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News NJ Court Affirms PIP Insurer's Right To Settle Even If Policy Limits Are Exhausted For Other Claims December 21, 2009 < Back Share to: Marilus Rodriquez suffered personal injuries in a motor vehicle accident with medical bills for treatment totaling $623,677. The Allstate policy providing PIP benefits to her had $250,000 per accident limits. After Allstate paid $250,000, another unpaid provider, Endo Surgical sought additional benefits over the Allstate policy limits. It argued that while its demand for arbitration was pending, Allstate had a duty to notify it that the insured's PIP benefits were going to be exhausted. The appellate division rejected this argument and affirmed , finding that, absent bad faith, an insurer may settle with one claimant, notwithstanding that the settlement may exhaust the policy limits available for other claimants. http://www.judiciary.state.nj.us/opinions/a2146-08.pdf Previous Next Contact

News Sea Change in Classification of Employees vs. Independent Contractors? (CA) October 15, 2019 < Back Share to: On September 19, 2019, California governor Gavin Newsome signed a bill into law essentially reclassifying independent contractors as employees. Whereas the past classification turned on the degree of control an employer exerted on a worker, the new California test looks to whether the work performed is of the same kind as the main business of the employer—i.e., package delivery for a delivery company. We have posted on this issue in the past, as it has pertained to a claim against Uber in Pennsylvania. In New York, Governor Cuomo spoke approvingly about passing a similar piece of legislation. A bill to reclassify independent contractors was introduced in the New York State Senate earlier this June, and a coalition including the New York Taxi Workers Alliance, the New York Nail Salon Workers Association, the Legal Aid Society, and 32BJ SEIU is currently pushing for legislation Gov. Newsome just signed in California. These statutory reclassifications of independent contractors are on paper limited to traditional employee benefits, such as overtime and minimum wage protections, workers compensation and unemployment insurance, and do not extend to tort claims, thus leaving in place the control-based test for determining whether a worker is an employee and an employer is in turn vicariously liable. In New York, the test for determining a worker’s classification for purposes of worker’s compensation is similar to that applied in a tort action: both turn on control exerted upon the worker by the employer. Although similar, the tests are not identical, and it can happen that the same worker may simultaneously be an employee for purposes of workers compensation and an independent contractor in a tort action. This apparent conflict is actually a peaceable one, and New York Courts have routinely held that a finding of “employee” for workers compensation purposes does not disturb a finding of “independent contractor” in a tort action. As a practical matter, employers might be less willing to grant a worker the same flexibility enjoyed by a contractor in matters like setting his own hours if the employer were on the hook for the various costs associated with a traditional employee. That increased control over the worker could have the result of triggering employee status within the tort law realm. This new reclassification something to keep an eye on, within and without New York State. Thanks to Jon O'Brien for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Devil Is in the Details in NY Settlement Checks. March 16, 2012 < Back Share to: In the case of Fleischman v. New York Life, New York’s First Department was confronted with the question of what constitutes accord and satisfaction. The specific issue before the court was whether the defendant’s tender of a refund check, and the subsequent cashing of that check by the plaintiff, indicated that the plaintiff had accepted a full resolution of the disputed claim. In affirming the trial court, the First Department ruled that it did not as there was nothing on the check or in the transmittal letter enclosing the check that indicated that the check was tendered “only on the condition that it was in full payment of the disputed claim.” The moral of the story is that the devil is in the details. If you think the issuance of a check fully resolves a claim, then you need to make that clear. Otherwise, you can be left with dangling participles that will have to be cleaned up later. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Should Attorneys Cross Examine Their Own Clients At Deposition? (NY) October 8, 2021 < Back Share to: While probably not a tool used, even considered, nearly enough, a lawyer questioning his or her client during a deposition can be a great way to clarify facts and set things up for anticipated motion practice. The words from the 1973 song Ooh La La by Faces seem appropriate, “I wish that I knew what I know now…” when my client was deposed. Rule 3113 of the CPLR frames the complete context of a deposition. At section (c) thereof, it reads that a “deponent may be cross-examined by his or her own attorney” when that party is deposed “at the instance of an adverse party.” See CPLR 3113(c). The rule goes on to further read that this cross-examination of a lawyer’s own client “need not be limited to the subject matter of the examination in chief.” Id. New York courts, in looking at this section of CPLR, have pointed out that a deponent’s lawyer is accorded a broader scope of inquiry during such circumstances and the questions are not limited to the subject matter of the examination in chief. See Orner v. Mount Sinai Hosp., 305 A.D.2d 307, 761 N.Y.S.2d 603 (1st Dep’t 2003). This scope is so broad, that in defending the deposition, virtually all objections should be withheld save those as to form. In fact, under Part 221 of the Uniform Rules for the Trial Courts, “Uniform Rules for the Conduct of Depositions,” objections at a deposition essentially ought to relate to the form objection. See 22 NYCRR § 221.1(a). So, if a client did not get the facts across as clearly or advantageously as possible, attorneys should consider cross examining their own clients pursuant to CPLR 3113(c) to mitigate any negative impact and buttress the case. Please e-mail John Diffley with any questions. Previous Next Contact

News Email Update: NJ Limits Company's Right to Read Personal Employee Emails March 31, 2010 < Back Share to: In our post of July 9, 2009, we discussed a company's right to search for and use an employee's personal email communications with her attorney exchanged through a company provided laptop computer. Stengart v. Loving Care Agency, Inc. In Stengart, the New Jersey Appellate Division decided in favor of the employee and privacy advocates in a case closely followed by the employment bar. The New Jersey Supreme Court believed that the issue was so important that it granted interlocutory leave to appeal and stayed the underlying action until it reviewed that decision. The facts in Stengart were relatively simple. Marina Stengart was an employee of Loving Care who was provided with a laptop for company related work. The employee handbook of Loving Care alerted employees that emails were considered part of the company's business records and were to used principally for business purposes. Athough employees were cautioned against considering such communications either private or personal, the handbook explicitedly permitted occasional personal emails. Stengart was not a happy employee. While contemplating legal action against her employer, she used her company laptop to access her private, password-protected Yahoo mail account through the internet to communicate with her attorney. When she left the company a short time later, she turned in her laptop and thereafter filed an employed related civil action against Loving Care. In response, the company's lawyers retained a forensic expert who recreated her laptop's harddrive and retrieved several of the emails exchanged between Stengart and her attorney. These emails were eventually identified in the company's discovery responses, which drew a vigorous objection by the plaintiff. The Supreme Court was faced with the specific question of whether these emails were protected by the attorney client privilege and the broader question of under what circumstances an employer may search for and use the contents of email communications between an employee and her attorney when those communications are facilitated by the company's electronic resources. A sticky wicket indeed. Siding with the employee and advocates of privacy in this electronic age, the Supreme Court ruled that Stengart had a reasonable expectation of privacy under the circumstances. Although the company provided and presumably owned the laptop, she used her private, password-protected Yahoo email account --not the company server or email system-- to communicate with her attorneys. In addition, the company employee handbook was ambiguous in its email policy. On the one hand, the handbook cautioned against any privacy expectation when using the internet or exchanging emails while, on the other hand, it permitted occasional personal email use. On the balance, the court found that the employee's right to confidential communications with her attorney trumped the company's absolute right to monitor and access all email communications assisted by company resources. Stengart provides important guidance on the scope of an employee's legitimate privacy expectations in the work place when electronic communications are involved. While an employer should use care in formulating a clear and well defined electronic use policy in its handbook, there are limits to a company's legal right to search for and use an employee's personal email exchanges no matter how what the handbook states. If you have any questions about this post, please contact Paul Clark at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A1609StengartvLovingCareAgency.pdf Previous Next Contact

News The Importance Of Being An Expert (PA) July 11, 2019 < Back Share to: Experts reports and opinions are paramount in proving a party’s theory of the case. In State Auto v. Kim Eagan Woods, the Middle District Court of Pennsylvania addressed a situation where a Defendant-Insured moved for summary judgment against a Plaintiff-Insurer over an apartment fire. Defendant's apartment was insured by the plaintiff and was damaged by fire. Plaintiff, relying on its expert's report, asserted the fire was started by defendant's negligently lit cigarette and commenced a declaratory judgment action. Defendant argued the fire was caused by a lamp, and further that there was no evidence to support the plaintiff’s claim. However, defendant did not retain an expert to support her contention. Plaintiff’s expert reviewed the evidence supplied in the case and conducted an examination of the scene of the fire. The expert determined that the fire was caused by a negligently lit cigarette, noting a lighter and ten empty cigarette packs in the apartment. He determined that, although the wire of the lamp showed fire damage, it was not the cause of the fire. Subsequently, the defendant moved for summary judgment. In analyzing the motion, the Court found that the plaintiff’s expert report, and other supporting evidence, set forth a prima facie case of negligence sufficient to survive summary judgment. Importantly, the Court noted that the defendant did not move to exclude the expert report or preclude the expert's testimony in her motion. The Court further noted that even if the defendant had moved to exclude the expert’s testimony, the judge would not have granted it because of the wealth of support for the expert’s opinion. In most cases, all parties to a case will retain an expert who will conduct a review of the evidence/location of interest and author a report that supports the respective party’s theory of the case. Here, the defendant moved for summary judgment based on a lack of evidence to support the plaintiff’s case. Crucially, the defendant failed to retain an expert to support her theory of the case. The Court was, thus, faced with a situation where a layman’s theory of the case was pitted against that of an expert. As such, this case exemplifies the importance of retaining an expert when a case involves technical issues, especially if the opposing party has already obtained an expert. Thank you to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Property Owners Not Liable For Unaffiliated Volunteers (NY) August 2, 2012 < Back Share to: In Harry v. Roman Catholic Diocese of Brooklyn, the Appellate Division, Second Department articulated the standard of care for premises owners with respect to volunteers using their facilities. In Harry, plaintiff was injured when a table collapsed while he was attending a meeting of a local senior citizens' club on the defendants’ premises. The table was improperly set up by a volunteer member of the club. The defendants merely provided space where the senior citizens club would meet but otherwise had no involvement in its meetings. The defendants moved for summary judgment arguing that they did not have any notice of or create the hazardous condition, and could not be vicariously liable for the acts of an unaffiliated volunteer. The Second Department agreed and upheld the dismissal of plaintiff’s complaint and grant of summary judgment to the defendant owners. Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Sender of Text Message to Driver Not Liable for Accident (NJ) May 30, 2012 < Back Share to: Everyone knows that sending or reading a text message while you drive can cause an accident. But recently, New Jersey plaintiffs tried to extend liability to a party that sent a text message to a driver involved in an accident in Kubert v. Best. On Sept. 21, 2009, Kyle Best, age 19, lost control of his pick-up truck, crossed the yellow line and struck David and Linda Kubert on their motorcycle. Both of the plaintiffs lost a leg due to injuries sustained in the accident. The Kuberts claimed that because Best was answering a text when he lost control, Shannon Colonna, who sent the text, was “electronically present” and also at fault. They also alleged that Colonna knew or should have known that Best was driving when she sent the text. They premised their legal theory on civil aiding and abetting and forseeability and proximate cause. Evidence developed during discovery showed that the defendants exchanged 62 texts that day, and three messages within about eight minutes prior to the accident, including one text within a minute of Best calling 911 to report the accident. Defendant Colonna argued against imposing liability, as texters have no control over when, where or how recipients will read and respond to their messages. In an oral opinion from the bench, Morris County Superior Court Judge David Rand agreed, and granted summary judgment dismissing civil aiding-and-abetting claims against Colonna, finding she had no duty of care under the facts of the case. If you would like further information about this case, please write to mbono@wcmlaw.com   Previous Next Contact

News Duped, Deceived or Downright Obvious? PA Supreme Court to Assess GCOP Provision in Homeowners Insurance Policy (PA) March 20, 2020 < Back Share to: The Pennsylvania Supreme Court has taken Konrad Kurach v. Truck Insurance Exchange under advisement to consider whether a Farmers Insurance division, Truck Insurance Exchange, surreptitiously withheld general contractor overhead and profit (GCOP) from property damage claim settlements. In Kurach and a second case represented by the same counsel, Mark Wintersteen v. Truck Insurance Exchange, the plaintiffs suffered water damage to their homes and submitted claims for their losses to Truck. The insurance company determined that the repairs would require the services of a general contractor. Both plaintiffs opted for actual cash value settlements rather than repairing their properties. Truck deducted the GCOP from the settlement checks, which plaintiffs argue is contrary to Pennsylvania law. At issue is whether the GCOP was improperly excluded from the calculation of the actual cash value settlement. The insurance policy states, in relevant part, that “actual cash value settlements will not include [GCOP] ... unless and until you actually incur and pay such fees and charges, unless the law of your state requires that such fees and charges be paid with the actual cash value settlement.” In a 1994 decision, the Superior Court held that because ‘actual cash value’ was not defined in the policy, the insurer “agreed to pay actual cash value, ... which include[s] any cost that an insured is reasonably likely to incur in repairing or replacing a covered loss,” minus depreciation, and that actual cash value would include GCOP if the homeowner would likely incur such costs. Gilderman v. State Farm Insurance Company, 649 A.2d 941 (Pa. Super. 1994). While Kurach and Wintersteen relied on Gilderman in their arguments, the Superior Court pointed to more recent precedent that held that an insurance policy’s language could trump definitions established by case law because the policy’s plain language is the true manifestation of the intent of the parties. Kane v. State Farm Fire and Casualty Co., 841 A.2d 1038, 1042 (Pa. Super. 2003). Pursuant to Kane, the Superior Court held that because this insurance policy stated “unless and until you actually incur and pay such fees and charges”, Truck properly deducted the GCOP from the actual cash value settlements since the homeowners did not make the repairs and had not incurred GCOP costs. In rendering its decisions, the Superior Court noted that it does not have ‘supervisory authority’ to come to the rescue of insureds who sign contracts without reading them, while at the same time critiquing the ambiguous policy language that states “unless the law of your state requires that such fees and charges be paid”, question how the plaintiffs could have known what the law in Pennsylvania was at the time of signing. The Pennsylvania Supreme Court has taken the case under advisement to consider whether the Superior Court erred in finding that the limitation of payment of GCOP from the actual cash value settlement was valid and enforceable. Stay tuned. Thanks to Priscilla Torres for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Even Soft Tissue Injuries Can Prompt Recovery at Trial (PA) October 19, 2016 < Back Share to: A Philadelphia jury awarded a plaintiff a $40,000 verdict in a motor vehicle accident this past summer. On October 7, 2013, the plaintiff, Brian Johnson, Jr., was stopped at a red light in West Philadelphia when he was struck from behind by the defendant, Tyra Elam. The parties stipulated to negligence and the case was tried on causation and damages. Johnson attended more than a dozen physical therapy sessions for lower back pain he alleged was a result of the accident. He eventually stopped with physical therapy due to seizures. He then had an MRI of his back, which showed bulges at various discs. Johnson also underwent additional tests, which showed injuries to nerves in his spine. He went to a pain specialist who administered an epidural injection and concluded that Johnson’s injuries were caused by the accident and that he suffered from serious bodily impairment. Johnson’s physician recommended future medical treatment totaling $10,000 annually with a $50,000 procedure. The defense presented a radiology expert who testified that Johnson’s bulging discs were degenerative and were not related to the accident. After deliberation, the jury found that Elam’s negligence was the cause of Johnson’s injury. This case illustrates that claims from even minor motor vehicle accidents can still result in plaintiff's verdicts. Here, the injuries, and resulting judgment, were modest. But we all know that cases like this one can often result in surgery --- and exposure in the six or seven digit realm. The morale is even small claims don't always remain small forever. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Lack of Notice Supports Grant of Summary Judgment February 22, 2011 < Back Share to: In Ameneiros v. Seaside Company, LLC, the Second Department found that defendant had established its prima facie entitlement to summary judgment and that plaintiff failed to raise any triable issues of fact, including that the dangerous condition was recurring and ongoing and that the defendant had actual knowledge of the condition. Plaintiff was injured after she slipped on a puddle of water in an elevator of an apartment building owned by defendants. The Second Department, affirming the trial court’s ruling, held that defendant had succcessfully proved that the puddle was created by a codefendant, that it did not have actual notice of the puddle, and that the puddle did not exist for a sufficient length of time for defendant to have constructive notice of the puddle. Thus defendant was entitled to summary judgment. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01226.htm Previous Next Contact

News Terms Used in the Complaint Determine Defense Coverage to the Insured June 12, 2017 < Back Share to: In Hillcrest Coatings Inc v Colony Ins Co, the Appellative Division recently affirmed the trial court’s order requiring Colony Insurance provide a defense to its insured in an underlying environmental tort action despite the CGL policy’s hazardous materials exclusion. The allegations in the underlying environmental action stated that Hillcrest Coatings operated their glass and recycling facility in a negligent manner, causing hazardous materials to contaminate the surrounding areas. The underlying complaint also alleged that Hillcrest’s negligent actions “caused a malodorous condition to be created in the surrounding neighborhood.” In disclaiming coverage to Hillcrest, Colony relied upon an exclusion that excepts from coverage all bodily injury and property damage resulting from “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘hazardous materials’ at any time.” ‘Hazardous materials’ was defined by the policy as “pollutants” including any “solid, liquid, gaseous or thermal irritant or contaminant…” The court found that ‘Malodorous’ is not necessarily ‘Hazardous,’ and Colony owed a duty to defend its insured. The Hillcrest decision serves to underscore the breadth courts attribute to the insurer’s duty to defend. The Court stated that Colony had failed to meet the high burden of establishing that the hazardous materials exclusion precluded coverage in this instance because, despite the fact that the underlying complaint specifically alleged that the “malodorous condition” resulted from hazardous materials, “foul odors are not always caused by the discharge of hazardous materials.” Thus, because “malodorous” may not be hazardous, Colony was ordered to provide a defense and to reimburse its insured for costs expended. This decision is a reminder that in terms of coverage, courts can find even an unlikely possibility of coverage to be “reasonable” when assessing the insurer’s duty to defend. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact