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News PA Senate Bill 1222: Peer-to-Peer Carsharing And Insurance Implications July 22, 2022 < Back Share to: A new law was introduced in the House Appropriations Committee as an amendment to Senate Bill 1222 and officially became law on July 11th. The amendment outlines the coverage requirements for companies engaging in peer-to-peer carsharing, mandating an additional layer of insurance so injured third parties won’t be left uninsured if a car owner’s policy includes exceptions for livery, or business activities. Peer to peer carsharing is the process of renting vehicles from other people rather than traditional car rental companies. It has been coined “AirBnB for cars” and provides many benefits including lower prices and more variety in vehicle choices. The fledgling industry is not without complications, primarily on the insurance and regulatory fronts. Chief among the insurance issues is that some carsharing networks’ fine print says a renter’s personal auto policy would be the primary source for paying claims, even though most personal policies typically exclude renting or driving car-sharing vehicles from coverage. Some attorneys have noted the amendment is similar in substance to another proposed bill on the topic – Senate Bill 548. The bill, introduced in April 2021, was aimed at putting carshare companies on a more equal footing with car rental companies and to ensure additional protections for owners, drivers and third parties now that carsharing is on the rise. From the defense and carrier standpoint, the new law does not invalidate exclusions that are already in place, and it requires carsharing companies to provide coverage that would otherwise be out of bounds under the owner’s policy. However, litigators on the plaintiffs side have raised questions about the measure’s effectiveness in protecting the parties. Some have expressed concerns that because consumers’ personal auto insurance may contain an exclusion, they may be forced to rent these cars using the companies’ minimum insurance policies, which likely won’t provide adequate coverage in the event of an accident. One thing lawyers on both sides of the issue can agree on is that these new disputes will be headed to the courts. Thanks to Sydney Kockler for her contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact

News Are You Exaggerating? March 22, 2019 < Back Share to: The New Jersey Supreme Court recently reversed the categorical ban on the use of certain medical terminology during trial. Specifically, in Rodriguez v. Wal-Mart Stores, Inc., the Court grappled with the use of the terms somatization and symptom magnification during trial. The case arose from an incident at Wal-Mart that allegedly caused plaintiff to suffer a wrist injury. She sought treatment and eventually had surgery, but she still complained of pain in her wrist. At trial, defense counsel produced two expert witnesses who opined that plaintiff was somaticizing in response to plaintiff’s experts who opined that plaintiff was suffering from Chronic Regional Pain Syndrome. Somatization is “the production of recurrent and multiple medical symptoms with no discernible organic cause”. One of the defendant’s experts also opined that plaintiff was magnifying her symptoms. Symptom magnification is the reporting of a symptom that seems to be excessive compared to what should be reported in a given situation for most individuals. The trial judge allowed the testimony and the jury returned a defense verdict. Plaintiff appealed prompting the Appellate Division to impose a categorical ban on the terms somatization and symptom magnification since those terms, according to the Appellate Division, implied that a plaintiff was a malingerer, someone who exaggerates or outright feigns an illness or condition. The Supreme Court of New Jersey reversed. It concluded somatization and symptom magnification are medical terms that may be relevant in a specific case. The terms are not unduly prejudicial since they are not defined as involving dishonesty for financial gain. The Supreme Court tasked the courts with determining whether use of the terms are relevant and not unduly prejudicial while tasking the jury with determining credibility issues. Accordingly, this case illustrates parties can continue to use these terms, so long as they establish their relevance, as well as no prejudice will be suffered. Thanks to Michael Noblett for his contribution to this post. Please email Colleen Hayes with any questions at chayes@wcmlaw.com Previous Next Contact

News In Defense Of Diligence: Second Department Stresses Timely Inspections For Alleged Defects March 8, 2024 < Back Share to: Recently, in Vazquez v. Fordham University , 2024 N.Y. Slip Op. 01124, the Second Department ruled on a plaintiff’s appeal, after the lower court granted summary judgment in favor of premises owner defendant. Plaintiff alleged a trip and fall, where she fell down a flight of steps, which she attributed to a light outage which prevented her from seeing the unevenness of the steps she was traversing. In moving for summary judgment, defendant argued that they lacked actual or constructive notice of the light outage, and admitted a report compiled by an expert who examined the stairs at issue in an attempt to argue that the alleged defect was trivial. The Second Department reversed the lower court’s granting of summary judgment to defendants. Although the court agreed with defendant that they lacked both actual and constructive notice of the light outage, the court disagreed with their argument that the condition of the defective steps was trivial. The court noted that the main support defendants used in arguing the defect was trivial was an expert report. However, according to the court, “the report by [defendant’s] expert had no probative value because the expert did not examine the steps until more than three years after plaintiff’s accident.” Because of this long time-difference between plaintiff’s accident and defendant’s expert report, defendant failed to demonstrate, prima facie , that the alleged defect was trivial, and thus plaintiff’s claim was reinstated. This case serves as a reminder of the importance of quickly organizing an inspection of an alleged defect shortly after an alleged accident. Otherwise, the court will severely discount the probative value of an inspection conducted much later after the accident. Vasquez v. Fordham University .pdf Download PDF • 137KB Previous Next Contact

News US to Increase E. Coli Tests in Some Raw Beef Products. June 1, 2012 < Back Share to: Effective next week, the US Agriculture Department will be expanding its testing for E. coli in some (but not all) raw beef products. The new tests will test for six additional strains of E. coli that produce the so-called Shiga toxin — O26, O45, O103, O111, O121 and O145. They will also continue to test for the better known E. coli — as well as the better known O157:H7. This new testing paradigm follows on the heels of a report that the FDA denied a petition by the Corn Refiners Association to change the name of the sweetener high-fructose corn syrup to corn sugar on nutrition labels. A sign of governmental toughening, or just a momentary blip? We should get a better sense when (if?) the new FSMA draft regulations are finally posted for comment. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Failure To Timely Pay Premium May Not Bar Coverage October 31, 2016 < Back Share to: Failure to timely pay premium may not act as a bar coverage. In Infinity Select Ins. Co. v. Tarrie Fleming, the insured struck and killed a pedestrian while driving at approximately 11 p.m. on October 4, 2013. The insured had previously been insured under a policy issued by Infinity. However, the Infinity policy was cancelled at 12:01 a.m. on October 4, 2013 for nonpayment of premium. On October 5, 2013, at approximately 2:34 p.m., the insured made an online premium payment. The policy was reinstated “without lapse”. Infinity sued its insured seeking a declaration that it did not owe coverage for the accident, since, the policy had been cancelled at the time of the accident, and the premium was not paid until after the accident. Infinity argued that other courts ruled that an insurer has no duty of coverage where an accident occurs during the time period when a policy was suspended for nonpayment of premium. The Pennsylvania Superior Court determined that Infinity could not rely on this as a basis to deny coverage, as Infinity had decided to reinstate its insured’s policy “without lapse”. Since Infinity conceded that it reinstated its insured policy “without lapse”, the court reasoned there was no defaulted period upon which Infinity could deny coverage. This case reveals that an insurer’s reinstatement of a policy, without lapse, may estop the insurer from later claiming there was no coverage during the time period in which a policy was cancelled for nonpayment but before the outstanding premium payment was made by the insured. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News NY Civil Trial Practice Update: Admissibility of Uncertified Police Reports November 25, 2020 < Back Share to: The Appellate Division of the Supreme Court of New York, Second Department’s recent ruling in Yassin v. Blackman, 188 A.D.3d 62 (2d Dep’t 2020) abrogates prior case law, which had previously held a party’s admission in an uncertified police report was admissible. Following Yassin, an uncertified police accident report no longer constitutes admissible evidence, absent a proper foundation for its admissibility. The Yassin Court, however, specifically noted that its holding involved a situation where a party affirmatively proffered an uncertified police accident report in support of a motion for summary judgment. By way of background, Yassin involved a personal injury action, wherein plaintiff alleged his taxi was negligently struck by a truck (owned and operated by separate defendants). The Supreme Court, Kings County granted plaintiff’s summary judgment motion on liability, supported by plaintiff’s affidavit and a copy of an uncertified police report. In brief, plaintiff’s affidavit averred he did not jut in front of the truck, in any fashion, but was stopped at a traffic light for a few seconds when he was rear-ended. The uncertified police accident report contained the trucker’s alleged admission that he side-swiped plaintiff’s taxi in an attempted pass. The trucker’s affidavit was submitted in opposition, essentially claiming plaintiff’s taxi was double-parked, but then cut off the trucker. On appeal, defendants contended the trucker’s affidavit raised a triable issue of fact as to whether plaintiff’s taxi cut off the truck. Plaintiff responded that the trucker’s affidavit should be disregarded as a feigned attempt to avoid the consequences of his admission contained in the police accident report. In reply, defendants argued, inter alia, the police accident report was inadmissible because it was not certified. The Appellate Division, Second Department reversed the trial court’s summary judgment order concluding triable questions of fact remained as to the trucker’s negligence. The Court discussed that statements recorded in police accident reports involve two levels of hearsay, each of which must satisfy a hearsay exception to render the statement in the report admissible. First, the report itself must be admissible. Properly certified police reports are admissible where the report is based upon the officer’s personal observations while carrying out police duties. CPLR 4518 (c) provides that the foundation for the admissibility of police reports (and other state records) may be laid through a proper certification. CPLR 4518 (c) is governed by the same standards as the business record exception. Thus, the certification must set forth the record was made in the regular course and it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event – or within a reasonable time, thereafter. Second, assuming there is a properly certified police accident report, the statement(s) contained within the report must satisfy a separate hearsay exception. Thus, the Court concluded that since the police report was not certified to begin with, and since a foundation for its admissibility had not been laid by some other method, the report and its contents constituted inadmissible hearsay. While it is true a party’s admission is an exception to the hearsay rule, the Court declared that a party’s admission contained within a police accident report may not be bootstrapped into evidence in this fashion. To avoid the evidentiary issues discussed in Yassin, New York trial practitioners seeking to proffer police accident reports and other business records should ensure these documents are certified. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News WCM Wins Coverage Contest Against the City of New York April 1, 2016 < Back Share to: On a cold February 2011 morning, Frank Gunther was performing his security duties for the FDNY at a Staten Island firehouse when he allegedly slipped and fell on a temporary walkway. Gunther sued the City of New York, who tendered its defense to Security Fence Systems, Inc. who was responsible for snow removal, and Security Fence's insurer, XL Catlin. The policy identified the City as an additional insured -- but only for a single designated location: 9 Metro Tech Center, Brooklyn, NY. XL Catlin denied the tender, because that was not the location where the accident took place. The City settled the underlying action with Gunther for $750,000 and filed a declaratory judgment action, seeking reimbursement for this settlement (plus interest) from XL Catlin and Security Fence. WCM Partner Michael Bono and Counsel Steven Kaye moved for pre-discovery summary judgment, arguing that the additional insured endorsement limited coverage to a single location and because the accident occurred elsewhere, XL Catlin properly disclaimed coverage. The City argued it was entitled to coverage because the named location was the FDNY's headquarters -- a location where Security Fence did not even perform services. The Court agreed and awarded XL Catlin summary judgment. Thanks to Steve Kaye for his contribution to this post and please write to Mike Bono for more information.   Previous Next Contact

News Fixing a Hole – First Department Reverses Defense Verdict in Sinkhole Case (NY) June 29, 2017 < Back Share to: In Gonzalez v City of New York, (2017 NY Slip Op 05180), the First Department recently held that a Bronx trial court’s erroneous evidentiary decisions improperly resulted in a directed verdict for the defense. Plaintiff alleges he was injured when he fell into a sinkhole while walking across a public street in the Bronx, and that the area immediately surrounding the sinkhole was mushy and wet. Further, there was evidence showing that two weeks prior to his accident, a nearby water main burst. The City repaired the water main and then third-party defendant Halcyon Construction Corp. back-filled the hole. At trial, plaintiff claimed the repair work by the City and Halcyon resulted in the sinkhole. At trial, the court precluded plaintiff from introducing photographs of the sinkhole into evidence. As those photographs were taken two weeks after the plaintiff’s alleged accident, the court found that they did not fairly and accurately depict the actual site. Plaintiff also tried to introduce the City’s road and highway specifications, arguing that because the specifications were incorporated into the contract between the City and Halcyon, they were relevant to defendants’ negligence. Again, the court precluded the plaintiff’s evidence, finding that the plaintiff failed to demonstrate that the specifications were anything other than “inadmissible internal rules, which would improperly create a standard of care higher than the one imposed by the common law.” At the end of plaintiff’s case-in-chief, both the City and Halcyon moved for a directed verdict. The court found that there was insufficient evidence to find that either entity created the sinkhole, so it granted both motions. The plaintiff then moved to set aside the directed verdict, arguing that the court erred in precluding admissible evidence. Not surprisingly, the trial court denied the plaintiff’s motion. On appeal, the First Department held that the trial court erred in precluding plaintiff’s photographs of the accident site, even though they were taken two weeks after the accident. Of note, the First Department found that the plaintiff authenticated the photographs at his deposition, and other testimony at trial could have explained whether and to what extent the photographs depicted the accident site. Essentially, by precluding the photographs, the plaintiff was unable to show the jury the hole that he allegedly fell into. Further, the First Department held that the trial court erred in precluding the plaintiff from introducing the City’s road and highway specifications that were incorporated into its contract with Halcyon. As they applied both to the direct defendant (the City) and the third-party defendant (Halcyon), the First Department found that the specifications were admissible as potential evidence of the defendants’ negligence. As the trial court precluded the very evidence that plaintiff needed to argue the defendants’ negligence – the basis upon which the trial court granted the directed verdict – the First Department reversed the directed verdict. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News New Jersey Supreme Court Weighs UIM Issues June 19, 2009 < Back Share to: In Bardis v. First Trenton Insurance Company, plaintiff John Bardis was injured when his automobile was involved in a three car accident caused when a vehicle driven by Joseph Bologna hit the vehicle behind plaintiff’s, pushing it forward. At the time of the accident, plaintiff was insured by defendant First Trenton Insurance Company. Bardis included First Trenton in the litigation under an UIM theory for costs beyond Bologna's insurance coverage. Three issues were raised: (1) whether, in a jury trial arising out of Underinsured Motorist (UIM) coverage, the insurer should be identified as the defendant, (2) whether in the UIM trial, evidence that the insurer authorized payment of Personal Injury Protection (PIP) benefits is relevant to whether there is a causal connection between the accident and the claimed injuries, and (3) whether in the unusual circumstances of this dispute, the UIM carrier’s disavowal of knowledge of the source of payments for the medical treatment of plaintiff’s injuries deprived plaintiff of a fair trial. The Supreme Court concluded that (1) there are strong reasons supporting the rule that the UIM litigation proceed in the name of the tortfeasor rather than the insurer, (2) payment of PIP benefits for treatment of an injury is irrelevant to the question of causation of that injury, and (3) the trial court’s error in admitting evidence of PIP payments led to the use of a stipulation identifying an employee of the insurer as having authorized those payments, and to the closing argument by counsel disavowing both his own and the actual tortfeasor’s knowledge about that employee and her decisions. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/supreme/A-110-07.pdf Previous Next Contact

News WCM Associate Elected to Executive Committee of the Young Lawyers Division of the Philadelphia Bar Association December 10, 2016 < Back Share to: WCM Philadelphi senior associate Hillary N. Ladov recently won a contested election to serve on the Executive Committee of the Young Lawyers Division (YLD) of the Philadelphia Bar Association. The YLD Executive Committee manages and directs the business and activities of the YLD's more than 2,900 members, and has oversight of 20 committees in the areas of public service, law-related education and service to the legal community. Most recently, the YLD hosted a free expungement clinic that assisted nearly 2,000 applicants with expunging or sealing prior arrests or convictions from their records. Hillary looks forward to continuing the important work of the YLD during her three year term. The Philadelphia Bar Association, founded in 1802, is the oldest association of lawyers in the United States. Attorneys, judges and politicians alike look to the Philadelphia Bar Association for guidance on controversial legal issues and for an organized meeting ground for professional support and information sharing. Non-lawyers of the Philadelphia community count on, and look to, the Philadelphia Bar Association for general information on how to address their legal issues and where they can go to find additional information and help. With more than 200 years of dedicated service to stand on, the Philadelphia Bar Association is firmly rooted in the Philadelphia community as a steady and reliable bellwether. Previous Next Contact

News Not All Cleaning is Protected by the New York Labor Law February 22, 2012 < Back Share to: One of the most feared statutes to New York Contractors and their insurers is New York Labor Law §240 (1) (the “Scaffold law”). Under Section 240, an owner and general contractor faces strict liability when an employee falls from a height while involved “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” Though the Labor Law was initially enacted to protect construction workers, throughout the years, courts have extended the protection to non-construction workers. Specifically, in interpreting the term "cleaning," the Court of Appeals has held that it is not limited to cleaning that was "part of a construction, demolition, or repair project." Broggy v. Rockefeller Group, Inc., 8 N.Y.3d 675, 680 (2007). However, in Dahar v. Holland Ladder & Manufacturing Company, No. 23, NYLJ 1202543033849, at *1 (February 21, 2012), the plaintiff asked the Court of Appeals to extend the statute to protect a factory employee engaged in cleaning a manufactured product. In Dahar, the plaintiff was standing on a ladder in a factory cleaning a seven foot high “wall module” that was to be attached to a building wall, where it would provide support for pipes. The ladder broke and plaintiff fell to the ground. Plaintiff argued that he was “cleaning” and that the wall module was a "structure" under the broad definition by the Court of Appeals, as "any production or piece of work artificially built up or composed of parts joined together in some definite manner.” Id. at *4 (internal citations omitted). The Court, however, rejected plaintiff’s argument finding that in all but one case involving “cleaning,” the “cleaning” involved cleaning of building windows (the other case involved cleaning a railroad car). The Court rejected the statute’s application for an injury suffered while cleaning a product in the course of a manufacturing process. The Court further stated that if it extended the statute to plaintiff’s activity, the statute would encompass virtually every "cleaning" of any "structure" in the broadest sense of that term. “Every bookstore employee who climbs a ladder to dust off a bookshelf; every maintenance worker who climbs to a height to clean a light fixture — these and many others would become potential Labor Law §240 (1) plaintiffs.” Thankfully, even NY's Court of Appeals recognizes there must be limits to its labor law generosity. For any questions about this post, please contact Cheryl Fuchs at cfuchs@wcmlaw.com . Previous Next Contact

News What Happens When Your Expert Goes "Missing"? (NJ) April 9, 2013 < Back Share to: Experienced lawyers seek every advantage at trial. Your adversary fails to lay the proper foundation for a document's admission into evidence? Object and seeks its preclusion. A witness is first disclosed on the evidence of trial? Move to bar the witness from testifying at trial. The "adverse inference" or "missing witness" charge is another potent weapon at trial. Requested when an adversary fails to call a witness under his control, this charge advises the jury that it may infer that the testimony of the missing witness would have been adverse to that party's interests. In a close case, it can be used to highlight your adversary's failure to call a key witness under its control and drive home the point that the missing witness' testimony would likely not have helped your opponent's case. Under what circumstances should an "adverse inference" charge be given when a party fails to call an expert witness at trial? Just how far may an attorney go in summation when urging the jury to consider the failure of an adversary to call an expert witness at trial? In Washington v. Perez, the New Jersey Appellate Division gave some guidance on both questions. In Perez, the plaintiff was injured in a bus accident and there were questions about the impact of a prior injury on plaintiff's present condition and just how badly she was hurt in the bus accident. The defense identified two medical experts during discovery, presumably one who examined plaintiff and the other who read the scans and x rays. For reasons never explained, the defense lawyer took an aggressive position in his opening, boldly declaring that the plaintiff was not injured in the bus accident. However, he did not call either medical expert and offered no evidence on plaintiff's alleged lack of injury. The plaintiff's attorney requested and the court gave an "adverse inference" charge based on the defense's failure to call either of its medical experts. Seizing the moment, plaintiff initially highlighted in his summation the defense's failure to call either of its medical experts to dispute plaintiff's medical evidence. Not content with an adverse inference charge, plaintiff also challenged the "candor" of the defense and argued that it "hid evidence from [the jury]..." This tactic was apparently effective because the jury awarded $500,00 for pain and suffering and $242,000 for economic damages in a case involving soft tissue injury. The Appellate Division was critical of the trial court's application of the "missing witness" charge and troubled about the content of plaintiff's summation. Given those cumulative errors, the Appellate Division reversed and remanded for a new trial. Sometimes, attorneys are not content to accept their good fortune -- in this case, that the court gave an "adverse inference" charge-- and stretch the bounds of fair comment. While it remains a powerful weapon, advocates must recognize the limitations of an "adverse witness" charge and avoid undermining their good work by going too far in their advocacy. If you have any questions or comments, please email Paul at pclark@wcmlaw.com       Previous Next Contact