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News Asbestos Insurers Beware: New Jersey Decision Aims to "Maximize Insurance Resources" July 11, 2018 < Back Share to: In Continental Insurance Company v. Honeywell International, the New Jersey Supreme Court held that Honeywell was not required to contribute to damages related to brake and clutch pads containing asbestos, even though the company continued to make those products for more than a decade after 1987, when it could no longer obtain insurance coverage. Specifically, the Court held “an insured is not forced to assume responsibility in that allocation during the insurance coverage block for years in which insurance coverage is not reasonably available for purchase.” Asbestos coverage disputes are unique in that, because asbestos-related diseases generally do not emerge until decades after exposure, many years of coverage are implicated, and determining what policies will pay has proven to be a complicated task. Under New Jersey law, each insurer pays based on the degree of risk assumed, and the amount of time each policy was on the risk. Normally, if the policyholder did not purchase insurance for a particular period, they would be on the hook for that portion of liability. However, the Honeywell court affirmed prior New Jersey precedent that, if no insurance was available, then the unavailability exception applies and the policyholder will not be required to contribute. This is the case even though asbestos exclusions became ubiquitous in 1987 and Honeywell continued to manufacture asbestos products. To that end, the court focused on the goals of “maximizing insurance resources” and spreading risk across the insurance industry. In dissent, Justice Albin noted the negative impact of the holding, writing, “This court compels insurance carriers that previously insured the corporation – but later refuse to do so – to remain guarantors for claims arising during the years the corporation continues to manufacture its dangerous products.” This underscores the potential negative effects that could follow should other states follow the New Jersey Supreme Court. Given the thousands of outstanding asbestos cases throughout the country, and because this issue could come up over again, asbestos insurers may be required to pay for millions in future lawsuits. Thanks to Douglas Giombarrese for his contribution to this post. Previous Next Contact

News Call Your Next Witness - Ross Mallor of PM Legal September 15, 2021 < Back Share to: On today's episode of the Call Your Next Witness podcast, we welcome Ross Mallor of PM Legal. Ross is a true entrepreneur in the litigation arena in the northeast United States. Since joining his father at PM Investigations, now PM Legal, the company has grown from a 2-person investigation company into a 200+ employee company, which conducts investigations for both plaintiffs and defendants, provides litigation support, handles service of process and court filings, and is also now affiliated with elaw and Lexitas. Ross takes advantage of technological innovations, keeps an open mind about new opportunities, and most importantly, listens to his clients. Aside from that, Ross is a fantastic storyteller, and in this interview, relays some great stories about his business practices over the years, a few about conducting surveillance, and even one about playing poker with actor Kevin Pollack. (This story is worth the price of admission.) For more information about Ross's company, check out PMLegal.com Listen to my interview with Ross here: https://lnkd.in/ejnHZK8k -- or search for Call Your Next Witness wherever you download podcasts. If you are interested in being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Lease Binds Commercial Tenant to Landlord's Indemnification Cross Claims (NY) March 16, 2017 < Back Share to: Commercial tenants may be held liable for a landlord’s negligence pursuant to a lease’s indemnification language even where the plaintiff would have no claim against the tenant. In Rodriguez v 5432-50 Myrtle Ave., LLC , the Second Department held that while a plaintiff may not be able to sustain a claim against a commercial tenant, the landlord may have a viable claim under contract. In Rodriguez, the plaintiff was allegedly injured when a defect on one of the steps of an interior staircase of the building caused her to fall. Within the two story building, a portion of the second floor was leased to a beauty school. The plaintiff commenced suit against property owner, Myrtle and the tenant beauty school, Midway. The Appellate Division, Second Department, determined that the commercial tenant was entitled to summary judgment as to the plaintiff’s complaint. "Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property.” Here, the Court determined that Midway established that the subject staircase was not part of its demised premises, but merely constituted a common area, and that it had no contractual duty to maintain it. However, with respect to the landlord’s cross claims against the beauty school, the Court ruled that Midway failed to demonstrate that it had complied with an insurance procurement provision in the lease, and therefore converted the cross claim for breach of the lease to a third party claim. The Court also converted the cross claim for contractual indemnification to a third party claim: “Pursuant to General Obligations Law § 5-321, a lease that obligates a tenant to indemnify a landlord for the landlord's own negligence is against public policy and unenforceable. However, in the context of a commercial lease, negotiated between two sophisticated parties, where a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit indemnity." As Midway failed to establish that the indemnification provision was unenforceable under General Obligations Law, or that the indemnification language of the lease (which required the beauty school to indemnify and hold harmless landlord Myrtle against any and all claims happening in connection with the premises unless arising out of Myrtle’s gross negligence) did not apply since the accident occurred in a common area, the Court refused to dismiss the cross claim for contractual indemnification. Accordingly, the lower court decision was reversed by the Appellate Division, Second Department and the plaintiff’s complaint was dismissed against the tenant beauty school Midway in its entirety. However, the landlord Myrtle’s cross claims for breach of lease and contractual indemnification were converted to a third party action against Midway. Thanks to Lauren Tarangelo for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Pennsylvania’s Doctrine of Hills and Ridges Delivers Questions of Fact to the Jury (PA) October 8, 2020 < Back Share to: In Figuero v. Meitzner, the Plaintiff, a delivery driver for Fed-Ex, slipped on an icy sidewalk while delivering a package to the Defendant. The Plaintiff sought damages and the jury held the Plaintiff 40% liable and the Defendant 60% liable, awarding $1.5 million in damages to the Plaintiff. The Defendant appealed the trial court’s denial of a Judgment Notwithstanding the Verdict, arguing the jury had insufficient evidence to support the findings that the Defendant was 60% liable. The Defendant argued that the Pennsylvania’s Common Law Doctrine of Hills and Ridges was in effect, and therefore relieved the Defendant of liability. Defendant based this argument on evidence established at trial that general slippery conditions were existent in the town of Bethlehem the morning of Plaintiff’s fall. During trial, Plaintiff testified it had snowed that morning and there was a light blanket of snow and ice where she fell. But Plaintiff had also testified it stopped snowing while she delivered packages, and she delivered many other packages without incident. The court noted that unless slippery conditions generally existed throughout the town, the court, as a matter of law, would not need to consider whether the evidence presented at trial was sufficient to satisfy the Doctrine of Hills and Ridges. The Doctrine only applies when general slippery conditions prevail in the community. Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971). The Court denied the Defendant’s Motion for a Judgement Notwithstanding the Verdict, in that the general condition throughout town the morning of the fall was a question of fact for the jury to decide. Here, the jury had the right to decide whether non-slippery conditions generally existed in Bethlehem on the morning in question, and if so, whether hills and ridges were present at the location of the fall. This case demonstrates the jury’s role in analyzing the many elements which factor into determining the application of the Doctrine of Hills and Ridges. Additionally, it is important to note a morning snowfall does not alleviate a landowner from liability. Landowners should be aware as to ice and snow on sidewalks, and understand a morning coat of snow could still end in $1.5 million in damages. Thanks to Madeline Troutman for her contribution to this post. Any questions, please contact Georgia Coats Previous Next Contact

News NY Appellate Court Upholds Assumption of Risk Doctrine August 20, 2009 < Back Share to: The First Department recently upheld the long-standing doctrine of assumption of risk in Nutley v. SkyDive the Ranch. In Nutley, the plaintiff was skydiving when the main parachute failed to open during a tandem sky dive. Although the lower court denied the defendant’s motion for summary judgment, the appellate court reversed and held that the plaintiff assumed those risks inherent in skydiving and failed to raise an issue of fact as to whether SkyDive acted negligently so as to create a unique and dangerous condition beyond those inherent in the sport. Thanks to Lora Gleicher for her contribution to this submission. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06153.htm Previous Next Contact

News WCM Wins Coverage Contest Against the City of New York April 1, 2016 < Back Share to: On a cold February 2011 morning, Frank Gunther was performing his security duties for the FDNY at a Staten Island firehouse when he allegedly slipped and fell on a temporary walkway. Gunther sued the City of New York, who tendered its defense to Security Fence Systems, Inc. who was responsible for snow removal, and Security Fence's insurer, XL Catlin. The policy identified the City as an additional insured -- but only for a single designated location: 9 Metro Tech Center, Brooklyn, NY. XL Catlin denied the tender, because that was not the location where the accident took place. The City settled the underlying action with Gunther for $750,000 and filed a declaratory judgment action, seeking reimbursement for this settlement (plus interest) from XL Catlin and Security Fence. WCM Partner Michael Bono and Counsel Steven Kaye moved for pre-discovery summary judgment, arguing that the additional insured endorsement limited coverage to a single location and because the accident occurred elsewhere, XL Catlin properly disclaimed coverage. The City argued it was entitled to coverage because the named location was the FDNY's headquarters -- a location where Security Fence did not even perform services. The Court agreed and awarded XL Catlin summary judgment. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News Threshold" motions still difficult to win in Second Department (NY) February 21, 2013 < Back Share to: The dreaded "90/180 day rule" is a bane of defendants in the context of New York motor vehicle accident suits. The rule, encompassed within Insurance Law Section 5102(d), states that a motor vehicle plaintiff's injury is not "serious" enough to maintain a suit unless that plaintiff is significantly limited in daily activities for 90 of the first 180 days after the accident occurs. Not surprisingly, the entire physical therapy industry owes a debt of gratitude to this rule, because plaintiffs are well-advised to document their treatment for the first six months after the accident. Conversely, since motor vehicle lawsuits need not be commenced for three years, defendants' doctors do not even examine plaintiffs until well after the expiration of 180 days, making it virtually impossible to rebut the contemporaneous reports of plaintiffs' doctors. In Calcano v. Rodriguez, a plaintiff underwent an MRI on her shoulder five weeks after the accident, a significant tear was observed, and the plaintiff underwent surgery months later. Notwithstanding the degenerative pathology observed by the defendant's doctor in reviewing the same MRI film, the Second Department reversed the trial court and found that it was unable to rule, as a matter of law, that the injuries were not proximately caused by the accident. The concurring opinion goes a step further, noting that if a plaintiff develops subjective complaints after an accident, then there is an automatic issue of fact as to causation regardless of whatever degenerative issues are present. Decisions like this one should be kept in mind before pursuing a Threshold motion for summary judgment, absent a blatant pre-existing condition, subsequent lapse in treatment, or intervening injury, which all can serve to disrupt the causal link between the accident and the injury. Special thanks Brian Gibbons for his contributions to this post. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NJ Appellate Division Approves Auto Policy's Family Member Exclusion July 7, 2009 < Back Share to: In Cassini v. Soussou, the Appellate Division ruled that an injured driver could not recover from an excess policy purchased by the son of the defendant, due to an exclusion denying coverage when use of a family member owned vehicle other than the named insured's " covered auto" was involved. The Court found the exclusion to be unambiguous, and that excluding coverage for a separately insured family member's use of a noncovered auto was not uncommon, was legally sound and was supported by the policy. http://www.judiciary.state.nj.us/opinions/a5205-07.pdf Previous Next Contact

News Not Enough Judges in NJ? May 11, 2012 < Back Share to: Litigation can be slow enough, but, in NJ, it's likely to get even slower. There are as many as 60 judicial vacancies in NJ. This seems unlikely to change in light of NJ's budget deficits and (potentially) Governor's Christie's role as a vice-presidential candidate. As if there wasn't enough to worry about in litigation... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

Georgia Coats Partner New York gcoats@wcmlaw.com +1 212 267 1900 Professional Experience Georgia Coats defends clients against high-exposure labor law, construction, property damage and product defect claims, and represents retail companies in motor vehicle and premises liability cases. Georgia knows that each client she advises has its own definition of a “win,” based on the circumstances of the case and the client’s business objectives. She knows how to achieve the best and most cost-effective outcome in each individual case, whether that’s an early case dismissal through tactical pleadings and motions, a settlement on favorable terms, or, where needed, a trial or appeal. A trusted adviser to her clients, she guides them through litigation from case intake to resolution, helping them navigate the legal issues and strategic decisions of each case so they can make informed decisions. Georgia’s recent successes on behalf of clients include a defense verdict on a high-value labor law dispute, in which the third-party indemnification claims went to trial, and another defense verdict on a premises liability matter, in which she successfully shifted liability—and a multimillion-dollar verdict—to the responsible co-defendant. Georgia has been with WCM since participating in the firm’s summer associate program during law school. She is one of the creative voices and co-hosts of WCM’s podcast, “Call Your Next Witness.” In her free time, Georgia enjoys spending time with her husband and two boys in Queens. She also speaks Greek and occasionally makes use of her prodigious collection of cookbooks. Select Representations Obtained a defense verdict on a high-value labor dispute involving the trial of third-party indemnification claims. Obtained a defense verdict on a premises liability matter by successfully shifting liability (and a multimillion-dollar verdict) onto the responsible co-defendant. Honors and Distinctions Member, Fordham Environmental Law Journal Cum laude, New York University Professional Activities Georgia regularly lectures on both civil litigation and on Labor Law in New York, and is the Chair of WCM’s Women’s Initiative Committee. In addition, Georgia is a member of the following organizations: New York City Association of Insurance Women International Society of Female Professionals The Defense Association of New York Claims & Litigation Management IR Global Hellenic Lawyers Association of New York News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Fordham University School of Law B.A., New York University Bar Admissions New York Court Admissions Southern District of New York Eastern District of New York

News NJ Requires Proof of Attorney's Bad Faith Filing For Frivolous Litigation Award June 2, 2010 < Back Share to: Frivolous litigation claim in New Jersey? Not without proof that the attorney who filed the offending pleading acted in bad faith. In a recent unreported Appellate Division decision that reversed an award for frivolous litigation, the Court made clear that there must be a determination that the attorney knew or should have known that the pleadings were filed for improper purpose or without evidentiary support for the factual allegations made. In Torgro Limousine Service, Inc. v. 76 Carriage Company, Inc., the plaintiff had filed suit in New Jersey after defaulting on a suit filed in Pennsylvania by the defendant. When 76 Carriage attempted to locate assets of Torgro Limousine to execute on the default judgment, Torgro filed suit in New Jersey for breach of contract. That suit was dismissed on a basis of res judicata. The present litigation was then commenced with expanded allegations and additional defendants including 76 Carriage’s principals. The court sided with 76 Carriage on a motion to dismiss and for sanctions, and awarded counsel fees finding that the case had been frivolously filed. In addition to reversing the award, the Appellate Division required specific findings to support the frivolous litigation claim and also to explain the basis for the sanction imposed, i.e. how the sanction would deter repetition and why a lesser sanction would not suffice. If you have any questions about this post, please contact dricci@wcmlaw.com . See Torgro Limousine Service, Inc. v. 76 Carriage Company, Inc., 2010 WL 2090091 (App.Div. 2010) http://www.judiciary.state.nj.us/opinions/a5238-08.pdf Previous Next Contact

News A Defendant Denied Summary Judgment for Hitting A Golf Ball Too Well (NY) June 6, 2019 < Back Share to: In New York, it is well-settled an individual who chooses to participate in a sport consents to certain risks which are inherent in the nature of the sport, a principle generally referred to as the Assumption of Risk doctrine. In golf, specifically, courts have explained that mishit golf balls flying in unintended directions fall within the scope of this doctrine, as such errors are a part of the game. However, in Krych v Bredenberg, the Fourth Department of the Appellate Division unanimously affirmed the denial of the defendant’s summary judgment motion in a case where he struck plaintiff with a golf ball on a golf course. Bredenberg claimed his playing partners had teed off before him and plaintiff’s group was playing on the fairway 100 or 150 yards beyond where his partners’ drives had landed, and that his drive happened to be a particularly prodigious one and struck plaintiff. The Court found a question of fact and affirmed denial of summary judgment, as plaintiff’s testimony conflicted with defendant’s as to the distance of the shot at issue. Moreover, the Court observed Mr. Bredenberg was a very skilled golfer, the ball was struck straight and true, and plaintiff was visible to him, potentially within his range. The deposition testimony was key here, and while Assumption of Risk is a powerful defense tool, one must make sure discovery supports it if you are to plan for a successful summary judgment motion. And, ironically, Bredenberg would likely have been better off if he were a worse golfer and had simply shanked his drive. Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact