Wade Clark Mulcahy LLP

News Condo's are not Owners under Labor Law (NY) December 13, 2012 < Back Share to: As CGL insurers are well aware, New York's Labor Law, originally designed to protect construction workers from unsafe practices, often ensnares small property owners with its strict liability conditions. Labor Law § 241(6) imposes a nondelegable duty upon "owners," "contractors" and their "agent" involved in construction, excavation, or demolition work 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. Recently, the New York Court of Appeals ruled that condominiums generally cannot be found liable under New York Labor Law § 241(6). In Guryev v. Tomchinsky, the plaintiff suffered an eye injury while working in the defendants' condominium unit. Guryev sued the condominium under Labor Law, arguing that the condominium was an “owner” of the unit because it owned the land underneath the building. In addition, the condominium entered into an alteration agreement with the Tomchinskys in which the condominium retained many important rights and control over how the work would be performed and contractor choice. Plaintiff further argued that co-operatives are deemed to be "owners" and condominiums should also be deemed owners for public policy reasons. The Court of Appeals, over the dissent of its Chief Judge, ruled in favor of the condominium because the condominium, unlike a co-op, did not hold title to the actual unit in which the injury occurred. Therefore, the condominium could not be an “owner” under Labor Law § 241(6). In addition, the alteration agreement with the Tomachinskys simply reflected the condominium's interest in making sure that the renovations would protect the building and other units and did not grant the condominium the prerogative to ensure that the contractor was using adequate safety precautions. Thanks to Mendel Simon for his contribution to this post. If you have any questions, please write to mbono@wcmlaw.com . Previous Next Contact

News How Timely Is Timely in Removal to Federal Court? (PA) June 12, 2013 < Back Share to: Judge Ludwig of the USDC, EDPA, was recently faced with the question of when removal from state court to federal court is proper. In the case of Alston v. Wal-Mart, Alston commenced a slip and fall lawsuit in the PA Court of Common Pleas, Philadelphia County, a venue that is consistently rated as one of the worst defense venues in the country. The case was originally filed as an arbitration court case and in its affirmative defenses Walmart alleged that plaintiff could not seek damages in excess of $50,000 (the arbitration court’s jurisdictional limit) or $75,000 (the minimum amount required to remove the case to federal court on diversity grounds). As the case progressed, it quickly became apparent that plaintiff’s demand exceeded $75,000. Wal-Mart thereafter removed the case to federal court. Plaintiff’s counsel objected and argued that the removal was untimely as it took place more than thirty days after service of the complaint. Wal-Mart argued that the removal was, in fact, timely because it was not until the plaintiff made it clear that the demand exceeded $75,000 that Wal-Mart was aware of its right to remove the case. Judge Ludwig sided with Wal-Mart. He held that the removal was timely as it was not until the value of the demand was made clear that Wal-Mart was on notice of its to remove the case. So what’s the takeaway from all of this? We suggest that if you have a case in state court which you would otherwise seek to remove to federal court but in which the value of the case does not seem to exceed $75,000, you ask the plaintiff to stipulate to a $75,000 award cap. If the plaintiff refuses, you probably then have the right to remove the case to federal court. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News MSJ Denied, Largely Due to (Missing) Easement Exhibit (NY) June 1, 2017 < Back Share to: A key factor in determining whether a party is liable in a trip and fall accident is the ownership, occupancy, control or special use of the subject property. Generally, the testimony of someone with personal knowledge that the property is not under their control or used for any special purpose is sufficient to support a motion for summary judgment on a defendants’ behalf. In Turano v. Two Hillside Avenue Realty Corp., 2017 NY Slip Op 04313 (2d Dept. 2017), plaintiff tripped and fell in the parking lot of a commercial building. The building is comprised of eight apartments which are individually owned. Each owner also owns the parking spot nearest to their respective unit. Plaintiff commenced the action against all eight unit owners and the overall property owner who maintains the common areas of the premises. One of the defendant unit owners moved for summary judgment stating that they did not have a duty to plaintiff due to the fact that the incident occurred on the common portions of the parking lot wherein they do not have a duty to maintain. The Court upheld the lower court’s decision which denied the property owners motion. The Court held that despite the testimony and affidavit of the homeowner the deed referred to a “Declaration of Common Driveway Easement and Restrictive Covenant.” The Court held that without any information or testimony about the easement and covenant a question of fact remained as to whether the property owner made special use, through an easement or covenant of the portion of the property at issue. This decision emphasizes how each potential factor for liability on the part of a defendant should be addressed in making a dispositive motion and that any stone left unturned could result in a denial of a motion, despite how strong the other evidence may be. One assumes the defendant will opt to re-move, with the easement as an additional exhibit -- unless the Court denies leave to re-move. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Ambiguous Additional Insurance Provision Results In Denial Of Summary Judgment All Around (NY) January 21, 2022 < Back Share to: In Corter-Longwell v. Juliano, the New York Appellate Division evaluated a common commercial contract provision, in which a transportation company was responsible for naming its contract partner, a landfill operator, as an additional insured. The dispute arose as the contract was imprecise regarding this responsibility, and the parties disputed whether a subsidiary of the landfill operator was covered as an additional insured. It has long been the law in New York that an ambiguous contract provision is subject to the court’s interpretation. The Juliano court applied reasoning from the First, Second, and Fourth Departments of the Appellate Division and held that a contract “cannot be interpreted as requiring the procurement of additional insured coverage unless such a requirement is expressly and specifically stated.” Here, the contract did not mention any obligation for the transportation company to name the landfill operator as an additional insured on its employers’ liability, workers’ compensation, or excess coverage policies. The contract did require additional insured coverage on the commercial general liability and automobile liability policies, but these contract provisions named only the landfill parent company (not the subsidiary). The court analyzed this ambiguity in the contract and denied the motions for summary judgment of both parties. It refused to hold as a matter of law that the above-referenced provisions provided (or failed to provide) coverage for the landfill’s subsidiary company, instead holding that the ambiguity was a matter of fact that required a trial. The parties could have avoided this ongoing litigation altogether if they had more specifically described the obligations of the respective parties in the contract. Thanks to Jason Laicha for his contribution to this article. If you have any questions, please contact Matthew Care. Previous Next Contact

News GEICO Challenges Deemer Statute in New Jersey December 14, 2018 < Back Share to: Geico has challenged a New Jersey State Statute requiring auto policies issued out of state to provide a minimum amount of bodily injury liability coverage when the insured drivers are involved in accidents in New Jersey. The case is Guerline v. Brian v. Richards, case number 081799, in the New Jersey Supreme Court. As of December 7, 2018, the New Jersey Supreme Court justices had granted Geico’s petition for certification of a state Appellate Division panel’s August ruling directing the insurer to provide a minimum of $15,000 in bodily injury liability coverage for claims against its Florida-based policyholder who was involved in a motor vehicle accident in Newark, NJ in 2013. Even though the Florida-based policyholder’s auto policy did not include any bodily injury coverage, the appellate panel found that, under a decades old New Jersey law dubbed the “Deemer statute,” Geico was still required to supply the minimum amounts of such coverage included in a standard auto policy issued in the Garden State ($15,000 per person or $30,000 for more than one person per accident). The Supreme Court justices will decide the following question: Does the Deemer statute apply to an automobile insurance policy written in Florida for a Florida resident who had an accident in New Jersey, where the Florida policy did not include any bodily injury liability coverage? The Supreme Court of New Jersey’s decision will have a major impact on motor vehicle litigation in New Jersey. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.         Previous Next Contact

News The Phrase “An Insured” Alters Applicability of Policy Exclusions (PA) September 27, 2019 < Back Share to: In Doe 1 v. Liberty Mutual Fire Ins. Co., the Court for the Middle District of Pennsylvania analyzed whether Liberty Mutual Fire Insurance Company’s (“Liberty”) was obligated to defend and indemnify N.H., a minor, and D.H., N.H.’s mother, for underlying claims asserting sexual abuse and molestation. The underlying action arose out of alleged sexual abuse sustained by minor, John Doe, while he was visiting the home of N.H. and D.H. At the time of the incident, John Doe was five years old. According to the underlying complaint, N.H. sexually abused John Doe, which caused John Doe to suffer, inter alia, substantial mental and physical harm. Due to the incident, John Doe sued N.H. and D.H. in the Court of Common Pleas, Monroe County, wherein he alleged negligence, battery, negligent infliction of emotional distress, negligent supervision and punitive damages. Subsequently, the instant action was filed against Liberty for a declaration that Liberty owed coverage to N.H. and D.H. for the underlying action. In response, Liberty filed a motion to dismiss. In regard to the instant matter, Liberty issued a LibertyGuard Deluxe Homeowners Policy (“Policy”) to D.H. that was in effect on the day of the incident. The Policy contained standard policy language and exclusions. The Court first analyzed whether John Doe’s allegations of stress in the form of physical manifestations constituted “bodily injury” and whether the alleged sexual abuse constituted an “occurrence” as defined in the Policy. However, of particular note is the Court’s discussion of the applicability of the Policy’s Intentional Or Criminal Act and Sexual Molestation Exclusions as they relate to John Doe’s negligent supervision claim against the mother. The Court first analyzed whether the Policy’s Intentional Or Criminal Act exclusion barred coverage to D.H. for John Doe’s claim that D.H. negligently supervised N.H. While the Policy provides coverage for “bodily injury” caused by an “occurrence”, the Policy contained an amendatory endorsement, which inter alia, excluded coverage for “bodily injury” resulting from or “may reasonably be expected to result, from the intentional or criminal acts or omissions of an “insured” even if it (1) is a different kind, quality, or degree than initially expected or intended; or (2) is sustained by a different person, entity, real or personal property, than initially expected or intended.” While the Court concluded negligent supervision does not constitute an “intentional or criminal act”, the Court relied on long-standing Pennsylvania law in holding the Intentional Or Criminal Act exclusion barred coverage. Specifically, the Court noted that courts in Pennsylvania hold, in this context, the use of the phrase “an insured” or “any insured” in an exclusion clause bars coverage for the person who acted intentionally or criminally and for the person charged with related acts of negligence. As the claim for negligent supervision stemmed from N.H.’s alleged intentional and criminal acts (as determined by the Court), the Court held the Policy’s Intentional Or Criminal Act exclusion barred coverage to D.H. Although the Court determined the foregoing exclusion barred coverage, the Court deemed it appropriate to discuss the applicability of the Policy’s Sexual Molestation exclusion as it related to John Doe’s claim of negligent supervision against D.H. The Policy’s Sexual Molestation exclusion states the Policy excludes coverage for any “bodily injury” “[a]rising out of sexual molestation, corporal punishment or physical or mental abuse.” Based on the plain language of the Policy, the Court first analyzed the phrase “arising out of”. In doing so, the Court discussed Pennsylvania case law, which holds the phrase “arising out of . . . bodily injury” does not apply to negligent acts (like it does in the context of the Intentional Or Criminal Act exclusion). While the Court did not draw any conclusion about the applicability of the Policy’s Sexual Molestation exclusion as it related to the negligent supervision claim, the Court noted it came to divergent findings regarding the Sexual Molestation and Intentional Or Criminal Act exclusions. Specifically, the Court held, because the Sexual Molestation exclusion did not contain the phrase “an insured” like the Intentional Or Criminal Act exclusion, the Sexual Molestation exclusion did not apply equally to co-insureds who did not engage in the prohibited conduct. In sum, this case is a reminder to closely examine the plain language of a policy and be cognizant of differing language in policy exclusions. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News New York To End No Prejudice Rule June 24, 2008 < Back Share to: New York is one of the few (if not the only) state in which a carrier need not prove that an insured's late notice prejudiced the carrier in order to disclaim on that ground; Governor Patterson recently introduced a bill which changes that. It passed both the Assembly and is expected to pass the Senate shortly. The long and the short of the legislation is that 180 days after the legislation is signed, NY will join the majority and carriers will only be able to disclaim on late notice if they were materially prejudiced by the late notice. In addition, injured parties will be able to bring declaratory judgment actions challenging a late notice disclaimer before having to obtain a judgment. Moreover, if a primary personal lines policy or a statutorily mandated policy is in play, the injured party will have the right to obtain coverage information FROM THE CARRIER prior to commencing litigation. Previous Next Contact

Awkward... This page isn’t available. Go Home

News Construction Defect Litigation -- Now Playing In the Big Apple? October 25, 2009 < Back Share to: Construction defect litigation is the bane of commercial general liability policy insurers. Given that the duty to defend is far broader than the duty to indemnify, insurers often find themselves defending very expensive cases where "negligence" is alleged, even though the actual damage in the case is defective work product. To date, New York, with its old housing stock, has been immune to this phenomenon. However, as a result of a construction boom over the past few years, some are predicting that defective workmanship claims are set to hit New York. Claims against insurers and expensive litigation will follow. As if New York's Labor Law wasn't enough to worry about! http://www.nytimes.com/2009/10/25/realestate/25cov.html?_r=1 On an unrelated construction defect matter (on which we previously reported), Chinese drywall is a major source of claims. The search for a causal linkage between the drywall and the claimed injuries/damages continues. http://www.nytimes.com/2009/10/30/business/30drywall.html?_r=1&scp=1&sq=chinese%20drywall&st=cse If you would like more information regarding this post, please email rcosgrove@wcmlaw.com . Previous Next Contact

News School Not Liable For Teacher's Sexual Assault On Students October 26, 2010 < Back Share to: In Acosta-Rodriguez v. City of New York, a New York City public school teacher was accused of sexually abusing several students. The students, in turn, filed an action against the Board of Education under the theory of respondeat superior. The 1st Department granted the Board of Education's summary judgment motion. Among other things, it found that there was no triable issue of fact as to whether the teacher's conduct was done for purely personal reasons and not in furtherance of any school business. The Court also held that the Board of Education was not on actual or constructive notice of the employee's propensity for sexual abuse of minors merely because he bought pizza for students and observed them while they played. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News Court Prevents Deposition of Counsel in Coverage Dispute (PA) January 29, 2016 < Back Share to: In JCT Leasing LLC. V. Travelers Casualty Insurance Company, Plaintiffs sued their insurer, seeking damages for breach of contract and bad faith arising out of a fire claim. Plaintiffs sought to depose defendant’s coverage counsel, and the court needed to evaluate whether attorney-client privilege barred his deposition. After plaintiffs submitted a claim to Travelers for fire at their property, Travelers retained Ernest Koshineg, Esq. to advise them on whether plaintiffs’ claim was covered. Upon advice from counsel, Travelers notified plaintiffs that it was rescinding their policy, as the policy was issued based on the representation that a sprinkler system was in the warehouse, when in fact there was not. Plaintiffs notified defendant that they intended to depose Koshineg and required him to bring materials he prepared while assisting in the claims investigation and policy rescission process. Defendant moved for a protective order, which was ultimately granted. Plaintiffs argued that Koshineg worked as part of the defendant’s claims adjusting team and should be considered to be an investigator for the insurer because he became involved so early on in the matter. But the Court found that Mr. Koshineg played a traditional lawyer’s role of providing legal advice to a client, and did not serve as a member of defendant’s claims investigation team and thus the attorney–client privilege applied. Plaintiffs further argued that even if privilege existed, it had been waived because the Vice President, who advised the plaintiffs of their policy rescission testified that in drafting the rescission letter, he relied on the advice of counsel. But the Court found that defendant had not waived the privilege because the defendants did not assert "reliance on course" as an affirmative defense to the lawsuit. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. 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