Wade Clark Mulcahy LLP

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 Back Share to: Barry Landau is one of the most prominent collectors of American historical documents and presidential memorabilia, accumulating more than 10,000 items over the years.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 According to Sotheby’s, the overall auction market for rare American historical documents totals $30 million to $50 million annually.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

News If You’re Practicing Being Arrested, You Just Might Get Hurt. July 5, 2013 < Back Share to: In the case of Sarasky v. Law Enforcement Training and Consulting Service, the plaintiff, an ASPCA “special agent” (and the quotations are ours), was injured during a recertification class that the defendant was conducting. Specifically, the plaintiff was hurt when she was pretending to be the “arrestee” who was being subdued by an arresting officer. Rather than correctly subdue the plaintiff, however, the defendant’s employee fell on top of her. The instant negligence lawsuit resulted. The trial court dismissed the complaint on the basis that the plaintiff did not establish a prima facie case of negligence and an appeal resulted. The First Department affirmed the dismissal. It held that the plaintiff’s reliance on an unqualified expert failed to raise a triable issue of fact. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Pipe Rising from the Grave Causes Trip & Fall (PA) June 29, 2016 < Back Share to: A cemetery director in Newtown, PA was awarded a $400,000 verdict after he claimed he tripped and fell over an exposed pipe in the cemetery he was working in. Darrin White alleged that on July 23, 2012 he tripped and fell over a pipe that housed electric cables which led to a construction trailer. There was a construction project that was taking place at the cemetery that was overseen by G&C Fab-Con with Scungio Borst & Associates, LLC as the general contractor and Travis, Inc. as the electrical contractor. White sued all three contractors who then filed a third-party complaint against Mobil Mini, Inc., the company that installed the trailer, but they were later dismissed. White’s counsel provided photos of the pipe which showed it protruded several inches out of a gravel path. They alleged that G&C and Scungio Borst were negligent in failing to ensure that the pipe was properly submerged under the gravel and that Travis was negligent in failing to create a deep enough trench for the pipe. The companies’ counsel stated that the pipe only protruded a half-inch and that White was not watching where he was going. White alleged that he hit his head from the fall. He went to the emergency room and was diagnosed with a concussion and released. White claimed that he suffered from headaches after the incident. He went to his family doctor and later a neurologist who diagnosed post-concussion headaches and memory loss and prescribed medication. White also began to suffer from anxiety and depression. He sought to recover around $41,000 in medical costs. White’s neurologist testified that his condition had plateaued and that his headaches are permanent. White stated that he cannot return to work and that he continues to suffer from anxiety and depression and that he experiences migraine headaches two to three times a week. The companies’ expert concluded that White suffered a minor concussion which he had recovered from. White’s expert maintained that headaches from a concussion could last for years. The parties negotiated a high-low stipulation in which the defendants’ liability could not exceed $2.5 million but could not fall below $400,000. The jury found White to be 20% liable and that G&C and Scungio Borst were 40% liable and awarded White $300,000 which was automatically raised to $400,000 the stipulation. This case demonstrates the importance of expert medical testimony to establish exactly what is wrong with the plaintiff, so that any damages awarded accurately reflect the proven injuries. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Speculation Doesn't Create an Issue of Fact (NY) December 9, 2016 < Back Share to: In Acadia Constr. Corp. v ZHN Contr. Corp. a fire broke out in the plaintiff's construction and millwork business building. The plaintiff contended that sparks from welding on the roof of the defendants’ neighboring building traveled to the roof of plaintiff’s building and down a ventilation shaft, causing the fire. The plaintiff did not see this occur, but he had smelled and heard welding on the day of the fire. The plaintiff sued the owner and tenant of the neighboring building for damage caused by the defendants’ negligence. Defendants' admitted that the construction to their building required some welding on the roof but they both denied that any welding was being done on the roof on the day of the fire. As such, the defendants moved for summary judgment, which was denied by the Kings County Supreme Court, finding there were issues of fact. But on appeal, the Appellate Division reversed, finding that the defendants established their prima facie entitlement to judgment by submitting evidence that they committed no act that a rational jury could infer negligently caused the fire. The Appellate Division concluded that the plaintiff’s claim that sparks from welding on the roof of the defendants' building caused the fire was speculative because the plaintiff did not actually see any welding being done that day, and there was no basis for the opinion that the welding that he smelled and heard was being done on the defendants' roof rather than inside a building or on the roof of a different neighboring building. Plaintiff's expert affidavit did not create an issue of fact as it was speculative, conclusory, and without any factual basis. Photographs submitted in opposition to the motions were also insufficient as they were taken after the fire and did not depict any welding. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Panic at the Mall: Security Guard Liability (NY) July 16, 2021 < Back Share to: Are mall security officers liable for injuries caused to patrons by mass panic such as a stampede, evacuations, or active shootings, pursuant to their duties to provide safety? A New York Appellate Court , in Grogan v Roosevelt Field Mall, was recently met with this issue when a mall patron became injured at Roosevelt Field Mall during a false panic. In 2013, security guards at a Macy’s attempted to apprehend a patron for attempting to shoplift, however, during the struggle, glass perfume bottles were knocked over and shattered to the floor. Employees and other shoppers in the mall mistook the sound of the breaking glass bottles for gun shots. In a panic, those in the nearby Dick’s Sporting Goods store began to flee, creating a panic and knocking over the plaintiff who was allegedly injured. The security company was granted summary judgment because it proved it had no duty to the plaintiff because its agreement with the mall provides that it only owes a duty to the parties in the contract; as it was only hired to provide security in the mall’s common areas, Macys, and Dick’s Sporting Goods. A previous case, Arnone v. Morton’s of Chicago/Great Neck LLC, Index No.: 603842/15 (2d Dep’t 2019), provides three situations in which a duty of care is established to third persons: (1) where the contracting party, in failing to exercise reasonable care in the performance of its duties launches a force or instrument of harm; (2) where the plaintiff detrimentally relies on the continued performance of the contracting party’s duties; and (3) where the contracting party has entirely displaced the other party’s duty to maintain the premises safely. Here, the court held that none of the situations in Arnone apply to this case, thus no duty existed to the plaintiff. Instead, the court declined to dismiss plaintiff’s negligence claims against the mall finding that triable issues of facts existed as to whether it was foreseeable that a disturbance in the mall could cause a dangerous panic and “landowners have a duty to exercise reasonable care to prevent harm to patrons on their property.” The court also found that the mall failed to prove that they did not have notice or an opportunity to control the crown before it reached the Dick’s Sporting Goods store. Thus, due to the provisions of the contractual agreement with the mall, the court held that no duty existed as to the safety of the customer but rather, the duty remained with the mall as the landowner. Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Plaintiff Assumed Risk of Funplex Foam Balls (NJ) December 13, 2017 < Back Share to: In Osei-Amoako v. Stafford FEC, Plaintiff broke her ankle when she slipped and fell on foam balls while supervising her four-year-old son in an amusement attraction, Foam Frenzy, at the Funplex owned and operated by defendant. The court granted summary judgment to defendant, holding that plaintiff’s injury was not caused by defendant’s breach of duty, but due to her own conduct. Plaintiff appealed from the order, contending that the judge erred because the facts supported plaintiff’s theory of liability against defendants. The Foam Frenzy is an amusement attraction for children. There are 8,000 to 10,000 foam balls throughout the attraction which is set up so that participants can chase each other, throw foam balls at each other, and dodge foam balls while playing in the attraction. Plaintiff alleged that she slipped and fell on one of more than fifty foam balls in her immediate area while walking toward her son. She alleged that the foam balls blended into the carpeted floor. Additionally, she witnesses two Foam Frenzy employees attempting to fix an inoperable vacuum that was used by participants to suck up and recirculate the loose foam balls back onto designated areas. The court recognized that defendants owed plaintiff a duty of reasonable care to maintain a safe environment. However, the court held that defendants did not breach that duty and there was no dangerous condition in the Foam Frenzy. The court opined that the main component of the Foam Frenzy was to play in an area overfilled with foam balls. The appellate court affirmed the trial court’s holding, as plaintiff’s injury was the result of slipping on a foam ball, and no reasonable juror could find that defendants breached its duty of care when plaintiff was engaged in the very activity that she and her son expected. Essentially, she assumed the risk inherent in a foam ball kiddie park... whatever risk that may have been. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Submitting A Claim To The Wrong Insurance Company Is Not A Reasonable Excuse For Untimely Submission Of A Claim July 29, 2022 < Back Share to: If an insured sends a claim form to the wrong insurer, that error is not a reasonable justification for failing to submit a claim to the proper insurer within the time limit enforced by the policy of insurance. In New Millennium Medical Imaging, P.C. v. 21st Century Insurance Company, 2022 WL 2525553 (2nd Dep’t 2022), a defendant insurer disclaimed coverage for a first-party no-fault claim after the plaintiff insured failed to submit a claim form within 45 days of services rendered, as required by the subject policy of insurance. As such, the insured initiated a lawsuit against the insurer to recover the first-party no-fault benefits. At the close of discovery, both parties moved for summary judgment. The insured conceded that it failed to submit the claim form within 45 days because it accidently sent the claim form to a different insurance company. It argued that this error was a reasonable justification for its breach of the policy, and that it was entitled to recover the first-party no-fault benefits. The Civil Court granted the insured’s motion for summary judgment and denied the insurers motion to dismiss the complaint. In response, the insurer appealed the Civil Court’s decision. On appeal, the Appellate Term for the Second Department reversed the Civil Court’s decision and granted the insurers motion for summary judgment, holding that the insured did not establish a reasonable justification for initially submitting the claim form to the wrong insurance company, given the claim form which the insured submitted to the wrong insurance company bore the proper insurer’s name and address. A harsh result maybe, but the court’s decision gave weight to the insurance policy provisions on notice. Thanks to Drew Fryhoff for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News If an Insured Landlord’s Alleged Faulty Workmanship Causes Damage to a Tenant’s Property, Is It Covered? (PA) August 2, 2019 < Back Share to: Recently, in Pennsylvania-Manufacturers-Indemnity-Company-v.-Pottstown-Industrial-Complex-LP, the Superior Court of Pennsylvania analyzed whether insurer, Pennsylvania Manufacturers Indemnity Company (“PMA”), was permitted as a matter of law to disclaim coverage to its insured, Pottstown Industrial Complex LP (“PIC”), for claims filed against PIC by PIC’s tenant, The Pride Group (“Pride”) (“Underlying Lawsuit”). According to the complaint in the Underlying Lawsuit, on four separate occasions, property, Pride leased from PIC, flooded causing over $700,000 in damages to Pride’s inventory. Pride claimed the water damage occurred because PIC failed to uphold its obligations under the lease to keep the roof in good repair. In the complaint, Pride only alleged a claim for breach of contract – yet, Pride did plead PIC was negligent for failing to properly maintain and repair the Property’s roof. After PMA received notice of the Underlying Lawsuit, PMA agreed to defend PIC subject to a reservation of rights. However, PMA then commenced the instant declaratory judgement action. After the close of pleadings, PMA filed a motion for judgment on the pleadings. Upon review, the trial court agreed with PMA holding PMA was not obligated to defend or indemnify PIC for the Underlying Lawsuit because Pride’s allegations of inadequate roof repairs equated to claims of faulty workmanship; therefore, the trial court held the alleged water damage did not constitute an “occurrence” as defined by the commercial general liability policy. Subsequently, PIC appealed, forcing the Superior Court to analyze whether the policy provided coverage for property damage to Pride’s property caused by faulty workmanship. The Superior Court held a claim of faulty workmanship, on its own, does not constitute an “occurrence”, especially where the only property damaged is, inter alia, “property that the insured supplied or on which it worked”. With this legal foundation in mind, and based on the case’s unique factual pattern, the Superior Court determined that since Pride sought to recover damage to its own property, which was stored at PIC’s property, Pride’s claim constituted an “occurrence.” In doing so, the Superior Court reasoned the property damage sustained by Pride was an accident – i.e., an “unexpected and undesirable event”. Although the Superior Curt noted the Underlying Lawsuit only asserted a breach of contract claim, the Superior Court stressed the factual allegations in the Underlying Lawsuit “determine whether the claims are within the coverage of an insurance policy, not the label of the cause of action selected by the underlying plaintiff.” In sum, the Superior Court’s holding is a reminder that, in the context of determining coverage, it is important to look beyond the labels of the claims and truly evaluate all factual allegations. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News When Skiers Collide is it Recklessness or Just a Risk of the Sport? (NJ) June 14, 2013 < Back Share to: There is risk in every day life, and our courts sort through how to address that risk, including which risks to encourage and to discourage. In a landmark decision, the New Jersey Supreme Court determined that it was in society's best interest to encourage vigorous physical activity even though such activity comes with the risk of injury. In its Crawn v. Campo decision in 1994, the Court recognized that recreational sporting activity such as softball offered an opportunity for physical and mental benefits not just for the individual but society at large. Thus, when faced with litigation over an injury between colliding participants, the Court enunciated a recklessness standard for claims by one player against another for injuries from a contact sporting event. Since then, the Court has applied this standard to other recreational activities that don't necessarily involve contact, such as golf in Schick v. Ferolito. Most recently in Angland v. Mountain Creek Resort, Inc., the Court extended the recklessness standard to a claim by the family of a skier against a snowboarder. The claim arose when a snowboarder collided on a slope with a skier sending him down the hill and into a cement bridge. The skier died several days later. The snowboarder claimed that he was merely avoiding another person on the slope when his snowboard made contact with the decedent's skis. The plaintiffs cited the New Jersey Ski Act that includes a list of duties for skiers and argued that a simple negligence standard should apply with respect to this statutory list. The Court disagreed and ruled that the Ski Act only applies to claims by a skier against the ski area operator. In keeping with Crawn, the Court ruled that recklessness was the appropriate standard to govern the claim. Yet, while the list could not be used to supplant common law in a claim amongst skiers, it could provide insight into "generally accepted conduct" to be expected. Although the Court sided with the defendant on the applicable standard, it declined to give the defendant snowboarder the full relief sought. Remanding the case to the trial court, the Court found the question of whether the snowboarder acted recklessly was for a jury. Specifically, the Court mentioned the lack of corroboration for the phantom skier among a litany of other assertions such as the snowboarder's failure to keep proper lookout, panicked stop, sudden change of direction, unpredictable actions, and so on. Although these might sound much like mere negligence allegations, the Court found that these claims could support a jury finding of recklessness. While this decision will give support to broad application of Crawn's recklessness standard, no doubt plaintiffs will seize on the Court's willingness to let a jury decide what suffices to support such a claim to avoid summary judgment. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News Last Gasp for Late Notice in New York November 25, 2008 < Back Share to: The late notice defense, absent a showing of prejudice, will soon disappear in January of 2009 thanks to a new law enacted by the NY Legislature. But it's not gone yet. The Court of Appeals recently held that an insured failed to comply with the policy condition requiring notice "as soon as practicable" where nine months passed between service of the suit and notification to the insurance carrier. The insured argued that it was also unaware of the lawsuit and thus unable to provide notice, but the Court held that the insured's lack of knowledge was based on the insured's own failure to update the address maintained by the Secretary of State for notification of service. The Court stated it was "unquestionably practicable" for the insured to keep its address current with the Secretary of State, and therefore it failed to comply with the policy provision. Thus, there was no coverage for the loss. Briggs v. Hanover Previous Next Contact