicles registered or principally garaged in New Jersey will likely see increases in premiums and may opt to change registrations or move to other states such as Pennsylvania or Delaware which have minimum limits mirroring the federal minimum of $750,000. S2841 2R .pdf Download PDF • 268KB Previous Next Contact

News Is There a New Requirement for Reservation of Rights Letters in Pennsylvania? May 1, 2020 < Back Share to: A recent case from the Pennsylvania Superior Court reiterates the impact of poorly crafted reservation of rights letters on future coverage defenses. In Selective Way Insurance Company v. MAK Services, Inc. et. al., 2020 PA Super 103 (Pa. Super. Ct. Apr. 24, 2020), the insurer sought a declaration that it owed no duty to defend or indemnify its insured, MAK Services, in an underlying case arising out of a slip and fall on ice in a parking lot. On April 9, 2013, MAK Services was sued for negligent removal of snow and ice in the parking lot. Selective Way appointed defense counsel and sent a reservation of rights letter to MAK Services. The May 1, 2013, reservation of rights letter provided: One of the benefits of your insurance policy from Selection is that we will provide you with a legal defense when potentially covered claims are made against you. Since this case meets that standard, I have referred your file to [a] law firm .... They will represent you in this case. You should be hearing from that firm shortly. Please give them your full cooperation and refrain from discussing this loss with anyone other than your attorney or a properly identified representative of Selection. In addition, please be aware that you always have the right to consult an attorney of your choice, at your own expense, to discuss this matter or to coordinate your defense with the attorney we have retained for you. In the meantime, please be aware that Selective will be handling this matter under a reservation of rights. This means that Selective reserves all rights reserved to it under applicable law, insurance regulations and policy provisions that may become relevant as this matter continues to develop. Those rights include, but are not limited to, the rights to decline coverage for this claim and to withdraw assigned defense counsel. On November 13, 2014, eighteen months later, Selective Way filed suit seeking a declaration that it does not owe a duty to defend or indemnify MAK Services because the underlying lawsuit “is based solely upon ice and snow removal activity, and the Policy specifically excludes a defense and indemnity for any damages arising from snow and ice removal activity.” However, Selective Way’s reservation of rights letter made no reference to the snow and ice removal exclusion. The trial court granted summary judgment in favor of Selective Way. The issue on appeal concerned the sufficiency of Selective Way’s reservation of rights and the timeliness of the coverage challenge. The Court found that the reservation of rights letter was submitted in a timely fashion, but took issue with the sufficiency of the notice. The Court found the absence of any reference or identification to emergent coverage issues problematic. The Court was also critical of the clause attempting to incorporate any issues “that may become relevant as this matter continues to develop.” The Court ultimately reversed the trial court’s grant of summary judgment to Selective Way, holding that the reservations of right letter here failed to provide notice of the existing coverage issues, namely the snow and ice removal exclusion, which should have been obvious to the insurer given language of the underlying complaint. The Court noted that insurers have a duty to conduct a thorough investigation to preserve coverage defenses. Although an insurer is not required to state every potentially relevant coverage defense in a reservation of rights, “some level of specificity is necessary.” In reversing the summary judgment ruling, the Court held that Selective Way was estopped from asserting the snow and ice exclusion for the first time eighteen months after the reservation of rights letter was issued because the reservation of rights letter did not provide the insured with sufficient notice of the insurer’s coverage position. This decision is a cautionary tale, and should serve as a reminder to insurance carriers of their obligation to conduct a thorough and timely investigation; to identify potential coverage issues; and to provide the insured with sufficient notice of said coverage positions. Thanks to Emily Finnegan for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Storm "In Progress" Twelve Hours After Snow Stopped (NY) November 15, 2013 < Back Share to: The “storm in progress” rule provides that a property owner is not responsible for accidents occurring as a result of snow and ice accumulation on its premises until an “adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm." In Wei Wen Xie v Ye Jiang Yong, the Courts will provided an example of what constitutes an “adequate period of time.” Snow had been falling on February 10, 2010, during which the defendant homeowner shoveled his sidewalk between 5:00 and 8:00 p.m. The snow finally stopped around midnight that evening. Thereafter, the plaintiff fell on ice in front of the residence at about 8:15 a.m. the following morning. The homeowner moved for summary judgment and the trial court granted the motion. In affirming the decision, the Second Department held that a “reasonably sufficient time had not elapsed after the cessation of the storm to permit him to remove any additional snow or ice that had accumulated after his initial snow removal efforts.” Specifically, the time of 8:15 a.m., when plaintiff fell, was not sufficient time for the owner to remove the snow or ice, as the snow had stopped during the overnight hours. The Court also confirmed that the owner’s prior snow removal efforts did not exacerbate the icy conditions, as the owner salted the area after his shoveling, and the plaintiff’s unsworn expert report failed to raise a triable issue of fact. We do note, however, such circumstances may be fact specific, as this particular case was in regards to snow removal on a residential homeowner’s premises and the standard could be different in the case of a commercial property owner. Thanks to Jung Lee for his contribution to this post. Previous Next Contact

News NY Fan Assumes Risk of Pre-Game Flying Bat April 4, 2013 < Back Share to: A fan with good seats near third base at the Brooklyn Cyclones ballpark was injured when a player was horsing around on the field before the game and lost control of his bat, which sailed into the stands and hit the plaintiff in the nose. The plaintiff conceded that he assumed the risk of flying balls and bats during the game but took issue with being struck before the game when players were just warming up/horsing around. The court dismissed the case, ruling that the risk of such a pre-game injury is assumed by spectators equally with similar in-game risks. The negligent player, a 44th round pick in 2002, now works as a salesman for a medical supply company. Previous Next Contact

News Unlocking Coverage: The Key Role of Occupancy Determination August 12, 2024 < Back Share to: In Jones-Molina v. Southeastern Pennsylvania Transportation Authority , 29 A.3d 73 (Pa. Commw. Ct. 2011), the Commonwealth Court of Pennsylvania addressed whether a passenger on a SEPTA bus remained an “occupant” of the bus for insurance coverage purposes after being struck by an unidentified motorist upon exiting the bus to board a SEPTA trolley. Jones-Molina originally brought an action in the Court of Common Pleas against the Pennsylvania Financial Responsibility Assigned Claims Plan (“Plan”) for first-party and uninsured motorist benefits. The Plan joined SEPTA, arguing that SEPTA should cover Jones-Molina’s injuries since she was still technically an occupant of a SEPTA vehicle. SEPTA contended that Jones-Molina was not physically on a SEPTA vehicle at the time of the accident and invoked sovereign immunity. The Court of Common Pleas sided with the Plan, finding against SEPTA on both the sovereign immunity and occupancy issues. SEPTA appealed to the Commonwealth Court, which reviewed the occupancy issue. The Commonwealth Court referenced the Pennsylvania Supreme Court’s four-part test to determine whether a person is considered to be occupying a vehicle: There must be a causal relation or connection between the injury and the use of the insured vehicle. The person asserting coverage must be in reasonably close geographic proximity to the insured vehicle, though they need not be touching it. The person must be vehicle-oriented rather than oriented toward the highway or sidewalk. The person must be engaged in an activity essential to the use of the vehicle at the time. ( Utica Mutual Ins. Co. v. Contrisciane , 504 Pa. 328, 336, 473 A.2d 1005, 1009 (1984)). Under this test, physical presence inside the vehicle is not required to be considered an occupant. In Contrisciane , a driver, who had left his vehicle and walked nearly 100 feet to speak with a police officer, was struck and killed by an uninsured driver. The Pennsylvania Supreme Court held that the driver met the requirements to be considered an occupant of his vehicle despite not being physically inside it. However, the Commonwealth Court distinguished Contrisciane from the present case. In Contrisciane , the driver presumably intended to return to his vehicle after speaking with the officer. In contrast, Jones-Molina did not intend to return to the SEPTA bus; she was preparing to board another vehicle. The court found no material difference between someone intending to transfer to a different mode of transportation (like a taxi or PATCO subway) and someone briefly attending to an errand before proceeding to a second bus, or even simply crossing the street. The court concluded that a passenger struck while crossing the street should not be treated differently from a normal pedestrian. As Jones-Molina was not considered an occupant of the SEPTA bus, the Commonwealth Court reversed the lower court’s decision and remanded for entry of judgment in favor of SEPTA and against the Plan. Jones-Molina v. Southeastern Pennsylvania Transp Authority .pdf Download PDF • 217KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Misuse of Ladder Not Sole Proximate Cause of Accident April 14, 2009 < Back Share to: In Rico-Castro v. Do & Co. New York Catering, Inc. (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01789.htm) the plaintiff was working on an A-frame ladder that he left in the closed position and leaned up against a wall. The ladder slipped, and the plaintiff fell to the floor and was injured. A New York appellate court granted summary judgment to the plaintiff on Labor Law section 240 even though he misused the ladder (i.e., leaving it closed), ruling that the misuse was not the "sole proximate cause" of the accident and injury. Justin Rowe contributed this post. Previous Next Contact

News Liability Against Owner Requires Special Use (NY) August 12, 2020 < Back Share to: In Pollard-Leitch v. R & D., the Appellate Division, Second Department addressed whether the defendants – R & D Utica Realty, Inc. were the owners of the property abutting the sidewalk where the plaintiff tripped and fell. The Supreme Court denied the defendant’s motion for summary judgment to dismiss the complaint and all cross claims asserted against it which was reversed by the Appellate Division. Plaintiff allegedly tripped and fell on a public sidewalk next to a fenced-in parking lot owned by R & D Utica Realty, Inc. R&D then moved for summary judgment on the basis that they did not have a duty to maintain the portion of the sidewalk where plaintiff fell as they did not own the abutting property. The Appellate Division stated that “Liability for a dangerous condition on property is generally predicated upon ownership, occupancy, control, or special use of the property. The existence of one or more of these elements is sufficient to give rise to a duty of care. Where none of those elements are present, "[generally] a party cannot be held liable for injuries caused by the [dangerous] condition of the property." R & D was able to establish that they were 1) not the owner of the property abutting the portion of the sidewalk where plaintiff fell, 2) that they did not negligently construct or repair that portion of the sidewalk and 3) cause the alleged condition to occur by some special use of the sidewalk. As such, the defendants were granted summary judgment dismissing the plaintiff’s complaint. This decision serves as a reminder that when sued for a defective sidewalk to first consider: did you 1) own, 2) occupy, 3) control or 4) cause the condition by special use the sidewalk? If the answer is no to all four, then you may not have a duty of care to the sidewalk at issue. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Gap In Treatment Not a Toll for Limitations Statute (NY) May 9, 2017 < Back Share to: The New York statute of limitations for a medical malpractice action is two and a half years. The time begins to accrue either from the date of the malpractice or from the time of last treatment. So what if a plaintiff stops treating and then goes back to the doctor more than 2 ½ years later? In Clifford v Kates plaintiff commenced an action against Dr. Stephen Kates and the various medical institutions with which he was affiliated. Plaintiff underwent a total hip replacement with Dr. Kates to treat her right hip pain in 2008. After the surgery, plaintiff was experiencing pain, and followed-up with Dr. Kates for a period of approximately six months into January 2009. She became disillusioned with the Dr. Kates and sought treatment with various other doctors. She also consulted with an attorney who sent authorizations to the hospital and Dr. Kates for her medical records for litigation purposes. In 2011, approximately two years after her last appointment with Dr. Kates, she returned to him once more. Plaintiff then commenced an action against Dr. Kates in 2013 alleging medical malpractice. Defendants moved for summary judgment, claiming that the action did not fall within the statute of limitations, since it was brought more than 2 ½ half years after plaintiff’s post-surgical treatment with Dr. Kates in 2009. Plaintiff argued that her visit in 2011 established that the physician-patient relationship was still in effect, and thus her treatment was ongoing until that date. The Court ruled that the gap called into question the “continuous” nature of the relationship, and in particular held that the service of authorizations stopped the tolling of the statute. As such, the Court granted defendants’ motion for summary judgment. Thanks to Christopher Gioia for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Gym Denied Summary Judgment Because Of Conditions At Premises (NY) December 16, 2022 < Back Share to: In Steven Lore v. Fitness International LLC, 2022 NY Slip Op 06922 (2d Dept. 2022), plaintiff sued his gym alleging serious injury from a trip and fall inside one of its showers in the locker room. Specifically, the injury occurred because of a single step riser 4 ½ inches in height. Following discovery, defendant gym owner filed for summary judgment arguing that the condition was open and obvious to the plaintiff, and not an inherently dangerous condition. Plaintiff opposed the motion arguing poor lighting made it difficult to see the shower riser. The trial court granted summary judgment to defendants, and the Second Department reversed that decision. While it is true that there is no duty to protect or warn a public against an open and obvious condition that, as a matter of law, is not inherently dangerous, the Appellate Court reasoned that the issue of open and obvious should take into consideration the surrounding environment (Sebagh v Capital Fitness, Inc., 202 A.D.3d 853, 855; Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Kernell v Five Dwarfs, Inc., 207 A.D.3d 622). The Appellate Court also held that determining "whether a dangerous condition is open and obvious is fact-specific, and usually a question of fact for the jury" (Lazic v Trump Vil. Section 3, Inc., 134 A.D.3d at 776; Liriano v Hobart Corp., 92 N.Y.2d 232, 242). Here, the Appellate Court held the plaintiff’s argument that the lighting condition was poor and made the condition difficult to see was enough to deny dismissal and take the claim to a jury. The Appellate Court’s decision emphasized the difficulty of sustaining a dismissal on the basis that a condition was open and obvious and not inherently dangerous to the public. In order to sustain such a dismissal at summary judgment, there can be no other factors that could lead to the obfuscation of the alleged condition, i.e. poor lighting, no warning signs, out of place condition. One way to avoid this liability would be to clearly articulate the condition on the property, so that there is no argument that it was hidden or not visible to the naked eye. Otherwise, the court will determine the analysis to be fact-specific and leave it as a triable issue of fact for a jury. Thanks to Raymond Gonzalez for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News How Clear Does Your Policy Exclusion Need To Be In The AI Age? March 31, 2023 < Back Share to: In most jurisdictions, courts interpret policy language in favor of the insured, especially when it comes to ambiguous exclusions. With the rise of the Artificial Intelligence and its implication towards data privacy, insurance companies are facing potentially large claims from class action suits. In 2022, the Illinois Eastern Division District Court heard a coverage case arising from AI technology. Wynndalco is an IT consulting firm that is licensed to sell Clearview AI products in Illinois. Clearview AI is an artificial intelligence company that specializes in facial recognition software. A class action suit was filed against Wynndalco for violating an Illinois statute (Biometric Information Privacy Act) that regulates the collection of biometric information by selling Clearview products in Illinois. Wynndalco purchased a business owners insurance policy from Citizens and the policy provides coverage for “personal and advertising injury” with a number of exclusions including a statutory violation exclusion which excludes coverage for violation of TCPA, FCRA and state statutes regarding collecting or distributing of material or information. The court ruled that the exclusion was ambiguous on its face because the exclusion is overinclusive since most statutes regulate information to some degree. Further, the court could not interpret the language based on the exclusion purpose since the exclusion also applied to federal statutes like FCRA that regulates the credit reporting industry, not only to statutes that regulated distribution of information. In turn, the court ruled that Citizen owed a duty to defend Wynndalco and the exclusion above did not apply. As we are seeing the unparalleled advancement of AI technology and its implementation in various industries, policy exclusions can be the determining factor in potentially high liability exposures. Thanks to Yifan Lin for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Finding Of Incompetence Does Not Warrant Termination Of Custodian Under New York Civil Service Law Section 75 (NY) March 24, 2023 < Back Share to: New York Civil Service Law section 75 governs discipline for certain classes of public employees. Section 75 provides, in relevant part, that a covered person shall not be removed or subject to any disciplinary penalty except for incompetency or misconduct. The section does not specifically define the term incompetence, but arbitration decisions and case law have established the burden of proof necessary to establish incompetence. For example, in Matter of Kimble v. Yonkers Bd. of Educ., the Appellate Division, Second Department addressed this issue in reviewing the decision of a school board to terminate a custodian after a Section 75 hearing had determined that he was guilty of incompetence, insubordination and misconduct. The Court’s review was limited to whether the administrative determination was supported by “substantial evidence,” defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.” Recognizing that a finding of incompetence only requires evidence of “some dereliction or neglect of duty”, the Court determined that there was substantial evidence in the record to support the determination that the custodian was guilty of incompetence, insubordination, and misconduct as he discovered a knife and pepper spray under a radiator and left them there for approximately three hours knowing that there were students and other staff in the building, and gave students money after betting that one of the students would win in a basketball gamer. However, after considering the janitor’s length of service and lack of a prior disciplinary record, the Court found that the ultimate penalty of termination was “so disproportionate to the offense as to be shocking to one’s sense of fairness.” Kimble is significant in that the Second Department agreed with school board and hearing officer that the public employee was guilty of incompetence and misconduct but refused to sanction the employee’s firing based on the employee’s record and length of service. Thank you to Rebecca Pasternak for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Is A-Rod Causing Problems Beyond Baseball? July 29, 2013 < Back Share to: Alex Rodriguez has caused a host of problems for baseball and the Yankees. It now appears he might be about to start causing insurers problems. The question is -- how bespoke is the insurance policy such that the voiding of a $100,000,000 insurance contract is covered (or excluded) by the policy? Stay tuned to find out! For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact