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News High School Students Want More Supervision? (NY) August 15, 2019 < Back Share to: In R L v New York City Dept of Education , the 14-year-old plaintiff was a member of a student dance group that was practicing to perform at an upcoming high school festival. The school provided times for the group to practice after class, in the school building, and with staff supervision. On the day of the accident, the school was closed for a public holiday and the plaintiff and the other students in her dance group met to practice off school grounds, without school staff supervision. During this practice session, the plaintiff was injured. The plaintiff sued the New York City Department of Education and the City of New York, alleging negligent supervision. The defendants moved moved for summary judgment, arguing that there was no duty to supervise the plaintiff outside of the school premises and on a public holiday. The lower court granted the school’s motion finding the school did not owe a duty to the student. The plaintiff appealed. The Appellate Division Second Department issued a decision affirming the summary judgment award in favor of the school. The Appellate Division reiterated that schools have a duty to adequately supervise students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. However, the court noted that the “duty arises from the school's physical custody over the students.” Specifically, the Court noted that the rationale underlying this duty is that in having custody of a child, the school deprives the child of the protection of his or her parents or guardian, and thus must give the child the protection of which the child has been deprived. Applying these principles to this case, the Court found that the school submitted evidence sufficient to establish, prima facie, that the Department of Education did not owe the student plaintiff a duty of care at the time that she was injured because the injury-producing incident occurred during a dance practice off school premises, on a public holiday, without the school's knowledge or consent. Thanks to George Parpas for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Follow Form Excess Policy Does Not “Drop Down” Following Rescission of Primary Policy (NY) December 4, 2020 < Back Share to: In a split-decision, the New York Court of Appeals recently ruled in favor of excess insurer Insurance Company of the State of Pennsylvania (ICSOP), finding that the policy follow-form provision did not override the policy’s defined limits of coverage. The coverage dispute involved the insurance contracts covering general contractor Kam Cheung Construction for a personal injury suit brought by Plaintiff Jin Ming Chen. Kam Cheung had a procured primary general liability coverage from Arch, and excess follow form coverage from ICSOP. The Arch policy provided $1 million in coverage per occurrence, and covered certain accrued interest under a supplementary payments provision. During the course of the underlying personal injury action, Arch initiated and prevailed on a declaratory judgment action voiding its policy due to material misrepresentations made by the insured in the insurance application. Following rescission of the Arch policy, Kam Cheung sought coverage under ICSOP’s follow form policy, arguing that the excess insurer must “drop down” to cover interest payments that Arch would have covered pursuant to that policy’s supplementary payments term. The Court disagreed, finding the ICSOP policy terms clear in defining the scope of the excess coverage as losses in excess of that covered by the controlling underlying insurance, regardless of the bankruptcy, insolvency or “inability to pay” of that underlying insurance. Here, the rescission of the Arch policy equated to an “inability to pay.” ICSOP, by its terms, covered only losses in excess of those covered by Arch, both the $1 million limits and the supplementary payments amounts. “Follow form” does not mean the excess policy “drops down” in the event that the primary policy is voided. The Court held that the coverage gap was unavoidable, and a direct result of the insureds actions in making material misrepresentations. Thanks to Vivian Turetsky for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Insurance Adjuster's Estimate Supports Damage Award Against Contractor (NJ) December 12, 2013 < Back Share to: We frequently see articles and cases about conflicts between insurers and homeowners due to storm damage. But recently, the alignment between the insurer and policyholder lead to a damage award against a contractor. In Peltier v. Barbera, plaintiff had the defendant construction contractor provide an estimate for necessary storm repairs for her home. Defendant suggested that plaintiff file a claim with her homeowner's insurance carrier, which plaintiff did, and the carrier provided a detailed breakdown of damages and costs of repair as determined by an adjuster retained by the carrier. The contract between the plaintiff and the defendant specifically and expressly relied upon the cost breakdown provided by the carrier. Despite receiving full payment, the defendant only completed part of the work, leading to a lawsuit by the homeowner. During the lower court bench trial, the judge found that the defendant had indeed breached the contract with the plaintiff by failing to complete the agreed upon work. However, the judge also determined that the plaintiff failed to prove damages, primarily because she relied exclusively upon the estimate prepared by the insurance company and its adjuster, rather than expert testimony to substantiate her claim for damages. Relying on long-standing principles of fairness and equity, the Appellate Division determined that where a breach of contract and subsequent damage occurred with certainty (as was the case here), uncertainty about the amount of damages should not serve as a bar to making a party whole. Finding that the insurance estimate and cost breakdown was sufficient evidence to establish the scope and cost of the necessary work, the appellate court reversed the lower court decision and directed entry of an award of damages against the contractor for the cost of work he failed to perform. Thanks to Emily Kidder for her contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Design Industry Standards Must Be Supported With Extrinsic Proof October 27, 2008 < Back Share to: United States Supreme Court Justice Antonin Scalia made famous the Latin term, "ipse dixit," when he derisively quipped that a statement is not necessarily true just because uttered by an expert. Employing similar logic, the Appellate Division, First Department recently overturned a jury verdict against the City of New York, which concluded that it negligently designed two swinging doors in a NYC high school. Plaintiff's expert testfied that the doors were poorly designed and in violation of applicable industry standards without any reference to written building codes or industry standards in effect when the building was constructed. Instead, the expert relied on his general experience and one written publication issued after the building was constructed. Jury verdicted overturned and case dismissed. http://www.nycourts.gov/reporter/3dseries/2008/2008_07951.htm Previous Next Contact

News Product Recalls on the Rise? May 23, 2011 < Back Share to: We have spilled much ink over the past six months commenting on the potential implications of the FSMA. However, it appears that not only food recalls are on the rise. According to recent reports, new regulations (like the FSMA) and ease of access to product complaints, are driving the increase. Brand protection recalls are also trending upwards. Food for thought for Underwriters when assessing their appetite for risk in product recall coverage. For more information about this post, or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Balancing the Scales: The Role of Res Ipsa Loquitur in Pennsylvania Negligence Cases September 20, 2024 < Back Share to: Res Ipsa Loquitur is defined in Pennsylvania as a discrete category of circumstantial evidence that may suffice to establish negligence where more specific evidence of the events surrounding the injury eludes even diligent investigation. Essentially, the doctrine permits a jury to exercise common sense and conclude that the alleged accident could not occur absent negligence. Pennsylvania has historically taken this a step further and allowed the doctrine to be applied to cases involving complex facts and theories, including in medical malpractice cases. In Lageman by and through Lageman v. Zepp , the Pennsylvania Supreme Court analyzed the doctrine in a medical malpractice action and clarified the scope of when the doctrine can be given as a jury instruction. Lageman by & through Lageman v. Zepp , 266 A.3d 572 (Pa. 2021). In Lageman , the trial court originally returned a defense verdict and did not permit Lageman to instruct the jury on finding negligence under Res Ipsa Loquitur since Lageman also presented direct evidence of Zepp’s negligence. Lageman argued that “accepting Zepp's version of how he performed the procedure... arterial cannulation[] would not ordinarily occur in the absence of negligence”; and Pepple's further testimony that no other plausible causes were present, Lageman contended that she made out a prima facie case under Section 328D and was entitled to the instruction. The trial court disagreed and only instructed the jury on negligence since Lageman introduced direct evidence in support of her malpractice claim. Lageman by & through Lageman v. Zepp , 266 A.3d 572, 586 (Pa. 2021). Following the defense verdict, Lageman appealed to the Pennsylvania Superior Court, and the verdict was reversed. The Superior Court found that a plaintiff has no obligation to choose one theory of liability to the exclusion of the other. If the evidence satisfies the bare minimum requirements to support a jury instruction, the instruction should be given. Therefore, presentation of Res Ipsa Loquitur theory to support a medical malpractice claim was not precluded when the plaintiff also introduced direct evidence sufficient to support a malpractice claim, so Res Ipsa Loquitur was not the only avenue to a finding of liability; the two approaches to satisfying the plaintiff's evidentiary burden were not mutually exclusive. Zepp appealed the Pennsylvania Superior Court’s finding, but the Pennsylvania Supreme Court affirmed and found that Lageman was entitled to have the jury instructed on both theories of liability. The Pennsylvania Supreme Court affirmed that in these “gray zone” cases, where the plaintiff presents direct evidence of negligence and circumstantial evidence of negligence under the doctrine of Res Ipsa Loquitur, the jury may be instructed on both theories of liability. Lageman by and through Lageman v. Zepp .pdf Download PDF • 502KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News Serial Class Action Filer Suffers Set Back January 13, 2009 < Back Share to: A serial class action filing attorney had his case for Consumer Fraud thrown out of court in Hoffman v. ASSEENONTV.com, -- N.J.Super. – (App.Div. 2009). After ordering a product on-line to take advantage of a “free bonus” offer, Hoffman was hit with a $7.95 handling charge. He filed a Consumer Fraud class action lawsuit claiming that despite the fact that the order was cancelled prior to any payment and he was never charged for the product ordered, he nonetheless sustained a diminution to his available credit meriting his representation of a class against the internet marketer. The court disagreed finding that he did not sustain an actual loss as required by the Consumer Fraud Act and upheld dismissal of his case. On the other hand, the court likewise rejected the defendant’s claim for abuse of process against the plaintiff. The defendant had argued that the plaintiff, who had filed over 40 nearly identical lawsuits, had used the process to “extort” settlements prior to class certification. The Court found that it was not in the position to assess the bona fides of settlements in these other actions and upheld dismissal of the defendant’s counterclaim. Thanks to Denise Ricci for her contribution Previous Next Contact

News Threshold Motions: Not Just A Threat For Leverage (NY) March 15, 2019 < Back Share to: Even though New York’s Insurance Law § 5102(d) was supposed to help weed out law suits for non-serious injuries in motor vehicle accidents, every defense attorney has handled a case arising out of a fender bender with minor injuries. Plaintiffs will often bet that defendants’ cost of litigation and motion practice weighed against the risk of failing on that motion will make a weak damages case more worthwhile. Indeed, many assume that any expert-versus-expert motion is doomed to failure. But the Bronx Supreme Court recently demonstrated that showed it is still possible to have these cases dismissed on summary judgment. In Bogle-v.-Paredes, the plaintiff claimed she suffered minor soft tissue injury to the cervical and lumbar spine as well as the wrists and right knee. She underwent three-to-six months of treatment and then stopped. Defendant, with supporting affidavits from an orthopedist, a radiologist, and a neurologist, cited plaintiff’s prior car accident and voluntary cessation of treatment and argued that he met his prima facie burden of demonstrating plaintiff’s injuries were not “serious” as a matter of law. Plaintiff’s opposition relied on a physician who did not evaluate plaintiff until four years after the accident which was insufficient to rebut the defense’s arguments. The First Department unanimously affirmed granting summary judgment to the defendant. This decision highlights some of the issues with making such motions—it required a tenacious defense and the retention of three expert witnesses, which is costly. Clearly, each case will turn on its own merits and require a decision to be made as to the specific value of defending or settling each case. However, it is important to remember some plaintiffs will not be reasonable, and, in some cases, even when the defendant is otherwise dead to rights on liability, threshold motions are not simply idle threats for leverage during settlement negotiations. They are a tool that can, in fact, win outright. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News WCM Victorious on Statute of Repose in PA Construction Defect Lawsuit. July 17, 2020 < Back Share to: WCM Partner Bob Cosgrove and Philadelphia associate Zhanna Dubinsky won a motion for judgment on the pleadings in the Pennsylvania Court of Common Pleas, Chester County. In John Adams, et al. v. Wilkinson Enterprises, Inc., et al., the plaintiffs were the owners of luxury homes in the Chester County, Pennsylvania area who had purchased their new homes in 2003 and 2004. The plaintiffs alleged that after they assumed residency, their homes began to suffer from a myriad of construction defect problems. Our client was one of the contractors that had helped build the houses. Notwithstanding their claimed knowledge of the defects, plaintiffs did not commence their actions until December of 2016. We moved for judgment on the pleadings and argued that the lawsuit was untimely and a violation of the statute of repose. Pennsylvania’s statute of repose abolishes and eliminates causes of action that occur twelve years after completion of construction of an improvement to real property. The Honorable Edward Griffith agreed and entered judgment on the pleadings dismissing all claims against our client. For more information about this post, please contact rcosgrove@wcmlaw.com . Previous Next Contact

News Dope December 12, 2007 < Back Share to: Mr. Maharaj was in court for resolution of a recent marijuana possession charge. The prosecutor agreed to an "adjournment in contemplation of dismissal," which meant the charge would be dropped if Maharaj stayed out of trouble for six months. Moments later, and while still in the courthouse, Maharaj was asked to produce his driver license for court personnel. He pulled out his folded-up license and in the folds was more marijuana. The plea deal fell through. Previous Next Contact

News Say Cheese! Photo Taken with Mobster not Actionable (NY) August 27, 2009 < Back Share to: Plaintiff attended the trial of the notorious mafia boss, John Gotti, and after court broke for the day, plaintiff decided to help Gotti maneuver through the throng of photographers and into Gotti’s car. A freelance photographer then took a picture of plaintiff holding Gotti’s arm. The photo was ultimately used in an advertisement for the television program, Inside the Mafia, and the ad appeared in posters throughout New York City. Plaintiff filed suit in Alfano v. NGHT, et al, alleging that the unauthorized use of his image violated his privacy. The Court held, however, that the New York statute prohibiting the “commercial appropriation” of a living person’s image did not apply because of the “newsworthy” nature of the trial that was being photographed. The Court also held the advertisement was an “incidental use” of the image to illustrate the newsworthy content of the television program. The plaintiff’s other claims were also rejected and the court dismissed the complaint. Previous Next Contact

News WCM Is Pleased To Announce That Effective July 1, 2013, Brian Gibbons Has Been Promoted To Counsel July 12, 2013 < Back Share to: A former prosecutor in the Bronx and WCM attorney since 2009, Mr. Gibbons defends individuals and businesses from a variety of general liability claims. He also handles first party property matters during the claim investigation and in litigation. A New York native, Mr. Gibbons is a graduate of Boston College and St. John’s University School of Law. He is an active member of the Regis Bar Association and a new member of the Nassau County Bar Association. Previous Next Contact