News Fewer LSAT Takers . . . Fewer Lawyers March 23, 2012 < Back Share to: For the first time in a long time, LSATs and law school applications seem to be down. A NY times article noted on March 20, 2012 that the number of LSAT takers has dropped from over 170,000 two years ago to less than 130,000 during the most recent test. This trend seems to be a function of both the recession and, more importantly, the immense debt carried by young lawyers upon graduation from law school. Recent college grads, upon hearing tales of $200,000 debt from friends and relatives, are beginning to look elsewhere for financial security. A slowly improving economy may diminish this trend in coming years, but lower tuition (and lower educational debt) will likely continue to be an issue. http://www.nytimes.com/2012/03/20/business/for-lsat-sharp-drop-in-popularity-for-second-year.html Thanks to Brian Gibbons for his contribution to this post.   　 Previous Next Contact

News UN Report on Climate Change = Bad News for Property Insurers? November 18, 2011 < Back Share to: This will come as no surprise to those of us in the Northeast for whom Halloween was cancelled because of snow -- http://www.nytimes.com/2011/10/30/us/northeast-snow-storm.html?pagewanted=all -- but extreme weather is on the rise -- http://www.washingtonpost.com/national/health-science/report-climate-change-means-more-frequent-droughts-floods-to-come/2011/11/15/gIQAfwqHXN_story.html?hpid=z1. According to the United Nations Intergovernmental Panel on Climate Change -- http://ipcc-wg2.gov/SREX/ -- in a report that was just issued today, climate change will make drought, flooding and other extreme weather conditions more common in the years to come. It is obviously a development that needs to be closely monitored by property insurers as current beachfront property may become the equivalent of Atlantis and inland property may become the next French Riviera! For more information about this post or WCM’s property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Bowling Alley Strikes Out In Its Attempt To Be Spared Liability (NY) March 11, 2022 < Back Share to: Plaintiff's emanated from a slip and fall at the defendant's bowling alley in Clifton Park New York. Ms. Muscato alleges she slipped and fell causing her injuries because the floor near the ball return was excessively slippery. In defending the action and moving for summary judgment, the bowling alley offered the testimony of its manager who stated they neither created the slippery condition nor had notice of it. The manager offered testimony concerning general cleaning and inspection, however, the bowling alley did not answer what was specifically done on the date in question. The court reiterated precedent which states the testimony as to general cleaning and inspection practices are not sufficient to show lack of constructive notice of that dangerous condition. The alley also argued that plaintiff was unable to identify the cause of her fall, however witnesses testified that the floor in that ball return area was unusually or excessively slippery and that despite not knowing exactly what caused the plaintiff to fall, she offered enough circumstantial evidence from which negligence can reasonably be inferred. The court noted that plaintiffs claim can be deduced from defendants' practice of moving its oiling machine from lane to lane near the ball return area. As such, the bowling alley was not spared liability. Please contact Tom Bracken to discuss. Previous Next Contact

News If You Win the Lotto in NJ, Don’t Quit Your Job and Hide the Money from Your Poolmates. March 16, 2012 < Back Share to: Office lotto pools are probably only second in US popularity to the NCAA basketball bracket pools. The case of Silva v. Lopes arises out of just such an office pool. Basically what happened is that 6 construction workers would pool their money to buy Mega Millions tickets when the jackpot exceeded $50,000,000; Lopes would then buy the tickets. So it was in November of 2009 –except this time one of the tickets Lopes bought was the winning $77,000,000 ticket. Lopes returned to work the day after winning the lotto. The next day he quit his job and claimed a foot injury. He then claimed the jackpot which his co-workers found out about through the grapevine. The instant lawsuit was commenced. After an 8 day trial in Union County, the jury found for the defendants and awarded them their share of the lotto winnings. What makes the award somewhat unusual is that there were no written documents that confirmed the arrangement between the plaintiffs and Lopes. But it seems clear that the jurors smelled a rat when they heard all the evidence. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News New York High Court Settles “Issued or Delivered” Debate December 1, 2017 < Back Share to: The New York Court of Appeals settled a longstanding debate over the scope of Insurance Law section 3420 by ruling it “encompasses situations where both insureds and risks are located in this state.” The debate raged under the old 3420, which applied to policies “issued for delivery” in New York, and was reinvigorated following the revision of 3420 as applicable to policies “issued or delivered” in New York. In the action underlying the coverage dispute of Carlson v. Amer. Int’l Group, Inc., Claudia Carlson was killed in a car accident by a truck with a DHL Worldwide Express, Inc. logo. DHL hired MVP Delivery and Logistics, Inc. to supply delivery services in Western New York, where the accident occurred. The Estate obtained a $7.3 million verdict in their wrongful death suit. MVP’s insurer contributed $1.1 million toward the verdict, and the Carlson Estate obtained the right to pursue further amounts from DHL’s insurer, in this case National Union Fire Insurance Co. (“National Union”) and American Alternative Insurance Co. (“AAIC”). Although American International Group, Inc., and AIG Domestic Claims, Inc. (collectively “AIG”), did not issue any pertinent policy to DHL, both were named as defendants. AAIC issued a policy providing “hired auto” coverage to Airborne Inc. (headquartered in Washington State), DHL’s predecessor. DHL issued a similar policy providing “hired auto” coverage to DHL (headquartered in Florida), and a second policy providing umbrella coverage. The Carlson Estate sued AIG and DHL seeking satisfaction of the outstanding judgment pursuant to Section 3420, and alleging a host of causes of actions alleging unfair business practices, including bad faith. National Union and AAIC argued the first cause of action, seeking contribution to settlement, should be dismissed in part because the pertinent policies were not “issued or delivered” in New York as required Section 3420. Reversing the trial court, the Fourth Department held the policies were not issued or delivered in New York, holding instead they were issued in New Jersey (from AAIC’s offices), and delivered in Washington and then Florida. On appeal, the Court of Appeals reversed the Fourth Department on this issue, and held the policies were “issued or delivered” in New York. Based on a previously issued General Counsel Opinion underlying Section 3420, the Court noted, “[T]he proper interpretation of the term ‘issued or delivered in this state’ refers both to a policy issued for delivery in New York, and a policy issued for delivery outside of New York.” The Court recognized that the location of the risk and the location of the insured, rather than the location of the physical insurance policy, controlled. As a matter of public policy, the Court reasoned the outcome was consistent with the legislative intent behind Section 3420, which “created this statutory cause of action to remedy the inequity of the common law rule that an injured person had no cause of action against the insurer of a tortfeasor and to protect the tort victims of New York.” The Court further recognized DHL purchased insurance coverage for its package delivery services, a substantial portion of which occurred within New York State. The Court of Appeals’ decision amounts to a common sense recognition of business reality: not all businesses regularly operating within New York are domiciled or headquartered there. It would be presumptively unfair to afford the business the economic benefits of providing services within the state, while not holding the same business accountable under New York law. That said, the decision was decided on a 4-3 split, and featured a strongly worded dissent that perceived the majority ruling as unduly expansive. The dissent predicts this decision will open the proverbial can of worms. Ultimately, if an insurer seeks to limit risk to geographic locations, care should be taken in the underwriting process, and the policy should be issued with specific endorsements to that effect. Thanks to Chris Soverow for his contribution to this post.   http://www.nycourts.gov/reporter/3dseries/2017/2017_08163.htm Previous Next Contact

News Representations from Probate Proceedings Doom Monroe Estate’s Efforts to Block Photo Sales September 20, 2012 < Back Share to: Milton Greene was a renowned photographed in the 1950 and 60’s that was particularly well known for his work with celebrities, especially Marilyn Monroe. After Monroe’s death, Greene’s company continued to sell photographs of Monroe. In March, 2005, Monroe’s estate filed suit, claiming that the sale of those photographs violated Monroe’s “publicity rights.” Generally, publicity rights are the rights of an individual to control the commercial use of his or her name, image, or likeness. In some states, like California, such rights exist beyond the person’s death and violations can be prosecuted by their estate. In other states, like New York, publicity rights are extinguished upon death. The defendants moved for summary judgment, alleging that New York does not recognize a posthumous, descendable right of publicity, and because Monroe was a resident of New York upon her death, her estate’s claims are now barred; the estate argued instead that she was a resident of California. The Court looked to numerous filings that were made in connection with Monroe’s probate proceedings that established that she was a New York resident, and thus permitted her to avoid paying California inherited tax. The Court then applied “judicial estoppel,” which is an equitable doctrine designed to prevent a party from gaining an advantage by taking inconsistent position with the court – or in other words, to prevent a litigation from “playing fast and loose” with the court. Thus, the Court held that Monroe could not claim she was a New York resident on the one hand to avoid paying taxes, and now on the other hand claim she was a California resident to prevail in this matter. As such, it ruled in favor of the defendants and dismissed the case. If you would like more information, please write to mbono@wcmlaw.com       Previous Next Contact

News In New York, Timely Disclaimer Required When “Ample Grounds to Conclude that Excess Coverage Might Be Triggered” May 10, 2024 < Back Share to: In New York City Hous. Auth. v. Admiral Ins. Co. , No. 2023-00733, 2024 WL 2001429 (N.Y. App. Div. May 7, 2024), the Appellate Division, First Department resolved a dispute between the New York City Housing Authority and Admiral Insurance company, which issued primary and excess insurance policies to the NYCHA. The factual timeline of the underlying claim is straightforward: the Labor Law personal injury lawsuit was filed against the NYCHA in 2016, at which time Admiral disclaimed coverage under an exclusion in its primary policy. In 2017, NYCHA’s defense attorney provided Admiral with a litigation plan for the NYCHA’s defense; Admiral waited to disclaim coverage under its excess policy until 2018. The NYCHA thereafter sought a determination that Admiral’s excess disclaimer was untimely and, therefore, Admiral should be prohibited from disclaiming coverage under that exclusion. The insurer claimed that its disclaimer was timely because, as an excess insurer, its duty to disclaim was not triggered until there was a “reasonable possibility” that the primary insurance might be exhausted and the claim would reach the excess layer. The court disagreed. The First Department held that the excess insurer’s duty to disclaim in a timely manner was triggered by the underlying defense counsel’s litigation plan, in which defense counsel provided “ample grounds to conclude that excess coverage might be triggered.” This difference between “reasonable possibility” and “ample grounds to conclude” is small, but the distinction contains considerable legal significance for an excess insurer. New York City Housing Authority v. Admiral Insurance Company .pdf Download PDF • 134KB Previous Next Jason Laicha Jason Laicha Counsel +1 267 239 5526 jlaicha@wcmlaw.com Contact

News Proceed with Caution when using Facebook as a Discovery Tool (NJ) November 5, 2009 < Back Share to: The New Jersey Office of Attorney Ethics is currently investigating a firm for ethics grievances for allegedly having a paralegal “friend” a plaintiff on Facebook in a personal injury case in order to gather more information about his purported injuries. The underlying personal injury action arose from a motor vehicle accident wherein plaintiff alleged he suffered a fractured femur when he was struck by a police car. According to the ethics complaint, defense counsel’s paralegal was instructed to scour the internet for information about plaintiff. The paralegal accessed plaintiff’s Facebook page at the direction of defense counsel. When plaintiff increased his privacy settings, the paralegal sent plaintiff a friend request to maintain access to his page. Plaintiff indicated that defense counsel asked very specific questions during his deposition, including whether he had traveled, gone dancing, wrestled and engaged in other activities that would tend to refute his claims about the seriousness of his injuries. Defendants then sought to enter video and other materials obtained through social media into evidence and accused plaintiff of perjury. The personal injury action ultimately settled after the trial judge barred the evidence because it was produced after the discovery deadline. Plaintiff in the personal injury case filed a grievance with the District 11-B Ethics Committee. The ethics committee secretary determined there was no unethical conduct and dismissed the complaint. Plaintiff then went to the New Jersey Office of Attorney Ethics, which sought ethics charges against defendant’s attorney. In September 2012, defendants filed a complaint against the Office of Attorney Ethics seeking a declaration that the OAE lacked authority to investigate and prosecute the case. The trial court dismissed the complaint and the appellate course affirmed the decision. The case is currently pending in the New Jersey Supreme Court. We will be keeping an eye as the case continues to develop. The message is that, while social media searches are certainly useful discovery devices, communication with a represented party, either directly or through a paralegal or investigator, crosses the line. Thanks to Steve Kim for his contribution. Please email Brian Gibbons with any questions. Previous Next Contact

News Call Your Next Witness - Part 2 of Dennis Wade Interview May 13, 2021 < Back Share to: We launched the Call Your Next Witness podcast last week, with Part I of our Dennis Wade interview. Anyone who knows Dennis is well aware that he has too many stories for one interview. You can listen to Part 2 of our interview with Dennis on Spotify, Apple, or wherever you download podcasts. Here, we get into some trial tactics, how Dennis began his career in the world of insurance coverage, and also discuss Dennis's "Paul Newman moment" at trial. We will try to post a new interview every week (unless actual practice of law gets in the way!) with different risk managers, claim representatives, plaintiff's and defense attorneys and experts. If you have questions about content, or about would like to discuss being a guest, email Brian Gibbons or Georgia Coats. Previous Next Contact

News "Prior Knowledge" Exclusion Bars Coverage For Law Firm In NY Claims-Made Policy October 21, 2009 < Back Share to: Claims-made policies are the most common form of coverage available for professional liability. These policies provide coverage to professionals for claims made during the life of the policy irrespective of the date of the acts or omissions giving rise to the claim. Given the focus on when a claim is actually made, insurers seek to avoid the moral hazard of an uninsured professional running out to buy claims-made coverage once it becomes aware of an act or omission that may give rise to a claim in the future. Insurers seek to avoid this problem by requiring specific representations in the application for insurance about the insured's knowledge of any potential claims or through an exclusion barring coverage for claims based on any prior acts known by an insured that could give rise to a claim. Although there are several ways for professionals to preserve coverage when it obtains such information, this post will focus on the "prior knowledge" exclusion contained in the policy in question. In Executive Risk v. Pepper Hamilton LLP, a law firm represented a student loan servicer that allegedly misrepresented information that made certificates backed by the underlying loans more attractive to potential investors. The law firm became aware of this fraud as well as two lawsuits filed against its client, the loan servicer, several months before it applied for the policy in question. The law firm did not disclose this information to any of its professional liability insurers. The primary claims-made policy contained a "prior knowledge" exclusion "for any act, error, omission, circumstance....occurring prior to the effective date of the policy if any insured at the effective date knew or could have reasonably forseen that [it] might be the basis of a claim." The lower court held that the insured's subjective belief that it might be sued was not sufficient to trigger the exclusion in the absence of some actual wrongdoing by the firm. In an interesting procedural twist, the New York Court of Appeals, the state's highest court, interpreted the policy according to Pennsylvania law. It rejected the "subjective" analysis made by the lower court and held as a matter of law that the law firm knew of acts that occurred before the policy's effective date "which they could have forseen to be the basis of a claim." In addition, the court rejected the suggestion that this "prior knowledge" exclusion required that the known act involve actual wrongful conduct on the part of the insured. Instead, the key inquiry is whether that insured knew of acts that could form the basis of a claim. The bottom line is that the excess carrier successfully argued that the "prior knowledge"exclusion contained in the primary policy barred coverage, a point seemingly never pressed by the primary insurer in the first instance! If you would like further information regarding this post, please contact Paul at pclark@wcmlaw.com . http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07453.htm Previous Next Contact

News New Jersey’s Product Liability Act – Not Always an Esacpe Hatch for a Product Lessor. August 19, 2011 < Back Share to: In the case of Bashir, et al. v. Home Depot, et al., the federal trial court in New Jersey was faced with the question of whether the New Jersey Product Liability Act protected Home Depot from a lawsuit arising out of its rental of a Husqvarna stump grinder. Under the statute, a product lessor is “relieved from liability for injuries caused by a defective product it leases to the public, provided that it files an affidavit certifying the correct identity of the manufacturer of the product which allegedly caused the injury.” Based upon the statute, Home Depot moved for summary judgment. The trial court denied the motion. It held that under the facts presented, Home Depot had not proven that the exceptions to the statute, i.e. (1) the product seller has exercised some significant control over the design, manufacture, packaging or labeling of the product relative to the alleged defect in the product which caused the injury, death or damage; or (2) the product seller knew or should have known of the defect in the product which caused the injury, death or damage; or the plaintiff can affirmatively demonstrate that the product seller was in possession of facts from which a reasonable person would conclude that the product seller had or should have had knowledge of the alleged defect in the product which caused the injury, death or damage; or (3) the product seller created the defect in the product which caused the injury, death or damage, did not apply. The fight against Home Depot will continue. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News College Security Program Creates Duty To Implement That Program Properly (PA) February 9, 2023 < Back Share to: In Doe v. Moravian College, 2023 U.S. Dist. Lexis 4027, 2023 WL 144436 (E.D. Pa. Jan. 10, 2023), the Court acknowledged that landlords can be found liable for the criminal conduct of other parties when the landlord establishes a program of security. In Doe, Plaintiff asserted a claim of negligence against her college alleging that the school failed to provide adequate security after she was allegedly sexually assaulted in a dorm. Generally, a landlord owes no duty to protect its tenants from the criminal conduct of other parties. However, the Court found that an exception to Pennsylvania’s standard negligence law applied when a landlord establishes a program of security, the tenants reasonably rely upon it, and the landlord negligent carries out the program. In Doe v. Moravian College, the court found that there is evidence that the college had implemented a security program in the dormitories by requiring school identification cards to enter the dormitories, they used residential advisors in their dormitories, and that security workers were employed by the school. The school, therefore, owed a duty to the Plaintiff as a landlord. The College argued that no duty was owed because courts have stopped imposing a duty of loco parentis upon colleges and universities. However, the Court differentiated the case because the tortious act took place in a campus dormitory. Ultimately, the Plaintiff's case failed when she had to show that the College breached a duty to the Plaintiff by showing that the operation of the security program was negligent. Here, the Court found that the Plaintiff failed to provide evidence of the breach through a negligent security program. Thanks to Jean Scanlan for her contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact