News Don't Discriminate Against The Unemployed (NY) March 14, 2013 < Back Share to: New York City just passed a law that prohibits employers from discriminating against job applicants on the basis of their unemployment. The law provides that an employer may not advertise that current employment is a requirement for any vacant position or that the employer will not consider an unemployed individual for the job. The law, however, does not prohibit employers from considering professional licensing, experience or training when making hiring decisions. Despite an attempted veto by New York City’s mayor based on concerns over increased litigation by disgruntled employees, the law will take effect in ninety days. Employers now have yet another concern when making hiring decisions and we are likely to see increased employment discrimination litigation. Special thanks to Alison Weintraub for her contribution to this post. For more information, please contact Paul Clark at pclark@wcmlaw.com . Previous Next Contact

News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Mode of Operation Rejected in Sandwich Shop Slip (NJ) October 20, 2017 < Back Share to: In Hockman v. Burrellys LLC, a New Jersey Court recently dealt with the "mode of operation" doctrine in the context of a fall in a sandwich shop. Ordinarily, an injured plaintiff attempting to recover damages under a theory of negligence must prove that the defendant had actual or constructive knowledge of the dangerous condition that caused the accident. However, under the mode of operation doctrine, a plaintiff is relieved of proving actual or constructive notice where as a matter of probability, a dangerous condition is likely to occur as a result of the nature of the business. The burden is then shifted to the defendant to prove that it had taken reasonable steps to avoid the potentially dangerous condition. Importantly, for food services, the mode of operation theory had never expanded beyond the self-service customer setting where customers independently handle merchandise without employee assistance (e.g. supermarket fruit stands, salad bars, buffet-style delicatessens). In this case, plaintiff approached the service counter to place her order. After ordering her sandwich, plaintiff decided to step outside to check if her car was legally parked. As she proceeded towards the exit, she slipped and fell on an unknown substance. Plaintiff testified that she did not see any liquid in the area where she fell, but she noticed that the bottom of her jean cuff was wet. The defendant shop-owner, who was the only other person present in the shop at the time of plaintiff’s fall, testified that she did not see anything on the floor. She also usually swept the shop’s floor in the afternoon and mopped at the end of the day. In addition, the last customer departed more than thirty minutes prior to plaintiff’s arrival. At trial, plaintiff’s liability expert explained that plaintiff’s slip was caused by a hydroplaning effect—the tile flooring allowed liquid to freely move over the surface. He further opined that in a sandwich shop, liquids such as oil, vinegar, soda, and water have a probability of getting onto the floor. He also noted that the sandwich shop did not have standard procedures for inspections or maintenance, and did not place down mats or warning signs. At trial, the jury was charged under mode of operation doctrine and awarded plaintiff $1,280,081.67 in damages. Defendant subsequently appealed asserting that the trial court erred by denying summary judgment on the issue of causation because plaintiff presented no evidence that she slipped on any substance. On appeal, the Appellate Division found that the trial court erred by finding that mode of operation doctrine applied to the facts of this case. The shop-owner explained that sandwiches were prepared and wrapped for customers. Although the shop had a refrigerator with prepackaged salads and beverages, plaintiff did not establish that the dangerous condition in this case was due to how these items were handled by other customers. Moreover, plaintiff had no idea what caused her to fall or why her jean cuff was wet. As such, without the mode of operation doctrine, plaintiff was required to prove that defendant had notice of the allegedly dangerous condition. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Proposal in NY Could Require Business Interruption Coverage for COVID-19 Pandemic April 3, 2020 < Back Share to: A bill proposed in the New York State Legislature might have a far-reaching impact for insurers. On March 27, 2020, the New York State Legislature introduced a bill that would require every policy of insurance insuring against loss or damage to property to include coverage for business interruption during the COVID-19 pandemic. The proposed bill seems to be an attempt to force insurers that provide loss of business coverage to indemnify the insured for COVID-19 related closures and losses. Bill A10226 provides in relevant part: Every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic. The bill indicates that coverage is subject to policy limits, and that it only applies to policies issued to insureds with less than 100 employees. Given the fact that almost every business in New York is impacted by COVID-19, this proposed bill might have an alarming impact for insurers. Thanks to John Lang for contributing to this post. Please email Heather Aquino with any questions. 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 Insurers Overcome Potential Estoppel in DJ Action (NY) April 5, 2017 < Back Share to: In 77 Water St., Inc. v JTC Painting & Decorating Corp, the Second Department recently discussed the burden to succeed on a summary judgment motion seeking status as additional insured in a declaratory judgment action. In the underlying personal injury action, Muhaj v. 77 Water Street, an employee of JTC Painting & Decorating Corp. slipped and fell on debris on a construction site. The worker commenced an action against the property owner, 77 Water Street, and Structure Tone, the general contractor that contracted with JTC. As part of the underlying personal injury, 77 Water Street and Structure Tone commenced a third-party action for contractual defense and indemnification against JTC. JTC moved for summary judgment dismissing the third-party claims on the grounds that there was no written contract between JTC and either 77 Water Street or Structure Tone on the date of loss. The trial court granted JTC’s motion. 77 Water Street and Structure Tone (“Plaintiffs”) subsequently commenced a declaratory judgment action against JTC and JTC’s commercial general liability insurer, Allied World Assurance Company (“Defendants”). Plaintiffs contended that JTC and Structure Tone entered into two written contracts, a blanket insurance/indemnity agreement and an unsigned purchase order, in which JTC agreed to obtain general liability insurance and to name Plaintiffs as additional insureds on the policy. Plaintiffs argued that Defendants were obligated to defend and indemnify plaintiffs because an endorsement in the CGL policy amended the definition of "insured” to include entities “[a]s required by written contract.” Defendants cross-moved for summary judgment declaring, inter alia, that they were not obligated to defend or indemnify the Plaintiffs in the underlying action. In their cross-motion, they argued that the Plaintiffs were barred by the doctrine of collateral estoppel from asserting that JTC had agreed in a written contract to name them as additional insureds on its insurance policy. The trial court agreed, granting the Defendant’s cross-motion for summary judgment and denying the Plaintiff’s motion for summary judgment. On appeal, the Second Department reversed in part, since the Plaintiffs put forth prima facie evidence that the blanket insurance/indemnity agreement required JTC to obtain liability insurance for Structure Tone. Essentially, the blanket insurance/indemnity agreement was a written contract between Structure Tone and JTC. Accordingly, Structure Tone was an additional insured within the meaning of the CGL policy endorsement, and as such, Allied and JTC were obligated to defend and indemnify Structure Tone as an additional insured. (77 Water Street was not an additional insured, as 77 Water was not a "specific owner" as required by the agreement.) Counsel for Structure Tone were able to transfer their clients' risk, despite the uphill battle presented by estoppel in the underlying action. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Insurance Regulation Trumps Automobile Policy Language December 28, 2011 < Back Share to: In Liberty Mut. Fire Ins. Co. v. National Cas. Co., the plaintiffs, ADESA and Louis Amelia, were granted judgment declaring that National was required to defend and indemnify them with respect to several personal injury lawsuits. Subsequently, National settled several of the underlying lawsuits, which exhausted its $1 million insurance policy. It thereafter refused to reimburse plaintiffs for defense costs incurred after the policy was exhausted based on its policy language that provided that its duty to defend ends when the limits of insurance have been exhausted by payment of judgments or settlements. However, New York Insurance Department Regulation 60-1.1(b) requires that an automobile liability insurer pay all defense costs until a case ends and does not excuse an insurer from providing a full defense even after payment of the policy limit. The court held that the conflict between the policy provision and the regulation rendered the policy provision unenforceable. The court further emphasized the general rule that when policy language conflicts with a regulation or is less generous to the insured, it is unenforceable and is superseded by the regulation. http://www.nycourts.gov/reporter/3dseries/2011/2011_09281.htm Thanks to Gabe Darwick for his contribution to this post.   Previous Next Contact

News What’s "Exceptional" about a Late Notice to a Public Entity in NJ October 4, 2012 < Back Share to: The New Jersey Tort Claims Act is the New Jersey Legislature’s answer to the State courts’ attempt to abrogate common law sovereign immunity. This legislation permits certain tort actions against public entities, but it places significant limitations on a plaintiff. One of those limitations is a requirement that a potential plaintiff give the public entity notice of the claim before filing suit. To this end, a claimant must file a Notice of Claim with the public entity within 90 days of accrual of the claim to permit it time to investigate and, perhaps, resolve it. But what happens when a plaintiff fails to file in 90 days? The statute says that the claimant must then show exceptional circumstances to permit a late notice. What exactly qualifies as exceptional circumstances is a matter in that the New Jersey Supreme Court recently took up oral argument of D.D. v. University of Medicine and Dentistry of New Jersey. In D.D. , the plaintiff sought to file a claim when her AIDS status was revealed despite her expectation of privacy of this confidential information. She wrote to UMDNJ to demand that it stop disseminating the information. She also contacted an attorney who met with the school to address the situation. However, the attorney never filed a notice of claim. The plaintiff followed up with the attorney, but he did not take her calls. After 90 days expired, she sought out a new attorney. The Supreme Court justices grilled UMDNJ’s counsel on the issue of exceptional circumstances and whether attorney negligence is "ordinary" "these days." Justice Albin noted the plaintiff’s poor health and unsuccessful efforts to reach her counsel. Albin suggested that an average person would not know about the 90-day deadline. UMDNJ’s counsel pointed out that the current state of the law is that ignorance of law is not sufficiently exceptional. We’ll have to wait to see whether the Supreme Court agrees. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Bunk Beds Are Not Per Se Dangerous (PA) June 10, 2016 < Back Share to: In defense of a negligence action, whether a duty is in fact owed is a threshold question. Without duty, there can obviously be no breach let alone causation. As the existence of a duty is a question of law to be determined by a judge, it can be a determining factor in a motion for summary judgment, as it was in the case of Yun v GREAT WOLF LODGE OF THE POCONOS, LLC,. The plaintiffs’ family of four was given a free room upgrade for their Pocono vacation at Great Wolf Lodge, a resort with indoor water parks and attractions. The upgraded room included an adult bed, pull out sofa and bunk beds. For parents with two daughters aged four and two years, there were ample sleeping options. The infant four year old was excited to sleep on the top bunk – she had never done so before. The parents weighed the dangers of her sleeping in the top bunk. Despite the fact that she slept in a low level bed with the side blocked off at home (for fear that she may fall out of bed), they ultimately decided that the top bunk was not dangerous. At approximately 12:00 A.M., the parents heard a thump and rushed to the children’s room and found that their daughter had fallen from the top bunk onto the carpeted floor. She began vomiting immediately and every 2 hours thereafter. They took her to the hospital where she was diagnosed with a closed nondisplaced skull fracture. In the lawsuit, the plaintiffs pursued premises and products liability theories based on the premise that the bunk bed was a dangerous condition. They disputed that a warning label was affixed to the bunk bed – despite the defendant’s photographic proof of a label that stated, “Never allow a child under 6 years of age on upper bunk.” In opposition to the defendant’s summary judgment motion, the plaintiffs insisted that a question of fact existed as to the negligence of Great Wolf. They contended the free room upgrade was negligent given the age of their daughters. They argued that there had been a failure to warn. Essentially, they contended that the bunk beds were a dangerous condition. In Pennsylvania, the elements of a negligence claim are: (1) a duty or obligation recognized by the law requiring the defendant to conform to a certain standard of conduct for the protection of others against unreasonable risks; (2) defendant's failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; (4) actual loss or damage resulting to the plaintiff. However, according to the Restatement (2d) of Torts, “a possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Great Wolf argued that bunk beds were not a dangerous condition, in support if this they pointed to two non-controlling cases: Rubin v. Olympic Resort, Inc. (New York) and Buck ex rel v. Camp Wilkes, Inc., (Mississippi) both of which stated that notwithstanding any design defects, the potential danger of a bunkbed is obvious and it is for the parents to determine whether a bunk bed is suitable for their children. In fact, the plaintiff parents were admittedly aware of the potential danger of allowing their daughter to sleep in the top bunk. Great Wolf offered expert opinion that the bunk beds in the resort did not violate any code or regulations. He opined that the bed was not used in accordance with the warning provided. Even granting the plaintiffs all favorable inferences, the federal district court could not find a duty on the resort to not offer bunk beds and granted Great Wolf’s motion for summary judgment. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News How Not to Handle a Product Recall: J&J Shows the Way. June 11, 2010 < Back Share to: J&J's handling of the Tylenol recall in the 1980s is lauded as "the" model of how a company should handle a recall; indeed, even the US Department of Defense studies it -- http://www.ou.edu/deptcomm/dodjcc/groups/02C2/Johnson%20&%20Johnson.htm! (Coincidentally, it was also the genesis of the effective commercialization of product recall insurance). However, it appears that J&J has forgotten its prior success and instead is seeking to write a new model of how not to handle a recall. As we reported, earlier this year, J&J subsidiary McNeil Consumer Healthcare ran into a problem with some of its Tylenol products -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=486. In May, that same subsidiary was forced to institute a recall of 40 over-the-counter pain, fever, and allergy medications for infants and children, including certain forms of Tylenol, Motrin, Benadryl, and Zyrtec. As you can imagine, the FDA and Congress has been actively (and publicly) investigating these recalls. Rather, than cooperate with the investigations, it appears that J&J is stalling and refusing to provide requested information -- http://www.nytimes.com/2010/06/11/health/11drug.html?ref=business. The relevant investigative agencies are now considering a more aggressive approach and a criminal inquiry has been opened. J&J seems unaware of the old axiom that the cover-up is always worse than the crime, except, of course, when it's not. If you would like to know more about this post, or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Dismissal Sanction at Trial Backfires on Defendant (NY) September 1, 2016 < Back Share to: All parties in civil suits in New York are obligated to provide relevant information—including documents, videos, and photographs—in response to demands for same. Parties that “willfully or contumaciously” fail to disclose this information are subject to sanction at the Court’s discretion. These sanctions may result in fines or exclusion of the evidence from use at trial, and can even result in the parties’ complaints or answers being stricken. In Fox v Grand Slam Banquet Hall , the plaintiff allegedly tripped and fell on wires while attending a party at the defendant’s facility. During plaintiff’s cross-examination on the third day of trial, she admitted that she had just the prior day found a video of the party. The video had been mislabeled and, consequently, never turned over to defendant in discovery. The plaintiff only provided the video to her attorney before testifying that day, but both the Court and defendant did not discover the video’s existence until during plaintiff’s testimony. The plaintiff did not attempt to introduce the video into evidence and agreed to preclude its admission into evidence (despite the fact that its footage may have been beneficial to her case). She also agreed to strike all testimony about the video. The defendant requested that the presiding judge strike plaintiff’s complaint as a discovery sanction. The judge did so, and plaintiff appealed. The First Department unanimously reversed the trial court’s ruling and ordered a retrial, holding that the trial court had abused its discretion when it dismissed the complaint for failure to disclose the video before trial. The Court held that the plaintiff’s failure to locate or disclose the video of the party did not appear sufficiently willful or contumacious. The Court was not persuaded that the failure to produce the video result in sufficient prejudice to defendant to warrant dismissal of the complaint, particularly in light of the fact that the video would not be introduced at trial. Furthermore, defendant’s discovery demands to plaintiff only requested she turn over photographs in her possession, there was no Court order during discovery requiring plaintiff to turn over video evidence, and there appeared to be confusion amongst the parties during discovery as to whether a video of the party even existed. Under these circumstances, the Court reversed the dismissal. To mitigate prejudice to the defendant in a retrial, the Court granted the defendant an opportunity to conduct additional discovery and to depose the videographer and plaintiff. However, critically, plaintiff may be permitted to introduce the video into evidence during the retrial. This case serves as a reminder to serve broad discovery demands upon opposing counsel. It also serves as a warning to parties against requesting their opponents’ pleadings be stricken where merely excluding the evidence would sufficiently protect their interests. The consequences of a retrial with additional, admissible evidence may be severe. Thanks to Peter Luccarelli for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Can A New York Property Owner Be Liable For A Plaintiff’s Unforeseen Conduct? December 3, 2021 < Back Share to: In Morales v. Mid Bronx Senior Citizens Council, Inc., a New York trial court recently addressed whether commercial property owners were liable for an accident caused by a plaintiff’s unforeseen conduct. Plaintiff in that case alleged that after the conclusion of his employment training at a senior citizen’s home, he attempted to leave the property, but the gate was locked. He then attempted to reenter the building, but that door was locked as well. When plaintiff could not get anyone to answer the door, he tried to leave the property by climbing a 15-foot wall and was injured when he jumped down. The defendants moved for summary judgment in the resulting personal injury lawsuit, arguing that no dangerous condition existed, plaintiff’s actions were the proximate cause of his injures, and that they could not have foreseen such conduct. The court agreed and found that “a reasonable person in plaintiff's situation would not have climbed over an extremely high wall, instead they would have called for help or waited for assistance.” The court held that plaintiff's reckless conduct caused his injury and not the locked gate, which is “not a dangerous condition in and of itself.” The court added that the decision to climb over the wall and jump down “could not have been a natural and foreseeable consequence” of leaving the gate locked. Accordingly, the court found that the locked gate was not the proximate cause of the plaintiff's injuries and summary judgment was appropriate under the circumstances. The Morales decision serves as a reminder that property owners in New York are not subject to liability for injuries or conduct that they could not reasonably foresee. Thank you to Corey Morgenstern for his contribution to this post. Please contact Andrew Gibbs with any questions Previous Next Contact