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News PA Superior Court: Interrogatory Responses From Another Case Are Not Hearsay June 20, 2012 < Back Share to: The Pennsylvania Superior Court recently held that an asbestos plaintiff’s use of interrogatories that were prepared over 30 years ago in a California case were admissible. In Petrina v. Allied Glove, the plaintiff sued Union Carbide over the death of her husband following his exposure to asbestos dust from a joint compound that National Gypsum manufactured. Union Carbide moved for summary judgment based on a lack of product identification. In an attempt to defeat the motion, plaintiff’s counsel submitted answers to interrogatories filed by National Gypsum, a non-party to the case, in connection with a 1984 California case in which it was stated that Union Carbide was the exclusive supplier of asbestos to National Gypsum. The Allegheny Court of Common Pleas found that these interrogatories were inadmissible hearsay and refused to admit them. On appeal, the Superior Court rejected the lower court’s conclusion and noted that interrogatories may be used to create an issue of material fact to defeat a motion for summary judgment. Here, the interrogatories could be introduced at trial in two ways. First, a corporate representative of National Gypsum could affirm the contents of the interrogatories. The Court also noted that the interrogatories could be admitted as prior inconsistent statements. The Court reasoned that when National Gypsum’s representative had originally responded to the interrogatories, the responses became binding on the corporation he was answering on behalf of. Therefore, if another National Gypsum representative offered testimony that was inconsistent with the 1984 interrogatory responses, the responses could be admitted as prior inconsistent statements. Thanks to Colleen Hayes for her contribution to this post. http://caselaw.findlaw.com/pa-superior-court/1602780.html Previous Next Contact

News No Coverage for Spouse of Alleged Abuser (NJ) June 28, 2012 < Back Share to: Generally, when an insured is subject to a claim of sexual abuse, the claim is excluded from coverage under the insured’s homeowners’ insurance policy. However, the law has been historically less clear on whether the spouse of an alleged sexual predator is entitled to coverage. The Superior Court of New Jersey, Appellate Division, has recently issued a decision providing further clarity for insurers faced with this dilemma in State Farm Fire and Cas. Co. v. Gregory. State Farm Fire and Casualty Company commenced a declaratory judgment to determine its rights when the insured-wife and husband were both named as defendants in a lawsuit by a minor claiming that she was sexually abused by the husband. State Farm had disclaimed coverage to the insured-wife based on claims that she knew or should have known that the husband was sexually abusing the minor and she had a duty to warn the minor or her parents. The trial court, citing to High Point Ins. Co.v. J.M., decided that the insured-wife was not entitled to coverage under the homeowners’ policy, finding that public policy precluded any coverage for the insured-wife, and the appellate court firmed. Namely, the public policy was designed to have a spouse “remain vigilant for the protection of a child victim,” and there was no “reasonable expectations” that the insurance would provide coverage for the spouse of an abuser. The court further ruled that the claim was excluded because the homeowners’ policy excludes bodily injury or damage that is expected or intended by "the insured." The court was not persuaded by the insured-wife’s argument that she did not intend the injury because it found that the term “insured” unambiguously included the insured-husband. The court further noted that the insured-wife’s knowledge (or lack thereof) of her husband’s propensity for child abuse was irrelevant to the coverage analysis. Thanks to Steve Kaye for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com . Previous Next Contact

News Can it be Hearsay if Nothing is Actually Said? November 15, 2019 < Back Share to: Hearsay is a part of evidence class in law school, but given all the exceptions, exemptions, and frankly, statements that simply are not hearsay, professors could spend an entire semester examining hearsay alone. Hearsay is an out of court statement introduced into evidence by a litigant to prove the truth of the matter asserted by the statement’s declarant. What about signage though? Signs say things. When, if ever, is a sign hearsay? Consider two hypothetical cases where pictures of signs are the only factual bases for the claims against the impleaded parties. In the first case, a picture of a truck’s signage was attached to a third party summons and complaint. The truck in the picture, with a company name on the side, was at a slip-and-fall accident scene, and a defendant used the picture of the truck to implead the truck owner. Assuming the picture is properly identified by the person who took it, the picture itself is probably not hearsay. The litigant who introduces this picture into evidence is not introducing it to prove the truth of the matter asserted by the sign, which is just that the truck is owned by the insured. Therefore, the sign on the side of the truck probably isn't hearsay at all, and is admissible. Moreover, the litigant is likely trying to prove that the insured was present and doing work at the accident scene on the day of the accident. If the litigant were trying to introduce the sign with the limited purpose proving that the insured owned the vehicle, it would be hearsay, but admissible hearsay under rule Rule 801(d)(2)(D) as an inscription, sign, tag or label affixed in the course of business and indicating ownership. We think the sign on the truck is admissible, based on these facts. In the second case, there is a dashboard placard, with nothing on it but the insured’s name. Specifically, a for-hire driver his holding up a sign to the plaintiff’s camera with the insured car service’s name on it. The for-hire driver, by holding up the placard for the passenger is attempting to communicate something beyond what the sign says. specifically, that “I am driving for this company right now.” This, surely, is “nonverbal conduct of a person intended by that person as an assertion.” Rule 801(a). It would not qualify as admissible hearsay under rule 801(d)(2)(D) since the driver’s expressive conduct means to assert something beyond what the sign says. Without that driver’s testimony—and indeed, he is nowhere to be found— the picture could be excluded, and prompt a dismissal of the car service from the suit. Signs, signs, everywhere signs.....Thanks to Jon O'Brien for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Inconsistent Evidence Not Sufficient For New York’s “Storm in Progress” Rule (NY) March 24, 2023 < Back Share to: New York’s “storm in progress” rule protects a property owner from liability for accidents occurring “as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.” However, the burden and quality of proof is important, and a defendant must be careful to corroborate their argument. Even when a lower court grants summary judgement based on the rule, an appellate court may reverse if the proffered evidence is not sufficient to support it. The Appellate Division, Second Department did just that in Licari v. Brookside Meadows, LLC. In that case, the plaintiff slipped and fell on ice that formed in the cracks of an uneven, broken walkway located in defendants’ apartment complex. Plaintiff claimed that the icy conditions formed and remained as a result of precipitation that occurred days before the accident. The defendants moved to dismiss based on the “storm in progress” rule, relying on deposition testimony from both the plaintiffs and defendants that described the weather at the time of plaintiff’s accident. Although the lower court granted defendant’s motion, the Second Department reversed and found that the standard for the “storm in progress” defense was not met. In so holding, the Second Department found that there were inconsistencies as to whether the storm was actually in progress or whether it had ended by the time of the accident. The Court observed that if the storm had ended several days before the accident, then the defendants would at minimum have constructive notice of the frozen walkway cracks. The defendants failed to resolve the confusion as to whether or not the ice at issue existed prior to the storm and the Court that there were too many factual inconstancies to merit a successful “storm in progress” defense. The Licari case highlights the importance of having clear and consistent evidence in asserting a “storm in progress” defense. The Court made it clear that inconsistent deposition testimony as to the timing of a storm is not sufficient to meet the standard and prevail on a summary judgment motion. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Attempting To Turn The Corner, Marsh & McLennan Replaces CEO Cherkasky February 1, 2008 < Back Share to: Brian Duperreault, the former head of ACE insurance, has been named by Marsh & McLennan as its new chief executive. http://www.nytimes.com/2008/01/31/business/31insure.html?_r=1&scp=1&sq=marsh&st=nyt&oref=slogin Previous Next Contact

News Dennis Wade Speaks at Federal Bar Association's Art Law & Litigation Day November 16, 2017 < Back Share to: Dennis Wade is co-chair of the Federal Bar Association’s Art Law & Litigation Seminar in Miami, Florida on December 6, 2017 (to coincide with the launch of Art Basel). Dennis’s panels include Protecting the Art Market: Fakes, Forgeries & Freeports and Wynn’s Elbow: The Art of Dealing With Damage to Art. Previous Next Contact

News Is Getting The Right Panel Key to Appeal In NY's First Department ? May 17, 2012 < Back Share to: In New York's Appellate Division, First Department, forget precedent, the key is getting the right Court panel. In Maniscalco v. New York City Transit Auth., the plaintiff, a pedestrian, was struck by the defendant's side-view mirror, as she crossed the street within the crosswalk with the light in her favor. The plaintiff moved for and was granted summary judgment by the Supreme Court. On appeal, the defendant did not challenge the Supreme Court's finding that he was negligent and that his negligent was the substantial cause of the accident. Rather, he contended that questions of fact existed as to the plaintiff's comparative negligence, precluding summary judgment. In 1993, the Court of Appeals, in Thoma v. Ronai, held that a plaintiff is not entitled to summary judgment where there is an issue of fact as to comparative negligence. While this should have resolved the issue once and for all, it did not. In 2010, a panel of judges on the First Department declined to follow it. But just two years later, a different panel of the same court followed Thoma. After a long look at the mixed precedent on the matter, the Maniscalco Court reversed the Supreme Court, denied plaintiff summary judgment, and decided to follow Thoma. It reasoned that the point of Thoma and its progeny is that, where there is evidence that both the defendant and plaintiff were negligent and that each one's negligence may have been a substantial factor in causing the injury, whether one party's negligence was a substantial factor in causing the injury should not be determined in isolation. Rather, each party’s liability should be considered and determined simultaneously with the material, and overlapping, issue of whether the other party was also culpable. http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03548.htm Thank you for Gabe Darwick for this post. Previous Next Contact

News No Cause of Action for “Negligent Misidentification” April 20, 2018 < Back Share to: In Morris v. T.D. Bank, plaintiff alleged he was behind an individual in line at defendant’s bank. That individual gave the bank teller a note demanding money as part of a hold-up. After the robber left, another bank employee, believing plaintiff to be the robber, secured the bank and called the police. The police then questioned plaintiff. Plaintiff sued the bank for negligence, false imprisonment, assault and violation of the New Jersey Law Against Discrimination. He alleged that as a result of defendant’s conduct, he suffered from emotional distress, poor sleep and fear of the police. The court ruled that plaintiff’s alleged injuries did not result from defendant’s breach of the duty to maintain safe premises. The court viewed plaintiff’s claim as one of “negligent misidentification” and held that no such cause of action has ever been recognized. Thanks to Michael Noblett for his contribution to this post.                 Previous Next Contact

News U.S. Supreme Court's Decision Not To Review Enron Case Sounds The Death Knell To Lawsuit January 24, 2008 < Back Share to: Enron investors' lawsuit, attempting to recoup losses from investment banks that did business with the defunct energy company, suffered a major setback when the United States Supreme Court refused to review a lower court's ruling which dismissed this theory of liability. Notably, a week earlier, in a different, but similar action involving investors of Charter Communications, the Supreme Court ruled investors in that case did not have a right to sue outside entities that did business with Charter Communications because those investors did not rely on the deceptive acts of those entities. http://www.nytimes.com/2008/01/23/business/23enron.html?_r=1&scp=2&sq=Enron&st=nyt&oref=slogin Previous Next Contact

News Tenant's Tying Up a Vicious Dog Could Place Liability on Landlord November 12, 2010 < Back Share to: In Jones v Pennsylvania Meat Mkt, the plaintiff was bitten on the leg by a pit bull dog near the rear entrance of a grocery store. At the time of the incident, the dog was tied to a store's dumpster. The store was located in a strip mall and the landlord retained security guards to patrol the property. The plaintiff testified he frequently saw the dog, which allegedly was owned by a store employee, tied to the dumpster. He also testified that the dog had a tendency to bark, growl, and strain against its leash to lunge at people who were passing by. In denying the landlord's motion for summary judgment, the court stated the the evidence raised triable issues of fact as to whether the landlord was aware that the dog was being harbored on its premises, whether the dog had vicious propensities, whether the landlord controlled the area where the incident occurred. http://www.nycourts.gov/reporter/3dseries/2010/2010_07897.htm Previous Next Contact

News New Jersey’s Evolving Law For UIM Coverage (NJ) August 8, 2019 < Back Share to: The New Jersey Supreme Court recently granted certification in a case that will ask the Court to decide whether an insurer may exclude underinsured motorist coverage (UIM) for an accident involving a vehicle owned by the insured, but not covered under the subject policy. In Katchen v. GEICO, the insured was injured in a motorcycle accident. Prior to settling his case, the insured submitted his claim to GEICO for UIM coverage. The GEICO policy provided coverage for bodily injury that the insured was entitled to recover from the owner of an “underinsured motor vehicle”, but excluded coverage for "bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the [d]eclarations and not covered by the Bodily Injury and Property Damage liability coverages of [the] policy." Because the motorcycle was not listed on the declarations page, GEICO disclaimed coverage on the basis that it was not an “owned auto,” defined in the policy as a "vehicle described in this policy for which a premium charge is shown for these coverages." The insured argued that the exclusion was inapplicable for multiple reasons. First, he argued that the failure to define "motor vehicle" results in an ambiguity as to the difference between "autos" and "motor vehicles.” The court rejected this argument and found that a plain and ordinary reading of the exclusion demonstrated that a motorcycle was a motor vehicle, and any alternate conclusion would be a “strained construction”. Further, the exclusion appeared in the UIM section of the policy. Thus, unlike cases where a provision in the liability section of the policy were found not to apply to the UIM coverage, the court found that the exclusion could apply because it constituted a “clearly-worded UIM provision.” Finally, rejecting the insured’s arguments that UIM coverage cannot be tied to a specific vehicle, the Court noted that the exclusion would not apply to vehicles driven by the insured but not owned by the insured, such as a rental vehicle. Accordingly, the court concluded there was no coverage under the policy. Subsequently, the insured appealed this ruling to the New Jersey Supreme Court, which has recently granted certification. The New Jersey Supreme Court’s future ruling on this matter will add yet another layer into the evolving law of UIM coverage in New Jersey. Stay tuned to see how the Court rules. Thanks to Doug Giombarrese for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News No Lost Wages For No Lost Work! November 17, 2023 < Back Share to: In a recent decision out of the Superior Court of Pennsylvania titled: Butler v. Landmark Property Group, LLC , the Court refused to reverse a damages award in favor of the Plaintiff, specifically his claim for lost wages . The “Butlers,” husband and wife, appealed a judgement after trial, arguing that the jury award failed to accurately reflect medical losses and loss of income suffered by Mr. Butler. Specifically, Appellants argued that Mr. Butler suffered $115,000 in lost wages alone in 2018 and 2019. The Superior Court affirmed the decision, because there “was no evidence that [plaintiff’s] future earning capacity was impaired because of his ankle injury.” Id. at 3. In fact, the court noted that while Mr. Buter had testified that his leg pain was a “ten” and “could not get any worse”, he had returned to work several times through 2018 through 2021 after being cleared to do so. Id . It was not clear, despite his testimony of being in “excruciating” pain, that his damages rose to the requested amount provided his continuing work history. Id. The Court also agreed that the Butler’s expert had been unreliable at trial, as his statement that Buter could not work due to his ankle conflicted with the in fact that he was the exact same doctor who had cleared Buter to return to work multiple times through 2018. Id. This case reinforces the prospect that the credibility of witnesses and experts in personal injury cases matter when it comes to the ultimate award of damages. As the Superior court reinforced in its conclusion, “If the verdict bears a reasonable resemblance to the damages proven, we will not upset it merely because we might have awarded different damages.” Id at 4. Here, an uncredible witness and an inconsistent expert resulted in an award the trial court felt reasonable to the damages suffered, even if it was less than what plaintiff sought. Exposing such inconsistencies are critical to an effective defense at trial, especially when the “abuse of discretion” standard of review at the Appellate level remains a high bar to pass in PA courts. Butler v. Landmark Property Group LLC .pdf Download PDF • 327KB Previous Next Contact