Wade Clark Mulcahy LLP

News Frequent Elevator Misalignment Creates Issues of Fact (NY) October 8, 2020 < Back Share to: In Napolitano v. Jackson "78" Condominium, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment when plaintiff tripped while stepping into an elevator owned and/or managed by the defendants. The Supreme Court granted the defendants motions for summary judgment to dismiss the complaint insofar as asserted against them. Plaintiff allegedly tripped while going into the defendant’s elevator, and when she entered the elevator it was misaligned with the floor of the building’s lobby – which caused her fall. The Appellate Division stated that "A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect" (citations omitted). Although the defendant-property owners were able to establish that no complaints were ever made about the misalignment of the elevator, and that they performed routine inspections, plaintiff was able to raise a triable issue of fact whether the defendants had notice of the defective elevator. Specifically, plaintiff submitted an affidavit from another tenant in the building which asserted that she frequently observed misalignment of the elevator and that a member of the condo board acknowledged the problem in her presence. In addition, plaintiff’s expert alleged the defendants performed an unsatisfactory inspection three days before the accident. This decision serves as a reminder that property owners likely will not prevail on summary judgment if the defect at issue has frequently been an issue in the past and if they perform unsatisfactory inspections of the defect. Thanks to Corey Morgenstern for his contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Eight Corners and Ongoing Damages Rules Prevent Disclaimer in Environmental Damages Case July 10, 2017 < Back Share to: The duty to defend can be triggered where there is a lack of specificity in a complaint. In USA Environment LP v. American Int’l Speciality Lines Ins. Co., the Southern District of Texas recently rejected an insurer’s denial of coverage to insureds that transported millions of gallons of hazardous waste materials to what was later designated a superfund site. The “potentially responsible parties” (PRPs) identified by the EPA sued hundreds of companies involved with the Suprefund site, including the insureds who filed a separate action seeking coverage. The insurer issued policies to the insureds from 2003 to 2014, and denied coverage under waste disposal site and auto exclusions. The Court observed that the policies issued after 2011 had deleted the waste disposal site exclusion, and created an exception to the applicable pollution exclusion. The underlying complaint filed by the PRPs did not specify when the releases of pollutants occurred or the years the insureds’ services were performed, but did note the insureds transported different kinds of hazardous materials over the course of many years. The complaint further alleged the release of hazardous materials was ongoing. Accordingly, the Court held coverage was triggered because it was possible damages occurred during a policy issued after 2011. Similarly, the Court held the allegations in the complaint were too vague to conclude all the hazardous materials were transported by the insureds in an “auto,” as defined by the policy. As a result, some of the property damage alleged may not have arisen from the use of an auto, and the Court ruled the duty to defend was triggered. When in a four or eight corners jurisdiction, an insurer is generally beholden to the allegations in a complaint, no matter how vague. If these allegations potentially fall within coverage, under the liberal standard embraced by courts across the nation, the duty to defend is likely triggered. As with any general rule, there are exceptions and aggressive positions can be warranted. However, particularly in high value cases, an aggressive position should be weighed against the certainty of litigation and its potential result. Thanks to Chris Soverow for his contribution to this post.       Previous Next Contact

News Vague E-mails not a "Signed Writing" under Copyright Act (NY) November 16, 2009 < Back Share to: Under the Copyright Act, the transfer of an exclusive license, including a license for distribution of a copyrighted work, must be effected through a signed writing from the copyright owner or its agent. The Copyright Act grants copyright owners a number of “exclusive rights,” including the right to distribute the work “to the public by sale or other transfer of ownership.” 17 U.S.C. § 106(3). Recently, in Weinstein Co. v. Smokewood Entertainment Group, LLC, plaintiff alleged defendant had conveyed the exclusive right to distribute a movie owned by the defendant through a series of confirmatory e-mails regarding the deal. When the defendant instead conveyed distribution rights to another company, plaintiff filed suit in federal district court, New York. Briefly, the substance of plaintiff’s e-mails were, “We are pleased to confirm our deal.” While the defendant’s responses were not outright rejections of plaintiff’s claims, the defendant commented on remaining, unsettled, details regarding the negotiations. The Court held that if a copyright owner's intention in writing is unclear -- even deliberately so -- there is no legally valid transfer. The purpose of the signed writing requirement is to ensure that the copyright owner deliberately transfers its ownership interest in such a way that provides the parties with a clear guide to their rights and responsibilities. Because the e-mails between the parties here failed to accomplish that, the Court dismissed the Complaint. If you would like more information regarding this post, please email mbono@wcmlaw.com . http://pdf.wcmlaw.com/pdf/einstein%20decision.pdf Previous Next Contact

News Declaratory Judgment Actions Are Not A Discovery Tool (NJ) July 26, 2012 < Back Share to: One of the methods used by No-Fault providers to fight fraudulent claims is to establish that improprieties with a health care provider’s ownership structure, billing practices, and regulatory compliance. But recently, the Supreme Court of New Jersey held that an insurance company cannot file a declaratory judgment action solely seeking discovery of in an effort to prevent insurance fraud, even where an insured patient has assigned personal injury protection (PIP) benefits to the health care provider. In Selective Insurance Company of America v. Hudson East Pain Management, Selective filed for declaratory judgment against Hudson East Pain Management and several other entities because it noticed what it considered to be “suspicious patterns” in the treatments rendered to Selective’s insured patients, as well as in the corporate links among the various entities. Selective’s insureds had assigned their PIP benefits to the health care providers after being injured in motor vehicle accidents. Although it had requested information on ownership, billing practices, and regulatory compliance from the various entities, Selective did not receive the information it sought, and as a result, filed its declaratory judgment action, citing the “cooperation clause” in its insurance policies, as well as New Jersey statutory authority. The trial court sided with Selective, and ordered the health care providers to produce the requested materials. The Appellate Division reversed this order, holding that Selective’s reliance on the cooperation clause in its insurance policies was improper, and that its demands for discovery went beyond the statutory authority of New Jersey law. On review, the Supreme Court of New Jersey affirmed the Appellate Division, but for different reasons than expressed in the Appellate Division’s decision. The court held that because an assignee of benefits as no greater rights than an assignor, the assignee also cannot have greater duties than the assignor under the contract. Therefore, because the Selective insurance policies did not require the insured patients to provide the information sought by Selective in its declaratory judgment action, the policies could not require the health care providers to present that information. Additionally, the court agreed with the Appellate Division that the PIP statute, N.J.S.A. 39:6A-13, did not provide for the sort of discovery sought by Selective. Finally, the court held that, although New Jersey had a clear public policy against insurance fraud, the means employed by Selective were not the correct avenue for preventing insurance fraud. Although this case does not undermine the ability of an insurance company to seek injunctive or other relief, along with discovery, through the use of a declaratory judgment complaint, it does stand for the proposition that a quest for this sort of discovery cannot be the sole object of the complaint. Thanks to Christina Emerson for her contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

News Is Post Traumatic Stress Disorder a "Physical Injury?" (PA) December 12, 2019 < Back Share to: Earlier this year, we reported on a New York verdict, where a jury awarded eight figures to a plaintiff whose most significant injury was mental and emotional anguish. And we noted in that post that "Emotional trauma is considered an invisible injury because it is not something that can be seen on a scan or repaired with surgery, but can nevertheless lead to high, even exorbitant verdicts, if the “stars align” in plaintiff’s favor at trial." Now, Pennsylvania finds itself examining whether a solely mental/emotional injury constitutes a physical injury, in the context of a first-party claim for medical benefits (also known as PIP or No Fault benefits, depending on the state.) According to the Pennsylvania Superior Court, the answer to whether Post Traumatic Stress Disorder is a physical injury is . . . it depends. In Evans v. Travelers, the Pennsylvania Superior Court reversed the order of the Court of Common Pleas of Wayne County granting summary judgment in favor of Travelers. Plaintiff Evans suffered a concussion, closed head injury, post-concussion syndrome, vertigo, post-traumatic vascular headaches, post traumatic vestibuloneuronitis, and PTSD after a tractor-trailer struck her car while she was driving on I-476. The collision pinned her car between the tractor-trailer and the road’s center median. While Travelers paid Evans for her injuries sustained in the accident, it denied her claim for future coverage for her continued treatment of PTSD. Travelers asserted that PTSD did not constitute a “bodily injury,” which would have given rise to future coverage under Evans’s policy. The Travelers policy limited “bodily injury” to “accidental bodily harm to a person and that person’s resulting illness, disease, or death.” That same—admittedly circular—definition of “bodily injury,” was relied on by the Pennsylvania Superior Court in Zerr v. Erie Ins. Exchange. The Zerr court found that the above definition of “bodily injury” did not include emotional or mental injuries unless they were caused by a physical injury. The lower court had found in Travelers’ favor because it reasoned that the plaintiff failed to show that her PTSD stemmed from her physical injuries, and thus, was not entitled to future coverage. The PA Superior Court, however, reversed—finding that the definition of what is considered a bodily injury may not be so clear. The Court distinguished Zerr, since the plaintiff’s claim in Zerr did not involve bodily injury because it was based solely on emotional injuries without any accompanying physical injuries. In contrast, Evans’s claim involved both physical injuries and emotional distress, including PTSD, which stemmed from her accident. Ultimately, the Evans found there was a genuine issue of material fact whether Evans continued to suffer from her physical injuries causing her PTSD. Evans presents a broader interpretation of “bodily injury” as used in most insurance policies. Further, although the court did not state exactly what constituted “bodily injury” or whether PTSD constituted “bodily injury,” it did open up the door for more injuries to become a “bodily injury” as long as the claimant can show an injury is related to some physical harm. A downside for insurers is that if emotional injuries like this one are presented to a jury, they can be very expensive to defend through expert testimony, and also, unpredictable in terms of verdict values. Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Is Lead Paint a Pollutant? That Depends on Who, and Where, You Ask March 25, 2016 < Back Share to: While Total Pollution exclusions have generally been applied broadly, insurers must be cognizant of a fascinating conflict between different state’s jurisprudence. This conflict involves the question of whether lead or lead based products and by-products are considered “pollutants” under a total pollution exclusion. This conflict was highlighted recently when the Georgia Supreme Court found that a policy’s pollution exclusion applied to an injury that resulted from the ingestion of lead-based paint. In Georgia Farm Bureau Mut. Ins. Co. v. Smith, 2016 Ga. LEXIS 245 (Ga. Mar. 21, 2016), a minor tenant was injured due to ingestion of lead-based paint chips. The plaintiff insurer moved to disclaim coverage based on the policy’s pollution exclusion. Following the insurer’s victory at the trial level, the Georgia Court of Appeals reversed, claiming that lead-based paint was not a “pollutant” as defined under the policy because it wasn’t specifically mentioned in the exclusion. The Georgia Supreme Court noted that the pollution exclusion was not limited to environmental harms and that the exclusion needs to be evaluated by its terms in accordance with Georgia law. Additionally, the court referenced a prior Georgia case, Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 667 S.E.2d 90 (2008), where the court found that the pollution exclusion applied to a claim related to carbon monoxide poisoning despite carbon monoxide poisoning not being explicitly mentioned as a pollutant. Using the same analysis, the Supreme Court held for the insurer, declaring lead based paint to be a pollutant for the purposes of the pollution exclusion. Notably, New York courts take the opposite stance. The case of Westview Associates v. Guar. Nat. Ins. Co., 95 N.Y.2d 334, 338, 740 N.E.2d 220, 222 (2000) concerned essentially identical facts as Georgia Farm Bureau, in that a minor suffered bodily injury due to the ingestion of lead-based paint chips. The New York Court of Appeals, equivalent in stature to the Georgia Supreme Court, held that the lead-based paint chips did not constitute a pollutant. The Court of Appeals reasoned that, if lead-based paint chips were meant to be excluded by the policy, as the insurer claimed, then they would have been specifically mentioned in the exclusion. Since they were not, the court ruled that the issue constituted an ambiguity in the policy and interpreted it against the insurer. The key difference between each states approach resides in their respective analytical framework. Georgia courts have a history of enforcing pollution exclusions without requiring the pollutants to be explicitly named in the policy—taking a common sense view of what is regarded as a pollutant. By contrast, New York plays by the card, requiring more specificity. This decision, once again, calls upon Underwriters to develop wording with enough breadth to carve-out the risks they are unwilling to embrace. What works in Georgia may not work elsewhere. Insurers have to be cognizant of where a given action is being litigated and where a given policy is issued. Thanks to Joshua Gornitsky for his contribution to this post. For more information, please email Dennis M. Wade at dwade@wcmlaw.com . Previous Next Contact

News NJ UIM Coverage: What Are Your Limits? December 28, 2012 < Back Share to: For years auto insurance in New Jersey was a hot topic as the Legislature wrangled with how to make no fault insurance cost effective. The result was a very defined statutory scheme that requires all liabilities policies to include uninsured and underinsured motorist protection. Of course, individuals have options, including just how much protection they want to purchase. In the realm of uninsured/underinsured protection, an insured can choose what limits they would like to have. However, they must be aware that the limit they select will strictly bind them. In Aggour v. GEICO, the plaintiff was injured in a multi-vehicle accident involving injuries to a number of individuals. The tortfeasor driver had policy limits of $100,000 per person and $300,000 aggregate. Coincidentally, the plaintiff had the same per person policy limit for underinsured coverage. Because of the multiple claimants, the plaintiff’s settlement share was less than she believed she would have been entitled. However, her insurer denied coverage inasmuch as the policy limits were identical. GEICO’s motion for summary judgment was granted based upon N.J.S.A. 17:28-1.1(e)(1) since the tortfeasor had the same liability limit as the underinsured motorist limit applicable to plaintiff’s policy. The appellate division agreed that the comparison of policy limits determines whether a claim for underinsured coverage may prevail. That there may have been a shortfall in coverage due to multiple settlements is of no consequence. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News NJ Sup. Ct. Bars Heirs Wrongful Death Claim Where Decedent Was Uninsured Motorist August 30, 2011 < Back Share to: In Aronberg v. Tolbert , the Supreme Court considered whether the heirs of an uninsured motorist killed in a motor vehicle accident have a claim under the Wrongful Death Act , N.J.S.A. 2A:31-1 et seq, or whether N.J.S.A. 39:6A-4.5(a) which bars a lawsuit for personal injuries by an uninsured motorist, also bars the survival action. The Appellate Division in affirming the trial court, found that the Wrongful Death Act granted the heirs an independent right of recovery, regardless of the decedents failure to purchase mandatory automobile insurance. The panel, in part, found nothing in the language of 39:6A-4.5(a), which supported a Legislative intent to punish innocent family members who are the beneficiaries under the Wrongful Death Act, for the decedent's act of driving while uninsured. The Supreme Court reversed finding that when an uninsured motorist's claim is barred by 39:6A-4.5(a) , an heir has no right to recovery under the Wrongful Death Act. It determined that the Legislature intended for the 39:6A-4.5(a) lawsuit bar to also apply to the decedents's next of kin in a wrongful death action. Aronberg v. Tolbert ( A-9-10) decided August 9, 2011. http://www.judiciary.state.nj.us/opinions/index.htm Please contact Robert Ball with any questions regarding this post. Previous Next Contact

News "Trivial" Defect in Sidewalk Does Not Constitute a Dangerous Condition February 24, 2011 < Back Share to: In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants' property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the "defect" was approximately the height of a nickel. In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants' motion for summary jusgment after finding that plaintiff's testimony was speculative (not to mention that plaintiff's account seems to corrorborate the measurements of the defendant's expert). Moreover, the Court found that plaintiff failed to rebut defendants' argument that the defect was trivial. Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm Previous Next Contact

News Two-Year Old Photo is Sufficient to Support Negligence Claim (PA) October 16, 2020 < Back Share to: In Taylor v. Lots for Sale LLC, plaintiff fell and was injured when she stepped into a two-inch drop-off on the sidewalk in front of Lots for Sale, LLC (“Lots for Sale”). At the non-jury trial, the plaintiff presented photos of the sidewalk where she fell, including photos establishing that the drop-off existed for more than two years before her fall. The trial court found in Taylor’s favor, and Lots for Sale subsequently appealed. In their appeal, Lots for Sale argued that plaintiff failed to present sufficient evidence that Lots for Sale knew or should have known of the drop-off. The Superior Court noted that, according to the photos, Lots for Sale had ample time to take notice of the drop-off and repair the defect. The Superior Court upheld the trial court’s ruling. This case demonstrates the importance of inspecting a commercial property and the surrounding sidewalks for potential defects. Leaving a potential defect for several years can be used against you in a future litigation. Thanks to Nicholas Wright for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Is Pleased To Announce That Effective July 1, 2013, Brian Gibbons Has Been Promoted To Counsel July 12, 2013 < Back Share to: A former prosecutor in the Bronx and WCM attorney since 2009, Mr. Gibbons defends individuals and businesses from a variety of general liability claims. He also handles first party property matters during the claim investigation and in litigation. A New York native, Mr. Gibbons is a graduate of Boston College and St. John’s University School of Law. He is an active member of the Regis Bar Association and a new member of the Nassau County Bar Association. Previous Next Contact

News How Long is Too Long to Wait before Reattempting Service of a Complaint? (PA) May 29, 2019 < Back Share to: On May 22, 2019, the Superior Court of Pennsylvania affirmed an entry of judgment on the pleadings in favor Antoine’s Timbering, Inc. in Pa Electric Co. v. Antoine's Timbering The case stems from Antoine’s Timbering allegedly cutting down a tree that caused damage to poles, wires and facilities of Penelec as well as a loss of power to its customers. Nonetheless, the issue before the Superior Court involved service of the complaint on Antoine’s Timbering. On February 19, 2016, prior to filing the complaint, Penelec reviewed the address listed for Antoine’s Timbering on the Corporation Bureau which showed that Antoine’s Timbering could be located at RT 438, Box 86, La Plume, PA 18440. However, on April 19, 2016 the Sullivan County Sheriff’s Office filed an affidavit stating service had not been perfected on Antoine’s Timbering because the address was invalid. Even though counsel for Penelec received this information, Penelec did not make another service attempt until 18 months later on October 10, 2017. During that time, the statute of limitations had expired on April 24, 2017 and therefore service was improper. Nonetheless, Antoine’s Timbering was eventually served on December 8, 2017 at the correct address. Upon receiving the complaint, Antoine’s Timbering filed preliminary objections arguing Penelec failed to effect service in a timely manner and therefore violated the statute of limitations. Penelec countered by arguing it had made attempts to secure Antoine’s address and therefore had undertaken a good faith search and therefore the “equivalent period doctrine” applied. The Court sustained Penelec’s preliminary objections and, after the pleadings closed, Antoine’s Timbering filed a motion for judgment on the pleadings making the same argument. This time, the Court agreed and granted the motion filed by Antoine’s Timbering. The Court ruled that the 18 month delay “unnecessarily delayed the legal process” and therefore Penelec did not make a good faith effort to serve Antoine’s Timbering. On appeal, Penelec attempted to argue it made a good faith effort in serving Antoine’s Timbering but the Superior Court again disagreed. The Court stated the “equivalent period doctrine” was inapplicable here because Penelec had provided no justification as to why it waited 18 months to attempt to effect service on Antoine’s Timbering again. The Court noted that Penelec had not even tried to locate another address for Antoine’s Timbering during that time. As such, the Court affirmed the lower court’s ruling. This fact pattern also offers some insight as to why defense counsel should be careful before agreeing to waive jurisdictional defenses in exchange for an extension of time to answer a complaint. Jurisdictional defenses include lack of personal jurisdiction and improper service, and those defense come in handy -- especially when approaching the statute of limitations deadline. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact