Wade Clark Mulcahy LLP

News Bronx Jury's Verdict Underscores the Value of Independent Medical Examinations (NY) October 4, 2018 < Back Share to: In a recent decision by the First Department, the Appellate Division took up the issue of whether it was proper for a Bronx jury to have declined to award any pain and suffering damages in a motor vehicle accident case where the plaintiff had already been granted summary judgment on the issue damages. In Stanford v. Rideway Corp, 2018 NY Slip Op 03453, plaintiff was a rear-seated passenger in a taxi which was involved in a two-car accident on Manhattan's FDR Drive. Plaintiff thereafter commenced a lawsuit against the drivers of both vehicles, alleging serious injuries to her cervical and lumbar spine. Plaintiff ultimately moved for summary judgment on the issue of whether she sustained a serious injury under Insurance Law Section 5102. The Court granted plaintiff's motion, and at the time of trial, the jury was instructed that as a matter of law, plaintiff had "sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.” In spite of that instruction, defendants claimed that plaintiff's injuries were minimal and were unrelated to the accident, relying on the testimony of their expert orthopedic surgeon, who had performed an independent medical examination of the plaintiff. Contrary to the Court's instruction, defendant's expert had failed to find any objective evidence of injury to plaintiff's neck or back, concluding that her lumbar and cervical spine were normal, and that she was not prevented from taking part in any activities. After deliberating, the jury elected to award no damages at all for pain and suffering. That verdict was upheld by the Appellate Division, which determined that plaintiff's evidence as to her pain and suffering was "not compelling," and that a jury could reasonably have found that plaintiff's claims were inconsistent with the objective medical findings of defendant's expert orthopedic surgeon. The court found that plaintiff's counsel, apparently very creative at the summary judgment stage of the litigation, waived any argument that the jury's verdict was inconsistent when counsel failed to object to the contents of the jury's verdict sheet during the charge conference. Had it not been for the defense's expert presentation, the science would have gone unopposed and a pain and suffering award would have been awarded. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News Plaintiff Fouled By Dust On Basketball Court (NY) July 19, 2019 < Back Share to: In Samuels v. Town Sports International LLC, plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.” Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed. The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Summer Wishes July 6, 2018 < Back Share to: The heat of the summer has gotten to us! So that we can spend more time in the pool and less time sweltering away, in lieu of a series of blasts, we wish you and yours a happy formal start to the summer. May your drinks be cold, your weather pleasant and all your summer journeys refreshing. Happy summer from all your friends at WCM! P.S. For privacy reasons we will not be posting pictures of any WCM partners in their bathing suits. Trust us, it’s for the best. Previous Next Contact

News Jason Laicha Promoted to Senior Associate January 3, 2025 < Back Share to: WCM is pleased to announce that Jason Laicha has been promoted to the rank of Senior Associate. A graduate of Temple University, James E. Beasley School of Law and Villanova University, Jason is based in WCM’s Philadelphia office. He focuses his practice on coverage work in Pennsylvania, New Jersey, and New York. Jason started with WCM as a first-year attorney. Congratulations to Jason on your promotion! Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com Contact

News Labor Law Claims Dismissed Against Homeowners (NY) November 19, 2009 < Back Share to: Property owners are invariably drawn into lawsuits involving Law Labor accidents. Fortunately, owners of one and two family homes are exempted from the strict liability of §240(1) and §241(6) when they do not direct or control the work being performed. These homeowners can also be exempt from common law negligence and Labor Law §200 claims when they have no obligation for safety at the work site. In Chapman v. Town Of Copake, plaintiff (a subcontractor) sued the homeowners when he was injured when a retaing wall collapsed while he was digging holes to install concrete footers at the worksite. The New York Appellate Division found that, although the homeowners were involved in the basic planning and coordination of the renovation project, their participation was not so significant as to support a finding that they served as their own general contractor. The homeowners pointed to the fact that they hired a contractor to direct plaintiff’s work. And even though the homeowners paid the subcontractor directly, the GC hired the subcontractors and coordinated their work at the site. Plaintiff also cited to the facts that the homeowners completed the building permit application and provided sketches of the work that they wanted done. But the Court held their participation did not “cross the line from being a legitimately concerned homeowner to a de facto supervisor.” Thus, all claims against them were dismissed. If you would like further information regarding this post, please e-mail mbono@wcmlaw.com http://decisions.courts.state.ny.us/ad3/decisions/2009/506856.pdf Previous Next Contact

News Lowering the Bar? (NY) February 6, 2019 < Back Share to: The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d). In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages. A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages. On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News WCM Attorneys Become Published Authors in Counterpoint. January 7, 2021 < Back Share to: Partner Bob Cosgrove and associate Lauren Berenbaum and Partner Colleen Hayes have written essays in the COUNTERPOINT - December 2020 Issue, the Pennsylvania Defense Institute’s quarterly newsletter. The PDI is the Pennsylvania state affiliate of the Defense Research Institute. Bob and Lauren's essay is entitled Is Our Biometric Data Protected and explores some of the new legislation, case law and privacy concerns involving the collection of biometric data. Colleen's essay is entitled Close Encounters of the COVID Kind and What It Means for Insurance Coverage and analyzes some of the insurance issues arising out of the continuing global pandemic. For more information about the essays or WCM’s Privacy, Cybersecurity and E-Discovery or Insurance Coverage practices, please contact Bob or Colleen. Previous Next Contact

News NJ Limits Employer's Right to Retain Employee Personal Email July 1, 2009 < Back Share to: Technology has changed our lives in profound ways. Few of us hand write letters or call our friends and relatives at their home telephone numbers. We email, text and tweet information whether at home, at work or in the car. This information revolution has challenged the courts to resolve competing interests in the use of these new technologies. Many businesses have responded by enacting policies that define as "company property" any communications sent through company servers or equipment. These policies generally reserve the right of an employer to review, inspect and intercept all electronic communications. What happens if an employee uses a company issued laptop to send an email to her attorney through a personal, web-based email account? May the employer access and review those communications if their images are found on the computer's hard drive? Put in the the broader context, does a company's electronic communications policy trump the attorney-client privilege when an employee uses firm equipment to facilitate her communications? No, according to Stengart v. Loving Care Agency, Inc. et al. In Stengart, an employee communicated with her attorney before she resigned from the company on a company issued laptop. After she resigned, the company extracted and created a forensic image of the hard drive. The company's attorneys later discovered numerous email communications between plaintiff and her attorney. In response to the defendant's disclosure of these emails in written discovery responses, the plaintiff requested, among other things, the return of all such documents and a ban of their use by the defendant on the basis of privilege. In a broadly written opinion, the Appellate Division held "the company policy is of insufficient weight when compared to the important societal considerations that undergird the attorney-client privilege." Moreover, the court seemed to suggest that an employer's right to access, review and retain private email communications was limited because "a policy imposed by an employer, purporting to transform all private communiations into company property [made on company owned equipment] ...furthers no legitimate interest." Stengart will not be the last word on this important and topical issue. http://www.judiciary.state.nj.us/opinions/a3506-08.pdf Previous Next Contact

News Abuse of Process Finding Against Insurer Reversed October 7, 2009 < Back Share to: Rutgers Casualty Insurance Company v. Kennedy addressed a dispute over a claim for personal injury protection benefits filed by Christopher Kennedy, premised on a policy of insurance purchased by his sister-in-law, Alice Kennedy. Rutgers sued Alice and Christopher seeking damages and a declaration voiding the policy on grounds of legal and equitable fraud. Alice counter-claimed against Rutgers for malicious use of process and malicious abuse of process. In the case before the Court, Rutgers appealed from a $392,630 judgment based on the jury's verdict in favor of Alice on her counter-claim for malicious abuse of legal process, and from the trial court's order denying Rutgers' motion for judgment notwithstanding the verdict. On appeal, Rutgers contended that the trial court should have dismissed the malicious abuse of process claim because plaintiff did not prove any "further acts" beyond the filing of the complaint; that Rutgers was entitled to invoke the litigation privilege; and that plaintiff did not prove a "special grievance." The Appellate Division reversed the trial court because it agreed with Rutgers that plaintiff failed to prove one of the elements of a cause of action for malicious abuse of process, i.e., a further improper act beyond the initial filing of the complaint. They also agreed with Rutgers that the trial court improperly permitted plaintiff to introduce evidence of the number of claims Rutgers investigated for possible fraud and the number of fraud complaints that Rutgers filed against other insureds. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4195-07.pdf Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

News Creative Argument In Las Vegas Divorce Case November 13, 2008 < Back Share to: The attorney for Darren Roy Mack has gone before the Nevada Supreme Court to ask that a divorce agreement be set aside because it had not been finalized by the time his wife, Carla's , death. Mack is attempting to void the agreement so no payments need to be made to Carla's estate. The argument is especially creative since Mack became the subject of an international manhunt in June 2006 after being charged with his wife's murder. He is now serving time for the first degree murder of his wife and with the sniper shooting of Family Court Judge Chuck Weller , who was overseeing the couple's acrimonious divorce. The Supreme Court is now considering the argument's merits. http://www.rgj.com/article/20081104/NEWS18/81104051 Previous Next Contact

News NY Court of Appeals addresses high low agreements. September 22, 2007 < Back Share to: Court holds that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). http://www.nycourts.gov/ctapps/decisions/jun07/89opn07.pdf Previous Next Contact