News Settle Out But Remain On The Verdict Sheet (NJ) September 12, 2019 < Back Share to: In Donna Rowe v. Bell Gossett Company, the New Jersey Supreme Court overturned a controversial Appellate decision that made fundamental changes in substantive and evidential requirements to prove allocation of fault among settled-out defendants at trial. Plaintiff Rowe contracted mesothelioma due to asbestos exposure. He sued nine different defendants, and all but one settled before trial. At trial, the remaining defendant Universal moved to admit excerpts from the settled defendants’ interrogatories and deposition testimony of their corporate representatives. On appeal, the court found that the admission of the defendants’ prior discovery was improper. The Supreme Court reversed, holding that the admitted discovery was admissible as statements against interest, pursuant to N.J.R.E. 803 (c)(25). Those statements gave rise to a prima facie showing that the settled out defendants bore fault, and the trial court properly submitted to the jury the question of whether a percentage of fault should be apportioned against the settled defendants. This decision will be helpful to defendants when seeking to apportion fault against parties no longer in an action at the time of trial. Thanks to Heather Aquino for her contribution to this post. If you have any questions, please contact Georgia Coats. Previous Next Contact

News Emergency Doctrine Not Enough to Save Mechanic from Liability in Motor Vehicle Accident (NY) July 27, 2017 < Back Share to: In D'Augustino v. Bryan Auto Parts Inc., 2017 Slip Op 05708 (2d Dept. 2017), defendant Boyle parked his car on a street near Bryan Auto Parts to obtain a New York State Inspection. Prior to conducting the inspection, defendant Rattray, a mechanic working for Bryan Auto Parts, drove Boyle’s car, intending to move it in to the garage for the inspection. On the way from where Boyle parked the car into the garage, Rattray came upon an intersection where he was to stop at a stop sign. At that time, plaintiffs, who had the right of way through the intersection and no stop sign, were travelling through when the Boyle vehicle struck the plaintiffs in the side in the middle of the intersection. Rattray claimed that he attempted to stop but that despite his efforts the brakes were not working and he could not get the car to stop before hitting plaintiffs. The lower Court granted the mechanic’s motion for summary judgment wherein they claimed that they were free from negligence under the “emergency doctrine.” The defendants claimed that they had no knowledge that the brakes were broken and that Boyle did not tell them that there were issues with the brakes when he dropped off the vehicle. The Appellate Division reversed the lower court finding that the shop and mechanic failed to show that there are no questions of fact as to whether an emergency actually occurred and as to whether Rattray acted reasonably under the circumstances to attempt to avoid the accident. There was no corroboration of the brake failure, and in fact, defendant Rattray apparently repaired the brakes shortly after the accident. The above decision reinforces how difficult it is for a defendant in New York, even one who did not own or maintain the vehicle, to obtain summary judgment in their favor in motor vehicle accidents, especially where the plaintiffs had the right of way. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NY's Plans for a Direct Competitor to Lloyd's Are Gaining Momentum. January 6, 2010 < Back Share to: We have previously commented on NY's plans to reopen a New York Insurance Exchange. It appears that the reopening of the exchange will be a priority of NYS Governor Patterson heading into an election year. In his State of the State Address earlier today http://www.ny.gov/governor/press/press_01061001.html, Governor Patterson announced that, assuming industry interest, his administration plans to create a New York Insurance Exchange and have it operational "as soon as possible." http://www.insurancejournal.com/news/national/2010/01/06/106431.htm Previous Next Contact

News Court Takes a Limited-Brush Approach to Application of “Named Perils” Coverage (NJ) March 5, 2020 < Back Share to: In coverage disputes, courts and counsel for the insured often lose sight of the type of policy at issue and the triggering language in a coverage grant. But as one recent New Jersey decision demonstrates, most courts are still faithful to clear policy language. In Cusamano v. NJ Insurance Underwriting Ass'n, the insureds sought coverage under their homeowner’s insurance policy after the New Jersey duplex they owned sustained damage from a leaking pipe. The insurers argued that no coverage existed because the particular water damage is not a “named peril.” The trial court had disagreed, and held that because the couple’s policy didn’t specifically exclude water damage from leaky pipes, there was enough ambiguity to resolve the dispute in their favor. But on appeal, the Appellate Division reversed, and held that there was no coverage in the first instance. In doing so, the court reasoned that the policy was a named perils policy, meaning that it provided for loss caused by particular perils included in the policy. Because the policy did not list water damage from leaking pipes as a covered peril, no coverage existed in the first instance. For that reason, the absence of an exclusion did not revive coverage. Cusamano is a decision that should provide some comfort to insurers. Not only does it highlight the distinction between “Open” and “Named” perils coverage, it also reaffirms principle that all coverage analysis begins with the initial coverage grant of coverage. It was also significant for reaffirming that courts need not consider an insured's reasonable expectations when the policy language is clear. Thanks to James Papadakis for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News Speculation On Causation Of Infections Will Not Be Permitted By New York Courts January 13, 2023 < Back Share to: In Michael Pecora v. Fitness International LLC, 2023 NY Slip Op 00103 (2d Dept. 2023), plaintiff alleged he contracted infections at his local gym as a gym member in July 2014. He received an infection on his stomach, received medical treatment for that infection, and then alleged that after use of the gym sauna, he thereafter developed MRSA (a bacterial infection) one day later. Plaintiff sued the gym alleging that both infections were caused by a dangerous or defective condition on the premises which caused plaintiff’s infections. However, the Court did not buy plaintiff’s argument and the Appellate Division affirmed that ruling. Of import, Counsel for the gym provided a prima facie argument that the plaintiff would not be able to prove, without resorting to speculation, that the pathogen which caused his infections was present at the defendants' facility, Defendants submitted an expert report citing that such infections can be transmitted in various ways in different locations, that the facility was cleaned regularly, and there were no prior complaints or reports of MRSA infections. The Appellate court also determined that “since there could have been many possible sources of the infection-producing pathogen, any determination by the trier of fact that a condition at the defendants' facility caused the plaintiff's infections would be based upon sheer conjecture” (Dennis v Lakhani, 102 A.D.3d 651, 652; cf. Ash v City of New York, 109 A.D.3d 854, 855; Garvin v Rosenberg, 204 A.D.2d 388). Plaintiff failed to raise a triable issue of fact against those arguments. As result of Covid and other transmitted infections, property managers have seen the increase in suits of this type and while it can be difficult to defend because plaintiffs allege that the infection came from the property owner, medical experts are necessary to explain these types of MRSA infections are common and can occur anywhere. This case shows that the Appellate Court will sustain summary judgment ruling if a premises owner can prove that it maintained and cleaned the facility regularly, and there were no previous reports from other public patrons. Thanks to Raymond Gonzalez for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Barking Up The Wrong Tree: Court Grants Owner Summary Judgment For Dog's Accident December 12, 2013 < Back Share to: Typically, lawsuits involving dogs arise out of dog bites. But a more unusual scenario arose in Buicko v Neto, where a dog running loose in the street caused an accident and the injured party sought to have the dog's owner held liable. The defendants’ installed an invisible fence along the boundary of their property intended to allow their dog, Dudley, free to explore. The dog was fitted with a collar that provided a small electric shock when the dog ventured too closely to the underground “fence.” One day, plaintiff rode her bicycle past defendants’ home and noticed Dudley barking and zigzagging along the front boundary of the property. Apparently, the invisible fence didn't provide much of a deterrent, as plaintiff alleged Dudley bolted from defendants’ yard directly in the path of her bicycle causing her to inadvertently strike the dog and fall. The trial court awarded the homeowner's summary judgment, and the Appellate Division, Third Department, affirmed the dismissal finding that plaintiff submitted insufficient evidence to demonstrate that the defendants were liable. Similar to a dog bite case, the found that the owners needed to be on notice of a propensity for similar conduct. While recognizing that the propensity could include “a dog’s habit of chasing vehicles or otherwise interfering with traffic” and thus endangering people’s safety, the court found that there was no evidence that Dudley had a history of chasing bicycles or interfering with traffic. A dog’s propensity to bark at traffic and run around a yard was deemed insufficient to raise a question of fact regarding the homeowner's notice for the dog's conduct here. Thanks to Steve Kaye for his contribution to this post. Previous Next Contact

News Call Your Next Witness - Brian & Georgia Discuss the Courts and new Associates Starting their Careers this Fall September 1, 2021 < Back Share to: No guest this week -- instead, Brian Gibbons and Georgia Coats discuss the seemingly ever-changing impact of COVID-19 and the delta variant on court operations. As recently as a few months ago, the pandemic seemed to be on its last legs, but numbers are trending in the wrong direction again. What does that mean for court operations this Fall and Winter, in NYC and elsewhere? Also, with new associates starting at Wade Clark Mulcahy and other firms across the country, Brian & Georgia compare their immediate post-law school experiences, discuss what they wish they knew at the time, and offer some advice for graduates starting their legal careers in the next few weeks. Listen here, or wherever you download podcasts. If you are interested in being our "next witness" on Call Your Next Witness, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Lobby Slip and Fall July 9, 2009 < Back Share to: In Rodriguez v. Hudson View Associates (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05530.htm), the plaintiff slipped on water that had been tracked into the lobby of the building where she worked. She claimed that the owner had failed to place any mats on the floor to address this condition. The owner moved for summary judgment, claiming no notice of the condition. The motion was denied because the owner failed to offer evidence as to when the floor was last inspected or examined before the plaintiff's accident. Mike Monteith posted this entry. Previous Next Contact

News Dental Floss: Cavity Fighter or The Perfect Murder Weapon October 4, 2018 < Back Share to: Eleven inmates at a Westchester County jail seek $500 million and the right to use dental floss in a lawsuit brought against Westchester County and dental care providers. The inmates allege that, despite constant brushing, they are unable to fend off cavities because they are denied dental floss. With no floss to keep tartar away, the inmates took self-help measures rid themselves of unsightly tartar; such as shoving “weird objects” between their teeth. According to the complaint, the problem is compound. The lack of floss causes cavities. But the county facility refuses to provide permanent fillings or crowns. that is so because the county lock up is a holding facility for pre-trial detainees or for sentenced inmates awaiting transfer to a New York State penitentiary. Inmates claim that the denial of floss constitutes a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. To prove such claim: (1) plaintiff must show that he had a serious medical condition; and (2) that it was met with deliberate indifference. In response to the suit, Deputy Correction Commissioner Justin Pruyne defended the ban, saying "it (dental floss) potentially can be used as a weapon." According to prison officials, apart from being a deadly weapon, floss can used to cut through prison bars or fashioned into rope. In fact, in 1994, a prisoner did just that, using an 18-foot floss rope to clamber down the walls of a West Virginia prison. Considering that prison officials are given a large degree of deference, the odds against success are quite long. In era of budget cutbacks and crowded dockets, it is difficult to move insurance cases to trial, but at least we know that our jurists are grappling with weighty issues, such as whether denying inmates dental floss constitutes cruel and unusual punishment. Thanks to Gabriel Darwick for his contribution to this post. If you have any questions, please email Dennis at dwade@wcmlaw.com . Previous Next Contact

News Purchasers of Forged Art Left Hanging June 30, 2010 < Back Share to: Michael and Constance Flaum, who in 1976 thought they had purchased a $50,000 Renoir painting, are now left with no recourse but to hang an expensive forgery in their home. Since 2005, the Flaums insured the work of art, valued at $350,000, under a Valuable Articles Endorsement of their homeowner’s insurance policy. In the Spring of 2008, the plaintiffs sought to sell the Renoir painting at Christie’s auction house, only to be told that the painting was rejected from auction and deemed to be a forgery. Previously, the Flaums had received verbal confirmation from a Renoir expert that the painting was authentic. Plaintiffs placed a $525,000 claim with their insurer for the loss, which was denied on the grounds that they had “not sustained a physical loss” under the terms of the insurance agreement. The Court agreed, finding that the painting still hangs in the plaintiff’s home and despite its now decreased value, no physical loss had occurred. The Court opined that, “to the extent the plaintiffs contend that they suffered a physical loss as a result of the forgery because the painting is not physically a Renoir, such a claim is without merit since under that theory the painting was never physically a Renoir; therefore, no loss occurred” http://www.nycourts.gov/reporter/3dseries/2010/2010_20253.htm Special thanks to Christopher D. O'Leary for his contribution to this post. If you have any questions, please contact Denise at dricci@wcmlaw.com . Previous Next Contact

News Employee Thefts Constitute Single Occurrence Under Policy Language (PA) April 12, 2018 < Back Share to: The Eastern District of Pennsylvania recently ruled that an insurer did not need to pay more than its single occurrence policy limit in connection with a $3 million employee theft claim. In Wescott Electric Company v. Cincinnati Insurance Company, the Court granted Cincinnati Insurance Company’s (“Cincinnati”) motion to dismiss the claims brought against it for its failure to provide additional coverage. This lawsuit was initiated by Wescott Electric Company (“Wescott”) after a Wescott employee stole almost $3 million from the company between 2003 and 2013. During the relevant period, Wescott had four consecutive insurance policies from Cincinnati. Each policy lasted for three years with the fourth policy beginning in 2013. Importantly, the employee’s theft was discovered during the policy period of the fourth policy. As a result, Cincinnati paid Wescott the policy limit of $100,000 for a single “occurrence” of employee theft. Wescott’s breach of contract claim against Cincinnati was two-fold. First, Wescott argued that it was entitled to coverage under the 2013 policy as well as under the 2010 policy. Second, Wescott argued that the employee’s theft constituted more than one “occurrence” under either the 2010 or 2013 policy. In response, Cincinnati filed a motion to dismiss. The Court ruled in Cincinnati’s favor, stating that Wescott was only entitled to coverage for a single “occurrence” of employee theft under the 2013 insurance policy. The Court reached its conclusion in two separate steps. First, the Court determined that only the 2013 policy provided coverage to Wescott because the theft was not discovered until after the 2010 policy ended. In reaching its decision, the Court flatly disagreed with Wescott’s request to rewrite its 2010 policy to expand the period of coverage. By way of background, the four consecutive insurance policies did not contain uniform language. Specifically, the policies issued in 2004 and 2007 stated that Cincinnati “will pay only for covered loss discovered no later than one year from the end of the policy period.” These policies ended in 2007 and 2010, respectively, and the employee’s theft was not discovered until 2013. Thus, neither the 2004 or 2007 policies provided Wescott with coverage. Significantly, the 2010 and 2013 policies contained more limited discovery language. These policies stated that Cincinnati’s coverage only applied to losses which were discovered by Wescott during the policy period, rather than one year from the end of the policy period as in the 2004 and 2007 policies. Essentially, Wescott requested that the Court rewrite the 2010 policy to include the larger, one-year discovery window found in its 2004 and 2007 policies. Wescott argued that it reasonably expected the 2010 policy to contain the same one-year discovery window as the former policies and was not put on notice of the change. The Court disagreed with Wescott’s position, finding that its contention was insufficient to rewrite the 2010 policy. In so finding, the Court emphasized a “Notice to Policyholders” issued by Cincinnati in 2008 that announced the change in discovery-based coverage. Furthermore, the Court referenced Standard Venetian Blind Company v. American Empire Insurance Company when explaining that because the exclusions in the policy were clearly worded and conspicuously displayed, the insured could not avoid their enforcement simply by arguing that he failed to read or did not understand them. Applying the case to the instant matter, the Court determined that the Cincinnati discovery period language was far more “conspicuously displayed” than even the language in Standard Venetian. The Court also pointed out that the discovery period language was the very first paragraph of the “Commercial Crime Coverage Form.” Second, the Court determined that only one “occurrence” of employee theft had transpired under the 2013 policy. In reaching its conclusion, the Court mainly relied on the plain meaning of “occurrence” found in the definition section of the “Commercial Crime Coverage Form.” Specifically, the Court found the language in the definition to be unambiguous and stated that the employee’s “series of acts” in stealing from Wescott qualified as a single “occurrence” because they were “committed” by a single employee both before and during the relevant policy period. Therefore, the Court concluded that the definition limits the amount of coverage for all thefts occurring during the 2013 policy period to $100,000. Thanks to Zhanna Dubinsky for her contribution for this post. Please write to Vito A. Pinto for further information. Previous Next Contact

News Security Guard's Injury Action Docked By Older Safety Standards (NY) August 18, 2017 < Back Share to: In Schmidt v. One New York Plaza Co. LLC, the Appellate Division, First Department reaffirmed that in order to find a building owner liable for violations of building safety standards, a plaintiff must show violation of specific standards in existence at the time the building was built -- and not at the time of the loss. Plaintiff was assigned as a security guard at New York Plaza with his bomb-sniffing dog on the day of his accident. He was charged with inspecting trucks as they sought entry to the loading dock at the premises. Plaintiff was walking down the service ramp with his dog when a delivery person was ascending the ramp. Plaintiff took a step that came down on the outer edge of the ramp, causing him to lose his balance and fall backward off the ramp. In support of its motion for summary judgment, defendant building owner submitted an expert architect’s report which concluded that the design and construction of the ramp did not violate the New York City Building Code or any industry-wide standard. More specifically, defendant’s expert opined that neither the Building Code nor OSHA contained sections specifically applicable to the instant facts. In opposition, plaintiff stated that its expert would testify that the ramp was defective and in violation of “good, proper, and accepted building and engineering standards” for ramps in equivalent buildings and was in violation of the New York City Building Code and industry standards at the time of construction. The motion court denied defendant’s motion on the grounds that its expert, while addressing the New York City Building Code and Occupational Safety and Health Administration (OSHA) regulations, failed to address other types of industry-wide standards that might be applicable. However, the Appellate Division, First Department reversed, holding that plaintiff failed to raise a triable issue of fact to defeat summary judgment as to a violation of any industry-wide standard at the time of construction. Plaintiff’s expert failed to “offer concrete proof of the existence of the relied upon standard as of the relevant time, such as a published industry or professional standard or evidence that such a practice had been generally accepted in the relevant industry at the relevant time.” Thanks to Sara Matschke for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact