News Feelings or Perceptions: What's Needed in NJ for Emotional Distress? September 24, 2010 < Back Share to: In the case of Hinton v. Meyers, New Jersey’s Appellate Division was confronted with the question of what amount of "sensory, contemporaneous perception" is necessary for a family member to make out an emotional distress claim arising out of a family member’s death or serious injury. Historically, there are four requirements: (1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. In Hinton, Kwaku Boadu Bosompem went with his infant daughter Yaa Ayannah Bosompem and her mother Catrina Briggs to a job interview. While at the interview, he “felt” he heard his daughter scream and cry out in pain. Bosumpem also heard sirens. But, he never left the interview or looked outside the window. It turned out that while at the interview, a vehicle driven by Eileen Meyers had crashed into the daughter’s stroller and killed her. Bosumpem commenced a lawsuit against Meyers and Briggs. He sought emotional distress damages. The Appellate Division was confronted with the question of whether Bosumpem’s “feelings” were sufficient to substantiate the claim. The answer was in the negative. The Court wrote that to support the emotional distress claim Bosompem had to show that he: “had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arises.” Under the facts before it, the Court reasoned that Bosompem failed to meet the “sensory, contemporaneous perception” threshold. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdfserver.amlaw.com/nj/Hinton-a5700-08.pdf Previous Next Contact

News Volunteer or Employee: Who Is Protected by New York Labor Law? (NY) December 30, 2021 < Back Share to: To fall under the class of those protected by the New York Labor Law, a plaintiff must establish that he or she was permitted or “suffered” to work on a building or structure and that they were hired by the owner, contractor, or their agent. Volunteers are generally not entitled to Labor Law protection but what is the difference between an employee and volunteer under the statute? In Garcia v. 13 W. 38, LLC, 73 Misc. 3d 434 (N.Y. Sup. Ct. 2021), a New York trial court recently evaluated this question. Plaintiff in that case was hired by an elevator mechanic employed by Uplift Elevator Corp., to assist him in wiring an elevator. Plaintiff was injured when the mechanic accidentally activated the elevator while plaintiff was standing on top of the elevator cab. Discovery revealed that although plaintiff was compensated for his work and given an Uplift Elevator t-shirt to wear, this was done solely by the mechanic. The mechanic had no authority to hire plaintiff and was acting without his employer’s knowledge or authority in doing so. Defendants moved to dismiss the Complaint on the grounds that the Labor Law did not apply to plaintiff under the circumstances. Based on these facts, the court held that plaintiff had no reasonable basis to believe he was employed by Uplift Elevator and that no employment relationship existed with any owner, contractor, or agent on the job. The court noted that “the fact that plaintiff gained admittance to the worksite does not indicate he was ‘suffered’ to work.” The court found that since no contractual relationship existed between Uplift Elevator and plaintiff, he was considered a volunteer and trespasser with no authority to work on the premises. Accordingly, the court found that he was not entitled to Labor Law protection and dismissed the Complaint. The takeaway from Garcia is that New York Labor Law will not apply in cases involving workplace injuries to volunteers or those not contractually authorized to perform the work. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News US Supreme Court Ruling Lowers Bar For Arbitration Waivers (NY) June 17, 2022 < Back Share to: The Supreme Court of the United States recently ruled against an employer seeking to enforce an arbitration clause in the case of Morgan v. Sundance, Inc. Plaintiff Morgan worked at a Taco Bell franchise owned by defendant and signed an agreement to arbitrate any future employment disputes. However, she later filed a class action lawsuit against the defendant for alleged overtime violations. Following the action, Sundance initially filed a motion to dismiss, which was denied by the District Court, and later participated in an unsuccessful mediation with plaintiff. Defendant did seek to enforce the arbitration agreement until eight months after the lawsuit was filed, moving to stay the lawsuit and compel arbitration. Morgan’s attorneys argued that defendant had waived its right to arbitrate by litigating for an eight-month period. The District Court denied defendant’s motion, but the Eighth Circuit reversed, holding that a party waives their right to arbitration if they (1) knew of the right to arbitrate, (2) acted inconsistently with that right, and (3) prejudiced the other party by their inconsistent actions. The Eighth Circuit found that the second and third elements were not met; particularly that Morgan was not prejudiced by the delay because no discovery was conducted, and she would not need to duplicate efforts for the arbitration. Focusing on the prejudice requirement, the Supreme Court reversed and unanimously held that the lower courts cannot require a showing of prejudice to waive arbitration rights. The Court reasoned that when courts decide waivers, they typically focus on the actions of those who control the rights and not on how those actions affect the opposing party. The Court held that the Federal Arbitration Act was designed to ensure arbitration agreements are enforced like regular contracts and that the Act did not permit, or intend to create, unique rules for waivers. The Court remanded the case back to the District Court to consider the waiver without the prejudice element. The takeaway from Morgan is that a party who delays enforcing an arbitration clause in a franchise agreement or employment contract can lose the right to arbitrate and the party arguing for a waiver may not have to show prejudice from a litigation delay. Parties seeking to arbitrate such disputes should move promptly or risk losing the right to do so. Thank you to Ryan Dame for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Default is not a Total Loss (NY) September 24, 2020 < Back Share to: In a personal injury action, plaintiff Castaldini claims personal injury when a propane tank exploded at the home of defendant Walsh. Upon defendant’s failure to answer, plaintiff’s motion to enter default judgment was granted by the trial court, and the case was sent to inquest for a trial on damages. At the inquest trial, plaintiff testified as to his injury and submitted a written sworn statement by one of his treating physicians. Defendant objected to the admission of the sworn statement arguing that he should be allowed to cross-examine the physician testifying as to plaintiff’s injuries. The trial court admitted the sworn statement into evidence and handed down a judgment totaling $275,000 for plaintiff’s past and future suffering. Defendant appealed to the Second Department arguing plaintiff failed to establish the accident caused his injuries and argued he had a right to cross-examine the physician. The Second Department held in Castaldini v. Walsh, that a defaulting defendant admits all allegations in the Complaint as true, but does not admit the plaintiff’s conclusory statements as to its damages. Once defendant defaulted by failing to answer the Complaint, plaintiff did not need to prove the accident caused his injuries. The purpose of an inquest court is to ascertain the amount of damages. (Gonzalez v Wu, 131 AD3d 1205, 1206; see Rokina Opt. Co., Inc. v Camera King, Inc., 63 NY2d at 730; Arluck v Brezinska, 180 AD3d 634; Jihun Kim v S & M Caterers, Inc.,136 AD3d 755, 756). The Second Department agreed with defendant that he had a right to cross-examine the plaintiff’s physician. Since the inquest is to ascertain damages, and defendant is present at the inquest, then plaintiff must make any treating physicians available for cross-examination. See Reynolds Sec. v Underwriters Bank &Trust Co., 44 NY2d 568, 572. Thus, the trial court should not have admitted the physician’s sworn statement into evidence and the case was remitted back to the trial court for a new inquest on the amount of damages. The key takeaway in this case is that even though a defendant failed in timely answering the complaint, and thus cannot argue causation, a defendant can still, and should, object as to plaintiff’s evidence for damages. Moreover, at that inquest trial for damages, a defendant has the right to cross-examine plaintiff’s treating physicians to contest damages even when in default. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent F. Terrasi with and questions. Previous Next Contact

News No Coverage for Negligent Supervision Claim (PA) October 16, 2020 < Back Share to: In Michele Kahana v. Allstate Vehicle and Property Ins. Co., the U.S. District Court for the Eastern District of Pennsylvania analyzed whether an auto insurer had a duty to defend and indemnify a claim of negligence per se arising out of an auto accident. The claim was asserted against Kahana, the mother of the minor decedent who was struck while walking alone after midnight while dressed in dark clothing. It was asserted that Kahana failed to supervise her minor child, leading to the accident. Kahana subsequently tendered her defense to her auto insurer, GEICO Casualty Insurance (“GEICO”). After GEICO denied her claim for coverage, Kahana commenced the instant action seeking a declaration requiring GEICO to defend and indemnify her with respect to the negligent supervision claim. GEICO filed a motion to dismiss Kahana’s claims, arguing that Kahana failed to state a claim for defense and indemnification under the unambiguous language of the insurance policy. To determine whether the auto policy provided coverage under the policy, the court applied long-standing Pennsylvania principals regarding insurance policy interpretation. In doing so, the court determined that the language of the auto policy was unambiguous. Through this context, the court next analyzed whether the claims in the underlying lawsuit were covered by the policy. The court noted that the claim did not assert that Kahana “owned, maintained, or used a car involved in the fatal collision” as required by the plain and unambiguous language of the auto policy. Therefore, the court granted GEICO’s motion to dismiss. This case is an example of the importance of evaluating the plain language of the policy when determining coverage. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

