Wade Clark Mulcahy LLP

News Not So Fast: The Importance Of Checking Your Evidence (NY) October 6, 2022 < Back Share to: There is nothing worse for a litigator than having evidence that you think will guarantee success for your client …only to discover that it isn’t actually helpful. In the recent case of Cheese v. Ferguson, the defendant faced this avoidable problem. In that case, plaintiff and defendant were involved in a car accident on the Long Island Expressway. The Defendant moved for summary judgement based on dash cam video that showed that for twelve seconds preceding the accident, the defendant was driving safely in their own lane. This was enough for the Supreme Court to grant the motion and dismiss defendant from the suit. However, the Second Department reversed after taking a closer look at the dash cam footage. The court observed that for at least five seconds before the accident, plaintiff’s vehicle was pointed toward defendant’s lane of traffic and that the defendant was looking to the left before the impact. The court found that such footage contradicts the defendant’s claim that plaintiff’s vehicle cut into his lane “suddenly and without warning” and thus he had no duty to avoid the accident. Accordingly, the defendant failed to eliminate triable issues of fact as to whether the defendant was the proximate cause of the accident, and the court vacated the summary judgement order. Defendants and their attorneys must always be mindful of the positive and negative impact of evidence used in personal injury litigation. The Cheese decision highlights the importance of defense counsel fully reviewing and understanding such evidence, particularly video footage. Thought should be given as to whether to use this evidence where it contains both exculpatory and incriminating images. Thank you to Alexander Rabhan for his contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Denial By “Exclusion” Or “Lack Of Inclusion” October 9, 2012 < Back Share to: In Max Specialty Ins. Co. v. WSG Investors et al., a federal judge sitting in the Eastern District of New York recently issued a decision that limits when it is necessary to issue a disclaimer of coverage. In the underlying action, an employee of WSG Investors, LLC fell off of a ladder while working on an exterior scaffold. After the worker brought a Labor Law action in state court, Max Specialty Insurance Co. brought a declaratory judgment action in federal court seeking a declaration that it was not obligated to defend and indemnify WSG or any of the other defendants. Max Specialty’s policy was written to only include two classes of coverage: “interior carpentry” and “dry wall or wallboard installation.” Max Specialty argued that the exterior work was not covered under its policy. As a defense, the defendants did not dispute that the loss was not covered under the classes of coverage. They simply contended that they were entitled to coverage due to Max Specialty’s failure to issue a timely disclaimer. The defendants viewed the creation of classes of coverage as an exclusion to cover only “interior carpentry” and “dry wall or wallboard installation.” Using contract principles and citing to the lack of ambiguity in the policy the court held that when the policy as written could not have covered the liability in question under any circumstance (lack of inclusion), there is no insurance and therefore, no obligation to disclaim liability under New York Insurance Law §3420(d)(2). Thanks to Michael Nunley for his contribution to this post. http://docs.justia.com/cases/federal/district-courts/new-york/nyedce/1:2009cv05237/298647/60/0.pdf?1344000513 Previous Next Contact

News EDPA Upholds An Insurer’s Choice of (Maritime) Law Clause (PA) April 16, 2021 < Back Share to: After the recent kerfuffle in the Suez Canal, it seems as though ships running ashore and maritime law are becoming common topics of conversation. Most recently, the Eastern District of Pennsylvania addressed the impact of an insurer’s choice of law provision in an insurance contract in connection with an insured seeking coverage for damages following its ship running aground. Great Lakes Insurance SE v. Raiders Retreat Realty Co. centered around a shipping vessel owned by the defendant-insured and insured by the plaintiff, with a period of coverage extending over twelve years. Throughout the coverage period, and in all the renewal documents for the policy at issue, there was a choice of law clause determining the relevant applicable law. The clause set Federal Admiralty law as governing, with New York as a backup. The insured argued, inter alia, that the choice of law clause was not enforceable and Pennsylvania law should apply because the clause was unreasonable based on the insurer’s lack of contacts with New York and, thus, enforcing the clause would contravene the public policy of Pennsylvania. Ultimately, the court disagreed. In reaching this conclusion the court first looked to the multiple business contacts the insurer maintained with New York, including maintaining an agent for service of process as well as multiple accounts, and its status as an insurer in New York. Beyond that, the court analyzed multiple precedential cases holding that choice of law clauses were not against public policy. Most notably, the court concluded that application of maritime law was appropriate, and that “public policy of a state where a case was filed cannot override the presumptive validity, under federal maritime choice-of-law principles, of a [choice of law provision] where the chosen forum has a substantial relationship to the parties or transaction.” Accordingly, this case shows that Pennsylvania courts are apt to uphold an insurance policy’s choice of law provision, and also provides some of the factors courts will look to in determining whether the chosen forum has a sufficient relationship to the parties. Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News A True "Out of Possesion" Landlord. September 10, 2013 < Back Share to: In Smith v. RMS Residential Properties, LLC, Defendant, RMS purchased a property in Queens through a foreclosure auction in 2008. The former homeowner refused to vacate the premises or provide access to RMS or its Realtor (tasked with re-selling the property) until she moved out in late 2011/early 2012. Plaintiff, a visitor of the former homeowner, was injured when a bathroom light fixture fell on him in August 2011. Plaintiff sued RMS, and RMS moved for summary judgment as an “out of possession” landowner. Plaintiff opposed the motion by invoking New York Multiple Dwelling Law §78,which requires that "[e]very multiple dwelling, including its roof or roofs, and every part thereof and the lot upon which it is situated, shall be kept in good repair.” However, the court noted that, "an owner will not be held liable under section 78 where it has completely parted with possession and control of the building." Here, RMS had no control of the building, thus had no duty to maintain or repair the property and, therefore, could not be held liable for plaintiff’s injuries. Most “out of possession” landowner arguments are made where a lease discharges the landlord’s duty to repair or maintain the premises. Here, though RMS was not legally discharged of the duty via a written lease, the court found that it owed no duty to the plaintiff since it did not factually have control of the building. For any questions about this case, please contact cfuchs@wcmlaw.com .       Previous Next Contact

News Crocs, children and escalators -- a marriage made in liability heaven. October 1, 2007 < Back Share to: Apparently, children who wear soft-soled sandals (like Crocs) on escalators run the risk of significant toe injuries. http://www.insurancejournal.com/news/national/2007/09/24/83639.htm Previous Next Contact

News NJ Supreme Court Takes a Mulligan in Defamation Ruling May 31, 2012 < Back Share to: On May 16, 2012, the New Jersey Supreme Court issued an order in W.J.A. v. D.A. holding that presumed damages play a role in defamation cases even in private plaintiff cases where there are no matters of public concern. But after they realized they goofed based on a statute that provided otherwise, they reversed course a few days later. In the underlying defamation case, D.A. claimed that his uncle W.J.A. sexually molested him and created a website discussing the abuse. W.J.A. sued for defamation. The superior court granted summary judgment for D.A. It found that since the postings on the website were more akin to libel (written defamation), W.J.A. had to prove actual injury to his reputation, which he had failed to do. The appellate court reversed and held that a nominal damages award may be made in a defamation case to a plaintiff who has not proven actual harm to his reputation, meaning that a plaintiff may be awarded minimal damages by a jury without any proof of monetary harm. These damages, not based on any monetary loss, are known as presumed damages. They serve as a means to vindicate the plaintiff’s character through a jury verdict establishing that the defamatory statement is false. Furthermore, the Court stated that presumed damages were sufficient to be used as a foundation for punitive damages in a defamation case. Initially, the Supreme Court issued an order, agreeing with the holding in respect of presumed damages. However on May 21, only five days later, the Court issued a corrected opinion revising its earlier rule. Apparently the lawyers representing two amici curiae -- the New Jersey Press Association and the American Civil Liberties Union -- sent a letter to the court immediately after the May 16 opinion was issued advising the court that its decision was in direct violation of the New Jersey Punitive Damages Act, N.J.S.A. 2A: 15-5.13(c). In fact the statute says specifically that an award of nominal damages cannot support an award of punitive damages. Thus in New Jersey, even in cases where a plaintiff may pursue a defamation claim with only nominal damages, he may not request punitive damages unless he can demonstrate actual compensable harm to his reputation. The revised opinion was issued without comment, and mirrors the original save for the fact that the Court removed three sentences from its original opinion, all relating to punitive damages standard, and all in violation of the Punitive Damages Act. Thanks to Remy Cahn for her contribution to this post. If you would like further information, please write to mbono@wcmlaw.com Previous Next Contact

News Intrafamily Exclusion In Auto Policy Ruled Unenforceable (NJ) May 13, 2022 < Back Share to: On May 6, 2022, a New Jersey appellate panel upheld a policyholder's win in a coverage dispute with Travelers Insurance Company, holding an intrafamily step-down exclusion acted as a "hidden trap" in a family's auto policy where not reflected in the policy declarations page. Specifically, in Cristina Dela Vega v. The Travelers Insurance Company, et al., (No.: A-2272-19), the Court ruled that Travelers must pay its policy's full $100,000 limit in bodily injury coverage as this “clearly worded exclusion” still functioned as a “hidden trap” making the provision thereby unenforceable as it would lead a reasonable policyholder to expect different coverage. In the underlying accident, plaintiff Cristina Dela Vega (“Dela Vega”), was severely injured while riding in a car driven by her husband who collided with another vehicle pulling out a New Jersey parking lot. A Travelers claims adjuster initially offered Dela Vega her policy's normal bodily injury limit of $100,000, but later revised that to $15,000, saying there had been an "unfortunate mistake" adding that she had never before dealt with an intrafamily exclusion despite her experience as an auto policy adjuster. Dela Vega then sued in New Jersey Superior Court, seeking coverage up to the policy's $100,000 declared limit and asserting claims for bad faith, violation of the Consumer Fraud Act and punitive damages. The trial court ordered Travelers to pay Dela Vega $100,000, finding the step-down exclusion to be ambiguous, "patently unfair" and contrary to public policy. On anticipated appeal, the New Jersey Appellate Court mostly agreed. Even though the exclusion was technically sound, it went against the average policyholder's "reasonable expectations" of coverage, the panel held, since the declarations page provided for $100,000 in coverage and didn't say anything about an exclusion. Furthermore, the claims adjuster's offer of the $100,000 limits four months after the accident was established as proof plaintiff's expectation of that coverage was objectively reasonable. However, in a partial win, Dela Vega’s bad faith, punitive damages, and commercial claims were discarded as Traveler’s didn't display any "unconscionable commercial practice" or malice in issuing the policy or trying to enforce the step-down exclusion. The New Jersey Appellate Court did not go as far to hold that the step-down exclusion itself was contrary to public policy upon finding a violation of the policyholder’s reasonable expectations. However, the court included a footnote that finding the provision to be “troubling” and “concerning” which indicates that such step-down exclusion will likely face ongoing scrutiny from the New Jersey courts. Thanks to Kendal Hutchings for her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Call Your Next Witness - Wendy Sheinberg & Jennifer Hillman March 25, 2022 < Back Share to: Have you ever watched a movie with a legal issue and thought to yourself, "Wait, could this plot really happen this way?" In Rain Man, for example, Tom Cruise kidnaps his autistic older brother, played by Dustin Hoffman, to extort his brother's inheritance. Instead of being presented as the somewhat flawed protagonist in Rain Main, Tom's character probably should have served time under a federal kidnapping statute. Rain Man is just one example. Wendy Sheinberg and Jennifer Hillman. partners at Rivkin Radler LLP on Long Island, recently decided to look at some of these movies that mishandle legal issues pertaining to estate handling, litigation and the like. And in their publication, "Wendy and Jen Wreck the Movies," they comment some of the poetic license filmmakers often take, and offer their two cents on what should have happened, if the filmmakers went by the book. On this episode of Call Your Next Witness, Wendy and Jen join Georgia and Brian to talk about some of the movies they are delving into, including Citizen Kane, Rain Main, Howard's End, and a few others, and to point out how Hollywood consistently gets it wrong. (At least, from a legal-realism perspective...although realism probably isn't Hollywood's goal most of the time.) Meaning, in real life, Lt. Caffey probably doesn't get Col. Jessup to just admit guilt on cross-examination. But it sure does make for compelling drama! You can find Wendy and Jen at rivkinradler.com, or follow them on Twitter at @wjwreckthemovi1. If you would like more information about Call Your Next Witness, or are interested in being a guest, please contact Brian Gibbons or Georgia Coats. Previous Next Contact

News Biomechanics Opinion Of Low Speed Crash Sufficiently Scientific? (NY) October 25, 2017 < Back Share to: The biomechanics of vehicle occupants involved in low-speed collisions is a potential defense to personal injury claims. However, any proffer of expert biomechanical testimony should be prepared to meet the test for admissibility, i.e. proof that the opinion is based upon generally accepted principles and methodologies. In Dovberg v. Laubach, the plaintiff was involved in a low speed chain reaction motor vehicle accident. After securing summary judgment against the defendants on the issue of liability, the parties proceeded to a damages-only trial. Prior to trial, defendants served an expert disclosure notice advising that they were going to call a biomechanical engineer/board-certified surgeon to opine that the force generated by the accident could not have caused the plaintiff’s knee injuries. The disclosure notice indicated that the proposed testimony was based on deposition testimony and on the plaintiff’s medical records. It also noted that the doctor’s opinion was based on scholarly works that had gained general acceptance in the field. Plaintiff’s counsel filed a motion in limine to preclude the testimony because it made no reference to any empirical data or peer-reviewed journals, studies, treatises, or texts. The lower court denied the motion, the doctor testified at trial, and the jury concluded that the accident was not a substantial factor in causing the alleged injuries. On appeal, the Second Department reversed the lower court’s decision and found that the defendant’s expert failed to pass the Frye test. Specifically, the defendants failed to establish that their expert’s opinion was based on generally accepted principles and methodologies. They noted that the rule does not require the majority of the scientific community to agree with the expert’s conclusion but, rather, the scientific community must accept the principles and methods used in evaluating the clinical data used to come to his conclusions. The court concluded that the defendants failed to describe the methods used by their expert in drawing his conclusions and failed to provide specifics for the publications relied on including the authors, years of publication, and contents of the works. The court also faulted the proffer for failing to provide a description of the methodology used to determine the force of the accident and the biomechanical engineering principles applied in formulating his opinion that her knees could not have contacted the dashboard. Thanks to Georgia Coats for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News New Jersey Ruling Makes Construction Subrogation Cases More Difficult for Insurers April 19, 2019 < Back Share to: In Wichot v. Allstate, the New Jersey appellate court recently held that ACE American Insurance was unable to subrogate its claim against a subcontractor plumber for over $1 million in damages. In interpreting a standard construction contract, the court held that ACE’s insured waived its right to assert a claim, even though the contracted work had been completed prior to the loss. ACE insured Equinox Development under a policy covering, in part, “property while in the course of construction.” ACE’s policy with Equinox was effective from September 2012 until September 2013. It also contained a standard subrogation clause. Equinox Development contracted with general contractor Grace Construction to build the “core and shell” of a new Equinox gym. Grace then subcontracted the plumbing work to American Medical Plumbing. In April 2013, after the contracted work had been completed, a water main broke, flooding the club and causing about $8,000 in damage to the “core and shell” and approximately $1.2 million overall. ACE then paid Equinox $1.2 million for the total damages and filed suit against AM Plumbing, alleging that they were at fault for the water break. AM Plumbing filed a motion for summary judgment arguing that ACE’s claims were barred by the terms in the A-201 construction contract to which Equinox and AM Plumbing where parties. The contract required Equinox to obtain builder’s risk insurance and provided for a waiver of subrogation clause which stated that the parties waived their rights with respect to damages “to the extent covered by property insurance applicable to the Work.” Although the damages were almost all unrelated to the “core and shell’ work, the court ultimately held that waiver prevented ACE from suing AM Plumbing because all of the damages were “covered” by “property insurance applicable to the Work.” The court stated that this was the “majority view” in other jurisdictions. Further, the court held that additional terms in the contract meant that the waiver applied whether or not AM Plumbing had an insurable interest in the property. Thus, ACE was unable to recover from AM Plumbing, notwithstanding the fact that the damages occurred after the contracted work had been completed. This decision creates an additional hurdle for insurers in pursuing subrogation claims against New Jersey contractors. However, subrogating insurers would be wise to check to see whether, as is frequently the case, the parties modify the standard contract in some way. Further, the New Jersey Supreme Court has not yet interpreted these provisions, meaning insurers may still be able to distinguish this case on the facts presented. Thanks to Doug Giombarrese for his contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Plaintiff's Suit against Golf Course Not Up to Par (NJ) February 6, 2019 < Back Share to: Plaintiff, a New Jersey resident, visited Greenbrier golf course in West Virginia after seeing advertisements during golf events broadcast on national network television and in nationally circulated golf magazines. While staying at Greenbrier, plaintiff slipped and fell on the golf course, suffering significant injuries. He treated for his injuries in New Jersey and New York City. Plaintiff sued Greenbrier in New Jersey, and Greenbrier subsequently moved to dismiss based on lack of jurisdiction. During discovery, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines. Its advertisements were limited to nationally televised media sources, national golf magazines, and social media pages. Greenbrier’s only direct contact with New Jersey was through letters and e-mails sent to New Jersey residents who had previously stayed at Greenbrier. Following discovery exchange, Greenbrier renewed its motion to dismiss for lack of jurisdiction in New Jersey. The trial court, upon reviewing Greenbrier’s position, granted the motion and dismissed plaintiff’s claim because Greenbrier did not have any direct contact with New Jersey, and there was no evidence of the minimum contacts required from Greenbrier to permit New Jersey Courts to exercise jurisdiction over the golf course located in West Virginia. Plaintiff filed a motion for reconsideration, arguing general jurisdiction, rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey courts. Even with the change in plaintiff’s legal position, Delgatto v. Greenbrier that general jurisdiction required systematic and continuous activity in New Jersey, and plaintiff failed to demonstrate such activity. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Business Person or Just Good Friend ... Her Insurer Would Like to Know (NJ) May 17, 2013 < Back Share to: Homeowner's policies contain a business exclusion. So when an insurer believes that a claim arises out of a homeowner's business activity, it is likely to decline coverage. This scenario presented itself recently in Bay State Insurance Company v. Jennings. The claim arose when a child was injured while under the care of the homeowner. While shopping, the caretaker fell causing a shopping cart to topple with the toddler inside. The toddler was injured and a claim presented. During the course of discovery, the insurer learned that the homeowner was caring for the child while her parents worked. The insured testified that she was not engaged in a child care business but rather was simply helping her best friend. The child's mother testified that she only gave her friend $35 per day to cover costs associated with food, diapers, etc. After a hearing, the judge found that the homeowner was in fact not motivated for financial gain but rather by her love for her friend and the child. She held that the business exclusion was inapplicable. The appellate division affirmed and noted that receiving money for childcare does not establish a profit motive and that the insurer bore the burden to prove this motivation. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact