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News Insurer Off the Hook for Loss of Business Income Due to Clogged Toilet (NJ) January 3, 2019 < Back Share to: A New Jersey appellate court recently decided whether an insurer must provide additional coverage for damage caused to a restaurant by sewage backup in FOUZIA SALIH v. OHIO SECURITY INSURANCE. After a dreadful toilet clog in a New Jersey restaurant, plaintiff sought coverage in excess of its policy’s $25,000 limit for heavy damage to the restaurant under a lost business income provision. The clog destroyed the water heater, furnace, restaurant’s tiles, basement, first-floor bathroom, and kitchen, causing $162,933.63 in total damage. The policy’s general provisions excluded coverage for water damage caused by backup or overflow but included a custom endorsement which provided a $25,000 sublimit for such events. A public claims adjuster determined that the loss was caused by water discharge while the insurer determined that the cause of loss was raw sewage backup. The insurer issued checks for $25,000 for the damage and plaintiff filed a lawsuit after finding that the damages far exceeded the endorsement limit. In the lawsuit, plaintiff sought more coverage and alleged that the insurer breached its terms to provide benefits covered under the policy. The insurer moved for summary judgment and plaintiff filed an opposition relying on the business income provision, which states that the insurer will cover the actual loss of income sustained due to damage. The lower court ruled in favor of the insurer, finding that the custom endorsement put plaintiff on notice that the business income provision would not cover damages if the water damage coverage was only created as a result of the endorsement. Finding that the policy terms were clear, unambiguous, and supported the insurer’s interpretation of the policy, the appellate court affirmed the lower court’s decision. Thanks to Chelsea Rendelman for her contribution to this post. Previous Next Contact

Michael A. Bono Executive Partner New York, New Jersey mbono@wcmlaw.com +1 212 267 1900 Professional Experience Michael A. Bono is an Executive Partner at Wade Clark Mulcahy LLP and a leading New York litigator, whose practice centers on high-exposure property, casualty, construction, and specialty-risk disputes. He represents businesses and individuals, including public figures in media, sports, entertainment, and politics. He also defends regional, national, and international insurers, lawyers and other professionals in E&O matters, property owners and construction entities in Labor Law cases with catastrophic injuries, and transport and art-world clients in complex state and federal litigation. With more than twenty-five years of litigation and trial experience, Michael has handled cases at every level of New York’s courts— from trial courts to the New York Court of Appeals, where he successfully argued Forman v. Henkin , the landmark decision setting the statewide standard for social-media discovery in personal-injury litigation. Michael regularly serves as counsel to insurers in first-party property claims, including fraud investigations, coverage litigation, jewelers block and diamond recovery, cargo/bailee, art law cases, subrogation, and other specialty risk matters. Before joining WCM, Michael was a Senior Assistant District Attorney with the Kings County District Attorney’s Office. As an ADA, Michael prosecuted violent felonies and investigated complex narcotic networks and conspiracies. Michael also supervised junior prosecutors and assisted in the training of attorneys and police officers. Michael has also worked for a law firm specializing in the defense of fraudulent insurance claims. Honors and Distinctions At Fordham University, Michael served on the Environmental Law Journal and was a member of the Dean’s List. He was also a magna cum laude graduate of Villanova University. Professional Activities Michael has been elected to membership in the Federation of Defense & Corporate Counsel and the Claims and Litigation Management Alliance. He is also a member of DRI, the Professional Liability Underwriting Society, and the North American Contingency Association. Michael is a frequent lecturer and has conducted seminars before such organizations as the International Underwriting Association of London, the New York State Bar Association, as well as for numerous clients. Publications The Poison Pill? Settling Damage Claims Involving Living Artists (co-author Michael A. Bono): International Fine Art and Specie Conference, Rome, Italy. Sandy’s Impact on Fine Art and Property Insurers IUA Event: London (co-author with Dennis M. Wade). Fine Art and Collectible Losses: Framing the Value Issues (International Underwriting Association, London, England) (co-author with Dennis M. Wade). The Basics of Oral Examination: Understanding the Rules and Law of Depositions Pursuant to the CPLR (New York State Bar Association). The Examination Before Trial: What to Do Before Calling the Court (New York State Bar Association). What Fine Art Insurers Really Need to Know About the Visual Artists Rights Act (VARA) (co-author with Dennis M. Wade). The Anatomy of a Bust Out: The Implications of Bankruptcy and Bankruptcy Fraud for Property, Fine Art and Specie Insurers (International Underwriting Association, London, England) (co-author with Dennis M. Wade). Defending Underwriters, Claim Professionals and Brokers in US Coverage Litigation (International Underwriting Association, London, England) (co-Author with Dennis M. Wade). Getting it Back: Recovering Stolen Property in the United States (International Underwriting Association) (co-author with Dennis M. Wade). News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D. Fordham University School of Law B.S.B.A. Villanova University Bar Admissions New York New Jersey Pennsylvania Court Admissions Eastern District of New York Southern District of New York District of New Jersey

News One Or Two Feet Fall Not De Minimus Under Labor Law §240 January 6, 2023 < Back Share to: Jeffrey DiPalma was working for a company that had been hired to rehabilitate several bridges in Buffalo. One day, while standing on a platform, DiPalma was shoveling concrete debris into an unsecured skid box that had been placed on a forklift. DiPalma put a load of debris in the box and turned to scoop up another when the box slid, fell approximately 1 to 2 feet and hit him on the back. The Fourth Department held that the strict liability provisions of Labor Law §240 applied even though there was no significant height difference between the skid box and the platform that DiPalma was standing on. The court noted that because of the weight of the skid box, its contents and the potential harm that it could cause, it could not say that the elevation difference was de minimus. http://www.nycourts.gov/courts/ad4/clerk/decisions/2011/12-30-11/pdf/1369.pdf Previous Next Contact

News PA Senate Bill 1222: Peer-to-Peer Carsharing And Insurance Implications July 22, 2022 < Back Share to: A new law was introduced in the House Appropriations Committee as an amendment to Senate Bill 1222 and officially became law on July 11th. The amendment outlines the coverage requirements for companies engaging in peer-to-peer carsharing, mandating an additional layer of insurance so injured third parties won’t be left uninsured if a car owner’s policy includes exceptions for livery, or business activities. Peer to peer carsharing is the process of renting vehicles from other people rather than traditional car rental companies. It has been coined “AirBnB for cars” and provides many benefits including lower prices and more variety in vehicle choices. The fledgling industry is not without complications, primarily on the insurance and regulatory fronts. Chief among the insurance issues is that some carsharing networks’ fine print says a renter’s personal auto policy would be the primary source for paying claims, even though most personal policies typically exclude renting or driving car-sharing vehicles from coverage. Some attorneys have noted the amendment is similar in substance to another proposed bill on the topic – Senate Bill 548. The bill, introduced in April 2021, was aimed at putting carshare companies on a more equal footing with car rental companies and to ensure additional protections for owners, drivers and third parties now that carsharing is on the rise. From the defense and carrier standpoint, the new law does not invalidate exclusions that are already in place, and it requires carsharing companies to provide coverage that would otherwise be out of bounds under the owner’s policy. However, litigators on the plaintiffs side have raised questions about the measure’s effectiveness in protecting the parties. Some have expressed concerns that because consumers’ personal auto insurance may contain an exclusion, they may be forced to rent these cars using the companies’ minimum insurance policies, which likely won’t provide adequate coverage in the event of an accident. One thing lawyers on both sides of the issue can agree on is that these new disputes will be headed to the courts. Thanks to Sydney Kockler for her contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact

News Pennsylvania Superior Court Attempts To Interpret Tincher May 13, 2021 < Back Share to: The Pennsylvania Superior Court, in interpreting Tincher, recently confirmed that a plaintiff may simultaneously proceed in alleging a strict products liability defective design claim and a negligent design cause of action. Thus, the legal landscape as to what exactly Tincher means in any practical sense continues to be muddied. In the wake of Tincher, which mixed negligence principles into strict liability claims, trial courts have been plagued with questions whether negligent design and strict product liability defective design are one and the same. The Pennsylvania Superior Court, recently confronted with this thorny issue, held that a plaintiff may proceed with both claims, as Tincher did not entirely eliminate the distinction between negligence and strict liability. Specifically, in Timmonds v. AGCO Corp, plaintiff essentially hotwired a cart and suffered injuries when the cart ran over his leg. At trial, plaintiff’s expert failed to set forth the requisite standard of care that the manufacturer allegedly failed to conform to; as such, the trial court granted a directed verdict, as plaintiff could not show that the defendant “breached any technical, manufacturing, or industry standards.” The product liability allegation reached a verdict for the defendant. At the appellate level, plaintiff argued that the court improperly issued a directed verdict on the negligence claim. Similarly, at the appellate level, the defendant argued that no cause of action for negligent design could exist in the wake of Tincher and the decision of the jury finding the product was not defective. The appellate court indicated that the negligent design and strict liability design claims were not identical, and that plaintiff could simultaneously proceed with both, holding that although Tincher created a composite Consumer Expectations Test and Risk Utility Test, the combination test was still different than a negligent design claim. Nonetheless, the appellate court upheld the dismissal of the negligent design claim, holding that plaintiff waived the claim in any event by failure to appropriately preserve objections and brief the issue. This case continues to show the difficulty that litigants, attorneys, and the courts face when trying to distill Tincher into practical reality. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News The New Normal (NY) August 21, 2020 < Back Share to: The New York Supreme Court Commercial Division has enacted a new rule that allows attorneys to request permission to appear remotely before commercial judges based on a showing of a good cause. The new rule is a clear shift from the status quo of courts operating on an ad hoc basis filled with administrative court adjournments and trial delays. However, what separates the Commercial Division's new rules from most other courts is that it provides attorneys with more autonomy to facilitate the progress of their client’s cases on the trial calendar. It is now incumbent on courts to allow a transition to a more digital platform by allowing remote participation and paperless submissions. We can safely assume that we are in the new normal, and the idea of returning back to pre-covid days any time soon is just a pipe dream that only delays bureaucratic operations even more than they were before the pandemic. Attorneys and court staff continue to acclimate themselves to the new changes and adapt to attending hearings and conferences remotely. Thanks to James Papadakis for his contribution to this post. Please contact Heather Aquino with any questions. 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 Florida Appellate Court Approves Of Insurer’s Right-to-Repair In Lieu Of Payment Clause March 4, 2022 < Back Share to: People’s Trust Insurance Company takes an unorthodox approach to homeowner’s insurance, “In return for a premium discount, the [] policy contain[s] a Preferred Contractor Endorsement” which gives “People's Trust a right-to-repair option, i.e., after inspecting a covered loss, People's Trust ha[s] the option to select its own contractor [and] to repair the damages to the insureds’ property in lieu of issuing a loss payment that would otherwise be due under the policy.” See, People's Trust Insurance Co. v Tosar, 46 Fla. L. Weekly D 2651, 2021 Fla. App. LEXIS 15605, 2021 WL 5912737 (Fla. 3d DCA December 15, 2021). After their home was damaged by Hurricane Irma, the insureds’, Mr. & Ms. Tosar made a claim. Peoples Trust did not dispute coverage and, after timely inspection, elected to repair all covered damage exceeding the policy’s deductible. The insureds challenged Peoples Choice’s estimate, and Peoples Trust triggered the policy’s appraisal clause. Instead of proceeding with the appraisal, the insureds sued. Peoples Trust asked for, and the court compelled appraisal. The appraisal award exceeded Peoples Trust’s initial estimate and, pursuant to its policy, Peoples Trust asked the court to require the insureds to authorize it to make the required repairs. After the court declined to do so, the insureds asked the court to order Peoples Trust to pay them the appraisal award. The trial court ordered Peoples Trust to pay the appraisal amount less the deductible, and Peoples Trust appealed. The appellate court found that the policy was not ambiguous and that that appraisal award simply established the scope of the repairs to be performed “in lieu of a loss payment.” The appellate court found the policy’s “right-to-repair option” valid and enforceable, and ordered the trial court to enforce the policy as written. Florida is in the midst of an insurance crisis. Homeowners’ insurance generally, and windstorm coverage in particular, is hard to find and expensive. In reaching its decision, the appellate court signaled that Florida’s courts will enforce creative policies, that lower insurance costs, so long as the policy unambiguously explains the nature and scope of the insurance provided. Thanks to Charles “Chip” George for his contribution to this post. Please contact Chip with any questions Previous Next Contact

News But They Acted So Nice! Pleasant Social Interaction Does Not Excuse Late Notice of Claim April 6, 2012 < Back Share to: Disclaimers of coverage based on untimely notice are always a source of controversy, and it is interesting to see how various jurisdictions deal with the issue. Recently, the Connecticut Supreme Court made new law concerning the scope of an insured’s duty to notify its insurer of a potential claim. The Court ruled that the insured cannot excuse late notice simply because he spoke with the claimant who did not indicate that he would bring a claim. A subjective belief that there would not be liability does not excuse late notice where the circumstances would have led a reasonable person to believe that he/she could potentially be liable. In Arrowood Indem. Co. v. King, the insured’s son was driving an ATV and used a rope attached to the ATV to tow the claimant on a skateboard. The claimant fell off the skateboard and suffered severe head injuries. The insureds did not notify their insurance company of the accident because they met the injured boy’s parents and the parents did not indicate that they intended to bring a lawsuit. The court ruled that regardless of the insureds' belief based on the social interactions between the parents, a reasonable person would have believed that liability may have been incurred because of the severity of the injury. Therefore, the insureds failed to provide timely notice and the insurer could deny the claim as long as it proved prejudice. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com   Previous Next Contact

