News Does OSHA Give Employees A Right Of Action? Question Addressed In PA May 26, 2023 < Back Share to: In Jane Doe v. Eugene Scalia, appearing in front of the Court of Appeals Third Circuit, plaintiff Jane Doe presented a matter of first impression to the court which found that the OSHA Act mandates the dismissal of a §662(d) claim once the Department has completed its enforcement proceedings. The case decided whether Section 13(d) of the OSHA Act gives employees a private right of action to remediate dangers in the workplace specifically, whether an employee may maintain an action against the Secretary of Labor seeking relief for dangerous working conditions after the Department of Labor has completed enforcement proceedings. Plaintiffs are employees at a Meatpacking Plant located in Dunmore Pennsylvania. The Plant’s workers argued that they were exposed to COVID-19 for the first time in early 2020. As the virus spread, plaintiffs became concerned that the Plant had taken inadequate COVID-19 prevention measures. Plaintiffs notified OSHA who proceeded to conduct a “non-formal” inspection which proceeded through a document exchange. Plaintiffs repeatedly notified OSHA expressing dissatisfaction with the inspection, which they claimed had not addressed the dangers they were facing. In the OSH Act of 1970, Congress created the Occupational Safety and Health Administration (“OSHA” or “the Agency”) to develop and enforce workplace safety standards. In general, OSHA, rather than private litigants, is responsible for assuring workplace safety. In furtherance of that objective, the OSH Act funnels safety grievances through OSHA’s administrative processes. Various sections of OSHA establish authority to conduct workplace inspections, authorize the ability to issue “citations”. In addition to the OSH Act’s standard enforcement procedures, Congress also provided expedited mechanisms in § 662 for remedying workplace hazards requiring immediate attention. The expedited mechanisms provide that the Secretary may seek injunctive relief against an employer and an employee may seek a writ of mandamus against the Secretary to address “imminent danger[s]” in the workplace. Id. § 662(a), (d) and, in relevant part here, § 662(d) authorizes a limited private right of action. In its decision, the court held that § 662(d) “private right of action” gives no indication that Congress intended the “such further relief” language to permit employees to challenge OSHA’s determinations outside of the imminent-danger context. Instead, the “such further relief” language is linked to the injunctive remedy. Id. § 662(d). In deciding this the court acknowledged that it appreciate Plaintiffs’ concern that this interpretation of § 662(d) means that it will provide an avenue for relief in only limited circumstances but affirmed that such a limitation is exactly what Congress intended in enacting § 662. The proper reading of § 662 is that Congress inserted § 662(d) as a safeguard against a failure by OSHA to address an imminent danger while its own enforcement proceedings are ongoing. Thanks to Dominika Rybaltowski for her contribution to this post. Please contact Heather Aquino with any questions.   Previous Next Contact

News Allstate Blocked From Writing New Policies In Florida January 16, 2008 < Back Share to: The Florida Insurance Commissioner has blocked Allstate from writing new policies in that state until Allstate complies with subpoenas issued by the Florida Office of Insurance Regulation. The Subpoenas seek documents regarding Allstate’s reinsurance program, it’s relationship with risk modeling companies, insurance rating organizations and insurance trade associations. http://www.insurancejournal.com/news/southeast/2008/01/16/86463.htm Previous Next Contact

News An Acord Certificate Worth The Paper It's Printed On? November 22, 2010 < Back Share to: It's long been a truism that an Acord certificate is not worth the paper it's printed on. Texas may be about to change all of that -- http://www.insurancejournal.com/news/southcentral/2010/11/17/114977.htm. In the case of Brown v. Omni, the Houston Court of Appeals -- http://www.1stcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=87640 -- has held that "we reject...[the argument] that as a matter of law, issuance of an insurance certificate does not create a duty; presence of disclaimers precludes the creation of false impression; no duty to disclose should arise because there is not duty to explain policy exclusions to an insured; and the use of 'All Risk' cannot convey a false impression." The case is now on appeal to the Texas Supreme Court and if the decision stands, under certain circumstances, an Acord certificate might actually be worth the paper it's printed on. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Staircase Not Defective Using Ancient Codes (NY) March 26, 2021 < Back Share to: In Jackson v. Bethel A.M.E, the Appellate Division, Second Department addressed whether the defendants were entitled to summary judgment on the issue of liability after the plaintiff allegedly fell while descending an exterior staircase owned by defendants Bethel A.M.E and African American Methodist Episcopal Church (“Bethel Defendants”). Bethel defendants retained co-defendant D'Alessandro & Son Contractors, Inc. to regrout the staircase at issue. Plaintiff alleged the staircase was defective since it did not have a handrail in the center, in violation of the 2003 and 2007 New York State Building Code. The court stated, “….. the Bethel defendants established, prima facie, that the plaintiff did not know what had caused her to fall and that the subject staircase, which predated the 2003 and 2007 versions of the Building Code, was not required to be equipped with a handrail in the center.” The Bethel defendants were able to show they were entitled to summary judgment by establishing 1) that plaintiff did not know the cause of her fall and 2) that the defendants were not required to have a handrail in the center of this particular staircase. This decision serves as a reminder that if the plaintiff ever alleges that a defendants building is not up to code, it is imperative to hire an engineer to review the applicable code and to see if the alleged code violations pertain to the alleged defective condition. Thanks to Corey Morgenstern for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News What is "Lawful Possession" of a Vehicle? August 8, 2018 < Back Share to: The Pennsylvania Superior Court recently analyzed the circumstances under which an insured is in “possession” of a vehicle for coverage purposes. In State Farm Automobile Ins. Co. v. Dooner, Dooner, the passenger, grabbed the steering wheel of the vehicle, while Fonte, the driver, was driving, causing the vehicle to strike a police car. Fonte and the police officer commenced lawsuits against Dooner. Dooner sought coverage for the lawsuits under his State Farm Policy. State Farm commenced a declaratory judgment action seeking a declaration that its policy did not provide coverage to Dooner for the lawsuits. The trial court granted State Farm summary judgment. On appeal, Fonte argued the State Farm Policy provided coverage for a “non-owned” vehicle if that vehicle was in the “lawful possession” of the insured. Fonte argued Dooner was in possession of Fonte’s vehicle, at the time of the accident, because Dooner had grabbed the wheel of the vehicle that caused the accident. In analyzing this argument, the court noted the State Farm Policy did not define the term “possession”. As such, the court looked to the surrounding facts. The court reasoned that the driver, Fonte, at all times relevant, was in the driver seat and never relinquished control of the gas or brake pedals. Additionally, the court also noted other jurisdictions had previously held a passenger grabbing a steering wheel did not constitute possession. Consequently, the court agreed with the trial court and held there was no coverage under the State Farm Policy because Dooner never was in “possession” of the vehicle. Accordingly, this case offers some insight into the relevant facts a court may look to when analyzing whether an insured is in possession of a vehicle for purposes of coverage under an automobile policy. Thanks to Colleen Hayes for her contribution to this post. Previous Next Contact

News COVID Chaos – New York Court Finds No Coverage for Pandemic Losses October 8, 2021 < Back Share to: It would be near impossible to encounter someone who has not been affected in some way by the COVID-19 pandemic. The same proves true for insurance companies and courts across the nation have begun to address the issue of insurance coverage for pandemic-related losses. In Visconti Bus Serv., LLC v. Utica Natl. Ins. Group, 2021 NY Slip Op 21027 (Feb. 12, 2021), the New York Supreme Court, Orange County issued such a decision in an action filed by a bus company against its insurer seeking coverage for losses sustained in connection with the COVID-19 pandemic. Due to New York Executive Orders enforced as part of the State’s response to the COVID-19 pandemic, the company’s commercial bus fleet operation ended, and it allegedly suffered damage in the form of lost business income. The bus company argued that its insurer should cover the loss under the company’s “all risk” commercial property policy, which provided coverage for “direct physical loss of or damage to Covered Property at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.” The insurer denied coverage and argued that the premises did not sustain any direct physical loss or damage from a Covered Cause of Loss, and also cited certain policy exclusions, including the “virus” exclusion, and the exclusion for “delay, loss or use or loss of market.” The court agreed with the insurer and dismissed the Complaint, finding that there was no coverage for business income/extra expense in the absence of “direct physical loss or damage to the insured’s premises,” and that mere loss of use or functionality was insufficient to trigger coverage. The court noted that the bus company admitted that the premises had not been infected with the COVID-19 virus and the company was unable to show any loss of use due to damage to the actual premises as a result of the pandemic. Accordingly, the “all-risk” coverage of the policy was not triggered by the loss of business income stemming from enforcement of the New York State Executive Orders. The Court also ruled, as New York state and federal courts applying New York law have consistently held, that the language of the policy as it related to “direct physical loss or damage to property” was not ambiguous. It found to the contrary – that the policy unambiguously excluded coverage for the mere loss of use or functionality of the covered premises in the absence of actual, demonstrable physical harm. The bus company appealed the decision, and the case is currently pending in the Appellate Division, Second Department. The court recently permitted several amicus parties to file briefs in the case. Caselaw regarding coverage for COVID-related losses continues to develop but the Visconti Bus Serv. decision is favorable to insurers in respect of coverage for business losses where no physical damage or loss can be shown. The appeal should further clarify New York law on this issue as well as coverage for COVID losses. Thank you to Tristan Montaque for his contribution to this post. Please email Andrew Gibbs with any questions. Previous Next Contact

News Worldwide Coverage Not So Worldwide October 10, 2019 < Back Share to: The Seventh Circuit Court of Appeals recently examined personal jurisdiction over worldwide insurance policies. In Lexington v. Hotai, the court held that an insurer for a bicycle manufacturer could not compel contribution from Taiwanese insurers over a cycling injury settlement. The initial coverage dispute arose out of severe injuries that a Louisiana resident sustained while riding a Trek bike he rented in Texas. When the front wheel detached, he fell causing paralysis in his arms and legs. He sued Trek in Wisconsin's state court, the bicycle manufacturer, as well as Lexington, the insurance company that insures Trek through a commercial general liability and umbrella policy and defended Trek in the suit. After the case settled, Lexington sued Zurich and Taian, two Taiwanese insurance companies, for reimbursement. The District Court dismissed the case for lack of personal jurisdiction and Lexington appealed. In affirming, the Seventh Circuit found that while Wisconsin’s long-arm statute reached the Taiwanese insurers, the suit failed to meet the Constitution’s due process requirement that the defendants have sufficient “minimum contacts” that they “purposefully availed” themselves to Wisconsin’s jurisdiction. In so doing, the court rejected Lexington’s argument that this requirement was met by the policy’s “worldwide coverage” provisions, finding that foreseeability of a Wisconsin lawsuit alone is not enough. This case carries big implications for those seeking jurisdiction over foreign companies, especially foreign insurers. It serves as a reminder that worldwide coverage does not necessarily mean worldwide jurisdiction. Previous Next Contact

News PA Appellate Court Finds that You’re “At Work” While on Your Commute April 8, 2022 < Back Share to: In Bark v. Sooner Steel LLC, the Pennsylvania Commonwealth Court held that a worker was acting within the course and scope of his employment while commuting home from work. The court emphasized that whether someone is acting within the course and scope of his or her employment is a fact specific inquiry. In Bark, the claimant suffered severe injuries in a motor vehicle accident that occurred while he was returning home from work. Before the accident, the claimant, Mr. Bark, and his employer had agreed that he would be paid for the time he worked, as well as the commute. There was, however, no written contract. After the incident, Mr. Bark sought workers’ compensation benefits. The workers’ compensation board denied the claim, finding that the claimant was not acting within the scope of his employment when the incident occurred. Under Pennsylvania law, commuting to and from work is not considered to be within the course and scope of one’s employment (commonly referred to as the “coming and going” rule). There are limited exceptions though. The exceptions are: (1) the employment contract includes transportation to and/or from work; (2) the claimant has no fixed place of work; (3) the claimant is on a “special assignment or mission” for the employer; or (4) special circumstances are such that the claimant was furthering the business of the employer. Each case is extremely fact intensive. Ultimately, the Pennsylvania Commonwealth Court (an appellate tribunal), found that Mr. Bark was acting within the course and scope of his employment when the incident occurred. The court relied on the “humanitarian nature” of the Act. Further, it found that “course of employment” should be broadly construed when the employee is a traveling employee—as Mr. Bark was. Similarly, “course of employment” is broadly construed when there is no fixed place of work. Ultimately, the court determined that Mr. Bark suffered his injuries when while in the “course and scope” of his employment. Thanks to John Lang for his contribution to this article. Should you wish to discuss, please feel free to contact Tom Bracken. Previous Next Contact

News Senior Partner Paul Clark Speaks About Concussions in Sports October 4, 2012 < Back Share to: New York, NY On October 4, 2012, Senior Partner Paul Clark addressed the annual General Liability Council (GLC) of United Educators and spoke on the topic of concussions in sports from a legal and risk management standpoint. The GLC provides expertise on general liability legal issues unique to educational institutions including campus security issues, sexual assaults, catastrophic injuries and insurance coverage. A Reciprocal Risk Retention Group, United Educators is a licensed insurance company owned and governed by more than 1,160 member colleges, universities, independent schools, public school districts, public school insurance pools, and related organizations throughout the United States. Previous Next Contact

News A Plaintiff's Dream? The Unemployed Get Jury Duty Preference. June 25, 2012 < Back Share to: We tend to steer clear of more political discussions here at Of Interest, but every once in a while an idea comes along that we simply have to point out. According to Fred Clark, a well-known blogger, a solution to both the unemployment problem and the boring nature of jury duty would be to give jury duty preference to the unemployed and combine jury duty with a job fair. As if finding a fair and impartial jury isn't hard enough... For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Asleep in Car = At Work? PA Appellate Court Says "Yes". October 15, 2009 < Back Share to: In the case of Kulik v. Mash, the plaintiff arrived for work early, so he decided to nap in his car in his employer's parking lot. While he was napping, a co-worker arriving for work rammed his car into the plaintiff's thereby causing injuries. The question posited for the court was whether the Worker's Compensation Act barred coverage. The Superior Court agreed with the trial court and held that it did. The court held that "waiting for work was within the scope of employment." http://pdf.wcmlaw.com/pdf/Sleeping Employee.pdf Previous Next Contact

News Worker Entitled to Compensation If Pre-Existing Condition Aggravated at Work (PA) November 16, 2017 < Back Share to: A work related injury is compensable under Pennsylvania workers compensation laws even if it is an aggravation of a pre-existing condition such as osteoarthritis. In Brand Energy Services, LLC v. Worker's Compensation Appeal Board , an employer appealed an award by a workers compensation judge arguing that causation had not been established for aggravation of bi-lateral carpal tunnel syndrome, osteoarthritis and other conditions. The employee, a union carpenter, was employed to build, modify and dismantle scaffolding for the employer’s clients. His employer was paid by the foot for the scaffolding erected. The employee had been working days. When he was transferred to a night shift, his work assignment increased from eight hour shifts to ten to twelve hour shifts. He worked thirteen days in a row and had only one day off. Not only was he expected to work longer hours, but to meet the needs of the plant where he was working, they had to erect more scaffolding per shift. He testified that in an eight hour shift, the workers would assemble 300 leg feet of scaffolding. In the night shift, he was building between 1000 and 1200 leg feet. The worker’s hands became swollen under this new work regimen. He sought treatment for his hands, as they continued to be numb, swollen, and tingly. His doctor diagnosed work-related bilateral carpal tunnel syndrome, osteoarthritis, and left scapholunate advanced collapse (SLAC) wrist. When the worker submitted a note from his family practice to his supervisor outlining his diagnoses, he was laid off. On appeal from the workers compensation tribunal, the Court faced two issues: (1) whether the doctor’s testimony was equivocal as to the causal connection between the work and the work-related aggravation of underlying conditions; and (2) whether the doctor had a sufficient understanding of the work, and consequently, a proper factual foundation for a medical opinion such that his opinion was competent. In terms of the former question, the court held the causal connection was a question of law and worker’s burden to present unequivocal medical testimony. At issue was whether the doctor’s use of “probable” with respect to causation of one of three diagnoses rendered the entire opinion insufficient to support any award. The court disagreed with the employer’s argument in this regard. It found that the doctor’s testimony as to the aggravation of carpal tunnel syndrome and osteoarthritis was sufficiently supported. However, because the doctor testified that there was a “probable SLAC wrist,” that diagnosis was insufficiently proven. In terms of the latter question, the Court considered Pennsylvania case law that held proffered medical opinion can be rendered incompetent if the medical professional does not have a complete grasp of the patient’s work, such as if the medical profession demonstrates a lack of knowledge as to his or her patient’s tasks. While the Employer argued the doctor did not have a complete grasp of the job duties, the Court rejected its argument because the doctor reviewed his patient’s testimony and took a history from him. Given this testimony, the Court considered the doctor competent to render an opinion. Thanks to Lauren Berenbaum for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact