Wade Clark Mulcahy LLP

News How Long is Too Long to Wait before Reattempting Service of a Complaint? (PA) May 29, 2019 < Back Share to: On May 22, 2019, the Superior Court of Pennsylvania affirmed an entry of judgment on the pleadings in favor Antoine’s Timbering, Inc. in Pa Electric Co. v. Antoine's Timbering The case stems from Antoine’s Timbering allegedly cutting down a tree that caused damage to poles, wires and facilities of Penelec as well as a loss of power to its customers. Nonetheless, the issue before the Superior Court involved service of the complaint on Antoine’s Timbering. On February 19, 2016, prior to filing the complaint, Penelec reviewed the address listed for Antoine’s Timbering on the Corporation Bureau which showed that Antoine’s Timbering could be located at RT 438, Box 86, La Plume, PA 18440. However, on April 19, 2016 the Sullivan County Sheriff’s Office filed an affidavit stating service had not been perfected on Antoine’s Timbering because the address was invalid. Even though counsel for Penelec received this information, Penelec did not make another service attempt until 18 months later on October 10, 2017. During that time, the statute of limitations had expired on April 24, 2017 and therefore service was improper. Nonetheless, Antoine’s Timbering was eventually served on December 8, 2017 at the correct address. Upon receiving the complaint, Antoine’s Timbering filed preliminary objections arguing Penelec failed to effect service in a timely manner and therefore violated the statute of limitations. Penelec countered by arguing it had made attempts to secure Antoine’s address and therefore had undertaken a good faith search and therefore the “equivalent period doctrine” applied. The Court sustained Penelec’s preliminary objections and, after the pleadings closed, Antoine’s Timbering filed a motion for judgment on the pleadings making the same argument. This time, the Court agreed and granted the motion filed by Antoine’s Timbering. The Court ruled that the 18 month delay “unnecessarily delayed the legal process” and therefore Penelec did not make a good faith effort to serve Antoine’s Timbering. On appeal, Penelec attempted to argue it made a good faith effort in serving Antoine’s Timbering but the Superior Court again disagreed. The Court stated the “equivalent period doctrine” was inapplicable here because Penelec had provided no justification as to why it waited 18 months to attempt to effect service on Antoine’s Timbering again. The Court noted that Penelec had not even tried to locate another address for Antoine’s Timbering during that time. As such, the Court affirmed the lower court’s ruling. This fact pattern also offers some insight as to why defense counsel should be careful before agreeing to waive jurisdictional defenses in exchange for an extension of time to answer a complaint. Jurisdictional defenses include lack of personal jurisdiction and improper service, and those defense come in handy -- especially when approaching the statute of limitations deadline. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News A Defendant Denied Summary Judgment for Hitting A Golf Ball Too Well (NY) June 6, 2019 < Back Share to: In New York, it is well-settled an individual who chooses to participate in a sport consents to certain risks which are inherent in the nature of the sport, a principle generally referred to as the Assumption of Risk doctrine. In golf, specifically, courts have explained that mishit golf balls flying in unintended directions fall within the scope of this doctrine, as such errors are a part of the game. However, in Krych v Bredenberg, the Fourth Department of the Appellate Division unanimously affirmed the denial of the defendant’s summary judgment motion in a case where he struck plaintiff with a golf ball on a golf course. Bredenberg claimed his playing partners had teed off before him and plaintiff’s group was playing on the fairway 100 or 150 yards beyond where his partners’ drives had landed, and that his drive happened to be a particularly prodigious one and struck plaintiff. The Court found a question of fact and affirmed denial of summary judgment, as plaintiff’s testimony conflicted with defendant’s as to the distance of the shot at issue. Moreover, the Court observed Mr. Bredenberg was a very skilled golfer, the ball was struck straight and true, and plaintiff was visible to him, potentially within his range. The deposition testimony was key here, and while Assumption of Risk is a powerful defense tool, one must make sure discovery supports it if you are to plan for a successful summary judgment motion. And, ironically, Bredenberg would likely have been better off if he were a worse golfer and had simply shanked his drive. Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Three Families Can Count as Two for Labor Law’s Homeowner Exemption (NY) June 3, 2016 < Back Share to: Under New York Labor Law §§2401(1) and 241(6), a homeowner can be held vicariously liable for the torts of their contractors. However, the statute provides an exemption for the owners of one or two family homes who do not direct or control the work. But what counts as a family? The First Department recently shed some light that on issue in Diaz v Bocheciamp. In Diaz, the plaintiff’s decedent died after falling to the ground while working on the roof of the defendant’s house. The estate sued under New York Labor Law §§2401(1) and 241(6). At the time of the accident, the defendant homeowner shared the house with an adult child, two grandchildren, and a family friend who lived in the basement. The trial court had entered judgment against the homeowner, who appealed to the First Department. The First Department reversed, and held that the homeowner exemption applied. According to the court, the applicability of the exemption hinges on a “site and purpose” test, which is based on the homeowner’s intentions at the time of the injury. Because this defendant lived with relatives and collected no rent, the court held as a matter of law that this home was “at most, a two-family dwelling” even though it housed “three families, two of which are related.” Diaz is welcome news to homeowners who do not oversee their contractors’ work, but also to their insurers as well. Thanks to Michael Gauvin for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News The Devil Is in the Details… of the Lease (NY) April 9, 2020 < Back Share to: In settled law, an out-of-possession landlord is not responsible for any injuries which occur on its premises unless the landlord has retained control over the premises, and (i) has a duty imposed by law or statute, (ii) has a duty imposed pursuant to a contract; or (iii) takes up that duty through course of conduct. But this rule is not infallible. In Broughal v. Tae J. Kwon, the plaintiff was injured in a slip and fall on ice located on the walkway of a strip mall owned by defendant landlord. Plaintiff, in this case, was also the tenant/lessor of the premises, slipping on the icy sidewalk of his own business. In a summary judgment motion, the landlord established that the lease agreement held the tenant responsible for removing any snow and ice from the walkway where the accident occurred. Plaintiff never rebutted owner’s argument on this issue. The Second Department, however, found that the landlord failed to provide any evidence that they had no duty to maintain the drainage system, that they adequately maintained the drainage system, and/or that the drainage system was not the proximate cause of the slip and fall (a drainage malfunction could have prevented an accumulation of water which froze into ice). The Second Department agreed that landlord defendant failed to prove that the drainage system was not a possible cause of the ice on the sidewalk and found it to be an issue to be determined at trial. This case highlights an important element in applications for summary judgment under the guise that a lease agreement absolves a landlord from liability for injuries occurring on the premises. The Second Department does not look favorably to releasing a landlord from any liability, leaving an injured plaintiff with no recourse at law, simply because the lease language places the responsibility on the tenant for maintaining the premises free from snow and ice. If the landlord does not prove that his maintenance of the building was not the proximate cause of a slip and fall by keeping detailed maintenance records and performing regular check-ups on the premises, then he will need to prove the same trial. Thanks to Raymond Gonzalez for his contribution to this post. Please contact Vincent Terrasi with any questions or comments Previous Next Contact

News NY's First Department Addresses Distributor's Liability In Strict Products Action June 26, 2009 < Back Share to: In Fernandez v. Riverdale Terrace, et. al, the First Department dealt with the liability of distributors in strict products liability cases. In Fernandez, the plaintiff sustained injuries while cleaning a defective building trash compactor. The general contractor had purchased the compactor from subcontractor Action, who pursuant to the sale, was obligated to install the compactor. Action chose the make and model of the subject compactor, purchased it directly from an entity related to the manufacturer at a "distributor" price, and then subcontracted the installation of the compactor to that entity. In affirming the lower court’s denial of Action’s motion for summary judgment, the First Department reaffirmed that a party who sustains an injury from a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury. Consequently, a distributor of a defective product is subject to strict liability, regardless of whether they merely took an order or shipped a product, and never actually inspected, controlled, installed or serviced the product. Since Action failed to submit evidence to establish that it was not a distributor, and only asserted that it did not design, manufacture, install or maintain the compactor, its motion was denied. The court’s decision implied that Action actually stepped into the shoes of the distributor. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05167.htm Previous Next Contact

News Pennsylvania Court Further Dilutes the Legal Landscape on Business Insurance Coverage During Covid-19 June 3, 2021 < Back Share to: In MacMiles LLC v. Erie Insurance Exchange, the Allegheny Court of Common Pleas granted partial summary judgment in favor of plaintiff, a Pittsburgh tavern, holding it suffered “physical loss” because of the COVID-19 pandemic, and therefore entitled to reimbursement by its insurer. Erie issued MacMiles (d/b/a Grant Street Tavern) an insurance policy providing coverage for any direct “physical loss or direct physical damage,” unless the loss or damage is specifically excluded or limited by the policy. After MacMiles was forced to close on Governor Wolf’s orders as it was a “non-essential business” in Pennsylvania, it submitted a claim for coverage to Erie, who thereafter denied the claim. MacMiles sued Erie for breach of contract and declaratory judgment as to the business income protection provision of the policy. Then, MacMiles filed a motion for summary judgment arguing it suffered “direct physical loss or damage,” and therefore should be reimbursed because “direct physical loss or damage” includes loss of use of the tavern. Erie argued “direct physical loss or damage” requires some physical altercation or demonstrable harm to the property. The court ruled against Erie holding the insurer did not define the terms at issue, and thus, the court must use the words’ ordinary meaning to ascertain the parties’ intent. Here, the court focused on the disjunctive “or” to find that MacMiles’ interpretation was reasonable if it either suffered “direct physical loss” or “damage.” The court accepted the definition of damage as “loss of harm resulting from injury to person, property, or reputation.” The court also defined loss as “destruction, ruin . . . [and/or] the act of losing possession [and/or] deprivation.” MacMiles suffered loss because it was deprived of business due to COVID-19 closure. Granting the policyholder summary judgment here was departure from the majority of Pennsylvania courts that have found in favor of insurers denying claims by restaurants for COVID-19 related business losses. Thanks to John Lang for his contribution to this post. Should you have questions, please feel free to contact Tom Bracken. Previous Next Contact

News Claim of NJ Shooting Witness Barred By The Torts Claims Act November 7, 2013 < Back Share to: In the recent New Jersey unreported decision of Carl Mann, Jr. v. Officer Chad Walder, et al., the court considered whether a plaintiff’s claim for negligent infliction of emotional distress overcame the threshold criteria for maintaining an action under the Torts Claims Act. This Act requires that the plaintiff show that he sustained a permanent injury and incurred medical expenses in excess of $3,600 in order to maintain his action. Mann was 16 years old when he witnessed the fatal shooting of his uncle by the police. Mann suffered no physical injuries, but claimed to have suffered extreme emotional damage as a result of the occurrence. His expenses for his medical care totaled $187. Mann eventually sued the officers to recover for his emotional injuries and ultimately offered an expert to support his claim. While Mann’s expert opined that he suffered from emotional issues that affected his daily life, the expert’s report noted that Mann had graduated from high school, slept well at night without nightmares and had no difficulty performing his job functions. The trial court granted summary judgment to the defendants based on Mann’s failure to meet the threshold requirements for maintaining suit under the Torts Claims Act. On appeal, Mann argued that he met the thresholds set forth in the Torts Claims Act. However, the Appellate Court found that Mann’s subjective complaints of emotional distress did not constitute a permanent injury. The court also disagreed with Mann’s argument that the value of the medical services he received was reduced by the fact that he was a Medicaid recipient. Under the legislative mandate, the cost, rather than the value, of the treatment must be measured. Ultimately, the Appellate Court upheld dismissal of Mann’s complaint. Special thanks to Heather Aquino for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News Existence of Contract Alone Insufficient to Trigger Blanket Additional Insured Coverage. October 10, 2013 < Back Share to: In Eliou & Scopelitis Steel Fabrication, Inc. v. Scottsdale Insurance Company, Scottsdale moved for summary judgment seeking a declaration that it did not owe defense or indemnification to a purported additional insured. The general contractor hired Ebenezer to install fabricated steel beams at a construction project. Ebenezer ordered the beams from E&S, and plaintiff, an Ebenezer employee, was injured while unloading the beams from E&S’s truck. The only documents between Ebenezer and E&S with respect to this project were two purchase orders that did not contain additional insured language. Nonetheless, E&S sought additional insured coverage from Ebenezer’s carrier, Scottsdale, on the basis of a general indemnification agreement that was labeled "General Indemnification of Eliou & Scopelitis Steel Fabrication on All Jobs & At All Locations." The agreement required Ebenezer to carry general liability insurance "whenever working on an Eliou & Scopelitis Steels (sic) Fabrication job site … [and] name Eliou & Scopelitis Steel Fabrication and the developer and/or owner of the subject job site as additional insured for the duration of the job." E&S sought additional insured coverage from Scottsdale based on the general agreement, and a blanket endorsement that named as an additional insured, any organization "whom you are required to add as an additional insured on this policy under a written contract, agreement or permit … That person or organization is an additional insured only with respect to liability arising out of … your ongoing operations performed for that additional insured as specified in the written contract, agreement or permit." The parties testified that typically, E&S was hired by a developer/owner for steel fabrication, and then E&S hired Ebenezer to install the steel it fabricated. In those situations, Ebenezer was E&S’s subcontractor. However, in this case, the roles were reversed. Ebenezer was hired by the general contractor to install steel beams, and Ebenezer ordered the materials from E&S. As such, the court found that in this case the liability did not arise out of Ebenezer’s “ongoing operations performed for [E&S],” but rather it was E&S who performed ongoing operations (i.e. steel fabrication) for Ebenezer. Accordingly, the court granted Scottsdale’s motion and held that it did not owe defense or indemnification to E&S. Oftentimes blanket additional insured endorsements provide coverage “as per contract.” However, the specific language of the contract and endorsement must be read together to ascertain whether coverage will be available to the purported additional insured. For any questions about this post, feel free to contact cfuchs@wcmlaw.com . Previous Next Contact

News WCM Victorious in Second Department Appeal Arising Out of a Personal Injury Burn Case February 1, 2013 < Back Share to: New York, NY Counsel Cheryl Fuchs and Associate Gabriel Darwick successfully convinced the Second Department to reverse a Brooklyn trial court decision that denied our client’s motion for summary judgment in a case involving burns allegedly sustained in a bathtub. In Mauskopf v. 1528 Owners Corp., the decedent was found in his bathtub with burns to the left side of his body. The then 95-year old died a month and a half later. There were no witnesses to the accident, but the decedent’s son claimed his father told him he was burned in the bathtub. We represented G. Bauer, Inc., a boiler service company that, upon request, performed repair and maintenance work on the burner of the building and otherwise performed annual Department of Building inspections of the boiler. We moved for summary judgment on the basis that plaintiff could not identify the cause of the decedent ’s injuries without resorting to hearsay or speculation. We also argued, that even if the decedent was burned in the bathtub, G. Bauer did not have a contract with the building to perform routine or systematic maintenance of the boiler, and never performed work on, or inspected the mixing valve that controlled the hot water temperature. The trial court judge denied our motion on the basis that there were “issues of fact”. The alleged "issues of fact" were not identified in the court's order. On appeal, the Second Department reversed the trial court and granted our motion on the basis that G. Bauer owed no duty to the plaintiff, as there was no evidence that G. Bauer’s work involved inspection or maintenance of the mixing valve. Previous Next Contact

News Witness Fee Jeopardizes Defense Verdict (N.Y.) February 11, 2013 < Back Share to: The stresses of trial are many for those attorneys who try cases. One particular demon that keeps trial lawyers up at night is the worry that key witnesses, particularly non-party fact witnesses, will refuse to cooperate or honor subpoenas requiring their testimony at trial. Some witnesses claim that they are too busy, too important or can’t afford to lose the time from work to appear at trial. What may a trial lawyers ethically do to secure important trial testimony from a non-party fact witness? Just how much may the trial attorney “reimburse” a fact witness for the claimed cost and expense of appearing at trial? Can such fees become so unreasonable that a witness’s testimony may be precluded or stricken as irrevocably tainted by undue influence or bias? The New York Court of Appeals decided this thorny issue in Caldwell v. Cablevision Systems Corporation, taking a balanced approach to the problem. In Caldwell, plaintiff claimed to have tripped and fallen while walking her dog due to the negligent construction work performed in the area by the defendant. In response, the defense lawyer subpoenaed the emergency room physician who spoke with plaintiff when she first sought medical treatment and documented in his note that plaintiff “tripped over a dog while walking last night in rain.” The problem arose when it turned out that the doctor was paid $10,000 for his short appearance in the courtroom with little discussion about how the attorney or the witness arrived at that significant sum. The trial court gave plaintiff’s attorney substantial leeway in exploring the size of the payment during both cross examination and summation. Not surprisingly, the jury found the defendant negligent but that such negligence was not a proximate cause of plaintiff’s accident. On appeal, plaintiff sought a bright line ruling that the payment of a $10,000 witness fee rendered the doctor’s testimony inadmissible as a matter of law. The Court of Appeals was troubled by the size of the witness fee and its potential to influence the doctor’s fact testimony. It noted that the statutory, minimum fee for subpoenaed witnesses was a $15 appearance fee and .23 per mile for travel expenses. However, the court rules and relevant case did not forbid witness fees in excess of the statutory minimum where they reimburse a witness for “actual expenses and reasonable compensation for lost time.” In sum, the court permitted the challenged testimony to stand with the caveat that in future cases the trial judge should specifically charge the jury that it may consider whether a witness fee is “disproportionately more than what was reasonable for the loss of the witness’s time from work or business,” and, if so, whether the payment “had the effect of influencing the witness’s testimony.” Justice may be blind but it is rarely cheap. If you have any questions or comments about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News US Government Shutdown = More Contaminated Food? October 10, 2013 < Back Share to: Having spent some of the last week in London (between deposition prep sessions) talking to people about the US (and, yes, with apologies to my partner and friend Mike Bono I did use apocalyptic political language), one question that has come up is -- what effect does the shutdown (we'll leave the debt ceiling discussion for a later post) have on the business I underwrite? Well, at least for the product recall market, it appears that the answer is -- "significant." A chicken related salmonella outbreak has arisen in California and, it appears that, even if the release of contaminated product is not the result of a lack of government funding, the government's inability to respond may be. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Wins Again! Court Grants Time Bar Motion to Dismiss in NY July 25, 2024 < Back Share to: Hon. Judge Suzanne J. Adams, recently granted WCM's motion to dismiss plaintiff’s complaint in the case of New Liberty Pawn Shop, Inc. v. Certain Underwriters at Lloyd’s of London filed in the Supreme Court of the State of New York, New York County. Plaintiff New Liberty Pawn Shop Inc. (“New Liberty”) sought coverage under its policy of insurance issued by Defendants Certain Underwriters at Lloyd’s of London (“Underwriters”) after a reported theft. After the theft occurred, Underwriters conducted a preliminary investigation into New Liberty’s claim. Underwriters soon discovered that New Liberty was acting as the owner and controlling force behind Romanov Gold Buyers, another jewelry entity which was being criminally investigated. New Liberty did not disclose that it was acting as the controlling force behind Romanov on its application for insurance and essentially lied when filling out question 17(c) which required “the names and addresses of other locations of the proposer and of other concerns engaged in the jewelry trade under the same ownership or management as the proposer and not included in this proposal.” Underwriters determined that this misstatement was a breach of the policy and therefore disclaimed coverage on April 7, 2021. On October 27, 2023, thirty months after the disclaimer was issued, New Liberty filed suit against Underwriters asserting a cause of action for breach of contract. Notably, New Liberty’s policy contained Condition “n”, which provided that: “No suit, action or proceeding for the recovery of any claim under this Contract shall be sustainable in any court of law or equity unless the same be commenced within twelve (12) months next after discovery of the insured of the occurrence which gives rise to the claim…” We argued that New Liberty’s delay in filing violated the unambiguous terms of the policy, and therefore New Liberty’s complaint should be dismissed. Judge Adams agreed, holding that New Liberty’s complaint and amended complaint filed on November 6, 2023 were time barred and dismissed with prejudice. Time bar provisions are generally disfavored and scrutinized carefully, but in this case, Judge Adams fully WCM's position, and found excuse for New Liberty having waited more than two years to test the merits of the disclaimer. An important win for WCM and for our clients in London. Nice work by Dennis Wade, Mike Bono, Martha Osisek and Dominika Tomasetti in a true team effort. Previous Next Dennis M. Wade Dennis M. Wade Partner +1 212 267 1900 dwade@wcmlaw.com Contact