Wade Clark Mulcahy LLP

News Hidden Defect Must Be Made Transparent (NJ) October 9, 2019 < Back Share to: In Cabrera v. Fairleigh Dickinson, the court considered whether a defendant owed a duty to alert an independent contractor to the existence of a hidden defect on the property. Defendant FDU hired KB Electric Services to change lights on the roof of its property. Defendant FDU was aware of a defect on the roof but failed to warn anyone at KB of the danger. The plaintiff was an employee of KB and he fell from the roof due to the defect, sustaining personal injuries. Of note, it was undisputed that a dangerous condition existed on the roof and that the defendant was aware of the defect. Accordingly, at issue was whether or not defendant FDU owed a duty of care to KB and KB’s employees. In New Jersey, the law carves out an exception to the requirement that premises be made safe for an independent contractor when the contractor is invited onto the land to perform a specific task in respect of the hazard itself. Based on this case law, the defendant argued that they did not owe a duty of care to KB. However, in this case, the defect on the roof was hidden and only known to defendant. The Appellate Court ultimately found that the defendant had a duty to warn the plaintiff of the dangerous condition. Thanks to Heather Aquino for her contribution to this post. Please email Georgia Coats with any questions.   Previous Next Contact

News Keep on Stacking . . . PA Court Declines Insurer’s Request to Deny UIM Benefits (PA) September 17, 2020 < Back Share to: In Donegal Mutual Insurance Company v. Kevin Krautsack, et al, the Court of Common Pleas of Lancaster County held that “the household vehicle exclusion violates the Motor Vehicle Financial Responsibility Law (“MVFRL”); therefore, these exclusions are unenforceable as a matter of law.” The case stems from an accident in which Kevin Krautsack was injured while riding his mother’s motorcycle. After the accident, the Krautsacks claimed and accepted the maximum uninsured benefits allowed under the motorcycle’s policy, which was issued by Progressive. The Krautsacks then initiated a claim with Donegal for stacked UIM benefits. Donegal responded that it had no duty to provide UIM benefits to Krautsack because the motorcycle he was riding at the time of the injury was not insured under the Donegal policy. As such, Donegal sought to enforce the household exclusion. In Pennsylvania, the “household exclusion” is a clause that insurance companies began using in the 1990’s in auto insurance policies to limit the amount of uninsured motorists (UM) and underinsured motorists (UIM) coverage they had to provide after claims made by their insureds after a car accident. In this case, the Krautsacks argued that the pivotal case of Gallagher v. GEICO Indemnity Company, 201 A.3d 131 (2019), invalidated all household exclusions. Donegal attempted to argue that Gallagher was limited to the specific facts of that case. The Court, however, agreed with the Krautsack, and Judge Ashworth held that the household exclusion is unenforceable as a matter of law. Donegal is further evidence in the Pennsylvania court trend eliminating the household exclusion. It indicates that insurers should no longer rely on the exclusion to deny claims. Thanks to John Lang for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Wedding Videographer Deemed Independent Contractor (NY) April 27, 2017 < Back Share to: In Weinfeld v HR Photography, Inc. a videographer knocked a wedding guest to the ground with his video equipment during a wedding reception, resulting in a lawsuit where the issue of the videographer’s employment status was at issue. HR photography Inc. was hired to provide photography and video services at the wedding. In turn, HR Photography hired a videographer to handle the video aspect of the work. The plaintiff, the injured wedding guest, filed suit in Nassau County Supreme Court against the individual videographer under a theory of negligence, and against the photography company claiming negligent hiring, negligent retention, and negligent supervision. The Nassau County Supreme Court granted HR Photography’s motion for summary judgment, concluding that the videographer was an independent contractor and that there was no evidence that HR Photography was negligent in hiring, supervising, or retaining the videographer. On appeal, the Appellate Division discussed the status of the law and the rule for liability based upon negligent hiring. The general rule is that an employer who hires an independent contractor is not liable for the independent contractor's negligent acts. The key consideration in determining whether an employer-employee relationship exists is whether the alleged employer exercises control over the means used to achieve the results. Factors relevant to assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule. In this case, the Court looked to the deposition testimony, which showed this wedding was the first time HR Photography hired the videographer, did not provide the videographer with health insurance, did not provide the videographer with a W-2 form, and the videographer used his own equipment at the wedding. Further, the Court ruled that HR Photography demonstrated, prima facie, that it did not know and that it did not have reason to know of any propensity on the part of the videographer to engage in the conduct that allegedly caused the accident. As such, the trial court's decision was affirmed. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Late Joinder No Reason to Dismiss (PA) February 15, 2017 < Back Share to: In Pennsylvania, joinder of additional defendants to a lawsuit is governed by Pennsylvania Rule of Civil Procedure 2252. A Pennsylvania trial court rejected an additional defendant’s objections joinder on the grounds that it was untimely in Lemoncelli v. Newell Rubbermaid, Inc. Lemoncelli involved a products liability claim for a defective propane cylinder. The plaintiff allegedly sustained second-degree burns to his lower extremities. As a result of the accident, the plaintiff sued Newell Rubbermaid as the manufacturer and seller of the propane cylinder. Plaintiff and Newell’s initial discovery revealed, however, that a valve manufactured by Schrader-Bridgeport, Inc. may have been the cause of the product’s malfunction. As a result of this revelation, Newell, with the cooperation and assistance of Schrader, conducted various tests on the valve in an effort to re-create the plaintiff’s accident. After the testing procedures, on December 3, 2015, Newell learned of the likelihood that Schrader’s valve did, in fact, malfunction and cause the accident. Nearly six months after the testing, Newell filed a motion for leave to join Schrader to the lawsuit as an additional defendant. Newell’s motion was granted, and it filed its joinder complaint. Schrader objected to the joinder complaint, arguing (1) it was untimely filed and Newell did not provide a “reasonable justification or excuse” for the untimely filing of the joinder; and (2) it would be prejudiced by the untimely joinder. First, the court outright rejected Schrader’s first argument regarding the lack of “reasonable justification or excuse” because the plaintiff did not oppose the joinder and this argument is reserved exclusively for plaintiffs under the Pennsylvania Rules of Civil Procedure. In support of Schrader’s second argument, Schrader merely posited that it would be prejudiced by the joinder because of its inability to conduct a prompt post-accident investigation. The court, however, noted that discovery was still ongoing and the initial testing that was done on the valve was done in the presence of Schrader. As such, the court concluded that Schrader did not provide any evidence of actual, real prejudice to Schrader as a result of being joined to the lawsuit. Accordingly, the court rejected Schrader’s objections to the joinder complaint. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Pizzeria's Paltry Proof Precludes Summary Judgment (NY) June 2, 2016 < Back Share to: In Costello v Pizzeria Uno of Albany, Inc., the Third Department recently explained how both plaintiff and defendant could survive their opponent’s post-discovery summary judgment motions through a minimal evidentiary showing. In 2011, plaintiff Barbara Costello went to lunch with two co-workers at the defendant’s pizzeria, and she fell and injured her foot. She brought suit against the defendant for failing to maintain the floor in a reasonably safe condition. At the close of discovery, plaintiffs moved for summary judgment on liability, and defendant cross-moved for summary judgment dismissing the complaint. The trial court granted defendant’s cross-motion and plaintiffs appealed. The Appellate Division, Third Department, reversed, because plaintiffs raised a triable issue of fact even though they were “unable, or perhaps unwilling to immediately ascertain the cause” of the fall. In plaintiff’s affidavit, she stated that the wooden floor was bowed, “and did not provide a proper walking surface.” Further, plaintiff produced two non-party witnesses, her co-workers, who confirmed that the floor appeared buckled, and that the unevenness of the floor made it feel like walking down a ramp. According to the Third Department, the trial court misplaced its focus on the defendant's claims that plaintiff’s unscientific evidence was insufficient to raise a triable issue of fact. Indeed, the defendants pointed to plaintiff’s affidavit, indicating that she merely “believe[d]” that the bowed floor caused her to fall. The Third Department noted that plaintiff’s use of “believe” was simply a figure of speech, and did not defeat her claim. Lastly, and perhaps most critically, defendant’s evidence was insufficient to remove all questions of fact. Even after the close of discovery, defendants never offered any “objective physical data, measurements, or an evaluation of the floor surface.” Instead, they relied on low quality photographs, and the statement of one restaurant manager who did not witness plaintiff’s fall. The defendants failed to produce any incident reports or any testimony from anyone who was actually present at the time of plaintiff’s injury. Because neither party presented enough evidence to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation, the court reversed the trial court’s order. The message here is that a motion for summary judgment on a premises liability case like this one needs to leave no stone unturned in demonstrating the absence of liability. We suspect a well written engineering inspection report would have prompted a different outcome. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Insurer Not Liable for Supplemental Spouse Liability (NY) June 23, 2023 < Back Share to: In New York, the Insurance Law requires motor vehicle insurers to notify policyholders about the availability of Supplemental Spouse Liability (SSL) coverage. In Levy v. New York Central Mutual Fire Insurance Company, the Westchester County Supreme Court addressed whether New York Central had notified the plaintiff about the availability of SSL insurance. The plaintiff, driving his car, accidentally struck his wife in a driveway. The plaintiff’s wife filed a claim against the plaintiff to New York Central, alleging she was injured due to the plaintiff’s negligence. New York Central informed the plaintiff’s wife her claim would not be considered as there was no SSL coverage. The plaintiff filed two causes of action: one alleging that New York Central failed to provide notice and the other alleging that New York Central was liable for breach of contract by not providing coverage to the plaintiff. The plaintiff claimed that the SLL notice failed to comply with the notification requirements. The Court stated “As set forth above, the SLL notice was partially bolded, alerting plaintiff of an important notice. There is no requirement for the entire page to be bolded. Although the SLL notice was not page 1 of the 89-page document, it was page 1 of one of the various notices in the insurance packet. A look at the insurance policy indicates that every new section of the policy starts with page 1 and continues for however many pages address that topic. This does not conflict with 11 NYCRR § 60-1.6 (b) (3), which provides flexibility for the term premium notice. In addition, while not set forth in the decision, the sample notification provision, provided under 11 NYCRR § 60-1.6(b)(5) is identical to what New York Central provided to plaintiff in the policy. Even if it was not identical or did not contain the bolded and all capital title of Supplemental Spousal Liability Coverage, the regulation itself states that an equivalent may be used.” New York Central established that it complied with the SSL notification requirements. This ruling serves as a reminder of the importance of thoroughly reading insurance policies and their coverage. Thanks to Seamus Rooney for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Workers’ Compensation Loses Out and Case Settlement Value Goes Down: State Agencies No Longer Have to Account for or Repay Workers’ Compensation Liens. October 19, 2012 < Back Share to: The Pennsylvania Supreme Court has just issued a landmark ruling that will have far reaching effects on Pennsylvania litigation. In Frazier v. Workers’ Compensation Appeal Board, the Supreme Court ruled that, by virtue of sovereign immunity, a workers’ compensation lien cannot be recovered against a state agency, such as SEPTA, after trial or settlement. As a practical matter, this decision means that if a plaintiff wins a judgment or settles with a governmental agency, he is not obligated to pay back (from those proceeds) any owed workers’ compensation liens because the lien cannot be charged to or recovered from a governmental agency. The net effect of this is that: (a) some workers’ compensation liens will be unrecoverable (if the sole defendants are governmental agencies); (b) trial and settlement values will go down (because the lien does not to be repaid and cannot be boarded); and (c) plaintiffs might refocus their attacks in multiple defendant cases on any entity that is not a governmental agency. Special thanks to Remy Cahn for her contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News First to Strike? First to File? Court Allows Counterclaim After Statute Runs (NJ) October 27, 2017 < Back Share to: When a plaintiff files litigation on the last day of the statute of limitations, can a defendant file a counterclaim arising out of the same incident? In Veronica Barley v. Arnell Barley, step sisters sought damages from one another for personal injuries after an altercation. The plaintiff sister, Veronica, alleged that her sister, Arnell, scratched her and tried to run her over with a car. She filed suit on the last day of the statute of limitations. Along with Arnell's answer, she counterclaimed that Veronica was the aggressor who had actually injured her. The problem was that her counterclaim was filed after the statute had run. She argued that her claim should be considered as related back to the time of the filing of the complaint. Although the trial judge was unpersuaded, the appellate division found that since the case was pending and the counterclaim was promptly filed, it related back to the original complaint filing date. The court noted that the plaintiff had delayed filing until the last day of the statute (implying this was tactically done) leaving her sister no time to counterclaim. Under these circumstances, the court felt that justice could only be served by allowing the defendant's counterclaim to be heard. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Duped, Deceived or Downright Obvious? PA Supreme Court to Assess GCOP Provision in Homeowners Insurance Policy (PA) March 20, 2020 < Back Share to: The Pennsylvania Supreme Court has taken Konrad Kurach v. Truck Insurance Exchange under advisement to consider whether a Farmers Insurance division, Truck Insurance Exchange, surreptitiously withheld general contractor overhead and profit (GCOP) from property damage claim settlements. In Kurach and a second case represented by the same counsel, Mark Wintersteen v. Truck Insurance Exchange, the plaintiffs suffered water damage to their homes and submitted claims for their losses to Truck. The insurance company determined that the repairs would require the services of a general contractor. Both plaintiffs opted for actual cash value settlements rather than repairing their properties. Truck deducted the GCOP from the settlement checks, which plaintiffs argue is contrary to Pennsylvania law. At issue is whether the GCOP was improperly excluded from the calculation of the actual cash value settlement. The insurance policy states, in relevant part, that “actual cash value settlements will not include [GCOP] ... unless and until you actually incur and pay such fees and charges, unless the law of your state requires that such fees and charges be paid with the actual cash value settlement.” In a 1994 decision, the Superior Court held that because ‘actual cash value’ was not defined in the policy, the insurer “agreed to pay actual cash value, ... which include[s] any cost that an insured is reasonably likely to incur in repairing or replacing a covered loss,” minus depreciation, and that actual cash value would include GCOP if the homeowner would likely incur such costs. Gilderman v. State Farm Insurance Company, 649 A.2d 941 (Pa. Super. 1994). While Kurach and Wintersteen relied on Gilderman in their arguments, the Superior Court pointed to more recent precedent that held that an insurance policy’s language could trump definitions established by case law because the policy’s plain language is the true manifestation of the intent of the parties. Kane v. State Farm Fire and Casualty Co., 841 A.2d 1038, 1042 (Pa. Super. 2003). Pursuant to Kane, the Superior Court held that because this insurance policy stated “unless and until you actually incur and pay such fees and charges”, Truck properly deducted the GCOP from the actual cash value settlements since the homeowners did not make the repairs and had not incurred GCOP costs. In rendering its decisions, the Superior Court noted that it does not have ‘supervisory authority’ to come to the rescue of insureds who sign contracts without reading them, while at the same time critiquing the ambiguous policy language that states “unless the law of your state requires that such fees and charges be paid”, question how the plaintiffs could have known what the law in Pennsylvania was at the time of signing. The Pennsylvania Supreme Court has taken the case under advisement to consider whether the Superior Court erred in finding that the limitation of payment of GCOP from the actual cash value settlement was valid and enforceable. Stay tuned. Thanks to Priscilla Torres for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News In NJ MVA Case, "Discovery Rule" Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations March 28, 2012 < Back Share to: In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post. Previous Next Contact

News In NY, Inspection Is the Key to the Notice Argument. June 24, 2010 < Back Share to: It is well established that a defendant moving for summary judgment in an action involving a slip and fall on a transient condition must make a prima facie showing that it neither created the condition, nor had actual or constructive notice of the existence of the condition for a length of time sufficient to discover and remedy it. Because it is nearly impossible to determine how long a transient condition has been present, courts look at many factors, including whether it was ongoing, recurring or even dirty. In Bruinsma v. Simon Property Group the plaintiff sustained personal injuries when she slipped on a bubble on the ground of the New Haven Mall. The defendant moved for summary judgment on the grounds that it did not have notice of the alleged condition. The Supreme Court Suffolk County denied the motion. The Appellate Division Second Department upheld the lower court's decision. Although courts look at many factors when determining notice of a transient condition, in this case, the Appellate Court's decision was based solely on the defendant's failure to submit evidence of when the ground was last inspected prior to the accident. Special thanks to Ed Lomena for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2010/2010_04942.htm Previous Next Contact

News Caesars Escapes Personal Jurisdiction via Preliminary Objections (PA) March 27, 2019 < Back Share to: In Seeley v. Caesars Entertainment, the plaintiff slipped and fell on water that had accumulated on the floor of a restroom inside of Bally’s Atlantic City. The plaintiff, a New Jersey resident, subsequently filed suit against Caesars Entertainment d/b/a Bally’s in the Court of Common Pleas, Philadelphia County, alleging that defendants regularly conducted business in Philadelphia. In response, defendants filed preliminary objections claiming that Bally’s, a New Jersey corporation, and Caesar’s, a Delaware corporation with its principal place of business in Nevada, do not engage in systematic or continuous business activities in Pennsylvania or Philadelphia and that Caesars has no supervisory or oversight responsibilities with respect to Ballys’ operations. The Court ordered limited discovery with respect to the issues raised in defendants’ preliminary objections. A representative for Caesars testified that Caesars is the parent company of Bally’s Park Place and that Bally’s Park Place owns Bally’s Atlantic City. She further testified that Caesars also is the parent company of Harrah’s Philadelphia, a casino located in Chester County, PA. She testified that each individual casino has its own policies and procedures and duty to maintain its own premises. Following a hearing in which the deposition testimony was admitted as well as evidence of other lawsuits filed against Bally’s in Philadelphia County, the Court sustained defendants’ preliminary objections. Plaintiffs appealed. In affirming the Court’s order, the Superior Court stated that it could not consider the mere fact that Caesars owns Harrah’s Philadelphia as evidence of continuous and systematic carrying on of business within Pennsylvania such that it would confer personal jurisdiction in the underlying matter. Further, the Court stated that plaintiffs have failed to show contacts between defendants and the state of Pennsylvania which would have made defendants reasonably aware that they could be haled into Court in Pennsylvania. Therefore, the trial court’s order sustaining preliminary objections was affirmed. Thanks to Alexandra Perry for her contribution to this article. Previous Next Contact