Wade Clark Mulcahy LLP

News NJ Supreme Court Rejects Employee's Direct Action Against WC Carrier For Pain and Suffering August 2, 2012 < Back Share to: No one seems happy with the workers compensation system. Employers and their insurers complain that the system is biased in favor of employees, awarding compensation even in the face of fraud, malingering or worse. On the other hand, employees kvetch that workers compensation insurers are slow to process and pay claims, leading to delays in treatment, needless anxiety and unhappy medical providers. With this background in mind, may an injured employee seek damages directly from his employer’s workers compensation insurer for pain and suffering allegedly due to the insurer’s delay in making required payments? The New Jersey Supreme Court tackled this issued in Stancil v. ACE USA, ruling in favor of the workers compensation insurer. In Stancil, the employee alleged that the insurer routinely delayed medical payments and ignored a directive from the workers compensation court to rectify this situation by a date certain. In response, the employee filed suit against the insurer in the local Superior Court seeking damages for pain, suffering and physical injury allegedly caused by the insurer’s delay. The Superior Court and Appellate Division dismissed plaintiff’s complaint on the pleadings but, ever the persistent fellow, plaintiff was granted permission to appeal to the New Jersey Supreme Court. A good omen indeed. Displaying unusual deference to the worker compensation system, the Supreme Court ruled that the employee’s complaint could not stand for three reasons. First, the legislature constructed the workers compensation system that eliminated the worker’s right to file suit in the Superior Court. The employee’s suit was inconsistent with that scheme. Second, the legislature had already enacted remedies to deter the occasional recalcitrant insurer. Neither the courts nor an injured employee should interfere with or expand those remedial measures. Finally, the Supreme Court found that the present system worked fairly well for several decades and the legislature had moved quickly and decisively when problems became apparent. In other word, no need to tinker with a system that, albeit not perfect, was working fairly well. Stancil settles the question of whether an employee can seek damages for pain and suffering from a workers compensation insurer for alleged delays in making required payments. The Supreme Court firmly declined to recognize a remedy beyond that authorized by the Workers Compensation Act. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News NJ Requires Proof of Attorney's Bad Faith Filing For Frivolous Litigation Award June 2, 2010 < Back Share to: Frivolous litigation claim in New Jersey? Not without proof that the attorney who filed the offending pleading acted in bad faith. In a recent unreported Appellate Division decision that reversed an award for frivolous litigation, the Court made clear that there must be a determination that the attorney knew or should have known that the pleadings were filed for improper purpose or without evidentiary support for the factual allegations made. In Torgro Limousine Service, Inc. v. 76 Carriage Company, Inc., the plaintiff had filed suit in New Jersey after defaulting on a suit filed in Pennsylvania by the defendant. When 76 Carriage attempted to locate assets of Torgro Limousine to execute on the default judgment, Torgro filed suit in New Jersey for breach of contract. That suit was dismissed on a basis of res judicata. The present litigation was then commenced with expanded allegations and additional defendants including 76 Carriage’s principals. The court sided with 76 Carriage on a motion to dismiss and for sanctions, and awarded counsel fees finding that the case had been frivolously filed. In addition to reversing the award, the Appellate Division required specific findings to support the frivolous litigation claim and also to explain the basis for the sanction imposed, i.e. how the sanction would deter repetition and why a lesser sanction would not suffice. If you have any questions about this post, please contact dricci@wcmlaw.com . See Torgro Limousine Service, Inc. v. 76 Carriage Company, Inc., 2010 WL 2090091 (App.Div. 2010) http://www.judiciary.state.nj.us/opinions/a5238-08.pdf Previous Next Contact

News Failure to Retain Evidence Leads to Dismissal of Plaintiff's Case January 23, 2009 < Back Share to: In Firemen's Insurance Company of Washington v. Krenitsky, a New York judge held that the failure of the plaintiff to retain a key piece of evidence in a subrogation action warranted dismissal of the complaint. The case arose from a fire on July 11, 2004 in a Manhattan apartment building. After gaining access to the apartment and upon concluding that the stove was the source of the fire, the plaintiff's expert advised the plaintff's subrogor, the building owner, to retain the stove for future examination by interested parties. However, when the defendants requested an inspection of the stove during discovery, the plaintiff advised that the stove could not be found. The court granted the defendants' spoliation motion based on the failure of the plaintiff to preserve the stove after the plaintiff was put on notice, based on its own expert's report, that the stove held the key to the cause and origin of the fire. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_50066.htm Previous Next Contact

News An Interest-ing Case for Insurers February 2, 2010 < Back Share to: Roslyn Schiffer was injured in an automobile accident. Lancer Insurance Company insured the owner and driver of the other vehicle. The policy limit was $100,000. The Lancer policy contained a provision that Lancer would pay "All interest on the full amount of any judgment that accrues after entry of judgment....but our duty to pay interest ends when we have paid, offered to pay or deposited in court the part of the judgment that is within our Limit of Insurance." This policy language closely tracked a NY Insurance Dept. regulation requiring that policies contain a provision that an insurer shall pay "all interest accruing after entry of judgment until the insurer has paid or tendered or deposited in court such part of such judgment as does not exceed the applicable policy limits..." In the Schiffer personal injury case, Lancer Ins. Co. offered Schiffer its full policy limit of $100,000 before trial (and thus, obviously, before entry of judgment and the accrual of any interest). Schiffer rejected the offer and took her case to verdict. The verdict was $776,000. Judgment was entered on September 5, 2007. Lancer sought a ruling that it owed no interest on the judgment because it had offered its full policy limit of $100,000 before the entry of judgment. A trial level court in New York has now ruled against Lancer. The court found that while Lancer had "offered" to pay its policy limit, this did not amount to "an unconditional tender of payment," which the court found was required by the language of the Insurance Dept. regulation. Thus, the court ruled, interest began to accrue at judgment and Lancer must now pay interest on the full amount of the judgement ($776,000). Given that judgment was entered 28 months ago, the interest due on the full judgment is 21%, which comes to $163,000. In short, Lancer offered (tendered?) its policy limit of $100,000 before trial in a good faith effort to protect its insured but now must pay not only its policy limit of $100,000 but an additional $163,000 in interest. Previous Next Contact

News Subway: Eat Fresh, Stay Alert – Subway wins design defect claim on summary judgment (PA) September 1, 2016 < Back Share to: On July 14, 2016, the Philadelphia Court of Common Pleas granted the defendant’s, Bhagvati Krupa, Inc. t/a Subway (“Subway”), motion for summary judgment against the plaintiff’s claims based on a defective design argument in Santangini v. Bhagvatic Krupa, Inc t/a Subway. Specifically, on September 20, 2013, the plaintiff, Geraldine Santangini, was a customer in a Subway store located in Center City Philadelphia. After purchasing her food, the plaintiff went to the self-serve soda fountain to fill her drink. Thereafter, the plaintiff turned towards the door to leave the store, took a step and fell down two steps that led to the exit. The plaintiff alleged certain injuries as a result of the fall. The plaintiff filed suit against Subway for her injuries, alleging that the Subway restaurant was defectively designed. Notably, the plaintiff alleged, inter alia, that the Subway restaurant was defectively designed because there was an unguarded ledge directly next to the self-service soda machine and the design caused an overcrowded condition in certain areas. After discovery was completed, Subway filed a motion for summary judgment on the basis that the plaintiff failed to establish a prima facie case of negligence because the plaintiff did not obtain an expert to establish that the Subway was in fact defectively designed. In deciding the motion for summary judgment, the trial looked at whether the issue of negligence could be determined by a layperson or whether it required a special skill or knowledge. If the former was true, no expert would be needed; however, the latter would require an expert. Here, looking at the issue of whether the Subway store was defectively designed, the trial court found that expert testimony was “indispensable” for the plaintiff’s claims against Subway. Specifically, the trial court stated that there were too many variables to take into consideration for a layperson to make a sound and reasoned decision, such as whether designing a restaurant with a step drop off instead of a ramp or gradual incline was negligent. Accordingly, Subway’s motion for summary judgment was granted and the trial court urged the Pennsylvania Superior Court to uphold their decision on appeal. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Tall Objects Don’t Mean 240 Protection (NY) October 8, 2020 < Back Share to: In Lemus v. New York B Realty Corp, the Appellate Division, Second Department reaffirmed that a plaintiff is not entitled to judgment as matter of law under Labor Law §240(1) simply because the plaintiff’s accident occurs as a result of working with a large and/or tall object. In this matter, the plaintiff demonstrated that he was employed as a worker on a construction site and was directed to maneuver large steel beams approximately 20 feet long and weighing approximately 600 to 1,000 pounds. He was to use a metal tool to grab and rotate said beams, so that the holt holes were aligned. As he was rotating one beam, the tool he was using ricocheted backwards towards his face, and he sustained injuries. At the close of the plaintiff’s liability case, the defendant moved, pursuant to CPLR §4401 (motion for judgment during trial) to dismiss the plaintiff’s Labor Law §240(1) claim, on the basis that strict liability only applies if the plaintiff’s injuries resulted from an elevation-related risk and/or an inadequate safety device to protect against elevation-related ricks. The trial court granted the defendant’s motion, holding that because the plaintiff was injured while both he and the steel beams were at ground level, the work he was engaged in did not constitute the type of elevation-related risk that the statue contemplates regardless of the excess size and height of the steel beams. The Second Department affirmed on appeal. Thanks to Shira Straus for her contribution to this post. Any questions, please contact Georgia Coats Previous Next Contact

News Federal Court Finds That Concealing Artwork Does Not Infringe On Artists’ Rights December 3, 2021 < Back Share to: In 1993, artist Samuel Kerson painted two murals in the halls of Vermont Law School. The murals, titled “The Underground railroad, Vermont and the Fugitive Slave,” were intended to depict “the evils of slavery and the actions of abolitionists and activists in Vermont who aided slaves seeking freedom from the Underground Railroad.” Nevertheless, the law school received numerous complaints that the murals were racist and made law students uncomfortable. As a result, the law school announced plans to conceal the murals, which prompted a lawsuit by Kerson. Kerson alleged that covering the murals would violate his rights under the Visual Artists Rights Act (“VARA”), which vests artists with the right “to prevent any intentional distortion, mutilation, or other modification of the work, which would be prejudicial to his or her honor or reputation.” Kerson argued that permanently covering the murals “distorts, mutilates, or otherwise modifies” his work in violation of the act. In seeking to dismiss Kerson’s lawsuit, the law school argued that covering the murals does not violate VARA because the work would not be destroyed or modified, only removed from view. They further argued that the school should not be compelled to show art that it does not agree with. The U.S. District Court for the District of Vermont agreed with the law school, holding that covering the work does not violate Kerson’s rights under VARA. In interpreting the statute, the court held that the decision to cover the work does not amount to modification or destruction of the work. The court equated the proposed concealment with an art owner’s decision to not display artwork, which is permitted under VARA. The court stressed that the murals were merely being removed and stored in a different way, just as a work may be removed and stored by a gallery. Kerson plans to appeal the decision and the outcome of the case has potentially significant implications for artists, art galleries, private owners, and art insurers. Pending further guidance from the 2nd Circuit, the District Court’s decision impacts the VARA rights of artists and defines what owners are permitted to do with works of art. Thank you to Alexandra Deplas for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Follow The Rules! Plaintiff’s Claims Dismissed For Failure To Comply With Court Orders (PA) December 15, 2021 < Back Share to: In Vilgosas, et al. v. Janssen Research & Development LLC, et al., the Pennsylvania Superior Court affirmed the trial court’s dismissal of the plaintiff’s claims after he failed to comply with the court discovery order. The court reasoned that the plaintiff’s failure to comply with the discovery order impeded the defendants’ ability to defend the case. From 2013 to 2014, plaintiff Alfred Vilgosas (“Vilgosas”) suffered complications from the drug prescribed medication Xarelto including internal bleeding. Vilgosas was not the only Xarelto user with complications and by 2019, nearly 2,000 civil claims had been filed in Philadelphia County against Xarelto manufacturer for similar complications. In March 2019, the plaintiffs in all Xarelto claims negotiated a $750 million settlement to resolve all outstanding Xarelto claims. As part of the settlement, the court issued a case management order with several obligations for the plaintiffs. Vilgosas failed to comply with the discovery order. Janssen filed a notice of deficiencies with the court. Vilgosas then continued to defy the court order when he failed to produce required documents to Janssen at the show cause hearing. The trial court dismissed Vilgosas’ claims. Vilgosas then appealed to the Pennsylvania Superior Court. In affirming, Superior Court found Vilgosas’ failure to produce records impeded Janssen’s ability to defend itself. Specifically, Vilgosas failed to produce hospital records that would have had information on his underlying conditions and treatment. This information was necessary for the defense. Further, the court found that Vilgosas’s noncompliance was willful and in bad faith. Thanks to John Lang for his assistance in this article. Should you have any questions, please feel free to contact Thomas Bracken. Previous Next Contact

News Supermarket Not Liable For Employee's Harassment of Child Patron (NJ) June 23, 2017 < Back Share to: In Judy Doe v. Sake Shoprites, New Jersey's Appellate Division analyzed whether the defendant supermarket was vicariously liable for negligently retaining employees who sexually harassed a young girl at the supermarket. Six-year old Judy Doe and her mother entered a supermarket in the late evening. Unknown to Judy and her mother, supermarket employee J.B. followed them and watched Judy’s movements. When Judy was alone, J.B. approached her , left her shirt, and photographed Judy’s legs and stomach. Judy’s mother soon found Judy crying and shaking. Subsequently, Judy’s mother reported J.B.’s actions to supermarket crew chief A.Z. and the supermarket’s manager. The manager then suspended J.B. because he was “warned earlier about taking pictures of customers.” The supermarket contacted the police, who executed a search warrant of J.B.’s home and discovered several photos of other young female customers. Plaintiff later sued the supermarket alleging negligent hiring and retention. Plaintiffs opposed the supermarket’s motion for summary judgment, arguing that the supermarket was liable—under a theory of vicarious liability—for the intentional acts of J.B. Specifically, plaintiff argued that the supermarket negligently retained J.B. despite notice that J.B. previously took photographs of customers, and that this known behavior would foreseeably cause customer harm. The Appellate Division was unpersuaded by plaintiff’s arguments, holding that the evidence of prior notice was insufficient to prove the supermarket was negligent in keeping J.B. employed as a member of its staff. The court found that “taking pictures of customers” was too speculative to prove the supermarket had knowledge that J.B. engaged in similar harmful behavior. Further, the court reasoned that the ages of the customers and the nature of the pictures were not specified in the manager’s statement. Although J.B. was previously warned about taking pictures of customers, the supermarket did not know where or when the photographs were taken, whether they were of young girls, or whether J.B. manipulated the clothing of any juvenile female to expose skin. This case demonstrates that New Jersey courts require “competent evidential material” beyond mere speculation in order to find an employer vicariously liable for negligent retention of its employees. Such proof may turn on an employee’s employment history, the foreseeability of future wrongful conduct, and the nature of an employee’s past wrongful activity. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono if you would like more information. Previous Next Contact

News Pennsylvania Court Lacks Jurisdiction Over Settlement Once it was Discontinued November 28, 2016 < Back Share to: The Pennsylvania Superior Court recently ruled that it did not have jurisdiction to enforce a settlement agreement. In Camp Horne Self Storage LLC v. Lawyers Title Ins. Corp., the insured sued its insurer alleging breach of contract, bad faith and wrongful denial of insurance benefits. Eventually, the parties reached a settlement and entered into a settlement agreement. The agreement contained various terms including, among others, that the insurer would have landscaping work performed on the insured’s property. Upon entering into said agreement, the insured discontinued its lawsuit against the insurer. Ultimately, the insured was dissatisfied with the landscaping work that had been performed on its property, pursuant to the settlement agreement, and filed a motion with the court seeking to enforce the settlement agreement. The court denied the motion holding that it lacked jurisdiction to rule on the motion since the insured had discontinued its action against the insurer, and there was no pending action upon which it could exert jurisdiction. Therefore, this case reveals a court may not be able to enforce a settlement agreement, if a party fails to act under the agreement, if the lawsuit is discontinued too early following settlement. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News Lack of Notice Supports Grant of Summary Judgment February 22, 2011 < Back Share to: In Ameneiros v. Seaside Company, LLC, the Second Department found that defendant had established its prima facie entitlement to summary judgment and that plaintiff failed to raise any triable issues of fact, including that the dangerous condition was recurring and ongoing and that the defendant had actual knowledge of the condition. Plaintiff was injured after she slipped on a puddle of water in an elevator of an apartment building owned by defendants. The Second Department, affirming the trial court’s ruling, held that defendant had succcessfully proved that the puddle was created by a codefendant, that it did not have actual notice of the puddle, and that the puddle did not exist for a sufficient length of time for defendant to have constructive notice of the puddle. Thus defendant was entitled to summary judgment. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01226.htm Previous Next Contact

News NY Sports Clubs: Careful, Or New Year's Resolutions May End Up Costing You December 27, 2012 < Back Share to: In Levy v. Town Sports International, Inc., the First Department demonstrated just how narrowly the doctrine of assumption of risk is applied to bar a negligence claim. The assumption of risk doctrine bars a participant injured while engaged in a sport or recreational activity from bringing suit because the participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. The doctrine does not apply, however, to unassumed, concealed, or unreasonably increased risks. In Levy, the plaintiff, who recently had surgery and suffered from osteoporosis, was directed by her personal trainer to perform jump repetitions on an exercise ball. After one too many jumps, she fell and was injured. The defendants were granted summary judgment on the basis that plaintiff assumed the risk of injured. The First Department reversed, finding that an issue of fact as to whether the trainer knew of the recent surgery and osteoporosis, and whether he increased the risk of injury to plaintiff by having her perform an advanced number of repetitions. The court also found that the trainer may have increased the risk of injury by not properly positioning himself to guard her against a fall. Thanks to Gabe Darwick for his contribution. For more information, contact Denise Ricci at dricci@wcmlaw.com .   Previous Next Contact