News Attorney-Client Privilege Potentially Under Siege (NY) November 15, 2018 < Back Share to: The Appellate Division, Fourth Department, recently issued a decision that will have severe ramifications on insurance carriers. In Rickard v. New York Cent. Mut. Fire Ins. Co., a supplementary UIM claim, the injured party served a notice to produce for New York Central Mutual’s entire claim file, including the portions of the file that were generated after the action was filed. New York Central Mutual, claiming that the material from after the action was filed is protected, moved for a protective order, or in the alternative, for an in-camera review of the materials. The trial court denied New York Central Mutual’s motion and granted Rickard’s cross-motion to compel the entire claim file. As a result of the trial court’s decision, New York Central Mutual appealed to the Appellate Division, Fourth Department. The Fourth Department discussed how New York Central Mutual’s objection in response to Plaintiff’s notice to produce was overly broad, in that NYMC should have identified which specific document requests were “palpably improper” instead of asserting that all materials in the claim file generated after the commencement of this action were protected. In the end, the court held that New York Central Mutual failed to meet its burden to secure the protection they requested because of the breadth of the objection. The court said, deciding what parts of a claim file are protected is a fact-specific determination. They added that this will most likely result in an in-camera review. This case goes against the prior holding of Lalka v. ACA Ins. Co., a 2015 Fourth Department case, where the court held that all documents in the claim file created after an action has commenced are protected from disclosure. The concern going forward is that the courts will continue to chip away at the attorney-client privilege between insurance carriers and their attorneys. For now, when objecting to demands by citing attorney-client privilege, insurers and their attorneys would be well advised to note specific bases for their objections, rather than issue blunderbuss objections to all such demands. Thanks to Marc Schauer for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Expert Required for a Battle of the Experts April 19, 2017 < Back Share to: Oftentimes it is difficult to decipher between normal wear and tear--a non-covered loss--versus damage due to an occurrence. Experts may be needed to show the difference. In Fazio v. State Farm Fire & Cas. Co., the insured submitted a claim for property damage following a storm. The insurer denied claim on the basis that the damage was actually caused by age, wear and tear or improper installation, which was barred from coverage by a policy exclusion. During discovery, the insurer produced an expert report evidencing its position that the insureds’ loss was caused by age, wear and tear or improper installation – as opposed to weather damage – thus, providing expert evidence that the insureds’ loss fell squarely within one of the policy’s exclusions. The insureds did not produce any expert reports. The insurer moved for summary judgment seeking a declaration of no coverage, and the court granted the motion. In reaching its decision, the court noted that, while the insureds may have presented sufficient information to meet their initial burden that their claim fell within the purview of coverage, the insureds failed to produce any evidence refuting the insurer’s expert report that the insureds’ damage fell within a policy exclusion. As such, the court concluded there was no coverage since no question of fact existed regarding the cause of the insureds’ loss. Accordingly, this case illustrates the importance of retaining an expert to opine on the cause of an insured’s loss, as the failure to produce an expert report or rebuttal expert report could result in a court determining there is no question of fact regarding the cause of an insured’s loss – and thus, potentially resulting in a finding of coverage. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News NY federal court addresses e-discovery obligations. September 21, 2007 < Back Share to: Two important points in this decision bear mention. First, producing party (usually) bears costs of discovery. Second, December 2006 e-discovery obligations apply retroactively to demands issued before the rules went into effect. http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1190192576781 Previous Next Contact

News Eastern District of PA Finds No Duty to Defend or Indemnify (PA) June 12, 2020 < Back Share to: In Leithbridge Company v. Greenwich Insurance Company, the insured commenced a declaratory judgment action, in the Eastern District Court of Pennsylvania, against its insurer, Greenwich Insurance Company, for a declaration that it was owed defense and indemnification for an underlying lawsuit. By way of brief background, in the underlying action, it was alleged that the underlying plaintiffs bought a house through the insured. It was further alleged that prior to closing, they received a fraudulent email purporting to be from their title company instructing them to deposit the balance of the purchase money and closing costs. The underlying plaintiffs deposited the funds and subsequently learned of the fraudulent nature of the email. The underlying plaintiffs thereafter brought an action against the insured, alleging the insured “was negligent in safeguarding their personal information, and that because of that negligence, ‘the confidential personal and transactional information of the plaintiffs fell into the hands of scammers, who were thus enabled to perpetrate a fraud upon plaintiffs and steal their purchase money.’” The insured had a Real Estate Professional Errors and Omissions Policy with Greenwich that covered “an act or omission ... in the performance of real estate services”. The insured’s claim for coverage was denied by Greenwich. In the declaratory judgment action, Greenwich argued no coverage existed under the policy pursuant to an exclusion that stated, in relevant part, Greenwich need “not defend or pay any claim: ... based on or arising out of ... the conversion, commingling, defalcation, misappropriation or improper use of funds or other property …”. The insured argued that the exclusion did not apply considering the underlying complaint sounded in negligence and not the underlying conversion. Thus, the insured argued, the court need only consider whether the alleged conversion constituted a “breach of duty.” The Court rejected the insured’s argument stating that when determining whether coverage existed, the manner in which the plaintiff framed its claims was not determinative. The Court further held that the alleged conversion was central to the underlying plaintiffs' negligence claim considering, without the alleged conversion, there would have been no breach of duty. As such, the Court concluded that the exclusion applied because the underlying plaintiffs' loss arose from the alleged conversion. This case illustrates the notion that the counts alleged in an underlying plaintiff’s complaint are not determinative for coverage determinations. Rather, the factual allegations within the four corners of the complaint are key to coverage determinations. Thanks to Rachel Thompson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NY Insurance Department Explores Catastrophe Fund September 23, 2010 < Back Share to: Although New York has been fortunate to escape the path of a catastrophic hurricane in recent years, the state’s Insurance Department is taking measures to prepare itself for such a disaster. New York is contemplating a plan that would require insurers to fund a pool that would cover claims from disasters such as hurricanes. In addition, insurance companies soon may not be permitted to apply a special deductible for wind damage unless a hurricane actually makes landfall in New York. These actions come as a result of increased volatility in the market for property insurance in New York, including some insurers dropping coverage to those customers most vulnerable to storm damage. In the wake of Hurricane Andrew in 1993, Florida created a similar catastrophe fund which is financed by premiums charged to insurers, investment earnings and emergency assessment. New York ranks second only to Florida in the amount of insured coastal property in the United States. http://www.ins.state.ny.us/press/2010/p1009221.htm Thanks to Chris O'Leary for his contribution to this post. If you would like further information, please contact mbono@wcmlaw.com Previous Next Contact

News Slip And Fall Recovery Requires Something More than Just: 1) A Slip and 2) A Fall (PA) January 9, 2020 < Back Share to: "Slip and fall" cases are so common that many people, even some seasoned professionals, lose sight of the fact that a plaintiff must establish more than a slip and fall in order to recover. In the recent case of Biggs v Sam's East the U.S. District Court for the Western District of Pennsylvania reaffirmed this basic principle. In Biggs, the plaintiff was a woman who slipped and fell at a Sam’s Club café in Monroeville, Pennsylvania. According to the plaintiff, she sat down at the store's café with her sister and saw an elderly woman fall to the ground. As she got up to the help the woman, she also fell to the floor. While the plaintiff admitted that she did not notice anything about the flooring or any substance on the ground, she claimed the floor was slippery, and that her pant leg felt damp after the fall. Similarly, the Sam’s Club customer incident report only stated that the floor was “very slippery” but made no mention to any substance or dangerous condition on the floor itself. Plaintiff’s complaint referred to the Sam’s Club floor as “an unnaturally slippery floor” and claimed that Defendant “knew or should have known of the dangerous condition and failed to warn or eliminate the hazard to its invitees.” With no identifiable dangerous condition, plaintiff’s counsel then attempted to depend upon surveillance video and claimed that prior to Plaintiff’s fall, a patron spilled a drink and wiped the drink with his foot. The Court found that the video was grainy and that “the video contains absolutely no visual of someone spilling a drink.” The Court held that it could not consider this theory pursuant to Federal Rule of Civil Procedure 56, as Plaintiff’s counsel was relying on a mere theory/speculation to what the video depicted. An expert also tested the floors for slip resistance and opined that the floors of Sam’s Club “met the scientific criteria for a slip resistant floor and that a slip and fall incident would not be expected or likely under normal conditions (i.e. without the presence of a foreign substance).” The Court relied upon the Restatement (Second) of Torts § 343 and stated that Pennsylvania courts, when construing § 343, found where the Plaintiff can show that a dangerous condition is “traceable to the proprietor or his agents, then the plaintiff need not prove that the owner had actual notice of the condition. . .” However, here, no reasonable jury could find that Defendant breached a duty to the Plaintiff as Plaintiff stated that she did not see the floor in front of her before she fell, and she never identified any foreign substance or dangerous condition on the floor. She merely described the floor as being “very slippery” and stated that her pant leg was damp. Thus, the Court granted the Defendant’s motion for summary judgment because Plaintiff failed to raise an issue of material fact that there was a dangerous condition in the café area of which Defendant had actual notice, or that the condition existed for such a length of time that Defendant should have known of it as required under Pennsylvania law. Biggs should provide some comfort to store owners and the insurers because it reaffirms that a slip, a fall, and a plaintiff's bald characterization is insufficient for a plaintiff to recover. Without a dangerous condition of some sort, no recovery can be had. Thanks to Emily Finnegan for her contribution to this post. Please email Michael Gauvin with any questions. Previous Next Contact

News Ignorance of the Tort Claims Act Will Not Excuse Late Notice (NJ) April 20, 2016 < Back Share to: In a recent decision, the New Jersey Appellate Court clarified that the requirements of the New Jersey Torts Claims Act, which governs claims against a public entity, cannot be relaxed due to a plaintiff’s lack of awareness of the statute. In Friday v. New Jersey Transit, the plaintiff was allegedly injured when she fell on ice near the Brick Train Station. Even though the plaintiff knew she was injured due to the fault of New Jersey Transit on the date that the accident occurred, she failed to file a timely notice of claim within ninety (90) days as required under the statute. One year later, the plaintiff moved for leave to file a notice of late claim, stating that she was not aware of the requirement to file a notice of claim, and was focused on medical treatment for her torn rotator cuff. The Appellate Court confirmed the trial court’s denial of plaintiff’s motion for leave, noting that plaintiff did not establish “exceptional circumstances” which would warrant the late filing of a notice of claim. Thanks to Heather Aquino for her contribution to this post.     Previous Next Contact

News Prior Accidents Admissible In School Gate Mishap (NY) June 23, 2017 < Back Share to: In Martin v Our Lady of Wisdom Regional Sch. New York's Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party's negligence. In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers. At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff. The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same." The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Dismissal of Social Guest’s Personal Injury Action Upheld on Appeal August 8, 2018 < Back Share to: In Marroquin v. Espinoza, plaintiff slipped and fell on black ice on her cousins' walkway. Plaintiff and other family members had been staying at the house to celebrate Thanksgiving. On the Saturday after Thanksgiving, it had rained and snowed, but plaintiff did not go outside. Plaintiff went out shopping with her mother the next day. It was not raining, but it was cold. She had no difficulty getting to her car in the driveway. Upon her return, plaintiff parked her car on the street in front of the house. She went inside for a few hours and then proceeded to pack her car with luggage. She had no difficulty walking out of the car with her luggage. However, when she was approaching the car to go home t, she slipped on the walkway leading to the street. She claimed to have slipped on black ice. The trial court dismissed plaintiff’s complaint on summary judgment because, as a social guest, she had the burden of proving that her cousins, the defendants, knew or should have known about the black ice on the walkway. Residential homeowners in NJ have a duty to render private walkways on the property reasonably safe, and to clear snow and ice that presents a danger to known or expected visitors. The residential owner also has a duty to warn of any dangerous condition of which he or she has actual knowledge, and of which the social guest is unaware. The record showed that plaintiff’s cousins were unaware of the icy condition on the front walkway. Neither plaintiff nor defendants said that they knew of the ice prior to the fall. The defendants testified that they cleared and salted the walkway the day before plaintiff’s fall, and one of the defendants testified that the walkway was clear the morning before plaintiff’s fall. Finally, plaintiff proffered no evidence that defendants’ should have known that light rain would cause black ice. This is because plaintiff had no expert to discuss the meteorological conditions or the nature of the walkway. This case is a good illustration of how defense counsel can obtain a dismissal in the absence of an appropriate liability expert report from plaintiff. Thanks to Michael Noblett for his contribution to this post.         Previous Next Contact

News Second Department Reiterates Defendants' High Burden in Negligent Supervision Case (NY) December 13, 2017 < Back Share to: In K.J. v. NYC BOE., the Second Department recently discussed the high threshold required to prevail on a motion for summary judgment in a negligent supervision case. The case arose from an incident in December of 2014, when the 14 year old plaintiff was allegedly assaulted by four fellow students in a stairwell leading to the cafeteria of Lincoln High School in Brooklyn. The plaintiff sustained various injuries, including a fractured orbital bone. Plaintiff’s father, Lonnie Jefferson, brought suit on behalf of his son, and individually, against the City of New York, the Board of Education, and the New York City Department of Education (DOE), alleging negligent supervision. The defendants moved for summary judgment, basing their motion, in part, on the plaintiffs’ 50-H hearing testimony and the deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria, one of the assailants threw an object at him. When the plaintiff went over to the assailants’ lunch table, he was challenged to a fight. The plaintiff refused to fight and returned to his lunch table without reporting the incident to any teachers. At the end of lunch, the plaintiff left the cafeteria doors and walked into the stairwell to go to his next class. The four assailants cornered the plaintiff punched and kicked him for approximately 25 seconds. Afterwards, the plaintiff found a dean who took him to the nurse's office. There were no school safety officers, school personnel, or security cameras in the stairwell at the time of the incident. At his deposition, the school’s safety officer testified that his duties did not include supervising the cafeteria during lunch, which was done by the deans. As a general matter, during the break between class periods, teachers stood in the hallway while the school safety officers patrolled the hallways to make sure the students were headed to class. The officer did not witness the assault, but was radioed by the dean to help to the plaintiff. He also did not know the number or identities of the students who attacked the plaintiff, although he recalled seeing at least one of the assailants in the principal’s office on a prior occasion. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants provided no evidence from that supervisor or anyone familiar with the students involved in the assault. The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint, and the plaintiffs appealed. On appeal, the Second Department recited the rule that “schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” To determine whether school officials breached their duty to supervise, the first question is whether they had “sufficiently specific knowledge or notice” of the dangerous conduct. Broadly, this requires that the school have actual or constructive notice of prior similar incidents, and injuries that result from the unanticipated or impulsive actions of a student will not result in a finding of negligence. The Second Department found that defendants failed to provide evidence showing that they lacked notice the assailant’s prior violent behavior. Further, the safety officer’s testimony regarding the disciplinary history of one of the assailants created triable issues of fact as to whether the defendants had specific knowledge of any dangerous propensities. Lastly, they failed demonstrate the general security measures at the school, including the number of school safety officers on duty, their assignments in the vicinity of the cafeteria and stairwell, or the frequency of violent incidents. Not only did defendants fail to demonstrate their lack of notice, they also failed to eliminate all triable issues to fact as to the second critical point: whether the alleged inadequate security proximately caused the incident. To determine causation, the court must determine whether “the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence.” Here, the defendants failed to show that the incident occurred in such a short time span that even the most intense supervision could have prevented it. Accordingly, the Second Department held that defendants failed to establish their prima facie entitlement to summary judgment as a matter of law. Interestingly, the Court noted that the trial court should have been able to reach this conclusion regardless of plaintiff’s opposition papers. Likely, this is a result of defendants’ failure to offer testimony or a sworn affidavit from anyone with knowledge of the incident, the assailant’s past behaviors, or the school’s general security policies. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Obtains Dismissal of NJ Products Liability Lawsuit. July 17, 2020 < Back Share to: Partner Bob Cosgrove and Counsel Matt Care successfully obtained a with prejudice dismissal of a products liability lawsuit in federal court in Newark, New Jersey. In the case of Elizabeth Kean, et al. v. Cedar Works, et al., the plaintiff alleged that, when she was a child, she fell from a defective swing set in her backyard onto her head. She claimed that the fall caused a traumatic brain injury -- specifically trauma-induced postural orthostatic tachycardia syndrome ( “POTS ”). While designed by our client, the swing set was installed, uninstalled, moved, and eventually reinstalled by an unknown party that was not joined to the case. At the close of pleadings, we moved to dismiss the case and argued that the unknown installer, mover, and reinstaller was a necessary and indispensable parties to the litigation, without which full and complete justice could not be rendered. We also moved to dismiss the case on the grounds that complaint was insufficiently specific. The Court granted our motion on both grounds and dismissed all claims against our client. For more information about this victory, please contact rcosgrove@wcmlaw.com .   Previous Next Contact

News What’s "Exceptional" about a Late Notice to a Public Entity in NJ October 4, 2012 < Back Share to: The New Jersey Tort Claims Act is the New Jersey Legislature’s answer to the State courts’ attempt to abrogate common law sovereign immunity. This legislation permits certain tort actions against public entities, but it places significant limitations on a plaintiff. One of those limitations is a requirement that a potential plaintiff give the public entity notice of the claim before filing suit. To this end, a claimant must file a Notice of Claim with the public entity within 90 days of accrual of the claim to permit it time to investigate and, perhaps, resolve it. But what happens when a plaintiff fails to file in 90 days? The statute says that the claimant must then show exceptional circumstances to permit a late notice. What exactly qualifies as exceptional circumstances is a matter in that the New Jersey Supreme Court recently took up oral argument of D.D. v. University of Medicine and Dentistry of New Jersey. In D.D. , the plaintiff sought to file a claim when her AIDS status was revealed despite her expectation of privacy of this confidential information. She wrote to UMDNJ to demand that it stop disseminating the information. She also contacted an attorney who met with the school to address the situation. However, the attorney never filed a notice of claim. The plaintiff followed up with the attorney, but he did not take her calls. After 90 days expired, she sought out a new attorney. The Supreme Court justices grilled UMDNJ’s counsel on the issue of exceptional circumstances and whether attorney negligence is "ordinary" "these days." Justice Albin noted the plaintiff’s poor health and unsuccessful efforts to reach her counsel. Albin suggested that an average person would not know about the 90-day deadline. UMDNJ’s counsel pointed out that the current state of the law is that ignorance of law is not sufficiently exceptional. We’ll have to wait to see whether the Supreme Court agrees. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact