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News Excess Coverage: Unlimited Exposure for the Excess Carrier? (PA) January 8, 2021 < Back Share to: In Jin Ming Chen v. Insurance Company of the State of Pennsylvania (Ct. of Appeals, 2020), Plaintiff commenced a personal injury suit after sustaining an injury at a construction site. At the time of the suit, defendant Kam Cheung Construction maintained both primary and excess coverage. The combined coverage limits totaled five million dollars per occurrence: one million per occurrence from the primary carrier and four million dollars per occurrence from the excess carrier. Partial summary judgment was entered in favor of the Plaintiff, in the amount of $2,330,000 plus $396,933.70, in prejudgment interest. Following the judgment, the defendant’s primary carrier was granted a declaratory judgment rescinding the primary policy, on the basis of material misrepresentations made by the defendant in his application for coverage. In an effort to obtain the entire policy, the Plaintiff concluded that the excess carrier, Insurance Company of the State of Pennsylvania (‘ICSOP”) was liable for the entire judgment, pursuant to the policy’s “ultimate net loss” and “follow form” provisions. ICSOP contended that it was not liable for the portion of the judgment that would have otherwise been paid by the primary carrier, had coverage not been voided, as the excess policy did not “drop down.” Insurance contracts are governed by the rules of contract law. As such, the language included in an insurance policy/agreement are governed by the plain meaning of the language included in the agreement. Here, the Court of Appeals rejected Plaintiff’s arguments on the basis of the unambiguous language contained in the insurance contracts. While the Court of Appeals chose not to read beyond the language of the insurance agreement, if the Court had done so, ICOSP could have been liable for a judgment that exceeded the scope of coverage for this claim. Thus, many carriers could then be liable for judgments that far exceed coverage limits. For now, pursuant to the highest Court in the State of New York, the liability of carriers does not exceed the provisions of the insurance agreement, thus highlighting the importance of unambiguity in such agreements. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Limited Range of Motion Sufficient to Defeat Threshold Motion February 4, 2011 < Back Share to: < ![CDATA[Limited Range of Motion Sufficient to Defeat Threshold Motion]]> Previous Next Contact

News Store Not Responsible For Shoppers Overflowing Cart (NY) December 6, 2019 < Back Share to: In Aupperlee v. Restaurant Depot, LLC, the Appellate Division reversed a summary judgment denial, after a jury trial, and dismissed a lawsuit after considering a legal argument raised for the first time on appeal. On December 19, 2012, the plaintiff was a customer at Restaurant Depot when she was knocked to the floor by a U-Boat shopping cart, stacked high with items, being pushed by another customer. The plaintiff filed a lawsuit naming Restaurant Depot as a defendant. The plaintiff’s Complaint alleged that Restaurant Depot was negligent in failing to monitor its customers' use of the U-boat shopping carts and, more specifically, in failing to require customers to refrain from loading the carts over a certain height. Restaurant Depot moved for summary judgment dismissing the Complaint, but Queens County Supreme Court denied the motion, and a trial was held. At the close of the trial, the jury found Restaurant Depot 70% liable in the happening of the accident. On appeal to the Second Department Appellate Division, Restaurant Depot argued that its summary judgment motion should have been granted because it had no duty to control the conduct of another customer, specifically the customer that struck the plaintiff with the shopping cart. The Appellate Division noted that this argument was not made in the summary judgment motion but, nevertheless, considered it on appeal. The Appellate Division held that although the defendant has raised this contention for the first time on appeal, "we may consider it . . . because the existence of a duty presents a question of law which could not have been avoided if brought to the Supreme Court’s attention at the proper juncture.” Addressing the issue of legal duty, the Appellate Division ruled that in some instances the duty to keep a premises in a reasonably safe condition may extend to controlling the conduct of third persons who frequent or use the property. But made clear that “this duty is, however, not limitless." In assessing the facts of the case, the Appellate Division decided summary judgment should have been granted because “an owner's duty to control the conduct of persons on its premises arises only when it has the opportunity to control such persons and is reasonably aware of the need for such control" and the Restaurant Depot did not have control of the customer’s actions. Thanks to George Parpas for his contribution to this post. Please email Georgia Coats with any questions. 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 Failure to Identify Specific Defect = Failure to Prove prima facie negligence (NY) February 11, 2016 < Back Share to: This week, in Gold v. 35 E. Assoc. LLC, 2016 NY Slip Op 00875 (2016), the Appellate Division, First Department upheld partial summary judgment in favor of the property owner. In Gold, a trip and fall case, plaintiff and an eyewitness both testified that they did not know what caused plaintiff to fall and did not see any dangerous substance on the steps. Plaintiff testified at a deposition and submitted an affidavit conceding that the alleged “black sticky substance” that caused the fall was not noticed until weeks after the alleged incident. The Court found that although plaintiff did eventually allege a specific substance or defect that caused the fall, the defendant made a prima facie showing that this cause was speculative at best and that plaintiff could not identify any actual cause of the fall that could be attributable to the defendant. The plaintiff’s ability to identify the cause of a slip and fall incident is often an issue at the crux of a premises liability action. When testimony is speculative, or shows that the cause of the incident was not determined until well afterwards, courts sometimes find a triable issue of fact as to whether the defendants were negligent in failing to notice the defect. The Court’s decision in Gold indicates that the Court may be taking a closer look at the testimony and evidence presented by plaintiff’s as to the causation of slip and fall accidents. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Experts Require Objective Evidence to Survive Net Opinion Rule (NJ) April 12, 2018 < Back Share to: Dining at the Cheesecake Factory is normally an enjoyable event. However, in Piper v. The Cheesecake Factory a plaintiff in New Jersey filed suit for personal injuries after her lunch was ruined when a server allegedly dropped a plate onto the floor. The dish shattered when it hit the floor, and the fragment allegedly struck the plaintiff in the left eye. Noami Piper filed suit against the Cheesecake Factory claiming that the clumsy server caused her to suffer a corneal abrasion. In support of her claim, the plaintiff served an expert report prepared by her treating ophthalmologist, Dr. Hitesh Patel. Dr. Patel did not find any evidence of a foreign body in the plaintiff’s eye, or a corneal abrasion. However, in his report, Dr. Patel opined that, based on his experience with other patients, a trauma may have exacerbated the plaintiff’s pre-existing conditions and prolonged her discomfort. N.J.R.E. 703 addresses the foundational requirements for expert testimony. It requires an expert to ground their opinion in facts or data derived from one of the following sources: (1) the expert's own personal observations; (2) evidence admitted at trial; or (3) evidence of "the type . . . normally relied upon by experts." However, an expert is also required to "give the why and wherefore" in support of their opinion. In other words, an opinion consisting of "bare conclusions" or speculative hypotheses "unsupported by factual evidence" is inadmissible as a net opinion. The Cheesecake Factory filed a motion for summary judgment, arguing that Dr. Patel’s report constituted an inadmissible net opinion. The court agreed, and dismissed plaintiff’s complaint. On appeal, the court upheld the decision, finding that Dr. Patel’s report was not based on objective medical evidence. Without a medical expert, the plaintiff could not satisfy her burden of proof with respect to the element of proximate cause. This case is important, since it highlights the need for a medical expert to support their conclusion with objective evidence. Thanks to Heather Aquino for her contribution for this post. Please write to Vito A. Pinto for further information.       Previous Next Contact

News The Sidewalks are Narrowing in New York August 31, 2009 < Back Share to: New York City's "Sidewalk Law" of 2003 famously imposed on landowners the obligation to repair sidewalk defects and to clean up snow and ice or face the wrath of the plaintiff passers-by who populate our fair city. In recent years, the courts have refined the definition of sidewalk to exclude curbstones and tree wells. Now, an appellate court in Manhattan has further restricted the area that must be repaired and maintained by the adjacent landowner. The court ruled last week that the pedestrian ramps that are carved into the sidewalks at most intersections are not part of the sidewalk for purposes of the Sidewalk Law. Specifically, in Ortiz v. City of New York, plaintiff, who tripped and fell in a hole at the edge of a sidewalk pedestrian ramp, sued the City of New York and the abutting property owner and managing agent. In moving for summary judgment, the City contended that it had not received prior written notice of the defect and that, in any event, it was not liable under Admin Code §7-210 (the abutting owner liability ordinance). The abutting owner and managing agent cross-moved for summary judgment, contending that a corner pedestrian ramp was not within the meaning of the term “sidewalk” as used in Admin Code §7-210. In opposition, plaintiff submitted the affidavit of an expert, who stated that there was a height differential of 1½ to 2 inches between the base of the ramp and the street due to the absence of a protective curb, and that the City improperly paved the street next to the ramp. The Supreme Court, New York County, denied the City's motion, finding issues of fact as to whether the City created the defect when it repaved the street. The trial court also denied the owner and agent's motions, holding that the pedestrian ramp was part of the sidewalk pursuant to Admin Code §7-210. On appeal, the Appellate Division, First Department, stated that Admin Code §7-210 must be strictly construed. Therefore, if the City intended to shift liability for accidents on pedestrian ramps, the City needed to use specific and clear language in the Code to accomplish this goal. Finding no such language, the Appellate Division ruled that the abutting landowner's liability does not extend to corner pedestrian ramps. The Appellate Division reversed the lower court's ruling and dismissed the complaint and cross-claims against the landowner and managing agent. The lower court's ruling as to the City was affirmed. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06299.htm Previous Next Contact