News Unsigned Contract Can Result in AI Coverage December 28, 2016 < Back Share to: When a blanket additional insured endorsement provides coverage as required in a “written contract,” the First Department says the contract does not need to be signed. In Zurich Am. Ins. Co. v Endurance Am. Speciality Ins. Co., an employee of Kras Interior Contracting Corp. was injured while in the scope of his employment. The employee sued the property owner and Newmark, the property owner’s agent. Newmark hired Kras via a purchase order, which stated, “By accepting the order, vendor hereby agrees to become bound by the terms of the agreement.” The purchase order required Kras to procure insurance and name Newmark and the property owner as additional insureds. Although the purchase order contained signature lines, it was never executed. Newmark’s insurer tendered the defense of its insured and the property owner to Kras’s insurer, and eventually initiated a declaratory judgment action to establish the defendants’ entitlement to coverage as additional insureds. Kras’s insurer argued they did not qualify as additional insureds because the purchase order was not signed and, therefore, there was no contract in place. The First Department noted that the blanket endorsement merely required a “written contract,” but did not require that the contract be executed. Accordingly, the court held that Newmark and the owner were additional insureds. When it comes to evaluating additional insured coverage, both the endorsement and the contract must be carefully scrutinized. The importance of undertaking this analysis cannot be underemphasized given the frequency with which litigation follows the above pattern—worker is injured on the job, sues the property owner and its agents, who then seek coverage as additional insureds to the worker’s employer’s policy. Thanks to Chris Soverow for his contribution to this post.       Previous Next Contact

News If You Win the Lotto in NJ, Don’t Quit Your Job and Hide the Money from Your Poolmates. March 16, 2012 < Back Share to: Office lotto pools are probably only second in US popularity to the NCAA basketball bracket pools. The case of Silva v. Lopes arises out of just such an office pool. Basically what happened is that 6 construction workers would pool their money to buy Mega Millions tickets when the jackpot exceeded $50,000,000; Lopes would then buy the tickets. So it was in November of 2009 –except this time one of the tickets Lopes bought was the winning $77,000,000 ticket. Lopes returned to work the day after winning the lotto. The next day he quit his job and claimed a foot injury. He then claimed the jackpot which his co-workers found out about through the grapevine. The instant lawsuit was commenced. After an 8 day trial in Union County, the jury found for the defendants and awarded them their share of the lotto winnings. What makes the award somewhat unusual is that there were no written documents that confirmed the arrangement between the plaintiffs and Lopes. But it seems clear that the jurors smelled a rat when they heard all the evidence. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NY App. Div. Rules Trivial Defect an Issue of Fact. June 14, 2010 < Back Share to: In Bruinsma v. Simon Property Group Inc., defendants in a premises liability action attempted to move for summary judgment on the basis that the defect was “trivial.” However, the lower court found that defendants failed to demonstrate absence of constructive notice. Plaintiff claimed she suffered injuries after she tripped and fell on what she described as a “bubble” on the floor of the Smith Haven Mall. Defendants moved for summary judgment claiming they had no notice of the defect, and that it was otherwise trivial, and thus not actionable. The Supreme Court, Suffolk County, denied defendants’ motion. Defendant’s appealed and the Appellate Division, Second Department affirmed. It held that defendants failed to make a prima facie showing that the defect was trivial -- stating: the court must look at “the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury” (citation omitted). Based on this analysis, the Second Department held the evidence in the record raised an issue of fact as to whether the defect was trivial, and affirmed the lower court’s decision. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04942.htm Previous Next Contact

News Always Make Sure Your Lawyer Is, In Fact, A Lawyer. April 23, 2010 < Back Share to: Gucci, in its suit in the Southern District of New York, Gucci America Inc. v. Guess? Inc., 09 cv. 4373, accused Guess of "replicating entire Gucci product designs" in an apparent attempt to "Gucci-ize" its product line. Gucci's outside counsel filed a motion for protective order after Guess raised the issue of Gucci's general counsel's Jonathan Moss' status as an attorney, and said it would seek discovery of Moss' communications. Gucci, which fired Moss on March 1, claims that Moss was a member of the California bar, albeit an inactive one, and a member of the U.S. district courts for the central and southern districts of California. Gucci argued that even if Moss was not authorized to practice, it was entitled to invoke the attorney-client privilege because its executives had every reason to believe Moss was authorized. Guess, however, disagreed and argued that Gucci presented "a vivid picture of inattention and indifference" to Moss' qualifications.. Gucci claimed that "even a few minutes of legal research would have revealed that the local rules for the Central District and Southern District Courts require that an attorney maintain continuing and active membership in the State Bar of California to remain a member of both federal bars." Since Gucci did not make even the most elementary investigation of Moss' status, Guess argued that it could not show it had a "reasonable belief" Moss was a bona fide attorney, a prerequisite for claiming privilege under federal law. In an Affidavit, Moss claimed that he "believed it was permissible to work as an in-house counsel for a company in another state" even though he was not admitted to practice in that state. Guess has now requested permission from Magistrate Judge James Cott, who is handling discovery issues in the case assigned to Judge Shira Scheindlin, to file a "brief submission" addressing Moss' affidavit by April 20, 2010. We shall have to stay tuned to see how it all shakes out in federal court. http://www.law.com/jsp/article.jsp?id=1202448268686&src=EMC-Email&et=editorial&bu=Law.com&pt=Law.com%20Newswire%20Update&cn=LAWCOM_NewswireUpdate_20100419&kw=Guess%20Questions%20Gucci's%20Diligence%20in%20Checking%20Counsel's%20Qualifications Special thanks to Sheila Osei for her contributions to this post. Please contact Bob Cosgrove at rcosgrove@wcmlaw.com for more information about this post. Previous Next Contact

News WARNING: Possible Spoliation Ahead August 30, 2024 < Back Share to: Generally, in an action to recover damages for personal injuries, the parties have an ongoing obligation to preserve evidence related to the litigation, e.g. the law does not allow you to either destroy or fail to safekeep evidence (with additional contexts taken into consideration). If a party were to so destroy or fail to safekeep evidence, it would be considered the ‘spoliation of evidence’; an allegation which requires establishing certain elements. So, what happens when a party alleges spoliation on their counterpart(s)? Who or what determines what is or isn’t evidence related to a litigation or whether spoliation did or did not occur? On August 21, 2024, in Jennifer Schaum v. Glass Gardens, Inc., et al. , 2024 N.Y. Slip Op. 04276, the Appellate Division, Second Department, shed light on this subject area. In Schaum , the plaintiff, a supermarket shopper, slipped and fell on a white substance she believed to be sour cream. The next day, the plaintiff’s attorney notified the defendants’ supermarket to “preserve any and all such video recordings” of the accident. Months later, the plaintiff filed an action to recover damages for personal injuries against the defendant supermarket, and, in August 2021, the plaintiff’s attorney served their initial discovery demand requesting approximately three (3) hours of video footage prior to the slip and fall. As for the defendants’ supermarket, they preserved approximately thirty (30) minutes worth of video footage [which began approximately eight (8) minutes prior to the accident]. The plaintiff’s attorney then served a supplemental discovery demand for the same previously demanded three (3) hours of prior video footage. The defendants’ supermarket responded that there was no additional video footage beyond what they had already provided. Pursuant CPLR § 3126, the plaintiff’s attorney moved to strike the defendants answer for the spoliation of video surveillance. The defendants’ supermarket opposed the motion arguing that their failure to preserve the unexchanged portions of the demanded video footage did not deprive the plaintiff of her ability to prove her claim. The lower Supreme Court denied the plaintiff’s motion and she appealed. In reviewing the case, the Second Department noted that a party seeking sanctions for spoliation of evidence must show: (i) that the party with control over that evidence had an obligation to preserve it at the time of its destruction; (ii) that the evidence must have been destroyed with a culpable state of mind, of which includes ordinary negligence; and (iii), that the destroyed evidence would support a party’s claim or defense. Ultimately, the Second Department agreed with the lower Supreme Court and held that the plaintiff failed to show that the ‘destroyed’ evidence, being the non-exchanged three (3) hours prior to the accident, somehow deprived her of her ability to prove her claim. While parties may, at times, seemingly jump at the chance to allege the spoliation of evidence, the Schaum case illustrates the value of ensuring the above elements are established before moving to do so, otherwise their efforts may be ‘spoliated.’ Thanks to William Hoffman for his contribution to this article. Schaum v. Glass Gardens, Inc. .pdf Download PDF • 134KB Previous Next Contact

News WCM Is Pleased to Announce That Dana Purcaro Has Been Promoted to Counsel June 26, 2019 < Back Share to: With effect as of July 1, 2019, WCM is pleased to announce that Dana Purcaro has been promoted to the rank of counsel. Dana, who is based in WCM's New York office, focuses her practice on defense of claims including complex general liability, New York's Labor Law, premises liability, property damage and motor vehicle accident claims. Dana joined WCM in 2015, after gaining experience at a New York civil litigation firm, concentrating in general liability defense. Previous Next Contact

News Late Intentional Torts Claims Shall Not Pass (NY) July 18, 2018 < Back Share to: Plaintiffs attempting to circumvent an intentional tort’s short statute of limitations by reframing it as a negligence action was recently addressed in the July 5, 2018 Third Department decision, McCarthy v. Mario Enterprises, 2018 NY Slip Op 05006, where a lower court’s dismissal of a plaintiff’s concealed intentional tort claim’s dismissal was affirmed, while the lower court’s dismissal of the hiring and supervising was reversed. In McCarthy, an employee bouncer punched a person in the face causing injuries. More than two years later, plaintiff commenced an action against the bouncer and the entities that operated the bar and employed the bouncer. Plaintiff’s complaint alleged a breach of duty to keep the premises safe and the negligent hiring, supervising, or retaining of the employees. Defendants filed a pre-answer motion to dismiss the complaint which was granted by the lower court. Plaintiff only appealed as to the operator of the bar and the employer of the bouncer. The 3rd Department affirmed the dismissal of the claim to keep the premises safe, but reversed the claim for negligent hiring, supervising, or retaining the employee. In doing so, the 3rd Department reasoned that plaintiff’s breach of duty to keep the premises safe, as already separately alleging negligent hiring and supervising claims, was a reframing of the employee’s intentional tort as a negligent tort to circumvent the statute of limitations. As such, the claim was filed past the statute of limitations and the lower court’s dismissal as to this part was affirmed. However, the Third Department ruled that the negligence of an employer was not transformed into intentional conduct simply because an employee’s conduct was intentional. As such, the three year statute of limitation still applied. The operator and employer could still be held liable for negligently hiring, supervising, or retaining an employee despite knowing or should have knowing the employee’s propensity to assault or intentionally inflict harm on others. As such, the lower court’s dismissal as to the negligent hiring, supervising, or retaining of an employee was reversed. Despite the reversal of the negligent hiring, supervising, or retaining dismissal, the ruling in McCarthy v. Mario Enterprises, Inc. affirmed a powerful tool of defense counsel. According to McCarthy, smart, aggressive defense counsel may dismiss a plaintiff’s late-filed intentional torts, reframed as negligence actions. Such a strategy when taken may lower an employer and their insurer’s exposure, as well as their legal costs, by simplifying the plaintiff’s action for discovery, motion practice, appeals, and trial. Thanks to Jonathan Pincus for his contribution to this post. Please email Vincent Terrasi with any questions. Previous Next Contact

News UIM Claim Results in Bad Faith Punitive Damages Verdict (PA) February 18, 2016 < Back Share to: The case of Bernie Clemens and Nichole Clemens v. New York Central Mutual Fire Insurance Co began on August 26, 2009 when Bernie Clemens sustained back and neck injuries as a passenger in a car rear-ended by an underinsured motorist. He settled with the tortfeasor for her $15,000 policy limit and sought coverage from the UIM carrier for the vehicle in which he had been riding. The accident occurred in Mount Pocono, Pennsylvania. The insurer, New York Central Mutual Fire Insurance Co. was located in Liberty, New York. Although the UIM coverage was $50,000, under New York law, only $35,000 was available above to Clemens above the amount he had received from the tortfeasor. New York Central Mutual initially offered Clemens $7,000 based upon information that Clemens was not wearing a seat belt at the time of the accident. The insurer justified this on the basis of a New York law that this failure was evidence of comparative negligence. As the claim progressed, various conflicts arose between Clemens and the carrier. While the carrier wanted Clemens to travel to its offices 80 miles away from his home to give a statement, Clemens insisted that the adjuster come to him in Pennsylvania. Additionally, Clemens balked at giving HIPAAs for records that he had provided to the insurer. Clemens filed suit against New York Central in federal court. While the UIM claim ultimately settled for $25,000, the claim for bad faith claim proceeded to a five day trial. Clemens alleged that in the process of handling the UIM claim, New York Central committed bad faith in a number of ways, including pressuring claims adjusters to pay less on valid claims, requesting signed authorizations without actually making specific requests, and demanding that Clemens travel to New York Central offices to make a statement under oath. Clemens relied upon an insurance expert who was allowed to testify as to the ultimate issue in the case, i.e. New York Central committed bad faith in its handling of the claim. For its part, New York Central argued that Clemens committed bad faith in refusing to travel to their offices to make a statement, and further claimed that Clemens was deliberately trying to set up New York Central for the bad faith claim. After four hours of deliberation, the jury awarded Clemens $100,000 in punitive damages. Thanks to Melanie Brothers for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NJ Supreme Court Rules that Consumer Fraud Act Claims Are Preempted By Product Liability Act June 2, 2008 < Back Share to: The Vioxx litigation has consumed a great deal of judicial resources in New Jersey where the drug's manufacturer is headquartered. It has also clarified many unsettled areas of law. In McDarby v. Merck, the New Jersey Supreme Court examined a punishing jury verdict against Merck that included an award in excess of $4,000,000 just for attorney's fees and costs for its violation of the Consumer Fraud Act ("CFA"). Under the CFA, a successful plaintiff can recover treble damages, attorneys fees and costs if an unconscionable commericial practice is proven. In contrast, New Jersey's Product Liability Act ("PLA") permits recovery if a product manufacturer fails to adequately warn prescribing physicians of the risks of a drug's use but without any provision for the recovery of enhanced damages. The question presented in McDarby was whether the PLA provided the exclusive remedy for claims of economic loss sustained by the plaintiffs or whether the CFA with its enhanced damages could be also be utilized. The issue was far from academic since the multi million dollar award of attorneys fees and costs hinged on the Supreme Court's decision. In McDarby, plaintiffs' theories under the CFA and PLA overlapped. To support their CFA claim, plaintiffs argued that Merck's failure to "be truthful in the marketing of [Vioxx]" represented a misrepresentation designed to mislead consumers. To support their PLA claim, plaintiffs argued that Merck provided inadequate warnings regarding the cardiovascular risks of Vioxx, a claim that seemed remarkably similar to their CFA claim. The PLA states that it is the exclusive remedy for harm caused by a product. The Supreme Court agreed with Merck that, under both theories of liability, plaintiffs were seeking recovery based on Merck's failure to provide adequate warnings, a classic product liability claim. Under New Jersey's statutory product liability scheme, the sole and exclusive remedy is provided in the PLA. Thus, the PLA preempts the CFA when a product liability claim is made. Bottom line: in an action under the PLA, successful plaintiffs are limited to tort damages alone and cannot obtain treble damages, attorneys fees or costs under the CFA. http://www.judiciary.state.nj.us/opinions/a0076-a0077-07.pdf Previous Next Contact

News Bifurcated Trial in the Bronx? Stranger things have happened. October 3, 2013 < Back Share to: Typically, trials in the First Department, which includes the Bronx and New York County, are unified -- meaning that liability and damages are tried together. However, the trial court is vested with the discretion to bifurcate the trial in certain circumstances. Jackson v Montefiore Med. Center was one such case. In Jackson, the plaintiff fell after one of the defendants bumped into her. The defendants moved for a bifurcated trial, arguing that questions of liability and damages were distinct and severable issues and plaintiff’s injuries are not probative in determining how the accident occurred. The Supreme Court agreed and the First Department affirmed. In personal injury suits in Bronx County, there are few benefits to a unified trial and many drawbacks. So if liability and damages are clear cut and distinct, take a shot a bifurcating. You never know. Special thanks to Gabe Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News NJ Superior Court dismisses emotional distress suit resulting from "inhumane" deposition. September 25, 2007 < Back Share to: The plaintiffs in an underlying wrongful death medical malpractice claim were questioned at their deposition as to whether they were involved in the baby's death -- ostensibly because the baby's autopsy revealed a subarachnoid brain hemorrhage a common sign of shaken baby syndrome. They allege that these questions caused them emotional distress and they commenced a lawsuit against the defense attorney who asked the questions. The trial court dismissed the suit on the grounds that the questions were directly related to the litigation. http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1190624581292 Previous Next Contact

News Pennsylvania Court Addresses Whether Property Damages Occurred During the Policy Period April 21, 2016 < Back Share to: Generally the date of loss set forth in the complaint is the date that triggers coverage within a specific policy period. Where discovery uncovers an earlier trigger date, coverage may apply during a prior policy period. In Olde Glory Builders LLC v. Donegal Mut. Ins. Co., Olde Glory Builders, built a home and sold it to a third party in 2011. The plaintiff was insured under a CGL policy from December 2010 to December 2011. During the first year of owning the property, the buyer reported the property’s roof was leaking to Olde Glory Builders. Olde Glory Builders was unable to correct the problem. In June 2013, the property sustained significant water damage, which resulted in the buyer instituting suit against Olde Glory Builders. In the buyer’s lawsuit, the buyer made claims against Old Glory Builders for negligent construction and its failure to detect and correct problems, which had become apparent in or before November 2012. The insurer denied coverage contending that the alleged damages did not occur within the policy period. Subsequently, Olde Glory Builders filed a declaratory judgment action. In determining whether there was coverage under the policy, the court first reasoned that an insurer’s obligation to defend its insured was triggered when the allegations in a complaint could potentially fall within the scope of the policy’s coverage. The court further reasoned, in Pennsylvania, an occurrence takes place when the injurious effects of a negligent act “first manifest” themselves to a reasonable person. The court concluded that the effects of Olde Glory Builders’ alleged negligence “first manifested” themselves during the first year of the buyer owning the property (as he reported his complaints to Olde Glory Builders during that time). Thus, because Olde Glory Builders’ policy was in effect at the time that the damages manifested (in 2011), the insurer was obligated to defend Olde Glory Builders. This case illustrates how sometimes property damage that seemingly occurs outside the policy period may potentially be covered under a policy, under Pennsylvania law, if a court determines that the injury leading to the loss manifested itself while the policy was in effect. As such, discovery should be conducted to determine, as best as possible, when complaints began to be made about alleged property damage – as this may ultimately play an important role in determining whether coverage is provided under a policy. Thanks to Collen Hayes for her contribution to this post.     Previous Next Contact