Wade Clark Mulcahy LLP

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

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

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

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

News 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 Plaintiff Did Not Use Their Lanyard on a Scaffold…It’s The Defendants’ Fault Anyway August 5, 2024 < Back Share to: Labor Law cases can be very difficult for defendants to beat as many of the specific statutes in it, including the two most common, § 240(1) and 241(6), include vicarious liability for property owners and contractors. In cases with the former, even if a contractor or property owner gives an employee safety equipment sufficient to protect them from an elevation-related danger, if they still get injured due to something else elevation related, they can still suffer liability. This was the case in Oscar Amaro, et al., v. New York City School Construction Authority, et al. , where even though the facts might seem like it was Plaintiff’s own fault for not properly taking advantage of the safety equipment provided by the Defendants, on appeal, they were found to be liable for his injuries anyway. In this case, Plaintiff was injured while working on a scaffold and walking over a wooden plank. Plaintiff was carrying a pipe and a clamp at the time that he was bringing to a coworker. While Plaintiff was wearing a four-foot long lanyard that would prevent him from falling for the twenty-foot walk to his co-worker, he did not unhook and rehook the lanyard due to his hands being full. Approximately five feet from his coworker, Plaintiff stepped on the wooden plank which broke under him and caused his injuries. The lower Court initially denied the Plaintiff’s motion for partial summary judgment on liability, finding a question of fact existed if he was the sole proximate cause of his injuries by failing to reattach the lanyard and if he was a recalcitrant employee for failing to do so. As a note, while comparative negligence is not a defense to Labor Law § 240(1), it IS a defense to the claim that Plaintiff was the sole proximate cause of his injuries. On appeal, however, the Second Department of the Appellate Division reversed, finding Plaintiff was entitled to summary judgment. The Appellate Division found that the wooden plank constituted an elevation-related danger which would trigger the statute, even in spite of him failing to rehook the lanyard. They found the Defendants failed to prove Plaintiff was recalcitrant as they found they did not provide any proof that the Plaintiff was instructed to use the lanyard in that way and simply chose not to. As demonstrated here, no matter how much safety equipment is provided to a worker, all it takes is one thing to fail or be missing to open up liability under the scaffold law. Amaro v. City of New York .pdf Download PDF • 764KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News NY Courts to Begin Adjudicating Non-Essential Matters on 4.13.20 April 10, 2020 < Back Share to: As we delve into our second month of COVID-19 restrictions, social distancing, and closed courts, we have been monitoring court updates throughout NY, NJ and PA. Our April 3, 2020 update is linked here. On April 9, 2020, J. Marks, the Chief Administrative Judge in NY, issued an updated indicating that, effective April 13, 2020, Courts will work remotely to address pending, non-essential matters. Specifically, the Courts will look to decide pending motions, conference pending, non-essential matters, and resolve pending discovery disputes. The Courts will not be accepting new filings yet, with the implication being, the Courts will address pending backlog before "opening the floodgates" of new motions and other filings which have been piling up over the past several weeks. Hopefully, this Order represents the first step toward a return to normalcy in the coming weeks. In the interim, we'd like to wish a Happy Passover and a Happy Easter to all who celebrate. Previous Next Contact

News Labor Law 240(1) Does Not Apply To Scaffold Accident Where Fall Was Caused by Separate Hazard (NY) January 27, 2023 < Back Share to: New York Labor Law section 240, the so called “Scaffold Law”, imposes strict liability on property owners and contractors where a construction worker sustains an elevation-related injury. However, section 240 does not apply to all worksite hazards and courts will examine the specific facts to determine if the section will apply. For example, in Krarunzhiy v. 91 Cent. Park W. Owners Corp., the Appellate Division, Second Department addressed the issue of whether a defendant owner violated Labor Law 240(1) when plaintiff fell while working in the defendant’s building. At the time of the accident, plaintiff was working as a mason and painter, and fell over a rug as he descended a temporary staircase from an upper to a lower scaffold. The trial court awarded summary judgment to the defendant. The Second Department affirmed, holding that Section 240(1) did not impose liability under the circumstances. The Court observed that "[T]he extraordinary protections of Labor Law § 240(1) extend only to a narrow class of special hazards and do 'not encompass any and all perils that may be connected in some tangential way with the effects of gravity.'" The Court added that the “core objective of the statute in requiring protective devices for those working at heights is to allow them to complete their work safely and prevent them from falling. Where an injury results from a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance, no section 240(1) liability exists." Give these principles, the Court held that the owner established that plaintiff’s injury was unrelated to the need for a safety device, and that there was no indication that the scaffold stairs did not allow him to “safely complete his work at a height.” The deficiency with the device “did not interfere with or increase the danger of injury in the performance of his elevation-related task” and therefore plaintiff’s Labor Law 240(1) claim against the owner was dismissed. This decision serves as a reminder that not all elevation-related falls on a construction site will trigger section 240 liability. When defending a Labor Law 240(1) claim, defendants should investigate if a plaintiff’s fall was from a hazard that is unrelated to the plaintiff’s risk. Thank you to Corey Morgenstern for his contribution to this post. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

News What Agent Knows, Insurer Knows, According to NJ Court June 5, 2009 < Back Share to: A recent appellate ruling in New Jersey has once again highlighted the principle that an insurance carrier may be bound by the actions of a broker or agent with underwriting authority. In Scottsdale Ins. Co. v. Woolsulate Corp., (App.Div. 2008), a liability carrier gave its broker underwriting authority with clear underwriting requirements, including a refusal to deal with asbestos risks. Nevertheless, the broker issued a policy on behalf of the carrier despite knowing (according to the court’s findings of fact) that the insured had been subject to asbestos-related claims in the past. The New Jersey Appellate Division ruled that the carrier was required to provide coverage for asbestos-related claims made against its insured. http://lawlibrary.rutgers.edu/courts/appellate/a4815-06.opn.html Thanks to Mendel Simon for his contribution. Previous Next Contact

News Police Report and Settlement Check Inadmissible in Auto Case (NJ) September 15, 2017 < Back Share to: Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo, The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car. At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff. On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police report. Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness. In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News NY App Div Rules No Issue of Fact in Plaintiff's Labor Law Claims June 17, 2010 < Back Share to: In Hernandez v. 42/43 Realty LLC, the First Department upheld the lower court’s decision granting plaintiff’s summary judgment as to liability on her cause of action pursuant to Labor Law §240(1), stating that defendants failed to establish a question of fact as to the proximate cause of plaintiff’s injuries. In Hernandez, plaintiff was a field technician hired to install digital subscriber line jacks in residential building, which was accomplished by plaintiff ascending a ladder in the sub-basement, while a co-worker on the upper floor fed her the cable through the ceiling. On the date at issue, after plaintiff secured the ladder and climbed it, the ladder then shook and toppled over, causing her to fall and sustain injuries. Defendant alleged that plaintiff provided two conflicting accounts of the event during her two depositions. However, the appellate court found that plaintiff’s deposition did not contain any significant conflicts. Furthermore, the appellate court noted that defendants had not produced any testimony from any person contradicting plaintiff’s version of what took place, nor did they produce any expert opinion concerning the lack of danger how plaintiff executed her job. The appellate court held that defendants had not supported their argument that there existed a question of fact with respect to their liability under Labor Law §240(1). Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05266.htm Previous Next Contact

News Department Store Escalator Injury Lawsuit Settles for $15 Million (NJ) May 27, 2016 < Back Share to: Countless customers ride escalators in malls and retail stores every day without incident. Unfortunately, that was not the case for ten year old Juliana Valdez. As she was riding the escalator in a New Jersey Macy’s store with her family, her leg became trapped and could not be dislodged until a bystander pressed the emergency stop button and portions of the escalator were removed. Valdez and her family sued Macy’s and the escalator maintenance company, ThyssenKrupp alleging negligence and breach of contract; her parents asserted a claim for loss of consortium. Although the District Court determined that Valdez’s parents were not entitled to damages for loss of their child’s consortium (comfort and company), the court allowed the parents to argue loss of Juliana’s services (contribution to household duties). Evidence revealed during litigation indicated that the escalator had been installed approximately 55 years prior to the accident, and was one of the oldest operating escalators in New Jersey. The Valdez family also discovered evidence that the aged escalator had not been properly maintained due to the disruption maintenance caused to Macy’s retail business operations. After 3 years of litigation for the parties, and 22 surgeries for Juliana, the Valdez family recently settled their case for $15 million dollars. Although the specific terms of the settlement have not been revealed, and neither defendant has conceded liability, the 8-figure payout speaks for itself. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact