News Florida Adopts The Apex Doctrine September 17, 2021 < Back Share to: Defendants have long complained about the bullying associated with abusive discovery, especially that of high-level corporate employees. Under the “Apex Doctrine,” high-level government and corporate employees are entitled to protection from deposition where the party opposing the deposition generally shows that; the witness lacks unique, first-hand knowledge of the facts at issue; and that other, less intrusive means of discovery have not been exhausted. In adding Rule 1.280(h) to Florida’s Rules of Civil Procedure, Florida’s Supreme adopted the “Apex Doctrine.” New Florida Rule of Civil Procedure 1.280(h) reads: A current or former high-level government or corporate officer may seek an order preventing the officer from being subject to a deposition. The motion, whether by a party or by the person of whom the deposition is sought, must be accompanied by an affidavit or declaration of the officer explaining that the officer lacks unique, personal knowledge of the issues being litigated. If the officer meets this burden of production, the court shall issue an order preventing the deposition, unless the party seeking the deposition demonstrates that it has exhausted other discovery, that such discovery is inadequate, and that the officer has unique, personal knowledge of discoverable information. The court may vacate or modify the order if, after additional discovery, the party seeking the deposition can meet its burden of persuasion under this rule. The burden to persuade the court that the officer is high-level for purposes of this rule lies with the person or party opposing the deposition. In re: Amendment to Fla. Rule of Civ. Procedure 1.280, 2021 Fla. LEXIS 1395 | 2021 WL 3779161 (Fla. August 26, 2021). Fla. R. Civ. P. Rule 1.280(h) does not replace Rule 1.280(c)’s protections against abusive discovery; it is an alternative to Rule 1.280(c). New rule 1.280(h) is an alternative to rule 1.280(c) for use in the limited context of depositions of high-level government and corporate officers. The new rule is not governed by the ‘good cause’ standard of rule 1.280(c), and it imposes burdens of production and persuasion that are distinct from the burdens at play in rule 1.280(c). Government and corporate officers who cannot meet the new rule’s requirements, or who choose not to try to, remain free to seek relief under rule 1.280(c). Id. The amendment is effective immediately, although the court did give interested parties 75 days to comment. Please contact Charles "Chip" George with any questions. Previous Next Contact

News Injuries Sustained During Police Officer's Hot Pursuit Placed On Ice (NY) July 20, 2018 < Back Share to: In order to succeed on a premises liability claim for negligence based upon a defective or dangerous condition, a plaintiff must show that the dangerous condition either was created by the defendant or that the defendant had either actual or constructive notice of the defective condition. There is a large body of case law on what will constitute constructive notice and how it (or the lack of it) must be established. Recently, the Second Department weighed in on this issue. In Palladino v Monadnock Construction, the plaintiff was a former police officer who claimed he was injured when he fell on the site of a construction project while pursuing robbery suspects. He claimed that he tripped on “construction debris” and sued the general contractor alleging causes of action for the negligence and violations of General Municipal Law § 205-e. The defendant moved for summary judgment and the Supreme Court denied the motion, and the defendant appealed. The Appellate Division, Second Department, reversed the lower court’s decision denying summary judgment and found that the general contractor demonstrated its prima facie entitlement to judgment as a matter of law dismissing the negligence cause of action by establishing that it did not create or have actual or constructive notice of any dangerous condition on the premises. The construction manager testified that inspections of the subject area performed prior to the accident did not reveal the existence of any dangerous conditions. Plaintiff testified that he did not see any debris, and at his deposition he could not identify the alleged debris or describe it. Based upon this testimony, the Appellate Division found that plaintiff had failed to come forward with sufficient evidence to raise a triable issue of fact as to the existence of a dangerous condition created by the defendant, or of which the defendant had actual or constructive notice. As to the GML § 205-e claim, the Appellate Division found that defendant had established its entitlement to judgment as a matter of law dismissing those claims as well. The defendant established that the cited regulations pertaining to public streets and sidewalks cited by plaintiff did not apply, since the area in question was closed to the public during the construction, including at the time of the plaintiff’s accident, and also demonstrated that it did not violate any of the remaining statutes and regulations cited by the plaintiff. The plaintiff failed to raise a triable issue of fact in opposition. Thanks to Jorgelina Foglietta for her contribution to this post. Please email Vincent Terrasi with any questions. Previous Next Contact

News Barking Up The Wrong Tree: Court Grants Owner Summary Judgment For Dog's Accident December 12, 2013 < Back Share to: Typically, lawsuits involving dogs arise out of dog bites. But a more unusual scenario arose in Buicko v Neto, where a dog running loose in the street caused an accident and the injured party sought to have the dog's owner held liable. The defendants’ installed an invisible fence along the boundary of their property intended to allow their dog, Dudley, free to explore. The dog was fitted with a collar that provided a small electric shock when the dog ventured too closely to the underground “fence.” One day, plaintiff rode her bicycle past defendants’ home and noticed Dudley barking and zigzagging along the front boundary of the property. Apparently, the invisible fence didn't provide much of a deterrent, as plaintiff alleged Dudley bolted from defendants’ yard directly in the path of her bicycle causing her to inadvertently strike the dog and fall. The trial court awarded the homeowner's summary judgment, and the Appellate Division, Third Department, affirmed the dismissal finding that plaintiff submitted insufficient evidence to demonstrate that the defendants were liable. Similar to a dog bite case, the found that the owners needed to be on notice of a propensity for similar conduct. While recognizing that the propensity could include “a dog’s habit of chasing vehicles or otherwise interfering with traffic” and thus endangering people’s safety, the court found that there was no evidence that Dudley had a history of chasing bicycles or interfering with traffic. A dog’s propensity to bark at traffic and run around a yard was deemed insufficient to raise a question of fact regarding the homeowner's notice for the dog's conduct here. Thanks to Steve Kaye for his contribution to this post. Previous Next Contact

News Is Marathon Running Bad For Your Health? October 25, 2010 < Back Share to: With the New York marathon almost upon us, this is the question that health insurers are asking themselves -- http://www.nytimes.com/2010/10/25/sports/25coverage.html?_r=1&ref=sports. While distance runners are typically considered to have healthy and active lifestyles, the reality is that 78% of distance runners will experience injuries to their lower extremities. As a result, distance runners can expect to pay the same in health insurance premiums as individuals who are overweight and otherwise unhealthy. It just goes to prove that my long held distaste for distance running is backed by both economics and medicine! If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Skeleton in Closet (Literally) Leads to PA Coverage Action September 19, 2013 < Back Share to: Just in time for Halloween comes a bizarre coverage decision from Pennsylvania. There are any number of unusual substances that fall within the purview of “microorganism,” “seepage,” or “pollutants” exclusions for property damage. A corpse has now been added to that list by the United States District Court for the Eastern District of Pennsylvania. In Certain Underwriters at Lloyd’s London v. Creagh, et al., William Creagh discovered the decomposing body of one of his tenants, Arthur Doud, in Doud’s apartment. Because he had died about two weeks earlier, fluids seeped into the bathroom floor where he was found, contaminating the bathroom directly below. Creagh’s costs to sanitize the affected areas of his building amounted to approximately $180,000. Underwriters denied coverage for the expenses that Creagh incurred, and Creagh filed suit, with both parties moving for summary judgment. The court agreed with Underwriters and found that the damage fell within the microorganism exclusion since the fluids excreted from Doud’s body caused the growth of microorganisms within the apartment. Furthermore, the seepage of fluids from the body caused the damage and therefore the loss also fell within the seepage exclusion. The Court finally noted that although there was a potential that the organic materials in question fell under the pollutants exclusion, there was no need to rule on the issue given that Underwriters had already shown there was no issue of material fact as to whether the property damage fell within the microorganism and seepage exclusion. Thanks to Thalia Staikos for her contribution to this post. If you would like more information please write to Mike Bono.   Previous Next Contact

News Intentional Act Ruled An "Accident" By New York Appellate Court September 22, 2008 < Back Share to: In 2002, Neil Spicehandler was run down by a crazed motorist who jumped the sidewalk in an attempt to "kill as many people as possible." After his death, Spicehandler's estate submitted a claim seeking benefits under the uninsured motorist (UM) and personal injury protection (PIP) endorsements in his auto policy. The adverse driver eventually pleaded guilty to murder in the second degree, admitting that he intentionally caused Spicehandler's death by striking him with his car. State Farm denied the claim on both counts, arguing that Spicehandler's death was not "caused by an accident" given the driver's conceded intentional act. The Appellate Division, Second Department ruled that the UM endorsement excluded coverage for the incident because the UM coverage was limited to circumstances where the insured was injured in an automobile accident at the hands of an financially irresponsible motorist. Since the adverse driver intended to kill Spicehandler, there was no "accident" and hence no UM coverage. Finding a distinction between the policy's UM and PIP endorsements, the First Department did not find such a limitation with regard to the death benefits claim. In contrast to its UM analysis, the court looked at whether the event was "accidental" from the standpoint of the insured in the PIP context. Since Spicehandler's death was unforseen from his standpoint, the event was "accidental" and State Farm's duty to provide death benfits triggered. The opinion was decided 3-2, which gives State Farm the right of appeal to New York's highest court. Stay tuned. State Farm Mut. Auto. Ins. Co. v Langan 2008 NY Slip Op 06980 Decided on September 16, 2008 Appellate Division, Second Department http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06980.htm Previous Next Contact

News Dennis Wade to Speak At New York State Bar Association CLE Coverage Program March 9, 2018 < Back Share to: Each Spring, the New York State Bar Association hosts a Continuing Legal Education Program dedicated to coverage issues. This year, Dennis, a sports maven (and a weekend warrior), will discuss how the judiciary addresses or balances the risks inherent in sport and recreational activity. His written submission, with co-author Nicholas Schaefer, is entitled: Liability for Sporting and Recreational Activities. If you care to attend live, here is a link to the program www.nysba.org/PremisesLiability. Previous Next Contact

News Who Let the Dogs Out? Not the Defendants (NY) October 25, 2013 < Back Share to: Plaintiffs bitten by vicious dogs often sustain serious injuries. Therefore, it is no surprise that they can also look forward to a significant payday. But that does not mean that courts won’t put a leash on plaintiffs’ ability to obtain judgments against those with a remote connection to the dog in question. In Mercado v. Ovalle, the plaintiff was attacked by two pit bulls that were kept on a lot next to a grocery store. According to the plaintiff, the defendants, the grocery store and its owner, helped care for the pit bulls, occasionally gave them food, once took them for a walk, and had access to the lot where they were kept. The defendants moved for summary judgment, which the Bronx County Supreme Court granted. The First Department affirmed the decision, holding that a defendant could not be held liable for the plaintiff’s injuries in the absence of any evidence that the defendant owned or harbored the dogs, or controlled the lot where they were kept. However, the court also noted that there was no evidence that the pit bulls were ever in the store or that the defendants entered the adjacent lot, suggesting that the outcome may have been different had the defendants had more significant contacts with the pit bulls. The lesson from Mercado may be that it is fine to enjoy animals, just don’t assume any responsibility for them. Thanks to Mike Gauvin for his contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News A Lift Is Not A Safety Device In NY Labor Law October 28, 2022 < Back Share to: In Carlson v. Tappan Zee Constructions, LLC., et al. Index No. 58719/2019, the Hon. Damaris E. Torrent denied a plaintiff’s motion for summary judgment on the issue of liability under Labor Law §240(1). Plaintiff was working on an aerial boom lift attached to a barge when the wakes of two passing boats had caused the barge to rock. As a result, the lift platform swung and crashed into a concrete tower, causing plaintiff to be tossed about inside the basket on top of the lift. It was undisputed that plaintiff did not fall and that no object fell. Plaintiff argued that the subject lift was a safety device within the meaning of Labor Law § 240(1), which required the lift to be constructed, placed, and operated to provide proper protection, and the lift failed to meet this standard. He further agued the fact he did not fell, or nothing fell on him was immaterial to establish a § 240(1) claim; his injuries were a direct result of the application of the force of gravity. In opposition, defendants argued that plaintiff’s accident was not the type contemplated by the statute, and the statute was not intended to address every injury which occurs while a worker is working at a height. While the Court acknowledged it has been held a fall is not required under § 240(1), the Court still denied plaintiff’s motion for summary judgment, finding that plaintiff at all times remained secured inside the basket and there was no contention the lift failed to operate as intended. Additionally, plaintiff failed to establish that large boats speeding was a foreseeability risk inherent in the work he was performing at the time of the accident. This case demonstrates that a hazard unrelated to the elevation risk is not sufficient to bring a § 240(1) claim. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Insured Loses the Name Game in Reformation Case (NY) April 4, 2013 < Back Share to: Determining whether principals of a company sued in their individual capacity are covered under a commercial policy is often a tricky question, and a recent decision by the Appellate Division, First Department, brought this issue to the forefront. In Kyong Jae Lee v. Lancer Ins. Co., Lancer Insurance Company issued a garage non-dealer insurance policy to Jay Family Parking, Inc. The owners of the company were sued in their personal capacity for a personal injury that took place on the insured premises, but were never listed or otherwise qualified as insureds under the policy. As such, Lancer disclaimed coverage for the lawsuit. Accordingly, plaintiffs commenced a declaratory judgment action against Lancer seeking an order reforming the insurance policy to list them as named insureds. The insureds claimed that they innocently misdescribed the identity of the owner of the insured premises. Plaintiffs, as individuals, owned the property, not Jay Family Parking, Inc., and they therefore claimed they ought to be covered. The trial court agreed with plaintiffs’ argument and issued an order reforming the policy to include plaintiffs as named insureds. But the Appellate Division, First Department reversed the part of the trial court’s order that reformed the insurance policy. The First Department placed particular emphasis on the fact that every application for insurance listed Jay Family Parking, Inc. as the only applicant. The court recognized that reformation is warranted where the insured innocently misdescribes the owner of insured property. Yet, the court found that here, the specific names of the owners was not the only issue. Lancer submitted affidavits stating that it would not have issued the policy had it known that plaintiffs owned the premises in their individual capacities. As such, the First Department held that reformation was not an appropriate remedy. Thanks to Steve Kaye for his contribution to this post. If you would like more information please write to Mike Bono.   Previous Next Contact

News How COVID-19 is Impacting Your Claims, as of April 3, 2020 April 2, 2020 < Back Share to: As we transition into April, to say the COVID-19 pandemic continues to impact us all would be a gross understatement. Many of us in the New York City, New Jersey and Philadelphia areas know people diagnosed with COVID-19 personally, with varying degrees of severity. We wish the best to all those dealing with symptoms right now, and a heartfelt thanks to essential workers, particularly health care providers, for their tireless efforts these past few weeks. For the rest of us, despite the cloud of anxiety we're all dealing with, we still try to maintain some degree of personal and professional normalcy, as we all follow CDC social distancing directives. (Who even knew the term "social distancing" as recently as a six weeks ago?) In New York, since our last post on March 22, 2020, all Statutes of Limitations remain stayed, and parties have been directed to stipulate out any deadlines impacted by COVID-19 — including summary judgment deadlines. Moreover, since March 22, 2020, filings — including E-filings — will not be accepted by County Clerks until further notice. Non-essential matters, which includes the bulk of civil litigation, is on hold, absent emergency circumstances. There have been a few orders issued in the past week in New York regarding implementation of Virtual Courts throughout the state. We have received them all, "hot off the presses," but so far, these virtual courts only apply to "essential" matters and emergency applications. As to the remainder of active matters, litigators remain in "wait and see" mode. We surmise that E-filing will be the first non-essential court function to recommence, but the Courts have not relayed a timeline to date. In New Jersey, the Supreme Court issued an Order on March 27, 2020, which memorializes the suspension of in-person Court proceedings, deadline extensions, and tolling of filing periods until at least April 26, 2020. The Order outlines the specific, in terms of the various civil and criminal court deadlines extended, but the message is simple -- all non-emergency court functions remain on hold until April 26, 2020, and with regard to computing any deadline or statute of limitation dates, the time period from March 16, 2020 - April 26, 2020 is excluded. As for Pennsylvania, the Supreme Court issued an Order on April 1, 2020, which extends the "statewide judicial emergency" through April 30, 2020, which includes closure of Courts throughout the Commonwealth through that date, excepting certain "essential functions." Moreover, all time calculations are suspended through April 30, 2020, which is similar to the NJ Order. Federal courts are still functioning, in terms of E-filing, although in person conferences across New York, New Jersey and Pennsylvania are on hold, per CDC directives. As to the different rules applicable to each federal court, those protocols not only from court to court, but from judge to judge, and federal courts offer wide discretion to judges implementing their own court rules. The Southern District of New York, for example, issued an Order on March 30 2020 which includes the following directive: Counsel are urged to check the web pages of individual judges, who have been instructed to post thereon any orders of general applicability extending time in civil matters, adjourning conferences, and the like. We are unable to docket these orders of general applicability in each individual open case. Checking the judge’s web page may save you the time and trouble of making application for an extension of time or an adjournment. Overall, Courts across all three states have prioritized "essential" court functions; the continuation of the remainder of litigation is on the back-burner, at least for now. There is no prohibition against attorneys communicating with clients, claim professionals and adversaries -- which has been keeping us all busy -- but Court oversight of these processes remains on hold. WCM continues to operate in a fully functional manner, with all attorneys working remotely. We will stay on top of updates from the Courts, and along with all of you, will continue to follow CDC recommendations, and wish good health to our clients, partners, colleagues and your families. Please reach out to us with any questions.   Previous Next Contact

News Federal Judges Consider Consolidation of Business Interruption Coverage Litigation May 21, 2020 < Back Share to: In addition to disrupting the lives and livelihoods of millions of people across the country and worldwide, the Covid-19 has sparked a torrent of lawsuits by businesses alleging they are owed business interruption coverage based the income they lost during Covid-19 related shutdowns. In response to this massive wave of litigation, the Judicial Panel on Multidistrict Litigation, is now considering whether these cases should be consolidated in a multidistrict litigation (MDL) proceeding. MDL refers to a special procedure in federal cases where the issues have significant overlap. The idea is that by combining the cases, they can address the claims efficiently and with less strain on the court system. Typical uses for MDL include products liability cases, where a single product causes a multitude of injuries, or in mass torts cases such as asbestos related cases. So far in response to Covid-19, multiple businesses have filed nationwide class actions seeking to represent a class of all insureds whose business interruption claims were denied by a particular insurer. Some of these insureds have gone even further, seeking to consolidate all pending business interruption litigation in federal court against every insurer that is or will be named in the future as a defendant into a single MDL. One of the proposed venues for such an MDL is the U.S. District Court for the Eastern District of Pennsylvania. As we wrote about last week, a similar effort at consolidation also is underway in Pennsylvania state court. The most recent development is that insurers are now asking for more time to slow the consolidation process. In a motion filed May 6, insurers requested a three-week extension to file briefs responding to consolidation requests by lawyers for policyholders. In re COVID-19 Bus. Interruption Prot. Ins. Litig., No. 20-md-2942, motion for extension filed (J.P.M.L. May 6, 2020). While insureds argue that consolidation is needed for efficiency given the amount of lawsuits, insurers and critics are likely to argue that these cases cannot effectively be combined since they are inherently fact specific and rely on different policy wording. Whether the JMPL grants MDL consolidation would have a significant impact on the resolution of these claims. many insureds are feeling the economic sting from the mandated closures and are asking the Court to get in front of a potential logjam of cases. A ruling is not expected for a few weeks. We will continue to keep you posted as new developments arise. Thanks to Andrew Debter for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact