News Proposal in NY Could Require Business Interruption Coverage for COVID-19 Pandemic April 3, 2020 < Back Share to: A bill proposed in the New York State Legislature might have a far-reaching impact for insurers. On March 27, 2020, the New York State Legislature introduced a bill that would require every policy of insurance insuring against loss or damage to property to include coverage for business interruption during the COVID-19 pandemic. The proposed bill seems to be an attempt to force insurers that provide loss of business coverage to indemnify the insured for COVID-19 related closures and losses. Bill A10226 provides in relevant part: Every policy of insurance insuring against loss or damage to property, which includes the loss of use and occupancy and business interruption, shall be construed to include among the covered perils under that policy, coverage for business interruption during a period of a declared state emergency due to the coronavirus disease 2019 (COVID-19) pandemic. The bill indicates that coverage is subject to policy limits, and that it only applies to policies issued to insureds with less than 100 employees. Given the fact that almost every business in New York is impacted by COVID-19, this proposed bill might have an alarming impact for insurers. Thanks to John Lang for contributing to this post. Please email Heather Aquino with any questions. Previous Next Contact

News Don't Admit That! Notice To Admit Cannot Include Ultimate Issue in Case (NY) July 11, 2013 < Back Share to: Parties often utilize a Notice to Admit in anticipation of trial, in order to stipulate to agreed upon issues, thereby saving time, expense and needless disputes prior to and during trial. However, if an issue is not necessarily "agreed upon," then a Notice to Admit is, technically, an inappropriate device. In Ramcharran v. Airport Services New York , LLC, a plaintiff asked the Court to deem, via Notice to Admit, that on the date of loss, "the motor vehicle owned and operated by the defendants was in contact with the plaintiff." Plaintiff served this Notice pre-discovery, and defendants clearly had objections to that unconfirmed admission. After moving for a protective order as per the CPLR, Judge Hart in Queens Supreme Court denied defendant's motion. The Second Department reversed, citing both the inappropriate use of the protective order, and more importantly to attorneys, the defendants' timely objection thereto via CPLR 3103 motion. The lesson here is that the defendant's motion for a protective order was timely - had counsel waited several months to so move, it is unclear when the Second Department would have been as receptive. As an aside, attorneys should always read Notices to Admit carefully, as they may contain one prejudicial admission buried within several innocuous admissions, in an effort to "sneak a fastball past" opposing counsel. While such a tactic could be considered unfair dealing, it's always better to spot such dealing earlier than later. Special thanks to Brian Gibbons for his contribution. For more information contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Motion to Transfer Venue for Forum Non-Conveniens Cited COVID-19 Concerns in Philadelphia County March 12, 2021 < Back Share to: The Philadelphia Court of Common Pleas recently granted a motion to transfer venue to York County, PA in the Arceo et. al. v. AMF Bakery Systems, et. al. lawsuit. The motion to transfer venue pursuant to the doctrine of forum non conveniens derives from rule Pa.R.C.P. 1006(d)(1), which states “[f]or the convenience of parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.” Defendants Hanover Foods Corporation, Wege Pretzel Co., Inc., and Bickel’s Snack Foods, Inc. (“Defendants”) argued that the accident occurred in York County, plaintiffs reside in York County, no defendants are located in Philadelphia County, and the evidence and witnesses are centered in York County, PA. Notably, Defendants’ motion also stated that several witnesses were concerned about contracting COVID-19 in Philadelphia County. Defendants’ motion further noted that a request for witnesses to appear via video at trial would severely prejudice the defendants. Plaintiff’s opposition stated that “COVID-19 is not a basis for transferring venue, nor are the witnesses’ stated fears of contracting COVID-19 in Philadelphia.” The Philadelphia Court of Common Pleas ultimately granted the motion to transfer venue to York County, PA with a one page order that did not address the defendants’ COVID-19 concerns. The Courts will likely see many more cases wherein the venue is sought to be transferred based on Covid-19 concerns. Thanks to Emily Finnegan for her contribution to this post. Should you have any questions, please contact Tom Bracken . Previous Next Contact

News When Disclaiming Coverage, Publish or Perish (NY) August 2, 2019 < Back Share to: Coverage analysis can be complicated. Conducting the necessary research and evaluation of all potential variables is often difficult and complicated. But a recent Second Department ruling in AVR-Powell-C-Dev.-Corp.-v-Utica-First-Ins.-Co. serves as a stark reminder that even after an insurer is satisfied a loss or claim is not covered, the analysis does not end there. In AVR-Powell, the plaintiffs were additional insureds seeking a declaratory judgment for defense and indemnification from the defendant insurer. Utica First had issued a policy to its named insured, a subcontractor on a construction project, and plaintiff qualified as an additional insured pursuant to the policy language and plaintiff’s contract with the named insured. In 2008, when one of the named insured’s employees was injured on the job, a co-insurer tendered a claim for indemnification on behalf of the plaintiffs to Utica First, and did so again when the injured employee filed suit in 2009. Utica First promptly served a disclaimer to the named insured in 2008, and then to the co-insurer in 2009. The underlying personal injury matter eventually went to trial in 2015 at which point plaintiffs raised Insurance Law §3402(d), requiring prompt disclaimer, to seek defense and indemnification. They argued that because Utica First had failed to publish their disclaimers directly to the additional insureds, and because the disclaimers relied solely on an exclusion, Utica First had lost its opportunity to disclaim coverage as to plaintiffs. The Second Department agreed, affirming summary judgment in favor of plaintiffs, requiring Utica First to assume defense, indemnity and past defense costs for plaintiffs. It is a reminder in New York to publish disclaimers to any and all claimants—not just the entity tendering coverage—promptly to avoid a costly error. Thanks to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Jury Sides With The Mouse Against Disney Adults In VIP Club Lawsuit September 4, 2024 < Back Share to: At a time when Disney’s legal team is in the news for all the wrong reasons, the House of Mouse has won a victory against a couple who claimed they were improperly removed from the roll of the Mega-Exclusive private Disneyland social club, Club 33. Club 33 is a semi-secret, exclusive club for high-net-worth Disney adults. Located in Disneyland’s New Orleans Square behind an unassuming blue door lies a members-only dining room and lounge where the VIPs mingle and filming is prohibited. Membership in Club 33 is reported to come with a $50,000 initiation fee, along with a more than $15,000 annual fee per person. This is, of course, on top of regular admission to the famously expensive park. Despite this cost, interested parties can wait more 15 years to get accepted into the lofty ranks. Scott and Diana Anderson became members of Club 33 in 2012 after being on the waiting list for nine years. As reported by the LA Times , the couple had made the Club the center of their social life. They brought friends, acquaintances, and business associates. As a couple, they claim to have gone on the Haunted Mansion ride nearly 1,000 times. The couple reportedly spent close to $125,000 annually on Disney outings. It is no surprise then, that when Scott and Diana Anderson were unceremoniously dropped from the ranks in 2017, the couple attempted to rejoin the ranks by any means necessary. This expulsion occurred after Scott was found one night outside California Adventure slurring, having difficulty standing, and smelling of alcohol. This was not this the first time that the couple had run afoul of Club 33. In August 2016, the couple were temporarily suspended when Diana caused a disruption in the Club 33 restaurant, shouting and using profanity. The couple were alerted in writing at that time that “if another infraction of the Club 33 Rules/Guidelines occurs, the Club 33 Membership will be subject to termination.” Accordingly, when Scott was found, apparently intoxicated, their membership was promptly revoked. After Disney refused to allow the couple to rejoin the ranks of Club 33, the couple brought a lawsuit in December 2017 in the Superior Court of Orange County, captioned Carlton Enterprises, Inc. v. Walt Disney Parks & Resorts U.S., Inc. The couple claimed that Scott was not intoxicated, and was instead suffering from the symptoms of a vestibular migraine. This condition can be triggered by red wine – one of the 3 drinks Scott admits to having that day. The couple argued that their expulsion amounted to discrimination for Scott’s medical condition. In their complaint, the couple demanded reimbursement for unused membership time in 2017, along with $231,000 – the equivalent of seven years in the club. Disney responded, and cited the Club 33 Guidelines: “Club 33 Membership is a privilege and not a right; therefore, immediate termination may be deemed as an appropriate step to resolve an issue after review of the matter by Club 33 Administration. There will be no refund of either the initiation fee or annual dues in the event of the termination of Club 33 Membership account.” The Guidelines forbid members of Club 33 from public intoxication in Disney parks. The case made it before a jury last month, where Disney continued to state that the Andersons were expelled in accordance with the Club 33 Guidelines. The jury sided with Disney in the matter, rejecting the claim that the expulsion was improper. After the verdict, Scott spoke with the LA Times. “My wife and I are both dead set that this is an absolute wrong, and we will fight this to the death. There is no way we’re letting this go.” The couple has spent $400,000 on the suit to date, but say that they will appeal the verdict. We understand Mickey could not be reached for comment. Previous Next Emily C. Walpole Emily C. Walpole Of Counsel 332 345 2226 ewalpole@wcmlaw.com Contact

News Coffee Break Bonanza: Jury Award For Spill Reduced By Appellate Division June 11, 2008 < Back Share to: In Griffin v. Starbucks Corporation, the plaintiff was injured when defendant's employee slid a cup of coffee across a counter toward plaintiff, causing it to spill on her left foot and burn it. A trial resulted in a jury award of $50,000 for past pain and suffering and $250,000 for future pain and suffering. After post trial motions, the trial court ordered a new trial unless plaintiff agreed to $150,000 as the award of future pain and suffering. The Appellate Division, First Department found the future pain and suffering award deviated materially from what would be reasonable compensation and ordered a new trial unless plaintiff agreed to an award of $25,000. http://www.courts.state.ny.us/reporter/3dseries/2008/2008_05009.htm Previous Next Contact

News Who Pays Where Multiple CGL Policies Confer Additional Insured Status on the Defendant (NY)? June 18, 2013 < Back Share to: In Murnane Bldg. Contrs., Inc. v Zurich Am. Ins. Co., the plaintiff was the general contractor on the subject construction project. Darby Oakes, an employee of subcontractor J.T. Erectors was injured on the job and commenced a lawsuit against Murnane, Luck Bros, Inc., and others to recover damage for personal injuries. Luck Bros. had a CGL policy issued by Zurich Insurance Company that conferred additional insured status to Murnane. Murnane filed this declaratory judgment to enforce its claimed entitlement to a defense and indemnification based on the additional insured provision. Zurich in turn commenced a third-party action against Lexington Insurance Company, J.T. Erectors insurer, on the basis that Lexington had the duty to defend Murnane since Murnane was listed as an additional insured under Lexington’s CGL policy. Both policies purported to be excess over other insurance policies covering the same risk. On Murnane’s summary judgment motion, the trial court held that Zurich and Lexington were required to provide a defense to Murnane on a primary, pro-rata "co-basis" and, in effect, that Murnane was entitled to recover only 50% of the costs incurred by it or on its behalf in defending the underlying action. On appeal, the Second Department reversed the trial court’s decision noting that “where there are multiple policies covering the same risk, and each generally purports to be excess to the other, the excess coverage clauses are held to cancel out each other and each insurer contributes in proportion to its limit amount of insurance.” Furthermore, examining the facts surrounding the injury, the Court found it significant that Oakes’ injury arose out of work Luck Bros. was performing for Murnane and not through work J.T. Erectors was performing. By the plain terms of the Zurich policy, these facts warranted that Zurich was obligated to fully defend and indemnify Murnane on a primary and non-contributory basis. Special thanks to Michael Nunley for his contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News NY's Plans for a Direct Competitor to Lloyd's Are Gaining Momentum. January 6, 2010 < Back Share to: We have previously commented on NY's plans to reopen a New York Insurance Exchange. It appears that the reopening of the exchange will be a priority of NYS Governor Patterson heading into an election year. In his State of the State Address earlier today http://www.ny.gov/governor/press/press_01061001.html, Governor Patterson announced that, assuming industry interest, his administration plans to create a New York Insurance Exchange and have it operational "as soon as possible." http://www.insurancejournal.com/news/national/2010/01/06/106431.htm Previous Next Contact

News NJ Insurer's Bad Faith Failure to Settle Issue for Fact Finder July 29, 2010 < Back Share to: When a jury returns a verdict well in excess of an insured’s policy limit after an insurer refused an offer to settle within the limit, a bad faith claim is not a matter of strict liability. In fact, the determination of whether the insurer acted in bad faith is a fact sensitive question that generally will require a plenary hearing or trial. In Wood v. New Jersey Manufacturers Ins. Co., the plaintiff postal worker alleged cervical and lumbar injuries were caused when she backed into a fence and a dog jumped up on her. She had cervical and lumbar surgeries and contemplated further surgery as the trial approached. A court appointed arbitrator had awarded the plaintiff $600,000 attributing 90% to the insured for a net award against the insured dog owner for $540,000, $40,000 above the policy limit. The defense rejected the arbitrator’s award, and at trial, the jury awarded a total of $2.4 million with an allocation of 51% to the insured (49% to the co-defendant property owner) for a net verdict of $1.4 million. Notably both the claims adjuster and the defense attorney had recommended settlement within the policy limit, but this had been rejected by the insurer’s Major Claims Committee. In an appeal by the insurer of summary judgment on the bad faith claim, the Appellate Division reversed and ordered further proceedings that would address the insurer’s reasonableness in their evaluation of the claim. The court recognized that an insurer could disagree with its counsel and even its adjuster’s evaluation of the case. A full hearing would give the insurer an opportunity to explain why it did so and allow a fact finder to fully assess the credibility and persuasiveness of the witnesses. Thus, an insurer is not expected to be “gifted with the powers of divination or of accurate prophecy,” and it will not automatically be held in bad faith when a jury awards an amount in excess of the policy limit. On the other hand, the insurer will need to be prepared to persuade a fact finder of the reasonableness of its actions. If you have any questions or comments about this post, please email Denise at dricci@wcmlaw.com . See Wood v. New Jersey Manufacturers Ins. Co. at http://www.judiciary.state.nj.us/opinions/a1768-08.pdf Previous Next Contact

News Chip George Joins WCM’s Florida Office February 2, 2021 < Back Share to: WCM is pleased to announce that Chip George has joined WCM’s Miami, Florida Office. Chip has been a friend of WCM’s for years and we are beyond excited that the timing has finally worked out for us to formally work together. WCM’s Florida office focuses on coverage and coverage litigation. The office stands ready to assist in everything insurance law from cargo, jeweler’s block/specie to homeowner’s, hurricanes and general liability. For more information about our Florida office or what it can do for you, please contact WCM’s Operations Attorney Chelsea Rendelman or Chip, himself. Previous Next Contact

News Defeat Snatched From Expert Hands of Victory (NY) September 28, 2016 < Back Share to: There are cases where the facts present solid defenses to some or all of the plaintiff’s causes of action. Yet, favorable facts alone will not necessarily win the case. Consultation with the appropriate experts and skillful presentation of evidence is necessary to make those facts work for the defense. This was keenly apparent in Mazella v. Hauser, where the New York Second Department reversed summary judgment for the defendant on a conscious pain and suffering claim. The case arose out of a fatal pedestrian-vehicle accident in which the pedestrian’s estate sought both wrongful death and conscious pain and suffering damages. The medical evidence suggested that plaintiff’s decedent suffered so traumatic a brain injury that there could be no conscious pain and suffering – and the defense won the issue in the lower court. The Second Department, however reversed, finding that the defendant failed to make a prima facie showing of her entitlement to judgment as a matter of law. As the Second Department noted, "An expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable." Defendant’s doctor’s letter in support of the motion did not set forth what skill, training, knowledge, or experience the doctor possessed in the relevant areas of medicine so as to ensure the reliability of the opinion regarding the decedent's time of death and whether the decedent suffered conscious pain before her death. Further, the court found that the doctor’s opinion was conclusory and speculative and, thus, of no probative force. The expert’s opinion relied upon "findings" that the decedent had no vital signs when brought to the hospital, that there were open skull fractures showing contused and lacerated brain tissue, and that the hospital certified the cause of death as traumatic cardiac arrest. Based upon these findings, the doctor opined that due to severe brain injury, the decedent did not suffer conscious pain since the brain is the “essential organ that feels the pain.” This was insufficient, in the appellate court’s opinion, to adequately explain how these findings led to the conclusion that the decedent died immediately after the collision and did not suffer conscious pain before her death. It is incumbent upon the lawyer to select the proper expert and demonstrate to the court that the expert is qualified to give a reliable opinion in the respective field. When presenting an expert opinion in support of a summary judgment motion, the opinion should set forth adequate grounds for arriving at the conclusion that the lawyer seeks to have the court adopt in rendering its decision. Thanks to Vincent Terrasi for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News City of NY expects lawsuit from "Displaced Boaters" September 5, 2012 < Back Share to: Abandon Dinghy! A day out on a small boat, while a lovely way to spend a warm afternoon, has its pitfalls. Boats are expensive to maintain, and one must always be cognizant of suddenly bad weather. Apparently, Mr. and Mrs. Higgins can add "beware of rogue NYPD boats" to the list. On August 20, 2012, John Higgins and his wife Mary Ann were forced to jump from their small dinghy into Jamaica Bay when they observed an NYPD boat heading straight towards them. Immediately after jumping from their boat, the NYPD vessel crashed into their boat. It is unclear whether their eventual suit will involve any claims beyond property damage. If not, the City would be wise to settle this matter without much haggling, seeing that the Higgins family likely saved the City a sizable personal injury settlement by jumping from the dinghy, rather staying on board for the crash. Thanks to Brian Gibbons for this contribution. Previous Next Contact