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News Philadelphia Association Of Defense Counsel Young Lawyers Program May 23, 2019 < Back Share to: Colleen Hayes, a member of the Philadelphia Association of Defense Counsel’s (PADC) Executive Committee, served as a co-chair, as well as a moderator, at the PADC’s 7th Annual Young Lawyers Program on May 9. The Program titled “A Young Lawyer’s Guide To Litigating In Today’s World” discussed current changes in the Philadelphia Court of Common Pleas, offered practical deposition advice for young lawyers, and included a panel discussion on diversity in today’s legal community. For more information on the program’s substance, please call or email Colleen Hayes.   Previous Next Contact

News Pennsylvania Restaurant Cannot Exit Lawsuit in Summary Judgment Attempt (PA) July 3, 2019 < Back Share to: The United States District Court for the Western District of Pennsylvania recently denied a restaurant’s attempt at dismissal from an insurance company’s lawsuit. In Encompass Insurance Co v. Stone Mansion Restaurant Incorporated, the restaurant moved for summary judgment by challenging expert evidence claiming that it over-served an intoxicated driver who was later involved in a deadly crash. The underlying lawsuit involved a deadly car accident in which the driver was killed and the passenger, Helen Hoey (“Hoey”), was severely injured. It was alleged that the driver became intoxicated at an event at Stone Mansion Restaurant Incorporated (“Stone Mansion”), an eatery near Pittsburgh, Pennsylvania. As a result, Hoey sued the driver’s estate alleging that the accident occurred due to the severe intoxication. In turn, the estate tendered the defense Encompass Insurance Company (“Encompass”) which settled with Hoey in October of 2016 for $600,000.00. Stone Mansion moved for summary judgment, alleging that Encompass’ expert testimony left room for resolution as material facts remained unresolved. Specifically, Stone Mansion contested that it remained unclear as to whether staff served the driver alcohol prior to him driving the subject vehicle. Instead, Stone Mansion stated that the driver may have been given alcohol by other attendees of the event. Thus, Stone Mansion argued, it may never have served the driver while he was visibly intoxicated and should not be held liable. Rather than dismissing Stone Mansion from the matter, the Court stated that the challenges to Encompass’ expert testimony indicated that there remained a question of fact as to who last served the driver alcohol which was for the jury to resolve. Therefore, the Court concluded that summary judgment was not appropriate and denied Stone Mansion’s motion. Furthermore, the Court stated that it remained unclear whether or not the settlement paid by Encompass was voluntary or not. Stone Mansion argued that the settlement was a voluntary contribution as Encompass was not obligated under the policy to make any payments given that the driver did not own the car and was only supposed to be conducting work on it. However, Encompass’ position was that the driver obtained permission of the vehicle’s owner to use the car prior to the accident. Interestingly, the Court noted that Encompass previously filed a declaratory judgment action as to whether it had any responsibility given that the driver’s use of the vehicle was “outside the scope of a permissive use of the vehicle.” Finally, Stone Mansion argued that the Doctrine of Laches was applicable in this matter. Under this doctrine, Stone Mansion must show that Encompass “slept” on its rights for a period of time greater than the applicable statute of limitations. The Court disagreed, however, noting that the applicable statute of limitations was six years for claims of contribution. As such, the statute of limitations began to run in October of 2016, when the settlement monies were paid to Hoey. As this lawsuit was initiated well within the statute of limitations period, the Court concluded that the Doctrine of Laches did not apply. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Bound to Your Transcript: Careful What You Say in NY September 16, 2009 < Back Share to: The long standing rule that a party cannot submit a self-serving affidavit nor allege a new theory of liability for the first time in opposition to a summary judgment motion was recently upheld in Nicholas v. New York City Housing Authority. In Nicholas, the plaintiff testified that he slipped on a wet condition located on a staircase owned by the NYCHA. NYCHA moved for summary judgment on the basis that it did not have actual or constructive notice of the condition. In opposition to the motion, the plaintiff submitted an affidavit alleging for the first time that he fell on a defective/broken stair. The lower court denied NYCHA’s motion, but the First Department reversed and dismissed the complaint based on the fact that the plaintiff tailored his affidavit to avoid the consequences of his deposition testimony. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06463.htm Previous Next Contact

News Superior Court Reverses Transfer From Philadelphia Venue Where Defendant Failed To Provide Detailed Information On The Record June 28, 2023 < Back Share to: In Ehmer v. Maxim Crane Works L.P., the Pennsylvania Superior Court reversed a Philadelphia judge’s decision to transfer a personal injury case from Philadelphia to Columbia County. Plaintiff John Ehmer was injured when he struck the rear of a tractor trailer owned and operated by Maxim Crane Work while traveling on I-80 in Columbia County. The Maxim truck was traveling in the right lane below the posted speed limit. Ehmer is a resident of Berwick, Columbia County, and received his medical treatment in that county. Maxim is a Kentucky corporation with corporate office in Bridgeville, Allegheny County. Ehmer filed a person injury lawsuit in Philadelphia County. After the completion of discovery, Maxim filed a motion to transfer venue to Columbia County pursuant to forum non conveniens. In support of its motion, Maxim alleged that trial in Columbia County would provide easier access to Ehmer’s medical records and the scene of the collision, and that trial in Philadelphia would pose a hardship to three witnesses, including a Pennsylvania State Trooper. Maxim attached to its Motion written affidavits, signed by the witnesses, that compared the burden of appearing in Columbia County with the burden of appearing in Philadelphia County. However, Maxim did not include in the affidavits a summary of the testimony of the three witnesses or an explanation of the relevancy of their testimony to Maxim’s defense. The trial court granted the Moton to Transfer and Ehmer appealed. The Superior Court reversed on appeal. Since a plaintiff’s choice of forum is entitled to great weight and must be given deference by the trial court, a party seeking a transfer must prove “with detailed information on the record” that the plaintiff’s chosen forum was oppressive or vexatious. There is a vast difference between a “finding of inconvenience and one of oppressiveness.” The party seeking a change of venue bears a heavy burden in justifying the request, and that burden includes a demonstration on the record of the claimed hardships. Here, the Superior Court held that Maxim failed to carry that burden. When a transfer request is based on an allegation of witness hardship, the defendant must (1) identify the allegedly encumbered witness, and (2) make a general statement of what testimony that witness will provide. The purpose of the general statement is to establish that the proposed witness is relevant to the defense. Mere speculation that a witness possesses relevant information is not sufficient. Maxim provided no general statement and merely alleged that the content of the witnesses’ testimony was obvious from their employment. The Court also held that a need for a site visit must be supported by detailed information on the record. The Court observed that with the state of modern technology site visits are rare, and there was “no reason to believe that photographs, videos, or even an internet transmitted webcast could not suffice.” With regard to providing easier access to medical records stored in Columbia County, the Court held that because “technology allows the quick and easy transfer of medical records,” the initial locations of the records is not a factor that warrants a change in the Plaintiff’s choice of forum. This case underscores the requirement a party seeking transfer based on forum non conveniens must support its applications with detailed information on the record to show that plaintiff’s chosen forum is oppressive or vexatious. Doing so requires detailed affidavits from proposed witnesses, setting forth their proposed testimony and explaining how that testimony would be relevant to the Defendant’s case. Thanks to James Scott for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News CrossFit Discovery Sanctions Case: Court Waits for the Merits Before Deciding Coverage July 16, 2020 < Back Share to: In National Casualty Company v. National Strength and Conditioning Association, the Southern District of California weighed in on the insurance coverage implications for sanctions arising out of alleged discovery misconduct. In that decision, the court held that there could be no quick ruling regarding coverage for the sanctions pending the appeal for whether those sanctions were warranted. The decision is notable for its analysis and restraint in waiting to resolve coverage obligations until there is a final judgment on the merits. The sanctions arose from an underlying lawsuit, in which CrossFit sued the National Strength and Conditioning Association (“NSCA”) in federal court in 2014, alleging it published and distributed a study containing false, misleading and deceptive statements about CrossFit's accreditation and injury rates. In May 2017 the court sanctioned the NSCA to pay $73,550 for violating discovery orders and lying under oath. Later, court levied an additional $3.9 million in sanctions against the NSCA for further discovery abuses, finding that the nonprofit had engaged in a pattern of concealment and destruction of evidence. National Casualty, NSCA’s insurer, sued the NSCA in the U.S. District Court for the Southern District of California, alleging the nonprofit's commercial general liability and excess policies do not cover the monetary sanctions. NSCA argues that National Casualty should not be able to deny coverage because it failed to provide NSCA with independent counsel in the underlying litigation. Additionally, NSCA argues the insurer appointed a law firm that has close ties to National Casualty to defend it and the appointment created a conflict of interest. Both sides moved for summary judgment. The court denied the summary judgment motions on the basis that it could not cannot resolve coverage until a final judgment is issued on the merits of the sanctions orders. The court found that a final judgment on the sanctions will help resolve whether the NSCA made knowing or intentionally false statements. Such a finding is critical in determining whether National Casualty has a right to avoid covering the underlying litigation. The court also found that a final judgment also will inform the present coverage row by determining whether the NSCA can "shift any blame" for the sanctions to its allegedly conflicted defense counsel. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Sewage "Backup" Deemed Ambiguous, Prompting SJ Denial (PA) May 3, 2017 < Back Share to: On May 1, the Superior Court of Pennsylvania affirmed a lower court’s decision to deny Erie Insurance Exchange’s (“Erie”) motion for summary judgment in Windows v. Erie Insurance. The case arises out of raw sewage infiltration into the home of Howard and Eleanor Windows in May 2012. On May 2, 2013, Erie denied the claim citing a water damage exclusion in the Windows’s homeowner’s policy. The Windows’s then filed a complaint alleging Erie breached the policy. Erie filed a motion for summary judgment arguing that raw sewage damage was unambiguously excluded from coverage by the water damage exclusion language. Erie’s motion was denied and it appealed the decision. The policy excluded water damage, which meant, “water or sewage which backs up through sewers or drains or water which enters into and overflows from within a sump pump, sump pump well or any other system designed to remove subsurface water which is drained from the foundation area”. In Pennsylvania, it is for the finder of fact to resolve any ambiguities in a contract, such as an insurance policy, and to determine the parties’ intent in entering into that contract. When an ambiguity exists, outside evidence is admissible to clarify the ambiguity and the parties’ intent. The court determined that the policy did not define the term “backs up”. Erie argued that “backs up” entails any water or sewage that enters a premises no matter where it originated. The alternative definition is that water or sewage “backs up” only when it returns to the premises from which it originated. Because the court found there was no definition of “backs up” in the policy and that there were conflicting definitions of the term found in other case law, it found that Erie subsequently failed to meet is burden for its motion for summary judgment. This case illustrates the importance of clear and unambiguous language in insurance policies. If an exclusion or other provision in a policy is clearly written with adequate definitions then it can greatly decrease the chance of a court later rewriting a policy or extending coverage to claims a carrier would wish to deny. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. 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 Insured’s Knowledge Of Injury Required Notice To Carrier September 29, 2011 < Back Share to: In One Beacon Insurance Company v. Freundschuh d/b/d Bobcat of Buffalo (WDNY 08-CV-823, 2011), plaintiff insurance company sought a declaration that it did not owe coverage to the insured for an accident involving equipment sold by the insured. The accident occurred on December 5, 2007. Within a day or two of the accident a customer notified the insured about the accident. The salesman that sold the equipment visited the injured party in the hospital a few days after the incident, and told the insured about the visit. In addition, an investigator from the injured party’s attorney went to the insured store and left a list of questions regarding the operational safety aspects of the equipment involved in the injured person’s accident. Finally, a lawyer representing the injured party told the insured in spring or early summer of 2008 that the insured would be sued. The insured did not notify One Beacon until after being served with the complaint in September 2008. One Beacon denied coverage based upon late notice. The insured argued that he did not believe he would be involved in a lawsuit because it was a corporate issue, and that the manufacturer would handle the matter. The court held that, given the totality of the circumstances noted above, the insured did not have a good-faith belief in non-liability. Therefore One Beacon’s disclaimer was valid. For more information regarding this post please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News Co-Worker's Affidavit Sufficient To Defeat Summary Judgment in Labor Law Case February 29, 2012 < Back Share to: In Silva v. FC Beekman Associates, LLC, the plaintiff was injured when he fell 14 feet from a scaffold while working in the elevator shaft of a high rise building in Manhattan. The plaintiff sued the owner of the building and general contractor alleging a violation of Labor Law 240(1 based on a claim that there were no railings or safety net around the scaffold he was working on and he was not provided with a harness. At the close of discovery, the plaintiff moved for summary judgment. The defendants opposed the motion by providing an affidavit from the plaintiff's co-worker, James Kern, who stated that he was working with the plaintiff and the scaffold had railings on two sides. However, Kern did not witness the accident. The Supreme Court, Queens County granted the plaintiff's motion, holding that the affidavit was hearsay because Kern did not state that both railings were in place at the time of the plaintiff's accident. The Appellate Division, Second Department reversed the lower court's decision, holding that Kern's affidavit was based on his personal observations and the fact that he did not specifically state that the railings were present "at the time of the accident" was not dispositive. The Court further noted that the statement, when read in proper context and in its totality, is clear that Kern was referring to the time of the subject accident. Accordingly, Kern's affidavit created a question of fact that precluded summary judgment. Thanks to Ed Lomena for his contribution to this post. For more information about this post, please contact Nicole Brown at nbrown@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01236.htm Previous Next Contact

News A Wall Is Really A Window: "Routine Maintenance" Re-Visited September 3, 2009 < Back Share to: Labor Law § 240(1), also known as the Scaffold Law, places absolute liability on owners and general contractors to provide a safe work environment to prevent accidents that flow from the risk of performing work from elevated heights. Section 240(1) specifically enumerates activities under its protection, which includes commercial window washing, but not routine cleaning. But the courts have long struggled with the concept of what constitutes “routine maintenance.” In Declercq v. WWP Off., LLC, plaintiff was washing the walls and window ledges inside a subway station. The job entailed using a ladder to apply a cleanser, letting it soak, then again using a ladder to hose down the area. The plaintiff was hosing down the area when the ladder kicked out from underneath him, causing him to fall 20 feet and sustain injuries. The plaintiff argued that because cleaning is specifically enumerated as a protected activity under Labor Law § 240(1), and he was not provided any safety device to prevent him from falling, the defendant building owner is liable under § 240(1). The defendant argued that they are not liable under § 240(1) because the plaintiff was involved in routine cleaning. The cleaning was routine because the plaintiff was cleaning the walls and window ledges, and not the windows. The court disagreed and held that the plaintiff was not performing routine cleaning because he was not cleaning residential or household buildings. And, cleaning under § 240(1) is not limited to cleaning windows. Section 240(1) protects workers while cleaning when it involves an elevated height without the proper safety equipment, which the court found is exactly what happened in this case. Declercq makes plain that where the worker requires a ladder (or works from a height), the marked judicial trend is to find 240(1) applicable even if the task is as mundane as washing walls. Thanks to Anne Mulcahy for her contribution to this post. For more information, please email Dennis Wade at dwade@wcmlaw.com . Previous Next Contact

News PA-No Extrinsic Evidence For You October 12, 2018 < Back Share to: In Lupa v. Loan City, LLC, the Third Circuit Court of Appeals confirmed the standard upon which an insurer’s defense obligations are triggered under Pennsylvania law. In Lupa, the insured sought coverage from its insurer for various claims asserted against it. In response to the insured’s request for defense, the insurer denied the insured’s claim, contending the complaint against the insured did not trigger coverage under the policy. On appeal, the insured contended that the four corners rule should not be applied to determine coverage under a policy. The Court of Appeals disagreed. The court held that, under Pennsylvania law, an insurer’s duty to defend could only be triggered by allegations within the four corners of the complaint. The court continued that there were no exceptions to this rule, which would require an insurer to rely on facts introduced outside of the complaint, i.e. extrinsic evidence. Accordingly, this case confirms that courts applying Pennsylvania law will apply the four corners test to determine whether an insurer’s obligation to defend has been triggered. Thanks to Colleen Hayes for her contribution to this post.   Previous Next Contact

News Cell Phone Update: Potential Liability for Texting a Driver (NJ) August 27, 2013 < Back Share to: What did we do before texting was invented? Although some people believe that it is quaint and outdated, we actually spoke to each other. Sometimes we talked by telephone or in person. Now, texting is a preferred method of communication with its own grammar, spelling and acronyms. Like any new techology, texting has a dark side. At its worst, it can distract drivers from the hazards of the road, sometime with fatal consequences. We know that a "texting driver" may have both criminal and civil liability if an accident ensues but what about someone who texts a driver who then causes a serious accident? Can the third party who sent the driver a text be liable as well? In Kubert v. Best, Kyle Best, age 18, was driving his pick-up up truck when he apparently received a text message from his 17 year old friend. Momentarily distracted by the text, he crossed the double yellow line and struck a couple riding a motorcycle, causing them both serious personal inuries. The couple sued Kyle as well as the friend who sent him the text. The lower court ruled that the texting friend had no duty to refrain from sending the text and the plaintiffs' appealed. The Appellate Division affirmed the dismissal of plaintiffs' complaint but held that a person may be liable for sending a text message to the driver of a motor vehicle only if he knows or has reason to know that the recipient will read the text while driving. In this case, plaintiffs' proof fell short of the mark so the dismissal was affirmed. But the door is now wide open to impose liability for an accident on a person not physically present in the motor vehicle if the sender of a text is aware that the receipent may receive and review the text while driving. If you have any questions, please email -- or text-- Paul at pclark@wcmlaw.com   Previous Next Contact