News This and That: By Dennis Wade January 12, 2017 < Back Share to: Justice Antonin Scalia’s chair is still draped in black, a consequence of bare-knuckle 2016 politics. But, politics aside—and by any measure—Justice Scalia won the admiration, if not the votes, of his colleagues on the bench. Sparkling intelligence, wit, and unfailing courtesy (even when castigating the majority’s reasoning) marked his tenure. As time unfolds and memories of the man himself fade, Justice Scalia’s legacy will rest with his pen, with his sterling and often startling prose. I took to reading SCOTUS decisions by beginning with Scalia’s dissent. Because it was fun. In 2008, together with co-author Bryan Garner, Justice Scalia wrote: Making Your Case: The Art of Persuading Judges. The spine is split on my copy, many pages are dog-eared and many passages are highlighted or underscored. I invite all to read it. And here is but one small example of why: Banish Jargon, hackneyed expressions, and needless Latin …Hackneyed expressions are verbal formulations that were wonderfully vivid when first used, but whose vividness, through overuse, no longer pleases but bores. Such-and-such a case “and its progeny” is a good example. Or the assertion that an argument is “fatally flawed” or “flies in the face of” something; that your adversary is “painting with a broad brush”; that a claim isn’t “viable”; that the “parameters” of a rule aren’t settled; or that something is true “beyond peradventure of doubt.” The test is: have you seen the vivid phrase a lot? If so, odds are it’s a cliché. The book is filled with terrific and common sense advice, all aimed at persuading a judge that your client ought to win. But even those outside the legal profession will benefit from Justice Scalia’s tips on persuasion and how judges really think. My copy doesn’t leave the confines of WCM—but it’s on Kindle for $26.83. And that’s it for This and That. If you have any comments about this post, please call or email Dennis Wade. Previous Next Contact

News WCM Awarded Summary Judgment in Westchester County Premises Case. August 13, 2012 < Back Share to: New York, NY Associate Lora H. Gleicher was awarded summary judgment in a Westchester County, NY premises liability case. In the case of Salvati v. Marriott, the plaintiff allegedly sustained injuries when an umbrella struck her head while dining outdoors at a Marriott located in Arizona. Plaintiff claimed that Marriott negligently permitted an umbrella to be left open during unsafe weather conditions, failed to secure the umbrella to prevent it from becoming hazardous and failed to warn plaintiff about the alleged hazardous condition. At the close of discovery, we moved for summary judgment based on the fact that Marriott did not create or have notice – constructive or actual – of the allegedly hazardous condition that caused the umbrella to strike plaintiff’s head. Namely, Marriott was not aware of the allegedly hazardous wind condition that caused the subject umbrella to strike plaintiff. The trial court agreed with our analysis and thus dismissed the plaintiff’s complaint, nothing that Marriott was not responsible for the unpredictably of the weather. Previous Next Contact

News PA's Highest Court Issues Major Ruling on Asbestos Causation. August 6, 2010 < Back Share to: Asbestos trials have diminished over the years as courts have applied more stringent causation tests. That might all be about to change. In the case of [i]Summers v. Certainteed Corporation, et al.[i], the Pennsylvania Supreme Court was presented with the question of whether a plaintiff was prevented in "pursuing asbestos-related causes of action...whenever breathlessness or like ailments may be attributable to both the asbestos and non-asbestors related disease(s) from which a plaintiff suffers." Overturning precedent, the Supreme Court ruled, that, so long as a plaintiff's expert could attribute "a plaintiff's maladies to both an asbestos and non-asbestors related disease", the case must survive summary judgment and thereafter be presented to a jury for a factual determination. Asbestos trials might yet again clog the state's trial calendars. http://pdf.wcmlaw.com/pdf/Summers.pdf http://pdf.wcmlaw.com/pdf/SummersCo.pdf http://pdf.wcmlaw.com/pdf/SummersDO.pdf If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Factual Pleadings In Complaint Will Not Be Dismissed Without Discovery Regarding Liability Due To Ownership Of Vehicle September 22, 2023 < Back Share to: In Sharon Holmquist v. Harry Orphanides and Rallye BMW, 2023 NY Slip Op 04660 (2d Dept. 2023), plaintiff suffered personal injuries arising from a motor vehicle accident involving a vehicle that was owned by Rallye BMW and leased to Orphanides. Defendant Rallye BMW filed a motion to dismiss under CPLR 3211(a)(1) and (7) arguing that they could not be held liable under the Graves Amendment 49 USC § 30106. Briefly, under the Graves Amendment, “the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if: (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner” (Harewood v Zip Car, 189 AD3d 1192, 1193 [emphasis added]; see 49 USC § 30106[a]). Here, the Court determined the Complaint had a cause of action for negligent maintenance against Rallye BMW and Rallye failed to offer evidence that the allegation was not a fact. Any arguments that Rallye BMW’s vehicle was in good working order would be an issue to be discerned on discovery. The liberal pleadings precedent dictats a trial court will only dismiss all or part of a Compliant if there is no have no cause of action at law. A Complaint that states facts and allegations arising from those facts as stated, will likely survive any arguments for dismissal under CPLR 3211. Thanks to Ray Gonzalez for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Injured Landscaper Settles for Philadelphia Record $26.55 Million June 23, 2016 < Back Share to: In the largest single personal injury settlement from the Philadelphia Court of Common Pleas, plaintiff David Williams recently resolved his lawsuit for $26.55 million dollars. Williams, a landscaper for TruGreen lawn care, was ejected from a TruGreen-owned truck after crashing in a rainstorm. Williams suffered a fractured spinal cord, resulting in paralysis. Plaintiff sued TruGreen, his employer who owned the truck involved in the accident; ServiceMaster, TruGreen’s parent company; and vehicle maintenance companies Dickinson Fleet Services and Brooks Auto Repair. Williams claimed that TruGreen had a duty to ensure its work vehicles were in safe working condition, yet failed to do so. Williams also argued that Dickinson Fleet Services was at fault as it failed to take the truck out of service when inspecting it three days prior to the accident. Although a Dickinson field technician found that the right rear tire had insufficient tread and needed to be replaced, he neglected to "sticker" the truck to indicate that it should be taken out of service. Williams also claimed that Brooks Auto repair failed to replace or rotate the back tires and just replaced the front tires. TruGreen contended that Dickinson was at blame as it failed to provide adequate notice about the tire treads and further argued that Williams was contributorily negligent because he drove too fast for the road conditions. Dickinson argued it did not have the authority to remove the truck from service and fulfilled the extent of its obligation. Ultimately, the parties agreed that ServiceMaster and TruGreen would contribute $16.75 million to settlement, while Dickinson would contribute $9.5 million and Brooks Auto Repair $300,000. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Do Insureds Need to Execute A Sign Down Form Each Time a Vehicle is Added to the Policy? (PA) July 3, 2019 < Back Share to: Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insurer must provide uninsured (“UM”) and underinsured (“UIM”) motorist coverage equal to the bodily injury liability limits under an automobile insurance policy. However, under Pennsylvania law, where an insured executes a valid sign down form, the UM/UIM coverage limits are reduced. Recently, in Alcedo v. State Farm, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether an automobile insurer must obtain a new writing “signing down” UM and UIM coverage from bodily injury liability limits under § 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL) when an insured adds another vehicle to the policy. In 2005, State Farm issued an automobile insurance policy to John Alcedo (“Mr. Alcedo”), which covered a Nissan Pathfinder and a Nissan Maxima. The policy provided UM/UIM bodily injury liability limits of $100,000 per person and $300,000 per accident. However, at the time Mr. Alcedo was applying for coverage, Mr. Alcedo signed and executed a sign down form reducing the UM/UIM coverage limits to $25,000 per person and $50,000 per accident. Simultaneously, Mr. Alcedo signed a § 1791 notice, which indicated he acknowledged that higher UM/UIM limits were available under the policy. Some years later, Mr. Alcedo added and removed vehicles to the policy. Although he added new vehicles to the policy, Mr. Alcedo did not execute any additional sign down forms. The coverage dispute arose when Susan Alcedo (“Mrs. Alcedo”) sustained bodily injury while driving a covered vehicle. When State Farm refused to pay the UIM benefits in the amount of the policy’s stacked bodily injury limits of $400,000, Mr. and Mrs. Alcedo commenced the instant action against State Farm. Subsequently, State Farm filed a motion for judgment on the pleadings. In its motion, State Farm asserted the available UM/UIM coverage for Mrs. Alcedo was the lower coverage limit as set forth in the sign down waiver signed by Mr. Alcedo in 2005 – therefore, arguing State Farm was not required to have Mr. Alcedo execute additional sign down forms when adding vehicles to the policy. In opposition, Mr. and Mrs. Alcedo argued that, since a sign down form was not executed contemporaneously with the newly added vehicle, the policy provided coverage up to the maximum UM/UIM limits of $100,00 per person and $300,00 per accident. To support their argument, Mr. and Mrs. Alcedo relied on cases discussing waiver of stacking coverage under § 1738. After considering the alleged facts pled in the complaint and the documents attached as exhibits per Rule 12(c) of the Federal Rules of Civil Procedure, the Court noted a sign down of UM/UIM benefits remains in effect unless it is affirmatively changed by the insured. Although the Court’s reliance on Pennsylvania law was limited because the Supreme Court of Pennsylvania had not addressed the specific issue, the Court in Alcedo determined a § 1734 “sign down” survives the addition of vehicles to the policy. In other words, the Court held State Farm fulfilled its obligations under the MVFRL by (1) offering UM/UIM coverage up to the amount of the bodily injury liability limits; and (2) obtaining confirmation in writing from the insured. Further, the Court determined Mr. and Mrs. Alcedo’s reliance on the waiver of stacking under § 1738 was inapplicable to the issue at bar. In sum, this ruling serves as a reminder for insurers to provide clear notice at the time a policy is issued, and how, in the context of UM/UIM coverage disputes, affirmative steps are needed to alter coverage limits. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News New Jersey Supreme Court Allows Testimony Of Biomechanical Expert In Low Impact Crash Case. March 11, 2008 < Back Share to: In Hisenaj v. Kuehner, the Supreme Court found that expert testimony based on data from low impact crashes with human test subjects was properly admitted in a fender bender accident that resulted in a low jury verdict. The case was watched closely by both the plaintiff and defense bars and drew amicus curiae appearances from the Association of Trial Lawyers of America-New Jersey (ATLA) and the New Jersey Defense Association. http://www.judiciary.state.nj.us/opinions/supreme/A-86-06%20Hisenaj%20v%20Kuehner.pdf Previous Next Contact

News When is a Defect Considered “Trivial”? August 23, 2024 < Back Share to: When somebody becomes injured due to a defect that is present, have you ever wondered if that very defect was even substantial enough to actually cause injury? If there is a defect that seems so minimal and the claimant claims that their injury was related to it, can they still prevail despite the minor nature? Well, there is a standard that is used to determine if a defect is “trivial”, or in other words, not significant enough to create liability. Just recently, in Angelo Tamburo v. Long Island University , bearing Index No. 611006/20, the Supreme Court, Appellate Division reversed an order from the Supreme Court in Nassau County, in which summary judgment was granted. The plaintiff commenced this action after slipping and falling on the top step of a stairway at a property owned by the defendant. Plaintiff argues that the slope of the step is not in compliance with NYS Building Codes. Defendant filed a Motion for Summary Judgement, arguing that an expert inspected the staircase, and the staircase was not only compliant with the applicable building codes and did not constitute a dangerous or defective condition, but any defect that did exist was “trivial”. Generally, when determining whether a dangerous or defective condition created liability, this is very fact specific and usually a question for the jury. However, injuries resulting from trivial defects are not actionable. A defect is trivial if the defect is physically insignificant and does not increase the risk it poses. The defendant was able to meet this standard. The Supreme Court Nassau County granted this motion as a result. On appeal, the Supreme Court, Appellate Division reversed the order. The court ruled that the plaintiff did in fact raise triable issues of fact as to whether the slope of the step constituted a dangerous or defective condition. The plaintiff submitted a report of an expert, who came to the determination that the slope of the step was six to eight times greater than permitted by NYS Building Code. The court noted that the evidence that the defense relied upon failed to establish that the defendant didn’t create the condition or have actual or constructive notice. Tamburo v. Long Island University .pdf Download PDF • 758KB Previous Next Corey Stein Corey Stein Associate CStein@wcmlaw.com Contact

News 9/11 $575,000,000 Settlement Rejected by Court. March 20, 2010 < Back Share to: In a stunning development, Judge Alvin Hellerstein has rejected the $575,000,000 settlement reached by the parties. Judge Hellerstein ruled that the settlement was "not enough." It's back to the drawing board in MC 100. http://www.1010wins.com/-This-Settlement-Is-Not-Enough-/6615869 Previous Next Contact

News No Homeowner’s Coverage for Injury Claim by Resident Living with The Insured November 3, 2023 < Back Share to: Homeowner’s insurance policies typically provide first-party coverage for property damage as well as third-party liability coverage for injuries which occur on the insured property. The liability coverage is subject to various exclusions, one of which precludes coverage for dependents or others who live with the insured. In Iaeck v. Barnaba , the New Jersey Appellate Division recently addressed the applicability of this exclusion in a case involving an injury claim by a woman who had lived in a condominium with the insured owner. The resident sued the owner after a fall down a flight of stairs, and the owner sought coverage under her homeowner’s insurance policy. The plaintiff was not related to the owner but had lived with her for many years under a verbal lease and paid rent. The two shared certain common spaces in the condo. The policy provided personal liability coverage for the owner but contained a “Covered person’s or dependent’s personal injury” exclusion which precluded coverage for damages for personal injury “for which you or a family member can be held legally liable in any way, to a spouse, a family member, a person who lives with you, or a person named in the Coverage Summary.” The insurer denied coverage based on this exclusion and plaintiff amended her complaint to assert a direct claim against the insurer for coverage. Plaintiff obtained a large default judgment against the owner and the trial court ultimately granted summary judgment to the insurer, finding that it did not have a duty to defend or indemnify the owner for plaintiff’s injury claims. The Appellate Division affirmed, finding that the “Covered person’s or dependent’s personal injury” exclusion applied to preclude coverage. In so holding, the Court echoed the principle that if the plain language of the policy is unambiguous, the court is not to engage in a strained construction to support the imposition of liability or write a better policy for the insured than the one purchased. The Court found that the exclusion at issue was “plain and unambiguous” and applied in the case because plaintiff was living with Barnaba at the time of the accident. The Court also noted that the exclusion was not contrary to public policy because “it is reasonable for an insurer to exclude coverage for liability for personal injuries to people who live with the covered person.” The Appellate Division also rejected plaintiff’s argument that the exclusion should be read to apply only to individuals who are part of the covered person’s household or who have a romantic or familial relationship with the covered person. Such a reading was inconsistent with the plain language of the exclusion which clearly stated that there was no coverage for injuries to “a person who lives with” the covered person. The Iaeck decision stands out in that despite creative and result-oriented arguments by the party seeking coverage, the Court applied the facts and law to reach the correct decision based on the language of the policy. The facts clearly supported an application of the exclusion and the Court’s decision was consistent with New Jersey’s longstanding coverage rules. Iaeck v. Barnaba .pdf Download PDF • 208KB Previous Next Contact

News Storm in Progress? Snow Removal Contractor Has Reasonable Time to Respond in NY December 28, 2012 < Back Share to: In the case of Espinal v. Melville Snow Contractors, 98 NY2d 136, 142-143, the New York State Court of Appeals, held that a snow removal contractor does not owe a duty of care to third-parties. However, in the years since the holding in Espinal, the trial courts have made it more difficult for a snow removal contractor to win summary judgement. In the case of Eugenia Smilowitz v. GCA Services Group, the Supreme Court, Queens County got it right. The plaintiff, an employee of St. Johns slipped and fell on snow and ice on the St. Johns campus. The defendant, GCA was responsible for maintaining the grounds, including snow removal. GCA moved for summary judgment, arguing that under the "storm and progress rule" a snow removal contractor cannot be held liable for injuries sustained as a result of slippery conditions that occur during an ongoing storm, or for a reasonable time thereafter. In opposition, the plaintiff tendered no evidence that GCA fell into any of the Espinal exceptions. More specifically. the plaintiff failed to prove that GCA created or exacerbated the icy condition that she slipped on. The Appellate Division, Second Department upheld the lower court's decision, holding that merely undertaking snow removal duties, as required by contract, cannot be said to have created or exacerbated a dangerous condition. Thanks to Ed Lomena for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Failure to Establish a Causal Link Between the Alleged Injury and Defendant’s Actions Proves Fatal to Plaintiff’s Negligence Action (PA) December 23, 2019 < Back Share to: In Jones v. Schindler Elevator Co., the plaintiff alleged that while shopping at Bloomingdales, she suffered serious injuries as the result of a malfunctioning “up” escalator between the second and third floors of the store. The plaintiff alleged that while riding the escalator, the hem of her pant leg became caught between the steps of the escalator, subsequently causing the her to fall. The plaintiff brought suit against the Schindler Elevator Corporation and Bloomingdales, alleging claims for strict liability and negligent design and/or maintenance. Thereafter, the defendants moved for summary judgment, alleging the plaintiff failed to satisfy her prima facie burden. The only support the plaintiff put forward to support her contention that the escalator malfunctioned and caused the incident were various maintenance records for Bloomingdales’ escalator. The plaintiff failed to put forward any other evidence to link the escalator’s alleged mis-function to the cause of her fall. The Court noted that the plaintiff did not claim that the operation of the escalator was out of the ordinary that day, or that the escalator was functioning in an erratic manner (e.g., excessive speed, shaking, lurching, etc.). Furthermore, the plaintiff failed to establish an explanation for how her pant leg became trapped in the escalator in the first place. Therefore, the Court held the plaintiff failed to make her showing of the defendants’ negligence. The Court next considered whether the plaintiff’s burden could be satisfied based on the doctrine of Res Ipsa Loquitur. Pursuant to the doctrine of Res Ipsa Loquitur, negligence can be inferred when the incident generally does not occur in the absence of negligence. The Court held that the plaintiff failed to establish that the incident at bar generally would not occur in the absence of negligence. Moreover, given that the plaintiff failed to provide sufficient detail for how her pant leg became stuck in the escalator, the Court could not infer that the defendants’ negligence caused the plaintiff’s fall. As such, the plaintiff’s claims failed under the doctrine of Res Ipsa Loquitur. Given that the plaintiff failed to meet her burden, the Court ruled in favor of the defendants’ motion for summary judgment. This case demonstrates that a plaintiff’s failure to allege a causal link between the sustained harm and the defendants’ alleged acts or omissions may prove sufficient to prevail in a dispositive motion dismissing the plaintiff’s claims. Thanks to Rachel Thompson for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact