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News Court Rejects Jeweler's Fragile Argument Against Brinks February 8, 2012 < Back Share to: Anyone dealing in the world of jewelry, fine art, or specie is all too aware of the limitation of liability clauses that appear in shipping contracts. That issue was front and center in a recent appellate court decision in New York, Maxine v. Brinks. Plaintiff, a jewelry retailer, used Brinks to ship 157 “ornate pieces of handmade jewelry” from plaintiff's New York City facility to a department store in Virginia. The items were contained in a soft-sided rolling suitcase, and the airbill listed a declared value of $2 million. The retail value, according to invoices, was more than $6,000,000, with a wholesale value about half that amount. While in transport, the shipment was damaged, and plaintiff’s claim was over $600,000. In the trial court, Brinks was awarded summary judgment and the complaint was dismissed. The airbill contained a provision limiting Brink’s liability to lost shipments, unless specific items were identified and their values declared – which would have required plaintiff to pay additional charges for the shipment. On appeal, plaintiff claimed that the limitation of liability was ambiguous, because it required identification of a “fragile” item -- a term not defined anywhere in the Brink’s airbill. But in its decision, the appellate court pointed out that plaintiff was unable to overcome the other provision in the airbill that excluded breakage for jewelry. Specifically, the provision excluded “BREAKAGE of statuary, marble, glassware, bric-a-brac,' porcelain, decorative items including jewelry and similar fragile articles…” Plaintiff tried to claim that provision was buried in small print and was also ambiguous because it lumped together a number of items in an unclear manner, and appeared to only apply to breakage of “fragile jewelry” or certain decorative items. But the Court rejected plaintiff’s claims, finding that the list clearly excluded the enumerated items, including jewelry, and that a definition for fragile only needed to be applied if an item was not specifically listed. Thus, the trial court’s decision to dismiss the complaint was upheld. If you would like more information about this case, please write to mbono@wcmlaw.com .     Previous Next Contact

News Judge to FDA: Get Your FSMA Regulations Done Already. July 5, 2013 < Back Share to: As we have long reported, the FDA has been quite derelict in getting the new Food Safety Modernization Act regulations in place. Deadlines have come and deadlines have gone and still no guidelines. This delay has resulted in the case of Center for Food Safety, et al. v. Margaret Hamburg, et al., USDC, NDCA. There’s a history of decisions in the case that make clear the Court’s frustration with the FDA and that frustration has now boiled over. In a recent decision, the Court has ordered the FDA to publish all proposed regulations by November 30, 2013, with the comment period to end by March 31, 2014, and the final regulations to be published by June 30, 2015. We’ll see if a court order compels action where bureaucratic momentum did not. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News PA Appeals Court Holds that Damages for Dragonetti Violations Must be Proven – Not Presumed July 6, 2016 < Back Share to: Pennsylvania statute 42 Pa.C.S.A. § 8351 provides for a cause of action, also known as a Dragonetti action, allowing the defendant in a lawsuit to file suit against a plaintiff for abuse of civil proceedings when litigation is filed frivolously. On June 24, 2016, the Pennsylvania Superior Court issued an opinion clarifying the issue of damages for a Dragonetti violation in Miller v. St. Luke's University Health Network. In Miller, the original lawsuit stemmed from the arrest and conviction of one of St. Luke’s nurses, Charles Cullen (“Cullen”), who admitted to killing patients while acting in his capacity as a nurse for St. Luke’s. The families of two patients that were allegedly killed by Cullen sued St. Luke’s for wrongful death. Ultimately, the two lawsuits were dismissed on summary judgment. Thereafter, St. Luke’s filed a Dragonetti action against the two families of the patients, alleging both abuse of process and civil conspiracy. St. Luke’s, however, voluntarily dismissed this Dragonetti action after two years of litigation. Following the voluntary dismissal of St. Luke’s Dragonetti action against the two families, the two families turned around and filed their own Dragonetti action against St. Luke’s, alleging that it did not have probable cause to file its Dragonetti action against the two families and that it was filed for an improper purpose. On July 1, 2014, a Lehigh County Court of Common Pleas jury found that St. Luke’s did not have probable cause to bring the Dragonetti action against the two patients’ families. The jury, however, while finding St. Luke’s violated 42 Pa.C.S.A. § 8351, did not award any damages to the two families. Both St. Luke’s and the families appealed, giving rise to the Pennsylvania Superior Court’s June 24, 2016 opinion. On appeal, the families argued that if a violation of 42 Pa.C.S.A. § 8351 is found, then damages should be presumed otherwise a finding of such a violation would amount to just a “paper judgment.” Conversely, St. Luke’s argued that 42 Pa.C.S.A. § 8351 requires a plaintiff to prove both liability and damages separately. Moreover, St. Luke’s argued that while § 8353 states that a plaintiff is entitled to damages, § 8354 places the burden on the plaintiff to prove that she actually suffered damages. Ultimately, the Pennsylvania Superior Court decided in favor of St. Luke’s, ruling that in a Dragonetti action, damages must be proven – not presumed. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News "To My Knowledge" Deemed Superfluous By The Second Circuit March 18, 2009 < Back Share to: Often during depositions, the attorney defending the deposition will interrupt an answer with the phrase “if you know,” meaning that the witness should only answer the question if the witness has personal knowledge. An answer to a deposition question, or a statement in an affidavit, stating “to my knowledge” has the same meaning, according to a recent decision by the U.S. Court of Appeals for the Second Circuit. In SCR Joint Venture, LP v. Warshawsky, the question was whether certain debts had been paid in full. The statement “to my knowledge” the creditor had not been paid in full was the same as “I know that” the creditor was not paid. The “to my knowledge” language was redundant. http://www.ca2.uscourts.gov/decisions Previous Next Contact

News NY Appellate Division Nixes Punitive Damages Award October 6, 2009 < Back Share to: The subject of punitive damages has been a lightning rod for the business community, citizen activists, the courts and legal scholars. It is one of the few areas where the United States Supreme Courts has become involved in torts, an area traditionally left to each state to regulate. Recently, in Frankson v. Brown & Williamson Tobacco Corp., the Appellate Division, Second Department examined a punitive damage award levied against a group of tobacco related entities. The original jury award was a net compensatory award of $175,000 and a puntive damages award of $20,000,000, which was reduced after post trial motions to $5,000,000. The defendants cried foul because the plaintiff's attorney made repeated references to the harm caused not just to the decedent but also to the "tens of thousands" who die every year from lung cancer. Citing State Farm, BMW and Phillip Morris, the court held that a jury must be carefully instructed about the purposes of punitives damages and advised that they cannot be used to punish a defendant for harm caused to non-parties. In other words, no more "send a message to the millions of other victims of the defendants [allegedly] reprehensible conduct!" during the plaintiff's closing argument. Punitive damages is an evolving area of the law. When properly applied by state courts, the recent United States Supreme Court decisions give a reasonable degree of protection to a defendant faced with a claim for punitive damages. Unfortunately, the defendant must have a strong stomach that frequently requires taking an adverse jury verdict before seeking relief before the trial court and, if necessary, appellate division. If you would like more information regarding this post, please email Paul at pclark@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06799.htm Previous Next Contact

News No “Gotcha” Allowed in New Jersey. December 23, 2011 < Back Share to: In the case of Inferrera v. Walmart Stores, Inc., US Magistrate Judge Joel Schneider was confronted with the question of whether Walmart was allowed to withhold disclosure of a security camera recording on the grounds that the video might impeach a slip and fall plaintiff’s deposition testimony -- depending, of course, on what the plaintiff said. Judge Schneider ruled in the negative. He wrote the “the purpose of the court system is to resolve civil disputes in a civil way. Thus, 'gotcha games' are not acceptable." If only the notion of civility was truly honored by more members of the bar -- think Snoopy and the Red Baron on this last work-day before Christmas. For more information about this post or WCM’s New Jersey practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News When is a Defect Considered “Trivial”? August 23, 2024 < Back Share to: When somebody becomes injured due to a defect that is present, have you ever wondered if that very defect was even substantial enough to actually cause injury? If there is a defect that seems so minimal and the claimant claims that their injury was related to it, can they still prevail despite the minor nature? Well, there is a standard that is used to determine if a defect is “trivial”, or in other words, not significant enough to create liability. Just recently, in Angelo Tamburo v. Long Island University , bearing Index No. 611006/20, the Supreme Court, Appellate Division reversed an order from the Supreme Court in Nassau County, in which summary judgment was granted. The plaintiff commenced this action after slipping and falling on the top step of a stairway at a property owned by the defendant. Plaintiff argues that the slope of the step is not in compliance with NYS Building Codes. Defendant filed a Motion for Summary Judgement, arguing that an expert inspected the staircase, and the staircase was not only compliant with the applicable building codes and did not constitute a dangerous or defective condition, but any defect that did exist was “trivial”. Generally, when determining whether a dangerous or defective condition created liability, this is very fact specific and usually a question for the jury. However, injuries resulting from trivial defects are not actionable. A defect is trivial if the defect is physically insignificant and does not increase the risk it poses. The defendant was able to meet this standard. The Supreme Court Nassau County granted this motion as a result. On appeal, the Supreme Court, Appellate Division reversed the order. The court ruled that the plaintiff did in fact raise triable issues of fact as to whether the slope of the step constituted a dangerous or defective condition. The plaintiff submitted a report of an expert, who came to the determination that the slope of the step was six to eight times greater than permitted by NYS Building Code. The court noted that the evidence that the defense relied upon failed to establish that the defendant didn’t create the condition or have actual or constructive notice. Tamburo v. Long Island University .pdf Download PDF • 758KB Previous Next Corey Stein Corey Stein Associate CStein@wcmlaw.com Contact

News Criminal Conviction Proves Facts, and Relieves Insurer (MVAIC) of Liability (NY) July 31, 2013 < Back Share to: In Brooks v. Rivera, plaintiffs were standing on a sidewalk when they were stuck by an uninsured car driven by defendant. In a subsequent criminal prosecution, defendant plead guilty to felony assault and reckless felony assault. Plaintiffs commenced a civil action against defendant and a nonparty Motor Vehicle Accident Indemnification Corporation (MVAIC). As an aside, MVAIC provides coverage/benefits to a New York resident injured in a motor vehicle accident who does not have any other auto insurance available to him. Even after two criminal convictions, the lower court held that plaintiffs were not the victims of an intentional tort and directed the nonparty MVAIC to appear and defend on behalf of uninsured defendant. The Appellate Term, First Department reversed the order and held that a criminal conviction is conclusive proof of the underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue. Defendant’s guilty pleas to both intentional and reckless felony assault precluded a finding that defendant’s actions were not intentional, thus relieving the MVAIC of its liability to the uninsured defendant. Under its policy, MVAIC is only required to defend an uninsured for his negligent acts. A defendant may have civil liability to those he injures, but that will not create a duty on the insurer for a defendant’s intentional acts that cause harm. A conviction proving intent is enough to relieve the insurer of involvement in a subsequent civil suit. Thanks to Anne Mulcahy for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News No Luck for Plaintiff Injured when Installing St. Patrick's Day Decorations (NY) March 4, 2016 < Back Share to: New York courts apply a strict liability standard to New York Labor Law § 240(1), which was designed to protect workers who work on elevated risks. Because of the strict liability standard, attorneys for injured parties continue to try to expand the type of cases that fall within the statute's scope, but the statute applies only to workers engaged in the "erection, demolition, repairing, or altering of a building or structure." In Lannon v 356 W. 44th St. Rest., Inc., the plaintiff was injured when he fell from a two-story building while installing flag holders for St. Patrick's Day decorations on the exterior of the building facade. The plaintiff sued the building owner alleging claims under Labor Law §240 (1). The owners were awarded summary judgment on the §240 (1) claim as the plaintiff was not engaged in a protected activity under the statute at the time of his accident. On appeal, the Appellate Division, First Department, focused on the plaintiff's testimony that in order to install the flag holder brackets, he marked the location of the screws, drilled holes for each bracket, placed plastic fasteners in the holes, and attached each flag holder with screws to hold it in place. Based upon the plaintiff’s own testimony, the First Department found that this work did not constitute "altering" under the statute since it did not result in a "significant physical change" to the building's structure. The Court also found that the cosmetic, nonstructural nature of plaintiff’s work was also reflected by the temporary placement of the flags to enhance the building’s exterior appearance during the St. Patrick's Day celebration, after which the flags were removed. The Court agreed with the defendants and upheld the trial court’s dismissal of the claims under § 240 (1). Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News Terms Used in the Complaint Determine Defense Coverage to the Insured June 12, 2017 < Back Share to: In Hillcrest Coatings Inc v Colony Ins Co, the Appellative Division recently affirmed the trial court’s order requiring Colony Insurance provide a defense to its insured in an underlying environmental tort action despite the CGL policy’s hazardous materials exclusion. The allegations in the underlying environmental action stated that Hillcrest Coatings operated their glass and recycling facility in a negligent manner, causing hazardous materials to contaminate the surrounding areas. The underlying complaint also alleged that Hillcrest’s negligent actions “caused a malodorous condition to be created in the surrounding neighborhood.” In disclaiming coverage to Hillcrest, Colony relied upon an exclusion that excepts from coverage all bodily injury and property damage resulting from “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘hazardous materials’ at any time.” ‘Hazardous materials’ was defined by the policy as “pollutants” including any “solid, liquid, gaseous or thermal irritant or contaminant…” The court found that ‘Malodorous’ is not necessarily ‘Hazardous,’ and Colony owed a duty to defend its insured. The Hillcrest decision serves to underscore the breadth courts attribute to the insurer’s duty to defend. The Court stated that Colony had failed to meet the high burden of establishing that the hazardous materials exclusion precluded coverage in this instance because, despite the fact that the underlying complaint specifically alleged that the “malodorous condition” resulted from hazardous materials, “foul odors are not always caused by the discharge of hazardous materials.” Thus, because “malodorous” may not be hazardous, Colony was ordered to provide a defense and to reimburse its insured for costs expended. This decision is a reminder that in terms of coverage, courts can find even an unlikely possibility of coverage to be “reasonable” when assessing the insurer’s duty to defend. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Insurance Coverage For Costs Of Bringing Undamaged Portion Of Building Up To Current Codes. June 9, 2009 < Back Share to: In DEB Associates v. Greater New York Mutual Ins Co. , the New Jersey Appellate Division found that the additional costs of repair to bring the undamaged parts of plaintiff's wind damaged building up to current construction code standards were covered under its insurance policy. The Court found that but for the wind damage ( a covered claim), plaintiff would not have been required to bring the wall-to-floor connections in the rest of the building up to current code standards. The policy in question excluded pre-existing code violations that the insured had failed to correct, but did not specifically exclude situations where a covered structure was grandfathered under the current code but lost that status because of the occurence. If the insurer intended to exclude coverage in such situatons, the Court held it could have specifically so provided. http://www.judiciary.state.nj.us/opinions/a5308-07.pdf Previous Next Contact

News Collateral Estoppel Not Applicable to $5,000,000 Judgment in Underlying Action (PA) April 26, 2019 < Back Share to: Kelly v. Carman Corporation is an insurance litigation action initiated by Ronald and Patrice Kelly as assignees of BBK Tavern, Inc., which asserts negligence and breach of contract claims against Carman as BBK’s insurance broker in failing to notify BBK’s insurer of an underlying dram shop action. The Kelly’s filed a complaint in the Philadelphia Court of Common Pleas, alleging that a $5,000,000 stipulated default judgment in the underlying dram shop action constituted the injury in the instant action. In the underlying action, BBK Tavern never filed an answer to the plaintiff’s complaint, and default judgment was entered against it. BBK’s attempts to open the default judgment were unsuccessful. In addition, BBK’s insurer obtained a declaratory judgment that it owed no duty to defend or indemnify BBK in the underlying dram shop case. A damages hearing was held following the entry of default judgment and the Court entered a $5,000,000 judgment against BBK in the underlying action. BBK then assigned its rights against its insurance broker, Carman, to plaintiffs in the underlying action and the instant action was filed by Ronald and Patrice Kelly. In the instant action, plaintiffs alleged that defendants acted negligently and in breach of contract when they failed to notify BBK’s insurer of the underlying dram shop action, resulting in a default judgment and $5,000,000 verdict against BBK. Following trial, the jury returned a verdict in favor of plaintiffs; however, the Court entered a judgment notwithstanding the verdict in favor of defendants, holding that the negligence claims were time barred. The Court also concluded that the previous hearing on damages was inadequate and ordered a new trial on the damages issue. On appeal, plaintiffs claimed that judgment should have been entered for $5,000,000 based on the default judgment from the underlying dram shop case. The plaintiffs argued that the law of the case required the Court to enter judgment in this amount. The Court, rejecting this argument, reasoned that although collateral estoppel could allow damages to be set based on an underlying proceeding, that concept did not apply here as defendants were not a party to the underlying dram shop proceeding. The liability of defendants was not decided in the underlying proceeding as they were not a party to that case (in the underlying proceeding, BBK was the defendant). The Court further reasoned that defendants in the instant action had no opportunity to litigate their defenses, and thus a manifest injustice would result of collateral estoppel applied to impose a $5,000,000 judgment on these defendants. Collateral estoppel is only appropriate where a party, or one with him it is in privity, had the opportunity to participate in the earlier case. Thanks to Alexandra Perry for her contribution to this post. Please email Vincent F. Terrasi with any questions. Previous Next Contact