Wade Clark Mulcahy LLP

News New Jersey’s Evolving Law For UIM Coverage (NJ) August 8, 2019 < Back Share to: The New Jersey Supreme Court recently granted certification in a case that will ask the Court to decide whether an insurer may exclude underinsured motorist coverage (UIM) for an accident involving a vehicle owned by the insured, but not covered under the subject policy. In Katchen v. GEICO, the insured was injured in a motorcycle accident. Prior to settling his case, the insured submitted his claim to GEICO for UIM coverage. The GEICO policy provided coverage for bodily injury that the insured was entitled to recover from the owner of an “underinsured motor vehicle”, but excluded coverage for "bodily injury sustained by an insured while occupying a motor vehicle owned by an insured and not described in the [d]eclarations and not covered by the Bodily Injury and Property Damage liability coverages of [the] policy." Because the motorcycle was not listed on the declarations page, GEICO disclaimed coverage on the basis that it was not an “owned auto,” defined in the policy as a "vehicle described in this policy for which a premium charge is shown for these coverages." The insured argued that the exclusion was inapplicable for multiple reasons. First, he argued that the failure to define "motor vehicle" results in an ambiguity as to the difference between "autos" and "motor vehicles.” The court rejected this argument and found that a plain and ordinary reading of the exclusion demonstrated that a motorcycle was a motor vehicle, and any alternate conclusion would be a “strained construction”. Further, the exclusion appeared in the UIM section of the policy. Thus, unlike cases where a provision in the liability section of the policy were found not to apply to the UIM coverage, the court found that the exclusion could apply because it constituted a “clearly-worded UIM provision.” Finally, rejecting the insured’s arguments that UIM coverage cannot be tied to a specific vehicle, the Court noted that the exclusion would not apply to vehicles driven by the insured but not owned by the insured, such as a rental vehicle. Accordingly, the court concluded there was no coverage under the policy. Subsequently, the insured appealed this ruling to the New Jersey Supreme Court, which has recently granted certification. The New Jersey Supreme Court’s future ruling on this matter will add yet another layer into the evolving law of UIM coverage in New Jersey. Stay tuned to see how the Court rules. Thanks to Doug Giombarrese for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News No Lost Wages For No Lost Work! November 17, 2023 < Back Share to: In a recent decision out of the Superior Court of Pennsylvania titled: Butler v. Landmark Property Group, LLC , the Court refused to reverse a damages award in favor of the Plaintiff, specifically his claim for lost wages . The “Butlers,” husband and wife, appealed a judgement after trial, arguing that the jury award failed to accurately reflect medical losses and loss of income suffered by Mr. Butler. Specifically, Appellants argued that Mr. Butler suffered $115,000 in lost wages alone in 2018 and 2019. The Superior Court affirmed the decision, because there “was no evidence that [plaintiff’s] future earning capacity was impaired because of his ankle injury.” Id. at 3. In fact, the court noted that while Mr. Buter had testified that his leg pain was a “ten” and “could not get any worse”, he had returned to work several times through 2018 through 2021 after being cleared to do so. Id . It was not clear, despite his testimony of being in “excruciating” pain, that his damages rose to the requested amount provided his continuing work history. Id. The Court also agreed that the Butler’s expert had been unreliable at trial, as his statement that Buter could not work due to his ankle conflicted with the in fact that he was the exact same doctor who had cleared Buter to return to work multiple times through 2018. Id. This case reinforces the prospect that the credibility of witnesses and experts in personal injury cases matter when it comes to the ultimate award of damages. As the Superior court reinforced in its conclusion, “If the verdict bears a reasonable resemblance to the damages proven, we will not upset it merely because we might have awarded different damages.” Id at 4. Here, an uncredible witness and an inconsistent expert resulted in an award the trial court felt reasonable to the damages suffered, even if it was less than what plaintiff sought. Exposing such inconsistencies are critical to an effective defense at trial, especially when the “abuse of discretion” standard of review at the Appellate level remains a high bar to pass in PA courts. Butler v. Landmark Property Group LLC .pdf Download PDF • 327KB Previous Next Contact

News A Decade Later, New Evidence Vacates SJ Decision September 2, 2021 < Back Share to: In Abrams v. Berelson, venued in Supreme Court, Richmond County, the court granted the plaintiff's motion to renew and set aside an order granting the defendant summary judgment that was granted 10 years earlier. The case stemmed from an accidental shooting that occurred in the home owned by the defendant on November 3, 1997. The plaintiff and a co-worker, Michael Torres, were hired to clean carpets and perform generally cleaning out of the home following the death of the defendant's mother. During the course of the cleaning, Torres found a gun in a bedroom and accidentally shot his co-worker, the plaintiff. In a 2000 decision, the court granted the defendant's summary judgment motion holding that the plaintiff could not establish actual or constructive notice of the injury-producing condition. Specifically, the plaintiff could offer no proof to establish where the rifle was found, whether it was visible and apparent or how long it was present in the house prior to the shooting. In granting the motion, the court stated that the only person who could testify as to the location of the rifle was Torres and at that time, he had given no testimony and could not be located by either party. The plaintiffs, after a diligent search, located Mr. Torres and submitted an affidavit from him in which he admitted that he had made himself hard to find after the police determined the shooting was an accident. He stated the he lived with family members over the years and instructed them to advise others, especially the plaintiff's family, that they did not know how to contact him. Based on this affidavit, Torres' willingness to appear for a non-party deposition and the discovery that the police had not destroyed the rifle in question, the court set aside the summary judgment order and ordered an expedited discovery schedule. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51515.htm Previous Next Contact

News First Department Finds Nine-Year-Old Cannot Assume Risk May 25, 2011 < Back Share to: In Smith v. City of New York, the First Department reversed the trial court’s granting of summary judgment in the case of a nine-year old boy whom broke his arm after falling from monkey bars during a City-run summer camp. Depositions revealed that campers were not allowed on the monkey bars, but the boy told his counselor, who was supervising a nearby basketball game, that he was going to play on the monkey bars. At his deposition, the boy gave contradicting testimony regarding his awareness of the dangers of playing on monkey bars, stating at one point that he knew of the dangers due to a previous monkey bar accident, and stating at another point that he did not think he could get hurt. Because of the contradictory testimony, the Appellate Division, First Department found that the boy did not fully appreciate the risks of his activity, and as such, could not have assumed the risk that his counselor would not supervise him. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04301.htm Previous Next Contact

News Pennsylvania A Legislature Tags In For Third Round of Fight Against Governor Wolf’s COVID-19 Orders (PA) June 12, 2020 < Back Share to: Pennsylvania businesses, while understanding the unique threat posed by COVID-19, have not been uniformly pleased with Governor Wolf’s various shutdown orders that mandated large swaths of business closures. The Pennsylvania Supreme Court held that Governor Wolf had the authority to implement emergency measures. Businesses attempted to short-circuit the original stay-at-home orders arguing it exceeded the authority of the Governor and was unconstitutional for a litany of reasons. The PA Supreme Court disagreed. Now, the PA legislature passed a resolution terminating the emergency orders of Governor Wolf. The PA legislature is arguing that the Governor, in light of the resolution terminating the emergency orders, has no choice but to rescind all COVID-19 closures. The Governor, unsurprisingly, disagrees. The Governor points to a provision that requires his approval of almost any order, rule, or law passed by the legislature. Litigation has commenced. Future employers, hit with lawsuits arguing that an employee was exposed to COVID-19 in the workplace, could point to the resolution by the legislature, indicating that they believed it was “safe” to open and were merely complying with government wishes and trying to start earning money again. Conversely, a plaintiff could point to Governor Wolf’s pronouncements, arguing that it was unwise to open and that the executive branch still considered it unsafe. Thus, given this legal wrangling, on both sides, this will only be one wave in the coming COVID-19 litigation. It won’t be the last. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Fasten Your Seatbelts - Turbulent Air Ahead for Airlines. July 13, 2010 < Back Share to: Airlines seem to be a magnet for bad news these days. Ever increasing fuel costs, bankruptcies on the rise, and now, according to the 3rd Circuit, the need to comply with state tort law wherever an airline lands its planes. In Elaasaad v. Independence Air Inc. and Delta Airlines Inc., the United States Court of Appeals for the Third Circuit has just determined that federal law does not prempt state law when it comes to the disembarkation of passengers. Once that plane has come to a full stop, seatbelts can be unbuckled but the airlines better understand state tort law. The simple rule is that where there is both a federal law and state law on point, federal law prempts state law. However, the skies are not always blue and clear, and there is more than one gray cloud that the courts have encountered in making preemption determinations. Elaasaad is an example of the federal courts having to examine the current statutes and case law interpreting the statutes, and still further clarify when the federal statute applies. Here, the court decided that once the plane has come to a complete stop, none of the federal statutes are applicable and thus state tort law will apply. So what are the implications? Airlines will have to comply with the tort laws of each individual state where they land their planes. When passengers are injured while leaving an aircraft, the law of the destination will determine the standard of care the airline must apply. This will make handling claims increasingly difficult as airlines will not be able to apply a uniform standard to claims, but instead will have to rely on the locus of each injury. Special thanks to Alison Weintraub for her contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://scholar.google.com/scholar_case?case=8032119810883847026&hl=en&as_sdt=2&as_vis=1&oi=scholarr Previous Next Contact

News DUI: Compensatory or Punitive Damages? (PA) June 13, 2019 < Back Share to: The Pennsylvania Court of Common Pleas, Lawrence County, recently addressed whether individuals who cause damages as a result of driving while intoxicated are automatically liable for punitive damages. In Tornabene v. Crivelli, Defendant Crivelli operated a vehicle while under the influence of alcohol when he struck Plaintiff’s vehicle causing significant injuries to the Plaintiff. Plaintiff sued the Defendant seeking, inter alia, punitive damages. Under Pennsylvania law, "punitive damages may be awarded for conduct that is outrageous, because of the defendant's evil motive or his reckless indifference to the rights of others." To support a claim for punitive damages, the plaintiff must show that the defendant had a subjective appreciation of the risk of harm to which the plaintiff was exposed and that the defendant acted, or failed to act, in conscious disregard of that risk. In Tornabene, the court found there was no evidence that the Defendant had a subjective appreciation of the risk of his actions. Specifically, Plaintiff's complaint lacked any specific details of Defendant’s state of mind at the time of the crash, or that in his state he consciously disregarded the risk of driving while intoxicated. Additionally, there was no evidence of how Defendant's inebriation affected his driving. Further, there were no details about the manner in which Defendant operated his vehicle such as: his estimated rate of speed in relation to other traffic; his use/nonuse of turn signals as he changed lanes; any near collisions with other drivers; any use of a cell phone while behind the wheel; or any other distractions or decisions that would have impeded his safe operation of the vehicle. Further, the Court laid out certain criteria that could have been included to bolster the punitive damages claim: whether Defendant consumed alcoholic beverages while behind the wheel or prior to entering the vehicle, and how many; whether Defendant manifested signs of intoxication at the incident scene (such as slurred speech, bloodshot eyes or an unsteady gait); whether any tests were performed by law enforcement and the results, if any, such as blood alcohol concentration (BAC) or field sobriety tests; or whether Defendant was criminally cited for any alcohol consumption. Although arguments were made that driving while intoxicated necessarily indicates a conscious disregard such that punitive damages should apply, based on this case, it appears that some Pennsylvania courts may not agree with this argument. Thank you to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Tall Objects Don’t Mean 240 Protection (NY) October 8, 2020 < Back Share to: In Lemus v. New York B Realty Corp, the Appellate Division, Second Department reaffirmed that a plaintiff is not entitled to judgment as matter of law under Labor Law §240(1) simply because the plaintiff’s accident occurs as a result of working with a large and/or tall object. In this matter, the plaintiff demonstrated that he was employed as a worker on a construction site and was directed to maneuver large steel beams approximately 20 feet long and weighing approximately 600 to 1,000 pounds. He was to use a metal tool to grab and rotate said beams, so that the holt holes were aligned. As he was rotating one beam, the tool he was using ricocheted backwards towards his face, and he sustained injuries. At the close of the plaintiff’s liability case, the defendant moved, pursuant to CPLR §4401 (motion for judgment during trial) to dismiss the plaintiff’s Labor Law §240(1) claim, on the basis that strict liability only applies if the plaintiff’s injuries resulted from an elevation-related risk and/or an inadequate safety device to protect against elevation-related ricks. The trial court granted the defendant’s motion, holding that because the plaintiff was injured while both he and the steel beams were at ground level, the work he was engaged in did not constitute the type of elevation-related risk that the statue contemplates regardless of the excess size and height of the steel beams. The Second Department affirmed on appeal. Thanks to Shira Straus for her contribution to this post. Any questions, please contact Georgia Coats Previous Next Contact

News Turnabout Is Fair Play? Does Twombly Apply to Affirmative Defenses? (NJ) July 24, 2013 < Back Share to: Folks are familiar with Twombly, the United States Supreme Court decision that makes it clear that federal court plaintiffs must plead their cases with specific particularity to provide full notice of the claims in order to survive a motion to dismiss. The question is – does Twombly apply to affirmative defenses or counterclaims? There is no binding nationwide federal precedent that answers that question and different trial courts have come up with different answers; for example, New York courts have held that Twombly does apply to counterclaims and affirmative defenses. In one of the more recent decisions from NJ, Signature Bank v. Check-X-Change, LLC, District Court Judge Esther Sallas was forced to address the issue when Signature moved to dismiss Check-X-Change’s counterclaim and strike its affirmative defenses. Judge Sallas ruled against Signature and held that Twombly (under Third Circuit precedent) only applies to complaints and not the responses thereto. Underscoring her reasoning was the notion that “substantial issues of fact and law are properly viewed only after the opportunity for discovery.” Although Signature is a positive developments for NJ (and possibly all Third Circuit (including PA)) defendants, the issue is something to be wary of. Form denials and rote pleadings may be going the way of the dodo bird and fact based and specific pleadings may be the wave of the future as federal courts (in the age of the sequester) attempt to keep cases out of the system. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Although Kings of Their Courtroom, Judges Cannot Be Comedians (NJ) September 25, 2013 < Back Share to: After being admitted to the bar, Vincenzo August Sicari enrolled in acting classes and pursued dual careers, a plaintiff’s attorney by day and “Vincent August,” a stand-up comedian by night. Sicari maintains that he has two, carefully distinct identities and neither interferes with the other. For one thing, he refuses to do law jokes (which I’m sure is a challenge in it of itself). Trouble occurred in 2008 when Sicari took office as a part-time municipal court judge in South Hackensack. He was forthcoming and immediately discussed his entertainment career with those who appointed him to the position. When he was asked to do an interview for a local paper, Sicari sought out the Advisory Committee on Extrajudicial Affairs to see if an interview was copasetic with his new judicial appointment. Unfortunately, it was not. The Advisory Committee issued two opinions, an initial opinion and a supplemental opinion after Sicari asked for reconsideration of the initial opinion, both of which advised Sicari that his entertainment career was not compatible with judicial career. Sicari maintained that his two careers were separate and therefore did not create any ethical concerns. He appealed to the Supreme Court of New Jersey. The Court agreed with the Advisory Committee In the Matter of Advisory 2 Letter No. 3-11 and Opinion 2 No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities. The reasoning behind the Supreme Court’s decision lies in Sicari’s actual work as a comedian. The Court watched numerous tapes of Sicari’s comedic work, and feared his work may bring his impartiality into question. The Court watched skits of Sicari playing a person engaged in racial profiling, a homophobic bar patron and even one about how much he hates kids. Sicari admitted his entertainment is inspired by current events as well as based on his personal experiences growing up in an Italian-American Catholic family, but also argued that he really believes Vincent August is a completely separate identity from Judge Sicari. The Court held that although his dual careers may be OK for a lawyer, they do not work for a judge. The Code of Judicial Conduct subjects even part-time judge’s to a heightened ethical standard. Judges cannot pursue any activity, and particularly cannot pursue those that may put the judge’s impartiality on the line. The Court would not risk Vincent August’s audience commingling with Judge Sicari’s courtroom. While he sits as a municipal court judge, Sicari must put his entertainment career on hold. Thanks to Anne Mulcahy for her contribution of this post. If you have any questions -- or jokes--, you can email Paul at pclark@wcmlaw.com   Previous Next Contact

News Can Tony Parker’s Legal Team Expand New York’s Premises Liability Law? September 12, 2012 < Back Share to: The aftermath of the melee between singer Chris Brown and rapper Drake at a posh New York nightclub continues. Tony Parker, the starting point guard for the San Antonio Spurs, has filed a lawsuit against W.i.P. nightclub claiming $20,000,000 in damages for a corneal laceration he suffered to his left eye after being hit by shards of glass during the fight between Brown’s and Drake’s entourages. Under New York law, a premises operator has no duty to protect its patrons from unforeseeable and unexpected assaults and no duty to take any protective measures. However, they do have a duty to take reasonable precautions to prevent harm to their patrons and to control third persons if they are “reasonably aware” of the need for such control. This duty is triggered when the tortfeasor has a history of violent behavior or there was a history of violence between the individuals involved in the occurrence at issue; there was a history of violent or criminal conduct on or around the premises; or there was an escalation of events or a verbal altercation preceding the occurrence. In his lawsuit, Parker claims that W.i.P. had notice of the “bad blood” between Brown and Drake based on the fact that both had dated singer Rihanna. Parker thus contends that W.i.P. should never have let them both into the club at the same time with their entourages or should have taken reasonable steps to protect its patrons. Interestingly, defense counsel for W.i.P. has now filed a motion to dismiss, claiming that Parker’s legal team has failed to allege facts sufficient to state a cause of action. The motion vehemently opposes the premises liability claim, arguing that it would expand a nightclub’s duty to monitor their celebrity patron’s social relationships and to control their patron’s conduct solely based on media reports of “bad blood” and that to do so would “subject premises operators to the unpredictable and limitless liability so strongly disfavored under New York courts.” Given the damages being claimed and the high-profile nature of this case, it appears both sides have the resources to engage in a long, drawn out legal battle that may end up expanding, or further defining, New York’s premises liability law. Thanks to Michael Nunley for his contribution to this post. https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=h1j2xatJotIa4W3JeAjn/A==&display=all&courtType=New%20York%20County%20Supreme%20Court Previous Next Contact

News How Careful Should Athletes (and Defendants) Be in New Jersey? (NJ) November 21, 2019 < Back Share to: In Mesar v Bound Brook Board of Education, a teenage plaintiff sued his local school board after he severely broke his ankle while playing baseball for the school team. Specifically, he claimed the assistant coach improperly signaled for him to slide into third base as he approached, causing the injury. The defendants won summary judgment in the first instance and plaintiff appealed. The Appellate Division took the opportunity to reiterate that although it is incumbent on instructors and coaches not to increase the risks over and above those inherent in the sport, the appropriate standard of care for accidents in sports is recklessness. However, in making this motion, defendants argued plaintiff had failed to plead recklessness in his complaint, rather than arguing, plaintiff presented insufficient facts to support a claim of recklessness. When evaluating whether a complaint should be dismissed for failure to state a claim, the Court must determine “whether a cause of action is ‘suggested’ by the facts,” and the Appellate Division found plaintiff’s complaint met that very lax standard. As a result, even though defendants successfully obtained the higher standard of care for the time of trial, refraining from arguing insufficient evidence to satisfy the standard meant the motion was remanded to revisit that issue. The ruling is beneficial for defendants in that it pushes back on any narrowing of the recklessness standard in the context of sports accidents, but it is a reminder to make alternative arguments on dispositive motions to close any possible backdoor escape hatches for plaintiff’s counsel. Thanks to Nicholas Schaefer for his contribution to this post. Please e-mail Vincent Terrasi with any questions. Previous Next Contact