News Lawfirm Permitted to Testify and Represent Client During Same Trial (NY) October 19, 2009 < Back Share to: Deciding whether to move to disqualify counsel is an interesting tactical decision that presents itself from time to time. Recently, a New York federal appellate court made disqualification more difficult in circumstances where the basis of the motion is that the law firm trying the case is also going to present witnesses that will testify at trial on behalf of their client. In Murray v. Metropolitan Life Ins. Co., plaintiffs were policyholders in Met Life Insurance before it demutualized, and sought to disqualify Debevoise & Plimpton LLP, from serving a trial counsel in a class-action suit because: 1) Debevoise represented Met Life in the demutualization process, and thus also represented the policy holders; and 2) other Debevoise attorneys were going to testify at the trial where their partners were acting as trial counsel. The Second Circuit Court of Appeals reversed the trial court order and ruled against disqualification. First, the court held that the plaintiffs were not clients of Debevoise. Outside counsel to a corporation represent the corporation, not its shareholders or other constituents, and the same principle applies to a mutual company. On the second issue, generally, Rule 3.7 (a) of the New York Rules of Professional provides, with certain exceptions, that “a lawyer shall not act as an advocate before a tribunal in a matter in which the lawyer is likely to be a witness on a significant issue of fact. Subsection (b) addresses “imputation:” “A lawyer may not act as an advocate before a tribunal in a matter if ... another lawyer in the lawyer's firm is likely to be called as a witness on a significant issue other than on behalf of the client, and it is apparent that the testimony may be prejudicial to the client.” The Court held that these motions are subject to strict scrutiny because they are subject to abuse, and the Court crafted a new rule that required plaintiff to establish, by clear and convincing evidence that: (a) the witness will provide testimony prejudicial to the client; and (b) the integrity of the judicial system will suffer as a result. In reversing the trial Court, the Second Circuit found that the Debevoise attorneys that were going to testify were primarily going to authenticate documents. The Court also held that other factors, including plaintiff’s delay in filing the motion, all weighed against disqualification. http://caselaw.lp.findlaw.com/data2/circs/2nd/093716p.pdf Previous Next Contact

News Coronavirus Pandemic and WCM March 13, 2020 < Back Share to: The news cycle as it pertains to Coronavirus seems to be changing by the minute, and WCM has been monitoring these updates along with everyone else. In the wake of increased governmental warnings issued related to the pandemic, Wade Clark Mulcahy LLP remains fully operational. However, in light of the uptick in quarantines in the areas where we practice, as well as the likely limitations on travel within high-density population areas like New York and Philadelphia, we are strongly encouraging all attorneys and staff to work remotely, from their homes, effective today (March 13, 2020.) All attorneys will have full access to their digital files, and we expect to conduct "business as usual" as we continue to monitor the situation. But because most of us will not be physically at our desks, email will be the most effective means to reach us. And if you are checking our website for information regarding our Court and Deposition calendar, please contact Marlynn Saintil at MSaintil@wcmlaw.com . Lastly, we wish good health and safe travels to our friends, partners, clients -- and even our adversaries 😉 – during these unique times, and a heartfelt thanks to the medical professionals working around the clock right now. Stay safe and be well. Previous Next Contact

News PA Superior Court holds that civil jury trial requires 12 jurors. September 21, 2007 < Back Share to: Under Rule 1007.1(c), 12 jurors are mandated unless a fewer number is consented to, 10 of whom must agree on the verdict. An 8 member jury requires 7/8 for a verdict. http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1189760565245 Previous Next Contact

News Renewal Application Creates No Obligation for Coverage May 19, 2017 < Back Share to: “He who represents himself has a fool for a client” - a saying often attributed to Abraham Lincoln, and just last week apparently co-signed by the Appellate Division of the New Jersey Superior Court in Sicari v Hartford Insurance Company of the Midwest. The Plaintiff attorney appeared pro se in the action. He obtained insurance through Hartford for 2010-2011 to cover his law practice, including coverage for general liability, business property liability, and lawyer’s professional liability. He paid over $2,000 in premiums. In May 2011, Hartford sent Plaintiff a letter advising that they were “no longer writing lawyer’s professional liability coverage.” Plaintiff testified he never received Hartford’s notice. In June 2011, Plaintiff sent Hartford a renewal application for lawyer’s professional liability coverage, to which he received no response. Hartford then issued insurance policies to Plaintiff for the years 2011-2012, and 2012-2013. These policies did not contain lawyer’s professional liability coverage, a fact the Court noted was suggested by a drastic reduction in premiums. In July 2013, Plaintiff found himself the subject of a potential malpractice claim, and only then did he “discover” he no longer had professional liability coverage. His suit against Hartford sought retroactive coverage based on Hartford’s failure to notify him of the decrease in coverage, and a contractual obligation to provide coverage ostensibly triggered by his renewal application and Hartford’s failure to adequately respond to same. The Court was unmoved by Plaintiff’s arguments, noting “an insured is chargeable with knowledge of the contents of a policy.” Although the case represents a confirmed victory for Hartford, the Court provided one bit of practical advice to insurance providers: when in receipt of a renewal application, “the better practice would [be] to notify the [insured] or the broker” that the coverage requested will not be renewed or is no longer offered. Thanks to Vivian Turetsky and Christopher Soverow for their contributions to this post. Previous Next Contact

News Police Report and Settlement Check Inadmissible in Auto Case (NJ) September 15, 2017 < Back Share to: Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo, The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car. At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff. On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police report. Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness. In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Facebook Discovery Leads to Adverse Inference (NY) October 5, 2017 < Back Share to: In Safer v. Hudson Hotel, the Civil Court of the City of New York addressed whether an adverse inference charge was proper as part of the trial court’s jury charge. The plaintiff alleged that she stepped on a broken glass in the defendant’s hotel bar which caused serious personal injuries to her mind and body. As such, the defendants served plaintiff with a discovery demand for "color copies of Timeline Photos posted to Plaintiff's Facebook account from May 13, 2012 to present". Defendants moved to compel plaintiff to produce the aforementioned material and the Supreme Court ordered that “….photographs of plaintiff in her Facebook profile are probative of the issue of the extent of her alleged injuries to the extent they relate to or show the condition of her left foot. Accordingly, plaintiff is directed to provide the following for an in-camera review inspection within 30 days: all status reports, emails, photographs, and videos posted on plaintiff's Facebook…….” Thereafter, plaintiff provided defendants with black and white, low resolution screenshots of some of the Facebook posts in the Court’s production order – which lead to the defendants serving a so-ordered subpoena for all documents in said order. Although plaintiff responded to the subpoena, she didn’t produce eight posts named in the production order. In plaintiff’s opposition she admitted that she had inadvertently deleted photos related to her ex-fiancé. As such, defendants argued that the Court should sanction plaintiff for spoliation, and to instruct an adverse inference charge because they were prejudiced by the loss of the above-mentioned photos. The Court held that an adverse inference charge is a proportionate sanction for plaintiff’s spoliation. This decision serves as a reminder that 1) defendants can request relevant social media material from the plaintiff; and 2) if they do not comply with the demand that an adverse inference charge may be warranted. Thanks to Corey Morgenstern for his contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News All Risk Insurance Policy Does Not Cover Restaurant From Covid Loss (PA) April 8, 2022 < Back Share to: In a recent case from the Eastern District of PA, Humans & Res., LLC v. Firstline Nat’l Ins Co., the court granted the defendant’s summary judgment against the plaintiff who sought coverage under an all-risk property policy. Finding that COVID-19 related loss did not fall under an all-risk property policy and did not give rise to the expectation that it would. The plaintiff in the case owned a BYOB restaurant. The Pennsylvania Governor instituted a stay-at-home order in response to the COVID-19 pandemic. The large establishment was limited to takeout and delivery. In response the plaintiff owner chose not to provide take out and delivery options. The plaintiff argued that since the chose not to offer carryout or delivery, the orders caused the restaurant to lose revenue and suffer business income losses. The plaintiff filed a declaratory judgment that the business losses it incurred due to the closure orders were covered under the policy. The court found in favor of the defendant finding that the Insurance policy does not cover the losses caused by COVID-19. The plaintiff then cross moved on the grounds that they believed the “all risk policy included coverage for business losses suffered in the event of a business interruption.” The defendant moved to dismiss the claims based on the policy did not extent to pandemic-related closure. Additionally, the policyholder specifically did not request coverage for global pandemic related closure. The court further explained that all-risk policies do not create an objectively reasonable expectation of coverage of all losses, especially where the policy’s coverage is limited by exclusions. This case is a good example of how a policy language can dictate the outcome even in an all-risk policy. Although mostly related to COVID-19 damages an all-risk policy will still be confined to a general coverage area with limits. Thanks to Kevin Riley for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Measure Twice, Cut Once - Invalid Agreement Nullifies Claim for Arbitration (PA) May 1, 2018 < Back Share to: On April 27, 2018, the Superior Court of Pennsylvania affirmed the trial court’s decision to deny a defendant’s preliminary objections to compel arbitration in Brennan v. NVR, Inc., Plaintiffs Terrance and Gladys Brennan executed a purchase agreement with defendant NVR, Inc. (NV Homes) for the construction of their home. The agreement stated that the purchaser would receive a limited warranty before settlement on the home, which contained language mandating binding arbitration. The plaintiffs did not receive a copy of the limited warranty until nine months after settlement. Prior to settlement, the plaintiffs had an inspection done which identified defects in the house-wrap, flashing, and window installation which would allow water intrusion. The plaintiffs brought these findings to NVR’s project manager prior to settlement who reassured them that NVR would take care of the issues. Based on this representation, the plaintiffs completed settlement. After settlement, however, the plaintiffs noticed water leaks around their doors, windows, and walls and a subsequent inspection found that the original defects had not been fixed. The plaintiffs filed a complaint alleging fraudulent misrepresentation and violation of Pennsylvania’s unfair trade practices and consumer protection laws. NVR filed preliminary objections in the form of a motion to compel arbitration based on the warranty agreement. The trial court overruled these preliminary objections and ordered NVR to file an answer. NVR then filed an appeal. First, the Superior Court first found that an order denying a motion to compel arbitration is immediately appealable in Pennsylvania, which allowed the Court to examine the agreement on the merits. The court next moved to whether the arbitration agreement was enforceable. To decide whether arbitration should be compelled, courts use a two-part test: 1) does a valid agreement to arbitrate exist; and 2) is the dispute within the scope of the agreement. Here, the court found that there was no valid agreement to arbitrate. First, the original purchase agreement did not contain an arbitration clause. Next, the warranty that does mention mandatory arbitration was never signed by the plaintiffs, was buried in the homeowner’s manual, and was only provided to them nine months after settlement. Even if there was a valid agreement, the court found that it would not fall within its scope as the warranty only dealt with disputes over improper construction of the home and not claims for fraudulent misrepresentation. An agreement must be valid and cover the scope of the dispute. If a company provides a clear and well-drafted agreement, then it can avoid the costs and risks, known and unknown, presented by trial, by moving a case into arbitration. Here, the contractor included an arbitration agreement in the HO manual, but never mandated its execution before settlement on the home. As such, there was no de facto agreement in place. This decision also highlights prudent pleading by plaintiff's counsel -- by alleging fraudulent misrepresentation instead of improper construction, plaintiff's suit did not fall within the scope of the arbitration agreement, even if the agreement were valid. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Lack of Constructive Notice Requires Constructive Evidence July 21, 2023 < Back Share to: The second judicial department recently reaffirmed its standing on the “lack of constructive notice” defense in a snow and ice slip and fall that happened on New York City subway stairs in 2018. Often used as a defense in premises liability cases, the defense of constructive notice is widely used by defendants to show that they lacked the type of notice that would make them liable for the existence of a certain condition. Here, in Islam v. City of New York, the court stated that in order for lack of constructive notice to be a provable defense, the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599; see Ahmetaj v Mountainview Condominium, 171 AD3d 683, 684). "A defendant has constructive notice of a hazardous condition on property when the condition is visible and apparent, and has existed for a sufficient length of time to afford the defendant a reasonable opportunity to discover and remedy it" (Miller v Terrace City Lodge No. 1499, Improved Benevolent Protection Order of the Elks of the World of Yonkers, N.Y., Inc., 197 AD3d at 644; see Gordon v American Museum of Natural History, 67 NY2d 836, 837-838). In the case here, defendants City of New York and the New York City Transit Authority moved for summary judgment on the basis that they did not have actual or constructive notice of the hazardous condition that caused plaintiff to slip. This court held that since the action was predicated on a snow and ice condition, “the defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time when the plaintiff fell" (Birnbaum v New York Racing Assn., Inc., 57 AD3d 598, 598-599) Defendants here only pointed to general cleaning and inspection practices which were insufficient to establish a lack of constructive notice. Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Interview, Depose or Obtain Affidavits from Key Witnesses to Avoid “Questions of Fact” on Summary Judgment Motions April 20, 2016 < Back Share to: Slip and fall accidents are among the most common in personal injury lawsuits. When moving for summary judgment, defendants bear the burden of proving that they kept the premises in a reasonably safe condition, did not create the dangerous condition, or have actual or constructive notice of such condition. In summary judgment motions, defense counsel should be mindful to use a sufficient testimony to demonstrate this lack of notice such that there can be no issues of fact. In Carota v. Hess Corp., plaintiff sued after she slipped and fell at the defendant’s gas station. Plaintiff argued that defendant was negligent in failing to properly maintain the premises because she slipped on a puddle of water and gas/oil while fueling her vehicle. In its motion for summary judgment, defendant argued that it had no notice of the dangerous condition. The gas station attendant testified that she had checked the pumping area, as required, when her shift began at 5:00 a.m. and she did not see anything out of the ordinary. The gas station required its employees to perform an inspection of the pump areas on an hourly basis and two other employees may have inspected the pumping area prior to the accident. However, the Court noted that any evidence of those two employees’ inspections was inadmissible hearsay. The Court reasoned that when viewing all of the evidence in the light most favorable to plaintiff, the record contained questions of fact as to whether the defendant’s employees had undertaken the required hourly inspections. Consequently, the Court denied the defendant’s motion as it could not find that there was no notice of the water and gas/oil puddle near the pump. This case should serve as a reminder to defense counsel to timely seek the depositions of any and all key fact witnesses. In Carota, had the defendant deposed the other two gas station employees, their testimony would have been part of the record and admissible evidence as to whether the gas station had notice of the water/gas/oil puddle. Such testimony could have persuaded the Court to grant summary judgment and dismiss the plaintiff’s claims outright. Thanks to Jeremy Seeman for his contribution to this post.     Previous Next Contact

News Don't Be Late - NY APP Div. Finds Tardy Defendants In Default November 1, 2010 < Back Share to: In the recent decision of Blaunt v. Berkovits, the Second Department held that the trial court had erred in excusing defendant's default in failing to timely answer the complaint. Let this be a lesson -- though parties are usually lax about a couple of days and many are willing to provide stipulations extending time to answer -- the New York State Courts are not always as forgiving. Here, they determined that though there was only a short delay in answering the complaint, the defendants failed to provide any satisfactory explanation for the delay and failed to make any showing of any potentially meritorious defense to the claims raised by plaintiff. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07707.htm Previous Next Contact

News Court Rules On Business Losses Due To Covid-19 Restrictions (PA) September 17, 2021 < Back Share to: Business closed due to Covid-19? Sorry, you may be out of luck. When Pennsylvania Governor Tom Wolf mandated the closure of all non-life sustaining businesses in March 2020, enterprises across the state had to shut their doors and hope the Covid-19 virus would simply run its course. As we know now, Covid-19 is here to stay and as a result, many businesses have struggled to keep their doors open. Fuel University City, LLC is one of the companies ordered to close its doors in March, 2020, and even after reopening when the restrictions were lifted, Fuel continued to suffer financially. Moreover, Fuel’s insurance carrier, Allied Insurance Company of America, denied coverage for the losses occurring as a result of the pandemic. In Fuel University City, LLC v. Allied Insurance Company of America, et al., the health-conscious Philadelphia eatery alleges its insurance carrier wrongfully denied coverage for its Covid-19 related losses. In response, Allied Insurance moved to dismiss the suit for failure to state a claim upon which relief can be granted. Fuel’s first argued that its financial losses are covered under the “Business Income Provision” of its policy, which states that Allied Insurance will pay for actual losses of income due to the suspension of operations caused by physical damage to the premises. This provision is meant to provide protection when the business cannot physically operate due to damage to the property. Fuel argued that Covid-19 actually caused physical loss and damage to its restaurant by rendering it unsafe for customers to eat there, and by creating a level of social anxiety throughout the community. However, the Court sided with Allied Insurance, ruling that the policy provision was intended to cover occurrences of actual physical damage and repair to the property. The Court stated that Fuel “cannot plausibly allege that the nature of the loss caused by COVID-19 was such that it could be repaired or remedied.” (at 6). Fuel also argued that its losses were covered under the Civil Authority Provision of its policy, which covers losses caused by governmental restriction of access to physically damaged property. Fuel claimed that Covid-19 rendered its property and the surrounding areas unsafe, uninhabitable, and damaged. The Court rejected this argument as well, stating the government shut-downs were enacted in response to Covid-19’s existence in the community, not in response to any particular damaged property. Finally, the Court made it clear that even if a right to coverage could be established, the Virus and Bacteria Exclusion would bar recovery. Fuel’s policy contained an exclusion for losses and damages caused directly or indirectly by any virus or bacterium that is capable of inducing disease. Because Covid-19 falls squarely within this definition, Fuel had no hope of coverage. Fuel made one last-ditch effort to argue the principle of regulatory estoppel bars enforcement of the provision, based on its assertion that insurance industry trade groups made misrepresentations to state regulators that the Virus and Bacteria Exclusion would not change the scope of coverage. However, this argument was quickly shut down by the Court. This decision serves as an example of how the Eastern District will handle business income losses in coverage cases concerning Covid-19 business closures. While a very real threat to public health, the Covid-19 virus is not powerful enough to tear the roof off a building or cause massive flooding in the basement. Yet, it has destroyed the economic viability of untold numbers of business owners throughout the state. As it stands in this district, the economic toll of Covid-19 lands at the feet of business owners. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact