News Assumption Of The Risk May Not Apply To Blind Seven Year Old Plaintiff Gymnast September 25, 2008 < Back Share to: In McCarthy v. SPINS Gymnastics, a legally blind 7-year-old plaintiff was injured when he fell during his second attempt to vault over a pommel horse in defendant's gymnastics class. The defendant moved for summary judgment arguing that the doctrine of assumption of the risk applied because the infant-plaintiff voluntarily participated in the activity and assumed the risk of injury by engaging in the sport. The Supreme Court, Suffolk County, denied defendant’s motion finding that there were issues of fact as to defendant’s supervision of plaintiff and placement of safety equipment. Considering the infant-plaintiff’s age, physical disability and inexperience with the exercise performed at the time of his accident, the court held it could not determine as a matter of law that the infant-plaintiff appreciated and voluntarily assumed the risks involved in the activity. That issue will be decided by the jury. http://decisions.courts.state.ny.us/fcas/FCAS_docs/2008SEP/5100187262004001SCIV.pdf Previous Next Contact

News NJ Court Upholds Virus Exclusion July 22, 2022 < Back Share to: The Superior Court of New Jersey, Appellate Division recently dealt with a plaintiff’s coverage claim for business interruption cause by the COVID-19 pandemic and Governor Philip D. Murphy’s Executive Order 107(EO 107). EO 107 was a mandate which cancelled large gatherings of individuals, required the closure of “the brick-and-mortar premises of all nonessential retail business,” and mandated the closure of “[a]ll recreational and entertainment business.” The Plaintiff was a country club whose business involved the pre-contracting and pre-planning of social events, such as weddings. Plaintiff was forced to shut down its venue in March 2020 pending further orders from Governor Murphy and later brought suit against its insurer seeking among other things, a declaratory judgment that its insurer was required to provide business interruption coverage for losses sustained while the plaintiff could not operate its business. The policy’s business interruption provision provided coverage for “the actual loss of business income … due to the necessary interruption of business operations … due to direct physical loss of or direct physical damage to property caused by or resulting from a covered cause of loss[.]” Additionally, the policy also contained “Civil Authority” provision which provided coverage for loss of business income when access to plaintiff’s scheduled premises is “specifically prohibited by order of a civil authority as the direct result of a covered cause of loss to property in the immediate area.” However, the policy also contained a “virus exclusion” which stated that the insured would not pay for losses caused directly or indirectly by the “presence, growth, proliferation, spread or any activity of ‘fungus,’ wet rot, dry rot, bacteria or virus.” Ruling in favor of the insurer, the court found that (1) plaintiff’s inability to use its premises to host large social gatherings did not constitute physical loss or damage to its property; (2) plaintiff was not entitled to coverage the Civil Authority provision because the provision required that access to plaintiff’s property be prohibited by a civil authority “as the direct result of a covered cause of loss to property in the immediate area.” (3) Lastly, finding that EO 107 was issued in response to the COVID-19 virus and therefore was caused directly or indirectly by the virus, the court held that the virus exclusion bars any claim for coverage under the policy. Thanks to Steven Kaufman for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Homeowners Policy Does Not Cover Home Renovations (PA) April 12, 2017 < Back Share to: In Fazio v. State Farm Insurance, the US District Court for the E.D. Pennsylvania recently discussed an insured’s burden to prove a property damage claim falls within a policy’s coverage terms. In this declaratory judgment action, the Fazios claimed that they suffered “sudden and accidental direct physical damage” to their property caused by wind, snow and ice. The Fazios sought to replace all of the stucco, most of the windows, and the dining room floor of their home. In response to the initial claim, State Farm assigned an adjustor, who inspected the Property and determined that the policy covered a portion of the claimed loss and made a payment to the of $4,871.05. Shortly thereafter, the Fazios forwarded State Farm additional estimates totaling $85,275. State Farm assigned a specialist, who determined that an expert was necessary to determine the amount of damages attributable to the March 3, 2015 incident. The expert prepared a report of damages and causation, and State Farm issued a supplemental payment of $12,037.38 to the Fazios. The State Farm policy at issue stated that the policy insures for accidental physical loss to property, but carved out exclusions to property damage arising from wear, deterioration, latent defect, settling, cracking shrinking, bulging, or expansions. Furthermore, the policy specifically stated that if a loss is aggravated or caused by defective design, construction, materials or maintenance, then the loss would not be covered. While the Fazios contended that the damage was caused by moisture seeping through the stucco and windows into the interior of the home directly after a storm, State Farm’s expert reported that the stucco was installed at the Property in 2002, thirteen (13) years prior to the claimed date of loss on March 3, 2015. The expert concluded that moisture entering through the stucco at penetration points over time caused cracks and streaking. These damages were not proximately caused by the storm but, rather, by the general condition of the stucco. In fact, planned restoration of the exterior stucco was in place prior to the most recent reported loss. The Fazios did not present any contrary evidence. Although the Fazios claimed that fog and water on the windows of their home was caused by ice and water damming, the Court challenged the Fazios to provide proof that they were not just “old windows” that “just let the air and moisture in.” Citing the principle that an insurance policy is intended for restoration to pre-loss conditions and not for the opportunity to “remodel a home at the insurer’s expense,” the Court concluded that State Farm had sufficiently proven that it paid the entire amount owed to the Fazios under the terms of its policy and granted summary judgment to State Farm. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Can Nurses Opine on Medical Causation? PA's Supreme Court Seems Set to Decide the Issue. December 4, 2009 < Back Share to: In most personal injury cases, an independent medical examination referral is a necessary evil. In low value cases, this can be problematic in that the usual $1,500 cost of an IME (by a doctor) can be worth almost as much as the case itself (especially in Philadelphia’s arbitration court). The nature of the business may, however, be about to change. Earlier this week the PA Supreme Court heard arguments in the case of Freed v. Geisinger Medical Center . At issue in this case is whether a registered nurse can opine on both the standard of nursing care and medical causation under PA's Medical Care Availability and Reduction of Error Act. If the court rules that a registered nurse can opine on medical causation (assuming they otherwise meet the expert standards), there may suddenly be a much larger pool of experts to draw from. If you would like more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202436044407&src=EMC-Email&et=editorial&bu=The%20Legal%20Intelligencer&pt=TLI%20AM%20Legal%20Alert&cn=TLI_AM_LegalAlert_20091204&kw=High%20Court%20Considers%20Scope%20of%20Nurses'%20Testimony%20Again&slreturn=1&hbxlogin=1 Previous Next Contact

News Court Rules The Fair Share Act Mandates Per Capita Division for Strict Liability (PA) February 28, 2020 < Back Share to: In 2014, Roverano brought an asbestos strict liability action against multiple defendants, claiming that his exposure to the defendants’ products (which contained asbestos) resulted in Roverano’s lung cancer. The trial court ruled in Roverano’s favor and, as applied to the Fair Share Act, held that the exposure from each respective defendants’ product was impossible to quantify, it would apportion liability on a per capita basis. In other words, there were six total defendants, so each defendant was responsible for 1/6th of the $5 million verdict. On appeal, the Superior Court reversed and held that the applicable statute alluded to strict liability for tort cases and only excluded four categories of strict liability actions, implicitly including the balance of strict liability cases sounding in tort. Further, the Court held that strict liability allocation amongst joint tortfeasors was required by the Fair Share Act to be identical to the allocation method for negligent joint tortfeasors. The Pennsylvania Supreme Court reversed the appellate court’s finding, holding that per capita apportionment amongst strict liability defendants at fault was required by the Fair Share Act. Specifically, the “plain language is consistent with per capita apportionment in asbestos cases, the Act does not specifically preempt Pennsylvania common law favoring per capita apportionment, and percentage apportionment in asbestos cases is impossible of execution.” Utilizing a cannon of statutory construction, the Supreme Court held that the Fair Share Act did not specifically and unequivocally repeal or preempt existing common law with respect to strict liability. Furthermore, the PA Supreme Court held that “requiring a factfinder to allocate liability between joint tortfeasors in all cases, including strict liability cases, is impossible of execution in asbestos cases.” The Court then declared “the plain language of the Fair Share Act indicates the liability is apportioned equally among strictly liable joint tortfeasors” leaving little room for lower court to distinguish on this issue. Thanks to Matthew Care for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News First Department Rules Insurer Must Defend Asbestos Claims (NY) November 29, 2018 < Back Share to: The First Department recently upheld a trial court decision requiring American Home Assurance Co. (“American Home”) to defend the Port Authority in several underlying asbestos claims in American Home Assur. Co. v Port Auth. of N.Y. & N.J. In 1966, American Home issued a liability policy to the Port Authority relating to the construction World Trade Center complex, then known as the WTC Hudson Tubes Project. The policy covered the Port Authority, as well as the site’s contractors and subcontractors, for liability that "arises out of … all operations … during the policy period in connection with the construction of the project." In 1975, American Home sent the Port Authority a notice of cancellation, effective February 1976. Mirroring a nationwide trend, the Port Authority began experiencing a deluge of asbestos-related claims in the 1980s. American Home defended the Port Authority and several contractors, in thousands of underlying asbestos cases, incurring more than $30 million worth in costs and settlements. The present litigation began in 2012, when American Home filed a declaratory judgment action contending that the pending asbestos claims did not occur during the policy period. Specifically, they argued that for coverage to be triggered, a diagnosable disease needed to exist during the policy period, which was not the case in the underlying actions. The trial judge ruled against American Home, holding that “during the policy period” modified the actual project operations, regardless of when the injuries began. The judge further held that American Home could not rely on a $10 million per occurrence limit for “spray on fireproofing” because the alleged exposures occurred in a variety of ways. Lastly, the court held that the defense costs were not subject to the policy limit, holding that the policy provided “litigation insurance” which survived the exhaustion of the policy limit. On appeal, the First Department affirmed the majority of the trial court’s ruling. The court held that the “plain language” of the policy “means that the policy covers injuries that result from operations that occurred during the policy period.” Therefore, the policy provided coverage regardless of when the injury was diagnosed. Further, the court held that the “spray on fireproofing” limit was not applicable because the claims did not arise from a single occurrence under the policy. Notably, the court held the trial court erred in finding that the duty to defend survives exhaustion of the policy’s liability limit, as “[t]he policy explicitly provides that defense costs are subject to that limit.” American Home could take solace in the First Department’s final ruling, as the defense costs for the pending asbestos claims could amount to further millions in costs. Thanks to Doug Giombarrese for his contribution to this post.   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 The Boy Who Cried Wolf? February 21, 2011 < Back Share to: We're all familiar with the story of the boy who cried wolf. It sometimes seems that talking about mold, the "next" asbestos, in the context of New York is like crying wolf. But, if recent news articles are to be believed, mold may really be about to be a problem in NY -- http://nyti.ms/ePGzbl. Maybe this time, there really is a wolf. For more information, about this post please contact Bob Cosgrove at rcosgrove@wcmlaw.com Previous Next Contact

News Foreign Country Ruled The Appropriate Forum For Damages Sustained in Dubai (NY) October 25, 2013 < Back Share to: In Boyle v. Starwood Hotels & Resorts Worldwide, Inc., New York’s Appellate Division, Second Department affirmed the granting of defendant’s motion to dismiss the action on the basis of forum nonconveniens. The Appellate Division explained that the doctrine of forum nonconveniens allows a court to stay or dismiss an action when, although there may be jurisdiction, it is determined that there is another forum with closer ties to the case. In Boyle, plaintiffs are residents of the United Kingdom and France. The complaint alleges that plaintiffs contracted a disease during separate stays at defendant’s hotel in Dubai. The sole connection to New York in this case was defendant’s principal place of business. The trial court granted defendant's motion, noting that the action had closer ties to the United Kingdom, France or the United Arab Emirates. The Appellate Division conditioned the order on the the defendant accepting service in any new action and waiving any defenses, including statute of limitations, that were not available when suit was initially filed in New York. Both modifications provided that the new action should be commenced within 30 days after defendant provided plaintiff with a signed stipulation. When filing a motion to dismiss based upon forum nonconveniens in New York, make sure that you are comfortable with the jurisdiction you believe is proper for the case because you will be required to agree to the alternate forum’s jurisdiction should your motion be granted. Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Clear Assumption Of Risk Does Not Relieve Defendant's Duty Of Care June 11, 2009 < Back Share to: In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff's assumption of the risk and based on the theory that the plaintiff's actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant's service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries. The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident. Thanks to Maju Varghese for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm Previous Next Contact

News No Way Out - Additional Insured Coverage Owed (NY) March 18, 2013 < Back Share to: As often happens when more than one insurance policy may provide coverage for a claim, the court is called upon to resolve the dispute between insurers. Recently, in 4815 Dev. Corp. v Harleysville Ins. Co. of N.Y., the Appellate Division, Second Department addressed such a claim between two insurers who provided additional insured coverage for the same leased space to the landlord. The underlying claim involved a wrongful death claim wherein the descendent fell through a door and down a flight of stairs at premises leased to a laundramat. By way of background, the plaintiff leased space in a building it owned to Today's Laundromat, Inc. In accordance with the lease, Today’s Laundromat obtained comprehensive general liability insurance from United National Specialty Insurance, naming plaintiff as an additional insured. However, during the course of the original lease with plaintiff, Today’s Laundromat assigned its lease to New Today's Laundromat, Inc. Harleysville Insurance issued a commercial general liability policy to New Today’s, also naming plaintiff as an additional insured. The accident for which plaintiff sought coverage occurred during the terms of both the United and Harleysville policies. When the decedent's estate commenced an action to recover damages for personal injuries, plaintiff requested that United defend and indemnify it. In its notice of claim, plaintiff informed United that the allegedly defective door which caused the decedent's accident had been installed by United's named insured, Today’s Laundromat. Approximately 49 days after receiving plaintiff’s notice of claim, United disclaimed coverage to its putative additional insured on a variety of bases. Plaintiff then commenced a declaratory judgment action. Harleysville agreed to defend and indemnify plaintiff but cross-moved for summary judgment declaring that United was obligated to contribute equally to plaintiff’s defense. Harleysville brought an appeal after the Supreme Court denied it’s cross-motion. The Appellate Division found Harleysville made a prima facie showing that United was obligated to contribute equally to plaintiff’s defense pursuant to the additional insured endorsement in United's general liability policy. Specifically, section 1(b) of the endorsement provided that: "If liability or damage is imposed or sought to be imposed on the additional insured because of: . . . Its acts or omissions and those of the named insured, as to the defense of the additional insured, this insurance will act as coinsurance with any other insurance available to the additional insured, in proportion to the limits of liability of all involved policies." Harleysville provided evidence documenting that a claim asserted against the plaintiff was based upon the acts or omissions of Today's Laudramat, triggering United's duty to contribute to plaintiff’s defense under the additional insured endorsement. Additionally, the Court found that contrary to United's argument, there is no "requirement with respect to a liability policy that an insured have an insurable interest in the covered premises.” The Appellate Court also rejected United's contention that disclaimer was appropriate because plaintiff failed to give notice of the claim "as soon as reasonably practicable," as required by the policy. In countering United’s argument, Harleysville demonstrated that United's 49-day delay in issuing a notice of disclaimer to plaintiff was unreasonable as a matter of law, and, therefore, United was precluded from disclaiming coverage based on the alleged lateness of the notice of claim. Special thanks to Joseph Fusco for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Third Party Action Dismissed For Failing to Prove "Acquired Brain Injury" (NY) November 22, 2012 < Back Share to: In Anton v. West Manor Construction Corp et al., the First Department highlighted the difficulty in proving that a plaintiff suffered a "grave injury" when he is claiming a brain injury. By way of background, New York only permits a third party claim against an employer when its employee has sustained a “grave injury.” One category of “grave injury” is “an acquired injury to the brain.” In Anton, a construction worker was injured when a cinder block was dropped from a height and hit the plaintiff. Plaintiff claimed he was permanently disabled and could no longer work. Relying on Rubeis v. Aqua Club, Inc. 3 N.Y.3d 408 (2004), the Appellate Division agreed that plaintiff’s inability to work was caused by injuries to his neck and shoulder, not by an acquired injury to the brain. In addition, plaintiff’s daily headaches and inability to focus were not sufficient to satisfy the acquired brain injury standard. As a result, all common law negligence claims against plaintiff's employer were dismissed because plaintiff did not sustain a "grave injury" within the meaning of Workers' Compensation Law §11. Thus, when litigating employee/employer "brain injury" cases, a thorough evaluation of the injuries must be conducted to determine whether or not the injury meets the Rubeis standard, i.e. whether the injuries are directly related to the brain. Thanks to Alison Weintraub for her contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com . Previous Next Contact