Wade Clark Mulcahy LLP's Florida office is looking to add 2-3 litigation attorneys, with 2+ years experience, to our team. The office location is West Palm Beach. We are hybrid, with three days per week in the office required. This could fluctuate as in person appearances and depositions are becoming more common. The ideal candidate will manage a litigation caseload, including premises liability, motor vehicle accidents, construction accidents, products liability, property damage claims, wrongful death claims, and the like through trial. Ours is a high volume, high exposure busy trial practice. The firm also have a diverse array of other practice areas, including professional liability, insurance coverage, cyber-liability, and several others. We pride ourselves on collaboration and partnership with clients, and the ideal candidate will be able to implement that gameplan, not only advocating but keeping the client informed along the way. WCM has a collegial atmosphere, a results oriented practice, and is looking for ambition, curiosity, good writing skills, and perhaps most importantly, candidates who care about their work product. Salary range is commensurate with experience. In conjunction with application, please send a resume and writing sample to Rachel Wade (rwade@wcmlaw.com) < Back Associate Attorney Send Resume West Palm Beach, FL, USA Job Type Full Time Workspace Salary Hybrid 100-150k, commensurate with experience About the Role Wade Clark Mulcahy LLP's Florida office is looking to add 2-3 litigation attorneys, with 2+ years experience, to our team. The office location is West Palm Beach. We are hybrid, with three days per week in the office required. This could fluctuate as in person appearances and depositions are becoming more common. The ideal candidate will manage a litigation caseload, including premises liability, motor vehicle accidents, construction accidents, products liability, property damage claims, wrongful death claims, and the like through trial. Ours is a high volume, high exposure busy trial practice. The firm also have a diverse array of other practice areas, including professional liability, insurance coverage, cyber-liability, and several others. We pride ourselves on collaboration and partnership with clients, and the ideal candidate will be able to implement that gameplan, not only advocating but keeping the client informed along the way. WCM has a collegial atmosphere, a results oriented practice, and is looking for ambition, curiosity, good writing skills, and perhaps most importantly, candidates who care about their work product. Salary range is commensurate with experience. In conjunction with application, please send a resume and writing sample to Rachel Wade (rwade@wcmlaw.com ) Requirements About the Company

News Doctor’s Delay In Providing Opposing Affidavit Doesn’t Warrant Threshold Summary Judgment (NY) August 29, 2013 < Back Share to: In Wilson v. Rotondi, the plaintiff was injured in a motor vehicle accident. The defendant moved for summary judgment because the plaintiff did not sustain serious injury as required by the Insurance Law. Plaintiff’s attorney failed to oppose the motion. The motion was initially adjourned to allow plaintiff time to secure a report from the treating neurologist. However, on the adjourn date, plaintiff’s counsel had not obtained the affirmation from the physician to submit to the court. Therefore, the court granted defendant’s motion for summary judgment “on default.” The plaintiff moved to vacate this order and submitted an affidavit from her treating chiropractor. The trial court denied the plaintiff’s motion to vacate finding plaintiff failed to demonstrate a reasonable excuse for the failure to respond or provide a potentially meritorious defense to defendant’s motion. The Second Department reversed the decision. Although the trial court had the discretion to grant the motion on default, the Appellate Division found that plaintiff’s counsel did not exhibit a “pattern of willful neglect.” Rather, the delay was caused by the treating physician who failed to timely provide his report. Therefore, the plaintiff would not be blamed for his client’s doctor’s delay. The Appellate Division then found that the defendant did not establish a prima facie entitlement to summary judgment. This case is a good example of the Appellate Division’s preference to decide cases on the merits. Still, the case does allow attorneys to blame third-parties for a failure to timely oppose a motion. Here, the plaintiff’s counsel neglected the motion and the Appellate Division was unwilling to dismiss the case. Therefore, even if a party fails to timely oppose a motion, an attorney should still request the trial court decide a motion for summary judgment on the merits. Specials thanks to Anne Mulcahy for her contributions to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Residential Property Exclusion Holds Water Following Hurricane (PA) March 11, 2020 < Back Share to: Recently, in Elite Restoration Inc. v. First Mercury Insurance Company, the Eastern District of Pennsylvania considered whether First Mercury Insurance Company (“FMIC”) was entitled to judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) and a declaration that it was not obligated to defend and indemnify Elite Restoration, Inc. (“Elite”) in respect of an underlying claim for property damage. By way of background, while Elite was working on the restoration of a condominium property (“Property”), there was a hurricane, which damaged the Property. Due to the damage and potential that Elite could face liability for the damage, Elite submitted a claim to the Property’s insurer, FMIC. After FMIC denied Elite’s claim, Elite commenced the instant action against FMIC alleging claims for breach of contract and bad faith. In addition, Elite sought a declaratory judgment that FMIC must defend and indemnify Elite from litigation related to the Property damage/claims, FMIC breached its duty to Elite, and Elite may settle or compromise any claims from or related to the Property. In response, FMIC filed a motion for judgment on the pleadings on all counts and a declaration that it does not have a duty to defend or indemnify Elite in respect of the Property claim. FMIC’s motion for judgment on the pleadings stemmed from the relevant policy’s “residential property” exclusion (“Exclusion”), which provides, in pertinent part that “[t]his insurance does not apply to any claim, ‘suit,’ demand or loss that alleges … ‘property damage’ … that … relates to … ‘residential property …”. The Exclusion defines “residential property” as, inter alia, “condominiums”. However, the Exclusion contains an exception that states the Exclusion “does not apply to the following designated exception(s): Single-family dwellings that are not ‘tract homes’, condominiums (as defined by the applicable controlling statute) or ‘townhouse projects.’” In support of its motion, FMIC argued the exception to the Exclusion clause only applies to certain single-family dwellings, a category that does not include condominiums. Elite, however, asserted the exception creates three separate exceptions to the Exclusion for (1) condominiums, (2) townhouse projects, and (3) single-family dwellings that are not ‘tract homes.’ In consideration of Elite’s breach of contract claim through the Court’s well-established standard of review, the Court held that, based on the plain language of the policy, the Exclusion Clause explicitly provides that “condominiums” are excluded from coverage. Accordingly, the Court concluded, as a matter of law, the policy excludes coverage for the Property, and therefore, Elite’s claim. The Court next addressed Elite’s declaratory judgment claim. As the Court determined the policy did not provide coverage for Elite’s claim, the Court held, as a matter of Pennsylvania law, FMIC does not have a duty to defend or indemnify Elite in respect of any third-party lawsuits related to the Property damage. Finally, in regard to Elite’s bad faith claim against FMIC, the Court applied traditional Pennsylvania case law to determine whether FMIC acted in bad faith under 42 Pa.C.S. § 8371. In doing so, the Court considered whether FMIC lacked “a reasonable basis for denying benefits under the policy” and “either knowingly or recklessly disregarded its lack of reasonable basis in denying the claim.” Since the policy did not provide coverage, FMIC did not lack a reasonable basis for denying the claim. Accordingly, the Court granted FMIC’s motion for judgment on the pleadings in its entirety. Ultimately, this case is a reminder of the impact motions for judgment on the pleadings can have on litigation in federal courts, and the significance of the plain language of the policy. Thanks to Lauren Berenbaum for her contribution to this post. If you have any questions or comments, please contact Vincent Terrasi. Previous Next Contact

News NY Court of Appeals Redefines "Arising Out Of." July 18, 2008 < Back Share to: The phrase "arising out of" has long been broadly construed by New York's courts. This has proven beneficial to many a would be additional insured. Unfortunately, the party may be about to stop. In the case of Worth v. Admiral, et al. (May 1, 2008), the Supreme Court was confronted with a situation in which a general contractor and would-be additional insured sought coverage from the subcontractor and named insured's insurer. The general contractor argued that even though it had conceded that the subcontractor's work was not negligent, the underlying personal injury action "arose" from the subcontractor's work and therefore it was entitled to coverage. The First Department agreed and ordered the subcontractor's carrier to provide coverage. The Court of Appeals, however, disagreed and held that once the general contractor conceded that the subcontractor was not negligent, it could no longer argue that the underlying accident arose out of the "general nature" of the subcontractor's work. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=7856961 Previous Next Contact

News Courts in Pennsylvania Require Actual Evidence to Prove Bad Faith (PA) April 12, 2018 < Back Share to: The Superior Court of Pennsylvania recently affirmed a trial court opinion, which granted an insurance company’s motion for summary judgment to dismiss the appellant’s complaint alleging the insurance company acted in bad faith by initially denying coverage for water damage to the appellant’s building. In the case of Reynolds v. Pennsylvania National Casualty Insurance Company, (“Penn National”) issued an all-risk business insurance policy to Reynolds, which provided coverage for water damage to Reynold’s building (the “Policy”). The Policy, however, excluded coverage for damages to the interior of the structure caused by rain, except where the rain entered the building because of damage caused by a covered loss. The Policy also included an endorsement which allowed coverage of up to $100,000 “for water damage caused by a backed up sewer, drain, or sump pump.” After receiving notification of the initial water damage, Penn National sent a reservation of rights letter stating that Penn National would investigate the cause of loss and assign an expert to examine the damaged roof. Based on Penn National’s investigation, which determined that the building’s roof was in “good condition,” Penn National sent Reynolds a denial letter. Subsequently, one of Reynold’s employees reported that on the day of the water damage, he witnessed a blocked drain that forced the accumulation of 18 inches of water inside the building. Accordingly, Reynolds requested that Penn National reconsider its initial denial. In doing so, Penn National agreed to rely on Reynold’s expert report, which indicated the “plugged drain caused a backup of rainwater on the roof.” Accordingly, Penn National granted the limited coverage of $100,000 under the Policy’s Business owners endorsement, which was for damage caused by backed up sewers and drains. While the Superior Court of Pennsylvania did consider the extenuating circumstances surrounding Penn National’s initial denial, ultimately the Court affirmed the trial court’s decision and analysis because Reynolds failed to provide any evidence that Penn National’s initial denial of coverage was done in bad faith. Thanks to Lauren Berenbaum for her contribution for this post. Please write to Vito A. Pinto for further information. Previous Next Contact

News Dram Shop Liability Expanded in New York September 28, 2009 < Back Share to: New York's Dram Shop Act provides that a tavern owner who unlawfully serves alcohol to an intoxicated person is liable to any third party injured by the intoxicated person. However, the intoxicated person himself/herself has no right to sue the tavern owner for his/her own injuries. In O'Gara v. Alicca, the intoxicated plaintiff, a pedestrian, was injured in an automobile accident. She sued the automobile driver, who then impleaded the tavern owner who allegedly unlawfully contributed to the plaintiff's intoxication. The tavern owner moved to dismiss, arguing that the tavern owner could not be compelled to pay damages in a case brought by the intoxicated person. Plaintiff Kathleen O'Gara began the evening of October 28, 2006 with a Percocet. She then went off to the Katonah Bar & Grill, where she allegedly consumed "copious amounts of alcohol." Kath left the tavern at 5:00 a.m. and then, for reasons she can no longer recall, chose to walk across the Saw Mill River Parkway. Defendant Matthew Alacci was driving on the Parkway and his car struck the plaintiff. The plaintiff filed suit against Alacci, claiming he was at fault for the accident. Alacci impleaded the tavern on a cause of action for contribution on the theory that the tavern wrongfully caused the plaintiff's intoxication. In a case of first impression, an appellate court in NY ruled that the claim for contribution is valid and can go forward. The court ruled that while an intoxicated person cannot sue a tavern for damages under the Dram Shop Act, there is no reason to prohibit a defendant from seeking compensation from the tavern on the Act. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06668.htm Previous Next Contact

News NJ Court Finds Death Certificate Inadmissible Hearsay Without Medical Examiner Testimony June 13, 2018 < Back Share to: In Quail v. Shop-Rite Supermarkets, Inc., plaintiff alleged his wife died as a result of blunt trauma from a cash register station that fell on her leg. After the accident, plaintiff's wife told Shop-Rite she was fine, not in need of medical attention. Four days later, however, she was transported to the hospital where she died. The following day, a Certificate of Death was issued. It stated the cause of death was complications of blunt trauma to the right leg. Plaintiff sought to forego calling the Examiner who issued the Certificate to the witness stand. Instead, plaintiff sought to rely on the Certificate only. The Appellate Division upheld the trial court’s dismissal of plaintiff’s case on Summary Judgment because plaintiff had no medical expert on the issue of medical causation. The Court held that the Certificate, by itself, was inadmissible hearsay despite Rules of Evidence expressly deeming the Certificate to be admissible. The Court reasoned that despite these Rules, the Certificate, by itself, was inadmissible without the Examiner being called to the witness stand to explain his findings. This case serves as a reminder to attorneys to ensure that evidence is admitted properly at trial, and if not, motions to dismiss should be filed. Thanks to Michael Noblett for his contribution to this post. Previous Next Contact