Wade Clark Mulcahy LLP

News A Potential (and Rare) Loss for a New England Patriot February 6, 2019 < Back Share to: New England Patriots defensive end, Deatrich Wise, Jr., filed suit against Lloyd’s of London for breach of his policy, which was designed to protect him from any loss of value in his capacity as an up-and-coming professional football player. Wise is claiming he is owed $600,000 after missing time due to injuries sustained on the field. Lloyd ’s contends that Wise Jr. never missed any full games, therefore, he is not eligible for coverage. The basis for Wise’s claim is that due to the games he missed in his final season of college, as a result of hand and shoulder injuries, he signed a $3 million dollar contract with Patriots -- substantially less then he would have made if he had not been injured in his final season in college. Wise claims Lloyd’s is obligated to make up the difference between the $3 million and the $3.6 million trigger line in the policy. Lloyd’s moved for summary judgment claiming that Wise misinterpreted the policy to account for how many plays he missed in his final college season. Lloyd’s claims that the amount of plays Wise Jr. missed is of no moment as the policy is only triggered by missed games and Wise Jr. did not miss a single game in his final season in college. Wise Jr’s attorney stated that Wise missed 312 defensive plays during the season, a sum he asserted amounts to “5.2 games.” Lloyd’s policy requires that the insured “be unable to participate for at least 28 days and in three regular and/or postseason games” to be eligible for coverage. Therefore, Lloyd’s claims that Wise Jr. did not satisfy the requirements under the policy, therefore Lloyd’s did not breach the contract. The suit alleges that Wise Jr’s pre-season accolades projected him to be a first round draft pick and due to the injuries he dropped out of the first round to fourth round and lost a significant amount of money. We suspect Wise Jr. has an uphill battle to survive a motion to dismiss. Perhaps he can take solace in his championship ring for SB LIII. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Homeowner's Exception And Mixed Use May 26, 2010 < Back Share to: Generally, Labor Law Section 240(1) imposes absolute liability on homeowners and general contractors. The Legislature carved out an exception for owners of one-and two-family dwellings who are not in a position to realize, understand and insure against the responsibilities of absolute liability imposed by Labor Law Sections 240(1) and 241(6). The exception, however, does not apply to single-family residences that are used for commercial purposes In Chester Lenda v. Breeze Concrete Corp. the defendant homeowner moved for summary judgment seeking dismissal of the plaintiff's Labor Law 240(1) and 241(6) claims arguing that he was entitled to the protection of the homeowner's exception because he planned to use the residence for potential overflow for family guests during vacations. The lower court denied the motion and the Appellate Division, Second Department upheld the denial noting that the evidence showed that a caretaker, employed by the owner, lived in the residence rent free as part of his compensation for maintaining two of the owner's other properties. Thus, the court held that the owner’s use of the property was strictly commercial. In cases of mixed use, the court’s determination on whether the homeowner's exception applies is based on the site and purpose test. This test takes into account the intention of the homeowner at the time of the injury and not their hopes for the future. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04341.htm Previous Next Contact

News Threshold" motions still difficult to win in Second Department (NY) February 21, 2013 < Back Share to: The dreaded "90/180 day rule" is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff's injury is not "serious" enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident. Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants' doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs' doctors. In Calcano v. Rodriguez, a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant's doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident. The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury. Special thanks Brian Gibbons for his contributions to this post. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com . 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 Bound to Your Transcript: Careful What You Say in NY September 16, 2009 < Back Share to: The long standing rule that a party cannot submit a self-serving affidavit nor allege a new theory of liability for the first time in opposition to a summary judgment motion was recently upheld in Nicholas v. New York City Housing Authority. In Nicholas, the plaintiff testified that he slipped on a wet condition located on a staircase owned by the NYCHA. NYCHA moved for summary judgment on the basis that it did not have actual or constructive notice of the condition. In opposition to the motion, the plaintiff submitted an affidavit alleging for the first time that he fell on a defective/broken stair. The lower court denied NYCHA’s motion, but the First Department reversed and dismissed the complaint based on the fact that the plaintiff tailored his affidavit to avoid the consequences of his deposition testimony. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06463.htm Previous Next Contact

News What Is A Passageway Under NY Labor Law?” (NY) January 20, 2023 < Back Share to: When a plaintiff alleges a Labor Law 241(6) predicated upon a New York City Rules & Regulations code, the plaintiff must establish a prima facie case that the NYCRR is violated. For example, in Stewart v. Brookfield Off. Props. Inc., 2023 NY Slip Op 00226 (2d Dep’t January 18, 2023), the plaintiff allegedly fell at a construction site while installing a lighting fixture. Plaintiff subsequently commenced a lawsuit against the defendant and depositions were conducted. Plaintiff testified at his deposition that he stepped off of a ladder and immediately tripped on a raised portion of the concrete floor. Thereafter, defendants moved for summary judgment arguing that there was no labor law violation because the plaintiff’s injury did not occur on a passageway, which is a predicate to proving a violation. 12 NYCRR 23-1.7(e)(1), which requires owners and general contractors to keep all passageways free of obstructions which could cause tripping, is inapplicable because the site where the plaintiff allegedly tripped was not a passageway. Specifically, the Court stated, “In order to establish liability under Labor Law § 241(6), a plaintiff must "establish the violation of an Industrial Code provision which sets forth specific safety standards," and which "is applicable under the circumstances of the case.” The lower court held, and the second department recently affirmed, that the defendant’s established the plaintiff’s injury did not occur in a passageway and therefore, there was no NYCRR violation. Accordingly, summary judgment was granted to the defendant. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Evidence Required to Link Alleged Defect With Accident February 26, 2009 < Back Share to: In Bishop v. Marsh, plaintiff commenced an action in a trip and fall case to recover damages. The Supreme Court, Suffolk County granted a motion for summary judgment to the defense and plaintiff appealed. The Appellate Division Second Department affirmed the decision holding that while plaintiff testified that the lighting at the location of her fall was inadequate at the time of her fall, plaintiff failed to testify in her deposition or claim in her answer to summary judgment motion that she tripped because of the poor lighting. In essence, plaintiff neglected to match the cause with the effect and in doing so failed to raise a triable issue of fact. Thanks to Michael Monteith for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_01075.htm Previous Next Contact

News Three Strikes and You’re Out on Coverage: COVID-19 Business Interruption Claim Fails (PA) December 18, 2020 < Back Share to: Of course, COVID-19 and accompanying shutdown orders impact on business interruption claims are still among the most pressing issues facing the courts. In Toppers Salon & Health Spa Inc v Travelers Property Casualty Company of America, the Eastern District of Pennsylvania has provided one of the most definitive answers on the issue with its rejection of an insured’s business interruption claim. Plaintiff Toppers operates a chain of day spas in Pennsylvania, New Jersey, and Delaware, all of which have been affected by government mandated shutdown orders. Toppers’ insurance policy covers interruption to its business which includes business income coverage and civil authority coverage. The key provision in the policy here is that it covers loss “due to the necessary suspension of your ‘operations’ during the ‘period of restoration,’” if the suspension was “caused by direct physical loss of or damage to property at [the insured's] premises.” “The ‘Civil Authority’ provision covers loss of Business Income and extra expenses incurred due to damage to property other than property at the insured's premises, when as a result of ‘dangerous physical conditions,’ a civil authority's actions prohibit access to both the insured's premises and the area immediately surrounding the damaged property.” The Court held that neither of these provisions applied in this case deciding that being forced to close as a result of the shutdown orders was not a “physical loss.” The language the Court primarily focused on was the period for which the policy would reimburse a loss. The policy provided that this period ended on the “date when the property at the described premises should be repaired, rebuilt or replaced.” The Court opined that for this language to make sense, a physical loss must have occurred to be repaired, and the shutdown order did not meet this definition. The Court believed the policy language demonstrated the intent of the parties that any loss must be some sort of physical damage. The Civil Authority coverage did not apply because, similarly, a physical loss had not occurred to neighboring property. The Court also looked at the specific Virus Exclusion holding Plaintiff would also lose its claim for coverage because of its plain language as well. The Virus Exclusion applies to “loss or damage caused by or resulting from any virus ... that induces or is capable of inducing physical distress, illness or disease.” The Court held that, “The language is not ambiguous, and it applies to Covid-19, which is caused by a coronavirus that causes physical illness and distress.” The Court held that similar language was held to exclude coverage in South Dakota and California. This opinion is one of the strongest yet to deny coverage for businesses forced to close due to government shutdown orders during the COVID-19 pandemic. A clear Virus Exclusion is one way for insurance companies to be sure that they will not be required to cover for these types of losses, but this Court went further, holding that COVID-19 is not a physical loss that could be covered by a business interruption or civil authority coverage. While courts will still wrestle for the time being as to how exactly COVID-19 and insurance overlap, this Court strongly casted its vote in favor of the lack of coverage camp. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News The Saints Are 13-0 in Football. Will the Head Coach Go 1-0 in Chinese Drywall Litigation? December 14, 2009 < Back Share to: The New Orleans Saints are on a roll. The team is tied for the best record in US football. But does strength on the gridiron equate to strength in the courtroom? We're about to find out. A major Chinese drywall class action -- the complaint is 590 pages long -- has just been commenced in New Orleans, against, among others, Knauf Plasterboard Tainjin Co. Ltd. The lead plaintiff in the class action is Sean Payton, the head coach of the New Orleans Saints. http://www.nola.com/business/index.ssf/2009/12/saints_coach_sean_payton_to_be.html Previous Next Contact

News Employee Exclusion Ambiguous? Sometimes. (NY) February 21, 2013 < Back Share to: In Essex Ins. Co. v. George E. Vickers, Jr. Enterprises Inc., the insurer sought a declaration that it was not obligated to defend or indemnify its insured or the owner of a construction project for an incident involving one of a subcontractor's employees. The incident involved Miguel Pinon, an employee of Paul Michael Contracting, which was hired by George Vickers, the insured general contractor. On June 25, 2005, Pinon, while on his lunch break at a beach not far from the construction site, dove into the water and broke his neck. The Workers' Compensation Board denied Pinon benefits on the basis that the accident did not occur in the course of his employment. After Pinon sued, Vickers and Lynn sought indemnification and defense from Essex, who disclaimed on the basis that even though Pinon was not injured during the course of his employment, the employee exclusion still barred coverage. In opposition to plaintiff's motion for summary judgment, Vickers and Lynn argued that the word "employee" in this context was ambiguous because the policy did not define "employee" and that it was open to interpretation as to whether the parties intended for a worker acting outside the scope of his employment to be considered an "employee" within the meaning of the employee exclusion. The Supreme Court agreed with the insured and proerty owner and denied the insurer's motion. The Second Department affirmed. Another issue that arose during the case was whether the property owner had been named an additional insured on Vickers' policy. Vickers purchased a commercial liability policy from plaintiff ending March 25, 2004. Lynn was named as an additional insured on that policy. However, the renewal quotation for the policy beginning on March 26, 2004, stated "no additional insureds." In the insurance application to renew the policy for 2005 to 2006, Vickers listed Lynn as an additional insured. However, the renewal quotation for that coverage period stated that the quote included "NO AI's." The property owner moved for reform of the policy to add them as additional insureds based on mutual mistake. They argued that Vickers included them as additional insureds on the application for 2005-2006, that plaintiff did not refuse the request, and that plaintiff had previously granted Vickers' request to add Lynn as additional insureds on the 2003-2004 policy. Once again, the Supreme Court and Second Department agreed with Lynn, the property owner, and granted their request for reformation. Special thanks to Gabriel E. Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Does COVID-19 Mean Quarantine? (PA) June 10, 2021 < Back Share to: In a recent order from the Eastern District of Pennsylvania, the court addressed the first of what is sure to be many cases stemming from cancellations of vacations and other travel due to COVID-19. This case was a putative class action filed on behalf of individuals who cancelled travel due to the coronavirus pandemic and whose claims for travel insurance claims were later denied by the defendant-insurer. The defendant-insurer moved to dismiss, and the court subsequently denied the motion on all grounds save for one breach of contract claim. Ultimately, the court decided that there were too many issues of fact to decide the case so prematurely, one such issue being the definition of the word “quarantine”. The plaintiff at issue had purchased a travel insurance policy from the defendant for a European adventure set to take place in late March 2020. On March 7, the plaintiff cancelled the trip due to COVID-19 and filed a claim with the defendant on March 12, which was denied. The plaintiff argued the denial was incorrect, as the policy language guaranteed up to full reimbursement for any covered reason, one of which was “being…quarantined.” Quarantine was not defined in the policy. The defendant-insurer argued that the term “quarantine,” based on the common meaning of the term, by no means applied to the large scale stay at home orders that were enacted to stop the spread of COVID-19. However, the court, recognizing the long-standing principle that an undefined, ambiguous term must be construed in favor of the insured, held there was still a question of fact to be addressed – particularly when considering this case dealt with lockdown procedures in the plaintiffs’ home states and cities as well as in all the destinations through and to which they were traveling. Going forward, it will be interesting to keep an eye on this action, as the plaintiffs all had different situations leading up to their travel claims, however, the one common denominator was COVID-19. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

Simone N. Henderson Associate Pennsylvania shenderson@wcmlaw.com 267 723 2689 Professional Experience Prior to joining WCM, Simone was a judicial law clerk for the Honorable Sierra Thomas Street in the Civil Division of the Philadelphia Court of Common Pleas. As a law clerk in the motions program, she worked on cases in multiple areas of law and was part of several high-profile preliminary injunction hearings. During law school, Simone was a staff editor for Temple Law Review. Simone participated in a work-study with Philadelphia Volunteer Lawyers for the Arts, connecting artists in need of legal assistance with volunteer attorneys. She also participated in Temple’s study abroad programs in Rome and Tokyo. In addition to studying at Temple’s international campuses, she participated in an international human rights internship in Rome and a legal tech internship in Tokyo. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Temple University Beasley School of Law, Magna cum laude B.A./M.A. in Forensic Psychology, Macaulay Honors College at John Jay College of Criminal Justice (CUNY), Summa cum laude Bar Admissions Pennsylvania