News WCM Obtains Directed Verdict in NY Civil Court Jury Trial July 19, 2012 < Back Share to: New York, NY Associate Lora H. Gleicher obtained a directed verdict in a jury trial in a New York County Civil Court matter. In Newmark v. New York Urban Athletic League, plaintiff, an experienced volleyball player, was participating in a volleyball scrimmage on an allegedly sub-par volleyball court. Prior to his participation, plaintiff did not execute a waiver or release because the scrimmage was conducted pre-season. During the game, plaintiff was injured and he commenced suit as a result. At trial, plaintiff testified that his injury occurred because the court was not regulation size and had poor lighting. He also claimed that the use of stanchions to secure the volleyball net was improper and caused the net to sag. During an aggressive volleyball scrimmage, plaintiff jumped up to block the ball. When he did so, the opposing front-center player jumped as well, got caught in the net, and fell forward onto the plaintiff, causing the plaintiff to injure his left ankle/foot on the metal stanchion. At trial, through our cross-examination, we were able to attack the plaintiff’s credibility and prove that, contrary to his representations, he was aware of the dangers in playing volleyball and yet decided to play all the same. The trial court agreed and, before the jury got the case, granted a directed verdict in favor of our client, the New York Urban Professional Athletic League. Previous Next Contact

News Mystery eye poker … pencil toting toddler? (NY) September 7, 2012 < Back Share to: How much evidence is enough to prove that a day care center was negligent when there is an allegation that one toddler injured another? The Second Department addressed this recently in a case of a mystery injury. In Ivan v. Lolita Child Day Care, the day care provider admitted that a fellow toddler poked the infant-plaintiff in the eye while at day care. However, doctors found that the infant-plaintiff's cornea had actually been scratched by a pencil. The lower court granted the day care's summary judgment motion, finding that there was no proof that the infant was poked in the eye by a pencil while at day care. The Second Department reversed the lower court's decision, finding that a plaintiff is not required to exclude possible cause. A plaintiff need only offer evidence from which proximate cause may be inferred. In the instant matter, the day care admitted that the plaintiff sustained an eye injury while in its care and further admitted that no one at the day care witnessed the eye-poking incident. Accordingly, the Appellate Division found issues of fact as to whether the infant-plaintiff's injury was proximately caused by the day care's inadequate supervision. Thanks to Georgia Stagias for this contribution. For more information, please contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Failure to Memorialize Mediated Settlement in Writing Fatal to Motion to Enforce Settlement May 17, 2024 < Back Share to: In Napolitano v. European Construction Professionals LLC, et al., the Appellate Court granted two Plaintiffs’ appeals: one from a motion to enforce a settlement filed on behalf of Defendants, and one denying Plaintiffs’ motion for reconsideration. Plaintiffs hired Defendant European Construction Professionals to build a home on their vacant lot in Bayonne, New Jersey. The parties signed a construction contract, and European began work on the new construction in June 2014. By the fall of 2014, Plaintiffs noticed a significant delay in the progress the parties had agreed upon in their contract. In 2015, the City of Bayonne took notice that the house had failed multiple inspections and ordered Defendants to cease all work on the home. European was given a deadline of May 1, 2015 to remedy all deficiencies in the house, which they were unable to do. Plaintiffs filed suit, alleging breach of contract, breach of warranty, fraudulent misrepresentation, unjust enrichment, negligence, and multiple statutory violations. The parties attended a mediation in November 2022, which resulted in the mediator providing both parties a letter suggesting a settlement amount of $840,000. Plaintiffs’ and Defendants’ counsel initially expressed a willingness to discuss with their clients, but conversations tapered off when Defendants’ counsel had surgery. The parties never executed a formal settlement agreement and no release was circulated. Nonetheless, Defendants filed a motion to enforce the settlement, which Plaintiffs opposed. The trial judge found that the mediator’s 2022 letter constituted a “meeting of the minds” to which Plaintiffs were bound. On appeal, the Appellate Court found that the trial judge was mistaken in her conclusion. New Jersey’s prior case law holds that a settlement reached at mediation is not enforceable without a written agreement signed by each party. This case law applies regardless of whether the mediation was voluntary or court-ordered. While mediation can lead to early settlements prior to trial, it is imperative that lawyers follow the court rules properly and stay diligent with their deadlines regardless of any personal problems or difficulties. Napolitano v. European Construction Professionals LLC .pdf Download PDF • 130KB Previous Next Contact

News Dismissal Of Complaint Filed One Day Late Affirmed By NJ Appellate Division July 9, 2009 < Back Share to: In McMillan v. Wal-Mart Stores, Inc. , the appellate division affirmed the dismissal with prejudice of a complaint filed one day after the two year statute of limitations had expired. Plaintiff had claimed the statute was equitably tolled due to ongoing settlement negotiations, however, the court noted that there was never any discussion about the statute of limitations, nor any communication stating any understanding that plaintiff would not be filing a complaint while the parties continued to negotiate. The Court held that an exchange of communications shortly before the statute of limitations runs cannot, without more, be converted into tolling or we would either abolish the statute of limitations or deter carriers from communicating about settlement before the statute runs. http://www.judiciary.state.nj.us/opinions/a1043-08.pdf Previous Next Contact

News Non-Parties Cannot Intervene In Insurance Company’s Declaratory Judgment Action August 19, 2022 < Back Share to: In County Hall Insurance Company, Inc. v. Mountain View Transportation, LLC, the M.D.P.A ruled that non-parties who had a personal injury claim against an insured individual cannot intervene in the insurance’s company’s declaratory judgment action that it filed against the same insured. The underlying state court suit stemmed from a motor vehicle accident in which a number of occupants were seriously injured. Following this accident, County Hall, Mountain View’s Insurance provider, filed a declaratory judgment action against Mountain View and John Humes, arguing it was not obligated to provide coverage under the policy because John Humes was not a scheduled driver of Mountain View and any punitive damages awarded are not recoverable under the policy. When Mountain View and Humes failed to file an answer, County Hall requested default judgment be entered against them. Around the same time, individuals who were allegedly involved in the underlying motor vehicle accident filed a motion to intervene, arguing that they had a claim to the property at the center of insurance company’s declaratory judgment, and thus they should have the ability to protect their interests. The Court denied the non-parties attempt to get involved in County Hall’s declaratory judgment against Mountain View. The Court ruled that under federal law, “strangers to an insurance contract cannot intervene as of right in a declaratory judgment action…to establish scope of coverage.” Although the non-parties claimed their economic interest in the applicability of the policy was sufficient to support their motion, the Court disagreed, stating the “mere economic interest in the outcome of litigation” is insufficient to the support the motion. In short, despite the outcome of County Hall’s declaratory judgment having a practical effect on the non-parties ability to recover in their personal injury suit, they have no right to participate in the action. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Who’s Behind the Wheel? Unlisted Resident Driver Exclusion Applies (PA) September 19, 2017 < Back Share to: On September 18, 2017, the Superior Court of Pennsylvania affirmed summary judgement in favor of Safe Auto Insurance Company (“Safe Auto”) in Safe Auto v Oriental Guillermo. The case stems from a two-car motor vehicle accident in Allentown, Pennsylvania on April 29, 2013. Rachel Dixon was driving a car that her boyfriend, Rene Oriental-Guillermo (“Oriental-Guillermo”) owned, and Priscila Jimenez was a passenger in the other vehicle. Guillermo insured his car through Safe Auto, which had an Unlisted Resident Driver Exclusion, which excluded from coverage those individuals who lived with Oriental-Guillermo, but were not related to him and whom he did not specifically list on the policy. Here, Dixon lived with Oriental-Guillermo, but was not related to him and was not listed as a driver on his policy. On May 13, 2015, Safe Auto filed a declaratory judgment action to enforce the Exclusion, and Safe Auto's a motion for summary judgement was granted by the trial court. The trial court enforced the Exclusion and held that Safe Auto had no duty to defend or indemnify Dixon. Priscila Jimenez and Luis Jimenez timely appealed arguing that: (1) the Exclusion does not apply to the facts of the case; and (2) the Exclusion is unenforceable because it violates the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. 7501 et seq. (“MVFRL”) and public policy of the Commonwealth of Pennsylvania. The court held that the policy language was unambiguous, and further stated that there is no dispute that Dixon lived with Oriental-Guillermo, is unrelated to him, and he did not list her as an additional driver on the policy. Thus, the trial court properly found that the exclusion applied and Safe Auto was not obligated to defend Dixon. Next, the court considered whether the Exclusion violated the public policy expressed in the MVFRL. Appellants specifically argued that the Exclusion contravenes the MVFRL’s requirement that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance. The court held that this argument supports the trial courts interpretation of the exception because it places the onus on the owner of the vehicle to ensure that everyone who drives his car have insurance. There is no provision in the MVFRL that suggests the legislature intended to shift the risk to insurance companies to insure unidentified individuals who live with the insured, but are not related to the insured. Finally, the court held that the Exclusion does not violate public policy. Appellants argued that the Exclusion is contrary to the MVFRL by analogizing it to a Named Driver Only Exclusion. This type of policy allows a policyholder to exclude certain individuals from his or her policy. But the court ruled that the legislature placed the burden on the insured to make sure that individuals who drive the insured’s vehicle have insurance -- the insurance company does not bear that burden. Thus, the court affirmed the trial court ruling and concluded that Safe Auto was entitled to Summary Judgment. Thanks to Garrett Gittler for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News You're Fired! Court Weighs Admissibility Of Termination Letter (NJ) April 30, 2021 < Back Share to: In Hassan v. Williams and ABF Freight, Inc., the plaintiff truck driver was injured when his tractor trailer was rear-ended by the tractor driven by defendant Roland Williams. Plaintiff brought suit alleging negligence and negligence per se for his injuries. Defendants argued that plaintiff merged onto the highway from the entrance at a slow speed cutting in front of defendant. Following trial, the jury issued a verdict finding plaintiff 51% at fault, and the court issued a judgment of no cause. Plaintiff appealed. On appeal, plaintiff asserted that the trial court committed various errors requiring a new trial. In part, plaintiff contends that the trial court erred in barring the admission of evidence pertaining to ABF Freight’s termination of the defendant driver following the accident and the post-accident investigation which preceded his termination on the basis it was evidence of a subsequent remedial measure. Under New Jersey Rules of Evidence Rule 407, “Evidence of remedial measures taken after an event is not admissible to prove that the event was caused by negligence or culpable conduct. However, evidence of such subsequent remedial conduct may be admitted as to other issues.” With Rule 407 in mind, the Appellate Division found that while the portion of the letter terminating Williams was inadmissible as a remedial measure, the remainder of the letter which described the post-accident investigation was admissible. The Appellate Division noted that the termination and investigation are distinguishable, as the investigation is conducted to investigate the accident’s cause and is not a remedial measure by itself. In other words, the investigation is conducted, in part, to determine what remedial measures, if any, are required. On that basis, the Appellate Division determined that the letter was admissible so long as the portion describing the defendant’s termination was redacted. The Appellate Division also found that this evidence was relevant as it was likely to aid the jury in assessing what safety protocols were in place and broken by the defendant driver. Ultimately, the Appellate Division granted a new trial due to the trial court’s ruling on the letter and other related evidence. Given that plaintiff was initially found 51% at fault, the admission of that evidence could have led the jury to come to a different conclusion. Thanks to Benjamin Ferrell for his contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Time Is Not On Your Side! Policyholder’s Claim Dismissed As A Result Of “wear and tear” Damages Under Homeowner’s Insurance Policy (PA) December 17, 2021 < Back Share to: Recently, the Western District of PA, in Blanton v. State Farm Fire & Cas. Co., dismissed a claim of an insured homeowner who failed to claim the wear and tear damage to her home fell within the policy’s provisions. In Blanton, the policyholder suffered water damage to her home, alleging the damage was a result of water being trapped behind stucco. The water, over time, was trapped like a bubble, and the build up caused the damage to the home when released. While the policy specifically covered sudden and accidental damage from weather conditions, the insurer averred it did not cover damages over time, such as wear and tear, and deterioration. These additional damages were argued to be “resulting damages” and covered under the policy. Ultimately, State Farm moved to dismiss the complaint based on the fact that the policy did not cover “continuous exposure of water from the downspout” and the Court agreed with this analysis. Judicial review of this policy’s insuring agreement and exclusions provided no ambiguities, and the Court properly dismissed the policyholder’s vague, unsubstantiated claims of a covered loss. Thanks to Kevin Riley for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News WCM Welcomes A New Class Of Summer Associates May 30, 2023 < Back Share to: WCM's Summer Associate program welcomes a new crop of law students for the Summer of 2023. New Jersey Jordan Davis is a 2L at Widener University Delaware Law School. Jordan is a graduate of St. Joseph’s University with a degree in political science. Prior to joining WCM, Jordan was a paralegal for a Philadelphia personal injury law firm. Susan Derasmo is a 3L at Rutgers Law School and a member of Rutgers’ Computer and Technology Law Journal. Susan is a graduate of Elon University with a degree in policy studies and strategic communications and earned a masters in higher and postsecondary education from Teachers College, Columbia University. Prior to joining WCM, Susan interned as a judicial clerk in Monmouth County Superior Court and before that was a legal research assistant in the Office of General Counsel, Teachers College, Columbia University. Matthew Staniloff is a 3L at Rutgers Law School and a member of the Entertainment, Arts, and Sports Law Society. Matthew is a graduate of the University of Victoria in British Columbia, Canada with a degree in psychology. Prior to joining WCM, Matthew participated in a variety of internships, including a legal intern with a New York personal injury law firm and a judicial intern with the United States Bankruptcy Court for the District of New Jersey. Matthew is an avid hockey fan, having worked part time for the Victoria Grizzlies while in undergrad. New York Jordan Joachim-James is a 3L at Fordham University School of Law and a member of the Environmental Law Review. Jordan is a graduate of Fordham University with a degree in sociology. Prior to joining WCM, Jordan interned with Manhattan Legal Services, Bronx Legal Services and with the Industrial Court of Trinidad and Tobago in Port of Spain, Trinidad. Jacob Popeck is a 3L at Fordham University School of Law and a member of the International Law Journal. Jacob is a graduate of SUNY Binghamton with a degree in political science and philosophy, politics, and law. Prior to joining WCM, Jacob participated in a legal extern with Housing Conservation Coordinators and interned with Travelers, Broome County District Attorney Office, and a well-known New York asbestos firm. Jacob is an avid Rangers and Yankees fan. Seamus Rooney is a 3L at Fordham University School of Law and a member of the Environmental Law Review. Seamus is a graduate of Rowan University with a degree in philosophy and world religions. Prior to joining WCM, Seamus was a legal fellow for a Philadelphia law firm and interned with the Gloucester County Clerk’s Office and Gloucester County Surrogate Court in New Jersey. Corey Weisfeld is a 3L at Brooklyn Law School and a member of the Entertainment and Sports Law Society. Corey is a graduate of SUNY Binghamton with a degree in philosophy, politics, and law. Prior to joining WCM, Corey worked as a paralegal for a personal injury law firm on Long Island and interned with the Nassau County District Attorney’s Office. Pennsylvania Allen Dejewski is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor. Allen is a graduate of Temple University with a degree in economics. Prior to joining WCM, Allen was a judicial intern with the Philadelphia Court of Common Pleas. Allen is a former football player and an Eagles enthusiast. Hannah Garber is a 2L at Temple University Beasley School of Law. Hannah is a graduate of Arcadia University with a degree in politics, government, and law. Prior to joining WCM, Hannah interned with the Montgomery County Public Defender’s Office and worked as a crisis counselor. Gianna Hroncich is a 3L at Drexel University Thomas R. Kline School of Law and a Law Review staff editor. Gianna is a graduate of Lafayette College with a degree in government and law. Prior to joining WCM, Gianna was a law clerk for a Florida law firm and paralegal at a New York law firm. Gianna is a beam gymnast champion. Nicolas Ozorowski is a 3L at Villanova University Charles Widger School of Law and a member of the Moot Court Board. Nicholas is a graduate of the University of Massachusetts Amherst Commonwealth Honors College with a degree in political science. Prior to joining WCM, Nicholas interned with Fanatics and was a paralegal for a Philadelphia real estate firm. Nicholas is a distance runner. Benjamin Salvatore is a 3L at Rutgers School of Law and a member of the Law Review. Benjamin is a graduate of Rowan University with degrees in mathematics and political science. Prior to joining WCM, Benjamin was a judicial extern for the USDC for the District of New Jersey and interned with Rutgers Civil Practice Clinic – Veterans Advocacy Program. Previous Next Contact

News Court Splits on Electrical Upgrade Issue (NY) October 20, 2017 < Back Share to: In Daly v 9 E. 36th LLC, a New York court wrestled with the issue of whether an apartment building has a duty to update its electrical system to meet the modern electrical needs of tenants, and the question of who is responsible when electrical overuse by a tenant results in a fire. The plaintiff in this case was a tenant in the defendant’s building, who was injured by a fire in his rent-stabilized studio apartment. The fire was described in the fire incident report as originating "in an area of electrical wiring"; the report also noted the presence of "multiple extension cords plugged in to one outlet with a power strip." The apartment building was built in the 1930s and the plaintiff's apartment had three electrical outlets in the main living space, with additional ones in the hall, the bathroom, and the kitchen. No interior electrical upgrade had ever been done to the apartment, although the plaintiff made several requests to the building to install more outlets. In addition, the plaintiff had shown the superintendent that the existing receptacles were in disrepair. Plaintiff told the superintendent that he "didn't feel comfortable with using the extension cords," and did not use them for long periods of time because they would get hot. From all accounts the fire was caused by the overuse of the electrical outlets in the apartment. Plaintiff argued that the building’s decision not to upgrade the electricity in his apartment, despite the apartment's history and his requests over the years, was a breach of the duty to keep the building safe and functional for all tenants. The building filed a motion for summary judgment in New York County Supreme Court, and the court denied the motion. On appeal, the majority of the court agreed that a jury should decide whether plaintiff's lifestyle and electrical consumption are above and beyond the reasonable needs of any modern tenant, and whether the building had a duty that it breached to keep the apartment building, and plaintiff's apartment, reasonably safe. The dissenting opinion, however, was that “rather than moderating his use of power to conform to the building's electrical capacity (or at least using different outlets for different appliances), plaintiff was entitled to have defendant upgrade the building's wiring to accommodate his demand.” The dissent concluded that summary judgment should have been granted on the ground that plaintiff's negligent use of extension cords to operate numerous appliances simultaneously, as opposed to any alleged defect in the apartment's electrical wiring, was the sole cause of the fire. In its conclusion, the dissent found plaintiff's "lifestyle and electrical consumption" must still be in accord with the building's electrical capacity. Based on the 3-2 decision, it will be interesting to see if this decision winds up with the Court of Appeals. Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News No Dram Shop Liability for Pennsylvania Employers Serving Alcohol to Intoxicated Employees (PA) January 27, 2023 < Back Share to: Work-sponsored outings and events are normally seen as a much-welcomed reprieve from the old “9-5”. However, when alcohol is involved, Pennsylvania employers have potential liability to third parties who are injured by suffer at the hands of an intoxicated employee. In Klar v. Dairy Farmers of America Inc., the Superior Court of Pennsylvania addressed the standard which applied to an employer in such a situation. In that case, the Dairy Farmers of America (DFA) held a golf outing for its employees who had to pay a monetary contribution to participate in the outing. An employee became intoxicated and the DFA continued to serve him even though they knew he was an alcoholic and visibly intoxicated. The employee drove home and hit plaintiff who was riding on his motorcycle, causing serious injuries. Plaintiff sued the driver and the DFA, alleging that it was liable for serving the employee when they knew he was an alcoholic and intoxicated. The DFA moved for judgment on the pleadings, arguing that it was a “social host” and not subject to Dram Shop liability because they did not qualify as a “licensee” under PA’s Liquor Code and did not obtain “licensee status.” DFA further argued that there is no liability on the part of a social host who serves alcoholic beverages to their adult guests. The trial court granted DFA’s motion for judgment and Klar appealed, arguing that an unlicensed company-employer who provides an uncontrolled amount of alcohol to a visibly intoxicated employee in exchange for remuneration is liable to injured third parties. The Superior Court disagreed and affirmed, observing that “only licensed persons engaged in the Sale of intoxicants have been held to be civilly liable to injured parties.” The Court further noted that a social host is not liable for serving alcoholic beverages to a guest as “it is the consumption of the alcohol, rather than the furnishing of the alcohol, which is the proximate cause of any subsequent occurrence.” The Court ruled that an employer is a non-licensee under the liquor code and is not subject to standard civil liability because it acted as a social host and was not in the business of furnishing and selling alcohol. The Klar decision makes it clear that Pennsylvania employers cannot be subject to Dram Shop liability for serving alcohol to intoxicated employees. However, the Supreme Court of Pennsylvania has agreed to hear the appeal of the Superior Court’s ruling and a decision is expected this year. WCM will monitor the appeal and provide an update once a decision is announced. Thank you to Haley Matthes for her contribution to this post. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact

News Expanded Insurance Certificate? Don't Even Ask (NY) June 28, 2013 < Back Share to: The New York State Senate and Assembly have passed a bill that will make it illegal for any person to request or require that a certificate of insurance be issued with additional terms that are not contained in the insurance policy. Currently, insurance producers are prohibited from issuing certificates of insurance that alter, expand or otherwise modify the terms of the actual policy. However, many times the producer’s clients require certificates that contain these additional terms. For instance, in the construction context, property owners may require contractors to not only provide certificates of insurance that evidence that the owner has been added as an insured under the contractor’s policy, but that the contractor will also be bound by a“hold harmless” agreement. If the contractor fails to obtain such a certificate it risks losing the job. In such cases the insurance producer is faced with a no-win situation. On the one hand, the producer is prohibited from issuing such a certificate under current regulations and, on the other hand, it risks losing a client who will likely find another producer who will issue the certificate. Therefore, the legislators have passed this bill which prohibits parties such as the owner and contractor, in this example, from requesting that the certificate contain terms not present in the policy. The next step is for the bill to be delivered to Governor Cuomo to be signed into law. We will keep you posted on the progress. Thanks to Mendel Simon for his contribution to this post. If you would like more information please write to Mike Bono.   Previous Next Contact