Wade Clark Mulcahy LLP

News Oppose Everything -- or Face the Consequences (PA) October 18, 2019 < Back Share to: On October 11, 2019, the Superior Court of Pennsylvania affirmed an order denying John Mastrian’s Motion to Amend Caption and Correct Middle Initial and granted Marc A. Peoples’ Motion for Judgment on the Pleadings. On January 4, 2018, Mastrian filed a complaint against Marc A. Peoples by filing a praecipe for writ of summons and served Peoples’ wife, Susanna Peoples on January 5th, 2018. In March 2018, Mastrian filed a complaint and alleged that “Marc A. Peoples” was the owner and operator of a 2004 F150 Pickup Truck. Marc A. Peoples filed an Answer and New Matter, which contained a Notice to Plead. Peoples admitted to owning the vehicle but denied operating the vehicle at the time of the accident. The Answer stated the driver of the vehicle was “Marc W. Peoples”. Mastrian never filed a reply to the Answer and New Matter. In June 2018, Peoples filed a Motion for Judgment on the Pleadings, asserting that, because Mastrian failed to respond to the Answer and New Matter, he admitted the allegations contained therein. Peoples argued he was entitled to judgment on the pleadings because Mastrian admitted Peoples was not operating the vehicle at the time of the accident. Mastrian never filed a response to the Motion for Judgment on the Pleadings. In September 2018, Mastrian filed a Motion to Amend the Caption and Correct Middle Initial of Defendant. The trial court denied Mastrian’s Motion to Amend the Caption and granted People’s Motion for Judgment on the Pleadings. It concluded that by failing to file a response to Peoples’ Answer and New Matter, Mastrian admitted the factual averments contained in the Answer, including that Peoples was not operating the vehicle at the time of the accident. The Court also found that Mastrian was attempting to amend his caption to “add or substitute a distinct party,” which he could not do as the statute of limitations had expired. On appeal, the PA Superior Court agreed with the lower court ruling. The Court stated that Mastrian was in fact attempting to bring a new party into the lawsuit and that given the evidence available to him he should have been able to locate the correct Marc Peoples. Thus, the Court agreed that Mastrian’s Motion to Amend the Caption and Correct Middle Initial of Defendant should fail. Additionally, the Court agreed that, because Mastrian failed to reply to the Answer and New Matter, Mastrian admitted the factual averments in those pleadings. Therefore, Mastrian admitted that Peoples was not operating the vehicle at the time of the accident. Because of this fact, Mastrian could not state a negligence cause of action. Therefore, the Court affirmed the lower court’s granting of Peoples’ Motion for Judgment on the Pleadings. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News No NJ Tort Claim Liability for Roadway Depression February 8, 2012 < Back Share to: In a time when demands on public entity coffers seem to be expanding in the face of dwindling resources, the New Jersey Supreme Court ruled in a case that could have greatly expanded the demands on government maintenance budgets. In Polzo v. County of Essex, the Appellate Division found a County may have created a dangerous condition on a public roadway simply by failing to have a routine inspection program to detect roadway conditions. The Supreme Court disagreed. The case at the center of a ten year litigation odyssey that included two summary judgments, two Appellate Division and two Supreme Court decisions, involved the wrongful death claim of an experienced bicyclist who died after encountering a 2’ wide by 1 ½” deep depression on a roadway shoulder. The plaintiff’s expert opined that the depression was caused by erosion of the subsurface. A county road crew had repaired potholes on that 2.6 mile roadway just five weeks prior to the accident. However, despite an inspection of the roadway’s entire length, the crew failed to detect this depression, i.e. a dip in the roadway that did not break the roadway surface. Thus, the issue framed for the Supreme Court was whether the failure of the road crew to identify a dip in the roadway as a dangerous condition that might cause death was a cause of that condition. The creative argument advanced by the plaintiff sought to circumvent the New Jersey Tort Claims Act. While conferring immunity to public entities, the Act carves out specific exceptions to liability, one of which is when a dangerous condition of public property causes injury. However, a public entity will only be liable when the condition created a reasonably foreseeable risk of the type of injury that occurred when the property was used with due care. Additionally, the plaintiff must prove that the condition was created by an act or omission of a public employee or that the public entity had actual or constructive notice of the condition with sufficient time to correct it. Finally, liability will not be imposed even if these elements are proven if the entity did not act palpably unreasonably. All courts agreed that the plaintiff could not prove actual or constructive notice – despite the road crew repairs and inspection. However, the Supreme Court disagreed with the Appellate Division’s more expansive view that the failure to have a routine inspection program may have “created” the condition. Rather the Court applied a more literal interpretation finding that underground erosion created the depression. This decision upholds the Legislative intent of the Act that recognizes that while public entities have seemingly limitless demands to act for the public good, they have limited means to do so. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Not All Cleaning is Protected by the New York Labor Law February 22, 2012 < Back Share to: One of the most feared statutes to New York Contractors and their insurers is New York Labor Law §240 (1) (the “Scaffold law”). Under Section 240, an owner and general contractor faces strict liability when an employee falls from a height while involved “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Though the Labor Law was initially enacted to protect construction workers, throughout the years, courts have extended the protection to non-construction workers. Specifically, in interpreting the term "cleaning," the Court of Appeals has held that it is not limited to cleaning that was "part of a construction, demolition, or repair project." Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 680 (2007). However, in Dahar v. Holland Ladder & Manufacturing Company, No. 23, NYLJ 1202543033849, at *1 (February 21, 2012), the plaintiff asked the Court of Appeals to extend the statute to protect a factory employee engaged in cleaning a manufactured product. In Dahar, the plaintiff was standing on a ladder in a factory cleaning a seven foot high “wall module” that was to be attached to a building wall, where it would provide support for pipes. The ladder broke and plaintiff fell to the ground. Plaintiff argued that he was “cleaning” and that the wall module was a "structure" under the broad definition by the Court of Appeals, as "any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Id. at *4 (internal citations omitted). The Court, however, rejected plaintiff’s argument finding that in all but one case involving “cleaning,” the “cleaning” involved cleaning of building windows (the other case involved cleaning a railroad car). The Court rejected the statute’s application for an injury suffered while cleaning a product in the course of a manufacturing process. The Court further stated that if it extended the statute to plaintiff’s activity, the statute would encompass virtually every "cleaning" of any "structure" in the broadest sense of that term. “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture — these and many others would become potential Labor Law §240 (1) plaintiffs.” Thankfully, even NY's Court of Appeals recognizes there must be limits to its labor law generosity. For any questions about this post, please contact Cheryl Fuchs at cfuchs@wcmlaw.com . Previous Next Contact

News GC's Right of Supervision Over Subcontractor Work is Key to Determination (PA) July 27, 2017 < Back Share to: On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against Fairman’s Roof & Trusses, Inc. (“Fairman’s”). Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor. These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn. The collapse left Brian Baird trapped beneath four trusses and seriously injured him. Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses. Fairman’s also filed a complaint to join Fisher as an additional defendant. In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium. Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties. The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s. In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit. The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41. Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants. The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit. Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense. In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do. The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work. Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him. Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work. Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher. As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News It’s Electric: Broad Construction Exclusion Bars Coverage for Sprinkler Shock (NY) January 30, 2020 < Back Share to: In the recent decision Castlepoint Ins. Co. v Southside Manhattan View LLC, the First Department addressed the applicability of a broadly worded construction exclusion. That exclusion expressly provides that it applies to any work performed as part of or in connection with the enumerated construction operations. The underlying litigation concerned a personal injury that occurred at a construction site. The plaintiff alleged that while working on sprinklers at the site of a renovation project, he fell off a ladder after touching live, uninsulated electrical wires. The insurer for the building disclaimed coverage, citing the construction exclusion in the policy. The plaintiff argued that the work he was doing at the time of the injury, working on sprinklers, was not a part of any of the specific construction operations enumerated in the exclusion, and accordingly should not apply. But the court was not convinced. The First Department held that because the exclusion language applied not only to work that was part of but also “in connection to” the enumerated operations, it unambiguously applied to the sprinkler operations at issue. This decision is a reminder to insurers and insureds of the importance of precise drafting in insurance contracts, particularly with respect to exclusions. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. 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 Governmental Standards Not Necessarily A Safe Haven For Products Liability Claim (PA) July 8, 2016 < Back Share to: Is evidence of a product’s adherence to governmental standards admissible in strict liability cases in Pennsylvania? Short answer, maybe. The Pennsylvania Superior Court was faced with this issue in Webb v. Volvo Cars of North America. In Webb, a tangled logic examined whether such evidence, which might be admissible with respect to a negligence claim, should be permitted in an action based in solely in strict liability. Seemingly at odds were the Supreme Court decision of Tichner v. Omega Flex, Inc. that Volvo argued would permit such evidence and plaintiff's reliance upon Lewis v. Coffing Heist Division and Gaudio v. Ford Motor Co. that would prohibit it. In Webb, the trial court allowed evidence that the defendant’s product design adhered to governmental standards. The jury returned a defense verdict, and the plaintiff appealed. The Pennsylvania Superior Court concluded that the trial court erred by not instructing the jury to disregard the governmental standards evidence and granted the plaintiff a new trial. So does this ruling mean that the introduction of the evidence was improper? It would seem that the Court addressed that issue, right? Well not exactly. The issue was whether or not the Pennsylvania Supreme Court overruled Lewis and Gaudio, the cases that prohibited the admission of governmental standards evidence, with its decision in Tincher v. Omega Flex. The Webb Court left the “admission” question on the table. That said, until the issue reaches the Pennsylvania Supreme Court it seems that defendants should continue to inform juries of how their products were produced in accord with those standards created by the state and federal government. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Employee Exclusion Ambiguous? Sometimes. (NY) February 21, 2013 < Back Share to: In Essex Ins. Co. v. George E. Vickers, Jr. Enterprises Inc., the insurer sought a declaration that it was not obligated to defend or indemnify its insured or the owner of a construction project for an incident involving one of a subcontractor's employees. The incident involved Miguel Pinon, an employee of Paul Michael Contracting, which was hired by George Vickers, the insured general contractor. On June 25, 2005, Pinon, while on his lunch break at a beach not far from the construction site, dove into the water and broke his neck. The Workers' Compensation Board denied Pinon benefits on the basis that the accident did not occur in the course of his employment. After Pinon sued, Vickers and Lynn sought indemnification and defense from Essex, who disclaimed on the basis that even though Pinon was not injured during the course of his employment, the employee exclusion still barred coverage. In opposition to plaintiff's motion for summary judgment, Vickers and Lynn argued that the word "employee" in this context was ambiguous because the policy did not define "employee" and that it was open to interpretation as to whether the parties intended for a worker acting outside the scope of his employment to be considered an "employee" within the meaning of the employee exclusion. The Supreme Court agreed with the insured and proerty owner and denied the insurer's motion. The Second Department affirmed. Another issue that arose during the case was whether the property owner had been named an additional insured on Vickers' policy. Vickers purchased a commercial liability policy from plaintiff ending March 25, 2004. Lynn was named as an additional insured on that policy. However, the renewal quotation for the policy beginning on March 26, 2004, stated "no additional insureds." In the insurance application to renew the policy for 2005 to 2006, Vickers listed Lynn as an additional insured. However, the renewal quotation for that coverage period stated that the quote included "NO AI's." The property owner moved for reform of the policy to add them as additional insureds based on mutual mistake. They argued that Vickers included them as additional insureds on the application for 2005-2006, that plaintiff did not refuse the request, and that plaintiff had previously granted Vickers' request to add Lynn as additional insureds on the 2003-2004 policy. Once again, the Supreme Court and Second Department agreed with Lynn, the property owner, and granted their request for reformation. Special thanks to Gabriel E. Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Wade Clark Mulcahy Opens Office on Long Island March 14, 2019 < Back Share to: Wade Clark Mulcahy LLP is pleased to announce that we have opened an office on Long Island. WCM first opened its doors in 1994 in New York. Since that time, WCM has become a regional firm, with offices in New York, New Jersey and Pennsylvania. With our Long Island office, our capability to better serve our clients and their insureds in Nassau and Suffolk Counties is greatly enhanced. The new office is centrally located at RXR Plaza in Uniondale, adjacent to Nassau Coliseum, providing a convenient practice location. Brian Gibbons, who has been with WCM since 2009 and lives in Port Washington, will be WCM’s resident partner at that office. WCM celebrates its 25th anniversary in 2019. The firm has grown consistently since its founding, and our Long Island office will serve to continue that growth as we begin our next 25 years of service to our clients. For more information about Wade Clark Mulcahy and our Long Island location, please contact Brian Gibbons at 212-267-1900/516-373-2620 or via email. In addition, feel free to visit our updated website, which highlights our firm's mission, areas of practice, four office location, individual attorney information and Of Interest archives. Previous Next Contact

News ‘Non Conveniens’ Doesn’t Just Mean Inconvenient (PA) July 3, 2019 < Back Share to: Oftentimes in litigation, the location of where the matter is litigated can be almost as important as the subject matter over which the litigation arises. In Robbins v. Conrail,No. 1055 EDA 2018 (2019 PA Super 172), Consolidated Rail’s attempt to dismiss an action brought in Philadelphia on the grounds of forum non conveniens was denied by the trial court and then again on appeal. The underlying case was brought by Howard Robbins (a resident of Indiana) on behalf of David Robbins, who worked as a trackman and machine operator for Consolidated Rail in Indianapolis, Indiana for over thirty-five years. Robbins claimed that decedent was exposed to chemicals at the rail yard that caused him to die from lung and liver cancer in March 2014. Robbins brought the lawsuit in Philadelphia (a historically plaintiff-friendly venue) against Consolidated Rail which has a principal place of business in Philadelphia, PA and Penn Central (which became a property of Consolidated Rail as part of a bankruptcy action in the 1970s) which has a principal place of business in Harrisburg, PA. Consolidated Rail filed a motion to dismiss Robbins’ complaint under the doctrine of forum non conviens. In its decision, the Superior Court articulated the standard for forum non conviens, as established under Pennsylvania Law, explaining the that the two most important factors when considering if dismissal is warranted is (1) the plaintiff’s choice of forum should not be disturbed except for ‘weighty reasons’ and (2) there must be an alternate forum available or the action may not be dismissed. In support of its motion to dismiss, Consolidated Rail argued that the action had no bona fide connection to Pennsylvania because: Robbins never worked for Consolidated Rail in Pennsylvania, Consolidated Rail did not store any employment records for decedent in Pennsylvania, and two fact witnesses identified by Consolidated Rail lived in Illinois; and Consolidated Rail would therefore suffer greater costs, inconvenience, and business disruption if the case was venued in Pennsylvania. Robbins countered that, in addition to being a registered corporation in Pennsylvania, Consolidated Rail conducted substantial business throughout Pennsylvania including Philadelphia County, four of Robbins’ identified witness were former employees of Consolidated Rail in Philadelphia, and the policies and procedures related to Robbins’ exposure to chemicals and cancer-causing substances were determined at Consolidated Rail’s headquarters in Philadelphia. Following a hearing in December 2017, the trial court denied Consolidated Rail’s motion to dismiss. On appeal, the Superior Court noted that Robbins essentially had a choice of bringing the lawsuit in one of two jurisdictions: (1) Philadelphia, which has general jurisdiction over Consolidated Rail; and (2) Indianapolis, which has specific jurisdiction because that is where the cause of action arose. By filing the motion to dismiss, Consolidated Rail was effectively limiting Robbins to only Indianapolis. The Superior Court also emphasized that there was no evidence that Indiana would provide easier access to the decedent’s employment records, nor would Indiana limit the cost of obtaining witness attendance as Consolidated Rail identified two witnesses in Illinois and Robbins identified four witnesses who worked for Consolidated Rail in Philadelphia. Furthermore, the Court noted that Pennsylvania citizens have a relation to the litigation because the policies and procedures related to Robbins’ exposure chemicals were determined in Philadelphia. Thus, the Superior Court affirmed the trial court’s denial of Consolidated Rail’s motion to dismiss. This case highlights the attention that should be paid to the early stages of litigation as efforts to steer a case to either a more desirable venue or away from a less desirable venue often involve extensive motion practice even before completion of the pleadings stage. Thanks to Greg Herrold for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Supplemental Bill of Particulars Not an Unusual or Unanticipated Circumstance (NY) October 5, 2018 < Back Share to: In Drapper v Horan, 2018 WL 4623041, 2016 N.Y. Slip Op. 06330 (1st Dep’t September 27, 2018), the First Department affirmed a lower Court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff despite the service of a supplemental bill of particulars for new treatment relative to a traumatic brain injury. Plaintiff in this matter stated that he suffered injuries, including a traumatic brain injury, when the car he was driving was rear-ended by the defendants. Following plaintiff’s disclosures that he was suffering headaches and that an MRI of his head revealed traumatic injury, plaintiff filed a note of issue. Defendants, thereafter failed to notice a physical examination, and then filed an untimely motion to vacate, which was denied. Prior to trial, plaintiff filed a supplemental bill of particular that stated plaintiff received additional medical treatment for his traumatic brain injury. Thereafter, defendants renewed their motion to vacate and compel plaintiff to appear for a medical examination. The defendants failed to offer an excuse why they originally failed to notice a medical examination before the note of issue was filed, and also failed to demonstrate how the additional treatment was an “unusual or unanticipated circumstance” to warrant vacatur and a medical examination. As such, the 1st Department affirmed the lower court’s denial of a motion to vacate a note of issue and compel a medical examination of an injured plaintiff. Although this case leaves open the possibility of further discovery after a supplemental bill of particulars is made prior to trial, this case is also an example of why experienced defense counsel do not rely on curing their missed deadlines based on later filings, but make sure to adhere to discovery and motion deadlines. Both, failing to timely notice a medical examination and timely file a motion to vacate a note of issue can be detrimental to defending the case and difficult, if not impossible, to cure prior to trial. Thanks to Jonathan J. Pincus for his contribution to this post. Previous Next Contact

News Mike Bono to Present at IFASIC Conference in Budapest October 10, 2024 < Back Share to: Every year, IFASIC (the International Fine Art and Specie Conference) is attended by insurers, risk managers, attorneys and other professionals in the fine art and specie insurance industry, to discuss various issues relating to those markets. This year's conference takes place October 16-18, in Budapest, Hungary, and our own Mike Bono will be one of the panel speakers. https://ifasic.com/conference/ifasic-budapest-2024/#Mike-Bono Mike's presentation is entitled: Jewelers' Block Claims: Old Losses and New Tricks , and will incorporate Mike's ample experience handling jewelers' block and fine art and specie claims, both in New York and through the United States. For more information on our JB and Fine Art and Specie practices, please email Mike at mbono@wcmlaw.com Previous Next Michael A. Bono Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Contact