News PA Appellate Court Clarifies Insured’s Right to Own Counsel. August 8, 2011 < Back Share to: In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman for false statements made during a local election campaign. Eckman presented the claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a reservation of rights. The ROR noted that intentional acts and punitive damages were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead demanded counsel of its own choosing. When that offer was rejected, Eckman commenced a declaratory judgment action and sought injunctive relief to force Erie to provide Eckman with counsel of Eckman’s choosing. In making its argument, Eckman relied upon admittedly non-binding Pennsylvania case law and suggested that “a conflict of interest is a conflict of interest, exclusive of Pennsylvania case law.” Eckman argued that any attorney selected by an insurer under a reservation of rights, and paid by that insurer, would ipso facto breach his or her obligations to the insured/client. Eckman’s claim was rejected both by the trial court and the Superior Court. In a good result for insurers, the court reasoned that a conflict of interest (such to support the assignment of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with controlling PA precedent and as the court rightfully noted, it is bound to “follow controlling precedent as long as decision has not been overturned by the Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not automatically trigger a right to independent counsel. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Erupting Toilets In Mall Found To Be The Act of God February 15, 2011 < Back Share to: In Abarca v. Clark Shoes, et al., the plaintiff was the manager of a Coach store, located in the Queens Center Mall. In July of 2007, a large storm hit Queens, causing severe flooding within many of the mall's stores. The toilet in the Clark Shoes store, located above the Coach store, erupted, causing severe flooding that leaked down into the Coach store. The plaintiff sustained injuries after slipping on this puddle. The lower court dismissed the claims against the owner of the mall. The Second Department affirmed that decision, finding that the storm was an act of God and that the resulting damage was unforeseeable. Thanks to Georgia G. Stagias for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2011/2011_00992.htm Previous Next Contact

News SDNY: Suit Alleging Christie’s Misidentification of da Vinci Work Time Barred February 12, 2011 < Back Share to: While the art world is riddled with forgeries and stolen works or art, some dealers may also have to be mindful of the reputable auction houses which display their collections. Last week, District Judge John Koetl of the Southern District of New York, dismissed as time barred an action by Jeanne Marchig, and her charitable trust, against Christie’s -- http://www.courthousenews.com/2011/02/02/DaVinci.pdf The suit alleged that Christie's negligently failed to identify her piece of art as a valuable drawing done by Leonardo da Vinci. The relevant facts are as follows. Jeanne Marchig approached the London location of the famed auction house seeking to consign and auction off a drawing she believed was composed by a late-Renaissance Italian painter. Christie’s resident old master drawing’s expert examined the piece and set an estimated value of $12,000-15,000. In January 1998, it ultimately sold at auction for $22,000. More than 11 years later, in July 2009, Marchig was approached by other experts in the art world who believed her previously sold drawing was actually the work of da Vinci, and could be valued as high as $100 million. Marchig brought an action against Christie’s claiming the auction house had been careless and failed to properly investigate her drawing. While both sides engaged experts to determine the authenticity and true origin of the work, Christie’s moved to bar the claims as untimely, alleging the applicable statute of limitations (3 years – negligence, breach of fiduciary duty and 6 years – negligent appraisal) had long since expired. Judge Koetl agreed and dismissed the action as too much time had passed between the appraisal in question and the suit. Special thanks to Chris O'Leary for his contributions to this post. For more information about it, or WCM's fine art practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Selected as Law Firm of the Year by Pennsylvania Defense Institute July 10, 2025 < Back Share to: WCM is honored to announce that it has been selected as the Law Firm of the Year by the Pennsylvania Defense Institute ( https://padefense.org/ ) which is the Pennsylvania affiliate of the Defense Research Institute ( https://www.dri.org ). The award is a credit to the talent, passion and decency of all of the attorneys and staff who work in WCM’s Pennsylvania office. At the PDI’s annual conference at Bedford Springs ( https://lnkd.in/g9aQufm3 ) to present and accept the award are from left to right Ryan Blazure, President of PDI, WCM Partner Jim Scott, WCM Executive Partner Bob Cosgrove, WCM Partner DJ Dawson, WCM Associate Sarah Polacek and WCM Senior Associate Jason Laicha. https://www.linkedin.com/feed/update/urn:li:activity:7349240419337031680 Congratulations to all! Previous Next Robert J. Cosgrove Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Contact

News "Employee Exclusion" Gains Further National Support March 7, 2012 < Back Share to: The "Employee Exclusion" found in many CGL policies has been upheld for some time in New York. Originally, it only applied to losses involving an employee of the named (or additional) insured, and over time the language was modified to extend the exclusion to claims involving anyone working on behalf or retained by the insured. This modified language has also been upheld in New York, and recently, an Illinois federal court has recently followed New York courts in interpreting an Employee Exclusion in favor of the insurer. In Nautilus Ins. Co. v. Jona Enterprises, Inc., the insured, Jona, was a general contractor at a job site. Jona retained a subcontractor which in turn hired the injured worker. The policy contained an Employee Exclusion that bars coverage for injuries to the insured’s employee, defined as “any person . . . hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.” The court followed New York's Appellate Division and ruled that the injured worker was the insured’s employee because he was “contracted for” the insured to work at the job site even though he was not paid by the insured. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com . Previous Next Contact

News Proposal in NY Could Require Business Interruption Coverage for COVID-19 Pandemic April 3, 2020 < Back Share to: A bill proposed in the New York State Legislature might have a far-reaching impact for insurers. On March 27, 2020, the New York State Legislature introduced a bill that would require every policy of insurance insuring against loss or damage to property to include coverage for business interruption during the COVID-19 pandemic. The proposed bill seems to be an attempt to force insurers that provide loss of business coverage to indemnify the insured for COVID-19 related closures and losses. Bill A10226 provides in relevant part: Every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic. The bill indicates that coverage is subject to policy limits, and that it only applies to policies issued to insureds with less than 100 employees. Given the fact that almost every business in New York is impacted by COVID-19, this proposed bill might have an alarming impact for insurers. Thanks to John Lang for contributing to this post. Please email Heather Aquino with any questions. Previous Next Contact

News Don't Insult the System: Second Department Orders New Trial June 29, 2008 < Back Share to: Defense counsel argued that because the plaintiff's husband was collecting disability payments from the NYPD, plaintiff was now trying to "snow" the jury and "max out" the civil justice system. The Second Department held such "inflammatory comments" by counsel required a new trial on damages. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2008/D19135.pdf Previous Next Contact

News NJ Insurer's Bad Faith Failure to Settle Issue for Fact Finder July 29, 2010 < Back Share to: When a jury returns a verdict well in excess of an insured’s policy limit after an insurer refused an offer to settle within the limit, a bad faith claim is not a matter of strict liability. In fact, the determination of whether the insurer acted in bad faith is a fact sensitive question that generally will require a plenary hearing or trial. In Wood v. New Jersey Manufacturers Ins. Co., the plaintiff postal worker alleged cervical and lumbar injuries were caused when she backed into a fence and a dog jumped up on her. She had cervical and lumbar surgeries and contemplated further surgery as the trial approached. A court appointed arbitrator had awarded the plaintiff $600,000 attributing 90% to the insured for a net award against the insured dog owner for $540,000, $40,000 above the policy limit. The defense rejected the arbitrator’s award, and at trial, the jury awarded a total of $2.4 million with an allocation of 51% to the insured (49% to the co-defendant property owner) for a net verdict of $1.4 million. Notably both the claims adjuster and the defense attorney had recommended settlement within the policy limit, but this had been rejected by the insurer’s Major Claims Committee. In an appeal by the insurer of summary judgment on the bad faith claim, the Appellate Division reversed and ordered further proceedings that would address the insurer’s reasonableness in their evaluation of the claim. The court recognized that an insurer could disagree with its counsel and even its adjuster’s evaluation of the case. A full hearing would give the insurer an opportunity to explain why it did so and allow a fact finder to fully assess the credibility and persuasiveness of the witnesses. Thus, an insurer is not expected to be “gifted with the powers of divination or of accurate prophecy,” and it will not automatically be held in bad faith when a jury awards an amount in excess of the policy limit. On the other hand, the insurer will need to be prepared to persuade a fact finder of the reasonableness of its actions. If you have any questions or comments about this post, please email Denise at dricci@wcmlaw.com . See Wood v. New Jersey Manufacturers Ins. Co. at http://www.judiciary.state.nj.us/opinions/a1768-08.pdf Previous Next Contact

News The Perils of Disclaiming Employers’ Liability to an Undefined Role (NY) February 20, 2020 < Back Share to: In Vazquez v. Markel Insurance Company, the District Court for the N.D.N.Y., last week, denied both of the competing motions for summary judgment by the injured plaintiff and defendant insurer, sending to trial the precise factual question of: whether an individual installed a rack for daycare cots in his capacity as a real estate manager, or in his capacity as anything else, e.g., a husband, homeowner, volunteer, or independent contractor. By way of background, plaintiff Vazquez was an employee of the Mother Nurture Day Care, a daycare run by Mercedes Sidor out of the home she shared with her husband, David Sidor. In October 2010, a rack to store cots installed by David dislodged, causing several cots to fall on Vazquez, sending her backwards into a water heater. This resulted in a cervical disc herniation ultimately requiring surgery, and the basis for Vazquez’ sizable damages claim. New York’s Workers Compensation Law undeniably barred Vazquez’ claims as against Mercedes, her employer. But David presented an opportunity to seek coverage from the Sidors’ CGL policy issued by Markel – but was he too subject to the employers liability exclusion? Vazquez sued him in New York Supreme Court arguing that he was not subject to the exclusion. The state court held that the question presented a thorny issue of fact necessitating trial. So, David settled with Vazquez agreeing that he would not contest liability in exchange for Vazquez’ agreement to pursue relief directly from his insurers, only. Which brings us to the current action. What David’s settlement with Vazquez failed to address was the fact that Defendant Markel had already disclaimed coverage to David for the accident – but, Markel had failed to include the injured plaintiff on that disclaimer, as it should have under New York Ins. Law s. 3420. On that basis, Vazquez argued that Markel was estopped from holding that David was not an insured. The N.D.N.Y. held that an insurer may not be estopped from disclaiming coverage where a disclaimer would be unnecessary because the claim does not fall within the coverage terms of the insurance policy. In other words, Markel did not timely disclaim to Vazquez, but it didn’t need to if the policy coverage terms were not triggered, noting “a timely disclaimer is still required when a claim falls within the coverage terms of a policy and is only denied because of an exclusion.” Markel, however, was not yet in the clear. The N.D.N.Y. agreed with the trial court that if David was held to have acted as the real estate manager of the daycare, then the Markel policy would unquestionably be triggered and would cover the more than $1 million in damages assessed by the state court. However, if he acted in any other capacity, then the Workers Compensation Law would bar coverage: “the parties must therefore complete whatever discovery remains to them, and proceed to a bench trial.” This case is an example of the ways in which clear, and oft-tested policy terms can present a morass of pitfalls when presented in the context of unique facts. Thanks to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News New York Court Upholds Forum Selection Clause In Summer Camp Contract August 30, 2010 < Back Share to: In Bernstein v. Wysoki, the parents of a 13-year old boy entered into a contract with a summer camp program, which authorized the camp to make decisions regarding any necessary medical treatment required by their son during his stay at the camp. The contract further included a forum selection clause that chose Wayne County, Pennsylvania as the venue for any disputes that might arise between the parties. During the plaintiff’s stay at the camp, he became ill and was treated by the camp doctor. He was subsequently taken to a nearby hospital in Broome County, New York, where he sustained injuries as a result of a misdiagnosis. The plaintiffs filed their medical malpractice suit in Nassau County, New York, against the camp, the camp doctor and the hospital. The defendants brought a motion to dismiss the complaint, arguing that the forum selection clause was applicable and valid. The Second Department granted the defendants’ motion as it pertained to the camp and the camp doctor. The court reasoned that the forum selection clause applied to all disputes that arose between the parties and the plaintiffs had failed to demonstrate that a trial in Pennsylvania would be so gravely difficult that the plaintiffs would be denied their day in court. However, the court denied the hospital’s motion, finding that there was no indication in the contract that the camp intended to use this particular hospital in emergency cases and, therefore, the hospital lacked a sufficiently close relationship with the camp such that enforcement of the clause would be foreseeable to the plaintiffs. Thanks to Georgia Stagias for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06475.htm Previous Next Contact

News The Building Code applies, but which one? (NY) March 15, 2017 < Back Share to: New York City, like many large metropolitan areas, has maintained a Building Code governing how buildings must be constructed and laid out for well over a century. As with all municipal codes, the Building Code has gone through several iterations over the years, becoming more detailed and expansive as our understanding of what constitutes a safe and habitable building has changed. One difficulty for premises liability practitioners is figuring out which specific Building Code applies to the site of an alleged accident. It is quite common for three buildings standing next to one another to have three different versions of the Building Code apply to each of them, depending on when the building was first built and whether, during subsequent construction or renovation, the Department of Buildings required the building be brought “up to” a newer Code. The First Department’s recent decision in Verderese v 3225 Realty Corp. reminds us that correctly determining the applicable Building Code provision often determines whether a defendant property owner will be liable to an injured plaintiff. In Verderese, plaintiff fell on a set of interior stairs in a residential building. She alleged there were no handrails present, and that this violated the applicable 1916 Building Code. The trial court awarded summary judgment to defendant, and the First Department affirmed. Looking to the 1916 Building Code, the First Department determined that while handrails were required for “interior stairs,” the Code did not define what they were. Looking to the more recent 1968 Building Code for guidance, the First Department held that while “interior stairs” allow egress to the exterior of the building, “access stairs” provide travel between floors in the building. Relying on two photographs of the stairs in question produced by defendant, the First Department ruled that the stairs were “access stairs”—and therefore did not require handrails under the 1916 Building Code—because while the stairs were within the building lobby, they did not provide access to the outside. Based on its analysis, the First Department also rejected plaintiff’s expert report. The court reasoned that because there was no violation of the 1916 Building Code, and because the 2008 Building Code did not apply (the two Codes the expert used to establish his opinion), the expert could not rely on either to say that the lack of handrails violated accepted engineering practices. Verderese serves as a reminder to all premises liability practitioners to examine plaintiff’s bill of particulars and expert reports for alleged Building Code violations, and then determine whether the alleged violations applied to the building in question. If plaintiff’s claim for liability is predicated on an inapplicable Code, summary judgment remains viable. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at mailto:dricci@wcmlaw.com   Previous Next Contact

News Give Me Shelter August 16, 2024 < Back Share to: After his wife died from an allergic reaction to food served at a Disney restaurant in Orlando, Florida, plaintiff brought a wrongful death suit in the Florida circuit court. Disney, pointing to an arbitration clause agreed to by plaintiff when signing up for the Disney+ streaming service several years earlier, asked the court to dismiss the lawsuit and compel arbitration. Disney’s motion is set for hearing on October 2, 2024. For more, see: www.npr.org Disney wants a wrongful death lawsuit thrown out because the plaintiff had Disney+ Jeffrey Piccolo's wife died of an allergic reaction after eating at a Disney World restaurant. Disney says his claims must be arbitrated out of court based on the terms of his years-old Disney+ trial. Postscript: Disney opted to withdraw its arbitration clause argument shortly after our initial post: https://www.cnn.com/2024/08/19/business/disney-arbitration-wrongful-death-lawsuit-intl-hnk/index.html Previous Next Chip M-P George Chip M-P George Of Counsel +1 786 636 1541 cgeorge@wcmlaw.com Contact