News Worldwide Coverage Not So Worldwide October 10, 2019 < Back Share to: The Seventh Circuit Court of Appeals recently examined personal jurisdiction over worldwide insurance policies. In Lexington v. Hotai, the court held that an insurer for a bicycle manufacturer could not compel contribution from Taiwanese insurers over a cycling injury settlement. The initial coverage dispute arose out of severe injuries that a Louisiana resident sustained while riding a Trek bike he rented in Texas. When the front wheel detached, he fell causing paralysis in his arms and legs. He sued Trek in Wisconsin's state court, the bicycle manufacturer, as well as Lexington, the insurance company that insures Trek through a commercial general liability and umbrella policy and defended Trek in the suit. After the case settled, Lexington sued Zurich and Taian, two Taiwanese insurance companies, for reimbursement. The District Court dismissed the case for lack of personal jurisdiction and Lexington appealed. In affirming, the Seventh Circuit found that while Wisconsin’s long-arm statute reached the Taiwanese insurers, the suit failed to meet the Constitution’s due process requirement that the defendants have sufficient “minimum contacts” that they “purposefully availed” themselves to Wisconsin’s jurisdiction. In so doing, the court rejected Lexington’s argument that this requirement was met by the policy’s “worldwide coverage” provisions, finding that foreseeability of a Wisconsin lawsuit alone is not enough. This case carries big implications for those seeking jurisdiction over foreign companies, especially foreign insurers. It serves as a reminder that worldwide coverage does not necessarily mean worldwide jurisdiction. Previous Next Contact

News You Still Need Evidence -- Even in Brooklyn. October 15, 2009 < Back Share to: In Andrews v. New York City Hous. Auth., the decedent was killed in an apartment fire, and his family sued the New York City Housing Authority, which managed the apartment building, for personal injuries and wrongful death. The trial court denied the Housing Authority’s motion for summary judgment. The Appellate Division reversed the trial court’s decision, holding that there was no evidence of negligent maintenance by the Housing Authority. The Housing Authority showed that the fire marshal determined that the cause of the fire was an electrical cord that ignited combustible material, not the nearby outlet or receptacles. The Appellate Division found that plaintiff failed to raise a question of fact and rejected plaintiff’s fire expert’s assertion that the fire originated from an electrical fault within the outlet. Plaintiff's expert provided no factual support for his conclusions and failed to provide an explanation as to how the fire marshal’s findings were incorrect. This decision reinforces the court’s position that mere speculation and unsupported allegations are insufficient to defeat a motion for summary judgment. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07213.htm Previous Next Contact

News "Brawl" At NY Hockey Game Not Assumed Risk October 5, 2009 < Back Share to: Plaintiff was injured at Nassau Coliseum while attending a charity hockey game. During the game, T-Shirts were tossed into the stands and the plaintiff was knocked over in all of the commotion caused by the other spectators trying to catch the tossed T-Shirts. Defendants moved for summary judgment, using an assumption of risk defense. The Appellate Division, Second Department, though not all in agreement on the reason, denied defendant’s motion for summary judgment. The majority concluded that defendants did not prove as a matter of law that they were entitled to summary judgment. In order to prove that plaintiff assumed the risk, they had to prove that “injury-causing events” were a known and foreseeable consequence of attending a hockey game. The majority concluded that defendants had not proven the events were a known and foreseeable consequence. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06791.htm Previous Next Contact

News Lack of Boundary or Lack of Claim (NY) June 25, 2021 < Back Share to: In New York, a plaintiff commenced an action against a School District for alleged personal injuries sustained by her child while he was engaged in a drill during school basketball practice. In Secky v. New Paltz Central School District, the New York Supreme Court denied defendant's motion for summary judgment dismissing the complaint. The plaintiff’s child in Secky was participating in a basketball drill that did not use the boundary lines of the court. Accordingly, players continued to play even when the ball when out of bounds. Following a missed shot, the child went to retrieve a ball that had left the court. As the child approached the ball, around 2-4 feet from the retracted bleachers, he eased up and reached for the ball. While this was happening, a teammate bumped the child from behind face first into the bleachers. In New York, a person who voluntarily participates in a sport or recreational activity assumes the risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. However, the Plaintiff argued that the inherent risks of participating in basketball were increased by the elimination of the boundary line during the drill. On appeal, the Appellate Court concluded that the risks inherit in playing basketball were not increased by the removal of boundaries for the drill. The plaintiff provided an expert witness who claimed that the drill could have been safer by utilizing the boundary lines of the basketball court. The Appellate Court determined this assessment was insufficient to raise an issue of fact, especially because plaintiff’s expert had not proved that defendant violated a specific industry standard. As a result, the Appellate Court reversed the lower courts decision to deny the motion dismiss. This matter confirms that a defendant should always ensure that they are following specific industry standards. Because the plaintiff in this case was unable to show that the school district had not violated industry standard, her case was dismissed. Thanks to Cory Maiorana for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News New Car Stacks UIM Coverage Unless Waived (PA) April 12, 2017 < Back Share to: In Pergolese v. The Standard Fire Insurance Co., the Pennsylvania Superior Court was tasked with determining whether an insured was entitled to stacking of underinsured motorist benefits. At issue was whether an added vehicle to a preexisting insurance policy provided coverage under its general terms or triggered that policy’s after-acquired vehicle provision. The distinction was significant with respect to whether the insurer was required to obtain a new stacking waiver. In the early 1990s, the Pergoleses purchased an auto insurance policy from Standard. That policy contained a continuous after-acquired vehicle provision. Over the years, the Pergoleses replaced and sometimes reduced the inventory of their vehicles. In May of 1996, the Pergoleses had four vehicles insured under their policy. The Pergoleses also signed a rejection of stacked UIM in May of 1996 in relation to the policy. In April of 1998, the Pergoleses contacted their insurance agent and requested insurance coverage for a vehicle that they were purchasing that day but did not yet own. Their agent provided them with an insurance card for the vehicle and amended the Pergoleses’ auto insurance policy’s declaration page to include the new vehicle in addition to the three that were already covered under the policy. Standard did not request a new waiver of stacked UIM coverage from the Pergoleses at that time. In 2001, Mr. Pergolese suffered severe injuries when he was rear ended by a drunken driver. He submitted a claim to Standard and asserted that he was entitled to stacked benefits. Standard denied the stacked benefits claim, and the Pergoleses filed a declaratory judgment action. After discovery, the parties filed cross motions for summary judgment. The court denied Standard’s and granted the Pergoleses’ motion. The appellate court affirmed relying on its opinion in Bumbarger v. Peerless Indem. Ins. When an insured takes ownership of a vehicle and simultaneously informs his insurer of the new vehicle, the language and purpose of the after-acquired vehicle provision in the policy is never triggered. An after-acquired vehicle provision merely extends existing coverage to a new vehicle until the insured notifies the insurer that he wishes to insure the new vehicle under his policy with the insurer. The after-acquired vehicle clause extends temporary, stop-gap coverage, thereby protecting the insured until the policy can be amended. However, once an insured advises its insurer that an new auto is to be added, the after-acquired vehicle provision is not applicable. In such event, the Pennsylvania Supreme Court’s holding in Sackett v. Nationwide, 919 A.2d 194 (2007) (“Sacket I”) is controlling. There the Supreme Court held that the addition of a new vehicle to an existing multi-vehicle policy constitutes a purchase for which the insurer must obtain a new waiver of stacked coverage. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Expert Opinion Not Worth Bus Fare (NY) May 9, 2019 < Back Share to: In Salas v. Adirondack Transit Lines, Inc., a personal injury action, plaintiff sued the defendant bus company claiming they breached their duty to provide her with a safe place to disembark from their bus. The Second Department affirmed summary judgment in favor of the bus company and in doing so utterly rejected plaintiff’s expert affidavit submitted in opposition to the underlying motion. Plaintiff’s expert claimed there is a standard operating procedure in the bus industry where the bus driver offers assistance and warnings to customers when they are boarding or alighting the bus. The Second Department rejected the expert’s affidavit, however, observing he didn’t establish a sufficient foundation to show such an industry standard or practice in fact existed, nor did they cite a regulation or statute the defendant violated to cause the accident. Litigants can retain an expert to support almost any position for almost any issue, however, often the mere existence of an opposing expert report or affidavit is enough for a defendant to abandon their hopes of winning on summary judgment. While it’s true that courts are reluctant to break ties in Battles of Experts at the summary judgment phase, defendants should not abandon good motions in the face of an opposing expert opinion. Rather, as Salas shows, a defendant can prevail outright even if plaintiff hires an expert in an attempt to defeat the motion if the expert does not provide a sufficient basis for their opinion—and if a defendant properly attacks that opinion on reply. Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Be Careful What You Wish For (NY) December 21, 2018 < Back Share to: In Karras v Margaret Tietz Ctr. for Nursing Care, Inc. the Court assessed a motion to re-argue a prior decision to dismiss for lack of capacity. The initial suit listed “Marina Karras, as Proposed Administratrix of the Estate of Georgina Goyanes, deceased” as the plaintiff. The Court also amended the initial caption to eliminate the word proposed. Though Courts in New York are often liberal in their allowance to amend and cure defects. However, in this case the Court determined that this initial error could not be cured, as the plaintiff did not have standing the bring the suit, even though it was demonstrated that Marina Karras did eventually gain Letters of Administration and became the administratrix of the estate of Georgina Goyanes. This case serves as an important lesson for litigators who do not specialize in estate work when dealing with a deceased litigant. Often the practice of law leads us to encounter close relatives of our clients, some of which we may work with often. Notwithstanding how inevitable it may seem that a close family member becomes substituted for a client, litigants must allow that process to formalize before taking further action. Similarly, when an adverse party deceases, do not necessarily trust the actions of adverse counsel, as they may have overlooked formalized proceedings and purport to represent someone who they have no fiduciary or legal relation to. Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News NY Appellate Division Rules Leaseholder Can Be Responsible for Sidewalk Fall February 23, 2010 < Back Share to: In Abramson v. Eden Farms Inc., the plaintiff tripped and fell over a cracked portion of the sidewalk abutting a store leased by Eden Farm. The plaintiff brought an action against Eden Farm for the personal injuries she suffered in her fall. Eden Farm moved for summary judgment arguing that it did not create the alleged defect in the sidewalk and that, as a leaseholder, it did not have a statutory duty to maintain the sidewalk in a reasonable safe condition. The trial court denied the motion and Eden Farms appealed. Upon appeal, the First Department affirmed the denial of Eden Farms motion. In its decision, the court noted that Eden Farm had ignored the provision of its lease that required Eden Farms to make all repairs and replacements to the sidewalks and curbs adjacent to the store. The First Department also found that there was a legal question whether the lease was “comprehensive and exclusive” that it would have reassigned the landowner's duty to maintain the sidewalk to Eden Farm. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_01418.htm Previous Next Contact

News New Jersey Tolerates Mulligans December 4, 2013 < Back Share to: Here, in America, among friends, mulligans are part of the game. In fact, President Clinton refused to count "do-overs" when calculating his score. In Scotland, by contrast, a mulligan off the tee, even among friends, is known as "Hitting Three." In Schick v. Ferlito, the New Jersey Supreme Court ruled that taking a mulligan when another golfer was in the "line of fire" (and failing to yell fore) constituted "reckless" conduct, and thus liability attached. In other words, in the context of recreational sports, to constitute a tort, conduct must exceed the level of ordinary negligence. A recent New Jersey decision, Corino v. Duffy, et. al., seemingly endorsed the free grant of mulligans among playing partners. Corino suffered a serious eye injury after being struck by a mulligan sliced off the tee box adjoining the fairway on which Corino was playing. According to Corino, he carefully watched the threesome on the adjoining tee hit their drives. Unaware that Duffy's playing partners allowed Duffy to take a mulligan, Corino took dead aim on his iron shot to the green, only to be struck by Duffy's mulligan. In light of Schick, Duffy sued the threesome claiming that all three engaged in reckless conduct by allowing a mulligan in the first instance, and then failing to yell fore as Duffy's shot sliced toward Corino. As the matter unfolded, Duffy's playing partners turned against him, claiming that Duffy struck the mulligan that injured plaintiff, and that they had no duty to yell fore. The trial court agreed. Reading the Rules of Golf strictly, the court ruled that only the "player" who strikes the errant shot has the duty to yell fore. Beyond that, the court suggested that only a jury could make a determination of whether Duffy's failure to yell fore constituted reckless conduct. Presumably, the court felt that, unlike Schick, Corino was not directly in the "line of fire," and thus presented a much closer question of fact. While it's true that the Rules of Golf impose upon the player the duty to yell fore when an errant shot is struck, the rules also mandate that the ball must be played as it lies. If Duffy had followed the rules, Corino would have played on without injury. And that is the irony of New Jersey's golf jurisprudence.   Previous Next Contact

News A Missed Opportunity by Defense Counsel in PA May 29, 2020 < Back Share to: In Shiflet v. Lehigh Valley Health Network, Inc., the Pennsylvania Supreme Court affirmed the trial court’s $2,391,620 verdict in favor of the plaintiff under the “general-verdict rule,” which states that “when a jury returns a general verdict involving two or more issues, and the verdict is supported as to at least one issue, the verdict will not be reversed on appeal.” The plaintiff in Shiflett underwent knee surgery at Lehigh Valley Hospital. While recovering from her surgery in the hospital, she fell out of her hospital bed and fractured her left tibia, which went undiagnosed by the nursing staff. She was then transferred to a rehabilitation unit. While undergoing rehabilitation therapy, the tibia fracture displaced. She then underwent two additional surgeries and suffered permanent left leg injuries. The plaintiff subsequently sued the hospital for negligence. At the close of trial, the jury awarded the plaintiff $2,391,620 in damages. There was no breakdown of damages on the verdict sheet, and counsel for the hospital did not object or seek apportionment of the verdict amount. The Superior Court ruled that one of the claims upon which the plaintiff prevailed at trial was time-barred and should not have been submitted to the jury. Finding that some portion of the jury’s damage award may have been based upon the time-barred claim, the intermediate appellate court remanded the case for a new trial on damages. After its review, the Pennsylvania Supreme Court concluded the Superior Court erred in this regard, as pursuant to the “general-verdict rule” adopted by Halper v. Jewish Family & Children’s Services, 963 A.2d 1282 (Pa. 2009), the Hospital waived any entitlement to a new trial on damages when it failed to request a special interrogatory on the verdict sheet that would have permitted the jury to allocate the damages awarded on each claim Shiflett demonstrates the need for counsel to be aware of the timeliness of requesting an allocation of damages. Thanks to John Lang for his contribution to this post. Please email Heather Aquino with any questions. Previous Next Contact

News City Challenges Rejection of 9/11 Settlement April 15, 2010 < Back Share to: The 9/11 tragedy has generated a cottage industry of litigation about the definition of the term "occurrence" in a property policy, the obligations of a long term tenant to rebuild property destroyed by terrorists and the liability of owners of property and their contractors to workers who claim to have been injured in the aftermath of the 9/11 attack. After years of litigation, the City of New York and its contractors announced a global settlement with thousands of plaintiffs who seek compensation for respiratory injuries allegedly caused by the effects of 9/11. The settlement fund could reach as much as $657,000,000 if accepted by over 98% of the claimants. Judge Alvin Hellerstein rejected the proposed settlement as inadequate and prohibited the parties from implementing several key provisions in the agreement. The City of New York disputes the court's authority to approve the settlement or reject any provision in the agreement. The City has filed a notice of appeal with the Second Circuit in an effort to salvage the settlement as negotiated between the parties. If you have any questions about this post, please email Paul Clark at pclark@wcmlaw.com City of New York Appeal Pdf Previous Next Contact

News Commercial Landlord Protected by Indemnification and Risk Transfer Clause in Lease (NY) March 25, 2022 < Back Share to: New York General Obligations Law Section 5-321 provides that every agreement in connection with the lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor in the operation or maintenance of the real property shall be deemed void as against public policy. In other words, a tenant cannot agree to indemnify his or her landlord for the landlord’s own negligence in a lease in New York. There is an exception, however, allowing for the indemnification of a lessor’s negligence where the lease involves sophisticated commercial parties, negotiating at arm’s length, who agree to allocate the risk of liability between themselves, typically through insurance. The Supreme Court of New York, Bronx County, recently addressed these issues in a case involving a commercial tenant. In Titumir v. Barker Ave Estates LLC, plaintiff leased the first floor of the subject premises and sold discount hardware supplies. The lease agreement provided that plaintiff was responsible to maintain and repair the premises, fixtures, and appurtenances. In July 2017, water began to leak from the apartments above the store and the ceiling eventually collapsed, causing damage to the store, plaintiff’s goods, and an alleged loss of business. Plaintiff sued the landlord, claiming that it failed to comply with its nondelegable duty to maintain the premises and make repairs. The court disagreed and granted defendant’s motion for summary judgment based on the lease provision requiring plaintiff to maintain and repair the premises. The court held that this provision exempts defendants from any liability arising from the water leak and that since this claim involved a commercial tenancy, the lease falls within the exception to General Obligations Law Section 5-321. The court also noted that a rider to the lease required plaintiff to purchase insurance for property damage, making it clear that the parties intended to allocate risk to a third party, the insurance company. The Titumir case reiterates the law in New York that landlords and tenants are free to allocate the risks associated with commercial tenancy, including passing the risk on to the parties’ insurers. Indemnification and insurance language in such leases is important and usually dictates who bears the exposure for property damage or premises liability in the commercial setting. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact