News One Accident, One Plaintiff, Two Lawsuits, Different Defendants and No Collateral Estoppel January 10, 2008 < Back Share to: In Sneddon v. Koeppel Nissan Inc., 2007 NY Slip Op 10524, AD Index 2006-06909 (Queens Co. Index 11249/05) plaintiff claims he was struck by a Nissan Pathfinder that suddenly accelerated while the driver was attempting to park. Plaintiff commenced his first action against the driver and successfully moved for summary judgment, whereupon the trial court found the driver's negligence to be the "sole proximate cause" of plaintiff's injuries. Two years after that action settled, plaintiff brought a second lawsuit for products liability and negligent repair against Nissan North America, Koeppel Nissan, Inc., and Habberstad Nissan, Inc., who were not parties in the first lawsuit. The trial court granted the defendants' motion to dismiss, determining plaintff was collaterally estopped from asserting anything other than the driver's negligence caused his accident. The Appellate Division - Second Department reversed, stating that the doctrine of collateral estoppel does not apply since the issues in the first and second lawsuits are "discrete and not identical." http://www.nycourts.gov/reporter/3dseries/2007/2007_10524.htm Previous Next Contact

News Flagman's Wave No Cause For Collision (NY) January 21, 2016 < Back Share to: In order to prevail in a negligence action, a plaintiff must prove that the defendant’s actions or omissions were the proximate cause of the accident causing injury. Although there can be more than one proximate cause of an accident, the defendant’s negligence must be a substantial cause of the plaintiff’s injuries. Although a proximate cause determination is usually considered a fact question for the jury, a court may decide this issue if only one conclusion can be drawn from the facts. In Canals v Tilcon NY, Inc., the plaintiff was riding his bicycle north on a two-lane highway when he came upon a flag person at a construction site where Tilcon was the general contractor. The plaintiff contended that the flag person, who was looking north, waved on the northbound traffic to proceed. A northbound car proceeded and approached his bicycle “too close” causing him to veer his bicycle into a trench and sustain injuries. Tilcon successfully moved for summary judgment on the grounds that plaintiff did not establish that the flag person’s actions were the proximate cause of plaintiff’s injuries. On appeal, the Second Department found that at most, the flag person furnished the condition for plaintiff’s accident, but ultimately the driver 's and the cyclist's actions were the proximate cause. As such, there was no triable issue of fact. Thanks to Sheree Fitzgerald for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Can a Decedent Maintain a Negligence Lawsuit if He Dies before Affirming the Defect? (NY) March 29, 2019 < Back Share to: In Perrelli v. Evangelista, the decedent fell on his landlord's driveway, and the injuries ultimately caused his death. The estate brought an action to recover damages for wrongful death alleging the defendants negligently maintained the driveway. Defendants moved for summary judgment on the grounds that plaintiff failed to sufficiently identify the cause of the fall. Plaintiff opposed the motion asserting that the Noseworthy doctrine (see see Noseworthy v City of New York, 298 NY 76) should apply, imposing a lighter burden of persuasion on the plaintiff since the plaintiff was not alive to testify as to the cause of his fall. Plaintiff submitted an expert affidavit in which the expert identified allegedly dangerous conditions affecting the driveway. Plaintiff also submitted the affidavit of plaintiff’s friend, who was present with the decedent the evening of the accident but did not witness the fall. The Supreme Court denied the defendants’ motion and defendants appealed. The Appellate Division, Second Department, reversed the lower court’s decision denying defendant’s motion on the grounds that plaintiff could not identify what caused the decedent to fall. The Appellate Division reasoned that Noseworthy doctrine does not eliminate need to prove causation and expert’s opinion identifying different defects did not prove what caused decedent to fall. Since the trier of fact would be forced to speculate as to the cause of the accident, no triable issue of fact was raised. Thanks to Margaret Adamczak for her contribution to this post. Please email Brian Gibbons with any questions   Previous Next Contact

News Defamation Case Won... Stay tuned for Insurance DJ (PA) October 28, 2016 < Back Share to: Character is much easier kept than recovered. ~Thomas Paine Thus forms the basis of attorney Thomas A. Riley Jr.’s suit captioned Riley vs. Philadelphia Media Inc. et al in the Philadelphia County Court of Common Pleas. Riley was a chairman of the Pennsylvania Convention Center Authority board from 2007 to 2011. In October 2011, The Philadelphia Inquirer published an article by writer Tom Infield addressing corruption and misspent tax money at the Philadelphia Convention Center. The article suggested that Riley directed “secret legal fees” to his law firm and then covered up the bills. The Journal Register Co. East then published a follow up story that focused on Riley’s alleged misconduct. Riley claimed he told The Philadelphia Inquirer that their allegations were false. Infield claimed he misunderstood. Riley claimed that Infield never vetted his article. Infield claimed that he issued a correction online to address the mistake. Yet at the end of these back-and-forth claims, the outcome was the same: Riley’s reputation was damaged. Clients, potential judges, and fellow attorneys alike questioned Riley’s integrity. Riley then sued Main Line Media News, the Journal Register East, The Philadelphia Inquirer, Daily News, and Philly.com, the news outlets responsible for the publication of the damaging articles. The Philadelphia Inquirer, Daily News, and Philly.com settled with Riley on confidential terms. Judge Angelo J. Foglietta then awarded Riley $1.5 million against Main Line Media News and the Journal Register East. Additionally, the defendants were ordered to remove the offending article within 10 days or be subject to a fee of $2,500 per day. Riley’s attorney noted that this matter is not quite closed yet. The Journal Register East’s insurer has disputed its duty to indemnify its insured for the judgement leading to consideration of an action to seek recovery of the award from the insurance carrier by way of breach of contract or bad faith claims. It is unclear if the defendants will appeal the order. Thanks to Melanie Brother for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com     Previous Next Contact

News Patching Elevated Gutter Pipe Not Within Purview of Labor Law §§ 240(1) and 241(6) January 7, 2008 < Back Share to: In Azad v. 270 5th Realty Corp, 2007 NY Slip Op 10086, AD Index 2007-04164 (Kings Co. Index Index 7390/05), the plaintiff was injured while he repaired two holes in a gutter pipe approximately 35 feet up on the outside of a building owned by the defendant. Specifically, plaintiff fell when his ladder, that plaintiff placed on top of garbage, shifted. In reversing the trial court's decision that had granted plaintff summary judgment on his Labor Law §§240(1) and 241(6) claims and awarding summary judgment to the defendant landowner, the Appellate Division - Second Department determined plaintiff was not performing any of the protected activities enumerated under Labor Law § 240(1), but was merely performing "routine maintenance." Similarly, the Appellate Court found plaintiff's work was not construction, excavation or demolition work and therefore and did not qualify for a Labor Law §241(6) claim. http://www.nycourts.gov/reporter/3dseries/2007/2007_10086.htm Previous Next Contact

News WCM Wins Summary Judgment on Premises Case in Queens September 28, 2018 < Back Share to: This past week, Wade Clark Mulcahy was victorious in its motion for summary judgment, absolving two homeowners of exposure in a sidewalk trip and fall case. Brian Gibbons and Chris Gioia prepared the motion, and Chris argued the motion before Hon. Ernest F. Hart of Queens County Supreme Court. In, Calle-Gonzalez v. Borukhov, the Court ruled that our clients, homeowners in Queens, were entitled to summary judgment for a trip and fall which occurred on the sidewalk in front of their single family home. Under New York City Administrative Code’s Section 7-210, liability for sidewalk defects is placed upon owners of the adjacent property. However, Section 7-210 also provides for an exception of one-two or three family homes. Judge Hart ruled that we demonstrated that unit was a single family, owner-occupied dwelling. Additionally, the Court found that the owners had not made negligent repairs, nor had they utilized the sidewalk for a ‘special use’, two exceptions which would deny summary judgment. Plaintiff's claims will continue against the City of New York, and will focus on the issue of notice. But, barring any appellate practice, our clients are out of this case permanently. The tricky aspect of motions like this one involves plugging up any potential holes that could create a "triable issue of fact," which could prompt SJ denial. At argument, Chris Gioia left no doubt that our clients were not liable here, and the Court agreed. Please email Brian Gibbons with any questions, or contact me on Twitter @bgibbons35. Previous Next Contact

News Take My Wife... Please! (NY) May 3, 2018 < Back Share to: The late Henny Youngman would have enjoyed the facts of Ostego Mutual v. Dinerman, (May 1, 2018), where a wife's fraudulent misrepresentation in a property damage claim nearly prejudiced her husband's, through no active fault of his own. The Appellate Division, First Department found that one of the named insureds, Mrs. Dinerman, had committed fraud related to the policy and thus was not covered. But the policy was not void as to defendant’s husband, also a named insured, simply due to the wife's fraudulent acts. However, the Court found that Mr. Dinerman failed to timely file a proof of loss and as such violated the policy provisions. Defendant, Mrs. Dinerman, was found to have violated the “Misrepresentation, Concealment and Fraud” condition of the homeowners policy issued by plaintiff when she submitted receipts for reimbursement for living expenses that she did not actually incur after a fire damaged their home. Dinerman claimed that the amount was minimal and as such it should not void the policy as to her. The Court found this argument unveiling and stated that the amount of fraudulently obtained monies is not the issue, the fact is that she violated the policy and as such it is void as to her. As for Mr. Dinerman, the Court found that his claims under the policy would withstand his wife’s fraudulent misrepresentations and the policy is not void as against him. This is an interesting position for the Court to take in light of the fact that the policy covered a shared home and would in effect be covering some loss of Dinerman even though she violated the policy. However, the court found that Mr. Dinerman also violated the policy in his own way, thus permitting plaintiff to decline coverage. Mr. Dinerman did not alert his insurance company about the damage or provide proof of loss within the prescribed time period. As such, the plaintiff insurance company had a right to decline coverage. This case presents an interesting question as to whether Mr. Dinerman would have been permitted to recover under the policy absent his failure to provide proof of loss, even with his wife’s confirmed fraudulent behavior. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Notice of Claim by Injured Party Timely, Despite Late Notice by Insured (NY) May 3, 2010 < Back Share to: Last week the United States Second Circuit Court of Appeals ruled that an injured party (or its homeowner’s carrier) that provided separate -- and timely -- notice of a claim under the tortfeasor’s liability policy may be entitled to coverage, despite the fact that the tortfeasor’s own notice to the liability carrier was untimely. In Continental Ins. Co. v. Atlantic Cas. Ins. Co., a contractor caused a fire while working on a home. The contractor did not provide its liability carrier with notice of the claim until five months later, and the liability carrier disclaimed coverage. The homeowner’s carrier (which had paid out the fire-related losses to the homeowner), sent its own notice of claim to the contractor’s liability carrier after learning of the liability carrier’s existence. After the homeowner’s carrier obtained a default judgment against the contractor in an underlying action, the homeowner’s carrier sued the liability carrier for the judgment pursuant to New York Insurance Law Section 3420(a), which allows an injured party to sue an insurer after obtaining a judgment against an insured. The lower court dismissed the homeowner’s carrier’s claim and ruled that the contractor’s untimely notice of claim extinguished the homeowner’s carrier’s rights under the contractor’s liability policy. The Second Circuit reversed the lower court on the late notice grounds, although it upheld the dismissal on the grounds that the liability policy’s roofing limitation endorsement barred coverage. The Second Circuit held that the purpose of New York Insurance Law Section 3420(a) is to remedy the “common law inequity” under which an injured party possessed no cause of action against the insurer of the tort-feasor. Section 3420 therefore gives the injured party (or its carrier that stands in its shoes) the independent right to provide notice to the tortfeasor’s carrier as long as it pursues those rights with due diligence. Therefore, despite the fact that the contractor in Continental had provided late notice of the claim, the injured party (and its insurer) retained their rights under the liability policy when they provided notice to the liability carrier soon after learning of the policy’s existence. Thanks to Mendel Simon for his contribution to this post. If you have any questions, please contact mbono@wcmlaw.com . Decision Previous Next Contact

News WCM Wins Major Coverage Ruling for Specie Market: Classic “Unattended Vehicle” Exclusion Applies to Goods on Consignment October 10, 2024 < Back Share to: On October 7, the New York State Supreme Court, New York County, confirmed what the jewelry industry has known for centuries: the longstanding “unattended vehicle” exclusion in every jewelers’ policy applies to goods on consignment. In a landmark decision, the Honorable Debra James granted summary judgment for defendants, endorsing their common sense and contract-based argument in Avi and Co. N.Y. Corp. and Time 2 Tick, Inc., v. Those Certain Underwriters At Lloyd’s London, Subscribing to Policy No. FINFR 1902879 , 650374/2021 (N.Y. Oct. 8, 2024). Plaintiffs-Insureds filed this breach of contract claim against Defendants-Insurers Those Certain Underwriters At Lloyd’s London, (“Underwriters”) , after Underwriters disclaimed coverage on the basis of the Jewelers Block Policy’s “unattended vehicle” exclusion after an investigation into the loss of approximately $1.6 million worth of jewelry that Plaintiffs had entrusted to non-party consignee El Russo & Co. for potential sales. After litigation commenced, and in response to Underwriters’ Notice to Admit, Plaintiffs confirmed that unknown thieves stole the consigned jewelry from the back seat of an unoccupied and unattended vehicle used by two El Russo employees. The El Russo employees were inside a jewelry store at the time, with their vehicle – and the consigned jewelry inside it – out of sight. They did not witness the burglary, only discovering the theft when they returned to their vehicle to find a police officer writing a report. Underwriters moved for summary judgment, citing decisions from the First Department and other jurisdictions which have routinely upheld the “unattended vehicle” exclusion. That exclusion precludes coverage for: “[l]oss of or damage to Stock Insured while in or upon any automobile . . . unless, at the time the loss or damage occurs, there is actually in or upon such vehicle, the Insured, employee or officer of the Insured, commission salesperson or selling agent, or a person whose sole duty it is to attend the vehicle . . .” In its well-reasoned decision, the Court relied on the plain and ordinary meaning of the “unattended vehicle” exclusion and held that: “[t]he fact that the term ‘consignees’ was not expressly identified in the Unattended Vehicle Exclusion does not render the provision ambiguous.” Id. Previous Next Dennis M. Wade Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Contact

News Third Circuit Agrees that Business Earnings Prior to an Accident Are Inconclusive (PA) May 7, 2020 < Back Share to: The United States Court of Appeals for the Third Circuit recently affirmed a decision from the United States District Court for the Western District of Pennsylvania and determined that an insurer’s issues with trial evidence and claims were invalid. In Kirkpatrick v. GEICO Casualty Company, the insurance company moved for relief from a judgment or, alternatively, for a new trial which was ultimately denied on appeal. The underlying incident involved a motor vehicle accident in which Ronnie Kirkpatrick and Michelle Vensel (“Plaintiffs”) suffered permanent injuries after an automobile accident caused by a negligent driver. The plaintiffs alleged that Geico failed to make proper payment of claims under the underinsured motorist benefit of their Geico insurance policy. Specifically, the plaintiffs argued that the accident impacted their car restoration business, despite reporting losses to the IRS in the years leading up to the accident and not having finished or sold any cars to date. In response, Geico argued that the loss of earning capacity was not a result of the automobile accident. However, at the close of trial, a jury returned an award of $900,000.00 in favor of the plaintiffs. On appeal, Geico argued that the jury’s award was against the weight of the evidence because there was no evidence that the plaintiffs’ business lost profits. In fact, the plaintiffs had only recently launched their business and restored extremely expensive antique cars. The jury was able to hear evidence that the cars currently in production had “substantial estimated appraisal value upon completion” and the delays resulted in later-than-anticipated dates of sale. Furthermore, the plaintiffs demonstrated that Ronnie Kirkpatrick was unable to perform his work at the same pace as prior to the accident. Overall, the Court determined the jury had sufficient evidence to conclude that the plaintiffs’ injuries led to a “shorter economic horizon” for their business in the form of less cars restored due to more time per restoration and delayed sales dates. In affirming the District Court’s decision, the Third Circuit relied on Pennsylvania case law holding that “[d]amages for loss of earning capacity arise out of an impairment of that capacity, and not out of loss of earnings.” The Court also determined that the plaintiffs’ earnings subsequent to the injury compared with their earnings at the time of the injury is not conclusive evidence as to whether earning power has been diminished by the accident. Additionally, Geico argued that there was insufficient evidence from which the jury could use as a “yardstick” for calculating lost earning capacity. The Third Circuit disagreed and determined that the damages presented to the jury on the issues were not impermissibly speculative. The Court relied on the Pennsylvania Supreme Court decision Kaczkowski v. Bolubasz, which concluded that some speculation does not justify excluding reliable economic evidence since impression is inherent in any computation of lost future benefits. The Third Circuit also pointed out that inflation and productivity can be included in the computation of lost future earnings. Overall, the Third Circuit held that, based on the evidence presented by the plaintiffs, the jury had a sufficient evidentiary foundation and were not unduly speculative so as to warrant vacating the award. Thanks to Zhanna Dubinsky for her contribution to this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News A Racoon Ravage: Insurance Company Allowed to Deny Coverage for Animal Destruction (PA) September 27, 2019 < Back Share to: The United States District Court for the Western District of Pennsylvania recently granted an insurance company’s dismissal from a lawsuit asserting claims of breach of contract and insurance bad faith. In Capital Flip,LLC v. American Modern Select Insurance Company, American Modern Select Insurance Company (“American Modern”) denied insurance coverage for substantial property damage caused by racoons. In April of 2018, Capital Flip, LLC (“Capital Flip”) discovered that racoons had entered its dwelling and caused a substantial amount of damage to the interior. Capital Flip was insured by a Dwelling Policy issued by American Modern. Under the insurance policy, coverage was available for a limited number of “perils insured against” which included losses arising from “vandalism or malicious mischief.” As such, Capital Flip made a claim on the policy stating that the racoon damage was the result of “vandalism or malicious mischief” by the culprit racoons. American Modern denied Capital Flip’s claim stating that since the loss was a result of animals damaging the dwelling, it was not covered under the insurance policy. In response, Capital Flip filed a lawsuit in state court asserting breach of contract and insurance bad faith claims against American Modern. American Modern removed the action to federal court asserting diversity jurisdiction and later filed a Motion to Dismiss claiming that its denial of coverage was warranted. Specifically, American Modern claimed that racoons cannot commit vandalism or engage in malicious mischief. Capital Flip argued that the policy was ambiguous and never defined the terms “vandalism” and “malicious mischief.” Therefore, Capital Flip believed damages caused by animals may be included. The Court failed to find Capital Flip’s argument persuasive and determined that it failed to plead a plausible claim for either breach of contract or bad faith as both of those claims required a finding that Capital Flip was entitled to coverage in the first place. Instead, the Court found American Modern’s Dwelling Policy to be clear and unambiguous. With regard to Capital Flip’s undefined term argument, the Court stated that it was “well-established that a term is not ambiguous merely because an insurance policy does not provide a specific definition.” Instead, when a term is undefined, courts will use the common law definition and apply it to the facts of the case. Here, the Court determined that both the common law definitions and the specific legal usage of the terms “vandalism” and “malicious mischief” do not apply to animal behavior. First, the Court looked to the common law definition of “vandal” which is defined as “a person who deliberately destroys or damages property.” Next, the Court stated that “malicious” is defined as “intending or intended to do harm” and that “mischief” is defined as “playful misbehavior.” All in all, the Court concluded that these definitions apply to the deliberate acts of a person. Additionally, the Court determined that the concepts of vandalism and common law malicious mischief are intertwined with the offense of Criminal Mischief. As such, like all crimes, this required a human actor as animals are not subject to criminal law. As a result, the Court determined that it was not plausible for Capital Flip to claim coverage under American Modern’s Dwelling Policy. Therefore, the Court granted American Modern’s Motion to Dismiss. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News CA Wildfires Predicted to Result in 1st and 3rd Party Lawsuits. November 5, 2007 < Back Share to: Insurance (undervaluation and low ball repair estimates), reinsurance and poor construction (i.e. poor fireproofing) claims are predicted. http://www.law.com/jsp/law/LawArticleFriendly.jsp?id=1193994239603 Previous Next Contact