Wade Clark Mulcahy LLP

News Who Bears the Risk of Proper Trucking Packing? The 3rd Circuit Weighs In. October 21, 2010 < Back Share to: In Spence v. ESAB Group, Spence, a trucker, was injured when his tractor trailer overturned after he had picked up a load of cargo that had been packed by ESAB. He commenced a lawsuit against ESAB based upon ESAB’s negligent packing. On appeal, the Third Circuit was faced with the question of whether Pennsylvania law “imposes upon a shipper a duty of care to safely secure the goods the shipper has loaded in a third-party carrier’s tractor trailer.” ESAB argued that 49 CFR §392.9(a) and 49 CFR 393.100 preempted state law and placed sole and exclusive responsibility for adequately securing a load on the trucker and not the shipper. Spence, in opposition, claimed that the federal statutes/codes were not meant to totally preempt state law and thus Spence could proceed with his negligence claim against ESAB. The Third Circuit agreed with Spence -- http://www.ca3.uscourts.gov/opinarch/094363p.pdf The Third Circuit ruled that “those who undertake the task of loading, securing and hauling cargo on tractor-trailers have a duty to exercise due care to protect property and persons from the risk of harm.” If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Cloudy With A Chance Of No Coverage March 22, 2019 < Back Share to: The District Court of New Jersey, applying admiralty jurisdiction, recently ruled on coverage under an all-risk policy insuring a 65-foot yacht in Chartis Prop. Cas. Co v. Inganamort. The Defendant Insured had obtained an all-risk policy from Plaintiff Chartis covering their 1996 Sportfish, dubbed Three Times A Lady, harbored in Florida. The initial claim to Chartis stated that Lady had suffered a partial sinking on September 15, 2011 due to “heavy rainstorms.” Chartis initiated the declaratory judgment action soon after and moved for summary judgment arguing its policy provided no coverage for the sinking loss of the yacht. The parties did not dispute that applicable Fortuity Rule holds that all-risk policies in marine insurance contracts cover any loss caused by a fortuitous event. Thus, the question before the Court was: had Defendant Insured met its burden of establishing a “fortuitous” loss of Three Times A Lady? While the Defendant Insured put forth a Marine Surveyor as an expert who opined that during September 2011 there were “two or possibly three coastal events of heavy rains, lightning, and heavy thunderstorms” in South Florida, the Court was swayed by Plaintiff Chartis’ expert, a certified meteorologist, whose report set forth that the heaviest rainfall in September 2011 yielded only 1.21 inches of rain – an amount not sufficiently fortuitous to have caused a partial sinking of a 65-foot boat. The Court therefore granted Chartis’ summary judgment motion in favor of a finding of no coverage for the loss. Say what you will about your local meteorologist’s accuracy in forecasting the weather, but this case illustrates that meteorologists can be precise and reliable when opining on yesterday’s weather, as a matter of law, for coverage purposes. Thanks to Vivian Turetsky for her contribution to this post. Please email Colleen Hayes with any questions at chayes@wcmlaw.com Previous Next Contact

News Stockpiled Materials Cemented Defendants’ Dismissal (NY) August 3, 2018 < Back Share to: In Kusayev v. Sussex Apts. Assoc., LLC the Appellate Division, Second Department, ruled that a delivery truck driver who fell while using a hand truck loaded with boxes of tile and quick cement, causing the material to land on him, was not entitled to strict liability recovery under Labor Law 240(1) and 241(6) against the building owner because he was neither engaged in construction work nor working in a construction area within the meaning of the statutes. Plaintiff alleged that he was injured while delivering construction materials to an apartment building owned by defendant Sussex Apartments after pulling the hand truck he had loaded high with tile and quick cement up a single step to the entrance of the property. Plaintiff lost his balance, falling to the ground with the items on the hand truck landing on top of him. He commenced an action pursuant to Labor Law 200, 240(1) and 241(6) against Sussex as property owner. Sussex moved for summary judgment, which was granted by the lower court. With respect to Labor Law 240(1) and 241(6), Sussex was entitled to dismissal because plaintiff was not engaged in construction work within the meaning of 240(1) and was not working in a construction area within the meaning of 241(6) since the building materials on the hand truck were not being “readied for immediate use” but rather were being “stockpiled for future use”. The Labor Law 200 claims were also dismissed because Sussex demonstrated that it did not create or have actual or constructive notice of the alleged condition which caused the plaintiff's injury, and that it did not supervise or control the means and methods of the plaintiff's work. As the alleged accident involved defects in both the premises and the equipment at the work site, Sussex was obligated to submit sufficient proof to satisfy both liability standards, which the Court determined it did. The Court therefore affirmed the lower court’s dismissal of plaintiff’s complaint against the property owner. Thanks to Lauren Tarangelo for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Voyeur's Sidetrack off Sidewalk to Peep in Window at Football Players Not Reasonably Foreseeable Use of Public Property (NJ) September 6, 2013 < Back Share to: Under common law, citizens could not sue the sovereign. The New Jersey Tort Claims Act is somewhat more liberal - but with very specific limits. When a person is injured due to a dangerous condition of public property, the Act does permit recovery, provided the plaintiff can prove each element enunciated by the Legislature. Since the Act includes a statement of legislative intent to broadly limit public entity liability, courts are to exercise restraint when novel theories are presented. In Sherman v. Rutgers, the plaintiff alleged that she fell while walking to her car after attending a Rutgers football game against Louisville. She had left the game at halftime and was walking along a sidewalk near the Hale athletic center when she observed lights on in the building. Thinking that she saw football players inside, she took a turn off the sidewalk to get closer to the building to peer into the window. Intent on the window, she did not pay attention to the ground in front of her. Bordering the edge of the sidewalk was a retaining wall that protected a well between the sidewalk and the building designed to address waterproofing for the building. The plaintiff tripped over the retaining wall dislocating both arms and sustaining fractures for which surgery was required. The plaintiff complained that the area was poorly lit and a dangerous condition of the public property. Rutgers countered that the plaintiff's detour from the sidewalk was unforeseeable. As such, it was clear that the plaintiff did not use the property with objective due care as required by the Act. Moreover, with no other such accidents reported since the area was constructed in 2007, it had not acted palpably unreasonably, i.e. it was not manifest and obvious that the university should have taken some action to adress any alleged condition. The Appellate Division affirmed summary judgment for the university. The court agreed that walking perpendicular to the sidewalk towards the building's opaque glass walls to look into a window was not a normal, foreseeable use of the walkway. Had the plaintiff walked along the direction of the sidewalk, she would not have been injured. Moreover, the lighting would have been sufficient to safely traverse the walkway had she not chosen to peek in the windows to see the football players. The court was not persuaded she had been drawn off course by "an attractive display" inside the building at eye level. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Is Lead Paint a Pollutant? That Depends on Who, and Where, You Ask March 25, 2016 < Back Share to: While Total Pollution exclusions have generally been applied broadly, insurers must be cognizant of a fascinating conflict between different state’s jurisprudence. This conflict involves the question of whether lead or lead based products and by-products are considered “pollutants” under a total pollution exclusion. This conflict was highlighted recently when the Georgia Supreme Court found that a policy’s pollution exclusion applied to an injury that resulted from the ingestion of lead-based paint. In Georgia Farm Bureau Mut. Ins. Co. v. Smith, 2016 Ga. LEXIS 245 (Ga. Mar. 21, 2016), a minor tenant was injured due to ingestion of lead-based paint chips. The plaintiff insurer moved to disclaim coverage based on the policy’s pollution exclusion. Following the insurer’s victory at the trial level, the Georgia Court of Appeals reversed, claiming that lead-based paint was not a “pollutant” as defined under the policy because it wasn’t specifically mentioned in the exclusion. The Georgia Supreme Court noted that the pollution exclusion was not limited to environmental harms and that the exclusion needs to be evaluated by its terms in accordance with Georgia law. Additionally, the court referenced a prior Georgia case, Reed v. Auto-Owners Ins. Co., 284 Ga. 286, 667 S.E.2d 90 (2008), where the court found that the pollution exclusion applied to a claim related to carbon monoxide poisoning despite carbon monoxide poisoning not being explicitly mentioned as a pollutant. Using the same analysis, the Supreme Court held for the insurer, declaring lead based paint to be a pollutant for the purposes of the pollution exclusion. Notably, New York courts take the opposite stance. The case of Westview Associates v. Guar. Nat. Ins. Co., 95 N.Y.2d 334, 338, 740 N.E.2d 220, 222 (2000) concerned essentially identical facts as Georgia Farm Bureau, in that a minor suffered bodily injury due to the ingestion of lead-based paint chips. The New York Court of Appeals, equivalent in stature to the Georgia Supreme Court, held that the lead-based paint chips did not constitute a pollutant. The Court of Appeals reasoned that, if lead-based paint chips were meant to be excluded by the policy, as the insurer claimed, then they would have been specifically mentioned in the exclusion. Since they were not, the court ruled that the issue constituted an ambiguity in the policy and interpreted it against the insurer. The key difference between each states approach resides in their respective analytical framework. Georgia courts have a history of enforcing pollution exclusions without requiring the pollutants to be explicitly named in the policy—taking a common sense view of what is regarded as a pollutant. By contrast, New York plays by the card, requiring more specificity. This decision, once again, calls upon Underwriters to develop wording with enough breadth to carve-out the risks they are unwilling to embrace. What works in Georgia may not work elsewhere. Insurers have to be cognizant of where a given action is being litigated and where a given policy is issued. Thanks to Joshua Gornitsky for his contribution to this post. For more information, please email Dennis M. Wade at dwade@wcmlaw.com . Previous Next Contact

News Sole Fact of a Workplace Fall Falls Short For Labor Law § 240(1) Claim (NY) April 12, 2017 < Back Share to: The New York Court of Appeals recently reiterated that the fact of a workplace fall alone is insufficient to support a summary judgment under Labor Law § 240(1). In O'Brien v. Port Authority, the plaintiff, O’Brien, was injured while working for a subcontractor at the 1 World Trade Center construction site. He brought suit against the Port Authority and the general contractor. On the date of his fall, O’Brien had been working at ground level during periodic rain. When he headed down one level to retrieve his raincoat from his shanty, he slipped off the tread of the top step of a temporary exterior metal staircase (also described as a temporary scaffold) and fell down the stairs, sustaining injuries. The stairs were wet due to exposure to the elements. In addition, O’Brien testified that the stairs were “steep, slippery and smooth on the edges.” He also stated that his right hand was on the handrail, but he lost his grip because the handrail was also wet. Plaintiff submitted an affidavit from a co-worker that stated that the stairs were slippery when wet and the slippery nature of the stairs was common knowledge at the construction site. Plaintiff also submitted an expert affidavit in support of his motion for summary judgment on his Labor Law §§ 240(1) and 241(6) claims. The expert opined that the stairs were “not in compliance with good and accepted standards of construction site safety and practice” or with OSHA. His expert also opined the stairs were “smaller, narrower and steeper than typical stairs,” making it more difficult to maintain proper footing. The expert claimed that the stairs showed signs of longstanding wear and tear and lack of adequate anti-slip protection. In opposition and in support of defendants’ cross-motion, their expert opined the staircase was “designed and manufactured so as to provide traction acceptable within industry standards and practice in times of inclement weather.” The defense expert observed that the staircase provided both perforated holes to allow rain to pass through and raised metal nubs for traction, and opined that these anti-slip measures were sufficient. The defense expert also disputed the staircase was smaller, narrower or steeper than usual. The trial court denied all parties’ motions on the Labor Law § 240(1) claim, finding issues of fact as to whether the temporary staircase provided proper protection. The trial court, however, granted plaintiff summary judgment on his Labor Law § 241(6) claim based on its determination that there was a violation of Industrial Code 12 NYCRR § 23-1.7 (d), which states that “Employers shall not suffer or permit any employee to use a floor, passageway, walkway, scaffold, platform or other elevated working surface which is in a slippery condition. Ice, snow, water, grease and any other foreign substance which may cause slippery footing shall be removed, sanded or covered to provide safe footing.” On appeal, with one judge dissenting, the First Department modified the order by granting plaintiff's motion on his Labor Law § 240(1) claim and denying him summary judgment on the Labor Law § 241(6) claim. The First Department noted the conflicting expert opinions as to the adequacy and safety of the staircase, but nonetheless held that the staircase, a safety device, malfunctioned or was inadequate to protect plaintiff against the risk of falling. The Court of Appeals considered only the Labor Law § 240(1) claim, finding that the First Department improperly found the stairs inadequate on the sole basis that the plaintiff fell – again with one justice dissenting. The majority of the Court reiterated its clear holding from past decisions that “the fact that a worker falls at a construction site, in itself, does not establish a violation of Labor Law § 240 (1)” and distinguished this case from those where a ladder collapses for no apparent reason. The Court found that there were questions of fact as to whether the staircase provided adequate protection – particularly with respect to the conflicting expert opinions. While both expert affidavits were phrased in the context of compliance with industry standards, the Court held compliance is not enough to establish adequacy, but their ultimate opinion on adequacy did raise an issue of fact. Justice Rivera’s lengthy dissent focused on the majority’s reliance on the “industry standard” as the bases of the expert opinions and argues that reference to industry custom and practice contradicts the legislative intent of the statute by enabling owners, contractors and their agents to set their own standard of care for workers’ protections, thereby diminishing their statutory obligations. While the argument that a plaintiff was the sole proximate cause of an accident must be supported by an expert affidavit, the practitioner must ensure that the basis of any expert’s findings is valid, in order to demonstrate a question of fact requiring the issue to be decided by a jury. Despite the dissent, an opinion grounded on “industry standards” is a valid basis for an expert opinion. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Decision on Pollution Exclusion Stinks for Insurer (NY) December 16, 2011 < Back Share to: Barney Greengrass is a small delicatessen located on the Upper West Side. The “Sturgeon King” has been open for more than 100 years, and is a well known breakfast spot. But its neighbor, Theodore Bohn, is not a fan. Claiming that he was unable to use his living room because of overpowering odors, he sued the restaurant. Barney Greengrass tendered the defense of the suit to its insurer, Lumbermens, who denied coverage, citing to the pollution exclusion, which excluded coverage for property damage arising out of the discharge of “pollutants.” The restaurant filed a declaratory judgment action against its insurer, and was awarded summary judgment. The district court found that to read pollution as encompassing restaurant odors would “contradict common speech” and the “reasonable expectations of a business person.” On appeal, the insurer argued that the odors were “fumes,” defined in the policy as a pollutant. The appellate court rejected that claim, noting that the policy did not define fumes, and that any precedent for odors falling within the ambit of the exclusion were in circumstances where the odor was linked to traditional environmental pollution, such as the dumping of waste materials or leakage from a sewage treatment plant. Lumbermens also claimed that, under the New York City Administrative Code, restaurant odors could constitute “air contaminants” subject to regulation. But the Court was unwilling to link such regulations to an insurance coverage dispute and upheld judgment in favor of the restaurant. http://www.leagle.com/xmlResult.aspx?xmldoc=In%20FCO%2020111104087.xml&docbase=CSLWAR3-2007-CURR If would like more information about this case, please write to Mike Bono at mbono@wcmlaw.com . Previous Next Contact

News Three Strikes and You’re Out on Coverage: COVID-19 Business Interruption Claim Fails (PA) December 18, 2020 < Back Share to: Of course, COVID-19 and accompanying shutdown orders impact on business interruption claims are still among the most pressing issues facing the courts. In Toppers Salon & Health Spa Inc v Travelers Property Casualty Company of America, the Eastern District of Pennsylvania has provided one of the most definitive answers on the issue with its rejection of an insured’s business interruption claim. Plaintiff Toppers operates a chain of day spas in Pennsylvania, New Jersey, and Delaware, all of which have been affected by government mandated shutdown orders. Toppers’ insurance policy covers interruption to its business which includes business income coverage and civil authority coverage. The key provision in the policy here is that it covers loss “due to the necessary suspension of your ‘operations’ during the ‘period of restoration,’” if the suspension was “caused by direct physical loss of or damage to property at [the insured's] premises.” “The ‘Civil Authority’ provision covers loss of Business Income and extra expenses incurred due to damage to property other than property at the insured's premises, when as a result of ‘dangerous physical conditions,’ a civil authority's actions prohibit access to both the insured's premises and the area immediately surrounding the damaged property.” The Court held that neither of these provisions applied in this case deciding that being forced to close as a result of the shutdown orders was not a “physical loss.” The language the Court primarily focused on was the period for which the policy would reimburse a loss. The policy provided that this period ended on the “date when the property at the described premises should be repaired, rebuilt or replaced.” The Court opined that for this language to make sense, a physical loss must have occurred to be repaired, and the shutdown order did not meet this definition. The Court believed the policy language demonstrated the intent of the parties that any loss must be some sort of physical damage. The Civil Authority coverage did not apply because, similarly, a physical loss had not occurred to neighboring property. The Court also looked at the specific Virus Exclusion holding Plaintiff would also lose its claim for coverage because of its plain language as well. The Virus Exclusion applies to “loss or damage caused by or resulting from any virus ... that induces or is capable of inducing physical distress, illness or disease.” The Court held that, “The language is not ambiguous, and it applies to Covid-19, which is caused by a coronavirus that causes physical illness and distress.” The Court held that similar language was held to exclude coverage in South Dakota and California. This opinion is one of the strongest yet to deny coverage for businesses forced to close due to government shutdown orders during the COVID-19 pandemic. A clear Virus Exclusion is one way for insurance companies to be sure that they will not be required to cover for these types of losses, but this Court went further, holding that COVID-19 is not a physical loss that could be covered by a business interruption or civil authority coverage. While courts will still wrestle for the time being as to how exactly COVID-19 and insurance overlap, this Court strongly casted its vote in favor of the lack of coverage camp. Thanks to Ryan Geib for his contribution to this post. If you have any questions or comments, please contact Thomas Bracken. Previous Next Contact

News New FSMA Rules Still in Limbo. May 4, 2012 < Back Share to: The Food Safety Modernization Act (“FSMA”) was supposed to result in a dramatic restructuring of the US food industry. And someday soon it might. But to implement its strategic vision, tactics (i.e. rules) need to be implemented. The four key rules (for preventative controls for food facilities, preventive controls for animal feed facilities, the foreign supplier verification program and the produce safety rule) were supposed to be ready for comment in January. But, the proposed rules have yet to be published by the White House Office of Management of Budget's Office of Information and Regulatory Affairs. The cause of the hold-up is unknown, but in this election cycle (and given Congress’s unwillingness to fund the FSMA), our guess is that politics (and not in the good Artisotelian sense) is to blame. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News Call Your Next Witness - Angela Levitan of ARCCA Discusses Biomechanical and Human Factors Analysis June 17, 2021 < Back Share to: Generally, I'm amused by the term "human factors" in the context of expert testimony. Doesn't everything involving people necessarily involve human factors? When I was a prosecutor, I was similarly amused by the "Anti-Crime" police unit. As opposed to the "pro crime" unit? Apologies for the Faulkner-esque stream of consciousness rant... In the forensic sense, human factors and biomechanics -- which often overlap to some degree -- are specific terms of art. And they can be critical to assessing liability and damages, respectively, in the accident context. As we discuss in the next episode of Call Your Next Witness, the WCM podcast, these fields are in Angela Levitan's wheelhouse. She is an engineer, bio-mechanist and human factors expert providing analysis, consultation, and where appropriate, testimony to assist litigants at trial. Simply stated, Angela can provide forensic support to the "common sense" arguments that we often consider during the claim investigation, to wit, "there's no way this accident happened the way the plaintiff says." Angela can help confirm or refute our theories early in the game. Angela has provided expert analysis for us on many occasions, and if she cannot help your case for whatever reason, she'll tell you that -- which renders Angela's opinion utterly credible. Our discussion focuses on Angela's general approach, and some of the interesting claims she has handled over the years. We also discuss my theory that Hooper from Jaws is the quintessential expert consultant. Listen to our interview with Angela on Call Your Next Witness! If you'd like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons or Georgia Coats. Previous Next Contact

News While Use Of Man-Lift Results In Death, Employer, Repairer, Inspector and Manufacturer Not Liable October 9, 2008 < Back Share to: In Altinma v. East 72nd Garage Corp et al, plaintiff’s decedent sustained fatal injuries when he was allegedly pinned beneath a single-person vertical transportation device called a man-lift while working at Somerset Garage in Manhattan. Plaintiff brought this action against East 72nd, the garage license holder, Ace Overhead Garage Door Inc, the entity that repaired the man-lift on an as-needed basis and Charles Calderone Associates Inc, the entity that performed annual inspections of the man-lift. Multiple third-party actions were commenced, including an action in strict products liability against Humphrey Man-Lift Corp, the man-lift manufacturer. All of the original parties and Humphrey moved for summary judgment. The trial court granted East 72nd summary judgment as against plaintiff, but denied summary judgment as to cross-claims. Humphrey was also awarded summary judgment and all of the original parties appealed. The Appellate Division, Second Department reversed the trial court’s decision and granted summary judgment to Ace and Calderone and affirmed the trial court’s decision as to East 72nd and Humphrey. Unpersuaded by plaintiff’s arguments that Ace and Calderone may have in the performance of their duties failed to properly inspect or warn so to “launch a force or instrument of harm,” the Appellate Court found as a matter of law they did not owe a duty to the non-contracting plaintiff. For East 72nd, the trial court correctly found the decedent to be a special employee and dismissed the action pursuant Workers’ Compensation Law §11. However, since the decedent suffered a grave injury, co-defendants’ cross-claims for indemnification and/or contribution remained viable. Lastly, since there was no triable issue of fact as to whether Humphrey marketed the man-lift that was not reasonably safe or that the alleged defective design of the man-lift was a substantial factor in causing plaintiff’s injury, the decision to grant Humphrey summary judgment was affirmed. http://www.nycourts.gov/reporter/3dseries/2008/2008_07202.htm Previous Next Contact

News U.S. Supreme Court: N.Y.'s Method Of Judicial Elections May Be Broke, But We Can't Fix It January 17, 2008 < Back Share to: The United States Supreme Court unanimously overturned the 2006 decision by the Court of Appeals - Second Circuit that found New York's party convention system for choosing judicial nominees unconstitutional. While a victory for New York's Board of Elections, four of the nine justices of the Supreme Court criticized the convention system. In particular, Justice Stevens, quoting Justice Thurgood Marshall, wrote, "The Constitution does not prohibit legislatures from enacting stupid laws." http://www.nytimes.com/2008/01/17/nyregion/17scotus.html?_r=1&scp=1&sq=supreme+Court+political&oref=slogin Previous Next Contact