News Toddler On Tricycle At Fault For Car Collision (NY) July 7, 2023 < Back Share to: It’s important to learn the rules of the road as early as you can; this apparently includes kids on bikes. Specifically, this case warns that if you do not teach toddlers the rules of the road you might be at fault for being hit by a car. In a recent decision in the case A.B. v. Stephanie A. Waring, Index No. 715613/18, the Second Department ruled that the defendants were not liable for striking the infant Plaintiff with the owning defendant’s car. This was due to the fact that the driving defendant had the right of way when the accident occurred and the infant Plaintiff, who was riding her bike, came out onto the road from in-front of a parked car while the driving defendant was heading in that direction. The defendant had minimal time to respond. The Second Department cited to Vehicle and Traffic Law sections 1143, which requires drivers to yield the right of way to all approaching vehicles on a road they are attempting to enter or cross, and 1231, which notes that anyone riding a bicycle is required to follow these rules as if they were driving a car. While this makes no reference to negligence per se, this nonetheless appears to be a case where negligence per se would potentially apply as the infant Plaintiff violated two state-level statutes, even though they are likely not yet old enough to drive on their own. The moral of this story: if you are thinking of getting your child a tricycle for the holidays this year, you MIGHT want to include a copy of the VTL with it… assuming the child can read. Thanks to Patrick Argento for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News NJ Supreme Court Rejects Harassment Suit: "Just Say No" August 14, 2008 < Back Share to: In a rare victory for the defense in an action for sexual harassment, the New Jersey Supreme Court affirmed the dismissal of a case brought by two female students against the Princton Theological Seminary. The students alleged that they were harassed by an older alumnus of and contributor to the Seminary who resided in close proximity to the campus. In ruling against the students, the Supreme Court emphasized that the pair failed to demonstrate that they were victims of "severe and pervasive" harassing conduct. Further, in evaluating whether this burden was met, it stressed that the offending conduct should be measured against "a reasonable person" standard, not the subjective effect of the actions on a given plaintiff. But the most encouraging part of the opinon was the court's reliance on good, old fashioned common sense. With no legal citation given or required, the court noted: "it is important in that regard that neither of these women used her own authority to tell Miller to 'go away.' They cannot rely on the prospect of a money damages award from the Seminary to replace their own obligation to simply tell Miller that they had no interest in him romantically or even as a casual acquaintance." Well said. http://lawlibrary.rutgers.edu/decisions/supreme/a-64-07.opn.html Previous Next Contact

News No Fault Abuse Reexamined December 2, 2011 < Back Share to: The Court of Appeals recently addressed no fault abuse in reassessing three cases that dealt with allegations of “serious injuries” resulting from motor vehicle accidents. In Perl v. Meher and Adler v. Bayer, the Court reversed the Appellate Division, concluding that plaintiffs put forth evidence that was legally sufficient to make out their claims. In both instances, the plaintiffs had been initially examined by a physician who did not make contemporaneous quantitative measurements. Several years later, in preparation for trial, the physician made quantitative measurements regarding the plaintiffs’ limitation. The Court held that a physician who initially treats a patient need not make contemporaneous quantitative measurements since their primary concern is treating the patient. Taking the measurements years later - in preparation for trial - was deemed sufficient to meet the serious injury requirement. This decision clearly damages defendants’ abilities to obtain threshold dismissals, as it permits plaintiffs the opportunity to establish the existence of a serious injury years after their accident, in anticipation of trial, as well as in opposition to a defendant’s motion for summary judgment. On a positive note for defendants, the Court affirmed the dismissal of Travis v. Batchi, holding that a physician’s conclusion that a plaintiff has a “mild partial permanent disability,” absent a description of the disability, is insufficient to meet the serious injury standard. http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/206-208opn11.pdf Previous Next Contact

