News "To My Knowledge" Deemed Superfluous By The Second Circuit March 18, 2009 < Back Share to: Often during depositions, the attorney defending the deposition will interrupt an answer with the phrase “if you know,” meaning that the witness should only answer the question if the witness has personal knowledge. An answer to a deposition question, or a statement in an affidavit, stating “to my knowledge” has the same meaning, according to a recent decision by the U.S. Court of Appeals for the Second Circuit. In SCR Joint Venture, LP v. Warshawsky, the question was whether certain debts had been paid in full. The statement “to my knowledge” the creditor had not been paid in full was the same as “I know that” the creditor was not paid. The “to my knowledge” language was redundant. http://www.ca2.uscourts.gov/decisions Previous Next Contact

News NY Court Holds Barricade Outside Normal Risk Of Skating August 4, 2009 < Back Share to: In Levin v. United Skates of America, Justice Kramer of Supreme Court, Kings County denied summary judgment to the owner of a skating rink in a suit brought by the parents of a child who was injured when he attempted to skate under a barricade that partially blocked an entrance to the rink. Defendants argued that the child’s injuries were the result of a risk the child assumed by skating at the rink. The court rejected this argument and held that the placement of the barricade was not a normal risk associated with skating. Indeed the court ruled that the barricade presented a “near irresistible challange” to youngsters who wanted to show off their skating prowess. The court held that questions of fact existed as to whether the child, eight years old at the time of the injury, appreciated the risk such that it could be determined that he assumed the risk of possible injury. Previous Next Contact

News Tenant's Tying Up a Vicious Dog Could Place Liability on Landlord November 12, 2010 < Back Share to: In Jones v Pennsylvania Meat Mkt, the plaintiff was bitten on the leg by a pit bull dog near the rear entrance of a grocery store. At the time of the incident, the dog was tied to a store's dumpster. The store was located in a strip mall and the landlord retained security guards to patrol the property. The plaintiff testified he frequently saw the dog, which allegedly was owned by a store employee, tied to the dumpster. He also testified that the dog had a tendency to bark, growl, and strain against its leash to lunge at people who were passing by. In denying the landlord's motion for summary judgment, the court stated the the evidence raised triable issues of fact as to whether the landlord was aware that the dog was being harbored on its premises, whether the dog had vicious propensities, whether the landlord controlled the area where the incident occurred. http://www.nycourts.gov/reporter/3dseries/2010/2010_07897.htm Previous Next Contact

News Policy Declaring Itself Excess is Ruled to be Excess May 14, 2009 < Back Share to: Petzl America, Inc. manufactured a harness for use by people climbing wall-climbing systems. They sold such a harness to Sport Rock International, Inc., which incorporated it into a wall climbing system that they manufactured. The system was then installed in a gym. Joseph Anaya fell while climbing the wall because an employee at the gym had attached the safety line to the wrong place on the harness. Anaya filed suit. American Casualty covered Petzl. The American Casualty policy named Sport Rock as an additional insured and contained an "other insurance" clause that said that the coverage was primary and that if there were other coverage, "we will share with all that other insurance by..." equal shares or in proportion to policy limits depending on what the other policy permits. Evanston Insurance Company covered Sport Rock. The Evanston policy said that "When you are added to a manufacturer's or distributor's policy as an additional insured....the coverage afforded under this Coverage Part will be excess ...." American Casualty disputed its obligation to bear the entire defense, pointing out that some of the claims against Sport Rock arose from its own alleged negligence, separate and apart from the product defect allegations surrounding the manufacture of the harness. Thus, reasoned, American Casualty, Evanston should bear part of the cost of defense. The court ruled that the clause in the Evanston policy declaring itself excess to the American Casualty policy was to be respected. The court held that the Evanston policy "is rendered excess by reason of the competing "other insurance" clauses" and "will not become obligated to defend the insured until the other carrier's coverage has been exhausted." http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03794.htm Previous Next Contact

Vanancia C. Hyppolite Associate Florida vhyppolite@wcmlaw.com 561 231 2744 Professional Experience Vanancia joined WCM’s Florida office after gaining experience in both the public and private sector, including serving as a prosecutor in Broward County and subsequently practicing insurance defense litigation. Her litigation experience includes first-party property defense, trial preparation, risk analysis, negotiating criminal plea agreements, drafting pleadings and motions, appearing at hearings, and oral advocacy. While in law school, Vanancia focused on public service, serving as a Steven Chaykin Fellow at the University of Miami School of Law’s Center for Ethics and Public Service. In this role, she conducted research and participated in community outreach relating to housing stability and economic development in underserved communities in Miami. She also served as a University of Miami School of Law Public Interest Fellow with the Florida Department of Children and Families, where she assisted with dependency and adoption matters. Outside of her legal practice, Vanancia enjoys spending time with family and friends, volunteering at her church, reading, and exploring restaurants. Professional Activities Florida Bar Association, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Miami School of Law B.A. in Political Science, Minor in International Relations, Florida International University Certificate in Pre-Law Skills & Professional Values, Florida International University Bar Admissions Florida

Brian T. Noel Partner Pennsylvania bnoel@wcmlaw.com +1 267 331 3891 Professional Experience Brian Noel is a trial attorney whose practice spans a broad range of civil litigation, representing clients in complex matters involving products liability, construction defects, construction accidents, premises liability, trucking and automobile claims, and disputes arising from catastrophic injuries and significant property losses. His work includes defending high exposure cases and navigating the technical, regulatory, and industry-specific issues that often accompany them. In addition to his litigation practice, Brian investigates and litigates insurance coverage disputes and advises insurers on fraud-based coverage issues. His work includes policy language analysis, evaluation of coverage positions, and guiding clients through first-party and third-party coverage challenges. Known for his thorough case preparation and practical, results-oriented approach, Brian works closely with clients to assess risk, develop strategy, and resolve matters efficiently — whether through negotiation or trial. Prior to joining WCM, Brian served as a judicial law clerk to the Hon. John M. Gallagher of the United States District Court for the Eastern District of Pennsylvania. Brian also served as an Assistant District Attorney in the New York County District Attorney’s Office, where he was assigned to the Office of the Special Narcotics Prosecutor for the City of New York. In that role, he tried a number of jury trials to verdict and handled long-term complex investigations with local and federal law enforcement authorities. Brian was also an adjunct professor at New York Law School. Brian also serves on the Board of Directors for the Noel Soccer Foundation and is the chairman of its Scholarship Committee. In his free time, Brian enjoys spending time with his wife and three children in the Philadelphia area. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education New York Law School, J.D. Temple University, B.A. Bar Admissions New York Pennsylvania New Jersey Court Admissions Eastern District of PA Southern District of NY Eastern District of NY New Jersey District Court

News Property Damage Claim Goes Up In Smoke (NY) June 6, 2017 < Back Share to: The question of whether the contents of a disclaimer letter could limit an insurer in a later denial of a property damage claim was addressed recently by the Second Department in Swanson v. Allstate. Therein, the court determined that an insurer does not waive its right to rely on an exclusion in the policy if that exclusion was not cited in the initial disclaimer letter. Swanson owned commercial property that was vacant for six months before a fire damaged the building. Swanson made a claim for loss with its carrier, Allstate. Allstate’s initial disclaimer letter failed cite to the policy’s “vandalism” exclusion that excluded fire damages if caused by vandalism in a building left vacate for more than 90 consecutive days. Based upon the town fire investigator's report, the fire was intentionally set, and the owner had admitted to the vacancy in excess of 90 days. A lower court denied Allstate’s summary judgment motion finding that the exclusion was waived under Insurance Law 3420(d) because it was not mentioned in the disclaimer letter. However, the Second Department reversed finding that Section 3420(d) only applied to claims involving death and bodily injury, and hence, not applicable to a pure property damage claim. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Plaintiff’s Case Slips Away on Unsuccessful “Mode-of-operation” Theory (NJ) November 10, 2016 < Back Share to: The defense bar scored another small victory in the ever-evolving “mode-of-operation” argument which focuses on the manner in which a commercial establishment conducts its business. If argued successfully, a plaintiff may be relieved of the typical burden to prove notice if they can instead prove that the commercial defendant should have been aware of the reasonable possibility that a hazardous condition could be created solely based upon the defendant’s business practice. The plaintiff in Anderson v. Stop and Shop Supermarket Company, L.L.C. claimed to have slipped and fallen on a "semi-solid substance" on the grocery store aisle while shopping in the frozen food section. She could not identify the substance, where it came from, or how long it had been there. After the fall, the store manager was quickly notified. He found the floor to be dry and semi-solid substance free. He also testified that maintenance porters routinely walk the store monitoring for hazardous conditions. The defendant successfully moved for summary judgment arguing that the plaintiff could not prove that the store had actual or constructive notice of the presence of the substance which she claims caused her accident. On appeal, the plaintiff argued that the self-service nature of the store’s business practice warranted a finding of constructive notice. But the Appellate Division was not convinced. Prior decisions in this long line of cases have held a food store liable when a customer sustains injury due to a hazardous condition inside the store, such as a grape on the floor in the checkout area. However, the Court highlighted the plaintiff’s failure to demonstrate the necessary nexus between the hazardous condition and the defendant’s business operation. A grape, for example could reasonably be expected to fall onto the floor due to careless handling in the checkout area. On the other hand, the Anderson Court found it unreasonable to impute constructive notice for an unknown substance in an aisle containing packaged and sealed containers. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Janitor Keeps Logs, Building Prevails (NY) September 12, 2019 < Back Share to: In Thomas v. Sere Hous Dev Fund Corp.,the Appellate Division, First Department addressed the duty of care owed by a building to a plaintiff who gets injured on their property. The accident involved an individual who alleged injuries when he slipped and fell on a wet substance on the interior stairs of the defendant’s building. The defendant testified as to its janitorial schedule during a customary day. The Supreme Court, Bronx County denied the defendant’s motion for summary judgment, which was unanimously reversed by the Appellate Division. The Appellate Court stated that the defendant was able to establish a reasonable cleaning routine, which precluded liability. As such, the Court held that since the plaintiff failed to raise a factual issue that such routine was manifestly unreasonable, that summary judgment should have been granted in favor of the defendant. This case is a great example of the importance for building owners to implement a reasonable and regular cleaning routine as it can preclude them from liability. As exhibited in this matter, a reasonable cleaning routine can allow a case to be dismissed, without having to go through a strenuous and costly trial. Thank you to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Three Families Can Count as Two for Labor Law’s Homeowner Exemption (NY) June 3, 2016 < Back Share to: Under New York Labor Law §§2401(1) and 241(6), a homeowner can be held vicariously liable for the torts of their contractors. However, the statute provides an exemption for the owners of one or two family homes who do not direct or control the work. But what counts as a family? The First Department recently shed some light that on issue in Diaz v Bocheciamp. In Diaz, the plaintiff’s decedent died after falling to the ground while working on the roof of the defendant’s house. The estate sued under New York Labor Law §§2401(1) and 241(6). At the time of the accident, the defendant homeowner shared the house with an adult child, two grandchildren, and a family friend who lived in the basement. The trial court had entered judgment against the homeowner, who appealed to the First Department. The First Department reversed, and held that the homeowner exemption applied. According to the court, the applicability of the exemption hinges on a “site and purpose” test, which is based on the homeowner’s intentions at the time of the injury. Because this defendant lived with relatives and collected no rent, the court held as a matter of law that this home was “at most, a two-family dwelling” even though it housed “three families, two of which are related.” Diaz is welcome news to homeowners who do not oversee their contractors’ work, but also to their insurers as well. Thanks to Michael Gauvin for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News Famous Restaurant Sues over Coronavirus Shutdown Losses March 25, 2020 < Back Share to: The Covid-19 pandemic has swept the nation and the world and in its wake is coming a huge wave of insurance related litigation. In perhaps the first lawsuit Oceana Petition of what will most likely be a major trend of filings, Cajun Conti, the parent company for the New Orleans restaurant, Oceana Grill, has sued its insurer Underwriters at Lloyds London, for insurance coverage over coronavirus related business interruption, including in “the event of the businesses closure by order of Civil Authority.” The lawsuit was filed in Louisiana state court and specifically alleges that the Lloyds “all risk” policy restaurant losses due to the state mandated shutdown of the 500 person restaurant. The lawsuit references an order by Louisiana Governor, John Edwards, in response to the Coronavirus outbreak, banning gatherings of 250 or more people. In addition, the lawsuit references a restriction by New Orleans Mayor, LaToya Cantrell, ordering all restaurants to reduce their capacity by 50%. Since the filing of the lawsuit, restrictions have become even more strict, with the Governor issuing a statewide "stay at home" order until April 12. While some insurers have taken steps to limit the scope of coverage in these sort of situations after similar outbreaks such as SARS in 2003 and ebola in 2014 through various exclusions, the complaint alleges that here, there are no such relevant exclusions. This case represents merely the first drop in what could very be a torrential downpour of similar coronavirus related insurance coverage litigation. Thanks to Andrew Debter on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NY Court Holds Indemnification Provision Not Transferable June 10, 2010 < Back Share to: In Tavella v. Skanska USA, Inc, the plaintiff, employed by third-party defendant Koehler Masonry, was injured during the course of his work on a construction project. Third-party plaintiffs Hazen and Sawyer brought a third-party complaint against Koehler, a subcontractor on the project, based on contractual indemnification. Koehler moved to dismiss the third-party complaint because the indemnification provision cited by Hazen and Sawyer specifically stated that it applied only to the City of New York and Pegno/Tully, the prime contractor that hired Koehler to work on the project. Hazen and Sawyer argued that they were entitled to indemnification from Koehler because Koehler assumed Pegno/Tully's obligations under the contract, including Pegno/Tully's obligations to indemnify Hazen and Sawyer. The Supreme Court, Kings County granted Koehler's motion based on the fact that Koehler agreed to only indemnify Pegno/Tully and the City of New York. Moreover, the court held that the language in the subcontract which required Koehler to assume the duties that Pegno/Tully assumed was a general provision related to detail of the work. The indemnification provision was specific and it applied to only those contractors and entities named in the subcontract. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20206.htm Previous Next Contact