News WHO’S THE BOSS?: How The Workers Compensation Law Protects The Employer Who ‘Controls and Directs’ An Employee August 2, 2024 < Back Share to: Generally, in an action to recover damages for personal injuries, if an employee is entitled to receive workers’ compensation benefits, then that employee cannot sue their employer for any injuries sustained, as provided in the Workers Compensation Law. But what happens when an employee of a staffing or temp agency is temporarily placed with a different employer and suffers an injury entitling them to workers compensation benefits? Who would be obligated to provide workers’ compensation benefits in such circumstances, and who would consequently be generally barred from suits brought by the employee? On July 24, 2024, in Miolan v. Milmar Food Group, LLC, et al, 2024 N.Y. Slip Op. 03886, the Appellate Division, Second Department, answered those exact questions. In Miolan , Alquidania Miolan, an employee of a staffing agency, had been temporarily placed in the employ of a frozen food manufacturing facility operated by the Defendants, Milmar Food Group, LLC. Miolan slipped and fell on water and sustained injuries and then filed suit against Milmar. Defendant Milmar moved for summary judgment, citing the exclusivity provisions of the Workers Compensation Law barring such a suit. The lower Supreme Court granted Milmar’s motion, and Miolan then appealed. In reviewing the case, the Second Department noted that, as often occurs with staffing and temp agencies, an employee can be deemed to have more than one employer; they can have a general employer and a special employer . In the latter circumstance, an employee of a special employer is considered a special employee when they have been temporarily transferred to fulfill the services of or for another employer, regardless of the duration of said temporary employment. Additionally, when determining whether a general employer or a special employer is obligated to provide workers’ compensation benefits, and therefore be barred against suits from the employer, the Second Department determined that the answer turns on which employer “controls and directs the manner, details and ultimate result of the employee’s work.” In Miolan , the Court held that Defendant Milmar controlled and directed the manner, details and ultimate result of the Plaintiff’s work, not the staffing agency. Accordingly summary judgment in favor of Milmar was affirmed. An important point of distinction to be made for any employer to keep in mind when utilizing staffing or temp agency services! Thanks to William Hoffman for his contribution to this article. Miolan v. Milmar Food Group, LLC .pdf Download PDF • 189KB Previous Next Contact

News Hearsay Problems in NY Coverage Cases. November 6, 2007 < Back Share to: The Appellate Division of New York's Second Department has just issued a ruling that could present issues in proving simple coverage cases. The Court held that an insured's statement to the insurer's investigator, as well as the investigator's report, were both inadmissible hearsay. It remains unclear why the Court focused its decision on the investigator's report, rather than the testimony regarding the insured's apparent admission, but we hope this misguided decision is taken to the Court of Appeals. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2007/D16022.pdf Previous Next Contact

News Court Swats Away Basketball Injury Claims Under Assumption of Risk Doctrine (NY) March 4, 2016 < Back Share to: Assumption of risk for a schoolyard sport was recently addressed by a New York court in Altagracia v. Harrison Cent. Sch. Dist. The student plaintiff filed a personal injury lawsuit against his school for injuries sustained while playing basketball on an outdoor court on school grounds during his lunch recess. The injury occurred when the back of his head struck the pole supporting the basketball backboard, causing him to fall to the ground. Plaintiff’s complaint alleged causes of action under a theory of negligent supervision and premises liability. One of the defenses asserted by the school was the doctrine of assumption of risk, which is a common defense to sports related injury lawsuits. After both parties filed motions for summary judgment, the Westchester County Supreme Court dismissed the plaintiff’s negligent supervision claim, but allowed the cause of action alleging premises liability to proceed to trial. The Appellate Division affirmed most of the ruling, but found that the Supreme Court should have also dismissed the premises liability claim. In discussing the law, the Appellate Division analyzed the assumption to risk defense, which “applies where a consenting participant in a sporting activity is aware of the risks [inherent in the activity]; has an appreciation of the nature of the risks; and voluntarily assumes the risks." The decision held that if the risks of the activity are fully comprehended or perfectly obvious, plaintiff has consented to them and defendant has performed its duty. The Court also noted that an assumption of risk defense has limits. That is, an assumption of risk defense will not serve as a bar to liability if the risk is “unassumed, concealed, or unreasonably increased." But ultimately, the Court found that the school demonstrated that the subject pole was open and apparent, that the risk of colliding with it was inherent in the activity of playing basketball in the courtyard, that the defendant did nothing to conceal or unreasonably increase the risk, and that the plaintiff assumed the risk of injury by voluntarily participating in the activity at that location, as he had on numerous prior occasions. Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Expert Needed to Explain Dangerous Mannequin Placement (NJ) November 9, 2017 < Back Share to: In Reiger v. Ann, Inc., the New Jersey Appellate Division faced the strange question as to whether expert testimony was required for plaintiff to pursue claims against a defendant store owner for its placement of a mannequin platform display near a mirror. Plaintiff was shopping in defendant’s clothing store and tried on a scarf in the dressing area. As plaintiff was backing away from a mirror, her heel hit a mannequin platform and she tripped over the platform, causing a mannequin on the platform to fall over plaintiff, injuring her shoulder and elbow. Plaintiff testified that she did not notice the platform display when she entered the dressing area. Defendant retained an engineering expert who opined that plaintiff’s accident was caused by her failure to maintain a proper lookout in the direction that she was moving before she fell. Defendant’s expert also found that the aisle between the mirror and the platform exceeded the applicable building codes, and that plaintiff’s accident was not caused by a defective condition. Although plaintiff retained an engineering expert who conducted a site inspection, plaintiff failed to serve an expert report during discovery. The trial court granted defendant’s motion for summary judgment, finding that plaintiff failed to demonstrate that the platform’s placement breached a standard of care and constituted a dangerous condition. Specifically, the trial court ruled that plaintiff required (and lacked) expert testimony to establish that there was insufficient space between the mirror and the mannequin platform. On appeal, plaintiff argued that a liability expert was not required to help a jury decide whether defendant breached a duty of care because her injuries were a foreseeable result of defendant’s placement of the mannequin platform across from the mirror. The Appellate Division affirmed the trial court’s decision and agreed that plaintiff needed an expert to explain how the placement of the mannequin platform constituted a dangerous condition because "the customs and standards" for retail store displays and safe clearance conditions are not part of a jury’s common knowledge. The Appellate Division further reasoned that it was undisputed that defendant did not violate any building codes, and the platform was neither camouflaged nor protruding into the access way. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News WCM Wins Summary Judgment, Affirming Out-Of-Safe Exclusion In Jeweler’s Block Coverage Dispute August 5, 2016 < Back Share to: WCM recently won summary judgment in the New Jersey Superior Court on behalf of StarNet Insurance Company in Knoll v. StarNet Insurance Company, a first-party jeweler’s block dispute, arising from the loss of insured jewelry. At issue was an out-of-safe policy exclusion barring coverage for situations in which the insured was neither wearing the jewelry at the time of loss or in the same or an immediately adjacent room. With no reported decisions interpreting the policy exclusion, and limited authority across the country interpreting similar location-based exclusions, Knoll was a significant victory for insurers. In Knoll, the insured, a doctor, was returning home to New Jersey from the Miami International Airport. He was carrying a roller bag purportedly containing valuable jewelry. As he boarded a tram, he left the bag behind on the platform, where it sat for approximately one hour until it was retrieved by an airport canine patrol officer. When the bag was ultimately retrieved in airport lost and found, there were no jewels inside. The policy contained an out-of-safe endorsement barring coverage for lost jewelry (with a combined value of over $50,000) unless: (1) the loss occurs when the jewelry is being worn by the insured or a member of his household; or (2) the loss occurs while the jewelry is being carried by hand by the insured or a member of his household; or (3) the jewelry is lost while in the same room as the insured or an immediately adjacent room; or (4) the jewelry is lost while in a locked safe or deposited in a bank. StarNet moved for summary judgment against the complaint because the evidence (which included video surveillance footage, police reports, and the insured’s sworn statement) showed the loss did not take place while in the insured’s possession or in the same or adjacent room. The insured cross-moved for summary judgment, arguing the terms “loss” and “carried by hand” were not defined in the policy and ambiguous, and could, therefore, be interpreted to mean the loss occurred at the moment the insured left the bag on the platform. This interpretation, the insured argued, was consistent with New Jersey’s “reasonable expectations” doctrine. WCM argued that the policy wording was clear and unambiguously barred coverage. With no reported decisions interpreting StarNet’s exclusion, WCM cited cases from other jurisdictions interpreting similar location-based exclusions and argued that the principles underlying those decisions ought to govern the outcome. The court agreed and granted StarNet’s motion for summary judgment. The court reasoned that the terms “loss” and “carried by hand” were unambiguous and, in light of the facts presented, served to bar coverage. In doing so, the court also noted the bag itself never went missing, a fact which compelled the logical conclusion that the act of leaving the bag behind and the loss of jewelry were two separate events. According to the court, “it would be unreasonable to expect coverage under these circumstances.” While courts in other jurisdictions have applied location-based exclusions in the first-party context, New Jersey, a state known for creating coverage through its reasonable expectations doctrine, had never interpreted the StarNet policy exclusion. Knoll is significant because it demonstrates that when a court is presented with sufficient facts obtained by a thorough claim investigation, and clear policy wording, even wording the court has never seen before, exclusions can be enforced as written and intended. As Judge Mongiardo aptly put it: “This is a location-based endorsement which shall be enforced by the Court. To do otherwise, in the absence of any ambiguity, would be to write for the insured a better policy of insurance than the one purchased. This the Court cannot do.” Dennis Wade and Michael Gauvin of WCM represented StarNet. If you have any questions about this decision or its import, please call or email Dennis. Previous Next Contact

News Statute of Limitation Trumps Suit Limitation (PA) November 15, 2013 < Back Share to: The U.S. District Court for the Western District of Pennsylvania recently held that the state statute of limitations trumps any proposed suit limitation within an insurance policy. In Sigal v. General American Life Insurance Company, the plaintiff, Michael Sigal, brought suit alleging breach of contract and bad faith for two denials of his disability claims. Sigal, who is a surgical ophthalmologist, learned that he was suffering from cardiac disease in 2001, two years after purchasing the insurance policies for his medical practice. His cardiologist determined that discontinuing the surgical portion of his practice would drastically reduce his stress levels, and thus keep his condition in check. In 2004, he made three claims under his disability policies, but all three claims were denied in 2005 since Segal had not actually suffered from “poor health” because of his condition as noted in the policy, and discontinuing his practice was deemed a “preventative measure.” In 2010, Sigal was required to undergo bypass surgery, and submitted additional information regarding his 2004 claim. The insurer treated this information as an entirely new claim and again denied coverage. Sigal commenced suit shortly thereafter alleging bad faith and breach of contract. The court found that the statute of limitations for bad faith claims had run for and required dismissal of his suit. Although the policy itself specified that there was a three year suit limitation (which would allow for suit in 2013), the court held that the two year statute of limitations on a bad faith claim superseded the limitation within the policy. Thanks to Thalia Staikos for her contribution to this post. Previous Next Contact

News Sandy's Impact on the Art World. November 5, 2012 < Back Share to: Sandy has had a terrible impact on New York and New Jersey and initial damages estimates are in excess of 30 billion. One specific area of damages is in respect of fine arts. As this interesting piece makes clear, many lower Manhattan galleries and dealers were hard hit and while there should be insurance on the works themselves (although we all know what complications therein can exist -- especially in respect of valuation), coverage for the businesses themselves might be lacking. Stay tuned for a flurry of claims! For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Slam Dancing And Assumption Of Risk November 13, 2009 < Back Share to: In Schoneboom v. B.B. King’s Blues Club & Grill, the plaintiff was injured when a slam dancer slammed into him during a performance. The court held that the plaintiff’s claims were barred by the assumption of risk doctrine in that he initially observed the open and obvious slam dancing from a safe distance and fully appreciated the risks involved, but still chose to move closer to the dancers. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08160.htm Previous Next Contact

News How Much Effort to Clear Ice and Snow Is Sufficient? November 8, 2012 < Back Share to: In Ferguson v. Rochester City School District, an Appellate Division, Fourth Department case, the plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on a snow and ice covered walkway on the defendant’s school premises. After trial, the jury found in favor of the defendant. On appeal, the plaintiff contended that the jury’s verdict was against the overwhelming weight of the evidence. In overturning the jury’s verdict, the Appellate Division was highly critical of the defendant’s arguments that it was either impossible to remedy the condition or that they had made reasonable and appropriate efforts to clear the snow and had no further obligation. Here, notice of the condition was not an issue. Both the school’s head custodian and the plaintiff characterized the snow as hard, thick and rough. The plaintiff also had photographs of the location to buttress her claim. The defendant initially contended that by plowing and salting on the morning of the accident, they had satisfied any duty. However, the trial testimony by the defendant’s head custodian was that storms are “just part of mother nature;” they have no written procedures or usual practice for removing ice; and custodial employees “don’t remove the ice, [they] just spread the salt.” Further, he admitted the blade of the tractor was not effective in removing accumulated ice from the walkways and that they use no other tools or machines for that purpose. Finally, the head custodian stated that the storm occurred on a weekend and that the condition of the walkway had stayed the same from Monday until the Wednesday morning when the accident occurred. Moreover, the plaintiff’s meteorologist and the certified weather records for the date of the accident showed that the temperature was high enough that salting efforts would have been effective. Taking all of this into account, the court held that while a failure to remove all snow and ice from a surface does not constitute negligence, where a defendant had ample opportunity to remedy the dangerous condition and the defendant’s remedial efforts are plainly insufficient to render the walkway reasonably safe, they would be found negligent. In light of this case, the message from the Appellate Division seems to be clear: you must try harder to clear the snow and ice. Thanks to Michael Nunley for his contribution to this post. http://www.nycourts.gov/courts/ad4/clerk/decisions/2012/10-05-12/PDF/0865.pdf     Previous Next Contact

News No Bad Faith, No Consequential Damages! Florida Supreme Court Denies Insured’s Attempt To Recover Extra-Contractual Consequential Damages in a First-Party Property Claim February 12, 2021 < Back Share to: A recent decision from the Supreme Court of Florida punctuates well-established federal precedent that consequential damages in insurance disputes are not recoverable absent a separate action for bad faith. In Citizens Property Ins. Corp. v. Manor House LLC, et al, Manor House, owner of rental apartment buildings, filed an action against its property insurer for breach of contract and fraud related to repair of apartment complex damages by hurricane Frances, and to recover extra-contractual damages for rental income allegedly lost due to delay in repairs and procrastination in adjusting and paying claims. The certified question before the Florida Supreme Court was whether the insured can recover consequential damages, that is, damages above what the policy expressly provides in a breach of insurance contract absent a bad faith claim. The Federal court answered the certified question in the negative thereby quashing the Fifth District Court’s decision. The Supreme Court reasoned that extra-contractual, consequential damages, are not available in a first party breach of insurance contract action because the contractual amount due to the insured is the amount owed pursuant to the express terms and conditions of the insurance policy. Thus, consequential damages in a first party action are not recognizable and are only available in a separate bad faith action. Courts continue to recognize the unique nature of insurance contracts thereby distinguishing their interpretation from other general contracts, especially with the exclusion of parole evidence, and the myriad of bad faith protections afforded to insureds. It is important to note that this case does not universally protect insurance carriers from bad faith claims, but it does further deter first-party breach of contract claims seeking consequential damages, absent a claim for bad faith. Thanks to James Papadakis for this contribution to this article. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News No Negligence Needed: Court Upholds Broad Application of Additional Insured Endorsement (NY) January 3, 2020 < Back Share to: In Fireman's Fund Ins. Co. v State Natl. Ins. Co., the New York Appellate Division, First Department addressed the issue of how to construe broadly worded additional insured endorsements. The coverage dispute arose out of an underlying slip and fall personal injury that occurred on a newly refinished catwalk passageway. While navigating this passageway, Mary Jane Schudde fell and sustained injuries due to the color of the floor surface which made it difficult to perceive the change in elevation and caused her to trip. She sued her building and management company, Windsor and Argo, for negligence. Windsor and Argo in turn commenced a third-party action for contractual indemnification against Upgrade, the contractor that refinished the passageway. The building had contracted with Upgrade to waterproof the passageway, but Upgrade did not choose the surface color. Upgrade’s insurance policy with State National contained a blanket additional insured clause which provided coverage to Windsor and Argo “with respect to operations performed by or on behalf of” Upgrade and stated that it was primary for damages to any additional insured arising out of Upgrade's operations. On the other hand, Windsor and Argo’s insurance policy, issued by Fireman’s Fund, provided that coverage was excess when its insureds, Windsor and Argo, have other primary insurance available. On this basis the Supreme Court held that Windsor and Argo were additional insureds because the accident “arose out of” Upgrade’s operations of painting the steps where the injury occurred. On appeal, defendant argued that Windsor and Argo were not additional insureds because there was no finding of negligence against Upgrade since Upgrade did not choose the ill-fated color and thus did not proximately cause the accident. But the First Department did not buy it. The court held that even though Upgrade was not at fault for the injury, the accident still “arose out of” Upgrade's operations and therefore it fell within their policy’s broadly worded additional insured clause. This decision underscores the importance of policy drafting on the part of insurers, especially for insurers of contractors and subcontractors, since New York Courts will broadly construe additional insured clauses even without a finding of negligence by the contractor. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News NJ Court Rejects Appeal of Order Confirming Arbitration Ruling that a Pennsylvania Auto Insurer Was Not Subject to the NJ Deemer Statute March 22, 2024 < Back Share to: In Comprehensive Pain Solutions of New Jersey, PC a/a/o William Beard v. Omni Insurance Company , the New Jersey Appellate Division recently rejected an appeal of a Law Division judge’s decision to deny an application to vacate a personal injury protection (“PIP”) arbitration award under the Alternative Procedure for Dispute Resolution Act (APDRA). The lawsuit arose from the plaintiff’s PIP claim against Omni Insurance Company (“Omni”) for reimbursement of bills for medical treatment rendered to Omni’s insured, William Beard. Mr. Beard was a Pennsylvania resident who was injured in a New Jersey car accident. Omni is a Pennsylvania automobile insurer which is not licensed or authorized to do business in New Jersey. Beard's policy had a $5,000 limit for medical expense benefits, which was exhausted when plaintiff submitted the bills. The legal dispute centered on whether Omni was subject to New Jersey’s "deemer" statute, N.J.S.A . 17:28-1.4, which generally requires insurance companies authorized to conduct automobile insurance business in New Jersey to provide certain coverages in out-of-state policies when the insured vehicle is operated in New Jersey. Plaintiff claimed that despite the exhaustion of the PIP limits, Omni was required to provide PIP coverage up to $250,000 per accident as prescribed by N.J.S.A. 39:6A-4(a). The DRP denied the claim, finding that the limits were exhausted, and Omni was not subject to the deemer statute since it was not licensed or authorized to do business in New Jersey. Plaintiff sought to vacate the award through a summary action in the Superior Court, asserting that the DRP committed prejudicial error by misapplying the law to the facts. The judge agreed with the DRP and denied the application, finding that Omni did no business in New Jersey and that its parent, which was a New Jersey company, had no control over or relationship with Omni. The Appellate Division dismissed plaintiff’s appeal, finding that N.J.S.A. 2A:23A-18(b) bars appellate review of a trial judge's decision to confirm, vacate, or modify an arbitration award except in rare circumstances that did not apply in the case. In so holding, the Court observed that appellate review is “generally not available” to challenge a trial judge’s order issued in cases under the APDRA and that absent “rare circumstances”, an appellate court has no jurisdiction to do anything other than recognize that the judge acted within his or her jurisdiction. The Court found that the Law Division judge properly exercised his authority under the APDRA and adhered to the statutory grounds in confirming the arbitration award. Accordingly, the Court dismissed the appeal for lack of jurisdiction. This case highlights the limited power that courts have to review arbitration awards and provides persuasive authority for the holding that an out of state insurer will not be required to provide higher limits under New Jersey's PIP statute if they are not licensed or authorized to do business in the state. Comprehensive Pain Solutions of New Jersey PC v. Omni Insurance Company .pdf Download PDF • 168KB Previous Next Contact