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News Insurer Benefits from New Jersey Appellate Division’s Reading of Assault and Battery Exclusion (NJ) September 4, 2020 < Back Share to: In Pickett v. Moore’s Lounge, the Appellate Division had to interpret an assault and battery exclusion set forth in a tavern’s CGL insurance policy. A patron of Moore’s had shot and killed Roger Pickett while at the tavern after a verbal fight. The Estate of Pickett filed a seven-count complaint against the tavern, including claims of wrongful death, a violation of a liquor statute, negligent management of employees, negligent hiring, negligent training and negligent retention of tavern employees who allegedly caused the incident. The insurer denied coverage under the assault and battery exclusion. The tavern then settled plaintiff’s claim but sought indemnity from its insurer. The Assault and Battery exclusion provided a justification for the insurer to deny coverage because the injuries sustained by Pickett arose out of any act of assault or battery committed by any person, including any act or omission in connection with the prevention or suppression of such assault or battery. The Appellate Division held that the exclusion was unambiguous and would, therefore, be enforced. The exclusion plainly encompassed negligent acts or omissions that failed to prevent or suppress the assault or battery. This embraced the estate’s general allegation that the tavern negligently failed to exercise reasonable care to assure the tavern was a safe place. This case illustrates the importance of closely scrutinizing the wording of an assault and battery exclusion in a policy, as these exclusions are not one size fits all. Thanks to Mike Noblett for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

News NY Dealer Pleads Guilty In Fake Art Scheme September 20, 2013 < Back Share to: We previously posted about the indictment of Glafira Rosales, the art dealer indicted by the US Attorney's office in New York for her participation in an expansive scheme to sell fake art works to galleries, including the Knoedler Gallery. Rosales has now plead guilty to a number of significant felonies, including conspiracy to sell the fake art, money laundering, and tax crimes. Rosales claimed that she obtained the art -- purported to be painted by Modernist masters such as Pollack and Rothko -- from two anonymous collectors from Switzerland and Spain. Instead, all of the fake works were produced by a single painter who worked out of his garage in Woodhaven, Queens. The paintings were then treated so that they would have the false patina of age. According to the US Attorney's office, Rosales was paid approximately $33.2 million for the fake art. She agreed to forfeit that amount as part of her guilty plea, but it remains to be seen how much of that amount is actually recoverable. We were interested to see how the US Attorney's office was going to prove that the works were indeed fake, but that point is now moot. Indeed, during her plea Rosales admitted that the paintings were "fakes created by an individual in Queens." No doubt her statement will be used by the plaintiffs in the civil lawsuits filed against Rosales and the galleries, and the question of interest to now follow is whether the galleries are found liable. Please write to Mike Bono if you would like further information. Previous Next Contact

News Chatty Juror Creates Trial Havoc (NJ) January 7, 2016 < Back Share to: Every trial begins with an admonition that members of the jury should have no contact with the parties, the attorneys, or the witnesses. The instruction is given to ensure that the jury verdict is based on evidence admitted by the court and not by other outside, potentially prejudicial influences. What happens when a juror ignores the court’s instruction and has a brief interaction with an expert witness? Should a mistrial be automatically granted and the trial started anew? According to a recent New Jersey Appellate Division in Lukenda v. Grunberg, the trial court should determine whether the interaction improperly influenced the juror involved in event and whether the jury as a whole has been tainted. If not, the trial goes on. Lukenda begins with two young adults who got together for some Christmas cheer in the young woman’s family home. According to the defendant, her male guest had too much to drink and was injured when the defendant attempted to wrestle the car keys away from her suitor. In contrast, the plaintiff denied that he was intoxicated and claimed he was injured when the defendant delivered a “blindsided kick” to his knee, causing devastating injuries. Clearly, the Christmas get together was hardly a holy or peaceful night for the young love birds. Plaintiff’s expert orthopedist testified at trial, explaining in detail the lateral force necessary to inflict plaintiff’s injuries. During a break in the expert’s testimony, juror number two approached the doctor and quipped that “he thought the doctor was a great teacher and smiled.” Once defense counsel learned of the interaction, he moved for an immediate mistrial. The court questioned both juror number two and the expert witness about the contact between them. After juror number two assured the court that it would not affect his ability to be fair and impartial, the court admonished the juror to avoid any further discussions about the case until the start of deliberations and denied the motion. The Appellate Division ruled that “a new trial is not necessary in every instance where it appears that an individual juror has been exposed to outside influence.” Under those circumstances, the court’s inquiry should focus on the specific nature of the interaction, whether the juror imparted the outside information to other jurors, and whether the jury, as a whole, has been tainted by the information. Of note, the defendant never requested that the court question the other jurors to determine whether they observed or overheard any part of the interaction between the chatty juror and plaintiff’s expert witness. In Lukenda, the jury ultimately gave plaintiff a gift befitting the holiday season: it found the defendant liable and gave plaintiff a substantial award. If you have any questions, please email Paul at pclark@wcmlaw.com . Previous Next Contact

News Pennsylvania Out-Of-Possession Landlord Has No Duty Absent Exceptions August 8, 2016 < Back Share to: The general rule in Pennsylvania is that an out of possession landlord does not owe a duty to business invitees when it leases premises to another. There are some exceptions. In Vasilik v Voipoch, LLC, plaintiff slipped and fell in a stairwell with no handrails. After discovery, defendant moved for summary judgment arguing that as an out-of-possession landlord it owed no duty to plaintiff. In opposition, plaintiff argued that defendant was responsible for any defect that existed at the time a lease was signed. The court noted that generally, out-of-possession landlords are not liable for defective conditions that prior to the inception a lease. However, there were exceptions to the rule. For example, if the landlord retained control over the premises or negligently made repairs. In analyzing the potential exceptions, the court found that the entire property was leased to the tenant, including the stairwell, thus the landlord did not retain control over the stairwell. As to repairs, though the landlord had made repairs to other parts of the building, it never performed repairs in the stairwell. As such, there was no exception to the general rule, and the out-of-possession landlord was not liable for the defective conditions in this matter. This case illustrates the importance of conducting discovery to develop sufficient evidence to enable a party to carry its burden of proof and prevail on a motion (or to successfully defeat an opponent’s motion for its lack of evidence). Thanks to Collen Hayes for her contribution to this post. Previous Next Contact

News NY Labor Law - Strict Liability - Strict Interpretation February 17, 2017 < Back Share to: New York Labor Law actions involve issues of strict liability -- not negligence, a significant distinction. This distinction figured heavily in the court decision of Bridgemohan v. Cornell Group, Inc. The case arose out of a fall from an unsecured ladder that was not equipped with rubber feet. The plaintiff had been working at a multi-family home patching cracks in the wall of a garage. The ladder slipped as he ascended it causing him to fall onto concrete ground. The plaintiff moved for summary judgment under Labor Law §240(1), and the defendants made two arguments in opposition. First, defendants argued that plaintiff was the sole proximate cause of his injuries. Second, defendants argued that plaintiff was not a protected class under the statute since he had not been directly hired by them to do the work. As to the first argument, there was speculative testimony from the defendant property owner that the plaintiff had attempted to do a jump turn while on the ladder, which caused the fall. The judges looked dubiously upon this testimony given the position and vantage point of the witness. Ultimately, this testimony proved unavailing in any event. Even assuming plaintiff was negligent in doing a jump turn, this would not absolve the defendants from strict liability resulting from the failure to provide proper equipment, a statutory protection for the work he was doing. Elicited testimony which attempts to place fault on the plaintiff is irrelevant if a violation of a statute in any way caused the accident. Any negligence on his part would be insufficient to constitute an unforeseeable or extraordinary act that would be a superseding cause of the accident. The court likewise was not persuaded that plaintiff was a volunteer and not a worker. While the defendants had in fact hired another person to do the job, that person had, in turn, hired the plaintiff to assist. The defendants paid the person they hired who paid the plaintiff. The plaintiff testified that he expected to be paid, and the contractor who asked plaintiff to assist with the work testified that he had always planned to, and did pay plaintiff. Thus, plaintiff was part of the protected class of workers. Thanks to Christopher Goia for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Tall Objects Don’t Mean 240 Protection (NY) October 8, 2020 < Back Share to: In Lemus v. New York B Realty Corp, the Appellate Division, Second Department reaffirmed that a plaintiff is not entitled to judgment as matter of law under Labor Law §240(1) simply because the plaintiff’s accident occurs as a result of working with a large and/or tall object. In this matter, the plaintiff demonstrated that he was employed as a worker on a construction site and was directed to maneuver large steel beams approximately 20 feet long and weighing approximately 600 to 1,000 pounds. He was to use a metal tool to grab and rotate said beams, so that the holt holes were aligned. As he was rotating one beam, the tool he was using ricocheted backwards towards his face, and he sustained injuries. At the close of the plaintiff’s liability case, the defendant moved, pursuant to CPLR §4401 (motion for judgment during trial) to dismiss the plaintiff’s Labor Law §240(1) claim, on the basis that strict liability only applies if the plaintiff’s injuries resulted from an elevation-related risk and/or an inadequate safety device to protect against elevation-related ricks. The trial court granted the defendant’s motion, holding that because the plaintiff was injured while both he and the steel beams were at ground level, the work he was engaged in did not constitute the type of elevation-related risk that the statue contemplates regardless of the excess size and height of the steel beams. The Second Department affirmed on appeal. Thanks to Shira Straus for her contribution to this post. Any questions, please contact Georgia Coats Previous Next Contact

News Exposure To Lead Paint In Successive Tenancies Deemed One Occurrence (NY) February 28, 2013 < Back Share to: The Appellate Division, 4th Department recently held that the building’s insurer was only required to pay up to its limit on a single policy in a case where two successive tenants brought suit based on injuries allegedly suffered due to lead paint exposure in their apartment. In November of 1991, Allstate issued to Tony Wilson an insurance policy with a per-occurrence policy limit of $500,000 that covered Wilson’s apartment building. Wilson renewed the policy the next two years. The policy contained a noncumulative clause that stated “[r]egardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability...will not exceed the limit shown on the declarations page. All bodily injury...resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.” In 1993, two children were allegedly injured as a result of lead paint exposure while living in one of Wilson’s apartments. After they moved out, Wilson attempted to remedy the condition. However, in 1994, two children of the subsequent tenant suffered the same alleged exposure. Both tenants filed suit. During the pendency of the lawsuit, the first tenants settled their case for $350,000. Allstate then settled the second tenants’ case for $150,000, with the caveat that the second tenants would recover $500,000 if a court declared that Allstate was required to pay the full policy limit to the second tenants. The second tenants then brought a declaratory judgment action entitled Nesmith v. Allstate seeking the appropriate declaration. Allstate eventually moved for summary judgment, but the lower court denied its application. On appeal, the Appellate Division noted that the issue was whether the policy required Allstate to pay a second full policy limit under these circumstances or whether the plaintiffs’ losses were encompassed by the $500,000 per occurrence policy limit. The Appellate Division viewed the noncumulative clause as an unambiguous provision that Allstate had correctly interpreted. Furthermore, the Court cited to several prior court opinions on Allstate’s noncumulative clause where those courts had foreclosed on the plaintiff’s ability to collect on consecutive policies. Finally, the court likened this situation to that of asbestos exposure noting that the record established that the exposure to lead paint had to have originated from the same hazard. Special thanks to Michael Nunley for his contribution to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News Homeowner Escapes Labor Law Liability for Contractor's Ladder Fall (NY) January 26, 2017 < Back Share to: Homeowners are free from liability under common law negligence, as well as under Labor Law §§§ 200, 240(1) and 241(6), to a contractor performing work at their residence where their general awareness of the state of the premises is insufficient to impute notice of an unsafe condition and where they did not direct or control the manner in which the plaintiff performed his work, create the allegedly dangerous condition that caused the accident, or provide the plaintiff with any of his materials or equipment. In Dasilva v Nussdorf , the plaintiff was allegedly injured when he fell from a ladder while painting a cottage located on the defendants' 16-acre residential estate. The cottage had formerly served as the estate caretaker’s residence and following his departure, was being renovated by the homeowners, who had hired the company that employed plaintiff. Plaintiff testified that the ground on which the ladder was placed was uneven, soft, and filled with debris as a result of ongoing landscaping. The ladder, which plaintiff erroneously believed was owned by defendants, sunk into the ground, causing him to fall. The lower court granted the summary judgment motion of defendants, dismissing plaintiff’s complaint which alleged violations of Labor Law §§ 200, 240(1), and 241(6), as well as common-law negligence. The court found that the exemption under the Labor Law §§ 240(1) and 241(6) for owners of single and two family houses applied in this instance where the homeowners established that the work being performed directly related to the residential use of the cottage and that they did not direct or control plaintiff’s work. The court also found that dismissal of the claims pursuant to common law negligence and Labor Law § 200 ( statutory version of the common law duty of an owner to provide employees with a safe place to work ) was appropriate where the homeowners also demonstrated that they did not create the alleged dangerous conditions or have actual or constructive notice of such conditions because they did not own the ladder or provide plaintiff with any of his materials or equipment. With respect to the allegedly uneven and soft ground filled with debris, the defendants established that they did not create the condition and although they may have had general awareness that the ground was uneven and soft, such awareness was insufficient to impute notice of an unsafe condition. The Appellate Division, Second Department agreed with the ruling of the Supreme Court and accordingly, affirmed its decision regarding the dismissal of plaintiff’s complaint. Thanks to Lauren Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Sisters' Slippery Stairs Send Sister Sprawling (PA) June 28, 2016 < Back Share to: On June 29, 2013, Plaintiff was descending the stairs at Sisters Serving Sisters Night Club in Philadelphia, Pa, when she slipped and fell, suffering a severely sprained ankle. Reasons given for the cause of Plaintiff’s fall included: “she missed the last two steps”; “she couldn’t walk due to a virus”; “her foot caught up in the loose carpet”; “she was bitten by an insect in Florida and was paralyzed”; “she drank 4-6 drinks prior to the fall”; “the steps were wet and slippery”; the lighting was “dim and poor”; “there was liquid on the steps”. Ultimately, the court landed on the theory of a spill and wet stairway as the cause of Plaintiff’s fall. In its memorandum opinion, the court held that as a business invitee at Defendant-Club, Plaintiff was owed the highest duty of care. Therefore, the Club had an obligation to maintain the stairways and keep them safe for all patrons. Furthermore, the Club had a heightened responsibility to monitor the stairs because patrons were required to use said stairs to access the restroom. However, the court also found that an invitee has a duty to avoid a recognized hazard and Plaintiff, as a frequent patron, knew or should have known to hold onto the railing because of spills and for her own safety. As such, the court found Plaintiff 10% liable. In addition to claims against the Club, Plaintiff sought to hold the building owner personally liable for her injuries and damages. Plaintiff attempted to pierce the corporate veil, but was unable to point to any of the factors necessary for piercing the corporate veil. Accordingly, the court declined to do so. Plaintiff also argued that Defendant-Owner should be personally liable predicated on a finding that he participated in tortious activity. The court, citing to Wicks v. Milzoco Builders, Inc., 470 A.2d 86 (Pa. 1983), held that Corporate officers may not be held liable for mere nonfeasance. Ultimately, the court awarded Plaintiff $112,500 against the Club, and nothing against the building owner. Certainly, a frustrating result for the club, considering the myriad of reasons given for plaintiff's fall, and also considering the modest injury. Thanks to Hillary Ladov for her contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Insurance Investigation Unambiguously Pays for Itself (NY) March 10, 2020 < Back Share to: MIC General Insurance Corporation (“MIC”) issued an insurance policy to a client which provided liability coverage for the insured’s “residence premise,” which the contract defined as a dwelling where the insured resides. After an accident at a property, the insured sought defense and indemnification from MIC for the subsequent personal injury lawsuit. However, MIC did not accept their insured’s claim at face value and retained a private investigator to look further into the details of the case. The investigator inspected the home in question and collected a statement from the insured, revealing they actually lived elsewhere. With this evidence in hand, and after appellate practice, the First Department, in MIC General Insurance Corporation v. Campbell, agreed with MIC’s summary judgment position and ruled there was no coverage to the insured in the first instance, based on the insured’s statement to the investigator. Moreover, the panel also held the policy’s endorsement modifying “residence premises” from a “one-family dwelling…where you reside” to include three- and four-family dwellings without the phrase “where you reside” was not ambiguous, and read the policy as a whole to extend “where you reside” to apply to all forms of residence premises. Together, the decision illustrates the merits of exploring doubts in the facts presented in a claim and conducting a thorough investigation, and a reminder that although ambiguities can create coverage, a common sense approach should guide an analysis of whether an ambiguity actually exists at all. Thanks to Nick Schaefer for his contribution to this post. If you have any questions or comments, please contact Vincent Terrasi. Previous Next Contact

News An Education In Pricing For U.S. College Students Studying Abroad March 10, 2008 < Back Share to: As a student at Wheaton College, Jennifer Bombasaro-Brady spent a semester studying in South Africa. Although away from the Wheaton campus, Ms. Bombasaro-Brady was still required to pay full tuition, room and board, despite the fact that the program she attended, without all the amenities provided at Wheaton, cost less. Accusing Wheaton of engaging in deceptive practice, the Bombasaro-Brady family has filed suit in Massachusetts state court. Meanwhile, the relationship between universities and study-abroad programs have already come under the scrutiny of the attorney generals of New York and Connecticut. http://www.nytimes.com/2008/03/09/education/09studyabroad.html Previous Next Contact

News Merck Settles Vioxx Claims. November 12, 2007 < Back Share to: In litigation arising out of the consumption of Vioxx (that allegedly caused either strokes or heart attacks), covering more than 47,000 plaintiffs in CA, NJ and Texas, Merck will pay $4.85 billion. To receive funds, plaintiffs must: (1) have medical proof of a heart attack or stroke injury; (2) documentation of receipt of 30+ Vioxx pills; and (3) documentation of receiving enough pills to circumstantially demonstrate ingestion of Vioxx within 14 days of their stroke or heart attack. Merck's total exposure was estimated to be more than $50 billion and it has spent more than $1.2 billion in legal fees in taking 17 cases to verdict -- 5 plaintiff verdicts and 12 defense verdicts. http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1194602640514 Previous Next Contact