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News Oppose Everything -- or Face the Consequences (PA) October 18, 2019 < Back Share to: On October 11, 2019, the Superior Court of Pennsylvania affirmed an order denying John Mastrian’s Motion to Amend Caption and Correct Middle Initial and granted Marc A. Peoples’ Motion for Judgment on the Pleadings. On January 4, 2018, Mastrian filed a complaint against Marc A. Peoples by filing a praecipe for writ of summons and served Peoples’ wife, Susanna Peoples on January 5th, 2018. In March 2018, Mastrian filed a complaint and alleged that “Marc A. Peoples” was the owner and operator of a 2004 F150 Pickup Truck. Marc A. Peoples filed an Answer and New Matter, which contained a Notice to Plead. Peoples admitted to owning the vehicle but denied operating the vehicle at the time of the accident. The Answer stated the driver of the vehicle was “Marc W. Peoples”. Mastrian never filed a reply to the Answer and New Matter. In June 2018, Peoples filed a Motion for Judgment on the Pleadings, asserting that, because Mastrian failed to respond to the Answer and New Matter, he admitted the allegations contained therein. Peoples argued he was entitled to judgment on the pleadings because Mastrian admitted Peoples was not operating the vehicle at the time of the accident. Mastrian never filed a response to the Motion for Judgment on the Pleadings. In September 2018, Mastrian filed a Motion to Amend the Caption and Correct Middle Initial of Defendant. The trial court denied Mastrian’s Motion to Amend the Caption and granted People’s Motion for Judgment on the Pleadings. It concluded that by failing to file a response to Peoples’ Answer and New Matter, Mastrian admitted the factual averments contained in the Answer, including that Peoples was not operating the vehicle at the time of the accident. The Court also found that Mastrian was attempting to amend his caption to “add or substitute a distinct party,” which he could not do as the statute of limitations had expired. On appeal, the PA Superior Court agreed with the lower court ruling. The Court stated that Mastrian was in fact attempting to bring a new party into the lawsuit and that given the evidence available to him he should have been able to locate the correct Marc Peoples. Thus, the Court agreed that Mastrian’s Motion to Amend the Caption and Correct Middle Initial of Defendant should fail. Additionally, the Court agreed that, because Mastrian failed to reply to the Answer and New Matter, Mastrian admitted the factual averments in those pleadings. Therefore, Mastrian admitted that Peoples was not operating the vehicle at the time of the accident. Because of this fact, Mastrian could not state a negligence cause of action. Therefore, the Court affirmed the lower court’s granting of Peoples’ Motion for Judgment on the Pleadings. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News New York Court of Appeals Expands the Term “Immediate Family” May 28, 2021 < Back Share to: On February 18, 2021, the New York Court of Appeals expanded the term “immediate family” to include grandparents in claims for negligent infliction of emotional distress (NIED). The decision is the result of a heart-wrenching case involving the death of a 2-year old child. In Greene v. Esplanade Venture Partnership, 2021 WL 623832 (2021), the child and her grandmother were struck by pieces of a building façade that had broken and fallen off, resulting in the child’s death. A plaintiff can recover damages under a NIED claim when they are within a zone of danger and “threatened with bodily harm, in consequence of the defendant’s negligence […] flowing from the viewing of the death or serious physical injury of a member of [their] immediate family.” Id, citing Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843. In Greene, plaintiffs’ (decedent’s mother and grandmother) moved to amend their complaint to include the NIED claim. The Supreme Court granted plaintiffs’ motion in consideration of “specific recognition of the custody rights of grandparents with respect to their grandchildren.” On appeal, the Appellate Division denied plaintiffs’ motion, upon the application of Bovson, that “immediate family” applies only to spouses and children. Upon review of the certified question, the Court of Appeals declined to decide the limits of the term “immediate family,” but rather determined whether a grandparent/grandchild relationship comes within the limits of the term. Ultimately, the Court of Appeals concluded “a grandchild is within [their] understanding of what is meant by “immediate family.” That is, given the recognition by this Court and the legislature that the relationship of grandparent and grandchild enjoys “special status” among familiar relationships […] inclusion of grandparents in the common-law term “immediate family” under these circumstances is more than warranted.” Id. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Seinfeld Suit Over Hidden Vegetables, Not That There's Anything Wrong With That January 8, 2008 < Back Share to: Former publisher of "Eating Well" magazine, Missy Chase Lapine commenced a lawsuit against Jerry Seinfeld and his wife Jessica Seinfeld, accusing Mrs. Seinfeld of copying her children's diet cookbook and Mr. Seinfeld of defaming her on Late Night With David Letterman and E! News. http://www.nytimes.com/reuters/arts/entertainment-seinfeld-lawsuit.html?_r=1&oref=slogin Previous Next Contact

News Even NY Scaffold Law Has Its Limitations February 24, 2010 < Back Share to: New York’s Labor Law §240(1), commonly known as the Scaffold Law, imposes strict liability on building owners and general contractors for injuries sustained by workers caused by a falling object (or a falling worker), if that fall was due to failure to erect protective scaffolding, hoists, ladders, etc. The strict liability aspect of this statute makes it very difficult for owners and general contractors to avoid responsibility for injuries at worksites. Essentially, if a person is injured at a worksite, either by falling from an elevation or because something fell from an elevation onto them, failure to have properly secured that person or object triggers §240(1). In Garzon v. Metropolitan Transportation Authority, the First Department's decision demonstrates that the Scaffold Law has its limits. The plaintiff worker was injured when a caulk gun fell and somehow injured him after he had left it on a rung of the ladder. Plaintiff cited Labor Law §240(1), arguing that an improperly secured object fell, causing him the falling object caused personal injury. The Court granted defendants' motion for summary judgment as to Labor Law §240(1), as the plaintiff presented no evidence that a faulty ladder (or lack of a ladder) was the proximate cause of the injury. The Court also put the reins on the Scaffold Law to some extent, holding that the "falling" of this object was not within the prescribed application of the law. The Scaffold Law was drafted to mandate that when elevations are involved in worksites, proper steps should be taken to secure persons and objects from falling. The Court ruled that this injury was not related to the elevation of the caulk gun, which is the type of scenario to which the Scaffold Law should apply. Accordingly, the court held that just because the injury here happened to involve a ladder and a falling caulk gun should not automatically trigger strict liability under §240(1). Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01540.htm Previous Next Contact

News Stop-and-Go on the BQE- No Excuse for Rear-End Collision (NY) September 4, 2013 < Back Share to: In the context of a motor vehicle accident in NY, being struck in the rear entitles a plaintiff to summary judgment, absent a “non-negligent” explanation from the rear driver. In Sayyed v. Murray, the 2nd Department further defined what constitutes a non-negligent explanation. The plaintiff was operating a 2007 Lincoln, and was stopped in the left lane on the Kosciusko Bridge, which connects Queens with Brooklyn. Defendant Murray rear-ended his vehicle. The plaintiff’s vehicle was completely stopped at the time, and the defendant’s testimony that the plaintiff had stopped short, amid stop-and-go traffic, was insufficient to raise a triable issue of fact. Anyone who has ever taken the Brooklyn-Queens Expressway over the Kosciusko Bridge is well aware that, due to consistently poor traffic conditions, stopping for several seconds, usually several times, is practically guaranteed. While the Court elected not to make any snide BQE comments in its decision, it is not surprising that the defendant’s argument (i.e., stop-and-go traffic on the BQE was unforeseeable, ergo, plaintiff bears some liability) fell on deaf ears. Now, had the defendant argued that traffic had been running smoothly on the BQE at the time of the collision, his attorney could find him or herself before the ethics committee… for soliciting perjury! Special thanks to Brian Gibbons for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News Replacement Cost Policy Must Actually Provide Replacement Cost Coverage (PA) July 21, 2017 < Back Share to: In Kurach v. Truck Insurance Exchange, a Pennsylvania Court awarded summary judgment to a homeowners' policy holder who alleged that the replacement cost coverage policy was actually not replacement cost, as the terms of the policy allowed the insurance company to reduce the reimbursement by utilizing depreciation costs. Pennsylvania law defines replacement cost as the actual value of the property at the time of the loss, without deduction for depreciation or deterioration. But here, as the insured learned when he sought coverage for a water damage claim, the policy coverage did deduct for depreciation. The policy further excluded general contractor “overhead” in clear and unambiguous language and plaintiff also challenged the legality of this provision in a policy labeled and marketed as a“Replacement Cost Coverage” policy. The court held that a replacement cost coverage policy may not exclude general contractor overhead or profit, as that would run contrary to the definition under Pennsylvania law. Even though this exclusion was clearly written into the policy, the court stated that a policyholder paying a premium for replacement cost coverage cannot be reimbursed for less. The same rationale applied to the depreciation claim – because this policy was labeled as a replacement cost coverage plan the court took issue with the policy diminishing full reimbursement, regardless of the reason. Specifically, the court took issue with Truck Insurance purporting to provide a policy that provided replacement cost coverage but defined replacement cost coverage in a manner that provided far less coverage. Thanks to Matt Care for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Happy Holidays from Wade Clark Mulcahy December 22, 2022 < Back Share to: Another year in the books! 2022 saw in person litigation begin to come back in earnest (thank goodness), but looking forward, we won't be cancelling our Teams/Zoom accounts any time soon -- some degree of remote conferencing is certainly here to stay. WCM continues to enjoy growth, in large part due to the loyalty of our friends and clients within and without the United States. We look forward to our continued collaboration in 2023 and beyond. And a special thanks to the support staff at our WCM offices, who keep the WCM train on its tracks every day. Please accept our Holiday E-Card, and our best wishes for a a Happy and Healthy Holiday Season! Previous Next Contact

News NJ Appellate Division Upholds Summary Judgment for Property Owner (NJ) October 29, 2020 < Back Share to: The case of Rienzi v. Giacoman arose out of a trip and fall in front of Mr. Giacoman’s three-family building. Giacoman lived on the first floor of the building with his brothers and leased the other two apartments to tenants. He paid a monthly mortgage in addition to utilities and testified that the rent he collected barely covered his monthly expenses. The trial court granted Giacoman’s motion for summary judgment at the close of discovery. In New Jersey, owners of residential properties owe no duty to maintain abutting sidewalks, but commercial property owners do. The issue in this case was whether the property was residential or commercial. New Jersey courts have essentially held that if the owner profits from the property by collecting rent that exceeds carrying costs, the property will be deemed commercial. Specifically, there is a four part test employed by courts to determine whether the property is residential or commercial: (1) the nature of the ownership, including whether the property is owned for investment or business purposes; (2) the predominant use of the property, including the amount of space occupied by the owner on a steady or temporary basis, to determine whether the property is utilized in whole or in substantial part as a place of residence; (3) whether the property has the capacity to generate income, including a comparison between the carrying costs with the amount of rent charged to determine if the owner is realizing a profit; and (4) any other relevant factor when applying “commonly accepted definitions of ‘commercial’ and ‘residential’ property.” Applying this law to the facts in Rienzi¸ the appellate division was satisfied that the property was not “commercial” because Giacoman lived there and barely profited off the rent collected. Moreover, no commercial enterprises operated any business out of the property. Use of properties by their owners varies widely, and there are a lot of close calls when it comes to determining whether a property is “commercial” or “residential.” Here, the property was deemed “residential” even though the owner profited slightly from collecting rent – something to keep in mind for potential defenses. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Pizzeria's Paltry Proof Precludes Summary Judgment (NY) June 2, 2016 < Back Share to: In Costello v Pizzeria Uno of Albany, Inc., the Third Department recently explained how both plaintiff and defendant could survive their opponent’s post-discovery summary judgment motions through a minimal evidentiary showing. In 2011, plaintiff Barbara Costello went to lunch with two co-workers at the defendant’s pizzeria, and she fell and injured her foot. She brought suit against the defendant for failing to maintain the floor in a reasonably safe condition. At the close of discovery, plaintiffs moved for summary judgment on liability, and defendant cross-moved for summary judgment dismissing the complaint. The trial court granted defendant’s cross-motion and plaintiffs appealed. The Appellate Division, Third Department, reversed, because plaintiffs raised a triable issue of fact even though they were “unable, or perhaps unwilling to immediately ascertain the cause” of the fall. In plaintiff’s affidavit, she stated that the wooden floor was bowed, “and did not provide a proper walking surface.” Further, plaintiff produced two non-party witnesses, her co-workers, who confirmed that the floor appeared buckled, and that the unevenness of the floor made it feel like walking down a ramp. According to the Third Department, the trial court misplaced its focus on the defendant's claims that plaintiff’s unscientific evidence was insufficient to raise a triable issue of fact. Indeed, the defendants pointed to plaintiff’s affidavit, indicating that she merely “believe[d]” that the bowed floor caused her to fall. The Third Department noted that plaintiff’s use of “believe” was simply a figure of speech, and did not defeat her claim. Lastly, and perhaps most critically, defendant’s evidence was insufficient to remove all questions of fact. Even after the close of discovery, defendants never offered any “objective physical data, measurements, or an evaluation of the floor surface.” Instead, they relied on low quality photographs, and the statement of one restaurant manager who did not witness plaintiff’s fall. The defendants failed to produce any incident reports or any testimony from anyone who was actually present at the time of plaintiff’s injury. Because neither party presented enough evidence to “render other causes [of her fall] sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation, the court reversed the trial court’s order. The message here is that a motion for summary judgment on a premises liability case like this one needs to leave no stone unturned in demonstrating the absence of liability. We suspect a well written engineering inspection report would have prompted a different outcome. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Will Lloyd's Tell Jackson Concert Promoters to Beat It? August 9, 2009 < Back Share to: At the time of his June death, Michael Jackson was about to embark on a final comeback tour in London. As is typical for such high profile concerts, contingency risk insurance was procured through the London market. The Policy excluded from coverage "any loss directly or indirectly arising out of, contributed to, by or resulting from . . . the illegal possession or illicit taking of drugs and their effects." It appears that the Policy does not define the terms "illegal possession" or "illicit drugs." It has been widely reported that Michael Jackson's death resulted, in whole or in part, from his use of a cocktail of prescription medications. The questions Lloyd's will have to face are: (a) was Jackson lawfully in possession of the medications; and (b) was his use (i.e. taking of them) illicit? Some $18,000,000 in insurance coverage rests in the answers. One thing is for sure -- it's certain to be an insurance "Thriller." http://www.latimes.com/news/local/la-me-jackson-insurance7-2009aug07,0,5290158.story?track=rss Previous Next Contact

News Plaintiff Stuffed on Missed Slam Dunk (NY) June 22, 2018 < Back Share to: In Osmond v. Hofstra University, et. al, plaintiff was part of a slam dunk contest held at the summer basketball camp. She attempted a dunk and came down awkwardly and suffered a serious injury. Plaintiff sued for negligent supervision and defendants moved to dismiss under a theory of assumption of risk. The lower court denied the defendants’ motions and defendants appealed. The Second Department Appellate Court reversed and found that plaintiff assumed the risk by voluntarily participating in the dunk contest and an injury is possible when attempting to dunk a basketball. Under the doctrine of primary assumption of risk, “[i]f the risks[of a sporting activity are known by or perfectly obvious to a voluntary participant, he or she has consented to them and the defendant has discharged its duty of care by making the conditions as safe as they appear to be.” The decision was reversed and the defendants were granted summary judgment. Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Excluded or Not Covered? That is the Question December 8, 2010 < Back Share to: New York Insurance Law §3420(d)(2), which requires written notice of coverage denials “as soon as is reasonably possible,” has vexed the insurance industry. Courts have ruled that delays as short as 30 days violate the statute’s reasonableness standard. A failure to give timely notice results in a waiver of the potential coverage defense. But what happens if the occurrence giving rise to the claim is not covered at all under the policy form? Does late notice stymie the insurers ability to avoid a defense and indemnity obligation? Recently, the Second Circuit took up that issue in NGM Insurance Company v. Blakely Pumping, Inc., 593 F.3d 150 (2010). There, relying on the “auto” exclusion to a business owner’s policy, NGM disclaimed coverage to a company executive who crashed his pickup truck into plaintiff’s car. After publication of the disclaimer, the executive reminded NGM that the policy contained an endorsement extending coverage for the use of a “Hired Auto” or “Non-Owned Auto.” With that pushback, NGM issued a supplemental disclaimer, contending that the executive’s personal pickup was neither a “Hired Auto” nor a “Non-Owned Auto.” The trial court ruled that NGM had waived its right to disclaim coverage because, on the known facts, it had violated Insurance Law § 3420 (d)(2). But the Second Circuit, following Zappone v. Home Insurance Co., 55 N.Y.2d 131 (1982), determined that Insurance Law §3420(d)(2) applies only when the denial of liability is based upon an exclusion in the policy which, without the exclusion, would provide coverage. Then, the court determined that the definitions of “Hired Auto” and “Non-Owned Auto” did not qualify as exclusions, and thus held that NGM had not waived its right to assert that its policy did not cover the auto accident. The question of what constitutes an “exclusion” is often fact sensitive. But the critical distinction between an exclusion and an occurrence that is simply not covered must be kept in mind when facing the jeopardy of “late notice” in New York. If you would like more information about this decision, please contact Dennis Wade. http://caselaw.findlaw.com/us-2nd-circuit/1506043.html Previous Next Contact