Wade Clark Mulcahy LLP

News One Warning on Snow Thrower is Enough January 5, 2024 < Back Share to: Plaintiffs cannot insist manufacturers warn against dangers that may arise if warnings that are stated are not heeded. Plaintiff Robert Brewer injured his middle finger when he placed his hand in the blades of a snow thrower he believed to be turned off. Brewer v. Troy-Bilt LLC , 2023 WL 7167564, at 1 (E.D. Pa. Oct. 31, 2023). Brewer brought a claim against the manufacturer of the snow thrower alleging that there “were not adequate warnings on the machine itself alerting him to the danger of cleaning a clog without removing the ignition key.” Id. at 2. The snow thrower's manual contained multiple warning regarding the engines, blades, and their operations. Id. at *1. The machine itself contained “warnings to keep hands and feet away from the blades and discharge chute, and warnings to shut off the engine before using the clean-out tool to clear a clog.” Id. Brewer inserted his hand in the discharge chute to clear a clog in the chute, when the snow thrower allegedly started and the blades began to rotate. Id. While plaintiffs conceded that the warning existed in the manual, plaintiffs argued that that warning should have been additionally placed on the machine. Id. at *3 . Furthermore, the machine had a warning specifically to not place one’s hands in the discharge chute, and Brewer was aware of the warning. Id. However, plaintiffs sought an additional warning “ that would have instructed Mr. Brewer to make sure the machine was fully powered down by removing the ignition key before disregarding the existing warnings and putting his hand in the discharge chute.” Id . The Court discussed a state case with similar facts where an injured employee “ignored warnings to keep her hands out of a meat blender and placed her hands in the blender when she thought it was turned off.” Id. at 4. That employee effectively “request[ed] that the court require a manufacturer to warn against dangers that may arise if the stated warnings are not heeded.” The Pennsylvania Supreme Court in that case, Davis v. Berwind Corp. , 547 Pa. 260 (1997), reasoned that Pennsylvania law “presumes warnings will be obeyed.” Id. at 5. Thus, in the case at hand, it was enough that there was a “sufficiently prominent warning not to place one’s hand in the discharge chute,” id. at 4, and Brewer was aware of that warning. Overall, this stands for the proposition that manufacturers do need not create additional warnings that “are only useful if the current warning is ‘blatantly ignored.’” Id. at 5 (internal citations omitted). Brewer v. Troy-Bilt LLC .pdf Download PDF • 191KB Previous Next Sarah Polacek Sarah Polacek Senior Associate +1 267 239 5526 spolacek@wcmlaw.com Contact

News District Court of New Jersey Holds Additional Insured Coverage is Triggered by Allegations of Vicarious and Direct Liability July 19, 2024 < Back Share to: The District Court of New Jersey recently considered whether an insurance company’s duty to defend an additional insured is triggered by allegations of direct liability, vicarious liability, or both under New Jersey law. Navigators Specialty Insurance Company v. Citizens Insurance Company of America , 2024 WL 3287848 (D.N.J. July 3, 2024). In the underlying lawsuit, a construction worker sued his employer, Men of Steel, and the general contractor at the project site, AJD Construction. Id. at 1. AJD’s insurer, Navigators Specialty, tendered the defense of AJD to Citizens Insurance, Men of Steel’s insurer. Id. Citizens Insurance disclaimed coverage, asserting the claims of direct liability raised against AJD were not covered by its policy’s additional insured provision. Id. The Policy stated that an additional insured is only covered “with respect to liability for bodily injury … caused, in whole or in part by, the acts or omissions” of Men of Steel or someone acting on its behalf. Id. at 3. Citizens Insurance argued the “in whole or in part” language limited the Policy’s coverage to claims of derivative liability. Id. at *4. Navigators Specialty contended the language encompassed claims of derivative and direct liability. Id. On review, the Court noted the issue was one of first impression under New Jersey law. Id. Nevertheless, the Court predicted the New Jersey Supreme Court would rule that an insurer’s duty to defend is triggered by allegations of vicarious or direct liability, citing four reasons in support. Id. at *5. First, lower New Jersey decisions evaluating this provision concluded that both types of allegations triggered the duty to defend. Id. Second, District Court precedent affirmed the same interpretation of the “in whole or in part” language. Id. at 6. Third, New Jersey’s approach to “going with the consensus” when interpreting standard form policies indicated the Supreme Court would follow the rationale of other jurisdictions. Id. at 7. The “overwhelming majority rule” is that the “in whole or in part” language triggers a duty to defend allegations of direct and vicarious liability. Id. Finally, under the “plain and ordinary meaning” of the Policy, the provision at issue did not “purport to limit coverage to an ‘injury’ that is ‘caused’ in one particular way or another, direct or vicarious.” Id. at *8. The Court reasoned that, had the Policy intended to limit coverage to claims of vicarious liability, it could have done so. Id. Navigators Specialty Insurance Company v. Citizens Insurance Company of America .pdf Download PDF • 246KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Eastern District of Pennsylvania Finds But-For Causation to be Key in Determining Additional Insured Coverage (PA) February 20, 2020 < Back Share to: In Republic Franklin Square Insurance Company v. Bethren Mutual Insurance Company, Republic Franklin brought a declaratory judgment and equitable subrogation action against Brethren Mutual seeking reimbursement of $175,000 it paid on behalf of its insured. By way of brief background, Paul Lamb owned a shopping center made up of various business entities. Lamb was insured under a Republic Franklin policy. Lambed leased out part of his property to Shree Ram Enterprises LLC (“SRE”), which operated a gas station at the property. SRE was insured under a Brethren Mutual policy. The underlying plaintiff brought suit against Lamb and SRE after she slipped and fell in the parking lot after leaving SRE’s gas station. The underlying action ended up settling, whereby Republic Franklin payed $175,000 on behalf of its insured and Brethren Mutual paid $35,000 on behalf of its insured. Thereafter, Republic Franklin filed a declaratory judgment action arguing that it was entitled to additional insured coverage from Brethren Mutual. Both parties filed cross-motions for summary judgment. Both parties agreed that the Brethren Mutual policy provided coverage for “bodily injury” arising out of the “ownership, maintenance or use” of the leased land and that it was primary coverage for the underlying claim. However, the issue before the Court was whether the underlying plaintiff’s fall arose out of “maintenance or use” of the leased property. Brethren Mutual argued that there was no additional insured coverage as the underlying plaintiff fell in the parking lot, which was outside the scope of the lease agreement. Republic Franklin argued that there was additional insured coverage as the underlying plaintiff was injured as a result of patronizing SRE’s gas station. In determining whether the Brethren Mutual policy afforded additional insured coverage, the Court focused its analysis on “but-for” causation. The Court concluded that but for SRE’s “maintenance or use”, the underlying plaintiff would not have fallen and sustained injuries, given that she was injured as a result of patronizing SRE’s gas station. As such, the Court granted Republic Franklin’s Motion for summary judgment. This case demonstrates how establishing but-for causation is essential in bringing a subrogation action for additional insured coverage where the policy affords coverage for ownership, maintenance or use of a property. Thanks to Rachel Thompson for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Call Your Next Witness - Don Gomez August 11, 2023 < Back Share to: Don Gomez joined the United States Army in April 2001, and was in active training when the September 11, 2001 attacks took place. His recounting of that day is probably a version you've never heard before. Don has been deployed to the Middle East several times, and has become both a student and an instructor of Arabic. He remains active in the United States Army. Our discussion delves into problem solving techniques common to both legal and military tactics, and also, the value of "getting our of your bubble." He's also my cousin, and a genuinely good guy. A link to our discussion can be found here. Please note, Don’s comments are his own and do not reflect the position or policies of the United States Army, the Department of Defense, or the United States government. For more information about the podcast, or about being a guest, please email Brian Gibbons. Previous Next Contact

News WCM Wins Summary Judgment on Melted Ice Slip and Fall December 14, 2018 < Back Share to: Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home. Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients. Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff's argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions. Please email Dana Purcaro with any questions. Previous Next Contact

News Video of Bicyclist-Pedestrian Collision Raises Many Questions, Just No Triable Issues of Fact March 3, 2023 < Back Share to: New York judges continue to disagree on what constitutes a triable issue of fact, even where a bicyclist-pedestrian was caught on video surveillance. In a single-paragraph decision issued on February 9, 2023, the New York Court of Appeals affirmed the First Department’s grant of summary judgment to the defendant bicyclist in Zhong v. Matranga, which reversed the trial court’s denial of that motion. Of the 12 judges to consider the motion (albeit at different stages), eight found that plaintiff pedestrian failed to raise an issue of fact, while four held that she had. All watched the same video. The First Department’s 3-2 decision – after a lively oral argument in which a divided panel peppered attorneys with questions – thoroughly examined the many dinner-table questions presented by a split-second collision on 91st Street and First Avenue on a busy Friday evening of Memorial Day weekend in 2016. The majority held that defendant was riding his bicycle through the intersection with the green light in his favor, while plaintiff suddenly walked off the curb and into the bicycle lane against the red light for pedestrians without looking both ways and less than ten feet from the incoming bicyclist. It was undisputed that the bicyclist was riding at approximately 14mph, well below the 25mph speed limit. For those reasons, the First Department held that defendant was not negligent, and plaintiff was the sole proximate cause of the accident. The Court further held that the plaintiff’s expert’s testimony was insufficient to raise an issue of fact as it expressed in a conclusory manner that defendant was riding at an excessive speed when compared to the speed of the three other bicyclists in the video and could have slowed down, stopped, or maneuvered around plaintiff to avoid the collision. The majority pointed to the defense expert who opined that defendant could not have evaded plaintiff to the left or right without putting himself or other pedestrians at risk. The two-Justice dissent, endorsed by Judge Rivera of the Court of Appeals, stated that, although neither party disputed that the bicyclist had the right of way, plaintiff raised a triable issue of fact through her deposition testimony that she had looked both ways and did not see defendant coming before stepping off the curb, which a jury might find indicative of excessive speed. Despite both experts testifying that defendant was riding at approximately 14mph, the dissent pointed to the video showing that defendant was at least keeping pace with a bus driving in the same direction. Moreover, a jury might find defendant’s riding faster than other bicyclists in the video surveillance probative of what constituted a safe speed under the circumstances. Ultimately, the dissent suggested that the majority was sifting and weighing relevant facts, which should be within the province of the jury. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Katrina and Loose Barges -- That Couldn't Possibly Cause a Coverage Dispute, Could It? March 18, 2010 < Back Share to: On August 29, 2005, New Orleans, Louisiana was devastated by Hurricane Katrina. During the course of the hurricane, hundreds of barges and vessels broke away from their moorings, causing substantial damage. Barge ING 4727 was one such barge which broke away during the storm. Afterwards, some theorized that Barge ING 4727 actually caused the breach in the levee on the Lower Ninth Ward of New Orleans. What followed was an onslaught of litigation for claims against several defendants, including Lafarge, a company which provides construction materials throughout the United States. Lafarge was the operator allegedly responsible for the terminal to which Barge ING 4727 was moored just prior to the storm. Lafarge had primary insurance coverage through NYMAGIC, and excess coverage through AHAC, NACA, and American Club. Upon learning of the potential casual connection between the barge and the breached levee, Lafarge took proactive steps to begin preparing a defense against any potential litigation. Thus, Lafarge hired two large (and thus very expensive) national law firms (Goodwin Proctor and H&K), as well as a local counsel (Chaffe), to begin assessing their potential mass tort liability. Upon notification that Lafarge had retained the three aforesaid firms, NYMAGIC informed Lafarge that they could not commit to paying for firms which they did not appoint, and instead offered a list of six New Orleans firms to handle the case. Lafarge declined to consent to the representation of any of the named firms, and instead continued to utilize their self-selected attorneys. Three separate declaratory judgment actions were filed in the United State District Court for the Southern District of New York seeking coverage. The District Court granted the American Club’s Motion for summary judgment in the matter, holding that coverage was not afforded under that excess policy. Furthermore, the court held that the excess carriers were obligated to cover Lafarge. Lastly, the district court held that the primary and excess carriers were obligated to cover the legal fees earned by Goodwin Proctor and H&K. An appeal resulted. On appeal, NYMAGIC, Lafarge, AHAC, and NACA argued that the American Club Policy covered Barge ING 4727. Lafarge also challenged the District Court’s holding that the primary and excess policies did not cover the legal fees earned by Chaffe; and the court’s refusal to award attorneys fees in connections with the motions for summary judgment. Finally, NYMAGIC, AHAC, and NACA challenged the decision that excess polices were triggered, and that the primary and excess policies covered the legal fees earned by Goodwin Proctor and H&K. The Second Circuit has now ruled. It first examined the excess policy issued to Lafarge by American Club. Although there was no explicit endorsement naming Barge ING 4727 as a vessel covered under the policy, Lafarge argued that the barge was automatically covered pursuant to the following provision: If Lafarge…acquires an insurable interest in any vessel in addition to or in substitution for those set forth herein, through purchase, charter, lease or otherwise,… . The appellate court declined to confer a broad interpretation of the phrase “or otherwise”, as such a broad interpretation would effectively nullify two entire phrases in the policy. The court also considered extrinsic evidence which revealed that the clause was never intended to cover barges such as Barge ING 4727. Ultimately, the court held that “otherwise” did not include the kind of relationship associated with a ship owner’s bailment to a terminal operator. Thus, the appellate court upheld the district court’s decision to grant summary judgment on behalf of the American Club. Next, the appellate court held that the primary and excess carriers were liable for the fees payable to Goodwin Proctor and Chaffe which were incurred prior to September 28, 2005. After that date, Lafarge acted in bad faith by failing to consider the list of firms proposed by NYMAGIC; thus, the insurers were not liable for any amounts incurred after that date. The court also held that the fees earned by H&K were recoverable because they were retained on a temporary basis for an investigative mission. Lastly, the appellate court found that the District Court did not abuse its discretion by denying Lafarge’s motion for attorney’s fees, as the denial was not based upon any attempt by the insurers to avoid their duty to defend Lafarge. Special thanks to Heather Aquino for her contributions to this post. If you have any questions about its contents, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9415075 Previous Next Contact

News Employment Liability Insurance Policies Unlikely to Cover Workplace Tort Claims Brought by Non-Employee Plaintiffs July 29, 2021 < Back Share to: In Penn Psych Center Inc. v. US Liability Ins. Co., a Pennsylvania state court addressed, for the first time, whether employment practices liability (EPL) insurance policies generally cover the costs of tort litigation brought against an employer and their employees by third-parties with no employment relationship to the insured. The underlying action involved a suit against Penn Psychiatric Center brought by two former patients who alleged they were sexually assaulted by a Penn Psychiatric therapist. When its insurance carrier denied coverage of the underlying action, the center brought suit against that insurer claiming breach of contract, bad faith refusal of coverage, and a breach of the duty of the carrier to defend or indemnify Penn Psychiatric. Among the claims the former patients brought against Penn Psychiatric were negligent hiring and negligent supervision. The EPL policy in question enumerates covered claims, including “Workplace Tort,” under its “Wrongful Acts” section. The policy defines “Workplace Tort” as restricting coverage to “employment-related” claims. The Pennsylvania Superior Court reasoned that negligent supervision and other workplace tort claims are not considered “employment-related” when they are brought by parties without an employment relationship to the insured. Furthermore, the court read the clause “involving and brought by any Employee, former Employee, or applicant for employment” as modifying the entirety of the preceding “Wrongful Acts” provision, thus restricting the coverage of all enumerated claims against both the insured entity and individual insureds to those brought by past, present, or future employees. This interpretation was supported by both state/federal precedent and the policy’s repeated and consistent requirement that claims other than those enumerated in the “Third-Party” provision be “employment-related.” Courts across the country have held that EPL insurance policies generally do not cover claims brought by third-party plaintiffs with no past, present, or future employment relationship with the insured. The purpose of EPL insurance policies is to provide coverage for claims brought my former, current, or future employees. Multiple jurisdictions have held that workplace tort actions, including negligent retention, negligent supervision, and negligent hiring claims, are not covered by EPL policies when brought by non-employee plaintiffs. Thus, absent language expressly providing third-party or non-employment-related coverage for a particular type of claim, Pennsylvania state courts will be reluctant to interpret EPL policies as covering workplace tort actions brought by non-employees in the future. Thanks to Beatrice Segal for her contribution to this post. Should you have any questions, feel free to contact Tom Bracken. Previous Next Contact

News NY Court of Appeals Lets Bad Golfer off of the Hook December 22, 2010 < Back Share to: We previously posted on this amusing case: http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=301 Now, New York's highest court has made the course safer -- from a legal standpoint -- for bad golfers throughout the state. In Anand v. Kapoor, the foursome got off to a rough start, when, on the very first hole, Kapoor found himself in the rough. After retrieving his ball, but without calling "fore," he shanked a shot in the wrong direction. Unfortunately, Anand was struck in the eye, sustained a detached retina and suffered permanent loss of vision. Anand was granted summary judgment at the trial court level, and the Appellate Division upheld the decision. The Court of Appeals recently affirmed, finding that the plaintiff assumed certain risks that are inherent to the sport. One such risk was being hit with a shanked shot. It seems that the Court found that Kapoor’s failure to warn plaintiff of his shot wasn’t intentional or reckless, because he didn’t expect that his shot would go in the direction of the plaintiff. Ironically, from a legal standpoint, his lousy shot worked to his benefit. As a beginning golfer, I appreciate the Court’s decision. Otherwise, I’d need to yell fore before I lined up for everything other than a putt. For more information, please contact mbono@wcmlaw.com http://www.nycourts.gov/reporter/3dseries/2010/2010_09380.htm Previous Next Contact

News US Government Sues Dinosaur; Court Says Fossil Skeleton is like Frankenstein September 20, 2012 < Back Share to: The US Attorney’s Office recently filed a complaint seeking the forfeiture of a Tyrannosaurus skeleton. The skeleton was imported from Great Britain to Florida to a company called Florida Fossils and later auctioned in New York. The Mongolian government obtained a temporary restraining order to prevent the sale from being finalized, alleging that the Tyrannosaurus was a “bataar,” a species native to Mongolia. Pursuant to Mongolian law, fossils are considered property of the government and Mongolia is a signatory to the United Nations Convention that prohibits the smuggling of cultural property. The US Attorney’s office thus filed this forfeiture action (against the name of the property to be seized) in an effort to have the skeleton returned to Mongolia. Florida Fossils, however, moved to dismiss the complaint, alleging that a significant portion of the skeleton came from different bones already owned by the claimant that were not related to the bataar, and that the claimant had assembled different pieces into a larger skeleton. The Court, who referred to the skeleton as a “kind of Frankenstein model,” gave the Government an opportunity to amend the complaint to clarify this point as well as other issues, including whether such a dinosaur could have come from a place other than Mongolia. It will be interesting to see whether the “Frankenstein defense” works, either in this matter or in other cases involving disputes over cultural property, including art. If you have any questions about this post, please write to mbono@wcmlaw.com Previous Next Contact

News Recent Litigation Tracking Indicates Early Wins For Insurers In COVID Cases September 4, 2020 < Back Share to: Recent court decisions on "business interruption" coverage claims related to COVID-19 seem to be tentatively favoring insurers with respect to claims for lost income during the COVID-19 pandemic. Several jurisdictions have ruled for insurance companies, including state courts in California, Michigan and the District of Columbia, as well as in federal courts in Texas and California. Two other judges have indicated that they would rule against COVID-19 claims brought by a Miami restaurant and a magazine publisher. In fact, the publisher, Social Life Magazine, withdrew its case before a Manhattan federal judge issued a written opinion. However, many lawyers for policyholders aren’t giving up hope, as many suits are awaiting a decision, and appeals courts have yet to rule. In addition, many lawyers for insureds are focusing on a Missouri federal judge’s Aug. 12 ruling allowing business interruption claims to proceed. As insurers are aware, many business interruption policies require “direct physical loss or damage” to property for coverage to apply. Others specifically exclude coverage for damage caused by viruses. The plaintiffs in the Missouri business interruption case had argued that the coronavirus is a physical substance that attached to and damaged their properties, and their all-risk policies should cover lost income. The policy in the Missouri case did not exclude virus damage but did require a direct physical loss. In an interesting indication of things possibly to come from COVID-19 business interruption litigation, the Insurance Information Institute said the federal government, rather than insurers, should help. As court losses mount, a coalition of small businesses is backing a House bill, the Business Interruption Relief Act. The bill would create a voluntary program for insurers to pay claims and obtain reimbursement from the federal government. We will continue to keep you updated as events progress. Thanks to Joseph S. Anzalone for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Minor Concession by UIM Insurer Prompts Opening for New Trial (PA) November 17, 2016 < Back Share to: A U.S. Magistrate judge for the Middle District of Pennsylvania recently granted a new trial, albeit on a very narrow issue, to two plaintiffs who lost their federal lawsuit against the Cincinnati Insurance Co. In Angino v. Cincinnati Insurance Co., Richard Angino, a lawyer from Harrisburg, Pennsylvania, and his wife sued their insurance company for compensation from injuries in an underinsured motorist context. Angino alleged permanent neck and back pain that affected his ability to work as an attorney, and sought compensation for lost wages as a result of his alleged permanent disability. The insurance company argued that Angino’s permanent neck and back pain were not the result of the car accident, but rather were caused by the 75-year old’s advanced age. However, the insurance company conceded that Angino did indeed suffer from temporary back pain caused by the accident. A federal jury determined that Angino’s permanent neck and back pain were not caused by the car crash and thus found for the insurance company. However, U.S. Chief Magistrate Judge Martin C. Carlson of the Middle District of Pennsylvania granted permission for Angino to pursue a narrow avenue of post-verdict relief in the form of a new trial on the sole issue of his temporary back pain. Because the insurance company conceded that Angino’s temporary back pain was factually caused by the car accident, Judge Carlson granted Angino the opportunity to pursue a new trial where the only claim at issue would be damages related to Angino’s temporary back pain. In his ruling, Judge Carlson affirmed the portion of the jury’s verdict that sided with the insurance company concerning Angino’s permanent disability claims; and found that Angino’s permanent back and neck injuries were the result of his advanced age as opposed to the car accident. Judge Carlson noted that this conclusion was confirmed by Angino’s own medical records, as well as his treatment and physical therapy history that were inconsistent with a claim of permanent disabling pain caused by the accident. Courts often express frustration with attorneys who are reluctant to make even minor concessions during discovery. This case illustrates the pitfalls of such a concession. The insurer's concession that plaintiff's back injury was related to this accident has resulted in a new trial, which could bear significant exposure before a sympathetic jury. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact