News WCM Attorneys Become Published Authors in Counterpoint. January 7, 2021 < Back Share to: Partner Bob Cosgrove and associate Lauren Berenbaum and Partner Colleen Hayes have written essays in the COUNTERPOINT - December 2020 Issue, the Pennsylvania Defense Institute’s quarterly newsletter. The PDI is the Pennsylvania state affiliate of the Defense Research Institute. Bob and Lauren's essay is entitled Is Our Biometric Data Protected and explores some of the new legislation, case law and privacy concerns involving the collection of biometric data. Colleen's essay is entitled Close Encounters of the COVID Kind and What It Means for Insurance Coverage and analyzes some of the insurance issues arising out of the continuing global pandemic. For more information about the essays or WCM’s Privacy, Cybersecurity and E-Discovery or Insurance Coverage practices, please contact Bob or Colleen. Previous Next Contact

News New York’s Highest Court Rules Private Facebook Posts Are Discoverable February 16, 2018 < Back Share to: WCM Partners Michael Bono and Brian Gibbons and associate Christopher Soverow have obtained a ruling from the New York Court of Appeals holding that social media records, such as Facebook posts, are not subject to a heightened standard of discovery, and that instead the traditionally broad rules of New York apply. In Forman v Henkin, the plaintiff allegedly fell from a horse due to the negligence of the defendant. As a result of the fall, plaintiff claimed she suffered various injuries, including traumatic brain injury, which resulted in cognitive impairment, emotional damages, and impairment of her ability to socialize or engage in accustomed recreational activities. Among the cognitive effects, the plaintiff alleged she had difficulty reading, using a computer, or composing messages. With respect to Facebook, the plaintiff posted “a lot” prior to the accident, but could not testify as to her post-accident Facebook usage and ultimately deactivated her account some six months later. The trial court granted WCM’s motion for disclosure of Facebook records, but limited such disclosure to all non-romantic post-accident Facebook photos, and information about the date, time, and amount of characters of any Facebook post made after the accident. On appeal, the First Department reversed and held that under the current standard applying to Facebook disclosure, the defendant was unable to establish that there was information on the public section of the plaintiff’s Facebook account that contradicted her claims, and as such, defendant was not entitled to access plaintiff’s private Facebook account. Due to a lengthy two justice dissent, WCM was awarded leave to appeal to the Court of Appeals. The Court of Appeals rejected the heightened standard set by the First Department, holding “[w]hile Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.” The Court reasoned litigants should not be arbitrarily limited by the account holder’s privacy settings, while on the other hand, also recognizing the mere possession of a Facebook account does not render all contents subject to discovery. Rather than embrace a heightened standard or a “one-size-fits-all rule,” the Court provided three broad guidelines to lower courts: (1) consider whether relevant material is likely to be found given the nature of the claims made; (2) balance utility of the records against “any specific ‘privacy’ or other concerns raised by the account holder; and (3) evaluate whether temporal limits are appropriate. With regard to sensitive or embarrassing information, the Court observed the party’s remedy lies in moving for a protective order under CPLR § 3103(a). Citing to privacy concerns, however, is not an automatic restriction on disclosure. Although the Court declined to rule on the controversial question of whether there is any privacy expectation for social media posts, the Court held relevancy trumps privacy, citing the ubiquitous example of disclosure of confidential medical records in personal injury cases. Thus, “[f]or purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.” It will be interesting to see how courts apply this ruling in the future. Of significance, here the Court focused on plaintiff’s prior usage of Facebook, and how post-accident Facebook activity could specifically demonstrate or undercut her claimed injuries, such as cognitive impairment and diminished enjoyment of life. We would expect that similar connections will need to be established in order to trigger disclosure of social media records in future cases, and it will be interesting to see how the standard develops going forward. Thanks to Chris Soverow for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News PTSD Damages Not Permitted In Connecticut Underinsured Motorist Claim In The Absence Of Credible Expert Testimony June 16, 2023 < Back Share to: The Supreme Court of Connecticut recently issued a decision addressing the proof necessary to establish underinsured motorist (“UIM”) coverage for certain damages claims. In Menard v. State, the Court evaluated whether plaintiffs were entitled to receive UIM benefits for post-traumatic stress disorder (PTSD) resulting from an auto accident. Plaintiffs in that case were state troopers who were injured in a motor vehicle accident involving an intoxicated driver and filed actions seeking UIM benefits from the State of Connecticut. The trial court issued judgment in favor of the plaintiffs, except as to their claims for PTSD damages. In doing so, the trial court found that the diagnosis and expert testimony of their expert was not credible and that the covered damages must be caused by “bodily injury”. Plaintiffs had argued that PTSD should be considered a “bodily injury” where plaintiffs have “physical manifestations” of PTSD. The trial court found that the plaintiffs’ PTSD claims were not due to physical injuries. The Appellate Court agreed and determined that the plaintiffs could not recover UIM benefits for PTSD. The Supreme Court agreed with this ruling but based its decision on different grounds. The Court instead found that plaintiffs’ expert witness was not credible and rejected the expert’s opinion that plaintiffs had PTSD. Thus, plaintiffs were not eligible to recover damages for PTSD, even if such coverage was afforded for such an injury under the UIM statute and the State of Connecticut’s UIM policy. The Court found that the trial court did not act arbitrarily in rejecting the expert opinion regarding PTSD and that this was a proper basis for determining UIM benefit eligibility. The Court also reversed the Appellate Court’s holding that the trial court should have reduced the award by the sums plaintiffs received to settle their Dram Shop claims. The Court recognized that the legislature abrogated the common-law rule regarding pretrial settlement payments when it adopted General Statute §52-216a. A trial court may reduce damages to account for pretrial settlement payments when the award would otherwise be excessive as a matter of law in the absence of such a reduction. The Court found that plaintiffs’ damages award was not excessive and that the Dram Shop settlement payments were not a “collateral source” to warrant a reduction. The Menard case highlights the importance of expert testimony in establishing causation and damages in UIM cases in Connecticut. The Court found that plaintiffs there failed to establish certain injuries even though they were potentially covered under the policy and applicable statute. Defendants should be prepared to challenge such claims where the proof is insufficient. Thank you to Arianna Arca for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Third Department Rules Plaintiff Raises Insufficient Evidence of a Defective Condition and Constructive Notice November 10, 2023 < Back Share to: In Guzman v. State , Plaintiff alleged that she tripped and fell after she “stepped into a cracked uneven, raised, depressed portion of the ground in the parking lot." 2023 N.Y. Slip Op. 05566 (3d Dep’t Nov. 2, 2023). Plaintiff alleged that the State of New York was negligent in maintaining the parking lot and sought to recover for her injuries. The trial court found that Plaintiff “failed to establish the existence of an actionable dangerous condition and that defendant had not received notice of any such condition.” Id . The Third Department affirmed, holding that Plaintiff did not meet her burden of demonstrating a defective condition existed in the parking lot because she did not measure the hole she alleges she fell on and only briefly glanced at the hole following the fall. Additionally, Plaintiff and her daughter testified that the weather was clear the date of the accident, but photographic and video evidence depicted a hole filled with water, which prevented the trial court from being able to effectively evaluate the alleged defective condition as it was claimed to have existed on the date of the accident. Id . Regarding Plaintiff’s failure to demonstrate actual or constructive notice, the Third Department cited the testimony of two Department of Transportation employees who both denied receiving any complaints about the hole where Plaintiff allegedly fell prior to Plaintiff’s accident. The Third Department deferred to the trial court’s finding that Plaintiff failed to demonstrate that an actionable condition existed for a sufficient period of time to establish constructive notice thereof. Id. Guzman v. State .pdf Download PDF • 151KB Previous Next Contact

News Data Sellers Face Increased Risks for Vendor Breaches May 9, 2019 < Back Share to: As data breaches, and claims related to data breaches, become more prevalent, parties that collect or sell data have employed contractual means to insulate themselves from exposure, in the event a third-party vendor mishandles the data. To draw an analogy, think of this in the context of the New York Labor Law - building owners contract with general contractors, who in turn, contract with subcontractors, with indemnification flowing "downstream." The idea being, building owners and general contractors look to protect themselves from liability stemming from the negligence of third parties, and utilize contractual indemnification to protect themselves. The data breach world has a similar dynamic. Parties that process, collect and sell data employ, and employ vendors for various reasons, seek to protect themselves from liability stemming from a vendor's mishandling of data. But according to a recent Legaltech News article on breach exposure, the legal responsibility for a breach may still rest with the original seller of that data, regardless of whatever contractual protections that seller has in place. So much for pushing the liability "downstream!" The legal analysis of data breaches is literally evolving by the day, both federally and state by state. If you have questions about this post, or our cyber-liability practice, please contact Brian Gibbons. Previous Next Contact

News "To My Knowledge" Deemed Superfluous By The Second Circuit March 18, 2009 < Back Share to: Often during depositions, the attorney defending the deposition will interrupt an answer with the phrase “if you know,” meaning that the witness should only answer the question if the witness has personal knowledge. An answer to a deposition question, or a statement in an affidavit, stating “to my knowledge” has the same meaning, according to a recent decision by the U.S. Court of Appeals for the Second Circuit. In SCR Joint Venture, LP v. Warshawsky, the question was whether certain debts had been paid in full. The statement “to my knowledge” the creditor had not been paid in full was the same as “I know that” the creditor was not paid. The “to my knowledge” language was redundant. http://www.ca2.uscourts.gov/decisions Previous Next Contact

News NY Court Holds Barricade Outside Normal Risk Of Skating August 4, 2009 < Back Share to: In Levin v. United Skates of America, Justice Kramer of Supreme Court, Kings County denied summary judgment to the owner of a skating rink in a suit brought by the parents of a child who was injured when he attempted to skate under a barricade that partially blocked an entrance to the rink. Defendants argued that the child’s injuries were the result of a risk the child assumed by skating at the rink. The court rejected this argument and held that the placement of the barricade was not a normal risk associated with skating. Indeed the court ruled that the barricade presented a “near irresistible challange” to youngsters who wanted to show off their skating prowess. The court held that questions of fact existed as to whether the child, eight years old at the time of the injury, appreciated the risk such that it could be determined that he assumed the risk of possible injury. Previous Next Contact

News Tenant's Tying Up a Vicious Dog Could Place Liability on Landlord November 12, 2010 < Back Share to: In Jones v Pennsylvania Meat Mkt, the plaintiff was bitten on the leg by a pit bull dog near the rear entrance of a grocery store. At the time of the incident, the dog was tied to a store's dumpster. The store was located in a strip mall and the landlord retained security guards to patrol the property. The plaintiff testified he frequently saw the dog, which allegedly was owned by a store employee, tied to the dumpster. He also testified that the dog had a tendency to bark, growl, and strain against its leash to lunge at people who were passing by. In denying the landlord's motion for summary judgment, the court stated the the evidence raised triable issues of fact as to whether the landlord was aware that the dog was being harbored on its premises, whether the dog had vicious propensities, whether the landlord controlled the area where the incident occurred. http://www.nycourts.gov/reporter/3dseries/2010/2010_07897.htm Previous Next Contact

News Policy Declaring Itself Excess is Ruled to be Excess May 14, 2009 < Back Share to: Petzl America, Inc. manufactured a harness for use by people climbing wall-climbing systems. They sold such a harness to Sport Rock International, Inc., which incorporated it into a wall climbing system that they manufactured. The system was then installed in a gym. Joseph Anaya fell while climbing the wall because an employee at the gym had attached the safety line to the wrong place on the harness. Anaya filed suit. American Casualty covered Petzl. The American Casualty policy named Sport Rock as an additional insured and contained an "other insurance" clause that said that the coverage was primary and that if there were other coverage, "we will share with all that other insurance by..." equal shares or in proportion to policy limits depending on what the other policy permits. Evanston Insurance Company covered Sport Rock. The Evanston policy said that "When you are added to a manufacturer's or distributor's policy as an additional insured....the coverage afforded under this Coverage Part will be excess ...." American Casualty disputed its obligation to bear the entire defense, pointing out that some of the claims against Sport Rock arose from its own alleged negligence, separate and apart from the product defect allegations surrounding the manufacture of the harness. Thus, reasoned, American Casualty, Evanston should bear part of the cost of defense. The court ruled that the clause in the Evanston policy declaring itself excess to the American Casualty policy was to be respected. The court held that the Evanston policy "is rendered excess by reason of the competing "other insurance" clauses" and "will not become obligated to defend the insured until the other carrier's coverage has been exhausted." http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03794.htm Previous Next Contact

Vanancia C. Hyppolite Associate Florida vhyppolite@wcmlaw.com 561 231 2744 Professional Experience Vanancia joined WCM’s Florida office after gaining experience in both the public and private sector, including serving as a prosecutor in Broward County and subsequently practicing insurance defense litigation. Her litigation experience includes first-party property defense, trial preparation, risk analysis, negotiating criminal plea agreements, drafting pleadings and motions, appearing at hearings, and oral advocacy. While in law school, Vanancia focused on public service, serving as a Steven Chaykin Fellow at the University of Miami School of Law’s Center for Ethics and Public Service. In this role, she conducted research and participated in community outreach relating to housing stability and economic development in underserved communities in Miami. She also served as a University of Miami School of Law Public Interest Fellow with the Florida Department of Children and Families, where she assisted with dependency and adoption matters. Outside of her legal practice, Vanancia enjoys spending time with family and friends, volunteering at her church, reading, and exploring restaurants. Professional Activities Florida Bar Association, Member News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Miami School of Law B.A. in Political Science, Minor in International Relations, Florida International University Certificate in Pre-Law Skills & Professional Values, Florida International University Bar Admissions Florida

Brian T. Noel Partner Pennsylvania bnoel@wcmlaw.com +1 267 331 3891 Professional Experience Brian Noel is a trial attorney whose practice spans a broad range of civil litigation, representing clients in complex matters involving products liability, construction defects, construction accidents, premises liability, trucking and automobile claims, and disputes arising from catastrophic injuries and significant property losses. His work includes defending high exposure cases and navigating the technical, regulatory, and industry-specific issues that often accompany them. In addition to his litigation practice, Brian investigates and litigates insurance coverage disputes and advises insurers on fraud-based coverage issues. His work includes policy language analysis, evaluation of coverage positions, and guiding clients through first-party and third-party coverage challenges. Known for his thorough case preparation and practical, results-oriented approach, Brian works closely with clients to assess risk, develop strategy, and resolve matters efficiently — whether through negotiation or trial. Prior to joining WCM, Brian served as a judicial law clerk to the Hon. John M. Gallagher of the United States District Court for the Eastern District of Pennsylvania. Brian also served as an Assistant District Attorney in the New York County District Attorney’s Office, where he was assigned to the Office of the Special Narcotics Prosecutor for the City of New York. In that role, he tried a number of jury trials to verdict and handled long-term complex investigations with local and federal law enforcement authorities. Brian was also an adjunct professor at New York Law School. Brian also serves on the Board of Directors for the Noel Soccer Foundation and is the chairman of its Scholarship Committee. In his free time, Brian enjoys spending time with his wife and three children in the Philadelphia area. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education New York Law School, J.D. Temple University, B.A. Bar Admissions New York Pennsylvania New Jersey Court Admissions Eastern District of PA Southern District of NY Eastern District of NY New Jersey District Court

News Property Damage Claim Goes Up In Smoke (NY) June 6, 2017 < Back Share to: The question of whether the contents of a disclaimer letter could limit an insurer in a later denial of a property damage claim was addressed recently by the Second Department in Swanson v. Allstate. Therein, the court determined that an insurer does not waive its right to rely on an exclusion in the policy if that exclusion was not cited in the initial disclaimer letter. Swanson owned commercial property that was vacant for six months before a fire damaged the building. Swanson made a claim for loss with its carrier, Allstate. Allstate’s initial disclaimer letter failed cite to the policy’s “vandalism” exclusion that excluded fire damages if caused by vandalism in a building left vacate for more than 90 consecutive days. Based upon the town fire investigator's report, the fire was intentionally set, and the owner had admitted to the vacancy in excess of 90 days. A lower court denied Allstate’s summary judgment motion finding that the exclusion was waived under Insurance Law 3420(d) because it was not mentioned in the disclaimer letter. However, the Second Department reversed finding that Section 3420(d) only applied to claims involving death and bodily injury, and hence, not applicable to a pure property damage claim. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact