News WCM Obtains Summary Judgment in Queens County, NY Labor Law Case December 7, 2012 < Back Share to: New York, NY Counsel Cheryl Fuchs and associate Georgia Stagias were awarded summary judgment in a Queens County, Labor Law case. In the case of Guaman v. Viewest Owners, LTD., the plaintiff alleged he was injured as he attempted to descend from a hanging scaffold onto a sidewalk bridge that our client, Everest Scaffolding, Inc., installed. Plaintiff alleged that his accident was caused in part by the fact that a portion of the sidewalk bridge was approximately 4 feet or 5 feet away from the wall of the building. We moved for summary judgment seeking to dismiss the Labor Law claims on the basis that Everest was not an “employer,” “owner” or “general contractor,” to which the Labor Law applied. In addition, we argued that Everest did not supervise or control the plaintiff’s work. The court agreed and dismissed the Labor Law claims as against Everest. In addition, we moved to dismiss the common law negligence claims against Everest on the basis that the fact that the bridge was not built directly abutting the facade failed to present an issue of fact regarding Everest’s negligence because either OSHA, the New York City Building Code, nor the New York City Administrative Code require that sidewalk bridges be placed directly against the building’s facade. The court also agreed with this argument and dismissed all common law negligence claims against our client. Previous Next Contact

News Turnabout Is Fair Play? Does Twombly Apply to Affirmative Defenses? (NJ) July 24, 2013 < Back Share to: Folks are familiar with Twombly, the United States Supreme Court decision that makes it clear that federal court plaintiffs must plead their cases with specific particularity to provide full notice of the claims in order to survive a motion to dismiss. The question is – does Twombly apply to affirmative defenses or counterclaims? There is no binding nationwide federal precedent that answers that question and different trial courts have come up with different answers; for example, New York courts have held that Twombly does apply to counterclaims and affirmative defenses. In one of the more recent decisions from NJ, Signature Bank v. Check-X-Change, LLC, District Court Judge Esther Sallas was forced to address the issue when Signature moved to dismiss Check-X-Change’s counterclaim and strike its affirmative defenses. Judge Sallas ruled against Signature and held that Twombly (under Third Circuit precedent) only applies to complaints and not the responses thereto. Underscoring her reasoning was the notion that “substantial issues of fact and law are properly viewed only after the opportunity for discovery.” Although Signature is a positive developments for NJ (and possibly all Third Circuit (including PA)) defendants, the issue is something to be wary of. Form denials and rote pleadings may be going the way of the dodo bird and fact based and specific pleadings may be the wave of the future as federal courts (in the age of the sequester) attempt to keep cases out of the system. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Email Update: NJ Limits Company's Right to Read Personal Employee Emails March 31, 2010 < Back Share to: In our post of July 9, 2009, we discussed a company's right to search for and use an employee's personal email communications with her attorney exchanged through a company provided laptop computer. Stengart v. Loving Care Agency, Inc. In Stengart, the New Jersey Appellate Division decided in favor of the employee and privacy advocates in a case closely followed by the employment bar. The New Jersey Supreme Court believed that the issue was so important that it granted interlocutory leave to appeal and stayed the underlying action until it reviewed that decision. The facts in Stengart were relatively simple. Marina Stengart was an employee of Loving Care who was provided with a laptop for company related work. The employee handbook of Loving Care alerted employees that emails were considered part of the company's business records and were to used principally for business purposes. Athough employees were cautioned against considering such communications either private or personal, the handbook explicitedly permitted occasional personal emails. Stengart was not a happy employee. While contemplating legal action against her employer, she used her company laptop to access her private, password-protected Yahoo mail account through the internet to communicate with her attorney. When she left the company a short time later, she turned in her laptop and thereafter filed an employed related civil action against Loving Care. In response, the company's lawyers retained a forensic expert who recreated her laptop's harddrive and retrieved several of the emails exchanged between Stengart and her attorney. These emails were eventually identified in the company's discovery responses, which drew a vigorous objection by the plaintiff. The Supreme Court was faced with the specific question of whether these emails were protected by the attorney client privilege and the broader question of under what circumstances an employer may search for and use the contents of email communications between an employee and her attorney when those communications are facilitated by the company's electronic resources. A sticky wicket indeed. Siding with the employee and advocates of privacy in this electronic age, the Supreme Court ruled that Stengart had a reasonable expectation of privacy under the circumstances. Although the company provided and presumably owned the laptop, she used her private, password-protected Yahoo email account --not the company server or email system-- to communicate with her attorneys. In addition, the company employee handbook was ambiguous in its email policy. On the one hand, the handbook cautioned against any privacy expectation when using the internet or exchanging emails while, on the other hand, it permitted occasional personal email use. On the balance, the court found that the employee's right to confidential communications with her attorney trumped the company's absolute right to monitor and access all email communications assisted by company resources. Stengart provides important guidance on the scope of an employee's legitimate privacy expectations in the work place when electronic communications are involved. While an employer should use care in formulating a clear and well defined electronic use policy in its handbook, there are limits to a company's legal right to search for and use an employee's personal email exchanges no matter how what the handbook states. If you have any questions about this post, please contact Paul Clark at pclark@wcmlaw.com http://www.judiciary.state.nj.us/opinions/supreme/A1609StengartvLovingCareAgency.pdf Previous Next Contact

News Spotlight on Broadway Theater's Duty to Pedestrians (NY) November 8, 2018 < Back Share to: A theatergoer forced into the street due to a crowded lineup loses her bid to be compensated for her injuries that occurred not on that crowded sidewalk, rather in the street. The First Department has upheld a Manhattan Supreme Court Justice's grant of summary judgment to defendant landowner in Quigley v Nederlander Org., Inc, where plaintiff injured in front of a Broadway theatre. Plaintiff testified that upon arriving at the theatre, she and her group were directed to join the line to enter the building. As plaintiff followed her group to the back of the line, she stepped onto the street and her heel was caught in a crack between two metal plates causing her to fall. Plaintiff alleged that the theater was negligent because she forced to maneuver her way through a crowded sidewalk onto the street. Defendant theatre owner, Nederlander Organizations, Inc. d/b/a The Lunt-Fontane Theatre, established entitlement to judgment as a matter of law. Defendant was not on notice of any dangerous crowding condition or of a hazardous condition on the street close to the area where patrons stood in line. Notably, plaintiff did not identify that an overcrowding condition restricted her movement or that defendant directed her to walk on the street. Plaintiff acknowledged that the sidewalk traffic was made up of pedestrians and patrons and that the crowd was tame. The court noted that, even if the entire width of the sidewalk had been overtaken by the crowd, defendant owner still could not be liable for plaintiff’s injuries absent prior notice of a dangerous condition. Further, it was unforeseeable that directing plaintiff to join the line would have placed her in harm’s way. Thus, since plaintiff was unable to raise a triable issue of fact as to defendant’s negligence, the First Department upheld summary judgment, based on evidence showing that plaintiff’s own culpable conduct in attempting to strategically maneuver her way through the crowd and ultimately caused her injuries. We see an increasing number of cases involving pedestrians who claim injuries due to sidewalk configurations. This case clarifies the landowner's duty for future litigation. Thanks to Theresa Dinh for her contribution to this post. Previous Next Contact

News Labor Law 240 Applied to Sprinkler Maintenance Contract Where Modifications to System Involved “Significant Physical Change" April 19, 2017 < Back Share to: Courts keep on expanding the reach of Labor Law 240’s applicability. Even the sacred “routine inspection and maintenance” work is now expanding. In Concepcion v. 333 Seventh, LLC, the building hired plaintiff’s employer to “routinely conduct inspections and maintain the building’s sprinkler system.” On May 1, 2015, plaintiff and his helper were at the building to modify the sprinkler to make it code compliant. The work was performed pursuant to the maintenance contract. There was no construction or renovation performed in connection with this work. The building’s superintendent directed plaintiff to the fourth floor and provided a 6-foot A-frame ladder. Mike, Plaintiff’s helper held the ladder while plaintiff worked. After the helper left to retrieve a piece of pipe, the plaintiff felt the legs of the ladder move forward causing him to lose balance and fall to the floor. Defendants moved summary judgment on several grounds, including that Labor Law §240(1) was inapplicable since plaintiff was performing routine maintenance, while Labor Law §240(1) affords protection to workers engaged “in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or structure.” The court found that since plaintiff’s intended work that day included installing wheel assemblies and water flow switches, relocating drain lines and removing old drain lines there was a significant physical change to the building’s sprinkler system, more than routine maintenance. Defendants argued that the plaintiff was performing routine maintenance as required by the service estimate from 2013. The Court found this insufficient to raise a triable issue of fact since the estimate from May 2013 did not specifically mention the work plaintiff was performing on the date of the accident. This was a lower court decision. It remains to be seen whether it holds up on appeal. The case, however, is venued in the First Department, which is notorious for expanding Labor Law 240 application. Thanks to Hillary Gomez for her contribution to this post.     Previous Next Contact

News No Right to Jury Trial Under NJ Insurance Fraud Protection Act October 17, 2013 < Back Share to: In Allstate New Jersey Ins. Co. v. Lajara, the Appellate Court was faced with the question as to whether the Insurance Fraud Protection Act (IFPA) provided the litigants with the right to a jury trial. The defendants allegedly concocted an elaborate scheme to defraud the plaintiff insurers of millions of dollars in personal injury protection (PIP) benefits through treatment of bogus injuries and staged automobile accidents. Upon discovering the scheme, the insurers filed suit under the IFPA. Although the original complaint contained a demand for a jury trial, it was subsequently amended, dropping the demand. The defendants, however, asserted a right to a jury trial, arguing that, though not expressly stated, the right is implicit under the New Jersey constitution. The trial court denied defendants’ claim, resulting in appeal. In upholding the lower court’s decision, the Appellate Court looked to the specific language of the IFPA and the legislative intent. The Court determined that, as with other statutes, if the legislature had intended to create a right to trial by jury, it would have been included in the Act’s construction. Importantly, the Court highlighted that the IFPA was designed in part to help insurers control the cost of fraud -- and that jury trials were not necessary to help with that goal. Thanks to Emily Kidder for her contribution to this post. If you would like more information please write to Mike Bono. Previous Next Contact

News Gist Of The Action Remains Useful In PA Motion Practice May 13, 2022 < Back Share to: In Moravia Motorcycle, Inc. v. Allstate Insurance Company, plaintiffs brought the following claims in connection with damage sustained to a motor home: (1) negligent misrepresentation; (2) breach of contract; and (3) bad faith. Allstate moved for summary judgment on Counts I and III. The claim arose from a curious scenario, as the plaintiffs’ motorhome was parked in a lot they owned when a tree branch fell on the roof, causing serious water damage. In Count I, plaintiffs alleged Allstate was negligent by misrepresenting the status of the policy by, among other things, failing to fully advise as to the actual terms of coverage and failing to inspect the motor home in a workmanlike manner, which led to additional damages associated with mold and electrical issues, and eventually, complete loss of the motor home. Specifically, it was alleged that an adjuster originally verbally indicated the claim was covered, and the plaintiffs thereafter started the repair process on their vehicle at an approved mechanic. In the meantime, Allstate sent a second adjuster and inspector and denied the claim entirely. Allstate argued plaintiffs’ negligence allegations should be dismissed under the gist of action doctrine, as the duty Allstate owed to plaintiffs arose pursuant to the contractual relationship (Count II) between the parties, not from a separate societal duty as would be necessary in tort. The court agreed and dismissed Count I, stating, “[i]f Allstate wrongly denied coverage, Plaintiffs have a claim for breach of contract.” In Count III, plaintiffs alleged Allstate engaged in bad faith by stating the loss was covered, only later to inform plaintiffs, without explanation, the loss was in fact not covered. This allegation alone was sufficient to overcome Allstate’s Motion to Dismiss pursuant to Rule 12(b)(6) as to Count III. This decision highlights the gist of action doctrine as an important tool in the preliminary stages of litigation and the importance of maintaining one, consistent message. Thanks to Richard Dunne for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News COVID-19 Business Interruption Insurance Coverage is Far from Settled in Pennsylvania April 8, 2021 < Back Share to: Needless to say, COVID-19 business interruption coverage has been a hot topic for insurers and policyholders alike. This past week, the Allegheny County Court of Common Pleas granted summary judgement in favor of policyholder plaintiffs and denied the defendant insurers’ motion for summary judgement in a class action lawsuit seeking coverage in Timothy Ungarean v. CNA et al. (further analysis here Only the Beginning? Pennsylvania Trial Court Finds Coverage for COVID-Related Business Losses). However, this opinion found no favor with the Eastern District of Pennsylvania. In four consolidated cases, including MilkBoy Center City LLC v. The Cincinnati Insurance Co. et al. Judge Michael Baylson held that four local businesses, a bar, a catering service company, a roller-skating park and a gym, all failed to show that they incurred "direct physical loss." Each had an insurance policy with Cincinnati Insurance containing identical language for trigger of coverage. Relying on Third Circuit precedent, Judge Bayslon held that, “policy language may not be stretched beyond its plain meaning to create an ambiguity.” Judge Bayslon also made note that the vast majority of federal courts have ruled consistently that coverage is not triggered by the COVID-19 pandemic and the resulting shut down orders due to the lack of “physicality.” In the other case out of the Eastern District of Pennsylvania, Judge Wendy Beetlestone agreed with Judge Baylson. In Tria WS LLC et al. v. American Automobile Insurance Co., Judge Beetlestone found that the policyholder was unable to show a physical cause for their loss. Additionally, the court pointed to additional language in the policy to support its decision. “The terms ‘repair,’ ‘rebuild,’ and ‘replace’ strongly suggest that the insured property must have suffered some negative change in its physical condition rendering the property unsatisfactory and requiring restoration.” Covid 19 decisions are obviously still not completely settled, and while the decision in Ungarean appears to be an outlier, until higher courts, including Circuit Courts and Supreme Courts begin to make their rulings on these issues, policyholder businesses and insurers are in a state of limbo. Thanks to Ryan Geib for his contribution to this article. For more information on Covid-19 business interruption insurance questions, please contact Tom Bracken. Previous Next Contact

News Motorcycle Accident Victim Run Over By a Car Entitled to UIM From Auto Insurer (PA) August 7, 2013 < Back Share to: A unanimous three-judge panel for the Pennsylvania Superior Court declined to apply an auto insurance policy’s “household-exclusion” to an incident where a woman was first thrown from a motorcycle and then hit by an oncoming vehicle. In September 2008, Mr. and Mrs. Swarner were involved in a head on collision with a pickup truck driven by Joshua Bender on an on-ramp in Juniata County. On impact, both were ejected from the motorcycle. Mrs. Swarner landed in a lane of travel where she was subsequently run over. Mutual Benefit Group insured the Swarmers with respect to auto coverage for their two cars and a truck. The insurance included stackable UIM coverage. However, Mr. Swarmer insured the motorcycle separately. Thus, Mutual Benefit Group disclaimed coverage for the accident which it deemed as related to the motorcycle usage. In Swarmer v. Mutual Benefit Group, the insurer argued for the application of the four factors established by the Supreme Court in Utica Mutual Insurance v. Constrisciane, often utilized in determining whether an injured party was in fact “occupying” the vehicle at the time of loss. These factors include: a causal connection between the injury and use of the vehicle, “reasonably close” proximity to the vehicle of the person claiming coverage, the person must be vehicle-oriented rather than sidewalk or highway oriented and the person must be “engaged in transaction essential to the use of the vehicle at the time.” While a Juniata County judge granted Mutual Benefit Group’s motion for summary judgment on this basis, the Superior court reversed and remanded this decision in favor of a plain-meaning analysis of the terms “occupying a vehicle.” In doing so, the court declined to follow Utica, but rather adhered to precedent established by Allstate Fire and Casualty Insurance v. Hymes – holding that a plain meaning analysis applied to the interpretation of policy exclusions. Further, the court upheld jurisprudence directing judges to construe insurance policies broadly in terms of coverage, but policy exclusions contained therein more narrowly. Judge Mary Jane Bowes noted that Swarner is a case strictly concerning a policy exclusion, and is not about granting broad–based UIM/policy coverage. The court in turn viewed this case as two separate and distinct accidents for the purposes of determining enforceability of the household exclusion. As such, because the injured party in this case was no longer “on” or in the process of “getting in, on, out or off” the vehicle when she was run over, she had ceased to occupy the vehicle within the meaning of the household policy exclusion. Special thanks to Samantha Epstein for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News "Arising Out of Bodily Injury Sustained By An Employee Of Any Insured" Examined in NY. July 23, 2010 < Back Share to: In the case of Baker v. Safety Casualty, American Safety insured Point Recycling. Point Recycling was a tenant in a building owned by Baker. Robert Ruiz, a Point employee, was injured working in Baker's building. He sued Baker. Baker tendered to Safety as it was a named additional insured under that policy. Safety disclaimed based upon an exclusion that barred from coverage all claims "arising out of bodily injury sustained by an employee of any insured." The trial court rejected that argument, but the 2nd Dept. reversed and found for the insurer based upon the exclusion. Please contact Bob Cosgrove at rcosgrove@wcmlaw.com for any questions about this post. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9702877 Previous Next Contact

News Home Is Where The Heart Is (NJ) July 11, 2019 < Back Share to: In Cohen v. Starbucks, Starbucks moved to dismiss plaintiff’s action for lack of personal jurisdiction, which was filed in the United States District Court for the District of New Jersey. Plaintiff, a resident of New Jersey, was a customer at a Starbucks in Mexico. At that store, plaintiff fell and suffered an injury. As a general matter, a court must have personal jurisdiction over a defendant. There are two types of personal jurisdiction: (1) general; and (2) specific. A court with general jurisdiction may hear any claim against an out-of-state defendant, even if the underlying claim occurred in a different state. However, to assert general jurisdiction, a defendant’s contacts with the forum state must be “continuous and systematic” and only a limited set of affiliations with a forum will render a defendant amenable to all-purpose jurisdiction there. For a corporation, the paradigm forum for the exercise of general jurisdiction is the state in which the corporation is fairly regarded as “at home.” A corporation is “at home” in a forum state if it is incorporated there or has its principal place of business there. On this basis, Starbucks moved to dismiss the complaint on personal jurisdiction grounds, arguing that its “home” is Washington State where it is incorporated and has its principal place of business. Plaintiff opposed the motion, arguing that Starbucks has continuous and systematic contacts with New Jersey. The District Court disagreed, noting that Starbucks is incorporated and has its principal place of business in Washington. The Court ruled that Starbucks' presence in New Jersey did not render it “at home” in New Jersey. Accordingly, the Court transferred the case to Washington. This case is a good illustration of how difficult it is to assert general jurisdiction. An exercise of general jurisdiction is reserved for an exceptional case. Such an exceptional case would be a corporation that relocates its headquarters while remaining incorporated in another state. A litany of stores operated in a state is insufficient for a court to exercise general jurisdiction over a claim involving an accident not occurring in the forum state. Thank you to Michael Noblett for his contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact

News Product Recalls on the Rise? May 23, 2011 < Back Share to: We have spilled much ink over the past six months commenting on the potential implications of the FSMA. However, it appears that not only food recalls are on the rise. According to recent reports, new regulations (like the FSMA) and ease of access to product complaints, are driving the increase. Brand protection recalls are also trending upwards. Food for thought for Underwriters when assessing their appetite for risk in product recall coverage. For more information about this post, or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact