News PA Superior Court Applies Fair Share Act to Strict Liability Action January 5, 2018 < Back Share to: The Pennsylvania Fair Share Act, enacted in 2011, regulates the apportionment of jury verdict awards for liable parties. The Fair Share Act mandates that all defendants are responsible for the share of liability apportioned to them, with the exception that a defendant could be liable for the entire award if found more than 60% liable. In plain English, any defendant with 60% or less allocated liability in a case involving the Fair Share Act is only responsible for its own culpability and cannot be made to satisfy the entire judgement if a portion of the judgment is, for whatever reason, not collectable. The Fair Share Act unquestionably includes negligence verdict awards but the Pennsylvania Supreme Court and Pennsylvania Appellate Courts , until recently, had yet to weigh in regarding the applicability of the Fair Share Act for strict liability cases sounding in tort actions. In Roverano v. John Crane Inc, the Superior Court of Pennsylvania dealt with the Fair Share Act within the context of a strict liability asbestos action where plaintiff claimed he sustained lung cancer as a result of exposure to asbestos. The trial court had decided that the jury could not apportion liability because the case involved strict liability for asbestos exposure. The Superior Court held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors. The Court held that was mandated per the legislative intent underlying the enactment of the Fair Share Act. Additionally, the Court held that the clause in the applicable statute “including actions for strict liability” is revealing. Finally, the Court found legislative history instructive as older versions of the bill included “causal negligence” but were replaced in the enacted statute with “liability”, thus allowing an inference of greater inclusion of possible actions. The Superior Court’s decision means that a “fact-finder [should allocate] liability among joint tortfeasors in all types of cases, including strict liability cases”. The Court specifically declined to weigh in how exactly to allocate liability, but that the liability allocation should not be done on a per capita basis, Revealingly, the Superior Court did note that the jury should consider evidence of any previous settlements with released defendants as part of its liability determination. Thanks to Matt Care for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Planning To Live At Premises Not Sufficient To Make Property “Residence Premises” August 29, 2011 < Back Share to: In Tower Insurance Company v. Khan, the Supreme Court, New York County held that Tower did not owe defense or indemnity to a property owner that did not live at the premises. Tower issued a homeowner’s policy to Khan that only provided coverage to a specific insured location, the “residence premises,” defined as the dwelling where the insured resides. The underlying plaintiff was injured while performing renovations at the property, and commenced an action against the insured. Tower denied coverage because the insured did not reside at the premises. The insured submitted an affidavit in opposition to Tower’s summary judgment motion indicating that she intended to reside in the property after the renovations were complete. The court therefore held that, based upon the insured’s own affidavit, the property was not a residence premises, and thus Tower did not have an obligation to defend of indemnify the insured. If you would like additional information regarding this post, please contact David Tavella at dtavella@wcmlaw.com . http://pdf.wcmlaw.com/pdf/khan.pdf. Previous Next Contact

News Limiting The Scope of A Policy’s Assault and Battery Exclusion (NJ) June 13, 2019 < Back Share to: In CMS v. AEIC, the New Jersey Appellate Division addressed the applicability of a policy’s “assault and battery” exclusion, as well as the potential impact of an insurer’s failure to timely disclaim coverage. Plaintiff CMS Investment Ventures was the owner of an apartment building in Irvington, New Jersey. CMS was insured through American European Insurance Company (AEIC). The policy contained an “assault and battery” exclusion, which barred coverage for, in part, claims “based on Assault and Battery.” In 2013, an intruder broke into one of the apartments in the building and sexually assaulted one of the tenants. Shortly thereafter, CMS reported the incident to its broker. In 2015, the tenant filed suit against CMS, alleging it breached its duty of care by failing to adequately maintain the property, failing to keep the premises safe, and by not taking precautions to protect tenants from reasonably foreseeable criminal activity. CMS sought coverage from AEIC, who ultimately denied coverage based upon the “assault and battery” exclusion. On appeal, the court focused on whether the tenant’s claim was “based on” an assault and battery, such that the exclusion would bar coverage. The court noted that other cases discussing assault and battery exclusions contained the phrase “arising out of”, to which courts have applied a “broad definition.” However, it noted, even some of these cases have limited the application of such exclusions so as not to cover all claims proximately caused by the excluded act. The court then turned to the dictionary’s definition of “based” and analyzed the sentence structure of the exclusion, and held that “the exclusion applies to claims, demands or suits where ‘Assault and Battery’ forms or serves as the claim’s foundation.” Because the tenant’s claim was not based only on sexual assault, the court held that the exclusion did not apply. Specifically, the tenant had sued under a premises liability theory, i.e. negligence, which was not encompassed by the exclusion. Additionally, the court conclude that CMS was entitled to attorneys’ fees based on AEIC’s untimely disclaimer. This case is notable insofar as it is one of the few cases analyzing the specific term “based on” in the context of an insurance exclusion. Given that New Jersey courts have seemingly interpreted the phrases “arising out of” and “based on” in differing ways, CMS is a boon to policyholders who are seeking coverage for claims further removed from the excluded act at issue. Additionally, this case also highlights the potential consequence of an insurer failing to timely disclaim coverage in New Jersey. Thank you to Doug Giombarrese for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Museum Fails To Prove Latent Defect (NJ) August 18, 2023 < Back Share to: In Agosto v. Museum of Modern Art, 2023 Slip. Op. 04292 (2d Dep’t Aug 16, 2023), the Appellate Division, Second Department, affirmed a lower court decision denying the defendant museum’s motion for summary judgment on plaintiff’s common law negligence and Labor Law § 200 claims. Plaintiff, an HVAC technician, was conducting routine preventative maintenance when a hot water pipe burst and she fell from her ladder. Plaintiff brought common law and Labor Law §§ 200, 240(1), and 241(6) claims against the museum. The parties cross-moved for summary judgment. The lower court denied plaintiff’s motion for summary judgment on her §§ 240(1) and 200 and common law claims, but partially granted defendant’s motion in dismissing plaintiff’s §§ 240(1) and 241(6) claims. The lower court found that plaintiff failed to allege that she was engaged at the time of her accident in a Labor Law-protected activity and that did not allege any Industrial Code violation. Notably, although plaintiff moved for summary judgment on her common law and § 200 claims in the lower court, plaintiff at the appellate stage abandoned that argument and instead argued that the lower court got it right that there remain questions of fact whether the museum created or had notice of the of the defective pipes. The parties at oral argument contested whether any defect that led to plaintiff’s injuries was latent. The Second Department held, consistent with its previous holding in Alexandridis v. Van Gogh Contr. Co., 180 A.D.3d 969 (2d Dep’t 2020), that the defendant-museum failed to establish the defect was latent because the museum could not show that “had it conducted a reasonable inspection, the alleged condition would not have been discoverable.” Thanks to Abed Bhuyan for this post. Please contact Abed with any questions. Previous Next Contact

News Plaintiff Assumed Risk of Funplex Foam Balls (NJ) December 13, 2017 < Back Share to: In Osei-Amoako v. Stafford FEC, Plaintiff broke her ankle when she slipped and fell on foam balls while supervising her four-year-old son in an amusement attraction, Foam Frenzy, at the Funplex owned and operated by defendant. The court granted summary judgment to defendant, holding that plaintiff’s injury was not caused by defendant’s breach of duty, but due to her own conduct. Plaintiff appealed from the order, contending that the judge erred because the facts supported plaintiff’s theory of liability against defendants. The Foam Frenzy is an amusement attraction for children. There are 8,000 to 10,000 foam balls throughout the attraction which is set up so that participants can chase each other, throw foam balls at each other, and dodge foam balls while playing in the attraction. Plaintiff alleged that she slipped and fell on one of more than fifty foam balls in her immediate area while walking toward her son. She alleged that the foam balls blended into the carpeted floor. Additionally, she witnesses two Foam Frenzy employees attempting to fix an inoperable vacuum that was used by participants to suck up and recirculate the loose foam balls back onto designated areas. The court recognized that defendants owed plaintiff a duty of reasonable care to maintain a safe environment. However, the court held that defendants did not breach that duty and there was no dangerous condition in the Foam Frenzy. The court opined that the main component of the Foam Frenzy was to play in an area overfilled with foam balls. The appellate court affirmed the trial court’s holding, as plaintiff’s injury was the result of slipping on a foam ball, and no reasonable juror could find that defendants breached its duty of care when plaintiff was engaged in the very activity that she and her son expected. Essentially, she assumed the risk inherent in a foam ball kiddie park... whatever risk that may have been. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Self-Destructive Selfies (NY) December 6, 2018 < Back Share to: Defense attorneys have increasingly turned to social media to defend against exaggerated claims of personal injuries. In Smith v. Brown, 2018 NY Slip Op 28299, the plaintiff commenced an action in Supreme Court, Bronx County, to recover for personal injuries allegedly sustained in a motor vehicle accident. At the discovery stage, one of the defendants served plaintiff with a notice to admit, seeking to admit: (1) whether plaintiff owns and maintains an Instagram account with a specific "handle"; (2) whether the account associated with that handle was changed from a public to private account setting after a specific date; (3) whether plaintiff was depicted in a number of specified photographs obtained from the Instagram account — and whether those photographs were taken after the accident. Defendant served copies of each of the 33 photographs for which admissions were sought along with the notice. The photographs appeared to depict a young woman (presumably the plaintiff), engaged in different activities, such as riding in a car, climbing a rock, and walking on a boardwalk. Plaintiff filed a motion seeking a protective order to vacate or strike the notice to admit arguing that defendant was attempting, impermissibly, to use the notice to admit in lieu of other disclosure devices, such as a deposition. Plaintiff also argued that the notice to admit was improper because it sought admissions on material issues in the litigation. Defendant opposed the motion, arguing that the admissions sought in the notice to admit were relevant to the issue of the extent of plaintiff's damages, and not to any ultimate questions of fact or any legal conclusions. The Court agreed with defendant, and plaintiff’s motion was denied. The Court ultimately held that the notice did not seek admissions as to any ultimate conclusions (such as which driver or drivers were negligent) or information of a technical, detailed or scientific nature. Therefore, those matters on which defendant sought admissions could be explored at a deposition and were thus within the proper scope of a notice to admit. Social Media is now, much like post-deposition surveillance, a valuable tool in gauging a plaintiff's credibility, and also, mitigating a future pain and suffering claim. Thanks to Tyler Rossworn for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News WCM Philadelphia Partner Becomes President Elect of Philadelphia Association of Defense Counsel. June 28, 2017 < Back Share to: On June 6, 2017, WCM Partner Robert J. Cosgrove was elected to the position of President-Elect of the Philadelphia Association of Defense Counsel, one of the oldest local defense organization in the country (now in its 70th year). Bob is the managing partner of WCM's Philadelphia office and serves clients in a mix of commercial and defense related matters. As President-Elect, Bob is responsible for supervising all of the PADC's committees which run the gamut from judicial relations to pro bono. Previous Next Contact

News Insurer Wins Summary Judgment After Waiver Of Inter-Policy Stacking In Purchase Of The Policy (PA) February 11, 2022 < Back Share to: In a case from the Western District of PA, Miale v. Nationwide Insurance Company of America, the court granted the defendant’s motion to dismiss against the plaintiff who brought a breach of contract claim (including bad faith) after they waived inter-policy stacking and their policy only covered one vehicle. The plaintiff the wife of a decedent who file a suit for breach of contract and bad faith against the insurer after plaintiff’s husband was killed in a motorcycle accident . The widow relied on her Nationwide RV policy which she argued covered both an RV and her husband’s motorcycle. However, the decedent had signed a waiver provision in exchange for reduced insurance premium. Plaintiff argued the RV policy stacking waiver applied only to intra-policy stacking and did not apply to inter-policy stacking. The court relied on Section 1738 of Pennsylvania’s Motor Vehicle Financial Responsibility in its ruling refusing to accept policyholder’s argument. That section provides for stacking of uninsured and underinsured benefits in motor vehicle insurance policies, however the court found that the decedent knowingly and voluntarily rejected inter-policy stacking when he signed the valid waiver to receive reduced premium. This case is important in reiteration that the execution of a stacking waiver form for RV policy that covered only one vehicle meant that the policyholder could only have understood they were executing an inter-policy stacking form, even though the waiver form language included language from the statutory provision governing intra-policy stacking. Thanks to Kevin Riley for his contribution to this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Claim to Prior Insurer Dooms Professional Liability Claim (NY) January 6, 2017 < Back Share to: A New York federal court recently ruled that an architect’s prior knowledge of construction defects at a university construction project negated coverage under a professional liability policy. In The University of Pittsburgh v. Lexington Insurance Company and Axis Insurance Company, the University of Pittsburgh contracted with an architectural firm, The Ballinger Co., to perform work at an academic building on campus. Ballinger held a claims-made professional liability policy from Lexington Insurance Company from February 1, 2011 to February 1, 2012 and subsequently obtained a policy from AXIS effective the next day. The AXIS Policy only applied if prior to the effective date, the insured had no knowledge of any act, error, omission, situation or event that could reasonably be expected to result in a claim. Construction began at the university project in 2011 and problems arose shortly thereafter. Ballinger was aware of the construction problems and submitted a notice of occurrence/claim to Lexington on January 31, 2012. Lexington denied coverage due to insufficient information. Ballinger then notified AXIS on March 27, 2012, that a claim was likely to be filed against Ballinger for the same issues and AXIS advised that no coverage was available for any claims arising out of the project. The insured filed suit, and on summary judgment AXIS argued that Ballinger’s submission to Lexington was sufficient to trigger AXIS’s prior-notice exclusion and therefore barred coverage under their policy. AXIS stated that the claims against Ballinger was reasonably foreseeable to Ballinger based on the company’s knowledge of the construction delay situation prior to the policy’s effective date. Relying on the unambiguous terms of the parties’ contract, the court reasoned that a claim under the AXIS policy would not be covered if it were reasonably foreseeable under the facts known to the insured before the coverage period began. As such, AXIS was awarded summary judgment. Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono if you are interested in more information. Previous Next Contact

News Plaintiff's Hail Mary to Overturn Decision Is Denied (NY) February 5, 2009 < Back Share to: In Ninivaggi v. County of Nassau, the 14 year old plaintiff allegedly was injured when he and a friend were playing catch with a football on the premises of an elementary school owned by the defendant Merrick Union Free School District. The injury occurred when the infant plaintiff stepped into a "depression" or "hole" on the grassy field, lost his balance, and fell. The depth of the depression was variously described by the plaintiffs as being two-to-three inches, three-to-four inches, and five inches. The plaintiff had previously played on the field, and admitted that he was familiar with the condition of the field. After discovery was complete, the district moved for summary judgment dismissing the complaint insofar as asserted against it on the ground, among others, that the plaintiffs' claims were barred by the doctrine of primary assumption of risk. The Supreme Court granted the district's motion. The plaintiffs appeal. The Appellate Division Second Department affirmed the decision pursuant to the doctrine of primary assumption of risk. The Court held the doctrine applies to inherent risks related to the construction of the playing field or surface and “encompasses risks involving less than optimal conditions” Here, the district established its prima facie entitlement to judgment as a matter of law on the basis of primary assumption of the risk. The plaintiffs described the grass field on which the accident occurred as “choppy,” “wavy,” and “bumpy,” with several depressions. In other words, the topography of the grass field on which the infant plaintiff was playing was irregular. The risks posed by playing on that irregular surface were inherent in the activity of playing football on a grass field. Moreover, the infant plaintiff's testimony demonstrated that he was aware of and appreciated the inherent risks, and that the irregular condition of the field was not concealed. The Court found a distinction between accidents resulting from premises having fallen into disrepair and those resulting from natural features of a grass field However, there was a lengthy dissent in this matter. Here, the dissent focused on the turf itself where the threshold question with respect to any premises liability cause of action is whether the owner or possessor of the land (or building) breached the duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose presence is reasonably foreseeable. Because the plaintiff stated there were depressions in the field and the defendant knew or should have known of them, their motion should have been denied. The Court stated “[E]vidence was presented from which it could be concluded that the District failed to even attempt to properly maintain the field to ensure that it was not hazardous to the children and members of the community that were welcomed to play on it. What incentive does the District have to ensure that future plaintiffs are not similarly injured from its alleged failure to provide a safe ballfield upon which the children from Merrick can play. Although the defendants won on both the state and appellate level, there is potential with this dissent that the Court of Appeals would take up this matter. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Labor Law Claims Dismissed Against Homeowners (NY) November 19, 2009 < Back Share to: Property owners are invariably drawn into lawsuits involving Law Labor accidents. Fortunately, owners of one and two family homes are exempted from the strict liability of §240(1) and §241(6) when they do not direct or control the work being performed. These homeowners can also be exempt from common law negligence and Labor Law §200 claims when they have no obligation for safety at the work site. In Chapman v. Town Of Copake, plaintiff (a subcontractor) sued the homeowners when he was injured when a retaing wall collapsed while he was digging holes to install concrete footers at the worksite. The New York Appellate Division found that, although the homeowners were involved in the basic planning and coordination of the renovation project, their participation was not so significant as to support a finding that they served as their own general contractor. The homeowners pointed to the fact that they hired a contractor to direct plaintiff’s work. And even though the homeowners paid the subcontractor directly, the GC hired the subcontractors and coordinated their work at the site. Plaintiff also cited to the facts that the homeowners completed the building permit application and provided sketches of the work that they wanted done. But the Court held their participation did not “cross the line from being a legitimately concerned homeowner to a de facto supervisor.” Thus, all claims against them were dismissed. If you would like further information regarding this post, please e-mail mbono@wcmlaw.com http://decisions.courts.state.ny.us/ad3/decisions/2009/506856.pdf Previous Next Contact

News Seeing Dollar Signs, A Man Delivers Previously Stolen Warhol Painting To Christie's To Sell February 6, 2008 < Back Share to: After allegedly buying Andy Warhol's 1981 Dollar Sign painting at a New Jersey flea market for $180, Jason Beltrez brought the painting to Christie's auction house to sell. Christie's checked with the Art Loss Register and determined the painting had been stolen from Martin Lawrence Galleries in SoHo on February 14, 1998. The battle now begins as the art gallery is suing Mr. Beltrez for ownership. http://www.nytimes.com/2008/02/06/nyregion/06warhol.html?_r=1&scp=2&sq=warhol&st=nyt&oref=slogin Previous Next Contact