News Museum Vandalism: A Concern for Art Insurers? August 16, 2011 < Back Share to: Although, unlike with stolen art, there is not a database setting out acts of fine art vandalism, according to the Washington Post, vandalism is a big problem -- especially at museums. The problem is that the viewing public's right or desire to see unprotected works conflicts with the best possible security options available to museums. The conflict is unlikely to go away anytime soon, but should be considered by fine arts underwriters. For more information about this post or WCM's fine arts practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Millions Awarded To Plaintiff for Economic Loss Despite Increased Earnings - NJ November 17, 2011 < Back Share to: A plaintiff whose annual earnings actually increased by hundreds of thousands of dollars after an auto accident was awarded $3.6 million for economic losses. In a strange twist, this award for economic losses followed a summary judgment granted to the public entity defendant barring the plaintiff’s claim for non-economic losses/pain and suffering. The case arose out of an auto accident on a New Jersey State highway. The plaintiff sued the driver who caused the collision as well as the State and its Department of Transportation employee. The trial proceeded against the State and its employee after the plaintiff settled with the defendant driver with a liability finding of 60% on that driver and 40% on the State. The molded verdict resulted in an award against the State of $1.44 million. The plaintiff alleged that he sustained a traumatic brain injury in the accident. However, the Court found that he did not vault the bar of a permanent loss of a substantial bodily function as required by the New Jersey Tort Claim Act for a claim against a pubic entity. Indeed, the evidence showed that he was able to fully function at home and at work. While he claimed that he had some cognitive impairments, the Court expressly found that he was able to function very well in his chosen profession – securities trading. Notwithstanding the fact that he was not able to pursue non-economic damages for his alleged brain injury, the court permitted the case to go forward on the issue of economic damages. The plaintiff had earned over $800,000 the year prior to the accident and over $500,000 in the five months just prior in structured finance. He had resigned from that post just days before the accident to work as a trader in asset-backed securities. In that position, his earnings increased to $1.4 million in the next three years. With increased earnings and no significant injury, the plaintiff was nonetheless able to convince a jury that his earning potential was diminished as a result of his cognitive impairment. Over net opinion objections by the defendant, the plaintiff’s expert testified that worker’s of his age with a professional degree and cognitive impairment earn 6.1% less and retire 7.1 years earlier than their counterparts with no injury. He estimated the plaintiff’s loss at $6.4 million. Despite the fact that this plaintiff’s income was in the top 99% of workers and he was earning more after an injury not significant enough to permit recovery for non-economic losses, the Appellate Division affirmed the award. See Knitowski v. Gundy, http://www.judiciary.state.nj.us/opinions/a5945-09.pdf For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News If an Insured Landlord’s Alleged Faulty Workmanship Causes Damage to a Tenant’s Property, Is It Covered? (PA) August 2, 2019 < Back Share to: Recently, in Pennsylvania-Manufacturers-Indemnity-Company-v.-Pottstown-Industrial-Complex-LP, the Superior Court of Pennsylvania analyzed whether insurer, Pennsylvania Manufacturers Indemnity Company (“PMA”), was permitted as a matter of law to disclaim coverage to its insured, Pottstown Industrial Complex LP (“PIC”), for claims filed against PIC by PIC’s tenant, The Pride Group (“Pride”) (“Underlying Lawsuit”). According to the complaint in the Underlying Lawsuit, on four separate occasions, property, Pride leased from PIC, flooded causing over $700,000 in damages to Pride’s inventory. Pride claimed the water damage occurred because PIC failed to uphold its obligations under the lease to keep the roof in good repair. In the complaint, Pride only alleged a claim for breach of contract – yet, Pride did plead PIC was negligent for failing to properly maintain and repair the Property’s roof. After PMA received notice of the Underlying Lawsuit, PMA agreed to defend PIC subject to a reservation of rights. However, PMA then commenced the instant declaratory judgement action. After the close of pleadings, PMA filed a motion for judgment on the pleadings. Upon review, the trial court agreed with PMA holding PMA was not obligated to defend or indemnify PIC for the Underlying Lawsuit because Pride’s allegations of inadequate roof repairs equated to claims of faulty workmanship; therefore, the trial court held the alleged water damage did not constitute an “occurrence” as defined by the commercial general liability policy. Subsequently, PIC appealed, forcing the Superior Court to analyze whether the policy provided coverage for property damage to Pride’s property caused by faulty workmanship. The Superior Court held a claim of faulty workmanship, on its own, does not constitute an “occurrence”, especially where the only property damaged is, inter alia, “property that the insured supplied or on which it worked”. With this legal foundation in mind, and based on the case’s unique factual pattern, the Superior Court determined that since Pride sought to recover damage to its own property, which was stored at PIC’s property, Pride’s claim constituted an “occurrence.” In doing so, the Superior Court reasoned the property damage sustained by Pride was an accident – i.e., an “unexpected and undesirable event”. Although the Superior Curt noted the Underlying Lawsuit only asserted a breach of contract claim, the Superior Court stressed the factual allegations in the Underlying Lawsuit “determine whether the claims are within the coverage of an insurance policy, not the label of the cause of action selected by the underlying plaintiff.” In sum, the Superior Court’s holding is a reminder that, in the context of determining coverage, it is important to look beyond the labels of the claims and truly evaluate all factual allegations. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Seeing Dollar Signs, A Man Delivers Previously Stolen Warhol Painting To Christie's To Sell February 6, 2008 < Back Share to: After allegedly buying Andy Warhol's 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie's auction house to sell. Christie's checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership. http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin Previous Next Contact

News Coffee Break Bonanza: Jury Award For Spill Reduced By Appellate Division June 11, 2008 < Back Share to: In Griffin v. Starbucks Corporation, the plaintiff was injured when defendant's employee slid a cup of coffee across a counter toward plaintiff, causing it to spill on her left foot and burn it. A trial resulted in a jury award of $50,000 for past pain and suffering and $250,000 for future pain and suffering. After post trial motions, the trial court ordered a new trial unless plaintiff agreed to $150,000 as the award of future pain and suffering. The Appellate Division, First Department found the future pain and suffering award deviated materially from what would be reasonable compensation and ordered a new trial unless plaintiff agreed to an award of $25,000. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05009.htm Previous Next Contact

News If You Win, Leave the Building May 14, 2008 < Back Share to: Penca v. Jeffrey Management recently went to trial in New York County. The jury found that the defendant was liable for the plaintiff's injuries but then awarded zero damages, even though the injuries were thoroughly documented. After the verdict, the plaintiff's lawyer wanted to go into the jury room to talk to the jury and the defendant's lawyer agreed to accompany him. Three jurors left without speaking to the lawyers but three others agreed to talk. They said that they awarded no money because they thought the plaintiff's employer (who was not a party to the lawsuit) was the party really at fault and that the defendants in the case should not be made to pay damages. When the judge got wind of these comments, he called the three jurors into the courtroom, polled them on the record, confirmed the inapproriate reasoning behind their verdict, and ordered a new trial. Lesson for Counsel: When you win, pack your things and leave the building. While it is possible the same thing would have happened here, the jurors might not have been so open with just one of the lawyers in the room. Nothing good can come from talking to the jury after they give you everything they have to give. Previous Next Contact

News Handicap Ramp is not “Special Use” of the Curb December 2, 2016 < Back Share to: Although a landowner is responsible for maintaining sidewalks that abut its property, it is not responsible for curbs or ramps unless there is a defect on the curb/ramp that was created by the landowner or due to the landowner’s special use. In Lebron v. City of New York, the plaintiff fell on the curb cut and handicapped ramp area outside Bronx Lebanon Hospital. The First Department concluded that Bronx Lebanon did not derive a special benefit from the curb cut and handicapped ramp area where plaintiff fell because the area was accessible and used by the general public, and there was no evidence that the curb cut and ramp were installed by Bronx Lebanon or its predecessor. The duty to maintain an area of special use is not dependent on a finding that the landowner actually installed or repaired the area, only that it derived the special benefit. This decision shows the physical limitations of premises liability and can be beneficial in arguing summary judgment motions in cases where an accident occurs on a defect near, but not on, a property owner’s abutting sidewalk. Thanks to Lauren Branchini for her contribution to this post. Previous Next Contact

News NJ Court Permits Deposition of Coverage Counsel and Adjuster in Coverage Case May 5, 2010 < Back Share to: In a coverage dispute between a primary and excess carrier, a motion judge refused to quash a subpoena served upon coverage counsel and the senior litigation specialist of the excess carrier. New Jersey Manufacturers Insurance Company v. National Casualty Company, -- N.J.Super. --, 2010 WL 1706012 (App.Div. 2010). Despite potential privilege issues, the Appellate Division affirmed noting that the order only required counsel and the specialist to appear for depositions. No ruling was made with respect to any specific questions that might be asked. The coverage case emerged from underlying litigation that involved a 1998 automobile accident in which a husband was killed and his wife severely and permanently injured. That case was tried two times ultimately resulting in a verdict of $1.64 million in damages and prejudgment interest of $580,322. The excess carrier sought contribution from the primary carrier for more than its $1 million policy limit on grounds that it acted in bad faith when it failed to settle the claim within its policy limit. In an earlier appeal of summary judgment for the primary carrier, the Appellate Division ruled that there should have been an evidentiary hearing to determine if the primary carrier had acted in good faith. In response, the primary insurer launched into discovery of the excess carrier's conduct relating to settlement negotiations. At issue was whether the primary carrier had a realistic possibility to settle the action or whether the matter could have been resolved with a contribution from the excess carrier. If the excess carrier would not have contributed in the amount required to settle the case, then the primary carrier could show that the settlement could not have been achieved. Thus, the unusual depositions of counsel and litigation specialist were allowed. See New Jersey Manufacturers Insurance Company v. National Casualty Company, http://www.judiciary.state.nj.us/opinions/a0737-09.pdf If you would like more information, contact dricci@wcmlaw.com . Previous Next Contact

News Foreign Country Ruled The Appropriate Forum For Damages Sustained in Dubai (NY) October 25, 2013 < Back Share to: In Boyle v. Starwood Hotels & Resorts Worldwide, Inc., New York’s Appellate Division, Second Department affirmed the granting of defendant’s motion to dismiss the action on the basis of forum nonconveniens. The Appellate Division explained that the doctrine of forum nonconveniens allows a court to stay or dismiss an action when, although there may be jurisdiction, it is determined that there is another forum with closer ties to the case. In Boyle, plaintiffs are residents of the United Kingdom and France. The complaint alleges that plaintiffs contracted a disease during separate stays at defendant’s hotel in Dubai. The sole connection to New York in this case was defendant’s principal place of business. The trial court granted defendant's motion, noting that the action had closer ties to the United Kingdom, France or the United Arab Emirates. The Appellate Division conditioned the order on the the defendant accepting service in any new action and waiving any defenses, including statute of limitations, that were not available when suit was initially filed in New York. Both modifications provided that the new action should be commenced within 30 days after defendant provided plaintiff with a signed stipulation. When filing a motion to dismiss based upon forum nonconveniens in New York, make sure that you are comfortable with the jurisdiction you believe is proper for the case because you will be required to agree to the alternate forum’s jurisdiction should your motion be granted. 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 Don't Admit That! Notice To Admit Cannot Include Ultimate Issue in Case (NY) July 11, 2013 < Back Share to: Parties often utilize a Notice to Admit in anticipation of trial, in order to stipulate to agreed upon issues, thereby saving time, expense and needless disputes prior to and during trial. However, if an issue is not necessarily "agreed upon," then a Notice to Admit is, technically, an inappropriate device. In Ramcharran v. Airport Services New York , LLC, a plaintiff asked the Court to deem, via Notice to Admit, that on the date of loss, "the motor vehicle owned and operated by the defendants was in contact with the plaintiff." Plaintiff served this Notice pre-discovery, and defendants clearly had objections to that unconfirmed admission. After moving for a protective order as per the CPLR, Judge Hart in Queens Supreme Court denied defendant's motion. The Second Department reversed, citing both the inappropriate use of the protective order, and more importantly to attorneys, the defendants' timely objection thereto via CPLR 3103 motion. The lesson here is that the defendant's motion for a protective order was timely - had counsel waited several months to so move, it is unclear when the Second Department would have been as receptive. As an aside, attorneys should always read Notices to Admit carefully, as they may contain one prejudicial admission buried within several innocuous admissions, in an effort to "sneak a fastball past" opposing counsel. While such a tactic could be considered unfair dealing, it's always better to spot such dealing earlier than later. Special thanks to Brian Gibbons for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit September 4, 2024 < Back Share to: At a time when Disney’s legal team is in the news for all the wrong reasons, the House of Mouse has won a victory against a couple who claimed they were improperly removed from the roll of the Mega-Exclusive private Disneyland social club, Club 33. Club 33 is a semi-secret, exclusive club for high-net-worth Disney adults. Located in Disneyland’s New Orleans Square behind an unassuming blue door lies a members-only dining room and lounge where the VIPs mingle and filming is prohibited. Membership in Club 33 is reported to come with a $50,000 initiation fee, along with a more than $15,000 annual fee per person. This is, of course, on top of regular admission to the famously expensive park. Despite this cost, interested parties can wait more 15 years to get accepted into the lofty ranks. Scott and Diana Anderson became members of Club 33 in 2012 after being on the waiting list for nine years. As reported by the LA Times , the couple had made the Club the center of their social life. They brought friends, acquaintances, and business associates. As a couple, they claim to have gone on the Haunted Mansion ride nearly 1,000 times. The couple reportedly spent close to $125,000 annually on Disney outings. It is no surprise then, that when Scott and Diana Anderson were unceremoniously dropped from the ranks in 2017, the couple attempted to rejoin the ranks by any means necessary. This expulsion occurred after Scott was found one night outside California Adventure slurring, having difficulty standing, and smelling of alcohol. This was not this the first time that the couple had run afoul of Club 33. In August 2016, the couple were temporarily suspended when Diana caused a disruption in the Club 33 restaurant, shouting and using profanity. The couple were alerted in writing at that time that “if another infraction of the Club 33 Rules/Guidelines occurs, the Club 33 Membership will be subject to termination.” Accordingly, when Scott was found, apparently intoxicated, their membership was promptly revoked. After Disney refused to allow the couple to rejoin the ranks of Club 33, the couple brought a lawsuit in December 2017 in the Superior Court of Orange County, captioned Carlton Enterprises, Inc. v. Walt Disney Parks & Resorts U.S., Inc. The couple claimed that Scott was not intoxicated, and was instead suffering from the symptoms of a vestibular migraine. This condition can be triggered by red wine – one of the 3 drinks Scott admits to having that day. The couple argued that their expulsion amounted to discrimination for Scott’s medical condition. In their complaint, the couple demanded reimbursement for unused membership time in 2017, along with $231,000 – the equivalent of seven years in the club. Disney responded, and cited the Club 33 Guidelines: “Club 33 Membership is a privilege and not a right; therefore, immediate termination may be deemed as an appropriate step to resolve an issue after review of the matter by Club 33 Administration. There will be no refund of either the initiation fee or annual dues in the event of the termination of Club 33 Membership account.” The Guidelines forbid members of Club 33 from public intoxication in Disney parks. The case made it before a jury last month, where Disney continued to state that the Andersons were expelled in accordance with the Club 33 Guidelines. The jury sided with Disney in the matter, rejecting the claim that the expulsion was improper. After the verdict, Scott spoke with the LA Times. “My wife and I are both dead set that this is an absolute wrong, and we will fight this to the death. There is no way we’re letting this go.” The couple has spent $400,000 on the suit to date, but say that they will appeal the verdict. We understand Mickey could not be reached for comment. Previous Next Emily C. Walpole Emily C. Walpole Of Counsel 332 345 2226 ewalpole@wcmlaw.com Contact

News New Jersey Anti-Discrimination Statute Trumps Private Employment Contract June 23, 2016 < Back Share to: In Rodriguez v. Raymours Furniture Company, Inc., New Jersey’s highest court weighed in the impact of New Jersey’s Law Against Discrimination (LAD) on a party’s freedom to contract. Rodriguez involved a dispute over an employment contract and the limit of time in which a claimant may pursue his or her claim. Following an offer of employment by Raymours, Rodriguez was presented with an employment contract, which included a provision that any grievance regarding Rodriguez’ employment must be brought within six months of the date that the alleged event occurred. Rodriguez signed the contract. Some months later, he was injured on the job. After surgery and physical therapy, Rodrigues returned to work. Two days later, he was terminated, purportedly due to a company-wide reduction. Seven months following his termination, Rodriguez sued his former employer, alleging violation of the LAD, claiming that his termination was discriminatory because less senior employees (perhaps more able-bodied) were not let go. The Supreme Court considered the well-settled legal principle that individuals are free to contract as they choose to determine whether Rodriguez forfeited his right to sue his employer after six months had passed since his termination. However, in this instance, the Court also focused on the intent of the statute that Rodriguez based his claim on, which included a two-year statute of limitations in which to file a claim. The LAD was enacted for the benefit of the public, the Court reasoned, to protect those workers with disabilities. In reviewing the employment contract Rodriguez signed, the Court determined that the provision limiting a claimant to a six-month window in which to pursue litigation against the employer for alleged grievances encompassed by the LAD was against public policy, and therefore unenforceable. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact