News Bus Driver Or Security Guard…Court Says Act Like Both (NJ) July 19, 2019 < Back Share to: In Maison v. NJ Transit Corp., the plaintiff was accosted by a group of unruly teenagers while riding on the bus. While aware of the situation, the New Jersey Transit bus driver failed to intervene, believing that the plaintiff had the situation under control. As plaintiff exited the bus, one of the teenagers struck her the head with a glass bottle, causing severe injuries. A jury found defendant New Jersey Transit responsible and awarded the plaintiff 1.8 million dollars. Unhappy with the verdict, defendant New Jersey Transit filed an appeal, claiming numerous errors made by the trial court. One basis of the defendant’s appeal was the trial court’s denial of defendant’s motion to dismiss plaintiff’s claims for failing to provide an expert report or testimony regarding the standard of care owed by the defendant. On appeal, the court noted that a plaintiff is not always required to present expert testimony, and the necessity of expert testimony is within the discretion of the trial judge. The facts of this particular case fell within the “common knowledge exception,” which essentially means that expert testimony is only required when a matter is so esoteric that jurors of common knowledge and experience cannot form a valid judgment. In this case, jurors without any advanced knowledge could have concluded that the bus driver should have done something to assist the plaintiff. Accordingly, the Appellate Court upheld the trial court’s determination that the plaintiff was not required to provide expert testimony for this particular case. Thanks to Heather Aquino for her contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Governor Cuomo Extends Prior Executive Orders (NY) June 12, 2020 < Back Share to: Following his original Order of March 7, 2020, New York State Governor Cuomo issued several additional Orders in early June extending prior orders until July 9, 2020. Specifically, Executive Order No. 202.38, issued on June 6, 2020, mandated that commercial building owners, retail store owners, and property managers may have the discretion to conduct temperature checks of individuals entering their property and shall not be subject to claims for violation of quiet enjoyment or frustration of purpose due to their carrying out the Order. This Order also permitted restaurant owners to serve outdoor patrons and for houses of worship to permit 25% capacity, to the extent that disinfecting and social distancing guidance was followed. Governor Cuomo’s subsequent Executive Order No. 202.40 stated that this Order and the mandates in his original Order would be extended to July 9, 2020. In line with the extension of Governor Cuomo’s Executive Orders, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks, announced on June 9, 2020, that judges and designated staff in the City of New York’s five boroughs – which have met the Governor’s established safety standards – would return to their courthouses on June 10, 2020. During this initial phase, all court business would continue to be conducted virtually to minimize foot traffic in the courthouses. Judge Marks stated that, as has been done in courts outside of New York City, which have been transitioning to Phase Two of a return to limited in-person court operations, in-person court operations in New York City would be re-established consistent with the Governor’s Executive Orders. Furthermore, on June 11, 2020, Judge DiFiore and Judge Marks announced that courts in every judicial district outside of New York City have begun Phase Two of a gradual return to in-person court operations. The goal of Phase Two is to safely increase courthouse foot traffic gradually, in order to ensure select matters that require an in-person appearance may occur while also maintaining virtual appearances. The announcement noted that essential family matters would be conducted in-person, while criminal, juvenile delinquency, mediation, and other non-essential matters would continue to be held virtually in Phase Two and for all non-essential matters for courthouses remaining in Phase One. We will continue to keep you updated on this ongoing issue. Thanks to Joseph S. Anzalone for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Art Foundation Prevails in Warhol Authentication Dispute (NY) April 5, 2013 < Back Share to: We've previously posted about how litigation is causing art foundations to reconsider authenticating art. Recently, a court provided support for these foundations by upholding the covenant not to sue clause found in the agreement signed by the art owner that was required by a foundation in support of the authentication services. In Thompson v. Andy Warhol Foundation, on three different occasions, the plaintiff submitted a drawing to the Foundation that he claimed was an Andy Warhol self-portrait. The Foundation each time sent plaintiff an opinion that the drawing was not made by Andy Warhol. Plaintiff filed suit, but summary judgment was awarded in favor of the Foundation. On appeal, the First Department found that the covenant not to sue barred most of plaintiff's claims. The Court also found that there was no special relationship between the parties that imposed any greater duty on the Foundation than those set forth in their written agreement. The Court also notably again held that "the market place is the appropriate place to resolve authentication disputes" and was not going to second-guess the decision made by the Foundation. If you would like more information, please write to Mike Bono.       Previous Next Contact

News No PIP For You (NJ) July 11, 2019 < Back Share to: In Washington v. Progressive, the New Jersey Superior Court was asked to determine if the plaintiff, Jacquelyn Washington, was entitled to damages for personal injuries and UIM coverage following a January 2015 a motor vehicle accident on the Garden State Parkway. Following the accident, the plaintiff had applied for medical expense benefits under her Pennsylvania Progressive Insurance policy. She also filed suit against the defendant driver seeking damages for personal injuries. For purposes of background, Washington was living in New Jersey for about two years, but was driving a car owned by her brother that was registered and insured in Pennsylvania, which carried $5,000 in medical benefit coverage. She used the SUV frequently as her main means of transportation. Most importantly, she kept the car parked at her New Jersey apartment. After suit was filed, defendant moved for summary judgement asserting that plaintiff’s claim was barred because she had not procured the requisite amount of New Jersey PIP coverage, a minimum of $15,000. The judge agreed. The judge indicated that the plaintiff was barred from recovering damages under N.J.S.A. 39:6A-4.5(a), which stated that a person who failed to maintain the requisite coverage shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile. His reasoning was simple. The car was “principally garaged” in New Jersey and therefore plaintiff had to maintain New Jersey automobile liability insurance coverage, including the mandatory $15,000 PIP coverage. As noted above, the plaintiff only had $5,000 in medical coverage. Every automobile operator that has his or her car “principally garaged” in New Jersey, meaning it is chiefly kept in New Jersey, must have the requisite insurance coverage. Here, the plaintiff kept her car at her apartment in New Jersey and did not have proper coverage and, thus was barred from recovery as a result. Thus, this case reveals the importance of determining the applicable statutory requirements when analyzing a motor vehicle accident potentially involving multiple states. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Should Coverage Be Provided Under Errors and Omissions Policy For Claims Against Victims of Phishing Scams? May 31, 2024 < Back Share to: The U.S. District Court for the Western District of Texas is currently dealing with that question in the declaratory judgement action brought by Capitol Specialty Insurance Company (“CSIC”) against TGG Management Company, Inc. d/b/a Tgg Accounting (“TGG”) and TGG’s CEO Matthew Garrett (“Garrett”) (collectively “TGG Defendants”). See Capitol Specialty Ins. Co. v. TGG Management Company, Inc. et al., 2024 WL 2190668 (W.D. Tex. 2024). In Capitol Specialty Ins. Co. , CSIC is seeking a declaratory judgement that it does not owe a duty to defend or indemnify TGG Defendants in a breach of contract lawsuit filed by Ikigai Marketing Works LLC (“Ikigai”) and Pooph Inc. (“Pooph”) (collectively the “Underlying Plaintiffs”) against TGG Defendants in California’s San Diego County Superior Court (the “Underlying Action”). Id. The Underlying Plaintiffs claim that each entity separately entered into professional services agreements with TGG wherein TGG agreed to provide accounting services. Id. On January 18, 2023, TGG allegedly received a request to send money to a phishing scammer, who had “spoofed” one of the Underlying Plaintiffs’ vendor’s email addresses and was holding themselves out as the vendor. Id. On four separate occasions in February 2023, TGG allegedly transferred payments to the scammer, totaling $843,704.90. Id. The Underlying Plaintiffs allege that each time TGG sent payments, TGG “failed to implement proper screening and failed to verify changes to the vendor’s banking information to filter out the phisher’s emails.” Id. The Underlying Plaintiffs claim that TGG only repaid them $67,000 and sought to profit from the phishing scam by requiring clients to cover the costs of its investigation into the scam. Id. The Underlying Plaintiffs assert causes of action against TGG Defendants for, inter alia , breach of contract, breach of implied covenant and good faith and fair dealing, professional negligence, and constructive fraud. Id. TGG Defendants tendered their defense in the Underlying Action to CSIC, and CSIC agreed to defend them under TGG’s errors and omissions policy (“E&O Policy”) subject to a reservation of rights. Id. Now, CSIC is seeking a declaratory judgement that it does not owe a duty to defend or indemnify TGG Defendants in the Underlying Action because the E&O Policy expressly precludes coverage for any damages, claims or expenses arising out of “unauthorized access to, use of, or tampering with data or systems by any person,” and Underlying Plaintiffs allege that TGG failed to implement proper internal e-mail screening controls leading the scammer to have unauthorized access to TGG’s email system. Id. Further, CSIC argues that coverage is not owed under the E&O Policy pursuant to the exclusions for “criminal, dishonest, fraudulent, malicious or knowingly wrongful acts” committed by TGG, “unfair competition,” and “any gain, profit, advantage to which [TGG] is not legally entitled.” Id. While TGG Defendants undisputably suffered a loss as a result of a phishing scam, the allegations in the Underlying Action present an interesting scenario in which TGG Defendants not only failed to implement sufficient data protection protocols, but also sought to profit off of their failure by making their customers pay. We will have to wait and see how the case progresses in Texas; however, the allegations against TGG Defendants suggest that one of the above exclusions is likely to apply to bar coverage under the E&O Policy. As phishing scams are becoming more sophisticated and harder to identify, this case highlights the importance for businesses to prioritize data protection. Capitol Specialty Insurance Company v. TGG Management Company Inc. .pdf Download PDF • 172KB Previous Next Contact

News Never Too Early To Start Thinking About Snow (PA) October 9, 2019 < Back Share to: The Superior Court of Pennsylvania recently reversed an order granting summary judgment in favor of Albright College, in Lopez v. Albright College. The Court explored the duty of landowners to individuals who slip and fall on their property due to ice and snow accumulations. The Court reaffirmed that the hills and ridges doctrine may only be applied in cases where the snow and ice that caused the slip and fall were entirely natural. On March 13-14, 2017, a total of 16 to 18 inches of snow fell on Albright College’s campus and the surrounding areas. From the early morning hours of March 14 to March 15, Albright’s grounds crew performed snow removal. This included shoveling snow and salting sidewalks. While walking down a main thoroughfare through Albright, the plaintiff slipped and fell on the sidewalk due to a patch of ice. Lopez argued that the patch of ice that she fell on was caused by Albright’s negligence by allowing the snow to refreeze after the first attempts to remove it from the sidewalks. Albright argued that the hills and ridges doctrine should apply and absolve the school of Lopez’s injury. The hills and ridges doctrine excuses landowners of injuries that occur on their property when it would be nearly an impossible burden to fully clear walkways of ice and snow. However, this doctrine may only be applied in cases where the snow and ice are entirely the result of natural causes following a snowfall. In reversing the lower court's ruling, the appellate division ruled that Albright's interaction with the snow could have possibly caused the sidewalk’s conditions, resulted in not entirely natural accumulation. Therefore, the appellate division found that the school was not entitled to summary judgment, as there was a genuine issue of fact as to whether the doctrine could apply. Thanks to Nicholas Wright for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Discretionary Decisionmaking or Ministerial Act? NJ Weighs In on Municipal Liability. April 12, 2013 < Back Share to: Under the New Jersey Tort Claims Act (the Act), N.J.S.A. 59:1-1 to 12-3, a public entity is entitled to sovereign immunity for discretionary activities unless the entity's actions were palpably unreasonable. However, in respect of ministerial functions, ordinary negligence principles apply. Thus, the consistent NJ battle is between plaintiffs who seek to have a ministerial standard applied and the public entities that seek to have a discretionary function standard applied. Such was the issue before the court in the case of Henebama v. SJTA, et al.. In this case, the plaintiff lost a leg when, as the result of numerous other car accidents, medical aid was not rendered to her when her car accident occurred. The trial court made the decision as to which standard applied and then charged the jury. An adverse verdict and appeal followed. When confronted with the appeal, the Appellate Division stressed that the fundamental question before it was whether a judge or jury should make the discretionary or ministerial decision. The Court ruled that “when the evidence establishes a genuine issue of material fact regarding whether the alleged failures of a public entity were the result of discretionary decision making as to how to use its resources, or instead involved ministerial acts mandated by law or practice, then that fact issue must be submitted to the jury.” This is just one more thing to worry about when defending public entities as there now appears to be limited hope for a motion victory. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Vespa + Cardboard box = No Coverage (NY) October 17, 2011 < Back Share to: In an effort to reduce the potential for bogus claims, in order to sustain a claim for uninsured motorist coverage in New York for accidents involving “hit-and-run” vehicles, the claimant must establish that there was “physical contact” with the hit-and-run vehicle. In State Farm v. Beddini, the claimants were on a Vespa, when a large, cardboard box flew off of the back of an unidentified pick-up truck. The box became lodged in the front wheel of the Vespa, causing the claimants to be ejected and sustain injuries. A similar situation occurred in [i]Allstate v. Killkaney[/i], where a tire and rim from an unidentified vehicle caused the claimant’s vehicle to crash. However, in rendering its decision, the Court of Appeals held that physical contact occurs “when the accident originates in collision with an unidentified vehicle, or an integral part of an unidentified vehicle.” As such, the [i]Beddini [/i]Court found that, while a tire and rim were clearly an integral part of a vehicle, a cardboard box was not, and therefore, there was no coverage for the claim. If you would like more information about this post, please contact mbono@wcmlaw.com Previous Next Contact

News Pennsylvania Supreme Court Expands UIM Stacking Waiver Requirements (PA) October 4, 2019 < Back Share to: The Pennsylvania Supreme Court recently held that increasing underinsured motorist (UIM) coverage constitutes a “purchase” which voids prior stacking waivers and requires insurance companies to offer insureds a new opportunity to waive stacking. In Barnard v. Travelers Home & Marine Ins. Co., the insured, Michelle Barnard, brought suit against Travelers Home and Insurance Company, claiming that the stacking waiver she signed with her initial policy purchase was no longer in effect because she subsequently increased her UIM coverage. In September 2007, Barnard purchased a personal automobile policy from Travelers, including UIM coverage of $50,000 for each of her vehicles, for which she waived stacking. In May 2009, she increased the UIM coverage to $100,000 for each vehicle and Travelers did not give her a waiver option. In June 2016, Barnard was involved in an accident and Travelers offered her $100,000, relying on her stacking waiver from 2007. Barnard sued Travelers for $200,000 claiming that her decision to increase her UIM coverage on both of her vehicles in 2009 constituted a “purchase”, and because Travelers did not give her the option to waive stacking, her policy defaulted to stacked UIM coverage. Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insured must be offered the option to waive stacked UIM coverage whenever a “purchase” occurs. Although the courts had previously held that simply replacing vehicles covered under a policy without changing policy limits did not constitute a purchase, there was no case law on point addressing whether increasing policy limits constituted a purchase. This case turned on the plain and literal meaning of “purchase”, which the Court found requires: (1) the acquisition of something; and (2) payment. This literal interpretation overcame Travelers’ numerous attempts to persuade the Court that a “purchase” refers to the initial policy purchase. Travelers argued that requiring an insurance company to offer a new stacking waiver every time policy limits are increased would be akin to requiring it to offer a new stacking waiver every time premiums increase due to inflation or because a new vehicle is added to the policy. Ultimately, the Court found that an insured can only “knowingly and voluntarily [reject] the stacked limits of coverage” for the present limits of the policy, and an insured cannot knowingly and voluntarily reject future stacked limits because he or she is unaware of what those limits will be. Thus, Barnard could not have knowingly and voluntarily rejected the stacked limits of $100,000 when she only had limits of $50,000 in 2007. Furthermore, requiring an insurance company to offer a stacking waiver with increased UIM policy limits is not akin to requiring it to offer a stacking waiver with increased premiums because although the second part of a “purchase” is satisfied (“payment”), the first is not (“the acquisition of something”). When premiums increase, the insured is not getting anything beyond what was stated in the initial policy. When policy limits are increased, the insured is getting more coverage and making a payment for it. The Court also rejected Travelers’ public policy argument, finding that public policy simply cannot contravene the plain meaning of the statute. Thus, the Court concluded, when an insured increases his or her UIM coverage on more than one vehicle, the insured must be offered a new stacking waiver or else the insured's UIM coverage automatically stacks. Accordingly, insurers should keep in this case in mind when UIM coverage is being increased under a policy. Thank you to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News A True "Out of Possesion" Landlord. September 10, 2013 < Back Share to: In Smith v. RMS Residential Properties, LLC, Defendant, RMS purchased a property in Queens through a foreclosure auction in 2008. The former homeowner refused to vacate the premises or provide access to RMS or its Realtor (tasked with re-selling the property) until she moved out in late 2011/early 2012. Plaintiff, a visitor of the former homeowner, was injured when a bathroom light fixture fell on him in August 2011. Plaintiff sued RMS, and RMS moved for summary judgment as an “out of possession” landowner. Plaintiff opposed the motion by invoking New York Multiple Dwelling Law §78,which requires that "[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair.” However, the court noted that, "an owner will not be held liable under section 78 where it has completely parted with possession and control of the building." Here, RMS had no control of the building, thus had no duty to maintain or repair the property and, therefore, could not be held liable for plaintiff’s injuries. Most “out of possession” landowner arguments are made where a lease discharges the landlord’s duty to repair or maintain the premises. Here, though RMS was not legally discharged of the duty via a written lease, the court found that it owed no duty to the plaintiff since it did not factually have control of the building. For any questions about this case, please contact cfuchs@wcmlaw.com .       Previous Next Contact

News What Agent Knows, Insurer Knows, According to NJ Court June 5, 2009 < Back Share to: A recent appellate ruling in New Jersey has once again highlighted the principle that an insurance carrier may be bound by the actions of a broker or agent with underwriting authority. In Scottsdale Ins. Co. v. Woolsulate Corp., (App.Div. 2008), a liability carrier gave its broker underwriting authority with clear underwriting requirements, including a refusal to deal with asbestos risks. Nevertheless, the broker issued a policy on behalf of the carrier despite knowing (according to the court’s findings of fact) that the insured had been subject to asbestos-related claims in the past. The New Jersey Appellate Division ruled that the carrier was required to provide coverage for asbestos-related claims made against its insured. http://lawlibrary.rutgers.edu/courts/appellate/a4815-06.opn.html Thanks to Mendel Simon for his contribution. Previous Next Contact

News Shock Induced Fall Shocking Result for Labor Law § 240(1) (NY) January 21, 2016 < Back Share to: The First Department has again held that plaintiffs who fall from a ladder after receiving an electric shock may be entitled to summary judgment on their Labor Law § 240(1) claims, even if no party disputes that the ladder functioned properly and was not defective. In Nazario v 222 Broadway, LLC , plaintiff was using an A-frame ladder to remove old light fixtures. The power was supposed to be cut off, and plaintiff’s testing device indicated that there was no power running to the fixture on which he was working. Unfortunately, there was still a live current running to the light, and plaintiff was shocked. He fell from the ladder, which then fell on top of him. The trial court dismissed plaintiff’s Labor Law § 240(1) claim on summary judgment after determining that plaintiff submitted no evidence concerning the worthiness of the ladder. The First Department reversed the trial court’s ruling and granted plaintiff’s motion for partial summary judgment on his Labor Law § 240(1) claim, holding that plaintiff had established a prima facie case that his ladder provided him with inadequate protection. The court concluded that because the ladder was not secured to the ground in such a way to prevent it from falling over after plaintiff was shocked, the unsecured ladder was a violation of the Labor Law and the proximate cause of plaintiff’s injuries. Justice Tom’s concurring opinion disagreed with the majority’s reasoning, while admitting that he was obligated by First Department precedent to concur with the overall ruling. Justice Tom expressed concern with developing First Department case law, which has held that plaintiffs who establish that a ladder was unable to keep them from falling after receiving an electric shock have also established that the ladder was a proximate cause of their injuries. Justice Tom believed that this line of cases has departed from the Court of Appeals’ ruling in Blake v. Neighborhood Hous. Servs. Of N.Y. City (a critical case for defending Labor Law § 240(1) claims), and created an unnecessary split with the remaining Departments, all of whom have held that falling from an A-frame ladder after receiving an electric shock, by itself, is insufficient to establish liability as a matter of law. Justice Tom counseled the need for additional evidence, such as whether the ladder was defective or whether additional safety devices were necessary, before granting summary judgment. Until there is further guidance on this matter from the Court of Appeals, it may now be necessary to provide those working with electrical systems with safety measures to prevent them or their ladders from falling in the event they receive an electric shock. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact