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News High Tech Security System Shields Homeowner's Association In Assault Case (NY) September 27, 2012 < Back Share to: In Diaz v Sea Gate Assn., Inc, the plaintiffs were attacked in their home located within a private, gated community that was managed, maintained and controlled by the defendant homeowner's association. The plaintiffs alleged that inadequate security at the two entrance gates of the community allowed the assailant to enter property and commit his crime. In dismissing the plaintiff's complaint, the Appellate Division found defendant established its entitlement to summary judgment by providing a detailed description of its key card system with surveillance cameras. With this system in place, the Court inferred that the assailant did not access the building from these entrances. Thanks to Bill Kirrane for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News No Fault Abuse Reexamined December 2, 2011 < Back Share to: The Court of Appeals recently addressed no fault abuse in reassessing three cases that dealt with allegations of “serious injuries” resulting from motor vehicle accidents. In Perl v. Meher and Adler v. Bayer, the Court reversed the Appellate Division, concluding that plaintiffs put forth evidence that was legally sufficient to make out their claims. In both instances, the plaintiffs had been initially examined by a physician who did not make contemporaneous quantitative measurements. Several years later, in preparation for trial, the physician made quantitative measurements regarding the plaintiffs’ limitation. The Court held that a physician who initially treats a patient need not make contemporaneous quantitative measurements since their primary concern is treating the patient. Taking the measurements years later - in preparation for trial - was deemed sufficient to meet the serious injury requirement. This decision clearly damages defendants’ abilities to obtain threshold dismissals, as it permits plaintiffs the opportunity to establish the existence of a serious injury years after their accident, in anticipation of trial, as well as in opposition to a defendant’s motion for summary judgment. On a positive note for defendants, the Court affirmed the dismissal of Travis v. Batchi, holding that a physician’s conclusion that a plaintiff has a “mild partial permanent disability,” absent a description of the disability, is insufficient to meet the serious injury standard. http://www.nycourts.gov/ctapps/Decisions/2011/Nov11/206-208opn11.pdf Previous Next Contact

News Katrina and Loose Barges -- That Couldn't Possibly Cause a Coverage Dispute, Could It? March 18, 2010 < Back Share to: On August 29, 2005, New Orleans, Louisiana was devastated by Hurricane Katrina. During the course of the hurricane, hundreds of barges and vessels broke away from their moorings, causing substantial damage. Barge ING 4727 was one such barge which broke away during the storm. Afterwards, some theorized that Barge ING 4727 actually caused the breach in the levee on the Lower Ninth Ward of New Orleans. What followed was an onslaught of litigation for claims against several defendants, including Lafarge, a company which provides construction materials throughout the United States. Lafarge was the operator allegedly responsible for the terminal to which Barge ING 4727 was moored just prior to the storm. Lafarge had primary insurance coverage through NYMAGIC, and excess coverage through AHAC, NACA, and American Club. Upon learning of the potential casual connection between the barge and the breached levee, Lafarge took proactive steps to begin preparing a defense against any potential litigation. Thus, Lafarge hired two large (and thus very expensive) national law firms (Goodwin Proctor and H&K), as well as a local counsel (Chaffe), to begin assessing their potential mass tort liability. Upon notification that Lafarge had retained the three aforesaid firms, NYMAGIC informed Lafarge that they could not commit to paying for firms which they did not appoint, and instead offered a list of six New Orleans firms to handle the case. Lafarge declined to consent to the representation of any of the named firms, and instead continued to utilize their self-selected attorneys. Three separate declaratory judgment actions were filed in the United State District Court for the Southern District of New York seeking coverage. The District Court granted the American Club’s Motion for summary judgment in the matter, holding that coverage was not afforded under that excess policy. Furthermore, the court held that the excess carriers were obligated to cover Lafarge. Lastly, the district court held that the primary and excess carriers were obligated to cover the legal fees earned by Goodwin Proctor and H&K. An appeal resulted. On appeal, NYMAGIC, Lafarge, AHAC, and NACA argued that the American Club Policy covered Barge ING 4727. Lafarge also challenged the District Court’s holding that the primary and excess policies did not cover the legal fees earned by Chaffe; and the court’s refusal to award attorneys fees in connections with the motions for summary judgment. Finally, NYMAGIC, AHAC, and NACA challenged the decision that excess polices were triggered, and that the primary and excess policies covered the legal fees earned by Goodwin Proctor and H&K. The Second Circuit has now ruled. It first examined the excess policy issued to Lafarge by American Club. Although there was no explicit endorsement naming Barge ING 4727 as a vessel covered under the policy, Lafarge argued that the barge was automatically covered pursuant to the following provision: If Lafarge…acquires an insurable interest in any vessel in addition to or in substitution for those set forth herein, through purchase, charter, lease or otherwise,… . The appellate court declined to confer a broad interpretation of the phrase “or otherwise”, as such a broad interpretation would effectively nullify two entire phrases in the policy. The court also considered extrinsic evidence which revealed that the clause was never intended to cover barges such as Barge ING 4727. Ultimately, the court held that “otherwise” did not include the kind of relationship associated with a ship owner’s bailment to a terminal operator. Thus, the appellate court upheld the district court’s decision to grant summary judgment on behalf of the American Club. Next, the appellate court held that the primary and excess carriers were liable for the fees payable to Goodwin Proctor and Chaffe which were incurred prior to September 28, 2005. After that date, Lafarge acted in bad faith by failing to consider the list of firms proposed by NYMAGIC; thus, the insurers were not liable for any amounts incurred after that date. The court also held that the fees earned by H&K were recoverable because they were retained on a temporary basis for an investigative mission. Lastly, the appellate court found that the District Court did not abuse its discretion by denying Lafarge’s motion for attorney’s fees, as the denial was not based upon any attempt by the insurers to avoid their duty to defend Lafarge. Special thanks to Heather Aquino for her contributions to this post. If you have any questions about its contents, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9415075 Previous Next Contact

News (Preserve) All The Evidence, Men (NY) June 29, 2018 < Back Share to: Most lawyers and insurance professionals know the importance of preserving evidence when a claim is asserted against an insured. But insureds who are not involved in litigation as a matter of course often express the displeasure of the taking the time necessary to collect and preserve all relevant information. As the recent First Department decision in Davis v. Pathmark makes clear, the consequences for failing to take that time to preserve evidence, in a thorough, if not exhaustive manner, can be disastrous. In Davis, the store being sued provided video surveillance footage of the plaintiff slipping and falling in the store along with 30 seconds of footage before the fall. The problem was that the defendant deleted all other footage from that day. According to the trial court and the First Department, that selective editing may have prevented the plaintiff from making its case about the origin of the liquid on the floor that caused the accident. Thus, the court struck the defendant's answer. It may well be that the defendant in Davis acted in good faith by providing what it thought was relevant evidence. But insureds often make poor judges of what may or may not be relevant or discoverable in litigation. Davis should serve as a reminder to lawyers to instruct their clients to preserve all evidence when a suit is filed and to insurance professionals to request that all information be preserved when a claim is first submitted. Thanks to Mike Gauvin for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Creative Pleading In PA Requires A Duty To Defend September 30, 2022 < Back Share to: In Siehl v. City of Johnstown, et al., the plaintiff was convicted of murder and was incarcerated for twenty-five years. The plaintiff alleged that, during his period of incarceration, the defendant city and county withheld exculpatory evidence and produced false disclosure statements. After multiple hearings, the Court determined that the defendant officers were untruthful and hid exculpatory evidence. The plaintiff was thereafter free. The plaintiff therefore sought damages for wrongful imprisonment, loss of freedom, economic loss, and critically, exposure to physically harmful prison conditions (e.g. a bodily injury). The defendant city and county thereafter added their insurance carrier to the action with a third-party complaint. The third-party defendant insurer issued an insurance policy to Cambria County, Pennsylvania. The policy in question included general liability coverage and law enforcement liability coverage that extended to cover damages because of “injury, sickness, disease, disability, shock, mental anguish, mental injury and humiliation” as well as false imprisonment, malicious prosecution, and deprivation of constitutional rights. The Eastern District began its analysis by citing the foundational pillars of insurance coverage law in Pennsylvania: the insurer's duty to defend is broader than the duty to indemnify and the duty to defend arises whenever an underlying complaint may potentially come within the insurance coverage. The insurer argued that it owed no duty to defend the claims that were derivative of the initial malicious prosecution. The court disagreed. Concluding that the allegations in the lawsuit would, if true, be covered by the policy, the Eastern District concluded that “under the legally appropriate interpretation/evaluation of the applicable language at issue, [the insurer] owe[d] a duty to defend” partially because of the allegations in the complaint concerning a bodily injury caused by an occurrence. Thanks to Jason Laicha for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News 33 Days Is Too Late in New York. December 23, 2011 < Back Share to: We all know that a New York disclaimer must be issued immediately. But how immediate is immediate? In the case of Tower Insurance Company v. NHT Owners LLC, et al., the insured submitted a claim sixty-two days after the occurrence. Thirty-three days after receiving notice of the claim, Tower disclaimed on the basis of late notice. The trial court held that the disclaimer was untimely. An appeal to the First Department resulted. The First Department has now affirmed the trial court decision. In NY, thirty-three days is just too late. For more information about this post or WCM’s coverage practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Too Drunk To Remember Results In Case Dismissed December 8, 2011 < Back Share to: In Lombardi v. Pat’s Tavern, an unpublished New Jersey appellate decision, the appellate court affirmed a Morris County judge’s dismissal of the complaint based on the plaintiff’s failure to establish the Tavern’s negligence. The plaintiff alleged that he sustained injuries outside of the Tavern, however he could not recall how such injuries were sustained as he had consumed a few drinks prior to the accident. As discovery unfolded it remained unclear whether the plaintiff had fallen outside the Tavern or whether he was robbed. As a result, both the lower court and the appellate court determined that the plaintiff had not put forth sufficient evidence to demonstrate that he had fallen due to negligent property maintenance. Thanks to Alison Weintraub for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a6234-09.pdf Previous Next Contact

News Lowering the Bar? (NY) February 6, 2019 < Back Share to: The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d). In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages. A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages. On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News Call Your Next Witness - Angela Levitan of ARCCA Discusses Biomechanical and Human Factors Analysis June 17, 2021 < Back Share to: Generally, I'm amused by the term "human factors" in the context of expert testimony. Doesn't everything involving people necessarily involve human factors? When I was a prosecutor, I was similarly amused by the "Anti-Crime" police unit. As opposed to the "pro crime" unit? Apologies for the Faulkner-esque stream of consciousness rant... In the forensic sense, human factors and biomechanics -- which often overlap to some degree -- are specific terms of art. And they can be critical to assessing liability and damages, respectively, in the accident context. As we discuss in the next episode of Call Your Next Witness, the WCM podcast, these fields are in Angela Levitan's wheelhouse. She is an engineer, bio-mechanist and human factors expert providing analysis, consultation, and where appropriate, testimony to assist litigants at trial. Simply stated, Angela can provide forensic support to the "common sense" arguments that we often consider during the claim investigation, to wit, "there's no way this accident happened the way the plaintiff says." Angela can help confirm or refute our theories early in the game. Angela has provided expert analysis for us on many occasions, and if she cannot help your case for whatever reason, she'll tell you that -- which renders Angela's opinion utterly credible. Our discussion focuses on Angela's general approach, and some of the interesting claims she has handled over the years. We also discuss my theory that Hooper from Jaws is the quintessential expert consultant. Listen to our interview with Angela on Call Your Next Witness! If you'd like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons or Georgia Coats. 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 New York Courts Redefine Meaning Of Specific Standards In Labor Law Claims August 19, 2022 < Back Share to: Labor Law 241(6) imposes a non-delegable duty on owners and contractors to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of the Department of Labor.” The first part of the statute reiterates the common law-standards of care. The second part of the statute creates a nondelegable duty with respect to certain regulations. The question the courts have grappled with is whether this sets forth a “specific standard of conduct” or a general safety standard. In Toussaint v. Port Authority of N.Y. & N.J., plaintiff was injured when he was struck by a power buggy. The operating engineer of the power buggy was not assigned by his employer to operate the device. Plaintiff alleged a violation of NYCRR23-9.9(a) which states that “no person other than trained and competent operator designated by the employer shall operate a power buggy.” Since the term “designated person” was specifically defined in NYCRR23-9.9(a) it was deemed a proper predicate for a Labor Law 241(6) claim. The Court previously refined the standard of liability under Section 241(6) by requiring that the rule or regulation alleged to have been breached be a specific, positive command, in Ross v. Curtis-Palmer Hydro-Elec. Co. However, in Toussaint the Court has reframed the standard and held that the term “designated” does not transform NYCRR23-9.9(a) into a specific standard. This will have a specific impact on New York Labor Law practice as the term “designated” has now been reframed to not be considered a specific standard. Thanks to Jennifer Tuz for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News City Defendants Win Summary Judgment on Trivial Defect Defense (NY) September 10, 2020 < Back Share to: In Acevedo v. City of Yonkers, the infant plaintiff was allegedly injured when he was playing basketball in the street in front of his home, located in Yonkers, and tripped and fell over a water valve cap that was recessed into the street. The family brought suit against the City of Yonkers. The defendants moved for summary judgment dismissing contending that they did not receive prior written notice of the condition alleged as required by section 24–11 of the Charter of the City of Yonkers, and that the defect alleged was trivial and therefore not actionable as a matter of law. The Supreme Court granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, finding that the defendants established that they had not received prior written notice of the defect alleged. The plaintiffs appeal. The Appellate Division Second Department found that the defendants should have been granted summary judgement; however, due to the fact the defect was trivial and not on notice. The Court held “In determining whether a defect is trivial, the court must examine all of the facts presented, including the ‘width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstance of the injury.’ “A defendant seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses.” Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, the area of loss did not possess the characteristics of a trap or nuisance, and therefore, was not actionable. The Appellate Court did not discuss the notice portion of defendants’ brief. The granting of summary judgment on the defense of trivial defect is rare as Courts find that triviality is a question of fact for the juror; however, the dimensions of the area where the infant plaintiff fell, along with photographs and the testimony of the plaintiffs all combined for the Appellate Court to rule that the defect was indeed trivial. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact