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News Declaratory Judgment Actions Are Not A Discovery Tool (NJ) July 26, 2012 < Back Share to: One of the methods used by No-Fault providers to fight fraudulent claims is to establish that improprieties with a health care provider’s ownership structure, billing practices, and regulatory compliance. But recently, the Supreme Court of New Jersey held that an insurance company cannot file a declaratory judgment action solely seeking discovery of in an effort to prevent insurance fraud, even where an insured patient has assigned personal injury protection (PIP) benefits to the health care provider. In Selective Insurance Company of America v. Hudson East Pain Management, Selective filed for declaratory judgment against Hudson East Pain Management and several other entities because it noticed what it considered to be “suspicious patterns” in the treatments rendered to Selective’s insured patients, as well as in the corporate links among the various entities. Selective’s insureds had assigned their PIP benefits to the health care providers after being injured in motor vehicle accidents. Although it had requested information on ownership, billing practices, and regulatory compliance from the various entities, Selective did not receive the information it sought, and as a result, filed its declaratory judgment action, citing the “cooperation clause” in its insurance policies, as well as New Jersey statutory authority. The trial court sided with Selective, and ordered the health care providers to produce the requested materials. The Appellate Division reversed this order, holding that Selective’s reliance on the cooperation clause in its insurance policies was improper, and that its demands for discovery went beyond the statutory authority of New Jersey law. On review, the Supreme Court of New Jersey affirmed the Appellate Division, but for different reasons than expressed in the Appellate Division’s decision. The court held that because an assignee of benefits as no greater rights than an assignor, the assignee also cannot have greater duties than the assignor under the contract. Therefore, because the Selective insurance policies did not require the insured patients to provide the information sought by Selective in its declaratory judgment action, the policies could not require the health care providers to present that information. Additionally, the court agreed with the Appellate Division that the PIP statute, N.J.S.A. 39:6A-13, did not provide for the sort of discovery sought by Selective. Finally, the court held that, although New Jersey had a clear public policy against insurance fraud, the means employed by Selective were not the correct avenue for preventing insurance fraud. Although this case does not undermine the ability of an insurance company to seek injunctive or other relief, along with discovery, through the use of a declaratory judgment complaint, it does stand for the proposition that a quest for this sort of discovery cannot be the sole object of the complaint. Thanks to Christina Emerson for her contribution to this post. If you would like more information, please write to mbono@wcmlaw.com     Previous Next Contact

News WCM Is Pleased to Announce That Georgia Coats Has Been Promoted to Partner November 2, 2017 < Back Share to: Effective May 1, 2019, WCM is pleased to announce that Georgia Coats has been promoted to Partner. Georgia has spent her entire career with WCM, having joined the firm as a law clerk while she was a 2L at Fordham. Georgia handles the defense, trial and appeal of complex lawsuits, including high-exposure Labor Law and construction accident personal injury claims. Georgia also litigates premises liability and property damage matters. Georgia, a Bronx Science graduate, is a cum laude graduate of New York University. At Fordham University School of Law, Georgia was a member of the Fordham Environmental Law Journal. WCM is a regional defense focused law firm with offices in New York, New Jersey and Pennsylvania. WCM solves defense and coverage issues cleanly, quickly and efficiently. We are committed to maintaining our reputation for excellence and to letting our results speak for themselves. Previous Next Contact

News NY Court Holds Barricade Outside Normal Risk Of Skating August 4, 2009 < Back Share to: In Levin v. United Skates of America, Justice Kramer of Supreme Court, Kings County denied summary judgment to the owner of a skating rink in a suit brought by the parents of a child who was injured when he attempted to skate under a barricade that partially blocked an entrance to the rink. Defendants argued that the child’s injuries were the result of a risk the child assumed by skating at the rink. The court rejected this argument and held that the placement of the barricade was not a normal risk associated with skating. Indeed the court ruled that the barricade presented a “near irresistible challange” to youngsters who wanted to show off their skating prowess. The court held that questions of fact existed as to whether the child, eight years old at the time of the injury, appreciated the risk such that it could be determined that he assumed the risk of possible injury. Previous Next Contact

News Increasing Accountability: Minors Now Included in Duty to Prevent Underage Drinking as Social Hosts May 3, 2024 < Back Share to: In New Jersey, it has long been established that social hosts can be held liable for serving liquor to a visibly intoxicated minor, knowing that the minor will thereafter drive. Such a social host would be liable for the injuries inflicted on an innocent third party as a result of the subsequent drunk driving of a minor. Recently, the New Jersey Supreme Court has extended this liability to minor social hosts. In Narleski , the estate of a 19-year-old man brought a wrongful death action after being killed in a motor vehicle accident. The 19-year-old man was served alcohol at an underage host’s house and was the passenger in a vehicle driven by another guest at the party, who also was negligently served alcohol. The estate originally sued the liquor store that sold alcohol to the host. The liquor store filed a third-party complaint against the host and his parents, alleging that they were negligent in failing to supervise attendees and in enabling underage adults to consume alcohol. Est. of Narleski v. Gomes , 244 N.J. 199, 237 A.3d 933 (2020). The New Jersey Supreme Court held that the underage social host who negligently allowed the minors to drink alcohol on the host’s property was liable when the minor subsequently caused a car wreck that resulted in injuries. Id. Additionally, it is also important to note that the New Jersey Supreme Court does not draw a distinction between the host actively supplying the minors with alcohol and passively allowing minors to drink. “Should the line drawn for the imposition of a duty on the host depend on whether he poured the drink for his visibly intoxicated guest as opposed to whether he is a mute observer of his intoxicated guest's continued consumption of beer or vodka left on a table and swigged in cups provided by the host? The Dower court rejected that artificial distinction, and we do so here as well.” Id . Overall, the New Jersey Supreme Court made it clear that social hosts need to be extremely careful that they are not providing alcohol to minors and are not over-serving their guests. Estate of Narleski v. Gomes .pdf Download PDF • 336KB Previous Next Anand P. Tayal Anand P. Tayal Associate +1 267 665 0014 apandittayal@wcmlaw.com Contact

News NJ Supreme Court Rejects Employee's Direct Action Against WC Carrier For Pain and Suffering August 2, 2012 < Back Share to: No one seems happy with the workers compensation system. Employers and their insurers complain that the system is biased in favor of employees, awarding compensation even in the face of fraud, malingering or worse. On the other hand, employees kvetch that workers compensation insurers are slow to process and pay claims, leading to delays in treatment, needless anxiety and unhappy medical providers. With this background in mind, may an injured employee seek damages directly from his employer’s workers compensation insurer for pain and suffering allegedly due to the insurer’s delay in making required payments? The New Jersey Supreme Court tackled this issued in Stancil v. ACE USA, ruling in favor of the workers compensation insurer. In Stancil, the employee alleged that the insurer routinely delayed medical payments and ignored a directive from the workers compensation court to rectify this situation by a date certain. In response, the employee filed suit against the insurer in the local Superior Court seeking damages for pain, suffering and physical injury allegedly caused by the insurer’s delay. The Superior Court and Appellate Division dismissed plaintiff’s complaint on the pleadings but, ever the persistent fellow, plaintiff was granted permission to appeal to the New Jersey Supreme Court. A good omen indeed. Displaying unusual deference to the worker compensation system, the Supreme Court ruled that the employee’s complaint could not stand for three reasons. First, the legislature constructed the workers compensation system that eliminated the worker’s right to file suit in the Superior Court. The employee’s suit was inconsistent with that scheme. Second, the legislature had already enacted remedies to deter the occasional recalcitrant insurer. Neither the courts nor an injured employee should interfere with or expand those remedial measures. Finally, the Supreme Court found that the present system worked fairly well for several decades and the legislature had moved quickly and decisively when problems became apparent. In other word, no need to tinker with a system that, albeit not perfect, was working fairly well. Stancil settles the question of whether an employee can seek damages for pain and suffering from a workers compensation insurer for alleged delays in making required payments. The Supreme Court firmly declined to recognize a remedy beyond that authorized by the Workers Compensation Act. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Who Is Responsible For Con Edison Transformer Vaults? May 24, 2011 < Back Share to: In Egan v. Consolidated Edison and New York Yankee Partnership, the plaintiff sustained personal injuries when she slipped and fell on snow and ice that was on the edge of a transformer vault where Con Edison was working. In New York, it is well established that snow and ice removal is the responsibility of the abutting landowner. As such, the Supreme Court, Bronx County denied the Yankees’ motion for summary judgment, holding that there was a question of fact as to whether the Yankees’ snow removal efforts created the condition or exacerbated it. On Appeal the Appellate Division, First Department reversed the lower court’s decision and held that because Con Edison owned the vault, Con Edison and not the Yankees was responsible for maintaining it. Thanks to Ed Lomena for his contribution to this post. http://law.justia.com/cases/new-york/appellate-division-first-department/2011/2011-04174.html Previous Next Contact

News Pennsylvania’s Long Arm Statute Keeps Connecticut Company in PA (PA) September 27, 2019 < Back Share to: The PA Superior Court recently ruled on an issue concerning Pennsylvania’s jurisdiction over a Connecticut corporation based on its business dealings with a Pennsylvania-based software company. In Delta Health v. Companions, 2019 PA Super 266, the Court upheld the trial court’s overruling of Companions’ preliminary objections arguing lack of personal jurisdiction. Companions lodged the preliminary objections in response to Delta’s complaint alleging Companions’ failure to pay for Delta’s processing of software to assist in Companions’ health care business. Companions argued that it was a Connecticut corporation that is only registered in Connecticut and provided home care services to Connecticut residents while not owning any property in Pennsylvania or having any offices or employees in Pennsylvania. Delta countered that it was a Pennsylvania company and the software that was utilized by Companions was accessed in Pennsylvania and was stored and operated on computers in Pennsylvania. Delta also argued that its billable professional services were performed by Delta in Pennsylvania and that Companions’ employees conducted extensive contract negotiations via communications and in-person meetings in Pennsylvania. In its opinion, the Superior Court emphasized that Companions conceded that its representatives came to Pennsylvania to engage in contract negotiations and also contacted Delta to re-start discussions following a break in the negotiations. The Court also noted that Companions needed a password and subscription to access Delta’s restrictive software program, which was stored and operated in Pennsylvania; contrasting this situation from that of a ‘passive website’ in which a Pennsylvania website merely makes information available to foreign companies via the internet. Ultimately, the Superior Court determined that Companions’ interactions with Delta constituted the requisite minimum contacts to establish Pennsylvania’s specific personal jurisdiction over Companions and it affirmed the trial court’s overruling of Companions’ preliminary objections. Thanks to Greg Herrold for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Work Area By Any Other Name Would Still Be a Work Area (NY) January 26, 2017 < Back Share to: Victor Caminito was employed by a nonparty subcontractor on a 30-story building under construction that was ultimately going to be a condominium with retail space on the first floor. On the day of the accident, plaintiff spent the morning setting marble in the lobby of the building. After lunch, he was instructed by the project supervisor for the construction site, to clear out a room that was off the lobby, where many of the trades had stored their equipment and materials. In the process of removing material stored in it, plaintiff was injured when, while walking backwards with a wheelbarrow, he tripped and fell over a stack of metal studs located on the floor. In Caminito v Douglaston Dev., LLC, the plaintiff brought suit under Labor Law § 241(6) and claimed specific violations of the Industrial Code. That statute imposes on owners and contractors a nondelegable duty to “provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations” contained in the New York State Industrial Code. Plaintiff's claim was predicated on Industrial Code (12 N.Y.C.R.R.) § 23-1(e)(2), which provides, in pertinent part, that work areas “shall be kept free from accumulations of dirt and debris and from scattered tools and materials”. The room where plaintiff fell was variously described as approximately 10' X 15' or 20' X 40' and had only one entrance/exit. Both plaintiff and the project supervisor testified at their depositions that the material in the room needed to be removed to complete its construction. The project supervisor testified that this room was part of the overall building construction project. Defendants moved for summary judgment to dismiss the Labor Law § 241(6) claim. Defendants argued that the area where plaintiff fell was not a “work area” but rather a storage room and thus not a work area as defined by the statute. The Court disagreed finding a question of fact as to whether the studs were scattered in plaintiff's work area. The testimony of both plaintiff and the project supervisor clearly stated that construction was going to take place in that room. Indeed, the purpose of removing the material stored in that room was to enable the construction work to take place. Although plaintiff was not actually performing his job as a marble setter at the time of the accident, under these circumstances his activities bring him within the ambit of the statute. Defendants have to be aware that scattered tools and building materials on a construction site presents a difficult fact pattern to overcome when analyzing liability under Labor Law § 241(6). Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com   Previous Next Contact

News Condo's are not Owners under Labor Law (NY) December 13, 2012 < Back Share to: As CGL insurers are well aware, New York's Labor Law, originally designed to protect construction workers from unsafe practices, often ensnares small property owners with its strict liability conditions. Labor Law § 241(6) imposes a nondelegable duty upon "owners," "contractors" and their "agent" involved in construction, excavation, or demolition work to provide reasonable and adequate protection and safety for workers and to comply with the specific safety rules and regulations promulgated by the Commissioner of the Department of Labor. Recently, the New York Court of Appeals ruled that condominiums generally cannot be found liable under New York Labor Law § 241(6). In Guryev v. Tomchinsky, the plaintiff suffered an eye injury while working in the defendants' condominium unit. Guryev sued the condominium under Labor Law, arguing that the condominium was an “owner” of the unit because it owned the land underneath the building. In addition, the condominium entered into an alteration agreement with the Tomchinskys in which the condominium retained many important rights and control over how the work would be performed and contractor choice. Plaintiff further argued that co-operatives are deemed to be "owners" and condominiums should also be deemed owners for public policy reasons. The Court of Appeals, over the dissent of its Chief Judge, ruled in favor of the condominium because the condominium, unlike a co-op, did not hold title to the actual unit in which the injury occurred. Therefore, the condominium could not be an “owner” under Labor Law § 241(6). In addition, the alteration agreement with the Tomachinskys simply reflected the condominium's interest in making sure that the renovations would protect the building and other units and did not grant the condominium the prerogative to ensure that the contractor was using adequate safety precautions. Thanks to Mendel Simon for his contribution to this post. If you have any questions, please write to mbono@wcmlaw.com . Previous Next Contact

News Pennsylvania defies U.S. Supreme Court and allows immediate appeals of discovery order regarding privilege February 17, 2012 < Back Share to: In November 2011, the Pennsylvania Superior Court decided in Com. v. Harris, 32 A.3d 243, 247-251, 2011 WL 5964550, 3 (Pa. - 7 (Pa. (Pa.,2011), that orders rejecting claims of privilege and requiring disclosures are immediately appealable. As a general rule, Pennsylvania law permits only appeals from final orders. See Pa.R.A.P. 341 (“[A]n appeal may be taken as of right from any final order.”). However the court will allow an immediate appeal if the question is collateral to the main cause of action, the right involved is too important to be denied review; and (3) the claim will be irreparably lost if the review is postponed until after final judgment. Pa.R.A.P. 313(b). In 1999, the Pennsylvania Supreme Court determined that orders overruling claims of privilege and requiring disclosures were immediately appealable based upon 313(b). See Ben v. Schwartz, 556 Pa. 475, 729 A.2d 547 (1999). However, recently, in Mohawk Industries, Inc. v. Carpenter, 130 S.Ct. 599 (U.S.,2009), the United States Supreme Court reached the contrary result. The Supreme Court held that rulings adverse to the attorney-client privilege are not eligible for collateral order appeals because such orders are not effectively unreviewable after final judgment. Id. at 606. It stated that even if disclosure is improper, a litigant request a new trial. Despite Mohawk, the court in Com v. Harris decided not to overturn its interpretation of Rule 313(b). Starting that “we are particularly unconvinced that an appeal after final judgment is an adequate vehicle for vindicating a claim of privilege”, the court decided that the frank discussions fostered by privilege rules should be protected as a matter of public policy. Com. at 249. As such, Pennsylvania will continue to allow issues of privilege to be immediately appealable as of right.   Previous Next Contact

News Insurer Has Heavy Burden of Proving Applicability of Independent Contractor Exclusion December 1, 2017 < Back Share to: In a recent New York appellate decision, the court considered whether an insurer could rely on several policy exclusions concerning independent contractors to disclaim coverage. In Century Sur. Co. v. All In One Roofing, LLC, the Appellate Division, 10 Leonard Street, LLC hired McAlpine Construction to perform work on its building. McAlpine hired All In One Roofing to install the roof. All In One hired Vasyl Berezhanskyy to perform the work, Berezhanskyy hired Zdeno Jadron. Jadron was injured during the course of the work and sued 10 Leonard, McAlpine and All In One. All In One’s carrier, Century Surety disclaimed coverage based two independent contractor exclusions that disclaimed coverage for any injury to an employee of an independent contractor. Surety asserted that Berezhanskyy was an independent contractor and that his acts, omissions and negligence caused the injuries to Jadron. At trial, the jury returned a special verdict finding that Berezhanskyy was not an independent contractor of All In One, and the Supreme Court declared that Surety owed coverage to All In One in connection with Jadron’s action. On appeal, the court found that based on the evidence, there was a valid line of reasoning and permissible inferences which could have led a rational jury to conclude that Berezhanskyy was not an independent contractor. Berezhanskyy and Edmond Warchick, the principal of All In One, appeared to agree that there were aspects of the job that were not under Berezhanskyy's control, including the type of roof to be installed, the number of screws and plates used in the installation of certain aspects of the roof, the date the work was supposed to start, and, finally, when a second roof was discovered by Berezhanskyy after he commenced work under the contract, what to do with the second roof. As such, the jury could have reasonably concluded that Berezhanskyy was not solely responsible for the methods and means of the job and that he was not "free from the control and direction of the person for whom the services are being performed.” This case serves as a reminder that an insurer’s burden of demonstrating that exclusions apply to negate coverage remains high, and that aspects of the interpretation of the exclusions may be left to the jury. Thanks to Rebecca Rose for her contribution to this post.             Previous Next Contact

News Speculative Cause of Accident Falls Flat (NY) March 30, 2018 < Back Share to: In Gani v Avenue R Sephardic Congregation, the plaintiff allegedly fell down an interior staircase in the defendant's synagogue. The plaintiff filed a lawsuit in Kings County Supreme Court claiming the defendant’s negligence caused the accident and his personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff was unable to identify the cause of his fall. The Supreme Court granted the motion and the plaintiff appealed. The Appellate Division’s decision recapped the law as it applies to real property landowners: “In a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.” However, the Court noted that there is another way to establish summary judgment: “a defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident.” This inability to identify the cause of the fall is fatal because a finding that the defendant's negligence, if any, proximately caused the plaintiff's injuries would be based on speculation. The Appellate Division’s decision relied upon the plaintiff’s deposition testimony, which established that the plaintiff was unable to identify the cause of his fall. As such, the Appellate Division upheld the summary judgment finding of the trial court. Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact