Wade Clark Mulcahy LLP

News When Does Art Really Lose Its Value? December 7, 2012 < Back Share to: We, here, at WCM are often asked to tackle the appropriate legal measurement of a work of fine art's loss in value. Often times, when we get involved, one side or the other has declared the work a "total loss" requiring full market or scheduled value repayment. But, perhaps, that is the wrong way of looking at things since even damaged art can have value. This interesting article profiles the Salvage Art Institute, an organization that takes the position that even damaged art has value. The question is -- can that value be measured in terms a court will accept? For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Named Insured’s Misrepresentation Not Material To Coverage To Additional Insured November 22, 2010 < Back Share to: A New York court has held that coverage is afforded to an additional insured even if coverage would be void as to named insured based upon the named insured’s misrepresentation. In Tocci Building Corp of New Jersey v. Delos Insurance Company (14813/08), Nassau County Justice F. Dana Winslow held that plaintiff, an additional insured under defendant’s policy, was entitled to coverage even though defendant’s named insured made misrepresentations in its application, and defendant would not have issued the policy if it had known about the misrepresentations. Under New York law, an additional insured is treated as if it had a separate policy of its own. This is true even if the policy was issued based upon a material misrepresentation of the named insured. If you would like additional information about this post, please contact David Tavella at dtavella@wcmlaw.com . Previous Next Contact

News Basketball Player Assumes The Risk Of Injury In Electronic Waiver October 22, 2008 < Back Share to: We've come a long way since the Declaration of Independence was signed on engrossed parchment in 1776. Banks, computer software manufacturers, and online merchants, just to name a few, require us to affirm our consent to their terms and conditions through our "clicks" on their websites. Has the law caught up with this new technology? In Stephenson v. Lawyers Athletic League, a 6'8" former Division I college basketball player was assaulted by another player. There was trash talking during the game that culminated in plaintiff getting punched in the face while waiting to take a foul shot, sustaining a fractured jaw. Plaintiff sued the Lawyers Athletic League, the league organizer, and The Food Bank, which sponsored the team on which the assaulter played. The two key issues were whether the plaintiff expressly assumed the risk of injury and waived any claims of negligence against the League and whether his online signature of the waiver/release was valid under New York law. The motion court held that the language of the online waiver included claims relating to the negligence of the League as well as the "actions, inactions or negligence of others..." Therefore, the court ruled that by voluntarily participating in the game and executing the waiver/release, plaintiff assumed the risk of injury including an assault by a fellow participant. An interesting sub issue was whether plaintiff could signify his consent by hitting the "submit" button on the the electronic waiver form. Citing New York's State Technology Law, the court found plaintiff's action to be the functional equivalent of an electronic signature and enforced the terms of the form. Victory to the League and that's no trash talk. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008OCT/3001128702006002SCIV.pdf Previous Next Contact

News No Harm in Failing to Notify Employees as to Rejection of UIM Coverage (PA) March 15, 2019 < Back Share to: The Eastern District of Pennsylvania recently granted a Motion for Summary Judgment in favor of an employer and its insurer in an underinsured motorist coverage (“UIM”) case. In Morales v. Travelers Property Casualty Company, the Court determined that there were no genuine issues of material fact at hand when all parties agreed that an employer previously signed off on two UIM coverage rejection forms. The two issues involved in the matter were (1) whether the employer’s completion of the rejection forms complied with 75 Pa.S.C. § 1731 and (2) whether the plaintiff employee required notice of such. The lawsuit arose when the plaintiff, David Morales (“Morales”), was injured in a motor vehicle accident while acting in the scope of his employment with Tribus Services, Inc. (“Tribus”). Morales filed a claim against the tortfeasor and settled at the policy limit of $15,000.00. He later filed a claim for UIM benefits from Tribus’ policy with Travelers Property Casualty Company of America (“Travelers”). Morales was denied, however, as Tribus previously opted out of those benefits. In fact, the Executive Vice President and Corporate Secretary of Tribus signed two UIM rejection forms prior to the date of the accident. At the close of discovery, all parties filed motions for summary judgment. After reviewing the motions, the Court determined that there were no issues of material fact in dispute. The legal issues were (1) whether Travelers’ UIM rejection form and Tribus’ completion if it complied with 75 Pa.S.C. § 1731; and (2) whether Tribus was obligated to provide notice to Morales that it rejected UIM coverage such that Morales would have the opportunity to obtain his own independent coverage. In reaching its conclusion, the Court first reviewed the two UIM coverage rejection forms in the record and determined that both complied with the statutory language from 75 Pa.S.C. § 1731(c). Morales argued that neither form identified the policy to which it applied. In response, the defendants argued that 75 Pa.S.C. § 1731 does not require that a policy number be found on the UIM coverage rejection form. See Travelers Indem. Co. v. DiBartolo, 171 F.3d 168 (3d Cir. 1999); see also Universal Underwriters Grp. v. Tusay, Jr., 2004 WL 902372, at *3 (E.D. Pa. Apr. 2004). The Court agreed with the defendants’ position. Additionally, Morales argued that the second UIM coverage rejection form post-dated the effective policy by almost two months. However, the insurance administrator for Tribus and its corporate designee testified in her deposition that she understood the rejection form to apply to “all future renewals unless we can cancel in writing.” Thus, the corporate designees of each defendant stated that they intended the rejection to apply to the policy at issue during Morales’ accident. In granting the defendants’ motion for summary judgment, the Court did highlight one public policy issue which was favorable to Morales. The Court referenced Bielec v. Am. Int’l Grp., Inc., in which Judge Ramy Djerassi granted summary judgment in favor of a plaintiff under similar facts. 2017 WL 6594067, at *7 (Pa. Super. Ct. Dec. 2017). In the opinion, Judge Djerassi stated that even if the employer’s UIM rejection was valid on a statutory text analysis, “we believe an employer who fails to notify its employee driver that UIM coverage has been rejected is acting against public policy.” Id. at *7. The Eastern District of Pennsylvania rejected this argument by stating that Judge Djerassi’s discussion surrounding public policy was merely dicta and not the actual basis for the Superior Court later affirming that decision. Additionally, the Court stated that the Third Circuit and Pennsylvania Supreme Court precedent did not support such a theory. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. 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 1st Dept. Gives Plaintiff's Dismissed Claim 2nd Chance (NY) March 2, 2019 < Back Share to: In Michaluk v New York City Health Andamp Hosps Corp., plaintiff brought a medical malpractice action relating to treatment received by the decedent plaintiff, at Bellevue Hospital Center between August 2010 and January 2011. Plaintiff subsequently moved to amend the notice of claim to include a cause of action for wrongful death. Ultimately, defendant New York City Health and Hospitals Corporation moved for an order striking the action for plaintiff’s failure to comply with prior court orders, including discovery obligations. The lower court found that plaintiff willfully failed to comply with numerous discovery orders pertaining to discovery deadlines, including setting dates for depositions. After plaintiff was granted leave to file an amended notice of claim, plaintiff waited over a year before providing defendant with a verified Bill of Particulars. Additionally, plaintiff’s deposition wasn’t completed for over a year, and deposition of non-party witness was not completed until over seven months lapsed. Ultimately, the defendant’s motion to dismiss was granted for plaintiff’s failure to comply with the Court’s directives. Finding the lower court improvidently exercised its discretion in dismissing the action for failure to comply with discovery, the First Department noted that “warnings in prior court orders that the deposition was not to be adjourned is not notice to plaintiffs that dismissal of the complaint may result should it not go forward.” Defendants failed to show that plaintiff’s failure to go forward with deposition of one doctor was willful, contumacious, or in bad faith and plaintiff’s excuse that attorney was in a motor-vehicle accident 2-weeks before scheduled deposition was reasonable. Previous Next Contact

News Court Holds Plaintiff’s Expert Lacks Factual Basis (… and is Inconsistent with Plaintiff’s Theory of Liability Anyway) May 24, 2024 < Back Share to: Last week, an appellate court in New Jersey affirmed summary judgment in favor of defendants in a slip and fall case that took place in a Wawa parking lot. Brueck v. Wawa, Inc., & Sherwin Williams Company, et al , No. A-0249-22, 2024 WL 2235537, at *1 (N.J. Super. Ct. App. Div. May 17, 2024). Plaintiff Edward Brueck slipped and fell on a yellow parking line on a rainy day. He commenced suit against Wawa, the paint supplier Sherwin-Williams, and Asphalt Pavement Services (“ASP”) which had striped the lot. Id. To substantiate his claim, Plaintiff produced an expert report from Wayne F. Nolte, Ph.D (“Nolte”). Over seven weeks after the accident, Nolte inspected the scene of the fall on a clear day. He “sprayed water on the line” and measured “the Coefficient of Friction Value,” which he then compared to the guideline set forth by the American National Standards Institute. Id . at 2. Nolte stated that rain was an expected environmental condition, but on the date of the accident the paint was not sufficiently slip resistant to hold Plaintiff’s foot in place. He further opined that site was in a “hazardous condition” on the date of the incident due to the presence of oils and greases along the painted line, which ultimately caused the slick condition that resulted in Plaintiff’s fall. Id. at 2. Defendants Wawa and Sherwin-Williams produced their own expert reports that challenged plaintiff’s expert’s conclusions and methodology. Additionally, during Nolte’s deposition he stated that he had not seen any oil or grease during his inspection but “assumed” there were oils and greases present due to the traffic coming in and out of Wawa, and, based on his co-efficient of friction measurements. Id . at 3, 4. The lower court granted summary judgment for the defendants, holding that plaintiff’s expert’s theory of liability “fell apart” without facts supporting the presence of oil or grease, “rendering his report unhelpful to a jury and therefore inadmissible.” Id . at *3. The Appellate Court affirmed, noting that plaintiff’s expert’s conclusions were inconsistent with Plaintiff’s theory of liability. Specifically, Plaintiff alleged he slipped due to rain on the painted line, yet Nolte concluded that oils and greases created the slick condition that caused Plaintiff’s fall. The Court also found Nolte’s opinion inconsistent with the facts, as no witnesses testified about seeing oil or grease in the parking lot, Nolte never tested any paint, oil or grease that may have been present, and, he did not test the co-efficient of friction against oil or grease – instead he sprayed water and then measured the co-efficient. Id . at *5. This case serves as a helpful reminder to heavily scrutinize expert evidence when it comes to liability, particularly where the expert’s theory differs or especially contradicts the theory of the Plaintiff. It also shows the importance of moving a court to preclude such evidence at trial. Edward Brueck v. WAWA Inc. and Sherwin Williams Company .pdf Download PDF • 165KB Previous Next Brian T. Noel Brian T. Noel Partner +1 267 331 3891 bnoel@wcmlaw.com Contact

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 WCM Defeats Claim For Title Coverage Under Fine Arts Dealer Policy September 16, 2016 < Back Share to: In a matter of first impression, WCM convinced the New York Supreme Court that a fine arts dealer all-risk policy does not provide coverage for defective title, notwithstanding the fact that the policy was silent in respect of defective title, and a very sympathetic plaintiff. Jasper Johns is an iconic American artist who had the misfortune of having a criminal as his trusted studio assistant. Between 2006 and 2012, James Meyer stole several works of art from Johns and secretly sold the stolen works to various art galleries and collectors under contracts prohibiting buyers from selling or publicly displaying the works for seven years or until the artist died. Meyer explained this odd condition by telling prospective buyers he received the art as a gift and that he would be embarrassed if Johns found out he was profiting off the artist’s generosity. At his sentencing, Meyer expressed regret for his actions for betraying his mentor. But Jasper Johns was not Meyer’s only victim. The galleries buying those stolen pieces were also victims. One such victim was the plaintiff in DAE Associates, LLC d/b/a Danese Gallery v. AXA Art In. Corp. et al. In DAE, the plaintiff was the owner of an art gallery who, in 2010, was approached by an intermediary claiming to have Untitled, 2002-2005, Acrylic on paper, 37 ¼ x 30 inches, by Jasper Johns, for sale. He was told that the work was available on the condition that they eventual buyer keep the work private and not to loan or sell the work for seven years, or unless Jasper Johns passes away. Like the gallerists who preceded him, the plaintiff was told that the work was a gift. After being told the work was available, the plaintiff found a couple willing to buy the work, and sold the work to the couple for $825,000. In the contract with the couple, the plaintiff warranted that he had marketable title to the work and promised to rescind the sale and refund the purchase price if title proved to be defective. Three years later, the couple was approached by an FBI agent who informed them that the Jasper Johns hanging in their house was stolen. After returning the work to its rightful owner, the couple sued the gallerist for breach of contract. That suit, styled Perry and Donna Golkin v. DAE Associates, LLC d/b/a Danese Gallery, is currently pending in the New York Supreme Court. In DAE, the gallery sued AXA seeking coverage under its Fine Art Dealers All-Risk policy, which provided coverage for all risks of loss or damage to insured property except as otherwise excluded. The plaintiff argued that he suffered a loss, that the policy did not use the word “physical” and that defective title was not excluded under the policy. AXA disagreed, and argued that the artwork, which was the insured property, suffered no loss and that the plaintiff’s loss was a purely financial one which flowed from a simple breach of contract. AXA also argued that New York Insurance statutes recognize title insurance as a separate product and that it was not even permitted to write title insurance under New York law. This argument was supported by the plaintiff’s admission, during his pre-suit examination under oath, that he was aware of a separate product called title insurance, but that it was an expensive product. Based on these arguments, AXA filed a pre-answer motion to dismiss. After the motion was fully submitted and oral arguments made, the Honorable Jeffrey K. Oing agreed with AXA and ruled that there was no coverage under the policy. According to Judge Oing, although the plaintiff suffered a monetary loss, he did not suffer a covered loss because there was no loss to the insured property itself, the stolen Jasper Johns work. DAE is significant because it provides insurers with reassurance that their fine arts dealers all-risk policies cannot be transformed into title insurance based on the mere fact that defective title is not mentioned in any exclusion. AXA was represented by Dennis M. Wade and Michael A. Gauvin of Wade Clark Mulcahy. If you have any questions, please email Dennis at dwade@wcmlaw.com . Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News $18 Million Judgment Entered Against Art Dealer for Theft Claims (NY) January 10, 2013 < Back Share to: Plaintiff George Ball is a renowned art collector, and retained R. Scott Cook, his wife Soussan, and Cook Fine Art as his exclusive art advisor and dealer. The relationship started off well, and between 1997 and 2000, at Cook's advice Ball purchased about $10 million in paintings, which were held in storage by Cook or at the gallery. Eventually, the parties entered into an agreement allowing Cook to sell some of Ball's collection. In 2011, Cook persuaded Ball to list eleven notable works at auction with Christie's, afterwards telling Ball that nine of the works had been sold. However, Cook never listed the works and instead sold them without Ball's knowledge or consent. When Cook admitted he had no auction proceeds to deliver, Ball demanded the return of all of his works. To date, Cook has still not complied. Ball filed suit in the Southern District of New York. Cook invoked Fifth Amendment rights against self-incrimination in response to all discovery demands, and Ball eventually moved for summary judgment. Cook, incarcerated in France and under indictment in New York, advised the Court that he would not oppose the motion. The Court thus ruled in favor of Ball on breach of contract, conversion, breach of fiduciary duty, fraud, and replevin claims. The judgment, including interest and punitive damages, is in excess of $18 million. As often is the case under these circumstances, collectabilty of the judgment is sure to be an issue. If you would like further information about this post, please write to Mike Bono at mbono@wcmlaw.com .   Previous Next Contact

News Appellate Court Grants Product Recall Insurers Big Win. November 11, 2011 < Back Share to: There aren't many product recall decisions out there, but every once in a while they come along. In the Fresh Express case in California, contaminated spinach was at issue. The trial court ruled for the insured and awarded policy limits of $12,000,000. The case went up on appeal and the California appellate division has now justweighed in. The appellate division reversed the trial court. Of significance, the appellate division held that not every contamination is an insured event, i.e. not every contamination is accidental thereby triggering coverage. This is good news for product recall insurers as insureds (and courts) have a tendency to equate the two. For more information about this post or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact