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News New York High Court Holds “Ordinary Vehicle Repair” Not Covered Under Labor Law January 5, 2024 < Back Share to: Plaintiff, a diesel technician, was working beneath defendant’s lifted trailer on broken air brakes when the trailer collapsed on him, causing grievous personal injuries. The question presented to the New York Court of Appeals in Stoneham et al v. Barsuk, Inc. et al, was whether “plaintiff was engaged in an activity protected by Labor Law §240(1).” 2023 NY Slip Op 06467 (2023). The Court held that the legislature did not intend Labor Law §240(1) to encompass “ordinary vehicle repair” and that the lower courts correctly dismissed the §240(1) claims. Plaintiff used a front loader to lift the trailer five and a half feet and began working to install the new air brake equipment. As Plaintiff was installing this equipment, the trailer fell on him, pinning him to the ground. Plaintiff commenced his action alleging a §240(1) claim among other claims, then moved for summary judgment. Defendant cross-moved. The trial court denied plaintiff’s motion and granted defendant’s. The Appellate Division affirmed, holding that §240(1) did not contemplate “the vehicle repair work at issue here” because it was not “a protected activity within the meaning of” §240(1). Id . The Court of Appeals affirmed, holding that §240(1) does not apply simply because a plaintiff’s injury results from “an elevation differential.” Id . The Court further held that in considering a “holistic view of the statute, ordinary vehicle repair” would extend the statute far beyond the purpose for which it was intended. Id. The Court discussed that if it were to hold Defendant liable in this instance, car owners would be “absolutely liable for car-related injuries that occurred when a mechanic was working on their car” which was not intended by the legislature, despite Plaintiff’s severe injuries. Id . Stoneham et al v. Barsuk - NYCA .pdf Download PDF • 427KB Previous Next Contact

News Certified Mail Without Returned Receipt... Worthless (NY) March 19, 2013 < Back Share to: In Tower Insurance Co. of NY v. Ray & Frank Liquor Store, Inc. et al, the insurer sought a declaratory judgment with respect to coverage disclaimed to an insured for a claim in underlying litigation. The defendant insured had given late notice of the claim, and the plaintiff sent a disclaimer in response. The disclaimer was sent via certified mail return receipt requested. However, at the bench trial, the insurer only produced the letter - not the signed receipt. The only witness to testify did not personally mail the letter, and no one was produced to testify regarding mail policies in a more general way. The matter proceeded to trial and the judge ruled in favor of the insurer, finding that it was not obligated to defend and indemnify the defendants. However, the First Department reversed the trial court's decision, finding that the insurer failed to adequately demonstrate that the disclaimer letter was actually mailed. Specifically, the insurer's failure to produce the return receipt or otherwise provide direct evidence of mailing was fatal to its cause. The moral of the story is that sending a significant document, such as a disclaimer, by certified mail is only the first step. In order to prove service, there must be testimony by one with knowledge that the document was actually mailed or, if available, a receipt showing actual service was made offered in evidence. Special thanks to Georgia Stagias for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Insurers Permitted To Intervene In Human Trafficking Suits (PA) October 14, 2021 < Back Share to: On October 7, 2021, the Pennsylvania Superior Court permitted insurers to intervene in cases brought against insureds arising out of alleged sex trafficking operations. A.H. v. Roosevelt Inn, LLC, et al, 1797 EDA 2020 (Pa. Super. Ct. Oct. 7, 2021). The plaintiff, an alleged victim of human trafficking, sued numerous defendants asserting that she was “exploited by traffickers of commercial sex acts and those who financially benefits from her exploitation.” The defendants allegedly knew of the sex trafficking at their premises and failed to prevent the activity or otherwise notify authorities of same opting instead to profit from the activity. The Complaint stated multiple claims for negligence, some arising out of the Pennsylvania sex trafficking statute, negligent infliction of emotional distress, negligent hiring, training, and/or supervision, as well as punitive damages. The insurers of some defendants filed petitions to intervene in the underlying suit solely requesting to submit a specific jury interrogatory and verdict slip to ensure that het basis of the jury’s finding is clear so the carriers could make coverage determinations. More specifically, the insurers sought instructions to determine whether any punitive damages award was based on direct or vicarious liability and whether the jury found that a given defendant violated the Pennsylvania trafficking statute. The trial court denied the petition. The insurers appealed, raising four issues for review. First, whether the court has jurisdiction to hear the interlocutory appeal. Second, whether the trial court abused its discretion by misapplying prior precedent regarding the right to intervene for purposes of securing a record that will identify whether any verdict is based on a claim for which indemnification may be barred by public policy. Third, whether the trial court abused its discretion by denying the petition on the grounds that the insurer’s interests are adequately addressed by counsel retained to represent the insured. Four, whether the trial court abused its discretion by denying the petition without a hearing. The Superior Court agreed with the insurers as to the first issue, finding that the denial was a collateral order separate from the main cause of actions because the right involved is too important to be denied. In evaluating the factors, the Court considered the following dispositive facts: (1) the right to intervene could not be resolved without addressing the addressing the merits of the underlying action; (2) resolution of the underlying action will not resolve the indemnification questions for the insurers; and (3) the insurers would be denied the ability to submit jury interrogatories or a special verdict form at the close of trial absent intervention. The Court considered the remaining questions together. In Pennsylvania, intervention is governed by two procedural rules: (1) Rule 2327 which governs who may intervene; and (2) Rule 2329 which provides the method for intervention. Rule 22329 expressly contemplates a hearing. The Rule states: “[u]pon the filing of the petition and after a hearing, of which due notice shall be given to all parties.” The trial court here failed to hold a hearing. The Superior Court concluded that the trial court “manifestly abused its discretion” in denying the petition. In holding that an insurer has a right to interevent to propose a special verdict form and jury interrogatories to assist in coverage determinations regarding indemnification, the Court relied on a case from earlier this year, Bogdan v. AM Legion Post 153 Home Ass’n, 2021 PA. Super. 127 (Pa. Super. Ct. June 23, 2021). In Bogdan, the court permitted a liquor liability insurer to intervene for the purpose of issuing special interrogatories to the jury’s verdict which would assist the insurer in subsequent coverage determinations. The trial court’s reliance on the fact that the insured’s counsel could address coverage issues was misplaced. The Superior Court agreed with the insurers that defendant counsel is “not expected to address any insurance coverage issues.” In so holding, the Superior Court noted the obvious potential for conflicts arising out of situations in which defense counsel is retained to represented the interests of individual defendants while simultaneously representing the interests of insurers who could have a duty to indemnify the defendants. The trial court’s order was reversed and the case remanded. Thanks to Jennifer Seme for her contribution to this post. Please contact Jennifer with any questions. Previous Next Contact

News US Supreme Court Issues Important Product Liability Decision. February 26, 2010 < Back Share to: When litigating a claim, if the parties reside in different states, the claim may be brought in federal court, as opposed to state court, under diversity of citizenship grounds. If an action is brought in state court, and diversity of citizenship exists, the parties may request that the case be removed from the state court to the federal court. The issue of diversity is important since, most plaintiffs prefer to sue in state court, where the "home town" advantages are much more real, and thus defendants often try to remove the case to federal court. In a unanimous ruling on Tuesday, February 23, 2010, the United States Supreme Court has determined that for the purposes of diversity of citizenship, a corporation will be deemed a resident of the state only where the company’s executives maintain their offices. The Court held that the “principal place of business” is located at the “corporate headquarters” or “nerve center” where the corporation’s officers “direct, control, and coordinate the corporation’s activities.” This is an important ruling because although a corporation could sell their products in all fifty states, that corporation cannot be considered a resident of any state its products are sold, except the state in which its corporate headquarters is located. If someone claims they bought a defective product in their home state, they can no longer “hometown” the corporation in a product liability suit by bringing their action in their home state court. If the litigant attempts to gain the hometown advantage by commencing the action in state court, the corporation will be able to swiftly remove the case to federal court on the basis of diversity of citizenship. Effectively, this ruling provides corporations with another strategic avenue to increase the likelihood of fair litigation, without the claimant obtaining the hometown advantage. This ruling may also change the structure of class action suits, where one representative member is chosen from the class for the purposes of determining diversity. If the class wants to litigate in state court, the only state court option will be that state where the corporation is headquartered, and the representative of the class will have reside in the same state as the corporation. Corporations selling products in many states should be prepared to ask for removal to federal court any time they are sued in state court, and should expect to see an increase in federal litigation as a result of this decision. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Special thanks to Alison Weintraub for her contributions to this post. http://www.supremecourtus.gov/opinions/09pdf/08-1107.pdf Previous Next Contact

News The New Judicial Hellhole Rankings Are Out! January 28, 2011 < Back Share to: And Philly tops the list -- http://www.judicialhellholes.org/wp-content/uploads/2010/12/JH2010.pdf Atlantic County, New Jersey and New York City are merely on the "watch list." Of course, as with all rankings, this ranking from the American Tort Reform Association must be taken with more than a grain of salt. A large part of Philadelphia's number one ranking can be attributed to the rise in mass tort cases. But, an equally large part of the ranking seems to flow from the fact that Pennsylvania remains (notwithstanding the introduction of proposed bills in the legislature -- http://www.legis.state.pa.us/cfdocs/billinfo/billinfo.cfm?syear=2011&sind=0&body=S&type=B&bn=0002) one of the few states to retain joint and several liability, i.e. the principle that 1% of negligence buys a defendant the potential of having to satisfy the entire judgment. Insurers beware! Philadelphia might not be so brotherly in its love for you! If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Graves Amendment Immunity Denied To Auto Company If Liability Not Completely Based On Ownership (PA) March 10, 2023 < Back Share to: In the recent case of Burns v. Shama Express LLC, The United States District Court for the Western District of Pennsylvania found the Graves Amendment to the Safe, Accountable Flexible and Efficient Transportation Equity Action of 2004 is inapplicable when the liability attempting to be placed on an automobile company is grounded, even in part, in any basis other than ownership. Burns involves an automobile-trucking collision resulting in death of Plaintiff for negligence and negligent infliction of emotional distress, under Pennsylvania’s Wrongful Death and Survival Acts. Bowman owned the subject-truck that allegedly caused the accident. Plaintiff alleged, in part, that Bowman through its “employees, servants, or agents,” breached its duty, as the owner and operator of the subject-truck, “to be alert and maintain control of the vehicle,” and that Bowman negligently trained its truck operators. Bowman filed a Motion to Dismiss arguing that its only involvement in the underlying events was that it leased the subject-truck, months before the incident took place, and was therefore immune from vicarious liability under the Graves Amendment. The Graves Amendment provides: (a) In general.—An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if— (1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and (2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner). 49 U.S.C. § 30106. The magistrate determined that “[b]ecause plaintiff had sufficiently alleged, at this initial stage, that Bowman was negligent, the Graves Amendment cannot serve as a basis for immunity.” The court ultimately adopted the magistrate’s Report and Recommendation and dismissed the Motion to Dismiss. Burns is a cautionary tale for defendants engaged in the trade or business of renting or leasing motor vehicles. It makes clear that Graves Amendment immunity from liability is only applicable to liability grounded exclusively in ownership; on the other hand, vehicle owners who themselves, or through agents, engage in negligence, are not protected by the Amendment. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News How Careful Should Athletes (and Defendants) Be in New Jersey? (NJ) November 21, 2019 < Back Share to: In Mesar v Bound Brook Board of Education, a teenage plaintiff sued his local school board after he severely broke his ankle while playing baseball for the school team. Specifically, he claimed the assistant coach improperly signaled for him to slide into third base as he approached, causing the injury. The defendants won summary judgment in the first instance and plaintiff appealed. The Appellate Division took the opportunity to reiterate that although it is incumbent on instructors and coaches not to increase the risks over and above those inherent in the sport, the appropriate standard of care for accidents in sports is recklessness. However, in making this motion, defendants argued plaintiff had failed to plead recklessness in his complaint, rather than arguing, plaintiff presented insufficient facts to support a claim of recklessness. When evaluating whether a complaint should be dismissed for failure to state a claim, the Court must determine “whether a cause of action is ‘suggested’ by the facts,” and the Appellate Division found plaintiff’s complaint met that very lax standard. As a result, even though defendants successfully obtained the higher standard of care for the time of trial, refraining from arguing insufficient evidence to satisfy the standard meant the motion was remanded to revisit that issue. The ruling is beneficial for defendants in that it pushes back on any narrowing of the recklessness standard in the context of sports accidents, but it is a reminder to make alternative arguments on dispositive motions to close any possible backdoor escape hatches for plaintiff’s counsel. Thanks to Nicholas Schaefer for his contribution to this post. Please e-mail Vincent Terrasi with any questions. Previous Next Contact

News Frozen Pizza Quest no Excuse of PA Fall June 22, 2018 < Back Share to: Recently, a Pennsylvania court evaluated a grocery store’s liability for injuries caused by known or obvious conditions. In Walker v. Save-a-Lot. Plaintiff was shopping in a grocery store when she tripped and fell on a pallet displaying cases of water in the middle of the frozen food aisle. Plaintiff walked toward the pallet on her way to the freezer and situated her cart adjacent to the pallet. After grabbing a frozen pizza, plaintiff stepped away from the freezer and tripped over the pallet. Defendant sought summary judgment on the ground that the pallet created a known or obvious condition. Plaintiff claimed she did not see the pallet as she was focused on finding a frozen pizza. Surveillance footage showed that the plaintiff walked by one pallet displaying cases of water before she approached a second pallet displaying the same. The court turned to prior decisions addressing the duty of care owed to invitees and concluded that it is established Pennsylvania law that a person must look where he is going, further explaining that customers are not relieved of this responsibility even if they are distracted by sales displays. The court concluded that the fact that the plaintiff claims she did not see the pallet because she was focused on finding her frozen pizza does not excuse the fact that the pallet was a known or obvious condition that she failed to avoid by the exercise of ordinary care. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Pennsylvania Amendment Snaps Back At Snap Removal January 21, 2022 < Back Share to: On January 18, 2022, the Pennsylvania Supreme Court formally amended the Pennsylvania Rules of Civil Procedure clarifying that original service of process is satisfied per Rule 400(b) by a sheriff or competent adult in cases of state to federal court and permitting pre-service or “snap” removal pursuant to 28 U.S.C. § 1441. This change was initiated when the Pennsylvania legislature heeded the clarion call of the Third Circuit Court of Appeal’s call to action in Judiciary Encompass Ins. Co. v. Stone Mansion Rest. Inc., 902 F.3d 147, 154 (3d Cir. 2018), which identified conflicts between §1441, its “forum defendant” exception in Section 1441(b), and the former Rule 400 leading to inconsistencies across the state and a split amongst the circuit courts. Specifically, Section 1441(a) provides that a state action may be removed to a federal court where there is federal subject matter jurisdiction, including where there is complete diversity of citizenship between all plaintiffs and all defendants. Further, Section 1441(b) states the “forum defendant” exception: an action otherwise removable on the basis of diversity jurisdiction “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which the action is brought.” Section 1441(b) (emphasis added). In conflict, Rule 400(a) provides that the sheriff must serve original process of civil actions within the Commonwealth. While former Rule 400(b) enumerated certain civil actions to allow original service of process by sheriff or competent adult, Rule 400.1 carves out an exception for the service of original process in Philadelphia County. In turn, this tension led to different interpretations per venue, fostered the principle of “snap” removal, and in practice, has led to docket monitoring now available with increases in technology, professional service of process industries, and a race-to-the federal courthouse where prospects may be more favorable. In Encompass, Encompass Insurance Co., the defendant agreed to accept electronic service of process instead of requiring formal service of the complaint, however, when the plaintiff then filed suit against the defendant in the plaintiff’s home state and sent the defendant a copy of the filed complaint and a service acceptance form via email, counsel for defendant refused to accept service and thereafter removed the action to federal court. The Encompass court found that the face of Section 1441(b) does not prevent removal where the in-state defendant has yet to be properly served under the state law at issue, here, Pennsylvania. In noting how the district courts within the state and country were split, the Encompass court decided narrowly and ultimately kicked the issue to the Pennsylvania legislature. See Parker Hannifin Corp. v. Fed. Ins. Co., 23 F.Supp.3d 588, 596 (W.D. Pa. 2014) (concluding that “the forum defendant rule does not apply to this case because plaintiffs failed to properly serve [the in-state defendant] prior to removal of this case to federal court”). In turn, the Pennsylvania Civil Rules Committee proposed an amendment to Rule 400 enumerating circumstances of “snap” removal under Rule 400(b) which has formally been adopted per Order No. 727. In its report, the Committee notes that amended rule is intended to ameliorate “snap” removal and the holding of Encompass, as such polarized outcomes defeat the purpose of the Pennsylvania Rules of Civil Procedure in obtaining speedy determinations to actions. See Pa. R.C.P. 126. This amendment takes effect April 1, 2022. Practically, this change will make it difficult, but not impossible, for in-state defendants to remove a case from state court to federal court under diversity jurisdiction and signals the Pennsylvania court’s broadening interpretation of what it means to avail oneself to the forum state. Thanks to Kendall Hutchings for her contribution to this article. If you have any questions, please contact Matthew Care. Previous Next Contact

News Employer's Duty To Provide Employee A Safe Workplace Does Not Extend To Inherent Or Obvious Risk January 25, 2008 < Back Share to: In Monahan v. New York City Department of Education, 2008 NY Slip Op 00241, AD Index 2006-08975, Kings Co. Index 22106/05, the plaintiff, a physical education teacher at a City high school alleges she tripped over a wheel attached to the base of a volleyball net and twisted her ankle after she adjusted a volleyball net improperly set up by another teacher. Both plaintiff and defendants moved for summary judgment, the defendants asserting they breached no duty owed to plaintiff and that the injury occurred while plaintiff performed a task inherent to her employment. The trial court denied all motions. In reversing the lower court's decision and granting defendants summary judgment, the Appellate Division - Second Department found that while it is an employer's duty to provide its employees a safe place to work, this duty does not extend to hazards which are inherent to the employee's work. Th Appellate Division added that an employer is not obligated to secure the safety of an employee against a condition that may be readily observed, considering the age, intelligence and experience of the employee. http://www.nycourts.gov/reporter/3dseries/2008/2008_00241.htm Previous Next Contact

News Texas Justice -- Lloyd's Must Pay for Billionaire Criminal's Defense. January 29, 2010 < Back Share to: A Carribbean knighthood. Ownership of cricket teams. A fleet of private jets. Texas billionaire Allen Stanford claimed that these things came from his worth ethic and natural abillities. That may be true, if you consider that his worth ethic and natural abilities were sired to criminal undertakings. Stanford and his company are accused of defrauding investors in excess of $8 billion dollars. Criminal indictments and civil lawsuits have resulted. Unfortunately, it appears that Lloyd's insured Stanford and his company at the relevant times. And now, a Texas judge has ruled that Lloyd's must pay for the defense of Stanford and his group in the pending SEC and crminal cases. Hopefully, Lloyd's won't end up spending billions in legal fees, but tens of millions seems like a reasonable estimate. If you would like more information about this post, please ctontact Bob Cosgrove http://www.insurancejournal.com/news/national/2010/01/27/106889.htm http://pdf.wcmlaw.com/pdf/PendergestDecision.pdf Previous Next Contact

News “Fallin’ in the Rain" - Concert Venue's Wet, Grassy Slope is not a "Dangerous Condition" (NJ) January 18, 2019 < Back Share to: In Spigai v. Live Nation Worldwide, Inc., et al., the plaintiff and friends attended a concert at the PNC Bank Arts Center in Holmdel, New Jersey. After parking in one of the commuter lots, at the foot of a grassy hill, the plaintiff and her friends took a courtesy shuttle bus to the venue. Unfortunately for concertgoers, rain started early in the day and continued throughout the concert. After being separated, the plaintiff elected to walk with a crowd to her car rather than waiting for a shuttle. Although the commuter lot is accessible via a staircase, the plaintiff followed others down the wet, grassy slope to her vehicle. Mid-descent, she slipped and broke her leg. She subsequently filed suit against the owner and operator of the venue. The PNC Bank Arts Center is owned by the New Jersey Turnpike Authority/Garden State Parkway (“Turnpike Authority”) and is operated by Live Nation Worldwide, Inc. (“Live Nation”). Following discovery, defendants moved for summary judgment. The Turnpike Authority argued it was immune from liability under the Tort Claims Act. Live Nation, for its part, argued it did not breach a duty of care to the plaintiff. Plaintiff, in opposition, relied on an affirmative expert report opining that defendants failed to adequately assess the risk of accidents, failed to have a surveillance plan, failed to provide physical barriers, and performed negligent crowd control. The trial court, unpersuaded by the affirmative expert, granted summary judgment to all defendants. Plaintiff appealed, arguing the trial judge misapplied the summary judgment standard by refusing to submit the issue of liability to the jury. In upholding the trial judge’s ruling, the Appellate Division agreed that the grassy slope, even wet with rain, did not constitute a “dangerous condition.” Permitting the existence of a natural hill, on the land, made wet from the weather, was not palpably unreasonable. The Appellate Division further agreed that the obvious nature of the wet grass on the hill made it impossible for the plaintiff to recover against Live Nation, as its duty of care did not extend to warning the plaintiff that grass is slippery when wet or to take steps to prevent walking down the hill in the rain instead of using the provided staircase. Despite plaintiff’s injury, the defendants provided adequate legal accommodations to concertgoers to account for their safety. Thus, although injuries may occur on commercial premises, it is important to conduct thorough investigations and establish a comprehensive record that accounts for any and all distractions and contributing factors. Here, by establishing that the plaintiff was on her cell phone, traversing a wet, grassy hill wearing flip-flops and carrying a chair and tarp, the facts aligned with premises liability case law to support granting summary judgment to each defendant. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact