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News As if Hurricanes Weren't Bad Enough -- Florida's Supreme Court Tackles Bad Faith. March 10, 2010 < Back Share to: A case that may influence future hurricane claims in Florida -- and perhaps bad faith claims in general -- was recently before the Florida Supreme Court on certification from the 11th Circuit Court of Appeals. In Chalfonte Condominium Apartment Ass'n, Inc. v. QBE Ins. Corp., S.D. Fl., No. 06-81046-CV-DMM, a Florida condominium association won an $8.1 million jury verdict against its insurer for its claim after Hurricane Wilma in 2005. In its lawsuit, the condo association set forth two claims against its insurer: breach of contract and breach of implied obligation to act in good faith. The trial court allowed the insured to present evidence at trial -- before the jury had assessed the amount of the insured's damages -- that it took the insurer about 18 months to assess damages. On appeal, the insurer argued that the evidence "tainted" the damages portion of the trial and thus the jury increased the insured's damages award after learning about the insurer's alleged delay tactics. When confronted with the appeal, the 11th Circuit asked the Florida Supreme Court to opine on whether an insured's claim of breach of good faith should be treated as a claim of bad faith. This is important because generally, evidence supporting a bad faith claim is presented only after the jury has assessed the amount of damages under a breach of contract claim to avoid prejudice against the insurer. QBE argued that claims of bad faith and lack of good faith are equivalent in this respect and the trial court erred in allowing the evidence to go before the jury. At oral argument, the Florida justices seemed receptive to the argument that the insured's presentation of the claim as lack of good faith rather than as bad faith "is a distinction without a difference." Some justices also stressed that potential prejudice to the insurer is one of the reasons that bad faith claims should not be brought together with breach of contract claims. We now shall have to wait and see if sympathy at oral argument translates into good law. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Specials thanks to Mendel Simon for his contributions to this post. http://www.law.com/jsp/article.jsp?id=1202445786445&src=EMC-Email&et=edi Previous Next Contact

News Janet's Law Requires AEDs At School (NJ) September 26, 2012 < Back Share to: New Jersey Governor Chris Christie recently signed “Janet ’s Law,” which requires New Jersey public and non-public schools to have an automated external defibrillator (AED), to train school officials and coaches on the use of AEDs, and to establish emergency action plans for responding to sudden cardiac events. The law also requires that the mandated AEDs be maintained in accordance with the previously passed law on AED acquisition and maintenance (section 3 of P.L. 1999, C.34 (C.2A:62A-25)). Janet’s Law will take effect on September 1, 2014 and effects schools that include grades kindergarten through 12. We believe this law sets a new standard for schools, and will lead to additional claims against schools and school districts that are not in compliance with the law. We note that previous versions of the law were more detailed and expansive, and called for AEDs at youth recreational facilities and camps as well as the education of students on various health topics. The new legislation makes clear that the standard for AEDs is now different for youth recreational facilities and camps as opposed to public and non-public schools. Janet’s Law imposes an additional burden on elementary, middle and high schools. However, AEDs are already required in many large places of public accommodation, such as airports and healh clubs, and have been proven to be effective tool in saving lives during sudden cardiac events. Prudent underwriters should inquire in the application process and pre-risk surveys about the presence of AEDs at schools located in New Jersey that they insure. Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Updates in Tort Law Don’t Rid Ford of $6 Million Verdict on Appeal (PA) January 22, 2016 < Back Share to: The Superior Court of Pennsylvania denied a motion for a new trial and/or judgment notwithstanding the verdict filed by Ford Motor Company after a jury award of $5,940,706.86 in Cancelleri v. Ford Motor Co. In August 2010, John Cancelleri was driving south on Pennsylvania Route 307 in his 2005 Mercury Sable. Suddenly, a 2007 Ford Mustang travelling in the opposite direction turned left into his path and crashed into the front left side of his vehicle. During the collision, Cancelleri was wearing his seatbelt, but his airbag failed to deploy, which allowed his head to hit the windshield. Following the accident, Cancelleri was confined to a wheelchair due to a disc herniation and spinal cord compression. The Cancelleris sued, among others, Ford, the company that manufactured the Mercury Sable, on the theories of negligence, strict liability, breach of implied warranty of fitness and/ merchantability, punitive damages and loss of consortium. The jury unanimously found in favor of the Cancilleris on their claims of crashworthiness design defect and loss of consortium. The primary argument that Ford raised on appeal, was that the Pennsylvania Supreme Court’s 2014 decision in Tincher v. Omega Flex, Inc. allowed a more accommodating standard of proof in a determination of whether a product is in defective condition in strict product liability cases. Tincher held that “when a plaintiff proceeds on a theory that implicates a risk-utility calculus, proof of risks and utilities are part of the burden to prove that the harm suffered was due to the defective condition of the product. The credibility of witnesses and testimony offered, the weight of evidence relevant to the risk-utility calculus, and whether a party has met the burden to prove the elements of the strict liability cause of action are issues for the finder of fact.” Tincher v. Omega Flex, Inc., 104 A.3d 328, 407 (Pa. 2014) Ford argued that under Tincher, the trial court should have submitted the question of whether the vehicle was unreasonably dangerous and that the jury should have been asked to consider risk-utility factors in making its determination. The appeals court rejected these arguments because Tincher did not specifically involve a crashworthiness case and was “not intended as a rigid formula to be offered to the jury in all situations.” The Court noted that “in crashworthiness cases, the jury is required to determine whether the vehicle was defective in design as well as whether an alternative safer, and practicable design existed at the time of design that could have been used instead… the jury’s considerations in crashworthiness cases, including the instant matter, already involve[d] proof of risks and utilities regarding whether the harm suffered was due to the defective condition of the product.” Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News GC Not Liable Where Equipment Selected, Supplied and Controlled by Sub (NJ) November 21, 2012 < Back Share to: Construction work exerts competing pressures on its participants. First, there's pressure to get the job completed as soon as reasonably possible; after all, time is money. On the other hand, quality work takes time and no owner or investor wants to accept work that is inferior or shoddy. Finally, safety is a significant concern, not solely because of a genuine concern for the safety of the workers, but also because accidents cause injuries and injuries result in claims, i.e. money. When a work related accident blossoms into a lawsuit, a key question is who had a duty of care to the injured worker? The owner? The general contractor? The subcontractor who employed plaintiff? According to the recent New Jersey Appellate Division decision of Tarabokia v. Structure Tone, the general contractor has no duty of care to the injured employee of a subcontractor under the circumstances of that case. In Tarabokia, the general contractor hired a major electrical subcontractor for an office building construction project. The general contract with the owner required the GC to remain responsible for overall jobsite safety. Consistent with industry practice, the GC hired an electrical subcontractor to perform the electrical work pursuant to a series of purchase orders, none of which made specific provision for an allocation of safety responsibilities. The plaintiff was required to use a specialized powder-activated power tool that drove anchors into concrete or steel. The Sub arranged for its employee to be trained on the proper use of the tool at the job site and required plaintiff to attend weekly safety meetings. Unfortunately, the plaintiff used the tool without wearing special anti-vibration gloves, leading to a serious polyneural compression injury. Plaintiff could not directly sue his employer because of New Jersey's worker compensation bar so his next best target was the GC. Did the GC have a duty of care to the plaintiff to ensure his safety on the jobsite? “No,” according the Tarabokia court. First, there was no contract between the GC and Sub that imposed an obligation on the GC to assume any safety obligations for the Sub’s employees. Second, the GC was unaware of the specific danger posed by the improper use of the highly specialized tool being used by the plaintiff. Third, the GC did not create the condition that caused plaintiff’s injury. Fourth, the danger posed by the tool was not readily apparent to the GC. Last, the Sub assumed control over the manner and means of plaintiff’s work and seemingly understood its obligation to accept overall responsibility for plaintiff’s work. The roles and responsibilities of the multiple parties working at a construction site are not always clear, particularly with respect to worker safety. Tarabokia confirms that the GC on the jobsite is not the presumptive safety supervisor of last resort, particularly for equipment selected, supplied and controlled by a subcontractor . If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com . Previous Next Contact

Pennsylvania Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – Pennsylvania WCM opened its Philadelphia Office in 2007 by WCM Partner Bob Cosgrove. Its attorneys stand ready to assist clients in defense and professional liability matters from Philadelphia to Harrisburg and in coverage matters throughout the Commonwealth. WCM’s Philadelphia office also handles work venued in NJ’s southern counties, like Camden. WCM’s Cyber and Data Breach Litigation Practice Group is also based in Philadelphia. WCM’s Philadelphia office also values working for the common good and its attorneys are active in volunteering for bar organizations and performing pro bono and community service activities. Contact Details 1515 Market St, Suite 2050, Philadelphia, PA 19102 267 239 5526 267 565 1236 Attorneys and Professional Staff Charles N. Frank Associate Laina T. Goldwin Associate Alexandra McShane, Pa.C.P. Litigation Paralegal Nicholas A. Ozorowski Associate Anand P. Tayal Associate Ryan Hunsicker Senior Associate James D. Dudley Associate Christopher Chau Associate Caroline G. Nelson Associate Attorney Jessica Whelan Associate James W. Scott Jr. Partner Robert J. Cosgrove Executive Partner Simone N. Henderson Associate Garrett Bolton Associate Sri L. Balijepalle Associate Jack McGuire Associate Sarah Polacek Senior Associate Hannah M. Garber Associate Jennifer Corbett Kerrick Associate D.J. Dawson Partner Brian T. Noel Partner Jason Laicha Counsel

News Prime Time To Sue Amazon December 23, 2020 < Back Share to: Amazon has traditionally been exempt from various states’ product liability laws by successfully arguing that Amazon is not a “seller” when it comes to products sold by third-parties through Amazon’s website. Previously, a California Appellate Court overturned a lower court and ruled that Amazon.com played a pivotal role in every step of a plaintiff’s purchase of a replacement laptop computer battery on the online shopping website, making it potentially liable for the personal injuries caused when the battery malfunctioned. We blogged about this decision here. We note that Pennsylvania appeared to be well on its way to determining that Amazon was a “seller” in accordance with Pennsylvania strict liability law. Specifically, a panel of the Third Circuit explicitly held that Amazon was a seller and could be held liable for defective products under some scenarios. We blogged about that decision here. Since that decision, the Third Circuit granted en banc review, vacating the panel decision. The Third Circuit certified the question to the Pennsylvania Supreme Court. However, before a decision on the same was reached, the parties settled. Texas has joined the fray. In federal court, Amazon was sued alongside the erstwhile manufacturer of the alleged defective product. The manufacturer was a Chinese company and was unable to be served. At the close of discovery, Amazon moved for summary judgment, arguing that it was not a “seller” of products, it merely provided a marketplace for the sale. The district court determined that Amazon was indeed a seller under Texas law as it was “an integral component in the chain of distribution” and also, at one point, maintained physical possession of the product. Similar to the Pennsylvania case, the Fifth Circuit certified the following question to the Texas Supreme Court: "Under Texas products-liability law, is Amazon a 'seller' of third-party products sold on Amazon’s website when Amazon does not hold title to the product but controls the process of the transaction and delivery through Amazon’s Fulfillment by Amazon program?" This will be an interesting case to watch as Amazon is a dominant and ubiquitous force in the marketplace. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Inconsistent Evidence Not Sufficient For New York’s “Storm in Progress” Rule (NY) March 24, 2023 < Back Share to: New York’s “storm in progress” rule protects a property owner from liability for accidents occurring “as a result of the accumulation of snow and ice 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.” However, the burden and quality of proof is important, and a defendant must be careful to corroborate their argument. Even when a lower court grants summary judgement based on the rule, an appellate court may reverse if the proffered evidence is not sufficient to support it. The Appellate Division, Second Department did just that in Licari v. Brookside Meadows, LLC. In that case, the plaintiff slipped and fell on ice that formed in the cracks of an uneven, broken walkway located in defendants’ apartment complex. Plaintiff claimed that the icy conditions formed and remained as a result of precipitation that occurred days before the accident. The defendants moved to dismiss based on the “storm in progress” rule, relying on deposition testimony from both the plaintiffs and defendants that described the weather at the time of plaintiff’s accident. Although the lower court granted defendant’s motion, the Second Department reversed and found that the standard for the “storm in progress” defense was not met. In so holding, the Second Department found that there were inconsistencies as to whether the storm was actually in progress or whether it had ended by the time of the accident. The Court observed that if the storm had ended several days before the accident, then the defendants would at minimum have constructive notice of the frozen walkway cracks. The defendants failed to resolve the confusion as to whether or not the ice at issue existed prior to the storm and the Court that there were too many factual inconstancies to merit a successful “storm in progress” defense. The Licari case highlights the importance of having clear and consistent evidence in asserting a “storm in progress” defense. The Court made it clear that inconsistent deposition testimony as to the timing of a storm is not sufficient to meet the standard and prevail on a summary judgment motion. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Insurer Benefits from New Jersey Appellate Division’s Reading of Assault and Battery Exclusion (NJ) September 4, 2020 < Back Share to: In Pickett v. Moore’s Lounge, the Appellate Division had to interpret an assault and battery exclusion set forth in a tavern’s CGL insurance policy. A patron of Moore’s had shot and killed Roger Pickett while at the tavern after a verbal fight. The Estate of Pickett filed a seven-count complaint against the tavern, including claims of wrongful death, a violation of a liquor statute, negligent management of employees, negligent hiring, negligent training and negligent retention of tavern employees who allegedly caused the incident. The insurer denied coverage under the assault and battery exclusion. The tavern then settled plaintiff’s claim but sought indemnity from its insurer. The Assault and Battery exclusion provided a justification for the insurer to deny coverage because the injuries sustained by Pickett arose out of any act of assault or battery committed by any person, including any act or omission in connection with the prevention or suppression of such assault or battery. The Appellate Division held that the exclusion was unambiguous and would, therefore, be enforced. The exclusion plainly encompassed negligent acts or omissions that failed to prevent or suppress the assault or battery. This embraced the estate’s general allegation that the tavern negligently failed to exercise reasonable care to assure the tavern was a safe place. This case illustrates the importance of closely scrutinizing the wording of an assault and battery exclusion in a policy, as these exclusions are not one size fits all. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News A Synysta Labor Law Case (NY) June 10, 2021 < Back Share to: Volodmyr Synysta v. 450 Partners LLC, NY Slip Op. 50508(U), 2021 WL 2213821 (Kings County, May 20, 2021) is a Labor Law action. Plaintiff brought Labor Law §§240(1), 241(6), 200, and common law negligence claims against various parties for injuries sustained after falling from a scaffold at a construction site. In the instant motion, Plaintiff sought summary judgment on his §§ 240(1), 241(6) claims against the owner and general contractor of the premises (“defendants”). Plaintiff claims he fell from a Baker’s scaffold after being shocked by an electrical box, which he grabbed onto while painting. His §240(1) claim was supported by testimony that the scaffold did not have any ropes or other devices to tie off the scaffolding, and that the scaffold did not have any safety rails. Plaintiff also claimed that even if there were safety rails, they were not adequate in preventing the fall. Plaintiff’s §241(6) claim was supported by testimony that there were live wires in the workspace, and defendants failed to warn the workers about the live wires. In response, defendants argued, inter alia, that the issue of whether a safety device provided proper protection is a triable issue of fact within the jury’s purview. They argued Plaintiff’s supporting evidence was insufficient to prevail on summary judgment, since he did not submit any evidence or expert report about the adequacy (or deficiency) of the scaffold’s safety measures for the work being performed. The defendants also asserted the scaffold did not fail, and that issues of fact exist about whether the scaffolding had safety rails, and if so, whether Plaintiff used them or failed to adjust them properly. Defendants further maintained there was an issue of fact as to whether Plaintiff was the sole proximate cause of the accident, based on testimony he chose not to use an accessible ladder. Furthermore, defendants asserted Plaintiff did not need to grab the electrical box to perform his painting task. Based on the foregoing, the Court denied Plaintiff’s motion for summary judgment as to both his §§240(1), 241(6) claims. As to the former, the Court noted that, generally, the issue of whether a particular safety device provided proper protection is a question of fact for the jury. A fall from a scaffold does not establish, in and of itself, that proper protection was not provided. Defendants properly raised issues of fact about the existence of safety rails on the scaffolding, including whether safety rails would have prevented Plaintiff's fall. As to the latter, the Court noted that the alleged Industrial Code violations do not unequivocally translate into a granting of summary judgment in every situation. Rather, the Industrial Code violation constitutes some evidence of negligence and “thereby reserve[s], for resolution by a jury, the issue of whether the equipment, operation or conduct at the worksite was reasonable and adequate under the particular circumstances.” Based on a plain reading of this decision, the main takeaway from Synysta is that a Labor Law § 240(1) claim can be defeated at the summary judgment stage when genuine issues of fact exist about the adequacy of the safety measures employed. As to Plaintiff’s § 241(6) claim, however, it is unclear whether the Court properly denied summary judgment. If Plaintiff properly proved violations of the specified Industrial Code provisions, perhaps the Court misinterpreted the guidance in Rizzuto v. L.A. Wenger Contracting Co., 91 N.Y.2d 343 (1998). If so, it would be unsurprising if an appeal followed. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Residential NYC Homeowners No Longer Responsible for Sidewalk Defect Caused by Trees (NY) September 19, 2019 < Back Share to: Earlier this month, New York City announced that one, two and three-family homeowners are exempt from liens for sidewalk damage caused by trees, which are maintained by the Parks Department. There are currently 50,000 violations issued to homeowners under review for sidewalk repair and if it is found the sidewalk damage was caused by a City tree, the violation will be dismissed. This comes on the heels of a June report from the Comptroller’s office which found that it takes approximately a year for the Park Department to repair sidewalk damage caused by City trees and that some homeowners were stuck waiting a decade for a fix. The impact of this announcement on pending negligence lawsuits, in which the residential homeowner and City of NY are both defendants, is currently unclear, but is likely to present significant leverage for homeowners in such a context. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Call Your Next Witness - Angela Levitan of ARCCA Discusses Biomechanical and Human Factors Analysis June 17, 2021 < Back Share to: Generally, I'm amused by the term "human factors" in the context of expert testimony. Doesn't everything involving people necessarily involve human factors? When I was a prosecutor, I was similarly amused by the "Anti-Crime" police unit. As opposed to the "pro crime" unit? Apologies for the Faulkner-esque stream of consciousness rant... In the forensic sense, human factors and biomechanics -- which often overlap to some degree -- are specific terms of art. And they can be critical to assessing liability and damages, respectively, in the accident context. As we discuss in the next episode of Call Your Next Witness, the WCM podcast, these fields are in Angela Levitan's wheelhouse. She is an engineer, bio-mechanist and human factors expert providing analysis, consultation, and where appropriate, testimony to assist litigants at trial. Simply stated, Angela can provide forensic support to the "common sense" arguments that we often consider during the claim investigation, to wit, "there's no way this accident happened the way the plaintiff says." Angela can help confirm or refute our theories early in the game. Angela has provided expert analysis for us on many occasions, and if she cannot help your case for whatever reason, she'll tell you that -- which renders Angela's opinion utterly credible. Our discussion focuses on Angela's general approach, and some of the interesting claims she has handled over the years. We also discuss my theory that Hooper from Jaws is the quintessential expert consultant. Listen to our interview with Angela on Call Your Next Witness! If you'd like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons or Georgia Coats. Previous Next Contact

News Defeat Snatched From Expert Hands of Victory (NY) September 28, 2016 < Back Share to: There are cases where the facts present solid defenses to some or all of the plaintiff’s causes of action. Yet, favorable facts alone will not necessarily win the case. Consultation with the appropriate experts and skillful presentation of evidence is necessary to make those facts work for the defense. This was keenly apparent in Mazella v. Hauser, where the New York Second Department reversed summary judgment for the defendant on a conscious pain and suffering claim. The case arose out of a fatal pedestrian-vehicle accident in which the pedestrian’s estate sought both wrongful death and conscious pain and suffering damages. The medical evidence suggested that plaintiff’s decedent suffered so traumatic a brain injury that there could be no conscious pain and suffering – and the defense won the issue in the lower court. The Second Department, however reversed, finding that the defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law. As the Second Department noted, "An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable." Defendant’s doctor’s letter in support of the motion did not set forth what skill, training, knowledge, or experience the doctor possessed in the relevant areas of medicine so as to ensure the reliability of the opinion regarding the decedent's time of death and whether the decedent suffered conscious pain before her death. Further, the court found that the doctor’s opinion was conclusory and speculative and, thus, of no probative force. The expert’s opinion relied upon "findings" that the decedent had no vital signs when brought to the hospital, that there were open skull fractures showing contused and lacerated brain tissue, and that the hospital certified the cause of death as traumatic cardiac arrest. Based upon these findings, the doctor opined that due to severe brain injury, the decedent did not suffer conscious pain since the brain is the “essential organ that feels the pain.” This was insufficient, in the appellate court’s opinion, to adequately explain how these findings led to the conclusion that the decedent died immediately after the collision and did not suffer conscious pain before her death. It is incumbent upon the lawyer to select the proper expert and demonstrate to the court that the expert is qualified to give a reliable opinion in the respective field. When presenting an expert opinion in support of a summary judgment motion, the opinion should set forth adequate grounds for arriving at the conclusion that the lawyer seeks to have the court adopt in rendering its decision. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact