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News New Jersey Anti-Discrimination Statute Trumps Private Employment Contract June 23, 2016 < Back Share to: In Rodriguez v. Raymours Furniture Company, Inc., New Jersey’s highest court weighed in the impact of New Jersey’s Law Against Discrimination (LAD) on a party’s freedom to contract. Rodriguez involved a dispute over an employment contract and the limit of time in which a claimant may pursue his or her claim. Following an offer of employment by Raymours, Rodriguez was presented with an employment contract, which included a provision that any grievance regarding Rodriguez’ employment must be brought within six months of the date that the alleged event occurred. Rodriguez signed the contract. Some months later, he was injured on the job. After surgery and physical therapy, Rodrigues returned to work. Two days later, he was terminated, purportedly due to a company-wide reduction. Seven months following his termination, Rodriguez sued his former employer, alleging violation of the LAD, claiming that his termination was discriminatory because less senior employees (perhaps more able-bodied) were not let go. The Supreme Court considered the well-settled legal principle that individuals are free to contract as they choose to determine whether Rodriguez forfeited his right to sue his employer after six months had passed since his termination. However, in this instance, the Court also focused on the intent of the statute that Rodriguez based his claim on, which included a two-year statute of limitations in which to file a claim. The LAD was enacted for the benefit of the public, the Court reasoned, to protect those workers with disabilities. In reviewing the employment contract Rodriguez signed, the Court determined that the provision limiting a claimant to a six-month window in which to pursue litigation against the employer for alleged grievances encompassed by the LAD was against public policy, and therefore unenforceable. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Hospitals’ Internal Self-Reviews Remain Internal (NJ) August 31, 2018 < Back Share to: In Brugaletta v. Garcia, the plaintiff sought emergency medical treatment at Chilton Memorial Hospital (“CMH”) and underwent multiple surgeries. Plaintiff’s doctor recorded that plaintiff missed doses of an ordered antibiotic, which plaintiff discovered after her medical records were turned over in discovery. When plaintiff inquired further, CMH admitted it possessed two internal self-critical reports regarding plaintiff’s care – but refused to produce them on the basis of privilege. Plaintiff filed a motion to compel their production, and CMH filed a cross-motion for a protective order. The New Jersey Patient Safety Act (“PSA”), N.J.S.A. 26:2H-12.23, et seq., sought to enhance patient safety by establishing an environment that mandates the confidential disclosure of the most serious, preventable adverse effects. Once disclosed, hospitals and other licensed healthcare facilities must convene patient safety committees, conduct self-critical peer reviews, and perform Root Cause Analyses to reconstruct and analyze cases to determine “what went wrong.” Serious Preventable Adverse Events (SPAE) must be reported. To encourage disclosures and self-reporting, these reports are protected by an absolute privilege. N.J.S.A. 26:2H-12.25(f). Unsurprisingly, the New Jersey plaintiffs’ bar has sought these internal records ever since. In Brugaletta, the plaintiffs’ bar secured an initial victory. The trial court heard argument on plaintiff’s motion to compel and CMH’s cross-motion for a protective order and conducted an in camera review of the related incident reports. After the review, the trial court found the reports were correctly classified as self-critical analyses under the PSA. Surprisingly, however, the trial court usurped CMH’s decision that plaintiff’s case did not amount to a SPAE. The trial court fashioned a remedy – the disclosure of a redacted self-critical report – that attempted to honor the privilege but reveal the SPAE to the plaintiff. The New Jersey Supreme Court agreed with the Appellate Division and ruled the trial court exceeded its authority in declaring a SPAE actually occurred, and in issuing related orders that CMH disclose to plaintiff a redacted version of the self-critical report. According to the Court, the legislature inserted no role for a trial court to play in reviewing the SPAE determination made by a patient safety committee of a health care facility. Additionally, the Court ruled the legislature intended to encase the entire self-critical analysis process in privilege; it is not limited to Serioues Preventable Adverse Events. Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Vet Clinic Denied Summary Judgment In Mistaken Dog Bite Case (NY) February 25, 2022 < Back Share to: New York courts do not recognize a cause of action for common-law negligence in dog bite cases, but an injured plaintiff can recover under a theory of strict liability if they can meet the specific burden of proof. In Ciaccio v. Mamaroneck Veterinary Hosp., P.C., 2019 N.Y. Misc LEXIS 1254, the Supreme Court of New York, Westchester County, addressed these issues in a case where a dog owner sued a veterinary clinic after the clinic returned the wrong dog to plaintiff and the dog bit her. Plaintiff had left her dog at the clinic for veterinary services and the clinic erroneously returned another dog of the same size, breed, and color without looking at the name tag. The clinic moved for summary judgment on plaintiff’s strict liability claims. In reviewing the legal standards, the court observed that plaintiff could recover upon a theory of strict liability if he or she can prove that the dog had vicious propensities and that the owner of the dog, or person in control of the premises where the dog was, knew or should have known of such propensities. The court stated that there is no bright line rule that a prior comparable vicious act is required in order to prove same. In fact, evidence tending to prove that a dog has vicious propensities could include a prior attack, the dog’s tendency to growl, snap or bark its teeth, the manner in which the dog is normally restrained, and a proclivity to act in a way that puts others at risk of harm. In opposing summary judgment, the clinic argued that plaintiff could not establish that the dog had any vicious propensities or that defendants had any knowledge of its vicious behavior. However, the vet who owned the clinic refused to testify as to his knowledge of the dog’s propensities, claiming that he was prohibited by law from answering questions regarding another client’s animal without that client’s written consent, which was not provided. Plaintiff argued in support of the motion that the traditional dog bite analysis was inapplicable because the clinic was a commercial enterprise and not a protected class of pet owner. She further argued that the clinic was negligent in failing to look at the dog tag and she also introduced a behavioral expert to explain the dog’s reaction. The Court ultimately denied the motion for summary judgment, finding that the clinic failed to eliminate all issues of triable fact as to whether they should have known of the vicious propensities of the dog since the vet refused to answer any questions concerning this issue. The court observed that it was immaterial whether the clinic was the owner of the dog as long as they kept the dog. Harboring the dog at one’s premises or allowing it to remain there qualifies as keeping the dog under the law. In an apparent criticism of New York’s failure recognize negligence claims in dog bite cases, the court also joined “the chorus line of other jurists” in “voicing frustration and displeasure at the fundamental unfairness of ignoring blatant negligence, which is overwhelming in this case…” The Ciaccio case echoes New York’s rule limiting dog bite liability to strict liability claims but demonstrates that non-owners can be liable if they have control over the premises where a dog is kept and knowledge of the dog’s vicious propensities. Thank you to Tristan Montague for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News There’s S(no)w Proximate Cause (NY) February 7, 2018 < Back Share to: In Tchouke, et al. v. The City of New York and Montefiore Medical Center, the Appellate Division, First Department, upheld a Supreme Court decision dismissing plaintiff’s complaint against Montefiore Medical Center. The plaintiff alleged that he was injured upon exiting his car when he slipped and fell on snow and ice alongside the sidewalk abutting Montefiore’s property. Though the plaintiff claimed that Montefiore negligently failed to clear a path between the street and sidewalk, the court held that Montefiore’s conduct was not the proximate cause of the plaintiff’s injury. Montefiore had no duty to place a path between the street and the sidewalk, not on hospital property, at the spot where plaintiff parked his car. In reading through the decision, we were struck by the nonsensical nature of the claim, which plaintiff's counsel sought to pursue through motion practice and even appellate practice. In light of recent decisions highlighting the high standard to obtain summary judgment, perhaps plaintiff's counsel felt this claim was worth a roll of the dice. Thanks to Alicia Massidas for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

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 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