News An Open and Obvious Condition May Not Always Be So Obvious in New York March 22, 2024 < Back Share to: It is well settled in New York that while an owner of real property has a duty to maintain a reasonably safe premises, it has no duty to protect or warn against open and obvious conditions that are not inherently dangerous. A defendant has the burden to prove both elements, and failure to do so will preclude summary judgment on the open and obvious defense. The Appellate Division, Second Department recently addressed this issue in Butler v NYU Winthrop Hosp. In that case, the plaintiff was injured after her foot became entangled in medical equipment tubes and cords while visiting her son in the defendant’s hospital. The trial court granted the hospital’s summary judgment motion, in part, because it found that the alleged hazard was open and obvious and not inherently dangerous. The Second Department reversed and denied the hospital’s motion, finding that the hospital failed to establish, prima facie, that the condition of the tubes and wires were not open and obvious and not inherently dangerous under the circumstances. In so holding, the Court observed that a condition is open and obvious if it is readily observable by a person making reasonable use of their senses, given the conditions of the accident. A condition that is ordinarily apparent may be dangerous if it is obscured or the plaintiff is distracted. The takeaway from Butler is that a defendant cannot assume that a condition causing an accident is open and obvious and not inherently dangerous simply because it can be seen. The Court in the case did not explain the hospital’s failure on the motion, but it is clear that a defendant must introduce concrete evidence to establish these elements of the defense in order to prevail on summary judgment. Butler v. NYU Winthrop Hosp .pdf Download PDF • 720KB Previous Next Alexander Rabhan Alexander Rabhan Senior Associate +1 212 267 1900 arabhan@wcmlaw.com Contact

News PA's Highest Court Allows Reckless Conduct Defense in Products Cases. November 30, 2012 < Back Share to: In the case of Reott, et al. v. Asia Trend, et al., the plaintiff took a Remington tree stand and utilized a “ladder stick” to climb twenty to twenty-five feet to install the stand in a “suitable” tree. He placed the stand in the tree and cinched the locking strap around the tree trunk. Unfortunately, when he attempted to climb down the tree, the locking strap broke and he fell to the ground thereby suffering crushed vertebrae and a fractured wrist. The installation of the stand in the tree was contrary to all acceptable “tree strand” usage and the defendants pleaded reckless conduct as an affirmative defense. On appeal Pennsylvania’s Supreme Court was faced with the question of “whether a defendant in a products liability action must plead and prove as an affirmative defense that an injured party’s alleged “highly reckless conduct” was the sole or superseding cause of the plaintiff’s injuries.” The Court, in a binding and precedential decision, ruled that the answer is “yes.” The good news in this decision is that it gives defendants in a products case a way, albeit a difficult way, to get out from strict liability. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Just Because a City Agency Owns a Property, That Does Not Mean the City Owns it, Too April 19, 2024 < Back Share to: When it comes to determining premises liability, just because a government agency is responsible for a premises, that does not automatically mean the entire municipality itself is responsible just by virtue of controlling that agency. As with any entity, for a party to be liable for a tort that occurs on its property due to a dangerous or defective condition, they either had to create it or it must be shown they owned, controlled, maintained, or had special use of the property. This principle applied just the same in the case Rafael Acevedo v. Hope Gardens I, LLC, et al. After Plaintiff slipped and fell in a staircase on New Year’s Eve 2019, he filed suit against multiple entities, including both the City of New York and the New York City Housing Authority. While the New York City Housing Authority was the actual owner of the property, having leased it to the first-named defendant, the lower court granted the City of New York’s motion for summary judgment to be let out of the case. While Plaintiff appealed this decision, the Second Department upheld it as they found there was no evidence that the City of New York met any of the criteria for a finding of liability. This ruling is interesting as it seems almost in someway similar to the relationship between a subsidiary company and its parent company or a corporation/LLC and its shareholders/members, with the New York City Housing Authority in this case being the former and the City of New York being the latter. While no one would deny that the Housing Authority answers to the City of New York, the City of New York did not have any direct control of the property with that being done through the Housing Authority. If you are on the Plaintiff side, keep this in mind to ensure that you are suing the right entity; if you are the Defendant side, this may be a valuable defense to bring up. Acevedo v. Hope Gardens I, LLC .pdf Download PDF • 458KB Previous Next Patrick J. Argento Patrick J. Argento Counsel +1 516 873 0011 pargento@wcmlaw.com Contact

News Ambiguity & Discrimination: Gay Couple Begins Process of Suing NYC for IVF Coverage April 29, 2022 < Back Share to: A former Manhattan Assistant District Attorney, Corey Briskin and his husband, Nicholas Maggipinto, have filed a complaint with the EEOC claiming the City of New York wrongfully denied them coverage for in vitro fertilization (IVF). Briskin and Maggipinto are a married couple seeking to start a family. Briskin and Maggipinto were relying on benefits afforded them by health benefits issued to employees of New York City to help mitigate the costs of IVF. Those benefits were issued through the City’s comprehensive Benefits Plan underwritten by EmblemHealth/GHI. The New York legislature recently addressed the coverage issue for IVF treatments for same sex couples in amendments to Insurance Law §§ 3221(k)(6)(C)(viii) and 4303(s)(3)(H). Both of these provisions provide that no corporation providing coverage shall discriminate based on an insured’s sexual orientation, marital status or gender identity. Moreover, in a letter circulated to insurers providing guidance after the passage of these amendments, New York’s Department of Financial Services expressly directed insurance providers to “provide immediate coverage of…treatment services…for the treatment of infertility for individuals who are unable to conceive due to their sexual orientation or gender identity.” Health Insurance Coverage of Infertility Treatments Regardless of Sexual Orientation or Gender Identity at 1 (Feb. 23, 2021), https://perma.cc/A7MV-K7FE , Department of Financial Services, Insurance Circular Letter No. 3 (2021). Briskin and Maggipinto allege that on June 8, 2021, Briskin contacted the City’s Office of Labor relations and at the New York County District Attorney’s Office to request coverage for IVF service; however, they were allegedly informed they were not eligible and were denied coverage. Under the CBP/GHI policy, infertility is defined as the inability to conceive after twelve (12) months of unprotected intercourse.” Briskin and Maggipinto allege that “intercourse” is not defined but the City and its insurance administrator interpret intercourse as “between a male and a female” thereby making it impossible for same-sex male couples to fit the definition of infertility. Briskin and Maggipinto allege that the City’s interpretation discriminates against them on the basis of sex and sexual orientation in violation of Title VII, New York State’s Human Rights Law, and New York City Human Rights Law. They argue that gay men are treated differently than others in the same position, since a straight female who cannot produce ova can receive coverage for the process of extracting ova from a donor, but gay men who are equally unable to produce ova do not receive coverage for the same treatment. Briskin and Maggipinto therefore are seeking coverage by alleging the interpretation of “intercourse” being used to deny coverage goes against public policy. Discrimination aside, another argument, although not included in Briskin and Maggipinto’s EEOC complaint, is that because “intercourse” is undefined and subject to multiple interpretations, that term is ambiguous. It is well established in New York that ambiguities in an insurance policy must be construed in favor of the insured. Dean v. Tower Ins. Co. of New York, 19 N.Y.3d 704 (2012). Therefore, if a Court deemed “intercourse” to be ambiguous, coverage would be found in favor of Briskin and Maggipinto. We anticipate this case to be just one of many coverage disputes over rights to certain health benefits for sexual minorities and gender non-conforming people. Thanks to Brendan Gilmartin for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Bad Day At The Track For Plaintiff In Its Attempt To Have Its Declaratory Judgment Action Decided In State Court November 19, 2021 < Back Share to: In Greenwood Racing v. American Guarantee & Liability Insurance Co. and Steadfast Insurance Co., the District Court for the Eastern District of Pennsylvania denied Greenwood Racing’s (“Greenwood”) motion to remand the case to state court. The court reasoned that although it could have abstained from jurisdiction, there were no novel issues of state law requiring remand. Greenwood, like many businesses, was forced to close its racetrack because of government orders related to the COVID-19 pandemic. Even when Greenwood reopened, it earned significantly less revenue because of the remaining safety precautions related to the pandemic. It eventually filed a declaratory judgment action against its insurers, seeking to declare that they were required to insure the business losses. The insurers removed the case to federal court. Greenwood then filed a motion to remand. The District Court noted that although it could remand the case back to state court, the relevant factors weighed against remand. First, the case presented no novel issues of state law, which would have required remand. The case only involved well-established principles of Pennsylvania insurance law (namely the limits of coverage related to business interruption). The law was clear that Greenwood needed to present evidence of direct physical loss or damage to the covered property. Second, the court found that the contamination exclusions in the policies did not present a novel issue of state law. Although Greenwood argued that the use of the word “virus” violated its reasonable expectations (i.e. that it would be covered for losses sustained during a virus like COVID-19), the court found that the reasonable expectations doctrine is well settled under Pennsylvania law. Greenwood’s argument did not present novel issues to be decided by the state court. Finally, the court found that remand was not mandatory because there were no parallel state proceedings. The court’s decision shows that the novel issues presented by business interruption cases related to COVID-19 may not be so novel anymore. Should you have any questions about this case or others involving Covid-19 insurance cases, please contact Thomas Bracken. Previous Next Contact

News NY's First Department Says No Coverage to Named Insured for Claim by Subcontractor's Employee January 14, 2010 < Back Share to: In a 3-2 opinion, New York's First Department has just ruled, in a case of first impression, that a general liability policy’s employee exclusion bars coverage for a bodily injury claim to a worker hired by the insured’s subcontractor. In Nautilus v. Matthew David, et al., the insured managed a corporate party on Randall’s Island in New York. The insured hired a subcontractor to provide services for the party and the subcontractor then hired the worker who was later injured while falling from a vehicle on the event grounds. The insurance policy at issue excluded coverage for injury to “employees” -- defined as any person “hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.” The court ruled that even though the injured worker had not been directly hired by the named insured, the worker had been “contracted for” by the insured because the subcontractor that hired the worker had been retained by the insured to provide services for the event. See Nautilus v. Matthew David, et al. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00296.htm Previous Next Contact

News NJ Supreme Court Rules that Consumer Fraud Act Claims Are Preempted By Product Liability Act June 2, 2008 < Back Share to: The Vioxx litigation has consumed a great deal of judicial resources in New Jersey where the drug's manufacturer is headquartered. It has also clarified many unsettled areas of law. In McDarby v. Merck, the New Jersey Supreme Court examined a punishing jury verdict against Merck that included an award in excess of $4,000,000 just for attorney's fees and costs for its violation of the Consumer Fraud Act ("CFA"). Under the CFA, a successful plaintiff can recover treble damages, attorneys fees and costs if an unconscionable commericial practice is proven. In contrast, New Jersey's Product Liability Act ("PLA") permits recovery if a product manufacturer fails to adequately warn prescribing physicians of the risks of a drug's use but without any provision for the recovery of enhanced damages. The question presented in McDarby was whether the PLA provided the exclusive remedy for claims of economic loss sustained by the plaintiffs or whether the CFA with its enhanced damages could be also be utilized. The issue was far from academic since the multi million dollar award of attorneys fees and costs hinged on the Supreme Court's decision. In McDarby, plaintiffs' theories under the CFA and PLA overlapped. To support their CFA claim, plaintiffs argued that Merck's failure to "be truthful in the marketing of [Vioxx]" represented a misrepresentation designed to mislead consumers. To support their PLA claim, plaintiffs argued that Merck provided inadequate warnings regarding the cardiovascular risks of Vioxx, a claim that seemed remarkably similar to their CFA claim. The PLA states that it is the exclusive remedy for harm caused by a product. The Supreme Court agreed with Merck that, under both theories of liability, plaintiffs were seeking recovery based on Merck's failure to provide adequate warnings, a classic product liability claim. Under New Jersey's statutory product liability scheme, the sole and exclusive remedy is provided in the PLA. Thus, the PLA preempts the CFA when a product liability claim is made. Bottom line: in an action under the PLA, successful plaintiffs are limited to tort damages alone and cannot obtain treble damages, attorneys fees or costs under the CFA. http://www.judiciary.state.nj.us/opinions/a0076-a0077-07.pdf Previous Next Contact

News "Innocent" Misrepresentation Leads to Policy Rescission for Homeowners (NY) December 9, 2016 < Back Share to: A New York appellate court recently dealt with the issue of whether a homeowner's policy could be rescinded, despite proof of fraud. In Joseph v. Interboro Insurance Company, the plaintiffs needed to obtain homeowners insurance prior to closing on a residential property in Brooklyn. Their mortgage broker contacted an insurance broker to obtain a policy based upon representations the plaintiffs made in their loan application that they would occupy the premises as their primary residence. The plaintiffs signed the application, and on the date of closing, a homeowners' insurance policy was issued by the defendant. After a fire occurred at the premises, the defendant discovered that the plaintiffs did not occupy the premises as their primary residence and rescinded the policy, contending that the plaintiffs, through a material misrepresentation, induced the defendant to issue a policy that it normally would not have issued. The plaintiffs sued the insurer for breach of contract and negligence, but the trial court awarded summary judgment in favor of the insurer. On appeal, plaintiffs admitted that they did not intend to reside in the premises, but claimed they did not read the application and therefore did not make a willful misrepresentation. The Second Department rejected that argument, finding that under New York law, a material misrepresentation justifies rescission, even if innocently made. Thanks to Josh Gornitsky for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Unsigned Contract Can Result in AI Coverage December 28, 2016 < Back Share to: When a blanket additional insured endorsement provides coverage as required in a “written contract,” the First Department says the contract does not need to be signed. In Zurich Am. Ins. Co. v Endurance Am. Speciality Ins. Co., an employee of Kras Interior Contracting Corp. was injured while in the scope of his employment. The employee sued the property owner and Newmark, the property owner’s agent. Newmark hired Kras via a purchase order, which stated, “By accepting the order, vendor hereby agrees to become bound by the terms of the agreement.” The purchase order required Kras to procure insurance and name Newmark and the property owner as additional insureds. Although the purchase order contained signature lines, it was never executed. Newmark’s insurer tendered the defense of its insured and the property owner to Kras’s insurer, and eventually initiated a declaratory judgment action to establish the defendants’ entitlement to coverage as additional insureds. Kras’s insurer argued they did not qualify as additional insureds because the purchase order was not signed and, therefore, there was no contract in place. The First Department noted that the blanket endorsement merely required a “written contract,” but did not require that the contract be executed. Accordingly, the court held that Newmark and the owner were additional insureds. When it comes to evaluating additional insured coverage, both the endorsement and the contract must be carefully scrutinized. The importance of undertaking this analysis cannot be underemphasized given the frequency with which litigation follows the above pattern—worker is injured on the job, sues the property owner and its agents, who then seek coverage as additional insureds to the worker’s employer’s policy. Thanks to Chris Soverow for his contribution to this post.       Previous Next Contact

News Policy Terms And Statute Of Limitation Applied To Bar Breach Of Contract And Bad Faith Claims (PA) July 17, 2013 < Back Share to: In Thompson v. Certain Underwriters at Lloyd’s, the Philadelphia Court of Common Pleas granted Lloyd's motion for judgment on the pleadings and ruled that Thompson's breach of contract and bad faith claims against Lloyd’s were barred by a suit limitation provision in the policy at issue, as well as the expiration of the applicable two-year statute of limitations. Accordingly, the court dismissed Thompson’s claims with prejudice. Plaintiff Lopez T. Thompson filed a claim against his insurance policy issued by Certain Underwriters at Lloyd's following a fire at his property. Lloyd’s sent an adjuster to inspect the property and estimate the damages. Thompson claims that he then contacted Llyod’s approximately 9 months later, demanding that his claim be settled. Lloyd’s denied the claim shortly thereafter and Thompson responded by filing a writ of summons a few months later and a complaint five months after that alleging that the damage to his property was covered under his insurance policy. Numerous amended complaints, objections and cross-claims were filed throughout the next year, until the court recently granted Lloyd’s motion for judgment on the pleadings. The court noted that Thompson’s breach of contract claim failed to meet the policy’s requirement that such claims be brought within one year after the date of loss, barring his claim in light of Thompson’s failure to submit any proof that Lloyd’s had waived the suit-limitation provision. Further, the court stated that even in light of Lloyd’s "long silence" regarding Thompson's claim, the time limitation described in the policy started running, at the very latest, when Lloyd’s denied the claim, thus making Thompson’s claim untimely by more than a year. As Thompson failed to provide a reasonable explanation as to why he did not commence his suit until 2012, the court dismissed the breach of contract claim. Finally, the court pointed to the applicable two-year statute of limitations and held that Thompson's bad faith claim was also barred. The court noted that the statute of limitations also began to run against Thompson’s bad faith claim when Lloyd’s denied the claim. Special thanks to Nicole Pedi for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News PA Superior Court addresses piercing of corporate veil. October 29, 2007 < Back Share to: The state of PA's corporate veil piercing law had been unclear. Fletcher Hartley v. Szymanski attempts to resolve the lack of clarity. In the decision, the court focused on principles of equity and justice and not rigid legal formality. http://www.superior.court.state.pa.us/opin.htm Previous Next Contact

News Plaintiff Fails to Satisfy NJ Threshold Statute September 9, 2016 < Back Share to: In New Jersey, motor vehicle accident plaintiffs must establish they were permanently injured to satisfy a defendant’s threshold motion. In Peek v. Luo, the plaintiff was struck by a motor vehicle while riding his bike. Plaintiff filed suit alleging permanent injuries, and served an affidavit from his treating physician stating that he sustained scarring of his lung and decreased lung function. However, plaintiff did not serve a medical expert report certifying that he sustained a permanent injury. The defendant filed a motion for summary judgment, arguing that the plaintiff failed to meet the requirements of the verbal threshold statute in New Jersey, which requires the plaintiff to establish that he sustained a permanent injury. The trial court granted defendant’s motion, finding the treating doctor’s affidavit was insufficient. The plaintiff filed a motion for reconsideration, along with an expert report from a second medical doctor opining that the plaintiff sustained a permanent injury. The court denied plaintiff’s motion for reconsideration, noting that the plaintiff should have served the expert report during the discovery period. On appeal, the court agreed that the plaintiff’s motion for reconsideration should have be denied since, at the time of the initial dismissal, plaintiff had not yet provided objective, credible evidence proving a permanent injury. This case highlights the importance of the defense monitoring whether a claimant has met the requirements of the verbal threshold statute. The case also highlights the importance of serving a timely medical expert report. Thanks to Heather Aquino for her contribution to this post.       Previous Next Contact