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News Two-Year Old Photo is Sufficient to Support Negligence Claim (PA) October 16, 2020 < Back Share to: In Taylor v. Lots for Sale LLC, plaintiff fell and was injured when she stepped into a two-inch drop-off on the sidewalk in front of Lots for Sale, LLC (“Lots for Sale”). At the non-jury trial, the plaintiff presented photos of the sidewalk where she fell, including photos establishing that the drop-off existed for more than two years before her fall. The trial court found in Taylor’s favor, and Lots for Sale subsequently appealed. In their appeal, Lots for Sale argued that plaintiff failed to present sufficient evidence that Lots for Sale knew or should have known of the drop-off. The Superior Court noted that, according to the photos, Lots for Sale had ample time to take notice of the drop-off and repair the defect. The Superior Court upheld the trial court’s ruling. This case demonstrates the importance of inspecting a commercial property and the surrounding sidewalks for potential defects. Leaving a potential defect for several years can be used against you in a future litigation. Thanks to Nicholas Wright for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News WCM Is Pleased To Announce That Effective July 1, 2013, Brian Gibbons Has Been Promoted To Counsel July 12, 2013 < Back Share to: A former prosecutor in the Bronx and WCM attorney since 2009, Mr. Gibbons defends individuals and businesses from a variety of general liability claims. He also handles first party property matters during the claim investigation and in litigation. A New York native, Mr. Gibbons is a graduate of Boston College and St. John’s University School of Law. He is an active member of the Regis Bar Association and a new member of the Nassau County Bar Association. Previous Next Contact

News How Long is Too Long to Wait before Reattempting Service of a Complaint? (PA) May 29, 2019 < Back Share to: On May 22, 2019, the Superior Court of Pennsylvania affirmed an entry of judgment on the pleadings in favor Antoine’s Timbering, Inc. in Pa Electric Co. v. Antoine's Timbering The case stems from Antoine’s Timbering allegedly cutting down a tree that caused damage to poles, wires and facilities of Penelec as well as a loss of power to its customers. Nonetheless, the issue before the Superior Court involved service of the complaint on Antoine’s Timbering. On February 19, 2016, prior to filing the complaint, Penelec reviewed the address listed for Antoine’s Timbering on the Corporation Bureau which showed that Antoine’s Timbering could be located at RT 438, Box 86, La Plume, PA 18440. However, on April 19, 2016 the Sullivan County Sheriff’s Office filed an affidavit stating service had not been perfected on Antoine’s Timbering because the address was invalid. Even though counsel for Penelec received this information, Penelec did not make another service attempt until 18 months later on October 10, 2017. During that time, the statute of limitations had expired on April 24, 2017 and therefore service was improper. Nonetheless, Antoine’s Timbering was eventually served on December 8, 2017 at the correct address. Upon receiving the complaint, Antoine’s Timbering filed preliminary objections arguing Penelec failed to effect service in a timely manner and therefore violated the statute of limitations. Penelec countered by arguing it had made attempts to secure Antoine’s address and therefore had undertaken a good faith search and therefore the “equivalent period doctrine” applied. The Court sustained Penelec’s preliminary objections and, after the pleadings closed, Antoine’s Timbering filed a motion for judgment on the pleadings making the same argument. This time, the Court agreed and granted the motion filed by Antoine’s Timbering. The Court ruled that the 18 month delay “unnecessarily delayed the legal process” and therefore Penelec did not make a good faith effort to serve Antoine’s Timbering. On appeal, Penelec attempted to argue it made a good faith effort in serving Antoine’s Timbering but the Superior Court again disagreed. The Court stated the “equivalent period doctrine” was inapplicable here because Penelec had provided no justification as to why it waited 18 months to attempt to effect service on Antoine’s Timbering again. The Court noted that Penelec had not even tried to locate another address for Antoine’s Timbering during that time. As such, the Court affirmed the lower court’s ruling. This fact pattern also offers some insight as to why defense counsel should be careful before agreeing to waive jurisdictional defenses in exchange for an extension of time to answer a complaint. Jurisdictional defenses include lack of personal jurisdiction and improper service, and those defense come in handy -- especially when approaching the statute of limitations deadline. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

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

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 Are Experts Needed for Res Ipsa Cases? February 7, 2013 < Back Share to: The New Jersey Appellate Division recently handed down a decision that clarifies when expert testimony is required in res ipsa loquitur cases, and when the doctrine may be applied. In certain cases where the cause of an accident is not entirely clear, this doctrine allows a permissive presumption that a defendant breached a duty of care owed to a plaintiff based upon how an accident occurred, provided certain required factors are present. The jury is then free to accept or reject the presumption. In Mayer v. Once Upon A Rose, Inc., the plaintiff, a caterer, claimed that he had been injured while setting up for an engagement party. The defendant, an employee of a florist who was also setting up a display for the engagement party, was carrying a heavy vase that the florist had used on several previous occasions. The plaintiff and defendant set forth different versions of how the defendant was holding the vase at the time the accident occurred. However, the uncontroverted evidence was that the vase shattered while the defendant was holding it, and that the plaintiff was cut by shards of glass from the broken vase. At trial, the plaintiff did not present an expert on the issue of how the glass vase shattered, arguing res ipsa allowed jurors to presume defendant must have been negligent in some way for the vase to have shattered. The court granted a motion for a directed verdict made by the defendant at the end of the plaintiff’s case, finding the failure to present expert testimony on the issue was fatal to the plaintiff’s case. The trial judge also opined that it was unclear whether res ipsa loquitur applied to these circumstances. On review, the New Jersey Appellate Division reversed the order for a directed verdict and remanded the matter for a new trial. The Appellate Division, citing New Jersey Supreme Court precedent, stated that expert testimony is not necessary in all cases where the res ipsa loquitur doctrine is invoked. In fact, as long as, based upon common knowledge, the balance of the probabilities in the case favors negligence on the part of the defendant, expert testimony is not necessary. In essence, if the average juror is able to deduce how the accident occurred without needing to resort to specialized knowledge, then expert testimony is not required. Additionally, because this case involved a glass vase that was in the exclusive control of the defendant, the Appellate Division held that the doctrine of res ipsa loquitur could apply to these circumstances. The jury would be permitted to infer that the defendant was somehow negligent, causing the vase to shatter. The Mayer decision demonstrates that, much like in other areas of the law, expert testimony is only required in cases invoking the doctrine of res ipsa loquitur when the subject matter falls outside the ken of the average juror. Thanks to Christina Emerson for her contribution to this post. If you would like more information please write to mbono@wcmlaw.com . Previous Next Contact

News GC's Right of Supervision Over Subcontractor Work is Key to Determination (PA) July 27, 2017 < Back Share to: On July 19, 2017, the Superior Court of Pennsylvania affirmed an order denying a motion to remove the entry of nonsuit as to Appellee Patrick Smiley, Jr. (“Smiley”), following a jury trial that resulted in a $501,107.41 verdict against Fairman’s Roof & Trusses, Inc. (“Fairman’s”). Smiley filed the underlying suit against Fairman’s after Fairman’s delivered bent trusses to a construction site where Smiley was the general contractor. These bent trusses were installed by Chris Fisher Construction (“Fisher”) and led to the collapse of a partially constructed pole barn. The collapse left Brian Baird trapped beneath four trusses and seriously injured him. Smiley alleged that Fairman’s breached their contract and warranty by delivering bent trusses. Fairman’s also filed a complaint to join Fisher as an additional defendant. In January 2013, Brian Baird and his wife commenced a separate civil action against Smiley and Fairman’s for products liability, negligent design, premises liability, negligence, and loss of consortium. Smiley also filed a cross-claim against Fisher alleging that Fisher was solely liable for the claims asserted by Appellants or was required to indemnify Smiley pursuant to an alleged indemnification agreement between the parties. The trial court bifurcated the appellants’ claims against Fisher from all claims of liability against Smiley and Fairman’s. In the trial against Smiley and Fairman’s, the trial court granted Smiley’s oral motion for nonsuit. The jury then returned a verdict in Appellants’ favor and against Fairman’s in the amount of $501,107.41. Appellants filed an appeal contending that the entry of nonsuit in favor of Smiley was improper prior to the presentation of evidence by all defendants. The Superior Court disagreed stating that Fairman’s indicated on the record that it was not taking a position on Smiley’s oral motion for nonsuit. Thus, Fairman’s lack of opposition suggested it did not intend to present evidence as to Smiley’s liability as part of its defense. In addition, Appellants had the opportunity to develop a case for liability during their case-in-chief which they failed to do. The court adhered to the general rule in Pennsylvania that a contractor is not liable for injuries resulting from work entrusted to a subcontractor unless the general contractor retained control or right of supervision over the performance of the work. Here, Smiley had hired Fisher based on Fisher’s experience in building pole barns and delegated the task of construction and supplying labor to him. Further, Smiley did not visit the job site and never made an attempt to supervise Fisher’s construction work. Thus, Fisher was in total control of the project and therefore Smiley was not responsible for the actions of Fisher. As a result, the Superior Court found no abuse of discretion or error of law by the trial court in entering nonsuit in Smiley’s favor. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact