News Seventh Circuit Affirms Summary Judgment For Employer And Benefit Plan Under ERISA July 22, 2022 < Back Share to: In Canter v. AT&T Umbrella Benefit Plan, plaintiff, a premises technician, applied for and received short-term disability benefits under his employer’s umbrella benefit plan. He provided the plan administrator the requisite “objective medical evidence” in support of his disability claim after he experienced migraines and dizziness, making him unable to claim tall ladders. The plan administrator granted benefits for about five months upon receipt of multiple unremarkable test results and medical reports of mixed improvement in plaintiff’s condition. When one of plaintiff’s medical providers reported that plaintiff’s “persistent dizziness has resolved” but he still experienced “dizziness with exertion,” the plan administrator referred plaintiff’s case to an independent medical reviewer. That reviewer – and two subsequent ones on internal appeal – concluded that plaintiff did not provide the requisite evidence to continue his claim, so the administrator denied the claim, and later rejected the appeal. Plaintiff was ordered back to work early the following year, but was sent home because he did not have a doctor’s note releasing him for work. His employer granted him unpaid time off as an accommodation, but at the end of that period, plaintiff was unluckily removed from payroll because there were no openings that accommodated his work restrictions. Plaintiff brought this ERISA claim for wrongful termination of benefits. The district court granted defendant employer and plan summary judgment because the denial was not arbitrary and capricious in light of the many normal tests and despite some self-reported symptoms and the lack of communication between plaintiff’s treating providers and the independent medical reviewers. The Seventh Circuit affirmed, holding that while the plan administrator’s denial letter was not perfect – and that “improvement is almost always possible in the real world,” namely, by pointing out that no doctor in the weeks before the denial indicated that plaintiff should continue to refrain from working – it contained enough information to demonstrate the reasonableness of a denial and allow plaintiff an opportunity for a full and fair review. Thanks to Abed Bhuyan for his contribution to this article. Should you have any questions, please contact Heather Aquino. Previous Next Contact

News Beware Of Putting Your Golf Shoes On In The Club Parking Lot September 9, 2011 < Back Share to: The hazards of golf are quite well known, as is the duty of yelling "fore" when an errant shot is struck. But what about the peril of being struck by a club member's vehicle as you put your spikes on in the parking lot? In Adler v. Lewis (Supreme Court, Queens County) Justice McDonald exonerated the Fresh Meadows Country Club from liability, finding that the club had neither actual nor constructive notice of club member Lewis's erratic driving behavior. Perhaps plaintiff should have proceeded on a Dram Shop theory -- as opposed to a claim that Fresh Meadows knew or ought to have known that Lewis had difficulty navigating in the confines of the club parking lot. Previous Next Contact

News Insureds "Opt Out" of Significant UIM Award (PA) April 11, 2019 < Back Share to: Under Pennsylvania’s Motor Vehicle Financial Responsibility Law (“MVFRL”), an insurer must provide uninsured (“UM”) and underinsured (“UIM”) motorist coverage equal to the bodily injury liability limits under an automobile insurance policy. However, like most laws and regulations, there is an exception to the rule: an insurer is not required to provide such coverage where an insured submits a written request for lower limits. Recently, the U.S. District Court for the Eastern District of Pennsylvania analyzed whether a named insured changes the UM/UIM coverage limits for insured vehicles when, on a subsequent form adding another vehicle to the policy, he or she fails to affirmatively indicate an intention to “sign down” coverage for the originally insured vehicles. In Limandri v. Allstate Ins. Co, the Court examined the unique factual circumstances surrounding the named insureds’ procurement of coverage to determine whether a second automobile coverage form superseded the named insureds’ initial designation for lower UM/UIM coverage limits. In 2001, the named insureds obtained automobile insurance coverage with Allstate for four vehicles. Simultaneously, the named insureds executed a form requesting lower UM/UIM coverage. Soon thereafter, the insureds decided to add another vehicle to the policy, and signed another form (“2003 Form”) that “unequivocally requested lower UM/UIM limits for this new vehicle.” The form also listed the other vehicles covered by the policy; however, the parents did not check any boxes on the 2003 Form indicating they sought lower UM/UIM limits for the vehicles. The coverage dispute arose when the named insureds’ daughter sustained bodily injury while driving a covered vehicle. When Allstate notified the daughter that she was only entitled to the reduced coverage limit per the 2001 Form, the daughter commenced the instant action against Allstate seeking, inter alia, UIM coverage equal to the bodily injury liability limits. Essentially, she argued her parents did not check any boxes for lower UM/UIM coverage in the 2003 Forms. The daughter also argued: (1) the lower UM/UIM limits did not apply based on the plain language of the 2003 Form; (2) the 2003 Form was ambiguous; and (3) the bi-annual renewals and payments of lower premiums were irrelevant to the Court’s coverage determination. In applying Pennsylvania case law, the Court weighed the language contained at the top of the 2001 and 2003 forms, which included Pennsylvania’s MFVFRL requirement – if a named insured does not select lower UM/UIM limits, the limits set equaled the policy’s bodily injury liability limits – against the purpose of the 2003 Form to affirmatively provide information related to the new vehicle the named insureds sought to insure. In doing so, the Court reasoned that because the named insureds’ selection in 2001 for the initial three vehicles applied “to all future renewals” and the named insureds made no attempt to actively procure higher UM/UIM coverage for those vehicles, the named insureds “unequivocally signed-down” the UM/UIM coverage limits when they executed the 2001 Form. Moreover, the Court determined that the named insureds’ decision to leave the check boxes blank on the 2003 Form was not affirmative evidence of their choice to increase UM/UIM coverage limits since the named insureds provided no evidence to support that this was their intention. In sum, this ruling illuminates the weight given to the plain language of an insurance policy and how, in the context of UM/UIM coverage disputes, affirmative steps are needed to alter coverage limits. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Wade To Be Featured Bad Faith Speaker at NYSBA Insurance Coverage Seminar. April 27, 2010 < Back Share to: WCM Partner Dennis Wade is a featured speaker at the New York State Bar Association’s 2010 Insurance Coverage Update: Emerging Issues for the Next Decade. Dennis’s topic --Extra-Contractual Damages Under “Bad Faith” Theories -- focuses on new challenges facing insurers that write first party coverage in New York. Recent pronouncements from New York’s top court have seemingly resurrected bad faith exposures in New York. The program (attached) carries 7 MCLE credits. Dennis will be speaking in Melville on June 18 and in Manhattan on June 25. For more information about this seminar, please contact Dennis at dwade@wcmlaw.com . http://pdf.wcmlaw.com/pdf/NYSBA Bad Faith.pdf Previous Next Contact

News Quality-Quantity Analysis Transfers Plaintiffs’ Lawsuit To New Venue (PA) December 4, 2020 < Back Share to: The Court of Common Pleas of Monroe County recently denied a plaintiff’s attempt to venue a lawsuit in Monroe County, Pennsylvania. In Baughman v Hershey, the plaintiff’s accident took place in Daupin County, Pennsylvania and the plaintiff attempted to argue that sufficient contacts were made in Monroe County, Pennsylvania as well. The incident involved a slip and fall which took place at Hershey Park Stadium in Dauphin County, Pennsylvania. However, the plaintiffs filed their lawsuit in Monroe County, where they purchased the tickets. Hershey objected to venue in Monroe County and filed preliminary objections pursuant to Pa.R.C.P. 1028(a)(1) and Pa.R.C.P. 2179(a). In response to the preliminary objections, the plaintiffs sought leave to take discovery on the issue of venue which was granted by the court. After discovery was completed, the court stated that “in determining whether a corporation or partnership regularly conducts business in a county, we employ a quality-quantity analysis.” The court went on to find that, while Hershey had sufficient quality of contacts in Monroe County, it did not have a sufficient quantity of contacts for venue purposes. The court specified that Hershey’s total sales in Monroe County were a mere 0.24% in 2019. While Pennsylvania courts have found that venue was proper when a defendant’s sales in a county were 1-2% of total business, they also previously refused to confer venue when sales ranges from 0.08% to 0.17% of total sales. Overall, the court found that the percentage of income that Hershey generated from all contacts with the Monroe County market was minimal and that the necessary quantity of acts is not present to render Monroe County a proper venue based upon the provision in Pa.R.C.P 2179(a)(2). The plaintiffs also attempted to give weight to the fact that the ticket was purchased through Ticketmaster and that the ticket was the source of the plaintiffs’ status as business visitors at Hershey’s premises, thereby qualifying under Pa.R.C.P. 2179(a)(4) as a transaction from which the cause of action arose. Although the court agreed that, since the ticket was purchased in Monroe County, the contract may be considered to have been accepted in that venue, it ultimately concluded that the issue did not surround a contract dispute and the place of purchase carried little weight. Thanks to Zhanna Dubinksy for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News The Benefit Of The Auto Insurance Bargain (PA) July 8, 2022 < Back Share to: On July 6, 2022, in an appeal from the Western District of Pennsylvania, the Third Circuit upheld the district court's grant of summary judgment in favor auto insurer State Farm’s motion for summary judgment. The case, Tina Bubonovich v. State Farm Mutual Auto Ins. Co., was initiated by the plaintiff when, after recovering the available limits of the other driver’s liability coverage, as well as her own underinsured motorist coverage (“UIM”), she was precluded from stacking her son’s UIM coverage. Hence, the question before the court was whether the plaintiff can stack her son’s UIM policy on top of her own recovery when stacking was selected in one policy (the plaintiff’s) but waived in the other (the son’s). The relevant facts are as follows: (1) plaintiff was driving her car at the time of the accident; (2) plaintiff was residing with her son at the time of the accident; (3) plaintiff’s son is the named insured under his own State Farm policy; (4) the son’s policy does not include the plaintiff’s vehicle as an insured vehicle; and (5) the plaintiff’s son executed a non-stacking waiver as to his policy. The Third Circuit rearticulated the holding in Craley v. State Farm Fire & Casualty Co., 895 A.2d 530 (Pa. 2006), which stated it is the concerned policy and its exclusions that are applicable to the legal issues, nothing else. Accordingly, although the plaintiff in Bubonovich argued that she elected stacking and should receive the benefit of that bargain, the Third Circuit acknowledged the bargain did not include the ability to draw on other policies of insurance under which the named insured waived stacking. Thanks to Richard Dunne for his contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News NJ Court Finds Death Certificate Inadmissible Hearsay Without Medical Examiner Testimony June 13, 2018 < Back Share to: In Quail v. Shop-Rite Supermarkets, Inc., plaintiff alleged his wife died as a result of blunt trauma from a cash register station that fell on her leg. After the accident, plaintiff's wife told Shop-Rite she was fine, not in need of medical attention. Four days later, however, she was transported to the hospital where she died. The following day, a Certificate of Death was issued. It stated the cause of death was complications of blunt trauma to the right leg. Plaintiff sought to forego calling the Examiner who issued the Certificate to the witness stand. Instead, plaintiff sought to rely on the Certificate only. The Appellate Division upheld the trial court’s dismissal of plaintiff’s case on Summary Judgment because plaintiff had no medical expert on the issue of medical causation. The Court held that the Certificate, by itself, was inadmissible hearsay despite Rules of Evidence expressly deeming the Certificate to be admissible. The Court reasoned that despite these Rules, the Certificate, by itself, was inadmissible without the Examiner being called to the witness stand to explain his findings. This case serves as a reminder to attorneys to ensure that evidence is admitted properly at trial, and if not, motions to dismiss should be filed. Thanks to Michael Noblett for his contribution to this post. Previous Next Contact

News Peer-to-Peer Carsharing and Insurance Implications (PA) July 22, 2022 < Back Share to: A new law was introduced in the House Appropriations Committee as an amendment to Senate Bill 1222 and officially became law on July 11th. The amendment outlines the coverage requirements for companies engaging in peer-to-peer carsharing, mandating an additional layer of insurance so injured third parties won’t be left uninsured if a car owner’s policy includes exceptions for livery, or business activities. Peer to peer carsharing is the process of renting vehicles from other people rather than traditional car rental companies. It has been coined “AirBnB for cars” and provides many benefits including lower prices and more variety in vehicle choices. The fledgling industry is not without complications, primarily on the insurance and regulatory fronts. Chief among the insurance issues is that some carsharing networks’ fine print says a renter’s personal auto policy would be the primary source for paying claims, even though most personal policies typically exclude renting or driving car-sharing vehicles from coverage. Some attorneys have noted the amendment is similar in substance to another proposed bill on the topic – Senate Bill 548. The bill, introduced in April 2021, was aimed at putting carshare companies on a more equal footing with car rental companies and to ensure additional protections for owners, drivers and third parties now that carsharing is on the rise. From the defense and carrier standpoint, the new law does not invalidate exclusions that are already in place, and it requires carsharing companies to provide coverage that would otherwise be out of bounds under the owner’s policy. However, litigators on the plaintiffs side have raised questions about the measure’s effectiveness in protecting the parties. Some have expressed concerns that because consumers’ personal auto insurance may contain an exclusion, they may be forced to rent these cars using the companies’ minimum insurance policies, which likely won’t provide adequate coverage in the event of an accident. One thing lawyers on both sides of the issue can agree on is that these new disputes will be headed to the courts. Thanks to Sydney Kockler for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News NY Appellate Division Finds Single Step Riser Not Inherently Dangerous December 2, 2009 < Back Share to: In Bretts v. Lincoln Plaza Associates, the plaintiff injured herself in Johnny’s Pizza when she allegedly tripped and fell over a single-step riser separating the workers' area and the patrons' area at premises owned by the defendant Lincoln Plaza Associates, Inc., and leased to the defendant Johnny's Pizza. Johnny’s moved for summary judgment, which the lower court denied. On appeal, the Second Department determined that Johnny’s had made the requisite showing for summary judgment. There was a gold-color nosing on the step, and the pattern of the tiles on top of the step was different from the pattern of the tiles below the step. There was also a sign stating "Watch Your Step" adjacent to the step. Though, plaintiff testified she did not see the step or the sign before the accident, the Second Department held that the step was “open and obvious” and “not inherently dangerous.” Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08771.htm Previous Next Contact

News Preventing Prejudice With Severance February 3, 2016 < Back Share to: Oftentimes when an insured sues its insurer for breach of contract, it asserts a claim for bad faith. Insurers should consider severing the claims to avoid prejudice. In Custom Designs & Mfg. Co. Inc. v. Atlantic States Ins. Co., the plaintiff’s property was destroyed in a fire. Atlantic States Ins. Co. insured the property. Following the fire, the plaintiff made a claim under its insurance policy for the loss. Upon investigation of the loss, Atlantic calculated the plaintiff’s business interruption losses at approximately $1.2 million, which it paid the plaintiff. The plaintiff disputed this total and a neutral appraiser was retained to calculate the loss. Ultimately, the appraiser concluded the plaintiff’s losses totaled approximately $2.1 million, almost $900,000 more than Atlantic had calculated. The plaintiff filed a petition with the court seeking an award for the calculated difference as well as prejudgment interest. Atlantic paid the difference but refused to pay the prejudgment interest. Consequently, the plaintiff filed a complaint against Atlantic for breach of contract and bad faith. In its complaint, the plaintiff contended that Atlantic breached the insurance contract, when it deliberately refused to provide coverage for the plaintiff’s claim. In respect of its bad faith claim, the plaintiff averred Atlantic failed to properly investigate the plaintiff’s claims, failed to make payment of the prejudgment interest, breached its fiduciary duty, and caused the plaintiff severe financial harm. In response to the plaintiff’s complaint, Atlantic filed a motion seeking a protective order and to sever the plaintiff’s bad faith claims. Atlantic argued allowing the plaintiff to conduct discovery, in respect of its bad faith claim, would cause severe prejudice to Atlantic. Ultimately, the court denied Atlantic’s request for a protective order, concluding Atlantic failed to show the scope of the plaintiff’s requested discovery contained information protected by attorney-client privilege or work product. Conversely, the court granted Atlantic’s request to sever the plaintiff’s bad faith claim, holding Atlantic could be prejudiced by trying the plaintiff’s breach of contract claim simultaneously with its bad faith claim, as the bad faith claim was not relevant to the breach of contract claim, and the bad faith claim could prejudice and confuse a jury in reaching a verdict. However, regardless of this holding, the court refused to stay discovery for the bad faith claim. Thus, as this case illustrates, if a breach of contract and a bad faith claim are both asserted against an insurer, a court may grant an insurer’s motion to sever the bad faith claim, as prior courts have held trying breach of contract claims simultaneously with bad faith claims could result in unnecessary prejudice to an insurer. Thanks to Colleen Hayes for her contribution to this post.     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 Pundits Debate Mandatory Gun Liability Insurance February 7, 2013 < Back Share to: Over the past few weeks, media outlets such as Fox News, the Huffington Post, and the Economist have weighed in on the prospect of mandatory liability insurance for gun owners, similar to the current requirement for motor vehicle insurance in most states. The CDC estimates that in 2000, approximately $822 million in damages were caused by gunshot injuries. So the argument in support of insurance alleges that there is a significant risk of potential injuries, and thus ensuing claims and lawsuits. Insurers would be able to assess this risk and pass the cost for such claims onto the owners of the firearms, as opposed to the injured parties of health care system. As Jonathan Diamond suggested in his editorial in the Huffington Post, "(r)equiring owners of firearms to carry, say, $1 million in liability insurance ... would offer recourse to those affected by gun violence, and it would raise the bar of responsibility for gun owners." Opponents claim this is simply a tactic to increase the cost of gun ownership in order to serve as a deterrent. Individual states have already begun to propose their own legislation, such as California and Illinois cited in the above-referenced articles. Thanks to Brian Gibbons for his contribution to this post.   Previous Next Contact