News Call Your Next Witness - Dr. Justin P. Schorr August 4, 2021 < Back Share to: On this week's episode, Georgia Coats and Brian Gibbons interview Dr. Justin P Schor an engineer and collision reconstruction expert with DJS Associates, Inc. -- a family owned forensic engineering firm where Dr. Schorr has worked since he was a child. In addition to his collision reconstruction and biomechanical experience, we spent much of the interview discussing autonomous vehicles. Many of us have heard or read about self-driving cars and the potential impact -- good or bad -- on the number of accidents that would result from their rollout. But as Justin points out, autonomous vehicles will necessarily be data collection systems so that they can communicate with other autonomous vehicles. Will the majority of drivers sign up to have all their vehicle's movements recorded? What's more, some studies show 90% of vehicles will need to be autonomous before we realize tangible safety improvements. Even if we start mass producing autonomous cars exclusively -- which we are not -- that 90% threshold is years away. Very interesting topic, that veered into data privacy issues that we did not anticipate. Listen here: https://lnkd.in/eZ4yebHe. For more info about Justin and his team of engineers, check out www.forensicDJS.com . If you're interesting in being a guest on Call Your Next Witness, please contact Brian Gibbons or Georgia Coats. Previous Next Contact

News N.J. Tavern Held Not Liable For Death Of Patron Not Served Alcohol - Appeals Court Reversed May 11, 2009 < Back Share to: In Bauer v. Nesbitt, the New Jersey Supreme Court unanimously overturned an appeals court ruling that would have placed extra duties on tavern owners to avoid Dram Shop Act liability for traffic accidents. The Appellate Division ruling would have placed a duty on alcoholic beverage servers to monitor every patron, including those to whom no alcohol was served, for signs of visible intoxication. The other part of the appeals court ruling would have required taverns to prevent drunken patrons from getting into cars with drunken drivers, which the Supreme Court reversed because the plaintiff did not plead a cause of action based on service of alcohol to the driver. The Supreme Court wrote that Appellate Division decision would impose a duty to monitor every guest for signs of intoxication , even those to whom no alcohol was served , and " every license holder, whether a diner or tavern , would be potentially liable if a person ate nothing more than chicken wings on the premises, but had consumed alcohol earlier off premises to the point of intoxication." http://www.judiciary.state.nj.us/opinions/supreme/A-16-08%20Bauer%20v%20Nesbitt.pdf Previous Next Contact

News Sole Fact of a Workplace Fall Falls Short For Labor Law § 240(1) Claim (NY) April 12, 2017 < Back Share to: The New York Court of Appeals recently reiterated that the fact of a workplace fall alone is insufficient to support a summary judgment under Labor Law § 240(1). In O'Brien v. Port Authority, the plaintiff, O’Brien, was injured while working for a subcontractor at the 1 World Trade Center construction site. He brought suit against the Port Authority and the general contractor. On the date of his fall, O’Brien had been working at ground level during periodic rain. When he headed down one level to retrieve his raincoat from his shanty, he slipped off the tread of the top step of a temporary exterior metal staircase (also described as a temporary scaffold) and fell down the stairs, sustaining injuries. The stairs were wet due to exposure to the elements. In addition, O’Brien testified that the stairs were “steep, slippery and smooth on the edges.” He also stated that his right hand was on the handrail, but he lost his grip because the handrail was also wet. Plaintiff submitted an affidavit from a co-worker that stated that the stairs were slippery when wet and the slippery nature of the stairs was common knowledge at the construction site. Plaintiff also submitted an expert affidavit in support of his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims. The expert opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with OSHA. His expert also opined the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing. The expert claimed that the stairs showed signs of longstanding wear and tear and lack of adequate anti-slip protection. In opposition and in support of defendants’ cross-motion, their expert opined the staircase was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” The defense expert observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. The defense expert also disputed the staircase was smaller, narrower or steeper than usual. The trial court denied all parties’ motions on the Labor Law § 240(1) claim, finding issues of fact as to whether the temporary staircase provided proper protection. The trial court, however, granted plaintiff summary judgment on his Labor Law § 241(6) claim based on its determination that there was a violation of Industrial Code 12 NYCRR § 23-1.7 (d), which states that “Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” On appeal, with one judge dissenting, the First Department modified the order by granting plaintiff's motion on his Labor Law § 240(1) claim and denying him summary judgment on the Labor Law § 241(6) claim. The First Department noted the conflicting expert opinions as to the adequacy and safety of the staircase, but nonetheless held that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling. The Court of Appeals considered only the Labor Law § 240(1) claim, finding that the First Department improperly found the stairs inadequate on the sole basis that the plaintiff fell – again with one justice dissenting. The majority of the Court reiterated its clear holding from past decisions that “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” and distinguished this case from those where a ladder collapses for no apparent reason. The Court found that there were questions of fact as to whether the staircase provided adequate protection – particularly with respect to the conflicting expert opinions. While both expert affidavits were phrased in the context of compliance with industry standards, the Court held compliance is not enough to establish adequacy, but their ultimate opinion on adequacy did raise an issue of fact. Justice Rivera’s lengthy dissent focused on the majority’s reliance on the “industry standard” as the bases of the expert opinions and argues that reference to industry custom and practice contradicts the legislative intent of the statute by enabling owners, contractors and their agents to set their own standard of care for workers’ protections, thereby diminishing their statutory obligations. While the argument that a plaintiff was the sole proximate cause of an accident must be supported by an expert affidavit, the practitioner must ensure that the basis of any expert’s findings is valid, in order to demonstrate a question of fact requiring the issue to be decided by a jury. Despite the dissent, an opinion grounded on “industry standards” is a valid basis for an expert opinion. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Labor Law Liability Imposed Against Catholic Church (NY) January 3, 2020 < Back Share to: New York’s Labor Law, section 241(6), imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ortega v Roman Catholic Diocese of Brooklyn is a prime example of how strict this rule is. In that case, plaintiff was working as a concrete laborer at property owned by Roman Catholic Diocese of Brooklyn. He was injured when the front leg of a three-wheeled compressor gave way, causing a portion of plaintiff’s ring finger to become severed by the bent leg of the compressor. At his deposition, plaintiff testified that the locking mechanism that served to stabilize the front leg and wheel of the compressor had broken about two months before the accident. To remedy it, plaintiff’s boss replaced the broken component with an ordinary screwdriver. The accident occurred when the screwdriver popped out of the locking mechanism as he and coworkers were attempting to the push the compressor up a driveway. The Appellate Division, 2nd Judicial Department, overruled the Kings County trial court’s denial of summary judgment sought by plaintiff. It held that there were violations of the Labor Law, and therefore the owner of the property, Catholic Diocese, was liable for said violations pursuant to Labor Law section 241(6). The fact that Catholic Diocese had nothing to do with fixing the compressor was irrelevant, for the Labor Law imposes a nondelegable duty on landowners to provide a safe working place for workers. Thanks to Mike Noblett for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Stuck With the Bill – Even if You’re an Excess Carrier in New York. October 7, 2010 < Back Share to: In the case of RLI Insurance Company v. Leslie Smiedala, et al., RLI, an excess insurance carrier, commenced a declaratory judgment action in New York which it sought a declaration that, in the event that the primary insurer’s policy limits were exhausted (an event that had not yet come to pass), it would not be obligated to defend or indemnify various parties. This endeavor proved unsuccessful. As a result, the defendants sought to recover the fees they had accrued in the declaratory judgment action against the “losing” carrier. The trial court agreed and granted fees. An appeal to the 4th Department resulted. In the appeal, RLI argued that, since it had not yet paid any defense or indemnity monies in the underlying action, it could not be said to have “lost” the declaratory judgment action and thus was not obligated to reimburse the defendants. The 4th Department disagreed – http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9886142. It held that “although plaintiff's duty to defend Regional may not have been triggered in the underlying action because the primary coverage has not been exhausted, Regional may nevertheless recover its attorneys' fees from plaintiff incurred in the declaratory judgment action inasmuch as Regional was "cast in a defensive posture by the legal steps [plaintiff took] in an effort to free itself from its policy obligations.” If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Art Gallery’s Covid-Related Losses Are Not Covered By Insurance Policy January 7, 2022 < Back Share to: In 10012 Holdings, Inc., d/b/a Guy Hepner v. Sentinel Insurance Company, LTD., the United States Court of Appeals for the Second Circuit affirmed the District Court’s decision to dismiss plaintiff’s claim for failure to state a proper basis for relief. Guy Hepner, a New York City-based fine arts gallery displaying the works of Andy Warhol, Pablo Picasso, and many others, filed suit against its insurer Sentinel for breach of contract after Sentinel denied coverage under its policy for financial losses suffered by Guy Hepner as a result of government mandated Covid-19 restrictions. At various times during the current Covid-19 epidemic, New York has suspended the operations of non-essential businesses in an attempt to quell the spread of the Covid-19 virus. Guy Hepner argued that the financial losses it suffered due to closing its doors should be covered under various provisions dealing with property damage. These sections generally provide coverage where the insured’s business is unable to operate due to property damage, and as a result, the insured suffers financial losses. However, the United States District Court for the Second Circuit ruled in favor of Sentinel, stating that because Guy Hepner “alleges only that it lost access to its property as a result of COVID-19 and the governmental shutdown orders, and not that it suspended operations because of physical damages to its property”, Guy Hepner’s losses were not covered by the policy. This ruling is one of many examples in which the courts have refused to interpret insurance policy sections dealing with businesses losses caused by property damage as also encompassing business losses caused by government shutdown initiatives. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Examinations Under Oath: Helpful Whether the Insured Appears or Not (NY) December 21, 2018 < Back Share to: Examinations under oath or “EUOs” are an excellent tool to flesh out the details of a claim which at first glance appears confusing or suspicious. The New York Supreme Court recently issued a reminder that these proceedings are not a mere formality, but a condition precedent for coverage at all. In Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C.,the claimant submitted bills for medical treatment rendered pursuant to a no-fault insurance policy. However, the principal of the claimant had previously been found guilty of Medicare fraud, and there was reason to believe he was himself hospitalized at a time when some of the services claimed were rendered. 2017 NY Slip Op 32943(U) The insurer served the claimant with four notices requesting an EUO, one in each of July, August, September, and October of 2016 and the claimant failed to appear. The insurer commenced a declaratory judgment action, arguing no coverage whatsoever was owed under the policy for this failure to appear, submitting affidavits explaining the reason for the necessity of the EUO and attempts to serve the claimant with the proper notices. Judge Greenwood granted the insurer’s motion for summary judgment, ruling the claimant had violated a condition precedent to coverage, contained both within the insurance policies at issue and the relevant regulation governing no-fault insurance, which vitiated the contract as a matter of law. When in doubt, an EUO can shed important light on critical areas in questions of coverage—and, sometimes, if the insured fails to cooperate, may provide a basis to disclaim coverage in its own right. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News FDIC Could Become Federal Insurance Regulator October 29, 2008 < Back Share to: Reuters reports that The Federal Deposit Insurance Corp.'s powers could be expanded if Congress decides to shift insurance companies from state regulation to federal regulation. States currently regulate insurance companies. However, according to FDIC Chairman Sheila Bair, the FDIC could start providing guarantees for insurance companies, much like it already guarantees the deposits of most U.S. banks, if the insurance industry comes under federal regulation. Previous Next Contact

News McDonald’s Summary Judgment Denied: Would You Like Discovery With That? June 25, 2019 < Back Share to: Pre-discovery motions for summary judgment are extraordinarily difficult to succeed on. Opposition to such a motion essentially writes itself. "Counsel's argument is premature, as further discovery is likely to reveal unknown information, and discovery has not even commenced yet, et cetera, et cetera... And while McDonald’s pulled off a "Mcflurry" by succeeding on its motion at the state level, the Appellate Court hamburgled its victory, reversed, and remanded for further proceedings. In Peoples v. McDonalds, the Court of Appeals of Indiana found that McDonald’s could not avoid discovery obligations and simultaneously move for summary judgment. In Peoples, a ten-year old patron was injured when he tried to get off a stool and it lifted off the floor and broke, causing him to fall. A complaint was filed against McDonald’s and was later amended to add Indiana McDonald’s LLC, Randy Shields, and Toucan, Inc. Plaintiff served discovery demands on April 6, 2018. McDonald’s sought two extensions of time to respond which were granted and time extended to July 31, 2018. On July 10, McDonald’s moved for summary judgment, without responding to discovery, based solely on an affidavit from Shields as franchisee absolving McDonald’s from any responsibility for the bar stools. A franchise agreement was not attached to the motion. The grounds for summary judgment were similar to New York’s out-of-possession landowner statute, but due to its specificity, is rarely invoked until after completion of depositions. In this case the Court was clearly perturbed that despite multiple requests for extension of time to serve discovery responses, the motion was made in advance of a single document exchange. As a general rule, summary judgment is improper while pending discovery is directly relevant to matters at issue such as the legal relationship between McDonald’s, Shields, and Toucan here. The discovery demands were not seeking overly broad of "proprietary" information, such as, for example, Special Sauce ingredients. (We're pretty sure it's just Thousand Island dressing, but that's a topic for another post.) Even more offensive to the court was McDonald’s argument that plaintiffs failed to diligently pursue discovery. The Court found that as McDonald’s moved for summary judgment 3 weeks before the discovery deadline ended, there was nothing more plaintiffs could affirmatively do to preserve their claims and, “To hold otherwise would be to sanction the type of “gotcha” litigation that this Court so abhors.” Thanks to Mehreen Hayat for her contribution to this post. Please contact Brian Gibbons with any questions. Previous Next Contact

News Pollution Exclusion Struck Down in Chinese Drywall Litigation. March 31, 2010 < Back Share to: In the case of Simon Finger and Rebecca Finger vs. Audubon Insurance Co, Audubon denied the plaintiffs' claim for first-party coverage pursuant to, among other things, a pollution exclusion. The state trial court ruled for the homeowners and held that the pollution exclusion "was never intended to apply to residential homeowners claims for damages caused by substandard building materials.” While appeals are likely, for the moment, this decision has significant coverage implications for CGL carriers with drywall exposure. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.nola.com/business/index.ssf/2010/03/orleans_judge_says_policy_excl.html http://www.businessinsurance.com/article/20100331/NEWS/100339980 Previous Next Contact

News Are “Business Interruption” Claims Now “Sports Interruption” Claims? (PA) June 26, 2020 < Back Share to: On Tuesday June 23, 2020, fifteen minor league baseball teams filed a complaint against their insurers in the federal district court for the Eastern District of Pennsylvania. The teams, which include, among others, the Chattanooga Lookouts in Tennessee and the Fort Wayne TinCaps in Indiana, claim that they are owed coverage under their respective business interruption policies. The teams allege that their insurers wrongfully refused to pay their claims for financial losses caused by the indefinite postponement of their seasons because of the COVID-19 pandemic. The teams claim that “with no players, no games, and no fans, the teams’ losses of business income for the 2020 MiLB baseball season have been near total.” Further, “with virtually no source of income, and accruing expenses, the teams face catastrophic financial losses.” Thirteen of the fifteen teams that filed suit have already had their claims denied. The remaining two claim that their claims will likely be denied as well. Like business interruption claims by restaurants and clothing stores, the outcome of the teams’ suit will likely turn on the definition of “physical damage.” The teams’ insurers will argue that their respective business interruption policies are limited to direct physical loss to the teams’ property. The teams allege, however, that they suffered “physical damage” because they lost the ability to use their ballparks. Ultimately, the teams’ suit will provide another mechanism for the courts to further define the meanings of “physical damage” and what really is a “business”—or in this case—“sports interruption.” Thanks to John Lang for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News "Borrowed Employee" Status Remains Question of Fact in Pennsylvania December 20, 2013 < Back Share to: Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar. In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia. More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck. In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas. In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine. To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties. Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar. On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine. Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.” According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor. In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar. In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury. As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial. Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact