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News Exclusion for Earth Movement Does Not Apply to Excavation May 18, 2009 < Back Share to: In Pioneer Tower Owners Assn. v. State Farm Insurance, plaintiff, a condominium apartment building, brought a breach of contract action against its carrier to recover for losses resulting from damage sustained to the foundation of its building, which was caused by excavation work done on an adjacent parcel of land. The defendant carrier contended that coverage was excluded under the policy’s “earth movement” exclusion, which precluded coverage for “earth movement, meaning the sinking, rising, shifting, expanding or contracting of earth, all whether combined with water or not. Earth movement includes but is not limited to earthquake, landslide, erosion, and subsidence but does not include sinkhole collapse.” Both parties moved for summary judgment. Plaintiff argued that the exclusion was ambiguous because the intentional excavation of property by humans is different from the examples mentioned in the policy. In contrast, the carrier contended that the exclusion applied because the loss was caused by the “sinking” and “shifting” of earth beneath plaintiff’s building. The Supreme Court, granted plaintiff’s summary judgment motion and the Appellate Division affirmed. On a further appeal, the Court of Appeals affirmed. Although the Court described the controversy as a "close question", the Court found that the carrier’s disclaimer was invalid, as the type of loss was not unambiguously excluded. The Court of Appeals also notes that neither it nor the parties could find any case citation applying an earth movement exclusion to intentional earth removal, such as excavation work. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03409.htm Previous Next Contact

News A “Feigned Issue Of Fact” Not Sufficient To Defeat Summary Judgment (NY) October 28, 2021 < Back Share to: In Fonck v. City of New York, 2021 NY Slip Op 05693 (2021), while plaintiff was trying to retrieve his pliers, laying approximately five feet away from him, he allegedly tripped and fell on a concealed piece of pipe underneath plastic sheeting, causing him to fall and sustain injuries. The Supreme Court, Kings County had granted defendants’ motion for summary judgment dismissing plaintiff’s causes of action alleging violations of Labor Law §200 and §241(6), and common-law negligence. Upon appeal, the Second Department reversed with respect to common Law negligence and Labor Law §200 but affirmed the dismissal of the Labor Law §241(6). With respect to his Labor Law §241(6), Second Department held that defendants established prima facie that 12 NYCRR 23-1.7(d) relating to slipping hazards, was inapplicable. Despite the affidavit of plaintiff’s foreman submitted describing the work as “wet and slippery due to recent rainfall,” plaintiff did not contend that the slipper condition was related to the accident. As such, plaintiff only raised a feigned issue of fact, and his affidavit contradicted his earlier deposition testimony submitted by defendants that his fall was caused by the concealment of the pipe. So, despite the inconsistent testimonies submitted by both parties to be a “feigned issue of fact,” it was not enough to warrant dismissal of summary judgment. This case is a good example of a plaintiff attempting to muddy the waters and create a disputed material fact – but the Court determined that the “fact” was not material. Thanks to Gina Rodriguez for her contribution to this post. If you have any questions, please contact Matthew Care. Previous Next Contact

News Student Battles University Over Alleged Incomparable Education Experience & Unjust Enrichment During COVID-19 Pandemic (PA) May 7, 2020 < Back Share to: As the COVID-19 pandemic continues, we have already seen lawsuits filed by restaurant owners, gym members, cruise ship guests, and even students. Recently, Pennsylvania State University (“Penn State”) found itself embroiled in a lawsuit filed by one of its students in the Middle District of Pennsylvania. In Thomson v. Penn State, Tyler Thomson (“Plaintiff”) filed a class action lawsuit alleging that Penn State breached its contract by not reimbursing students for tuition and fees paid prior to the transition to online study. Plaintiff argues that he and other similarly situated class members have been deprived of an in-person educational experience and as a result, they should be refunded their pro rata share of tuition and other fees already paid for the Spring 2020 semester. He believes that Penn State has already demonstrated that an online educational system is incomparable to on-campus learning by charging a reduced rate to students who elect to pursue their degrees online. Plaintiff asserted two classes as part of this lawsuit. The Tuition Class consists of class members who paid Spring 2020 tuition but are unable to proceed with in-person, on-campus learning. The Fee Class consists of class members who paid fees for the Spring 2020 semester. Plaintiff is requesting injunctive and declaratory relief based on two grounds: (1) breach of contract and (2) unjust enrichment on behalf of both classes. For the breach of contract claim, the Tuition Class members assert that they entered an agreement with Penn State, in which they paid tuition in exchange for on-campus learning. The class allegedly suffered injury due to the university’s breach of said agreement. Relatedly, they allege that Penn State was unjustly enriched by failing to provide the programs expected by the students who paid tuition. The university allegedly benefitted at the class members’ expense. Nearly identical theories were articulated for the Fee class members. The bottom line is that Plaintiff thinks Penn should be held responsible for the money it kept despite on-campus closure. As COVID rages on, this issue presents itself to universities and students all over the world. Plaintiff acknowledges that Penn State had no other choice but to close due to the pandemic. However, this issue is not unique to the academic context. We are sure to see more breach of contract claims filed in the next few months and this will certainly change how agreements are structured. Until then, we will see a battle between entities who want to protect their clientele and staff from the dangers of an unknown illness versus consumers — even in the midst of a global crisis. Thanks to Gabrielle Outlaw for this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News (Preserve) All The Evidence, Men (NY) June 29, 2018 < Back Share to: Most lawyers and insurance professionals know the importance of preserving evidence when a claim is asserted against an insured. But insureds who are not involved in litigation as a matter of course often express the displeasure of the taking the time necessary to collect and preserve all relevant information. As the recent First Department decision in Davis v. Pathmark makes clear, the consequences for failing to take that time to preserve evidence, in a thorough, if not exhaustive manner, can be disastrous. In Davis, the store being sued provided video surveillance footage of the plaintiff slipping and falling in the store along with 30 seconds of footage before the fall. The problem was that the defendant deleted all other footage from that day. According to the trial court and the First Department, that selective editing may have prevented the plaintiff from making its case about the origin of the liquid on the floor that caused the accident. Thus, the court struck the defendant's answer. It may well be that the defendant in Davis acted in good faith by providing what it thought was relevant evidence. But insureds often make poor judges of what may or may not be relevant or discoverable in litigation. Davis should serve as a reminder to lawyers to instruct their clients to preserve all evidence when a suit is filed and to insurance professionals to request that all information be preserved when a claim is first submitted. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Appellants’ Failure to Object at Trial Costs Them Appeal (PA) November 16, 2018 < Back Share to: The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the amount of damages awarded by the jury’s verdict. In Showers v. Sam’s East, Inc., PA Superior Court No. 810 EDA 2018, appellants, who were plaintiffs in the underlying case, filed an appeal challenging the amount of damages awarded by the jury. In the underlying case, Plaintiff Donyale Showers sued Sam’s East, Inc. after she slipped and fell on a wet floor at the Sam’s Club in Exton, PA. Showers complained of right leg and knee pain, however she continued to shop. A few days after the fall at Sam’s Club, Showers was walking with her husband when her right leg gave out causing her to fall and hit her right knee. She underwent arthroscopic surgery for a torn meniscus. At trial, her treating doctor testified that her torn meniscus was caused by both falls – the one at Sam’s Club and the subsequent fall following her walk. Sam’s Club countered by putting forth defense expert testimony opining that Showers’ injuries were not causally related to her fall at Sam’s Club. The jury found that both Sam’s Club and Showers were 50% negligent and awarded Showers $7,481.40 in damages; which equaled the total amount of medical costs claimed by Showers. Showers appealed and argued that the court erred and abused its discretion by failing to submit to the jury a verdict slip that included separate damages categories for medical expenses, loss of consortium, and pain and suffering. Showers argued that, at a charging conference prior to deliberation, they submitted a proposed verdict slip that delineated damages for both medical expenses and pain and suffering. The court denied their request, and therefore Showers alleged that there was no way to determine whether the jury’s damage award is solely for medical expenses or also included an award for pain and suffering. Upon review, the PA Superior court noted that Showers did not produce any record of the charging conference and therefore no evidence of any objection made regarding the final verdict sheet during the conference. Additionally, Showers did not object to the final verdict sheet form during trial proceedings and also consented to the trial court’s jury instructions when they were given. Thus, the first instance of Showers’ objection to the verdict sheet appeared in their post-trial motion. Because there is no record of Showers objecting to the final verdict sheet either at the charging conference or during the trial proceedings, the PA Superior Court concluded that Showers had waived such objection. It is often said that trial objections are like flags -- they are either raised or "waived." Here, by failing to preserve her objection to the final verdict sheet, the plaintiff waived that objection, and the modest verdict stands. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Dismissal Granted Where Claim Against Party Added After the Statue of Limitations Did Not Relate Back to Filing of Original Complaint January 13, 2023 < Back Share to: In Coleman v. Western Oilfields Supply Co.,, the Judge Brann of the Middle District of Pennsylvania rejected the application of the relation back doctrine and granted a Defendant’s Motion to Dismiss based on the two-year statute of limitations. Willie Coleman was injured while setting up a gas well at Chief Oil & Gas, LLC’s well pad in Wyalusing, Pennsylvania. Evergreen Oilfield Solutions, LLC and Western Oilfield Supply Co. were allegedly responsible for “containment” at the well pad which involves “preventing containment of the grounds by laying down a cloth or other substance that covers the grounds to prevent . . . contamination.” Around midnight on March 19, 2019, Coleman and a coworker were carrying a heavy pipe on their shoulders and began to move it through the well pad. Coleman’s foot fell into a hole or depression causing him to trip, resulting in a severely fractured ankle. Because the hole or depression was covered by a containment cloth, Coleman was unable to see it before he stepped in it. Plaintiffs filed a Complaint on January 15, 2021 against Chief and Western, alleging that both entities were responsible for containment at the well site. Chief filed a Motion to Dismiss which the court converted to a Motion to Dismiss and then granted. With leave of Court, Plaintiffs filed an Amended Complaint on May 12, 2022, that for the first time, named Evergreen as a Defendant, alleging that it was responsible for containment at the well pad. Evergreen filed a Motion to Dismiss based on the two-year statute of limitations. Plaintiffs responded by arguing that their claims against Evergreen related back to original complaint, which was filed within the limitations period and was therefore timely. Federal Rule of Civil Procedure Rule 15(c) permits an amended complaint that adds a new party to relate back to the filing of the original Complaint if three requirements are meant: (1) The claims in the amended complaint must arise out of the same occurrences set forth in the original complaint; (2) The party to be brought in by amendment must have received notice of the action within 120 days of its institution; and (3) The party to be brought in by amendment must have known, or should have known, that the action would have been brought against the party by for a mistake concerning its identity. Although Evergreen conceded that the first requirement had been met in that the claims in the Amended Complaint arose out of the same occurrence as the original Complaint, it disputed that it had received notice of the original action within 120 days or knew or should have known that the action would have been brought against it but for a mistake concerning its identity. Plaintiffs produced no evidence of actual notice with 120 days of the initiation of the original Complaint. The Third Circuit has endorsed two methods of imputing notice where a plaintiff cannot demonstrate that a defendant had actual notice of the suit against it. First is the “shared attorney” method whereby notice is imputed when the originally-named party, and the party that is being added are represented by the same attorney, the attorney is likely to have communicated to the latter party that he may very well be joined in the action. Second is the “identity of interest” method whereby the parties are so closely related in their business operations or other activities that the institution of action against one served to provide notice of the litigation to the other. Judge Brann held that Plaintiffs had failed to meet their burden of establishing either actual or imputed notice of the action within 120 days of filing of the original complaint. None of the Defendants shared attorneys or law firms, and there was no evidence that there was any special relationship between any of the current of former Defendants. Having failed to establish the second prong of the relation back test, Judge Brann held the Plaintiffs’ claims against Evergreen were barred by the statute of limitations and therefore granted its Motion to Dismiss. Thanks to James Scott for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Time is Not On Your Side: US Southern District of New York Dismisses Insurance Class Action Suit Against Insurers On Statute Of Limitations Grounds August 27, 2021 < Back Share to: Plaintiff insureds brought a putative class action suit for violations of New York General Business Law (GBL), fraud, and breach of contract claims. Plaintiffs allege that in 2000 defendant sold accident disability and medical expense insurance products in violation of New York Insurance Law in that they were on not approved, that the insurance provided illusory coverage, and that the marketing included unlawful deceptive acts in violation of New York General Business Law. Defendants moved to dismiss the plaintiff's claims as time-barred because any and all of the alleged misrepresentations and omissions were at the time plaintiff first received coverage in the year 2000, and that suit brought in 2016 was untimely. The policyholders argued the “continuing wrong” doctrine applied which would toll the limitation period up to the date of the commission of the last wrongful act and that the insurer's had a continuing ongoing obligation that continued past the GBL or CPLR statute limitations date. The court rejected the policyholders’ argument that each time they paid continuing premiums, there were separate and distinct wrongs. Rather the Court found that after plaintiffs first purchased the policies in 2000, this was the only alleged false and misleading advertising. The insurers took no action beyond continuing the coverage. The court held because the alleged deceptive false advertising took place when the policies were sold and because plaintiffs have not alleged they suffered injury by virtue of false and misleading advertising thereafter, the “continuing wrong” doctrine did not apply. The court also found the “equitable tolling” argument equally distinguishable because the plaintiff was on notice of the potential wrongdoing and took no steps to investigate further. Here plaintiffs became aware the policies may have violated the law by 2005 and undertook no investigation to elicit the equitable tolling doctrine applicability. Thus, all of the plaintiff's claims were deemed time-barred and the policyholders’ putative class action was dismissed. If you have any questions, please contact Tom Bracken. Previous Next Contact

News Uniquely Dangerous Condition at Water Park Can't be Assumed (NY) October 18, 2012 < Back Share to: Anyone who has ever been to a water park appreciates there are a lot of different ways to get hurt. But recently, in Mussara v. Mega Funworks, a New York appellate court held that because the type of dangerous condition was "unique," plaintiff's lawsuit was not barred by the assumption of risk doctrine and could proceed. As the plaintiff exited the water slide, he was thrown across a 50-foot pool and hit the cement on the other side. The water park argued that the plaintiff had assumed the risk of injury when he rode the slide. The park posted a warning sign and the plaintiff admitted that he checked the sign but did not read the warning. Nevertheless, the court ruled against the water park and held that the assumption of risk doctrine does not apply where the dangerous condition posed by the ride is unique and is "over and above the usual dangers that are inherent in riding down a water slide." In this case, the court ruled, the plaintiff had not assumed the risk of being thrown across a pool because there was no evidence that he was aware of that possibility. Indeed, the Court list a number of potential ways that a person might expect to get hurt at a water park, but this wasn't one of them. Rather, the plaintiff only assumed the risk that he would be injured despite the slide working as intended. Thanks to Mendel Simon for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News Plaintiff Doesn't Hold All The Marbles In Determining Venue January 7, 2008 < Back Share to: A case for all geography lovers. In Montesano v. New York City Housing Authority, 2007 NY Slip Opinion 09955, AD and Bronx Co. Index 24323/05, plaintiff incorrectly chose venue when she brought her action in Bronx County claiming that she injured herself while descending an interior staircase in the New York City Housing Authority apartment building where she lives, located at 5480 Broadway in the Marble Hill section of New York City. Having lived there for 18 years, the plaintiff was confident that she was a Bronx resident. As it turns out, plaintiff was duped by her surroundings. The 52 acres of Marble Hill were originally connected to the Borough of Manhattan (coterminous with New York County) until 1885 whereupon the Harlem River Ship Canal was created. Although separated from Manhattan by water and connected to the Bronx, and while bearing a Bronx zip code, and using a Bronx area code, Marble Hill actually remains part of New York County. For this reason, defendant correctly demanded and moved for change of venue that was ultimately granted by the Appellate Division- First Department since the New York Adminsistrative Code section 2-202(1) places Marble Hill with New York County for all purposes. http://www.courts.state.ny.us/reporter/3dseries/2007/2007_09955.htm Previous Next Contact

News Don't Discriminate Against The Unemployed (NY) March 14, 2013 < Back Share to: New York City just passed a law that prohibits employers from discriminating against job applicants on the basis of their unemployment. The law provides that an employer may not advertise that current employment is a requirement for any vacant position or that the employer will not consider an unemployed individual for the job. The law, however, does not prohibit employers from considering professional licensing, experience or training when making hiring decisions. Despite an attempted veto by New York City’s mayor based on concerns over increased litigation by disgruntled employees, the law will take effect in ninety days. Employers now have yet another concern when making hiring decisions and we are likely to see increased employment discrimination litigation. Special thanks to Alison Weintraub for her contribution to this post. For more information, please contact Paul Clark at pclark@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 Visions in the Night: A PA Settlement Wipes Out Years of Precedent. August 21, 2009 < Back Share to: In the case of Klein v. Amtrak , two trespassing teenagers climbed atop a train car parked in a lot owned by Antrak. They suffered serious burns when they got too close to a 12,000-volt wire. The jury found for the plaintiffs (finding them 0% liable) and awarded $24,000,000 in compensatory and punitive damages. During the progression of the case, the court made new law on the "attractive nuisance" doctrine, and the standard of proof required to show that a landowner was aware of a risk because of similar prior accidents. The case has now been settled during the pendency of an appeal. As a condition of the settlement, and with the approval of the district court, all prior decisions were vacated. But for the money, it's as if the case never happened. http://www.law.com/jsp/pa/PubArticlePA.jsp?hubtype=TopStories&id=1202433146538&slreturn=1&hbxlogin=1&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20Most%20Viewed%20Alert&cn=TLI_MOST_VIEWED_ALERT20090821&kw=After%20Settlement%2C%20Opinions%20Erased%20in%20Amtrak%20Case Previous Next Contact