News PA Superior Court Tackles Bad Faith. December 3, 2007 < Back Share to: Greene v. United Services Automobile Ass'n arises out of a leaking roof first party claim. When the carrier only paid for repairs to the part of the roof actually damaged, the insured commenced a bad faith/breach of contract suit and argued that the carrier was obligated to pay for replacing the whole roof. The trial court agreed with the carrier in respect of how much roof repair it was obligated to pay for. The trial court also denied the bad faith claim. On appeal, the Suprerior Court held that to prove bad faith, "an insured must show there was no reasonable basis for denying benefits and the insurer knew or recklessly disregarded that it lacked such a basis. In addition, a party must show that the insurer breached its duty of good faith through some motive of self-interest or ill-will." The Superior Court further noted that self-interest or ill-will was not a third prong of a bad faith test, but rather bore on the issue of whether the insurer lacked a good faith basis to deny the claim. http://www.palawweekly.com/plw/printarticle.aspx?ID=24548 Previous Next Contact

News Lengthy, "Deliberate" Deliberations Are Not Cause for a Mistrial (PA) December 14, 2017 < Back Share to: On December 8, 2017, the Superior Court of Pennsylvania affirmed a defense verdict on appeal in Berry v. Dickson et al. Plaintiff Berry sued several defendants, alleging negligent maintenance of a building after a piece of ceiling collapsed and injured Berry. The jury ultimately returned a verdict for the defendants and Berry appealed on the issue that the jurors were deadlocked and that the trial court erred by instructing them to return to deliberations. After an exhaustive three days of deliberations, the trial judge dismissed the jury and told them to return on Monday after the weekend. He instructed them that if they were unable to return a verdict on Monday due to being “hopelessly deadlocked” that he would then declare a mistrial. On Monday morning, the jurors requested to hear the charges re-read and then returned a defense verdict late in the afternoon. The plaintiff appealed, arguing that the trial judge effectively coerced the jury after instructing them to resume deliberations after they indicated twice before that they were unable to reach a verdict. The amount of time that a jury is kept together is a matter of discretion for the trial judge and will only be reversed for abuse of discretion or if there is evidence that the judge coerced the jury. Issues to look at are the charges, the complexity of the issues, the amount of testimony, the length of trial, and the solemnity of the trial. In the instant case, the Superior Court found that the issues were complex in that the plaintiff alleged injuries to his spine and other parts of his body. In addition, the jury had to consider testimony from three fact witnesses and two experts. The court also noted that the jury mentioned that they were deadlocked but not “hopelessly deadlocked”. As such, the court affirmed the defense verdict. This case demonstrates the importance of handling a jury during trial and to provide them with adequate jury instructions, and allowing them to deliberate appropriately. The alternative to this verdict would have been a mistrial, and likely, a retrial within a few months. While the plaintiff was obviously displeased with the result, lengthy deliberation is a function of the justice system, and not a grounds for reversal. In fact, the word "deliberation" is a derivative of the word, "deliberate," which means measured or cautious. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News WCM Joins With Other Philadelphia Firms in Sponsoring Women in Law Event. February 2, 2019 < Back Share to: On March 7, WCM will join with other Philadelphia firms and the Philadelphia Association of Defense Counsel in sponsoring a panel discussion entitled "Leaders in the Courtroom: From the Trial Courts to the United States Supreme Court." The program (which involves female leaders of the judiciary and legal community) aims to provide insights, observations, suggestions and practical tips for increasing women's participation as first chair trial attorneys and in other aspects of litigation. For more information about the seminar, please contact Colleen Hayes at chayes@wcmlaw.com . Previous Next Contact

News NJ Court Upholds Dismissal Letting Sleeping Dogs Lie July 6, 2017 < Back Share to: Holiday gatherings bring together family, friends, pets, and joy... until someone gets hurt. Then the specter of social host liability raises its head. Unlike businesses which have a duty to invitees to make their premises reasonably safe, social hosts are required only to warn guests who might not appreciate the existence of a dangerous condition or discover a latent defect in the home. In Parella v. Compeau, a Christmas dinner guest filed suit against her host for injuries sustained when she tripped over a dog lying in the hallway, near the threshold of the dining room. The plaintiff argued that, since she was a social guest, the host had a duty to warn her of dangerous conditions in the home - even sleeping dogs. She claimed that the defendants knew that the dog was lounging in the hallway and that allowing a dog to lie in front of a doorway posed a tripping hazard. In response, the defendants argued that the plaintiff was aware of the presence of the dog in the home, and that the dog did not constitute a dangerous condition based on the size of the dog and its location in the hallway, which made him easily seen and avoided. The trial court agreed, and granted summary judgment on behalf of the defendants. The Appellate Court upheld the dismissal, noting that the presence of the dog was open and obvious. The mere presence of a dog sleeping in a hallway did not create an unreasonable risk of harm or a dangerous condition, triggering defendants’ legal duty to warn guests walking in their home. The judges were particularly dismissive of plaintiff's contention that the dog was below eye level. Thanks to Heather Aquino Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News One Method of Defense to Claims of Bad Faith: 12(b)(6) Motions (PA) December 21, 2018 < Back Share to: On September 11, 2016, Anita Das, a newly enrolled student at the University of Pennsylvania who had only recently moved into a new temporary apartment for the school year, was riding her bicycle in Philadelphia when she was struck by another motorist on the road. Unfortunately, she suffered catastrophic injuries. Although Ms. Das settled with the driver, the settlement was insufficient to cover the total loss she suffered in the accident. Accordingly, Ms. Das turned to her parents’ automobile insurance policy, which contained underinsured motorist coverage and benefits for “resident relatives.” After disclaiming UIM coverage to Ms. Das, Amica Mutual Insurance Company (“Amica”) commenced a Declaratory Judgment Action against Ms. Das and her parents (“Das”) in the United States District Court for the Eastern District of Pennsylvania. Subsequently, Das filed an answer, which included counterclaims against Amica for three causes of action: (1) Ms. Das is entitled to UIM benefits as an insured “resident relative” under the Amica insurance policy; (2) breach of contract; and (3) Amica withheld benefits under the Amica insurance policy in bad faith. Das also sough relief for punitive damages pursuant to Pennsylvania’s bad faith statute, 42 Pa. C.S. § 8371. In response, Amica filed a motion to dismiss the bad faith claim for failure to allege sufficient factual allegations and the damages claim for failure to state a claim upon which relief can be granted. Ultimately, for reasons addressed below, the Court granted Amica’s motion to dismiss for failure to state a claim and ordered Das to file a second amended counterclaim for bad faith and punitive damages (and held that if Das elected not to proceed, such claims would be dismissed with prejudice). To support its decision, the Court in Amita Mut. Ins. Co.v. Anita Das, et al., applied long-standing principles of federal civil procedure in conjunction with the elements under Pennsylvania’s bad faith statute, which entitles insureds to recover punitive damages, interest, attorney’s fees, and court costs if the insurer is found to act in bad faith when investigating a claim. In doing so, the Court determined that Das failed to allege any specific facts meeting the threshold to overcome a motion to dismiss. First, the Court noted that Das simply recited the elements of a bad faith claim, instead of asserting “fact specific” allegations regarding Amica’s conduct in handling and evaluating Ms. Das’ claims for UIM benefits. In this regard, Das’ failure to assert any factual averments relating to howAmica lacked a reasonable basis in its interpretation, administration, investigation, or delay of UIM benefits to Ms. Das or describing “who, what, where, when and how the alleged bad faith conduct occurred” was detrimental to Das defeating Amica’s motion. Second, the Court emphasized that, since an insurer’s delay in settling a claim is a relevant factor in determining whether bad faith occurred, Das failure to detail any dates was also harmful. This decision exposes a significant barrier for bringing bad faith claims in federal court under Pennsylvania substantive law. It also illuminates a mechanism for insurers to combat such claims early in litigation. Yet (and possibly most significant) it reminds us of the detail required when asserting claims, crossclaims, and counterclaims in federal court. Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News You, Too, Can Now Post to “Of Interest.” June 16, 2010 < Back Share to: We have exciting news. As a result of your interest, we have decided to activate the comment feature of our “of interest” blawg. Effective immediately, if you are a registered “of interest” user, you will be able to post comments (or more specifically “replies”) on any post on WCM’s “of interest” website. We are hopeful that this will provide an opportunity for our friends and colleagues to share their ideas on pressing insurance related subjects. In sharing your ideas, we ask that you comply with, acknowledge and/or understand the following rules: 1. You agree not to submit inappropriate content, including but not limited to, material that: (a) infringes upon or violates copyrights, trademarks or other intellectual property rights; (b) is libelous or defamatory; (c) is obscene, pornographic, or sexually explicit; (d)violates a person's right to privacy; (e) violates any local, state, national, or international law; (f) contains or advocates illegal or violent acts; (g) degrades others on the basis of gender, race, class, ethnicity, national origin, religion, sexual orientation, disability, or other classification; (h) is predatory, hateful, or intended to intimidate or harass; (i) contains advertising or solicitation of any kind; (j) misrepresents your identity or affiliation; or (h) impersonates others; 2. You recognize that you and you alone are fully responsible for the content that you submit; 3. You acknowledge and understand that WCM is not responsible for member submitted content. You further understand that WCM has the right, but not the obligation, to monitor submissions and WCM may remove content that it deems inappropriate for any reason whatsoever without consent. WCM further reserves the right, in its sole discretion, to remove a user's privilege to post content on our site; 4. You certify that you are at least 18 years of age; and 5. You acknowledge and agree any use and/or reliance on any information obtained through “of interest” is at your own risk and should not be construed as legal advice. We are hopeful that you will find this posting feature stimulating and informative. If you have any questions, please contact ofinterest@wcmlaw.com . Happy Posting, Your Friends at WCM Previous Next Contact

News Federal Judge Slams the Brakes on Breach of Contract Claim Against Allstate for Vehicle Defect (PA) February 20, 2020 < Back Share to: Last Friday, an Eastern District of Pennsylvania judge held in Marella v. Allstate Insurance Co. that Allstate had no duty to fix the underlying mechanical issue that caused an insured’s vehicle to spontaneously accelerate and had caused two accidents because preexisting mechanical issues were not covered under the insurance policy. In November 2019, Marella’s vehicle spontaneously accelerated causing her to crash into a wall. Allstate covered the cost of the repairs caused by collision but took no action to have the underlying mechanical defect fixed. One month later, the vehicle once again spontaneously accelerated and caused Marella to crash into a store, causing her severe injuries. She then sued Allstate for breach of contract alleging that Allstate failed fix the mechanical issue, or at least very least, warn her that that it would not fix the issue. Under the insurance policy, Allstate must repair damage caused by collisions, acts of nature, and theft. The Court found that because Allstate repaired the damage caused by the collision with the wall, it had fulfilled its contractual obligation to Marella. Since nothing in the policy required Allstate to make repairs to the vehicle to fix the underlying mechanical issue causing the spontaneous acceleration, the Court granted Allstate’s motion to dismiss. The Court went further to indicate that Marella should have asked for relief under tort law, not contracts, citing to the Restatement (Second) of Torts § 323, which states that “a defendant may be liable for negligence when it ‘undertakes, gratuitously or for consideration, to render services to another’ and it does not exercise reasonable care in rendering these services.” However, since she did not, and because “[i]n non-civil rights cases, district courts have no obligation to offer leave to amend before dismissing a complaint unless the plaintiff properly requests it”, the Court had no option but to dismiss the case. Thus, this case illustrates the importance of a close reading of an insurance policy to determine what is actually covered under the policy. Thanks to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News Remove Now Or Forever Hold Your Peace March 31, 2022 < Back Share to: In Florida, plaintiffs often ask the state court to grant leave to amend to assert an insurance bad faith claim upon successful conclusion of their breach of policy claim against an insurer. More often than not, the case is more than one-year old when the amendment is made. Under federal diversity of jurisdiction rules, a citizen of one state, who is sued by a citizen of another state in state court, may, within one-year of the lawsuit being brought, remove the lawsuit to the US District Court. Until recently, Florida’s US District Courts inconsistently enforced the one-year limitation on removal when dealing bad faith claims. That inconsistency was recently resolved in Vachon v. Travelers Insurance, 2021 U.S. App. LEXIS 36999, 20 F.4th 1343 | 29 Fla. L. Weekly Fed. C 633 (11th Cir. December 14, 2021). In Vachon, plaintiff sued Travelers for breach of insurance policy but did not sue for bad faith. Travelers could have but did not remove the case to the US District Court. Plaintiff prevailed and then asked for, and was granted, permission to amend his lawsuit to add a bad faith claim. Travelers removed the new bad faith claim to the US District Court. Plaintiff, arguing that the lawsuit was more than one-year old, asked the US District Court to remand the case back to state court. Travelers argued that removal was proper because the original claim had been completed and that the new bad faith claim restarted the one-year clock. The US District Court disagreed, remanded the case to state court, and Travelers appealed. On appeal, the Eleventh Circuit Court of Appeals dismissed on the grounds that an order remanding a case to state court is not an appealable order. Chief Judge Pryor, by separate opinion, explained that remand was proper because, even if it could appeal, Travelers could not win because plaintiff’s lawsuit was filed more than one-year before the removal and the addition of a new bad faith claim did not restart the one-year limitation. The end result is, Travelers is now litigating a million-dollar bad faith claim in a Florida state court rather than its preferred venue, the US District Court. Chief Judge Pryor’s opinion drives home the old adage: Speak now or forever hold your peace. Thanks to Charles "Chip" George for this post. Please contact Chip with any questions. Previous Next Contact

News A Lawsuit About (and Amounting to) Nothing (NY) October 4, 2019 < Back Share to: Can an idea about a show about nothing be subject to copyright protection? In Charles v. Seinfeld, Plaintiff Charles, a long-time Seinfeld collaborator, alleged that the current Netflix series Comedians In Cars Getting Coffee had been his idea, but that when he asked for a “backend” deal on the show, the reception he got from Jerry was icier than a “hello, Neuman.” Unfortunately for Charles, the SDNY ruled this week that when it came down to his claims of ownership and copyright infringement, he simply had no hand. The Court dismissed all of his copyright claims as time-barred. Charles’ complaint alleged that he first suggested a show for Seinfeld based on the concept of comedians talking while driving years ago and produced a treatment for Seinfeld. Seinfeld didn’t proceed with the idea then, but years later, in 2011, allegedly mentioned to Charles that he was considering a tv show about comedians in a car “chatting” as his next project. Charles’ complaint alleged that Charles immediately noted that Seinfeld was referencing his original idea. In 2011, they agreed to work on the project together. As production progressed, Seinfeld brought Sony into the picture, and Charles realized he was being edged out of the show. Thus, in early 2012, Charles demanded compensation and a backend deal, but was told by Seinfeld that he would be entitled to only a ‘work for hire’ directing role on the show. Much like grace, you either have a backend deal, or you do not. And Charles did not. Thereafter, Charles had no involvement with Comedians in Cars. In September 2015 he registered his original treatment with the Copyright Office, and in February 2018 filed this lawsuit. The defendants moved to dismiss arguing that the copyright claims were time-barred under the 3-year statute of limitations of the Copyright Act, and the Court agreed. The Court noted that Charles’ complaint set forth at least two instances of Seinfeld rejecting Charles’ request for ownership in the show as far back as 2011, stating that the offer of a role limited to ‘work for hire director’ was equivalent to a repudiation of Charles’ claim of ownership interest, and sufficient to put him on notice of infringement. Thus, the action had been time-barred as of late 2014, and Charles’ claims were summarily dismissed. Hopefully, this ruling won’t deter others from pitching new shows starring Seinfeld just being Seinfeld, having coffee, driving a car, or otherwise. Thank you to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Skier’s Responsibility Act Bars Claim (PA) February 28, 2019 < Back Share to: A Pennsylvania court recently decided in Vu v. Ski Liberty Operating Corp., 2019 U.S. App. Lexis 4261 (3d Cir. Feb. 12, 2019) whether a ski resort was responsible for a skier’s injuries after they skied over the edge of a trail to avoid colliding with a snowboarder. Plaintiff, Quan Vu, was skiing at Liberty Mountain when a snowboarder approached him and cut him off, causing Vu to veer toward the edge of he trail. Vu skied over the edge and landed in a pile of rocks. Vu suffered multiple injuries and sued the resort, alleging that his injuries were caused by his skiing over an unmarked artificial cliff at the slope’s edge created by the Defendants’ snowmaking and snow grooming practices. In his complaint, Vu alleged that the defendants were negligent for failing to keep the slope free from unsafe conditions, warn plaintiff of the dangerous condition, and erect a fence or boundary marker to prevent skiers from skiing over the edge and into the rocks below. Defendants moved for summary judgment arguing that plaintiff’s action was barred because skiing off trail is an inherent risk of downhill skiing. The court decided that, under the Skier’s Responsibility Act, ski resorts have no duty to protect skiers from the inherent risks of the sport that are common, frequent, and expected. Losing control and skiing off the side of a trail is an inherent risk of skiing and inherent risks need not be natural conditions. Because plaintiff failed to identify any particular industry standard that defendant violated, defendants were properly granted summary judgment. Previous Next Contact

News Dismissal Of Complaint Filed One Day Late Affirmed By NJ Appellate Division July 9, 2009 < Back Share to: In McMillan v. Wal-Mart Stores, Inc. , the appellate division affirmed the dismissal with prejudice of a complaint filed one day after the two year statute of limitations had expired. Plaintiff had claimed the statute was equitably tolled due to ongoing settlement negotiations, however, the court noted that there was never any discussion about the statute of limitations, nor any communication stating any understanding that plaintiff would not be filing a complaint while the parties continued to negotiate. The Court held that an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlement before the statute runs. http://www.judiciary.state.nj.us/opinions/a1043-08.pdf Previous Next Contact

News If You Can’t Take A Hit, Stay Off The Grass (NY) May 22, 2019 < Back Share to: In MF v. Jericho Union Free School District, a high school junior varsity football player sued his school after he was injured during practice. The infant-plaintiff, not feeling well that day, decided not to participate in practice but chose, rather, to stand along the sideline and observe the plays. During a drill involving a blocking sled, the plaintiff’s foot was injured by his teammates. The school moved for summary judgment, arguing that the plaintiff’s lawsuit was barred under the “assumption of the risk” doctrine. The lower court denied the motion. The Second Department reversed the decision and granted the defendant’s summary judgment dismissing all claims against it. The appellate court noted that “under the doctrine of primary assumption of the risk, a person who chooses to engage in certain recreational or athletic activities consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.” Furthermore, the Court held that the doctrine applies when a consenting participant in a qualified activity is aware of the risks, has an appreciation of the nature of the risks, and voluntarily assumes the risks. The Court further held that that the fact that the plaintiff was not participating in practice that day was inconsequential. The doctrine of assumption of the risk “applies not only to participants in a qualified activity, but also to bystanders or spectators who have placed themselves in close proximity to it, particularly where the record shows that the plaintiff had viable alternatives to his own location." The decision noted the plaintiff’s own testimony where he admitted that, as he watched the drill that day, he saw the blocking sled veer in various different directions. The Court also noted that the plaintiff was an experienced football player, having played football since he was seven years old, and attended 10 practices with the junior varsity team in the weeks before the incident. In our practice, we are frequently asked to represent schools and private leagues defending against similar claims. The pertinent takeaway from this decision is that, in assessing liability exposure, the key factors to consider are whether the injury-producing activity held a common risk in the sport, the level of experience the plaintiff had in the sport, and plaintiff’s appreciation for this risk. Thanks to George Parpas for his contribution to this post. Previous Next Contact