Wade Clark Mulcahy LLP

News NY App. Div. Dismisses Plaintiff's Complaint Based on Assault May 18, 2010 < Back Share to: In Cagliostro v Madison Sq. Garden, Inc., plaintiff claimed to have sustained injuries to his shoulder when he slipped and fell while attending a rock concert at “the world’s most famous arena”. During plaintiff's deposition, plaintiff stated that he slipped and fell due to liquid on the floor near his seat and hurt his back. Plaintiff was approached by defendant’s employee who told plaintiff to sit at an empty aisle seat. Another employee later approached plaintiff and although plaintiff informed him he was in a lot of pain, he grabbed and pulled plaintiff out of the seat and caused plaintiff to fall and hurt his shoulder. Defendant moved to dismiss plaintiff's complaint on the basis that plaintiff's deposition showed that his injuries were caused by an assault that was time barred. The trial court granted defendant’s leave to amend its answer to include a statute of limitation defense but denied its motion to dismiss plaintiff's complaint stating that "it could not find as a matter of law that plaintiff's negligence claim 'has been completely supplanted by evidence only of an assault.'" On appeal, the First Department found that the plaintiff's injuries were caused by an assault. The appellate court rejected plaintiff's argument that there was evidence sufficient to show a cause of action for negligent training, supervision, and retention of staff. The trial court’s decision was overturned and defendant's motion to dismiss was granted. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04112.htm Previous Next Contact

News 2nd Dept Allows Judgment Entry Where Settlement Not Timely Paid Because Of Delayed W-9 September 16, 2010 < Back Share to: Pursuant to CPLR 5003(a), defendants have 21 days from the plaintiff's tender of a release and stipulation of discontinuance to pay the proceeds of a settlement. If the defendant fails to timely pay the settlement the plaintiff can enter judgment entitling him or her to recover interest, costs and disbursements. In Klee v. America's Best Bottling Co., a pedestrian knock down case, the plaintiff settled his claims for $400,000 and promptly mailed a release and stipulation of discontinuance to the defendant. The closing papers were accompanied by a cover letter disclosing the plaintiff's tax identification number, but not a completed W-9 form. The defendant requested the form, but the plaintiff failed to provide it. Because the plaintiff did not comply with defense counsel's request, the settlement proceeds were not paid within 21 days. Once the 21 days lapsed, the plaintiff entered judgment and the defendant subsequently moved to vacate the judgment, arguing that the Internal Revenue Code requires that the plaintiff provide a W-9. The lower court vacated the judgment. On appeal, however, the Appellate Division, Second Department reversed, holding that the plaintiff fulfilled his obligations under CPLR 5003(a) by tendering a release and stipulation of discontinuance and further held that there is no statutory authority that makes submission of a completed W-9 a condition precedent for payment of the sum due in settlement of a personal injury claim. I note that the Appellate Division, First Department, reached a different conclusion in Cely v O'Brien & Kreitzberg , 45 AD3d 368. Thanks to Ed Lomena for his contribution to this submission. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06361.htm Previous Next Contact

News NY 1st Dept: Plaintiff's Testimony Alone As To Lighting Insufficient To Defeat SJ November 10, 2009 < Back Share to: In Brodie v. Gibco Enterprises, Ltd., the plaintiff, a patron in the defendant’s restaurant, tripped and fell on a single step that separated the bar from the dining area. The plaintiff claimed that the lighting in the bar area was inadequate. The restaurant moved for summary judgment on the grounds that the area above the step was lit by a recessed lighting fixture in the ceiling and that the step neither was inherently dangerous nor constituted a hidden trap. The lower court granted the defendant’s motion and the plaintiff appealed. In affirming the decision, the First Department found that the plaintiff's testimony alone, without any other admissible evidence as to the sufficiency of the lighting or the inherent danger of the step could not defeat summary judgment. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07930.htm Previous Next Contact

News Garbage Can-not a Cause of Action (NY) May 11, 2017 < Back Share to: When an accident occurs and someone has an unfortunate injury, must someone else always be responsible? A creative lawyer can theorize a duty that has been breached in almost any scenario. However, whether they can raise that theory beyond speculation is the issue. At the end of the day, it depends on what facts can be proven to support the theory. In Latuso v. Maresca, the plaintiff commenced a personal injury action arising out of a motorcycle accident allegedly caused by an errant garbage can that had blown into the roadway. When he swerved to avoid it, his motorcycle contacted sand on the roadway causing him to lose control and hit a tree on the defendants’ property. Seeking a culpable party, the plaintiff concluded that the defendants had to be negligent for placing their garbage can on a berm near the roadway in windy conditions. The defendants countered that they had not created nor did they have notice of the condition of which the plaintiff complained. While the defendants did not persuade the motion judge who denied summary judgment, the Second Department was swayed and reversed finding that there was no triable fact citing the principle that “mere conjecture, suspicion or speculation is insufficient to defeat a motion for summary judgment.” Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Proposed OSHA Heat Injury and Illness Prevention Rule Could Create A New Species of Labor Litigation July 12, 2024 < Back Share to: On July 2, 2024, OSHA released a new proposed rule that would create substantial compliance and recordkeeping commitments on all employers conducting outdoor and indoor work in settings where temperatures regularly exceed 80°F. This could notably affect construction, agriculture, and manufacturing, but includes in its scope all general labor. Under the proposed rule, employers are required to develop and implement a work site heat injury and illness prevention plan (HIPP) with site-specific information. The employer must also designate one or more “heat safety coordinators” to implement and monitor the HIPP. Employers must also identify heat hazards, by tracking local heat index forecasts provided by the National Weather Service or by monitoring the actual temperature or heat index at the individual work site. The proposed rule, if approved, would require employers to provide workers with water and shaded or air-conditioned areas to take breaks when temperature at the worksite reach 80 degrees Fahrenheit. At or above 90 degrees (so-called “high heat trigger” conditions), employees must be provided a 15-minute paid rest break at least every two hours in the break area. When determining a high heat trigger is met or exceeded, employees must be notified of the importance of drinking water, employee’s right to take needed rest breaks, and how to seek help for a heat emergency. This proposed rule will enter the public comment phase upon publication in the Federal Register, and it is anticipated that there will be major industry pushback against the new regulations. However, it should be noted that the Biden administration has come out strongly in favor of this proposed rule, based on the rising rate of heat related illnesses and deaths among laborers in the United States. It can be expected that there will be significant pressure for the administration to push for the proposed rule as written. Should this rule come into effect, employers in high-heat sectors such as construction, agriculture, and manufacturing may, in addition to the administrative cost of compliance, face a new species of litigation in employees bringing suit for injuries premised on failure to provide employees with breaks, failure to provide water, or failure to provide sufficient monitoring of high heat conditions. Previous Next Emily C. Walpole Emily C. Walpole Of Counsel 332 345 2226 ewalpole@wcmlaw.com Contact

News Pennsylvania Court Upholds Unlisted Resident Driver Exclusion As Valid Basis To Disclaim Coverage October 3, 2017 < Back Share to: The Pennsylvania Superior Court recently upheld a policy’s Unlisted Resident Driver Exclusion. Specifically, in Safe Auto v. Rene Oriental-Guillermo, the underlying plaintiff was involved in a motor vehicle accident. Following the accident, the underlying plaintiff sued, among others, the driver of the other car, Dixon, as well as the owner of the other car, Dixon’s boyfriend, Oriental-Guillermo. Safe Auto insured Oriental-Guillermo. The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the policyholder, but were not related to the policyholder and whom the policyholder did not specifically list on the policy. Based on this exclusion, Safe Auto denied coverage, as Dixon was living with Oriental-Guillermo, but was neither related to him nor specifically listed on the policy. On appeal, the Pennsylvania Superior Court concluded that the Unlisted Resident Driver Exclusion was unambiguous. The Court also concluded that the Unlisted Resident Driver Exclusion did not violate Pennsylvania Motor Vehicle Financial Responsibility Law (“MVFRL”) nor was it void against public policy. As such, the Superior Court ultimately concluded the Unlisted Resident Driver Exclusion provided a valid basis to deny coverage. Often times drivers will attempt to seek coverage under a policy based on a public policy argument that an insurance company must insure every individual who uses an insured’s vehicle unless the insured specifically asked the insurance company not to provide coverage for that driver. This can lead to unintentional coverage being provided under policies. However, as this case illustrates, with the inclusion of the Unlisted Resident Driver Exclusion (or a similarly worded exclusion), an insurer can limit the scope of coverage provided under its policies, and limit the potential drivers who may seek coverage under a policy. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News Semicolon Brings Victory to Insurer at World Trade Center February 29, 2008 < Back Share to: The Port Authority of NY and NJ owns the land at Ground Zero. Some of that land was under lease to Larry Silverstein when the planes struck on September 11. The Port Authority had a policy at that time with Lloyd's. Exclusion "f" in the Lloyd's policy provided that the policy "does not cover" loss or damage to any property in respect of which any third party "has in force at the time of the loss, pursuant to a lease or other written agreement, valid and collectible insurance in favor of the insured or has otherwise indemnified the Insured against such loss or damage; except that if any person, firm or corporation is required pursuant to a lease or other written agreement to insure any property which would otherwise be covered by this Policy, and for whatever reason such property is not fully insured, then such property will be insured property under this Policy." Fact: Larry Silverstein had procured insurance in favor of The Port Authority but it was insufficient to cover the loss. Fact: Silverstein had agreed in a written lease to indemnify the Port Authority. Based upon the existence of the indemnity agreement, Lloyd's moved for a declaration that Exclusion "f" was triggered and that the loss or damage to the property leased to Silverstein was not covered under the Lloyd's policy. The Port Authority disagreed and pointed to the exception within Exclusion "f" and said that because the Silverstein property was "not fully insured," the Port Authority property was "insured property under this Policy." The court ruled in favor of Lloyd's and held that the exclusion was triggered because Silverstein had agreed to indemnify The Port Authority. The court rejected The Port Authority's argument that because the exception was set off by a semicolon, it must be read to modify both the preceding indemnity clause as well as the preceding insurance procurement clause. The court ruled that "as a matter of law, Exclusion f as set forth in the Port Authority Policy removed the Silverstein property from coverage under the Port Authority Insurance as the Port Authority was indemnified with respect to the Silverstein property at the time of the loss..." Certain Underwriters at Lloyd's v. The Port Authority of New York and New Jersey. SDNY 05 Civ 5239. Decided 2/22/08. Previous Next Contact

News Plaintiffs Might Need a Stopwatch: Plaintiff’s Defect Claim Dismissed Due To Failure To Prove How Long A Defect Existed July 29, 2022 < Back Share to: In Hendershot v. Walmart, Inc., the Pennsylvania District Court for the Middle District of Pennsylvania dismissed a case against Walmart because the plaintiff failed to provide evidence of how long a mat was rolled up before the plaintiff tripped and fell. In Hendershot, the plaintiff filed suit against Walmart after she tripped and fell on a rolled-up mat in her local Walmart store. Walmart filed a motion for summary judgment, arguing that the plaintiff could not meet her burden to prove actual or constructive notice. In response, the plaintiff relied on a unique exception to the notice requirement where “if the harmful transitory condition is traceable to the possessor or his agent’s acts, (that is, a condition created by the possessor or those under his authority), then the plaintiff need not prove any notice in order to hold the possessor accountable.” The court, however, found that the exception did not apply, reasoning there was no evidence that Walmart actually caused the rolled up mat. Thus, there was no actual notice. The court also found no constructive notice as plaintiff failed to show a recurring condition nor that the rolled up mat had been present for any amount of time before she fell. Plaintiff’s speculative claims were dismissed Thanks to John Lang for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Pennsylvania A Legislature Tags In For Third Round of Fight Against Governor Wolf’s COVID-19 Orders (PA) June 12, 2020 < Back Share to: Pennsylvania businesses, while understanding the unique threat posed by COVID-19, have not been uniformly pleased with Governor Wolf’s various shutdown orders that mandated large swaths of business closures. The Pennsylvania Supreme Court held that Governor Wolf had the authority to implement emergency measures. Businesses attempted to short-circuit the original stay-at-home orders arguing it exceeded the authority of the Governor and was unconstitutional for a litany of reasons. The PA Supreme Court disagreed. Now, the PA legislature passed a resolution terminating the emergency orders of Governor Wolf. The PA legislature is arguing that the Governor, in light of the resolution terminating the emergency orders, has no choice but to rescind all COVID-19 closures. The Governor, unsurprisingly, disagrees. The Governor points to a provision that requires his approval of almost any order, rule, or law passed by the legislature. Litigation has commenced. Future employers, hit with lawsuits arguing that an employee was exposed to COVID-19 in the workplace, could point to the resolution by the legislature, indicating that they believed it was “safe” to open and were merely complying with government wishes and trying to start earning money again. Conversely, a plaintiff could point to Governor Wolf’s pronouncements, arguing that it was unwise to open and that the executive branch still considered it unsafe. Thus, given this legal wrangling, on both sides, this will only be one wave in the coming COVID-19 litigation. It won’t be the last. 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 Declaratory Judgment Actions Are Not A Discovery Tool (NJ) July 26, 2012 < Back Share to: One of the methods used by No-Fault providers to fight fraudulent claims is to establish that improprieties with a health care provider’s ownership structure, billing practices, and regulatory compliance. But recently, the Supreme Court of New Jersey held that an insurance company cannot file a declaratory judgment action solely seeking discovery of in an effort to prevent insurance fraud, even where an insured patient has assigned personal injury protection (PIP) benefits to the health care provider. In Selective Insurance Company of America v. Hudson East Pain Management, Selective filed for declaratory judgment against Hudson East Pain Management and several other entities because it noticed what it considered to be “suspicious patterns” in the treatments rendered to Selective’s insured patients, as well as in the corporate links among the various entities. Selective’s insureds had assigned their PIP benefits to the health care providers after being injured in motor vehicle accidents. Although it had requested information on ownership, billing practices, and regulatory compliance from the various entities, Selective did not receive the information it sought, and as a result, filed its declaratory judgment action, citing the “cooperation clause” in its insurance policies, as well as New Jersey statutory authority. The trial court sided with Selective, and ordered the health care providers to produce the requested materials. The Appellate Division reversed this order, holding that Selective’s reliance on the cooperation clause in its insurance policies was improper, and that its demands for discovery went beyond the statutory authority of New Jersey law. On review, the Supreme Court of New Jersey affirmed the Appellate Division, but for different reasons than expressed in the Appellate Division’s decision. The court held that because an assignee of benefits as no greater rights than an assignor, the assignee also cannot have greater duties than the assignor under the contract. Therefore, because the Selective insurance policies did not require the insured patients to provide the information sought by Selective in its declaratory judgment action, the policies could not require the health care providers to present that information. Additionally, the court agreed with the Appellate Division that the PIP statute, N.J.S.A. 39:6A-13, did not provide for the sort of discovery sought by Selective. Finally, the court held that, although New Jersey had a clear public policy against insurance fraud, the means employed by Selective were not the correct avenue for preventing insurance fraud. Although this case does not undermine the ability of an insurance company to seek injunctive or other relief, along with discovery, through the use of a declaratory judgment complaint, it does stand for the proposition that a quest for this sort of discovery cannot be the sole object of the complaint. Thanks to Christina Emerson for her contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

News NY Court of Appeals Issues Important Decision on an Insurer's Duty to Defend June 28, 2013 < Back Share to: We previously posted about the potential significance of the K2 Investment Group, LLP v. American Guarantee & Liability Ins. Co. case, and now the Court of Appeals has issued an important ruling that will impact how insurance companies approach the decision whether to disclaim coverage. Previously, if a New York court disagreed with the insurer’s decision not to defend a case, the court still undertook an analysis as to whether the insurer owed indemnification. Now, however, the Court of Appeals has held that “when a liability insurer has breached its duty to defend its insured, the insurer may not later rely on Policy exclusions" to avoid indemnification. In K2, plaintiffs brought a legal malpractice action against their attorney, Daniels, for his failure to record mortgages. Daniels’ malpractice insurer immediately denied coverage for the lawsuit based on a policy exclusion that barred coverage for Daniels’ acts for a business enterprise in which he had a controlling interest. The insurer contended that Daniels’ liability arose out of his actions to obtain a loan for his own company. The policy also excluded claims arising out of Daniels’ status as a shareholder of a business enterprise. The thrust of the insurer’s argument was that Daniels was not acting as plaintiffs’ attorney, but rather in furtherance of his own company -- acts that were excluded from the malpractice policy. When the insurer failed to pick up Daniels’ defense, the insured defaulted and assigned his rights under the policy to the plaintiffs, who then commenced a declaratory judgment action against the insurer and were awarded summary judgment by the trial court. The Appellate Division, First Department, issued a split decision affirming the trial court’s denial of the motion. The majority of the appellate panel found that that the exclusions did not apply because, according solely to the allegations in the complaint, the insured’s liability did not arise out of Daniel’s ownership interest in his company but instead in his role as attorney to the plaintiffs/lenders. The First Department held that the insurer did not have a right to litigate this factual issue in the declaratory judgment action because a default judgment had already been entered in the underlying suit due to the insurer’s failure to defend Daniels. In their dissent, the two dissenting judges argued that the insurer’s duty to indemnify is based on a determination of all applicable facts and because the issue was not litigated in the underlying action, the insurer was entitled to litigate the issue in the DJ action. Upon review, the Court of Appeals did not even analyze whether the exclusions applied, holding instead that the insurer “lost its right to rely on these exclusions in litigation over its indemnity obligation” because it breached its duty to defend the insured Daniels. The Court’s stated purpose was so that “[t]his rule will give insurers an incentive to defend the cases they are bound by law to defend, and thus to give insureds the full benefit of their bargain.” The Court of Appeals did recognize the possibility of some exceptions, such as where indemnifying the insured would be against public policy (e.g. where the insured is liable for intentional conduct). Based on this decision, in many circumstances insurers will need to strongly consider agreeing to defend the insured under a reservation of rights and then immediately commence a declaratory judgment action to supports its coverage position. Otherwise, they risk being precluded from asserting policy exclusions that very well may apply to the facts of the loss. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to Mike Bono.                       Previous Next Contact

News Happy Thanksgiving to One and All From Your Friends at WCM! November 21, 2018 < Back Share to: We wish all of you and your families a Happy Thanksgiving and a wonderful holiday season! Previous Next Contact