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News Pennsylvania Federal Court Pulls The Emergency Brake On Car Dealers’ COVID-19 Lawsuits (PA) June 10, 2021 < Back Share to: In Star Buick, et al. v. Sentry Ins. Group, the Eastern District of Pennsylvania on May 26, 2021 dismissed plaintiffs' Star Buick GMC, Star Buick GMC Cadillac, and Star Pre-Owned Bethlehem (collectively “Star Buick”) complaint seeking loss of business income pursuant to an all-risks business protection insurance policy. Star Buick filed an amended complaint seeking the loss of business income against its insurer, Sentry. Sentry filed a motion to dismiss on the pleadings on three separate grounds. First, Sentry argued that the insurance policy at issue only covers business income loss for direct physical loss of or damage to property. Second, Sentry argued that a civil authority endorsement was inapplicable as the same required physical damage off the premises that impeded access to Star Buick’s property. Finally, Sentry argued that a virus exclusion barred all coverage. The Court agreed that the COVID-19 pandemic did not cause a direct physical loss, holding that the modifier “direct” was essential, and that the “COVID-19 virus cannot be the basis for a physical loss.” The Court further determined that the civil authority endorsement was also inapplicable because the COVID-19 pandemic did not cause a physical loss to surrounding property that resulted in a government closure. Finally, the Court held that the virus exclusion plainly barred all coverage from COVID-19 losses, even if the previous two arguments were in Star Buick’s favor. This recent opinion continues to show how courts are ruling with respect to COVID-19 claims. As this area of law is continually developing, we will continue to keep you apprised as events progress. Thanks to Matt Care for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NY Court Of Appeals Defines "Permanent And Severe Facial Disfigurement" March 24, 2008 < Back Share to: In its recent decision in Fleming v. Graham, the Court of Appeals articulated a standard for assessing claims of "permanent and severe facial disfigurement " for the purpose of qualifying as a "grave injury" exception to the Workers' Compensation bar. The Court ruled that "an injury disfigures the face when it detrimentally alters the plaintiff's natural beauty, symmetry or appearance, or otherwise deforms. A disfigurement is severe if a reasonable person viewing the plaintiff's face in its altered state would regard the condition as abhorrently distressing, highly objectionable, shocking or extremely unsightly. In finding that a disfigurment is severe, plaintiff's injury must greatly alter the appearance of the face from its appearance before the accident." http://www.nycourts.gov/ctapps/latdec.htm Previous Next Contact

News What’s In A Name? The Wrong One Can End a Plaintiff's Case (PA) June 30, 2020 < Back Share to: In Fick v. Barbon, plaintiff Terrence Fick (“Fick”) appealed the Superior Court’s decision to grant summary judgment in favor of defendant Barry Barbon (“Barbon”) following a car accident. At issue here is Pennsylvania Rule of Civil Procedure (Pa,R.C.P.) 1033—which explains correcting the name of a defendant after litigation has commenced—and the application of an amendment to the rule. Fick alleges that on July 5, 2016, he was rear-ended by a vehicle owned by Barbon. At the time of the incident, Barbon’s grandson, Dean Reist (“Reist”), was driving. When Fick filed suit in July 2018, he only named Barbon as defendant and the statute of limitations expired soon after. In August 2018, Fick filed a motion for leave to file an amended complaint to name Reist as defendant in the matter. Fick alleged that Barbon and his insurance company concealed Reist’s identity. After his first motion was denied, Fick filed a second motion for leave to file an amended complaint stating that Pa.R.C.P. 1033(b) applied in this case. This motion was also denied, but the Court granted Barbon’s motion for summary judgment. Fick’s appeal followed. Fick made three arguments in his appeal. First, he argued that the trial court erred and abused its discretion by denying his second motion for leave to amend despite his compliance with Pa.R.C.P. 1033. Second, he argued that the trial court erred and abused its discretion by denying his first motion since Barbon failed to disclose Reist’s identity before the statute of limitation ran. Lastly, he argued the trial court erred and abused its discretion by granting Barbon’s motion for summary judgment when a genuine issue of material fact would have existed had his motions been granted. Needless to say, the Superior Court did not agree. Rule 1033(b) states an amendment correcting the name of a party who had claims asserted against it in the original pleading will relate back to the commencement of the matter if the party was given notice proper notice and such amendment will not prejudice the party’s defense of its case. The party also knew or should have known that it would have been named in the original pleading but for the mistake as to its identity. The Court argues Fick did not seek to amend the name of a party, but wanted to add Reist to the action after the statute of limitations had run. Such addition has been historically prohibited. Fick testified during his deposition that Reist provided his name and contact information following the car accident. Therefore, Reist’s identity was disclosed to Fick and his first and second arguments are baseless. Finally, the Court stated that the summary judgment in Barbon’s favor was appropriate because Fick sued the passenger in a case alleging negligent operation of a vehicle. Therefore, the summary judgment ruling was appropriate and affirmed. Thanks to Gabrielle Outlaw for her contribution to this post. For comments or questions please contact Vincent Terrasi. Previous Next Contact

News Unlisted Vehicle Does Not Require Underinsured Policy Coverage (NJ) February 15, 2019 < Back Share to: The Appellate Division, in Katchen v. Government Employees Insurance Co., re-affirmed the need for clients to be proactive with personal insurance policies and attorneys to thoroughly review all client and carrier documentation at the start of every suit. In Katchen, the plaintiff filed for underinsured motorist benefits after being injured in a 2015 motorcycle accident with an underinsured driver whose policy had a 25,000 policy limit. Litigation ensued after GEICO denied coverage. GEICO’s argument was clear: although Katchen owned and operated the motorcycle at the time of the incident, it was not specifically listed on his insurance policy. Since exclusions in the body of the policy specifically excluded underinsured motorist coverage involving a motor vehicle “owned by an insured and not described in the declarations,” GEICO argued the policy had a clear and easily understood exclusion that applied to the facts of the case. Katchen cunningly countered by directing the court’s attention to the declarations page, which stated GEICO would “pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle arising out of the ownership, maintenance, or use of that vehicle.” Since the declarations page did not list any exclusions, according to Katchen, the insurance coverage followed the insured individual rather than the vehicle. The majority of a split Appellate Division panel sided with GEICO, concluding the policy language, rather than the declaration page, controlled. According to the court, “the fact that the [vehicle] exclusion is not mentioned on the declaration sheet does not bar its enforcement,” as it does not automatically render the policy ambiguous. To rule differently, as the trial court did, would “eviscerate the rule that a clause should be read in the context of the entire policy” and needlessly complicate already-complex policies. Judge Karen Suter’s strong dissent, arguing that coverage follows an insured rather than a vehicle identified in the policy, may offer a glimpse into how future courts may interpret similar exclusions when confronted with similar facts. Since the case was a published decision, however, it carries a weight that will hopefully influence other courts interpreting similar exclusions in other policies. Thank you to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Tort Claim Must Be Valid In Pennsylvania To Claim Civil Conspiracy April 7, 2023 < Back Share to: In recent case Summers v. Extrity LLC, United States District Court for the Eastern District of Pennsylvania held that in order to state a viable cause of action for a civil conspiracy to engage in some underlying conduct, the underlying conduct must itself give rise to a “valid underlying tort claim.” Summers v. Extrity, LLC, No. CV 22-3918, 2023 WL 1102334, at *1 (E.D. Pa. Jan. 30, 2023). In Summers, Plaintiff was hired and working as a security guard for Defendants, when his supervisor began “outing” him as transgender to various other employees. Consequently, Plaintiff began receiving threats, and harassing texts from coworkers, and despite reporting this to Defendant-employer, nothing was done to address the situation, and eventually one of Plaintiff’s coworkers assaulted him. Threats continued coming from various coworkers, and when Plaintiff finally confronted his boss about the dangers of having outed him, Plaintiff was fired. Upon being fired, Plaintiff continued to receive threatening texts from his former coworkers. Plaintiff “filed a ‘Charge of Discrimination’ with the United States Equal Employment Opportunity Commission (“EEOC”) for gender discrimination in violation of Title VII and the Pennsylvania Human Relations Act. … He received a ‘Right to Sue’ letter and brought this action [alleging in part, Intentional Infliction of Emotional Distress (“IIED”), and Civil Conspiracy to Commit the same]. … Defendants now move to dismiss Counts VI and VII of the Amended Complaint for failure to state a claim upon which relief may be granted.” Summers grounded his IIED claim on the allegation, that his employer, Extrity, “directed its employees or agents …to message him, with the intent to intimidate him and dissuade him from suing the company.” Exrity argued that this allegation was entirely conclusory, and that the pleadings did not sufficiently connect the company to the post-termination texts. The court agreed with Extrity, finding that Summer’s allegations while possible, were not plausible. As such the Court dismissed the IIED claim. The Court then addressed the separate count of civil conspiracy to commit IIED. The court posited that: To state a claim for civil conspiracy, a plaintiff must show: “(1) a combination of two or more persons acting with a common purpose to do an unlawful act ...; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.” (internal citations omitted). However, “absent a civil cause of action for a particular act, there can be no cause of action for civil conspiracy to commit that act.” From here the court concluded because there was no viable claim for IIED, there cannot be a viable claim for Civil Conspiracy to commit IIED. Summers is a victory for civil defendants, in that it upholds an important obstacle to proving civil conspiracy. It makes clear that a necessary element for sustaining a claim for civil conspiracy, is a viable claim for the underlying tort/unlawful act that a given set of defendants allegedly conspired to commit. Thanks to Stephen Kerstein for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Premises Liability Mode-Of-Operation Theory A Matter of Probability (NJ) October 30, 2013 < Back Share to: The mode-of-operation theory of liability for a premises liability action against a business is a tempting strategy. It absolves an injured plaintiff of the burden of proving that the business owner had notice of a dangerous condition in time to address it. As tempting as it is, it has its limitations. For one, the plaintiff must show that the alleged condition was related to the manner in which the business is conducted. Earlier this year, in February, we reported that the New Jersey Appellate Division issued an unreported decision, Cashour v. Dover Parkade, LLC, that limited application of the mode-of-operation theory where the plaintiff was unable to sustain a link between the object she slipped on and the defendant store's business operations. In that case, the plaintiff fell on a plastic bag that was in front of a store. However, she could not link the bag to the store's operations. Now the Appellate Division has issued a reported decision addressing this theory once again. In Arroyo v. Durling Realty, LLC, the plaintiff alleged that she slipped on a discarded telephone calling card left on the sidewalk in front of a convenience store. The plaintiff linked the cards to the store, noting that the phone cards were displayed on racks near the store's cash register next to the exit doors. She argued that due to the proximity of the cards to the door, the business should have foreseen that someone might buy a card, use it, and then immediately discard it on the sidewalk. With no real proof as to actual or constructive notice, the plaintiff's only chance was through this mode of operation argument. However, she had to convince the judges that "as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business." The judges were not persuaded. Since the patron would have selected the card, paid for it at the cashier, and left the store, the nexus between a self-service operation and the card on the sidewalk was too attenuated. Summary judgment was affirmed. This reported decision should help to clarify that notice is still a required proof burden for a claim against a retailer with limited exceptions. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News The Court of Appeals Opines on the NYC Sidewalk Law February 23, 2016 < Back Share to: When a plaintiff sues for a trip and fall over a defective sidewalk in the City of New York, the controlling law is New York City Administrative Code §7-210. This statute states that when personal injury is caused by a defective sidewalk, the abutting property owner will be liable if it failed to maintain the sidewalk in a reasonably safe condition. Sometimes, when a sidewalk defect is on or near the border of two adjacent properties, the plaintiff will sue both property owners in an effort to maximize a potential settlement. In Sangaray v West River Associates LLC, the plaintiff tripped and fell when his toe came into contact with a raised portion of a New York City sidewalk. The sidewalk flag ran from the front of a property owned by defendant ‘West River’ to an adjacent property owned by defendant ‘Mercados.’ West River moved for summary judgment arguing that because the area of the sidewalk upon which plaintiff tripped was located entirely in front of the Mercado property, the defect did not abut the West River property, and consequently, West River could not be held liable. The trial court granted West River’s motion, and the Appellate Division affirmed. Plaintiff appealed to the New York State Court of Appeals which overturned the decisions of the lower courts and denied West River’s motion. The Court of Appeals reasoned that although the location of the actual defect is significant, it does not “foreclose the possibility that a neighboring property owner may also be subject to liability for failing to maintain its own abutting sidewalk in a reasonably safe condition where it appears that such failure constituted a proximate cause of the injury sustained.” In this case, the Court noted that most of the sunken sidewalk flag that the plaintiff traversed abutted West River’s property. Thus, even though the actual defect may have technically abutted the Mercado property, West River failed to meet its burden since there remained factual questions as to whether it breached its duty to maintain the sidewalk flag abutting its property and, if so, whether that breach constituted a proximate cause of plaintiff’s injuries. When defending a sidewalk defect trip and fall in the City of New York, defense counsel should be mindful of this holding. Although a co-defendant may believe it is entitled to summary judgment based simply on the exact location of the sidewalk defect, the necessary legal analysis is more nuanced. Defendants must consider whether a co-defendant property owner’s failure to maintain its portion of the sidewalk can, in any way, be considered a proximate cause of the accident. In doing so, it may be possible to successfully oppose a co-defendant’s motion for summary judgment Thanks to Jeremy Seeman for his contribution to this post. Previous Next Contact

News Show Me The Facts (PA) December 10, 2021 < Back Share to: In Gayle Staiger and John Staiger v. Weis Markets, Inc., d/b/a Weis Markets, a customer of Weis Markets filed suit against the store after she allegedly slipped and fell while browsing the beverage isle. Gayle Straiger, and her husband John Staiger, asserted claims of negligence and loss of consortium against Weis Markets for failing to properly maintain the premises. However, the sole factual allegation contained in the complaint was that Gayle Staiger “believes and avers that there must have been a substance in the aisle which caused her to fall.” Properly identifying the lack of factual averments in the complaint, Weis Markets moved to have the case dismissed for failure to state a claim. The Court agreed with Weis Markets and dismissed the complaint in its entirety. To establish a claim under premises liability, a plaintiff is required to allege the existence of a dangerous condition on the premises that creates an unreasonable risk of harm to the invitees. In this case, rather than providing factual averments detailing the existence of such a condition, Gayle Staiger simple alleged that her fall “must have been” caused by a spilled substance, because otherwise she would not have fallen. The Court was not satisfied with this lone factual averment. The Court noted that under Pennsylvania law, the “mere fact that an accident occurred does not give rise to an inference that the injured person was the victim of negligence.” Based on Gayle Straiger’s bare-bone complaint, this is exactly what she was asking the Court to infer. Pennsylvania is a “fact pleading” state, meaning a complaint must aver sufficient facts upon which a claim for relief can be supported. Here, Weis Market’s attorneys rightly spotted the deficiency in the lawsuit brought against it and brought the case to a quick end by filing a Motion to Dismiss. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Policy Excludes Coverage For Injuries To Subcontractor's Employees (NJ) May 9, 2013 < Back Share to: The New Jersey Appellate Division in Essex v. Pine Towers Group, recently analyzed whether a CGL policy of insurance issued to a general contractor provided coverage for an action seeking damages for bodily injuries to an employee of a subcontractor. Pine Towers ("Pine") was the general contractor for a construction project in Newark and was issued a policy of general liability insurance underwritten by Essex Insurance Company ("Essex"). Pine hired FM Home Improvement, Inc. ("FM") who, in turn, hired Brothers Home Construction ("Brothers") to install siding. One of Brothers’ employees was injured when he fell through an opening in a scaffold, which he alleged was hazardous and dangerous. Pine sought coverage for these claims from Essex. Essex denied the claim for coverage. The trial court found that Pine was entitled to coverage as an additional insured under the policy of insurance issued to FM. However, it also found that the Essex policy excluded coverage because of an endorsement barred coverage for bodily injury sustained by any contractor, subcontractor or their employees. The Appellate Division upheld the trial court’s denial of coverage under the Essex policy. The Essex policy contained an "Additional Conditions Endorsement," which required Pine’s contractors and subcontractors to maintain minimum commercial general liability coverage. While failure to comply with this provision would not void coverage, it did reduce the limits of liability. These two paragraphs were interpreted by the Court to apply to contractors that were in privity with Pine. The third paragraph of the endorsement stated that there would be no coverage for "bodily injury" sustained by any contractor, subcontractor or their employees. Pine argued that the subject provision was ambiguous, and should only apply to exclude coverage for claims of bodily injury by contractors that were in privity with Pine, that is, those that Pine contracted with as opposed to the subcontractors of Pine’s subcontractors. Pine also argued that the condition barring coverage for subcontractors did not apply as it was intended only to protect Essex from covering workers compensation claims. The Appellate Division disagreed finding that the clear intent of the third-paragraph was to limit the insurer’s exposure to all claims for "bodily injury" asserted by any contractors and subcontractors. Therefore, the lower court properly denied coverage under the Essex policy. Thanks to Andrew Marra for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News NJ Court Holds Statutory Insurance Minimums Supersede Stated Policy Coverage Limits November 25, 2020 < Back Share to: The matter of Rafanello v. Taylor-Esquivel arose out of a multi-vehicle accident involving a commercial dump truck operated by Jorge Taylor-Esquivel and under the control of his employer, NAB Trucking (the truck was leased). Esquivel, however, was not listed in the Covered Driver’s section of NAB’s liability policy. The trial court determined that NAB’s exposure was capped at $35,000 which, in the court’s view, was the maximum liability limit pursuant to the policy which was clear and unambiguous. The policy at issue was underwritten by American Millennium Insurance Company (AMIC). Plaintiff’s auto insurer, Encompass, filed a third-party action against AMIC to recover underinsured motorist benefits it paid to plaintiff Rafanello, who was injured as a result of Esquivel’s alleged negligence. The trial court granted summary judgment in favor of AMIC and dismissed the third-party claim, finding that the policy’s plain terms mandated that coverage be reduced to $35,000. However, the Appellate Division reversed. On appeal, the Court found that where the Legislature had adopted a separate statutory scheme for a class of motor vehicles and did not specify the amount of compulsory liability insurance coverage required, it had delegated that authority to the Commissioner of Insurance in consultation with the Director of the Division of Motor Vehicles. These regulating agencies had adopted federal statutes and regulations into its own regulatory scheme for a specific class of motor vehicle. The Appellate Division found that the subject dump truck was transporting hazardous materials and was therefore a vehicle governed by a specific NJ statutory scheme that incorporated Federal law through interpreting regulations. Thus, since Federal law required interstate trucking companies to provide liability limits of $750,000 for any commercial interstate vehicle weighing more than 10,001 pounds, the AMIC policy had to conform to those requirements and provide the statutory minimum in insurance coverage. This case illustrates the importance of knowing state and federal statutory insurance minimums, as a policy’s stated coverage limits may be called into question when there is conflicting statutory insurance minimums required for certain vehicles. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News No PIP For You (NJ) July 11, 2019 < Back Share to: In Washington v. Progressive, the New Jersey Superior Court was asked to determine if the plaintiff, Jacquelyn Washington, was entitled to damages for personal injuries and UIM coverage following a January 2015 a motor vehicle accident on the Garden State Parkway. Following the accident, the plaintiff had applied for medical expense benefits under her Pennsylvania Progressive Insurance policy. She also filed suit against the defendant driver seeking damages for personal injuries. For purposes of background, Washington was living in New Jersey for about two years, but was driving a car owned by her brother that was registered and insured in Pennsylvania, which carried $5,000 in medical benefit coverage. She used the SUV frequently as her main means of transportation. Most importantly, she kept the car parked at her New Jersey apartment. After suit was filed, defendant moved for summary judgement asserting that plaintiff’s claim was barred because she had not procured the requisite amount of New Jersey PIP coverage, a minimum of $15,000. The judge agreed. The judge indicated that the plaintiff was barred from recovering damages under N.J.S.A. 39:6A-4.5(a), which stated that a person who failed to maintain the requisite coverage shall have no cause of action for recovery of economic or non-economic loss sustained as a result of an accident while operating an uninsured automobile. His reasoning was simple. The car was “principally garaged” in New Jersey and therefore plaintiff had to maintain New Jersey automobile liability insurance coverage, including the mandatory $15,000 PIP coverage. As noted above, the plaintiff only had $5,000 in medical coverage. Every automobile operator that has his or her car “principally garaged” in New Jersey, meaning it is chiefly kept in New Jersey, must have the requisite insurance coverage. Here, the plaintiff kept her car at her apartment in New Jersey and did not have proper coverage and, thus was barred from recovery as a result. Thus, this case reveals the importance of determining the applicable statutory requirements when analyzing a motor vehicle accident potentially involving multiple states. Thank you to Marc Schauer for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News Is a Facebook "Friend" Request Ethically Dishonest? September 5, 2012 < Back Share to: Social media may offer a treasure trove of information in personal injury litigation and its lure can be strong. However, there may be a wicked hook to contend with if an attorney goes fishing too far. A plaintiff’s attorney has filed an ethics complaint against two defense lawyers after damaging information was discovered on his client’s Facebook page. The trouble for the defense team began when the plaintiff upgraded his privacy settings on Facebook. A paralegal at the defense firm "friended" the plaintiff to obtain photos and a video of him wrestling. After settling the case, the plaintiff’s attorney cried foul claiming that the paralegal’s friend request was tantamount to improper contact with his client in violation of ethical rules. The ethical charges include failing to properly supervise a nonlawyer assistant, dishonesty and violations of ethics rules, and conduct prejudicial to the administration of justice. There will be a hearing this fall that should give some guidance on the issues raised. While New Jersey has not weighed in on the issue yet, other jurisdictions have found it to be unethical to "friend" someone under false pretenses and without proper disclosure. For more information, contact Denise Ricci at dricci@wcmlaw.com . Previous Next Contact