Wade Clark Mulcahy LLP

News Plaintiff’s Pothole Predicament Prevails on Appeal (NY) August 15, 2019 < Back Share to: In Karpel v National Grid Generation LLC, plaintiff alleged a trip and fall over a raised edge in the roadway. At the time of the fall, excavation work was being done in the vicinity. After discovery, the defendants moved for summary judgment arguing that the alleged defective condition was trivial and therefore not actionable, or was open and obvious and not inherently dangerous. The Supreme Court granted the defendants’ motion, and the plaintiff appealed. The Appellate Division Second Department overturned the lower court’s decision. The Appellate Division held that defendants did not meet their prima facie burden. A defendant seeking dismissal of a negligence complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it posed. The hole measured approximately four-feet wide, eight-feet long, and at least one-inch deep. Although there were orange markings around its perimeter, the Court found the argument unconvincing. “Proof that a dangerous condition is open and obvious does not preclude a finding of liability ... but is relevant to the issue of the plaintiff's comparative negligence.” The Court held the hole was inherently dangerous, even if open and obvious, and therefore, not sufficient to be granted summary judgment. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Civil Partner is not Spouse and Not Eligible to Collect Workers Comp Death Benefit December 28, 2007 < Back Share to: A NY appellate court has ruled in Matter of Langan v. State Farm that a partner to a civil union is not a marital spouse and therefore not eligible to collect death benefits as a surviving spouse under NY's Workers Compensation Law. The court ruled that a civil union - although a recognized legal relationship - is not a marriage and any change in the awarding of workers compensation benefits is for the Legislature to decide. Previous Next Contact

News If You're Under Arrest and You See Your Son Get Shot While He's Evading Arrest Can You Claim IIED? June 22, 2010 < Back Share to: In Pennsylvania, the answer is "yes." In the case of Sullivan v. Warminster Township, Carol and Bruce Sullivan brought a lawsuit against Warminster Township on behalf of their son Sean, who had been fatally shot by police on March 31, 2006 when police came to the Sullivan’s home to serve a warrant on Carol for various non-violent misdemeanors. Police called for backup upon learning that Sean was also in the home, as there were also outstanding warrants for his arrest as well. Sean refused to submit to arrest, and eventually attempted to escape through a window in the rear of the house. Sean hit the ground and began running, but was killed when police fired 56 shots. Sean’s mother witnessed this from the police car. The Sullivans brought a federal lawsuit against the town, the police department and individual officers. One of the claims in the lawsuit was intentional infliction of emotional distress. In interpreting PA law (which had never formally stated that IIED was a viable tort), the federal court was left with the question of whether the tort was available to the Sullivans. The trial court (using 3rd Circuit precedent) adopted the Restatement (Second) of Torts, and held that the claim is available to “parties who witness outrageous conduct directed at close family members” so long as there is evidence of injury. The question then arose -- did Carol Sullivan have evidence of "injury"? The District Court noted that Carol Sullivan had witnessed Sean’s shooting from the police car in which she had been placed after her arrest. The trauma of watching this had caused her to allegedly develop post-traumatic stress disorder as a result. While the town argued that this was not a “physical injury”, as required in the Restatement, the Court disagreed, holding that “injury” is an element of any tort that must be proven with medical evidence. The Court specifically stated, however, that evidence of "physical injury" (as opposed apparently to mere mental trauma) was not required -- at least not in the pleading stage. The Sullivan's IIED claim was allowed to proceed. Special thanks to Alex Niederman for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.paed.uscourts.gov/documents/opinions/10D0523P.pdf Previous Next Contact

News Frequent Elevator Misalignment Creates Issues of Fact (NY) October 8, 2020 < Back Share to: In Napolitano v. Jackson "78" Condominium, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment when plaintiff tripped while stepping into an elevator owned and/or managed by the defendants. The Supreme Court granted the defendants motions for summary judgment to dismiss the complaint insofar as asserted against them. Plaintiff allegedly tripped while going into the defendant’s elevator, and when she entered the elevator it was misaligned with the floor of the building’s lobby – which caused her fall. The Appellate Division stated that "A property owner can be held liable for an elevator-related injury where there is a defect in the elevator, and the property owner has actual or constructive notice of the defect" (citations omitted). Although the defendant-property owners were able to establish that no complaints were ever made about the misalignment of the elevator, and that they performed routine inspections, plaintiff was able to raise a triable issue of fact whether the defendants had notice of the defective elevator. Specifically, plaintiff submitted an affidavit from another tenant in the building which asserted that she frequently observed misalignment of the elevator and that a member of the condo board acknowledged the problem in her presence. In addition, plaintiff’s expert alleged the defendants performed an unsatisfactory inspection three days before the accident. This decision serves as a reminder that property owners likely will not prevail on summary judgment if the defect at issue has frequently been an issue in the past and if they perform unsatisfactory inspections of the defect. Thanks to Corey Morgenstern for his contribution to this post. Any questions, please contact Georgia Coats. Previous Next Contact

News Eight Corners and Ongoing Damages Rules Prevent Disclaimer in Environmental Damages Case July 10, 2017 < Back Share to: The duty to defend can be triggered where there is a lack of specificity in a complaint. In USA Environment LP v. American Int’l Speciality Lines Ins. Co., the Southern District of Texas recently rejected an insurer’s denial of coverage to insureds that transported millions of gallons of hazardous waste materials to what was later designated a superfund site. The “potentially responsible parties” (PRPs) identified by the EPA sued hundreds of companies involved with the Suprefund site, including the insureds who filed a separate action seeking coverage. The insurer issued policies to the insureds from 2003 to 2014, and denied coverage under waste disposal site and auto exclusions. The Court observed that the policies issued after 2011 had deleted the waste disposal site exclusion, and created an exception to the applicable pollution exclusion. The underlying complaint filed by the PRPs did not specify when the releases of pollutants occurred or the years the insureds’ services were performed, but did note the insureds transported different kinds of hazardous materials over the course of many years. The complaint further alleged the release of hazardous materials was ongoing. Accordingly, the Court held coverage was triggered because it was possible damages occurred during a policy issued after 2011. Similarly, the Court held the allegations in the complaint were too vague to conclude all the hazardous materials were transported by the insureds in an “auto,” as defined by the policy. As a result, some of the property damage alleged may not have arisen from the use of an auto, and the Court ruled the duty to defend was triggered. When in a four or eight corners jurisdiction, an insurer is generally beholden to the allegations in a complaint, no matter how vague. If these allegations potentially fall within coverage, under the liberal standard embraced by courts across the nation, the duty to defend is likely triggered. As with any general rule, there are exceptions and aggressive positions can be warranted. However, particularly in high value cases, an aggressive position should be weighed against the certainty of litigation and its potential result. Thanks to Chris Soverow for his contribution to this post.       Previous Next Contact

News Vague E-mails not a "Signed Writing" under Copyright Act (NY) November 16, 2009 < Back Share to: Under the Copyright Act, the transfer of an exclusive license, including a license for distribution of a copyrighted work, must be effected through a signed writing from the copyright owner or its agent. The Copyright Act grants copyright owners a number of “exclusive rights,” including the right to distribute the work “to the public by sale or other transfer of ownership.” 17 U.S.C. § 106(3). Recently, in Weinstein Co. v. Smokewood Entertainment Group, LLC, plaintiff alleged defendant had conveyed the exclusive right to distribute a movie owned by the defendant through a series of confirmatory e-mails regarding the deal. When the defendant instead conveyed distribution rights to another company, plaintiff filed suit in federal district court, New York. Briefly, the substance of plaintiff’s e-mails were, “We are pleased to confirm our deal.” While the defendant’s responses were not outright rejections of plaintiff’s claims, the defendant commented on remaining, unsettled, details regarding the negotiations. The Court held that if a copyright owner's intention in writing is unclear -- even deliberately so -- there is no legally valid transfer. The purpose of the signed writing requirement is to ensure that the copyright owner deliberately transfers its ownership interest in such a way that provides the parties with a clear guide to their rights and responsibilities. Because the e-mails between the parties here failed to accomplish that, the Court dismissed the Complaint. If you would like more information regarding this post, please email mbono@wcmlaw.com . http://pdf.wcmlaw.com/pdf/einstein%20decision.pdf Previous Next Contact

News Declaratory Judgment Actions Are Not A Discovery Tool (NJ) July 26, 2012 < Back Share to: One of the methods used by No-Fault providers to fight fraudulent claims is to establish that improprieties with a health care provider’s ownership structure, billing practices, and regulatory compliance. But recently, the Supreme Court of New Jersey held that an insurance company cannot file a declaratory judgment action solely seeking discovery of in an effort to prevent insurance fraud, even where an insured patient has assigned personal injury protection (PIP) benefits to the health care provider. In Selective Insurance Company of America v. Hudson East Pain Management, Selective filed for declaratory judgment against Hudson East Pain Management and several other entities because it noticed what it considered to be “suspicious patterns” in the treatments rendered to Selective’s insured patients, as well as in the corporate links among the various entities. Selective’s insureds had assigned their PIP benefits to the health care providers after being injured in motor vehicle accidents. Although it had requested information on ownership, billing practices, and regulatory compliance from the various entities, Selective did not receive the information it sought, and as a result, filed its declaratory judgment action, citing the “cooperation clause” in its insurance policies, as well as New Jersey statutory authority. The trial court sided with Selective, and ordered the health care providers to produce the requested materials. The Appellate Division reversed this order, holding that Selective’s reliance on the cooperation clause in its insurance policies was improper, and that its demands for discovery went beyond the statutory authority of New Jersey law. On review, the Supreme Court of New Jersey affirmed the Appellate Division, but for different reasons than expressed in the Appellate Division’s decision. The court held that because an assignee of benefits as no greater rights than an assignor, the assignee also cannot have greater duties than the assignor under the contract. Therefore, because the Selective insurance policies did not require the insured patients to provide the information sought by Selective in its declaratory judgment action, the policies could not require the health care providers to present that information. Additionally, the court agreed with the Appellate Division that the PIP statute, N.J.S.A. 39:6A-13, did not provide for the sort of discovery sought by Selective. Finally, the court held that, although New Jersey had a clear public policy against insurance fraud, the means employed by Selective were not the correct avenue for preventing insurance fraud. Although this case does not undermine the ability of an insurance company to seek injunctive or other relief, along with discovery, through the use of a declaratory judgment complaint, it does stand for the proposition that a quest for this sort of discovery cannot be the sole object of the complaint. 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 Is Post Traumatic Stress Disorder a "Physical Injury?" (PA) December 12, 2019 < Back Share to: Earlier this year, we reported on a New York verdict, where a jury awarded eight figures to a plaintiff whose most significant injury was mental and emotional anguish. And we noted in that post that "Emotional trauma is considered an invisible injury because it is not something that can be seen on a scan or repaired with surgery, but can nevertheless lead to high, even exorbitant verdicts, if the “stars align” in plaintiff’s favor at trial." Now, Pennsylvania finds itself examining whether a solely mental/emotional injury constitutes a physical injury, in the context of a first-party claim for medical benefits (also known as PIP or No Fault benefits, depending on the state.) According to the Pennsylvania Superior Court, the answer to whether Post Traumatic Stress Disorder is a physical injury is . . . it depends. In Evans v. Travelers, the Pennsylvania Superior Court reversed the order of the Court of Common Pleas of Wayne County granting summary judgment in favor of Travelers. Plaintiff Evans suffered a concussion, closed head injury, post-concussion syndrome, vertigo, post-traumatic vascular headaches, post traumatic vestibuloneuronitis, and PTSD after a tractor-trailer struck her car while she was driving on I-476. The collision pinned her car between the tractor-trailer and the road’s center median. While Travelers paid Evans for her injuries sustained in the accident, it denied her claim for future coverage for her continued treatment of PTSD. Travelers asserted that PTSD did not constitute a “bodily injury,” which would have given rise to future coverage under Evans’s policy. The Travelers policy limited “bodily injury” to “accidental bodily harm to a person and that person’s resulting illness, disease, or death.” That same—admittedly circular—definition of “bodily injury,” was relied on by the Pennsylvania Superior Court in Zerr v. Erie Ins. Exchange. The Zerr court found that the above definition of “bodily injury” did not include emotional or mental injuries unless they were caused by a physical injury. The lower court had found in Travelers’ favor because it reasoned that the plaintiff failed to show that her PTSD stemmed from her physical injuries, and thus, was not entitled to future coverage. The PA Superior Court, however, reversed—finding that the definition of what is considered a bodily injury may not be so clear. The Court distinguished Zerr, since the plaintiff’s claim in Zerr did not involve bodily injury because it was based solely on emotional injuries without any accompanying physical injuries. In contrast, Evans’s claim involved both physical injuries and emotional distress, including PTSD, which stemmed from her accident. Ultimately, the Evans found there was a genuine issue of material fact whether Evans continued to suffer from her physical injuries causing her PTSD. Evans presents a broader interpretation of “bodily injury” as used in most insurance policies. Further, although the court did not state exactly what constituted “bodily injury” or whether PTSD constituted “bodily injury,” it did open up the door for more injuries to become a “bodily injury” as long as the claimant can show an injury is related to some physical harm. A downside for insurers is that if emotional injuries like this one are presented to a jury, they can be very expensive to defend through expert testimony, and also, unpredictable in terms of verdict values. Thanks to John Lang for his contribution to this post. Please email Brian Gibbons with any questions. 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 NJ UIM Coverage: What Are Your Limits? December 28, 2012 < Back Share to: For years auto insurance in New Jersey was a hot topic as the Legislature wrangled with how to make no fault insurance cost effective. The result was a very defined statutory scheme that requires all liabilities policies to include uninsured and underinsured motorist protection. Of course, individuals have options, including just how much protection they want to purchase. In the realm of uninsured/underinsured protection, an insured can choose what limits they would like to have. However, they must be aware that the limit they select will strictly bind them. In Aggour v. GEICO, the plaintiff was injured in a multi-vehicle accident involving injuries to a number of individuals. The tortfeasor driver had policy limits of $100,000 per person and $300,000 aggregate. Coincidentally, the plaintiff had the same per person policy limit for underinsured coverage. Because of the multiple claimants, the plaintiff’s settlement share was less than she believed she would have been entitled. However, her insurer denied coverage inasmuch as the policy limits were identical. GEICO’s motion for summary judgment was granted based upon N.J.S.A. 17:28-1.1(e)(1) since the tortfeasor had the same liability limit as the underinsured motorist limit applicable to plaintiff’s policy. The appellate division agreed that the comparison of policy limits determines whether a claim for underinsured coverage may prevail. That there may have been a shortfall in coverage due to multiple settlements is of no consequence. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News NJ Sup. Ct. Bars Heirs Wrongful Death Claim Where Decedent Was Uninsured Motorist August 30, 2011 < Back Share to: In Aronberg v. Tolbert , the Supreme Court considered whether the heirs of an uninsured motorist killed in a motor vehicle accident have a claim under the Wrongful Death Act , N.J.S.A. 2A:31-1 et seq, or whether N.J.S.A. 39:6A-4.5(a) which bars a lawsuit for personal injuries by an uninsured motorist, also bars the survival action. The Appellate Division in affirming the trial court, found that the Wrongful Death Act granted the heirs an independent right of recovery, regardless of the decedents failure to purchase mandatory automobile insurance. The panel, in part, found nothing in the language of 39:6A-4.5(a), which supported a Legislative intent to punish innocent family members who are the beneficiaries under the Wrongful Death Act, for the decedent's act of driving while uninsured. The Supreme Court reversed finding that when an uninsured motorist's claim is barred by 39:6A-4.5(a) , an heir has no right to recovery under the Wrongful Death Act. It determined that the Legislature intended for the 39:6A-4.5(a) lawsuit bar to also apply to the decedents's next of kin in a wrongful death action. Aronberg v. Tolbert ( A-9-10) decided August 9, 2011. http://www.judiciary.state.nj.us/opinions/index.htm Please contact Robert Ball with any questions regarding this post. Previous Next Contact

News "Trivial" Defect in Sidewalk Does Not Constitute a Dangerous Condition February 24, 2011 < Back Share to: In Vasquez v. JRG Realty Corp. et al., the First Department examined a personal injury case in which a plaintiff alleged that she tripped and fell in front of defendants' property and suffered personal injuries. The defendants argued that the supposed defect on which plantiff tripped was a trivial one, in that based upon their measurements, the "defect" was approximately the height of a nickel. In opposition, although plaintiff failed to submit any expert testimony, she testified at her deposition that the defect was approximately three quarters of an inch to one inch. The Court granted defendants' motion for summary jusgment after finding that plaintiff's testimony was speculative (not to mention that plaintiff's account seems to corrorborate the measurements of the defendant's expert). Moreover, the Court found that plaintiff failed to rebut defendants' argument that the defect was trivial. Not surprisingly, the Court does not specficically define what does or does not constitute a trivial defect. As such a determination must be made on a case by case basis based upon the facts. Nevertheless, the Court sets a precedent here in that a defect the size of a nickel or smaller (i.e., a dime or a penny?) may be regarded as a trivial one under similar facts to this case. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01349.htm Previous Next Contact