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News PA Appellate Court Clarifies Insured’s Right to Own Counsel. August 8, 2011 < Back Share to: In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman for false statements made during a local election campaign. Eckman presented the claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a reservation of rights. The ROR noted that intentional acts and punitive damages were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead demanded counsel of its own choosing. When that offer was rejected, Eckman commenced a declaratory judgment action and sought injunctive relief to force Erie to provide Eckman with counsel of Eckman’s choosing. In making its argument, Eckman relied upon admittedly non-binding Pennsylvania case law and suggested that “a conflict of interest is a conflict of interest, exclusive of Pennsylvania case law.” Eckman argued that any attorney selected by an insurer under a reservation of rights, and paid by that insurer, would ipso facto breach his or her obligations to the insured/client. Eckman’s claim was rejected both by the trial court and the Superior Court. In a good result for insurers, the court reasoned that a conflict of interest (such to support the assignment of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with controlling PA precedent and as the court rightfully noted, it is bound to “follow controlling precedent as long as decision has not been overturned by the Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not automatically trigger a right to independent counsel. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News This and That by Dennis Wade August 5, 2021 < Back Share to: On April 3, 2018, I was called to jury service as a trial juror in Supreme Court, New York County. And, for a lawyer, being on the other side of the courtroom rail is a thought provoking experience. My chances of being chosen to sit on a civil tort suit, of course, were slim--former prosecutor, insurance defense and coverage attorney and an acquaintance with many of the plaintiff and defense practitioners in New York County. Step one in the jury selection process is Voir Dire, an Anglo-French term which literally means: To see, to speak. But I prefer the Latin derivation of the phrase: Verum dicere, meaning “To say what is true.” What the law wants is “fair and impartial” jurors who will decide the case on the facts disclosed at trial. What advocates want is something else--jurors “open” to their view of the matter on trial. Jury selection has become a science, a practice featured on Bull, a popular TV drama featuring Michael Weatherly playing Dr. Jason Bull, a character modeled after Phil McGraw who began one of the most successful trial consulting firms in the country. Like all jury consultants, Bull purports to use everything from social media to neurolinguistics to discern what really makes a juror tick, and thus either a good or bad choice for counsel. As I sat through my first voir dire in a medical malpractice action, I re-discovered, in a visceral way, what I always knew, the challenge for the lawyers is to judge whether the prospective juror is really saying what is true (verum dicere). Potential jurors who don’t want to serve, to be sure, know what answers to give. And all good advocates recognize these for what they are--polite fibs to avoid the trial time commitment. So, the real challenge begins when the fibbers fall away and the potential panel consists of those citizens prepared to give of their time to decide the contest. I have used jury consultants and their insights are often valuable. The usefulness of their contribution depends in large measure on how well counsel has developed its trial themes and the overall narrative of the story counsel plans to tell at trial. But the reality is jury consultants are pricey and the cost often outweighs the potential benefit in the garden variety controversy. So, how do you tell whether the juror is telling the truth about potential bias, about attitudes, about whatever issue matters to your trial themes. There are no magic answers. Go with your gut. And if you want a rationale for this tried and true advice, I urge you to read Blink by Malcolm Gladwell who had a simple but profound insight: We get into trouble when we try to talk ourselves out of a gut feeling. According to Gladwell, our brains are fabulous microprocessors that process information on many, many levels--levels well beyond our conscious awareness. Say, for example, your gut tells you something is “off” about an engineer in the panel of prospective jurors; yet, your mind tells you a person trained to solve problems and think logically is ideal. What to do? Gladwell would urge you to follow your instinct and use a peremptory challenge to strike the engineer. By now, after this musing, you're wondering what became of my jury service. I was bounced from a panel in a medical malpractice “pre-qualification” panel because WCM had cases with defense counsel’s firm. And, at 4pm, the jury clerk dismissed everyone because so few cases were trial ready because of Spring Break Week. But back to Gladwell, and another word of caution. A nurse excused from the same med-mal panel and I started chatting as we headed for the exit upon being excused from our term of service. But she, unlike me, sat through several hours of questioning. Bold, and thinking of Gladwell, I asked my new friend: “Based on what you saw during voir dire--and if you needed a lawyer--who would you hire?” “Easy call,” she said, “Plaintiff’s Attorney.” Puzzled, I asked why, because, to my eye, defendant’s counsel seemed, well, more authentic and in command. The answer? “Defendant’s counsel slouched and was sloppy in appearance. “ The moral of this tale is this: Stand straight and wear clothes that fit. To give my elevator friend due credit, defendant’s lawyer did look like he was wearing his older brother’s suit. And it was green, a poor color choice for an advocate unless, of course, you are Reaganesque. And that’s it for this This and That. Previous Next Contact

News "Wet Floor" Signs and Mats May Not Be Proof of Notice December 3, 2021 < Back Share to: In Snauffer v. 1177 Ave of the Americas LP, Plaintiff suffered personal injuries after slipping and falling on a wet floor in his office building. Defendant moved for and was granted summary judgment after claiming it had no actual or constructive notice of the dangerous condition. Plaintiff appealed, arguing that it was a rainy day, and that defendants had mats out and signs up in other portions of the building thus proving defendants had notice of the conditions. The First Department agreed with the trial court, finding that the signs and mats were out as a safety precaution and not in response to complaints about a dangerous condition where plaintiff fell. Moreover, the First Department discounted the affidavits of plaintiff’s co-worker and expert on the grounds that neither had stated the date which their observations were made. As such, the First Department affirmed unanimously. Thanks to Alison Weintraub for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08773.htm Previous Next Contact

Practice Areas Appellate Casualty Defense Commercial Auto & Trucking Commercial Litigation Construction Litigation Cybersecurity & Data Privacy Dram Shop Education and Not for Profit Law Employment Law Fine Art and Specie First Party Property Fraud Investigation and Prosecution Insurance Coverage Premises Liability Products Liability Professional Liability Retail & Hospitality Sports and Recreational Liability Subrogation and Recovery

News NJ Deemer statute metaphysically endorses Out-of-State Auto Policy February 11, 2011 < Back Share to: It is well established in New Jersey that unloading of a truck involves the “use” of that vehicle for purposes of omnibus auto insurance coverage. When an injury occurs during unloading then, provided that the injury arose out of the unloading operations, the auto insurance policy provisions apply to the claim. But what if the auto policy is issued out of state? Do the New Jersey omnibus insurance obligations prevail where that policy includes exclusions that would preclude such coverage? The answer boils down to whether the out-of-state policy was issued by an admitted carrier. If so, the New Jersey Deemer Statute requires the policy to be read in accordance with the State’s omnibus insurance provisions which in effect “metaphysically” endorse the out-of-state policy. To the extent that such a policy would deny coverage for an unloading injury, pertinent policy exclusions are held invalid. Significantly though, the remaining policy terms, such as policy limits, remain in effect as written. In The Burlington Insurance Company v. Northland Insurance Company, the Hon. Dickinson Debevoise, U.S.S.D.J. of the New Jersey District Court ruled that a general liability insurer was entitled to reimbursement from a commercial auto insurer for such a claim. Northland, an admitted New Jersey auto insurer, had issued a Pennsylvania insured a Pennsylvania commercial auto policy. When Northland failed to evaluate coverage for an unloading accident that occurred in New Jersey under this State’s deemer statute, a declaratory judgment action followed. The Court held that the Pennsylvania commercial auto policy indeed covered the unloading accident up to that policy’s full limits and that the liability insurer was entitled to reimbursement for defense and indemnification costs of its insured as well as costs incurred in the declaratory judgment. http://pdf.wcmlaw.com/pdf/northland.pdf For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News Criminal Penalties for "Tweeting" Jurors August 12, 2011 < Back Share to: We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge's instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against "any form of electronic or wireless communication." Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A "tweeting juror" in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post. Previous Next Contact

News Mediation Agreements Are Binding in NJ. August 12, 2011 < Back Share to: In the case of Willingboro Mall v. 240/242 Franklin Avenue, et al., the plaintiff appealed from an order enforcing a settlement reached during a mediation session conducted pursuant to Rule 1:40-4. Plaintiff argued that the rule precludes enforcement of an oral settlement reached at a nonbinding mediation session. It also contended the alleged settlement was the product of coercion by the mediator. The facts giving rise to the appeal are as follows. Plaintiff and defendants were commercial real estate entities who were involved in a default and foreclosure dispute. The parties were referred to mediation by the General Equity judge. The parties selected a retired Superior Court Judge as mediator, and attended a mediation session with their attorneys at the office of defendants' attorney. After several hours, the parties agreed to a settlement. Counsel for defendants then wrote a letter to the General Equity judge to inform him that the parties had reached a settlement. The letter also stated the terms of the settlement. Plaintiff refused to consummate the settlement and instead asserted that a final, binding settlement agreement had not been reached at the mediation session. Defendants then filed a motion to enforce the mediated settlement agreement, and supported the motion with a certification of their attorney and the mediator. A plenary hearing was conducted and a written opinion was issued, which found that the parties did in fact arrive at a settlement of the underlying case, and that the settlement was therefore binding. On appeal, plaintiff argued that Rule 1:40-4(i) prevented enforcement of an oral settlement because the terms of the settlement were not reduced to writing at the mediation session, a copy of the writing was not provided to each party, and the parties did not affix their signatures to the writing at the mediation session. In addition, plaintiff argued that enforcement of a settlement reached at a mediation session is contrary to the non-binding nature of the mediation process. The Appellate Division agreed with the trial court. It ruled that mediation is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. Rule 1:40-4 (i) does not prohibit the mediator or one of the parties from reducing the terms of the agreement to writing shortly after conclusion of the mediation session as occurred in this case. Specifically, the court noted that in this case, three days after the mediation session, defendants' attorney prepared and sent a letter stating the terms of the agreement reached by the parties. Two weeks later, he sent another letter informing plaintiff that he had placed the sum required to resolve the dispute in an escrow account. The Appellate Court held that these writings, the first memorializing the terms of the settlement and the second notifying plaintiff of defendants' action to consummate the settlement, were within the intention of the rule requiring the agreement to be reduced to writing. Two important points bear mention here. First, sometimes attorneys (and litigants) are held to their word and bound by their verbal actions. Second, and perhaps more importantly, know your case and the attorneys. If the attorneys on the other side seem like the kind of folks who will try to weasel their way out of an agreement, don’t leave the mediation until a written agreement is finalized and signed by all parties. It might take a little bit longer, but it’s certainly worth the effort – in fact, we just did this on a case on Wednesday where a post mediation “agreement on written terms” seemed like it might be hard to come by. But that’s a story for a different day… Special thanks to Sheila Osei for her contributions to this post. For more information about it, or WCM's NJ practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Failure to Prevent Bullying = Liability for Discrimination? September 29, 2011 < Back Share to: Last week New Jersey legislators passed an "Anti-Bullying Bill of Rights." The bill revised the 2002 New Jersey law on harassment, intimidation, and bullying in public schools. According to one legislator, the Bill "makes it clear that preventing and responding to incidents of harassment, intimidation and bullying are not optional." Rather the Bill sets forth specific protocols for investigating, reporting and training necessary to deal with bullying. The question for schools and courts to consider going forward is whether implementation of the protocols and/or the failure to do so, will render the schools liable in discrimination suits commenced by/on behalf of the bullied students. Thanks to Cheryl Fuchs for her contribution to this post. http://www.nj.com/news/index.ssf/2010/11/nj_legislature_sends_anti-bull.html http://www.njleg.state.nj.us/2010/Bills/A3500/3466_S1.PDF Previous Next Contact

News In PA, an Insurers’s Election to Subrogation PI Claim Warrants Severance of UIM Claim. March 31, 2010 < Back Share to: In Wutz v. Smith, Wutz was injured in a car accident with Smith. Smith was covered by a minimal $15,000 Progressive Insurance liability policy. Progressive offered to tender the policy to Wutz to settle the claim. Wutz also filed a UIM and bad faith claim against his insurer, State Farm. Pursuant to a consent to settle clause in the UIM policy, Wutz sought State Farm's consent to accept a $15,000 settlement from Progressive. State Farm elected to pay the settlement offer to Wutz and pursue a subrogation claim against Smith. Wutz then moved to sever the personal injury claims and the UIM and bad faith claims. The court held there was a sufficient basis to grant severance noting that State Farm had created a conflict of interest for itself, since as a subrogee, State Farm would have to show both that Smith was negligent and the damages were as high as possible. In contrast, as a UIM defendant, State Farm would have to show the opposite. However, in a case of bad news for State Farm (and isn't there always bad news when it comes to State Farm and bad faith claims), the Court held that since there was no longer any dispute between Wutz and Smith, Wutz should first proceed on the UIM and bad faith claims before State Farm got its bite at the proverbial apple. Special thanks to Ed Lomema for his contributions to this post. If you have any questions, please contact Bob Cosgrove at rcosgrove@wcmlaw.com http://pdf.wcmlaw.com/pdf/PAUIMBF.pdf Previous Next Contact

News Service by FedEx Sufficient to Comply with PA Service Rules May 2, 2019 < Back Share to: The Pennsylvania Superior Court recently reversed the trial court’s sustaining of preliminary objections on the grounds of improper service of defendants. In AICB v. Benjamin's Desk, LLC, No. 3257 EDA 2017 (2019 PA Super 77), AICB appealed the lower court’s sustaining of Benjamin’s Desk’s preliminary objections for improper service. Benjamin’s Desk retained a general contractor who then hired AICB as a subcontractor for constructing office space improvements. AICB alleged that the general contractor failed to pay AICB over $89,000 for services rendered, and therefore asserted a mechanics’ lien against Benjamin’s Desk. AICB served Benjamin’s Desk with notice of the mechanics lien via FedEx. The notice was delivered and signed for on March 21, 2017. Benjamin’s Desk filed preliminary objections arguing that AICB failed to comply with Philadelphia County’s service-of-notice requirements because a private postmark is not equivalent to a United States Postal Service postmark. The trial court sustained the preliminary objections and dismissed the case. On appeal, AICB argued that it served Benjamin’s Desk via a competent adult (private FedEx courier) and complied with the applicable service rules. The Superior Court explained that the applicable rule for service of original process in Philadelphia states that original service may be served “within the county by the sheriff or a competent adult.” A “competent adult” means an individual eighteen (18) years of age or older who is neither a party to the action nor an employee or a relative of the party. Furthermore, original process may be served by handing a copy any office or usual place of business to the defendant or its agent. In its decision, the Superior Court relied on PA Supreme Court precedent that technical noncompliance with the civil procedure rule for service of original process may be excused absent “intent to stall the judicial machinery” or actual prejudice. In this case, the Court noted that even if AICB failed to comply with the technical postmark requirements, Benjamin’s Desk did receive actual notice. Thus, the court concluded that the trial court committed an error of law in sustaining the preliminary objections and reversed the dismissal and remanded the matter for further proceedings. Thanks to Greg Herrold for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Personal Injury Defendants May Be Entitled To Additional Discovery When Plaintiffs Are Involved In Subsequent Accidents July 1, 2022 < Back Share to: Recently, in Lewis v. City of New York, the New York Appellate Division, Second Department, ruled on a defendant’s motion to compel the plaintiff to appear for further deposition and medical examinations. In this personal injury case which arose from a 2016 motor vehicle accident, Defendants moved to compel further discovery when they learned the plaintiff suffered additional injuries in a subsequent motor vehicle accident in August 2018. In reversing a trial court denial the Appellate Division, Second Department, reversed, explaining the subsequent accident “constituted unusual or unanticipated circumstances warranting additional discovery, including a further deposition and medical examination of the plaintiff.” The court, however, affirmed the trial court’s denial of defendants’ motion to preclude plaintiff from offering evidence on the issue of damages at trial, pursuant to CPLR 3126. Such a remedy, the court elaborated, is “drastic,” and defendants failed to make a requisite showing that “the [opposing] party’s conduct is willful and contumacious.” This case demonstrates the importance of promptly seeking all discovery (including medical) in a timely fashion once you are put on notice of later treatments or accidents. Thanks to Andrew Henriquez for his contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News “Today is not Groundhog Day”: EDPA Addresses Continual Case Deadline Extensions (PA) May 13, 2021 < Back Share to: While we are all feeling the toll of endless repetitive days of working from home and COVID-19 restrictions, the Eastern District of Pennsylvania in a recent case reminded the parties that, at least in court, an endless loop of resetting deadlines is not acceptable. In the recently decided case, Allstate Property and Casualty Insurance Co. v. Dynamic Solutions Worldwide, LLC, a 2019 house fire led to a lawsuit and subsequently to a declaratory judgment action. The first scheduling order was issued on September 1, 2020, setting an expert discovery deadline of January 29, 2021. The defendant filed for multiple extensions, which were granted on the basis that the need for an electrical expert was unknown to the defendant until the plaintiff produced its own electrical expert. After extensive discovery and multiple “resets” of the deadlines for expert disclosure and discovery, the plaintiff filed a motion to preclude defendant’s expert as the defendant had failed to adhere to the latest deadline of May 10 – a full four months after the original expert discovery deadline. In its analysis, the court made light of the time loop-like nature of the deadlines, noting that “today is not ‘Groundhog Day,’ and the Court is not Bill Murray. Unlike the comedic film, a civil litigant cannot expect a redo of the deadlines every time the alarm clock sounds their expiration.” But in deciding to grant the plaintiff’s motion, the court showed that preclusion is no laughing matter, stating that “when the Court runs out of carrots, sometimes it must reach for a stick.” This lighthearted take on a draining process shows the importance of not taking extensions for granted and sticking to expert deadlines – even when each day feels like the one before! Thanks to Abby Wilson for her contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact