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News Qui Tam Claims? Constitutional or Not? August 6, 2011 < Back Share to: A common tactic in IP litigation is the assertion of a False Marking Statute claim. The False Marking Statute basically states that you can’t stamp the word “patented” on a product that, in fact, does not have a patent. Sounds simple enough. The problem is that for each distributed product that contains a false product marking, a fine of $500 can be awarded. But wait! There’s more. The right to the fine proceeds gets split between the litigant and the federal government. So, under these circumstances, guess what happens? Right. If possible, litigants always assert these so-called qui tam claims to increase the case’s settlement value and/or the respective leverage. Courts have begun to question whether allowing civil litigants to wield, in effect, prosecutorial powers by seeking fines for qui tam violations is constitutional. In the Eastern District of Pennsylvania, a split exists on the district level. In the most recent decision on point, Judge Baylson ruled that the statute is, in fact, constitutional. If this decision stands, it can greatly increase the cost of settling an IP case since the penalty value of the case can easily exceed the actual damages at issue. If you have any questions about this post or WCM's intellectual property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NY App Div: Insurers Window to Disclaim Coverage May Be Shrinking January 5, 2010 < Back Share to: If an insurance company wishes to disclaim coverage to an insured based on untimely notice of the claim, they must act expeditiously or risk being estopped from disclaiming coverage on those grounds. In Scott McLaughlin Truck & Equipment Sales, Inc. v. Selective Ins. Co. of Am., the court found untimely a disclaimer issued by an insurance company less than two months after the insurer was on notice of a potential claim, even though the plaintiff had failed to report the claim to the insurer for nearly four years. The court noted that the timeliness of a disclaimer is measured from the moment when the insurer first learns of the grounds for the disclaimer. Here, the court concluded that Selective knew or should have known of the grounds for disclaimer on the same day they were first notified of the claim. Selective asserted that difficulties with its investigation resulted in the delay in disclaiming and generally the courts have allowed an insurer a reasonable amount of time to conduct investigation and thereafter issue an effective disclaimer. However, the case at hand suggests that New York Courts are affording insurers increasingly less time to issue timely disclaimers of coverage. Thanks to Chris O'Leary for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_10030.htm Previous Next Contact

News Here Illegally? So What. October 17, 2013 < Back Share to: In Lopez v. Sunrise One, a jury awarded plaintiff $1,706,714 for future medical expenses with the award intended to compensate plaintiff over 28 years. Defendant Sunrise moved to set aside the award, contending the court improperly allowed testimony regarding plaintiff’s inability to work and improperly precluded admission of evidence of plaintiff’s immigration status. The court granted defendants motion regarding future medical expenses, as it found the award was not supported by the evidence in the record. The court, however, reaffirmed its decision to preclude evidence of plaintiff’s immigration status, relying on Angamarca v. New York City Partnership Hous. Dev. Fund Inc., 87 A.D.3d 206 (1st Dep’t 2011). The trial court, following Angamarca, noted that the issue of citizenship lacked probative value as to the jury’s calculation of damages because no evidence was presented that plaintiff was planning to return to his native country or that deportation was imminent, and no additional evidence was proffered regarding the lower cost of future medical care in plaintiff’s native country. While you can attack future medical expenses on a basic lack of proof, plaintiff’s status as an illegal alien cannot be used to attack an award of future medical expenses -- or otherwise. Thanks to Alison Weintraub for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Court of Appeals Issues Important Decision on Misrepresentations (NY) June 27, 2012 < Back Share to: It is generally held that when an insured has made material misrepresentations in applying for an insurance coverage, an insurer later has the ability to void the policy back to inception, forming the basis to deny any claims that may arise. But what happens when there is an additional insured under the policy -- and that additional insured was not involved in the misrepresentations? Previously, a line of decisions issued by New York appellate courts were generally interpreted to hold that claims submitted by an innocent additional insured could not be rejected due to material misrepresentations made by the named insured. Now, however, the Court of Appeals has weighed in on the topic with an important decision for insurers. In Admiral Ins. Co. v. Joy Contractors, when the insured, Joy Contractors, applied for its CGL policy, it represented that it specialized in drywall installation, did not carry out exterior work and performed no work above two stories in height from grade other than drywall interior work. Subsequently, a tower crane operated by Joy collapsed, killing seven people, injuring others, and causing significant property damage. An investigation into the claim revealed that, despite the statements made in the policy application, Joy was actually the structural concrete contractor, performing work on the building's entire exterior with the tower crane. Based on the misrepresentations, the insurer denied the claims that arose out of the crane collapse and filed a declaratory judgment, seeking rescission of the policy as to all parties, including various property owners and developers that were named as additional insureds. Citing prior precedent, the lower court held that coverage could not be denied to the additional insureds based on misrepresentations made by the insured, and the Appellate Division upheld the decision. But the Court of Appeals reversed, finding that in none of the earlier cases did the insurer actually seek rescission of the policy. Further, the Court found that in the prior cases, the named insured’s misrepresentations did not deprive the insurer of knowledge of or the opportunity to evaluate the risks for which it was later asked to provide coverage. In addition, in the prior cases, the additional insureds were actually named in the policy so the insurers knew their interests. Most importantly, setting aside these distinguishing factors, the Court specifically refused to endorse the prior holdings to the extent those decisions may be read to apply to situations where an insurer seeks rescission. If you would like further information about this post, please write to Mike Bono at mbono@wcmlaw.com   Previous Next Contact

News NJ: No Indemnification for Homeowners’ Association from Snow-Removal Contractor. August 31, 2012 < Back Share to: In the case of Franchini v. Beverly Hills Terrace Condominium Association, et al., the Appellate Division was faced with the question of whether a snow-removal contractor was responsible for indemnifying a homeowners’ association for the costs of defending a slip and call case instituted by a unit owner. The relevant facts are as follows. Franchini testified at trial that she was crossing a sidewalk at the homeowners’ association when she fell on an icy sidewalk. She claimed that defendant Greenview, the snow-removal contractor, was negligent in failing to inspect or maintain the sidewalk. She also claimed that the Association was negligent in its conduct of the ownership and operation of the property. After hearing all the evidence, the jury rendered a defense verdict in favor of both the Association and Greenview. The Association then moved for contractual indemnification from Greenview and sought reimbursement for all litigation costs incurred in defending plaintiff’s suit. The indemnification clause that Greenview sought to enforce required Greenveiw to indemnify the Association for any damage or loss arising out of Greenview’s work. The trial court agreed that Franchini’s accident arose out of Greenview’s work and thus it awarded the Association defense costs. Greenview appealed. The Appellate Division first noted that the first step in interpreting a contractual indemnity provision is to determine the intent of the parties. The court noted that absent explicit contractual language, an indemnitee such as the Association may not recover for claims arising out of its own independent fault absent specific language to the contrary. The indemnification provision in this case stated that: “It is the intent of the parties that the contractor’s indemnification and save harmless obligations hereunder are not contingent upon contractor’s fault.” The Appellate Division found that this language could not be construed as an unequivocal statement by Greenview assuming indemnification for the Association’s own independent acts of negligence. It therefore reversed the trial court. Special thanks to Andrew Marra for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Lead! It's Back. January 4, 2013 < Back Share to: Or maybe it never really went anywhere. But in either event, new research suggests that lead exposure can lead to violent crime, lower IQs, and even ADHD. No doubt the plaintiffs' bar is studying this research in an attempt to find new causes of action. Just be grateful if your policy has a lead exclusion, and, if not, we're here when you need us. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Rush Hour Traffic Bars Recovery In Slip And Fall Action August 18, 2010 < Back Share to: In Thomas v. Boston Props., the plaintiff allegedly slipped on ice that formed on the floor of a revolving door during the evening rush hour. Defendants offered evidence that they had no notice of the condition, never received complaints regarding the accumulation of snow or ice, and never received any reports that the area was poorly lit. In reversing the lower court’s denial of defendants’ motions for summary judgment, the First Department noted that plaintiff’s concession that she did not see the ice was susceptible to the interpretation that it formed as a result of moisture tracked in by pedestrians. Since defendants were not alleged to have created the condition, and the law does not impose an obligation to take continuous remedial action to remove moisture accumulating as a result of pedestrian traffic, the First Department reversed the lower court, holding that the plaintiff failed to demonstrate that the condition existed for a sufficient length of time to place the defendants on notice. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06398.htm Previous Next Contact

News Participation is Not Always Direction or Control under NY's Labor Law February 10, 2009 < Back Share to: Owners of one and two-family homes are typically exempt from Labor Law §240 and 241, except in situations where they “direct or control” the work. In Snyder v. Gnall, the Third Department in New York recently held that despite clear involvement by the owner in the construction project, his actions did not rise to the level of direction or control. The owner was identified on the building permit as the general contractor; he personally arranged for building inspections; he hired all contractors and sub-contractors; and he ordered and paid for certain building materials. However, because all of these activities took place pursuant to directions or recommendations set forth in plaintiff’s comprehensive proposal, the Court held the owner’s participation was not as significant to support the conclusion that he directed or controlled the work. The claims were thus dismissed. Snyder v. Gnall Previous Next Contact

News NY 2nd Department Urges Plaintiff To Watch His Step When Leaving The Toilet January 19, 2010 < Back Share to: An electrician, hired by a subcontractor on a parking garage construction project at JFK airport, was injured when he fell after exiting a portable toilet located on the site. The plaintiff sued the general contractor, alleging common-law negligence and Labor Law § 200 violations. The court granted the defendant's summary judgment motion, finding that the plaintiff had failed to identify the cause of his fall. The court held that the unlevel condition of the ground in 5-foot radius surrounding the portable toilet was irrelevant. Furthermore, the court dismissed the plaintiff's argument that the toilet wobbled in the past because the plaintiff had testified at his deposition that on this particular day the toilet was sturdy. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00116.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News Concrete Coverage Opinion to Aid Covid Cases (NY) June 18, 2020 < Back Share to: With recent COVID-19 related coverage cases being filed on a daily basis, the ongoing question of how courts will interpret business interruption provisions remain. Business interruption insurance is designed to indemnify the insured against losses arising from the inability to continue normal business operation and functions due to the damage sustained as a result of the hazard insured against. Such a provision was interpreted in Binghamton Precast & Supply Corp. v. Liberty Mut. Fire Ins. Co, 182 A.D.3d 721 (N.Y. App. Div. 2020). In this case, the plaintiff was a manufacturer, seller, and distributor of concrete products covered by an Equipment Breakdown Policy. When the plaintiff’s concrete mixer broke, plaintiff was forced to close his business for two days until the mixer could be repaired. As a result, the plaintiff filed a claim for loss of business income. The defendant insurance company argued that because the plaintiff could not establish a loss of specific sales resulting from the breakdown, there could be no recovery under the policy. The policy provided coverage for the “actual loss of business income during the period of restoration.” The Appellate Division noted that the key to interpreting this particular policy is to focus on the expectation of the parties. An insurance policy must be interpreted so that clear and unambiguous provisions are afforded their plain and ordinary meaning. In plaintiff’s case, because the provision’s plain meaning expressly includes profits and losses when defining ‘business income’ and not specific sales, defendant’s reliance on such a contention would not be consistent with the insured’s expectations. However, the Appellate Division agreed with defendant that a triable issue of fact remained as to whether the plaintiff mitigated his losses. Pursuant to plaintiff’s policy, the insured is required to “reduce its losses by undertaking efforts to make up for lost business within a reasonable period of time and to make use of every reasonable means to reduce losses.” The Court held that plaintiff’s decision to make up for lost production during its normal work hours rather than by scheduling overtime shifts on the weekends, is a triable issue of fact. In relation to business interruption insurance for businesses effected by the COVID-19 pandemic, this case articulates an example of how the courts might place importance on the intent of the provisions within each policy and on the efforts an insured made to mitigate their damage. Thanks to Gabriella Scarmato for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

When WCM takes on a case, we take the long view. It starts with critical thinking in how best to make a record to protect our clients. As skilled trial advocates, we know that ultimate success depends upon vindicating our position in Motions and Appellate Practice. We have earned a reputation for excellence in our written work and in our many successes in state and federal appellate courts. Our skill in the appellate arena is manifest in a weekly law blog in which we keep our clients current in developments and emerging legal trends in our practice areas. WCM attorneys also contribute to insurance and defense scholarship by writing articles for Insurance and bar association journals, as well as conducting continuing education seminars for claim professionals and attorneys. Appellate When WCM takes on a case, we take the long view. It starts with critical thinking in how best to make a record to protect our clients. As skilled trial advocates, we know that ultimate success depends upon vindicating our position in Motions and Appellate Practice. We have earned a reputation for excellence in our written work and in our many successes in state and federal appellate courts. Our skill in the appellate arena is manifest in a weekly law blog in which we keep our clients current in developments and emerging legal trends in our practice areas. WCM attorneys also contribute to insurance and defense scholarship by writing articles for Insurance and bar association journals, as well as conducting continuing education seminars for claim professionals and attorneys. Practice Lead Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Download Download

News The Weather Outside is Frightful (NJ) May 9, 2019 < Back Share to: In Dixon v. HC Equities Associates, LP, the plaintiff tripped and fell on an icy sidewalk while walking to her state-issued car. Although she wore boots and walked cautiously, her feet slipped on at least one inch of snow. At her deposition, she confirmed the snow started after she arrived at work that day and continued until her fall. The plaintiff sued the defendant owner for negligence, arguing HC Equities Associates, LP breached its duty of care in failing to remove snow and ice on the facility’s sidewalk, which proximately caused her injuries. After the completion of discovery, the defendant owner moved for summary judgment. The argument was simple: there was no breach of a duty of care to the plaintiff because its duty to act in a reasonably prudent manner to remove or reduce the hazard (snow and ice) did not start until a reasonable time after the snow stopped. After oral argument, the trial court agreed that no rational jury could find defendant was negligent because the plaintiff fell during an ongoing snowstorm. Accordingly, the trial court granted summary judgment as a matter of law. The plaintiff appealed, arguing the duty should be expanded. At common law, residential and commercial property owners did not have a duty to maintain public sidewalks abutting their premises free from snow and ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception to maintain abutting sidewalks was carved out for commercial landowners in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149-50 (1981), which Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983) extended to snow and ice removal. A commercial owner’s responsibility therefore arises only if, after actual or constructive notice, he has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard.” Mirza, 92 N.J. at 395. On appeal, the Appellate Division reaffirmed the long-upheld principle that commercial property owners are not liable for clearing snow during a snowstorm. See Bodine v. Goerke Co., 102 N.J.L. at 642-43 (E. & A. 1926) (holding that a property owner could not be liable for ailing to remove slush or ice from the entrance to a store while the storm was still ongoing). After noting it was undisputed that the snowstorm was ongoing when the plaintiff slipped and fell, the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove it. Therefore, the trial court’s grant of summary judgment was affirmed. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact