Wade Clark Mulcahy LLP

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

News Employer's Duty To Provide Employee A Safe Workplace Does Not Extend To Inherent Or Obvious Risk January 25, 2008 < Back Share to: In Monahan v. New York City Department of Education, 2008 NY Slip Op 00241, AD Index 2006-08975, Kings Co. Index 22106/05, the plaintiff, a physical education teacher at a City high school alleges she tripped over a wheel attached to the base of a volleyball net and twisted her ankle after she adjusted a volleyball net improperly set up by another teacher. Both plaintiff and defendants moved for summary judgment, the defendants asserting they breached no duty owed to plaintiff and that the injury occurred while plaintiff performed a task inherent to her employment. The trial court denied all motions. In reversing the lower court's decision and granting defendants summary judgment, the Appellate Division - Second Department found that while it is an employer's duty to provide its employees a safe place to work, this duty does not extend to hazards which are inherent to the employee's work. Th Appellate Division added that an employer is not obligated to secure the safety of an employee against a condition that may be readily observed, considering the age, intelligence and experience of the employee. http://www.nycourts.gov/reporter/3dseries/2008/2008_00241.htm Previous Next Contact

News Insurer Benefits from New Jersey Appellate Division’s Reading of Assault and Battery Exclusion (NJ) September 4, 2020 < Back Share to: In Pickett v. Moore’s Lounge, the Appellate Division had to interpret an assault and battery exclusion set forth in a tavern’s CGL insurance policy. A patron of Moore’s had shot and killed Roger Pickett while at the tavern after a verbal fight. The Estate of Pickett filed a seven-count complaint against the tavern, including claims of wrongful death, a violation of a liquor statute, negligent management of employees, negligent hiring, negligent training and negligent retention of tavern employees who allegedly caused the incident. The insurer denied coverage under the assault and battery exclusion. The tavern then settled plaintiff’s claim but sought indemnity from its insurer. The Assault and Battery exclusion provided a justification for the insurer to deny coverage because the injuries sustained by Pickett arose out of any act of assault or battery committed by any person, including any act or omission in connection with the prevention or suppression of such assault or battery. The Appellate Division held that the exclusion was unambiguous and would, therefore, be enforced. The exclusion plainly encompassed negligent acts or omissions that failed to prevent or suppress the assault or battery. This embraced the estate’s general allegation that the tavern negligently failed to exercise reasonable care to assure the tavern was a safe place. This case illustrates the importance of closely scrutinizing the wording of an assault and battery exclusion in a policy, as these exclusions are not one size fits all. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NY's First Department examines "arising out of" additional insured requirement. October 29, 2007 < Back Share to: The First Department overruled a Bronx trial court's decision and dismissed the claims against the defendant insurers. The court held that the NYCHA, a would-be additional insured, was not entitled to AI coverage because the underlying claims (involving a man who was shot on the Housing Authority's premises as a result of a faulty electromagnetic locking system) did not arise out of the work of the named insureds which had completed their work before the shooting occurred. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7029263 Previous Next Contact

News Zipline Included in the Premises and Covered Under the Policy October 31, 2017 < Back Share to: The tension between the scope of coverage for an additional insured and the terms of an underlying contract reared its head when a youth group sought coverage as an additional insured in a zip-line accident case. In Great American Alliance Ins. Co. v. Windermere Baptist Conference Center, Inc.., the Searcy Baptist Church youth group leased camp grounds from Windmere Baptist Conference Center. The camp grounds included a ropes course, dubbed “the Edge.” The lease agreement memorialized numerous benefits, including lodging and recreational activities. Under typical circumstances, a guest camper would have to pay an additional premium for activities at the Edge. No such additional premium appeared in the lease agreement between the Church and Windmere. While leasing the property, one of the Church’s youth group members was injured while zip-lining at the Edge. The Windmere policy provided coverage to the Church as a lessee under a blanket additional insured endorsement, but only for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to [the Church]” by Windermere. Great American argued the Edge was not listed in the agreement and, therefore, coverage was not triggered. The Church argued the lease included any and all recreational activities on the grounds. The Western District of Missouri ruled in favor of the Church, finding ambiguity first in the insurance policy, and then in the underlying contract. With respect to the policy, the court held the additional insured endorsement’s use of “lease premises” conflicted with a layman’s understanding, and resolved the ambiguity in favor of the insured seeking coverage. As for the contract, the court referred to parole evidence showing the Edge was offered as part of the included services. Great American made the correct call based on the information provided. Having been set off from the standard camp grounds and recreational activities, the Edge arguably was not part of the premises leased. Further investigation into the negotiations, though, may have led to a different interpretation at the outset. Insurers are often at the mercy of the information the insured can think to provide. As a result, in-depth investigation by a third-party can uncover critical facts relevant to a coverage determination, saving time and litigation costs down the road. Thanks to Chris Soverow for his contribution to this post.     Previous Next Contact

News An Interest-ing Case for Insurers February 2, 2010 < Back Share to: Roslyn Schiffer was injured in an automobile accident. Lancer Insurance Company insured the owner and driver of the other vehicle. The policy limit was $100,000. The Lancer policy contained a provision that Lancer would pay "All interest on the full amount of any judgment that accrues after entry of judgment....but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance." This policy language closely tracked a NY Insurance Dept. regulation requiring that policies contain a provision that an insurer shall pay "all interest accruing after entry of judgment until the insurer has paid or tendered or deposited in court such part of such judgment as does not exceed the applicable policy limits..." In the Schiffer personal injury case, Lancer Ins. Co. offered Schiffer its full policy limit of $100,000 before trial (and thus, obviously, before entry of judgment and the accrual of any interest). Schiffer rejected the offer and took her case to verdict. The verdict was $776,000. Judgment was entered on September 5, 2007. Lancer sought a ruling that it owed no interest on the judgment because it had offered its full policy limit of $100,000 before the entry of judgment. A trial level court in New York has now ruled against Lancer. The court found that while Lancer had "offered" to pay its policy limit, this did not amount to "an unconditional tender of payment," which the court found was required by the language of the Insurance Dept. regulation. Thus, the court ruled, interest began to accrue at judgment and Lancer must now pay interest on the full amount of the judgement ($776,000). Given that judgment was entered 28 months ago, the interest due on the full judgment is 21%, which comes to $163,000. In short, Lancer offered (tendered?) its policy limit of $100,000 before trial in a good faith effort to protect its insured but now must pay not only its policy limit of $100,000 but an additional $163,000 in interest. Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited October 3, 2013 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News Strict Interpretation of Exclusion Flushes Disclaimer Down the Drain (NY) September 27, 2019 < Back Share to: Insurers are by now well aware of the New York rule placing the burden on the insurance company to demonstrate the allegations of the complaint fall squarely within an exclusion, and that such exclusions are given “strict and narrow interpretations.” In their recent decision in Cohen v. Tri-State Consumer Ins. Co., the Second Department demonstrated just how narrow these interpretations can be. In Cohen, the plaintiffs’ home was damaged after a clogged toilet overflowed, and they sued the defendant insurance company under a homeowners’ insurance policy. The insurers disclaimed coverage relying upon an exclusion for losses caused by “water which backs up through sewers or drains.” Although the plain language of this exclusion appears at least arguably applicable to the claimed loss, New York Courts took a different view. In fact, the Nassau County Supreme Court granted the plaintiffs summary judgment, finding there was no question of fact as to whether the policy exclusion applied. The Second Department affirmed, ruling that plaintiff had demonstrated coverage in the first instance, and held that the exclusion relied upon by the insurer, strictly construed, clearly did not apply to the claimed loss. The case is a sobering reminder of the potential pitfalls of relying on a single exclusion, particularly without strong precedent in support, as the basis for denying a claim, and insurers and coverage defendants would be wise to keep it in mind in performing their coverage analysis. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News WCM Wins Summary Judgment on Melted Ice Slip and Fall December 14, 2018 < Back Share to: Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home. Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients. Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff's argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions. Please email Dana Purcaro with any questions. Previous Next Contact

News Serial Class Action Filer Suffers Set Back January 13, 2009 < Back Share to: A serial class action filing attorney had his case for Consumer Fraud thrown out of court in Hoffman v. ASSEENONTV.com, -- N.J.Super. – (App.Div. 2009). After ordering a product on-line to take advantage of a “free bonus” offer, Hoffman was hit with a $7.95 handling charge. He filed a Consumer Fraud class action lawsuit claiming that despite the fact that the order was cancelled prior to any payment and he was never charged for the product ordered, he nonetheless sustained a diminution to his available credit meriting his representation of a class against the internet marketer. The court disagreed finding that he did not sustain an actual loss as required by the Consumer Fraud Act and upheld dismissal of his case. On the other hand, the court likewise rejected the defendant’s claim for abuse of process against the plaintiff. The defendant had argued that the plaintiff, who had filed over 40 nearly identical lawsuits, had used the process to “extort” settlements prior to class certification. The Court found that it was not in the position to assess the bona fides of settlements in these other actions and upheld dismissal of the defendant’s counterclaim. Thanks to Denise Ricci for her contribution Previous Next Contact

News Social Media Networks: Access Denied February 1, 2013 < Back Share to: In the current age of electronic discovery, social media networks provide an insight into a plaintiff’s state of mind and daily activities, which was once otherwise impossible to obtain. In a blow to the defense, the First Department recently held that a plaintiff's mere possession and utilization of a Facebook account is an insufficient basis to compel plaintiff to provide access to the account or to have the court conduct an in camera inspection of the account's usage. In Tapp v. New York State Urban Dev. Corp., the defendant sought an authorization for plaintiff's Facebook records compiled after the incident alleged in the complaint, including any records previously deleted or archived. In affirming the lower court’s denial of defendant’s request, the First Department held that to warrant discovery, defendants must establish a factual predicate for their request by identifying relevant information in plaintiff's Facebook account. Specifically, they need to identify information that "contradicts or conflicts with plaintiff's alleged restrictions, disabilities, and losses, and other claims." Given an individual’s ability to close their Facebook page to the public, and place various restrictions on who may access the content contained on their profile page, the First Department’s ruling makes it increasingly difficult to obtain access to social media networks, which may be a useful tool in challenging a plaintiff’s credibility at the time of trial. http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00547.htm Previous Next Contact