News Surrender to Sandy? November 1, 2012 < Back Share to: Not a chance. Even with -- power out; roadways and streets flooded and strewn with trees and crackling power lines; mass transit crippled; land line telephone service cut; and, cellular service spotty at best -- WCM attorneys and staff "texted" themselves back to serving you, our clients, and your insureds. Or else, we did business the old fashioned way -- meeting face-to face in small groups. We give thanks that all WCM personnel got through Frankenstorm in good form, though many of us are still without heat or power in our homes and apartments. Our hearts go out to those who have suffered greatly, and we have resolved to help others in any way we can. But we wanted everyone to know that we are fully back in business in New York, New Jersey and Pennsylvania and nothing has slipped between the cracks. Your Friends at WCM Previous Next Contact

News Big Brother Comes to the Main Line. March 5, 2010 < Back Share to: Philadelphia's Main Line. It conjures up images of blue bloods, The Philadelphia Story and, of course, Kobe Bryant who graduated from Merion High School. The communities of the Main Line are so well off that they decided to give all high school students a free laptop so as to level the academic playing field. What could possibly go wrong? Well, for starters, the computers had webcams. And the webcams could be activated remotely. So, when school officials believed that "improper” behavior was afoot, they did what any good sleuth would do -- they turned on the webcams, so they could see what their students were doing. This just might have gone unnoticed except that school officials decided to confront the students whom they believed had acted improperly using their webcam spying as evidence. This did not sit well with students and a federal class action lawsuit in Philadelphia has resulted. It sure gives a whole new real world impact to the "big brother" world of Huxley and Orwell that all high school students must familiarize themselves with. Property tax increases (to defend the lawsuit) and insurance claims by the school district will surely follow. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202443815317&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20PM%20Legal%20Alert&cn=TLI_WANTED20100226&kw=Students%20Accuse%20School%20District%20of%20Spying%20Through%20Webcams Previous Next Contact

News No Liability in Emergency Situation (NY) October 3, 2013 < Back Share to: In Mendez v. The City of New York, the plaintiff testified that he was riding his motorcycle in congested traffic conditions when he was unexpectedly thrown from his motorcycle after hitting a pothole. He had been lying in the road for "less than a second" to approximately four seconds when he was hit by a minivan that had been traveling just behind him. After hitting the plaintiff, the van's two front tires proceeded onto the sidewalk. The defendant van driver testified that plaintiff's motorcycle was approximately six meters ahead of him when it fell, and that, after he saw the motorcycle fall, he turned his minivan towards the sidewalk to try to avoid the plaintiff. Of note, Brizuela failed to raise the emergency doctrine as an affirmative defense in his answer. However, based upon the parties’ testimony, the lower court concluded that Brizuela had met his initial burden of establishing his entitlement to summary judgment based on the emergency doctrine. The Appellate Division held that although the defense was not pleaded by defendant Brizuela in his answer, the deposition testimony set forth facts that constituted an emergency situation and the facts were well known to plaintiff. Further, it was found that defendant submitted evidence sufficient to establish that he was faced with a sudden and unforseen occurrence that was not of his own making. As such, the Appellate Division upheld the lower court’s ruling, granting the defendant’s motion for summary judgment. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News NJ Fee Shifting Applies Even to Out of State Coverage Litigation July 29, 2010 < Back Share to: New Jersey is generally considered a pro-policyholder state. Under New Jersey Court Rule 4:42-9(a)(6), a successful claimant may recover attorneys fees “in an action upon a liability or indemnity policy of insurance.” While the courts have some discretion when considering such fee applications, the trend has been to award attorneys fees to a successful policyholder in most circumstances. See, for example, our post on Baughman v. US Liability Insurance on July 16, 2010. How far does Rule 4:42-9(a)(6) extend? Does it apply where a piece of the declaratory judgment is litigated in another state? According to the New Jersey Supreme Court, the reach of Rule 4:42-9(a)(6) extends beyonds the borders of New Jersey and applies to coverage litigation filed in another state. In Myron Corporation v. Atlantic Mutual, this point was significant because an Illinois court – where two actions for declaratory relief had been filed by the insurer and later dismissed—would have followed the traditional American rule and denied the policyholder’s application for attorneys fees. Getting your coverage position right at the onset is critical when considering an insured’s request for a defense or indemnification under a liability policy. The consequences of a mistaken judgment can be significant if the insured prevails and recovers its attorneys fees in litigating the coverage dispute in addition to those associated with the underlying suit. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A5309MyronCorpvAtlanticMutual.pdf Previous Next Contact

News Theft of Human Hair Weaves Legal Analysis August 16, 2018 < Back Share to: Recently, in an unpublished opinion, a New Jersey appellate court in the case of Beauty Plus Trading Co. Inc. v. National Union Fire Insurance Co. of Pittsburgh, considered whether an insurance policy’s “loading and unloading” provision precluded coverage to an insured for damages arising out of a theft of a shipment of human hair weaves. The insured received its goods on a Friday evening, but decided not to unload the container of goods until the following Monday. Instead of unloading, the insured’s staff Beauty Plus Trading Co. Inc. v. National Union Fire Insurance Co. of Pittsburgh cut the container’s seal and left it on the loading bay outside of the warehouse. The following night, an individual stole the container housing over $283,000 worth of human hair weaves. The policy contained a “loading and unloading” section which provided coverage for the insured’s goods for 24-hours after the company received a shipment. In this case, the insured received a shipment at 5:00 p.m. on a Friday evening and the theft took place at 9:00 p.m. the following Saturday night. According to the policy, the goods were insured until 5:00 p.m. on Saturday. The insured tried to argue that coverage under the loading and unloading provision should have been extended through the following Monday under the so-called “business day” rule. This rule states that where a party’s time to perform its obligations under an insurance policy expires on a weekend or holiday, it is entitled to push the deadline to fulfill those obligations to the next business day. Here, the policyholder argued that the rule should have applied because it did not receive the goods for unloading until the end of the day on Friday. The judge, however, found that the rule was inapplicable. The loading and unloading provision did not require the insured to unload the goods or perform any obligation during the 24-hours of coverage and the insured could leave the goods in the container as it chose to do. The court found that the plain terms of the policy precluded coverage for this loss. Thanks to Chelsea Rendelman for her contribution to this post Previous Next Contact

News Bad Faith Claim Stands Where Insurer Allegedly Ignored Evidence August 23, 2024 < Back Share to: In Hudson v. Econ. Fire & Cas. Co. , plaintiff Frank Hudson commenced suit against his insurer, Economy Fire & Casualty Company seeking coverage for losses due to a fire which occurred in October 2020. Hudson v. Econ. Fire & Cas. Co ., No. CV 23-185, 2024 WL 3585691 at *1 (W.D. Pa. July 30, 2024). Hudson’s home had previously sustained secondary damage from a house fire that occurred at a neighboring home in May of 2020. Id . In April of 2021, Hudson retained an independent adjuster, Bryan Finnicum, to generate a damage loss estimate. Id . Finnicum estimated the replacement cost value at $75,635.98. Id . Defendant Economy Fire & Casualty Company generated its own loss estimate, calculating a replacement cost value of $4,565.01, an actual cash value of $3,946.09, and a net claim value of $2,946.09. Id . Finnicum wrote a letter to Economy Fire & Casualty Company’s counsel stating that its estimate was grossly understated and “a clear attempt to deny coverage for items that were undamaged in the May fire but damaged in the October fire.” Id . And, after Economy Fire & Casualty Company rejected an agreement to obtain a third, separate appraisal, Hudson filed suit for breach of contract and bad faith. Id . Economy Fire & Casualty Company sought to dismiss the bad faith claim, arguing that Hudson’s claim “essentially amounts to a dispute as to the value of the claimed loss, which does not rise to the level of bad faith conduct.” Id . at 3. The court, however, disagreed, finding that Hudon’s allegations that Economy Fire & Casualty Company’s adjuster failed to reasonably evaluate or review photographs, video footage, and damage estimates in Economy Fire & Casualty Company‘s possession were minimally sufficient to show that Economy Fire & Casualty Company did not have a reasonable basis for denying coverage and “knew or recklessly disregarded its lack of reasonable basis in denying the claim.” Id. Accordingly, Economy Fire & Casualty Company’s motion to dismiss Hudson’s bad faith claim was denied. Id. at 4. While claims involving a dispute as to the value of a claimed loss generally do not rise to the level of bad faith conduct, an insurer is responsible for adequately investigating and analyzing the evidence in its possession when determining claim value. Hudson v. Economy Fire And Casualty Company .pdf Download PDF • 154KB Previous Next Contact

News A Holiday Warning from PA’s Courts – Be Wary of Parties Hosted by Family Members. December 11, 2008 < Back Share to: In the case of Koller v. Rose, et al., PICS Case No. 08-2003, Beaver County Court of Common Pleas, defendant Neeley leased her basement to her nephew, a young man under 21, who then threw a party for his friends (also under 21). Shockingly, alcohol was served at this under 21 party. Neeley, for unknown reasons, decided to attend this under 21 soiree. She therefore witnessed the underage drinking first-hand. Unfortunately, on the way home from the party, one of the under 21 party-goers, defendant Rose, who had consumed alcohol at the party, got into an automobile accident with the plaintiff. The plaintiff sued Rose, the nephew and Aunt Neeley. Aunt Neeley moved for summary judgment arguing that the plaintiff could not make out a prima facie case of negligence. The trial court disagreed. It held that there was a question of fact as to whether Aunt Neeley, as a social host, knew that minors were drinking to excess at her basement party. The trial now beckons. Previous Next Contact

News Misrepresentation and Non-Cooperation Operate to Bar Coverage January 28, 2011 < Back Share to: In a recent NJ Appellate case, plaintiffs Inchon, L.L.C., Russian Radio Network, L.L.C., and WRBS Radio Ethnic Media Partners MVI (collectively "Inchon" or "plaintiffs") appeal from the dismissal of their complaint on a summary judgment motion by defendants The Hartford Fire Insurance Company and The Hartford Insurance Company of the Midwest (collectively "Hartford" or "defendants"). On October 10, 2005, an alleged burglary occurred at the Inchon’s location, during which a significant number of servers and encoders were stolen. Inchon subsequently filed a police report and claims under its Hartford policies. Hartford undertook an investigation of the claims, and discovered that Inchon had made a misrepresentation when asked whether the company had made any other prior insurance claims. It was discovered that in 2003, Inchon made a claim with their previous insurer, Traveles Insurance, that was denied when it was determined that the claim was fraudulent. After Hartford denied Inchon’s claim, Inchon filed suit against Hartford seeking coverage for the allegedly stolen equipment. Hartford moved for summary judgment and argued that Inchon breached the terms of the insurance agreement by misrepresenting that it had not filed a previous insurance claim with Travelers and failing to cooperate with the investigation. The appellate court found no evidence that the misrepresentation was a mere oversight or mistake, and concluded that Hartford was justified in the denial of coverage. Further, Inchon’s abstract statement that "Inchon cooperated fully and to the best of [its] ability" was insufficient to overcome Hartford's evidence demonstrating the contrary. "[I]t explains nothing when compared to the voluminous information in terms of questions asked and the examination under oath, the follow up letters and correspondence." The granting of summary judgment was affirmed. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a3919-08.pdf Previous Next Contact

News NY Court Of Appeals Defines "Permanent And Severe Facial Disfigurement" March 24, 2008 < Back Share to: In its recent decision in Fleming v. Graham, the Court of Appeals articulated a standard for assessing claims of "permanent and severe facial disfigurement " for the purpose of qualifying as a "grave injury" exception to the Workers' Compensation bar. The Court ruled that "an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurment is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the accident." http://www.nycourts.gov/ctapps/latdec.htm Previous Next Contact

News Pennsylvania Superior Court Finds Choice of Forum to be More Than a Matter of “Mere Inconvenience” (PA) April 9, 2020 < Back Share to: Plaintiffs within the Philadelphia area generally file suit in Philadelphia County, believing the forum to be more advantageous for their claim. However, as determined by the Pennsylvania Superior Court, a plaintiff whose alleged injury and eyewitnesses were within a short distance of the Bucks County Courthouse, Philadelphia County may not be the appropriate forum. In Powers v. Verizon Pennsylvania, LLC et. al, the Pennsylvania Superior Court affirmed the trial court’s judgment for Verizon on its petition to transfer venue to Bucks County from Philadelphia County. The underlying incident occurred in Bucks County when Appellant stepped through the lid of a cable box located between the property line between his residence and that of his neighbor injury his foot. Appellant filed suit in Philadelphia County alleging negligence by the Verizon Defendants, as well as the local homeowners’ association, Oxford Lane Community Association, also located in Bucks County. Subsequent to the filing, Oxford Lane filed a joinder claim adding Appellant’s neighbor to the suit. Appellant sought venue in Philadelphia County on the basis that Verizon conducted business there. Verizon then filed a Petition for Forum Non Conveniens seeking transfer of the suit from Philadelphia County to Bucks County. In its petition, Verizon asserted that the matter had no real connection to Philadelphia County as the incident occurred in Bucks County and all eyewitnesses to the accident resided in Bucks County. Verizon further noted that the travel times for these witnesses to the Philadelphia County Courthouse would exceed an hour in contrast to a fifteen commute to the Bucks County Courthouse. The Appellant disagreed, arguing that Verizon’s petition should fail for failure to show more than mere inconvenience. The trial court disagreed with Appellant and granted Verizon’s petition. On appeal, the Superior Court affirmed the trial court’s decision to transfer venue from Philadelphia to Bucks County. Specifically, the Superior Court determined that the trial court did not abuse its discretion in examining the totality of the circumstances in support of Verizon’s petition. As noted by the Superior Court, the doctrine of forum non conveniens “addresses the issue of plaintiffs bringing ‘suit in an inconvenient forum in the hope that they will secure easier or larger recoveries or so add to the costs of the defense that the defendant will take a default judgment or compromise for a larger sum.” (Quoting Wright v. Consolidated Rail Corporation, 215 A.2d 982 (Pa. Super. 2019)). The Superior Court further noted that, as ruled by the Pennsylvania Supreme Court, the party seeking transfer must show more than mere inconvenience. The party seeking transfer must show that the chosen court is oppressive or vexatious. Bratic v. Rubendall, A.3d 1 (Pa. 2014) (finding, in part, that travel between Philadelphia and the surrounding counties to be mere inconvenience and that oppressiveness increases with travel distance). In applying that standard, the Superior Court found that although the distance involved in this implied “mere inconvenience” it noted that the record in this matter warranted a finding of oppressiveness. As stated by the Superior Court, oppressiveness can be shown through evidence that another forum would provide better access to witnesses, other sources of proof, and site visits. In this matter, Verizon provided evidence, not disputed by Appellant, showing that its witnesses, the relevant parties, and, more importantly, the location of the incident were all close to the Bucks County Courthouse. The Superior Court agreed with the trial court that this evidence warranted a change in venue. Thanks to Benjamin G. Ferrell for his contribution to this post. For questions or comments, please contact Vincent Terrasi. Previous Next Contact

News The Last Domino Falls: New Jersey Is Now Officially "Continuous Trigger" on CD Cases. October 12, 2017 < Back Share to: It was a long time in the making (or preventing), but New Jersey is now officially a continuous trigger jurisdiction when it comes to construction defect litigation and CGL policies. In the case of Air Master v. Selective Insurance, the appellate court was faced with a "typical" NJ construction defect case, i.e. a large condominium complex which years after completion experienced water infiltration and resulting damages. The case's key facts are: • Air Master's work was conducted between November 2005 and April 2008; • Water damage (allegedly resulting from the work) was noticed as soon as February 2008; • But, it was not until April 2010 that an "expert" documented the water issues; • Penn National insured Air Master from November 2005 to April 2008; • Selective insured Air Master from June 2009 until June 2012; and • Harleysville insured Air Master from June 2012 to June 2015. The Superior Court, in an approved for publication decision, was effectively asked to determine whether Selective's policy obligations were limited to "property damage" that occurred during its policy periods. In a 29 page opinion, the Superior Court held that: (1) a "continuous trigger" theory of insurance coverage may be applied in this State to third-party liability claims involving progressive damage to property caused by an insured's allegedly defective construction work. (2) the "last pull" of that trigger -- for purposes of ascertaining the temporal end point of a covered occurrence -- happens when the essential nature and scope of the property damage first becomes known, or when one would have sufficient reason to know if it. (3) the "last pull" of the trigger does not occur until there is expert or other proof that "attributes" the property damage to faulty conduct by the insured. So, what does all of this mean? The bad news (especially for Selective in the case at bar) is that insurers will no longer able to argue that, in the absence of evidence of "property damage" during the policy period, there is no coverage -- so, earlier in time insurers are likely to bear more risk. But, the good news is that the "trigger" ends (it seems) when there is actual or constructive notice of the "property damage" -- which means that later in time insurers should be able to limit coverage...if they can establish notice of the problems. The last domino has finally fallen, but a new game is about to begin. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News A Reasonable Disclaimer Doesn't Ensure Non-Payment of Fees in NJ. July 16, 2010 < Back Share to: In the case of Baughman v. US Liability Insurance, US Liability disclaimed coverage to its insured. The claim arose out of mercury exposure and the questions presented included whether: (a) exposure to [/i]indoor mercury contamination was "traditional environmental pollution", or (b) whether medical monitoring constituted "damages" and whether exposure to harmful substances comprises "bodily injury." The Court ruled in favor of the insured and insured's counsel sought to recover its fees in both the underlying case and the declaratory judgment action. The federal court granted both applications. In granting the fees in the declaratory judgment action, the federal court used its discretion under New Jersey Court Rule 4:42-9(a)(6) and held that although the disclaimer was reasonable, because it was declared wrong by the court, the carrier was on the hook for the entire bill. To make matters worse, because insured's counsel took the case on a contingency basis, the carrier was forced for pay a 35% lodestar enhancement. If you have any questions about this decision, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/Mercury.pdf Previous Next Contact