News Second Department Sends Towns Back To The Future May 25, 2010 < Back Share to: Various towns in Nassau and Suffolk County commenced a slew of construction defect cases against contractors that installed sewer systems for them in the 70s and 80s. To avoid the statute of limitation obstacles they faced, the towns couched their claims as "continuing public nuisances." They alleged that because the damage stemming from the defective installation was continuing, the statute of limitations did not apply. In two such cases, the lower court agreed with the plaintiffs and denied the defendants’ motions for summary judgment. However, in Town of Islip v. H.T. Schneider Associates and Town of Babylon v. H.T. Schneider Associates the Second Department reversed the lower court’s decision. The Second Department found that "the acts underlying the cause of action sounding in continuing nuisance are the very same acts that underlie the breach of contract and negligence causes of actions, that is, the failure of the defendants to properly backfill the trenches during their performance of construction contracts. Since the alleged continuing nuisance “has its genesis in the contractual relationship of the parties, the cause of action sounding in continuing nuisance accrued when the construction work pursuant to the contract was substantially complete." The Second Department has now made it clear that plaintiffs wishing to recover for damages sustained far back into the past will be brought back to the future by the statute of limitations. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_04366.htm Previous Next Contact

News Stylish Setback: Tory Burch's Coverage Denial Amid New Jersey's COVID-19 Shutdowns December 15, 2023 < Back Share to: Insurance coverage for commercial retail stores is an essential safeguard against potential risks and unforeseen circumstances. However, within these policies, exclusions can significantly impact the extent of coverage, especially when it comes to clauses pertaining to 'contamination.' In the case of Tory Burch, LLC v. Zurich American Insurance Company in the Superior Court of New Jersey, Appellate Division, Plaintiff Tory Burch sought to appeal an order granting defendant Zurich American Insurance Company’s motion to dismiss because coverage was not afforded under the policy. Tory Burch is an American women’s fashion brand with over 300 stores globally, with three located in New Jersey. Tory Burch purchased an all-risk insurance policy from Zurich for the policy period from December 31, 2019 to December 31, 2020, and renewed for the period from December 31, 2020 to December 31, 2021. The policy insures against “direct physical loss of or damage to” Tory Burch’s property. The policy also contains an exclusion barring coverage for “contamination”, meaning “the actual presence of any foreign substance… bacteria, virus, disease causing or illness causing agent…”, including the inability to use or occupy property. As we all know, in response to the global COVID-19 pandemic, Governor Phil Murphy of New Jersey declared a state of emergency and issued executive orders to suspend all non-essential business operations, including retail stores such as Tory Burch. As a result, Tory Burch was forced to close its business to the public from March to May 2020. Tory Burch alleges it suffered substantial losses of business and income due to the executive orders. Defendant Zurich denied Tory Burch’s claim, stating that there was no coverage for COVID-19 losses and that the contamination exclusion barred coverage. Tory Burch then sued Zurich in New Jersey’s Union Superior Court in March 2021 for breach of contract. In response, Zurich filed a motion to dismiss which was granted by the trial court. Tory Burch appealed, arguing that the executive orders constituted physical loss or damage to the business, and that the contamination exclusion did not bar coverage. Tory Burch argued that it was the executive order that closed the business, not COVID-19. As such, Tory Burch argued that the contamination exclusion should not apply. The Appellate Court rejected this argument and upheld the trial court’s order. The Appellate Court reasoned that the governor’s orders prevented Tory Burch from operating its business, but it did not “physically deprive the company from possessing it” so there was no direct or physical loss. The Appellate Court also found that the contamination exclusion applied because COVID-19 was the cause of the governor’s orders, and therefore coverage was barred. Plaintiff further argued that the Policies’ Contamination Exclusion violated the doctrine of regulatory estoppel, and the trial court should have barred defendant from invoking the Exclusion. The basis of Plaintiff’s argument was that the insurance industry misrepresented the scope of the Exclusion language as it sought approval of the Virus Exclusion from regulators by claiming the Exclusion would not result in a reduction of coverage. However, the appellate court affirmed the trial court’s findings that the doctrine of regulatory estoppel cannot serve to estop the exclusion based on what defendant represented to another sovereign. The appellate court held that the record was devoid of any evidence of a false statement or misrepresentation to a regulatory body regarding the scope of the virus exclusion and rejected Plaintiff’s argument. The holding in this case directly follows the reasoning of a previous New Jersey case, Mac Property Group LLC v. Selective Fire & Casualty Insurance Co. , 278 A.3d 272 (N.J. Super. Ct., App. Div. 2022). COVID-19 has impacted various commercial businesses. Case law is now emerging that provides some insight for how the courts will handle the pending insurance claims related to various aspects of COVID-19. Tory Burch LLC v. Zurich American Insurance Company .pdf Download PDF • 173KB Previous Next Contact

News ANSI Violation Constitutes Evidence of Negligence, According to NY's Highest Court (NY) November 8, 2018 < Back Share to: In Bradley v HWA 1290 III LLC, plaintiff commenced an action against the building owners and elevator consultant, seeking to recover damages for wrongful death of an elevator mechanic who was electrocuted as a result of coming into contact with a transformer while servicing a malfunction in one of the building’s elevators. Defendants moved for summary judgment dismissing the complaint, but said motion was denied by Hon. Lucy Billings, allowing plaintiffs to pursue their common law negligence and Labor Law § 200 claims based on the alleged inadequate lighting in the motor room and the alleged lack of a cover over the transformers. The lower court reasoned that defendants failed to demonstrate that the uncovered transformers and the lighting did not create dangerous conditions readily observable to defendants. The Appellate Court reversed the lower court’s decision, holding that: plaintiffs failed to establish liability based on inadequate lighting in the motor room; the building owner and consultant did not cause or create the hazardous condition; plaintiffs failed to establish that owner or consultant has actual or constructive notice of the hazardous condition; and, any failed to comply with American National Standards Institute (ANSI) requirements did not constitute negligence. The Court of Appeals disagreed with the First Department’s ruling that ANSI standards cannot be used as evidence of negligence because they are not a statute, ordinance, or regulation with force of law, and held that “to the extent that a violation of ANSI constitutes evidence of negligence, plaintiffs’ reliance on those standards was proper.” Nevertheless, plaintiffs failed to raise a triable issue of fact as to whether defendants had either actual or constructive notice of the alleged dangerous condition, and the Court of Appeals upheld the reversal that granted summary judgment to the defendant. This is a direct rejection of the rule that standards can only be used to show evidence of negligence if they have force of law required by statute, regulation, or ordinance, which has been a trend in the First and Second Departments. Thanks to Margaret Adamczak for her contribution to this post. Previous Next Contact

News Insurer Not Estopped From Withdrawing ROR After Defending For Several Years (PA) June 24, 2016 < Back Share to: The Third Circuit Court of Appeals recently dealt with a challenge by an insured to the withdrawal of a Reservation of Rights in Nationwide Ins. Co. v. Shearer. The underlying claims arose from damage caused by the discharge of sewage and other waste by Nationwide’s policyholders, which had drained onto the Shearers’ property and subsequently contaminated their groundwater. The Policyholders were insured by Nationwide, who agreed to provide a defense but stated in Reservations of Rights letters that the claims may be subject to a pollution or biological deterioration exclusion and that it was not waiving its rights to later disclaim coverage. Nationwide subsequently filed a declaratory judgment action and moved for summary judgment, arguing that the claims were excluded from coverage. The policyholders did not challenge the applicability of the exclusionary language and instead claimed that Nationwide should be equitably estopped from withdrawing because it had been defending them for several years and that an untimely withdrawal would be prejudicial. The District Court rejected the policyholders’ arguments and awarded summary judgment in favor of Nationwide. The District Court noted that Nationwide’s reservation of rights letters made clear that its defense “shall not be deemed to be a waiver of or estoppel” of its rights under the policy. The District Court also rejected the policyholders’ claim that Nationwide was required to take steps to withdraw its defense within a certain period of time after issuing reservation of rights letters and that it was instead the burden of the insured to establish “actual prejudice.” Finding no allegations or evidence of prejudice, the Court held that there was no basis to estop Nationwide from asserting its coverage defenses. The policyholders appealed, and the Third Circuit affirmed. Echoing the lower court’s decision, the Third Circuit determined that Nationwide had preserved its coverage defenses in its reservation of rights letters. The appellate court also rejected the Policyholders’ claims that they would be prejudiced as a result of allowing the withdrawal of the defense at such a late stage in the case. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

D.J. Dawson Partner Pennsylvania ddawson@wcmlaw.com 267.946.2473 Professional Experience A self-described zealous advocate for his clients and competent trial attorney, Partner D.J. Dawson handles cases in State and Federal Court. D.J. litigates a multitude of matters, including, but not limited to, premises liability, products liability, directors and officers, commercial motor vehicle liability, employment, dram shop, negligent security, wrongful death, and cases involving complex and significant exposer to insureds. D.J. is an experienced in-house defense counsel handling claims from inception to trial in Federal and State Courts. His work as a litigator in over 500 arbitrations and 36 trials resulted in defense verdicts and extremely favorable outcomes for his clients. His experience ranges from analyzing litigation risk, conducting expert depositions, negotiating settlements, engaging in extensive motion practice, pursuing post-trial advocacy, and being a trusted resource for Complex Claims Specialists. Before joining WCM, D.J. was a Senior Attorney in Chubb’s Casualty Practice Group of the Philadelphia House Counsel firm of Bunker & Ray. Prior to joining Chubb’s House Counsel, D.J. served as in-house counsel for GEICO for several years. Honors and Distinctions D.J. volunteers his professional expertise sitting as an Arbitrator and Judge Pro Temp for the U.S. District Court of Eastern Pennsylvania, Philadelphia Court of Common Pleas, and the Chester County Court of Common Pleas. D.J. also sits as a judge at New York Law School Moot Court Competition and the Dispute Resolution Team Negotiation Competitions annually. D.J. also volunteers as a guest lecturer at West Chester University’s School of Business. While in law school, D.J. clerked for the Honorable Louis B. York, New York Supreme Court, Manhattan Civil Division. D.J. also competed for New York Law School’s Dispute Resolution Team. D.J. received upon graduation certifications in Alternative Dispute Resolution and Pro Bono Advocacy. Professional Activities D.J. believes learning is a lifelong endeavor, and recently completed a certification in Artificial Intelligence Essentials for Business at Harvard University Business School. Outside of his professional work, D.J. is the current President of Springdell Village Homeowner’s Association, Vice President of Parcel 1 Land Trust, and Trustee of Berkshire Lakes Master Association. D.J. also serves as a Board Member of the American Helicopter Museum. D.J. is a member of both the American Civil Liberties Union, American Bar Association, Philadelphia Bar Association, Chester County Bar Association and The Metropolitan Black Bar. D.J. is a student of Kung Fu (Northern Shaolin Tien Shan Pai and Wing Chun), and an avid cyclist who has raised money for multiple charities, including the American Cancer Society, Bike M.S., Eagles Autism, and Stand up for Cancer. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., New York Law School B.S. West Chester University Certification, Harvard University Business School Bar Admissions Pennsylvania Court Admissions United States District Court for the Eastern District of Pennsylvania United States District Court for the Middle District of Pennsylvania United States District Court for the Western District of Pennsylvania Supreme Court of the United States of America

News District of NJ Denies Insurer’s Attempt to Dismiss Claims for Sexual Abuse Coverage February 4, 2021 < Back Share to: In School Excess Liability Joint Ins. Fund v. Illinois Union Ins. Co., the United States District Court for the District of New Jersey recently considered whether the plaintiffs, School Excess Liability Joint Insurance Fund (“SEL”), Diploma Joint Insurance Fund (“Diploma”), and School Alliance Insurance Fund’s (“SAIF”) sufficiently pled that they have incurred losses that eroded their retained risk and triggered coverage under the excess insurance policies issued by the defendant, Illinois Union Insurance Company (“Illinois”). The plaintiffs sought defense expenses and liability costs for defending sexual abuse claims. By way of brief background, the plaintiffs are joint insurance funds, i.e., public entities composed of “members” who pool resources to self-insure against losses for claims up to a specific amount, and purchase excess insurance from insurance companies to cover losses that exceed that amount. Defendant Illinois issued multiple excess insurance policies to the plaintiffs. Specifically, the excess policies provided Illinois will pay the “Ultimate Net Loss in excess of the Underlying Coverage that the Insured becomes legally obligated to pay as damages because of the injury or damage to which this insurance applies.” In their complaint, the plaintiffs averred that the policies provide coverage for general liability, which encompasses sexual abuse claims, as the policies specifically identify limits of insurance for “sexual abuse” in the Schedule of Underlying Coverage. Therefore, plaintiffs claimed that Illinois breached its contractual duty and duty of good faith and fair dealing by failing to indemnify the plaintiffs for defense expenses and amounts paid for liability and defense expenses for sexual abuse claims. Upon analyzing whether the plaintiffs asserted a valid breach of contract claim, the court the held that, since the plaintiffs are “self-insured”, i.e., without insurance, pursuant to N.J.S.A. 18A:18B-1 et seq., the plaintiffs have no Underlying Coverage as defined by the insurance policies. Therefore, the court reasoned that, by self-insuring, the plaintiffs bore the burden of paying defense expenses. With respect to whether the sexual abuse claims were covered under the policies, the court compared the averments of the complaint with the policies and, treating the factual averments as true and construing the complaint in the light most favorable to the plaintiffs, held the plaintiffs sufficiently pled the sexual abuse claims were covered by the policies and the plaintiffs payments towards those claims eroded their retained risk and triggered Illinois’ indemnification obligation. In denying Illinois’ motion with respect to the breach of contract claim, the Court focused on the policies’ definition of sexual abuse, which the plaintiffs pleaded fell within the ambit of “General Liability”, and identification of aggregate limits for sexual abuse claims. It is important to note that, upon rendering its decision, the court did not take a position as to whether the plaintiffs would ultimately succeed on the merits of their claims, as this determination could only take place after the completion of discovery. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Snow Doubt About It: Pennsylvania Supreme Court Defers to the Snow Tubing Experts (PA) December 18, 2020 < Back Share to: In Bourgeois v. Snow Time Inc., the Pennsylvania Supreme Court reopened the plaintiff’s dismissed claims against a snow tubing facility because it determined that the lower courts failed to view the expert reports in the light most favorable to the plaintiff. Bourgeois was riding a snow tube headfirst when he collided with a folded kitchen floor mat that Defendant’s employees had placed at the end of the track to slow riders. The collision abruptly stopped the tube and sent Bourgeois flying into the snow. As a result, he hyperextended his spinal cord, resulting in quadriplegia. He brought his personal injury action against the snow tube facility operator and its parent company, claiming that the operator allowed its employees to negligently and recklessly place the kitchen mats down, which then created unsafe conditions. On defendants’ motion for summary judgment, the trial court dismissed Bourgeois’ negligence claims because it determined that Bourgeois had agreed to a valid, enforceable, and sufficiently conspicuous exculpatory agreement in his snow tubing pass. The trial court dismissed Bourgeois recklessness and gross negligence claims because it determined that the facility placed the mats to help riders, and not in a conscious disregard for riders’ safety. The Pennsylvania Superior Court affirmed the trial court’s grant of summary judgment, reasoning that Bourgeois did not establish a prima facie case of recklessness or gross negligence. Specifically, that Court held Bourgeois did not proffer an expert who adequately established the standard of care owed by a snow tubing facility. The Pennsylvania Supreme Court herein reversed and remanded. It determined that the Pennsylvania Superior Court had abused its discretion by excusing the trial court’s failure to view Bourgeois’s expert reports in the light most favorable to him (as the non-moving party). The Pennsylvania Supreme Court reasoned that, although the reports might not have explicitly opined on the standard of care, the reports created a sufficient issue of fact, which should have been submitted to the jury. Ultimately, the Pennsylvania Supreme Court upheld the high bar facing defendants when attempting to have a case dismissed on summary judgment. Courts will go to lengths to permit plaintiffs be heard by a jury. Thanks to John Lang for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Wrestler Does Not Assume the Risk Of Contact With Floor (NY) April 18, 2013 < Back Share to: New York courts recognize that someone who voluntarily participates in an athletic activity generally consents to the commonly appreciated risks inherent in the sport. However, that does not mean that a risk out of the ordinary expectations is subsumed by this assumption of the risk. In Philippou v. Baldwin Union Free School District, the plaintiff-student was injured during a wrestling match when he was placed in a headlock by an opponent who then tripped on mats that had separated. The plaintiff and his opponent had been wrestling on two mats that were held together with tape. During the match, the tape came loose and the two mats separated, causing the plaintiff to injure his arm on the hardwood floor. The plaintiff sued the school district, who moved for summary judgment. The lower court denied the motion and the school appealed. The Second Department upheld the lower court's decision, finding that assumption of risk associated with athletic activities applies only to those conditions that are open and obvious. In this matter, the school failed to show that the improperly secured mats did not unreasonably increase the risk of injury inherent in the sport of wrestling. Special thanks to Georgia Stagias for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Call Your Next Witness - Ross Mallor of PM Legal September 15, 2021 < Back Share to: On today's episode of the Call Your Next Witness podcast, we welcome Ross Mallor of PM Legal. Ross is a true entrepreneur in the litigation arena in the northeast United States. Since joining his father at PM Investigations, now PM Legal, the company has grown from a 2-person investigation company into a 200+ employee company, which conducts investigations for both plaintiffs and defendants, provides litigation support, handles service of process and court filings, and is also now affiliated with elaw and Lexitas. Ross takes advantage of technological innovations, keeps an open mind about new opportunities, and most importantly, listens to his clients. Aside from that, Ross is a fantastic storyteller, and in this interview, relays some great stories about his business practices over the years, a few about conducting surveillance, and even one about playing poker with actor Kevin Pollack. (This story is worth the price of admission.) For more information about Ross's company, check out PMLegal.com Listen to my interview with Ross here: https://lnkd.in/ejnHZK8k -- or search for Call Your Next Witness wherever you download podcasts. If you are interested in being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News No More Happy Meals – Court Finds Affirmative Duty For Franchise Restaurant To Protect Invitees From Third-Party Harm September 2, 2022 < Back Share to: In a recent presidential opinion by the Pennsylvania Superior Court in Massaro v. McDonald's Corp., 2022 Pa. Super. Lexis 320, 2022 WL 3036753 (Aug. 2, 2022), the court provided clarity on the affirmative duty of a property owner to protect a business invitee from intentional harmful acts of a third party. In Massaro, plaintiff, Thomas Massaro (“Plaintiff”) was assaulted by an allegedly mentally ill homeless man while tutoring a student at a busy McDonald’s in Philadelphia, Pennsylvania. The third-party assailant, Bryant Gordon (“Assailant”) began making virulent and hateful statements towards Plaintiff for nearly an hour, ultimately threatening to kill him when he left the property. Numerous McDonald’s employees observed the interaction and when asked to call 911, refused. When Plaintiff left McDonald’s in search of police aid and was followed by Assailant, Plaintiff had a heart attack and nearly died. It is alleged that Assailant had a history of provoking customers at the property which McDonald’s was likewise alleged to have full knowledge of. Naturally, Plaintiff filed a complaint in the Philadelphia Court of Common Pleas raising claims of negligence against McDonald’s for failing to take reasonable steps to protect him from the Assailant. The trial court granted McDonald’s preliminary objections finding that McDonald’s had no duty through a public policy analysis because Plaintiff was aware of the danger and voluntarily remained in the premise, assuming the risk of assault, and that it would have been unreasonable for McDonald’s to have intervened. Being that assumption of the risk can only be raised once duty is established, Plaintiff appealed this conflicting ruling to the Pennsylvania Superior Court, who ultimately reversed. Essentially, the Superior Court held that McDonald’s affirmative duty to protect a business invitee from intentional harmful acts of third parties was clearly established, at the pleadings stage. Thus, the issue was whether he had assumed the risk of harm by remaining in McDonald’s subjecting himself to the increased likelihood of harm. Considering it would have been more dangerous for Plaintiff to leave McDonald’s, he did not willfully remain on the property warranting assumption of the risk. Importantly, the court held that it is unnecessary to conduct a full-blown public policy duty assessment whenever a longstanding duty imposed arises in a novel factual scenario. Here, the Court largely determined that McDonald’s, at a bare minimum, possessed a duty to call the police after witnessing the interaction and constant requests from the plaintiff to call the police. Massaro acts as a reminder to business owners that minimal intervention is sufficient to satisfy their well-established affirmative duty to protect business invitees from third-party tortfeasors, irrespective of novel circumstances. Thanks to Kendal Hutchings for her contribution to this article. Should you have questions, contact Matthew Care. Previous Next Contact

News Defective Sperm Cannot Support a Product Liability Case in 3rd Circuit. April 8, 2010 < Back Share to: The Third Circuit in Donovan v. Idant Laboratories, has dismissed a products liability suit against a sperm bank. In the suit, plaintiff alleged that the sperm sold by the bank contained genetic defects. Specifically, the sperm was a carrier of Fragile X, a genetic mutation known to cause a group of maladies that include mental retardation and behavioral disorders. The daughter resulting from the sperm donation was diagnosed with the Fragile X defect. The Court found that the claim was essentially a claim for “wrongful life” which is not cognizable under New York law. New York law applied to the case even though the lawsuit itself was filed in federal court in Philadelphia. The Third Circuit wrote that plaintiff’s claims demand “a comparison between the Hobson's choice of life in an impaired state and nonexistence . . . [a] comparison the law is not equipped to make.” The Court concluded: “Whether it is better never to have been born at all than to have been born with even gross deficiencies is a mystery more properly to be left to the philosophers and the theologians.” Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.ca3.uscourts.gov/opinarch/093460np.pdf http://www.law.com/jsp/article.jsp?id=1202447538837&src=EMC-Email&et=editorial&bu=Law.com&pt=LAWCOM%20Newswire&cn=NW_20100406&kw=3rd%20Circuit%3A%20Defective%20Sperm%20Can't%20Be%20Basis%20for%20Products%20Liability%20Suit Previous Next Contact

News School Cannot Control Student's Every Movement (NY) May 15, 2013 < Back Share to: Although a school acts in loco parentis, it - like parents - cannot protect every child against every injury. In Donnelly v. St. Agnes Cathedral School , the parents of an eleven year old student brought an action against his school alleging premises liability and negligent supervision after a fire door closed on his fingertips. The undisputed facts of the case showed that the plaintiff had approached the door walking forward but turned around when he heard someone call him. He extended his hand to hold the door open. Unfortunately, his fingers were pinched within the hinged side of the door and the doorjamb when the door closed. Based upon these facts the Second Department reversed the lower court's denial of summary judgment. Although the plaintiff alleged that the school failed to regularly inspect the door, this was disproven by the school citing a State mandated fire safety inspection one month prior. Additionally, the plaintiff's engineer provided only a conclusory and speculative opinion that the door closed too quickly. Finally, there was no factual basis for a finding that the school had either actual or constructive notice of any defect with the door. The Court also summarily dismissed the negligent supervision claim recognizing that the school could not reasonably be expected to continuously supervise and control all of the student's movements and activities. A school can only be expected to provide supervision to guard against foreseeable injuries. In the instant matter, the plaintiff failed to raise a triable issue of fact as to the foreseeability of the plaintiff's injury. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .       Previous Next Contact