News Personal Injury Action Leads to Wrongful Death Action (NY) June 21, 2019 < Back Share to: In Halloran v Kiri, plaintiff-decedent, who was involved in a motor vehicle accident in 2007 injuring her left shoulder, underwent a number of surgeries to treat the injury. Over the course of the 5 years leading up to her death, plaintiff-decedent received prescriptions for narcotic pain medication from her treating orthopedic surgeon, a pain management specialist, and two other doctors before beginning treatment with defendant Kiri. Her previous treating physicians denied her requests for further prescriptions when decedent exhibited opioid-seeking behavior. Decedent first presented to Dr. Kiri in August 2012 with complaints of chronic pain. Dr. Kiri initially refilled decedent’s high-dose oxycodone prescription, then switched to fentanyl patches, but discontinued the prescription when decedent claimed a skin rash. Ultimately, Dr. Kiri restarted the high-dose oxycodone prescription, and eventually began prescribing decedent Xanax for anxiety as well. Dr. Kiri treated decedent for 14-months until her fatal accidental overdose, never lowering decedent’s prescriptions despite personal notes in decedent’s file stating that medication needed to be lowered. Plaintiff’s family sued asserting causes of action for wrongful death, medical malpractice, negligence, and lack of informed consent. Defendant moved for summary judgment dismissing the complaint on the grounds that decedent’s death was not proximately caused by Dr. Kiri’s acts or omissions. The lower court denied defendant’s motion. The Appellate Division, First Department, found that Kiri failed to meet his burden for summary judgment on causation as decedent's use of illicit drugs was not unforeseeable, and therefore her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. The Appellate Division further found defendant’s policy argument that all doctors would have to become detectives before prescribing opioids unpersuasive, and opined that Kiri’s failure to obtain medical records, speak with decedent’s orthopedist, and heed signs of opioid abuse during his 14-month treatment of decedent raised an issue on deviation from accepted practice. Finally, the Appellate Division found that defendant’s expert’s opinions on informed consent were conclusory as they did not specify what risks should have been disclosed by Kiri to decedent before prescribing opioids and Xanax. This is a case of first impression in the appellate courts providing a malpractice cause of action for victims of opioid over-prescription which, given the opioid crisis, is likely to be further expanded or defined as new cases make their way to the appellate courts. Thanks to Margaret Adamczak for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News SDNY denies Lloyd's motion for summary judgment because key JB term was undefined. October 11, 2007 < Back Share to: In the case of Alex & Alex Diamonds, Inc. v. Certain Underwriters at Lloyd's, London, Lloyd's attempted to disclaim coverage because the JB policy did not provide coverage for commission salesmen. Alex & Alex argued that the man from whom the $160,00 worth of jewelery was stolen was not a commission salesman, but rather an employee. Trial court held that because policy did not define term "commission salesman", it could not determine as a matter of law whether individual was (or was not) a commission salesman. http://web2.westlaw.com/welcome/NewYork/default.wl?fn=_top&rs=WLW7.09&mt=NewYork&vr=2.0&sv=Full Previous Next Contact

News NJ Appellate Court Determines that “Ambulatory Surgical Center” Not Entitled to Reimbursement from Insurer (NJ) February 7, 2020 < Back Share to: After a 2014 automobile accident, Claire Fiore underwent a lower back surgery at the Ambulatory Surgical Center (“ASC”) operated by Specialty Surgical Center of North Brunswick. Following the procedure, ASC sought reimbursement from Fiore’s automobile insurer, New Jersey Manufacturer’s Insurance Company (“NJM”). NJM denied payment. The dispute then went to arbitration, where a panel awarded ASC its $32,500 in reimbursement. But NJM filed suit to vacate that award and the trial court did so. In New Jersey Manufacturers Ins Co. v. Specialty Surgery Center of North Brunswick, NJM argued that it was not required to reimburse the insurer because the New Jersey personal injury protection (“PIP”) fee schedule did not specifically provide for a reimbursement value for ASCs. The ASC disagreed, and argued it was entitled to reimbursement because lower back surgery (the procedure ASC performed) was listed as a reimbursable procedure. The Court ruled that NJM was not entitled to reimbursement. In doing so, the court reasoned that the plain language of the fee schedule applied. The court also reasoned that the fee schedule provided for reimbursement only to “physicians.” The New Jersey Appellate Court’s decision is important because it lends support to a strict construction of regulatory language. Thanks to John Lang for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News As if Hurricanes Weren't Bad Enough -- Florida's Supreme Court Tackles Bad Faith. March 10, 2010 < Back Share to: A case that may influence future hurricane claims in Florida -- and perhaps bad faith claims in general -- was recently before the Florida Supreme Court on certification from the 11th Circuit Court of Appeals. In Chalfonte Condominium Apartment Ass'n, Inc. v. QBE Ins. Corp., S.D. Fl., No. 06-81046-CV-DMM, a Florida condominium association won an $8.1 million jury verdict against its insurer for its claim after Hurricane Wilma in 2005. In its lawsuit, the condo association set forth two claims against its insurer: breach of contract and breach of implied obligation to act in good faith. The trial court allowed the insured to present evidence at trial -- before the jury had assessed the amount of the insured's damages -- that it took the insurer about 18 months to assess damages. On appeal, the insurer argued that the evidence "tainted" the damages portion of the trial and thus the jury increased the insured's damages award after learning about the insurer's alleged delay tactics. When confronted with the appeal, the 11th Circuit asked the Florida Supreme Court to opine on whether an insured's claim of breach of good faith should be treated as a claim of bad faith. This is important because generally, evidence supporting a bad faith claim is presented only after the jury has assessed the amount of damages under a breach of contract claim to avoid prejudice against the insurer. QBE argued that claims of bad faith and lack of good faith are equivalent in this respect and the trial court erred in allowing the evidence to go before the jury. At oral argument, the Florida justices seemed receptive to the argument that the insured's presentation of the claim as lack of good faith rather than as bad faith "is a distinction without a difference." Some justices also stressed that potential prejudice to the insurer is one of the reasons that bad faith claims should not be brought together with breach of contract claims. We now shall have to wait and see if sympathy at oral argument translates into good law. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Specials thanks to Mendel Simon for his contributions to this post. http://www.law.com/jsp/article.jsp?id=1202445786445&src=EMC-Email&et=edi Previous Next Contact

News Labor Law Protections: Not Always Absolute June 25, 2010 < Back Share to: In Moracho v. Open Door Family Med. Ctr., Inc., 2010 NY Slip Op 05657 (1 Dept. 2010), plaintiff, an asbestos worker, was injured when he fell through an open skylight on the roof of a building owned by Open Door, which was being renovated by general contractor Scully. All parties moved for summary judgment, and plaintiff’s motion was ultimately granted as to liability on his Labor Law § 240(1) claim against defendants Open Door and Scully. The First Department reversed the trial court’s decision, holding that summary judgment should not have been granted because the record consisted of conflicting testimony as to whether a safety vest was available to plaintiff, whether he was aware of the expectation that he would "tie off" the vest, and, if so, whether "he chose for no good reason not to do so." Thus, the First Department reaffirmed that the broad protections offered under Labor Law § 240(1) may still be restricted due to conflicting testimonial evidence as to the existence of safety equipment and the plaintiff’s failure to use such equipment. Meanwhile, the court also upheld the denial of Scully’s motion for summary judgment, noting that although the asbestos contractor performed the relevant work, Scully, as general contractor, was still contractually responsible for preventing accidents and taking reasonable precautions to prevent injuries. What’s more, the record established that Scully had access to the site and involvement with the project. Thus, despite a lack of control over the subcontractor, the court reinforced the principle that the general contractor must still provide safety devices to prevent injuries. Special thanks to Lora Gleicher for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05657.htm 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 Watersport or Horseplay? Risk Assumption Either Way. November 23, 2016 < Back Share to: Plaintiff, Jin Chung, an experienced watersports instructor, was filming a wakeboarder while both were being towed by a boat on 60’ and 65’ towropes respectively. When the boat turned as it neared the shoreline, it crossed its own wake. The plaintiff was propelled into water and struck by the wakeboarder. In the ensuing litigation, the issue was whether the plaintiff had assumed the risk of injury inherent in this recreational activity. In Chung v. Lehmann, the Appellate Division, First Department affirmed dismissal of the action because it found that the plaintiff's injuries arose from commonly appreciated risks inherent in the recreational activity in which he was engaged. Although the plaintiff argued that the filming activity was actually horseplay rather than recreation, the court gave short shrift to this argument. After all, the plaintiff was filming watersports on a lake known for this type of recreational activity. The court also discounted plaintiff’s unsubstantiated argument that the boat’s operator acted recklessly. Plaintiff argued that, even assuming the application of the assumption of risk doctrine, he could not be deemed to have assumed certain increased risks based upon the operator’s purported reckless behavior. However, the plaintiff’s various criticisms with respect to the boat operator’s lack of attention, speeding, or sharp maneuvers were conclusory and without expert support. As this case demonstrates, injuries resulting from commonly appreciated risks inherent in a recreational activity do not raise triable claims. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Texas Justice -- Lloyd's Must Pay for Billionaire Criminal's Defense. January 29, 2010 < Back Share to: A Carribbean knighthood. Ownership of cricket teams. A fleet of private jets. Texas billionaire Allen Stanford claimed that these things came from his worth ethic and natural abillities. That may be true, if you consider that his worth ethic and natural abilities were sired to criminal undertakings. Stanford and his company are accused of defrauding investors in excess of $8 billion dollars. Criminal indictments and civil lawsuits have resulted. Unfortunately, it appears that Lloyd's insured Stanford and his company at the relevant times. And now, a Texas judge has ruled that Lloyd's must pay for the defense of Stanford and his group in the pending SEC and crminal cases. Hopefully, Lloyd's won't end up spending billions in legal fees, but tens of millions seems like a reasonable estimate. If you would like more information about this post, please ctontact Bob Cosgrove http://www.insurancejournal.com/news/national/2010/01/27/106889.htm http://pdf.wcmlaw.com/pdf/PendergestDecision.pdf Previous Next Contact

News Material Misrepresentation in Auto Policy Application February 27, 2009 < Back Share to: In Consumer First Insurance v. Lee, the plaintiff appealed a dismissal of its declaratory judgment action against its insured. The Superior Court Appellate Division reversed and remanded, concluding that the insured made a material misrepresentation on his automobile insurance application regarding his lifelong epilepsy. As a result, plaintiff was required to extend only minimum mandatory statutory amounts of coverage to all claimants. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a5821-06.pdf Previous Next Contact