News Landlord Not Liable For Repairs Unless The Lease Requires (NJ) June 9, 2023 < Back Share to: In McCauley vs. American Property Management Group, LLC, Plaintiff brought forth an appeal from a March 18, 2022 order granting Defendant Summary Judgment. William Marley is defendant’s principal and sole owner. Marley is employed by American Millwright and Rigging (AMR), a business that builds, repairs, and moves heavy machinery and equipment. Plaintiff worked at AMR as a mechanic and Marley was his boss. Marley claimed that AMR paid rent to defendant American Property Management Group, LLC, for the use of the property, paid the utilities, and was responsible for maintenance and repairs to the property. Plaintiff was working for AMR on defendant’s property. He and another employee were instructed by Marley to use a forklift to lift an extruder and place it on a flatbed truck. During the course of carrying out these instructions, an extruder fell over and struck Plaintiff’s leg. The area on which the forklift was operated was made of compacted gravel. AMR employees use that specific area on the property for loading activities because it is flat and free of potholes. Defendant American Property Management Group moved for Summary Judgment, claiming there as no factual dispute that AMR rented the property from defendant and performed all maintenance and repairs on the property. Defendant alleged that it did not owe Plaintiff a duty and was not liable for any injuries Plaintiff may have sustained while working on the property. The trial judge granted Summary Judgment in favor of Defendant, finding there was unrefuted testimony that AMR was responsible for the maintenance and repairs to the property. Additionally, the judge determined that the composition of the property was not a dangerous condition and that Plaintiff had not established Defendant was aware of any dangerous condition. Plaintiff appealed, asserting that the trial court erred in granting Defendant Summary Judgment because there were disputed material facts regarding the existence of a lease, the instructions to Plaintiff regarding the forklift, and whether there was a defective condition on the property. Relying on McBride v. Port Auth. of N.Y. & N.J., the Appellate Court held that the burden to make repairs falls upon the tenant in the absence of an agreement stating otherwise. In other words, in the absence of an agreement to make repairs, the landlord is under no obligation to do so. As such, the Appellate court held the facts that Plaintiff alleged were disputed were found to be immaterial and affirmed the trial court’s decision. Thanks to Steve Kim for his contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact

News Forum Shopping Comes Up Empty (PA) September 23, 2022 < Back Share to: In a recent ruling from the Superior Court of PA, Kendall v. Ford Motor Company, the Court affirmed a lower Court granting defendant’s motion to transfer based on forum non conveniens. The complaint concerned a traffic accident that occurred in Bucks County, yet plaintiff’s counsel filed the complaint in Philadelphia County, a plaintiff friendly trial pool. The court held that because the accident, the defendant, and all witnesses resided in Bucks County Philadelphia was improper venue affirming the lower Court’s order. Plaintiff’s counsel brought the case in Philadelphia County hoping to gain the benefit of Philadelphia’s jury pool. The plaintiff argued for jurisdiction on manufacturers and retail sellers of the plaintiff’s car from Philadelphia, bringing claims of strict liability, negligence, and breach of warranty. Defense moved to transfer the venue to Bucks County using three compelling arguments. First, Bucks County provided access to witnesses. Second, the plaintiff was a resident a Montgomery County and worked in Bucks County. All defendants were residents of Bucks County. Third, the accident occurred in Bucks County and was investigated by local police. The defendants further bolstered their argument using affidavits of witness hardship. Based on all of the above the Court affirmed the lower Court’s ruling that the Bucks County was the proper venue for the claim, and for this case at least, the Court shut down an ambitious plaintiff. Thanks to Kevin Riley for his assistance with this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact

News Cheerleaders Assume Risk Of Injury August 16, 2012 < Back Share to: In Kristina D. v. Nesaquake Middle Sch., the Second Department reversed the lower court’s denial of defendants’ motion for summary judgment and dismissed plaintiff’s complaint. In doing so, the Second Department reaffirmed the long standing precedent that one cannot recover for injuries sustained in recreational activities, for those commonly appreciated risks inherent in the participation of the activity. Plaintiff was an experienced middle school cheerleader, who was allegedly injured during cheerleading practice when she fell during the performance of a "shoulder stand," a stunt she had performed many times in the past. Plaintiff sued the school district and cheerleading coach, alleging a failure to properly supervise the cheerleaders. The complaint was ultimately dismissed despite the Second Department’s acknowledgement that even if the risk is assumed, a school must exercise ordinary reasonable care to protect student athletes voluntarily involved in extracurricular sports from "unassumed, concealed, or unreasonably increased risks." In this instance, it was clear that plaintiff, an experienced cheerleader, assumed the risks involved in cheerleading and the performance of stunts. Moreover, the school made a prima facie showing that the plaintiff was adequately supervised. Special thanks to Lora Gleicher for her contributions to this post. For more information, please contact nbrown@wcmlaw.com .   Previous Next Contact

News Last Gasp for Late Notice in New York November 25, 2008 < Back Share to: The late notice defense, absent a showing of prejudice, will soon disappear in January of 2009 thanks to a new law enacted by the NY Legislature. But it's not gone yet. The Court of Appeals recently held that an insured failed to comply with the policy condition requiring notice "as soon as practicable" where nine months passed between service of the suit and notification to the insurance carrier. The insured argued that it was also unaware of the lawsuit and thus unable to provide notice, but the Court held that the insured's lack of knowledge was based on the insured's own failure to update the address maintained by the Secretary of State for notification of service. The Court stated it was "unquestionably practicable" for the insured to keep its address current with the Secretary of State, and therefore it failed to comply with the policy provision. Thus, there was no coverage for the loss. Briggs v. Hanover Previous Next Contact

News PA Court Deems Discovery Sanction as Too Harsh (PA) June 6, 2019 < Back Share to: The Commonwealth Court of Pennsylvania recently vacated and remanded a trial court’s order entering non pros against plaintiffs in a personal injury action. In Khamphouseane v Thornton, the Court determined that the trial court failed to conduct the requisite analysis before dismissing the plaintiffs’ cause of action after their repeated failure to comply with discovery demands. The lawsuit stems from plaintiffs’ collision with a Southeastern Pennsylvania Transportation Authority (“SEPTA”) bus in which Anong Khamphouseane and Susan Khamphouseane (collectively “Khamphouseane”) sued SEPTA, MV Transportation, Inc., Amica Mutual Insurance Co., and Schnika Thornton. Over the course of discovery, counsel for SEPTA served Khamphouseane with requests for medical record release forms as well as DL-503 forms authorizing the release of Pennsylvania Department of Transportation records. Since plaintiffs did not respond to these requests, counsel for SEPTA filed a Motion to Compel, which was granted on March 22, 2016. As plaintiff still failed to respond to the court’s order, counsel for SEPTA filed a Motion for Sanctions seeking out a judgment of non pros under Pennsylvania Rule of Civil Procedure 4019(c)(3). On May 19, 2016, the trial court held a hearing on SEPTA’s Motion for Sanctions. Plaintiffs’ counsel only stated that he had a hard time communicating with his clients because they recently moved out of the state and did not speak English, necessitating an interpreter for all communications. The trial court granted the Motion for Sanctions, awarding $1,500.00 in expenses and attorneys’ fees as well as striking plaintiffs’ complaint and entering judgment for non pros. On appeal, plaintiffs argued that the dismissal of their complaint was too harsh of a sanction because they quickly cured any prejudice to the defendants by providing the requested authorizations after the Motion for Sanctions hearing. Additionally, they asserted that the trial court erred because it did not assess each of the factors necessary when deciding the appropriateness of a sanction under Rule 4019(c). The Commonwealth Court of Pennsylvania deeply analyzed the second issue of plaintiffs’ appeal and stated that “[w]hen a discovery sanction has the effect of terminating the action, a ‘court must consider multiple factors balanced together with the necessity of the sanction.’” The factors include: (1) the nature and severity of the discovery violation; (2) the defaulting party’s willfulness or bad faith; (3) prejudice to the opposing party; (4) the ability to cure the prejudice; and (5) the importance of the precluded evidence in light of the failure to comply. Furthermore, the court emphasized that each factor is a “necessary consideration” and not a “necessary prerequisite.” The Court also emphasized that dismissal of an action is the most severe sanction and should be reserved for only the most extreme circumstances. The Court went on to give examples of types of prejudices that may warrant a sanction based on a delay in responding to discovery which included the fading of witness memories, the disappearance of witnesses, or the loss or destruction of relevant documents. Notably, the defendants in the instant action did not identify any prejudice related to the delayed execution of the plaintiffs’ authorizations, other than the monetary costs associated with pushing the discovery dispute. However, the Court noted that this loss was cured by the monetary award of $1,500.00 which would cover those costs. As such, the Court concluded that, because there was no clear prejudice, dismissing the complaint appeared to be too harsh of a discovery sanction. However, the Court could not evaluate whether the trial court abused its discretion because it did not address the prejudice or other requisite factors in its opinion. Thus, the matter was remanded to the trial court so that they may consider each factor and explain its rationale sufficiently to enable appellate review. Thanks to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News New Car Stacks UIM Coverage Unless Waived (PA) April 12, 2017 < Back Share to: In Pergolese v. The Standard Fire Insurance Co., the Pennsylvania Superior Court was tasked with determining whether an insured was entitled to stacking of underinsured motorist benefits. At issue was whether an added vehicle to a preexisting insurance policy provided coverage under its general terms or triggered that policy’s after-acquired vehicle provision. The distinction was significant with respect to whether the insurer was required to obtain a new stacking waiver. In the early 1990s, the Pergoleses purchased an auto insurance policy from Standard. That policy contained a continuous after-acquired vehicle provision. Over the years, the Pergoleses replaced and sometimes reduced the inventory of their vehicles. In May of 1996, the Pergoleses had four vehicles insured under their policy. The Pergoleses also signed a rejection of stacked UIM in May of 1996 in relation to the policy. In April of 1998, the Pergoleses contacted their insurance agent and requested insurance coverage for a vehicle that they were purchasing that day but did not yet own. Their agent provided them with an insurance card for the vehicle and amended the Pergoleses’ auto insurance policy’s declaration page to include the new vehicle in addition to the three that were already covered under the policy. Standard did not request a new waiver of stacked UIM coverage from the Pergoleses at that time. In 2001, Mr. Pergolese suffered severe injuries when he was rear ended by a drunken driver. He submitted a claim to Standard and asserted that he was entitled to stacked benefits. Standard denied the stacked benefits claim, and the Pergoleses filed a declaratory judgment action. After discovery, the parties filed cross motions for summary judgment. The court denied Standard’s and granted the Pergoleses’ motion. The appellate court affirmed relying on its opinion in Bumbarger v. Peerless Indem. Ins. When an insured takes ownership of a vehicle and simultaneously informs his insurer of the new vehicle, the language and purpose of the after-acquired vehicle provision in the policy is never triggered. An after-acquired vehicle provision merely extends existing coverage to a new vehicle until the insured notifies the insurer that he wishes to insure the new vehicle under his policy with the insurer. The after-acquired vehicle clause extends temporary, stop-gap coverage, thereby protecting the insured until the policy can be amended. However, once an insured advises its insurer that an new auto is to be added, the after-acquired vehicle provision is not applicable. In such event, the Pennsylvania Supreme Court’s holding in Sackett v. Nationwide, 919 A.2d 194 (2007) (“Sacket I”) is controlling. There the Supreme Court held that the addition of a new vehicle to an existing multi-vehicle policy constitutes a purchase for which the insurer must obtain a new waiver of stacked coverage. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact

News Tree Roots Are Inherent Property Condition (NY) July 6, 2017 < Back Share to: A New York landowner has a duty to exercise reasonable care in maintaining property in a safe condition. The courts look to a variety of factors with respect to this duty, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property. However, a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it. In Commender v. Strathmore Ct Homeowners Association plaintiff fell over a tree root in the side yard of her condominium unit in a common area. Her suit against the homeowners association and the property manager was dismissed on the grounds that the tree root was open and obvious and inherent to the nature of the property. The plaintiff who knew of the tree root prior to her fall simply did not present a triable issue of fact for a jury. Thanks to Laurent Tarangelo for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News WCM Is Pleased to Announce the Addition of Jim Scott to Its Philadelphia Office. October 15, 2020 < Back Share to: Wade Clark Mulcahy, LLP is pleased to announce the addition of Jim Scott to its Philadelphia office. A former President of the Philadelphia Association of Defense Counsel and an officer and vice-president of the Pennsylvania Defense Institute, Jim brings to WCM a wealth of experience handling large exposure property damage and personal injury claims in both New Jersey and Pennsylvania. An engineer by training, Jim has specialized expertise in litigating construction defect claims. Jim can be reached at jscott@wcmlaw.com Previous Next Contact

News Lawsuit by Warhol Foundation Against its Insurer Continues (NY) December 14, 2012 < Back Share to: We previously posted that some notable art foundations have ceased authenticating art due to concerns over litigation costs and exposure. Once such group is the Andy Warhol Foundation, who is currently locked in a battle with its insurance carrier, Philadelphia Indemnity Insurance Company, over whether its policies covered lawsuits arising out of authentication. The Foundation was involved in an authentication dispute over a painting submitted by Joe Simon-Whelan. The Foundation was eventually sued by Simon as part of a class action, and later named in a second similar class action lawsuit. PIIC denied coverage initially but ultimately agreed to pay the full limit of $2,000,000 of defense fees under its Errors & Omissions policy but nothing under its Directors & Officers policy. The parties agreed to hold off on litigating the D&O coverage issues until the class actions were resolved. Eventually, the class action plaintiffs and the Foundation agreed to dismiss all claims against each other, including the Foundations’ counterclaims seeking indemnification for legal fees, as an investigation revealed that the plaintiffs would be unable to satisfy any judgment. The Foundation then filed suit, seeking to recover the $4.6 million it paid in legal fees from PIIC under the D&O policies. PIIC moved for summary judgment on the bases that the claims were either excluded under the policy or that the Foundation failed to meet certain conditions precedent. Notably, the Court rejected PIIC’s argument that the art authentication services were excluded as “professional services,” finding an ambiguity in the way the policy listed and described what a professional service was. The Court likewise rejected the remaining PIIC arguments and denied the motion. If you would like more information, please write to Mike Bono at mbono@wcmlaw.com .   Previous Next Contact

News Purpose For Truck Use Determines Whether Coverage Limit In Safety Regulation Applies (NJ) December 5, 2013 < Back Share to: In Allstate Insurance Company v. Penske Truck Leasing, the court considered whether a registered interstate motor carrier was required to maintain $750,000 in coverage on a truck that was operated by an individual renter for a personal purpose. Meir Dorfman rented a truck from Penske, a registered interstate motor carrier. Penske had motor vehicle insurance with a limit of $1 million in coverage through Old Republic. The Old Republic insurance policy contained a step-down provision for leased vehicles that provided liability coverage as for lessees and renters of covered autos as insureds, but only to the extent and for the limits of liability agreed to under their contractual agreement with Penske. Dorfman opted for the limited liability coverage that Penske provided in the rental agreement in the amount of $15,000/$30,000. However, Dorfman failed to purchase supplemental liability coverage and did not have any personal coverage. While driving the truck in New Jersey, Dorfman was involved in a motor vehicle accident that caused injuries to Carmen Quinones, the driver of the other vehicle, and two passengers in Quinones’ vehicle. Allstate, Quinones’ automobile carrier, paid PIP benefits to the three occupants of Quinones’ vehicle and the defendants settled the three lawsuits brought by the three injured individuals for a total sum of $30,000. Allstate then sought reimbursement from Old Republic for the PIP benefits it had paid. Old Republic claimed that it did not have to reimburse Allstate since Old Republic had exhausted its policy limits. Allstate argued that since the truck was a registered interstate motor carrier Penske was required to maintain $750,000 in coverage under the Federal Motor Carrier Safety Regulations. These regulations set the minimum levels of financial responsibility as $750,000 for all for-hire motor carriers of nonhazardous property. The court found that, since Dorfman was using the truck for personal reasons, was not working as an interstate motor carrier and was not transporting any property for pay, the Federal regulation mandating $750,000 in coverage did not apply. Accordingly, the court determined that since Old Republic had exhausted its policy limits, Allstate was not entitled to reimbursement of PIP benefits. Special thanks to Heather Aquino for her contributions to this post. For more information, please contact Nicole Y. Brown at nbrown@wcmlaw.com . Previous Next Contact

News WCM Pleased to Appoint Three Attorneys as Partners October 4, 2019 < Back Share to: Effective October 1, 2019, Wade Clark Mulcahy LLP is pleased to announce the elevation of three of its attorneys to the Partnership. First, WCM has named Heather Aquino to the Partnership. A graduate of St. John’s Law School (where she was the recipient of the Vincentian Scholarship) and William Paterson University (where she was an academic all American field hockey player), Heather is based in WCM’s New Jersey office. She focuses her practice on New Jersey liability defense work. Second, WCM has promoted Michael (Mike) Gauvin to the Partnership. A graduate of the University of Notre Dame Law School (where he received the American Jurisprudence Award in Morality and the Law) and a magna cum laude graduate of Providence College, Mike is based in WCM’s New York office. He focuses his practice on New York liability and specialty coverage work. Finally, WCM has appointed Colleen Hayes to the Partnership. A graduate of Villanova University School of Law (where she graduated magna cum laude and was inducted into the Order of the Coif) and Villanova University, Colleen is based in WCM’s Philadelphia office. She focuses her practice on liability coverage work in Pennsylvania and New Jersey and specialty coverage work in New York. For more information about this post please e-mail Bob Cosgrove.   Previous Next Contact

News Old Navy Employee Throws A Shelf And The Court Throws The Book (PA) October 1, 2021 < Back Share to: What started as a heated argument between an Old Navy employee and a shopper disputing the price of an item in Philadelphia took quite the turn when the employee picked up a metal shelf and threw it at the customer. To no one’s surprise, this led to a lawsuit filed in the Philadelphia Court of Common Pleas asserting claims against the employee, Old Navy, and its corporate affiliate, The Gap Inc. To avoid a plaintiff-friendly jurisdiction such as Philadelphia, Delaware resident Old Navy quickly sought to remove the suit to the Eastern District of Pennsylvania under 28 U.S.C. §1441. Specifically, Old Navy argued in their petition to the Eastern District of Pennsylvania that the employee was a nominal defendant that had no assets and that Old Navy was the target defendant. Generally, a court must disregard a nominal party who has no real interest in the claim nor is necessary to the disposition of the suit when determining jurisdiction for removal. Specifically, Old Navy further argued that the employee was only added to the suit to preemptively defeat removal as the shopper’s true target was the organization’s deep pockets. However, Hon. Joshua D. Wolson, U.S.D.J. was far from convinced. In his September 3, 2021 Order remanding the suit back to the Philadelphia Court of Common Pleas, Wolson found that the customer certainly had a viable claim against the employee, explaining that the mere possibility a cause of action exists against a resident defendant renders the party necessary rather than nominal. While Wolson acknowledges that the customer’s primary economic focus in filing the claim may, in fact, be Old Navy’s pockets, this did not obviate the reality that the claim against the employee as potentially meritorious. This shows that defendants seeking removal must remain aware that defendants without assets are not merely nominal. Thanks to Kendal Hutchings for her contribution to this post. If you have any questions, please email Matthew Care. Previous Next Contact