News WCM Is Pleased To Announce That Lauren Berenbaum Has Been Promoted To Counsel September 30, 2021 < Back Share to: With effect as of October 1, 2021, WCM is pleased to announce that Lauren Berenbaum has been promoted to the rank of counsel. A graduate of Villanova University School of Law and Emory University, Lauren is based in WCM’s Philadelphia office. She focuses her practice on coverage work in Pennsylvania, New Jersey, and New York. Lauren started with WCM as a first-year attorney. Previous Next Contact

News Hidden Danger in PA December 9, 2022 < Back Share to: In McPeak v. Direct Outdoor Products, LLC, 2022 WL 4369966 (E.D. Pa. Sept. 20, 2022), plaintiffs brought a personal injury action against defendants after plaintiff fell twenty feet to the ground when the steel cables attached to defendants’ hunting tree stand broke beneath him. The occurring corrosion of the cables was obstructed by the black polymer coating on the entire exterior of the cable. The Court found that plaintiffs’ design defect claim survived the consumer expectation test because a factfinder could find that the dangers of the corroded cables breaking were unknowable or unacceptable to the average ordinary consumer, considering the product’s design allowed corrosion to be hidden by the product’s opaque coating. The Court added that the consumer expectation test also does not require proof of an alternate design. This case stands for the proposition that manufacturers of products must consider feasible solutions like prominent warnings or utilizing anti-corrosive materials to protect their products. Thanks to Sarah Polacek for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Summary Judgment Without Deposition discovery Permitted In NY Labor Law Case September 9, 2022 < Back Share to: Courts often deny early summary judgment motions on the basis that they are premature pending completion of discovery on the issues in dispute. In Lapota v. PPC Commercial, LLC, the Appellate Division, First Department took a different approach in examining a trial court’s decision to deny plaintiff’s early motion for summary judgment as to his Labor Law §240 (1) claim against the defendant. The Court based its determination on affidavits of the plaintiff and his co-worker which stated that plaintiff’s accident occurred when an unstable ladder he was using, which was missing rubber feet, shifted and caused plaintiff to fall. The work performed by the plaintiff was covered under Labor Law section 240 (1). In reversing the lower court’s decision, the First Department rejected defendant’s argument that plaintiff’s motion was premature since depositions had not been taken. The Court reasoned that though depositions were not taken, summary judgment was not precluded since the defendant failed to show that discovery might lead to facts that would support its opposition to the motion and that facts essential to its opposition were exclusively within the knowledge of the plaintiff. The Court did not agree with defendant’s argument that plaintiff’s deposition testimony might further illuminate issues raised by the affidavits. The Court reasoned that mere hope that evidence sufficient to defeat summary judgment may be uncovered during discovery was insufficient to defeat summary judgment. This case serves as a reminder of the vulnerability of defendants under the Labor Law and the importance of conducting prompt discovery in Labor Law cases where the possibility of early motion practice exists. Please contact John Diffley with any questions. Previous Next Contact

News It Wasn’t the Pig’s Fault September 13, 2024 < Back Share to: In Bristol v. Biser , Plaintiff and her family were forced to evacuate their apartment building due to a fire allegedly caused by the building superintendent roasting a pig in the basement. Plaintiff and her family left the apartment building, waited in their car and then moved the car. While walking back to the apartment building, she slipped and fell on an icy condition in front of a house. Bristol v. Biser , No. 2020–03287, 2024 WL 4139211 (2d Dep’t Sept. 11, 2024). Plaintiff sued Lenox180, LLC, the owners of her apartment building, and the owners of the house, alleging, inter alia , claims of negligence and negligent infliction of emotional distress. Summary judgment was granted in favor of the defendants. On appeal, the Second Department upheld the trial court’s findings as to both causation and notice. As for causation, when moving for summary judgment in a negligence action, the defendant has “the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident.” Id. , at *2 (citations omitted). While proximate cause is generally an issue of fact for a jury, it may be determined as a matter of law where “a defendant's negligence merely created the opportunity for, but did not cause, the event that resulted in harm.” Id. (citations omitted). The Court found the roasting of the pig in the basement of the apartment building was not the proximate cause of the fall, as “the risk created by the original [alleged] negligence was not the risk that materialized into harm.” Id. (citation omitted). Here, when Plaintiff fell, she had already left the apartment building, waited in her car, moved her car and was walking back to the apartment. Accordingly, Lenox180’s negligence had ceased at that point. With respect to the slip and fall, the Court agreed with the trial court that the homeowners sufficiently established they did not create the condition nor had any constructive notice of it. Id. This decision serves as a reminder to gather as much evidence as possible in discovery, use it to your advantage and be aggressive in filing motions for summary judgment when the evidence so warrants. Bristol v. Biser .pdf Download PDF • 148KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

News Independent Contractor: How Much Control is too Much? (PA) September 12, 2019 < Back Share to: The Superior Court of Pennsylvania recently affirmed a grant of summary judgement in favor of The Columbia Gas Company of Pennsylvania in Main v. The Columbia Gas Company of Pennsylvania. The Court reaffirmed that employers must do more than just give suggestions or advice to independent contractors to be held liable for their negligence. Columbia Gas owns natural gas lines that services residential communities. When these lines become clogged, Columbia contracts with The Fishel Company to clear them. While conducting the clearing process, Robert Main, an employee of Fishel, was injured by his coworker. Main alleged that Columbia was negligent by not training Fishel employees on proper safety procedures. Columbia asserted that it neither supervised nor directed Fishel’s work on the gas lines. Columbia filed a motion for summary judgement. The trial court granted the motion in favor of Columbia because an employer of an independent contractor is generally not liable for harm caused by an independent contractor’s negligence. Main filed a petition for reconsideration arguing that Columbia falls within the retained control exception. Main argued that Columbia should be vicariously liable because Columbia retained control over how Fishel employees conducted the clearing process. The court, citing the Pennsylvania Supreme Court, stated that the retained control exception does not apply here because the contract only conferred Columbia with limited control over how Fishel performed the clearing. The court also stated that Columbia merely exercised its right to inspect progress and to make suggestions rather than control the manner or method of work. This case emphasizes the fine line between an employee and an independent contractor. A court might hold the employer accountable for the independent contractor’s negligence depending on how much control the employer asserts on the independent contractor. This opinion also stresses the importance of a clear contract between the employer and the independent contractor to clear up ambiguity. Thanks to Nicholas Wright for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

E. Alexis Bevis Partner Louisiana abevis@wcmlaw.com +1 504 291-2360 Professional Experience Alexis regularly handles cases in state and federal courts in Louisiana. Alexis’ primary areas of practice are defense of general casualty lines carriers focusing on casualty, commercial, and complex litigation in the fields of energy, manufacturing, highway engineering, transportation, construction negligence, premises liability, products liability, medical malpractice, cyber litigation, catastrophic loss, and coverage opinions. A snapshot of cases she has defended: • Successful defense of several premises liability claims regarding alleged parking lot and/or ingress and egress defects, as well as alleged defects within grocery stores and apartment complexes. • Successful defense of multiple cases involving alleged negligence by employees of family-owned tow truck companies on all types of Louisiana roadways. • Successful defense of alleged apartment complex negligence in the shooting deaths of two alleged visitors. • Successful defense of pile-driving activities that allegedly caused defects to adjacent property. • Successful defense of in excess of one-hundred-million-dollar exposure subrogation action against insurer of dissolved inspection company alleged to have been responsible for petroleum refinery fire and explosion. • Successful defense of child placement service for wrongful death of infant. • Successful defense of multi-million dollar exposure claim against engineering consultant alleged to have been responsible for the misperforation and failed recompletion of an oil well. • Successful defense of various State of Louisiana correctional facilities against claims of negligent bodily injury. • Successful defense of family services entity for molestation claims of two minors. • Successful defense of facility for the developmentally disabled for alleged rape claim of a developmentally disabled consumer by another developmentally disabled consumer. • Successful summary judgment upholding statutory employer defense on behalf of owner of multi-million dollar revitalization project. Professional Activities Louisiana State Bar Association New Orleans Bar Association News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., Loyola University College of Law B.A., The Pennsylvania State University Bar Admissions Louisiana Court Admissions U.S. District Court Eastern District of Louisiana U.S. District Court Middle District of Louisiana U.S. District Court Western District of Louisiana U.S. District Court Northern District of Florida

News Are Experts Needed for Res Ipsa Cases? February 7, 2013 < Back Share to: The New Jersey Appellate Division recently handed down a decision that clarifies when expert testimony is required in res ipsa loquitur cases, and when the doctrine may be applied. In certain cases where the cause of an accident is not entirely clear, this doctrine allows a permissive presumption that a defendant breached a duty of care owed to a plaintiff based upon how an accident occurred, provided certain required factors are present. The jury is then free to accept or reject the presumption. In Mayer v. Once Upon A Rose, Inc., the plaintiff, a caterer, claimed that he had been injured while setting up for an engagement party. The defendant, an employee of a florist who was also setting up a display for the engagement party, was carrying a heavy vase that the florist had used on several previous occasions. The plaintiff and defendant set forth different versions of how the defendant was holding the vase at the time the accident occurred. However, the uncontroverted evidence was that the vase shattered while the defendant was holding it, and that the plaintiff was cut by shards of glass from the broken vase. At trial, the plaintiff did not present an expert on the issue of how the glass vase shattered, arguing res ipsa allowed jurors to presume defendant must have been negligent in some way for the vase to have shattered. The court granted a motion for a directed verdict made by the defendant at the end of the plaintiff’s case, finding the failure to present expert testimony on the issue was fatal to the plaintiff’s case. The trial judge also opined that it was unclear whether res ipsa loquitur applied to these circumstances. On review, the New Jersey Appellate Division reversed the order for a directed verdict and remanded the matter for a new trial. The Appellate Division, citing New Jersey Supreme Court precedent, stated that expert testimony is not necessary in all cases where the res ipsa loquitur doctrine is invoked. In fact, as long as, based upon common knowledge, the balance of the probabilities in the case favors negligence on the part of the defendant, expert testimony is not necessary. In essence, if the average juror is able to deduce how the accident occurred without needing to resort to specialized knowledge, then expert testimony is not required. Additionally, because this case involved a glass vase that was in the exclusive control of the defendant, the Appellate Division held that the doctrine of res ipsa loquitur could apply to these circumstances. The jury would be permitted to infer that the defendant was somehow negligent, causing the vase to shatter. The Mayer decision demonstrates that, much like in other areas of the law, expert testimony is only required in cases invoking the doctrine of res ipsa loquitur when the subject matter falls outside the ken of the average juror. 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 WCM Wins SJ on Horseback Riding Case July 11, 2024 < Back Share to: WCM's Long Island office had a recent summary judgment victory on the case Shelley Headley v. Alana Payne et al with a successful motion filed by counsel Patrick Argento with guidance of supervising partner Gina Arnedos . This case involved a Plaintiff with 50 years of horseback riding who fell off of a horse owned by our clients, owners of Payne Farm. Patrick successfully persuaded the judge that no triable or material issues of fact existed as under both the Plaintiff’s version and our clients’ version, Plaintiff clearly assumed the inherent risk of riding a horse. In both versions, Plaintiff ignored not one but two opportunities to wear a helmet, either her own which she could have brought or one of the many the farm had available to borrow. She also presented herself as an expert rider and openly acknowledged that getting knocked off a horse is an inherent risk of horseback riding and that even the most well-trained horse can buck for almost any reason. This position was only strengthened by our expert Greg Coulson. Coulson’s expert affidavit clearly laid out how Plaintiff assumed the inherent risk of horseback riding and our clients did not increase that risk in any way. Plaintiff, in their opposition, failed to raise a triable issue of fact of any kind as the judge noted all the arguments they raised were limited to speculation and conjecture. Patrick’s victory on this motion is a huge win as Plaintiff claimed several significant injuries, including a traumatic brain injury, which could have led to massive exposure to the clients. Patrick’s hard work on this motion and the guidance provided to him by Gina led to a big win for our clients. For any questions about WCM's defense of equine claims, other sports-related accidents, contact Gina at garnedos@wcmlaw.com . Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Gina M. Arnedos Gina M. Arnedos Partner +1 516 873 0011 garnedos@wcmlaw.com Contact

News Treating Physicians Can Be Retained as Experts in Similar Litigation in New Jersey June 6, 2012 < Back Share to: In In Re Pelvic Mesh/Gynecare Litigation, several hundred plaintiffs filed suit individually inNew Jersey against Johnson & Johnson and Ethicon, Inc. for injuries allegedly caused by the pelvic mesh devices J&J manufactured and sold. In retaining expert witnesses, the defendants proposed a set of protective measures to ensure that counsel would not utilize physicians as experts in those cases brought by their respective patients. Nevertheless, theAtlanticCounty trial court assigned to jointly manage the litigation entered an order barring the defendants from consulting with or retaining physicians who had at any time treated any of the plaintiffs even for those cases involving a different plaintiff. In so ordering, the Law Division held that allowing physicians to render an opinion on the litigation would impinge upon the doctor-patient relationship and be harmful to the plaintiffs’ “litigation interests.” The defendants sought leave to appeal and the Appellate Division reversed, noting a distinction between the plaintiffs’ “litigation interests” and “medical interests.” The court explained that a physician’s duty to a patient is not defined by the substantive position she may take on litigation, but rather the treatment she provides. Moreover, such a sweeping restriction would unfairly disadvantage the defendants by denying them access to the best-qualified experts in the field. For example, as of the date of the appeal, there were nearly 450 plaintiffs and about 1,300 treating physicians, potentially conflicting many highly qualified experts from J&J’s retention. Instead, Appellate Division reversed and found that the defendants’ protective measures struck an adequate balance between the parties’ interest in allowing the retention of physician-experts and safeguarding plaintiff’s privacy rights. Thanks to law clerk Adam Gomez for this post. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News CGL "Leased Worker" Not Ambiguous Not Illusory (PA) February 18, 2016 < Back Share to: In Westfield Insurance Company v. Astra Foods, Inc.,the Superior Court of Pennsylvania decided, on appeal, that a “leased worker” exclusion in an insurance policy was not void as against public policy. In 2009, Castillo Ramos (“Ramos”) was employed by BK Packaging Services, Inc. (“BK”) at a facility operated by Astra Foods, Inc. (“Astra”), when he suffered a severe injury to his hand and arm, while cleaning an exhaust fan. Westfield Insurance had issued both commercial general liability and worker’s compensation policies to Astra. After his injury, Ramos filed a workers compensation claim against Astra. Westfield denied it owed coverage to Ramos as he was not an Astra employee. In 2012, the workers compensation judge agreed and made a specific finding that Ramos was employed by BK and was not a “borrowed employee” of Astra within the meaning of the workers compensation statute. Thus, there was no coverage for Ramos’ injuries under Astra’s Westfield Policy. Ramos then filed civil litigation against Astra. After a June 2013 jury verdict awarded Ramos $763,413 for his injuries, Westfield filed a declaratory judgment action, arguing that the CGL policy did not cover the incident. Specifically, Westfield argued that the “employer’s liability” policy exclusion provision of the CGL Policy applied to the case, barring Astra from obtaining defense and indemnity in the underlying action because Ramos was an Astra “employee” by virtue of the definition of a “leased worker” under the CGL policy. Westfield and Astra filed cross motions for summary judgment and the trial court granted summary judgment to Westfield, denying Astra’s cross-motion. Astra appealed arguing that the court had completely disregarded the finding in the workers compensation case that Ramos was not a “borrowed employee.” Astra noted that Westfield had participated in that proceeding and should be barred from re-litigating the issue. In upholding summary judgment for the insurer, the appellate court disagreed. Specifically, the court scrutinized the definition of “borrowed employee” (at issue in the workers compensation proceeding) and found it to be completely distinct from the definition of a “leased worker” (defined in the Policy). The court stated that “a cursory look at the elements of the doctrine of a borrowed employee and the contractual definition of a leased worker reveals glaring differences between the two,” and concluded that the issue of a leased worker under the CGL Policy was never properly before the workers compensation judge because the CGL Policy was not at issue in that proceeding. Astra also argued that the employer’s liability exclusion provided only illusory coverage. The court rejected this as well. The court reasoned that courts must give plain meaning to the language in unambiguous contracts. Only where a dominant State policy is at issue will a court invalidate such contractual language. Astra did not argue that the employer’s liability exclusion was ambiguous. Rather , it simply argued that in this case, the language foreclosed coverage for claims of employees as defined to include leased employees. Astra did not argue that it purchased the CGL policy principally to insulate itself from personal injuries by workers who were not direct employees. Nor did it allege that the employer’s liability exclusion “operates to foreclose the majority of expected claims” under the CGL Policy. In essence, Astra argued only that the CGL exclusion rendered the policy illusory because of its application to the factual circumstance of the Ramos case. The court held that since Westfield was not required to offer coverage for claims by workers not directly employed by Astra, the company did not specifically purchase the policy for this purpose, and the vast majority of expected claims would be unimpacted by this exclusion, the policy was not illusory. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact