News Happy Thanksgiving From Our WCM Family To Yours! November 23, 2016 < Back Share to: We wish you all a happy holiday! Previous Next Contact

News Attorney Client Privilege Under Siege in Philadelphia. September 28, 2018 < Back Share to: An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees. The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions). This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly). In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg. The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services. In the regular course of discovery, the defense attorney identified 16 employee fact witnesses. He then interviewed them and took their statements. Privileged, right? "No" said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege. The Waste Services’ attorney was ordered to produce all of the interview notes and statements. Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal. Where the appellate court ultimately comes down remains to be seen. But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent. Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged. For more information about this post, please e-mail Bob at RCOSGROVE@wcmlaw.com Previous Next Contact

News Cell Phone Update: Potential Liability for Texting a Driver (NJ) August 27, 2013 < Back Share to: What did we do before texting was invented? Although some people believe that it is quaint and outdated, we actually spoke to each other. Sometimes we talked by telephone or in person. Now, texting is a preferred method of communication with its own grammar, spelling and acronyms. Like any new techology, texting has a dark side. At its worst, it can distract drivers from the hazards of the road, sometime with fatal consequences. We know that a "texting driver" may have both criminal and civil liability if an accident ensues but what about someone who texts a driver who then causes a serious accident? Can the third party who sent the driver a text be liable as well? In Kubert v. Best, Kyle Best, age 18, was driving his pick-up up truck when he apparently received a text message from his 17 year old friend. Momentarily distracted by the text, he crossed the double yellow line and struck a couple riding a motorcycle, causing them both serious personal inuries. The couple sued Kyle as well as the friend who sent him the text. The lower court ruled that the texting friend had no duty to refrain from sending the text and the plaintiffs' appealed. The Appellate Division affirmed the dismissal of plaintiffs' complaint but held that a person may be liable for sending a text message to the driver of a motor vehicle only if he knows or has reason to know that the recipient will read the text while driving. In this case, plaintiffs' proof fell short of the mark so the dismissal was affirmed. But the door is now wide open to impose liability for an accident on a person not physically present in the motor vehicle if the sender of a text is aware that the receipent may receive and review the text while driving. If you have any questions, please email -- or text-- Paul at pclark@wcmlaw.com   Previous Next Contact

News New York Appellate Court Reminds the Bar that Unexcused Law Office Failures Are Not Enough to Vacate a Default August 9, 2024 < Back Share to: To vacate a default in New York, a party must generally establish that they have a valid excuse for not timely appearing and that they have a valid defense to the lawsuit. In All Island Estates Realty Corp. v. Roma Imported Car Center, Inc. , the Second Department addressed a situation where the trial court dismissed plaintiff’s lawsuit with prejudice where plaintiff’s attorney defaulted their client by failing to appear for multiple compliance conferences. In that case, the parties entered into a contract for plaintiff to list and sell the defendants’ property. Defendants tried to get out of the contract and ended up selling the property with a different firm. Plaintiff’s resulting lawsuit was dismissed after their attorney failed to appear at back-to-back compliance conferences and no reasonable excuse was provided. Plaintiff moved to vacate the dismissal order, but the motion was denied on the basis that the “law office failure” excuse was found to be conclusory and unsubstantiated. The Second Department noted that law office failure can be a reasonable excuse if demonstrated with a detailed, credible explanation for the failure, and where the failure was from an isolated and inadvertent mistake. Should the party moving to vacate an order of default properly demonstrate a reasonable excuse for the default, the court then moves to a determination if there is a demonstrated existence of a potentially meritorious cause of action. However, the Court did not have to reach the second step as it agreed with the trial court that plaintiff failed to provide a detailed and credible explanation for the plaintiff's failure to appear at the first conference and its claim of law office failure was contradictory and unsubstantiated. Accordingly, the Second Department found that the trial court correctly exercised its discretion in determining that the plaintiff failed to offer a reasonable excuse for its default and affirmed the dismissal. The case serves as a reminder for law firms to be careful in managing their calendars and to ensure that all scheduled court appearances are covered or adjourned as necessary. Where there is a pattern of failures, the penalty could be dismissal or default being entered against a defendant. Where an inadvertent default occurs, firms should be prepared to submit a detailed affirmation explaining the reason for the non-appearance to establish a proper “law office failure” defense. Thank you to William Healy for his contribution to this post. All Is. Estates Realty Corp. v Roma Imp...Car Ctr., Inc .pdf Download PDF • 179KB Previous Next Contact

News Fraudulent Claims Involving Staged Accidents on the Rise (NY) June 4, 2010 < Back Share to: In difficult economic times, an increase in insurance fraud often follows. Recently, the National Insurance Crime Bureau published a report showing that staged auto accident questionable claims increased by 46% from 2007-2009, despite the fact that auto personal injury claims and claims for PIP benefits decreased during that period. New York was the second highest state for such claims, falling only behind Florida. And the number one city? New York, with more than 1,300 claims. If you would like more information about this post, contact mbono@wcmlaw.com https://www.nicb.org//newsroom/press_releases/staged-accident-questionable-claims-up Previous Next Contact

News Federal Court Shuts Down Plaintiff On A Products Liability Warning/Defect Case (PA) December 16, 2022 < Back Share to: In the recent case of Mains v. Sherwin-Williams Company, United States District Court for the Eastern District of Pennsylvania reiterated a plaintiff must actually read the product’s warning labels, or provide evidence to support a reasonable inference that additional warnings may have prevented the injury. Plaintiffs’ suit for strict liability, negligence, and breach of implied warranty, alleged fire damage to their residence resulting from spontaneous combustion of defendants’ wood stain product. Defendant-Sherwin-Williams moved for summary judgment, arguing plaintiffs cannot prove causation on their strict-liability-failure-to-warn claim because they admitted to not reading the product’s warning labels. Plaintiffs’ home burned the night after Defendant’s wood stain had been used to stain the home’s outdoor deck. Plaintiffs alleged rags with the spontaneously combustible stain on them were improperly left out in the sun after use, which caused them to heat up and catch fire. The can of wood stain did have a small warning in the back of it, advising users of proper disposal methods, and the risk of combustion if such warning wasn’t adhered to.[1] Court held plaintiffs must show “evidence in the record to support a reasonable inference additional reminders may have forestalled” injury. While Plaintiff argued that “he may have read warnings on the can if they had ‘jumped out’ at him,” but he provided no expert to opine that the defective warning, or the product in general, caused the fire. The court found Plaintiff’s statement to be purely “speculative” and therefore insufficient to establish causation. Mains case clarifies necessity of causation evidence in a claim for defective warnings, and they must demonstrate that they either read the allegedly defective warnings, or provide evidence, beyond mere speculation, to support a reasonable inference that additional reminders may have prevented the underlying injury. By establishing these prerequisite hurdles for plaintiffs looking to sustain a defective-warning cause of action, the District Court’s decision is a victory for defendants and/or potential defendants subjected to products-liability-warning-defect claims.[1] Id. at 3. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Be Careful with Work E-mail in NJ March 11, 2009 < Back Share to: In Stengert v. Loving Care Agency, plaintiff filed suit against her employer alleging a hostile work environment led to her constructive discharge. During discovery, counsel for the defendant had a search performed on the computer that plaintiff used while an employee in order to recover any deleted information. The search revealed temporary Internet files containing e-mails sent from plaintiff’s personal Yahoo account to plaintiff’s lawyer. Plaintiff took the position that those e-mails were protected by attorney-client privilege, and moved to restrain the use of the e-mails and to disqualify defense counsel. The Court looked to the employer’s communication policy that warned “any and all internet use and communication conducted on the employee’s computer is not private” and that also warned that all such files are considered part of the company’s business. The Court thus held that the plaintiff waived any privilege and denied plaintiff's motion. Thanks to Denise Ricci for her contribution. http://www.judiciary.state.nj.us/decisions/Stengart090305.pdf Previous Next Contact

News Phantom Driver ... Fictitious Party... But Still Liable (NJ) December 22, 2016 < Back Share to: Should a jury be allowed to allocate fault to an unidentified person named as a fictitious party as a joint tortfeasor? Certainly a plaintiff who is unable to collect any award from an unknown party does not think so. However, in the interest of justice, shouldn’t the respective fault of all tortfeasors be considered when a jury weighs each party’s fault? In Krzykalski v. Tindall , the Appellate Division considered these issues and concluded that a jury should consider the fault of all potential tortfeasors when allocating fault. The issue arose in the context of litigation for personal injuries from a motor vehicle accident. Therein, the plaintiff and the named defendant, Tindall, were traveling in the same lane on Route 130. They slowed for an emergency vehicle when a phantom driver, who had been in the right lane, cut off the plaintiff’s vehicle. Although the plaintiff was able to stop in time, Tindall was not and rear-ended the plaintiff’s vehicle. In his complaint, the plaintiff alleged he was injured as a result of the negligent operation of both cars. However, in response to plaintiff’s pre-verdict motion, the judge rejected his request that “John Doe's” negligence be kept from jury consideration. The jury apportioned liability between defendant Tindall (3%) and defendant John Doe (97%). The Court found that the law is best served when the factfinder is allowed to evaluate the liability of all those potentially responsible. For example, pursuant to the Comparative Negligence Act, a non-settling defendant has a right to have a jury apportion the liability of a settling defendant - once it has been proven at trial that the settling defendant was, in fact, negligent. Likewise, the comparative negligence of a phantom driver should also be considered by a jury in a trial brought by an injured party against another tortfeasor. See Cockerline v. Menendez, 411 N.J. Super. 596, 618-19 (App. Div. 2010), cert. denied, 201 N.J. 499 (2010). Plaintiff argued that this case differs from the allocation made in the uninsured motorist context of Cockerline supra, where the UM carrier settled with the plaintiff prior to trial. However, the Court did not find this distinction significant. Rather, the court found that to preclude defendants from seeking an apportionment of liability against a phantom driver would frustrate the purpose of the joint tortfeasor and comparative fault law. In a concurring opinion, Judge Leone wrote, “Assessing the negligence of the fictitious driver prevents plaintiffs from strategically waiting to proceed against UM insurance, allocates fault based on actual negligence of the various drivers, and avoids double recovery by plaintiffs.” Of course in order for any allocation to come into play, there must be sufficient evidence adduced at trial to allow the jury to consider the negligence of any party – fictitious or otherwise. Thus, in order to seek allocation, defense counsel must be sure to introduce sufficient evidence to vault plaintiff’s argument against allocation. Thanks to Ann Marie Murzin for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Court of Appeals Expands Scope of Labor Law § 240(1) April 28, 2008 < Back Share to: In Sanatass v. Consolidated Investing Company, the Court of Appeals recently held that the defendant, an out-of-possession landlord, was still statutorily liable for the plaintiff's injuries despite its lack of notice or control over the work that the plaintiff was engaged in at the time of the accident. The Court rejected the defendant's argument that the tenant's breach of the lease provision that obligated the tenant to obtain the owner's permission before hiring a contractor to perform any alterations severed any nexus between the owner and the plaintiff. Of note, the sole dissenter stated that the Court's "decision unwisely and unnecessarily increases the already heavy burden that Labor Law § 240(1) places on New York property owners." The dissenting Justice further noted that the Court has never addressed the situation of a landlord that did not try to delegate responsibility for worker safety to its tenant, but retained in the lease the power to provide protection for workers by requiring prior written consent before any work is done, only to have the tenant ignore the lease provision and urged the majority not to "expand our already draconian rules of Labor Law § 240 (1) liability." Previous Next Contact

News WCM Sponsors 2012 Wordings Specialists’ Gathering November 9, 2012 < Back Share to: New York, NY WCM, along with many international insurers and law firms, was pleased to act as a sponsor for the 2012 Wordings Specialists’ Gathering XX in London, England on November 9, 2012. An annual event, now in its 20th year, the Wordings Gathering brings together Underwriters, claims professionals and service providers from the Lloyd’s of London and London company markets to discuss differences in policy wordings -- and hoist a pint or two in celebration. Previous Next Contact

News Decision Stinks for Sanitation Worker (NY) September 20, 2012 < Back Share to: In Wagner v. Wody, the plaintiff was injured during his work as a sanitation worker when taking a 30 to 40 gallon garbage bag from the curb in front of the defendants’ home to the sanitation truck. When the plaintiff was turning to throw the bag into the back of the truck, the bag made contact with his leg, and a piece of glass approximately one inch thick and approximately three inches long cut into the plaintiff. Inside of the bag was mail addressed to the defendants, as well as other pieces of broken glass. The defendants moved for summary judgment and the trial court granted the motion. The Second Appellate Department affirmed, holding that “a small piece of glass constitutes ordinary garbage or a common item of trash, the disposal of which is a hazard inherent in the duty of a sanitation worker.” The Court also noted that, although there are certain similar situations where a question of negligence might exist -- such as where heavy construction debris is placed into an ordinary trash receptacle, the small piece of glass was clearly distinguishable. The Court found that plaintiff was responsible for the manner in which he chose to dispose of the trash, throwin this large plastic bag into the sanitation truck. A worker who "confronts the ordinary and obvious hazards of his [or her] employment, and has at his [or her] disposal the time . . . to enable him [or her] to proceed safely . . . may not hold others responsible if he [or she] elects to perform his [or her] job so incautiously as to injure himself [or herself]." Thanks to Jung Lee for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com . Previous Next Contact

News Denial of Claim an Equal Rights Violation? (NY) June 4, 2010 < Back Share to: Insurers that deny coverage often expect their decisions will be challenged in court. But recently, a policyholder made the unusual allegation that a denial of his claim constituted a violation of his civil rights. In Robinson v. Allstate, in 1984, plaintiff purchased a homeowner’s policy, including coverage for plaintiff’s barn, which he used as a “barn/museum” to store his collection of 200 motorcycles. The Allstate agent told him the contents of the barn would be covered, “as long as he was not running a business.” In 1999, gasoline leaked from one of the motorcycles, starting a fire. The barn burned down, and plaintiff suffered $800,000 in damages. Allstate disclaimed coverage, citing to an exclusion barring coverage for structures used for business purposes. Plaintiff sued Allstate in New York State Court, and ultimately a jury held that Allstate properly applied the exclusion. Plaintiff also filed suit in federal court against Allstate, his village, the police department, and the county sheriff, alleging they engaged in a fraudulent conspiracy to deny him coverage for his loss and to violate his equal protection rights. The federal judge held that res judicata barred plaintiff’s lawsuit, because the issues had already been decided in the state court action. But in any event, the court also ruled that plaintiff failed to prove the existence of any conspiracy, and that there was no conspiracy “motivated by a class based animus.” The court thus dismissed the lawsuit, saving insurers from another worry, at least for the moment. If you would like further information about this post, contact mbono@wcmlaw.com http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.%5CFDCT%5CWNY%5C2010%5C20100330_0000347.WNY.htm/qx Previous Next Contact