News Life after Death: Superior Court Rules Waivers Do Not Apply to Wrongful Death Actions (PA) January 15, 2016 < Back Share to: A recent decision from the Pennsylvania Superior Court revived a wrongful death action previously dismissed on the basis of a waiver of liability, holding instead that such waivers do not apply to surviving spouses under the applicable statutory regime. In Valentino v. Philadelphia Triathlon, the decedent participated in a June 2010 triathlon hosted by defendant Philadelphia Triathlon and conducted, in part, along the Schuylkill River. As part of his participation in the triathlon, the decedent was required to preregister for the event and execute a waiver and release form absolving Philadelphia Triathlon from any liability arising out of death or bodily injury. Unfortunately, during the course of the swimming portion of the triathlon, the decedent drowned in the Schuylkill River where his body was ultimately recovered the next day. In or about April 2012, the decedent’s widow filed a wrongful death and survival action naming, among others, Philadelphia Triathlon as a defendant. While preliminary objections removed all defendants but Philadelphia Triathlon from the case, the trial court eventually granted summary judgment in its favor on the basis that the waiver and release form barred the widow’s action in its entirety. On appeal, the widow argued that the trial court improperly sustained preliminary objections and wrongfully granted summary judgment. In respect of the latter alleged error, the widow argued in part that summary judgment was inappropriate on the basis of the waiver and release form because Pennsylvania law does not apply the limitations therein to third-parties suing under the Commonwealth’s wrongful death statute. In ultimately adopting this reasoning, the Superior Court explained that because Pennsylvania’s cause of action for wrongful death is statutory, it belongs exclusively to the beneficiary and is not derivative of the decedent’s own claims. Moreover, inasmuch as the wrongful death claims are not “passed on” by the decedent, the Superior Court went on to state that any waivers or limitations executed by the decedent in respect of his own claims during life did not inure to the detriment of widows or other beneficiaries attempting to enforce their own causes of action. Consequently, the Superior Court overturned the trial court’s summary judgment order and remanded for further proceedings. The Superior Court’s decision in Valentino reaffirms and highlights subtle distinctions between Pennsylvania’s wrongful death and survival statutes insofar as the former allows beneficiaries to recover their own damages because of the loss of a loved one and the latter merely preserves the decedent’s own right to recovery. Thanks to Adam Gomez for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Not All Mold Exposure Is Actionable (NY) June 21, 2013 < Back Share to: In Rivera v. Crotona Park E. Bristow Elsmere, the infant plaintiff claimed that toxic mold exposure in his apartment caused asthma and pulmonary incapacity. The defendant eventually moved for summary judgment and that motion was denied. However, the First Department reversed, holding that the defendant had established that plaintiff’s asthma and pulmonary incapacity were not related to the mold condition and the alleged causal relationship was speculative and uncorroborated. The defendant set forth an expert affidavit that established that the infant plaintiff's asthma and pulmonary incapacity were caused by genetic and environmental factors not related to the mold condition, including medical records showing the infant plaintiff's significant allergies to cockroaches and cats, the extensive family history of severe asthma, and the presence of cigarette smoke, cockroaches and cats in the apartment. Plaintiff’s treating physician not only failed to sufficiently refute the defendant’s expert’s conclusions, but also attributed the plaintiff’s symptoms to his exposure to smoke, cockroaches and cats. In addition, the plaintiff’s physician’s conclusions that the apartment was where the "presumed toxic exposure occurred" was based on plaintiff’s uncorroborated allegations without any scientific measurements. What’s more, the plaintiff failed to demonstrate that the defendant even had notice of the potentially harmful mold condition. The First Department correctly recognized that not all plaintiffs claiming mold exposure can recover, reaffirming that speculation regarding causation will defeat a plaintiff’s entitlement to recovery, as will the absence of corroborating scientific evidence. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Bald Assertions Insufficient to Hold Insurance Professionals Personally Liable for Claims-Handling Practices (TX) May 3, 2018 < Back Share to: While we do not ordinarily report on Texas litigation, occasionally we learn of decisions of particular import to insurance claim professionals. In coverage litigation, insureds often attempt to recover more than damages for simple breach of contract. Most often, this comes in the form of a bald assertion of bad faith. At other times, however, insureds rely on state statutes that impose personal liability on insurance professionals. Fortunately, as they often do in bad faith cases, courts typically require something more than bald assertions to impose extra-contractual liability. One example is the recent decision from the United States District Court for the Northern District of Texas. In Caruth v. Chubb Lloyd’s Co of Texas et al.., the insureds submitted an insurance claim for property damage. Chubb's assigned adjuster retained a roofing company to investigate the loss and that company determined that the property damage was not the result of wind or hail. The insureds claimed that the adjuster’s handling of the claim led to an underpayment and a wrongful partial denial of coverage. In the ensuing coverage action, the insureds relied on a Texas statute under which an individual adjuster may be held personally liable for how it adjusts a claim. According to the plaintiffs, personal liability was appropriate because the adjuster “failed to perform a proper and complete investigation of the claim;” represented that certain damages would be covered then failed to pay for such damage,” and retained the roofing company “because it was known that it would issue a report on which the claim for benefits would be denied.” On these allegations, the court granted the insurer’s motion to dismiss. In doing so, the court reasoned that despite the allegations, the insureds failed to adequately describe the cause of their loss or specifically allege how the adjuster’s investigation was inadequate. According to the court, these conclusory statements were insufficient to state a cause of action for personal liability. All insurance professionals should be cognizant of the possibility of a bad faith claim or even the imposition of personal liability. But the Caruth decision should provide some reassurance that bald assertions, without specific allegations of bad faith claim handling, fall short of the high burden necessary to impose extra-contractual remedies. Thanks to Michael Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Failure to Appear Equals a Failed Case in NY July 21, 2023 < Back Share to: The court closed any potential loophole that a plaintiff trying to skip out on evaluations under oath (EUOs) in New York might use to prevent any repercussions from being brought against them as a result. The plaintiff in MLG Med. P.C. v Nationwide Mutual Insurance Company missed four EUOs before the defendant filed a motion to dismiss and for summary judgment. The plaintiff responded by stating that the defendant did not act on the failure to show in a timely manner which means within thirty days from the second no-show by the plaintiff. The court considered how the plaintiff responded to the previous notices and the multiple opportunities to allow the plaintiff to appear. The court emphasized that the focus should be on the failure to appear, not timeliness of the defense motion, when considering whether to grant a motion to dismiss for failure to appear for EUO. Rather, the spirit of the law to incentivize parties to show up to EUOs should be remembered. Thanks to Jordan Joachim-James for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Atlantic County , New Jersey joins list of "Judicial Hellholes" for defendants. December 26, 2007 < Back Share to: The Atlantic County Superior Court in New Jersey has joined a list of courts that the American Tort Reform Foundation finds the least favorable for lawsuit defendants in plaintiff's tort claims. It joins Clark County , Nevada as a newcomer to the " judicial hellhole" list prepared by the foundation. Atlantic County was found to be plaintiff friendly for mass tort claims against New Jersey's numerous pharmaceutical companies, in large part due to the handling of Vioxx related lawsuits which have been tried against Merck & Co. http://www.law.com/nj 12/25/07 Previous Next Contact

News A Culinary Coup, a Foie Gras Fête: NYC’s Ban of Foie Gras Foiled Again July 12, 2024 < Back Share to: New York City’s attempt to ban foie gras was once again found to unreasonably restrict and regulate farming operations in the State under Agricultural and Markets Law §305-a (“AML §305-a”). AML §305-a creates a restriction upon local municipalities from creating restrictions or regulations on farm operations within agricultural districts, unless it can be shown that public health or safety is threatened. At any time, a farm owner or operator can request the Commissioner of Agriculture and Markets (“Commissioner”) to render an opinion as to whether changes in local regulations or laws concerning farming/agricultural practices would be unreasonably restricted. In 2019, NYC adopted Local Law 202, which was designed to ban the sale of foie gras in the City for the purposes of animal welfare (a large majority of NYC residents supported the ban). Foie gras is often made through the force feeding of a goose or duck with the intention to artificially fatten the bird and increase its liver size tenfold. However, there are multiple farms within the State of New York which produce foie gras and requested that the Department of Agriculture and Markets (“Department”) and the Commissioner render such an opinion as to the validity of Local Law 202. (Of note, the farms that brought this request are located in Sullivan County, as there are no farms in New York City that produce foie gras.) Their argument is that this retail sale ban from the City created an unreasonable restriction or regulation and threatened the viability of these farms through the negative economic impact such a ban would have. In multiple determinations from 2020 to 2023 by the Commissioner and the Department, the 2019 NYC Local Law 202 had been found to violate AML §305-a. Due to this, the City of New York brought the instant petition in Albany County. The Albany County Supreme Court ruled against the City of New York, upholding the Commissioner’s and Department’s determinations that Local Law 202 is invalid under State law. The reasoning is that AML §305-a is not solely directed at local laws or regulations that directly govern or oversee local agricultural districts, but rather is broad and expansive in its language, inclusive of any local law or ordinance that creates an unreasonable regulation or restriction on any farm operation in any agricultural district in New York State. Further, the legislative history of Local Law 202 does not cite any issues of health and safety to the public – which would be the only exception to AML §305-a after the ordinance was found to create the unreasonable restriction. As such, at least until the matter is appealed, restaurant-goers and foodies of New York City can continue to dine on foie gras. Thanks to William Healy for his contribution to this article. City of New York v. Ball .pdf Download PDF • 327KB Previous Next Contact

News Court Holds Torture Committed In Iraq Is Outside Policy’s “Coverage Territory" May 15, 2009 < Back Share to: In a case involving the application of liability insurance to torture cases in Iraq, the United States Court of Appeals for the Fourth Circuit held that there was no coverage because the incidents occurred outside the policy’s coverage territory. In CACI International, Inc. v. St. Paul Fire and Marine Ins. Co., the insured was sued by detainees of Abu Gharib, and sought coverage under its general liability policy. CACI argued that the hiring and training of the insured’s employees implicated acts that occurred in the United States, within the policy’s coverage territory. This argument was rejected by the court, which noted that traditional policy interpretation used the location of the injury determined the location of the “event” for coverage purposes. http://pacer.ca4.uscourts.gov/opinion.pdf/081885.P.pdf Previous Next Contact

News Nazi Art Remains a Problem. July 5, 2013 < Back Share to: In 1998, through the Washington Principles on Nazi-Confiscated Art, governments and museums agreed to honor a special responsibility to repair the damage caused by Nazi looting of Jewish owned art. According to the NYT, this special responsibility has been hijacked by museum lawyers who are running technical defenses to have claims dismissed on statute of limitations claims. Good lawyering does not always make good publicity, so perhaps special care needs to be taken to focus on substantive merits and not procedural gamesmanship. Of course, one man’s game is another man’s substance. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Plaintiff Recovers Lost Earnings Despite His Expert's Failure To State Plaintiff Can't Work December 9, 2011 < Back Share to: In Abrahamsen v JMK Bldg. Corp., the plaintiff, a carpenter, was injured when he fell through an opening in the floor that had been covered by a piece of unsecured plywood. After the close of evidence, the trial court denied the plaintiff's request to charge the jury as to past and future lost earnings on the ground that the plaintiff had not produced expert testimony opining that the plaintiff could no longer work because of his injuries. The plaintiff had conceded that he had not looked for work since the accident. However, the Appellate Division held that the trial court erred and ordered a new trial on damages. In finding that the plaintiff set forth sufficient evidence to warrant a jury charge regarding lost earnings, the court emphasized that the plaintiff met this burden with his testimony that he couldn't work; a psychologist's testimony that the plaintiff was "effectively unemployable" as a result of his injuries and his learning disability; the testimony of the plaintiff's orthopedic surgeon that the plaintiff's injury was permanent and his prognosis was poor,;and the parties' medical experts agreed that the plaintiff was physically unable to work as a carpenter as a result of the subject accident. http://www.nycourts.gov/reporter/3dseries/2011/2011_08889.htm Thanks to Bill Kirrane for his contribution to this post. Previous Next Contact

News Western District of PA Grants Motion Dismissing Claim for COVID-19 Losses December 10, 2021 < Back Share to: This month the U.S. District Court for Pennsylvania in the Western District granted a Defendant-Insurer’s motion to dismiss a plaintiff-dentist’s claim for lost business income stemming from COVID-19. The dentist had an insurance policy with the defendant that included coverage for lost business income stemming from physical loss or damage to its property and civil authority coverage. The court found there was no cognizable claim alleged under the policy, and that the triggering event under the coverage of “direct physical damage to the building or blanket dental practice personal property” did not apply because the dentistry failed to allege any damage to “practice personal property.” The court narrowed in on the plain language of the policy which tied the coverage to actual physical damage to the dentistry, however; the court acknowledged that some courts have permitted claims for coverage relating to COVID-19 business interruption but the facts in the instant matter were distinguishable. Moving forward, it is important to note how the plain language of insurance policies are a vital consideration for courts moving forward for claims asserting COVID-19 losses. Thanks to Alexander Dimeo for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Proof Items Destroyed Were "Key Evidence" Required For Spoliation Sanctions March 4, 2009 < Back Share to: The First Department’s recent decision in Kugel v. City of New York, et al., highlights the strict spoliation standard that must be met before the court will strike a party’s pleading. Namely, a pleading may be stricken due to the intentional destruction of key evidence. In Kugel, the named defendant, A. Jetta Towing, discarded documentary evidence, including tow truck invoices, because its president believed the corporation had been dissolved. A. Jetta, represented by this office, argued that the documentary evidence was not key evidence, as it was not the actual product, part, or component involved in the accident. Rather, it was argued that the key evidence was the motor vehicle that was allegedly involved in the accident. The First Department agreed and held that the documents were not key evidence warranting such a harsh sanction, thus reinstating the defendant’s answer. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01521.htm Previous Next Contact

News WCM Partners to Speak at IFASIC Conference October 14, 2016 < Back Share to: Dennis Wade and Michael Bono will be presenters at the International Fine Art and Specie Conference in Athens, Greece, on Thursday, October 20, 2016. “Guilt, Innocence, and Coverage Under Jewelers Block Policies” will deal with issues such as the rights of innocent stakeholders during a fraudulent claim, the impact of policy rescission, and the interpretation of specialized JB exclusions. If you are not attending the conference but are interested in learning more about this subject, please write to Dennis or Mike. Previous Next Contact