News Clear Policy Language Precludes Comcast from Additional Insured status (NJ) July 25, 2019 < Back Share to: The Appellate Division in New Jersey recently ruled that after a review of the facts, Comcast cannot be considered an additional insured under the policy it was seeking coverage, in Comcast v. Hanover-Insurance No. A-3245-17T4 (N.J. App. Ct. July 10, 2019). A lawsuit was filed by an individual claiming injuries resulting from tripping over a temporary above-ground cable that JNET Communications, LLC had installed while performing work as Comcast’s contractor. Plaintiff claimed negligence against both Comcast and JNET. Comcast tendered the defense and indemnification to Hanover Insurance Company under an insurance policy Hanover had issued to JNET. Deposition testimony suggested that a Comcast technician had placed or replaced the temporary cable after the JNET employee had first placed the cable on the property where plaintiff tripped and fell. Therefore, Hanover denied tender stating the policy provided that Comcast was an additional insured “only with respect to JNET’s work.” Comcast sued Hanover, seeking declaratory judgment that Hanover was obligated to defend and indemnify Comcast because Comcast was an additional insured under the policy. The appellate Court found that the Hanover policy was not ambiguous and that its plain language allowed additional insured coverage only with respect to JNET’s work and Comcast was not entitled to coverage as an additional insured for its own negligent act under the policy. Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Touch Football Turns Into Trip Football And Leads To School Liability (NY) January 30, 2020 < Back Share to: In Deegan v. St Patricks Church at West Neck, plaintiff, who at the time of the accident was a fifth-grade student attending defendant's school, was injured when he fell while playing touch football in the parking lot during recess. Plaintiff alleged that defendant negligently failed to supervise plaintiff and was negligent in maintaining the subject premises, allowing a dangerous condition to exist. The dangerous condition was the placement of Belgian blocks (similar to cobblestone) upon certain portions of that area, where students were permitted to play touch football Defendant moved for summary judgment on the grounds that plaintiff was unable to identify the cause of his fall and that he assumed the risk of injury when he participated in the activity and he played touch football in the parking lot almost every day during recess that fall prior to the accident. Plaintiff argued that a 10-year old child cannot assume the risk of participating in a sport where the risks are unreasonably increased. The lower court denied defendant’s motion. The Appellant Division Second Department upheld the lower Court’s decision stating “schools are under a duty to adequately supervise the students in their charge and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” Further, the court held that “participants in sports or recreational activities, are not deemed to have assumed risks resulting from the reckless or intentional conduct of others, or risks that are concealed or unreasonably enhanced.” The location of the concrete blocks in the area where the students would play was deemed a dangerous condition. Here, defendant failed to make any showing as to whether it adequately supervised the students during recess and whether it was foreseeable that an injury would occur by permitting students to play touch football near the Belgium blocks. Moreover, a triable issue of fact remained as to whether allowing students to play touch football near the concrete blocks enhanced the danger and produced a foreseeable risk of injury. Thanks to Paul Vitale for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News "Only When I'm Drunk" Argument Accepted By NJ App Div In Reversing Summary Judgment October 27, 2009 < Back Share to: In Acri v. Hilton, the Appellate Division reversed summary judgment to several defendants who had served alcohol to the underage plaintiff. The trial court had found that the evidence would not support a finding of proximate cause between plaintiff's intoxication and her accident when she fell off the back of an ATV. On appeal , plaintiff argued that she would not have hopped on the back of the ATV at age 16 unless she was drunk. As proof, she admitted that she had done so on several earlier occaisions, but never when she was sober. The Appellate Division found that the proximate cause issue was a question for the jury. http://www.judiciary.state.nj.us/opinions/a1969-08.pdf Previous Next Contact

News Court Sanctions Defense Attorney for Opposing Motion to Restore (NY) April 10, 2013 < Back Share to: In Kings County, cases are often procedurally dismissed for failing to file a note of issue. However, this dismissal is not on the merits. To vacate the dismissal, a plaintiff simply files a motion to restore. Not only are these motions routinely granted, but as the case of Degtiarev v Delecia-Kenny demonstrates, a defendant should use caution when opposing the motion. In Degtiarev, the defendant’s firm opposed a motion by the plaintiff to restore the action to active pre-note-of-issue status. However, the trial court found that opposition was without merit and was filed simply to delay restoration of the action. The court then awarded the plaintiff an attorney's fee as a sanction pursuant to 22 NYCRR 130-1.1.The Appellate Division affirmed the holding, stating that defendant’s opposition arguments “were completely without merit in law, failed to address the applicable statutory and case law, and appear to have been advanced, once their lack of merit was apparent, for the purpose of delaying restoration of the action.” In King’s County, there is a strong preference to decide cases on the merits. Thus, a defendant should not simply oppose motions to restore without an independent basis to dismiss the action (i.e., neglect to prosecute). In other words, a defendant should look for grounds to dismiss the action on the merits. At a minimum, a defendant should not oppose the restoration, but should file a motion to compel outstanding discovery from the plaintiff. Thanks to Bill Kirrane for his contribution to this post. If you have any questions or comments, please email Paul Clark at pclark@wcmlaw.com Previous Next Contact

News Settle Out But Remain On The Verdict Sheet (NJ) September 12, 2019 < Back Share to: In Donna Rowe v. Bell Gossett Company, the New Jersey Supreme Court overturned a controversial Appellate decision that made fundamental changes in substantive and evidential requirements to prove allocation of fault among settled-out defendants at trial. Plaintiff Rowe contracted mesothelioma due to asbestos exposure. He sued nine different defendants, and all but one settled before trial. At trial, the remaining defendant Universal moved to admit excerpts from the settled defendants’ interrogatories and deposition testimony of their corporate representatives. On appeal, the court found that the admission of the defendants’ prior discovery was improper. The Supreme Court reversed, holding that the admitted discovery was admissible as statements against interest, pursuant to N.J.R.E. 803 (c)(25). Those statements gave rise to a prima facie showing that the settled out defendants bore fault, and the trial court properly submitted to the jury the question of whether a percentage of fault should be apportioned against the settled defendants. This decision will be helpful to defendants when seeking to apportion fault against parties no longer in an action at the time of trial. Thanks to Heather Aquino for her contribution to this post. If you have any questions, please contact Georgia Coats. Previous Next Contact

News Emergency Doctrine Not Enough to Save Mechanic from Liability in Motor Vehicle Accident (NY) July 27, 2017 < Back Share to: In D'Augustino v. Bryan Auto Parts Inc., 2017 Slip Op 05708 (2d Dept. 2017), defendant Boyle parked his car on a street near Bryan Auto Parts to obtain a New York State Inspection. Prior to conducting the inspection, defendant Rattray, a mechanic working for Bryan Auto Parts, drove Boyle’s car, intending to move it in to the garage for the inspection. On the way from where Boyle parked the car into the garage, Rattray came upon an intersection where he was to stop at a stop sign. At that time, plaintiffs, who had the right of way through the intersection and no stop sign, were travelling through when the Boyle vehicle struck the plaintiffs in the side in the middle of the intersection. Rattray claimed that he attempted to stop but that despite his efforts the brakes were not working and he could not get the car to stop before hitting plaintiffs. The lower Court granted the mechanic’s motion for summary judgment wherein they claimed that they were free from negligence under the “emergency doctrine.” The defendants claimed that they had no knowledge that the brakes were broken and that Boyle did not tell them that there were issues with the brakes when he dropped off the vehicle. The Appellate Division reversed the lower court finding that the shop and mechanic failed to show that there are no questions of fact as to whether an emergency actually occurred and as to whether Rattray acted reasonably under the circumstances to attempt to avoid the accident. There was no corroboration of the brake failure, and in fact, defendant Rattray apparently repaired the brakes shortly after the accident. The above decision reinforces how difficult it is for a defendant in New York, even one who did not own or maintain the vehicle, to obtain summary judgment in their favor in motor vehicle accidents, especially where the plaintiffs had the right of way. Thanks to Dana Purcaro for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News NY's Plans for a Direct Competitor to Lloyd's Are Gaining Momentum. January 6, 2010 < Back Share to: We have previously commented on NY's plans to reopen a New York Insurance Exchange. It appears that the reopening of the exchange will be a priority of NYS Governor Patterson heading into an election year. In his State of the State Address earlier today http://www.ny.gov/governor/press/press_01061001.html, Governor Patterson announced that, assuming industry interest, his administration plans to create a New York Insurance Exchange and have it operational "as soon as possible." http://www.insurancejournal.com/news/national/2010/01/06/106431.htm Previous Next Contact

News Court Takes a Limited-Brush Approach to Application of “Named Perils” Coverage (NJ) March 5, 2020 < Back Share to: In coverage disputes, courts and counsel for the insured often lose sight of the type of policy at issue and the triggering language in a coverage grant. But as one recent New Jersey decision demonstrates, most courts are still faithful to clear policy language. In Cusamano v. NJ Insurance Underwriting Ass'n, the insureds sought coverage under their homeowner’s insurance policy after the New Jersey duplex they owned sustained damage from a leaking pipe. The insurers argued that no coverage existed because the particular water damage is not a “named peril.” The trial court had disagreed, and held that because the couple’s policy didn’t specifically exclude water damage from leaky pipes, there was enough ambiguity to resolve the dispute in their favor. But on appeal, the Appellate Division reversed, and held that there was no coverage in the first instance. In doing so, the court reasoned that the policy was a named perils policy, meaning that it provided for loss caused by particular perils included in the policy. Because the policy did not list water damage from leaking pipes as a covered peril, no coverage existed in the first instance. For that reason, the absence of an exclusion did not revive coverage. Cusamano is a decision that should provide some comfort to insurers. Not only does it highlight the distinction between “Open” and “Named” perils coverage, it also reaffirms principle that all coverage analysis begins with the initial coverage grant of coverage. It was also significant for reaffirming that courts need not consider an insured's reasonable expectations when the policy language is clear. Thanks to James Papadakis for his contribution to this post. Please email Mike Gauvin with any questions. Previous Next Contact

News Speculation On Causation Of Infections Will Not Be Permitted By New York Courts January 13, 2023 < Back Share to: In Michael Pecora v. Fitness International LLC, 2023 NY Slip Op 00103 (2d Dept. 2023), plaintiff alleged he contracted infections at his local gym as a gym member in July 2014. He received an infection on his stomach, received medical treatment for that infection, and then alleged that after use of the gym sauna, he thereafter developed MRSA (a bacterial infection) one day later. Plaintiff sued the gym alleging that both infections were caused by a dangerous or defective condition on the premises which caused plaintiff’s infections. However, the Court did not buy plaintiff’s argument and the Appellate Division affirmed that ruling. Of import, Counsel for the gym provided a prima facie argument that the plaintiff would not be able to prove, without resorting to speculation, that the pathogen which caused his infections was present at the defendants' facility, Defendants submitted an expert report citing that such infections can be transmitted in various ways in different locations, that the facility was cleaned regularly, and there were no prior complaints or reports of MRSA infections. The Appellate court also determined that “since there could have been many possible sources of the infection-producing pathogen, any determination by the trier of fact that a condition at the defendants' facility caused the plaintiff's infections would be based upon sheer conjecture” (Dennis v Lakhani, 102 A.D.3d 651, 652; cf. Ash v City of New York, 109 A.D.3d 854, 855; Garvin v Rosenberg, 204 A.D.2d 388). Plaintiff failed to raise a triable issue of fact against those arguments. As result of Covid and other transmitted infections, property managers have seen the increase in suits of this type and while it can be difficult to defend because plaintiffs allege that the infection came from the property owner, medical experts are necessary to explain these types of MRSA infections are common and can occur anywhere. This case shows that the Appellate Court will sustain summary judgment ruling if a premises owner can prove that it maintained and cleaned the facility regularly, and there were no previous reports from other public patrons. Thanks to Raymond Gonzalez for his assistance in this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Barking Up The Wrong Tree: Court Grants Owner Summary Judgment For Dog's Accident December 12, 2013 < Back Share to: Typically, lawsuits involving dogs arise out of dog bites. But a more unusual scenario arose in Buicko v Neto, where a dog running loose in the street caused an accident and the injured party sought to have the dog's owner held liable. The defendants’ installed an invisible fence along the boundary of their property intended to allow their dog, Dudley, free to explore. The dog was fitted with a collar that provided a small electric shock when the dog ventured too closely to the underground “fence.” One day, plaintiff rode her bicycle past defendants’ home and noticed Dudley barking and zigzagging along the front boundary of the property. Apparently, the invisible fence didn't provide much of a deterrent, as plaintiff alleged Dudley bolted from defendants’ yard directly in the path of her bicycle causing her to inadvertently strike the dog and fall. The trial court awarded the homeowner's summary judgment, and the Appellate Division, Third Department, affirmed the dismissal finding that plaintiff submitted insufficient evidence to demonstrate that the defendants were liable. Similar to a dog bite case, the found that the owners needed to be on notice of a propensity for similar conduct. While recognizing that the propensity could include “a dog’s habit of chasing vehicles or otherwise interfering with traffic” and thus endangering people’s safety, the court found that there was no evidence that Dudley had a history of chasing bicycles or interfering with traffic. A dog’s propensity to bark at traffic and run around a yard was deemed insufficient to raise a question of fact regarding the homeowner's notice for the dog's conduct here. Thanks to Steve Kaye for his contribution to this post. Previous Next Contact

News Call Your Next Witness - Brian & Georgia Discuss the Courts and new Associates Starting their Careers this Fall September 1, 2021 < Back Share to: No guest this week -- instead, Brian Gibbons and Georgia Coats discuss the seemingly ever-changing impact of COVID-19 and the delta variant on court operations. As recently as a few months ago, the pandemic seemed to be on its last legs, but numbers are trending in the wrong direction again. What does that mean for court operations this Fall and Winter, in NYC and elsewhere? Also, with new associates starting at Wade Clark Mulcahy and other firms across the country, Brian & Georgia compare their immediate post-law school experiences, discuss what they wish they knew at the time, and offer some advice for graduates starting their legal careers in the next few weeks. Listen here, or wherever you download podcasts. If you are interested in being our "next witness" on Call Your Next Witness, please email Brian Gibbons or Georgia Coats. Previous Next Contact

News Lobby Slip and Fall July 9, 2009 < Back Share to: In Rodriguez v. Hudson View Associates (http://www.courts.state.ny.us/reporter/3dseries/2009/2009_05530.htm), the plaintiff slipped on water that had been tracked into the lobby of the building where she worked. She claimed that the owner had failed to place any mats on the floor to address this condition. The owner moved for summary judgment, claiming no notice of the condition. The motion was denied because the owner failed to offer evidence as to when the floor was last inspected or examined before the plaintiff's accident. Mike Monteith posted this entry. Previous Next Contact