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News School Not Liable For Teacher's Sexual Assault On Students October 26, 2010 < Back Share to: In Acosta-Rodriguez v. City of New York, a New York City public school teacher was accused of sexually abusing several students. The students, in turn, filed an action against the Board of Education under the theory of respondeat superior. The 1st Department granted the Board of Education's summary judgment motion. Among other things, it found that there was no triable issue of fact as to whether the teacher's conduct was done for purely personal reasons and not in furtherance of any school business. The Court also held that the Board of Education was not on actual or constructive notice of the employee's propensity for sexual abuse of minors merely because he bought pizza for students and observed them while they played. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News Asleep in Car = At Work? PA Appellate Court Says "Yes". October 15, 2009 < Back Share to: In the case of Kulik v. Mash, the plaintiff arrived for work early, so he decided to nap in his car in his employer's parking lot. While he was napping, a co-worker arriving for work rammed his car into the plaintiff's thereby causing injuries. The question posited for the court was whether the Worker's Compensation Act barred coverage. The Superior Court agreed with the trial court and held that it did. The court held that "waiting for work was within the scope of employment." http://pdf.wcmlaw.com/pdf/Sleeping Employee.pdf Previous Next Contact

News Pick Your Battles Carefully: Injured Party Has DJ Complaint Dismissed But Still Lacks Coverage (NY) August 19, 2016 < Back Share to: In litigating declaratory judgment actions in New York, an insurer is often faced with the important strategic issue of whether to name all of the underlying litigants as parties to that DJ action. Likewise, the named parties also have the choice of litigating the substantive coverage issues or sitting on the sidelines. That issue was recently at the forefront of Hermitage Ins. Co. v. 186-190 Lenox Rd., LLC. On January 30, 2009, Smith was injured in a slip and fall on property owned by 186-190 Lenox Road, was insured by Hermitage, but Hermitage received its first notice of the accident on June 11, 2012. As such, Hermitage disclaimed coverage on late notice grounds and commenced a declaratory judgment action, naming both Lenox and Smith as defendants. Hermitage moved for a default judgment against Lenox and Smith. Smith opposed the motion, arguing that she was not properly served, and even if she was, the action against her should be dismissed as abandoned because Hermitage did not move for a default judgment within one year of her failure to answer. Smith did not oppose Hermitage's request for a default judgment against Lenox, and Lenox did not answer or oppose the motion. The trial court granted the motion for a default judgment against Lenox and found that there was no duty for Hermitage to defend or indemnify Lenox against the claims made by Smith. It also awarded Smith the procedural relief she sought, severing and dismissing the complaint against Smith as abandoned. On Appeal, Smith sought to challenge the judgment that Hermitage had no duty to defend Lenox, but the Appellate Division, First Department found that Smith lacked standing to appeal from the order granting a default judgment against Lenox. Smith, as a named party, could have opposed Hermitage's coverage position but instead only sought dismissal on procedural grounds. Thus, Smith was not aggrieved by that portion of the order that declared that Hermitage was not obligated to defend and indemnify Lenox in the underlying action. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Don’t Demonize The Landlord (NY) November 5, 2020 < Back Share to: COVID-19 has frustrated the restaurant industry causing many to close its doors and close prominent businesses and neighborhood staples. But who is to blame? There are a growing number of cases arguing whether parties can avoid their contractual obligation due to the pandemic. A recent Decision in Supreme Court, Kings County Commercial Division, made some ground in this argument when it rejected a restaurant’s argument that the recent Executive Orders, originating from COVID-19, frustrated its commercial lease rendering performance impossible. On March 16, 2020, Governor Cuomo issued Executive Order 202.3, requiring the closure of indoor dining in all New York restaurants. In 2017, the court in BKNY1, Inc. d/b/a 132 Lounge v. 132 Capulet Holdings, LLC, 2020 WL 5745631, 2020 NY Slip Op 33144(U) (N.Y. Sup. Ct., Kings Cty., Sept. 23, 2020), granted an injunction preventing a landlord from terminating a restaurant’s lease because the restaurant was continuing to pay rent, and would do so while the injunction remained in place. After the Executive Order was enforced, the restaurant closed and did not pay rent for April and May of 2020. Because the restaurant failed to pay rent, the landlord moved to vacate the injunction. The restaurant argued it was entitled to not pay rent because it was unable to operate its restaurant during COVID-19 restrictions and thus, the purpose of the lease was frustrated. However, the court rejected this because in order for the purpose of a contract to be frustrated, it “must be so completely the basis of the contract that both parties understood that without it, the transaction would have made little sense.” Because the original term of the lease was set to end in 2021, a temporary closure for two months does not frustrate its overall purpose. An impossibility of performance argument also failed for the restaurant because an unforeseen event makes performance burdensome when an express contingency clause is lacking in the contract, as was the case here. As such, the restaurant was required to continue paying rent during the closure. While this is the first of what may be many decisions of tenant and landlord disputes during COVID-19, as we loom toward a second wave, courts do not seem too sympathetic of a tenant’s failure or inability, rather, to pay rent. Thanks to Gabriella Scarmato for her contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Failure to Read Policy No Longer Fatal in New York January 9, 2013 < Back Share to: Everyone knows that insurance policies do not make for good beach reading. Yet under long standing New York law, an insured was presumed to have read and understood the content of his or her insurance policy. Traditionally, if an insured had not objected to the policy upon delivery, under most circumstances, the insured was barred from suing the insurance broker for procuring insufficient insurance. Surprisingly, New York’s highest court recently declined to adopt this precedent in American Building Supply Corp. v. Petrocelli Group, Inc. Plaintiff hired the defendant, a broker, to obtain a commercial general liability policy that it was required to maintain pursuant to a lease. According to the plaintiff, it requested insurance coverage for losses involving injuries to its employees. Plaintiff allegedly advised the broker that only its employees used the insured building. But the policy contained an exclusion that provided: “This insurance does not apply to any actual or alleged ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to ... A present, former, future or prospective partner, officer, director, stockholder or employee of any insured.” Neither the plaintiff nor the broker read the insurance policy. One of plaintiff’s employees was subsequently injured at the insured premises. Plaintiff commenced an action against the insurer for coverage, but the appellate court upheld the exclusion. Plaintiff then sued its broker for negligence and breach of contract, alleging the broker had procured insufficient insurance. The broker moved for summary judgment, arguing that the plaintiff’s claim is barred because it accepted the policy without complaint. The Court of Appeals rejected the broker’s argument. The Court began by noting that it previously “left open the question of whether a plaintiff who has received an insurance policy and had an opportunity to read it and had not requested any changes is barred from recovery.” While the Court recognized that an insured should read its policy (and the failure could lead to comparative fault), it also recognized that many insureds “look to the expertise of [their] broker[s] with respect to insurance matters.” As such, the Court adopted the more “forgiving” rule, holding that an insured’s failure to read or comprehend an insurance policy does not bar an action for negligence against the insured’s insurance broker. This decision will certainly have an impact on broker litigation in New York. Thanks to Steve Kaye for his contribution to this post. If you have any question, please wrote to Mike Bono at mbono@wcmlaw.com .       Previous Next Contact

News NY Dram Shop Act: An Update February 4, 2021 < Back Share to: In Heins v. Vanbourgondien, the minor plaintiff and her father brought a personal injury suit against several defendants as result of a motor vehicle accident on a Suffolk County road. This article focuses on the Court’s decision on the minor plaintiffs’ Dram Shop claim against two 7-11 stores. The 17-year-old plaintiff Abigail Heins was operating a vehicle owned by one of the co-defendants, after consuming alcohol with the vehicle’s three other passengers. A disagreement arose between vehicle’s occupants causing Ms. Heins to become distracted and causing her to swerve into the road’s median. The vehicle rolled over before coming to a stop in the median. GOL §11-101(1), known as New York’s Dram Shop Act (hereinafter “Act”) states in pertinent part and parcel that: “any person who shall be injured in person, property, means of support, or otherwise by any intoxicated person, or by reason of the intoxicated person […] shall have a right of action against any person who by unlawful selling or unlawfully assisting in procuring liquor for such intoxicated person, have caused or contributed to such intoxication.” In 1983, the Act was supplemented with GOL §11-100, to apply to “any provider unlawfully furnishing alcoholic beverages for minors.” However, liability under this portion of the Act can only be imposed on an individual “who knowingly causes intoxication by furnishing alcohol to (or assisting in the procurement of alcohol for) persons known or reasonably believed to be underage.” Plaintiff Abigail Heins drove to two separate 7-11s with her friend and defendant Kimberly Vanbourgondien, 19 years old, and provided the cash for Ms. Vanbourgondien to purchase the alcohol Ms. Heins consumed. The Heins Court held that a plaintiff may generally recover for damage if they establish a “reasonable or practical connection between an illegal sale of alcohol and the plaintiff’s injuries.” Id at 1019, citing Flynn v. Bulldogs Run Corp., 171 A.D.3d 1136, 1137, 100 N.Y.S.3d 35; Giordano v. Zepp, 163 A.D.3d 781, 782, 79 N.Y.S.3d 659; Covert v. Wisla Corp., 130 A.D.3d 966, 967, 14 N.Y.S.3d 455; Tavarez v. Sidetracks, LLC, 128 A.D.3d 806, 807, 9 N.Y.S.3d 368). However, the Court further held that the Dram Shop Act does not provide for a plaintiff who was injured as a result of their own intoxicated condition, and youth does not constitute an exception to the voluntary intoxication rule. The Court ultimately affirmed Summary Judgment in favor of the two 7-11 defendants. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Examinations Under Oath: Helpful Whether the Insured Appears or Not (NY) December 21, 2018 < Back Share to: Examinations under oath or “EUOs” are an excellent tool to flesh out the details of a claim which at first glance appears confusing or suspicious. The New York Supreme Court recently issued a reminder that these proceedings are not a mere formality, but a condition precedent for coverage at all. In Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C.,the claimant submitted bills for medical treatment rendered pursuant to a no-fault insurance policy. However, the principal of the claimant had previously been found guilty of Medicare fraud, and there was reason to believe he was himself hospitalized at a time when some of the services claimed were rendered. 2017 NY Slip Op 32943(U) The insurer served the claimant with four notices requesting an EUO, one in each of July, August, September, and October of 2016 and the claimant failed to appear. The insurer commenced a declaratory judgment action, arguing no coverage whatsoever was owed under the policy for this failure to appear, submitting affidavits explaining the reason for the necessity of the EUO and attempts to serve the claimant with the proper notices. Judge Greenwood granted the insurer’s motion for summary judgment, ruling the claimant had violated a condition precedent to coverage, contained both within the insurance policies at issue and the relevant regulation governing no-fault insurance, which vitiated the contract as a matter of law. When in doubt, an EUO can shed important light on critical areas in questions of coverage—and, sometimes, if the insured fails to cooperate, may provide a basis to disclaim coverage in its own right. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News PA District Court Rules On Plaintiff’s Defective Product Claims July 18, 2012 < Back Share to: In Sikkelee v. Precision Airmotive Corporation et al, an aircraft accident at the Transylvania County Airport in Brevard, North Carolina resulted in the death of David Sikkelee. The Plaintiff alleged that the accident was caused by a faulty carburetor and sued multiple parties involved in the manufacturing of the plane’s engine. Among the defendants was Lycoming Engines, the original engine manufacturer and division of industry giant AVCO Corporation. The plaintiff asserted negligence and strict liability claims to which Lycoming moved for summary judgment. Judge John Jones of the Middle District of Pennsylvania affirmed in part and denied in part the defendant’s motion. First, the court held Lycoming was a de facto manufacturer of the allegedly defective engine despite the fact the engine was subsequently modified (the installation of the faulty carburetor) by a separate company after it left Lycoming’s control. The court reasoned that even though Lycoming did not physically modify the engine, Lycoming was in exclusive control of the design and manufacture of the replacement component parts that were installed in the engine. Thus, this would subject Lycoming to potential products liability under PA law, and plaintiff’s claims should not be dismissed. Additionally, the court denied the defendant’s motion to dismiss the plaintiff’s negligence claims based, inter alia, on the following. Lycoming moved for summary judgment contending that the plaintiff failed to submit evidence that the defendant breached the applicable standard of care, thus, plaintiff’s negligence claims could not stand. The court had previously held that federal standards of care promulgated by the FAA apply in aviation cases such as this one and can be utilized by the plaintiff to show breach of duty. Since the plaintiff had submitted evidence of the breach of these federal standards, the court would not dismiss plaintiff’s negligence claims. Thanks to Colleen Hayes for her contribution to this post. http://www.pamd.uscourts.gov/opinions/jones/07v0886.pdf Previous Next Contact

News Juries: Always Unpredictable (NY) June 21, 2019 < Back Share to: In Ankney v Mohamad, the plaintiff was struck by a motor vehicle while riding his bicycle adjacent to a public park, sustaining numerous injuries including a commuted displaced fracture of the clavical, a fractured scapula and three fractured ribs. The matter ultimately proceeded to trial on the sole issue of damages, where plaintiff relied upon certified medical records confirming each of his injuries, as well as testimony of his own pain and suffering, which included over one hundred physical therapy sessions over the course of a year. Notably, defendant made no attempt to contest the cause or severity of plaintiff’s injuries, offering no evidence at all at trial. You read that right, a damages only trial with no defense presented to combat the causal nature of the injuries or the severity of the injuries. Nevertheless, as a testament to the unpredictable nature of a jury trial, the jury returned a verdict finding that plaintiff had suffered no pain and suffering as a result of the accident, despite the overwhelming evidence presented. Plaintiff immediately moved to set aside the jury verdict, pursuant to CPLR 4404(a), which provides that the verdict in a jury trial may be set aside if there is no rational interpretation of the evidence which would justify the jury’s conclusion. Not surprisingly, the court agreed with plaintiff, noting that “[t]his Court has never seen a verdict which so obviously must be set aside. There is no possibility that any rational person could under any circumstances ever find that [plaintiff]… endured no pain and suffering.” As such, the verdict was set aside and a new trial was ordered. While defense attorneys always seek low verdicts, this finding was a loss for the defense, as they now have to spend more money trying this case all over again. Thanks to Tyler Rossworn for his contribution to this post. Please contact Georgia Coats if you have any questions. Previous Next Contact

News Policy Exclusion Upheld May 20, 2008 < Back Share to: In Aspinwall Building Corp v. Sirius America Ins. Co., a New York state court judge has upheld an exclusion that requires an insured to use a written contract whenever hiring a subcontractor and to require in that contract that the subcontractor indemnify the contractor. The facts of the case are that an owner hired Aspinwall for some construction work and Aspinwal subcontracted the job to Madonia Development. An employee of Madonia was injured and he sued Aspinwall. Aspinwall asked its carrier (Sirius) for defense and indemnity. Sirius denied coverage and won summary judgment and a ruling that it had no obligation to defend or indemnify its insured. The court upheld policy wording that excluded coverage if the insured subcontracted work to another contractor without obtaining a written contract requiring that the insured be indemnified and held harmless in the event of a loss, e.g., to a subcontractor's employee. Previous Next Contact

News First Two New Food Safety Modernization Act Rules Released. May 13, 2011 < Back Share to: The FDA has just released the first two FSMA rules. The rules go into effect on July 3, 2011. The first rule allows the FDA to detain food it believes has been produced under insanitary or unsafe conditions – and not just when the FDA has evidence that the food product was contaminated or mislabeled so as to present a risk of adverse health consequences or death. The second rule requires anyone importing food into the US to advise the FDA if any other country previously refused entry to the same product. Both regulations should be factored into the underwriting decisions made by product recall insurers as both regulations expand the scope of products that will never make it to the end consumer. For more information about this post, or WCM’s product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM is Pleased to Announce that Matt Care has been Promoted to Partner June 30, 2021 < Back Share to: Effective, July 1, 2021, Matt Care is officially the newest partner in WCM's Philadelphia office. Matt started working at WCM in 2015. He primarily defends individuals and businesses in a wide variety of general liability, construction defect, premises liability, insurance coverage disputes, bad faith claims, professional liability claims, and product liability lawsuits, from inception up to and including trial. Matt regularly achieves excellent, cost-effective results for his clients and further has significant experience dealing with large loss, high exposure, and complex civil matters. Matt is a graduate of Princeton University and Temple University Beasley School of Law and is regularly involved with the local LGBT professional law organizations. Previous Next Contact