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News Barking Up The Wrong Tree: Court Grants Owner Summary Judgment For Dog's Accident December 12, 2013 < Back Share to: Typically, lawsuits involving dogs arise out of dog bites. But a more unusual scenario arose in Buicko v Neto, where a dog running loose in the street caused an accident and the injured party sought to have the dog's owner held liable. The defendants’ installed an invisible fence along the boundary of their property intended to allow their dog, Dudley, free to explore. The dog was fitted with a collar that provided a small electric shock when the dog ventured too closely to the underground “fence.” One day, plaintiff rode her bicycle past defendants’ home and noticed Dudley barking and zigzagging along the front boundary of the property. Apparently, the invisible fence didn't provide much of a deterrent, as plaintiff alleged Dudley bolted from defendants’ yard directly in the path of her bicycle causing her to inadvertently strike the dog and fall. The trial court awarded the homeowner's summary judgment, and the Appellate Division, Third Department, affirmed the dismissal finding that plaintiff submitted insufficient evidence to demonstrate that the defendants were liable. Similar to a dog bite case, the found that the owners needed to be on notice of a propensity for similar conduct. While recognizing that the propensity could include “a dog’s habit of chasing vehicles or otherwise interfering with traffic” and thus endangering people’s safety, the court found that there was no evidence that Dudley had a history of chasing bicycles or interfering with traffic. A dog’s propensity to bark at traffic and run around a yard was deemed insufficient to raise a question of fact regarding the homeowner's notice for the dog's conduct here. Thanks to Steve Kaye for his contribution to this post. Previous Next Contact

News We've Got Coverage Haikus Covered at WCM January 17, 2020 < Back Share to: Some of our lawyers just love coverage too much. To share that love, their talents and some humour for the new year, please enjoy these two haikus penned by our very own William Blake, Lauren Berenbaum. Plain language controls coverage disputes today, disclaim or reserve? The tender was sent, proper notice was given – Are you covered? No. For her next trick, Lauren will attempt to incorporate her next Haiku into a coverage position letter. And on our website, maybe we'll have to add "Poetry" as a new practice area? Previous Next Contact

News Email Can Seal a Settlement (NY) July 29, 2013 < Back Share to: Although most of us aspire to be "men [and women] of our word," New York requires more than a handshake or oral agreement to constitute a binding settlement. CPLR 2104 insists on "a writing subscribed by [a party] or his attorney." In this age of emails, text messages, posts and tweats, the vexing question is what constitutes such a writing. In Forcelli v. Gelco Corporation, the defendants filed a motion for summary judgment in this motor vehicle accident case. While the motion was pending, the parties participated in an unsuccessful mediation but continued their negotiations thereafter. After the usual back and forth, the third party administrator for the defendants wrote a email to plaintiff's counsel confirming that her settlement offer of $230,000 had been accepted, conditioned on the tender of the customary settlement documents. She also ended her correspondence, "Thanks Brenda Greene." As bad luck would have it, the motion judge issued a favorable decision granting the defendants' summary judgment motion about 3 weeks later but before the plaintiff sent the requested settlement documents to the adjuster. It appears that the defense attorney had not been advised of the settlement and rejected the papers once received because "no settlement had been consummated..." A dispute then arose about whether an actual enforceable settlement had been reached. Adopting a common sense approach and embracing email as a ubiquitous method of communication, the Appellate Division, Second Department held that the email confirmation meet New York's statutory requirement that a settlement be confirmed in "a writing subscribed by [a party] or his attorney." The third party administrator was deemed an agent of the defendants' insurer. As important, the adjuster's type written insertion of the simple phrase, "Thanks Brenda Greene," satisfied the requirement that the settlement be subscribed in writing. Of note, the court hinted that an automatic return address may not be sufficient but that is for another day. Emails are here to stay and it is encouraging to observe the court's embrace of newer methods of doing business. The lesson for both sides of the bar is simple: insist that your adversaries add their type written names at the end of an email if you want a binding agreement. If you have any questions about this post, please email Paul at pclark@wcmlaw.com .       Previous Next Contact

News Third Circuit Clarifies Timing of Removal to Federal Court. October 20, 2011 < Back Share to: An issue that has tripped up many a litigator is the timing of just when a case must be removed to federal court. 28 U.S.C. §§ 1441, 1446, the federal removal statute, states that the removal must occur within 30 days of service on the defendant. But what happens in a multiple defendant case? Must the removal occur within 30 days of the service of the first served defendant or 30 days from service of the last known defendant or does each defendant get its own 30 day window? The Fourth and Fifth Circuits have adopted the “first served” rule and held that the 30 day period ends 30 days after service on the first defendant. The Sixth, Eighth, Ninth and Eleventh Circuits have adopted the “later served” rule and held that each defendant gets 30 days from the date on which it, itself, was served to remove the case to federal court. In the case of Delalla v. Hanover Insurance, the Third Circuit has just weighed in. It has adopted the later served rule. Good news if you are in a multiple defendant products liability case in places like Atlantic City or Philadelphia! If you have any questions about this post or WCM’s product liability practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Justice Is Still No Laughing Matter in NJ. March 15, 2013 < Back Share to: We previously commented on the case of NJ municipal judge Vincenzo Sicari who under the alias of "Vince August" plies his comedic trade by night (and administers justice and legal services by day). NJ's Supreme Court has now taken up the issue. The question is whether comedic performances are incompatible with the proper decorum required for judicial office -- as an officer of the court I will bite my tongue on further comment on this point. Who will get the last laugh? Stay tuned to find out! (And you thought that NJ's highest court had more important things to worry about). For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News SDNY Holds Coverage for Insured’s “Work” Does Not Include Design, Sale, and Manufacture of Asbestos-Containing Products August 16, 2024 < Back Share to: In Ironshore Specialty Insurance Company v. Color Techniques, Inc. , CTI was named as a defendant in ten asbestos exposure lawsuits. 2024 WL 3634860 (S.D.N.Y. Aug. 1, 2024). The lawsuits broadly alleged CTI engaged in the sale, manufacture, installation, and contracting of asbestos-containing products. Id. at *2. CTI requested defense from Ironshore, its insurer, for these actions. Id. Coverage C of the Policy covered claims of bodily injury caused by exposure to an insured’s products which “occur[ed] away from a location [the insured] own[s] or operate[s].” Id. at 1. In contrast, Coverage G of the Policy covered claims of injury arising out of a pollution incident caused by the insured’s “work,” defined as “operations performed by you” or “materials … furnished in connection with such work.” Id. Ironshore disclaimed under Coverage C based on an asbestos exclusion but agreed to defend CTI subject to a reservation of rights under Coverage G. Id. at 2. Ironshore further opined that only some of the alleged activities—like installation and contracting—fell under Coverage G. Id. In response, CTI argued that Coverage G encompassed other conduct—such as designing, sale, and manufacturing. Id. at *5. On review, the Court first considered the extent of coverage under the Policy for the underlying actions. Id. Evaluating Coverages C and G together, the Court concluded that Coverage C related to “product-related injuries occurring away from CTI’s worksite,” while Coverage G applied to “injuries caused by CTI’s work operations in progress.” Id. at 6. The Court therefore concluded the “work” referenced in Coverage G could not include claims of designing, selling, and manufacturing without rendering Coverage C meaningless. Id. at 7. Second, the Court considered whether extrinsic evidence relieved Ironshore of its duty to defend. Id. Ironshore’s evidence indicated the underlying actions raised product-liability claims against CTI as a manufacturer—not claims based on CTI’s installation work. Id. Under an exception to New York’s four-corners rule, extrinsic evidence unrelated to the underlying merits could be used to show no possibility of coverage. Id. at 4. Applying this principle, the Court concluded most of Ironshore’s evidence did not concern the merits of the underlying actions; rather, it sought to show the claims against CTI were not subject to Coverage G of the Policy. Id. at 8. Ironshore Specialty Insurance Company v. Color Techniques Inc. .pdf Download PDF • 248KB Previous Next Jessica Whelan Jessica Whelan Associate +1 267 665 0877 jwhelan@wcmlaw.com Contact

News Art Basel. The Florida Sun, The Glamour and, Of Course, an Insurance Dispute. December 10, 2009 < Back Share to: Art Basel, arguably the most important art show in the United States, took place this past weekend in Miami Beach, but not without incident involving the world of fine art insurers. Prior to the opening of the art expo, a dozen U.S. Marshals and police officers arrived on the scene to seize paintings by Fernand Leger, Joan Miro, Edgar Degas and Yves Klein following an insurance dispute between two art dealers. In July, Edelman Arts Inc., a New York gallery, as assignee of XL Specialty Insurance Corp., brought suit in New York Federal Court against Galerie Gmurzynska regarding a damaged Robert Ryman painting. The lawsuit alleges that Edelman consigned a Ryman painting to Gmurzynska for sale at Art Basel Miami Beach 2007, which was insured for $750,000. The plaintiff claims that the work was returned with considerable damage including “gouges” and that the defendant refused to pay the insured value of the work. While the suit resulted in a default judgment for Edelman of $765,000, due to Gmurzynska’s failure to answer the complaint, the seized paintings are estimated at ten times the value of the judgment, the standard amount usually confiscated for auction. An undisclosed settlement was reached between the dealers and the paintings were ultimately returned to the gallery’s exhibition space before the end of the expo. Thanks to Chris O’Leary for his contribution to this post. http://www.bloomberg.com/apps/news?pid=20601088&sid=aX82sXGnDW4Y http://www.miamiherald.com/entertainment/arts/art-basel/story/1364846.html Previous Next Contact

News Philly: Not as Bad as You Think? April 20, 2012 < Back Share to: We have previously commented, with more than a touch of gallows humor, on Philadelphia’s illustrious rank as the # 1 judicial hellhole in the country. But maybe, Philly is not as bad as you think. The average civil jury award in Philadelphia fell 31% in 2011 – from an average of $1.49 million in 2010 to $1.02 million in 2011. The question is: why? Is it the economy? Poorer quality cases? Or better juries? The problem is – there’s no way to know for certain. So, while Philly might not be as bad as you think it is, there’s still exposure above the standard $1,000,000 CGL exposure. As long as you’re prepared for that contingency, we’re prepared to try your insured’s case. After all, there’s no (legal) rush like the trial rush. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Attorney Client Privilege Under Siege in PA? February 24, 2011 < Back Share to: The attorney-client privilege is used to protect communications between clients and their attorneys, but a Philadelphia judge has recently ruled that it is not nearly as broad as some might think. In Kolar v. Preferred Unlimited Inc., Judge Mark Bernstein ruled that under Pennsylvania law the attorney-client privilege protects only a client’s communications to the attorney, not communications from the attorney to the client (unless they reveal the client’s communications). Although some attorney communications may be protected as attorney work-product, they are not protected as communications per se. Despite this ruling, this does not appear to be the last word on this subject in Pennsylvania and we will keep you posted of further developments in this area. Special thanks to Mendel Simon for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://pdf.wcmlaw.com/pdf/PA Priv.pdf * * * * * UPDATE: 2/23/11 Pennsylvania's highest court has just issued a ruling http://www.pacourts.us/OpPosting/Supreme/out/J-58-2010mo.pdf that, in Pennsylvania, "the attorney-client privilege operates in a two-way fashion to protect confidential client-to-attorney or attorney-to-client communications made for the purpose of obtaining or providing professional legal advice." This is a big development -- especially in the coverage context. Previous Next Contact

News Treat, No Trick, For Insurers, When Appellate Division Affirms Discovery Obligations (NY) November 1, 2019 < Back Share to: This week, the First Department in Dabo v. One Hudson Yards Owner, LLC, reversed a ruling from the Supreme Court, effectively reaffirming that an insurer’s claim file, including investigative reports, is immune from disclosure in discovery when same were prepared in anticipation of litigation against its insured. In the underlying personal injury action, the defendants had moved pursuant to CPLR 3103 for a protective order barring plaintiff from obtaining the accident reports prepared by its insurer. The trial court ruled that the documents should not be accorded privilege from disclosure under a protective order, even if they had been prepared solely for the purpose of litigation, because the defendants had not demonstrated that such reports had not been prepared by the insurer in the regular course of the insurance company’s business. Defendants appealed and one year later the appellate division unanimously reversed, reiterating the general rule in New York that documents in an insurer’s claim file, including investigative reports, that were prepared for litigation against its insured are immune from disclosure. As insurers (and their counsel) breathe a collective sigh of relief that the disclosure requirements of claims file have not, in fact, been significantly eroded, insurers must always proceed with caution when faced with discovery demands calling for its reports and files. Thank you to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions.   Previous Next Contact

News Unambiguous Limitations In Agency Agreement Enforced By NJ Appellate Division. December 22, 2009 < Back Share to: Traverso v. Guthaim, et al, was an insurance coverage case involving a dispute between, Charles Heidt , Inc, an insurance agency, and Encompass Insurance Company. Pursuant to the terms of an Agency Agreement , Encompass authorized Heidt to bind certain kinds of insurance contracts issued by Encompass, but subject to various limitations and underwriting quidelines. The trial court granted Encompass' Motion for a directed verdict finding that Heidt's authority to bind coverage was clearly and unambiguously limited by the Agency Agreement and the underwriting guidelines issued by Encompass, and that Heidt exceeded its authority when it attempted to add a three-family house to the insured's existing homeowner's policy. The Appellate Division affirmed . http://www.judiciary.state.nj.us/opinions/a1562-07.pdf Previous Next Contact

News Fall From Ladder Not Enough For NY Labor Law § 240 November 28, 2012 < Back Share to: In Noble v. 60-261 Madison Avenue, LLC, the First Department once again re-affirmed that a fall from a ladder, without more, does not establish a violation of Labor Law § 240. In Noble, the six-foot tall plaintiff claimed that he was standing on the sixth or seventh rung of a ten-foot ladder in order to perform work on the 10 foot, 7 inch high ceiling when a piece of conduit pipe on which he was holding for support, broke free, causing him to fall. The Supreme Court granted the plaintiff's motion on Labor Law § 240, but the First Department reversed, finding an issue of fact. The First Department denied plaintiff summary judgment for a few reasons, one of them being that there was no evidence that the plaintiff was forced to lean or had to reach to perform his work and thus, an issue of fact existed as to whether the plaintiff actually stood high enough on the ladder as would warrant securing the ladder beneath him. The implication here is if the ladder did not need to be secured because plaintiff was standing on a lower rung than he claimed and there was no defect in the ladder, there would be no evidence to show that the ladder was inadequate. Thank you to Gabriel Darwick for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact