News PA Supreme Court Expands Application of Separate Disease Rule. March 2, 2012 < Back Share to: The Pennsylvania Supreme Court recently expanded the separate-disease rule in asbestos cases beyond the archetypal application that permits plaintiffs to prosecute one suit for non-malignant illnesses and one suit for malignant illnesses that may develop following the initial litigation. In the case of Daley v. A.W. Chesterton, et al, Herbert Daley and his wife filed suit in 2005 after he had contracted malignant pleural mesothelioma. However, Daley had previously sued for asbestos-related lung cancer in 1990. Consequently, the Philadelphia Court of Common Pleas granted summary judgment for the defendants in the 2005 case, noting that the separate-disease rule established by the 1992 Pennsylvania Supreme Court case of Marinari v. Asbestos Corp. did not allow for separate asbestos suits where each arises out of a distinct malignant illness. The Superior Court rejected the trial court’s interpretation of the separate-disease rule and vacated the order below because they considered the limitation reminiscent of the very dangers Marinari was designed to prevent. On appeal, the Pennsylvania Supreme Court considered whether the Marinari separate-disease rule permits plaintiffs to bring separate lawsuits for more than one malignant disease allegedly caused by the same exposure to asbestos. In a 6-1 decision, Justice Debra Todd acknowledged that excerpts from cases decided after Marinari seem, in isolation, seem to advance an application of the “two-disease” rule espoused by the trial court. However, Justice Todd looked to the underlying rationale for the Marinari decision and read the rule as a wholesale repudiation of the then-existing “single action doctrine” that required plaintiffs to raise claims for all current and future damages they might develop as the result of exposure to asbestos. According to Justice Todd, the separate-disease rule was concerned with preventing “anticipatory lawsuits, protracted litigation, evidentiary hurdles, speculative damages, and excessive or inadequate compensation”— the same apprehensions that plague “situations where an asbestos plaintiff is diagnosed with a malignant disease, and later diagnosed with a separate and distinct malignant disease caused by the same asbestos exposure.” Thus, where denying the plaintiff relief for separate malignant illnesses creates the same unease that spawned the separate-disease rule in the first instance, the plaintiff may be afforded its benefit and given the opportunity to litigate them separately. Good news for asbestos plaintiffs, but bad news for insurers. Special thanks to Adam Gomez for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   Previous Next Contact

News Late Notice (Without Prejudice) Lives In Many Pollution Cases August 21, 2013 < Back Share to: When the New York State legislature abolished the no-prejudice rule in 2009, it greatly increased the burden on insurers to establish prejudice as an element of the late notice defense. But a recent decision in the Supreme Court, New York County, serves as an important reminder to insurers that, in pollution cases, New York’s no-prejudice rule often still applies when the insured gives late notice. For policies issued before January 17, 2009, a failure to satisfy the notice requirement of an insurance policy vitiates the policy, and the insurer is not required to demonstrate that they were prejudiced by the late notice. Whether late notice was provided to an insurer is of particular relevance in pollution cases, because claimants often commence lawsuits with actual or constructive knowledge of the problem. In Travelers Indemnity v. Orange and Rockland Utilities, Index No. 603601/02, the insured sought coverage for the investigation and remediation of pollution and contaminates at gas plants owned or previously owned by the insured from 1852 through 1965. Travelers or its predecessors afforded coverage to the insured under policies issued between 1955 through 1978. The Travelers policies required that notice be provided “as soon as practicable.” Although the insured was aware of its potential liability as far back as 1981, it did not provide notice to Travelers until 1995. Justice Eileen Bransten -- applying the no-prejudice rule -- held that notice is a condition precedent to coverage, and therefore Travelers properly disclaimed coverage based on receiving late notice of the underlying pollution and contamination. The breach of the condition vitiated coverage, relieving Travelers of any duty to defend the insured. As such, in pollution cases, an insurer should always consider whether late notice is a viable defense to coverage, and, if so, immediately disclaim coverage. http://www.courts.state.ny.us/Reporter/pdfs/2013/2013_31585.pdf Previous Next Contact

News In a Surprising Change of Pace, the 1st Department Limits Scope of Additional Insured Coverage (NY) September 20, 2016 < Back Share to: In a decision that is sure to have substantial reverberations in construction coverage disputes, the First Department, Appellate Division recently ruled that blanket AI endorsements require contractual privity between the named insured and the party seeking additional insured status. In short, the decision upsets the status quo for AI coverage; where coverage is usually triggered as long as the named insured agrees in a contract to name the person/organization as an AI. The facts surrounding Gilbane are standard fare as coverage disputes go: a construction manager, Gilbane Building Co./TDX Construction Corp. (TDX), was hired by the Dormitory Authority of the State of New York (DASNY) to provide services in connection with the construction of a 15-story building for use by the City of New York. DASNY also contracted with a general contractor to perform work on the project, and the contract required the GC to procure additional insured coverage for TDX and DASNY. The GC’s work caused structural damage to adjacent properties, which required DASNY to incur additional costs. Thereafter, the GC and architects were sued for the negligent work, and the construction manager was impleaded by the architects. TDX then tendered to Liberty, the GC’s CGL carrier, seeking coverage as an additional insured. Liberty denied the tender, stating that it had not been provided with a contract whereby its named insured entered into a contractual relationship with TDX for additional insured coverage. The Liberty policy contained a relatively standard blanket AI endorsement naming as additional insureds “any person or organization with whom you have agreed to add as an additional insured by written contract…” TDX then commenced a DJ for a declaration that Liberty is obligated to provide defense and indemnification in connection with the underlying action. The lower court denied Liberty’s summary judgment motion because the AI endorsement “requires only a written contract to which [the GC] is a party,” and the DASNY-GC contract satisfied this requirement. On appeal, the First Department reversed the Supreme Court’s decision, holding that the language in the Liberty AI endorsement “clearly and unambiguously requires that the named insured execute a contract with the party seeking coverage as an additional insured.” Interestingly, the cases cited by Liberty and relied on by the Court were previous decisions in which the AI endorsement granted coverage “when you and such organization have agreed in writing in a contract or agreement.” TDX argued that this language materially differs from that included in the Liberty policy because it requires contractual privity, whereas the Liberty policy simply requires a written contract, any written contract, where the GC agreed to name TDX as an AI. The Appellate Division rejected this argument because it “place[s] undue emphasis on the phrase ‘by written contract’ and completely ignore[s] the inclusion of the words ‘with whom’ as the object of the verb phrase ‘you agree’.” After a short grammar lesson, the court held the plain meaning of the Liberty AI endorsement is indistinguishable from the substance of the language in other endorsements. TDX also argued that was obvious from the DASNY-GC contract there was a clear intent for TDX to be named as an AI on the Liberty policy. The court noted that although this may be true, it does not mean “the policy issued by Liberty can be judicially rewritten to cover TDX.” It’s also worth noting that the decision contains a lengthy dissenting opinion by Justice Kahn. In brief, the dissent would have found coverage for TDX for two reasons: 1) the DASNY-GC is a written contract where the GC agreed to name TDX as an AI, therefore triggering coverage; and 2) viewing the endorsement as ambiguous, all extrinsic evidence supports finding that TDX is an additional insured under the Liberty policy. Last, the dissent makes a rather foreboding warning that “the majority’s unduly narrow reading of Liberty’s policy provision on additional insureds would upend the established customs and practices of the construction industry and its insurers.” Although the majority claims this dire prediction “rings hollow,” it nevertheless underscores the likelihood of increased coverage disputes pertaining to AI coverage. Although the decision is recent, its potential effects cannot be understated. Many AI endorsements contain language identical to that in the Liberty policy. It is also commonplace for construction agreements, such as those promulgated by the AIA, to require a plethora of parties/entities as additional insureds. If the CGL policy contains an AI endorsement similar to Liberty, this now requires that the contractor enter into separate contracts with all of those entities in order for additional insured status to extend. It would not be surprising to see the Court of Appeals grant certification if TDX decides to appeal, particularly in light of the lengthy dissent. Nevertheless, over the past decade, courts have frequently expanded the scope and breadth of additional insured coverage. The decision in Gilbane may be a sign that there is a ceiling to an insurer’s assumption of risk under a blanket AI endorsement. Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please call or email Brian Gibbons at Brian Gibbons for additional information. Previous Next Contact

News Lenders Beware (NJ) February 20, 2020 < Back Share to: According to a recent New Jersey decision, an owner or lessee of a motor vehicle can be liable to an injured third-party if he negligently entrusts said vehicle to a friend or relation who causes the accident with the third-party. In McKeown v. Capavanni, the plaintiff was injured by a golf cart operated by the defendant’s, Capavanni, 82 year old father-in-law. Capavanni was an experienced golfer and operator of golf carts and had leased a golf cart from the country club. The New Jersey Appellate Division stated that regardless of any contract entered into between the club and Capavanni, Capavanni nonetheless had a common law duty to refrain from entrusting the golf cart to an incompetent operator. On appeal, in determining whether this common law duty had been breached, the appellate division found ample evidence that Capavanni’s father-in-law, who was from Scotland, and in the United States for only the second time, was unfamiliar with using golf carts. Testimony revealed that in Scotland, it was not common to use a golf cart. Further, Capavanni testified that he did not believe his father-in-law had ever operated a golf cart. The appellate division therefore held there was a disputed issue of fact regarding Capavanni's father-in-law's competence to operate the cart. Thus, the court overruled the trial court’s grant of summary judgment to Capavanni. This case illustrates that the law of negligent entrustment is not limited to motor vehicles; it applies to virtually any piece of machinery that can cause harm. Thus, as lending machinery to a relative or friend is commonplace, one should think twice before lending a piece of a machinery to a person who is unfamiliar with its use, as this could result in liability to the lender. Thanks to Mike Noblett for his contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News NY Court Dismisses Child Cyclist Lawsuit Due To Improper Crossing (NY) July 28, 2023 < Back Share to: In the matter of A.B. v. Waring, 2023 NY Slip Op 03671, (July 5, 2023) the infant plaintiff brought action after he was struck by a vehicle operated by the defendant driver, while the plaintiff was attempting to cross a street on his bicycle. The Second Department reversed the lower courts holding and awarded summary judgment to the defendant motorist that struck an infant bicyclist. In reaching their holding, the Second Department stated that the burden of proof to establish lack of negligence rests on the shoulders of the movant defendant. The court went on to state that when a driver has a right of way, they are entitled to assume that all other parties will obey the traffic laws, and they cannot be held to be comparatively at fault when they only have seconds to react when one fails to obey those laws. Specifying that every person riding a bicycle upon a roadway, shall be subject to all of the duties applicable to the driver of a vehicle. Here, the infant plaintiff was found to have been negligent when he entered the roadway mid-block from in front of a parked van without yielding to oncoming traffic. This action was deemed to be the sole proximate cause of the accident. The court noted that the driver was only traveling between 15-20 miles per hour and had at most two seconds to react before the incident occurred. Therefore, the Defendant was able to establish that they had no manner to avoid the collision. This was sufficient to be granted summary judgment and have the complaint be dismissed. Thanks to Chris Palmieri for this assistance with this article. Should you have any questions, please contact Tom Bracken. 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 In Coverage: Copyright Violations Held Distinct From Breach of Licensing Agreement (NY) December 23, 2019 < Back Share to: Earlier this week, in McGraw Hill Education, Inc. v. Illinois National Insurance Company, the venerable Honorable Barry R. Ostrager issued a decision upon the unanimous Court that Illinois National must provide insurance coverage in an underlying copyright infringement action, reversing the trial court. Illinois National had argued that because the underlying infringement claims rested upon specific breaches of licensing agreements (specifically, the unauthorized use and copying in violation of those agreements), the policy exclusion for claims that “arise out of” a breach of contract precluded coverage. In support of this position, Illinois National pointed out that every challenge to the scope of use of the copyrighted material hinged upon language of the licensing agreements that were in place. As Illinois National argued, the licensor in the underlying action could not establish infringement without proving the breach of the licensing agreement. The First Department definitively held otherwise in a decision that is sure to have a reverberating effect on coverage in the infringement context, stating that while it was undeniable that the breach of the license agreements was at issue, because the licensors had a justiciable claim for infringement that could have been brought without the breach of contract claims, the exclusion would not apply, as the infringement claims did not arise “but for” the licensing agreement breaches. Illinois National also argued that a separate exclusion for claims arising out of the intentional violation of law should bar coverage. The Court again held otherwise, finding that a separate provision barring coverage for infringement where it was “judicially determined” that the violation was intentionally carried out by a senior executive level employee mooted the insurer’s reliance on the more general provision. “If there is an inconsistency between a general provision and a specific provision, the specific provision controls.” The McGraw Hill decision is brief and does not bely the Court’s reasoning on the “but for” nature of the infringement claims, but it puts insurers on notice that intellectual property infringement actions may not be considered breach of contracts by nature when assessing coverage in New York. Thanks to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions Previous Next Contact

News But Is It Covered By A Fine Arts All Risk Policy? March 23, 2010 < Back Share to: Shipping claims are the most common types of claims that arise under an all risks fine arts policy. Disputes over the applicability of the Carmack Amendment and diminution in market value inevitably ensue. With all this as background you would think packers would be ever more vigilant about the work they perform. And no doubt many are. But, fine art lifting Olympics certainly can't be a step in the right direction! Fine Art Lifting Olympics If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Plaintiff’s Negligence Can’t “Makeup” Defense Under NY Labor Law § 240 January 21, 2013 < Back Share to: Under New York Labor Law § 240(1), a worker must be provided with adequate protection while working at a "physically significant elevation." In Cuentas v. Sephora U.S.A., Inc., the plaintiff testified that the ladder he was using and eventually fell from was both unsteady and too short to enable him to reach the window he was cleaning. Plaintiff freely admitted that prior to his fall from the ladder, he was using the top step of the ladder, which the defendant argued was an inappropriate use of the ladder. Thus, the defendant contended that the plaintiff's own negligence was the cause of his fall. The trial court granted the plaintiff's motion for summary judgment, and the Appellate Division, First Department, affirmed. The court held that the plaintiff established he was not provided with an adequate safety device, and, therefore, his own negligence was of no consequence. The Court noted a different outcome could have come to pass if there was evidence in the record that an adequate ladder was provided to the plaintiff and his accident occurred solely because of his loss of balance while using a properly secured ladder. Thanks to Joseph P. Fusco for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Ice, Ice Baby (NJ) July 23, 2021 < Back Share to: In New Jersey, a plaintiff sought to recover after he slipped on ice, fell, and broke his hip. The night before the accident, it had been sleeting and raining, creating a hazardous condition. At the time of plaintiff’s fall, the conditions were still ongoing. Plaintiff’s expert stated that the defendant, a property manager, could have mitigated the dangerous and icy conditions had they pre-treated the sidewalk. In Pareja v. Princeton, the Court had to evaluate the ongoing storm rule, which states that a landowner does not have a duty to remove snow or ice from public walkways until a reasonable time after the conditions improve. From a policy perspective, the premise of the rule stems from the fact that it is inexpedient and impractical to remove or reduce hazards resulting from snow and ice while the conditions persist. Under the common law, case precedent specified that a commercial landowner in fact, did have an obligation to “maintain a reasonably good condition” concerning the sidewalks abutting their property and were “liable to pedestrians due to their (the landowner’s) negligence” Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 157 (1981). This was later extended to include the “removal or reduction of the hazard of snow and ice” Mirza v. Filmore Corp., 92 N.J. 390, 400 (1983). While there is a duty for commercial landowners to clear the hazardous conditions after they have been given “actual or constructive notice”, and subsequently fail to respond accordingly, the Court here declined to impose a duty that could not be reasonably carried out by all commercial landowners, due to the potential unfeasibility that clearing the conditions would introduce. After the New Jersey Supreme Court granted certification, they ruled that the Appellate Division erred in stating that defendant in this case had a duty of reasonable care to maintain the sidewalk upon which plaintiff fell while the conditions still existed. Furthermore, the two exceptions that exist under the ongoing storm rule which would impose a duty (if owner’s conduct increases the risk, or if the danger is pre-existing), do not apply here. They reversed the Appellate Court’s decision and stated the trial court was correct in granting summary judgment to defendant, citing that defendant only owed a duty of care to plaintiff under unusual circumstances, none of which existed here. Thanks to Haley Matthes for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Plaintiff's Summary Judgment Motion Gets Schooled by Department of Education (NY) January 24, 2020 < Back Share to: In E.W. v. City of New York, the plaintiff, a then-third grade student at P.S. 44, was injured while walking between classes when he stopped to converse with a friend. The plaintiff alleges that the door he was holding, while he was talking, automatically closed on its own. The door severed the tip of plaintiff's index finger, which had become caught between the door and the doorjamb near the hinges. As a result of the plaintiff's injuries, the plaintiff and his mother commenced a personal injury action against defendants, the City of New York and the New York City Department of Education (“DOE”). After discovery was complete, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion and in response, the plaintiffs appealed. The New York Appellate Division, Second Department found that the Supreme Court properly granted the branch of the defendants' motion for summary judgment dismissing the cause of action alleging negligent supervision. In reaching this decision, the Court recognized that although schools have a duty to provide supervision to ensure the safety of those in their charge, schools will be held liable only for foreseeable injuries proximately related to the absence of adequate supervision. The Court determined that when an accident occurs in so short a span of time that even the most intense supervision could not have prevented it, lack of supervision is not the proximate cause of the injury. Therefore, the Court found that the defendants established, prima facie, that any alleged inadequacy in the level of supervision was not a proximate cause of the accident. As for the City, the Court also found that the City established its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing the accident occurred on public school premises, which the City did not operate, maintain, or control. This decision serves as a reminder that while schools owe a duty to students to provide supervision, only those injuries that are both foreseeable and proximately related to the absence of adequate supervision will invoke liability. Thank you to Caitlin Larke for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News If You Don’t Ask For A Promotion, There Is No Discrimination October 26, 2009 < Back Share to: In Beebe v. New York Times, 09-cv-1090, New York Eastern District Judge Weinstein dismissed an age discrimination claim against the New York Times by two workers who were denied a promotion, allegedly bades upon their age. The main problem with their case, however, was that they never applied for the promotion. Judge Weinstein noted that required element of discrimination against an employer. One element is that the plaintiff applied for the job. In the case, neither employee applied for the promotion, even though each saw the job announcement. Therefore, the complaint for discrimination was dismissed. If you would like more information regarding this post, please email dtavella@wcmlaw.com . Previous Next Contact