Jenny Rajkowski Paralegal Philadelphia jrajkowski@wcmlaw.com +1 267 239 5526 Professional Experience At WCM, Jen: assists with a variety of general liability and automobile claims; coordinates discovery; prepares and coordinates documents for dispositive briefings and trial preparation. Jenny is the primary paralegal for our PA office Before joining WCM, Jen was a Senior Paralegal for Litigation and Labor & Employment law for the New York offices of two large international law firms. Jen also has experience with federal labor litigation, civil litigation and intellectual property litigation for the Washington, D.C. offices of three large international law firms. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education B.A. Political Science, American University

News Court of Appeals finds Question as to Constructive Notice Despite Security Footage (NY) October 13, 2017 < Back Share to: Premises cases can hinge on notice of an allegedly defective condition, and an eventual accident. For defendant property owners, proving that you did not create or have notice of the dangerous condition is a continuous uphill battle. It is even more difficult when the condition is water or debris that is transient and could manifest at any time. Under such circumstances, a defendant property owner must show when the area was last inspected and/or cleaned on the date of the accident to establish that the condition was not present for a sufficient period of time to constitute constructive notice. In Parietti v. Wal-Mart Stores, Inc., 140 A.D.3d 1039, 34 N.Y.S.3d 474 (2d Dept. 2016), reversed (Sept. 14, 2017), plaintiff slipped and fell on a wet spot near an ice machine inside a Wal-Mart store. Wal-Mart submitted affidavits from store employees who were working in the area at and around the time of the accident and surveillance footage which showed a Wal-Mart employee constantly walking and inspecting the area where the accident occurred. The Appellate Division, Second Department, reversed the trial court’s initial denial of the defendants motion and found that defendant Wal-Mart established that the alleged wet condition was not present for a sufficient period of time for Wal-Mart’s employees to discover and remedy it prior to the accident. This was supported by plaintiff’s own testimony that she did not see the water when she initially walked in the area. Thereafter, plaintiff sought leave to appeal to the Court of Appeals. The Court of Appeals heard the case and concluded that despite the evidence presented, a question of fact exists as to the length of time the water was present and if it were long enough that Wal-Mart should have discovered and remedied the condition. While the Court did not elaborate, it is possible that the footage actually hurt Wal-Mart’s position in that the area was constantly inspected so the condition, should have been noticed and cleaned immediately. This decision highlights the difficulty in obtaining summary judgment on a slip and fall case for a defendant. It is even more difficult when the defendant does not have footage or a witness to testify about when the area was last inspected or cleaned on the date of the accident. We expect Parietti to be widely cited by the plaintiff''s bar in summary judgment motion practice going forward. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Stumped: Cement Signpost Stump is Part of Sidewalk under NYC Administrative § 7-210 June 29, 2017 < Back Share to: In a city as crowded and fast paced as New York, signs and signposts are everywhere, advising of parking, towing zones, traffic, construction, and other realities of urban life. The signs are installed by various City and quasi-City agencies such as the Department of Transportation and Transit Authority. Figuring out what exactly the signs mean is often a difficult task. Given the City’s ever changing landscape and development signs are routinely erected, dismantled, and moved. Who is responsible for remnant area around sign, in a trip and fall setting – the City or the abutting property owner? In Bronfman v East Midtown Plaza Hous. Co., Inc., 2017 NY Slip Op 05189, the First Department affirmed that the abutting property owner had a duty to maintain not only the sidewalk itself, but also the cement mound around the stump of signpost on a sidewalk located in a pedestrian plaza pursuant to Administrative Code of the City of New York § 7-210. Plaintiff tripped and fell upon a cement mound around the stump of a signpost, on a sidewalk located in a pedestrian plaza that was a sidewalk easement granted to the City for the benefit of pedestrians. Defendant, the owner and operator of premises adjacent to the defective sidewalk, asserted that the stump was the remnant of a sign that the City had installed. The Appellate Division ruled that the motion court correctly denied defendant's motion for summary judgment dismissing the complaint, because as abutting property owner, the defendant had a duty to maintain the sidewalk pursuant to Administrative Code of the City of New York § 7-210. Even assuming that the signpost belonged to the City, and was therefore not part of the "sidewalk" for purposes of the statute (Smith v 125th St. Gateway Ventures, LLC, 75 AD3d 425, 425 [1st Dept. 2010]), defendant still had a duty under the statute to maintain the sidewalk around the signpost stump. This case illuminates the expansive scope of the abutting property owner’s duty under the city “Sidewalk Law.” While the City may have installed the sign, signpost, and cement stump structure, whatever remains following the signposts removal is the property owner’s responsibility. Thanks to Justin Pomerantz for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Email Update: NJ Limits Company's Right to Read Personal Employee Emails March 31, 2010 < Back Share to: In our post of July 9, 2009, we discussed a company's right to search for and use an employee's personal email communications with her attorney exchanged through a company provided laptop computer. Stengart v. Loving Care Agency, Inc. In Stengart, the New Jersey Appellate Division decided in favor of the employee and privacy advocates in a case closely followed by the employment bar. The New Jersey Supreme Court believed that the issue was so important that it granted interlocutory leave to appeal and stayed the underlying action until it reviewed that decision. The facts in Stengart were relatively simple. Marina Stengart was an employee of Loving Care who was provided with a laptop for company related work. The employee handbook of Loving Care alerted employees that emails were considered part of the company's business records and were to used principally for business purposes. Athough employees were cautioned against considering such communications either private or personal, the handbook explicitedly permitted occasional personal emails. Stengart was not a happy employee. While contemplating legal action against her employer, she used her company laptop to access her private, password-protected Yahoo mail account through the internet to communicate with her attorney. When she left the company a short time later, she turned in her laptop and thereafter filed an employed related civil action against Loving Care. In response, the company's lawyers retained a forensic expert who recreated her laptop's harddrive and retrieved several of the emails exchanged between Stengart and her attorney. These emails were eventually identified in the company's discovery responses, which drew a vigorous objection by the plaintiff. The Supreme Court was faced with the specific question of whether these emails were protected by the attorney client privilege and the broader question of under what circumstances an employer may search for and use the contents of email communications between an employee and her attorney when those communications are facilitated by the company's electronic resources. A sticky wicket indeed. Siding with the employee and advocates of privacy in this electronic age, the Supreme Court ruled that Stengart had a reasonable expectation of privacy under the circumstances. Although the company provided and presumably owned the laptop, she used her private, password-protected Yahoo email account --not the company server or email system-- to communicate with her attorneys. In addition, the company employee handbook was ambiguous in its email policy. On the one hand, the handbook cautioned against any privacy expectation when using the internet or exchanging emails while, on the other hand, it permitted occasional personal email use. On the balance, the court found that the employee's right to confidential communications with her attorney trumped the company's absolute right to monitor and access all email communications assisted by company resources. Stengart provides important guidance on the scope of an employee's legitimate privacy expectations in the work place when electronic communications are involved. While an employer should use care in formulating a clear and well defined electronic use policy in its handbook, there are limits to a company's legal right to search for and use an employee's personal email exchanges no matter how what the handbook states. If you have any questions about this post, please contact Paul Clark at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A1609StengartvLovingCareAgency.pdf Previous Next Contact

News Advertisements Do Not Necessarily Create Warranties (PA) June 4, 2009 < Back Share to: A Pennsylvania appellate court recently considered whether to reverse a dismissal entry in an alleged breach of contract and breach of warranty claim involving the sale of a used truck. See Kloniecke v. GT Motors, Inc., 2021 WL 276177, No. 806 MDA 2020 (Pa. Super. Ct. Jan. 27, 2021). Kloniecke’s Complaint alleged GT Motors “warranted that the vehicle was in a state of good repair and was safe for operation” in the advertisement. More specifically, Kloniecke alleged GT Motors concealed mold damage in the cab of the truck that made it impossible to operate. Kloniecke attached the bill of sale to his Complaint which provided for no express or implied warranties and stated that the sale was “AS IS: THIS MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY EITHER EXPRESSED OR IMPLIED.” The bill of sale also included the following integration clause: “[t]his agreement and the related documents that Buyer signs contemporaneously with this agreement . . . contain the entire agreement” between the parties. The integration claims also expressly “cancels and supersedes any prior agreement including oral agreements relating to the sale of the motor vehicle.” GT Motors filed preliminary objections (Pennsylvania equivalent of a motion to dismiss) asserting Kloniecke failed to state a claim. In support of the motion, GT Motors attached a warranty disclaimer which provided: The seller . . . hereby expressly disclaims all warranties, either express or implied, including all implied warranties of merchantability or fitness for a particular purpose and the seller neither assumes nor authorizes any other person to assume for it any liability in connection with the sale of the vehicle. * * * * NOTICE OF VEHICLE SOLD WITHOUT WARRANTY This vehicle is sold without any warranty. The buyer will bear the entire expense of repairing or correcting any defects that presently exist and/or may occur in the vehicle unless the salesperson promises in writing to correct such defects. Kloniecke signed the bottom of the warranty disclaimer at the time of sale. The trial court sustained the preliminary objections and dismissed Kloniecke’s claims because “the ‘as-is’ warranty language and integration clause, together with the contemporaneously signed warranty disclaimer precluded relief for breach of contract.” Kloniecke appealed arguing, inter alia, that the trial court erred by considering documents outside the pleadings. Specifically, Kloniecki asserted consideration of the warranty disclaimer amounted to reversible error because the disclaimer was not attached to the Complaint amounted to reversible error. The Superior Court disagreed. Contrary to Kloniecki’s assertions, the disclaimer should be considered because Pennsylvania law requires plaintiffs to attach written agreements to the complaint in breach of contract actions. (Citing Pa.R.C.P. 1019(h), (i)). The Court effectively held that a plaintiff’s failure to attach a complete copy of contract documents does not preclude a defendant from attaching all of the documents to preliminary objections. (Citing Conrad v. City of Pittsburgh, 218 A.2d 906, 907 (Pa. 1966)). Moreover, the Court clarified, it is not the averments and characterizations contained in the complaint that control whether the plaintiff has stated a cause of action, but rather the contract documents themselves. Id. Although a court generally takes all averments in a complaint as true for purposes of ruling on preliminary objections, a court need not accept averments in direct conflict with the contract documents. Furthermore, whether the bill of sale represents the entirety of the agreement is a question of law for the court. In Pennsylvania, a contract refers to and incorporates provision in other documents, the contract and incorporated documents should be construed together. (Citing Southwestern Energy Prod. Co. v. Forest Resources, LLC, 83 A.3d 177, 187 (Pa. Super. Ct. 2013). As applied to Kloniecki’s purchase, the bill of sale expressly referred to the disclaimer of warranties and, as such, the documents should be read together. Therefore, the trial court did not err in considering the disclaimer of warranties despite the fact that Kloniecki failed to attach the disclaimer to the Complaint. The trial court’s analysis of the disclaimer was likewise upheld. The Pennsylvania statute governing exclusion or modification of warranties requires conspicuous disclaimers of implied warranties. 13 Pa. C.S.A. §2316. Courts interpret the statute to require use of the term “merchantability” in any disclaimer of the warranty of merchantability. See Mosciatiello v. Pittsburgh Contractors Equip. Co., 595 A.2d 1190, 1194 (Pa. Super. Ct. 1991). As applied to Kloniecki, the first page of the bill of sale includes a section titled “VEHICLE WARRANTY” which expressly states: No Express or Implied Warranties. AS IS: THIS MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY EITHER EXPRESSED OR IMPLIED. The Superior Court, like the trial court below, concluded that this was sufficient to effectively disclaim any warranties. In dicta, the court noted a separate issue warranting dismissal of Kloniecki’s claims. Specifically, that the Complaint failed to provide any language of the express warranties. Pennsylvania law requires a plaintiff to allege the terms of an express warranty in the pleadings. Failure to do so could result in dismissal of the claims asserted. This case is instructive in that it exemplifies the importance of evaluating and attacking every deficiency in a complaint related to the sale of goods at the motion to dismiss stage. Failure to obtain a complete copy of all documents issued at the point of sale of a product could result not only in the missed opportunity of an early dismissal, but potentially waiver of those issues. Thanks to Jennifer Seme for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News SDNY Holds Coverage for Insured’s “Work” Does Not Include Design, Sale, and Manufacture of Asbestos-Containing Products August 16, 2024 < Back Share to: In Ironshore Specialty Insurance Company v. Color Techniques, Inc. , CTI was named as a defendant in ten asbestos exposure lawsuits. 2024 WL 3634860 (S.D.N.Y. Aug. 1, 2024). The lawsuits broadly alleged CTI engaged in the sale, manufacture, installation, and contracting of asbestos-containing products. Id. at *2. CTI requested defense from Ironshore, its insurer, for these actions. Id. Coverage C of the Policy covered claims of bodily injury caused by exposure to an insured’s products which “occur[ed] away from a location [the insured] own[s] or operate[s].” Id. at 1. In contrast, Coverage G of the Policy covered claims of injury arising out of a pollution incident caused by the insured’s “work,” defined as “operations performed by you” or “materials … furnished in connection with such work.” Id. Ironshore disclaimed under Coverage C based on an asbestos exclusion but agreed to defend CTI subject to a reservation of rights under Coverage G. Id. at 2. Ironshore further opined that only some of the alleged activities—like installation and contracting—fell under Coverage G. Id. In response, CTI argued that Coverage G encompassed other conduct—such as designing, sale, and manufacturing. Id. at *5. On review, the Court first considered the extent of coverage under the Policy for the underlying actions. Id. Evaluating Coverages C and G together, the Court concluded that Coverage C related to “product-related injuries occurring away from CTI’s worksite,” while Coverage G applied to “injuries caused by CTI’s work operations in progress.” Id. at 6. The Court therefore concluded the “work” referenced in Coverage G could not include claims of designing, selling, and manufacturing without rendering Coverage C meaningless. Id. at 7. Second, the Court considered whether extrinsic evidence relieved Ironshore of its duty to defend. Id. Ironshore’s evidence indicated the underlying actions raised product-liability claims against CTI as a manufacturer—not claims based on CTI’s installation work. Id. Under an exception to New York’s four-corners rule, extrinsic evidence unrelated to the underlying merits could be used to show no possibility of coverage. Id. at 4. Applying this principle, the Court concluded most of Ironshore’s evidence did not concern the merits of the underlying actions; rather, it sought to show the claims against CTI were not subject to Coverage G of the Policy. Id. at 8. Ironshore Specialty Insurance Company v. Color Techniques Inc. .pdf Download PDF • 248KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News It's deja vu all over again. Another E-Coli Outbreak Hits the US. May 7, 2010 < Back Share to: The great baseball catcher Yogi Berra witnessed a great many heroics during his tenure with the New York Yankees. Reportedly, after watching his teammates Roger Maris and Mickey Mantle hit back-to-back home runs in a game for the umpteenth time, he is reported to have said: It's déjà vu all over again. When it comes to e-coli and US manufacturers and distributors, it certainly must feel the same way. Freshway Foods of Sidney, Ohio is recalling romaine lettuce because of e-coli contamination. The lettuce, which was sold in more than 25 US states, is suspected of causing more than 19 reported cases of sickness. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.washingtonpost.com/wp-dyn/content/article/2010/05/07/AR2010050700772.html Previous Next Contact

Maria E. Dalmanieras Partner Florida mdalmanieras@wcmlaw.com Professional Experience Maria is a Board Certified Trial attorney by the Florida Bar. Her practice focuses in the areas of personal injury and insurance defense litigation, including construction litigation, premises liability, auto liability, products liability, legal malpractice, wrongful death litigation, indemnification, subrogation claims, first party insurance claims, and medical malpractice. She has successfully obtained numerous defense verdicts for her clients during her almost twenty years of practice and is well respected within the legal community as a trial lawyer. Honors and Distinctions While in law school, Maria was the Community Outreach Chairperson for Miami Law Women, and she was an editor for the law school newspaper, Res Ipsa Loquitur. Professional Activities Maria is a member of the Florida Bar. Publications News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Miami School of Law B.A., College of Holy Cross Bar Admissions Florida Court Admissions Southern District of Florida United States Supreme Court

News Appellate Division Holds Plaintiffs Need No Contemporaneous Quantitative Measurements to Defeat Defendant’s Claim of No “Serious Injury” Under Insurance Law August 23, 2024 < Back Share to: Recently, in De Castillo v. Reado , 2024 N.Y. Slip Op. 04195, the Appellate Division, Second Department ruled on an appeal made by plaintiff, after the Supreme Court granted summary judgment in favor of plaintiff. Plaintiff initiated the suit after alleging personal injuries suffered as a result of a motor vehicle accident involving the defendant. Defendant moved for summary judgment, arguing that plaintiff did not suffer a “serious injury” as defined by New York Insurance Law § 5102(d), a prerequisite for a personal injury action. The trial court held in favor of the defendant after determining that defendant demonstrated that plaintiff did not suffer a “serious injury” under the law’s permanent consequential limitation of use or the significant limitation of use categories. On appeal, the Second Department reversed the award of summary judgment in favor of the defendant. Although the court agreed that defendant made its prima facie showing that plaintiff suffered no serious injury, the court found error in the lower court’s reasoning. Specifically, the Second Department found that the lower court erred in requiring plaintiff “to submit evidence of contemporaneous quantitative measurements to raise a triable issue of fact as to whether she sustained a serious injury under the permanent consequential limitation of use and significant limitation of use categories.” As such, the court found that the defendant was not entitled to summary judgment at this point of the litigation. This case demonstrates the high bar that motor vehicle accident defendants face in arguing that a plaintiff did not suffer a “serious injury” under New York Insurance Law. Not only must defendants prove against every single category of “serious injury” listed under the Insurance Law, but they must also consider the low bar that plaintiffs face in raising triable issues of fact regarding their alleged “serious injury.” De Castillo v. Reado .pdf Download PDF • 145KB Previous Next Contact

News Lakers Toss Airball in Text Message Coverage Case September 15, 2017 < Back Share to: It is pretty much a given that anywhere you go, everyone is always on their phones. At sports stadiums, teams encourage fan interaction with fan social media posts. Stores send text message alerts of special promotions, and doctors’ offices and salons now confirm appointments by text. But all of these new uses for phone communication carry potential implications for insurers and their insureds under the Telephone Consumer Protection Act (TCPA) which is meant to prevent unsolicited telephone communication with consumers. In fact, many insurance policies now carry specific TCPA exclusion endorsements or exclusions otherwise relating to privacy invasion. The 9th Circuit recently had to grapple with determining whether an invasion-of privacy exclusion applied to exclude coverage for TCPA claims in the case of L.A. Lakers v. Federal Ins. Co. In November 2012, Lakers fan David Emanuel sued the Lakers, alleging that he used his phone to put a personal message on the scoreboard during a game at Staples Center, but subsequently began receiving texts from an autodialer. Emanuel's case was dismissed with prejudice on the grounds that he implicitly consented to receiving a confirmation text from the Lakers when he submitted his original message. The Lakers then settled with Emanuel after he appealed to the Ninth Circuit. The Lakers then sued its insurer, Federal, for refusing in bad faith to defend or indemnify the Lakers in the Emanuel litigation. The insurer moved to dismiss, arguing that the policy's invasion-of-privacy exclusion precluded coverage because a TCPA violation allegation is, in effect, a claim for a privacy breach. The trial court agreed with the insurer and dismissed the Laker’s complaint, holding that TCPA claims fall within the directors-and-officers policy's invasion-of-privacy exclusion, and that the team was therefore not entitled to coverage. The Lakers appealed to the 9th Circuit, and a 2-1 circuit panel upheld the trial court judge's decision for Federal, finding that because a TCPA claim is "inherently an invasion of privacy claim," the lower court properly concluded that the underlying suit against the Lakers was excluded from coverage. Thus, the Court held, the insurer did not breach the policy, or the implied covenant of good faith and fair dealing, in declining to defend against or cover the underlying lawsuit. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News 2nd Circuit Affirms Expansive Reading of “Arising Out Of.” July 24, 2009 < Back Share to: In the case of Turner Const v. Kemper Ins., American Manufacturers Mutual Insurance Company ("AMMIC") and Lumbermens Mutual Casualty Company ("LMCC") (collectively "Kemper") appealed from a district court order that required them to pay Turner Construction Company (“Turner”) more than $9,750,000 for damages resulting from a fire. The fire occurred at Manhattan's Central Synagogue as the partial result of the work of Kemper’s insured, Trident Mechanical Systems, Inc. ("Trident"). The court therefore held that the fire “arose” out of Trident’s work and thus awarded insurance coverage to Turner. The court ruled that the phrase “arising out of” only requires “that there be some causal relationship between the injury and the risk for which coverage is provided." http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=8778139 Previous Next Contact

News Providing Safety Devices May Not Protect Owners Against Labor Law Liability November 23, 2010 < Back Share to: In Ramirez v. Shoats, et. al., the plaintiff was working inside a newly constructed home. He descended a recently constructed staircase, reached the landing, and stepped onto a sheet of metal covering the landing. The sheet shifted and the plaintiff fell through the floor and into the basement. Defendant-owner moved for summary judgment, arguing that he did not violate Labor Law 240 or 241 because a ladder was available to the plaintiff as an alternative means of descent. The plaintiff held that no such ladder was provided. The 1st Department affirmed the lower court’s decision that denied the defendant’s summary judgment motion, finding issues of fact regarding whether the plaintiff was the sole proximate cause of his injuries. More importantly, the 1st Department articulated its new approach toward Labor Law cases. The Court stated that it would be guided by a recent Court of Appeals decision, which called for a broader reading of the Labor Law. Accordingly, the 1st Department opined that even if the plaintiff had the choice of using a ladder instead of the staircase, that did not preclude the plaintiff from recovering against the owner, especially when that alternative route may have seemed more dangerous than the stairs utilized by the plaintiff. Thanks to Georgia G. Stagias for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08432.htm Previous Next Contact