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 Indemnification for Another's Negligence? Not So Easy in NY. April 13, 2010 < Back Share to: Though GOL §5-322.1, provides that an indemnitee cannot be indemnified for its own negligence, there have always been certain situations where an indemnification provision -- that would otherwise appear to be void -- was upheld by courts because of its “saving language” or because of the specific facts of the case. An indemnification provision that seemingly indemnifies the indemnitee for its own negligence has been upheld so long as the provision has the saving language “to the fullest extent permitted by applicable law.” See, e.g., Dutton v. Charles Pankow Builders, 296 A.D.2d 321 (1st Dep't 2002), appeal denied, 99 N.Y.2d 511(2003). In other situations flawed indemnification provisions (purportedly indemnifying an indemnitee for its own negligence) have been enforced where the indemnitee’s lack of negligence has been established as a matter of fact. See, e.g., Alesius v. Good Samaritan Hospital, 23 A.D.3d 508 (2d Dept. 2005). In Hadzihasanovic v. 155 East 72nd Street Corp., 70 A.D.3d 637 (2d Dept. Feb. 2, 2010), defendants Dale and Stephen Hoffman purchased shares in a cooperative building and hired a contractor to perform certain alterations to their apartment. To gain the approval for the alterations, the Hoffmans signed an indemnification agreement in favor of 155 East 72nd Street Corp. (the building owner) and Wallack (the building manager). The plaintiff, a subcontractor's employee, was injured while working in the apartment. He sued the Hoffmans, 155 Corp. and Wallack. 155 Corp. and Wallack asserted, a cross claim against the Hoffmans for contractual indemnification. Subsequently, the Hoffmans moved, for summary judgment dismissing 155 Corp. and Wallack' cross claim for contractual indemnification, and 155 Corp. and Wallack cross-moved for summary judgment. The court granted the Hoffman's motion and denied 155 Corp. and Wallack's motion holding the the alteration agreement was void pursuant to GOL 5-322.1. The court found that "A broad indemnification provision in a lease, such as the alteration agreement here, which is not limited to the lessee's acts or omissions, fails to make exceptions for the lessor's own negligence, and does not limit the lessor's recovery under the lessee's indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321." While it is not clear from the decision whether the indemnification agreement had "saving language" or whether 155 Corp. and Wallack were free from negligence, it appears that the Second Department has revisited the issue--and is attempting to once again broaden GOL §5-322.1's reach. http://pdf.wcmlaw.com/pdf/GOL Opinion.pdf Special thanks to Cheryl Fuchs for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Losers Pay in Texas? May 27, 2011 < Back Share to: It appears that there is a fighting chance that Texas will pass losers pay legislation. If passed, the bill would be the first of its kind in the country and would award costs and fees to a prevailing party in a meritless suit. We shall see if the bill passes and if it signals a new wave of tort reform. Previous Next Contact

News Eating 10 Cans Of Tuna Fish Each Week For 2 1/2 Years Not Unreasonable October 24, 2011 < Back Share to: In [i]Porrazzo v. Bumble Bee Foods, et.al.[/i] (S.D.N.Y. 10-CV-4367) plaintiff sued defendants in strict product liability after being diagnosed with mercury poisoning. Plaintiff ate 10 cans of tune fish per week for a period of two and a half years, and had a blood mercury level more than twice the recommended limit. One of plaintiff’s claims was that the tuna fish was not fit for the ordinary purposes for which tuna fish was intended. Defendants moved to dismiss, arguing that a diet consisting of nearly 1500 cans, or over 500 pounds, of tuna in thirty-three months was not the intended use of the product, and was unreasonable as a matte of law. The court disagreed. The court held that what was “reasonable” was best left to a jury to decide. The court emphasized that such a decision, the reasonableness of plaintiff’s diet, was not proper for a motion to dismiss. The case had several other issues regarding the propriety of plaintiff’s complaint, but most of the objections were rejected because of the status of the case, i.e. motion to dismiss. The court noted that the claims might not survive a motion for summary judgment or trial. The lesson to take from this case is what one person believes is reasonable may differ from another, and thus the question is a quintessential “question of fact” for a jury. If you would like further information about this post, please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News Plumbing Roughing, Roughs Up Electrician And Triggers Labor Law &#167;240(1) Liability February 14, 2008 < Back Share to: In Cohen v. Memorial Sloan-Kettering Cancer Center, 2008 NY Slip Op 01025, AD and New York Co. Index 110800/05, Edward Cohen, plaintiff, alleged to have sustained injury to his left knee when his left foot became ensnared between the second rung of his ladder and a nearby metal rod jutting from a wall, ultimately causing him to fall to the ground. Plaintiffs cross moved for summary judgment on their Labor Law §240(1) claim, asserting that although the ladder was not defective and allowed him to complete the task at hand, it was inadequate since it did not permit him to safely step down one rung at a time to the ground. While the trial court granted defendants' motion for summary judgment on the Labor Law §241(6) claim, it denied plaintiffs' cross motion. The Appellate Division - First Department, in a 3-2 decision, modified the lower court's decision and granted plaintiffs' cross motion since the unrefuted evidence showed that plaintiff's fall was proximately caused by his inability to descend to the floor due to the absence of a sufficient safety device. The dissent adhered to the Court of Appeals holdings in Nieves v. Five Boro A.C. & Refrig. Corp., 93 NY 2d 914 (1999) and Melber v. 6333 Main St., 91 NY2d 759 (1998) and deemed the hazard at issue wholly unrelated to the elevated risk covered by Labor Law §240(1) and that the safety equipment provided by defendants to be adequate. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_01025.htm Previous Next Contact

News Keep Your Eye On The Ball: Soccer Player's Concussion Dismissed Against Athletic Department (NY) January 3, 2020 < Back Share to: In Calderone v Molloy College, plaintiff was a student-athlete who played for Molloy College’s soccer team. During a matchup, plaintiff took a soccer ball strike to the head and he suffered a concussion. Plaintiff stayed in the game and claimed that his injuries were exacerbated by continuing to play and brought suit against the athletic department and the referees stating that they should have seen the symptoms of the concussion and removed him from the game. Defendants argued that summary judgement should be granted under primary assumption of risk doctrine, as the risks of a sporting activity are known by or perfectly obvious to a voluntary participant. Plaintiff alleged that the doctrine did not apply because the defendants acted recklessly or negligently in leaving the plaintiff in the game. The lower court granted defendants’ motions and the plaintiff appealed. The Appellate Division Second Department upheld the lower court’s decision under the theory the “risks inherent in a sporting activity are those which are known, apparent, natural, or reasonably foreseeable consequences of the participation.” The Court stated that there was no evidence that plaintiff had sustained a concussion or showed any signs of a concussion – as he remained in the game. Moreover, a soccer ball to the head causing a concussion is reasonable and calculable risk in playing soccer. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Court of Appeals to Reconsider Controversial K2 Coverage Case (NY) September 12, 2013 < Back Share to: The ground shifted under well established New York insurance law on June 11, 2013 when the New York Court of Appeals released its decision in K2 Investment Group, LLC v. American Guarantee Liability Co. We analyzed the significance of K2 in our post of June 28, 2008. The backlash was swift and sustained: Did K2 really mean what it said, namely, that automatic indemnity was imposed on an insurer who breached its duty to defend? What coverage defenses were still available after such breach? The Court of Appeals may have taken notice of the stir it caused. On September 3, 2013, it granted a motion to reargue the K2 decision at the request of the defendant insurer, American Guarantee, joined by the Complex Insurance Claims Litigation Association and the American Insurance Association who submitted their own motion as friends of the court. The amici politely suggested, "The Court's Decision creates an unexplained conflict with longstanding New York law reflected in Servidone Construction Corp v. Security Insurance Co., misapprehends Lang v. Hanover Insurance Co., and will substantially impact insurers and policyholders throughout the State." No briefing schedule has been established but some clarification of K2 seems likely from New York's highest court. Stay tuned! If you have any questions about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Facebook Discovery Permitted in New York June 6, 2012 < Back Share to: Social network data is the new frontier of pre-trial discovery. Our adversaries upload, download, tweet and post. For some unexplained and seemingly generational reason, some people are almost compelled to share intimate details of their personal lives through their use Facebook, MySpace or Twitter. The goal of obtaining Facebook data is easy to state but harder to implement. The courts balance the need for material and relevant information of one party against the expectations of privacy of the other. In D’Agnostino v. YRC Inc., the defendant developed a sound plan to obtain plaintiff’s social media postings. Rather than serve an early document demand seeking all of the plaintiff’s Facebook postings, the defense attorney first deposed plaintiff and gained valuable admissions that plaintiff routinely posted concerns about her feelings and emotions both before and after her accident. Once the trap was laid at plaintiff’s deposition, the defense attorney sprung into action and demanded all plaintiff’s social media postings and photographs concerning any mental, emotional or physical condition suffered by plaintiff regardless of whether posted by her or others before and after her accident. In a well reasoned opinion, the court held that plaintiff put her physical and mental condition in issue when she filed her lawsuit. Further, plaintiff admitted that she routinely posted about her feeling and emotions on Facebook. Accordingly, the court ruled that the defendant satisfied the two prong test for obtaining an opponent’s social media postings by: (1) specifically identifying what material was sought; and (2) establishing a factual predicate for seeking such evidence. D’Agostino is hardly the last word on the discovery of social media postings in New York. It is an important lens into how the trial courts are dealing with discovery in this area and provides a practical roadmap to how a defense lawyer can lay the proper foundation to obtain this valuable discovery. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Watch Your Mouth: Improper Summation Costs Plaintiff $44mm Verdict November 29, 2010 < Back Share to: Trial lawyers don’t like to lose their cases. Some try to charm the judge and jury while others prefer a full frontal attack, leaving adverse witnesses bowed and broken after completing a vicious cross examination. Summations can become high theatre, complete with rhetorical flourishes that pull at the heartstrings of the jurors or challenge them to “punish” a wealthy and impersonal corporation. But the day of reckoning arrives when the jury verdict must be defended on appeal. Such is the case of Smolinksi v. Smolinski and Ford Motor Credit Company that arose out of a single car accident in which one brother escaped with barely a scratch while the other sustained catastrophic injuries that rendered him a quadriplegic. By 2008, the Smolinski case already had a long and tortuous history: two prior jury trials had ended in mistrials over the issue of which brother was driving the vehicle. If the injured plaintiff was driving, he had no one to sue. If his brother was driving, then Ford would be vicariously liable under the then existing Vehicle and Traffic Law as the owner and lessor of the vehicle. The third trial was bifurcated with a single question on the issue of liability: which brother was driving the vehicle at the time of the accident? The trial was contentious as was plaintiff’s summation. During her closing argument, she suggested that: (1) the Ford expert testified falsely for money; (2) Ford conspired to cover up critical facts; and (3) Ford had great resources at its disposal as a large corporation. The trial judge compounded these errors by excluding critical evidence that suggested that plaintiff –and not his defendant brother—was driving at the time of the accident. The jury found in favor of plaintiff and, according to reputable news accounts, apparently awarded him about $44,000,000 in compensation. On appeal, the Appellate Division, Fourth Department vacated the liability verdict because of “the misconduct of plaintiff’s counsel during summation….” and other evidentiary errors. The court was unappreciative of the litigation's "tit for tat" and chastised defense counsel as well for over zealous conduct. The moral of this case is clear. The brilliance of a winning verdict eventually wanes after an appellate court vacates a favorable verdict and directs the parties to do it again. It is the trial attorney's job to come close to but avoid the line that separates passionate advocacy from attorney misconduct. If you have any question about this post, please email Paul at pclark@wcmlaw.com . http://www.nycourts.gov/ad4/court/Decisions/2010/11-19-10/PDF/1155.pdf Previous Next Contact

News PA Court – A Mere ROR Does Not Give the Insured the Right to Its Own Counsel. September 9, 2010 < Back Share to: One of the constant issues a carrier must face is whether, by issuing a ROR, it has granted the insured the right to choose its own counsel. In the case of Eckman v. Erie Ins., a Pennsylvania trial court was confronted with just this issue -- http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1202470836794. In Eckman, the carrier assigned defense counsel to represent Eckman in a defamation lawsuit (under a ROR) while it investigated coverage. The Eckmans objected and argued that the ROR created a conflict of interest between themselves, assigned defense counsel and the carrier. They argued that the ROR entitled them to choose their own counsel at Erie’s expense. The court rejected this plea. It held that in the absence of an actual conflict of interest, the Eckmans were not entitled to choose their own attorney since the assigned defense counsel (under PA’s rules of professional responsibility) was ethically bound to exclusively advocate on behalf of the insured client. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Carrier Ordered To Appear For Deposition In NY Personal Injury Action June 8, 2010 < Back Share to: In Nacherlilla v. Prospect Park Alliance (18455/05) a Brooklyn Judge issued an order compelling the deposition of a non-party insurance company. Plaintiff was injured in a horseback riding accident in Brooklyn’s Prospect Park. Clarendon Insurance Company had issued a policy to the stable, which Clarendon claimed was cancelled before the accident. When plaintiff learned of the insurance policy, plaintiff filed a claim with Clarendon, and issued a Subpoena to Clarendon for a non-party deposition. In the motion to compel the deposition, plaintiff argued that the deposition was necessary to determine whether the cancellation was proper. In opposition, Clarendon argued that the Subpoena was defective because it did not identify the reasons or purpose for the deposition, and that plaintiff lacked standing to contest coverage because no judgment had been issued against the insured. The court granted plaintiff’s motion to compel Clarendon’s deposition. The court did note, however, that Clarendon never sought to quash the So-Ordered Subpoena. If you would like more information about this post, please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News E-Discovery: Growing More Onerous and Expensive By the Day? February 17, 2012 < Back Share to: When we begin to talk of e-discovery, clients begin to groan, heads begin to nod and we’re inevitably told “this is just too hard.” E-discovery is indeed hard and the SDNY is making it harder by the day in two notable decisions – both of which seem to raise the burden and cost of e-discovery. The good news for clients/insurers/attorneys is that e-discovery tends to only be an issue in large commercial, mass tort or discrimination disputes. In the case of Pippins v. KPMG, KPMG allegedly improperly denied overtime wages to some of its employees. During the course of a discovery battle, KPMG filed a protective order in which it asked the court to order that it only had to produce a “random sampling of a small number of hard drives” as opposed to preserving/imaging all former employee hard drives. The court initially asked KPMG to produce at least 1 hard drive so the court could determine whether random sampling would be sufficient or if imaging was required. KPMG effectively refused and it appears that this made Judge McMahon less than happy. She has now ruled that KPMG must preserve all hard drives, without exception, as the “hard drives are likely to contain relevant information.” This is surely an onerous obligation and we/you will no doubt be seeing many citations to this quote in our/your future e-discovery battles. In the case of Moore v. Publicis, Publicis, a large PR company, was charged with gender discrimination. In the context of discovery, Judge Peck was tasked with the problem of figuring out how to search through thousands of documents so that only relevant ones could be produced. Judge Peck, who does not like keyword searches, instead decided to have the parties employ “predictive coding” technology. The formal order has now been issued. To our mind predictive coding is just another way of saying “very expensive.” For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact