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News Inspection Work Not Applicable Under Labor Law Statute (NY) August 25, 2023 < Back Share to: In Lauria v. Lippolis Constr., Inc., 2023 NY Slip Op 04374 (2nd Dept. 2023), a building inspector working for the Village of Port Washington was on a construction site. He lowered himself into an open excavation and then tripped and fell while inside the excavation. He subsequently filed suit against the property owner and general contractor under Labor Law Sections 200, 240(1), and 241(6). The defendants eventually filed their motion for summary judgment arguing plaintiff had no relief under Labor Law §§ 200, 240(1), and 241(6) because he was not an employee at the time of the accident. The trial judge granted the motion and the plaintiff appealed. The Second Department reasoned that in order to obtain relief under Labor Law §§ 200, 240(1), and 241(6), a plaintiff must first prove he was permitted to work on a building or structure and that he was hired by a either the owner, general contractor or a subcontractor. The Court also felt that whether inspection work falls within the umbrella of the Labor Law must be determined on a case-by-case basis, depending on the type of inspection work. The deposition testimony and evidence showed that neither the plaintiff nor his employer, the Village of Port Washington, had been hired to do any work on the construction site, and that the plaintiff was only performing a visual inspection of the excavation after the property had already been fully excavated. This case provides insight into a small caveat of Labor Law, which excludes an inspector, or someone of that profession, not hired by the property owner, general contractor or a subcontractor, who comes on to the construction site and is injured as a result of his work there. The distinction falls on whether an inspector is a “covered” person under Labor Law §§ 240 (1) and 241 (6) if “his inspections were essential, ongoing, and more than mere observation" (Dubin v S. DiFazio & Sons Constr., Inc., 34 AD3d at 627; see Prats v Port Auth. of N.Y. & N.J., 100 NY2d 878 [2003]; cf. Martinez v City of New York, 93 NY2d 322 [1999]). Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Do Insureds Need to Execute A Sign Down Form Each Time a Vehicle is Added to the Policy? (PA) July 3, 2019 < Back Share to: Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insurer must provide uninsured (“UM”) and underinsured (“UIM”) motorist coverage equal to the bodily injury liability limits under an automobile insurance policy. However, under Pennsylvania law, where an insured executes a valid sign down form, the UM/UIM coverage limits are reduced. Recently, in Alcedo v. State Farm, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether an automobile insurer must obtain a new writing “signing down” UM and UIM coverage from bodily injury liability limits under § 1734 of the Motor Vehicle Financial Responsibility Law (MVFRL) when an insured adds another vehicle to the policy. In 2005, State Farm issued an automobile insurance policy to John Alcedo (“Mr. Alcedo”), which covered a Nissan Pathfinder and a Nissan Maxima. The policy provided UM/UIM bodily injury liability limits of $100,000 per person and $300,000 per accident. However, at the time Mr. Alcedo was applying for coverage, Mr. Alcedo signed and executed a sign down form reducing the UM/UIM coverage limits to $25,000 per person and $50,000 per accident. Simultaneously, Mr. Alcedo signed a § 1791 notice, which indicated he acknowledged that higher UM/UIM limits were available under the policy. Some years later, Mr. Alcedo added and removed vehicles to the policy. Although he added new vehicles to the policy, Mr. Alcedo did not execute any additional sign down forms. The coverage dispute arose when Susan Alcedo (“Mrs. Alcedo”) sustained bodily injury while driving a covered vehicle. When State Farm refused to pay the UIM benefits in the amount of the policy’s stacked bodily injury limits of $400,000, Mr. and Mrs. Alcedo commenced the instant action against State Farm. Subsequently, State Farm filed a motion for judgment on the pleadings. In its motion, State Farm asserted the available UM/UIM coverage for Mrs. Alcedo was the lower coverage limit as set forth in the sign down waiver signed by Mr. Alcedo in 2005 – therefore, arguing State Farm was not required to have Mr. Alcedo execute additional sign down forms when adding vehicles to the policy. In opposition, Mr. and Mrs. Alcedo argued that, since a sign down form was not executed contemporaneously with the newly added vehicle, the policy provided coverage up to the maximum UM/UIM limits of $100,00 per person and $300,00 per accident. To support their argument, Mr. and Mrs. Alcedo relied on cases discussing waiver of stacking coverage under § 1738. After considering the alleged facts pled in the complaint and the documents attached as exhibits per Rule 12(c) of the Federal Rules of Civil Procedure, the Court noted a sign down of UM/UIM benefits remains in effect unless it is affirmatively changed by the insured. Although the Court’s reliance on Pennsylvania law was limited because the Supreme Court of Pennsylvania had not addressed the specific issue, the Court in Alcedo determined a § 1734 “sign down” survives the addition of vehicles to the policy. In other words, the Court held State Farm fulfilled its obligations under the MVFRL by (1) offering UM/UIM coverage up to the amount of the bodily injury liability limits; and (2) obtaining confirmation in writing from the insured. Further, the Court determined Mr. and Mrs. Alcedo’s reliance on the waiver of stacking under § 1738 was inapplicable to the issue at bar. In sum, this ruling serves as a reminder for insurers to provide clear notice at the time a policy is issued, and how, in the context of UM/UIM coverage disputes, affirmative steps are needed to alter coverage limits. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News US Government Sues Dinosaur; Court Says Fossil Skeleton is like Frankenstein September 20, 2012 < Back Share to: The US Attorney’s Office recently filed a complaint seeking the forfeiture of a Tyrannosaurus skeleton. The skeleton was imported from Great Britain to Florida to a company called Florida Fossils and later auctioned in New York. The Mongolian government obtained a temporary restraining order to prevent the sale from being finalized, alleging that the Tyrannosaurus was a “bataar,” a species native to Mongolia. Pursuant to Mongolian law, fossils are considered property of the government and Mongolia is a signatory to the United Nations Convention that prohibits the smuggling of cultural property. The US Attorney’s office thus filed this forfeiture action (against the name of the property to be seized) in an effort to have the skeleton returned to Mongolia. Florida Fossils, however, moved to dismiss the complaint, alleging that a significant portion of the skeleton came from different bones already owned by the claimant that were not related to the bataar, and that the claimant had assembled different pieces into a larger skeleton. The Court, who referred to the skeleton as a “kind of Frankenstein model,” gave the Government an opportunity to amend the complaint to clarify this point as well as other issues, including whether such a dinosaur could have come from a place other than Mongolia. It will be interesting to see whether the “Frankenstein defense” works, either in this matter or in other cases involving disputes over cultural property, including art. If you have any questions about this post, please write to mbono@wcmlaw.com Previous Next Contact

Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has four offices across three states, including in New York City, New Jersey, Pennsylvania and Long Island, and serves its clients in matters across the country. ​ WCM is a firm of trial lawyers who partner About Us Wade Clark Mulcahy opened its doors in 1994 guided by a simple principle: Results Speak for Themselves. The superior and cost-effective results achieved for our insurance and corporate clients have spoken. WCM now has seven offices across six states, including in New York, New Jersey, Pennsylvania, Florida, Louisiana, and Texas and serves its clients in matters across the country. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and to bring closure to complex matters as quickly as possible. And if the matter warrants, we stand ready to fight the end game – whether trial by jury or argument to an appellate bench. WCM is committed to maintaining our reputation for excellence and to letting our results speak for themselves. So, if you need help sorting out a legal mess, count on us. WCM solves defense and coverage issues cleanly, quickly and efficiently. About Us Best Practices Partner Participation A partner reviews all substantive correspondence, letters and reports to our clients, and reviews every dispositive motion before it is served and filed. Prompt Communication We respond to our client’s telephone calls or e-mails within 24 hours, if not sooner. Clients are immediately advised of arbitration dates, mediation dates and trial dates. Clients should never have to ask twice for anything. Top quality service to our clients is our shared vision. Result Driven Strategies We are not file processors or paper pushers. Our focus is on the end result and we execute a strategy designed to achieve our client’s goal. Every call, every letter, every analysis of every document in the file, and every discussion with the other side is undertaken as part of our mutual strategy. Attorney Accountability Files are not shuffled from associate to ass ociate. Whenever possible, the assigned attorney appears at the deposition or substantive court conference. When that cannot happen, our attorneys are still prepared to be the “answer person.” Best Practices

News Sidewalk Shenanigans in Buffalo (NY) January 16, 2020 < Back Share to: In Beagle v. City of Buffalo, a plaintiff had a trip and fall on a sidewalk where the City of Buffalo had performed a cold patch (asphalt patch to fill in cracks in concrete) during winter on a gap between two sidewalk slabs. The two slabs were elevated by roots of a nearby tree (insert J.R.R. Tolkien reference here) owned by the City of Buffalo. Before the accident occurred, the City performed cold patch repair covering the open section caused by the root. However, the sidewalk slabs in controversy were still elevated, and the plaintiff tripped on them. It is settled law in New York that a municipality may require prior written notice of any defect on a sidewalk a condition precedent to any tort actions against it. The Defendant City of Buffalo moved for summary judgment contending it had no prior notice of the dangerous defect pursuant to Buffalo City Charter §21-2. However, the New York Court of Appeals has recognized two exceptions to the prior notice rule. The first exception is where a special use of the sidewalk confers a special benefit upon the defendant, and the second exception is where the city has created the defect or hazard through an affirmative act of negligence that immediately results in the existence of a dangerous or defective condition, and not a condition that develops over time. Here, although the plaintiff did not plead the prior written notice in her Amended Complaint, the Court felt that the City of Buffalo failed to prove as a matter of law that the cold patch repair performed on the sidewalk created a dangerous condition that developed over time. The circumstances surrounding the accident in Beagle are reminiscent of hundreds of sidewalk claims against premises owners, tenant/leasor and municipalities each year. Quite often, municipalities move for summary judgment and win based on the argument that they had no prior written notice pursuant to local statutes. Afterwards, the premises owner and tenant/leasor are left in the case because they may have had constructive notice of the dangerous defect. This case provides a clear legal analysis that can be used to show that the local municipality cannot be dismissed from a case simply because they had no prior written notice. Rather, in circumstances such as these, the local municipality must show they did not create the hazard or that the claimant was not immediately injured by the hazard they created. Thanks to Raymond Gonzalez for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Assumption of Risk Defense Not Bar to Horseback Riding Suit May 21, 2011 < Back Share to: In Corcia v. Rocking Horse Ranch, the plaintiff commenced a negligence action against defendant’s horseback riding ranch after she allegedly fell off a horse. Plaintiff claimed that defendants failed to properly instruct plaintiff on how to control a horse, that defendant’s trail guides were not sufficiently trained, that they failed to respond when the horse started bucking. Specifically, plaintiff asserted that the horse bucked a few times over several minutes, but the guide did nothing. She also alleged that she was not given any instructions on how to control the horse. Defendants moved for summary judgment based on the doctrine of assumption of risk. The Supreme Court partially denied the motion and the defendants appealed. The Third Department affirmed. It held that there were issues of fact as to whether the defendants enhanced the risk of plaintiff falling by (1) failing to respond when the horse bucked, and (2) failing to instruct plaintiff on how to control a horse. Thanks to Gabriel Darwick for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03950.htm Previous Next Contact

News Is US Maritime Law About to Significantly Change? July 7, 2010 < Back Share to: Some would argue that crisis begets opportunity. It appears that the BP oil spill may be the opportunity needed by US legislators to fundamentally change US maritime law. According to press accounts, Congress is currently considering revisions to the Death on the High Seas Act, the Limitation of Liability Act and the Jones Act. Congress is also considering revisiting the appropriateness of punitive damages awards in maritime cases. Obviously, if any of these statutes are changed, the "seascape" of maritime law in the US will be altered. http://www.nytimes.com/2010/07/06/business/06seas.html?_r=1&scp=1&sq=maritime&st=cse If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Zipline Included in the Premises and Covered Under the Policy October 31, 2017 < Back Share to: The tension between the scope of coverage for an additional insured and the terms of an underlying contract reared its head when a youth group sought coverage as an additional insured in a zip-line accident case. In Great American Alliance Ins. Co. v. Windermere Baptist Conference Center, Inc.., the Searcy Baptist Church youth group leased camp grounds from Windmere Baptist Conference Center. The camp grounds included a ropes course, dubbed “the Edge.” The lease agreement memorialized numerous benefits, including lodging and recreational activities. Under typical circumstances, a guest camper would have to pay an additional premium for activities at the Edge. No such additional premium appeared in the lease agreement between the Church and Windmere. While leasing the property, one of the Church’s youth group members was injured while zip-lining at the Edge. The Windmere policy provided coverage to the Church as a lessee under a blanket additional insured endorsement, but only for “liability arising out of the ownership, maintenance or use of that portion of the premises leased to [the Church]” by Windermere. Great American argued the Edge was not listed in the agreement and, therefore, coverage was not triggered. The Church argued the lease included any and all recreational activities on the grounds. The Western District of Missouri ruled in favor of the Church, finding ambiguity first in the insurance policy, and then in the underlying contract. With respect to the policy, the court held the additional insured endorsement’s use of “lease premises” conflicted with a layman’s understanding, and resolved the ambiguity in favor of the insured seeking coverage. As for the contract, the court referred to parole evidence showing the Edge was offered as part of the included services. Great American made the correct call based on the information provided. Having been set off from the standard camp grounds and recreational activities, the Edge arguably was not part of the premises leased. Further investigation into the negotiations, though, may have led to a different interpretation at the outset. Insurers are often at the mercy of the information the insured can think to provide. As a result, in-depth investigation by a third-party can uncover critical facts relevant to a coverage determination, saving time and litigation costs down the road. Thanks to Chris Soverow for his contribution to this post.     Previous Next Contact

News Multiple Strip Searches Require Multiple Deductibles (NY) May 3, 2012 < Back Share to: The County of Rensselaer implemented a policy of strip searching all people who were admitted to its jail regardless of the type of crime the individual was alleged to have committed. That policy remained in effect for four years from 1999 to 2002, despite the fact that the Second Circuit suggested that such a policy was unconstitutional. Some of the arrestees commenced a proposed class action lawsuit against the County in federal court. The County sought a defense under the insurance policies that Selective issued to the County, which provided coverage for personal injury arising out of the conduct of its law enforcement activities. Selective provided the defense, retained defense counsel and, rather than challenging class certification, settled the case for $1,000 per plaintiff, $5,000 for the named plaintiff and set the class members’ attorneys’ fees at $442,701.74. There were approximately 800 plaintiffs. The County contended that it only had to pay one deductible, which was $10,000 for the policy periods in 1999, 2000, and 2001, and $15,000 for the 2002 policy period. After settling the case, the County refused to pay more than a single deductible of $10,000. As a result, Selective commenced a state court action, arguing that each class member was subject to a separate deductible. The Supreme Court determined that a separate deductible payment applied to each class member and that all legal fees should be allocated to one policy. The Appellate Division affirmed, and the Court of Appeals granted leave to appeal. The Court of Appeals reasoned that the policies unambiguously defined occurrence as “an event, including continuous or repeated exposure to substantially the same general harmful conditions, which results in personal injury by any person or organization and arising out of the insured’s law enforcement duties.” That definition did not permit the grouping of multiple individuals who were harmed by the same condition, unless that group is an organization, which was clearly not the case. Thus, the Court affirmed the lower courts’ orders and held that each improper strip search constituted a separate and distinct occurrence subject to a single deductible payment. The Court also rejected the County’s bad faith claim, reasoning that Selective retained competent defense counsel to defend the case, and the County played an active role in the negotiation, including the discretion to investigate and settle any claim asserted against the County. The County did prevail on a significant claim for attorneys fees, as the Court found that because the policies were silent as to how attorneys’ fees would be allocated in a class action, it gave rise to an ambiguity, in which case the insured’s reasonable interpretation prevails. The County argued that, since there was one defense team for all class members, the attorney fees should be attributed only to the named class plaintiff, and the Court held that the County’s interpretation was reasonable. Thanks to Brett Kuller for his contribution to this post and please write to Mike Bono if you want further information.   Previous Next Contact

News Sandy Basketball Court Trips up Plaintiff (NY) June 28, 2013 < Back Share to: Courts generally hold that sports participants assume the risks inherent in the games they play. Getting struck by a baseball while in the batter’s box or injured when tackled in a football game are simply part of the game. A recent decision by a New York appellate court also suggests that athletes need to consider the potential risks of a particular playing field's conditions, especially when they have played there previously. In Austion v. Parkchester S. Condo. Inc., the plaintiff injured himself when he slipped on an outdoor basketball court covered in sand. Despite what many would consider a dangerous and unusual condition, the Court held that the Plaintiff was barred from recovery. The Court noted that the sand on the basketball court was the result of a naturally occurring condition. That, coupled with the fact that the Plaintiff had seen the sand on the court before and presumably knew that it was local custom to sweep it away meant that the Plaintiff assumed the risk inherent in playing basketball on that bizarre court. Property owners should not read this decision as license to neglect maintenance of their facilities. The Court was careful to note that the Plaintiff had observed the dangerous conditions before. It is one thing when an athlete knows about a risk and assumes it, and it would have likely been a different story if a newcomer to the court took a spill. Thanks to Michael Gauvin for his contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Expert Affidavit Cannot Overcome Inability To Identify Cause Of Fall August 17, 2010 < Back Share to: It is well established that in a slip and fall action, the plaintiff's inability to identify the cause of the fall is a fatal flaw. In Murphy v. The New York City Transit Authority, the plaintiff was injured when she slipped and fell on a stairway in a subway station. The Transit Authority was granted summary judgment because the plaintiff could not identify the cause of her fall and the Appellate Division affirmed. On appeal, the Appellate Division addressed whether an affidavit of an engineer stating that the stairs violated certain provisions of the New York State Building Code was enough to overcome the plaintiff's inability to identify the cause of her fall. The Second Department held that it would be purely speculative to find that the alleged violations in the engineer's report proximately caused the plaintiff's fall. Thanks to Ed Lomena for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04559.htm Previous Next Contact

News Asbestos Insurers Beware: New Jersey Decision Aims to "Maximize Insurance Resources" July 11, 2018 < Back Share to: In Continental Insurance Company v. Honeywell International, the New Jersey Supreme Court held that Honeywell was not required to contribute to damages related to brake and clutch pads containing asbestos, even though the company continued to make those products for more than a decade after 1987, when it could no longer obtain insurance coverage. Specifically, the Court held “an insured is not forced to assume responsibility in that allocation during the insurance coverage block for years in which insurance coverage is not reasonably available for purchase.” Asbestos coverage disputes are unique in that, because asbestos-related diseases generally do not emerge until decades after exposure, many years of coverage are implicated, and determining what policies will pay has proven to be a complicated task. Under New Jersey law, each insurer pays based on the degree of risk assumed, and the amount of time each policy was on the risk. Normally, if the policyholder did not purchase insurance for a particular period, they would be on the hook for that portion of liability. However, the Honeywell court affirmed prior New Jersey precedent that, if no insurance was available, then the unavailability exception applies and the policyholder will not be required to contribute. This is the case even though asbestos exclusions became ubiquitous in 1987 and Honeywell continued to manufacture asbestos products. To that end, the court focused on the goals of “maximizing insurance resources” and spreading risk across the insurance industry. In dissent, Justice Albin noted the negative impact of the holding, writing, “This court compels insurance carriers that previously insured the corporation – but later refuse to do so – to remain guarantors for claims arising during the years the corporation continues to manufacture its dangerous products.” This underscores the potential negative effects that could follow should other states follow the New Jersey Supreme Court. Given the thousands of outstanding asbestos cases throughout the country, and because this issue could come up over again, asbestos insurers may be required to pay for millions in future lawsuits. Thanks to Douglas Giombarrese for his contribution to this post. Previous Next Contact