Wade Clark Mulcahy LLP

News Plaintiff Bitten By UM Decision (NY) September 19, 2013 < Back Share to: In Matter of Allstate v. Reyes, the Appellate Division, Second Department, was faced with an unusual case in which it had to determine just how liberally it was willing to interpret coverage provided in automobile policies for injuries arising out of the “ownership, maintenance, or use” of the motor vehicle. Deborah Reyes was walking in front of a Sunoco Mart in Poughkeepsie, New York, when she brushed past a parked car with its windows down. A Rottweiler poked its head out from inside the vehicle and bit Reyes on her right breast. Reyes brought an action against the owner of the vehicle, which was settled for $25,000 – the limits of the GEICO policy insuring the owner. Reyes next turned to her own auto insurer, Allstate Insurance Company, to recover under the supplementary uninsured/underinsured motorist endorsement. Determining that Reyes's injuries did not arise "out of the ownership, maintenance, or use of an underinsured vehicle," Allstate denied coverage. Reyes sought arbitration, which Allstate petitioned to permanently stay. But the trial court allowed the matter to proceed to arbitration because it held the injuries arose "out of the ownership, maintenance, or use of an underinsured vehicle." The Appellate Division, Second Department, reversed the trial court and held that the injuries were not covered under the Allstate policy. The court ruled that “[t]o satisfy the requirement that it arose out of the ‘ownership, maintenance or use of’ a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury.” The court found that Reyes’ injuries did not result from the vehicle itself or its inherent nature, but instead the dog was the cause of her injuries. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to Mike Bono.     Previous Next Contact

News Whistleblowers While You Work – Pennsylvania District Court Analyzes Whistleblower Claim and Grants Summary Judgment for Employer May 6, 2021 < Back Share to: Recently, the United States District Court for the Eastern District of Pennsylvania partially granted a Defendant’s motion for summary judgment on the basis that the Plaintiff lacked any reasonable belief that the company violated any law of the Sarbanes-Oxley Whistleblower (“SOX”) Act. In Ngai v. Urban Outfitters Inc., plaintiff, who was Director of Sourcing and Technical Design for Urban Outfitters, had made allegations of improper conduct by certain outside vendors Urban Outfitters worked with. Specifically, Plaintiff believed suppliers were purposely inflating production costs, paying kickbacks to senior executives, and creating conflicts of interest in violation of Urban Outfitter’s policies. Additionally, Plaintiff claimed his employer created a hostile work environment. Plaintiff complained to supervisors, then hired a lawyer, and five months thereafter, Plaintiff was terminated from his employment. Plaintiff sued, believing his termination was due to retaliation for his complaints of age and national origin discrimination. Defendant’s Motion for Summary Judgment was denied with respect to Plaintiff’s claim that his termination was motivated by age in violation of ADEA and his complaints about national origin and age discrimination. However, the Court held the Plaintiff failed to establish any reasonable belief his previous employer engaged in conduct under SOX. Section 806 of SOX prohibits publicly traded companies from retaliating against whistleblowers for providing information to their supervisors regarding any conduct which the employee reasonably believes constitutes a violation of various SOX sections. The Court determined Plaintiff failed to prove he had a subjectively reasonable belief of a violation because the Plaintiff believed he was reporting violations of company policies, not violations of federal statues covered by SOX. Therefore, the Court held summary judgment in favor of the Defendant’s regarding Plaintiff’s SOX claim. This decision highlights a whistleblower’s need to believe a violation of one of the provisions in SOX is reasonable, in addition to claiming a violation of company policies. Thanks to Madeline Troutman for her contribution to this post. Should you have questions, please contact Thomas Bracken. Previous Next Contact

News Follow WCM on Twitter @WadeClarkLaw August 30, 2018 < Back Share to: Wade Clark Mulcahy LLP was founded in 1994 -- long before LinkedIn, Twitter, Facebook, or regular use of email. Some of us even recall writing term papers on typewriters, and doing legal research with -- wait for it -- books! (We weren't equipped to copy our grammar school reports from the internet. Nope -- we copied them from the encyclopedia!) As technology progresses, WCM has continued to evolve. More and more courts require mandatory e-filing, and we are shifting toward being a completely paperless law firm across our New York, New Jersey and Philadelphia offices. Moreover, our law blog, Of Interest, has been active for years, providing weekly insights on current legal issues and cases that we think appeal to insurers and other interested parties. If you enjoy our weekly blog posts, then follow us on Twitter @WadeClarkLaw, or check out our LinkedIn page, Wade Clark Mulcahy LLP. We will be featuring similar articles and posts on Twitter, and occasionally commenting on news articles that are relevant to our industry. And if you're a regular #OfInterest reader, you know that Dennis Wade comments on This and That from time to time. We'll tweet those as well. And with regard to commentary on pertinent legal issues in the news (ala, "ripped from the headlines") we will be adopting time-tested pub rules: No religion, no politics. (There are certainly other social media forums for you can find your fill on that!) Please contact Brian Gibbons by email (or while we're at it, on Twitter @bgibbons35) with any questions. Have a happy and healthy Labor Day weekend! Previous Next Contact

News Negligent Lawyering Misses Statute of Limitations on Intentional Torts (NY) October 15, 2019 < Back Share to: Statutes of limitations can be tricky and it’s very important to ensure what category your claim falls or you may be SOL! This blunder was made apparent in the case of Potter v. Zucker Hillside Hosp. (2019 NY Slip Op 07304) Plaintiff, as guardian ad litem for Rodney Carter, commenced an action in October 2011 stemming from an incident in April 2009. Carter, a paranoid schizophrenic, was admitted as an in-patient at defendant’s hospital and claimed an employee beat him causing loss of vision in his left eye. Plaintiff’s complaint alleged that Carter was taken down, restrained, and controlled in a careless and negligent manner causing severe injuries and damages. Defendants were sued under a theory of respondeat superior. The hospital moved for summary judgment asserting that the cause of action was an intentional tort, not negligence or malpractice and thus, barred by the one-year statute of limitations. The Supreme Court agreed and granted defendant’s motion. Plaintiff appealed. The Second Department affirmed in a decision stating that a court’s job is to look at the substance of the allegations rather than the characterization. As New York does not recognize a cause of action for negligent assault, the one year statute of limitations for assault and battery would apply. As a practice point, it is always key to make sure plaintiff’s facts align with the theories alleged in the complaint. The court looked at Carter’s deposition testimony to establish that assault was the correct cause of action despite the plaintiff’s characterization of a negligent takedown. The law is often frustratingly form over substance; refreshingly, the Court looked at substance over form this time. Had plaintiff also pleaded a cause of action based upon negligent supervision or security -- which we understand was referenced, but not specifically pleaded -- the complaint may have survived dismissal. Thanks to Mehreen Hayay for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Covid-19 No Longer an Excuse, New Jersey Court Rules September 2, 2022 < Back Share to: In Hartford Underwriters Insurance Company v. Arch-Concept Construction, Inc., et al., plaintiff Hartford Underwriters Insurance Company (“Hartford”) provided workers compensation insurance to Arch-Concept Construction, Inc. (“Arch-Concept”). Hartford sued Arch-Concept over unpaid premiums. The parties settled under the terms that Arch-Concept was required to pay $275,000 over twelve quarterly installments. In the event the settlement agreement was breached, a consent judgment in favor of Hartford against Arch-Concept for $425,000, less any payments made under the agreement, would be entered. After Arch-Concept failed to timely remit payments, Hartford sued Arch-Concept seeking their consent judgment less the amount in payments previously remitted. Arch-Concept argued they were unable to make the remaining payments due to the COVID-19 pandemic and the shut-down of their business. A trial judge found in favor of Hartford, reasoning that Arch-Concept failed to prove that the doctrine of impossibility failed to excuse their non-performance of the settlement agreement. The Appellate court affirmed, stating that “the doctrine of impossibility is not applicable where the difficulty is ‘the personal inability of the promisor to perform.’” Additionally, “a party cannot render a contract performance legally impossible by its own actions.” Arch-Concept failed to provide any support of their inability to remit installments as promised and its principle never certified he was personally unable to make payment for any reason. Although the COVID-19 pandemic can certainly be argued as “an intervening event that was not within the original contemplation of the contracting parties,” or frankly any party for that matter, this case demonstrates a business cannot excuse their default by asserting the doctrine of impossibility without providing sufficient documentation. The Court did not provide examples of documentation that would suffice as support, but we surmise bank account statements could be a start. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Ignorance is Not Always Bliss – Unprepared Deposition Witness Results in Sanctions (NY) December 14, 2016 < Back Share to: The Southern District recently sanctioned perfume company Excell Brands, for producing a witness who was unable to answer questions at deposition in Coty v. Excell Brands, LLC. The Court required Excell to pay attorney’s fees to plaintiffs, Coty, Calvin Klein and Vera Wang after Defendant’s witness proved to be “patently unprepared” at his deposition. Coty arose in September 2015, from a trademark infringement suit in which fragrance brands, Calvin Klien and Vera Wang, brought suit against Excell for selling low-grade “knock offs” of their fragrances, using similar name, scent and packaging as plaintiffs. Plaintiffs served Excell with a deposition notice seeking testimony about the ingredients and chemical compositions of Excell’s fragrances. At Exell’s first deposition, Excell produced a retail salesman who was unable to answer questions on the topic. At the subsequent deposition, Excell produced a board member who when asked what he had done to prepare for deposition, stated “not much.” When asked about the ingredients of Excell’s perfumes, the board member answered nearly 40 of plaintiffs' questions with a variation of “I don’t know.” Plaintiffs successfully moved for sanctions pursuant to Rule 37 of the Federal Civil Procedure Rules. Judge Furman held that “given that Pfau [board member] lacked a background in chemistry, had no involvement in the day-to-day operations of Excell and is not even an Excell employee, the need for him to gather additional information prior to his deposition was manifest.” The Judge indicated the board member should have, at a minimum, spoken with the company president who was indicated at the first deposition as having knowledge. The judge found his lack of preparation “egregious and worthy of sanctions.” Not only did the Judge impose sanctions but also prohibited Excell from introducing any evidence at trial on the ingredients and chemical compositions of the scent of each fragrance. The Court’s ruling demonstrates the extreme importance of not only selecting the right person for a deposition but of also sufficiently preparing that witness for the deposition, lest that party be precluded from relying upon such information at trial. Thanks to Patrick Burns for his contribution to this post. Please email Brian Gibbons for any questions. Previous Next Contact

News Call Your Next Witness - Christon Halkiotis May 2, 2013 < Back Share to: Christon Halkiotis and I have a lot in common, in that we're both former prosecutors who sought a change after a handful of years representing the government. Christon's path took her to criminal defense, where she started her own practice in 2019 in Greensboro, North Carolina after 15 years as a prosecutor. Her practice flourished immediately, which is a testament to Christon's personality, reputation and credibility among colleagues, and also, to a ton of hard work! She shares some lessons about how to make yourself a better attorney, what it was like to "hang out a shingle," and how she has dealt with owning a business during the pandemic. You can listen here, or wherever you download podcasts. If you have questions about the podcast, or about being a guest, please email Brian Gibbons. 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

News Call Your Next Witness - Ross Mallor of PM Legal September 15, 2021 < Back Share to: On today's episode of the Call Your Next Witness podcast, we welcome Ross Mallor of PM Legal. Ross is a true entrepreneur in the litigation arena in the northeast United States. Since joining his father at PM Investigations, now PM Legal, the company has grown from a 2-person investigation company into a 200+ employee company, which conducts investigations for both plaintiffs and defendants, provides litigation support, handles service of process and court filings, and is also now affiliated with elaw and Lexitas. Ross takes advantage of technological innovations, keeps an open mind about new opportunities, and most importantly, listens to his clients. Aside from that, Ross is a fantastic storyteller, and in this interview, relays some great stories about his business practices over the years, a few about conducting surveillance, and even one about playing poker with actor Kevin Pollack. (This story is worth the price of admission.) For more information about Ross's company, check out PMLegal.com Listen to my interview with Ross here: https://lnkd.in/ejnHZK8k -- or search for Call Your Next Witness wherever you download podcasts. If you are interested in being a guest, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Lease Binds Commercial Tenant to Landlord's Indemnification Cross Claims (NY) March 16, 2017 < Back Share to: Commercial tenants may be held liable for a landlord’s negligence pursuant to a lease’s indemnification language even where the plaintiff would have no claim against the tenant. In Rodriguez v 5432-50 Myrtle Ave., LLC , the Second Department held that while a plaintiff may not be able to sustain a claim against a commercial tenant, the landlord may have a viable claim under contract. In Rodriguez, the plaintiff was allegedly injured when a defect on one of the steps of an interior staircase of the building caused her to fall. Within the two story building, a portion of the second floor was leased to a beauty school. The plaintiff commenced suit against property owner, Myrtle and the tenant beauty school, Midway. The Appellate Division, Second Department, determined that the commercial tenant was entitled to summary judgment as to the plaintiff’s complaint. "Generally, liability for a dangerous condition on real property must be predicated upon ownership, occupancy, control, or special use of the property.” Here, the Court determined that Midway established that the subject staircase was not part of its demised premises, but merely constituted a common area, and that it had no contractual duty to maintain it. However, with respect to the landlord’s cross claims against the beauty school, the Court ruled that Midway failed to demonstrate that it had complied with an insurance procurement provision in the lease, and therefore converted the cross claim for breach of the lease to a third party claim. The Court also converted the cross claim for contractual indemnification to a third party claim: “Pursuant to General Obligations Law § 5-321, a lease that obligates a tenant to indemnify a landlord for the landlord's own negligence is against public policy and unenforceable. However, in the context of a commercial lease, negotiated between two sophisticated parties, where a lessor and lessee freely enter into an indemnification agreement whereby they use insurance to allocate the risk of liability to third parties between themselves, General Obligations Law § 5-321 does not prohibit indemnity." As Midway failed to establish that the indemnification provision was unenforceable under General Obligations Law, or that the indemnification language of the lease (which required the beauty school to indemnify and hold harmless landlord Myrtle against any and all claims happening in connection with the premises unless arising out of Myrtle’s gross negligence) did not apply since the accident occurred in a common area, the Court refused to dismiss the cross claim for contractual indemnification. Accordingly, the lower court decision was reversed by the Appellate Division, Second Department and the plaintiff’s complaint was dismissed against the tenant beauty school Midway in its entirety. However, the landlord Myrtle’s cross claims for breach of lease and contractual indemnification were converted to a third party action against Midway. Thanks to Lauren Tarangelo for her contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Pennsylvania’s Doctrine of Hills and Ridges Delivers Questions of Fact to the Jury (PA) October 8, 2020 < Back Share to: In Figuero v. Meitzner, the Plaintiff, a delivery driver for Fed-Ex, slipped on an icy sidewalk while delivering a package to the Defendant. The Plaintiff sought damages and the jury held the Plaintiff 40% liable and the Defendant 60% liable, awarding $1.5 million in damages to the Plaintiff. The Defendant appealed the trial court’s denial of a Judgment Notwithstanding the Verdict, arguing the jury had insufficient evidence to support the findings that the Defendant was 60% liable. The Defendant argued that the Pennsylvania’s Common Law Doctrine of Hills and Ridges was in effect, and therefore relieved the Defendant of liability. Defendant based this argument on evidence established at trial that general slippery conditions were existent in the town of Bethlehem the morning of Plaintiff’s fall. During trial, Plaintiff testified it had snowed that morning and there was a light blanket of snow and ice where she fell. But Plaintiff had also testified it stopped snowing while she delivered packages, and she delivered many other packages without incident. The court noted that unless slippery conditions generally existed throughout the town, the court, as a matter of law, would not need to consider whether the evidence presented at trial was sufficient to satisfy the Doctrine of Hills and Ridges. The Doctrine only applies when general slippery conditions prevail in the community. Tonik v. Apex Garages, Inc., 275 A.2d 296, 298 (Pa. 1971). The Court denied the Defendant’s Motion for a Judgement Notwithstanding the Verdict, in that the general condition throughout town the morning of the fall was a question of fact for the jury to decide. Here, the jury had the right to decide whether non-slippery conditions generally existed in Bethlehem on the morning in question, and if so, whether hills and ridges were present at the location of the fall. This case demonstrates the jury’s role in analyzing the many elements which factor into determining the application of the Doctrine of Hills and Ridges. Additionally, it is important to note a morning snowfall does not alleviate a landowner from liability. Landowners should be aware as to ice and snow on sidewalks, and understand a morning coat of snow could still end in $1.5 million in damages. Thanks to Madeline Troutman for her contribution to this post. Any questions, please contact Georgia Coats Previous Next Contact

News NY Appellate Court Upholds Assumption of Risk Doctrine August 20, 2009 < Back Share to: The First Department recently upheld the long-standing doctrine of assumption of risk in Nutley v. SkyDive the Ranch. In Nutley, the plaintiff was skydiving when the main parachute failed to open during a tandem sky dive. Although the lower court denied the defendant’s motion for summary judgment, the appellate court reversed and held that the plaintiff assumed those risks inherent in skydiving and failed to raise an issue of fact as to whether SkyDive acted negligently so as to create a unique and dangerous condition beyond those inherent in the sport. Thanks to Lora Gleicher for her contribution to this submission. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06153.htm Previous Next Contact