News Covid-19 Closures and the Reasonable Expectations of a Commercial Insured is still undecided in Pennsylvania (PA) January 15, 2021 < Back Share to: COVID-19 related insurance litigation has often left insurers with more questions than answers. In Brown's Gym, Inc. v. The Cincinnati Ins. Co., another open question of law in Pennsylvania is being looked at in relation to such a COVID-19 initiated case. Here, the Court of Common Pleas of Pennsylvania in Lackawanna County recently ruled that a case by a commercial insured looking to sue their insurance broker for negligence should not be dismissed for several reasons, but one being that the reasonable expectations doctrine as applied to a commercial insured is still an open one. Plaintiff is a gym that was forced to shut down due to government shut down orders. Plaintiff sought a declaratory judgement that its insurance policy covers the losses suffered because of the closures. While this is still an open question before many courts, plaintiff has taken the additional step in arguing in the alternative that its insurance broker was negligent in failing to provide the coverage that the plaintiff sought and reasonably expected. Defendant, plaintiff’s insurance broker, sought dismissal of the claim for three reasons. First, the broker owed no duty to plaintiff. Second, the broker was not a party to the insurance contract. Both of these reasons are analyzed and rejected by the Court. Third, plaintiff as a commercial insured is not entitled to the “reasonable expectations doctrine.” Plaintiff claims that they made it clear to their broker that they wanted to purchase an “All Risk” policy, one without an exclusion for viruses, one that would cover government shutdown orders, with the goal for it be “as broad as possible.” The Court explained that, “under the reasonable expectations doctrine, when interpreting a policy of insurance, the court should focus upon whether the insurer or its agent created in the insured a reasonable expectation of coverage that is not supported by the policy terms.” The Court noted that thus far, Pennsylvania courts have only applied this doctrine to non-commercial insureds. However, the Court also points to the 3rd Circuit, which “predicted that Pennsylvania courts would apply that doctrine even where the insured is a sophisticated purchaser of insurance.” The Court held that, with no precedential decision on this question of law, the question could not be resolved at this stage of the litigation and specified that the broker could revisit the issue in a motion in limine or an objection to proposed jury instructions later in the case. This case demonstrates that even if courts eventually do settle on the determination that the COVID-19 shutdown is not covered by most insurance policies, insureds will target brokers for the failure to provide a policy which covers their expectations. Thanks to Ryan Geib for his contribution to this post. Should you have any questions, please contact Thomas Bracken. Previous Next Contact

News Raised Drywall Platform Not Elevated Within Meaning of Labor Law June 15, 2009 < Back Share to: In Garcia v. Edgewater Development Company, the plaintiff was injured while unloading drywall from a platform that had been raised to an open second story window. Plaintiff brought a lawsuit alleging a violation of Labor Law 240(1). In its motion for summary judgment, defendant argued that the plaintiff was not subject to an elevation-related hazard for which the protective devices enumerated in Labor Law 240(1) are required. The Supreme Court, Queens County, denied the defendant's motion. On appeal, the Appellate Division for the Second Department reversed. The Appellate Division reasoned that since the plaintiff was able to grasp the top and bottom corners of the panel while standing on the floor in the building, the drywall was not elevated above the work site, but rather was at the same level as the plaintiff. The Court further stated that the plaintiff failed to raise a triable issue of fact as to whether the drywall fell from an elevated level, as required to bring the accident within the coverage of Labor Law 240(1). Thanks to Robin Green for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03477.htm Previous Next Contact

News Underinsured Motor Benefits and Jury Award Not Considered Double Recovery (PA) June 18, 2013 < Back Share to: The Philadelphia Court of Common Pleas recently held that a plaintiff’s receipt of underinsured motorist benefits in addition to a jury award does not constitute double recovery as prohibited under Pennsylvania law. In DiPaolo v. MacDonald, DiPaolo sued John MacDonald and Abuline Jaidah for two separate rear end car accidents. The lawsuits were consolidated for trial and DiPaolo was subsequently awarded substantial amounts in each case. The defendants filed post-trial motions to set aside the awards, but the trial court denied the motions and the defendants appealed. On appeal, the Court rejected the defendants’ argument that the trial court erred in failing to modify the verdict in light of DiPaolo’s collection of underinsured motorist benefits for the same accident. While the defendants failed to cite any legal authority to support their position, the court assumed they were relying on 75 Pa.C.S § 1722 that provides that in an action against an under or uninsured motorist, a person who is eligible for coverage under this section is precluded from recovering the amount of benefits payable under this subchapter. The coverage referenced in this subchapter pertains to various first-party benefits. The Court noted that the Superior Court previously examined this same section and determined that while underinsured motorist benefits are occasionally referred to as first-party benefits, such benefits are not listed among those identified first-party benefits and, as such, underinsured motorist benefits are not subject to the prohibition of double recovery. The Court was therefore not required to offset the damages award by the underinsured motorist benefits. Special thanks to Nicole Pedi for her contributions to this post. For more information, please contact Nicole Brown at nbrown@wcmlaw.com . Previous Next Contact

News Don’t Look To Lyft For Recovery For Driver’s Sexual Misconduct (NY) August 11, 2023 < Back Share to: When bringing a cause of action based on the theory of respondeat superior, New York courts have determined that “a sexual assault perpetrated by an employee is not in furtherance of an employer's business and is a clear departure from the scope of employment, having been committed for wholly personal motives." Recently, in Browne v Lyft, Inc., such a circumstance was before the Court with the underlying injury occurring during a Lyft ride on October 12, 2018. The infant plaintiff was being driven by defendant Narinderjit Singh when, during the course of the ride, Singh allegedly unbuckled or unzipped his pants and began masturbating. Singh ceased doing so only when noticing that he was being recorded on the infant plaintiff’s cell phone. In addition to bringing an action against Singh, plaintiff commenced an action against Lyft alleging that Lyft was vicariously liable for Singh's acts under the doctrine of respondeat superior. In reversing the lower court’s decision, the Appellate Division granted Lyft. Inc.’s motion to dismiss the complaint pursuant to CPLR 3211(a)(7). The Court based this decision on the idea that, while the drivers tortious act occurred during the course of his employment with Lyft, it was not an act that was done in furtherance of Lyft’s business and the scope of Singh’s employment. In giving texture to scope of employment, the Court opined that employee actions fall within the scope of employment where the purpose of such actions is to further the employer's interest or business. According to the Appellate Court, “where an employee's actions are taken for wholly personal reasons, which are not job related, the challenged conduct cannot be said to fall within the scope of employment." Singh’s conduct deviated from his duties as a Lyft driver and done for personal motives. Therefore, the Court reasoned, the sexual misconduct could not be said to be within the scope of employment and granted the branch of Lyft's motion dismissing the vicarious liability cause of action. Thanks to Rebecca Pasternak for her contribution to this article. Should you have any questions, contact John Diffley. Previous Next Contact

News There May be Some Teeth to Plaintiff’s Labor Law 241(6) claim December 28, 2016 < Back Share to: In Williams v. River Place II LLC et al, plaintiff alleged violations of Labor Law § 200, Labor Law § 241(6), common-law negligence and products liability when he was injured using a power saw with a blade with broken teeth. On appeal, the First Department affirmed the lower court’s dismissal of plaintiff’s Labor Law § 200 and common law negligence claims because the accident was not caused by a dangerous worksite condition. However, the First Department denied the owner, agent, and general contractor defendants’ motions for summary judgment as to plaintiff’s Labor Law § 241(6) claim because evidence that there were teeth missing from the saw blade raised issues of fact as to whether those defendants violated the Industrial Code provision that requires all safety devices, safeguards and equipment to be kept in sound and operable condition and whether that violation was a proximate cause of plaintiff's accident. This decision underscores the difficulty that owner, agent, and general contractor defendants face in avoiding Labor Law § 241(6) liability for jobsite accidents. In this case, plaintiff further claimed that he twice asked his supervisor for a replacement blade which was not furnished and this evidence was sufficient to create an issue of fact as to whether defendants violated the applicable Industrial Code provision and whether this violation was the proximate cause of plaintiff’s accident. Thanks to Lauren Branchini for her contribution to this post.     Previous Next Contact

News WCM Argues Before NY Court of Appeals in Facebook Disclosure Dispute January 5, 2018 < Back Share to: On January 2, 2018, WCM partner Michael Bono appeared before New York's highest court to challenge the standard for the production of Facebook information. In Forman v. Henkin, plaintiff alleges she sustained a traumatic brain injury when she fell from a horse. As a consequence of this injury, plaintiff alleges that she can no longer participate in many of the actives she previously enjoyed; that she could barely read or compose texts; that writing simple messages on the computer takes hours; that she couldn't handle using the computer for more than 10 minutes without harming herself; and that her social network went from huge to nothing. When questioned at her deposition, plaintiff testified that she posted frequently to Facebook before the accident, but was either unable or unwilling to testify about her post-accident Facebook practices, and her account was deactivated shortly after filing the lawsuit. The defense made a demand to access plaintiff's Facebook account to challenge her claims, and the trial court held that plaintiff was required to disclose all non-romantic photographs from her private Facebook account and to provide an authorization for Facebook to disclose the number of posts plaintiff made post-accident and the text count of those posts. Plaintiff appealed, and the First Department held disclosure was not required because the defendant had not met the factual predicate required by prior courts. Namely, defendant failed to show that there were relevant materials on plaintiff's public Facebook page in order to establish the demand for records from the private account was reasonably calculated to lead to the discovery of information bearing on the claims. On appeal, plaintiff has argued this standard is warranted in order to protect privacy and to prevent "fishing expeditions" in all cases where litigants have Facebook accounts. The defense argued there is no reasonable expectation of privacy in social media accounts where the purpose is to share one's thoughts and photographs which can be published or disclosed unconditionally by Facebook "friends." In addition, the current enhanced standard is not required for any other form of discovery, and disclosure should be warranted where targeted demands are made against specific claims within the context of the litigant's Facebook practices. A decision should be published within the next 30-60 days, and we will continue to follow the story on Of Interest. Please write to Mike Bono for more information. Previous Next Contact

News In NJ MVA Case, "Discovery Rule" Inapplicable Were Plaintiff Was Aware Of Worsened Injury Prior To Expiration Of The Statute Of Limitations March 28, 2012 < Back Share to: In Fabiano v. Pagalilauan, the plaintiff filed suit for injuries sustained in a motor vehicle accident on April 16, 2008. An x-ray taken on the day of the accident revealed a large, benign bone tumor on the plaintiff’s right knee right knee. Several months later, the plaintiff underwent an MRI on October 11, 2008 that revealed a malignant transformation of the bone tumor. He eventually underwent surgery to remove the tumor, but there was no biopsy to confirm the malignancy and it was never confirmed that the alleged malignancy was casually related by the motor vehicle incident. On July 12, 2010, the plaintiff filed a suit seeking damages for the malignant transformation of the bone tumor and the resulting surgery. The defendant moved to dismiss the complaint arguing that the applicable two-year statute of limitations had expired. The defendant’s motion was granted and the plaintiff appealed arguing that the “discovery rule” applied. Specifically, the plaintiff claimed that he had two years from October 11, 2008, the date the malignancy was discovered, to file his complaint. The Appellate Court disagreed and upheld the trial court’s dismissal of the plaintiff’s complaint finding that the discovery rule did not apply in this case since the plaintiff was aware of the alleged malignant transformation before the applicable two-year statute of limitations for bodily injury stemming from a motor vehicle accident expired. The court further noted that there was no medical evidence confirming the malignancy and causally relating it to the accident. Lastly, the court noted that a cause of action for automobile negligence ordinarily accrues when the accident takes place, even if the initially sustained injuries later turn out to be more serious then originally believed. http://www.judiciary.state.nj.us/opinions/a2132-10.pdf Thanks to Heather Aquino for her contribution to this post. Previous Next Contact

News NY Court Finds Travel From One Job Location To Another Not Necessarily In The Course Of Employment January 18, 2011 < Back Share to: In Reyes v. MTA Bus Company, a New York trial court analyzed whether an employee traveling from one job location to another was in the course of his employment such that his negligence would be attributable to his employer. The employee was working as an Individualized Resident Assistant at one of his employer’s residences. He punched out and left the residence. He then drove to another of his employer’s residences to work an overtime shift. During the trip he was involved in an accident with defendant’s bus. The MTA brought a third-party action against the employer, alleging that the employer was vicariously liable for the employee’s negligence. The employer moved for summary judgment, arguing that the employee was not acting in the course and scope of his employment at the time of the accident. The employer noted that the employee used his own personal vehicle, was not compensated for the time it took to drive from one residence to the other, and was not entitled to reimbursement for gas or mileage. Also, the employee was not required to work the overtime shift. The court analyzed New York law regarding whether an employee is acting in the course and scope of his employment when traveling to and from the worksite. The general rule is that an employee is not acting within the scope of his employment during the commute to or from work, but there are instances when the travel can be considered within the scope of employment. For example, employee travel will be considered in the scope of employment when the transportation is provided or paid for by the employer, or where the travel was incidental to the furtherance of the employer’s interest. In this case, the court noted that the employee was not “on the clock”, was not reimbursed for the travel, was free to refuse the overtime shift and was not on a fixed schedule. Therefore, the court held that the employee was not acting in the course and scope of his employment at the time of the accident, and granted summary judgment to the employer. If you have any questions regarding this post, please contact David Tavella at dtavelle@wcmlaw.com . http://pdf.wcmlaw.com/pdf/ReyesvMTA.pdf Previous Next Contact

News Pirelli Prevails Using Plaintiff's Conduct in PA Products Matter December 7, 2017 < Back Share to: In Pennsylvania strict products liability cases, defendants are not permitted to introduce evidence of a plaintiff’s negligence. To prove a strict-liability cause of action, the plaintiff must prove: (a) the product was defective, (b) that it was defective when it left the defendant’s hands, and (c) that the defect caused harm—a plaintiff’s negligence is not relevant to a product defect. However, a plaintiff’s conduct may be offered by the defense to establish that an accident was solely the result of the user’s conduct, and not related to the product defect. This evidence proves causation and not negligence. The thin line between presenting evidence of plaintiff’s conduct to prove negligence or to rebut the element of causation was at the center of Anderson v. Pirelli Tire, LLC. In Anderson, the plaintiff’s wife died in a motorcycle accident when the tire blew out. Pirelli Tire, LLC manufactured the motorcycle’s tire and plaintiff asserted a strict liability claim arguing that the tire had a manufacturing defect. Crucially, plaintiff argued that he noticed a “blemish” on the tire on the day of the accident; plaintiff’s theory was that a foreign object got inside the tire during the manufacturing process, and that the tire left Pirelli's plant with the defect. Pirelli argued that plaintiff was at fault because the tire was under-inflated and overloaded resulting in over-deflection, which caused the accident. The conduct at issue were the steps taken by the plaintiff to ensure their safety on the motorcycle, the air pressure of the tire, and the weight carried on the motorcycle at the time of the trip. The plaintiff argued this was inadmissible because it was evidence of the plaintiff’s negligence, but the court permitted the evidence on the theory that it went to impeach the plaintiff’s testimony and that it went to causation. First, in respect to impeachment, the plaintiff testified that he took safety courses and that he reviewed a checklist before riding the motorcycle. Pirelli argued that given that training, the plaintiff would have taken the tire to the shop if he in fact noticed a “blemish.” Second, in respect of causation, Pirelli argued that plaintiff’s failure to inflate the tire caused the blow out, not a defective tire. On appeal, the Superior Court upheld the trial court’s ruling since Pirelli offered the evidence properly—only to prove causation and not negligence. The court also relied on the trial court’s jury instructions, which highlighted that the jury could only consider the evidence for the purposes of impeachment and causation. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono with any questions. Previous Next Contact

News No Notice - No Claim Against City (NY) March 20, 2013 < Back Share to: Notice is key in order to maintain a viable claim against the City of New York for failure to adequately maintain a sidewalk. In Adamson v. The City of New York, following a motion for summary judgment, the trial court dismissed the plaintiffs’ complaint and all cross-claims asserted against the City. The tenant of the property abutting the sidewalk (Verizon) appealed the courts order. The record revealed that the City did not have prior written notice of the defective sidewalk condition, as required by Administrative Code § 7-201[c][2], and Verizon failed to demonstrate that the special use exception applied to overcome the prior written notice requirement. As a result of the City not having notice of the alleged dangerous condition, there was no basis for holding the City liable. The Appellate Division, First Department, upheld the lower court’s ruling dismissing Verizion’s cross-claim against the City on the theory that the City failed to provide adequate lighting. Special thanks to Johan Obregon for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .     Previous Next Contact

News Unlisted Driver on Policy is an Uninsured Driver (PA) October 27, 2017 < Back Share to: An auto insured has responsibility to disclose the identities of resident, non-family members who have access to the insured’s vehicle. If the insured fails to do so, it is at his own risk. The question of whether a co-habitating girlfriend was covered by her boyfriend's insurer arose in the case of Safe Auto Insurance Company v. Rene Oriental-Guillermo. The girlfriend, Rachel Dixon, and another driver were involved in a two-car accident in Allentown, Pennsylvania. A passenger in Dixon's car, Priscilla Jimenez, filed a personal injury lawsuit against Dixon, Dixon’s boyfriend( the owner of the car that Dixon was driving), and the driver of the other car involved in the accident. The car that Dixon was driving was insured by Safe Auto Insurance Company (“Safe Auto”). The Safe Auto policy had an Unlisted Resident Driver Exclusion, which specifically excluded from coverage those individuals who lived with the Policyholder, but were not related to the Policyholder and whom the Policyholder did not specifically list on the Policy. Although Dixon and the owner lived together, the policy did not list Dixon as a driver. Safe Auto denied coverage to Dixon for the accident. Jimenez challenged the Unlisted Resident Driver Exclusion’s applicability on a few grounds, but most notably, on the grounds that the exclusion itself violates the public policy of the Commonwealth of Pennsylvania set forth in the Motor Vehicle Financial Responsibility Law (“MVFRL”). Jimenez argued that the Unlisted Resident Driver Exclusion contravenes the MVFRL’s mandate that an owner of a motor vehicle ensure that all drivers of his vehicle are covered by insurance; for this reason, Safe Auto should cover the accident. The Pennsylvania Superior Court rejected this argument, instead, ruling that the Unlisted Resident Driver Exclusion places the obligation solely on the owner of a vehicle, and not the insurance company, to ensure that anyone who drives the owner’s car has insurance. While the MVFRL does aim to ensure that all drivers are covered, the court concluded that there was no indication in the MVFRL that the burden of ensuring coverage must fall on the insurance company. In fact, the insured is in the best position to monitor whether members of his household who intend to drive are listed on his policy. Summarily, the court stated that “there is no provision in the MVFRL that indicates that the Legislature, when it enacted the MVFRL, intended to shift the risk to insurance companies to insure individuals who live with the insured, but are not related to the insured.” It’s simply not the insurance company’s burden. Thanks to Sathima Jones for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News NY 2nd Dept: Painted Sidewalk Not a Slippery Condition November 10, 2009 < Back Share to: The Second Department recently held that the mere act of painting a portion of a sidewalk does not create a hazardous condition or put a landowner on notice of an allegedly hazardous condition. In Ford v. Domino’s Pizza, LLC, the plaintiff slipped and fell on a raised portion of sidewalk that had been painted blue. In granting the landowner’s motion for summary judgment, the court emphasized that the plaintiff’s allegation that the paint made the sidewalk inherently slippery was insufficient to raise a triable issue of fact. Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2009/2009_07979.htm Previous Next Contact