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News In Philly, Neither Artists Nor "Red Hot Sex" Give Rise to a Federal Cause of Action. June 16, 2010 < Back Share to: Perry Milou is a pop artist -- http://www.perrymilou.com/website/. To make himself better known, back in 2007, he decided to host an art exhibition and show entitled "Red Hot: The Art of Sensuality and Sexuality" -- http://pdf.wcmlaw.com/pdf/Red Hot Website.pdf. The exhibition included art work and couple's sessions on such topics as body piercing, pole dancing and spanking. The problem? His landlord at Rittenhouse Plaza in Philadelphia -- one of the most prestigious buildings and locations in the City -- didn't want such an exhibition on its premises. He was told that if the exhibition went forward, his month to month lease would be terminated. So what did Mr. Milou do? He had the exhibition. And, his landlord terminated the lease. A press furor resulted. http://abclocal.go.com/wpvi/story?section=news/local&id=5746584 But then the public lost interest and the case went away, until, that is, this past February when Mr. Milou went legal. He claimed that his First Amendment rights had been violated. He made this claim by first alleging that he, an artist, was a member of a suspect class entitled to Sec. 1985 protection. When this didn't work, he claimed that his landlord was acting under color of state law and made a Sec. 1983 claim. In a case with which we are quite familiar, the lawsuit has just been dismissed by USDC Judge Dalzell in the Eastern District of Pennsylvania. http://pdf.wcmlaw.com/pdf/Red Hot Opinion.pdf The decision is quite funny on its own (especially footnote # 1) and James Madison does not have to roll over in his grave. If you would like more information about this post or WCM's First Amendment defense practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News 2nd Circuit Clarifies Article III Standing Based on "Increased Risk" of Identity Theft (NY) April 30, 2021 < Back Share to: Earlier this week, the Second Circuit issued a significant ruling with respect to the unauthorized disclosure of sensitive personal identifiable information (“PII”). Federal circuits have been split with respect to whether an increased risk of identity theft following a data breach, without proof of actual harm, is sufficient to confer Article III standing. The decision in McMorris v. Lopez & Assoc., officially clarifies the issue for the Second Circuit. Plaintiff-appellant Devonne McMorris commenced a class action lawsuit against defendant-appellees Carlos Lopez & Associates, LLC (“CLA”) in response to an email that a CLA employee inadvertently sent to all of CLA’s employees. This email contained the sensitive PII – i.e., Social Security numbers, home addresses, dates of birth, phone numbers, dates of hire and educational degrees – of about 130 former and current CLA workers, including McMorris. After discovering the breach, CLA emailed its current employees, but did not contact any former employees regarding the inadvertent disclosure or take any other corrective action. Plaintiffs asserted state law claims of negligence, negligence per se, as well as statutory consumer protection violations on behalf of classes in California, Florida, Texas, Maine, New Jersey and New York. The plaintiffs also claimed CLA “breached its duty to protect and safeguard [their] personal information and to take reasonable steps to contain the damage caused where such information was compromised.” Due to the PII disclosure, plaintiffs asserted they faced an imminent risk of identify theft and becoming victims of “unknown but certainly impending future crimes.” In response to the complaint, CLA moved to dismiss for, inter alia, lack of Article III standing. The United States District Court for the Southern District of New York agreed with CLA and dismissed McMorris’ claims for lack of subject-matter jurisdiction as McMorris failed to allege an injury-in-fact sufficient to confer Article III standing. McMorris appealed to the 2nd Circuit, asserting that the increased risk of identity theft confers Article III standing. The Second Circuit focused on whether the plaintiffs sufficiently alleged concrete, particularized, and actual or imminent injury. The Court considered three non-exhaustive factors: (1) whether the data at issue was comprised as a result of a targeted attack intended to obtain the plaintiffs’ data; (2) whether the plaintiffs could show some misuse of their compromised data, even if the plaintiffs have not yet experienced theft or fraud; and (3) whether the type of disclosed data subjects plaintiffs to a perpetual risk of identity theft or fraud. While the Second Circuit recognized the information CLA divulged renders plaintiffs more exposed to future identity theft or fraud, plaintiffs failed to establish "imminent injury." In addition, the Second Circuit determined the plaintiffs had no standing because they failed to show their PII was subject to a targeted data breach, or that any entity misused their PII. This decision is significant. Although the Court agreed with the district court’s holding that McMorris failed to establish an injury in fact, the Court held that Article III injury in fact standing only requires proof of a substantial risk of future identity theft or fraud. A substantial risk may be sufficient to establish Article III standing, even if the plaintiff has not been a victim of identity theft or fraud. The 2nd Circuit's thorough decision gives insight to future litigants regarding the required legal standard in this jurisdiction. Thanks to Lauren Berenbaum for her contribution to this post. Please email Brian Gibbons with any questions about the ruling, or WCM’s data privacy and cyber-liability practice. Previous Next Contact

News Insured's Word of Cash Payment for Policy Premium Not Good Enough (NJ) August 1, 2017 < Back Share to: In Wayne Savage v. Progressive Insurance, the plaintiff, Wayne Savage, found out firsthand the value of keeping a receipt. On 12/10/13, Mr. Savage went to Rallye Motors to purchase insurance for his car. He spoke with a gentleman identified as A.T. A.T. contacted Progressive, which provided a quote for Mr. Savage in the amount of $2700 to be paid in installments after an initial payment of $593. Mr. Savage then gave A.T. $593 in cash with the remaining payments to be withdrawn from Mr. Savage’s bank account electronically. Mr. Savage subsequently received a “welcome package” from Progressive in the mail. The package contained an application for insurance. The application stated that the policy term was 12/10/13 to 6/10/14 with a total premium of $2967 to be paid in five installments. The application also provided that this first payment would be made with funds transferred from Mr. Savage’s bank account. Mr. Savage read only the first page of the mailing and did not follow through with authorization for the direct funds transfer. On 1/8/14, Mr. Savage was involved in a car accident. The police officer that responded to the accident contacted Progressive to ensure that Mr. Savage had coverage. The officer was informed that Mr. Savage did not have coverage, and the officer subsequently issued Mr. Savage a ticket. Mr. Savage then filed suit against Progressive under the Consumer Fraud Act based on Progressive’s alleged wrongful rescission of an automobile policy. Following a bench trial, a verdict was rendered in favor of Progressive. On appeal Mr. Savage argued that the trial court erred because (1) he made his initial payment to Progressive and (2) Progressive failed to cancel his policy in accordance with N.J.S.A. 17:29C-10. In regard to his first issue, Mr. Savage argued that his payment to A.T. and his receipt of the “welcome package” was verification that he paid the first installment and had a valid policy. The court rejected these arguments because Mr. Savage provided no evidence besides his own testimony that he made the payment to A.T as he had not retained his payment receipt. Second, Mr. Savage admitted that he only read the first page of the “welcome package” and did not read the remaining pages that explicitly stated that the first payment would be transferred from his bank account. On the other hand, Progressive provided testimony that it did not accept cash payments. Progressive tried to transfer the funds electronically but the transfer was declined by Mr. Savage’s bank. In turning to Mr. Savage’s last issue, the court held as an initial matter that N.J.S.A. 17:29C-10 did not apply because the issue was one for recession rather than cancellation of a policy. Thus, the court held that an insurer is within its right to declare a policy void from inception if the initial payment is never received. However, the court nonetheless stated that had this been a cancellation of a policy, Progressive would have still been incompliance with N.J.S.A. 17:29C-10, which provides in pertinent part that: “No written notice of cancellation or of intention not to renew sent by an insurer to an insured in accordance with the provisions of an automobile insurance policy shall be effective unless… at the time of the mailing of said notice, by regular mail, the insurer has obtained from the Post Office Department a date stamped proof of mailing showing the name and address of the insured and the insurer has retained a duplicate copy of the mailed notice which is certified to be a true copy.” Progressive produced evidence that it mailed a recession notice to Mr. Savage on 12/16/13 and that it also retained a duplicate copy. Therefore, it satisfied the requirements of N.J.S.A. 17:29C-10. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Excess Coverage: Unlimited Exposure for the Excess Carrier? (PA) January 8, 2021 < Back Share to: In Jin Ming Chen v. Insurance Company of the State of Pennsylvania (Ct. of Appeals, 2020), Plaintiff commenced a personal injury suit after sustaining an injury at a construction site. At the time of the suit, defendant Kam Cheung Construction maintained both primary and excess coverage. The combined coverage limits totaled five million dollars per occurrence: one million per occurrence from the primary carrier and four million dollars per occurrence from the excess carrier. Partial summary judgment was entered in favor of the Plaintiff, in the amount of $2,330,000 plus $396,933.70, in prejudgment interest. Following the judgment, the defendant’s primary carrier was granted a declaratory judgment rescinding the primary policy, on the basis of material misrepresentations made by the defendant in his application for coverage. In an effort to obtain the entire policy, the Plaintiff concluded that the excess carrier, Insurance Company of the State of Pennsylvania (‘ICSOP”) was liable for the entire judgment, pursuant to the policy’s “ultimate net loss” and “follow form” provisions. ICSOP contended that it was not liable for the portion of the judgment that would have otherwise been paid by the primary carrier, had coverage not been voided, as the excess policy did not “drop down.” Insurance contracts are governed by the rules of contract law. As such, the language included in an insurance policy/agreement are governed by the plain meaning of the language included in the agreement. Here, the Court of Appeals rejected Plaintiff’s arguments on the basis of the unambiguous language contained in the insurance contracts. While the Court of Appeals chose not to read beyond the language of the insurance agreement, if the Court had done so, ICOSP could have been liable for a judgment that exceeded the scope of coverage for this claim. Thus, many carriers could then be liable for judgments that far exceed coverage limits. For now, pursuant to the highest Court in the State of New York, the liability of carriers does not exceed the provisions of the insurance agreement, thus highlighting the importance of unambiguity in such agreements. Thanks to Marysa Linares for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Defendants Not Liable For Injuries Caused By Uneven Sidewalk July 18, 2012 < Back Share to: In the recent unreported decision of Maloy v. Schneider, the plaintiff mail carrier brought suit after he tripped on a raised slab of public sidewalk in front of the defendants’ house. Plaintiff argued that the sidewalk’s uneven condition had been produced by roots growing from a tree located in defendants’ yard. It was undisputed that the defendants did not plant the tree in question. Additionally, the defendants denied being aware that the sidewalk was in a dangerous condition prior to plaintiff’s fall. The defendants moved for summary judgment arguing that, as residential landowners, they were not liable for the public sidewalk’s uneven condition, even if the condition was caused by roots emanating from a tree in their front yard. The trial court agreed, and dismissed plaintiff’s complaint, noting that the defendants had not planted the tree, nor had they undertaken any other conduct to produce the dangerous condition. The Appellate Court upheld the trial court’s decision, noting that, for decades, the New Jersey Supreme Court has declined to impose a common-law duty upon residential property owners to generally maintain the public sidewalks in front of their home in a safe condition. Although an exception may apply if the defendants cause the hazardous condition, in this particular case, there was no proof of any affirmative actions on the part of the defendants to create a hazard condition on the abutting sidewalk. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4103-10.pdf Previous Next Contact

News No Duty on Landlord to Protect Against Staircase Full of Urine August 3, 2010 < Back Share to: Plaintiff slipped in a puddle of urine in the staircase of her building owned by the New York City Housing Authority. The plaintiff had affidavits from several nonparty witnesses who alleged that urine puddles in the staircase were a recurring problem. However, the plaintiff failed to disclose the names of those witnesses. As such, the court granted the Housing Authorities' motion for summary judgment, finding that the plaintiff failed to show that the building owner had actual or constructive notice of the gross and hazardous condition. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06235.htm Thanks to Georgia Stagias for her contribution to this post. Previous Next Contact

News Power To Stop Unsafe Work Practices Not Enough To Impose Liability November 9, 2011 < Back Share to: In [i]Martinez v. 342 Prop. LLC[/i], general contractor Flintlok retained Site Safety to provide site safety management services on the project where Martinez ultimately was hurt. Site Safety claimed entitlement to summary judgment arguing that it did not control, supervise or direct Martinez’ work. In opposition, Flintlok offered an affidavit stating that Site Safety had authority to stop unsafe work practices and had done so on prior occasions. The First Department held that even though Site Safety advised Flintlock on safety matters and had the authority to stop unsafe work practices, there was no evidence that Site Safety controlled, supervised, or directed Martinez’ work so as to impose liability under Labor Law 200. Indeed, the court emphasized that a subcontractor must control, supervise or direct the work in order to be held liable under Labor Law 200. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_07738.htm1 Previous Next Contact

News Indiana Jones Comes to Long Island in NY Art Recovery Dispute. April 6, 2010 < Back Share to: A recent decision by a New York surrogate court in Matter of Flamenbaum reads more like the plot of an Indiana Jones movie than a typical estate dispute. In 1913, a group of German archaeologists discovered an ancient gold tablet in Iraq., and it was ultimately placed on display in a Berlin museum. The museum was closed during World War II, and when it re-opened in 1945, the museum discovered that the tablet was missing. The tablet appeared as an asset in the estate of Riven Flamenbaum. Although there was speculation that the tablet was taken from the museum by Russian troops, how it wound up in Flamenbaum’s possession remains a mystery. Nevertheless when the estate was put to probate, the Berlin museum entered a notice of appearance and notice of claim in the surrogate’s court, bringing a replevin claim against the estate. The Court held that, while the legal claim of the museum was timely under the statute of limitations, the equitable doctrine of laches barred recovery. The Court pointed out that the museum did not take any steps to investigate the loss, and did not even report the tablet missing to law enforcement or to art loss registries. Apparently, there was word that the tablet surfaced with a dealer in 1954, but the museum made no effort to contact that dealer. The Court held that the delay severely prejudiced the possessor, in large part because their main witness was obviously now deceased. Under those circumstances, the Court held that the doctrine of laches must be applied. We suspect some sort of settlement will be worked out with the museum, as there is not a particularly extensive market for ancient gold tablets. But if not, it will be interesting to see how an appellate court deals with this case. If you would like more information about this post, please e-mail mbono@wcmlaw.com http://www.nylj.com/nylawyer/adgifs/decisions/040510riordan.pdf Previous Next Contact

News In NY, a Tender Requires Support. August 12, 2011 < Back Share to: In Admiral Ins. Co. v. State Farm Fire & Cas. Co., the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows. In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification. On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&K requesting a copy of the file since it had no information on the accident. On March 19, 2004, State Farm sent UCS, plaintiff, P&K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&K’s failure to give prompt notice. Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In affirming the trial court's decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later. The moral of the story is -- if you're pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you're going to be fighting a long legal battle. Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM's coverage practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Overturning Armando Galarraga's "Imperfect Game" April 28, 2022 < Back Share to: Sixteen students at Monmouth University are taking a shot at righting an historic wrong in sports history. In 2010 Detroit Tigers pitcher Armando Galarraga was denied a perfect game, because of an erroneous call by first base umpire Jim Joyce, when Galarraga was an out away from joining a very exclusive list. Major League Baseball’s commissioner refused to overturn the call even though the umpire admitted the call was wrong, thereby denying Armando Galarraga the 21st perfect game in the sport’s 134-year history. The students submitted an 82-page report to Major League Baseball’s headquarters in February, and have cited to precedence in sports history to support their argument in favor of awarding Galarraga the perfect game. In 1983, baseball’s commissioner reversed an umpire’s ruling that Kansas City Royals George Brett was out because he used too much pine tar on his bat when he hit a home run. MLB has also changed the status of a historical achievement 32 years after, removing Pittsburgh Pirates pitcher Harvey Haddix from the no-hitter list. But the students did not just stop at sports history precedence. They cited court decisions supporting the concept that “a wrong suffered without a remedy is a blot upon the sound administration of justice.” Westinghouse Eletric Corp. v. United Electrical Co., 1946. We'll see if Rob Manfred and MLB gives the students' application any real consideration here. To be sure, no party will be "opposing" this application, but MLB may be leery of creating new precedent to have blown calls officially overturned after the fact. We will keep tabs on this one -- as will Armando Galarraga! And as an aside, if you want to see a lesson in sportsmanship, the day after Jim Joyce's blown call, Joyce and Galarraga met at home plate to present the lineup cards for the next day's game. In the preceding 24 hours, it had become apparent that Joyce made the wrong call, and effectively removed Galarraga's name from the history books. Both handled the emotional meeting with absolute class. Thanks to Jennifer Tuz for her contribution to this post, and please email Brian Gibbons with any questions. Previous Next Contact

News Philadelphia Jury Renders $1.64 Million Verdict in Trip-and-Fall Case with Apparent Video Evidence Spoliation April 21, 2016 < Back Share to: We already know that Philadelphia juries tend to be plaintiff-friendly in personal injury cases. What we have recently learned from Allison v. Forest City Enterprises is that Philadelphia juries can be $1.64 million-friendly when you couple an ordinary trip-and-fall with video spoliation. On May 17, 2013, the plaintiff tripped and fell on an allegedly defective metal grate on the sidewalk in front of a building in center city Philadelphia. The plaintiff claimed he injured his left arm in the fall, which allegedly led to $1.25 million in multiple surgeries and hospital visits, as well as a total of 70 days in the hospital. Defense argued that the grate was not a dangerous condition, and that any danger was de minimus. At deposition, a defense witness testified that there was no video surveillance system in place at the time and location of plaintiff’s accident. Subsequent evidentiary developments revealed that this was false; there was in fact a video surveillance system in place. The defense witness amended her testimony in a subsequent deposition, stating that (a) there was video surveillance footage, but she “believed” it was erased after 30 days; (b) she ignored the plaintiff’s spoliation letter since she received it 30 days after the plaintiff’s fall; and (c) she had no knowledge as to how the video surveillance videos for the building were saved or accessed. The spoliation evidence was permitted to be introduced at trial. The jury deliberated for a full 6 days and ultimately found the defendant building owner 90 percent negligent while finding the plaintiff only 10 percent negligent. Of the $1.64 million award, the jury allocated $1.27 million for past medical expenses, $250,000 for future medical expenses, and $120,000 for pain and suffering. Plaintiff’s unusually high medical bills likely played a significant role in this seemingly excessive verdict. But – the lesson is that perceived foul-play of a corporate defendant in the discovery process can turn a defensible case into a verdict nightmare. Thanks to Rachel Freedman for her contribution to this post. Previous Next Contact

News Defendants Provide Non-Negligent Explanation May 19, 2023 < Back Share to: In Bello v. Masters Auto Collision of Long Is., Inc., the Second Department recently addressed whether the defendants were not at fault in the subject car accident. The plaintiff was a passenger in a vehicle driven by co-defendant Alcantar which allegedly struck the rear of a vehicle owned by defendant Masters Auto and operated by defendant Mendez. Masters Auto and Mendez moved for summary judgment dismissing the complaint. The Court set forth that a driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle. Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the operator of the rear vehicle. In turn, to rebut the inference of negligence, that operator is required to provide a nonnegligent explanation for the collision. Master Auto and Mendez established that they were struck in the rear when stopped in traffic, and as such were not at fault. This decision serves as a reminder the burden a party has when involved in a rear-end collision. Thanks to Corey Morgenstern for his contribution to this article. Should you have any questions, please contact Andrew Gibbs. Previous Next Contact