News WCM Partner Bob Cosgrove to Speak at IUA London Event on COVID and Insurance. May 15, 2020 < Back Share to: WCM Partner Bob Cosgrove is set to speak at the International Underwriting Association of London on May 20 for a seminar entitled COVID 19: It’s Wreaked Havoc on Social Life and the Economy. Is Insurance Its Next Target in the US? For more information about the seminar, see this IUA flyer. The seminar which look at such things as: * Business income claims under a property policy -- How presented? -- Physical loss? -- ISO Virus exclusion? -- Pollution exclusion? * Business income and liability claims under a CGL policy -- How presented? -- Property damage? -- Negligence? * Policyholder attacks -- Ambiguous wordings -- Inconsistency in claims handling -- Reasonable expectations * Legislative and public policy COVID concerns * Suggested responses -- Reserve or disclaim? -- Request for information? -- Outside adjusters? * Litigation -- Class action/MDL -- Ripeness -- Precedents The seminar will be conducted along with WCM friend André C. Gaudin, a Louisiana based partner at Burglass Tankersley, LLP and Joseph D. Zopolsky, a Texas based partner at Glast, Phillips & Murray. While we can't guarantee room at the IUA event, if you have interest for your company, just reach out to Bob. Previous Next Contact

News An Insured’s Failure To Timely Repair or Replace Property May Limit Recovery Under Policy December 1, 2017 < Back Share to: In Brown, et al. v. Everett Cash Mutual Insurance Company, et al., the insureds property was completely destroyed by a fire. Everett made various payments to the insureds under the policy, including payment for damage to the residence itself at actual cash value. The insureds contended, they were entitled to full replacement value for the property. In determining whether the insureds were entitled to replacement cost value for the residence, the Pennsylvania Superior Court looked to the policy language, which stated the insureds were entitled to recover the actual value of the property at the time of loss, without deduction for deterioration a/k/a replacement cost value. However, the policy also included language that stated the insurer did not have to pay for “more than the actual cash value of the loss until repair or replacement [was] completed”. On appeal, the insurer argued it was only required to pay full replacement value if the insureds repaired or replaced the residence. Since the insureds failed to timely repair the residence, the insurer took the position, the insureds were not entitled to full replacement cost of the residence. Conversely, the insureds argued they were unable to rebuild the residence without the full replacement cost proceeds from the policy, thus, this should not prohibit them from recovering the full replacement value. In reaching its holding, the court reasoned other courts had analyzed similar policy provisions which stated that the policy would pay no more than actual cash value for the loss or damage until actual repair or replacement was completed and had found this language to by clear and unambiguous. Consequently, the court concluded the insurer had not breached the policy by only paying the actual cost value, as opposed to the replacement value for the residence, because the insureds had failed to comply with a condition precedent. This case offers support for an insurer that pays out policy proceeds on an actual cash value, as opposed to replacement cost value, due to an insured’s failure to comply with the policy’s requirements. However, we note, that in order for an insurer to take such action, based on this case, the policy needs to clearly state that an insurer need not pay replacement cost value until the insured has undertaken the repair or replacement work. Thanks to Colleen Hayes for her contribution to this post.     Previous Next Contact

News The Customer is Sometimes Wrong (PA) December 6, 2018 < Back Share to: In Thomas v. Family Dollar, the plaintiff was shopping in the Family Dollar store when she slipped on a thick, yellow substance next to a broken glass bottle. She filed a complaint in state court, but it was removed by the defendant to federal court. Plaintiff alleged that the Family Dollar was negligent in breaching its duty to keep its premises clear of substances on the floor. The Family Dollar moved for summary judgment, arguing that the substance was an open and obvious condition and it owed the plaintiff no duty of care. In deciding on the motion for summary judgment, the court noted that it was uncontested that the plaintiff was a business invitee, and that Pennsylvania law limited the duty of care owed to business invitees. Plaintiff acknowledged that there were no visual obstructions surrounding the liquid that would have concealed it from her view, but argued that she was otherwise focused on the products displayed on the shelves. The Court, however, stated that it was Hornbook law in Pennsylvania that a person must look where she is going and further noted that other Pennsylvania courts have rejected plaintiff’s argument. The Court observed that although a lesser degree of attention was required of customers in stores than those walking along sidewalks, the general rule still applies that where one is injured as a result of a failure on her part to observe and avoid an obvious condition, she would not be heard to complain. The Court found that the substance that plaintiff slipped on posed an obvious condition and its danger should have been readily apparent to a person exercising normal perception and judgment. Therefore, the Court found that the Family Dollar had no duty to plaintiff, and granted its summary judgment motion. The Court further noted that the plaintiff failed to prove that the Family Dollar had adequate notice of the condition to breach a duty of care. Thanks to Alexandra Perry for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Defeats Claim For Title Coverage Under Fine Arts Dealer Policy September 16, 2016 < Back Share to: In a matter of first impression, WCM convinced the New York Supreme Court that a fine arts dealer all-risk policy does not provide coverage for defective title, notwithstanding the fact that the policy was silent in respect of defective title, and a very sympathetic plaintiff. Jasper Johns is an iconic American artist who had the misfortune of having a criminal as his trusted studio assistant. Between 2006 and 2012, James Meyer stole several works of art from Johns and secretly sold the stolen works to various art galleries and collectors under contracts prohibiting buyers from selling or publicly displaying the works for seven years or until the artist died. Meyer explained this odd condition by telling prospective buyers he received the art as a gift and that he would be embarrassed if Johns found out he was profiting off the artist’s generosity. At his sentencing, Meyer expressed regret for his actions for betraying his mentor. But Jasper Johns was not Meyer’s only victim. The galleries buying those stolen pieces were also victims. One such victim was the plaintiff in DAE Associates, LLC d/b/a Danese Gallery v. AXA Art In. Corp. et al. In DAE, the plaintiff was the owner of an art gallery who, in 2010, was approached by an intermediary claiming to have Untitled, 2002-2005, Acrylic on paper, 37 ¼ x 30 inches, by Jasper Johns, for sale. He was told that the work was available on the condition that they eventual buyer keep the work private and not to loan or sell the work for seven years, or unless Jasper Johns passes away. Like the gallerists who preceded him, the plaintiff was told that the work was a gift. After being told the work was available, the plaintiff found a couple willing to buy the work, and sold the work to the couple for $825,000. In the contract with the couple, the plaintiff warranted that he had marketable title to the work and promised to rescind the sale and refund the purchase price if title proved to be defective. Three years later, the couple was approached by an FBI agent who informed them that the Jasper Johns hanging in their house was stolen. After returning the work to its rightful owner, the couple sued the gallerist for breach of contract. That suit, styled Perry and Donna Golkin v. DAE Associates, LLC d/b/a Danese Gallery, is currently pending in the New York Supreme Court. In DAE, the gallery sued AXA seeking coverage under its Fine Art Dealers All-Risk policy, which provided coverage for all risks of loss or damage to insured property except as otherwise excluded. The plaintiff argued that he suffered a loss, that the policy did not use the word “physical” and that defective title was not excluded under the policy. AXA disagreed, and argued that the artwork, which was the insured property, suffered no loss and that the plaintiff’s loss was a purely financial one which flowed from a simple breach of contract. AXA also argued that New York Insurance statutes recognize title insurance as a separate product and that it was not even permitted to write title insurance under New York law. This argument was supported by the plaintiff’s admission, during his pre-suit examination under oath, that he was aware of a separate product called title insurance, but that it was an expensive product. Based on these arguments, AXA filed a pre-answer motion to dismiss. After the motion was fully submitted and oral arguments made, the Honorable Jeffrey K. Oing agreed with AXA and ruled that there was no coverage under the policy. According to Judge Oing, although the plaintiff suffered a monetary loss, he did not suffer a covered loss because there was no loss to the insured property itself, the stolen Jasper Johns work. DAE is significant because it provides insurers with reassurance that their fine arts dealers all-risk policies cannot be transformed into title insurance based on the mere fact that defective title is not mentioned in any exclusion. AXA was represented by Dennis M. Wade and Michael A. Gauvin of Wade Clark Mulcahy. If you have any questions, please email Dennis at dwade@wcmlaw.com . Previous Next Contact

News Labor Law Liability Imposed Against Catholic Church (NY) January 3, 2020 < Back Share to: New York’s Labor Law, section 241(6), imposes a nondelegable duty upon an owner and general contractor to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Ortega v Roman Catholic Diocese of Brooklyn is a prime example of how strict this rule is. In that case, plaintiff was working as a concrete laborer at property owned by Roman Catholic Diocese of Brooklyn. He was injured when the front leg of a three-wheeled compressor gave way, causing a portion of plaintiff’s ring finger to become severed by the bent leg of the compressor. At his deposition, plaintiff testified that the locking mechanism that served to stabilize the front leg and wheel of the compressor had broken about two months before the accident. To remedy it, plaintiff’s boss replaced the broken component with an ordinary screwdriver. The accident occurred when the screwdriver popped out of the locking mechanism as he and coworkers were attempting to the push the compressor up a driveway. The Appellate Division, 2nd Judicial Department, overruled the Kings County trial court’s denial of summary judgment sought by plaintiff. It held that there were violations of the Labor Law, and therefore the owner of the property, Catholic Diocese, was liable for said violations pursuant to Labor Law section 241(6). The fact that Catholic Diocese had nothing to do with fixing the compressor was irrelevant, for the Labor Law imposes a nondelegable duty on landowners to provide a safe working place for workers. Thanks to Mike Noblett for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Prior Accidents Admissible In School Gate Mishap (NY) June 23, 2017 < Back Share to: In Martin v Our Lady of Wisdom Regional Sch. New York's Appellate Division addressed the discretion of a trial court to allowing evidence of prior accidents to establish a party's negligence. In April 2009, when the plaintiff was an eighth-grade student at Our Lady of Wisdom Regional School, he and another student were assigned, without supervision, the task of closing a sliding gate to the school parking lot. When the plaintiff hung on the gate as it slid closed, a wheel mechanism at the top of the gate severed the tips of two fingers. At a trial, the Suffolk County Supreme Court permitted testimony, over the school’s objection, from a retired school nurse detailing other accidents involving the gate, and the jury found the defendants 100% at fault in the happening of the accident. A $600,000 judgment was entered in favor of the plaintiff. The defendant appealed, arguing that the trial court erred in allowing evidence of the prior accidents. The Appellate Division’s decision addresses situations when proof of prior accidents is admissible and affirmed the decision holding that proof of a prior accident “is admissible only upon a showing that the relevant conditions of the subject accident and the previous one were substantially the same." The Appellate Court noted that the plaintiff presented evidence that three other children had injured their hands in accidents involving the gate, which was not significantly altered between the occurrence of those accidents and the plaintiff’s accident. As such, the Court found that the evidence was shown to be reliable and probative on the issues of dangerousness and prior notice, and the Supreme Court did not improvidently exercise its discretion in admitting it. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Voyeur's Sidetrack off Sidewalk to Peep in Window at Football Players Not Reasonably Foreseeable Use of Public Property (NJ) September 6, 2013 < Back Share to: Under common law, citizens could not sue the sovereign. The New Jersey Tort Claims Act is somewhat more liberal - but with very specific limits. When a person is injured due to a dangerous condition of public property, the Act does permit recovery, provided the plaintiff can prove each element enunciated by the Legislature. Since the Act includes a statement of legislative intent to broadly limit public entity liability, courts are to exercise restraint when novel theories are presented. In Sherman v. Rutgers, the plaintiff alleged that she fell while walking to her car after attending a Rutgers football game against Louisville. She had left the game at halftime and was walking along a sidewalk near the Hale athletic center when she observed lights on in the building. Thinking that she saw football players inside, she took a turn off the sidewalk to get closer to the building to peer into the window. Intent on the window, she did not pay attention to the ground in front of her. Bordering the edge of the sidewalk was a retaining wall that protected a well between the sidewalk and the building designed to address waterproofing for the building. The plaintiff tripped over the retaining wall dislocating both arms and sustaining fractures for which surgery was required. The plaintiff complained that the area was poorly lit and a dangerous condition of the public property. Rutgers countered that the plaintiff's detour from the sidewalk was unforeseeable. As such, it was clear that the plaintiff did not use the property with objective due care as required by the Act. Moreover, with no other such accidents reported since the area was constructed in 2007, it had not acted palpably unreasonably, i.e. it was not manifest and obvious that the university should have taken some action to adress any alleged condition. The Appellate Division affirmed summary judgment for the university. The court agreed that walking perpendicular to the sidewalk towards the building's opaque glass walls to look into a window was not a normal, foreseeable use of the walkway. Had the plaintiff walked along the direction of the sidewalk, she would not have been injured. Moreover, the lighting would have been sufficient to safely traverse the walkway had she not chosen to peek in the windows to see the football players. The court was not persuaded she had been drawn off course by "an attractive display" inside the building at eye level. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Timeliness Required Under Direct Action Statute (NY) May 27, 2016 < Back Share to: New York Insurance Law § 3420(a)(2) allows an injured party who has an unsatisfied judgment to file suit against that parties insurance company - but certain conditions still need to be met. Seville Electronics sued D.P. Holding to recover damages suffered in a fire. The parties agreed to a settlement for more than $800,000 that included a confession of judgment. In Mt. Hawley Ins. Co. v. Seville Elecs. Trading Corp., D.P. Holding's insurer, brought a declaratory judgment action seeking a declaration that it was not obligated to provide coverage and Seville filed a counterclaim pursuant to the Insurance Law to recover the amount of the unsatisfied judgment in the underlying action. Plaintiff moved for summary judgment dismissing the counterclaim, which the court denied. On appeal, the Appellate Division, 2nd Department, found that although Insurance Law § 3420 does allow for recovery of an unsatisfied judgment, it requires that the injured party demonstrate that they acted diligently in ascertaining the identity of the insurer and then notifying that insurer in an expeditious manner. Here, because Seville failed to act diligently in expeditiously notifying the insurer of the judgment, the appellate court reversed the Supreme Court’s order. Thanks to Josh Gornitsky for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Proof of Regular Inspections Results in Dismissal of Premises Case (NY) January 12, 2017 < Back Share to: In Isaacs v Federated Dept. Stores, Inc., the Second Department recently discussed how regular maintenance and good record keeping can help defendants meet their burden to on issues of constructive notice. The case arises from injuries allegedly sustained by plaintiff while riding an escalator at a Macy’s Department Store in Brooklyn, NY. According to the plaintiff, a broken and protruding piece of metal caught onto her purse strap and caused her to fall. Plaintiff commenced the action against defendant Macy's (Federated Department Stores), who subsequently commenced a third-party action against Thyssenkrupp Elevator Corporation (Thyssenkrupp). Macy's sought indemnification and contribution from Thyssenkrupp on the basis of their contract for escalator repair and maintenance. After discovery, Macy's moved for summary judgment to dismiss the complaint, arguing that it did not have notice of the allegedly dangerous escalator condition. The Supreme Court denied Macy’s motion. On appeal, the Second Department reversed, reasoning that as property owner, Macy's submitted prima facie evidence that it did not create or have actual or constructive notice of the alleged defect. In New York, a defendant is said to have constructive notice of a defect when the defect is visible and apparent and it existed for a “sufficient length of time before the accident that it could have been discovered or corrected.” Accordingly, to meet its burden on the issue of constructive notice, a defendant must offer some evidence regarding the last time the site was inspected prior to the plaintiff’s accident. Macy's proof was specific and persuasive. Through the deposition testimony of a Thyssenkrupp technician and escalator inspection logs, Macy's established that it inspected the escalator regularly and that there were no prior complaints regarding the escalator. In addition, a Macy’s employee testified that he inspected the escalator hours before the plaintiff’s injury and that he did not observe any defect. In opposition, the plaintiff failed to raise a triable issue of fact – i.e., that the alleged condition existed for a long enough period of time to put Macy’s on constructive notice. Accordingly, the Second Department held that the Supreme Court should have granted Macy’s summary judgment motion and dismissed the plaintiff’s complaint. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Time Barred Assault Case Can't Be Revived By New Theory (NY) March 31, 2017 < Back Share to: In Johnson v. City of New York, the Second Department Appellate Division analyzed and applied the longstanding legal doctrine of res judicata to a personal injury case. This doctrine stands for the principle that once a matter has been adjudicated by a competent court it may not be pursued further by the same parties. The plaintiff claimed he was physically injured by a security guard while at a cooperative board meeting in a housing complex in Queens, NY. He filed a lawsuit under the legal theories of assault and battery in Queens County Supreme Court. The Court dismissed the plaintiff’s case because the lawsuit was filed more than one year after the incident, violating the statute of limitations period. In response, the plaintiff filed a new lawsuit claiming a negligence cause of action which has a three year statute of limitations. The defendants moved to dismiss this second lawsuit under the doctrine of res judicata. The trial court granted the motion and dismissed the case. On appeal, the Appellate Division affirmed the Supreme Court’s decision, and explained that under the doctrine of res judicata under New York law, “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” The Court further explained that the negligence cause of action asserted in the plaintiff's second action arose from the same operative facts in the first dismissed assault and battery claims, and could have been raised in the first action. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News "Serious Injury" Threshold Addressed January 28, 2009 < Back Share to: In order to maintain an action arising from an automobile accident, a New York plaintiff must prove that he has suffered a "serious injury" as defined in the State Insurance Law. Failure to meet this burden results in dismissal of plaintiff's case. In Delfino v. Luzon, plaintiff claimed to have suffered a "serious injury" to his left shoulder and lumbar spine. The defendant moved for summary judgment and submitted an affirmation from a radiologist who reviewed MRI films (and not just the reports) of the plaintiff’s shoulder and lumbar spine, and found normal structures with only degenerative defects. The defendant also submitted an affirmation from an orthopedist, who conducted a physical examination of plaintiff and found full range of motion. The orthopedist further concluded that plaintiff’s operation on his left shoulder, which occurred shortly after the accident, was performed in order to correct a congenital condition. In opposition, plaintiff submitted an affirmation from a non-treating physiatrist who listed specific numeric losses of range of motion, but failed to describe what tests were used or any objective basis to substantiate his assessments. The Court found the plaintiff’s affirmation lacked objective findings and failed to address the findings of defendant’s experts that plaintiff’s conditions were congenital. The Appellate Division ultimately reversed the lower court’s decision denying defendant’s motion for summary judgment and dismissed the complaint. Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_00317.htm Previous Next Contact

Charles N. Frank Associate Pennsylvania cfrank@wcmlaw.com 267 518 8380 Professional Experience Charles Frank litigates general liability cases, including personal injury, property damage, and premises liability cases. He works on all aspects of cases, including drafting pleadings and motions, attending depositions, and performing legal research. Prior to joining WCM, he served as a research assistant for the Honorable Daniel J. Anders for his Pennsylvania Criminal Trial Practice Treatise, published by LexisNexis. Charles also worked as a law clerk at Goldberg, Miller & Rubin P.C. As a law clerk, he gained experience in areas such as general liability, medical malpractice, automobile negligence, and professional liability. During law school, Charles performed pro bono work for the Christian Legal Clinics’ Tangled Title Clinic, assisting low income Philadelphians with acquiring title to their homes. Charles also assisted with drafting wills and other end-of-life documents for the Clinic’s clients. Charles also participated in the Federal Litigation and Appeals Clinic, where he helped asylum seekers from Africa and South America navigate the immigration and asylum processes. Prior to law school, Charles attended Denison University, where he graduated with a Bachelor of Arts in English Literature, with a History minor. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Thomas R. Kline School of Law at Drexel University B.A., Denison University Bar Admissions Pennsylvania