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News Coverage Limits, Continuing Causes, and COVID-19: District Court of New Jersey Holds COVID-19 Executive Orders Constitute One “Occurrence” September 13, 2024 < Back Share to: In March of 2020, the Governor of New Jersey issued a series of Executive Orders requiring entertainment businesses to close indefinitely due to the COVID-19 pandemic. See 2024 WL 2763762, at 3 (D.N.J. May 29, 2024). Subsequently, the Governor issued additional Orders affirming the closures. Id. at 4. Count Basie submitted a claim to its insurer, Zurich, seeking coverage for its business losses from the closure. Id. The Policy’s Business Income Coverage (“BI Coverage”) stated Zurich would cover up to $1,900,001 of business losses from suspending operations due to “direct physical loss.” Id. at 1. The Communicable Disease Business Income Coverage (“CD Coverage”), in contrast, provided $100,000 per occurrence for loss of business income “caused by an order of … [a] governmental authority” which prohibits access to the premises. Id. at 2. On review, the District Court of New Jersey held that Count Basie’s losses triggered the Policy’s CD Coverage, but only for $100,000 of the claimed damages. In so holding, the Court rejected three of Count Basie’s arguments. First, Count Basie argued the $1,900,001 limit of the BI Coverage could be applied to losses under the CD Coverage form due to ambiguity in the Policy language. Id. at 6. Evaluating the CD and BI Coverages’ respective limits, the Court found no ambiguity and that Count Basie’s proposed application would conflate two distinct forms of coverage. Id. at 7. Second, Count Basie argued each Order constituted a separate “occurrence” triggering the Policy’s business income coverage. Id. at 8. To determine the number of “occurrences,” New Jersey courts must consider whether “one proximate, uninterrupted, and continuing cause” produced all the claimed damages. Id. Applying this test, the Court concluded the Orders, albeit individual, were all issued as part of New Jersey’s continuing response to the pandemic. Id. at 9. Thus, Count Basie’s losses stemmed from one cause—the spread of COVID-19. Id. Finally, Count Basie contended the $100,000 limit could be applied on a per premises basis, as the CD Coverage form limited coverage to any one “premises.” Id. at 10. However, the Court emphasized the language of the Policy’s Declarations, which explicitly stated the CD Coverage limits would be determined on a per occurrence basis. Id. at 11. Moreover, had the Policy intended to create a per premises requirement for the CD Coverage, it could have done so—as it did for several other coverage limits. Id. Count Basie Theatre Inc v. Zurich American Insurance Company .pdf Download PDF • 265KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Pennsylvania Court Applies Regular Use Exclusion (PA) February 7, 2020 < Back Share to: It's remarkable how often even the clearest of insurance policy language is placed before the court. But it's also satisfying when a court applies a policy exclusion as worded and as intended. In one recent decision, Eckert v. Unitrin Auto Home Ins. Co. the Pennsylvania Superior Court did just that. In Eckert, the plaintiff, acting in the scope of her employment, was driving a school bus and was involved in an accident with an uninsured driver. After the accident, she sought UIM coverage by filing a claim with her automobile insurance carrier. However, the insurer denied coverage based on the policy's regular use exclusion, which barred coverage for "bodily injury...sustained...by you while occupying...any motor vehicle you own or any motor vehicle which is furnished or available for your regular use." In her declaratory judgment action, the plaintiff argued that the exclusion did not apply to her situation because she drove several buses in the employer's fleet, her employer precluded her personal use of school buses, and that she only drove a bus for 5-6 hours per day. But the court disagreed, and held that the exclusion applied. In doing so, the court, relying on precedent, reasoned that at the time of the accident, she was driving a school bus about 80 percent of the time and that she regular access to all school buses in her employer's fleet. Courts are unpredictable, even when interpreting policy language that is clear on its face. But Eckert should provide comfort to insurers because it is another example of a court honoring the intent of a policy exclusion. Thanks to Garrett Gittler for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

Corey Stein Associate Long Island CStein@wcmlaw.com Professional Experience During law school, had various internships which consisted of Real Estate Law, Criminal law and Personal Injury. Prior to joining WCM, Corey Stein was an Associate Attorney practicing Real Estate and Health Law. In 2022, Corey worked as a Commercial Real Estate Attorney. Here, he managed several files including purchases and refinances. Currently, at WCM, Corey Stein litigates a range of general liability claims, including personal injury, construction and labor law claims, vehicular accidents and property damage claims. His work includes all aspects of these cases from inception to resolution, including fact analysis and investigation, drafting pleadings and motions, depositions, legal research, complex discovery, arbitrations, mediations, and preparing for trial. News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education Juris Doctor, Maurice A. Dean School of Law at Hofstra University, May 2021 Bachelor of Science, University of Massachusetts, May 2018 Bar Admissions New York

News Feelings or Perceptions: What's Needed in NJ for Emotional Distress? September 24, 2010 < Back Share to: In the case of Hinton v. Meyers, New Jersey’s Appellate Division was confronted with the question of what amount of "sensory, contemporaneous perception" is necessary for a family member to make out an emotional distress claim arising out of a family member’s death or serious injury. Historically, there are four requirements: (1) the death or serious physical injury of another caused by defendant's negligence; (2) a marital or intimate, familial relationship between plaintiff and the injured person; (3) observation of the death or injury at the scene of the accident; and (4) resulting severe emotional distress. In Hinton, Kwaku Boadu Bosompem went with his infant daughter Yaa Ayannah Bosompem and her mother Catrina Briggs to a job interview. While at the interview, he “felt” he heard his daughter scream and cry out in pain. Bosumpem also heard sirens. But, he never left the interview or looked outside the window. It turned out that while at the interview, a vehicle driven by Eileen Meyers had crashed into the daughter’s stroller and killed her. Bosumpem commenced a lawsuit against Meyers and Briggs. He sought emotional distress damages. The Appellate Division was confronted with the question of whether Bosumpem’s “feelings” were sufficient to substantiate the claim. The answer was in the negative. The Court wrote that to support the emotional distress claim Bosompem had to show that he: “had a sensory, contemporaneous perception of an injury that was sustained by a spouse or close family member, irrespective of the distance from which that perception arises.” Under the facts before it, the Court reasoned that Bosompem failed to meet the “sensory, contemporaneous perception” threshold. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdfserver.amlaw.com/nj/Hinton-a5700-08.pdf Previous Next Contact

News Court Sees Through Plaintiff's Claim of Optical Confusion (NY) March 8, 2012 < Back Share to: In Hanger v. 116 Lexington Ave., Inc., plaintiff fell on a five-inch single step transition at the entrance to a second-floor banquet room at a restaurant in midtown Manhattan. Plaintiffs' engineering expert opined that the similarity in the flooring of the hallway and the banquet room obscured the step. However, defendants moved for, and were granted summary judgment, arguing that the step was not a latent dangerous condition, and even if it was, adequate warnings of the step were provided. Plaintiff appealed, arguing that the motion court erred in dismissing their complaint because the conditions of the step area created "optical confusion," rendering the step dangerous. Although a step may be dangerous where the conditions create optical confusion, certain factors need to be considered. Specifically, courts will look to the similarity in surface colors, and whether the edge of the step created the illusion of a level surface and if there were any signs warning of the step. The Appellate Division found no “optical confusion” existed and affirmed the lower court’s ruling, as the step in question had four reflective strips positioned parallel to the step and a sign, which read "Step Down" with an arrow pointing diagonally downward toward the step. Thanks to Joe Fusco for his contribution to this post. If you would like further information, please write to mbono@wcmlaw.com     Previous Next Contact

News The “Long-Arm” of the Law (NY) October 26, 2018 < Back Share to: This interesting New York action arose out of a crane accident that occurred in 2015. In Jones v 260-261 Madison Ave. LLC, Marine & Industrial Supply Company (MISC) made a motion to dismiss all claims against it arguing the court lacked personal jurisdiction. MISC manufactured a sling that snapped and caused plaintiff’s injury, while 260-261 Madison Ave. LLC owned the premises and Skylift operated the crane. MISC argued that it could not be subject to personal jurisdiction in New York as it was an Alabama company with its principal place of business in Mobile, and the sling sale negotiations took place in Alabama and Connecticut. MISC argued that it did not therefore have any contact with New York and was not subject to jurisdiction. Skyline and Madison argued MISC is subject to general in personam jurisdiction in New York pursuant to CPLR§301 because MISC solicited business through its website and advertised it would be present at an expo in New York. Alternatively, Skyline and Madison argued that Marine is subject to “long-arm” jurisdiction pursuant to CPLR§301(a)(3)(i) and (ii). The Court ruled that MISC held itself out as a national vendor, derived revenue from interstate commerce, has offices in more than one state and conducted business in New York through its attendance at the Buffalo, New York expo. Further, Skyline and Madison provided proof that MISC was registered as an interstate carrier with the U.S Department of Transportation. This showing was sufficient to establish that the exercise of personal jurisdiction over MISC by this court was not a frivolous argument. Therefore, the Court denied MISC’s motion for dismissal without prejudice to renew upon the completion of limited discovery on the issue of personal jurisdiction. Thanks to Jonathan R. Avolio for his contribution to this post. Please contact Vito A. Pinto with any questions. Previous Next Contact

News Wade Clark Mulcahy Launches Louisiana Office with New Partner E. Alexis Bevis May 17, 2024 < Back Share to: Wade Clark Mulcahy is pleased to announce the opening of its New Orleans Office led by experienced litigator, E. Alexis Bevis. The new Louisiana office strengthens the firm’s robust litigation practice and increases Wade Clark Mulcahy’s geographic presence. This is the firm’s third new office in eighteen months. “We are thrilled to open a New Orleans office and serve our clients’ needs in Louisiana,” says Bob Cosgrove, Wade Clark Mulcahy Managing Partner. “Alexis is the perfect attorney to lead WCM’s New Orleans Office.” Ms. Bevis regularly handles cases in state and federal courts in Louisiana. She concentrates her practice on defending general casualty and professional line carriers focusing on casualty, commercial, and complex litigation in the fields of transportation, energy, manufacturing, highway engineering, construction negligence, premises liability, product liability, cyber litigation, and catastrophic loss. Ms. Bevis received her bachelor's degree in Sociology with a focus in race and ethnic relations and women’s studies from The Pennsylvania State University - Schreyer Honors College. She earned her law degree from Loyola University College of Law in New Orleans, Louisiana. Wade Clark Mulcahy’s New Orleans Office is located at 824 Elmwood Park Blvd., Suite 215, New Orleans, LA 70123. About Wade Clark Mulcahy Since its founding in 1994, Wade Clark Mulcahy has achieved superior and cost-effective results for its insurance and corporate clients. With seven offices in England, Florida, Louisiana, New Jersey, New York, and Pennsylvania, Wade Clark Mulcahy effectively serves clients' needs in a variety of jurisdictions. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and bring closure to complex matters. Previous Next E. Alexis Bevis E. Alexis Bevis Partner +1 504 291-2360 abevis@wcmlaw.com Contact

News Unleashing Liability: Understanding Landlord Responsibility for Tenant Dog-Related Injuries December 15, 2023 < Back Share to: Is a landlord liable for injuries caused by a tenant’s dog to another who is on the property of the landlord? Not always, says the Pennsylvania Superior Court. Here’s why. West Penn, a Pennsylvania non-profit corporation owns land used for trap and target shooting. Goodenow v. McMahan , 297 A.3d 731 (Pa. Super. Ct. 2023), (reargument denied (June 26, 2023)). Defendant Ronald McMahan (“McMahan”) is the president and groundskeeper for West Penn and would work at the trap range during trapshooting events. Id . McMahan “always had a dog living with him, and the West Penn board members have always known that McMahan kept dogs on the property, although there was never any discussion about how he should handle them when other groups were utilizing the West Penn site.” Id . McMahan lived on the West Penn property and had a fenced area where he would keep his dog secure. Id . McMahan was unaware of “any incidents or reports to West Penn” that his dog “ever exhibited aggressive tendencies.” Id . McMahan’s dog was known to “interact with other West Penn club members’ dogs, adults, and young children.” Id . The plaintiffs Teresa and Donald Goodenow (“Goodenows”) were attending a trapshooting event at West Penn. They decided to camp on the property and had brought their dog. The Goodenows claimed that McMahan’s dog had attempted to attack their own dog. Id . On July 11, 2015, after the trapshooting event was finished, the Goodenows were socializing outside of their camper with their dog and McMahan was also socializing in a group with his unleashed dog. Id . The Goodenows describe what happened thereafter as McMahan’s dog appearing suddenly at their campsite, grabbing their dog by the head. Id . As one man pulled McMahan’s dog by her collar, T. Goodenow “jumped from her own chair and grabbed [her dog], tripping and falling with the dog in her arms, allegedly resulting in injuries.” Id . Subsequently, D. Goodenow chased McMahan’s dog away. Id . The Goodenows, under the impression that the incident would be relayed to West Penn, did not fill out an accident report. Id . Thereafter, the Goodenows filed claims “asserting negligence for West Penn’s violation of its duty to provide a safe environment and failing to require McMahan to either remove his dog from the property or to keep his dog restrained, as well as a loss of consortium claim….” Id . After discovery, West Penn filed a motion for summary judgment “on the basis that it was an out-of-possession landlord” and that the Goodenows “failed to produce evidence that it had actual notice of [McMahan’s dog’s] alleged vicious propensities.” Id . (internal quotations omitted). In response, the Goodenows argued that because McMahan was the president of West Penn, the knowledge cold be imputed to West Penn and that West Penn had its own independent duties and that the Goodenows were not “merely propounding a vicarious liability/respondate [sic] superior theory against West Penn. Id . The trial court granted West Penn’s motion for summary judgment because the Goodenows had presented no evidence of a dangerous propensity for McMahan’s dog. The Goodenows appealed and argue that there was a genuine issue of material fact whether McMahan’s dog had exhibited dangerous propensities. Id . Ultimately, the Superior Court of Pennsylvania affirmed the trial court’s decision. In doing so, the Superior Court stated that “[g]enerally, in negligence actions arising from the conduct of animals, the animal’s owner is the person responsible for injuries to others caused by his or her pet. … In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant's4 dog, it must be proven that the landlord had “actual knowledge that his tenant harbors a dog with dangerous propensities.” Id (internal quotations and citation omitted). Likewise,the Superior Court relied upon the Supreme Court of Pennsylvania’s description of a dangerous or vicious propensity; “[a] dangerous propensity includes a propensity or tendency of an animal to do any act that might endanger the safety of the person and property of others in a given situation.” Id . (internal citation omitted). In order to establish a cause of action in negligence against a landlord for injuries caused by his tenant’s dog, it must be proven that the landlord had actual knowledge that his tenant harbors a dog with dangerous propensities. Id . Internal quotations omitted). Simply stated, “prior to the ten to fifteen second July 8, 2015 interaction, there had never been any complaints to McMahan or West Penn about [McMahan’s dog’s] behavior, vicious or otherwise, and McMahan had not observed any violent behavior by [his dog] with any dog or person.” Id . What’s the takeaway from this? The lesson for landlords being sued for the acts of a tenant’s dog is that just because a landlord knows that a tenant has a dog does not mean that the landlord has actual knowledge of a dangerous propensity of that dog. Though the Goodenow Court’s decision is non-precedential, it is nonetheless an indicator of how any court might rule given a similar set of circumstances. Goodenow v. McMahan .pdf Download PDF • 179KB Previous Next Ryan Hunsicker Ryan Hunsicker Senior Associate +1 267 239 5526 rhunsicker@wcmlaw.com Contact

News Plaintiff Fouled By Dust On Basketball Court (NY) July 19, 2019 < Back Share to: In Samuels v. Town Sports International LLC, plaintiff brought suit when he slipped and fell on the sideline of a basketball court on what he believed was dust coming from an above HVAC unit. Defendant moved for summary judgment on the theory of no notice and assumption of risk. The lower court granted summary judgment on defendant’s assumption of the risk argument. The lower court held “those who seek to recover for injuries sustained while engaged in sporting events, must overcome the assumption of risk doctrine. Thus, one who engages in a sport or recreational activity consents to those risks which are inherent in the activity.” Plaintiff’s mere participation in a basketball game denotes acceptance of the risk of injury. Moreover, he complained of conditions of which he was aware because he was a fairly frequent player on defendant’s basketball court, and had previously noticed the dust and the slipperiness on the court. Accordingly, the lower court found that the plaintiff assumed the risk associated with playing on a basketball court in such condition. Plaintiff appealed. The Appellate Division, First Department reversed the lower court decision. While the Appellate Division acknowledge the assumption of risk defense, they held the lower court erred in granting defendant summary judgment as defendant failed to make a prima facie case on its affirmative defense of primary assumption of the risk. The doctrine limits the scope of the defendant’s duty of care but it does not exculpate a landowner from liability for ordinary negligence in maintaining its premises. The Appellate Division found that the defendant failed to properly maintain the court and that dust was not an open and obvious condition or inherent in the sport of basketball. The Appellate Division likened dust on the basketball court to a tennis player that trips on a torn net; not a risk inherent in the sport of tennis so as to relieve a premises owner of liability, as a matter of law. Thanks to Paul Vitale for his contribution to this post. Please contact Georgia Coats with any questions. Previous Next Contact

News Insurer Not Estopped From Withdrawing ROR After Defending For Several Years (PA) June 24, 2016 < Back Share to: The Third Circuit Court of Appeals recently dealt with a challenge by an insured to the withdrawal of a Reservation of Rights in Nationwide Ins. Co. v. Shearer. The underlying claims arose from damage caused by the discharge of sewage and other waste by Nationwide’s policyholders, which had drained onto the Shearers’ property and subsequently contaminated their groundwater. The Policyholders were insured by Nationwide, who agreed to provide a defense but stated in Reservations of Rights letters that the claims may be subject to a pollution or biological deterioration exclusion and that it was not waiving its rights to later disclaim coverage. Nationwide subsequently filed a declaratory judgment action and moved for summary judgment, arguing that the claims were excluded from coverage. The policyholders did not challenge the applicability of the exclusionary language and instead claimed that Nationwide should be equitably estopped from withdrawing because it had been defending them for several years and that an untimely withdrawal would be prejudicial. The District Court rejected the policyholders’ arguments and awarded summary judgment in favor of Nationwide. The District Court noted that Nationwide’s reservation of rights letters made clear that its defense “shall not be deemed to be a waiver of or estoppel” of its rights under the policy. The District Court also rejected the policyholders’ claim that Nationwide was required to take steps to withdraw its defense within a certain period of time after issuing reservation of rights letters and that it was instead the burden of the insured to establish “actual prejudice.” Finding no allegations or evidence of prejudice, the Court held that there was no basis to estop Nationwide from asserting its coverage defenses. The policyholders appealed, and the Third Circuit affirmed. Echoing the lower court’s decision, the Third Circuit determined that Nationwide had preserved its coverage defenses in its reservation of rights letters. The appellate court also rejected the Policyholders’ claims that they would be prejudiced as a result of allowing the withdrawal of the defense at such a late stage in the case. Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

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