Wade Clark Mulcahy LLP

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 Defense Employees’ Testimony Creates Question Of Fact October 12, 2011 < Back Share to: In [i]Fragale v. City of N.Y.[/i], a case involving an alleged slip and fall, the First Department reversed the trial court’s decision that granted the defendant’s motion for summary judgment. The First Department held that issues of fact existed with respect to whether the defendant had constructive notice of the claimed condition. The lower court ignored the statements and testimony of the defendant’s employees as to whether there was an ongoing and recurring dangerous oil condition in the area where the plaintiff fell and that was routinely left undressed. Indeed, the defendant’s superintendent conceded that the floor was oily “for weeks and months.” Additional evidence was submitted that one of the defendant’s supervisors routinely performed maintenance on vehicles in the area where the plaintiff’s accident occurred, potentially creating the hazardous condition by causing oil to spill on the floor. For these reasons, questions of fact precluded summary judgment. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07138.htm Previous Next Contact

News An Unexplained Delay of 28 Days In Disclaiming Coverage May Be Untimely May 18, 2010 < Back Share to: Zevrone Realty Corporation, a holding company for a residential apartment building in the Bronx, sought coverage from its insurers for a sexual assault claim. Bronx Justice Kenneth Thompson, Jr. accepted, as a factual matter, that Zevrone's notice of the occurrence was untimely (a delay of almost one year to report an incident that would likely give rise to a claim against management). But Judge Thompson was asked to determine whether the insurers delay in issuing disclaimers on grounds of late notice were untimely. Citing the general principle that an insurer must give written notice of disclaimer as soon as is reasonably possible after it first learns of grounds for disclaimer of liability, Judge Thompson found that a delay of 98 days was unreasonable as a matter of law (thus granting summary judgment against Federal Insurance Company), and ruled that American International's delay of 28 days raised a question of fact as to whether the delay was "reasonable" under the circumstances (thus allowing the action to continue against American). Previous Next Contact

Louisiana Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Contact Details 824 Elmwood Park Blvd, Suite 215, New Orleans, LA 70123 504 291 2054 504 324 0190 Attorneys and Professional Staff Jonathan H. Adams Counsel Chynna S. Demas Associate E. Alexis Bevis Partner

News The “Long-Arm” of the Law (NY) October 26, 2018 < Back Share to: This interesting New York action arose out of a crane accident that occurred in 2015. In Jones v 260-261 Madison Ave. LLC, Marine & Industrial Supply Company (MISC) made a motion to dismiss all claims against it arguing the court lacked personal jurisdiction. MISC manufactured a sling that snapped and caused plaintiff’s injury, while 260-261 Madison Ave. LLC owned the premises and Skylift operated the crane. MISC argued that it could not be subject to personal jurisdiction in New York as it was an Alabama company with its principal place of business in Mobile, and the sling sale negotiations took place in Alabama and Connecticut. MISC argued that it did not therefore have any contact with New York and was not subject to jurisdiction. Skyline and Madison argued MISC is subject to general in personam jurisdiction in New York pursuant to CPLR§301 because MISC solicited business through its website and advertised it would be present at an expo in New York. Alternatively, Skyline and Madison argued that Marine is subject to “long-arm” jurisdiction pursuant to CPLR§301(a)(3)(i) and (ii). The Court ruled that MISC held itself out as a national vendor, derived revenue from interstate commerce, has offices in more than one state and conducted business in New York through its attendance at the Buffalo, New York expo. Further, Skyline and Madison provided proof that MISC was registered as an interstate carrier with the U.S Department of Transportation. This showing was sufficient to establish that the exercise of personal jurisdiction over MISC by this court was not a frivolous argument. Therefore, the Court denied MISC’s motion for dismissal without prejudice to renew upon the completion of limited discovery on the issue of personal jurisdiction. Thanks to Jonathan R. Avolio for his contribution to this post. Please contact Vito A. Pinto with any questions. Previous Next Contact

News WCM Welcomes Steve Kim and Craig Chaney to our NJ Office August 2, 2022 < Back Share to: WCM is pleased to announce the return of Steve Kim, and welcomes Craig Chaney, both at the rank of counsel in our New Jersey office. Steve previously worked for WCM as a litigation associate from 2014 – 2019. During that time, he handled complex, large exposure cases, consistently achieving favorable results for our clients. Steve returns having gained further experience in managing, training, and leading a legal team consisting of young associates, paralegals and legal assistants related to personal injury defense of high-profile clientele. Craig is a skilled litigator with over two decades of experience in insurance defense and insurance coverage litigation. He is a trial attorney whose practice focuses on defense of complex general liability claims and premises liability claims. Steve and Craig present a strong addition to WCM’s defense practice in New Jersey. Previous Next Contact

News Everything Flows Downhill: New York AD Rules That Sub's Insurers Must Fund Entire Settlement April 28, 2010 < Back Share to: New York construction litigation is like a multi-headed dragon: cut off one head (issue) and another one quickly emerges. In analyzing its ultimate exposure in this context, an insurer must consider both the underlying liability of all its insureds as well as how the coverage disputes amongst the various insurers will play out at the end of the case. In Indemnity Ins. v. St Paul Mercury, the Appellate Division, First Department grappled with a mind numbing fact pattern after a general contractor’s employee was injured due to the negligence of a subcontractor. The case discusses the interplay between New York’s Labor Law, contractual indemnity and additional insurance requirements, the hierarchy of coverage and New York’s anti subrogation doctrine. At the end of the day, the subcontractor’s insurers wind up footing the entire bill for the $3,000,000 settlement with no contribution from the owner or the general contractor. The First Department discusses the distinction between liability and coverage as well as the anti subrogation doctrine, which prevents the subcontractor’s insurer from seeking contribution from its additional insureds in an indirect effort to pick the pockets of the policies of the owner and general contractor. Who says insurance coverage litigation can't be fun? If you have any questions or comments on this post, please email Paul at pclark@wcmlaw.com http://www.courts.state.ny.us/reporter/3dseries/2010/2010_03254.htm Previous Next Contact

News Heir Files US Suit Against the Czech Republic to Recover Nazi Art May 31, 2012 < Back Share to: Michal Klepetar is the grand nephew of Richard Popper, a Jewish art collector who had a number of significant paintings seized by the Nazis. Many of the works -- valued at over $50 million -- are currently hanging in the Prague National Gallery, and it does not appear that Popper's ownership of the works are being questioned. But Czech restitution law only allows direct relatives, such as wives and children, to claim such stolen art, and his pleadings to government officials and politicians have fallen on deaf ears. As such, Klepetar is now trying his luck with the US courts, which in some cases have allowed Nazi art suits to proceed against foreign governments. Also of note is the fact that he is being represented by Edward Fagan, who has purchased an interest in the art works at issue and created an organization called Victims of Holocaust Art Theft for the specific purposes of the lawsuit. Fagan is well known for obtaining a billion dollar settlement from Swiss banks for withholding accounts that belonged to Jewish families that perished under the Nazis. Fagan later was accused of neglect, fraud, misappropriation and other ethics charges and apparently has been disbarred by New Jersey and New York. For more information, please write to Mike Bono at mbono@wcmlaw.com   Previous Next Contact

News Intentional Wrong Exception to the Workers’ Compensation Bar Not Available to Third-Party Tortfeasors (NJ) October 23, 2020 < Back Share to: The Appellate Division of the Superior Court of New Jersey recently held that the “intentional wrong” exception to the workers’ compensation bar was not available to a third-party tortfeasor and remained limited only to the injured employee as an election of remedies. Although an unpublished opinion, the court’s decision is important because it further limits the claims that can be brought against employers after workplace incidents. In Gonzalez v Laumar Roofing Company Inc v. Guiliano Environmental, LLC, the plaintiff filed a claim for personal injuries sustained while performing roofing work. Gonzalez initially sued only the general contractor of the project, Laumar, as a defendant. No claims were brought against his employer, Guiliano as he had previously filed for and received workers’ compensation benefits from Guiliano pursuant to the Workers’ Compensation Act, N.J.S.A. 34:15-1. Laumar subsequently filed a third-party complaint against Guiliano, claiming that Gonzalez’s injuries were caused by an “intentional wrong” Guiliano committed. While an employee’s recovery after a workplace incident is generally limited to workers’ compensation benefits, the “intentional wrong” exception permits employees to file claims against their employers where the employer, or fellow employee, caused the injuries “intentionally” as defined by the court. An intentional wrong occurs where it is a substantial and/or virtual certainty that an injury will occur because of the employer’s conduct. In Gonzalez, Laumar tried to avail itself the “intentional wrong” exception often used by plaintiffs to bring claims against their employers after receiving workers’ compensation benefits. The court, however, held that the “intentional wrong” exception was only available to plaintiffs—not third-party tortfeasors. The court reasoned that in codifying the “intentional wrong” exception, the legislature sought “to provide an election of remedies only for the injured employee and his or her representatives.” The court further articulated that the Workers’ Compensation Act broadly protects employers. It referred to its precedent as guidance, in which the Appellate Division has only allowed third-party tortfeasors to seek indemnification in limited circumstances. Although limiting avenues of recovery for third parties in workplace incidents, the court noted that the decision only applies to cases where the employee does not allege an “intentional wrong” against his or her employer. The court did not offer opinion on whether a third-party tortfeasor could bring claims under the “intentional wrong” exception where the employee also alleges an “intentional wrong” on behalf of the employer. Thanks to John Lang for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News Failure to Confirm Judgment Leads to Defense Victory (NY) March 17, 2023 < Back Share to: When a plaintiff obtains a default judgment against a defendant, sometimes the fight is far from over. While the discretion ultimately remains with the court, a default judgment may be vacated against a defendant, or an inquest will be held if the motion to vacate is denied. However, even after an inquest is held and damages are determined, a plaintiff must submit a notice of settlement and proposed judgment within 60 days or else it will be void. 22 NYCRR 202.48(a) For example, in Cruz v. Pierce, 2022 NY Slip Op 07054 (2nd Dep’t December 14, 2022) the plaintiff was injured while performing work at real property that was owned by the defendant. After being served with the summons and complaint, the defendant failed to answer. Plaintiff subsequently moved for leave to enter a default judgment. The Court not only granted the motion but directed an inquest for damages. At the close of the inquest, Plaintiff was entitled to recovering $274,541.54. The Court directed the plaintiff to settle judgment on notice. Thereafter, the plaintiff failed to submit a notice of settlement and proposed judgment until nearly 2 years after the order. Accordingly, the defendant moved to vacate the decision made after the inquest based upon the plaintiff’s failure to submit the notice of settlement and proposed judgment within 60 days as the Court directed them to. Accordingly, the Second Department granted the Defendant’s motion on the grounds that the plaintiff failed to timely settle the judgment pursuant to 22 NYCRR 202.48(a) and on plaintiff’s failure to show good cause for his lengthy delay in submitting the notice. This case shows that the procedural rules must always be followed – or not, at your own peril. Thanks to Lauren Howard for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Signed Releases Cook Plaintiff's Harrassment Suit Against McDonald's (NY) July 25, 2013 < Back Share to: It is not uncommon for a party who signs a pre-suit release to have "buyers remorse" and decide to file suit anyway. The issue recently arose in Nelson v. Lattner Enters. Of N.Y., where, despite signing a release, plaintiff sued a McDonald’s franchisee and the McDonald’s Corporation for sex discrimination and sexual harassment. Plaintiff was a restaurant manager for the franchisee for approximately six years, and reported to the Corporation that her supervisor, Lattner, repeatedly subjected her to sexual harassment. During a meeting in December 2007, plaintiff signed a handwritten settlement agreement, consenting to leaving her employment and releasing all claims in exchange for severance payment and medical benefits. In a subsequent meeting, plaintiff signed a typed settlement agreement and release which comprehensively released all defendants from any liability in exchange for severance pay of $18,688.10 and continued medical benefits. When bringing suit against the defendants, plaintiff claimed that the signed releases were not valid and should be void because she signed them under duress. The trial court dismissed plaintiff’s action and the Second Department affirmed the dismissal of the claims. Even assuming that plaintiff was under duress when signing the handwritten first agreement, the Court found that she was not under duress when signing the second typed agreement. In the second meeting, plaintiff was unable to demonstrate any unlawful act that compelled her to sign. Further, the Court noted that the typed agreement indicated in bold that she should consult with an attorney, that she had 21 days to consider the agreement, and that she could even revoke the release up to seven days after signing it. Notwithstanding the language in the agreement, the Court also found that plaintiff’s conduct waived her objections and ratified the agreement by accepting and retaining the benefits for nearly two years before bringing suit in 2009. Thanks to Jung Lee for his contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Insured's Declaratory Judgment Goes Up In Flames (PA) December 22, 2016 < Back Share to: The Eastern District of PA recently awarded summary judgment to an insurer, as well as $25,000 in damages, for an insured’s material misrepresentation in his insurance application in the case Payne v. Allstate Insurance Co.. On December 31, 2009, the insured, Payne, entered into a homeowner’s insurance agreement with Allstate Insurance Company (“Allstate”) to insure his home located in Philadelphia, PA. As a prerequisite to obtaining the insurance agreement, Payne had to fill out an insurance application. On the application, Allstate specifically asked Payne whether he used any alternative or supplemental heating source in his home. Payne answered “no.” Unsurprisingly, on February 9, 2010, Payne’s home caught fire. Thereafter, Payne filed a claim with Allstate. As part of its claim investigation, Allstate requested that Payne submit to an examination under oath. During the examination, Payne admitted to using kerosene heaters in the home and that the kerosene heaters may have started the fire. After the examination, Allstate denied Payne’s claim leading to a declaratory judgment action. Allstate counterclaimed, suing Payne for breach of contract, breach of common law duty of good faith, and insurance fraud. Both parties filed motions for summary judgment on the issues. Upon review, the court found that Payne made a material misrepresentation when he failed to disclose that he used kerosene heaters, an alternative or supplemental heating source, on his insurance application. Specifically, the court stated that the misrepresentation was material because whether Payne used alternative sources of heat was pertinent to the risk at issue in this case: fire. Because of Payne’s material misrepresentation regarding the use of an alternative heat source in the house, the court granted summary judgment as to Allstate’s claims for breach of contract, breach of common law duty of good faith, and insurance fraud. The court also awarded Allstate $25,000 in damages. Likewise, because of Payne’s material misrepresentation, the court dismissed Payne’s breach of contract claim against Allstate with prejudice. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact