Wade Clark Mulcahy LLP

News Happy Thanksgiving to One and All From Your Friends at WCM! November 21, 2018 < Back Share to: We wish all of you and your families a Happy Thanksgiving and a wonderful holiday season! Previous Next Contact

News NY Insurance Department Explores Catastrophe Fund September 23, 2010 < Back Share to: Although New York has been fortunate to escape the path of a catastrophic hurricane in recent years, the state’s Insurance Department is taking measures to prepare itself for such a disaster. New York is contemplating a plan that would require insurers to fund a pool that would cover claims from disasters such as hurricanes. In addition, insurance companies soon may not be permitted to apply a special deductible for wind damage unless a hurricane actually makes landfall in New York. These actions come as a result of increased volatility in the market for property insurance in New York, including some insurers dropping coverage to those customers most vulnerable to storm damage. In the wake of Hurricane Andrew in 1993, Florida created a similar catastrophe fund which is financed by premiums charged to insurers, investment earnings and emergency assessment. New York ranks second only to Florida in the amount of insured coastal property in the United States. http://www.ins.state.ny.us/press/2010/p1009221.htm Thanks to Chris O'Leary for his contribution to this post. If you would like further information, please contact mbono@wcmlaw.com Previous Next Contact

From the initial claim notification through trial, WCM attorneys have helped to guide insurers with property claims ranging from the simple to the complex. Our vast expertise spans the gamut of losses, including damage to buildings, infidelity, damage to works of art, the theft of millions of dollars of diamonds, significant cargo claims, and inland marine losses, including motor truck cargo, builder’s risk, and contractor’s equipment. WCM lawyers provide legal advice during the claim investigation and conduct examinations under oath when necessary. We also participate in appraisals, arbitrations, and mediations to assist with the resolution process. And when litigation has been filed, we have represented insurers in cases across the country in declaratory judgment actions, breach of contract suits, and bad-faith claims. WCM attorneys have tried first party matters and have participated in appeals in state and federal courts, including the United States Supreme Court. First Party Property From the initial claim notification through trial, WCM attorneys have helped to guide insurers with property claims ranging from the simple to the complex. Our vast expertise spans the gamut of losses, including damage to buildings, infidelity, damage to works of art, the theft of millions of dollars of diamonds, significant cargo claims, and inland marine losses, including motor truck cargo, builder’s risk, and contractor’s equipment. WCM lawyers provide legal advice during the claim investigation and conduct examinations under oath when necessary. We also participate in appraisals, arbitrations, and mediations to assist with the resolution process. And when litigation has been filed, we have represented insurers in cases across the country in declaratory judgment actions, breach of contract suits, and bad-faith claims. WCM attorneys have tried first party matters and have participated in appeals in state and federal courts, including the United States Supreme Court. Practice Lead Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Download Download

News NY Court of Appeals to Review Where Policy "Issued or Delivered" April 28, 2017 < Back Share to: The underling loss of Carlson v. AIG involved the sad story of Claudia Carlson, who died in a motor vehicle accident when she was struck by a commercial vehicle in upstate New York. Carlson’s estate obtained a judgment against MVP, the company that owned the delivery truck. MVP was carrying property for DHL, and although DHL was exonerated at trial, plaintiff’s sought to enforce the MVP judgment against DHL’s insurers under the theory that MVP was also an insured under the DHL policies. New York Insurance Law §3420 (d) allows a party to commence a direct action against an insurance company when there is an unsatisfied judgment against their insured, but the statute only applies to insurance policies “issued and delivered in New York.” Prior to a 2014 amendment, Insurance Law §3420 (d) required that the policy must be “issued for delivery” in the state. One of DHL’s insurers, American Alternative Insurance Co. (AAIC), successfully moved to dismiss on the basis that the judgment was unenforceable because it did not issue or deliver a policy in New York, and this was upheld on appeal. On March 28, 2017, the Court of Appeals heard oral argument in Carlson v American International Group, Inc. In an interesting twist, the Court subsequently directed the case to be reargued to invite amicus curiae participation. It appears that the Court wants to evaluate whether the AAIC policy, which presumably insured DHL’s deliveries in New York, was “issued or delivered” in New York for purposes of Insurance Law §3420. Insurance Law §3420 is a wide ranging statute that also requires timely disclaimers in personal injury actions, so any ruling that expands the scope will be notable for insurers. We will continue to follow this case on Of Interest. Thanks to John Collins for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News State Scuttles Salty Suit January 21, 2011 < Back Share to: A New Jersey Appellate Court affirmed the dismissal of a suit against Denny’s wherein the plaintiff alleged the food served at the restaurant contained excessive levels of sodium. The suit was brought under the Consumer Fraud Act, as plaintiff alleged Denny’s failed to disclose the sodium content of the meals. However, the trial judge determined, and the Appellate Division agreed, that the case was actually a product liability claim because the complaint alleged that excessive levels of sodium are dangerous and cause an increased risk of bodily harm. Under New Jersey law, the NJ Products Liability Act is the exclusive remedy for such claims. A condition of the NJ Product Liability Act is damages. However, plaintiff’s did not allege any specific damages. Therefore, the trial court dismissed the case, and the Appellate Division affirmed that decision. In a footnote the Appellate Court noted that the NJ legislature recently passed a law requiring restaurants to disclose the calorie court of the food sold, but did not require restaurants to disclose the sodium content of the food. The court determined that the statute demonstrates the public policy of New Jersey is that a restaurant is not required to disclose the sodium content of food sold. If you have any questions about this post, please contact David Tavella at dtavella@wcmlaw.com . http://www.judiciary.state.nj.us/opinions/a4135-09.pdf Previous Next Contact

News Vicarious Liability Found In A Motorcycle Accident By Off-Duty Cop (NY) April 8, 2022 < Back Share to: In Llorente v. Wnorowski, 2022 NY Slip Op 02258 (2d Dept. 2022), the plaintiff was riding a motorcycle on the Grand Central Parkway when it collided with another motorcycle operated by the defendant Wnorowski, an off-duty police officer at the time, who was riding with other off-duty police officers on motorcycles. The plaintiff commenced a personal injury action against him and against his employers, the defendants City of New York and New York Police Department. The City and NYPD moved for summary judgment dismissing the complaint arguing that they were not vicariously liable for Wnorowski's actions because he was not acting within the scope of his employment as a police officer at the time of the accident, and that no police action otherwise contributed to the happening of the accident. the trial court denied the motion. Under the doctrine of respondeat superior, an employer is vicariously liable for a tort committed by an employee while the employee is acting within the scope of his or her employment [Rivera v State of New York, 34 NY3d 383 (2d Dept. 2020)]. "'Conversely, where an employee's actions are taken for wholly personal reasons, which are not job related, his or her conduct cannot be said to fall within the scope of employment'" [Danner-Cantalino v City of New York, 85 AD3d 709 (2d Dept. 2011)]. Usually, these issues are left for a jury to decide. The Second Department affirmed the trial court’s decision citing the fact that there was conflicting testimony that the off-duty police officer attempted to pull over the plaintiff’s motorcycle prior to the accident. The simple act of attempting to pull over the plaintiff’s vehicle, even though he was not on the clock, was sufficient to create a triable issue of fact for a jury to review. The key takeaway on this case is that an employer can be found liable for the actions of his employee, even if that employee is off the clock, if it can be shown he acted within the functions of his employment at the time of the accident. The employer should be wary of making sure that the employee leaves his work at the place of business to avoid any semblance of vicarious liability which could extend to the employer. Thanks to Raymond Gonzalez for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken. Previous Next Contact

News WCM Is Pleased To Announce That Michael D. Noblett Has Been Promoted To Counsel December 7, 2021 < Back Share to: With effect as of December 6, 2021, Michael D. Noblett has been promoted to the rank of Counsel at Wade Clark Mulcahy LLP. A graduate of Rowan University and Rutgers School of Law, Mike is based in WCM’s New Jersey office. His practice focuses on defending businesses and individuals against all types of general liability, negligence and product liability claims, and also on providing guidance to insurers on coverage issues. Mike started his legal career as a law clerk in the New Jersey Superior Court, and after gaining valuable experience there, and with two other litigation firms in New Jersey, Mike has been with WCM since 2016. Previous Next Contact

News Computer Fraud Policy Covers Computer Fraud Only March 24, 2017 < Back Share to: A Georgia court recently ruled that a computer fraud provision in an insurance policy did not provide coverage in an $11.4 million fraudulent debit card redemptions made over the phone and processed by computers. In InComm Holdings, Inc. v. Great American Insurance Company, InComm provided a service enabling consumers to load funds onto prepaid bank issued debit cards. Cardholders could purchase “chits” from retailers to add additional funds onto their cards. The retailers sent InComm the payment made for the chit, which the cardholder could redeem by calling InComm. InComm then transferred the funds to the issuing bank for the cardholder to draw on. When the cardholder called InComm, their call was processed by the interactive voice response (“IVR”) system. The IVR used computers that allowed a debit cardholder, using telephone voice commands or telephone touch-tone codes, to monitor and request transactions on their debit card account. The loss in question resulted from a coding error in InComm’s system that allowed cardholders to redeem their chits more than once, which resulted in more than $11.4 million in unauthorized charges to InComm. InComm made a claim on its insurance policy that provided coverage for “computer fraud,” specifically, a “loss of . . . money . . . resulting directly from the use of any computer to fraudulently cause a transfer of that [money] from inside the premises or banking premises” to a person or place “outside those premises.” InComm believed it was entitled to coverage because the IVR system was the “computer” that was “used” when the chits were redeemed, and thus that the Policy’s “use of any computer” requirement is satisfied. The insurer denied coverage on the grounds that the redemptions were made over the phone and not by computer. The court agreed, using dictionary definitions of “phone” and “computer” to reach its conclusion that the cardholders used telephones to provide information to InComm’s IVR system, which then processed the information incorrectly, resulting in multiple redemptions of a single chit. As technology advances and the interdependency between telephones and computers increases, it is comforting to know that courts are taking a straightforward approach to defining terms in an insurance policy to determine the scope of coverage. For now, a phone is a phone and computer is a computer, and a computer fraud provision in an insurance policy only covers computer fraud. Thanks to Hillary Ladov and Chris Sovorow for their contributions to this post. Previous Next Contact

News Clean Your Glasses at Your Own Risk February 1, 2010 < Back Share to: In Beshay v. Eberhart L.P., the plaintiff was injured when the blade from his co-worker’s saw flew off and hit his left eye. The plaintiff sued the premises owner alleging a violation of Labor Law § 241(6) based on an alleged violation of 12 NYCRR 23-1.8(a) that requires that “suitable, approved eye protection shall be provided for and shall be used by all persons while engaged in any operation which may endanger the eyes.” During his opening statement, plaintiff’s counsel stated that the plaintiff was wearing protective eye gear just before his accident, but had removed it to clean it when he was struck in his eye by the flying blade. After opening statements, the premises owner moved for judgment as a matter as law. The court granted the motion, holding that that the admission by plaintiff’s counsel absolved the premises owner of liability under Labor Law § 241(6). http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2010/D25766.pdf Thanks to Cheryl Fuchs for her contribution to this post. Previous Next Contact

News NJ Appellate Division Affirms Dismissal Of Parents' Emotional Distress Claim. September 2, 2009 < Back Share to: In Butterfield v. Lucas Electric, the appellate division affirmed the dismissal of plaintiff's claim for emotional distress arising out of her observing her 16 month old son falling into a 10 foot deep hole dug by the defendant. The boy was extricated from the hole 12 minutes later and was determined to have superficial abrasions and contusions only. The Court agreed that plaintiff had failed to prove " the death or serious physical injury of another" to establish a claim for negligent infliction of emotional distress. Further, plaintiff failed to prove a "reasonable fear of her owm immediate personal injury " to establish a claim for bystander emotional distress. http://www.judiciary.state.nj.us/opinions/a1568-08.pdf Previous Next Contact

News Eagles Win! February 12, 2018 < Back Share to: Some of you may have heard that the Philadelphia Eagles just won their first Super Bowl. It's kind of a big deal down here in Philadelphia. So for those who have interest in such things, enjoy the pictures of the Eagles' celebratory parade that our very own Clayton Thomas took from our office windows. Previous Next Contact

News Finding of "Alteration" and Notice Sufficient to Defeat Summary Judgment May 20, 2009 < Back Share to: In Fuchs v. Austin Mall Assoc. LLC, plaintiff's decedent was electrocuted while replacing the ceiling of an elevator located on property owned and/or managed by the defendants. The decedent's representative commenced an action against the defendants alleging common law negligence and causes of action pursuant to Labor Law sections 200, 240, and 241(6). The defendants then filed a motion for summary judgment in relation to plaintiff's claim for common-law negligence and for violations of Labor Law sections 241(6) and 200. The Supreme Court, Queens County, granted the defendants' motion. Plaintiff appealed. The Appellate Division, Second Department, reversed the Supreme Court's ruling and denied the defendants' motion in its entirety. The Court stated that the work the decedent was performing at the time of death constituted an "alteration," and therefore fell within the scope of Labor Law section 241(6). The Court also stated that because the defendants were aware that there were energized electrical circuits in the area where the decedent was working, they had notice of a dangerous condition. As such, even if they did not have control over the decedent's work area, the fact that they were aware of the condition precluded them from prevailing on summary judgment. Thanks to Brad Thelander for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03863.htm Previous Next Contact