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News Too Little, Too Late: Appellate Division Upholds Disclaimer for Untimely Notice (NY) February 28, 2020 < Back Share to: In Dritsanos v Mt. Hawley Ins. Co., the New York Appellate Division, Second Department, addressed the issue of whether plaintiffs can collect judgements from insurers where the insurer did not receive timely notice of the claim. The underlying case involved liability over a personal injury. In July 2008, the plaintiff was allegedly stabbed in a nightclub in Brooklyn owned and operated by the insured, Ambela Corp. The plaintiff sued on December 9, 2008 to recover for personal injuries, naming Ambela as one of the defendants. The insurer, Mt. Hawley did not receive any notice of the lawsuit until June 2009, when the insured’s broker sent a letter enclosing the summons and complaint. Although Mt. Hawley disclaimed coverage for untimely notice, the plaintiff eventually won a judgment against Ambela and the assailant. The plaintiff then commenced an action against Mt. Hawley under Insurance Law § 3420(a)(2), which expressly permits an injured party to recover any unsatisfied judgment against an insured, directly from the insurer. Mt. Hawley moved for summary judgment, arguing that disclaimer was valid since they did not have timely notice from the plaintiff. In reviewing this issue, the Appellate Division agreed with the insurer. While normally the insurer disclaiming for untimely notice would have to demonstrate that it was prejudiced by the delay, such showing was not needed in this case since the policy predated that requirement in the insurance code. Rather, the Second Department held that merely hiring an attorney and commencing the lawsuit was insufficient as a legal matter to notify the insurer. Thus, because the plaintiff did not act diligently to notify Mt. Hawley, their disclaimer was valid and the plaintiff could not recover on the judgment. The decision underscores the importance for insurers to investigate claims and provide timely disclaimers. Thanks to Andrew Debter on his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Kids for Cash Insurance Dispute Decided by Third Circuit. July 6, 2012 < Back Share to: We have previously reported on the Kids for Cash scandal. Recently, the Court of Appeals for the Third Circuit affirmed a pair of district court rulings finding no coverage for developers involved in the scandal. In Travelers Property Casualty Company of America v. Mericle, the district court entered a declaratory judgment in favor of Travelers holding that it had no duty to defend or indemnify Robert Mericle or Mericle Construction, Inc. for paying kickbacks to state judges. Mericle appealed, arguing that the underlying events constituted an “occurrence” under Coverage A and that the contractual exclusions for intentional acts under Coverage B were inapplicable as a matter of Pennsylvania law. In an opinion penned by Judge Anthony Scirica, the Third Circuit noted at the onset that coverage disputes in Pennsylvania are governed by the “four corners” rule that limits coverage to those allegations contained exclusively within the complaint. Under that rule, the facts alleged, not the pleaded cause of action, is determinative of coverage. As applied to the Coverage A issue, the Court explained that the term “occurrence” in an insurance contract turns on the fortuity of events and cannot exist when the facts indicate that the underlying incident was the expected or intended result of an insured’s actions. The Court therefore found Mericle’s argument that the complaint omitted an express allegation of intentional conduct unavailing in light of countless factual references in the complaint detailing the Luzerne conspiracy. In respect of the Coverage B issues, the Third Circuit easily found the insurance contract’s exculpatory provisions applicable. Under Coverage B, Travelers covenanted with Mericle to provide coverage for injuries arising out of offenses like false arrest, detention, or imprisonment, but also excepted from coverage injuries stemming from the willful violation of a penal statute or ordinance. Despite these exclusions, Mericle argued that the complaint alleged negligence in addition to intentional acts, and that the penal statute and knowing violation exclusions did not apply to bar coverage. In support of its position, Mericle pointed to the language of the complaint where the plaintiffs alleged that defendants “knew or should have known” the effects of their conspiracy. The Court, however, remained unconvinced and held that notwithstanding the language of negligence, the facts alleged only intentional conduct. Moreover, the Court acknowledged Pennsylvania’s deep-seated public policy against providing insurance coverage for intentional acts and found Mericle’s conduct sufficient to trigger the penal statute and knowing violation exclusions. Similarly, the Third Circuit affirmed the district court’s finding of no coverage in Colony Insurance Company v. Mid-Atlantic Youth Services (MAYS), another case arising out of the same judicial kickback scheme. In that case, MAYS and its owner Robert Powell were accused of paying $2.6 million to Luzerne County judges in exchange for favorable rulings that would remand juveniles to detention facilities managed by the defendants. In its appeal from the district court, MAYS mimicked the issues in Travelers Property Casualty Company of America v. Mericle and was equally unsuccessful. The Court of Appeals employed the same line of reasoning and ultimately found that under the “four corners” rule the facts of the complaint alleged intentional acts sufficient to trigger the insurance contract’s exclusions and deny the defendants the right to coverage. Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

William A. Healy IV Counsel New York whealy@wcmlaw.com +1 332 345 4186 Professional Experience Will litigates general liability actions and is involved in all phases of litigation from the inception of the matter through the resolution. His work includes drafting motions and pleadings, conducting depositions, researching, assisting in mediations/arbitration, and preparing and assisting for trial. Before joining WCM, Will was a litigation associate at Carman, Callahan & Ingham, LLP on Long Island. In this prior role, he focused on motor vehicles, trucking, and towing cases. He handled all aspects of the case from pleadings and petitions to motion drafting and oral arguments to conducting depositions and small claims trials. Will graduated from St. John’s University School of Law. While attending St. John’s, Will was an Executive Board Member and externals competitor of the Polestino Trial Advocacy Institute, where he routinely competed in mock trial competitions. He also assisted in re-founding the Irish American Students Association, of which he became the President. Honors and Distinctions Semifinalist and Outstanding Advocate Award Recipient, Hofstra Medical-Legal Mock Trial Tournament News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., St. John’s University School of Law B.A., The George Washington University Bar Admissions New York

News Failure to Call, as Trial Witness, Attorney Present at EUO results in award to Insured-Plaintiff (NY) August 23, 2017 < Back Share to: In Pierre J. Renelique MD, P.C. v Travelers Ins. Co., Kings County Civil Court recently examined whether a defendant-insurer owed first party benefits to a claimant, after the insurer disclaimed coverage due to a claimant's failure to appear for an EUO. The Court found that here, the defendant-insurer failed to prove that plaintiff’s assignor failed to attend the scheduled Examination Under Oath EUO. At a bench trial in Kings County, the insurer-defendant contended that the assignor of the plaintiff, failed to attend any of the several scheduled Examinations Under Oath impeding their ability to investigate the matter. In order to establish this defense, the defendant must have shown that not only were the EUO requests timely made to the assignor, but that the assignor failed to appear. Each of these elements must be met by someone with personal knowledge. Defendant produced as a witness, an attorney who oversaw EUO scheduling and the EUO process for the firm representing the defendant in this matter. The attorney testified as to the office procedure regarding the scheduling of EUO’s and the procedure followed when an assignor failed to appear for an EUO. The attorney testified that she mailed out each EUO request to the assignor according to office procedure and she based the requests upon attorney affirmations that the assignor failed to appear for the EUO. The Court credited her testimony regarding the preparation and mailing of the letters scheduling the EUO but found that the witness had no personal knowledge of the assignor’s actual failure to appear. Despite the fact that she testified that she reviewed affirmations from attorneys at the EUO who swore that assignor failed to appear, the Court found this failed to meet the threshold for personal knowledge. Accordingly, Judgment was awarded in favor of the plaintiff. The Court’s ruling demonstrates importance of laying a complete and proper foundation for establishing all the elements of the defense. Had the defense called someone present at the EUO’s, or perhaps, produced a certified transcript of the EUO, documenting the assignor's failure to appear, the insurer may have prevailed. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NY's First Department Allows Insurer to Rescind April 9, 2009 < Back Share to: The First Department recently reiterated its position in respect of policy recision in Kiss Construction NY Inc. v. Rutgers Cas. Ins. Co. In applying for insurance coverage, Kiss represented that it was solely a painting company. However, it was sued by a construction worker and during the claim investigation, Rutgers learned Kiss had been serving as a general contractor and disclaimed coverage for the underlying action based on this material misrepresentation. Kiss filed a declaratory judgment action against Rutgers seeking a defense and indemnification, and in an affirmative defense, Rutgers moved for recision of the policy. Rutgers motion for summary judgment was denied, but the Appellate Division reversed the decision and held the policy was rescinded. Of interest is the fact that Rutgers did not formerly give notice of the recision prior to this action, nor did it return the premium. In addition, prior decisions of the Court held that an insurer’s duty to defend existed pending a judicial determination of its right to rescind. Although that point was reiterated here, it appears that an insurer with knowledge of a misrepresentation is not forced to assume a defense, provided it is ultimately successful in obtaining a judgment that recision was proper. Thanks to Stephanie Chen for her contribution. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02540.htm Previous Next Contact

News College Security Program Creates Duty To Implement That Program Properly (PA) February 9, 2023 < Back Share to: In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff's case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News New York Coverage Action Dismissed On the Basis of Pennsylvania's Sovereign Immunity February 26, 2008 < Back Share to: Kemper issued a General Contractor's Pollution Liability Policy to the Pennsylvania DOT ("PennDOT"), which constructed a major highway in that state. The policy was issued in Pennsylvania and obtained through a Pennsylvania retail broker. During the course of the project, serious enviromental damage occurred in Pennsylvania. Of significance, the policy contained forum selection and choice of law provisions designating New York as the appropriate forum and source of substantive law for any dispute. During post loss coverage negotiations, Kemper filed a declaratory judgment action in New York. PennDOT responded by filing a parallel action in Pennsylvania and eventually moved to dismiss the New York action. The New York court dismissed the declaratory judgment action, recognizing Pennsylvania's sovereign immunity and the limited conditions under which such immunity could be waived. For example, like many states, Pennsylvania and its state agencies could only be sued in the statutorily created Board of Claims. In sum, Pennsylania's sovereign immunity trumped clearly drafted forum selection and choice of law policy provisions. No doubt the court was persuaded that the dispute's limited contacts with New York and Pennsylvania's substantial interest in deciding the issues of coverage tipped the scales in favor of Pennsylvania. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008JAN/3006001752007002SCIV.pdf Previous Next Contact

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

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

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

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