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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 Unleashing Liability: Understanding Landlord Responsibility for Tenant Dog-Related Injuries December 15, 2023 < Back Share to: Is a landlord liable for injuries caused by a tenant’s dog to another who is on the property of the landlord? Not always, says the Pennsylvania Superior Court. Here’s why. West Penn, a Pennsylvania non-profit corporation owns land used for trap and target shooting. Goodenow v. McMahan , 297 A.3d 731 (Pa. Super. Ct. 2023), (reargument denied (June 26, 2023)). Defendant Ronald McMahan (“McMahan”) is the president and groundskeeper for West Penn and would work at the trap range during trapshooting events. Id . McMahan “always had a dog living with him, and the West Penn board members have always known that McMahan kept dogs on the property, although there was never any discussion about how he should handle them when other groups were utilizing the West Penn site.” Id . McMahan lived on the West Penn property and had a fenced area where he would keep his dog secure. Id . McMahan was unaware of “any incidents or reports to West Penn” that his dog “ever exhibited aggressive tendencies.” Id . McMahan’s dog was known to “interact with other West Penn club members’ dogs, adults, and young children.” Id . The plaintiffs Teresa and Donald Goodenow (“Goodenows”) were attending a trapshooting event at West Penn. They decided to camp on the property and had brought their dog. The Goodenows claimed that McMahan’s dog had attempted to attack their own dog. Id . On July 11, 2015, after the trapshooting event was finished, the Goodenows were socializing outside of their camper with their dog and McMahan was also socializing in a group with his unleashed dog. Id . The Goodenows describe what happened thereafter as McMahan’s dog appearing suddenly at their campsite, grabbing their dog by the head. Id . As one man pulled McMahan’s dog by her collar, T. Goodenow “jumped from her own chair and grabbed [her dog], tripping and falling with the dog in her arms, allegedly resulting in injuries.” Id . Subsequently, D. Goodenow chased McMahan’s dog away. Id . The Goodenows, under the impression that the incident would be relayed to West Penn, did not fill out an accident report. Id . Thereafter, the Goodenows filed claims “asserting negligence for West Penn’s violation of its duty to provide a safe environment and failing to require McMahan to either remove his dog from the property or to keep his dog restrained, as well as a loss of consortium claim….” Id . After discovery, West Penn filed a motion for summary judgment “on the basis that it was an out-of-possession landlord” and that the Goodenows “failed to produce evidence that it had actual notice of [McMahan’s dog’s] alleged vicious propensities.” Id . (internal quotations omitted). In response, the Goodenows argued that because McMahan was the president of West Penn, the knowledge cold be imputed to West Penn and that West Penn had its own independent duties and that the Goodenows were not “merely propounding a vicarious liability/respondate [sic] superior theory against West Penn. Id . The trial court granted West Penn’s motion for summary judgment because the Goodenows had presented no evidence of a dangerous propensity for McMahan’s dog. The Goodenows appealed and argue that there was a genuine issue of material fact whether McMahan’s dog had exhibited dangerous propensities. Id . Ultimately, the Superior Court of Pennsylvania affirmed the trial court’s decision. In doing so, the Superior Court stated that “[g]enerally, in negligence actions arising from the conduct of animals, the animal’s owner is the person responsible for injuries to others caused by his or her pet. … In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant's4 dog, it must be proven that the landlord had “actual knowledge that his tenant harbors a dog with dangerous propensities.” Id (internal quotations and citation omitted). Likewise,the Superior Court relied upon the Supreme Court of Pennsylvania’s description of a dangerous or vicious propensity; “[a] dangerous propensity includes a propensity or tendency of an animal to do any act that might endanger the safety of the person and property of others in a given situation.” Id . (internal citation omitted). In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant’s dog, it must be proven that the landlord had actual knowledge that his tenant harbors a dog with dangerous propensities. Id . Internal quotations omitted). Simply stated, “prior to the ten to fifteen second July 8, 2015 interaction, there had never been any complaints to McMahan or West Penn about [McMahan’s dog’s] behavior, vicious or otherwise, and McMahan had not observed any violent behavior by [his dog] with any dog or person.” Id . What’s the takeaway from this? The lesson for landlords being sued for the acts of a tenant’s dog is that just because a landlord knows that a tenant has a dog does not mean that the landlord has actual knowledge of a dangerous propensity of that dog. Though the Goodenow Court’s decision is non-precedential, it is nonetheless an indicator of how any court might rule given a similar set of circumstances. Goodenow v. McMahan .pdf Download PDF • 179KB Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News WCM Successfully Opposes Defendant’s Motions to Dismiss and Remand (PA) September 25, 2020 < Back Share to: In Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, WCM Partners Robert Cosgrove and Colleen Hayes successfully defeated defendant Pediatric Assoc. of Westmoreland, Ltd.’s (“PAW”) Motion to Dismiss or, in the Alternative, Remand to State Court. By way of brief background, plaintiff Harleysville Worcester Ins. Co. filed a declaratory judgment action asserting it does not owe PAW defense or indemnity with respect to an underlying state court action as the pertinent policies do not provide coverage. In evaluating PAW’s Motion, the United States District Court for the Western District of Pennsylvania first considered whether the case should be dismissed as to PAW. In doing so, the Court determined Harleysville Worcester Ins. Co. (“Harleysville”) and PAW fundamentally disagree about Harleysville’s obligations under the relevant insurance policies. The Court held the parties’ fundamental disagreement constituted a controversy under the Declaratory Judgment Act, which warranted denial of PAW’s Motion to Dismiss. Next, the Court analyzed PAW’s Motion to Remand in accordance with the standards established by the Court of Appeals for the Third Circuit’s holding in Reifer v. Westport Ins. Corp., 751 F.3d 129 (3d Cir. 2014). As set forth in Reifer, the Court considered the following factors to assess its jurisdiction over the lawsuit: (1) the likelihood that a federal court declaration will resolve the uncertainty of obligation which gave rise to the controversy; (2) the convenience of the parties; (3) the public interest in settlement of the uncertainty of obligation; (4) the availability and relative convenience of other remedies; (5) a general policy of restraint when the same issues are pending in a state court; (6) avoidance of duplicative litigation; (7) prevention of the use of the declaratory action as a method of procedural fencing or as a means to provide another forum in a race for res judicata; and (8) (in the insurance context), an inherent conflict of interest between an insurer's duty to defend in a state court and its attempt to characterize that suit in federal court as falling within the scope of a policy exclusion. See Harleysville Worcester Ins. Co., 2020 WL at *2. Weighing the foregoing 8 factors – with the understanding that the Court may look to other case law or considerations – the Court concluded that judicial economy is best served by retaining jurisdiction over the action. In support of this conclusion, the Court reasoned, inter alia, no underlying state court action related to the heart of the lawsuit existed, a ruling on the action would resolve the issue of whether Harleysville is required to defend or indemnify PAW and the parties already appeared before the Court. In sum, this ruling serves as a reminder of the emphasis the District Courts in the Third Circuit place on the Reifer factors when determining whether to retain jurisdiction or remand to state court. Congratulations to Bob and Colleen on Harleysville Worcester Insurance Company v. Pediatric Associates of Westmoreland Ltd, No. CV 19-1251, 2020 WL 5544413, at *1 (W.D. Pa. Sept. 16, 2020), and thanks to Lauren J. Berenbaum for her contribution to this post. Please contact Vincent F. Terrasi with any questions. Previous Next Contact

News Vicarious Liability Raised in Hospital Fall (PA) December 7, 2017 < Back Share to: In Hodge v. Aramark, LLC, the plaintiff, an operating room nurse at Holy Redeemer Hospital, was working after hours on an on-call basis when she entered sub-sterile scrub room to retrieve supplies for the next surgery. As she walked into the room, the plaintiff’s feet went out from under her, sending her head backward into a tiled wall. Just as she started to slip, the plaintiff heard a voice yell, “watch, the floor is wet.” It turned out that the voice belonged to a custodian who had just mopped the floor. Due to the fall, the plaintiff suffered head and back injuries that rendered her unable to return to work. Plaintiff sued Aramark, alleging that it was contractually responsible to Holy Redeemer Hospital for housekeeping services, including the cleaning, mopping and maintenance of floor surfaces and the supervision of those activities. Aramark moved for summary judgment, arguing that plaintiff had failed to demonstrate that Aramark had breached its limited contractual consulting duty, that it had any actual or constructive notice of a dangerous condition that caused the accident, or that it was the proximate cause of damages to plaintiff. Aramark claimed that it did not contract to provide housekeeping services such as cleaning and mopping, which were duties and responsibilities performed by Holy Redeemer employees, and argued that it was the duty of the possessor of land, i.e. Holy Redeemer, to protect the plaintiff and others from dangerous conditions on the property. In opposition to the motion for summary judgment, plaintiff argued that the it was the fault of the custodian, who worked for Aramark, for failing to place warning signs near the wet floor. Plaintiff further contended that Aramark had supervisory control over the custodian, determined what equipment and procedures he was to use, implemented safety procedures and reviewed his performance. The trial court granted summary judgment in favor of Aramark, finding that the custodian was not a "borrowed servant" of Aramark, and that plaintiff failed to proffer evidence that Aramark was negligent in its training of custodial employees regarding wet floor safety. On appeal, the Superior Court reversed the trial court’s granting of summary judgment and remanded the case. The Court found that Holy Redeemer entered into a contract with Aramark that included regular maintenance of the floors in the area where the plaintiff slipped and fell. Aramark trained and managed the employees that Aramark deemed reasonably necessary to provide efficient management services. Although these employees were employees of Holy Redeemer, the right to control the manner of mopping the floors rested with the custodian’s supervisor, who was an Aramark employee. The Court, viewing the evidence in the light most favorable to the plaintiff, found that a reasonable juror could conclude that Aramark controlled the daily performance of the custodians’ duties. Thus, summary judgment was reversed, and the case was remanded back to the trial court for further proceedings. Thanks to Alexandra Perry for her contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

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

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

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

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

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

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

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

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