News The Soft Market Blues Continue. October 21, 2009 < Back Share to: The last few years have not been kind to insurers and the market has remained soft. A new study suggests that these soft market blues will continue into at least 2010 as excess capacity and recessionary economic conditions continue. If you would like more information regarding this post, please email rcosgrove@wcmlaw.com . http://www.businessinsurance.com/article/20091021/NEWS/910219997 Previous Next Contact

News New Atmosphere for Ongoing-Storm Rule (NJ) May 7, 2020 < Back Share to: Recently, in Pareja v. Princeton International Properties, the New Jersey Appellate Court analyzed whether the ongoing-storm rule applies in New Jersey. One winter day at 7:50 a.m., the plaintiff, Angel Alberto Pareja (“Parejca”), was walking from his car to the defendant, Princeton International Properties’ (“Princeton”) property (“Property”) when he slipped and fell on black ice after stepping onto the Property’s driveway apron. At the time of the accident, it was not snowing, nor did Pareja observe any ice on the roadway. Nevertheless, as it was thirty-two degrees and drizzling sleet, Pareja wore slip-resistant shoes. Moreover, one day prior to the accident, the National Weather Service issued an advisory predicting an inch of snow and sleet accumulations and trace amounts of ice for the time period between 1:00 a.m. and 10:00 a.m. the next day, i.e., the day of the accident. In addition, the National Weather Service warned that untreated surfaces might become slippery due to the precipitation. Although Princeton traditionally retained ice and snow removal services for the Property, no such services occurred the day of the accident. As such, there had been no snow or ice pre-treatment or removal before Pareja’s fall. Ultimately, Princeton filed a motion for summary judgment in the trial court asserting the on-going storm rule applied. In agreement, the trial court granted Princeton’s motion and held the on-going storm rule operated to preclude Princeton’s liability for the Accident. Significantly, the trial court determined that Princeton, as a commercial landowner, had no duty to keep the premises free and clear of snow and ice until after a reasonable amount of time passed following the cessation of the storm. In response, the plaintiff appealed. In pertinent part, Pareja argued the ongoing-storm rule was inapplicable. On appeal, the Court first considered the facts and circumstances surrounding the accident. Specifically, based on the record, the Court presumed that, at the time of the Accident, pedestrians were using the public sidewalks to go in and out of the defendant’s property, as the property consisted of a combination of business offices and apartments. Moreover, the Court reasonably inferred the defendant knew about the weather advisory providing that untreated surfaces might become slippery. The Court next analyzed the rationale of the ongoing-storm rule. In doing so, the Court concluded the ongoing-storm rule arbitrarily relieves commercial landowners from any obligation to ensure safety at their property while it is snowing. Specifically, the Court determined the ongoing-storm rule fails to deter tortious behavior and prevent accidents because it ignores situations where it is reasonable for a commercial landowner to remove or reduce foreseeable/known snow or ice hazards. Accordingly, based on the facts and circumstances of the accident, and the basis of the ongoing-storm rule, the Court held Princeton had a duty to take reasonable steps to ensure the Property and the public walkway abutting the Property was reasonably safe from snow or ice on the day of the accident. The Court reasoned that a commercial landowner’s duty of removing or reducing the foreseeable harm associated with snow and ice is not fulfilled by always waiting to act until after a storm ends. By extension, the Court held a commercial landowner may be liable if, after actual or constructive notice, it fails to act reasonably and prudently under the circumstances to remove or reduce the foreseeable hazard caused by snow and ice. In reversing the trial court’s decision, however, the Court stressed that its holding does not impose absolute liability for every slip and fall on snow and ice that occurs during a continuous storm, nor does it require landowners to take unreasonable precautionary measures or immediately clear snow and ice falling during an active storm. Rather, the duty of ordinary care, which was applicable in the instant matter, requires commercial landowners to act in a reasonably prudent manner in all circumstances. Finally, the Court held the question of whether a landowner acted reasonably was a question for the jury to decide. In sum, while this New Jersey Appellate Court decision precludes landowners from relying on the ongoing-storm rule to justify inaction, it stresses the importance of the reasonableness standard. And perhaps just as important, the reasonableness of a commercial landlord's acts and omissions during a storm are left for a jury to decide. It will be interesting to see how the standard of reasonableness develops in this context as defense of future cases of this kind will be reliant on specific facts. Thanks to Lauren Berenbaum for this post. Please contact Vincent Terrasi with any questions or comments. Previous Next Contact

News Improper Service: No Harm, No Foul (PA) January 25, 2019 < Back Share to: A Pennsylvania Court determined that a plaintiff’s good faith attempts to effectuate service tolled the statute of limitations. In Mandarano v Plink, the Pennsylvania Court of Common Pleas in Lackawanna County heard an interesting case regarding a failure to comply with the Pennsylvania service statute. In Mandarano, the Plaintiff commenced a premises-liability action one day before the statute of limitations expired by serving the President of the Defendant company via a detective agency. Under Pa.R.C.P. 400(a), original service in Pennsylvania is only to be effectuated by a Sheriff. As a result, the Defendant filed preliminary objections seeking that the complaint be dismissed for failure to comply with Pa.R.C.P. 400(a). The Defendant argued the statute of limitations is tolled only if the plaintiff makes a good faith effort to effectuate service of process on the opposing party, which he argued did not occur. Plaintiff countered, stating that Pa.R.C.P. 126 enables a court to “disregard any error or defect of procedure which does not affect the substantial rights of the parties.” In analyzing the situation, the Court first relayed the standard for evaluating untimely service. To warrant the dismissal of an action based upon the untimely service of original process, the record must reflect that either (1) plaintiff demonstrated an intent to stall the judicial machinery by delaying the proper service of process, or (2) the defendant was prejudiced by plaintiff’s failure to comply with the procedural rules governing service. The type of prejudice required to warrant a dismissal based upon improper service of process involves a “substantial diminution of the defendant’s ability to present factual information in the event of trial which has been brought about by plaintiff’s delay” in the proper service of original process. The Court found no evidence of any prejudice nor that the plaintiff intentionally acted in a manner that was designed to stall the judicial process. Moreover, since the Defendant’s officer was furnished with timely notice of the filing of this suit, the Court found that the purpose of the statute of limitations was satisfied. This case poses an interesting situation, where the specific requirements of a statute were not met, but where the Plaintiff’s action complied with the spirit and purpose of the statute. Most states contain statutes and regulations allowing Courts to disregard any defect of procedure that does not prejudice another party. The Defendant could not provide any evidence that he was prejudiced, and the Plaintiff was allowed to proceed in his lawsuit. There was no-harm, and, thus, the Court found no-foul. Thanks to Malik Pickett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News A Connecticut Auto Dealer in Pennsylvania’s Court: Personal Jurisdiction over the Internet (PA) March 12, 2021 < Back Share to: Does the Commonwealth of Pennsylvania have personal jurisdiction over an auto dealer in Connecticut? This was the question recently examined by the Lackawanna County Court of Common Pleas in D&S Auto Sales v. Commercial Sales & Marketing. The Defendant, a Ford dealership located in Mystic, Connecticut filed a preliminary objection to a claim of faulty service and repair of a vehicle filed in Lackawanna County, PA arguing that there can be no showing of personal jurisdiction over their business with only one location, several sates away. The Plaintiff argued that the dealership, “advertises through national media outlets, including the internet, for the sale of its vehicles to Pennsylvania residents” and “shipped merchandise, including vehicles and parts, directly or indirectly into Pennsylvania.” Defendant responded that less than 1% of their business involved Pennsylvania residents and that “[s]uch figures fall substantially below the continuous and systematic contacts required” t5o establish jurisdiction. The Court looked to Pennsylvania’s “sliding scale” test of jurisdiction that is used to examine the degree and type of interactivity of a website to determine whether there are sufficient contacts with Pennsylvania to establish jurisdiction. The Court found that “Valente's website, at a minimum, falls within the ‘middle ground’ where a user can exchange information with the host computer. It is also markedly interactive.” The Court pointed to the ability to schedule maintenance, order parts, request test drives to demonstrate interactivity and also pointed to a page on their website that specifically explained the process for out of state purchasers. The Court held that personal jurisdiction was proper under these circumstances. This case demonstrates that in the age of the internet, even one location businesses could be subject to suit several states away. A business knowingly doing business with customers outside of the state they physically operate in can open themselves up to the risk of suit across the country, even if this business is an insignificant percentage of their sales. Thanks to Ryan Geib for his contribution to this post. Should you have any questions, please do not hesitate to contact Tom Bracken. Previous Next Contact

News Losers Pay in Texas? May 27, 2011 < Back Share to: It appears that there is a fighting chance that Texas will pass losers pay legislation. If passed, the bill would be the first of its kind in the country and would award costs and fees to a prevailing party in a meritless suit. We shall see if the bill passes and if it signals a new wave of tort reform. Previous Next Contact

News One Accident, One Plaintiff, Two Lawsuits, Different Defendants and No Collateral Estoppel January 10, 2008 < Back Share to: In Sneddon v. Koeppel Nissan Inc., 2007 NY Slip Op 10524, AD Index 2006-06909 (Queens Co. Index 11249/05) plaintiff claims he was struck by a Nissan Pathfinder that suddenly accelerated while the driver was attempting to park. Plaintiff commenced his first action against the driver and successfully moved for summary judgment, whereupon the trial court found the driver's negligence to be the "sole proximate cause" of plaintiff's injuries. Two years after that action settled, plaintiff brought a second lawsuit for products liability and negligent repair against Nissan North America, Koeppel Nissan, Inc., and Habberstad Nissan, Inc., who were not parties in the first lawsuit. The trial court granted the defendants' motion to dismiss, determining plaintff was collaterally estopped from asserting anything other than the driver's negligence caused his accident. The Appellate Division - Second Department reversed, stating that the doctrine of collateral estoppel does not apply since the issues in the first and second lawsuits are "discrete and not identical." http://www.nycourts.gov/reporter/3dseries/2007/2007_10524.htm Previous Next Contact

News Flagman's Wave No Cause For Collision (NY) January 21, 2016 < Back Share to: In order to prevail in a negligence action, a plaintiff must prove that the defendant’s actions or omissions were the proximate cause of the accident causing injury. Although there can be more than one proximate cause of an accident, the defendant’s negligence must be a substantial cause of the plaintiff’s injuries. Although a proximate cause determination is usually considered a fact question for the jury, a court may decide this issue if only one conclusion can be drawn from the facts. In Canals v Tilcon NY, Inc., the plaintiff was riding his bicycle north on a two-lane highway when he came upon a flag person at a construction site where Tilcon was the general contractor. The plaintiff contended that the flag person, who was looking north, waved on the northbound traffic to proceed. A northbound car proceeded and approached his bicycle “too close” causing him to veer his bicycle into a trench and sustain injuries. Tilcon successfully moved for summary judgment on the grounds that plaintiff did not establish that the flag person’s actions were the proximate cause of plaintiff’s injuries. On appeal, the Second Department found that at most, the flag person furnished the condition for plaintiff’s accident, but ultimately the driver 's and the cyclist's actions were the proximate cause. As such, there was no triable issue of fact. Thanks to Sheree Fitzgerald for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Can a Decedent Maintain a Negligence Lawsuit if He Dies before Affirming the Defect? (NY) March 29, 2019 < Back Share to: In Perrelli v. Evangelista, the decedent fell on his landlord's driveway, and the injuries ultimately caused his death. The estate brought an action to recover damages for wrongful death alleging the defendants negligently maintained the driveway. Defendants moved for summary judgment on the grounds that plaintiff failed to sufficiently identify the cause of the fall. Plaintiff opposed the motion asserting that the Noseworthy doctrine (see see Noseworthy v City of New York, 298 NY 76) should apply, imposing a lighter burden of persuasion on the plaintiff since the plaintiff was not alive to testify as to the cause of his fall. Plaintiff submitted an expert affidavit in which the expert identified allegedly dangerous conditions affecting the driveway. Plaintiff also submitted the affidavit of plaintiff’s friend, who was present with the decedent the evening of the accident but did not witness the fall. The Supreme Court denied the defendants’ motion and defendants appealed. The Appellate Division, Second Department, reversed the lower court’s decision denying defendant’s motion on the grounds that plaintiff could not identify what caused the decedent to fall. The Appellate Division reasoned that Noseworthy doctrine does not eliminate need to prove causation and expert’s opinion identifying different defects did not prove what caused decedent to fall. Since the trier of fact would be forced to speculate as to the cause of the accident, no triable issue of fact was raised. Thanks to Margaret Adamczak for her contribution to this post. Please email Brian Gibbons with any questions   Previous Next Contact

News Defamation Case Won... Stay tuned for Insurance DJ (PA) October 28, 2016 < Back Share to: Character is much easier kept than recovered. ~Thomas Paine Thus forms the basis of attorney Thomas A. Riley Jr.’s suit captioned Riley vs. Philadelphia Media Inc. et al in the Philadelphia County Court of Common Pleas. Riley was a chairman of the Pennsylvania Convention Center Authority board from 2007 to 2011. In October 2011, The Philadelphia Inquirer published an article by writer Tom Infield addressing corruption and misspent tax money at the Philadelphia Convention Center. The article suggested that Riley directed “secret legal fees” to his law firm and then covered up the bills. The Journal Register Co. East then published a follow up story that focused on Riley’s alleged misconduct. Riley claimed he told The Philadelphia Inquirer that their allegations were false. Infield claimed he misunderstood. Riley claimed that Infield never vetted his article. Infield claimed that he issued a correction online to address the mistake. Yet at the end of these back-and-forth claims, the outcome was the same: Riley’s reputation was damaged. Clients, potential judges, and fellow attorneys alike questioned Riley’s integrity. Riley then sued Main Line Media News, the Journal Register East, The Philadelphia Inquirer, Daily News, and Philly.com, the news outlets responsible for the publication of the damaging articles. The Philadelphia Inquirer, Daily News, and Philly.com settled with Riley on confidential terms. Judge Angelo J. Foglietta then awarded Riley $1.5 million against Main Line Media News and the Journal Register East. Additionally, the defendants were ordered to remove the offending article within 10 days or be subject to a fee of $2,500 per day. Riley’s attorney noted that this matter is not quite closed yet. The Journal Register East’s insurer has disputed its duty to indemnify its insured for the judgement leading to consideration of an action to seek recovery of the award from the insurance carrier by way of breach of contract or bad faith claims. It is unclear if the defendants will appeal the order. Thanks to Melanie Brother for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com     Previous Next Contact

News Patching Elevated Gutter Pipe Not Within Purview of Labor Law §§ 240(1) and 241(6) January 7, 2008 < Back Share to: In Azad v. 270 5th Realty Corp, 2007 NY Slip Op 10086, AD Index 2007-04164 (Kings Co. Index Index 7390/05), the plaintiff was injured while he repaired two holes in a gutter pipe approximately 35 feet up on the outside of a building owned by the defendant. Specifically, plaintiff fell when his ladder, that plaintiff placed on top of garbage, shifted. In reversing the trial court's decision that had granted plaintff summary judgment on his Labor Law §§240(1) and 241(6) claims and awarding summary judgment to the defendant landowner, the Appellate Division - Second Department determined plaintiff was not performing any of the protected activities enumerated under Labor Law § 240(1), but was merely performing "routine maintenance." Similarly, the Appellate Court found plaintiff's work was not construction, excavation or demolition work and therefore and did not qualify for a Labor Law §241(6) claim. http://www.nycourts.gov/reporter/3dseries/2007/2007_10086.htm Previous Next Contact

News WCM Wins Summary Judgment on Premises Case in Queens September 28, 2018 < Back Share to: This past week, Wade Clark Mulcahy was victorious in its motion for summary judgment, absolving two homeowners of exposure in a sidewalk trip and fall case. Brian Gibbons and Chris Gioia prepared the motion, and Chris argued the motion before Hon. Ernest F. Hart of Queens County Supreme Court. In, Calle-Gonzalez v. Borukhov, the Court ruled that our clients, homeowners in Queens, were entitled to summary judgment for a trip and fall which occurred on the sidewalk in front of their single family home. Under New York City Administrative Code’s Section 7-210, liability for sidewalk defects is placed upon owners of the adjacent property. However, Section 7-210 also provides for an exception of one-two or three family homes. Judge Hart ruled that we demonstrated that unit was a single family, owner-occupied dwelling. Additionally, the Court found that the owners had not made negligent repairs, nor had they utilized the sidewalk for a ‘special use’, two exceptions which would deny summary judgment. Plaintiff's claims will continue against the City of New York, and will focus on the issue of notice. But, barring any appellate practice, our clients are out of this case permanently. The tricky aspect of motions like this one involves plugging up any potential holes that could create a "triable issue of fact," which could prompt SJ denial. At argument, Chris Gioia left no doubt that our clients were not liable here, and the Court agreed. Please email Brian Gibbons with any questions, or contact me on Twitter @bgibbons35. Previous Next Contact

News Take My Wife... Please! (NY) May 3, 2018 < Back Share to: The late Henny Youngman would have enjoyed the facts of Ostego Mutual v. Dinerman, (May 1, 2018), where a wife's fraudulent misrepresentation in a property damage claim nearly prejudiced her husband's, through no active fault of his own. The Appellate Division, First Department found that one of the named insureds, Mrs. Dinerman, had committed fraud related to the policy and thus was not covered. But the policy was not void as to defendant’s husband, also a named insured, simply due to the wife's fraudulent acts. However, the Court found that Mr. Dinerman failed to timely file a proof of loss and as such violated the policy provisions. Defendant, Mrs. Dinerman, was found to have violated the “Misrepresentation, Concealment and Fraud” condition of the homeowners policy issued by plaintiff when she submitted receipts for reimbursement for living expenses that she did not actually incur after a fire damaged their home. Dinerman claimed that the amount was minimal and as such it should not void the policy as to her. The Court found this argument unveiling and stated that the amount of fraudulently obtained monies is not the issue, the fact is that she violated the policy and as such it is void as to her. As for Mr. Dinerman, the Court found that his claims under the policy would withstand his wife’s fraudulent misrepresentations and the policy is not void as against him. This is an interesting position for the Court to take in light of the fact that the policy covered a shared home and would in effect be covering some loss of Dinerman even though she violated the policy. However, the court found that Mr. Dinerman also violated the policy in his own way, thus permitting plaintiff to decline coverage. Mr. Dinerman did not alert his insurance company about the damage or provide proof of loss within the prescribed time period. As such, the plaintiff insurance company had a right to decline coverage. This case presents an interesting question as to whether Mr. Dinerman would have been permitted to recover under the policy absent his failure to provide proof of loss, even with his wife’s confirmed fraudulent behavior. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact