News Call Your Next Witness - Winter Wheeler and Brian Gibbons discuss Mediation Strategy and Tactics July 1, 2021 < Back Share to: On the July 1, 2021 episode of Call Your Next Witness, Brian Gibbons interviews Atlanta-based mediator Winter Wheeler. In addition to being a mother of 4, Winter is a former litigator who started her own mediation practice just before the onset of COVID. Circumstances being what they were, Winter quickly realized that becoming "fluent" in remote mediation was a necessity, so she got to work and has been able to thrive. It is evident from speaking to Winter that she has some unique insights and ideas about how to bring parties together for an effective mediation. A lot of it comes down to preparing effectively, to establish trust with the parties. She isn't afraid to build that trust days or even weeks before the mediation, to help make the actual mediation hearing that much more effective. Her mediation practice has thrived, despite the pandemic, and she expects to be very busy going forward. And for good reason! If you’d like to discuss being a guest, or podcast content in general, please reach out to Brian Gibbons. Previous Next Contact

News No Notice of Defect in Escalator Defeats Plaintiff's Claim May 17, 2011 < Back Share to: Plaintiff alleged that she sustained personal injuries when the escalator she was riding suddenly began to shake, causing her to fall to the ground. Defendants, owners and lessees of the premises, argued that they had no actual or constructive notice that anything was wrong with the escalator, and were therefore entitled to summary judgment. The First Department agreed, noting that the plaintiff failed to raise a triable issue of fact as to defendants' notice of any defect. Further, plaintiff testified that she rode this particular escalator often, knew of no complaints regarding its operation, and saw no obvious and apparent problems with the escalator prior to her fall. The opinion was silent as to whether plaintiff had also brought suit against the manufacturer or installer of the allegedly defective escalator, but the Court granted the respective summary judgment motions of the lessees and owners of the premises. Thanks to Brian Gibbons for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htm Previous Next Contact

News UIM Coverage and Avoidance of Forum Selection Requirements? Court Holds That’s Too Much to Ask For Following an Invalid Waiver (PA) January 29, 2021 < Back Share to: In Matthews v. Erie Insurance Group, the plaintiff’s action arose following a motor vehicle accident. The plaintiff appealed from the trial court order sustaining Erie Insurance Group (“Erie”)’s preliminary objections to venue and transferring the case from Philadelphia County to Bucks County. The Superior Court affirmed the trial court’s decision. The Appellant, Matthews, was operating a motor vehicle insured by Erie, under a policy issued to Ion Construction. Appellant was a named insured under the policy. Appellant asserted Ion Construction never rejected underinsured motorist coverage (“UIM”) and therefore the policy should include such coverage. The court recognized the remedy would be reformation of the contract to provide UIM coverage. But, as Erie stated in preliminary objections, Erie’s standard UIM benefits contain a clause establishing venue in any legal action involving UIM coverage to be the county where the plaintiff is domiciled. Appellant argued the trial court was incorrect in enforcing a forum selection clause to transfer venue that was not contained in the original insurance contract. The Court balanced multiple factors in determining whether reformation of a contract to provide coverage must also include the forum selection provision which would have attached to such coverage in the absence of a waiver. The Court referenced 75 Pa.C.S. § 1731(c.1) which dictates reformation of a contract in the case of an invalid waiver, and also took into account a related declaratory action which is also being litigated in Bucks County. Lastly, the Appellant raised issues on appeal – including the prematurity of the court’s decision to transfer venue before it had been determined UIM coverage was appropriate – that were not argued before the trial court. Therefore, the Superior Court declined to hear such arguments. Yet, the Court noted that even if such arguments were not waived, transferring the matter is valid and in the interest of judicial economy. This case displays the Court’s concern about inconsistent ruling, given a declaratory action regarding the same legal issues are being litigated in Bucks County. Judicial economy was held the most weighted factor, and thus the Superior Court affirmed the trial court’s order of transferring Matthews v. Erie Insurance Group from Court of Common Pleas of Philadelphia to Court of Common Pleas of Bucks County. Thanks to Madeline Troutman for her contribution to this post. Please email Georgia Coats with any questions.     Previous Next Contact

News Second Department Reiterates Defendants' High Burden in Negligent Supervision Case (NY) December 13, 2017 < Back Share to: In K.J. v. NYC BOE., the Second Department recently discussed the high threshold required to prevail on a motion for summary judgment in a negligent supervision case. The case arose from an incident in December of 2014, when the 14 year old plaintiff was allegedly assaulted by four fellow students in a stairwell leading to the cafeteria of Lincoln High School in Brooklyn. The plaintiff sustained various injuries, including a fractured orbital bone. Plaintiff’s father, Lonnie Jefferson, brought suit on behalf of his son, and individually, against the City of New York, the Board of Education, and the New York City Department of Education (DOE), alleging negligent supervision. The defendants moved for summary judgment, basing their motion, in part, on the plaintiffs’ 50-H hearing testimony and the deposition testimony of a school safety officer. The infant plaintiff testified that while he was in the cafeteria, one of the assailants threw an object at him. When the plaintiff went over to the assailants’ lunch table, he was challenged to a fight. The plaintiff refused to fight and returned to his lunch table without reporting the incident to any teachers. At the end of lunch, the plaintiff left the cafeteria doors and walked into the stairwell to go to his next class. The four assailants cornered the plaintiff punched and kicked him for approximately 25 seconds. Afterwards, the plaintiff found a dean who took him to the nurse's office. There were no school safety officers, school personnel, or security cameras in the stairwell at the time of the incident. At his deposition, the school’s safety officer testified that his duties did not include supervising the cafeteria during lunch, which was done by the deans. As a general matter, during the break between class periods, teachers stood in the hallway while the school safety officers patrolled the hallways to make sure the students were headed to class. The officer did not witness the assault, but was radioed by the dean to help to the plaintiff. He also did not know the number or identities of the students who attacked the plaintiff, although he recalled seeing at least one of the assailants in the principal’s office on a prior occasion. The officer testified that he had a supervisor who was in charge of school safety personnel in the building, but the defendants provided no evidence from that supervisor or anyone familiar with the students involved in the assault. The Supreme Court granted defendants’ motion for summary judgment dismissing plaintiff’s complaint, and the plaintiffs appealed. On appeal, the Second Department recited the rule that “schools are under a duty to adequately supervise the students in their charge and they will be held liable for foreseeable injuries proximately related to the absence of adequate supervision.” To determine whether school officials breached their duty to supervise, the first question is whether they had “sufficiently specific knowledge or notice” of the dangerous conduct. Broadly, this requires that the school have actual or constructive notice of prior similar incidents, and injuries that result from the unanticipated or impulsive actions of a student will not result in a finding of negligence. The Second Department found that defendants failed to provide evidence showing that they lacked notice the assailant’s prior violent behavior. Further, the safety officer’s testimony regarding the disciplinary history of one of the assailants created triable issues of fact as to whether the defendants had specific knowledge of any dangerous propensities. Lastly, they failed demonstrate the general security measures at the school, including the number of school safety officers on duty, their assignments in the vicinity of the cafeteria and stairwell, or the frequency of violent incidents. Not only did defendants fail to demonstrate their lack of notice, they also failed to eliminate all triable issues to fact as to the second critical point: whether the alleged inadequate security proximately caused the incident. To determine causation, the court must determine whether “the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the school's negligence.” Here, the defendants failed to show that the incident occurred in such a short time span that even the most intense supervision could have prevented it. Accordingly, the Second Department held that defendants failed to establish their prima facie entitlement to summary judgment as a matter of law. Interestingly, the Court noted that the trial court should have been able to reach this conclusion regardless of plaintiff’s opposition papers. Likely, this is a result of defendants’ failure to offer testimony or a sworn affidavit from anyone with knowledge of the incident, the assailant’s past behaviors, or the school’s general security policies. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Missing Policies Haunt Dead Florists (NY) December 17, 2009 < Back Share to: In an odd case, a New York federal court recently dealt with the issue of potential insurance coverage when neither the policyholder nor the insurance carrier retained copies of the relevant insurance policies in Bianchi v. Florist Mutual. Plaintiff’s parents were shareholders in a flower growing business. Plaintiff was informed by the State that the location where his parents did business was an inactive hazardous waste site, and that plaintiff needed to pay for remediation. Plaintiff placed Florist Mutual on notice of a potential claim, and the insurer disclaimed coverage on the basis that the florist wasn’t insured during the potential loss period (which potentially spanned decades). Neither party could come forward with any insurance policies, although the defendant admitted it insured the florists at some point. The Court noted that a party could use secondary evidence to try to prove the existence of a lost insurance policy upon a showing that party made a “diligent but unsuccessful search.” The party is then required to establish the contents of the policy by at least a preponderance of the evidence. Here, plaintiff based his claim on various discussions he had with his parents regarding the fact that Florist Mutual was their insurance carrier for decades until they switched to a different carrier around 1986. Defendant’s computer search revealed a record of the plaintiff, but no specifics as to dates of coverage or policy content. The florist’s insurance broker also testified that he knew they switched from Flowers Mutual to a new insurer in 1986 when he met them because he reviewed policies issued by the Defendant for the period 1984 though 1986, but he could not state with any certainty how far back other Flowers Mutual coverage dated. The Court acknowledged the policy search had been diligent but unsuccessful, but that there was insufficient evidence to establish a policy written by the defendant existed to cover the claim for most years. But the Court did find an issue of fact existed for the years 1984 through 1986, and said a jury could consider potential coverage for the claims during that period. Previous Next Contact

News Insurers Overcome Potential Estoppel in DJ Action (NY) April 5, 2017 < Back Share to: In 77 Water St., Inc. v JTC Painting & Decorating Corp, the Second Department recently discussed the burden to succeed on a summary judgment motion seeking status as additional insured in a declaratory judgment action. In the underlying personal injury action, Muhaj v. 77 Water Street, an employee of JTC Painting & Decorating Corp. slipped and fell on debris on a construction site. The worker commenced an action against the property owner, 77 Water Street, and Structure Tone, the general contractor that contracted with JTC. As part of the underlying personal injury, 77 Water Street and Structure Tone commenced a third-party action for contractual defense and indemnification against JTC. JTC moved for summary judgment dismissing the third-party claims on the grounds that there was no written contract between JTC and either 77 Water Street or Structure Tone on the date of loss. The trial court granted JTC’s motion. 77 Water Street and Structure Tone (“Plaintiffs”) subsequently commenced a declaratory judgment action against JTC and JTC’s commercial general liability insurer, Allied World Assurance Company (“Defendants”). Plaintiffs contended that JTC and Structure Tone entered into two written contracts, a blanket insurance/indemnity agreement and an unsigned purchase order, in which JTC agreed to obtain general liability insurance and to name Plaintiffs as additional insureds on the policy. Plaintiffs argued that Defendants were obligated to defend and indemnify plaintiffs because an endorsement in the CGL policy amended the definition of "insured” to include entities “[a]s required by written contract.” Defendants cross-moved for summary judgment declaring, inter alia, that they were not obligated to defend or indemnify the Plaintiffs in the underlying action. In their cross-motion, they argued that the Plaintiffs were barred by the doctrine of collateral estoppel from asserting that JTC had agreed in a written contract to name them as additional insureds on its insurance policy. The trial court agreed, granting the Defendant’s cross-motion for summary judgment and denying the Plaintiff’s motion for summary judgment. On appeal, the Second Department reversed in part, since the Plaintiffs put forth prima facie evidence that the blanket insurance/indemnity agreement required JTC to obtain liability insurance for Structure Tone. Essentially, the blanket insurance/indemnity agreement was a written contract between Structure Tone and JTC. Accordingly, Structure Tone was an additional insured within the meaning of the CGL policy endorsement, and as such, Allied and JTC were obligated to defend and indemnify Structure Tone as an additional insured. (77 Water Street was not an additional insured, as 77 Water was not a "specific owner" as required by the agreement.) Counsel for Structure Tone were able to transfer their clients' risk, despite the uphill battle presented by estoppel in the underlying action. Thanks to Evan King for his contribution to this post. Please email Brian Gibbons with any questions.     Previous Next Contact

News Reminder from the Second Circuit—Be Specific with AI Endorsements September 9, 2016 < Back Share to: In First-mercurty-ins-co-v-shawmut-woodworking-supply-inc, the Second Circuit had the opportunity to analyze a common Additional Insured Endorsement, and the court issued two pertinent reminders relating to additional insured endorsements: (1) a “written contract or agreement” need not be a single document, and (2) vicarious liability limitations must be explicitly stated. The additional insured endorsement at the heart of this matter provided coverage to “any person or organization for whom you are performing operations when you and such person or organization have agreed in writing in a contract or agreement that such person or organization should be added as an additional insured on your policy.” Coverage was limited, “with respect to liability for ‘bodily injury’, ‘property damage’, or ‘personal and advertising injury’ caused, in whole or in part, by” the insured or someone acting on the insured’s behalf in the course of the insured’s “ongoing operations for the additional insured.” In its contract with Shamut (the construction manager), Shepard (the subcontractor) promised to name Shawmut as an additional insured and secure similar promises from any of its subcontractors. Fast Trek (the sub-subcontractor) never entered into an agreement with Shawmut, but did execute a subcontractor agreement with Shepard whereby Fast Trek agreed to name Shepard, and “the Project owner and construction manager” as additional insureds. The subcontractor agreement further incorporated by reference the contract between Shepard and Shawmut. First Mercury, the carrier for Fast Trek argued that Shamut was not entitled to coverage because the additional insured endorsement required a single agreement between parties in direct privity. The Second Circuit rejected First Mercruy’s argument, holding that the policy did not require a single agreement and, further, that Shepard was in direct privity with Shamut, the construction manager. In addition, the Court reasoned that there was a single document as a result of the incorporation by reference language in the subcontractor agreement. The Second Circuit also held that the additional insured endorsement did not limit coverage on a vicarious liability basis. According to the Court, the “in whole or in part” language “clearly contemplates that additional insureds might also be tortfeasors.” To limit coverage to claims of vicarious liability, the insurer would have to be more explicit. The factual and contractual circumstances of this matter are often seen in cases arising out of construction projects, and similarly worded additional insured endorsements remain common. This case serves as a crucial reminder to insurers to be specific in drafting endorsements if the intention is to limit coverage. Thanks to Chris Soverow for his contribution to this post. Previous Next Contact

News Lack of Objective Evidence of Serious Injury Is Key to Dismissal (NY) February 12, 2020 < Back Share to: In the case of Nicholson v. Kwarteng, the Plaintiff was involved in a motor vehicle accident in August of 2015. According to the Plaintiff, she sustained serious injuries to her cervical spine and left shoulder as a result of the accident. After discovery was complete, the Defendant moved for Summary Judgment, asserting that the Plaintiff did not sustain a serious injury within the meaning of Insurance Law 5102(d). It was determined that the Plaintiff did not create an issue of fact as to her injuries. The court ruled that the orthopedic doctor that Plaintiff presented to support her claims failed to identify the objective tests utilized to reach his conclusions. Plaintiff's doctor did not measure Plaintiff’s range of motion or provide evidence that other objective tests were performed. Therefore, Defendant’s motion was granted, and the case was dismissed. Seasoned litigators never overlook the finer details. Defending MVA cases requires a dissection of of medical reports and narratives to support the defense of lack of serious injury. Without a delineation of the objective tests administered the plaintiff's claims can be defeated. Thanks to Marc Schauer for his contribution to this post. For any questions or comments please contact Vincent Terrasi. Previous Next Contact

News Facebook Status = Spoliation for Deleted Account (NJ) April 4, 2013 < Back Share to: In a recent decision in New Jersey federal court, Gatto v. United Airlines, the Court ruled that the plaintiff's deletion of his Facebook account during the course of the lawsuit constituted spoliation of evidence. Plaintiff, a baggage handler for JFK Airport, was injured when a set of airplane stairs crashed into him. During the course of discovery the defendants sought social media information, asking specifically for records of plaintiff's Facebook activity. Defendants requested that plaintiff sign authorizations allowing Facebook to release records of his personal activity but plaintiff refused. Plaintiff was subsequently ordered by the Court to change his password to allow Facebook access to counsel. Plaintiff deactivated and deleted his account before defense counsel was allowed access, claiming that he thought his account was being hacked, despite being aware that the defense was grated access. Defendants moved for sanctions on the basis that the deletion was intentional and that the information contained in the account would have helped debunk plaintiff's claim. Judge Mannion rejected plaintiff's argument that the deletion was accidental; reasoning that even if he did not intend to to deprive defendants of the Facebook data, he intentionally deactivated and deleted the account. Judge Mannion sanctioned plaintiff for spoliation but did not grant defense attorney fees. Prior cases have held that defendants may be entitled to social media access, and this case is notable because it takes things a step further by punishing a plaintiff for deleting such information. Thanks to Remy Cahn for her contribution to this post. If you would like further information, please write to Mike Bono. Previous Next Contact

News Common Law Indemnification Is Not For Everyone (PA) August 25, 2023 < Back Share to: In Roamingwood Sewer And Water Association v. National Diversified Sales Inc., the Third-Party Defendant O’Hara” filed a motion to dismiss the second amended joinder complaint filed by the Third-Party Plaintiff National Diversified Sales, Inc. See No. 1:20-CV-00640, 2023 WL 5017973, at *1 (M.D. Pa. Aug. 7, 2023). The underlying action was filed by plaintiff to recover for defective valves. National was the manufacturer of the valves, and O’Harra had been hired to install the vales in a sewer renovation in a residential community in the Poconos. After plaintiff had filed suit, National joined O’Harra as a Third-Party defendant. Id. Thereafter, National and O’Harra agreed to a stipulation for National to file a second amended complaint as a Third-Party plaintiff. National’s second amended complaint “acknowledges Roamingwood’s allegations” that National’s valves failed when they were installed. Id. Further National alleged that O’Harra was responsible for “hydrostatically testing the sewer system in which” Nationals valves were used but failed to do so. Id. National therefore alleged that O’Harra was jointly and severally liable for any damages that National would have been found to be liable to Roamingwood. Id. The court granted partial motions of Roamingwood and National for summary judgment. Id. at *2. Specifically, Roamingwood was granted judgment on claims against National for strict liability and breach of implied warranty of merchantability. Id. National was granted summary judgment on the issue of Roamingwood’s claim under the consumer protection statute of Pennsylvania. Id. O’Harra however, had filed a motion to dismiss the second amended complaint of National. Id. The basis of O’Hara’s motion to dismiss, or alternatively summary judgment, was that indemnification was unavailable to National, because “under Pennsylvania law, common law indemnification is ‘only available to a party that is without fault.’” Id. As the court stated, “[i]t is an ‘equitable remedy that shifts the entire responsibility for damages from a party who, without any fault, has been required to pay because of a legal relationship to the party at fault.’” Id. (quoting EQT Prod. Co. v. Terra Servs., 179 F. Supp. 3d 486, 493 (W.D. Pa. 2016)). In other words, indemnification applies when “a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.” Id. Further, the court emphasized the words of the Pennsylvania Supreme Court that “secondary, as opposed to primary liability, ‘rests upon a fault that is imputed or constructive only.’” O’Hara argued that for National to succeed in its claim for indemnification, National would need to show that O’Harra was at fault and that National was without fault. National, however, asserted that the court had only recognized that National “was liable because the valves malfunctioned and did not pass the consumer expectation test.” Ultimately, the court decided that National’s claims in its second amended complaint were “insufficient to state a claim for common law indemnification.” The court based its decision by reasoning that National had alleged no facts from which the court could reasonably infer that National was without fault. “For example, the second amended third-party complaint provides no factual allegations from which the court could reasonably infer that anything other than [National’s] own conduct caused the failure of its valves.” Id. The court also made its decision in favor of O’Harra because National’s second amended third-party complaint did not provide any allegations in support of the argument that National’s only source of liability was from “some legal obligation to pay damages occasioned by the initial negligence of another, and for which [National] is only secondarily liable.” Id. (internal quotation marks omitted). The court noted that “[a]t best, [National’s] allegations are that O’Harra was negligent by failing to hydrostatically test [National’s] valves.” Id. Thus, because National was not without fault, it was denied common law indemnification from O’Harra. Defendants/third party plaintiffs seeking to impose common law indemnification on a third-party defendant, must not only show that the third-party defendant was liable, but must also show that the defendant/third-party plaintiff was not primarily liable; in other words, any liability on their part must only be based on the legal relationship between the defendant/third-party plaintiff and the third-party defendant. Thanks to Ryan Hunsicker for his assistance with this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News New Jersey Homeowners May be Liable to Injured Contractors (NJ) October 5, 2018 < Back Share to: It is well settled law in New Jersey that a landowner has a duty to use reasonable care to protect an invitee on their property against known or discoverable dangers. However, a recent New Jersey court decision examined the duty owed when that invitee is an independent contractor performing work on the premises. In the recent case of Gilvary v. Cerza, the plaintiff filed suit against the defendant homeowners when she was injured while working as a home health nurse on the defendants’ property. Specifically, the plaintiff allegedly injured her back while lifting a patient, and claimed that the defendants were responsible for failing to obtain the proper equipment necessary to lift the patient. The Appellate Court noted that the duty to provide a reasonably safe working place for independent contractors does not relate to known hazards which are part of or incidental to the very work the contractor was hired to perform. However, that exception only applies when the landowner does not retain control over the means and methods of the work. In this case, the record revealed that the defendants retained a sufficient level of control and instruction over the nurse’s work, therefore precluding a dismissal of the plaintiff’s claim. This case is important because it reveals that a homeowner may be responsible for injuries sustained to a contractor working on their premises if the homeowner is directing the work performed. Thanks to Heather L. Aquino for her contribution to this post. Previous Next Contact

News Insurance Coverage Haiku 2.0 January 24, 2020 < Back Share to: Last week's post relaying some coverage Haiku, courtesy of WCM associate Lauren Berenbaum, may have started a trend. The following Haiku are the work of Robert Kohn of Preferred Concepts, LLC. Thanks Robert, for the readership and for the content -- great stuff! We got you covered Uh, Oh, that is excluded Sorry, not covered Paid your premiumSeems your claim is excludedThanks for your payment If claim not coveredReserve Rights to pay my billWhy should I pay you? What, a non-waiver?That seems very rude to meI will waive good-bye Policy trickyDouble negatives and suchPlease send me Cliff Notes ISO policyISO changes, loss disclaimedI so frustrated A lawsuit arrivedDisclaimer was the retortDue to late report What, no coverage?Seeing your supports toppleI claim Estoppel And last but not least... Really awesome firmIt’s W C M LawNot Haiku’d in jest Again, thanks to Robert Kohn for the kind words, and for churning out great content faster than Stephen King! Previous Next Contact