News Supreme Court Rejects Narrowing Of Employer Immunity From Tort Liability, Under the Workers’ Compensation Act (PA) June 2, 2023 < Back Share to: In the recent case of Franczyk v. Home Depot Inc., the Supreme Court of Pennsylvania found that when relief in the form of workers’ compensation is available for a workplace injury, the exclusivity provision of Pennsylvania’s Workers’ Compensation Act (“WCA”), bars employees from also seeking tort relief against their employer. Plaintiff-Franczyk suffered a dog bite, from a customer’s dog, while working at Home Depot. Franczyk was instructed by her employer not to have any further interaction with the offending customer on the day of the incident. She was ultimately diagnosed with injuries requiring surgery and claimed and received workers’ compensation under the WCA. Franczyk filed suit against Home Depot, alleging that by preventing her from investigating and receiving necessary contact information from the customer, the store “denied her the opportunity to file a third-party suit against the dog owner.” Home Depot moved for Summary Judgment on the grounds that they were immune from liability under the exclusivity provision of the WCA. This provision states: 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party (a) The liability of an employer under this act shall be exclusive and in place of any and all other liability to such employes [sic] ... entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108. (b) In the event injury or death to an employe is caused by a third party, then such employe ... may bring [her] action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. The trial court denied summary judgment. It reasoned that an employer cannot utilize the statutory protections of § 481, when its alleged negligence prevented an employee from learning identifying information about the theoretical third-party whom the statute envisions employees will sue instead of their employers. Significantly, the trial court made no reference to any specific duty owed by employers, that could give rise to the type of negligence claim asserted against Home Depot in the present matter. The Superior Court affirmed the Trial court’s decision. The Supreme Court rejected the lower courts’ finding. It reasoned that § 481 is the product of public policy compromise wherein “the employer assumes liability without fault for a work-related injury but is relieved of the possibility of a larger damages verdict in a common[-]law action. The employee benefits from the expeditious payment of compensation but forgoes recovery of some elements of damages.” In light of this public-policy context, the court determined that even intentional acts by an employer, are insufficient to pierce the employer-liability protections of § 481. While the Court acknowledged the existence of a select few carve-outs to the Act, it ultimately determined that “the WCA has anticipated and foreclosed virtually any sort of negligence claim against an employer ‘on account of” a physical injury that occurs in the workplace.” The Court reversed and remanded the lower court’s decision and granted Summary Judgment to Home Depot. Franczyk is a win for defendant-employers and their insurers as it limits the risk of duplicative liability for employers by correctly accounting for the public policy compromise set forth in § 481 of the WCA. Thanks to Stephen Kerstein for his contribution to this article. Should you have any questions, contact Tom Bracken. Previous Next Contact

News Never Underestimate the Requirement of Factual Averments in Pleadings (PA) June 6, 2019 < Back Share to: Under Pennsylvania law, “[t]he limits of coverages available [for uninsured and UIM benefits] for an insured shall be the sum of the limits for each motor vehicle as to which the injured person is an insured.” 75 Pa. Cons. Stat. § 1738(a). In other words, “stacking” provides insureds with the ability to add coverages available from different vehicles and/or policies to provide a greater amount of coverage. Nevertheless, a named insured “may waive coverage providing stacking of uninsured or underinsured coverages in which case the limits of coverage available under the policy for an insured shall be the stated limits for the motor vehicle as to which the injured person is an insured.” 75 Cons. Stat. § 1738(b). In Pommells v. State Farm Ins., the Court examined the factual averments in the complaint in determining whether to grant State Farm’s motion to dismiss. In July 2012, Latrisse Pommells (“Pommells”) signed a Pennsylvania Stacked Underinsured Coverage Limits (Acknowledgement of Coverage Rejection) (“Waiver”). The declarations page of the automobile insurance policy she obtained from State Farm listed three insured vehicles: (1) a 2013 Nissan; (2) a 2007 Nissan; and (3) a 2010 Dodge. In addition, the declarations page provided each vehicle included underinsured motorist coverage (“UIM”) coverage in the amount of $25,000 per person. The coverage dispute arose when Pommells sustained bodily injury while driving an insured vehicle. After settling her third-party tort claim for $23,000 (out of the available $25,000 in coverage) from the tortfeasor’s insurance carrier, she submitted a claim for underinsured motorist (“UIM”) benefits under her State Farm policy. When State Farm denied her claim, Pommells commenced the instant action against State Farm, asserting, inter alia, claims of breach of contract, Pennsylvania statutory bad faith, and common law bad faith. State Farm subsequently filed a motion to dismiss. In regard to the breach of contract claim, State Farm argued Pommells’ maximum amount of recovery was $25,000, as Pommells allegedly rejected stacking for the three vehicles when she signed the Waiver in July 2012. According to Pommells’ reply brief to State Farm’s motion to dismiss, however, Pommells allegedly added the 2013 Nissan to the policy after she executed the Waiver. Although State Farm acknowledged it would have been required to obtain a new Waiver from Pommells if a new vehicle was added to the policy after Pommells executed the Waiver, State Farm argued Pommells did not truly “add” a third vehicle to the policy; instead, State Farm asserted Pommells merely substituted one vehicle for another. After considering the foregoing, the Court turned to the Federal Rules of Civil Procedure – noting the determination of whether Pommells added or substituted a vehicle on the policy was irrelevant. Specifically, the Court held Pommells failed to include facts related to the procurement of coverage for her 2013 Nissan – an integral requirement to sustain her cause of action. Accordingly, the Court found no basis to conclude Pommells was entitled to UIM benefits above $25,000. Notwithstanding the deficiencies in her complaint, however, the Court granted State Farm’s motion to dismiss without prejudice – thereby, permitting Pommells to amend her complaint to include factual allegations to establish a claim for damages above $25,000. In addition, State Farm moved to dismiss Pommells’ claim for statutory bad faith, arguing the claim was insufficiently pled. The Court highlighted State Farm’s and Pommells’ respective arguments, which both centered on the question of whether Pommells did in fact “add” the 2013 Nissan to her policy with State Farm. Yet, like her breach of contract claim, the Court determined Pommells’ complaint only contained conclusory allegations in support of her claim for statutory bad faith as she failed to plead any factual allegations in support of her claim. While the Court did not dismiss Pommells’ complaint in its entirety, as the Court left open the ability for Pommells to file an amended complaint, this ruling illuminates the weight given to the averments in a complaint, and how, in the context of UM/UIM coverage disputes, attention to detail is pertinent for a plaintiff to survive a motion to dismiss. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News WCM Obtains Summary Judgment in Brooklyn, NY Premises Liability Case. December 5, 2012 < Back Share to: New York, NY Counsel Cheryl Fuchs was awarded summary judgment in a Kings County, NY premises liability case. In the case of Davis v. Linden Plaza, Preservation, LP, the plaintiff allegedly tripped and fell over “construction debris” in a parking lot on November 30, 2008. We represented Everest Scaffolding, a contractor that erected a sidewalk bridge at the site in September 2008, and removed it in October 2008, a month prior to the plaintiff’s accident. We took an aggressive approach, especially for Kings County, and moved for summary judgment pre-depositions. In support of our motion, we submitted our client’s work records and an affidavit from our client confirming the dates of work and the fact that once Everest removed the bridge it took all of its materials with it. Both plaintiff and the co-defendant property owner opposed our motion on the basis that it was premature without depositions. They did not, however, present an affidavit or any other evidence that would indicate that the “construction debris” belonged to Everest. As such, the court granted our motion and dismissed the case. Previous Next Contact

News Another Win for the Wages of an Illegal Immigrant November 18, 2008 < Back Share to: In yet another ruling on the wage claim of an illegal immigrant who used a fake social security card to get hired, a New York appellate court has ruled in favor of the claimant. In Coque v. Wildflower Estates Developers, the plaintiff wrongly submitted a fake social security card to gain employment, but his wrong was offset by the employer's wrong in failing to follow the law and verifying his bona fides. The plaintiff was injured at work in a gravity-related accident, which triggered liability under Labor Law section 240. The Second Department court ruled that "an employer should not be rewarded for its failure to comply with federal immigration law by being relieved of liability for its failure to provide a safe workplace." Moreover, said the court, where an employer is complicit in the hiring of an illegal alien, allowing that employer to avoid paying a wage claim would only encourage further illegal hiring by the employer. Previous Next Contact

News Historian Accused of Theft Plot Allowed to Sell his Warhol October 20, 2011 < Back Share to: Barry Landau is one of the most prominent collectors of American historical documents and presidential memorabilia, accumulating more than 10,000 items over the years. But last month, Landau and an associate were arrested and accused of stealing many of those documents from historical societies, libraries, and universities across the United States. Recently, the market for rare American documents has been booming. Last year, Sotheby's sold a copy of the Emancipation Proclamation signed by President Lincoln and once owned by Robert F. Kennedy for nearly $3.8 million, and in 2009, Christie’s sold a 1864 victory speech hand-written by President Lincoln for more than $3.4 million. According to Sotheby’s, the overall auction market for rare American historical documents totals $30 million to $50 million annually. The story recently took another interesting twist, as Landau, strapped for cash, needed to apply for permission from the court to sell an Andy Warhol print of Elizabeth Taylor and other collectibles to pay for his living expenses. In order to guard against the potential sale of stolen goods or evidence, one of the terms of Landau’s bail agreement is that he seeks court permission before selling or disposing of any assets. Last week, Judge Catherine Blake granted his application. Landau has pleaded not guilty to the charges, but there is speculation he may change his plea at an upcoming hearing. If you would like more information, please write to Mike Bono at mbono@wcmlaw.com Previous Next Contact

News City of Philadelphia Responsible For Parking Lot Snow Removal (PA) June 23, 2017 < Back Share to: In Stuski v. Philadelphia Authority for Industry Development, the plaintiff worked for the City of Philadelphia police department’s traffic division, which leased offices in the Navy Yard in Philadelphia. The traffic division also leased an adjacent fenced parking lot for the exclusive use of traffic division employees. The property was owned by PAID and managed by CBRE. On the morning of the accident, the plaintiff parked in the leased parking lot, stepped out of his car after arriving for work, and slipped and fell on snow or ice. The defendants moved for summary judgment, and argued that they did not owe the plaintiff a duty of care due to the language of the lease. The lease between PAID and the City of Philadelphia provided that it was the City's responsibility, as tenant, to remove snow and ice from the parking lot leased for the traffic division’s exclusive use. Based on this language, the trial court granted the motion for summary judgment. On appeal, the City argued that PAID and CBRE owed the plaintiff a duty of care. The Court noted that witnesses testified that although there was a sign in the parking lot instructing to call CBRE for snow and ice removal -- and it was the City of Philadelphia’s administrative policy to call CBRE for snow and ice removal -- the City of Philadelphia always ended up performing the snow and ice removal for the parking lot itself. In affirming the trial court’s granting of summary judgment, the Court held that a landlord generally has responsibility for snow and ice removal for premises leased to multiple tenants. However, where a tenant has exclusive possession and control over leased premises, the responsibility for snow and ice removal falls on the tenant. As such, the Court found that in addition to the language of the lease and the City of Philadelphia’s course of conduct in removing snow and ice, the City of Philadelphia had exclusive possession and control over the parking lot. Therefore, summary judgment was affirmed. Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News The City is Not Liable Where there is no "Special Relationship" April 1, 2009 < Back Share to: In McClean v. City of New York, a 3 month old baby sustained traumatic brain injuries while at the First Steps Family Day Care Center in 2000. The infant's mother sued the City arguing that complaints made in 1997 and 1998 against First Steps by the City's Adminsitraion for Children's Services should have prevented the City's Department of Health from relicensing the center in 1999. The City moved for summary judgment arguing that the City could not be liable for the negligent performance of a governmental function. The New York Supreme Court denied the City's motion and the First Department affirmed holding that issues of fact existed about the City's and State's obligations to McLean and her daughter . The Court of Appeals, however, reversed, holding that a government agency "is not liable for the negligent performance of a governmental function unless there existed a special duty to the injured person, in contrast to a general duty owed to the public." Thanks to Cheryl Fuchs for her contribution to this post. http://www.nycourts.gov/ctapps/decisions/2009/mar09/46opn09.pdf Previous Next Contact

News "Arising Out Of" and "Caused By": Different Meanings in AI Endorsements? Apparently Not. January 27, 2012 < Back Share to: In W&W Glass Systems v. Admiral Ins. Co., the plaintiff sought a judgment declaring that it was an additional insured under its subcontractor's insurance policy after an employee of the subcontractor was injured during the course of his employment. The policy provided that plaintiff was covered "only with respect to liability caused by [the subcontractor's] ongoing operations performed for that insured [i.e. plaintiff]." The defendant argued that the additional insured provision was not triggered because the injured employee's accident was not "caused by" the subcontractor's operations -- that the language "caused by" means that there must be a finding of negligence. The First Department rejected this argument, finding that the language "caused by" does not materially differ with the language "arising out of," and that language does not require a showing of negligence. Since the injured employee was working for the subcontractor at the time of the accident, the defendant's duty to defend was triggered. http://www.nycourts.gov/reporter/3dseries/2012/2012_00307.htm Thanks to Gabe Darwick for his contribution to this post. Previous Next Contact

News WCM Philadelphia Partner Appointed to Vice-Chair of DRI Subcommittee October 29, 2020 < Back Share to: WCM is pleased to announce Partner Colleen Hayes was recently appointed Vice-Chair for the Women In The Law Committee for the DRI’s Young Lawyers Steering Committee. The selection process draws from a national pool of applicants from all practice areas within the defense bar. Colleen has previously served on the DRI’s Young Lawyers Steering Committee as Chair and Vice-Chair for the Social Media Committee. Colleen is also currently serving as the Secretary of the Philadelphia Association of Defense Counsel, one of the DRI’s State and Local Defense Organizations. Previous Next Contact

News Time is Not On Your Side: US Southern District of New York Dismisses Insurance Class Action Suit Against Insurers On Statute Of Limitations Grounds August 27, 2021 < Back Share to: Plaintiff insureds brought a putative class action suit for violations of New York General Business Law (GBL), fraud, and breach of contract claims. Plaintiffs allege that in 2000 defendant sold accident disability and medical expense insurance products in violation of New York Insurance Law in that they were on not approved, that the insurance provided illusory coverage, and that the marketing included unlawful deceptive acts in violation of New York General Business Law. Defendants moved to dismiss the plaintiff's claims as time-barred because any and all of the alleged misrepresentations and omissions were at the time plaintiff first received coverage in the year 2000, and that suit brought in 2016 was untimely. The policyholders argued the “continuing wrong” doctrine applied which would toll the limitation period up to the date of the commission of the last wrongful act and that the insurer's had a continuing ongoing obligation that continued past the GBL or CPLR statute limitations date. The court rejected the policyholders’ argument that each time they paid continuing premiums, there were separate and distinct wrongs. Rather the Court found that after plaintiffs first purchased the policies in 2000, this was the only alleged false and misleading advertising. The insurers took no action beyond continuing the coverage. The court held because the alleged deceptive false advertising took place when the policies were sold and because plaintiffs have not alleged they suffered injury by virtue of false and misleading advertising thereafter, the “continuing wrong” doctrine did not apply. The court also found the “equitable tolling” argument equally distinguishable because the plaintiff was on notice of the potential wrongdoing and took no steps to investigate further. Here plaintiffs became aware the policies may have violated the law by 2005 and undertook no investigation to elicit the equitable tolling doctrine applicability. Thus, all of the plaintiff's claims were deemed time-barred and the policyholders’ putative class action was dismissed. If you have any questions, please contact Tom Bracken. Previous Next Contact

