Wade Clark Mulcahy LLP

News Plaintiff's Improper Use Of A Supplemental Bill Of Particulars And Punitive Damages Thwarted March 6, 2008 < Back Share to: On the eve of trial in the personal injury action Kraycar v. Monahan, plaintiff successfully moved for leave to serve a supplemental bill of particulars and for leave to serve an amended complaint seeking punitive damages. The Appellate Division, Second Department reversed since plaintiff improperly sought to introduce only new injuries with the supplemental bill of particulars. Moreover, since it was not established that defendant's actions were willful or wanton negligence, plaintiff's added claim for punitive damages was without merit, equally warranting a denial of that branch of his motion. http://www.nycourts.gov/reporter/3dseries/2008/2008_01923.htm Previous Next Contact

News NY Court to Plaintiff: Look Both Ways When You Cross the Street! December 15, 2011 < Back Share to: In Garcia v. El-Zien, plaintiff, a pedestrian, was injured when she struck by a vehicle making a right turn at the intersection. Plaintiff was crossing in the crosswalk and the light was in her favor. Certainly, not a favorable set of facts for the defendant, and plaintiff moved for summary judgment. However, while noting that the vehicle was in violation of traffic laws, the court denied summary judgment on the basis that plaintiff did not show that she was free of comparative fault. Specifically, plaintiff failed to state that she looked for oncoming traffic before she began to cross the street. Looks like Mom and Dad were right again! http://www.nycourts.gov/reporter/3dseries/2011/2011_08902.htm Thanks to Jung Lee for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com . Previous Next Contact

News 9/11 $575,000,000 Settlement Rejected by Court. March 20, 2010 < Back Share to: In a stunning development, Judge Alvin Hellerstein has rejected the $575,000,000 settlement reached by the parties. Judge Hellerstein ruled that the settlement was "not enough." It's back to the drawing board in MC 100. http://www.1010wins.com/-This-Settlement-Is-Not-Enough-/6615869 Previous Next Contact

News Subcontractor’s Requirement to Indemnify “Contractor,” Did Not Refer to All Contractors on Site, Regardless of Supervisory Capacity. November 6, 2012 < Back Share to: In Almonte v. Cauldwell-Wingate, Cauldwell was the general contractor for renovation of a New York courthouse. Cauldwell hired ASM Mechanical Systems as its HVAC contractor, who in turn subcontracted the work to Bradshaw Mechanical Co., Inc. The ASM/Bradshaw contract provided that "the Subcontractor agrees to indemnify and hold harmless the Contractor (insert any additional parties), their officers, directors, agents, employees and partners" for all claims arising from, in connection with, or as a consequence of the work on the construction site. No "additional parties" were inserted, nor did the contract anywhere refer to Cauldwell. Almonte, a Bradshaw employee, fractured his wrist while working on the project and sued Cauldwell. Cauldwell impleaded several parties including Bradshaw. Bradshaw moved to dismiss the third-party complaint on the basis that there was no “grave injury,” and no contract requiring Bradshaw to indemnify Cauldwell. In opposition, Cauldwell argued that since it was the general contractor and ASM had no involvement after subcontracting to Bradshaw, it was the “Contractor” that supervised the project, and to whom Bradshaw owed indemnification. The court disagreed and stated, that “not only the intent to indemnify, but also the scope of the indemnification," and the number and identity of the indemnitees, must be "unmistakably clear." Accordingly, since the ASM/Bradshaw contract did not unmistakably require Bradshaw to indemnify Cauldwell, the court granted Bradshaw’s motion to dismiss Cauldwell’s third-party claims against it. As noted by the court, in defending claimants’ employers, even if an indemnification provision exists, it is extremely important to ensure that the language is unmistakably clear. If your client did not intend to indemnify a party that has asserted claims against it, a motion to dismiss is likely warranted. http://decisions.courts.state.ny.us/fcas/fcas_docs/2012OCT/3001103652010003SCIV.pdf For more information about this case or WCM's New York Labor Law practice, feel free to contact Cheryl at cfuchs@wcmlaw.com   Previous Next Contact

News Lender Beware– Suit Against Motorcycle Owner Survives MSJ (NY) April 7, 2017 < Back Share to: The Tompkins County Supreme Court recently denied summary judgment to a motorcycle owner in Perkins v. Cnty of Tompkins, 2014-0037 (March 2017) because of an issue of fact as to the owner’s entrustment to the operator of her motorcycle. Perkins arose in 2012 when a motorcycle owner lent her motorcycle to her 30 year old brother, an experienced rider. She also spent 10 minutes showing her brother how to operate that specific motorcycle. Shortly thereafter, the operator’s brother collided with another motorist. The motorcycle operator brother brought suit against the other motorist claiming negligence. The motorist then brought a third party action against the motorcycle owner, seeking contribution/indemnification claiming the operator negligently entrusted the motorcycle to her brother. The motorcycle owner moved for summary judgment arguing that the motorist lacked standing for his claims since the operator is not a third party injured by the entrustment. The court found that “unquestionably the harm to third parties in this case is not the direct, physical injury ordinarily caused by dangerous instruments.” Id. But that the financial harm resulting from potential liability of a ‘concurrent tort-feasor’ is sufficient to give rise to a cause of action for indemnification. Here, the operator had standing to bring a claim against the motorcycle owner. The court found that although most cases of negligent entrustment involve an adult entrusting a dangerous instrumentality to a minor, negligent entrustment can be based upon “the degree of knowledge the supplier had concerning the entrustee’s propensity to use the chattel in an improper fashion.” The Owner argued that the operator was not a minor and she was aware that the operator had previously owned and operated a motorcycle. Unfortunately, she denied knowledge of knowing whether the operator had a license to operate a motorcycle or whether the operator had undergone any training or instruction on the motorcycle. The court found that as a matter of law, it cannot be said that Owner exercised reasonable care in determining whether the operator possessed the requisite intelligence and training, finding at a minimum she should have inquired as to the status of his license. The Court’s ruling demonstrates the extreme importance of taking precaution before lending your vehicle -- especially a motorcycle. Frankly, the ruling is not surprising, considering that motor vehicle owners are often kept in lawsuits under similar circumstances. Thanks to Patrick Burns for his contribution to this suit. Please email Brian Gibbons with any questions. Previous Next Contact

The cost of insurance fraud has been estimated at $80 billion per year. As former prosecutors and government counsel, WCM attorneys are uniquely qualified to combat this ongoing problem that impacts insurers across the world. We work with Special Investigative Units and claims specialists to perform sophisticated fraud investigations that may include conducting examinations under oath, liaising with state and federal law enforcement agencies, and employing forensic experts in identifying and preventing fraud. Our fraud practice includes assisting insurers in first party insurance claims involving property damage and personal injury, including claims of arson and theft; prosecuting and defending litigation arising out of fraudulent claims for coverage; and conducting internal investigations and audits to determine the presence, source and extent of fraudulent activity. Fraud Investigation and Prosecution The cost of insurance fraud has been estimated at $80 billion per year. As former prosecutors and government counsel, WCM attorneys are uniquely qualified to combat this ongoing problem that impacts insurers across the world. We work with Special Investigative Units and claims specialists to perform sophisticated fraud investigations that may include conducting examinations under oath, liaising with state and federal law enforcement agencies, and employing forensic experts in identifying and preventing fraud. Our fraud practice includes assisting insurers in first party insurance claims involving property damage and personal injury, including claims of arson and theft; prosecuting and defending litigation arising out of fraudulent claims for coverage; and conducting internal investigations and audits to determine the presence, source and extent of fraudulent activity. Practice Lead Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Download Download

News Failure to Follow Directions Results in $1,000,000 in UM Benefits (PA) April 6, 2016 < Back Share to: On March 24, 2016, the United States Court of Appeals for the Third Circuit affirmed a summary judgment order, declaring that Zurich was liable for up to $1,000,000 in uninsured motorist (“UM”) coverage for injuries suffered by Stefan Freeth. Freeth was injured while working on the back of a truck owned by his employer, Road-Con, Inc. A passing tractor-trailer struck a traffic sign, propelling it into Freeth’s leg. Because the tractor trailer was never identified, Road-Con’s business insurance provided UM coverage for Freeth’s injuries. That insurance policy was issued by Zurich, who contended that the policy only had a limit of $35,000 in UM coverage due to the existence of an executed Uninsured/Underinsured Motorists Coverage Selection/Rejection Limits Summary Form. Freeth filed suit, seeking a declaration that the policy provided $1,000,000 in UM coverage. In response, Zurich argued that in February 2012, prior to Freeth’s injury, Road-Con (through its president) signed an Uninsured/Underinsured Motorists Coverage Selection/Rejection Limits Summary Form (“Summary Form”) electing to reduce the UM coverage to $35,000. The Summary Form advised the insured that the form was “NOT A SUBSTITUTE FOR REVIEWING EACH INDIVIDUAL STATE’S SELECTION/REJECTION FORM FOR UM AND UIM COVERAGE. YOU ARE REQUIRED TO DO SO.” In light of this warning, Freeth argued that the signature on the Summary Form was not a sufficiently clear manifestation of Road-Con’s intent to reduce the coverage, and, therefore UM coverage defaulted to the same amount as the bodily injury liability coverage, or $1,000,000, by operation of Pennsylvania law. Despite the language in the Summary Form warning Road-Con that signing the form was insufficient to effect a reduction in coverage, Road-Con never signed a Pennsylvania-specific form requesting reduced UM coverage, even though it did so for other states. The court found this omission to be dispositive, reasoning that to any reasonable reader, the repeated emphatic warnings in the Summary Form would create an expectation that coverage amounts within a given state would be set at levels provided by law unless a form designed and submitted specifically for that state requested otherwise. The court reasoned that if Zurich warned its insureds that an additional state-specific form was needed to reduce coverage and did not enclose the form (or enclosed it but never received it back), it could not prevail on the theory that an insured’s signature on the very document that contained the warning was, in the absence of the state-specific form, a sufficient manifestation of intent to reduce coverage. Accordingly, the court affirmed the district court’s decision, holding that the mere act of signing a document like the Summary Form would ordinarily not suffice to reduce coverage, because the language on the Summary Form itself clearly and repeatedly stated that signing the Summary Form was insufficient to effect a reduction in coverage. Thanks to Hillary Ladov for her contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News Damages Award for Meat Slicer Injury Modestly "Sliced" By Comparative Fault (PA) November 4, 2010 < Back Share to: A delivery person injured by the blade of a disassembled meat slicer recently received over $1.5 million from a Pennsylvania jury. In Fuller v. Easton Healthcare Services Group, Plaintiff, a delivery person for a knife-sharpening and appliance service, was picking up a meat slicer that had been loaned to the Easton Health & Rehabilitation Center. When Plaintiff arrived to retrieve the loaner slicer, an employee of Healthcare Services Group loaded the disassembled slicer onto a cart and wheeled the cart to Plaintiff’s delivery van. As a result of the slicer’s disassembly, the blade guard to the slicer had been removed and placed on a lower shelf of the cart, underneath the slicer itself. Subsequently, the employee lost his balance while attempting to load the slicer into Plaintiff’s delivery van, and in her effort to assist the employee, Plaintiff reached over top of the slicer and lacerated her right forearm, severing nine tendons, an artery, and two nerves. She underwent emergency surgery to reattach the severed nerves and tendons, as well as re-establish blood flow to the severed artery. Despite physical therapy, Plaintiff needed multiple surgeries to remove nerves from her ankle and implant them into her hand, an index finger amputation, and a fusion of her thumb. Plaintiff sued Healthcare Services Group alleging that the removal of the blade guard from the slicer, the failure to reassemble the slicer, and the assumption that Plaintiff would notice that the slicer was not reassembled created an unsafe condition that could foreseeably cause harm. Healthcare Services Group countered that, because it was Plaintiff’s job to retrieve the slicer, defendant was not responsible for placing the blade guard on the slicer, and that Plaintiff’s failure to notice that the blade guard was missing rendered her contributorily negligent. Ultimately, the jury found that Plaintiff was 13% liable and Healthcare Services Group was 87% liable. Thus, Plaintiff’s damages, which included medical costs, lost earnings, pain and suffering, and a loss of consortium claim by her husband, were only reduced from $1,868,987.25 to $1,627,318.91. As such, the jury obviously felt the defendant's handling of the meat slicer was the issue, as opposed to plaintiff's mishandling. This case present the danger of a defense strategy of placing all the blame on a likely sympathetic plaintiff. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Required or Simply Permitted to Live on Premises? The Distinction May Render the Action Within the Purview of the Workers' Compensation Law. May 22, 2012 < Back Share to: In Kerker v. Maple View Dairy, Inc., the decedent died in a fire while he slept in housing accommodations provided by Maple View. Maple View hired the decedent pursuant to a written farm work agreement. The English version of the agreement stated that the decedent was required to sleep on the premises as a condition of employment. The Spanish version of the agreement, which the decedent purportedly signed, contemplated sleeping arrangements, but did not state that it was a requirement of the job. The court stated, "if the employee is required to live on the premises either by virtue of the contract of employment or by reason of the nature of the employment, any injury resulting from normal activities on the premises is compensable under the Workers' Compensation Law ." "On the other hand, if the employee is on the premises solely out of the kindness of the employer, injuries are not compensable" under the workers' compensation law, and thus not barred by Workers' Compensation Law §11. Here, the court could not determine as a matter of law that the decedent was required to sleep on the premises as part of his job, thus it was not clear that he was injured during the course of his employment. Accordingly, the court denied Maple View's motion to dismiss the complaint on the basis of the Workers' Compensation Bar. http://scholar.google.com/scholar_case?case=2878444439533808348&hl=en&as_sdt=2&as_vis=1&oi=scholarr   If you have any questions about this post or WCM's workers' compensation practice, please contact Cheryl Fuchs at cfuchs@wcmlaw.com   Previous Next Contact

News NJ Supreme Court Reverses $71 Million Verdict Due to Tainted Jury Voir Dire July 28, 2009 < Back Share to: In Pellicer v. St. Barnabas Hospital, -- N.J. --, 2009 WL 2185492 (2009), a $71 million award was entered by the trial court for a serious brain injury to a four month old allegedly deprived of oxygen because of endotracheal tube problems following spinal surgery. The defendants appealed on the grounds that there had been cumulative errors and uneven treatment of the parties by the trial judge. The Supreme Court agreed with the defendants and specifically found that the jury pool had been tainted by a voir dire process that permitted the entire jury pool to hear numerous comments critical of the specific hospital where the infant was treated and hospitals, doctors and health care providers in general. Rather than conduct sidebars to explore biases of the jurors, the trial court permitted the potential jurors to air their thoughts about medical providers in open court. As a result the Supreme Court had “no confidence” that the jury could disspassionately consider the highly emotional facts presented. Additionally, the Supreme Court cited other errors that pervaded the trial as well including the trial court’s acquiescence to the plaintiff’s repeated use of inappropriate and irrelevant considerations that inflamed the jury and unequal treatment of the parties in various rulings. Previous Next Contact

News SJ Granted In Face Of Conclusory Defendant Affidavit On Labor Law Claim (NY) December 9, 2022 < Back Share to: This week the First Department, Appellate Division, in Castillo v. TRM Contracting 626 LLC, et al., 2022-00671, affirmed a worker’s partial motion for summary judgment on Labor Law § 240(1) liability. While attempting to cover a window with plastic before starting to paint, plaintiff proved that he fell from an unsecured, 6-to-8-foot-tall A-frame ladder that was in poor condition and leaning against a wall in a closed position because of obstructions at the work site, namely, large boxes preventing him from fully opening the ladder. This established a violation under Labor Law § 240(1) because the workplace conditions prevented a worker from placing the ladder in an open, secure position, causing the worker injury because the ladder shifted, slipped, or collapsed. The Court faulted defendants for their failure to raise an issue of fact through an affidavit from defendant’s principal, holding that that affidavit was conclusory and did not cite any facts describing the location of plaintiff’s accident, did not show that the principal was aware of where plaintiff had been working, and did explain how plaintiff could have opened the ladder and properly secured it in the work area. Moreover, the competing affidavit did not deny plaintiff’s testimony that he was not allowed to move the boxes. The Court also rejected defendants’ argument that plaintiff’s partial motion was premature because defendants did not prove that the foreman, whose deposition defendants wanted to take but had never noticed, would provide relevant testimony as he was not present to supervise plaintiff the day of the accident. Thanks to Abed Bhuyan for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Juries: Always Unpredictable (NY) June 21, 2019 < Back Share to: In Ankney v Mohamad, the plaintiff was struck by a motor vehicle while riding his bicycle adjacent to a public park, sustaining numerous injuries including a commuted displaced fracture of the clavical, a fractured scapula and three fractured ribs. The matter ultimately proceeded to trial on the sole issue of damages, where plaintiff relied upon certified medical records confirming each of his injuries, as well as testimony of his own pain and suffering, which included over one hundred physical therapy sessions over the course of a year. Notably, defendant made no attempt to contest the cause or severity of plaintiff’s injuries, offering no evidence at all at trial. You read that right, a damages only trial with no defense presented to combat the causal nature of the injuries or the severity of the injuries. Nevertheless, as a testament to the unpredictable nature of a jury trial, the jury returned a verdict finding that plaintiff had suffered no pain and suffering as a result of the accident, despite the overwhelming evidence presented. Plaintiff immediately moved to set aside the jury verdict, pursuant to CPLR 4404(a), which provides that the verdict in a jury trial may be set aside if there is no rational interpretation of the evidence which would justify the jury’s conclusion. Not surprisingly, the court agreed with plaintiff, noting that “[t]his Court has never seen a verdict which so obviously must be set aside. There is no possibility that any rational person could under any circumstances ever find that [plaintiff]… endured no pain and suffering.” As such, the verdict was set aside and a new trial was ordered. While defense attorneys always seek low verdicts, this finding was a loss for the defense, as they now have to spend more money trying this case all over again. Thanks to Tyler Rossworn for his contribution to this post. Please contact Georgia Coats if you have any questions. Previous Next Contact