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News Borgata goes All In on Marked Card Theory (NJ) July 25, 2019 < Back Share to: The odds are always in the house’s favor. While that maxim has proven true over the years, the Borgata Hotel has been testing that theory in a court of law. After poker star Phil Ivey and Cheng Sun flipped the odds in a series of baccarat games back in 2012, the house filed a federal lawsuit on the grounds that Ivey and Sun won $10 million by creating marked cards to shift the odds in their favor. But how exactly did Ivey and Sun mark the cards? In 2012, Ivey and Sun agreed to play a series of Baccarat games at the casino, under a number of agreed-upon conditions. For example, the games would take place in a private room, the cards were to be purple-backed and dealt from a shoe. During the game, Sun arranged for the cards to be arranged in a certain manner and because she could identify small differences on the back of the cards, and the players bet accordingly, the odds shifted in the players’ favor and they won millions. Although the Trial Court decision acknowledged the players did not mark the cards “in a traditional way,” it held that Ivey and Sun engaged in a scheme to create a set of marked cards and placed bets on the markings. In doing so, the court reasoned that the term “marking” in this context includes setting the orientation of a card in such a way that the value of a flipped card can be determined. Obviously, the case is on appeal to the Third Circuit. On appeal, attorneys for the players argue that turning of cards violates none of the rules of baccarat and that a criminal statute banning the marking of cards should be narrowly applied only to cards that are marked, in other words, physically altered. Casinos have long taken the Hunger Games greeting of “may the odds be ever in your favor” to heart. At some point in the future, the odds will be ever in their favor. The question is, will new legislation tilt the odds back to the house? Or will Ivey pay through the nose? Stay tuned. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Out of Possession Landowners are Out of Luck May 29, 2020 < Back Share to: Last year in Xiang Fu He v. Troon Mgt. Inc., the Court of Appeals held that out-of-possession landlords are no longer able to contract away liability based on New York City Administrative Code §7-210. This has led to many previously sound summary judgment decisions being reversed on appeal. In Herrera v. Vargas, the Bronx County Supreme Court granted defendant summary judgment in 2017 based on the argument that defendant was an out-of-possession landlord. However, in May, 2020, the Appellate Division unanimously reversed the decision, as Xiang held that a landlord’s duties under the administrative code are non-delegable. The court noted that the prior decision that the defendant was entitled to summary judgment dismissing the complaint on the ground that he is an out-of-possession landlord is no longer sound in light of the Court of Appeals decision in Xiang. Expect more summary judgment reversals based on the Xiang decision as commercial out-of-possession landlords are now responsible for keeping abutting sidewalks safe regardless of a tenant’s maintenance and repair requirements pursuant to a lease. Thanks to Mehreen Hayat for her contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News What Does the Lease Say? (NY) June 18, 2020 < Back Share to: In Mallet v. City of New York, the Appellate Division, Second Department addressed whether the defendants – City of New York, New York City Economic Development Corporation, and Apple Industrial Development Corp., had a duty to repair unsafe conditions located inside a building leased to plaintiff’s employer. The Supreme Court denied the defendants’ motion for summary judgment; however, the Appellate Division reversed the Supreme Court dismissing the plaintiff’s complaint. Plaintiff was allegedly injured when he slipped on ice created by a leaky pipe inside the ceiling of a walk-in freezer in a building leased to plaintiff’s employer. Plaintiff alleged that his injuries were caused by the defendants’ negligent operation and management of the premises which the freezer was located. The Appellate Division stated that “An out-of-possession landlord is not liable for injuries that occur on its premises unless the landlord has retained control over the premises and has a duty imposed by statute or assumed by contract or a course of conduct” (citations omitted). As such, the case came down to the language of the lease between the plaintiff’s employer and the defendants, which stated, “Landlord's Obligations do not include the performance nor the payment of the costs for . . . the maintenance, repair and/or replacement of Freezer System or the replacement of the Refrigeration System at any time.” As such, according to the lease, plaintiff’s employer bears the responsibility of the maintenance to the walk-freezer. This decision serves as a reminder that the lease will likely be the most important document in a case when representing a landlord. As such, always request the lease from your landlord clients. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News In NJ MVA Case, "Discovery Rule" Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations March 28, 2012 < Back Share to: In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post. Previous Next Contact

News W.D.PA. -- Moving Trains Are an Apparent Danger (Even to Children). December 10, 2007 < Back Share to: In the case of Nixon v. Norfolk Southern Corp, (PICS Case No. 07-1965), the plaintiff, a 12 year old boy, lost his foot when a train ran over it. The train ran over the foot because the boy (while holding onto the train) fell off of his bike. The defendant railroad moved for summary judgment arguing that the dangers of a moving train were apparent even to a 12 year old boy. The plaintiffs opposed on the attractive nuisance doctrine. The trial court sided with the defendants. Previous Next Contact

News Indemnification Necessary Despite Procuring Insurance August 16, 2018 < Back Share to: A contractor providing insurance to an owner that includes a provision that the policy will be primary may think he has already prevented exposure from any indemnification clause in their contract with the owner as the owner has already been made whole from future liability. However, the underlying contract language may include additional clauses that render the procuring of liability insurance as a separate and unrelated obligation from the obligation to indemnify and hold harmless. Thus, owners, even with procured insurance from a contractor, may still seek indemnification, even from the party that provided the original insurance. According to New York State Department of Transportation v. North Star Painting Company, Inc., 2018 WL 3321495, 2018 N.Y. Slip Op. 05087 (4th Dep’t July 6, 2018) a contractor that procures a policy with a “policy as primary” clause was ruled to have not discharged its duty to provide indemnification, and thus, a conditional order for indemnification of an owner by the contractor who already provided an insuring policy was upheld. In North Star Painting, Inc., a contractor to the State of New York Department of Transportation agreed to indemnify and hold harmless the State of New York from claims resulting from the work stated in the contract. However, the contract further required the contractor to procure an owners and contractors protective liability (OPCL) policy to insure the State of New York. Within the policy procured by the contractor, the coverage under the OCPL policy was to be primary and, further, the insurer would not seek contribution from other insurance available to plaintiff. As the policy provides primary coverage, one would think that the procuring of insurance has already fulfilled the indemnification obligations of the contractor. However, such a policy does not prevent an owner from still seeking indemnification when the underlying contract specifically exempts the procuring of insurance from fulfilling or discharging the indemnification requirement. In North Star Painting, Inc., the underlying contract included a clause that the indemnification and hold harmless clauses shall not “be deemed limited or discharged by the enumeration or procurement of any insurance for liability for damages imposed by law” upon the contractor. When complete, clear and unambiguous, a contract must be enforced according to its plain meaning. The Court determined that the clause prevented the procurement of insurance by the contractor as a means to have already fulfilled or discharged their obligation to indemnify the owner. As such, the Court found that NYSDOT was entitled to the conditional order of contractual and common-law indemnification against the contractor. As this case demonstrates, there is nuance between the procurement of insurance and indemnification. Even when one procures insurance for the other party in the contract, and even as per the contract, one may still be potentially separately obligated for indemnification. Therefore, experienced counsel should be consulted regarding how to diminish or prevent an entity’s additional exposure through indemnification even when an insurance policy has already been procured for the other contracting party. Thanks to Jonathan J. Pincus for his contribution to this post. Previous Next Contact

News "Borrowed Employee" Status Remains Question of Fact in Pennsylvania December 20, 2013 < Back Share to: Recently, the Pennsylvania Superior Court reiterated that the employment status of a “loaned” laborer is a question of fact with respect to the applicability of the workers compensation bar. In the case of Shamis v. Moon, the plaintiff was the direct employee of a general contractor charged with overseeing the expansion of the Pennsylvania Convention Center in Philadelphia. More specifically, the plaintiff alleged in his complaint that he was “loaned” to a demolition subcontractor working on the project, and sustained severe injuries when an employee of the same ran him over with a dump truck. In light of his injuries, the plaintiff filed a workers’ compensation claim against the general contractor, and later sued the subcontractor and its employee in the Pennsylvania Court of Common Pleas. In responding to the plaintiff’s allegations, the subcontractor eventually moved for summary judgment and asserted that it was also the plaintiff’s employer for the purposes of the workers’ compensation bar under the “borrowed employee” doctrine. To this end, the subcontractor presented evidence from the record indicating that it, not the general contractor, actually supervised the expansion and directed the plaintiff in his duties. Perhaps surprisingly, the Philadelphia trial court agreed and granted summary judgment on the basis of the workers’ compensation bar. On appeal to the Pennsylvania Superior Court, the plaintiff argued that the trial court erred as a matter of law when it applied the “borrowed employee” doctrine. Specifically, the plaintiff argued that Pennsylvania law recognizes the doctrine only when there is sufficient evidence that the employee “passed under the [putative] employer’s right of control with regard to the work to be done and the manner performing it.” According to the plaintiff, however, the record in Shamis was conflicted in respect of the general contractor’s right of control vis-à-vis the defendant subcontractor. In particular, the plaintiff noted to the Superior Court that although he took direction from the subcontractor, the general contractor maintained a contractual right and obligation of supervision that called into question his employment status for purposes of the workers’ compensation bar. In ultimately endorsing the plaintiff’s position, the Superior Court agreed that questions regarding “borrowed employees” are intrinsically fact sensitive and rely heavily on factors that should be considered by a jury. As a result, the Superior Court reversed and remanded the matter to the court below for further discovery and trial. Shamis is a reminder that while the “borrowed employee” doctrine may serve as a viable bar to workplace injury claims in Pennsylvania, the defense requires a significant and detailed factual basis in order to succeed. Thanks to Adam Gomez for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Insurer’s Denial Goes To Jury If Policyholder’s Expert Report Contradicts Insurer’s Grounds for Denial (NY) December 16, 2022 < Back Share to: The United States District Court for the Western District of New York recently determined that summary judgment is inappropriate where competing expert reports make it impossible to determine whether an insurance company’s asserted exclusions apply. In James P. Pronti & Kelly A. Pronti v. Hanover Insurance Company, the Court addressed this issue in a breach of contract case where the Prontis, plaintiff homeowners, alleged that the defendant insurance company, Hanover, breached the policy of insurance by denying coverage for damages caused by a leaking pipe. Both parties obtained expert reports, which reached differing conclusions regarding what caused the pipe to leak. Based on its expert report and its interpretation of the relevant policy provisions and exclusions, Hanover disclaimed coverage. The Court found that there was a genuine dispute of material fact regarding whether Hanover had established an applicable exclusion under the Policy, and accordingly denied both parties’ motions for summary judgment. The Court held that because the expert reports “clearly dispute” what caused the leak in the Prontis’ piping, it was impossible for the Court to determine whether Hanover’s asserted exclusions apply on a summary judgment motion. Notably, the Court rejected Hanover’s assertion that the Prontis’ expert report had failed to actually contradict Hanover’s expert report because it did not affirmatively state what caused the pipe to leak. The Court agreed that the Prontis’ expert report did not expressly state what specifically caused the pipe to leak, but noted that the report did state that general wear and tear did not cause the leak, which contradicted Hanover’s report. The Court held that because an insurer that is relying on an exclusion to disclaim coverage has the burden of demonstrating that the exclusion applies, in order to prevent Hanover from carrying its burden of proof regarding the policy exclusion, the Prontis’ report needed only to dispute Hanover’s report, and was not required to state its own reason for the leaking pipe. Because the Prontis’ report disputed the findings in Hanover’s report, the Court held, it created a genuine dispute, and therefore made summary judgment inappropriate. This decision, of course, reiterates the insurer’s high burden to disclaim coverage. An insured’s expert report does not necessarily need to make specific conclusions regarding causation, but needs only to contradict an insured’s expert report in order to raise a genuine dispute of material fact on summary judgment. Thanks to Erin Gallagher for her contribution to this article. Should you have any questions or would like to discuss this decision, please feel free to contact Tom Bracken. Previous Next Contact

News Fore? NY Court Rules on Golfer's Duty to Warn June 2, 2009 < Back Share to: A friendly round of golf between two doctors took an unfortunate turn when plaintiff Azad Anand was struck in the eye by an errant shot struck by his friend, defendant Anoop Kapoor. In Anand v. Kapoor, New York’s Second Department Court granted the defendant’s motion for summary judgment, holding that the plaintiff assumed the risk of being struck by an errant shot when he voluntarily participated in the game. The Court held that, even if there was no assumption of the risk, the plaintiff was at such a “great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone.” Thus, the defendant owed no duty to plaintiff to warn him of his intent to hit the ball. Some may say that the Court simply took pity on the defendant, in not adding insult to injury for defendant’s bad shot. In any event, the decision gives the struggling golfer one less worry. http://www.courts.state.ny.us/courts/ad2/calendar/webcal/decisions/2009/D19706.pdf Previous Next Contact

News Woman Awarded $1.19 Million “Aberration” Verdict in UIM Case (PA) May 2, 2016 < Back Share to: A jury in Beaver County awarded a woman $1.2 million in Alviani v. Horace Mann Insurance. The suit arose from in a July 18, 2012 when the plaintiff, Britney Alviani, was the passenger in her boyfriend’s car when it was struck head-on by Jodi Morrison. Alviani was thrown forward where she struck the windshield and suffered a laceration to her face and multiple abrasions and bruises. She also suffered injuries to her right knee and elbow. According to the pre-trial memorandum, Morrison was driving under the influence and left her lane of travel. She was later convicted of DUI. Follow-up care showed that Alviani had a significant injury to her right elbow. She underwent two surgeries and various other medical treatments and was diagnosed with chronic pain syndrome. Plaintiff’s counsel employed a medical expert who opined that Alviani’s injury is permanent and that she will not be able to return to her job as a barber’s apprentice. The pre-trial memo also stated that Alviani is unable to lift more than one pound and has trouble engaging in recreational activities. The defense team employed their own expert who stated that Alviani was able to be gainfully employed and pointed to her own testimony which stated that she was currently working on a full-time basis and earning more than a barber’s apprentice. Morrison only carried $15,000 in liability coverage but Alviani was insured under five additional auto policies which provided $50,000 in UIM benefits each. Alviani requested $65,000 for lost wages, $892,000 - $1.14 million for lost earning capacity, and a $250,000 UIM claim. The defense offered a final settlement of $115,000. After a four day trial, the jury deliberated for five hours and returned a $1.19 million verdict which included $65,488 in past lost earnings, $1 million in lost earning capacity, and $100,000 for pain and suffering. Defense counsel called the verdict an “aberration” and says that he will appeal. This case demonstrates the potential for high damages if there is a finding of a permanent injury and also the ability of plaintiffs to stack other insurers through UIM coverage. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Mystery eye poker … pencil toting toddler? (NY) September 7, 2012 < Back Share to: How much evidence is enough to prove that a day care center was negligent when there is an allegation that one toddler injured another? The Second Department addressed this recently in a case of a mystery injury. In Ivan v. Lolita Child Day Care, the day care provider admitted that a fellow toddler poked the infant-plaintiff in the eye while at day care. However, doctors found that the infant-plaintiff's cornea had actually been scratched by a pencil. The lower court granted the day care's summary judgment motion, finding that there was no proof that the infant was poked in the eye by a pencil while at day care. The Second Department reversed the lower court's decision, finding that a plaintiff is not required to exclude possible cause. A plaintiff need only offer evidence from which proximate cause may be inferred. In the instant matter, the day care admitted that the plaintiff sustained an eye injury while in its care and further admitted that no one at the day care witnessed the eye-poking incident. Accordingly, the Appellate Division found issues of fact as to whether the infant-plaintiff's injury was proximately caused by the day care's inadequate supervision. Thanks to Georgia Stagias for this contribution. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Choice of Ways Doctrine Supports Defense Summary Judgment (PA) January 12, 2017 < Back Share to: Defendants in Philadelphia County successfully asserted a choice of ways doctrine defense to earn a defense summary judgment in a recent slip and fall case. The choice of ways doctrine bars recovery in a negligence context, when a plaintiff chooses to confront a patently obvious danger. In Spady v. Acme Mkts., PICS Case No. 16-1530 (C.P. Philadelphia Sept. 8, 2016), Plaintiff brought suit against Acme Markets, FHG Companies, LLC, and DeMasi Landscaping seeking recovery for injuries he suffered as a result of a fall on a pile of snow and ice in an Acme parking lot. The trial court granted summary judgment for defendants, which Plaintiff appealed on the grounds that, inter alia, there was a genuine issue of material fact as to his contributory negligence, and the court’s application of the choice of ways doctrine. In February 2014, Plaintiff slipped and fell on a pile of snow and ice while walking in the parking lot of Acme supermarket. Plaintiff brought a negligence claim against defendants alleging that they failed to remove the snow and warn of dangerous conditions. However, video surveillance footage showed that the parking lot was clear of snow except for a mound of snow at the end of each row of parked cars. The footage also showed that Plaintiff parked his car in an area completely clear of snow and that the most direct route from Plaintiff’s car to the entrance of the store was entirely clear of snow. Despite the presence of a direct and clear route, Plaintiff chose a longer, indirect route in which he walked around another row of parked cars and then climbed over a mound of snow which he would not have encountered had he simply taken the shortest, most direct route from his car. In his deposition, Plaintiff could not explain why he chose the longer, less direct route, other than that he saw a handicapped parking sign and thought that the route would be clear. Plaintiff acknowledged that he did not really know why he chose the longer route, and also that, other than the mound at the end of each row of cars, the parking lot was clear of snow. In its opinion recommending affirmation of the trial court’s decision, the court pointed out that the choice of ways doctrine is defined as: “where a person, having a choice of two ways, one of which is perfectly safe, and the other of which is subject to risks and dangers, voluntarily chooses the latter and is injured, he is guilty of contributory negligence and cannot recover.” The court may rule on the choice of ways doctrine as a matter of law and preclude Plaintiff’s recovery if no reasonable minds could disagree that there was: (1) a safe course; (2) a dangerous course; and (3) facts which would put a reasonable person on notice of the danger or actual knowledge of the danger. The court concluded that the choice of ways doctrine barred Plaintiff’s recovery because no reasonable minds could disagree that Plaintiff was aware of the safe and clear path that was the shortest and most direct from his car to the store, and he voluntarily assumed the risk of an obvious and known danger by deciding to take a longer, less direct path that encountered a mound of snow. Thus, the court recommended the affirmation of the trial court’s granting of summary judgment for Defendants. The court further noted that, although originally established within the framework of a contributory negligence system, the choice of ways doctrine still exists despite Pennsylvania’s shift to a comparative negligence system. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact