News NY weighs new alchohol liability law. October 16, 2007 < Back Share to: Under the proposed law, sellers of fake ids would be held liable for the damages caused by their patrons. http://www.insurancejournal.com/news/east/2007/10/16/84308.htm?print=1 Previous Next Contact

News 1st Dep't: An Erased Hard Drive Can Give Rise to Adverse Inference Against Defendant December 10, 2010 < Back Share to: In Ahroner v Israel Discount Bank of N.Y., the trial court granted the plaintiff an adverse inference instruction with respect to e-mails on the defendant's erased hard drive. The Appellate Division affirmed the decision, stating that spoliation sanctions were properly granted. The evidence demonstrated that defendants controlled hard drive, were aware of their obligation to preserve it, and were subsequently directed by the court to do so. Defendants informed the court that they would comply with their obligations and would produce the hard drive for inspection by a forensic expert. However, the hard drive was erased before plaintiff was able to inspect it. Although the record was unclear as to when the hard drive was erased or whether it was preserved, the court concluded that since the drive was destroyed either intentionally or as the result of gross negligence, the court properly drew an inference as to the relevance of the e-mails stored on the drive. Special thanks to Bill Kirrane for his contributions to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_09013.htm Previous Next Contact

News Defendant Liable For Failing to Catch Falling Object January 5, 2012 < Back Share to: In Mulvihill v. Brooklyn Law School, the construction worker plaintiff was struck by falling wood pieces that were being used to support a concrete superstructure. The plaintiff sued alleging various Labor Law violations. The defendants moved for summary judgment seeking dismissal of the Labor Law § 240(1) claim arguing that the wooden pieces that fell were not being hoisted or secured and did not fall because of the absence of a safety device. The plaintiff cross-moved for partial summary judgment arguing that liability in cases such as this is not limited to instances where the object is being actively hoisted or secured at the time it falls. The court granted plaintiff partial summary judgment, holding that the defendants’ failure to utilize a safety device to catch the falling wood was the proximate cause of plaintiff's injury. Thanks to Edward Lomena for his contribution to this post. http://www.nycourts.gov/reporter/3dseries/2009/2009_50120.htm Previous Next Contact

News Windstorm Knocks Out Sublimit In Coverage Dispute (NJ) December 6, 2019 < Back Share to: The New Jersey Appellate Division recently held that the New Jersey Transit Corporation (“NJT”) was entitled to the full $400 million in policy limits from its insurers for losses sustained in the wake of Superstorm Sandy, notwithstanding the presence of a $100 million flood sublimit. The case, NJ Transit v. Lloyds reaffirms numerous central tenets of insurance law which, in this case, worked decidedly against the insurers. In 2012, NJT obtained a multi-layered property insurance program from 11 different insurers covering the period from July 1, 2012 to July 1, 2013. The policies provided “all risk” coverage through four layers of coverage totaling $400 million of limits. However, the policies contained a $100 million per-occurrence sublimit for “losses caused by flood”. The definition of “flood” included “surge.” In addition, by endorsement, the policies separately defined a “named windstorm” as wind and the resulting storm surge caused by a storm named by a national weather service. Thus, both definitions seemingly included a “surge.” When Superstorm Sandy struck in 2012, NJT quickly notified its insurers of its losses, and sought coverage under the policies. The insurers argued that the flood sublimit applied and refused to reimburse NJT for any amounts greater than $100 million. As a result, NJT filed this action seeking a declaration that the insurers owed the full $400 limits. The trial court granted NJT’s motion for summary judgment, and the ensuring appeal followed. There was no dispute that the losses were caused by Superstorm Sandy and the resulting storm surge. At specific issue on appeal was the effect of the “named windstorm” endorsement and the interplay between that language and the sublimit for “losses caused by flood.” The insurers argued that, because NJT’s losses were caused by “flood,” which included a “surge”, the sublimit applied. In affirming the trial court, the appellate court relied on the concept that, when two provisions of an insurance policy address the same subject, the more specific provision controls over the more general. Here, while the definition of “flood” included a “surge,” the definition of named windstorm specifically extended to wind driven water or storm surge associated with a "named windstorm,” which included Sandy. Thus, if the parties intended the term “flood” to include a storm surge associated with a named windstorm, the endorsement would have been unnecessary. The court further rejected the insurers’ arguments that the purpose of the endorsement, when read in conjunction with other provisions, was to highlight that losses caused by a named windstorm within a 72 hour period constitute one “occurrence” under the policy. Notably, NJT’s broker apparently represented that the flood sublimit would remain applicable notwithstanding the named windstorm definition. Nonetheless, the court found that the “named windstorm” provision was its own named peril, separate and apart from “windstorms” referenced elsewhere. The decision highlights the importance of the plain language of the policy. Although the insurers contended that the broker misrepresented their intentions when adding the “named windstorm” definition, the court sternly held that the insruers “had an obligation to read those terms before agreeing to participate in the program and provide coverage.” Thanks to Doug Giombarrese for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News New Arguments for Summary Judgment Cannot Be Raised in Reply Papers October 27, 2011 < Back Share to: In Rhodes v. City Of New York, the First Department reaffirmed its rule prohibiting new arguments from being advanced for the first time in reply papers in support of motions for summary judgment. In Rhodes, an expert report contained an improper date and as such the court did not consider the expert’s opinion. In a motion to renew and reargue, the expert affidavit date was changed and the court considered the affidavit. The First Department, however, found the lower court’s consideration of the affidavit on the motion to renew improper as the affidavit was attached to reply papers on the motion to renew. Moreover, the First Department recognized that the information was known to the parties at the time the affidavit was initially submitted and as such, was not a new fact that formed a proper basis for the motion to renew. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07569.htm Previous Next Contact

News "Employee Exclusion" Gains Further National Support March 7, 2012 < Back Share to: The "Employee Exclusion" found in many CGL policies has been upheld for some time in New York. Originally, it only applied to losses involving an employee of the named (or additional) insured, and over time the language was modified to extend the exclusion to claims involving anyone working on behalf or retained by the insured. This modified language has also been upheld in New York, and recently, an Illinois federal court has recently followed New York courts in interpreting an Employee Exclusion in favor of the insurer. In Nautilus Ins. Co. v. Jona Enterprises, Inc., the insured, Jona, was a general contractor at a job site. Jona retained a subcontractor which in turn hired the injured worker. The policy contained an Employee Exclusion that bars coverage for injuries to the insured’s employee, defined as “any person . . . hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.” The court followed New York's Appellate Division and ruled that the injured worker was the insured’s employee because he was “contracted for” the insured to work at the job site even though he was not paid by the insured. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to mbono@wcmlaw.com . Previous Next Contact

News Janet's Law Requires AEDs At School (NJ) September 26, 2012 < Back Share to: New Jersey Governor Chris Christie recently signed “Janet ’s Law,” which requires New Jersey public and non-public schools to have an automated external defibrillator (AED), to train school officials and coaches on the use of AEDs, and to establish emergency action plans for responding to sudden cardiac events. The law also requires that the mandated AEDs be maintained in accordance with the previously passed law on AED acquisition and maintenance (section 3 of P.L. 1999, C.34 (C.2A:62A-25)). Janet’s Law will take effect on September 1, 2014 and effects schools that include grades kindergarten through 12. We believe this law sets a new standard for schools, and will lead to additional claims against schools and school districts that are not in compliance with the law. We note that previous versions of the law were more detailed and expansive, and called for AEDs at youth recreational facilities and camps as well as the education of students on various health topics. The new legislation makes clear that the standard for AEDs is now different for youth recreational facilities and camps as opposed to public and non-public schools. Janet’s Law imposes an additional burden on elementary, middle and high schools. However, AEDs are already required in many large places of public accommodation, such as airports and healh clubs, and have been proven to be effective tool in saving lives during sudden cardiac events. Prudent underwriters should inquire in the application process and pre-risk surveys about the presence of AEDs at schools located in New Jersey that they insure. Thanks to Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at pclark@wcmlaw.com Previous Next Contact

News Fraud Trumps Policy Language on Jury Trial Waiver (NY) March 7, 2013 < Back Share to: A New York appellate court recently ruled that an insurer is entitled to a jury trial for claims of fraudulent inducement despite policy language waiving that right. In MBIA Ins. Corp. v. Credit Suisse Sec. (USA), LLC, the insurer, MBIA, claimed that the insured, Credit Suisse, fraudulently induced MBIA to issue a policy covering payments on $900 million in residential mortgage-backed securities. MBIA alleged that before the 2008 recession, Credit Suisse bundled risky mortgages and passed them off as high-quality securities when seeking insurance coverage from MBIA. MBIA sought a jury trial on the issue of Credit Suisse’s alleged fraud, probably because they want to appeal to a jury's sympathy and leverage the public’s negative view of Wall Street banks. However, a policy provision provided that both parties waived their rights to a jury trial for any litigation arising out of a policy dispute. The lower court ruled that MBIA was not entitled to a jury trial because it could not, on the one hand, claim that it was entitled to remedies under the policy while, on the other hand, claim that the language in the policy regarding the jury trial waiver was not valid. But the appellate court disagreed, finding that an insurer’s fraudulent inducement claim is, in essence, a claim that the policy is no longer valid regardless of whether the insurer seeks to rescind the policy. Thanks to Mendel Simon for his contribution to this post. If you would like more information, please write to Mike Bono. Previous Next Contact

Chip M-P George Of Counsel Florida cgeorge@wcmlaw.com +1 786 636 1541 Professional Experience Chip George is a skilled courtroom advocate who litigates complex insurance coverage disputes in state and federal courts throughout Florida and provides litigation and trial support on a wide range of insurance defense-related issues. With almost three decades of trial and appellate practice in insurance coverage and defense disputes, as well as a wealth of real-world experience that includes work as a general contractor prior to law school and several years as a yacht captain navigating the East Coast of the United States and the Caribbean, Chip is a practical and nimble legal strategist who knows not only how to position a case for success at the trial level, but also how to protect client victories on appeal. In addition to his work on behalf of clients, Chip dedicates time to professional and community service. He currently serves as the president of the Rosemary Barkett Appellate American Inn of Court and previously served as the president of the Third District Court of Appeal Historical Society. For more than seven years, Chip has also coached the moot court teams at Pembroke Pines Charter School; in 2017, the team went to the statewide Florida High School Moot Court Competition, where they finished third. Before entering private practice, Chip served as the senior law clerk to the Honorable Thomas H. Barkdull, Jr., former Chief Judge of the Florida District Court of Appeal, Third District. Honors and Distinctions Barry University Cum laude Professional Activities Rosemary Barkett Appellate American Inn of Court, President Third District Court of Appeal Society, President (2019-2020) Pembroke Pines Charter School, Moot Court Coach Publications The Poison Pill? Settling Damage Claims Involving Living Artists (co-author Michael A. Bono): International Fine Art and Specie Conference, Rome, Italy, 2017 Sandy’s Impact on Fine Art and Property Insurers– IUA Event: London – November 2013 (co-author with Dennis M. Wade) Fine Art and Collectible Losses:Framing the Value Issues (International Underwriting Association, London, England, November 2012) (co-author with Dennis M. Wade) The Basics of Oral Examination:Understanding the Rules and Law of Depositions Pursuant to the CPLR (New York State Bar Association, 2012) The Examination Before Trial:What to Do Before Calling the Court (New York State Bar Association, 2012) What Fine Art Insurers Really Need to Know About the Visual Artists Rights Act (VARA)(co-author with Dennis M. Wade) The Anatomy of a Bust Out: The Implications of Bankruptcy and Bankruptcy Fraud for Property, Fine Art and Specie Insurers(International Underwriting Association, London, England, November 2011) (co-author with Dennis M. Wade) Defending Underwriters, Claim Professionals and Brokers in US Coverage Litigation (International Underwriting Association, London, England, November 2009) (co-Author with Dennis M. Wade) Getting it Back: Recovering Stolen Property in the United States(International Underwriting Association, October 2008) (co-author with Dennis M. Wade) News I'm a paragraph. Click here to add your own text and edit me. It's easy. Download Education J.D., University of Miami School of Law Barry University, BLS – Cum Laude Bar Admissions Florida Court Admissions United States Supreme Court Eleventh Circuit Court of Appeal Fifth Circuit Court of Appeal S. District Court, E.D. Louisiana All Florida U.S. District Courts All Florida U.S. Bankruptcy Courts

News Contractor's Trucks Traversing over a Sidewalk Creates Issue of Fact that Defeats Motion to Dismiss. July 23, 2010 < Back Share to: In Cordova v Union Turnpike Dev. Corp., the plaintiff tripped and fell due to a hole in a sidewalk near an area where construction work was taking place. She sued the parties performing the construction work. The defendants were granted summary judgment by the trial court on the grounds that they did not create the alleged defect. In a short decision, the Appellate Division reversed. Notably, the court relied on the plaintiff's claim that the hole could have been created when heavy machines and trucks traversed the subject sidewalk to gain access to the construction site. Since the defendant did not establish they did not create the hole with their equipment, they failed to meet their initial burden of establishing entitlement to summary judgment. Special thanks to Bill Kirrane for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . http://www.nycourts.gov/reporter/3dseries/2010/2010_06155.htm Previous Next Contact

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

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