News Father Knows Best: Church Assets May Be Valued In a Pastor's Divorce Proceeding November 15, 2007 < Back Share to: The wife of a pastor sued for divorce in New York. Her attorney argued that the pastor --the wife's estranged husband-- used the church's assets as his "personal piggy bank." Not suprisingly, the pastor protested that he was merely a humble "W-2" employee of a duly registered not for profit religious corporation. Ruling that the church and its finances may be considered the pastor's "alter ego" if he had unfettered control of its assets for his personal use, the court permitted the wife to pursue the valuation of the church's assets for equitable distribution purposes. We are reminded of the biblical admonition: You reap what you sow. (Galatians 6-7) Or the more practical lesson to be careful how much you tell your spouse if your marriage is on shaky ground. http://www.nylawyer.com/adgifs/decisions/111507diamond.pdf Previous Next Contact

News Shelter's Vague Warning about Dog's Viciousness Deemed Sufficient Warning (NY) August 26, 2016 < Back Share to: It isn’t every day that the plaintiff in a dog bite case sues after being bitten by her own dog, but that is exactly what happened in Tiger v. North Shore Aminal League. In Tighe, the plaintiff adopted a dog from her local shelter. At the time, the shelter told her the dog could get a bit possessive about food. But she soon discovered that food jealousy was the least of this dog’s problems. When she took the dog home, she learned that it also had a habit of jumping into her fence when people passed by her yard and growled whenever it was feeding time. She also learned a more painful lesson when dog bit her hand, prompting a hospital visit. But it was only when the dog bit her in the face a few months later that the plaintiff sued the animal shelter. As it turned out, the shelter never told the plaintiff that the dog had previously bitten someone in the face. In the trial court, the shelter moved for summary judgment. Although the lower court granted the shelter’s motion to dismiss for intentional infliction of emotional distress, it denied the shelter’s motion to dismiss the negligence and breach of warranty causes of action. On appeal, the Second Department reversed. Although the shelter failed to disclose the fact the dog previously bit someone in the face, the court held that the failure to specifically warn the plaintiff about face biting was not the proximate cause of the plaintiff’s action. The court reasoned that under New York law, if the owner of a domestic animal delivers that animal to another, and warns that person of the animal’s vicious characteristics, the owner is not liable. The lesson to be gleaned from Tighe is that warnings about an animal’s viciousness need not provide a laundry list of every one of the animal’s shortcomings. It is sufficient to tell the other person the animal is really a beast. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions.       Previous Next Contact

News Make Sure Your Expert Backs Up Their Findings (NY) November 18, 2022 < Back Share to: In Augustus v. Negron, 2022 NY Slip Op 06255 (2nd Dep’t, Nov 9, 2022), plaintiff brought suit after a motor vehicle accident. Pursuant to New York State Insurance Law, a plaintiff has to establish that he/she suffered a serious injury pursuant to Insurance Law § 5102(d). A failure to do so in motor vehicle accident means the plaintiff would not be able to sustain a lawsuit in New York. After Justin Augustus brought suit to recover for his personal injuries, the defendants moved for summary judgment stating plaintiff failed to establish he suffered a serious injury within the meaning of Insurance Law § 5102(d), and presented evidence of the independent medical examination in support. The motion was granted by the trial court. On appeal, the plaintiff argued the defense failed to proffer competent medical evidence that the plaintiff did not sustain a serious injury causing either permanent consequential limitation of use or significant limitation of use categories under the Insurance Law. This argument was not persuasive to the Second Department. Specifically, the Second Department held defendant’s expert, although finding that there were no significant limitations, “failed to substantiate his belief that the limitations were self-imposed.” As it applied to the back injuries allegedly suffered, the defendants were found to have similarly failed to make a showing that the injury was not caused by the accident. As such, the court did not even review plaintiff’s appealing papers, and granted plaintiff’s appeal, overturning the initial grant for summary judgment. Thus, it is imperative to ensure that the expert reports do far more than merely stating the injury sustained was not casually related, or that the injury is self-limiting in nature. The IME doctor, particularly in his/her report, must provide a sufficient medical explanation for how they made such a determination, otherwise summary judgment may not be in the cards. Thanks to Christopher Palmieri for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact