News Piercing the Veil of Religious Organizations (NY) August 13, 2021 < Back Share to: Tax-exempt religious organizations are known for keeping the details of their financial situation under tight wrap. This can make certain situations difficult, particularly during litigation when those details might be relevant to the subject issue. But what about in the context of a religious organization as an insured? How much information is enough, and how deep can an insurance company dig? The question here is whether certain details of a religious organization’s financial details can be revealed to an insurance company and to what extent. Thankfully, the First Department addressed this very issue in Church of St. Matthew v. Aetna Cas And Sur Co. Plaintiff in that case was an Anglican Catholic Church insured by defendants, Aetna Casualty & Surety Co. The church had sustained major losses when a fire of unknown origin destroyed the church building and everything inside. The Church was insured under a comprehensive policy and was covered for loss and damage caused by the fire, and so a claim was naturally filed. However, in addition to other documents, the defendant insurance company sought very detailed financial information of their insured, including: (1) authorizations for all bank records maintained; (2) a list of monthly expenses for the church; (3) a reporting of the income of the church, including the names of donors and the amounts donated; (4) copies of tax returns for the church, as well as for its board of officers and directors; (5) a list of the salaries of the board of directors and officers; and (6) an authorization to the Internal Revenue Service to obtain documents that were seized by that agency in an unrelated matter. The plaintiff church objected to this overbroad request, arguing that they had already provided all relevant documents, including bank statements from four different banks, and that the additional documents requested by the defendant insurance company either did not relate to the subject matter of the insurance or was otherwise protected by the church’s code of confidentiality. Meanwhile, the defendant insurance company maintained that they were entitled pursuant to a provision in the policy which stated that the insurer “may examine and audit the named insured’s books and records at any time during the policy period and extensions thereof and within three years after the final termination of this policy, as far as they relate to the subject matter of this insurance.” The First Department ultimately held that the defendant insurance company was entitled to the requested documents insofar as they are material and relevant to the issue of the plaintiff church’s financial status at the time of the fire. Not only that, the plaintiff church was also obligated to permit the insurance company to examine and audit its books and records, pursuant to the contractual provision within the policy. However, the Court did hold that there was no sufficient basis for the defendant insurance company to access the personal financial information of the plaintiff church’s board of directors and officers, or the names of any church donors. A lesson to read the provisions of any insurance policy carefully, as they will likely control. Thanks to Tristan Montaque for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Tossing Up Bricks: Former NY Knicks Star Loses Assault Claims (NY) November 24, 2021 < Back Share to: On remand, in Charles Oakley v. MSG Networks, et al., the United States District Court of the Southern District of New York granted defendants NY Knicks owner James Dolan and Madison Square Garden Co.’s motion to dismiss Charles Oakley’s claims of assault and battery. On February 8, 2017, Oakley was escorted out of his seat by MSG security guards and arrested while attending a Knicks game due to his inappropriate behavior. The incident had been filmed by ESPN, security cameras, and bystanders, with one particular moment revealing Oakley demonstrably putting his finger in one guard’s face and pushing his face. After the incident, the Knicks organization and Dolan made public statements claiming that Oakley was expelled for being drunk and verbally abusive to fans and MSG staff. In granting dismissal, the Court reasoned that Oakley failed to show the MSG security guards used “objectively unreasonable” force to remove him. On the contrary, the admissible video footage showed that (1) the guards asked Oakley to leave, (2) they gave him a chance to leave, and (3) when he refused to leave, and escalated the confrontation, the guards removed him with the reasonable and appropriate force necessary. No rational jury would believe otherwise. As such, conduct that contributes to an escalation – like a finger to the face – may be sufficient to warrant dismissal of assault and battery claims. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, please contact Matthew Care. Previous Next Contact

News Second Circuit Rules Discrimination Based on Sexual Orientation Violates Federal Law (NY) March 2, 2018 < Back Share to: On Monday, February 27, 2018, in Zarda v. Altitude Express, the Second Circuit Court of Appeals ruled that discrimination on the basis of sexual orientation is against federal law as unlawful discrimination, subsumed under discrimination on the basis of sex, as defined by the Civil Rights Act of 1964. The Second Circuit, which covers New York, Connecticut, and Vermont, joins the Sixth Circuit in holding that gay employees may not be discriminated against on the basis of sexual orientation. This case arises out of a claim of unlawful termination – Zarda claimed he was fired because he was gay. This en banc decision overruled a previous Second Circuit decision which held that, while sexual orientation discrimination should be outlawed as a policy matter, the plain reading of the statute did not encompass sexual orientation. Here, however, the Court determined (in part) that the associational claim. (i.e. that Zarda was fired because his boyfriend was gay) was enough to determine that Zarda was fired because of his sex. In other words, if Zarda’s significant other were of the opposite gender, he would not have been fired. This 10-3 decision is noteworthy, in part, as two different government agencies appeared on opposite sides of the case. The Equal Employment Opportunity Commission (EEOC) supported Zarda and argued that the Civil Rights Act of 1964 outlawed discrimination on the basis of sexual orientation whereas the Department of Justice, in a reversal of the Obama Administration’s position, argued that sexual orientation discrimination was not covered under the aegis of the Civil Rights Act of 1964. This is the third circuit court to rule on this question in the last 12 months – and the results have causes a circuit split, which raises the specter of a possible Supreme Court showdown. Thanks to Matt Care for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News NJ: Counsel's Inflammatory Comments Do Not Warrant A New Trial June 20, 2012 < Back Share to: Barbara Jones filed suit against Albert Pannici for injuries sustained in a motor vehicle accident. In turn, Pannici filed a third-party complaint against a phantom driver he claims caused the accident. Jones’ insurer, Allstate, intervened due to their potential liability under the Uninsured Motorist provision of Jones’ automobile insurance policy. At trial, Allstate’s attorney made several statements to suggest that Pannici was not telling the truth as to the cause of the accident. Specifically, in his opening and closing statements, counsel alleged that Pannici became nervous after the accident and lied about the phantom vehicle. Additionally, during his cross-examination, counsel attempted to elicit testimony to suggest that Pannici’s status as a former police officer made it easy for him to concoct a story about the phantom vehicle. Pannici’s attorney did not object to any of the comments made. Ultimately, the jury returned a substantial verdict against Pannici. Pannici moved for a new trial, arguing that Allstate's counsel's comments in the opening, during the cross-examination and in summation led the jury to believe that something improper had occurred and that Pannici was not being truthful. The court disagreed with Pannici’s position and found that the comments made by counsel for Allstate did not amount to error so prejudicial as to require a new trial. Rather, the court found that there was sufficient evidence for the jury to reject Pannici’s version of the accident. Thanks to Heather Aquino for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a4834-10.pdf Previous Next Contact

News Volunteer or Employee: Who Is Protected by New York Labor Law? (NY) December 30, 2021 < Back Share to: To fall under the class of those protected by the New York Labor Law, a plaintiff must establish that he or she was permitted or “suffered” to work on a building or structure and that they were hired by the owner, contractor, or their agent. Volunteers are generally not entitled to Labor Law protection but what is the difference between an employee and volunteer under the statute? In Garcia v. 13 W. 38, LLC, 73 Misc. 3d 434 (N.Y. Sup. Ct. 2021), a New York trial court recently evaluated this question. Plaintiff in that case was hired by an elevator mechanic employed by Uplift Elevator Corp., to assist him in wiring an elevator. Plaintiff was injured when the mechanic accidentally activated the elevator while plaintiff was standing on top of the elevator cab. Discovery revealed that although plaintiff was compensated for his work and given an Uplift Elevator t-shirt to wear, this was done solely by the mechanic. The mechanic had no authority to hire plaintiff and was acting without his employer’s knowledge or authority in doing so. Defendants moved to dismiss the Complaint on the grounds that the Labor Law did not apply to plaintiff under the circumstances. Based on these facts, the court held that plaintiff had no reasonable basis to believe he was employed by Uplift Elevator and that no employment relationship existed with any owner, contractor, or agent on the job. The court noted that “the fact that plaintiff gained admittance to the worksite does not indicate he was ‘suffered’ to work.” The court found that since no contractual relationship existed between Uplift Elevator and plaintiff, he was considered a volunteer and trespasser with no authority to work on the premises. Accordingly, the court found that he was not entitled to Labor Law protection and dismissed the Complaint. The takeaway from Garcia is that New York Labor Law will not apply in cases involving workplace injuries to volunteers or those not contractually authorized to perform the work. Thank you to Gabriella Scarmato for her contribution to this post. Please contact Andrew Gibbs with any questions. Previous Next Contact

News Long Road for NY Auto Insurers Even When Limits are Exhausted January 12, 2012 < Back Share to: Louis Amelia, a National insured, lost control of his vehicle and injured several individuals, resulting in a number of lawsuits. National initially disclaimed coverage, but was ordered to provide primary coverage in a declaratory judgment action, with Liberty providing excess. National settled a number of the lawsuits, and exhausted its $1 million coverage limits. National therefore refused to pay about $50,000 in additional defense costs because its limits had been exhausted. Indeed, the National policy provided that its duty to defend ended when its limits were up. Seems simple, right? Not in the world of New York auto coverage. Liberty filed suit, and the appellate court held that, pursuant to New York Insurance Department regulations and other precedent, National was not off of the hook despite the policy language and despite having no limits left. New York law requires an automobile liability insurer to pay all defense costs until a case ends. The trial court decision awarding Liberty summary judgment was thus upheld. If you would like more information about this post, please write to mbono@wcmlaw.com Previous Next Contact

News Misrepresentation and Non-Cooperation Operate to Bar Coverage January 28, 2011 < Back Share to: In a recent NJ Appellate case, plaintiffs Inchon, L.L.C., Russian Radio Network, L.L.C., and WRBS Radio Ethnic Media Partners MVI (collectively "Inchon" or "plaintiffs") appeal from the dismissal of their complaint on a summary judgment motion by defendants The Hartford Fire Insurance Company and The Hartford Insurance Company of the Midwest (collectively "Hartford" or "defendants"). On October 10, 2005, an alleged burglary occurred at the Inchon’s location, during which a significant number of servers and encoders were stolen. Inchon subsequently filed a police report and claims under its Hartford policies. Hartford undertook an investigation of the claims, and discovered that Inchon had made a misrepresentation when asked whether the company had made any other prior insurance claims. It was discovered that in 2003, Inchon made a claim with their previous insurer, Traveles Insurance, that was denied when it was determined that the claim was fraudulent. After Hartford denied Inchon’s claim, Inchon filed suit against Hartford seeking coverage for the allegedly stolen equipment. Hartford moved for summary judgment and argued that Inchon breached the terms of the insurance agreement by misrepresenting that it had not filed a previous insurance claim with Travelers and failing to cooperate with the investigation. The appellate court found no evidence that the misrepresentation was a mere oversight or mistake, and concluded that Hartford was justified in the denial of coverage. Further, Inchon’s abstract statement that "Inchon cooperated fully and to the best of [its] ability" was insufficient to overcome Hartford's evidence demonstrating the contrary. "[I]t explains nothing when compared to the voluminous information in terms of questions asked and the examination under oath, the follow up letters and correspondence." The granting of summary judgment was affirmed. Thanks to Sheila Osei for her contribution to this post. http://www.judiciary.state.nj.us/opinions/a3919-08.pdf Previous Next Contact

News NJ District Court Provides Useful Coverage Analysis in Pizza Crust Litigation (NJ) June 18, 2020 < Back Share to: In Conte's Pasta v. Republic Franklin Insurance Company, Judge Reneé Bumb of the District Court of New Jersey expertly weaved through differing allegations levied against an insured in determining whether its insurer owes a duty to defend. The court’s holding resulted in Republic Franklin Insurance Company (“RFI”) owing a duty to defend Conte’s Pasta in the underlying action. However, the decision is notable for its proficient analysis of three different coverage issues: the application of a policy exclusion, the notion that economic damages are not “property damage” caused by an “occurrence,” and that while one cause of action may be intentional, it is nonetheless covered absent specific allegations that the insured acted intentionally. Conte’s Pasta was sued in federal court in Ohio by its customer, Nature’s One. In the underlying action, Nature’s One alleged that it contracted to use Conte’s Pasta’s manufacturing facility to make its pizza crusts which it sold to Trader Joe’s. Within a few months, however, the Conte’s Pasta facility became contaminated with Listeria Monocytogenes, the cause of listeriosis. Nature’s One alleged that Conte’s Pasta failed to quarantine the contaminated crust, which resulted in Trader Joe’s returning the crusts and Nature’s One issuing a $150,000 refund. In addition, Trader Joe’s required an audit of the Conte’s Pasta facility, which it failed, ultimately causing Trader Joe’s to cease ordering through Nature’s One. Finally, Nature’s One alleged that Conte’s Pasta failed to return its packaging equipment after the audit. Conte’s Pasta tendered the defense of that suit to RFI, which denied coverage. In the ensuing coverage litigation in New Jersey, the court looked at the three distinct theories of liability pled by Nature’s One: (1) the claims related to the contamination, which resulted in Nature’s One having to pay $150,000, (2) the failed inspection claims, which resulted in Trader Joe’s ceasing its orders with Nature’s One and causing lost profits, and (3) the claim for conversion arising from Conte’s Pasta’s failure to return the equipment. With respect to the contamination claims, the court held that they are precluded by an exclusion in the RFI policy which barred coverage for damage “for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of” the insured’s product. Given the exclusion’s plain language, and Conte Pasta’s apparent conceit that the exclusion applied, the court held there was no coverage for these claims. Regarding the failed inspection claims, the court held that they did not constitute “property damage” caused by an “occurrence.” The court thus held: “The failed inspection claims are not premised on any alleged damage to tangible property. They are based on the alleged injury to Nature’s One’s business relationship with Trader Joe’s which allegedly resulted in loss of goodwill and lost profits. Such an economic loss is not intended to be covered by general commercial liability policies.” However, the court held that RFI had a duty to defend Conte’s Pasta with respect to the conversion claim. While conversion can be an intentional tort (and thus excluded under the policy) under both New Jersey and Ohio law, that is not necessarily the case. Rather, a defendant can be liable for conversion even if it was acting under a misapprehension. Because the underlying allegations did not specify that Conte’s Pasta acted intentionally in failing to return the equipment, the court held that RFI was obligated to defend Conte’s Pasta, and potentially indemnify it for the conversion claim. Thanks to Douglas Giombaresse for his contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News Police Report and Settlement Check Inadmissible in Auto Case (NJ) September 15, 2017 < Back Share to: Police reports are often important evidence in car accident cases, and the admissibility of such a report was a key issue in a recent case in New Jersey, Almonte v. Ulloa Tineo, The defendant was driving through an intersection with a green light when he was struck by another vehicle on his passenger side, which drove through a red light. The impact caused defendant’s car to strike two other vehicles, including plaintiff’s parked car. At trial, plaintiff testified that she did not witness the accident. However, she sought to introduce a police report into evidence where the responding police officer attributed fault for the accident to the defendant. The police report’s narrative included information from an unidentified witness. Over defendant’s objection, the trial court admitted the police report into evidence under the business records and public records hearsay exceptions. The trial court also admitted a letter and check sent to plaintiff from defendant’s insurer, which offered the property damage policy limits because it had determined that defendant’s car was responsible for the accident. Relying only on the police report and the insurer’s settlement offer, the trial court entered a judgment in favor of plaintiff. On appeal, the Appellate Division reversed the trial court’s judgment because the documents were inadmissible to prove defendant’s negligence. Although police reports are typically admissible under the business record and public record hearsay exceptions, the trial court failed to scrutinize the hearsay statements contained within the police report. Specifically, the police report narrative was not based on the police officer’s observations but came from an unidentified witness. In addition, relying on NJRE 408, which provides that settlement offers and negotiations cannot be used to establish liability, the Appellate Division held that the insurer’s settlement offer was inadmissible. Although the settlement check could be considered for the purposes of adjusting damages, it could not be used to determine defendant’s liability. Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Coronavirus Pandemic and WCM March 13, 2020 < Back Share to: The news cycle as it pertains to Coronavirus seems to be changing by the minute, and WCM has been monitoring these updates along with everyone else. In the wake of increased governmental warnings issued related to the pandemic, Wade Clark Mulcahy LLP remains fully operational. However, in light of the uptick in quarantines in the areas where we practice, as well as the likely limitations on travel within high-density population areas like New York and Philadelphia, we are strongly encouraging all attorneys and staff to work remotely, from their homes, effective today (March 13, 2020.) All attorneys will have full access to their digital files, and we expect to conduct "business as usual" as we continue to monitor the situation. But because most of us will not be physically at our desks, email will be the most effective means to reach us. And if you are checking our website for information regarding our Court and Deposition calendar, please contact Marlynn Saintil at MSaintil@wcmlaw.com . Lastly, we wish good health and safe travels to our friends, partners, clients -- and even our adversaries 😉 – during these unique times, and a heartfelt thanks to the medical professionals working around the clock right now. Stay safe and be well. Previous Next Contact

News Hills and Ridges Doctrine Prompts Dismissal of Suit (PA) October 17, 2018 < Back Share to: On October 15, 2018, the Superior Court of Pennsylvania affirmed an entry of summary judgment in favor of defendant Jeanne Coker in Seibert v. Coker. The case stems from a patch of black ice on Coker’s property which allegedly caused plaintiff to slip-and-fall and injure herself. On February 6, 2014, T. Seibert slipped on a patch of black ice as she was departing from her home visit to Coker. In Pennsylvania, the “hills and ridges” doctrine protects landowners from liability for generally slippery conditions resulting from snow and ice where the owner has not permitted the ice and snow to unreasonably accumulate in ridges and elevations. Thus, in order to recover for a fall on an ice or snow covered surface, a plaintiff must prove: (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. T. Seibert attempted to claim that Coker had constructive notice of the patch of ice, however, she produced no evidence to support this point. As such, the trial court granted summary judgment in favor of Coker and the Plaintiffs’ subsequently appealed. On appeal, Plaintiffs’ claimed they produced enough evidence to survive summary judgment, but the Superior Court held that no evidence had been produced to support Plaintiffs’ accusation that Coker had notice, actual or constructive. of the black ice. As such, the Superior Court affirmed the dismissal. This case highlights the high burden that the hills and ridges doctrine imposes on plaintiffs in Pennsylvania, and the difficulty of proving constructive notice in such cases. As such, focusing on this particular element is crucial in determining whether a summary judgment motion is appropriate early on in a slip-and-fall case. Thanks to Garrett Gitler for his contribution to this post. Please contact Brian Gibbons with any questions. Previous Next Contact

News Happy Thanksgiving From Our WCM Family To Yours! November 23, 2016 < Back Share to: We wish you all a happy holiday! Previous Next Contact