News Property Owners Not Liable For Unaffiliated Volunteers (NY) August 2, 2012 < Back Share to: In Harry v. Roman Catholic Diocese of Brooklyn, the Appellate Division, Second Department articulated the standard of care for premises owners with respect to volunteers using their facilities. In Harry, plaintiff was injured when a table collapsed while he was attending a meeting of a local senior citizens' club on the defendants’ premises. The table was improperly set up by a volunteer member of the club. The defendants merely provided space where the senior citizens club would meet but otherwise had no involvement in its meetings. The defendants moved for summary judgment arguing that they did not have any notice of or create the hazardous condition, and could not be vicariously liable for the acts of an unaffiliated volunteer. The Second Department agreed and upheld the dismissal of plaintiff’s complaint and grant of summary judgment to the defendant owners. Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Owner Not Liable For Injuries To Tenant's Guests (NJ) January 30, 2020 < Back Share to: The New Jersey Supreme Court recently issued a landmark ruling on the duty of a commercial property owner to maintain a leased property. In Baldwin Shields v. Ramslee Motors, the court considered whether the owner of a commercial property owed its tenant’s invitee a duty to clear snow and ice from the property’s driveway while the property is in the sole possession and control of the tenant. The clear and unambiguous lease agreement between the parties stated that the tenant was solely responsible for the maintenance and repair of the land and any structure of the premises, as if the tenant were the de factor owner of the leased premises. The tenant also testified at a deposition that they were responsible for clearing snow and ice from the property. The court ultimately held that the tenant was responsible for the removal of snow from the driveway, and that the property owner was not responsible since they had relinquished control of the property to the tenant. This case is notable since commercial landowners typically have a non-delegable duty to maintain their property. This case appears to carve out an exception when the tenant has exclusive control and possession of the property. Thanks to Heather Aquino for her contribution to this post. If you have any questions, please email Georgia Coats. Previous Next Contact

News What Can You Do When Your IME Physician Is Sanctioned? Maybe, Not Much (NY) September 12, 2013 < Back Share to: In Haynes v. Modh Jewel Hossain and Baxter Cab Corp., the defendants moved post-note of issue, to stay the trial and to conduct a new orthopedic examination of the plaintiff with a new orthopedist. The basis of the motion was that the previously designated independent medical examiner received a Statement of Charges from the New York State Board for Professional Medical Conduct. Thereafter, the doctor entered into a Consent Agreement and Order whereby he was placed on probation for a period of three years; his license to practice medicine was limited to preclude him from engaging in any practice as an independent medical examiner; and he agreed to voluntarily stop practicing as an independent medical examiner. The defendants argued that the terms of the consent order rendered the doctor unavailable as a trial witness, entitling them to a further examination of the plaintiff. In denying the defendants’ application, the trial court concluded that an expert is not rendered unavailable as a matter of law simply by virtue of the fact that a disciplinary action has been commenced against the expert resulting in restriction of the expert's medical license. Moreover, it is important to note that the plaintiff presented the court with an opinion letter from the Deputy Counsel for the Medical Board that clarified the limitations of the consent order for the sanctioned doctor. The opinion letter stated that if, in the future, the doctor testified about acts performed, observations or findings made, or opinions and/or diagnoses rendered, at a time that predates the effective date of the order, the Board would not consider that to be reportable as a possible violation. In relying on this letter, the trial judge noted that the doctor was available to testify at the time of trial. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Overly Voluminous Pleadings Result in Dismissal (PA) January 11, 2018 < Back Share to: On January 4, 2018, the Superior Court of Pennsylvania affirmed preliminary objections which dismissed a pro se plaintiff’s fourth amended complaint after it found he had waived all the issues therein. On February 23, 2015, the underlying trial court sustained preliminary objections against pro se plaintiff Andreas Schilit’s (“Schilit”) third amended complaint since it was not in a concise and summary form. Schilit’s third amended complaint contained over 800 paragraphs, mixed causes of action, and cross-referencing counts. In response, Schilit filed a fourth amended complaint which attempted to remove some of the paragraphs in compliance with the court’s order, but he instead reinserted them in an attached affidavit to the fourth complaint. More preliminary objections followed to which Schilit filed a fifth amended complaint which was even longer than its predecessors. The numerous defendants all filed motions to strike claiming that Schilit’s filing was in bad faith and merely an attempt to hurry and harass them. The court then granted their motions to strike and granted their preliminary objections to the fourth complaint. On appeal, Schilit file a Rule 1925(b) statement which was twelve pages and 136 numbered paragraphs; in direct contrast to the rule’s requirement for a “concise” statement of appeal. The Superior Court stated that if a court has to guess on what issues an appellant is raising, then it is not enough for meaningful review. In addition, the court found Schilit’s brief to be disorganized and rambling and decided that he had waived all issues on appeal. This case demonstrates the idiosyncrasies of dealing with pro se plaintiffs, forcing defendants to address baseless, but timeconsuming pleadings and evidentiary issues. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WDPA: Destruction of Personal Property Can Serve as Basis for Emotional Distress Tort. August 12, 2009 < Back Share to: In Seymour v. Life Care Retirement Communities, Inc., the decedent owned a residential unit and storage garage at a retirement community. Plaintiffs (the decedents' children) alleged that representatives of the retirement community entered their father's storage unit subsequent to his death and discarded his personal property. Plaintiffs further alleged that the retirement community failed to provide them with notice that its representatives would be entering the storage facility. They therefore asserted claims for conversion and intentional infliction of emotional distress, and sought both compensatory and punitive damages. The retirement community moved to dismiss plaintiffs' emotional distress claim as well as plaintiffs' claim for punitive damages. The United States District Court, Western District of Pennsylvania, denied the defendant’s motion in its entirety. In its opinion, the court stated that it could find no edict in Pennsylvania law precluding a claim for the intentional infliction of emotional distress based upon the fact that only personal property was damaged. The court stated that the merits of plaintiff's claim for intentional infliction of emotional distress depended on the facts of the case and the state of mind of the retirement community's representatives at the time they discarded the decedent's belongings. With regard to the plaintiffs' claim for punitive damages, the court held that the plaintiffs sufficiently alleged that the conduct of the retirement community's representatives was outrageous, reckless and/or wanton and caused them great emotional distress. As such, based upon the pleadings, the court held that it could not grant the defendant's motion as to plaintiffs' claim for punitive damages. Thanks to Brad Thelander for his contributions to this post! http://www.palawweekly.com/printarticle.aspx?ID=29705 Previous Next Contact

News Additional Insured Coverage Analyzed in PA February 4, 2022 < Back Share to: Earlier this week, on January 31, 2022, in Cincinnati Insurance Company v. Colony Insurance Company, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether a general contractor constituted an additional insured on its subcontractor’s insurance policy. By way of brief background, Cincinnati Insurance Company (“Cincinnati”) commenced a declaratory judgment action (“DJ”) against Colony Insurance Company (“Colony”) alleging Colony is obligated to defend and indemnify Cincinnati’s named insured, Lobar, Inc. (“Lobar”) in connection with an underlying personal injury lawsuit commenced by Robert Sokoloff (“Sokoloff”). Sokoloff commenced the underlying lawsuit against Lobar alleging he sustained injuries when he slipped and fell on ice at a construction site controlled by Lobar. As the general contractor and/or construction manager, Sokoloff alleges Lobar was responsible for the dangerous condition created by the accumulation of ice that caused his fall. At the time of Sokoloff’s accident, Architectural Steel, Colony’s named insured, was a subcontractor to Lobar at the construction site. Lobar joined Architectural Steel to the underlying lawsuit. As Lobar and Architectural Steel entered a subcontract requiring Architectural steel to include Lobar as an additional insured for ongoing and completed operations, Cincinnati commenced the instant declaratory action. Applying well-established Pennsylvania case law, the Court determined Lobar was not an additional insured under the Colony Policy. Looking to the plain language of the policy, the court analyzed the Additional Insured – Owners, Lessees or Contractors – Scheduled Person or Organization endorsement, which modified the Who Is An Insured section to include additional insured coverage with respect to liability “caused, in whole or in part, by “[y]our actions or omissions” or “[t]he acts or omissions of those acting on your behalf; in the performance of your ongoing operations…”. As there was no Pennsylvania case law on point, the Court looked to federal court opinions decided under Pennsylvania law. Citing Dale Corporation v. Cumberland Mutual Fire Insurance Company, the Court determined Sokoloff was not an employee of Architectural Steel at the time of the accident. This, coupled with the fact that the only mention of Architectural Steel was in the joinder complaint filed by Lobar, the Court determined Lobar did not constitute additional insured. Further, although Cincinnati included a certificate of insurance naming Lobar as an additional insured on the Colony policy, the Court rejected that argument as certificates of liability insurance do not constitute insurance contracts and do not, on their own, confer additional insured status. The Court also noted Architectural Steel was not responsible for the snow and ice removal. The Court held the subcontract between Lobar and Architectural Steel did not require Architectural Steel to remove snow and ice from the accident site. In doing so, the Court reasoned there is no basis to find Sokoloff’s injuries were “caused in whole or in part of” by Architectural Steel as required to confer coverage to Lobar under the Colony policy. This ruling is significant because the Court looked beyond the four corners of the complaint to consider extrinsic evidence, such as the deposition testimony from the Underlying action. Ultimately, the Court denied Cincinnati’s motion for summary judgment and ruled in favor of Colony, therefore holding Lobar was not an additional insured under the Colony policy. This case is significant as it reaffirms the principle set forth in Dale that a third party complaint cannot be used to bolster allegations in the original complaint to support coverage as doing so would violate the rule that “the obligation of a casualty insurance company to defend an action against the insured is to be determined solely by the allegations of the complaint in the action." Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Secures Favorable Outcome as Result of Chester County, PA Trial September 7, 2012 < Back Share to: Philadelphia, PA In the case of Modesta Ciarlone, et al. v. 271, L.P. et al., Modesta Ciarlone was heading to the Planet Fitness gym in Malvern, PA when she slipped and fell on black ice. As a result of her fall, she claimed she underwent three surgeries to her left hip – including a hip replacement. In her lawsuit, Ciarlone named the property owner, the gym and our client, the snow and ice contractor. The pre-trial demand on the case was $500,000. WCM partner Bob Cosgrove and associate Remy Cahn tried the case before the Honorable William Mahon, Pennsylvania Court of Common Pleas, Chester County. After a four day trial and just before the jury got the case, the case settled for $250,000 or half of the plaintiff’s pre-trial bottom line demand. Previous Next Contact

News NY's First Department Addresses Distributor's Liability In Strict Products Action June 26, 2009 < Back Share to: In Fernandez v. Riverdale Terrace, et. al, the First Department dealt with the liability of distributors in strict products liability cases. In Fernandez, the plaintiff sustained injuries while cleaning a defective building trash compactor. The general contractor had purchased the compactor from subcontractor Action, who pursuant to the sale, was obligated to install the compactor. Action chose the make and model of the subject compactor, purchased it directly from an entity related to the manufacturer at a "distributor" price, and then subcontracted the installation of the compactor to that entity. In affirming the lower court’s denial of Action’s motion for summary judgment, the First Department reaffirmed that a party who sustains an injury from a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury. Consequently, a distributor of a defective product is subject to strict liability, regardless of whether they merely took an order or shipped a product, and never actually inspected, controlled, installed or serviced the product. Since Action failed to submit evidence to establish that it was not a distributor, and only asserted that it did not design, manufacture, install or maintain the compactor, its motion was denied. The court’s decision implied that Action actually stepped into the shoes of the distributor. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05167.htm Previous Next Contact

News Duty To Defend Extinguished With Tendering Of Policy Limits December 28, 2016 < Back Share to: The Superior Court of New Jersey recently addressed policy exhaustion and an insurer’s obligation to defend its insured. In National Surety Corp. v. First Specialty Insurance Corp., the Superior Court ruled that an insurer may exhaust its policy to settle claims, even if that settlement did not end all claims. The court also ruled that once the settlement was approved and the policy limits were exhausted, the insurer was no longer obligated to provide a defense under the policy in connection with any outstanding claims. In brief, the National Surety matter arose out of an underlying lawsuit commenced against, among others, Universal Protection Services, LLC (“UPS”) and Taubman Centers, Inc. (“Taubman”). At all times relevant First Specialty Insurance Corp. (“FSIC”) insured UPS under a CGL policy. Additionally, Taubman qualified as an additional insured under UPS’s FSIC policy. As such, FSIC began defending UPS and Taubman in connection with the underlying lawsuit. Ultimately, FSIC entered into a partial settlement with the plaintiff to settle claims against UPS. Although, FSIC’s settlement with the plaintiff exhausted the FSIC policy limits, the settlement did not include a release of the plaintiff’s claims against Taubman. After exhaustion of the policy’s limits, it was FSIC’s position that, inter alia, its duty to defend any insured had ended. National Surety Corp. (“National”), Taubman’s excess insurer, subsequently commenced a declaratory judgment action against FSIC seeking, among other things, a declaration that FSIC still had a duty to defend Taubman against claims and pay for defense costs, regardless of the fact that the FSIC policy limits had been exhausted by FSIC’s settlement for UPS. Ultimately, the Superior Court concluded that FSIC’s exhaustion of its policy limits extinguished its obligation to defend Taubman. Thus, this case illustrates, under New Jersey law, the circumstances in which an insurer’s obligation to defend its insured may be extinguished, even though the insured still has claims pending against it. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News Court Rules The Fair Share Act Mandates Per Capita Division for Strict Liability (PA) February 28, 2020 < Back Share to: In 2014, Roverano brought an asbestos strict liability action against multiple defendants, claiming that his exposure to the defendants’ products (which contained asbestos) resulted in Roverano’s lung cancer. The trial court ruled in Roverano’s favor and, as applied to the Fair Share Act, held that the exposure from each respective defendants’ product was impossible to quantify, it would apportion liability on a per capita basis. In other words, there were six total defendants, so each defendant was responsible for 1/6th of the $5 million verdict. On appeal, the Superior Court reversed and held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors. The Pennsylvania Supreme Court reversed the appellate court’s finding, holding that per capita apportionment amongst strict liability defendants at fault was required by the Fair Share Act. Specifically, the “plain language is consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.” Utilizing a cannon of statutory construction, the Supreme Court held that the Fair Share Act did not specifically and unequivocally repeal or preempt existing common law with respect to strict liability. Furthermore, the PA Supreme Court held that “requiring a factfinder to allocate liability between joint tortfeasors in all cases, including strict liability cases, is impossible of execution in asbestos cases.” The Court then declared “the plain language of the Fair Share Act indicates the liability is apportioned equally among strictly liable joint tortfeasors” leaving little room for lower court to distinguish on this issue. Thanks to Matthew Care for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Filing false Insurance Claim Proves to be a Costly Mistake in New Jersey December 28, 2011 < Back Share to: In Carbo v. Allstate Property & Casualty, plaintiff filed a motor vehicle claim with Allstate claiming he was carjacked after returning from using a bathroom at a nearby restaurant. Plaintiff further claimed that he called 9-1-1, flagged down passing police officers and eventually found the car damaged five miles away. Allstate investigated the claim and after an examination under oath, disclaimed coverage on the basis that plaintiff made material misrepresentations and concealments, and that the evidence indicated that the vehicle had not been stolen as reported. Plaintiff filed suit seeking $15,000 in damages. Allstate answered and counterclaimed that plaintiff violated the New Jersey Fraud Prevention Act. After a three-day trial, the court found that plaintiff failed to file a stolen vehicle report, failed to identify the restaurant where he stopped to use the bathroom, and his cell phone records did not reflect any 9-1-1 calls at the time of the alleged theft. The court awarded judgment to Allstate of "no cause of action," and found that plaintiff violated the New Jersey Fraud Prevention act. The court also ordered plaintiff to pay $17,838,39 in attorney fees and costs to Allstate. http://www.judiciary.state.nj.us/opinions/a6281-09.pdf Thanks to Andrew Marra for his contribution to this post. Previous Next Contact

News Philadelphia Partners Win Summary Judgement in the EDPA In Construction Defect Coverage Case (PA) March 19, 2021 < Back Share to: In Estate Chimney & Fireplace, LLC v. Burlington Insurance Company, Philadelphia Partners, Robert J. Cosgrove and Colleen E. Hayes were awarded summary judgement. By way of background, the Insured had commenced a declaratory judgment action, in the EDPA, seeking defense and indemnification from The Burlington Ins. Co. for underlying lawsuits stemming from its allegedly defective work in performing inspections and replacing chase covers for numerous chimneys in multiple condo developments. Burlington had disclaimed coverage to its Insured based, inter alia, on the fact that the policy did not provide coverage for defective workmanship. Following cross-motions for summary judgment, regarding whether Burlington owed defense and indemnity to its Insured for the underlying lawsuits, in a 15 page opinion, the EDPA agreed with Burlington and held that Burlington did not owe defense or indemnity to its Insured. In its opinion, the court stated the determinative question presented was clear. If the claims of the underlying lawsuits arose from faulty workmanship that caused no personal injury or property damage to the property of a third-party, Burlington was entitled to a declaration of no coverage under its policies. In its analysis, the EDPA stated under Pennsylvania law, for an occurrence to trigger coverage under the policy, the underlying lawsuit must allege something besides faulty workmanship. This was true even if the allegations were couched in terms of negligence, breach of contract, or breach of warranty. The court continued that if an occurrence triggered coverage, then a question arose as to the scope of coverage. When faced with deciding the scope of coverage, the court stated, an important factor was whether the faulty workmanship damaged the Insured’s product or the project on which the Insured worked; damages to “other property completely distinct from and unconnected to the insured contract” may still be covered. However, third-party damage was insufficient – by itself – to trigger coverage in the absence of an occurrence, as defined by the policy. Applying this case law, the EDPA stated that ultimately, for coverage to exist, the Insured needed to be able to point to some unforeseeable, fortuitous event. It was not enough for the Insured to merely show that the condo owners alleged damage to property beyond the chimney caps upon which the Insured worked. If the Insured caused foreseeable damage through its alleged faulty workmanship, those damages would still fail to come within the scope of the policy because they were not alleged to have been caused by an occurrence, as defined by the policy. Thus, looking to the allegations in the underlying lawsuits, the court concluded that there was no coverage under the policy because the allegations in the underlying lawsuits were built upon nothing but faulty workmanship. Thus, the Insured was not entitled to defense or indemnity, and Burlington’s disclaimer was upheld. This opinion not only reinforces prior Pennsylvania cannon that insurance policies do not provide coverage for defective workmanship, but also holds that third-party damage, in the construction defect context, may not always be sufficient to trigger coverage under an insurance policy. Please contact Bob Cosgrove or Colleen Hayes with any questions Previous Next Contact