Wade Clark Mulcahy LLP

News In For A Penny, In For Two Pounds? (NY) September 4, 2020 < Back Share to: In a recent case decided by the New York Supreme Court, the court warns insurers that “in for a penny” might mean more than “in for a pound,” but rather two pounds. In 101 West 78th Street v. Sweet Construction and New York Mercantile and General Insurance Company, (2020 NY Slip Op 32737), the court provided a lengthy opinion detailing a lengthy insurance dispute between an insurer and both its named insured (Sweet, the construction manager on a specific project) and an additional insured (101 West 78th Street) that hired Sweet to perform work at its commercial building. The dispute originally began when Ocean Grill sued 101 for property damages arising out of a construction project, whereby 101 began construction work that included scaffolding being placed directly in front of Ocean Grill’s entrance. Ocean Grill also alleged the construction caused excessive noise vibrations, odors and conditions which required Ocean Grill to temporarily close and lose nearly $1.5 million in lost income. The action by Ocean Grill against 101 was for breach of contract for 101's failure to allow egress and ingress to the restaurant and in failing to prevent excessive noise vibrations and odors from entering. 101 hired Sweet as construction manager and included in that agreement was the requirement that Sweet purchase CGL insurance for claims including property damage and commercial umbrella/excess liability, and that Sweet agree to defend and indemnify 101 in any and all legal proceedings brought against 101 pertaining to the project. Sweet purchased CGL coverage for the project and NYM had already been required to defend Sweet after previous motion practice. Ocean Grill subsequently settled the underlying action with 101, and by way of motion for summary judgment, 101 was now seeking all past defense costs against Sweet and NYM. NYM had taken the position in denying coverage to 101 that coverage was limited to “liability for property damage caused in whole or in part by" the acts or omissions of Sweet or those acting on its behalf in the performance of Sweet’s ongoing operations for 101 at the location designated. NYM argued (among other things) that Sweet was not identified in the underlying complaint as a cause of the property damage and that even if Ocean Grill had sustained property damage, the underlying complaint did not allege that the alleged damage resulted from an occurrence during the policy period. The court however, noting the well-settled premise of “exceedingly broad” coverage for insureds and additional insureds, found no merit in NYM’s argument that because the Ocean Grill did not specifically name or refer to Sweet in its complaint that this was in and of itself a reason to deny coverage. Further, the court relied on the fact that there were allegations of unintended physical damage to the property, and necessity for repair or replacement of the pipe provided enough demonstration for coverage. Thus, after having previously been ordered to defend Sweet, the court now held NYM was also required to pay for past legal fees of 101. Thanks to Tom Bracken for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News Insurance Broker’s Fiduciary Duty a “Fact-Specific” Question of Law for the Court October 3, 2017 < Back Share to: One particularly thorny area of the law with respect to insurance providers and brokers is the scope and breadth of any attendant fiduciary duties owed to an insured. In Ring v Meeker Sharkey Associates LLC, the New Jersey Superior Court Appellate Division recently upheld the trial court’s decision that the Plaintiffs’ homeowners’ insurance brokers did not owe a duty to advise the insureds of vulnerability in their coverage and a need for excess flood insurance. Ring is another case developing New Jersey’s insurance law following Hurricane Sandy. The Plaintiffs owned two beachfront homes along the Jersey Shore. For more than a decade, they secured both homeowners and flood insurance for the homes through Defendant Meeker Sharkey. In 2008, Plaintiffs moved their insurance accounts to Willis of New Jersey. In 2010, Plaintiffs’ moved their homeowners’ coverage back to Meeker Sharkey, but continued to secure flood insurance through Willis. In 2012, Hurricane Sandy ravaged Plaintiffs’ properties, causing catastrophic – and largely uncovered – losses to both. The crux of the ensuing litigation was Plaintiffs argument that as part of their transfer of homeowners’ insurance back to Meeker Sharkey in 2010, the firm undertook a review of Plaintiffs’ insurance coverage generally, and therefore owed a duty to alert Plaintiffs to their gap in flood insurance coverage, as well as a duty to affirmatively advise them to obtain excess floor insurance. The Ring Court decision underscores and reiterates than in New Jersey, the determination of whether a duty exists is a question of law to be determined by the courts, while also noting that there is no bright-line rule and that the inquiry is intensely fact-specific. Here, the Court found that the homeowners’ insurance broker did not have a duty to provide advice about flood insurance where the Plaintiffs engaged a separate entity, Willis, to secure its flood insurance. The fact that Meeker Sharkey knew or should have known of the gap in coverage did not create a duty to Plaintiffs under these circumstances. Ultimately, the Ring court was not called to determine whether Willis had breached the duty it owed. The question of whether or not that duty was breached is one of fact, for a jury. Thanks to Vivian Turetsky for her contribution to this post. Previous Next Contact

News Surgery Not Necessarily A Permanent Injury Under Tort Claims Act (NJ) November 16, 2017 < Back Share to: In a claim against a New Jersey public entity, a plaintiff must prove a permanent and substantial injury to permit recovery. Under the Torts Claims Act, public entities are immune from suits unless there is permanent loss of a body function, permanent disfigurement or dismemberment. In Paz v. State of New Jersey, the plaintiff suffered injuries to her neck, back and shoulders after a trip and fall accident on a sidewalk at the Motor Vehicle Commission. She was diagnosed with cervical disc herniation, chronic neck pain, cervical neck pain, cervical radiculopathy, lumbar disc herniation, lumbar radiculopathy, chronic back pain, status post lumbar microdiskectomy and failed back syndrome. By all accounts, plaintiff enjoyed a good surgical outcome, and reported her pain was largely resolved just two weeks after surgery. Plaintiffs treating doctor stated that she had reached maximum medical benefit. She returned to work and remained employed for two years following the accident. Although she complained of debilitating pain, plaintiff had no medical restrictions on her, and she relied upon over-the-counter medications for pain relief. Plaintiff's medical expert found a decreased range of motion in all directions in her neck, but he did not identify the degree to which her range of motion was decreased, or how that resulted in the substantial loss of any bodily function. The court found that the plaintiff did not sustain a permanent loss of an bodily function under the language of the Torts Claims Act. Although it is not necessary for a plaintiff to prove a total permanent loss of use of a bodily function, "a mere limitation on a bodily function" will not suffice. Similarly, "an injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain," is insufficient. The court dismissed the plaintiff's claim, finding that she failed to demonstrate any reduction in normal function that was both permanent and substantial. Although unreported and not precedential, this case is an example of the threshold of injury required under the Tort Claims Act. Even surgery may vault the requirement of a substantial and permanent injury. The court will examine how a plaintiff has recovered from injuries and to what extent residual impact there has been on life a person's function. Thanks to Heather Aquino Obregon for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Furnishing The Occasion Is Not the Same As Causation In Premises Liability Case (NY) December 16, 2022 < Back Share to: Furnishing the occasion for a trip and fall, may not lead to a party being found as the cause of the accident. Generally, if a premise is open to the public, the owner has a nondelegable duty to provide the public with a reasonably safe premise and safe means of ingress and egress. However, that duty ends at the property line, absent extenuating circumstances. In Ellen Buehler v. Town of Pawling, 2022 NY Slip Opp 07047 (2nd Dep’t, Dec. 14, 2022), Ms. Buehler suffered an injury when she tripped and fell a few steps outside a building owned by defendant Town of Pawling. Specifically, Ms. Buehler exited the building through the front entrance, and entered the abutting Route 292, a state owned highway. After making a right turn, and taking a few steps down the road, she tripped and fell within the roadway and sustained injuries. Ms. Buehler alleges that the area was not properly illuminated, which caused her to fall. Defendant Town of Pawling moved for summary judgment on the issue of liability, and the motion was granted. The court stated that “generally liability for a dangerous condition on real property must be predicated upon ownership, occupancy or special use of the property.” An owner “owes no duty to warn or to protect others from a defective or dangerous condition on neighboring premises, unless the owner had created or contributed to it.” Ultimately, the court ruled that defendant Town of Pawling provided a safe means of egress via the front entrance of the building, and “the fact that the plaintiff had the option of walking directly into a paved street from the end of its front entrance ramp, at most, furnished the occasion for the accident, but was not one of its causes.” As such, even though the means of egress provided may lead directly to a dangerous and defective condition, this case establishes that under the circumstances therein, leading a patron to a dangerous condition does not make one liable for the subsequent injuries sustained, absent ownership, or contribution to the condition itself. Thanks to Chris Palmieri for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Non-Parties Cannot Intervene In Insurance Company’s Declaratory Judgment Action August 19, 2022 < Back Share to: In County Hall Insurance Company, Inc. v. Mountain View Transportation, LLC, the M.D.P.A ruled that non-parties who had a personal injury claim against an insured individual cannot intervene in the insurance’s company’s declaratory judgment action that it filed against the same insured. The underlying state court suit stemmed from a motor vehicle accident in which a number of occupants were seriously injured. Following this accident, County Hall, Mountain View’s Insurance provider, filed a declaratory judgment action against Mountain View and John Humes, arguing it was not obligated to provide coverage under the policy because John Humes was not a scheduled driver of Mountain View and any punitive damages awarded are not recoverable under the policy. When Mountain View and Humes failed to file an answer, County Hall requested default judgment be entered against them. Around the same time, individuals who were allegedly involved in the underlying motor vehicle accident filed a motion to intervene, arguing that they had a claim to the property at the center of insurance company’s declaratory judgment, and thus they should have the ability to protect their interests. The Court denied the non-parties attempt to get involved in County Hall’s declaratory judgment against Mountain View. The Court ruled that under federal law, “strangers to an insurance contract cannot intervene as of right in a declaratory judgment action…to establish scope of coverage.” Although the non-parties claimed their economic interest in the applicability of the policy was sufficient to support their motion, the Court disagreed, stating the “mere economic interest in the outcome of litigation” is insufficient to the support the motion. In short, despite the outcome of County Hall’s declaratory judgment having a practical effect on the non-parties ability to recover in their personal injury suit, they have no right to participate in the action. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Late Notice of Tort Claim Approved? Not So Fast (NJ) April 2, 2021 < Back Share to: In New Jersey, a plaintiff sought to file a late notice of tort claim identifying a police officer that she claimed was responsible for her injuries. The plaintiff in Pagan v. Rivera sought help from the police department when she was threatened by a former boyfriend in violation of an Order of protection. Despite plaintiff’s concerns that the former boyfriend could be hiding in her apartment, the responding officer instructed her to go into the building to retrieve her identification and a copy of the Order. The plaintiff’s fears proved accurate, and she was assaulted inside the building. In New Jersey, the Torts Claims Act requires that persons who have claims against public entities or their employees provide a notice of the claim within ninety (90) days. While the plaintiff filed a timely notice, she failed to properly name the responding officer. Although her complaint was filed in Federal Court, the plaintiff filed motion for leave to file a late notice of tort claim in New Jersey Superior Court. The motion was granted. On appeal, the Appellate Court concluded that the Superior Court lacked jurisdiction to hear the motion, and that the motion should have been filed in Federal Court. The court also determined that the defendant was entitled to oral argument on the motion, and that the trial court improperly decided the motion on the papers. This matter confirms that a defendant should always ensure that a court has jurisdiction for all pleadings and motions. Additionally, a defendant should always push for, and insist on, oral argument for important decisions. Please contact Heather Aquino with any questions. Previous Next Contact

News 911 Calls Regarding Roaming Pitbulls Did Not Create "Special Duty" on Part of City. August 16, 2012 < Back Share to: In Sutton v. City of New York, a 90 year old was mauled to death by two pitbulls that had been roaming the neighborhood for three months. The plaintiff claimed that repeated calls to the police by the decedent's neighbors and family regarding the roaming pitbulls put the City on notice of the damager, and created a "special duty" to protect the decedent from attack. The court found that the plaintiff failed to satisfy the elements of the four part test to establish the "special duty." The elements are: (1) assumption by the municipality to act on behalf of the party that was injured; (2) knowledge on the part of the municipality that inaction could result in injury; (3) direct contact between the potential victim and the municipality's agents, and (4) the party's reliance on the municipality's affirmative undertaking. Since the decedent did not make any calls on his own, and had no direct contact with city, there was no "affirmative duty" to act on his behalf. Accordingly, the court granted the City's motion for summary judgment and dismissed the case. For more information about this post, please contact cfuchs@wcmlaw.com .   Previous Next Contact

News Avoiding Liability in Rear-End Collisions May 17, 2016 < Back Share to: Generally, a rear-end collision with a stopped vehicle creates a prima facie showing of negligence on the part of the rear driver. Defendants can rebut the presumption of negligence where the rear end collision was the result of a sudden emergency. The “emergency doctrine” recognizes that where a defendant driver rear-ends another vehicle because of a sudden and unavoidable emergency, the defendant driver may not be negligent if his actions are reasonable and prudent in the context of an emergency. In Maisonet v. Roman, plaintiff sustained personal injuries when defendant’s vehicle struck the rear of his vehicle. After defendants served their answer, the plaintiff moved for partial summary judgment on liability, arguing that because he was hit in the rear, he was entitled to judgment against the defendants as a matter of law. In opposition, defendants argued that they had a valid emergency doctrine defense. The defendant driver submitted an affidavit explaining that to avoid a head on collision with another vehicle that had cut him off, he was forced to swerve to his left, causing him to strike the back of the plaintiff’s vehicle. The lower court granted plaintiff’s motion, and on appeal, the First Department reversed and denied plaintiff summary judgment. The Court opined that the facts viewed in a light most favorable to defendants were sufficient to raise triable issues of fact “as to the existence of an emergency and the reasonableness of defendant driver’s response to that emergency.” The Court further explained that the emergency doctrine may protect a driver from liability where the driver, through no fault of his or her own, is required to take immediate action in order to avoid being suddenly cut off. In defending rear-end motor vehicle accidents, defendants should be cognizant of the emergency doctrine defense. If the defendant driver faced any type of emergency immediately prior to the collision, this could constitute an emergency and a viable defense. At the very least, defense counsel should consider the emergency doctrine as a defense to a plaintiff’s summary judgment motion on liability. Thanks to Jeremy Seeman for his contribution to this post.   Previous Next Contact

News Dead Men Tell No Tales (PA) May 2, 2019 < Back Share to: On April 15, 2019, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of defendant David K. McMullin, Administrator of the Estate of Zachary Hohman, on the ground that the action was barred by the statute of limitations. The case arose out of a motor vehicle accident that occurred in Turtle Creek Borough, Pennsylvania on July 13, 2014, when the car Kayley Ryan was riding was rear-ended by a car driven by the deceased. However, the decedent passed away on April 8, 2015 from a cause unrelated to the accident and plaintiff did not commence a lawsuit against the decedent until July 7, 2016. Once plaintiff found out decedent was no longer alive, plaintiff had McMullin appointed as the administrator of decedent’s estate. Once McMullin was appointed, plaintiff sought to amend his complaint to substitute decedent’s estate rather than decedent himself. However, the Court denied the motion to amend. Plaintiff then commenced a new action on December 2, 2016 which was filed more than 2 years after the accident and more than 1 year after decedent’s death. As such, defendant filed a motion for summary judgment seeking dismissal of the complaint on the ground that it was barred by the statute of limitations. Plaintiff countered that defendant was estopped from asserting a statute of limitations defense on grounds of fraudulent concealment because decedent’s insurer had not told her counsel that decedent had died. There was no dispute that the statute of limitations expired before plaintiff filed this action and the Court deemed plaintiff’s fraudulent concealment claim meritless. To show fraudulent concealment, a plaintiff must prove by clear and convincing evidence that the defendant or his agent made an affirmative misrepresentation or committed an affirmative act of concealment on which the plaintiff justifiably relied. Mere silence by the defendant or his agent in the absence of a duty to speak does not bar the defendant from asserting a statute of limitations defense. Additionally, an insurer is under no duty to notify opposing counsel of its insured’s death. Thus, the Court ruled that defendant did not making any false representations about decedent and therefore summary judgment was warranted. As such, the Court affirmed the trial court’s grant of summary judgment and dismissed the case. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Broad Policy Exclusions Are Vulnerable to Reasonable Expectations (PA) November 23, 2022 < Back Share to: On November 2, 2022, in Atain Insurance Company v. V2 Properties LLC, the Eastern District of Pennsylvania, Judge Padova issued a memorandum decision denying Atain Insurance Company’s (“Atain”) motion for judgment on the pleadings, arguing that its policy issued to V2 Properties (“V2”) provided no coverage for losses sustained in connection with a personal injury judgment entered against V2. The personal injury judgment resulted from a decedent’s fall from scaffolding while performing masonry work at a home construction site in Philadelphia. In the underlying action, it was alleged V2 was the general contractor for the project, responsible for the safety of all work performed. Based on an allegation in the underlying complaint stating that the decedent was a business invitee and construction worker performing masonry work at the site, Atain asserted that the decedent fell under “one or more of the several types of workers identified in the Employer’s Liability Exclusion,” and therefore, sought a judicial declaration stating it did not owe V2 a defense or indemnification in respect of the underlying action. In response to the declaratory judgment complaint, V2 asserted, among other things, an affirmative defense stating the policy did not reflect the reasonable expectations of the insureds and asserted the policy should be reformed to do so. Specifically, the policy’s Employer’s Liability Exclusion, barred coverage to, any insured to indemnify or contribute with another because of damages arising out of “bodily injury” to an “employee”, subcontractor, employee of any subcontractor, “independent contractor”, employee or any “independent contractor”, “temporary worker”, “leased worker”, “volunteer worker” of any insured or any person performing work or services for any insured arising out of and in the course of employment by or service to any insured for which any insured may be held liable as an employer or in any other capacity. In arguing against Atain’s judgment on the pleadings, V2 asserted that the exclusion is ambiguous as applied because it is unclear if “it is limited in its application to only those injuries sustained by direct employees of [V2]” or “vitiates all insurance coverage for the insured's most common and foreseeable liability risk—liability for injuries to any workers on the construction job site.” This was rejected by the court because the language does not give rise to multiple meanings; however, the question of whether the language is reasonable in light of V2’s expectations, as an affirmative defense, was an issue on which the court was unwilling to rule. Specifically, it stated that the totality of the insurance contract had not been established and therefore it was not possible to ascertain the reasonable expectations of the insured. Accordingly, the court denied Atain’s motion and determined the question of reasonableness should be resolved on a full factual record. Thanks to Richard Dunne for his contribution to this article. Should you have questions, contact Matthew Care. Previous Next Contact

News Juror's Facebook "Friend Request" Nearly Overturns Convictions March 25, 2010 < Back Share to: Last month, two Bronx convictions for criminally negligent homicide were overturned for evidentiary reasons. Firefighters responded to a fire in an apartment building in which tenants had created partitions in apartments to create extra rooms. The new rooms, however, were cut off from both hallways and fire escapes. Due to the lack of escape routes, two firefighters were tragically killed during the fire. A jury convicted the building owners for criminally negligent homicide. Those convictions have now been overturned because, according to the judge, there was insufficient evidence that the defendant building owners actually knew about the illegal partitions. Another aspect of this recent decision examined a particular juror's behavior during the trial. One of the jurors, Karen Krell, sent a Facebook "friend request" to a testifying witness, Firefighter Brendan Cawley, during the trial. In her decision, Judge Margaret Clancy found that these actions by Ms. Krell constituted a "serious breach of her obligations as a juror", but did not quite rise to the level of misconduct that would require overturning the convictions. As it turned out, the convictions were overturned for other reasons, as mentioned above. Still, scenarios such as this one should compel judges to expand their jury instructions before and during trial. Judges generally instruct jurors not to speak to the witnesses or lawyers in the halls or outside the courthouse during the trial, so as to not create even the appearance of impropriety. Given that we are now in a digital age, judges would be well advised to expand those jury instructions from courthouse space to cyberspace, charging jurors to refrain from contacting any witness by any means, electronic or otherwise, thereby avoiding potentially costly appeals. While avoiding such cyber-contact with a witness during a trial may (and should) strike potential jurors as common sense, this case illustrates that common sense is often uncommon, and courts should offer more specific and explicit instructions to the jurors. Thanks to Brian Gibbons for his contribution to this post. http://www.nytimes.com/2010/02/24/nyregion/24black.html Previous Next Contact

News Call Your Next Witness - Christon Halkiotis May 2, 2013 < Back Share to: Christon Halkiotis and I have a lot in common, in that we're both former prosecutors who sought a change after a handful of years representing the government. Christon's path took her to criminal defense, where she started her own practice in 2019 in Greensboro, North Carolina after 15 years as a prosecutor. Her practice flourished immediately, which is a testament to Christon's personality, reputation and credibility among colleagues, and also, to a ton of hard work! She shares some lessons about how to make yourself a better attorney, what it was like to "hang out a shingle," and how she has dealt with owning a business during the pandemic. You can listen here, or wherever you download podcasts. If you have questions about the podcast, or about being a guest, please email Brian Gibbons. Previous Next Contact