News Saw You Slipping In The Lobby (It Wasn’t Me) (NY) February 18, 2021 < Back Share to: Kwan v. Confucius Plaza Tenants, et al, No. 154794/2015, 2021 WL 419041 (NY Cty. Sup. Ct. Feb. 5, 2021) is a personal injury case, wherein Plaintiff alleged damages after a slip-and-fall in the lobby of her residential premises, which was owned and managed by defendants. Kwan was decided on summary judgment in favor of defendants, who were able to prove: “It wasn’t me.” How? Surveillance footage captured the entire incident. The accident occurred on a rainy day after Plaintiff and her daughter entered safely through the lobby’s vestibule and towards the elevators. Plaintiff and her daughter were carrying umbrellas, and the daughter was rolling a suitcase. The daughter entered the elevator safely, pulling her luggage along with her. As Plaintiff followed, she slipped on the exact spot where the suitcase had just traversed. The record contained conflicting testimonial evidence about the existence of warning signs, mats in the vicinity, and whether defendants had notice about the wet conditions that caused Plaintiff’s slip-and-fall. The Kwan Court did not buy Plaintiff’s account of the events. Under New York law, to establish liability in a slip-and-fall case, a “plaintiff must prove that defendant either created or had notice of the condition.” Here, Plaintiff could not create triable issues of fact to prevent dismissal on summary judgment. Defendants established, as a matter of law, they did not create the wet-floor condition. Specifically, the video footage, from the lobby, supported defendants’ theory – that Plaintiff and her daughter tracked water into the lobby vis-à-vis carrying wet umbrellas, walking with wet shoes, and pulling a wet suitcase. Plaintiff failed to provide countervailing evidence to these points. And defendants do not have an “obligation to provide a constant remedy” if water is “tracked into the building by individuals immediately preceding plaintiff.” Plaintiff also failed to create triable issues of fact that defendants had either actual or constructive notice the floor was wet. In terms of actual notice – defendants were never notified the floor was wet (or otherwise observed the floor being wet). In terms of constructive notice – “a defect must be visible and apparent, and it must exist for a sufficient length of time prior to the accident to permit defendants’ employees to discover and remedy it.” Here, Plaintiff failed to provide any evidence establishing how long the floor was wet before the accident. Additionally, the record was remiss of evidence that anyone else saw the floor being wet prior to the accident. The takeaway from Kwan is not novel: owners, managers, and operators of commercial and residential property should consider investing in surveillance cameras for the common areas of their respective premises. Doing so can save time and money, as it may permit prospective defendants to prevail on summary judgment by relying on the “it wasn’t me” defense. Of course, this type of defense can only be successful if prospective defendants comply with their legal duties under premises liability law. Otherwise, it could be defendants caught red-handed, letting water stay on the floor. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News WCM Wins Again! Court Grants Time Bar Motion to Dismiss in NY July 25, 2024 < Back Share to: Hon. Judge Suzanne J. Adams, recently granted WCM's motion to dismiss plaintiff’s complaint in the case of New Liberty Pawn Shop, Inc. v. Certain Underwriters at Lloyd’s of London filed in the Supreme Court of the State of New York, New York County. Plaintiff New Liberty Pawn Shop Inc. (“New Liberty”) sought coverage under its policy of insurance issued by Defendants Certain Underwriters at Lloyd’s of London (“Underwriters”) after a reported theft. After the theft occurred, Underwriters conducted a preliminary investigation into New Liberty’s claim. Underwriters soon discovered that New Liberty was acting as the owner and controlling force behind Romanov Gold Buyers, another jewelry entity which was being criminally investigated. New Liberty did not disclose that it was acting as the controlling force behind Romanov on its application for insurance and essentially lied when filling out question 17(c) which required “the names and addresses of other locations of the proposer and of other concerns engaged in the jewelry trade under the same ownership or management as the proposer and not included in this proposal.” Underwriters determined that this misstatement was a breach of the policy and therefore disclaimed coverage on April 7, 2021. On October 27, 2023, thirty months after the disclaimer was issued, New Liberty filed suit against Underwriters asserting a cause of action for breach of contract. Notably, New Liberty’s policy contained Condition “n”, which provided that: “No suit, action or proceeding for the recovery of any claim under this Contract shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery of the insured of the occurrence which gives rise to the claim…” We argued that New Liberty’s delay in filing violated the unambiguous terms of the policy, and therefore New Liberty’s complaint should be dismissed. Judge Adams agreed, holding that New Liberty’s complaint and amended complaint filed on November 6, 2023 were time barred and dismissed with prejudice. Time bar provisions are generally disfavored and scrutinized carefully, but in this case, Judge Adams fully WCM's position, and found excuse for New Liberty having waited more than two years to test the merits of the disclaimer. An important win for WCM and for our clients in London. Nice work by Dennis Wade, Mike Bono, Martha Osisek and Dominika Tomasetti in a true team effort. Previous Next Dennis M. Wade Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Contact

News Progressive Facing Class-Action Lawsuit for Stiffing Thousands on Totaled Cars (NJ) January 6, 2011 < Back Share to: As we've recently seen, some courts have seen the wisdom in treating insurance policies as individual contracts. But that may or may not be the case for Progressive Insurance, which faces a class action lawsuit in New Jersey Federal Court for allegations that it stiffed thousands of customers on fees such as title transfer and registration transfer fees when covering insureds’ claims for cars that were deemed totaled. The lawsuit sounds in breach of contract as plaintiff’s are alleging that Progressive and New Jersey Insurance Co. violated their policies by failing to pay the costs of those fees as part of the actual cash value of their vehicles. Plaintiff’s argued that an ACV policy indemnifies insureds such that the payment for the loss of a legally titled and registered vehicle legally operable in New Jersey necessarily includes, at minimum, an amount sufficient to legally operate a vehicle in New Jersey, just as the insureds did prior to the loss. Plaintiff’s attorneys are currently arguing that the case meets the requirements for Rule 23 certification, including that a class action is a superior means of resolving the claims. We will continue to monitor this case, Ferrara et al. v. Progressive Garden State Ins. Co., C.A. No. 2:20-cv-01183 (SRC)(CLW). Thanks to Jonathan Avolio for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News Do CGL Policies Now Insure Data Breaches? April 29, 2016 < Back Share to: The case that everyone is talking about is Travelers Indemnity v. Portal Health, a just released, unpublished Fourth Circuit opinion. The quick story is that the Fourth Circuit affirmed the trial court opinion and held that Travelers owed coverage (specifically defense) under a CGL policy for a data breach. The real story is a bit more nuanced. In the case, Portal Healthcare, a Virginia based company, was sued in NY in a class action lawsuit. In the lawsuit, patients of Glen Falls Hospital claimed that Portal Healthcare failed to safeguard medical records entrusted to Portal Healthcare by the hospital and instead allowed those records to be posted on the internet – accessible to everyone via a Google search. Portal Healthcare was insured by Travelers under two consecutive commercial general liability insurance policies – a 2012 policy and a 2013 policy. The Policies were not standard policies – rather they contained special endorsements that expanded the scope of personal injury, advertising injury and web site injury. Specifically, the 2012 Policy contained a Web Xtend Liability Endorsement that deleted and replaced the definition of Personal and Advertising Injury liability. The 2013 Policy contained an Amendment of Coverage B – Personal And Advertising Liability Endorsement that deleted and replaced the definition of Personal and Advertising Injury liability. Under both endorsements, the parties (and court) seemed to agree that coverage was triggered if the underlying complaint alleged: (1) injury arising out of the offense of “electronic publication of material that . . . gives unreasonable publicity to a person’s private life” (the language utilized in the insuring agreement of the 2012 Policy) or (2) injury caused by the offense of “electronic publication of material that . . . discloses information about a person’s private life” (the language utilized in the insuring agreement of the 2013 Policy). In respect of the first point, Travelers argued that, although the data was available to the general public, since Portal Healthcare did not intend to publish it, publication did not occur. This argument was rejected by the court which held that it was the fact of publication (and not the intent of publisher) that mattered. In respect of the second point, Travelers argued that there was no “publicity” given to a person’s private life as the leak was not intended to generate publicity. This argument was also rejected by the court which held that since the leaked data was available to the general public, publicity had occurred. All of this seems rather straightforward, so why all the fuss? It seems that a top sheet review might be to blame. When you look at the trial court’s decision and the policies themselves, you see that the Travelers’ decision to broaden the scope of potential claims that would qualify as “personal and advertising injury” is the root cause of the decision. So, it’s true that CGL policies might have more potential exposure to data breaches – but only if you enhance the coverages. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

Florida Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – West Palm Beach WCM established its Florida office in 2021. Since then, the office has earned a strong reputation for handling a broad range of matters, including insurance defense, insurance coverage, commercial litigation, and appellate work. Led by two Board-Certified Trial Attorneys, our Florida team litigates cases in all state court vicinages throughout Florida, as well as in federal courts. Over the past year, the office has experienced significant growth—reflecting our unwavering commitment to achieving positive results through high-quality legal work, professional integrity, and outstanding client service. In addition to our litigation capabilities, the Florida office maintains a dedicated focus on insurance coverage and coverage litigation. Our team is well-equipped to handle the full spectrum of insurance matters, from cargo and jeweler’s block/specie to homeowner’s and general liability claims. Contact Details 1555 Palm Beach Lakes Blvd, Suite 580, West Palm Beach, FL 33401 561 231 2744 561 828 4620 Attorneys and Professional Staff Laurence Cancel Senior Associate Vanancia C. Hyppolite Associate Maria E. Dalmanieras Partner Nishall N. Jairam Counsel Helene E. Dalmanieras Paralegal Peter R. Restani Partner Chip M-P George Of Counsel

News Illegal Immigrant Using False Documentation Wins Workers Comp Benefits October 31, 2008 < Back Share to: The courts in NY have grappled with wage claims by undocumented immigrants ever since the US Supreme Court touched on the subject in 2003 in Hoffman Plastic Compounds v. NLRB. New York's highest court addressed the subject in 2006 in Balbuena v. IDR Realty. In the Balbuena case, an undocumented immigrant obtained employment without proffering any fraudulent documents -- he simply applied for a job and was hired. The court held that "in the absence of proof that plaintiffs tendered false work authorization documents to obtain employment, [federal law] does not bar the maintenance of a claim for lost wages by an undocumented alien." Thus, the court ruled that the plaintiffs in Balbuena were entitled to pursue a lost wage claim for injuries caused by the defendants' violation of Labor Law 240 and 241. Now comes Amoah v. Mallah Management, decided yesterday by an intermediate appellate court in Albany. Mr. Amoah arrived in the US legally with a seven-month visa that did not allow him to work. He obtained a job using a friend's name, social security number, and driver license. That is, in the words of the Balbuena decision, he "tendered false work authorization documents to obtain employment." Many months later (and long after his visa had expired), Amoah was injured on the job. He applied for workers comp benefits under his assumed identity. He had the support of his friend (who had loaned Amoah his identity) because his friend, who we will call "The Dealmaker," agreed to the scheme as long as Amoah shared half of the workers comp award and two-thirds of any recovery in a lawsuit. Mr. Amoah found these terms too harsh and revealed his true identity to the workers comp board. He then pressed on with his workers comp claim under his true identity. The appellate court ruled that Amoah is entitled to workers comp benefits even though he used false documentation to get his job and even though he used the same false documentation in applying for benefits. The court's rationale was that to deny benfits to Amoah would encourage employers to hire illegal aliens in the hope that they (the employers) would then be able to escape comp claims by these same illegal aliens. Previous Next Contact

News Naked Cowboy Files Legal Briefs February 15, 2008 < Back Share to: The "Naked Cowboy", a tourist attraction in NYC's Times Square for over a decade has sued Mars, Inc., the makers of M&Ms for trademark infringement over a billboard depicting an M&M in what appears to be the Naked Cowboy's unique outfit. http://www.cnn.com/2008/CRIME/02/14/naked.cowboy/index.html Previous Next Contact

News Signed Releases Cook Plaintiff's Harrassment Suit Against McDonald's (NY) July 25, 2013 < Back Share to: It is not uncommon for a party who signs a pre-suit release to have "buyers remorse" and decide to file suit anyway. The issue recently arose in Nelson v. Lattner Enters. Of N.Y., where, despite signing a release, plaintiff sued a McDonald’s franchisee and the McDonald’s Corporation for sex discrimination and sexual harassment. Plaintiff was a restaurant manager for the franchisee for approximately six years, and reported to the Corporation that her supervisor, Lattner, repeatedly subjected her to sexual harassment. During a meeting in December 2007, plaintiff signed a handwritten settlement agreement, consenting to leaving her employment and releasing all claims in exchange for severance payment and medical benefits. In a subsequent meeting, plaintiff signed a typed settlement agreement and release which comprehensively released all defendants from any liability in exchange for severance pay of $18,688.10 and continued medical benefits. When bringing suit against the defendants, plaintiff claimed that the signed releases were not valid and should be void because she signed them under duress. The trial court dismissed plaintiff’s action and the Second Department affirmed the dismissal of the claims. Even assuming that plaintiff was under duress when signing the handwritten first agreement, the Court found that she was not under duress when signing the second typed agreement. In the second meeting, plaintiff was unable to demonstrate any unlawful act that compelled her to sign. Further, the Court noted that the typed agreement indicated in bold that she should consult with an attorney, that she had 21 days to consider the agreement, and that she could even revoke the release up to seven days after signing it. Notwithstanding the language in the agreement, the Court also found that plaintiff’s conduct waived her objections and ratified the agreement by accepting and retaining the benefits for nearly two years before bringing suit in 2009. Thanks to Jung Lee for his contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Egg Hatching: Will the Salmonella Scare Finally Result in Passage of New Food Regulation? August 25, 2010 < Back Share to: We have previously reported on the Food Safety Modernization Act -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=661. Conventional wisdom held that, in this election year, the Act was unlikely to make it out of Congress for a signature by the President. The recent salmonella egg recall (http://www.philly.com/philly/wires/ap/business/101258889.html) -- which apparently arises out of a company with a history of violations (http://www.washingtonpost.com/wp-dyn/content/article/2010/08/21/AR2010082102822.html) -- might change that. Political pressure for Congress to address the Act is mounting -- http://www.claimsjournal.com/news/national/2010/08/24/112696.htm. And, of course, class action lawsuits arising out of the egg recall are also hatching -- http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202470887062&slreturn=1&hbxlogin=1. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News PA-No Extrinsic Evidence For You October 12, 2018 < Back Share to: In Lupa v. Loan City, LLC, the Third Circuit Court of Appeals confirmed the standard upon which an insurer’s defense obligations are triggered under Pennsylvania law. In Lupa, the insured sought coverage from its insurer for various claims asserted against it. In response to the insured’s request for defense, the insurer denied the insured’s claim, contending the complaint against the insured did not trigger coverage under the policy. On appeal, the insured contended that the four corners rule should not be applied to determine coverage under a policy. The Court of Appeals disagreed. The court held that, under Pennsylvania law, an insurer’s duty to defend could only be triggered by allegations within the four corners of the complaint. The court continued that there were no exceptions to this rule, which would require an insurer to rely on facts introduced outside of the complaint, i.e. extrinsic evidence. Accordingly, this case confirms that courts applying Pennsylvania law will apply the four corners test to determine whether an insurer’s obligation to defend has been triggered. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News Does COVID-19 Mean Quarantine? (PA) June 10, 2021 < Back Share to: In a recent order from the Eastern District of Pennsylvania, the court addressed the first of what is sure to be many cases stemming from cancellations of vacations and other travel due to COVID-19. This case was a putative class action filed on behalf of individuals who cancelled travel due to the coronavirus pandemic and whose claims for travel insurance claims were later denied by the defendant-insurer. The defendant-insurer moved to dismiss, and the court subsequently denied the motion on all grounds save for one breach of contract claim. Ultimately, the court decided that there were too many issues of fact to decide the case so prematurely, one such issue being the definition of the word “quarantine”. The plaintiff at issue had purchased a travel insurance policy from the defendant for a European adventure set to take place in late March 2020. On March 7, the plaintiff cancelled the trip due to COVID-19 and filed a claim with the defendant on March 12, which was denied. The plaintiff argued the denial was incorrect, as the policy language guaranteed up to full reimbursement for any covered reason, one of which was “being…quarantined.” Quarantine was not defined in the policy. The defendant-insurer argued that the term “quarantine,” based on the common meaning of the term, by no means applied to the large scale stay at home orders that were enacted to stop the spread of COVID-19. However, the court, recognizing the long-standing principle that an undefined, ambiguous term must be construed in favor of the insured, held there was still a question of fact to be addressed – particularly when considering this case dealt with lockdown procedures in the plaintiffs’ home states and cities as well as in all the destinations through and to which they were traveling. Going forward, it will be interesting to keep an eye on this action, as the plaintiffs all had different situations leading up to their travel claims, however, the one common denominator was COVID-19. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Fireworks Accident Only One Occurrence (PA) March 31, 2017 < Back Share to: In Hollis v. Lexington Insurance Company, a Pennsylvania federal court was faced with determining how many "occurrences" were triggered under an insurance policy, which can dramatically impact the amount of available coverage. Plaintiff Kathleen Hollis and her two children were injured during a fireworks show when a mortar unexpectedly was launched into the crowd. Plaintiffs alleged that the fireworks company, its president, and another employee committed 19 breaches of duty resulting in the injuries. Those breaches included negligently selecting and purchasing the fireworks, violating laws and regulations in the import of the fireworks, failing to test the fireworks before deployment, disregarding indications that the location for the fireworks show was unsafe, failing to set the crowd back at a safe distance from the launch area, negligently training employees, and other similar allegations. In the declaratory judgment action against Lexington Insurance Company, the Court was tasked with determining whether the allegations constituted a single occurrence, or as the claimants alleged, 19 separate occurrences under the fireworks company’s insurance policy to correspond with the number of duties that fireworks company allegedly breached. The insurance policy had a $1 million limit per occurrence and a $2 million aggregate limit. The insurer moved for summary judgment, saying that there was a single occurrence, and the injured claimants cross-moved. The trial court found in favor of the insurer, and the claimants appealed. On appeal, the Fourth Circuit found that Pennsylvania law applies a cause approach to defining what constitutes an “occurrence.” Under the cause approach, there is a single occurrence if there was one proximate, uninterrupted, and continuing cause which resulted in all of the injuries and damage. The Fourth Circuit noted that, regardless of the number of alleged negligent acts or victims, all the injuries had a single proximate cause — the misfired firework. Since all the injuries only had one cause, the Court affirmed the trial court’s decision and held that only one occurrence took place. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact