Wade Clark Mulcahy LLP

News Late Notice (Without Prejudice) Lives In Many Pollution Cases August 21, 2013 < Back Share to: When the New York State legislature abolished the no-prejudice rule in 2009, it greatly increased the burden on insurers to establish prejudice as an element of the late notice defense. But a recent decision in the Supreme Court, New York County, serves as an important reminder to insurers that, in pollution cases, New York’s no-prejudice rule often still applies when the insured gives late notice. For policies issued before January 17, 2009, a failure to satisfy the notice requirement of an insurance policy vitiates the policy, and the insurer is not required to demonstrate that they were prejudiced by the late notice. Whether late notice was provided to an insurer is of particular relevance in pollution cases, because claimants often commence lawsuits with actual or constructive knowledge of the problem. In Travelers Indemnity v. Orange and Rockland Utilities, Index No. 603601/02, the insured sought coverage for the investigation and remediation of pollution and contaminates at gas plants owned or previously owned by the insured from 1852 through 1965. Travelers or its predecessors afforded coverage to the insured under policies issued between 1955 through 1978. The Travelers policies required that notice be provided “as soon as practicable.” Although the insured was aware of its potential liability as far back as 1981, it did not provide notice to Travelers until 1995. Justice Eileen Bransten -- applying the no-prejudice rule -- held that notice is a condition precedent to coverage, and therefore Travelers properly disclaimed coverage based on receiving late notice of the underlying pollution and contamination. The breach of the condition vitiated coverage, relieving Travelers of any duty to defend the insured. As such, in pollution cases, an insurer should always consider whether late notice is a viable defense to coverage, and, if so, immediately disclaim coverage. http://www.courts.state.ny.us/Reporter/pdfs/2013/2013_31585.pdf Previous Next Contact

News Pennsylvania Court Rules On The Effectiveness of An Insurer’s Cancellation of a Policy June 14, 2016 < Back Share to: In Philadelphia Showcase Lounge, LLC, et al. v. Landmark American Ins. Co., et al., the Pennsylvania Superior Court was asked to analyze the effectiveness of a cancellation of an insurance policy. Landmark American Ins. Co. insured Philadelphia Showcase Lounge, LLC, which operated a bar/restaurant. The Policy was in effect from December 24, 2011 to December 24, 2012, at 12:01 a.m. On November 28, 2012, Landmark sent a renewal quotation at the same price and on the same terms to Showcase. Showcase made no effort to renew the Policy. Rather, Showcase looked to secure quotes from other insurance companies in December 2012. On December 24, 2012, at approximately 1:00 p.m. there was a fire at the Property. Following the loss, on December 24, 2012 at 7:21 a.m., Showcase attempted to bind coverage with Landmark. However, Showcase was informed that the Policy expired at 12:01 a.m. on December 24, 2012. Showcase attempted to seek coverage under the Policy for the loss by commencing a lawsuit. Eventually, all parties moved for summary judgment. Showcase argued that since Landmark never sent a notice of midterm cancellation or nonrenewal pursuant to Pennsylvania statute 40 P.S. Section 3403, the Policy remained in effect. Conversely, Landmark argued Showcase was not entitled to protection under Section 3403 and, thus, the Policy was properly cancelled. The trial court agreed with Landmark. On appeal, Showcase argued the lower court erred in failing to apply the protections of Section 3403. Section 3403 requires insurers to provide written notice to insureds 60 days in advance of “midterm cancellations or nonrenewals”. In analyzing the validity of Showcase’s appeal, the Superior Court ultimately concluded Section 3403 was not applicable. The Court reasoned that the Policy was in effect from December 24, 2011 to December 24, 2012, 12:01 a.m. At no time during the Policy period did Landmark terminate the Policy. Also, Landmark did not provide notice to Showcase that it intended to non-renew the Policy. Conversely, Landmark sought to renew the Policy by sending a renewal quotation. However, Showcase opted not to accept the renewal offer. Thus, the Court concluded, since Section 3403 does not prescribe a responsibility onto insurers to send out a nonrenewal notice if the insured fails to respond to or reject the insurer’s prior renewal offer, Section 3403 was not applicable under the circumstances. Additionally, the Policy’s Cancellation Endorsement also did not require such action. Therefore, since Landmark was not in violation of any applicable statute and had cancelled the Policy in accordance with the Policy’s terms, the Policy was not in effect at the time of the fire. This case illustrates the importance of ensuring that policy cancellations not only comply with the language of the applicable policy but also any relevant statutes – as statutory noncompliance could result in coverage, notwithstanding an insurer’s intent to cancel. Thanks to Colleen Hayes for her contribution to this post.         Previous Next Contact

News Happy Holidays from Your Friends at Wade Clark Mulcahy! December 22, 2021 < Back Share to: 2021 has presented us all with new challenges. Some anticipated, and some, well, of the Omicron variety. WCM continues to grow, in large part due to the loyalty and collaboration of our friends and clients in the United States and abroad. Please accept our Holiday E-Card, offering our gratitude and best wishes for a better 2022. A Happy and Healthy Holiday Season to all! Previous Next Contact

News NY Appellate Court Refuses To Deny Summary Judgment On Lengthy Delay Of Notice In Insurance Case May 5, 2023 < Back Share to: The Supreme Court of New York, Appellate Division, First Department, recently denied opposing motions for summary judgment in a coverage declaratory judgment action, holding that despite a several-year delay in providing notice, there existed issues of fact as to whether the plaintiffs gave notice as soon as reasonably proper under the circumstances. The action involves plaintiffs National Interstate Insurance Company (“National”) and New York Crane & Equipment Corporation (“NY Crane”) National Interstate v. Interstate Indemnity, who sought an order declaring that NY Crane is entitled to defense and indemnification in an underlying action from defendant Interstate Indemnity Company (“Interstate”), who insured 1690 Broadway Concrete Corp. (“Broadway”). Interstate had disclaimed coverage to NY Crane on the basis that NY Crane had failed to provide timely notice. In this appellate action, the First Department held that the trial court had properly denied both motions for summary judgment. The First Department reiterated the standard that where an insurance policy requires that the insured provide notice as soon as practicable, that notice must be provided within a reasonable time under the circumstances of the case. Although the First Department categorized the several-year delay in this action as “lengthy,” it noted that the record raised issues of fact as to when the plaintiffs, with due diligence, should have known that Interstate was Broadway’s insurer. The First Department also held that there were issues of fact as to whether the plaintiffs gave notice to Interstate as soon as reasonably practicable under the specific circumstances of the case. This decision is problematic for insurers because it shows that even a several-year delay in providing notice to an insurer can be considered “reasonable” depending on the circumstances of the case. This opens insurers up to potentially lengthy discovery and litigation regarding the specific circumstances of notice in cases where it may appear clear that the delay was unreasonably long. Further, it lengthens the tail of claims. Thanks to Erin Gallagher for her assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Jurors with Laptops? December 2, 2010 < Back Share to: In a recently published decision, NY Supreme Court Justice Donna Mills refused to overturn a jury verdict based on a claim of juror misconduct. Unhappy with an adverse verdict, defense counsel claimed that certain jurors, who were seen by all to have “open laptops” during the trial, must have learned, via the internet, of defendant’s unsavory past, thus explaining the adverse verdict. Justice Mills rejected the argument because defense counsel had neither requested a limiting jury instruction nor objected to the lack of instructions regarding the internet’s use to investigate facts not in evidence. Moreover, beyond producing copies of the adverse publicity, defense counsel offered no proof that any jurors had in fact viewed the toxic information. As insurance defense lawyers, we mainly represent clients who live and work beneath the radar. But from time to time, we represent insureds who have well-documented and often very unflattering internet histories. Justice Mills’s decision reminds us to be ever vigilant in determining what, if any, “presence” our clients have on the net and, if so, to take adequate precautions if the matter proceeds to trial. But bear in mind, no matter how stern the trial court’s warnings, there is really nothing to prevent a curious juror from surfing the web at night. If you would like more information about this post, please contact Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News During An Appeal Of A $50 Million Verdict, Appellant and Judge Break Bread In Monte Carlo January 15, 2008 < Back Share to: In 2006, a West Virginia jury awarded a $50 million verdict against Massey Energy companies for driving rival companies out of business by fraudulent means. With appeals pending, Massey Chief Executive Don L. Blankenship and West Virginia Supreme Court Justice Elliott E. Maynard, had several meals together while vacationing separately in Europe. In 2007, Justice Maynard cast the deciding vote to overturn the jury verdict against Massey. Plaintiffs have filed a motion seeking Justice Maynard to disqualify himself and to withdraw his vote in favor of Massey. http://www.nytimes.com/2008/01/15/us/15court.html Previous Next Contact

News PA’s Appellate Division: “Household” Is Ambiguous as a Matter of Insurance Contract Interpretation. June 18, 2012 < Back Share to: In the case of Miller, et al. v. Daniel Poole, et al., Pennsylvania’s Superior Court was faced with the question of whether a homeowner’s policy provided coverage to Poole, a young man who accidentally set his grandmother’s house on fire and thereby damaged the neighbor’s (i.e. Miller’s) house. The homeowner’s carrier argued (and the trial court agreed) that no coverage was owed because Poole did not move into his grandmother’s house until after her death. Thus the carrier argued that Poole was not a “resident” of the grandmother’s “household” for purposes of coverage. The Appellate Division has now reversed the trial court. Relying on case law from other jurisdictions, the Appellate Division held that the phrase “household” was ambiguous as: “It plausibly could mean either that Helen Poole’s relatives qualified as “insureds” (1) if they lived in the same house with her, or (2) if they lived on the premises insured by her under the Wall Rose policy.” Wall Rose is now required to defend and indemnity Poole. Who would have thought that the word “household” was ambiguous? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Call Your Next Witness - Brian & Georgia Discuss the Courts and new Associates Starting their Careers this Fall September 1, 2021 < Back Share to: No guest this week -- instead, Brian Gibbons and Georgia Coats discuss the seemingly ever-changing impact of COVID-19 and the delta variant on court operations. As recently as a few months ago, the pandemic seemed to be on its last legs, but numbers are trending in the wrong direction again. What does that mean for court operations this Fall and Winter, in NYC and elsewhere? Also, with new associates starting at Wade Clark Mulcahy and other firms across the country, Brian & Georgia compare their immediate post-law school experiences, discuss what they wish they knew at the time, and offer some advice for graduates starting their legal careers in the next few weeks. Listen here, or wherever you download podcasts. If you are interested in being our "next witness" on Call Your Next Witness, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News WCM Welcomes Three New Partners and One Counsel July 10, 2020 < Back Share to: Wade Clark Mulcahy LLP is pleased to welcome four new attorneys to our offices as of this past week. Tom Decker, Bruce Magaw and Debra Kuser have practiced together for over 20 years, most recently at Decker & Magaw in Westfield, NJ, and have joined WCM in our New Jersey office. Tom and Bruce are coming aboard as partners, with Debra joining as counsel. Their practice focuses on representing insurance carriers, their insureds and self-insureds in New Jersey State and Federal courts in a variety of cases including construction site accidents, construction defect claims, motor vehicle accidents, general liability claims, product liability claims and professional negligence. Thomas Bracken has joined Wade Clark Mulcahy as a partner in the firm’s New York office. With his 25 years of experience, Tom specializes in complex insurance coverage disputes, including the defense of first and third party bad faith actions across multiple lines, including Commercial, Homeowners, Property, and General Liability. He has also handled Special Investigative Unit cases, disability coverage, entertainment and contingency coverages. Tom has represented insurance and reinsurance carriers both in the court room setting as well as in complex arbitrations, in matters throughout the country. He comes to Wade Clark Mulcahy after managing New York offices for several tri-state firms. WCM looks forward to continuing our growing practice – hopefully in person soon -- in partnership with our new attorneys, to obtain the best possible results for our clients. 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 Plaintiff Failed to Demonstrate That Fall From Flatbed Violated Labor Law &#167;240(1) June 17, 2008 < Back Share to: The plaintiff in Berg v. Albany Ladder Company, Inc., et al., was working on a flatbed truck unloading steel trusses. While standing on top of a bundle of trusses, approximately 10 feet off the ground, another bundle began to roll on top of him. The plaintiff climbed into the bundle as it fell to the ground and was injured. In granting the defendants' motion for summary judgment, the Court of Appeals reiterated that the protections of Labor Law §240(1) do not apply to every worker who falls and is injured at a construction site. Rather, the worker must first demonstrate the existence of an elevation-related hazard contemplated by the statute and a failure to provide the worker with an adequate safety device. The Court held that the plaintiff failed to adduce sufficient proof to create a question of fact regarding whether his fall resulted from the lack of a safety device. www.nycourts.gov/ctapps/decisions/jun08 Previous Next Contact

News Alternate Reality: NJ Court finds Coverage for Spoliation Litigation Strategy that Could Have Been August 22, 2011 < Back Share to: Typically, whether an insurer has a duty to defend is determined by the four corners of the complaint. But in Carlin v. Cornell, Hegerty, & Koch a New Jersey appellate court not only looked to facts that arose “during the resolution of the underlying dispute,” but also considered whether an alternate litigation strategy would have triggered coverage. In the original lawsuit, plaintiffs, employees of a construction company, alleged that they were exposed to high levels of lead while working on a construction project on the Ben Franklin Bridge; one of the allegations was that the construction company intentionally concealed information about the employee’s lead exposure. CIGNA provided a defense to the construction company, and a no-cause verdict was rendered in favor of the defendants after a jury trial. Plaintiffs then filed another lawsuit, alleging that the defendants fraudulently concealed or destroyed evidence (commonly known as “spoliation”) during the first trial. But CIGNA denied coverage, finding that such claims were not covered as an “occurrence” under its CGL policy. Ultimately, the trial court agreed with CIGNA. But the Appellate Division reversed, even though it agreed that the spoliation claims themselves were not covered under the policy. The Court held that there would have clearly been coverage if plaintiffs successfully moved for relief from the trial judgment based on newly discovered evidence," or "fraud… misrepresentation, or other misconduct of an adverse party." The Court found that plaintiffs’ spoliation complaint was, “in effect, an attempt to reopen the first litigation on the covered claim on the ground that it did not have all of the pertinent evidence.” Therefore, the defendant seeking coverage “understandably expected the insurer who provided the defense in the first action to do the same here regardless of the merits.” Because plaintiffs could have recovered damages for the covered personal injuries by way of motion to vacate the judgment in the personal injury action -- and because plaintiffs would not have been required to prove any intentional misconduct -- the defendants were, in essence, faced with covered and noncovered claims. Under such circumstances, a carrier is required to defend until all covered claims have been resolved. If you would like more information about this case, please e-mail mbono@wcmlaw.com Previous Next Contact