News Just in Time for Winter, a Pennsylvania Court Applies the Hills and Ridges Doctrine. December 7, 2012 < Back Share to: In Koeppel v. PNC Bank, et al., a Pennsylvania, Monroe County, trial court was confronted with the applicability of the hills and ridges doctrine. In Koeppel, the plaintiff, Karen Koeppel, filed a lawsuit against PNC Bank and Bell Snow Removal LLC. Plaintiff alleged she slipped on ice on PNC Bank's parking lot. The defendants moved for summary judgment on the basis of the hills and ridges doctrine. The court initially stated that the hills and ridges doctrine protects an owner of land from liability for generally slippery conditions as long as the owner has not permitted ice and snow to unreasonably accumulate on the property. Further, the court noted that accumulation must be the result of an entirely natural occurrence for the doctrine to apply. Here, there was no dispute that at the time of the plaintiff's fall there were generalized icy conditions. The plaintiff, however, contended that the doctrine did not apply because the accumulation, that was the cause of her fall, was not natural. She argued the accumulation was actually the result of the defendants' snow removal efforts. The court determined that since the plaintiff failed to put forth any evidence to show that the defendants' snow removal efforts led to the slippery condition that caused her fall, the hills and ridges doctrine would apply. Thus, the defendants' summary judgment motion was granted and the plaintiff's complaint was dismissed.     Previous Next Contact

News Unless Explicitly Stated Otherwise, Reinsurer’s Policy Limit Does Not Cap Defense Cost (PA) August 20, 2018 < Back Share to: In October of 2017, the Superior Court of Pennsylvania upheld a Philadelphia trial judge’s ruling that OneBeacon Insurance, the reinsurer, was on the hook for defense expenses incurred by its reinsured above and beyond the limit established in the “Reinsurance Accepted” section of its facultative certificates. The case was in regards to an asbestos-related claim against Century Indemnity and Pacific Employers Insurance Co(“PEIC”). OneBeacon was the reinsurer and paid $11 million pursuant to the reinsurance policy limit stated in the certificates. OneBeacon argued that it should not be liable for defense expenses beyond that amount, but the trial court disagreed and, after a nonjury trial, awarded Century about $4.8 million plus prejudgment interest, and PEIC $2.4 million plus prejudgment interest. The Court stated that OneBeacon’s policy did not make clear that the “Reinsurance Accepted” amount in the certificates included defense costs. OneBeacon argued on appeal that the terms and conditions of the certificate follow that of the underlying policy “except as otherwise specifically provided herein” and that because the language does not explicitly state otherwise, the “Reinsurance Accepted” cap must include both losses and defense expenses. The company also argued that because the “Reinsurance Accepted” is set at a specific amount, the reinsurance certificate follows the terms and conditions of the underlying policy only up to that amount. But the Court ruled that, “viewing the certificate as a whole, we do not find the language unambiguously limits OneBeacon’s entire liability for losses and expenses to the ‘Reinsurance Accepted’ amount.” “A reasonable interpretation of the certificate’s reference to OneBeacon’s ‘liability … specified in Section IV’ is that it refers only to liability for losses,” Francisco said. “This is particularly true in light of General Condition (3), which requires the reinsurer to pay its proportion of losses, ‘and in addition thereto’ its proportion of expenses. Similarly, the ‘except as otherwise provided herein’ language is also ambiguous because the certificate does not explicitly state that expenses are included in (or ‘subject to’) the ‘Reinsurance Accepted’ limit. Pursuant to this reasoning, if the certificate follows the underlying policy, expenses must be reimbursed in addition to the policy limits.” The Superior Court rejected OneBeacon’s attempt to analogize its case with Bellefonte Reinsurance v. Aetna Casualty & Surety, a 1990 case in which the U.S. Court of Appeals for the Second Circuit rejected Aetna’s argument that the “follow the fortunes” doctrine required reinsurers to pay for all of a reinsured’s expenses and costs even if they exceed the “Reinsurance Accepted” amount listed on the certificate. The Bellefonte court focused on the language in the certificates that stated Bellefonte’s obligation to reinsure Aetna “subject to the terms, conditions and amount of liability set forth herein.” But the Court rules that OneBeacon’s reinsurance certificates stated only that the reinsurance was “subject to the general conditions set forth on the reverse side.” It does not expressly provide that all of the coverage is subject to the ‘Reinsurance Accepted’ limit. The Court also noted that Century/PEIC’s underlying policies provide for the payment of expenses beyond the limits. “Therefore, because the reinsurance certificate ‘follows’ that of the underlying policy, it would cover expenses above the liability limit,” “This is factually different from the situation in Bellefonte, where the defense costs were paid as part of the reinsured’s settlement agreement with the underlying insured—an agreement to which the reinsurer was not a party.” Thanks to Jonathan Avolio for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact