News Lack of Candor on Prior Injuries Leads to Dismissal (NY) August 6, 2012 < Back Share to: In a motor vehicle accident case, Torres v. Gamma Taxi Corp., the defendant taxi company moved for summary judgment on the ground that plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d). A prior motion for the same relief was denied, due to "triable issues of fact" regarding causation. After the denial of its initial motion, however, defendant discovered that the plaintiff had been involved in two previous motor vehicle accidents resulting in similar injuries. The Court heard defendant's subsequent motion on the merits, despite the earlier denial, because plaintiff's "lack of candor" at his deposition was the reason defendant did not earlier know about the prior accidents. The Court then granted defendant's new motion because the expert reports indicated that plaintiff's injuries were not caused by the subject accident, and that plaintiff's current allegations were "mere recurrences of the earlier symptoms." Plaintiff's experts failed to raise an issue of fact as to causation. The salient point here is the work done by the defendant's attorneys, adjusters and investigators to uncover plaintiff's pre-existing condition, despite plaintiff's denial of any such condition at his deposition. The Court does not opine on how the defendant obtained this information. The Court could have ruled that such information should have been obtained earlier, and thus denied the motion to reargue on those grounds. In any event, in this case, substantial digging and investigation resulted in a dismissed claim. Thanks to Brian Gibbons for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com   Previous Next Contact

News Watch Where You Walk: Not All Falls Produce Valid Labor Law 240(1) Claims. May 24, 2013 < Back Share to: In Carey v. Five Brothers, Inc., Carey, a subcontractor supervisor, delivered work equipment to his crew construction a new supermarket. When returning to his truck, plaintiff fell partially through an open manhole atop a 10-foot-deep precast drainage vault. The drainage vault had a metal collar for the manhole cover, which had been dislodged. There was no information regarding when, how, or by whom the cover was dislodged. In addition, there was snow on the ground where Carey was injured. Plaintiff sued various parties for violations of New York Labor Law Labor Law §§ 240(1), 241(6), and 200. All parties moved for summary judgment, but the lower court found issues of fact. On appeal, the Second Department held, that it was error for the lower court to deny those branches of the defendants motions that sought dismiss of the Labor Law § 240(1) claims. In making its ruling, the Second Department noted that although Carey's injuries were allegedly the result of a fall, the injuries did not arise in the context of the "special hazards" against which the statute is designed to protect, namely, "the exceptionally dangerous conditions posed by elevation differentials at work sites." Similarly, the court dismissed the Labor Law § 241(6) claims because none of the regulations that the plaintiff were applicable to the facts. Importantly, the Second Department upheld the position that not all falls from heights fall within the ambit of Labor Law 240(1). However, the Second Department let plaintiff’s Labor Law § 200 claims remain, stating that the defendants failed to establish prima facie that they neither created nor had constructive notice of the allegedly dangerous condition presented by the dislodged collar and manhole cover. Thanks to Lora Gleicher for her contribution to this post.   Previous Next Contact

News Workers' Compensation Defense Applies to Alter Egos October 13, 2008 < Back Share to: The defense afforded to employers by the exclusivity provision of the Workers' Compensation Law may also extend to suits brought against an entity that is found to be the alter ego of the corporation that employs the plaintiff. In Cappella v. Suresky at Hatfield Lane, LLC, the plaintiff was employed by R.I. Suresky & Son, Inc., a car dealership. The plaintiff claimed that he was injured when he fell in the dealership lot. Since he could not bring suit against his employer, the plaintiff sued Suresky at Hatfield Lane, the owner of the lot. Suresky at Hatfield Lane argued that it was an alter ego of the plaintiff's employer and submitted proof that the plaintiff's employer exercised managerial and financial control over it. The court ruled that this proof sufficiently established a prima facie defense under the Workers' Compensation Law. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07603.htm Previous Next Contact

News Decision on Pollution Exclusion Stinks for Insurer (NY) December 16, 2011 < Back Share to: Barney Greengrass is a small delicatessen located on the Upper West Side. The “Sturgeon King” has been open for more than 100 years, and is a well known breakfast spot. But its neighbor, Theodore Bohn, is not a fan. Claiming that he was unable to use his living room because of overpowering odors, he sued the restaurant. Barney Greengrass tendered the defense of the suit to its insurer, Lumbermens, who denied coverage, citing to the pollution exclusion, which excluded coverage for property damage arising out of the discharge of “pollutants.” The restaurant filed a declaratory judgment action against its insurer, and was awarded summary judgment. The district court found that to read pollution as encompassing restaurant odors would “contradict common speech” and the “reasonable expectations of a business person.” On appeal, the insurer argued that the odors were “fumes,” defined in the policy as a pollutant. The appellate court rejected that claim, noting that the policy did not define fumes, and that any precedent for odors falling within the ambit of the exclusion were in circumstances where the odor was linked to traditional environmental pollution, such as the dumping of waste materials or leakage from a sewage treatment plant. Lumbermens also claimed that, under the New York City Administrative Code, restaurant odors could constitute “air contaminants” subject to regulation. But the Court was unwilling to link such regulations to an insurance coverage dispute and upheld judgment in favor of the restaurant. http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020111104087.xml&docbase=CSLWAR3-2007-CURR If would like more information about this case, please write to Mike Bono at mbono@wcmlaw.com . Previous Next Contact

News Supplemental or Amended Bill of Particulars? (NY) April 27, 2018 < Back Share to: In Kirk v. Nahon, the Appellate Division rebuked a recurring discovery procedure used by plaintiffs attorneys to add additional injuries during the course of personal injury litigation by serving additional Bills of Particulars. The plaintiff in Kirk filed a lawsuit in Nassau County Supreme Court for personal injuries allegedly sustained after his vehicle was hit in the rear by the defendants' vehicle. The initial Bill of Particulars and Supplemental Bill of Particulars alleged various injuries to the plaintiff's back, neck, and knee. The plaintiff later served what he labeled a "second supplemental bill of particulars," which alleged "consequential stroke," and thereafter, a "third supplemental bill of particulars," which amplified the allegations as to the stroke. However, at his deposition, the plaintiff testified that there was no causal connection between the stroke he suffered and the accident. As such, the defendants filed a motion to strike the second and third Supplemental Bills of Particulars. The Supreme Court granted the motion, and the plaintiff appealed. The Appellate Division decision ruled that the plaintiff’s labeling of Bills of Particulars as “supplemental” does not control the reality of the pleadings. The “supplemental” Bills of Particulars were in fact amended Bills of Particulars, as they sought to add new injuries. Citing CPLR Section 3403 and case law, the Appellate Division held that leave to amend a Bill of Particulars is ordinarily to be freely given in the absence of prejudice or surprise, but in Kirk “the plaintiff failed to establish the absence of prejudice or surprise to the defendants, and failed to adequately explain the delay in seeking to add the new injuries.” As such, the Appellate Division found that the Supreme Court properly granted the defendants’ motion to strike the second and third supplemental bills of particulars. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News To Remove or Not To Remove? Federal Court Beckons ... (PA) June 8, 2017 < Back Share to: Plaintiffs get to choose litigation venue by filing a complaint in any court that meets jurisdictional rules – State or Federal. While defendants have limited means to select venue, one consideration is whether a matter can be removed to federal court. Particularly where an out of State defendant is involved in an action meeting diversity requirements, federal court may provide a more favorable venue. However, the decision must be made quickly as the rule requires removal in thirty days from service of the complaint. In JUDITH KOERNER v. GEICO, the defendant insurer removed a UIM claim to Pennsylvania Middle District Court only after the plaintiff amended the complaint some eight months into the State court litigation. The insurer contended that the only after the amended complaint did the amount in controversy exceed the jurisdictional requirement of $75,000. The plaintiff sought remand on the grounds that the removal came well after the allotted 30 days. The plaintiff, Judith Koerner (“Korner”) alleged that she was injured in an auto accident, when objects from an unidentified vehicle were thrust into the roadway and forced her into a guardrail. As a result, she sustained injuries for which she sought uninsured motorist benefits from her insurer, Geico, which denied the claim. Koerner filed her original complaint in Pike County Court of Common Pleas, without a quantification of damages, but demanded an unspecified judgment in the amount to cover damages she sustained in the accident. Nearly a year later, Koerner amended her complaint, adding individual counts for breach of contract and bad faith against Geico. Notably, Koerner alleged that Geico was liable for Pennsylvania common law and statutory bad faith damages, including punitive damages (which under Pennsylvania jurisprudence can be up to ten times the compensatory award). Subsequent to Koerner’s amended complaint, Geico filed a notice to remove the case to federal court, based on diversity jurisdiction. In support of its notice, Geico stated that the policy’s UIM limit was $15,000, noting that the demand for punitive damages in Koerner’s amended complaint satisfied the jurisdictional requirement of a $75,000 amount in controversy. Geico argued that the removal was timely because it was not until the filing of the amended complaint that it could ascertain the amount in controversy as meeting the threshold for removal. Koerner counter-argued that Geico’s petition to remove the case was untimely because Geico should have filed for removal within 30 days of filing the original complaint. Koerner relied on 28 U.S.C. § 1446(b)(3), which states: (3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. Although the original complaint did not allege damages in excess of $75,000, Koerner argued that under 28 U.S.C. § 1446(b)(3), Geico could surmise that the amount in controversy exceeded $75,000 prior to her amended complaint, based on “other papers” including medical reports. The Middle District denied plaintiff’s motion reasoning that the use of the word "ascertain" in § 1446(b)(3) means that the thirty-day removal period is triggered only when the documents "make it `unequivocally clear and certain' that federal jurisdiction lies." Because Koerner provided no basis to conclude that medical records supplied in response to a request for production of documents makes the amount in controversy ascertainable—the documents did not "make it unequivocally clear and certain that federal jurisdiction lies." This was particularly so when the operative complaint at the time only alleged with specificity that Koerner was entitled to uninsured motorist benefits from Geico and those benefits under the policy were $60,000 shy of the amount in controversy required for federal jurisdiction. Only when bad faith was alleged did Pennsylvania's Bad Faith statute make punitive damages in issue and, in theory, increase the amount in controversy in excess of $75,000. Therefore, federal court jurisdiction was proper. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Witness Fee Jeopardizes Defense Verdict (N.Y.) February 11, 2013 < Back Share to: The stresses of trial are many for those attorneys who try cases. One particular demon that keeps trial lawyers up at night is the worry that key witnesses, particularly non-party fact witnesses, will refuse to cooperate or honor subpoenas requiring their testimony at trial. Some witnesses claim that they are too busy, too important or can’t afford to lose the time from work to appear at trial. What may a trial lawyers ethically do to secure important trial testimony from a non-party fact witness? Just how much may the trial attorney “reimburse” a fact witness for the claimed cost and expense of appearing at trial? Can such fees become so unreasonable that a witness’s testimony may be precluded or stricken as irrevocably tainted by undue influence or bias? The New York Court of Appeals decided this thorny issue in Caldwell v. Cablevision Systems Corporation, taking a balanced approach to the problem. In Caldwell, plaintiff claimed to have tripped and fallen while walking her dog due to the negligent construction work performed in the area by the defendant. In response, the defense lawyer subpoenaed the emergency room physician who spoke with plaintiff when she first sought medical treatment and documented in his note that plaintiff “tripped over a dog while walking last night in rain.” The problem arose when it turned out that the doctor was paid $10,000 for his short appearance in the courtroom with little discussion about how the attorney or the witness arrived at that significant sum. The trial court gave plaintiff’s attorney substantial leeway in exploring the size of the payment during both cross examination and summation. Not surprisingly, the jury found the defendant negligent but that such negligence was not a proximate cause of plaintiff’s accident. On appeal, plaintiff sought a bright line ruling that the payment of a $10,000 witness fee rendered the doctor’s testimony inadmissible as a matter of law. The Court of Appeals was troubled by the size of the witness fee and its potential to influence the doctor’s fact testimony. It noted that the statutory, minimum fee for subpoenaed witnesses was a $15 appearance fee and .23 per mile for travel expenses. However, the court rules and relevant case did not forbid witness fees in excess of the statutory minimum where they reimburse a witness for “actual expenses and reasonable compensation for lost time.” In sum, the court permitted the challenged testimony to stand with the caveat that in future cases the trial judge should specifically charge the jury that it may consider whether a witness fee is “disproportionately more than what was reasonable for the loss of the witness’s time from work or business,” and, if so, whether the payment “had the effect of influencing the witness’s testimony.” Justice may be blind but it is rarely cheap. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Will Amazon Be On The Hook? Awaiting Important Precedent in PA April 28, 2023 < Back Share to: We are still on watch for a current pending Pennsylvania Supreme Court decision that could impact Amazon’s liability in this case. In Oberdorf v. Amazon.com Inc., 930 F.3d 136, 150 (3d Cir.), reh'g en banc granted, opinion vacated, 936 F.3d 182 (3d Cir. 2019), the plaintiff filed a strict products liability action against Amazon alleging failure to warn and design defect from an allegedly faulty retractable dog collar purchased from a third-party vender on Amazon. In Pennsylvania, the Restatement (Second) of Torts, §402A strict products liability actions extend only to “sellers” of products. The court reasoned that determining whether an entity is a “seller” requires the consideration of multiple factors analyzing the level of control an entity has, such as warranty, title, control sufficient to inspect, economic benefit, and control over design and manufacture. The Third Circuit held that Amazon did meet the criteria of a “seller,” but this holding was nullified when the Third Circuit agreed to hear the case en banc. After the Third Circuit expressed uncertainty over what test to utilize in determining whether Amazon is a “seller,” the Pennsylvania Supreme Court agreed in 2020 to address the following issue: “Under Pennsylvania law, is an e-commerce business, like Amazon, strictly liable for a defective product that was purchased on its platform from a third-party vendor, which product was neither possessed nor owned by the e-commerce business?” Oberdorf v. Amazon.com, Inc., 661 Pa. 535, 237 A.3d 394 (2020). While the Petition for Certification of Law was Granted in 2020, we are still awaiting a schedule for oral argument. However, this could have an immense impact on products liability cases; more specifically on whether Amazon may be exposed to liability for products sold by third parties in Pennsylvania and other jurisdictions. If Amazon is not considered to be a “seller,” liability will fall heavier on sellers, and even sellers who stand in the shoes of a foreign manufacturer in litigation. Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Bad Weather Is Insufficient To Establish Actual Or Constructive Notice (NY) June 3, 2021 < Back Share to: On January 3, 2019, Plaintiff slipped and fell while shopping at Defendant Von Muar’s retail store located in Eastview, New York. Approximately four months later, Plaintiff filed suit alleging that she was injured due to Defendant’s negligence in causing, creating, or permitting a dangerous condition within its premises. After discovery was completed, Defendant filed a motion for summary judgment on the basis that no evidence was presented that supported the Defendant created or had actual or constructive notice of a hazardous condition that it failed to correct. The U.S. District Court for the Western District of New York granted the Defendant’s motion and dismissed the Plaintiff’s complaint. In his opinion, the Honorable Frank Geraci concluded no evidence was raised during discovery supported a finding that Defendant created a wet spot in the store nor did Defendant have actual or constructive notice of the allegedly dangerous condition. In this case, the Plaintiff did not see any wet spot before falling and concluded a wet spot on the floor only because she observed her clothes were wet after the fall. However, the defense argued no evidence established that a wet spot on the floor was visible or even present before Plaintiff’s fall. Furthermore, there was no evidence an employee of Defendant created the hazard or knew of the wet floor, nor that another customer complained about a wet spot in the area before Plaintiff fell. The retail store had wet floor signs placed in five areas throughout the store, with carpets and runners placed at the entrance, which was common practice between October and April due to possible inclement weather, regardless of the specific day. As such, Judge Geraci noted Plaintiff’s theory that the wet floor signs, along with Defendant’s acknowledgment that their cleaning procedures did not make the floor wet, demonstrate a more general awareness by Defendant that floors may become wet due to the weather conditions existing on a given day. But this is not sufficient to establish that Defendant had actual notice of the alleged wet spot. Thanks to Irving Fayman for his contribution to this post. Should you have any question, please contact Thomas Bracken. Previous Next Contact

News WCM Welcomes 14 New Attorneys! September 18, 2023 < Back Share to: [vc_row][vc_column][vc_column_text]Introducing WCM’s new Fall Class, Effective September 18, 2023. Long Island Ishra Glasswala is a graduate of New York Law School and was a senior editor on the Trial Competition Team. Ishra completed undergraduate studies at Montclair State University. Prior to joining WCM, Ishra was a judicial intern for judges in New York County Supreme Court and the United States District Court for the Southern District of New York and was a paralegal for a New Jersey personal injury firm. Ishra is fluent in Urdu. New Jersey Aron Goldberger is a graduate of Rutgers Law School and was a mock trial competitor and teaching assistant. Aron completed undergraduate studies at Thomas Edison State University. Prior to joining WCM, Aron was a judicial intern for a New York State Supreme Court judge and interned with a New York intellectual property firm. Aron is fluent in Yiddish and Hebrew. Bryan Gonzalez-Mejia is a graduate of Rutgers Law School and was a member of the American Constitution Society. Bryan completed undergraduate studies at Stockton University. Prior to joining WCM, Bryan was a legal intern with the Immigrant Justice Clinic and Rutgers Immigrant Community Assistance Project. Bryan is fluent in Spanish and elementarily proficient in French. Christina Herrera is a graduate of Rutgers Law School and was an editor for the Women’s Rights Law Reporter. Christina completed undergraduate studies at Montclair State University. Prior to joining WCM, Christina was a research assistant for a Rutgers professor and was a student associate in Rutgers Law Entrepreneurial Clinic. New York Julia Klein is a lateral hire with years of experience in the civil arena. Prior to joining WCM, Julia was a solo practitioner for a year with a focus on estate and family law, before then working as an associate for two well-known NY personal injury firms on both the plaintiffs and defense side. Julia is conversational in Spanish and spent a year traveling and volunteering at a non-governmental organization in Peru. Andrew Henriquez is a graduate of St. John’s University School of Law and was an editor for the Journal of Civil Rights and Economic Development. Andrew completed undergraduate studies at Brown University. Andrew returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Andrew interned with the Office of the New York City Comptroller, Bureau of Law and Adjustment and was an assistant paralegal for a New York firm. Andrew was also a part of New York City Community Emergency Response Team. Pennsylvania Brian Noel is a lateral hire who joins WCM as counsel with extensive legal experience. Prior to joining WCM, Brian was a law clerk for a United States District Court, Eastern District of Pennsylvania judge; adjunct professor and associate director of academic and bar success initiatives for New York Law School; and was an assistant district attorney for the New York County District Attorney’s Office. Alexander Hubschmidt is a graduate of Villanova University Charles Widger School of Law and was vice president of the International Law Society. Alexander completed undergraduate studies at Boston College Morrissey College of Arts and Science. Prior to joining WCM, Alexander was a judicial intern for a Superior Court of Pennsylvania judge, research assistant for a Villanova professor and legal intern with a Pennsylvania personal injury law firm. Alexander volunteered at an Estonian-American children’s camp. Anand Tayal is a graduate of Temple University Beasley School of Law and was captain of the moot court team and member of the mock trial team. Anand completed undergraduate studies at Bucknell University. Prior to joining WCM, Anand interned with the Allegheny County District Attorney’s Office and was a legal intern with a Philadelphia personal injury firm. Domenica Tomasetti is a graduate of Villanova University Charles Widger School of Law and was a staff writer for the Villanova Sports Law Blog and representative for the Labor and Employment Law Society. Domenica completed undergraduate studies at the Catholic University of America. Domenica returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Domenica was a judicial intern with the Delaware County Court of Common Pleas, an intern with the Office of the District Attorney in Delaware County and was a legal research assistant for a Villanova professor. Jack McGuire is a graduate of Villanova University Charles Widger School of Law and was a Trial Competition Team competitor and member of the Sports Law Society and Pro-Bono Society. Jack completed undergraduate studies at the University of Notre Dame. Jack returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Jack was a judicial intern with the United States Bankruptcy Court: Western District of Pennsylvania. Jessica Whelan is a graduate of Villanova University Charles Widger School of Law and was a staff writer and managing editor of the Villanova Law Review. Jessica completed undergraduate studies at Pennsylvania State University. Prior to joining WCM, Jessica was a judicial intern with the Court of Common Pleas, First Judicial District and was a law clerk for several Philadelphia law firms. Martha Osisek is a graduate of Villanova University Charles Widger School of Law and was a representative for the Entertainment Law and Media Society and Intellectual Property Society. Martha completed undergraduate studies at Boston University Questrom School of Business. Prior to joining WCM, Martha was an extern for a Delaware County Court of Common Pleas judge, a legal intern with the Motion Picture Association and law clerk with a New Jersey firm. Martha has volunteered with a grief peer support group for elementary age children. Sydney Kockler is a graduate of Villanova University Charles Widger School of Law and was a member of the Corporate Law Society, International Law Society and Fashion Law Society. Sydney completed undergraduate studies at the University of Pittsburgh. Sydney returns to WCM after previously participating in WCM’s summer intern program. Prior to joining WCM, Sydney was a legal extern with the United States Attorney’s Office for the Eastern District of Pennsylvania, Pennsylvania Office of Attorney General, and Pennsylvania Governor’s Office of General Counsel.[/vc_column_text][/vc_column][/vc_row] Previous Next Contact

News Entrustment Exclusion Excludes Coverage for Post-Eviction Damage by Former Tenant January 25, 2018 < Back Share to: In Winking Group LLC v. Aspen American Ins. Co., the court held that according to its plain and ordinary meaning, the Entrustment Exclusion in a policy precluded coverage for damage to property caused by a former tenant, even after the tenant had been evicted and was thus, no longer “entrusted” with the property. The Plaintiff-insured had leased property to East Market, Inc., a restaurant, from 2009 through 2014. At some point in 2014 collection proceedings were initiated against East Market, resulting in a settlement agreement that provided the tenant would fully vacate the premises by January 10, 2015. On January 10, 2015, East Market was evicted, and a notice of eviction was posted outside the premises. Plaintiff did not change the locks until January 23, 2015. At some point between January 10 and January 23, East Market employees vandalized the property, causing significant damage. Aspen Insurance disclaimed coverage for the losses pursuant to an Entrustment Exclusion in the policy which provided that “we will not pay for loss or damage caused by or resulting from… a dishonest or criminal act by you…or anyone to whom you entrust the property for any purpose.” Plaintiff argued that the exclusion was inapplicable because the damage was wrought after Plaintiff’s entrustment had been revoked. The Court disagreed. The Court, applying a common-sense, plain meaning interpretation to the words and intent of the exclusion, held that where the evicted tenant retains possession of keys, and the locks are not changed, the evicted tenant is still considered by the Court to be entrusted with the property because “it is sufficient that the vandalism was causally related to Plaintiff’s initial entrustment of the premises.” Thus, Winking Group provides that a formal eviction is not sufficient to sever a lessor’s entrustment for purposes of the policy exclusion. New York lessors are now on notice that they must retrieve all keys and change locks concurrent with an eviction or risk a finding of no coverage for any similar damage by a disgruntled tenant. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Not Your Average UM/UIM Claim (NJ) May 16, 2019 < Back Share to: In Wichot v. Allstate, the New Jersey Appellate Court addressed the potentially broad application of UM/UIM coverage. Specifically, in April 2012, Jeffrey A. Wichot was kidnapped at gunpoint by three individuals. He was driven around to different banks so he could withdraw money for the assailants. Throughout the incident they continuously threw Wichot against the car and pistol whipped him. Wichot was able to escape, but unfortunately he sustained physical injuries as well as PTSD. It was discovered that the assailants did not have car insurance, so Wichot filed an uninsured motorist (UM) claim against Allstate for psychological injuries. Allstate rejected his claim. It was later determined by a lower court that the gun, not the car, caused plaintiff’s PTSD and therefore Wichot did not have a proper claim. A state appeals court gave the case new life when it decided that the trial court must reconsider expert evidence that indicates the automobile played a significant role in the assault and therefore contributed to the PTSD. The panel concluded that whether there was a substantial nexus between the car and Wichot’s injuries was a disputed issue that needed to be decided before summary judgment could be granted. This is not your standard car accident case, but the takeaway is clear, each incident is fact specific and it is possible with creative lawyering, insurance companies may be on the hook for more than the average car accident. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact