Wade Clark Mulcahy LLP

News WCM’s 2020 Year in Review December 30, 2020 < Back Share to: At this point, more than enough has been written about 2020. COVID-19 changed the world, and how we all view it. When we left our physical offices in mid-March – and told everyone we’d see them the Monday after Easter – the prospect of working remotely for a month seemed like an eternity. Nearly ten months later, and well, here we are. Despite the pandemic, Wade Clark Mulcahy LLP has continued to grow in 2020, as Bob Cosgrove and Mike Bono took the reins of WCM’s Management Committee. This year, Tom Decker, Bruce Magaw, Tom Bracken joined WCM as partners, while Vivian Turetsky was promoted to partner. Jennifer Seme, Debra Kuser and James Scott, joined WCM as counsel, and Paul Vitale and Matt Care, who have been with WCM for a few years, were promoted to the rank of counsel. In addition, with WCM having a longstanding relationship with the London insurance marketplace, WCM opened its fifth office location in 2020 – in London, England, with Jeff Weston as our London market representative. As you might expect, we do not have any notable trial verdicts to report this year, because quite literally, there were no verdicts this year after mid-March in much of the United States. Social distancing guidelines and jury duty in major cities do not exactly mesh, and this dynamic essentially stopped jury trials altogether in New York, Philadelphia, and much of New Jersey. We anticipate jury trials will resume in late 2021, with a long line of cases ready to be tried – and WCM will be ready to get back into the courtroom. But even without jury trials or in-person litigation, WCM has continued to practice effectively, in ways we had not envisioned before. In March 2020, very few of us had ever heard of Zoom, Webex, Microsoft Teams, Skype for Business, or the various other platforms that allow for video communication. We now use these platforms regularly, and in fact, have conducted dozens, if not hundreds, of depositions, examinations under oath, mediations, motion arguments and conferences, and client training sessions -- all remotely. Perception of remote court proceedings has evolved from “science fiction” in March to commonplace just months later. Remote depositions, in particular, have been a much more effective fact-finding device than we had anticipated. And while we are all eager to get back to in-person legal practice, we think a percentage of remote proceedings – particularly remote mediations – are here to stay. As members of the legal community, we are fortunate that this pandemic occurred in 2020, as opposed to, say, 10 years ago. Remote capabilities would have been completely inadequate; many firms would not have survived. WCM has not only survived, but has grown in 2020, which is a testament to sound planning, hard work, and tireless efforts by our IT director Eric Engelhardt and our operations attorney Chelsea Rendelman. We also owe Brian Gibbons a special thanks for doing all that he can not only to pen holiday greetings, but also for keeping our social media presence vibrant. Certainly, necessity is still the mother of invention. As we enter 2021, the pandemic is by no means over; the winter months ahead require that we abide by CDC guidelines to mitigate risk and hopefully end the pandemic in the coming months. The medical professional community and essential workers deserve our unending gratitude for helping the world continue to function throughout these last months. Despite the present risk, there is (finally) reason for optimism. The CDC has approved vaccines, and distribution is underway. The close of this pandemic is now in sight. And so, on behalf of all of us at WCM, here’s to a brighter and better 2021, when we hope to see many of you in person, get together for lunch, and who knows -- maybe even shake hands! With warm wishes for a healthy (and vaccinated) New Year, Mike and Bob Previous Next Contact

News Follow WCM on Twitter @WadeClarkLaw August 30, 2018 < Back Share to: Wade Clark Mulcahy LLP was founded in 1994 -- long before LinkedIn, Twitter, Facebook, or regular use of email. Some of us even recall writing term papers on typewriters, and doing legal research with -- wait for it -- books! (We weren't equipped to copy our grammar school reports from the internet. Nope -- we copied them from the encyclopedia!) As technology progresses, WCM has continued to evolve. More and more courts require mandatory e-filing, and we are shifting toward being a completely paperless law firm across our New York, New Jersey and Philadelphia offices. Moreover, our law blog, Of Interest, has been active for years, providing weekly insights on current legal issues and cases that we think appeal to insurers and other interested parties. If you enjoy our weekly blog posts, then follow us on Twitter @WadeClarkLaw, or check out our LinkedIn page, Wade Clark Mulcahy LLP. We will be featuring similar articles and posts on Twitter, and occasionally commenting on news articles that are relevant to our industry. And if you're a regular #OfInterest reader, you know that Dennis Wade comments on This and That from time to time. We'll tweet those as well. And with regard to commentary on pertinent legal issues in the news (ala, "ripped from the headlines") we will be adopting time-tested pub rules: No religion, no politics. (There are certainly other social media forums for you can find your fill on that!) Please contact Brian Gibbons by email (or while we're at it, on Twitter @bgibbons35) with any questions. Have a happy and healthy Labor Day weekend! 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

WCM offers time-tested skill and experience in representing domestic and international insurers in coverage disputes. Our expertise extends to contract interpretation, compliance, misrepresentation, fraud and reinsurance issues. We have achieved consistently superior outcomes in major coverage disputes. Sometimes our victories come in the courtroom. But often, our advocacy results in early resolution, yielding great savings to our clients. Working with a network of local counsel, WCM frequently is called upon by its clients to represent their interests in jurisdictions throughout the United States when substantial legal or financial risks are involved. Insurance Coverage WCM offers time-tested skill and experience in representing domestic and international insurers in coverage disputes. Our expertise extends to contract interpretation, compliance, misrepresentation, fraud and reinsurance issues. We have achieved consistently superior outcomes in major coverage disputes. Sometimes our victories come in the courtroom. But often, our advocacy results in early resolution, yielding great savings to our clients. Working with a network of local counsel, WCM frequently is called upon by its clients to represent their interests in jurisdictions throughout the United States when substantial legal or financial risks are involved. Practice Lead Robert J. Cosgrove Executive Partner +1 267 239 5526 rcosgrove@wcmlaw.com Download Download

News It’s Just Part of the Game: Plaintiff Assumes Risk with Collision at Third (NY) April 23, 2021 < Back Share to: In Infant v. Loisaida Inc, plaintiff, a thirteen-year-old, was injured when, as he was fielding at third base in a baseball game, a baserunner slid into the base and collided with his left shin. Infant plaintiff brought suit alleging negligence of the league for his injuries. Defendants argued that the plaintiff assumed the risk, as he had played baseball for seven years. The lower court dismissed the case against the defendants and plaintiff appealed. The Appellate Division, First Department affirmed the lower Court’s decision under the doctrine of assumption of risk, as knew the inherent risks of the game. He was injured in a common play in baseball. The Court rejected plaintiffs' argument that the baserunner's metal cleats created an enhanced or concealed risk that was not assumed. The little league rules that defendant was required to follow permitted the wearing of such cleats, and both the 13–year–old infant plaintiff and his father testified that they observed the baserunner wearing metal cleats. Plaintiffs have not shown that defendant failed to provide safety equipment that would have prevented the inherent risks. Since recovery is precluded by the fact that he assumed the risks inherent in playing baseball, plaintiffs may not recover under a theory of negligent supervision Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Can Plaintiffs Pass the Parker Test? The Future of Asbestos Litigation (NY) October 18, 2018 < Back Share to: Back in 2017 in Matter of New York City Asbestos Litigation, the Appellate Division, First Department affirmed a trial court ruling that granted defendant Ford’s motion for to set aside the verdict. And the Court of Appeals is set to rule on the admissibility of expert opinion in the underlying trial. In the underlying action, decedent, Arthur Juni, passed away from mesothelioma allegedly caused by exposure to asbestos while he worked as an auto mechanic. Decedent worked for non-party Orange & Rockland Utilities from 1966 – 2009, servicing predominantly Ford vehicles. He was issued a respirator in 1988, but was exposed to asbestos for approximately 25 years prior to that. The jury awarded decedent’s wife and administratrix $3M for her loss and $8M to the estate for pain and suffering. The judge granted Ford’s motion to set aside the verdict for failing to quantify decedent’s exposure levels or provide scientific expression of his exposure level with respect to Ford’s products. To be clear, a plaintiff must prove not only that mesothelioma was caused by exposure to asbestos, but also that exposure was to sufficient levels of the toxin to have caused the illness. Due to studies that found mechanics working on friction products found no increased risk of mesothelioma and studies showing that only 1% of dust blown out from brake drums is comprised of asbestos, the trial court was not convinced with plaintiff’s experts that the cumulative exposure was sufficient to link decedent’s mesothelioma to the exposure. Relying on Parker v. Mobil Oil Corp. which addressed a claim of years of workplace exposure to benzene in gasoline as a cause of acute myelogenous leukemia, New York established a rule in toxic tort cases that, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).” In a fractured opinion, the Court agreed that there is consensus in the scientific community as to general causation, i.e., the link between asbestos and mesothelioma, but felt decedent failed in proving he was exposed to a sufficient amount of visible fibers to cause the disease, or, in the alternative, that a sufficient amount of toxins existed in the inhaled “visible dust” to cause the disease. Given the complexity of the inquiry, the Court of Appeals heard oral arguments on decedent’s final appeal and is due to decide this issue within the next month. Associate Justice Feinman who authored the dissent at the 1st Dept. level, and has recused himself, but should his brethren follow his lead, an asbestos plaintiff would have to show (1) regular use by an employer of the defendant’s asbestos-containing product, (2) plaintiff’s proximity to that product, and (3) exposure over an extended period of time. Should the Court affirm the First Department, plaintiffs would have an additional hurdle in proving a specific relation to the exposure and the disease. In the instant case, the Court found the experts to be too general, subjective and conclusory to find that decedent’s exposure was a significant factor in causing his cancer. The battle of the experts in these cases have an unenviable job of using mathematical modeling or qualitative comparisons to recreate conditions, often decades after exposure and explaining their findings in lay terms for their non-medical audience in judges and jurors. The Court of Appeals then must balance the danger of accepting correlation as causation and creating an insurmountable standard that would deprive plaintiffs of their day in court. This decision could be a game changer in the future of asbestos litigation. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Duty to Prevent Assault? ... Not In Adult Care Facility (NY) April 18, 2013 < Back Share to: In Malave v Lakeside Manor Homes for Adults, Inc., the Second Department affirmed summary judgment to the adult care facility defendant, Lakeside, finding it owed no duty of care to its residents for personal injuries caused by another resident. The court reasoned that the facility had no authority or ability to control the conduct of a third person. In Malave, the plaintiff was stabbed by another resident during an argument in Lakeside’s lobby. Plaintiff commenced suit against Lakeside and the resident who stabbed him. Plaintiff alleged that Lakeside was liable because, among other reasons, it had a duty to protect him from the assaults of other residents. Lakeside presented evidence that it was an adult care facility. An adult care facility is defined as a “family-type home for adults, a shelter for adults, a residence for adults or an adult home, which provides temporary or long-term residential care and services to adults who, though not requiring continual medical or nursing care […], are, by reason of physical or other limitations associated with age, physical or mental disabilities or other factors, unable or substantially unable to live independently.” Lakeside also presented evidence that, as an adult care facility, its residents were free to come and go as they pleased, and that in order to remove a resident from the facility, it would need to commence an eviction proceeding. Lakeside did not require the issuance of day passes, which would have been indicative of a certain level of authority and control over its residents, who did not relinquish general autonomy. Courts have imposed a duty of care where a party has sufficient authority and ability to control the conduct of third persons. However, it distinguished the adult care environment since such a facility does not fit into this category. In this respect, an adult care facility has a much more limited ability than, for example, mental institutions. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News SDNY denies Lloyd's motion for summary judgment because key JB term was undefined. October 11, 2007 < Back Share to: In the case of Alex & Alex Diamonds, Inc. v. Certain Underwriters at Lloyd's, London, Lloyd's attempted to disclaim coverage because the JB policy did not provide coverage for commission salesmen. Alex & Alex argued that the man from whom the $160,00 worth of jewelery was stolen was not a commission salesman, but rather an employee. Trial court held that because policy did not define term "commission salesman", it could not determine as a matter of law whether individual was (or was not) a commission salesman. http://web2.westlaw.com/welcome/NewYork/default.wl?fn=_top&rs=WLW7.09&mt=NewYork&vr=2.0&sv=Full Previous Next Contact

News Sports Injuries - Some Risks are Still Assumed (NY) March 10, 2017 < Back Share to: One piece of common sense courts tend to follow is that people usually assume the risks inherent in the games they play. Whether it’s a hockey player who might slip on the ice or a gymnast who might fall off the rings, people cannot expect to recover in a court of law just because they hurt themselves while playing a sport. Liability attaches when a property owner fails to correct risks outside the scope of a given activity. A recent First Department decision should provide a degree of comfort to property owners whose facilities host multiple sports. In Egbebemwen v. Nerw York City Department of Education, the plaintiff was a 15 year old boy who injured himself on a wrestling mat after trying to dunk a basketball. Though the mat was a few feet out of bounds, the plaintiff argued the defendant was negligent by leaving the mat so close to the court. The First Department rejected this argument, and held that the defendant was entitled to summary judgment, because the plaintiff was aware of the mat, and that it posed a tripping hazard. In other words, the risk was open and obvious. On a personal note, this facts pattern reminds me of a similar situation when I was a junior at Regis High School. While playing basketball, I sustained a high ankle sprain when my classmates and I neglected to move a small hockey goal from underneath the backboard in our lower gym. Predictably, I landed awkwardly on the goal and badly sprained my ankle. Adding insult to injury, I didn't secure the rebound. Ah, I can still hear the sympathetic cries of one of my classmates: "Sub! I'm in for Gibbons, he's down!" Men for Others, indeed. (No, there was no insurance claim or lawsuit. In fact, I think we were reprimanded for being careless and damaging the goal. The good ol' days.) Despite this decision, property owners should still take care to properly maintain their facilities. In Egbebemwen, the Court was careful to note that the Plaintiff had observed the dangerous conditions before. While a plaintiff who is aware of risk may be barred from recovery by assuming the risk, there may have been a different outcome if a newcomer to the facility had fallen to the mat. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Piling Up The Slush Leads To Potential Negligence (NY) January 30, 2020 < Back Share to: In Berganzo v. Bronx Realty Group LLC, the Appellate Division, First Department addressed whether the defendant/property owner created an icy or slushy condition by improperly piling snow in the area where the incident occurred. The case involved a personal injury action where the owners moved for summary judgment arguing that they did not have actual or constructive notice of the icy condition which caused the plaintiff’s alleged fall, and that the fall occurred while a storm was in progress. The plaintiff slipped on ice on the defendant’s property between 5:00 am and 6:00 am. The defendant’s argued that since it was raining at the time of the accident that they were relieved of their duty to keep the premises safe until the storm concluded. The lower court denied the defendant’s summary judgment motion on the basis that issues of fact existed as to whether the property owners negligently caused the condition by piling snow in the area where the incident occurred. Specifically, one witness alleged that there was 3 to 4 inches of snow in the area of the incident in the days prior to the accident. The Appellate Division affirmed and held that issues of fact existed as to whether the defendant’s created the icy or slushy conditions. This decision serves as a reminder for property owners that when piling snow on their property to be careful that it does not create a dangerous condition. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Health Insurer's Subrogation Right Survives in New York March 15, 2009 < Back Share to: As medical costs continue to rise, the health insurer's role in personal injury actions is certain to increase. In Fasso v. Doerr, the health insurer intervened in a medical malpractice action to recoup the $780,000 it had paid for plaintiff's medical bills. The Court of Appeals held that a settlement below plaintiff's claimed damages did not extinguish the health care carrier's subrogation claim because there was still available insurance coverage. Further, an agreement between the tortfeasor and injured party cannot extinguish the health carrier's claim without it consent. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01320.htm Previous Next Contact

News PA Superior Court: Unfair Trade Practices Violation = Bad Faith? May 3, 2012 < Back Share to: In the case of Berg, et al. v. Nationwide, the plaintiffs were insured by Nationwide when their SUV was significantly damaged in an accident. The plaintiffs took their car to a preferred Nationwide vendor for repair and the car was returned after 4 months. About a year after the repair, the plaintiffs were advised (by an ex-employee) that their SUV might be subject to structural failure. Plaintiffs sued Nationwide alleging breach of contract, negligence, common law fraud, conspiracy, violation of the UTPCPL and insurance bad faith, 42 Pa.C.S.A. § 8371. The jury found for plaintiffs during the first part of a bifurcated trial, deciding that Nationwide violated the catchall provision of the Unfair Trade Practices and Consumer Protections Law. However, during part two (the bad faith part) of the trial, the trial court granted Nationwide’s motion for a directed verdict in part because it found that Nationwide's violation of the UPTCPL did not mandate or allow a finding of bad faith against Nationwide. The Superior Court overturned this decision. It held that its decision in Romano v. Nationwide had direct application to the case at hand. Romano held that a plaintiff seeking damages under the insurer bad faith statute section 8371 may, as a means to prove bad faith, introduce evidence that the insurer violated any of Pennsylvania’s insurance statutes, even if the statute does not provide for a private right of action. Here, the jury’s finding against Nationwide was not sufficient in and of itself to support a finding of bad faith, but Nationwide’s violation of the UPTCPL was held to constitute some evidence of bad faith. The Superior Court went on to explain that because there was some evidence of bad faith, a directed verdict in favor of the insurer was improper. Yet another peril for insurers to avoid in PA. Thanks to Remy Cahn for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com   Previous Next Contact