News NJ Deemer statute metaphysically endorses Out-of-State Auto Policy February 11, 2011 < Back Share to: It is well established in New Jersey that unloading of a truck involves the “use” of that vehicle for purposes of omnibus auto insurance coverage. When an injury occurs during unloading then, provided that the injury arose out of the unloading operations, the auto insurance policy provisions apply to the claim. But what if the auto policy is issued out of state? Do the New Jersey omnibus insurance obligations prevail where that policy includes exclusions that would preclude such coverage? The answer boils down to whether the out-of-state policy was issued by an admitted carrier. If so, the New Jersey Deemer Statute requires the policy to be read in accordance with the State’s omnibus insurance provisions which in effect “metaphysically” endorse the out-of-state policy. To the extent that such a policy would deny coverage for an unloading injury, pertinent policy exclusions are held invalid. Significantly though, the remaining policy terms, such as policy limits, remain in effect as written. In The Burlington Insurance Company v. Northland Insurance Company, the Hon. Dickinson Debevoise, U.S.S.D.J. of the New Jersey District Court ruled that a general liability insurer was entitled to reimbursement from a commercial auto insurer for such a claim. Northland, an admitted New Jersey auto insurer, had issued a Pennsylvania insured a Pennsylvania commercial auto policy. When Northland failed to evaluate coverage for an unloading accident that occurred in New Jersey under this State’s deemer statute, a declaratory judgment action followed. The Court held that the Pennsylvania commercial auto policy indeed covered the unloading accident up to that policy’s full limits and that the liability insurer was entitled to reimbursement for defense and indemnification costs of its insured as well as costs incurred in the declaratory judgment. http://pdf.wcmlaw.com/pdf/northland.pdf For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com Previous Next Contact

News This and That by Dennis Wade August 5, 2021 < Back Share to: On April 3, 2018, I was called to jury service as a trial juror in Supreme Court, New York County. And, for a lawyer, being on the other side of the courtroom rail is a thought provoking experience. My chances of being chosen to sit on a civil tort suit, of course, were slim--former prosecutor, insurance defense and coverage attorney and an acquaintance with many of the plaintiff and defense practitioners in New York County. Step one in the jury selection process is Voir Dire, an Anglo-French term which literally means: To see, to speak. But I prefer the Latin derivation of the phrase: Verum dicere, meaning “To say what is true.” What the law wants is “fair and impartial” jurors who will decide the case on the facts disclosed at trial. What advocates want is something else--jurors “open” to their view of the matter on trial. Jury selection has become a science, a practice featured on Bull, a popular TV drama featuring Michael Weatherly playing Dr. Jason Bull, a character modeled after Phil McGraw who began one of the most successful trial consulting firms in the country. Like all jury consultants, Bull purports to use everything from social media to neurolinguistics to discern what really makes a juror tick, and thus either a good or bad choice for counsel. As I sat through my first voir dire in a medical malpractice action, I re-discovered, in a visceral way, what I always knew, the challenge for the lawyers is to judge whether the prospective juror is really saying what is true (verum dicere). Potential jurors who don’t want to serve, to be sure, know what answers to give. And all good advocates recognize these for what they are--polite fibs to avoid the trial time commitment. So, the real challenge begins when the fibbers fall away and the potential panel consists of those citizens prepared to give of their time to decide the contest. I have used jury consultants and their insights are often valuable. The usefulness of their contribution depends in large measure on how well counsel has developed its trial themes and the overall narrative of the story counsel plans to tell at trial. But the reality is jury consultants are pricey and the cost often outweighs the potential benefit in the garden variety controversy. So, how do you tell whether the juror is telling the truth about potential bias, about attitudes, about whatever issue matters to your trial themes. There are no magic answers. Go with your gut. And if you want a rationale for this tried and true advice, I urge you to read Blink by Malcolm Gladwell who had a simple but profound insight: We get into trouble when we try to talk ourselves out of a gut feeling. According to Gladwell, our brains are fabulous microprocessors that process information on many, many levels--levels well beyond our conscious awareness. Say, for example, your gut tells you something is “off” about an engineer in the panel of prospective jurors; yet, your mind tells you a person trained to solve problems and think logically is ideal. What to do? Gladwell would urge you to follow your instinct and use a peremptory challenge to strike the engineer. By now, after this musing, you're wondering what became of my jury service. I was bounced from a panel in a medical malpractice “pre-qualification” panel because WCM had cases with defense counsel’s firm. And, at 4pm, the jury clerk dismissed everyone because so few cases were trial ready because of Spring Break Week. But back to Gladwell, and another word of caution. A nurse excused from the same med-mal panel and I started chatting as we headed for the exit upon being excused from our term of service. But she, unlike me, sat through several hours of questioning. Bold, and thinking of Gladwell, I asked my new friend: “Based on what you saw during voir dire--and if you needed a lawyer--who would you hire?” “Easy call,” she said, “Plaintiff’s Attorney.” Puzzled, I asked why, because, to my eye, defendant’s counsel seemed, well, more authentic and in command. The answer? “Defendant’s counsel slouched and was sloppy in appearance. “ The moral of this tale is this: Stand straight and wear clothes that fit. To give my elevator friend due credit, defendant’s lawyer did look like he was wearing his older brother’s suit. And it was green, a poor color choice for an advocate unless, of course, you are Reaganesque. And that’s it for this This and That. Previous Next Contact

News Criminal Penalties for "Tweeting" Jurors August 12, 2011 < Back Share to: We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge's instructions also apply to Facebook and twitter. California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against "any form of electronic or wireless communication." Violators potentially face six months in jail. New York was a bit ahead of the game on this issue as it revised its jury instructions in May 2009. A "tweeting juror" in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County. Thanks to Biran Gibbons for his contribution to this post. Previous Next Contact

News Conclusory Allegations of Bad Faith Against Insurer Insufficient to Survive Motion to Dismiss (PA) January 8, 2021 < Back Share to: Recently, in Daniel Dietz v. Liberty Mutual Insurance Company, the Eastern District of Pennsylvania considered whether the factual averments in the plaintiff’s complaint were sufficient to overcome Liberty Mutual Insurance Company’s partial motion to dismiss Dietz’s bad faith claim pursuant to Federal Rule of Civil Procedure 12(b)(6). By way of brief background, Dietz was involved in a motor vehicle accident with a driver who was insured by Farmers’ Insurance Company. At the time of the accident, Dietz was insured under an automobile policy issued by Liberty. On behalf of Dietz, Liberty obtained a settlement; unfortunately, the settlement was insufficient to cover all of Dietz’s medical expenses from the accident. Accordingly, Dietz submitted an underinsured motorist claim (“UIM”) with Liberty, which Liberty ultimately denied. Subsequently, Liberty offered to settle the UIM claim; however, Dietz rejected the proposed settlement as he believed Liberty erroneously did not obtain an additional stacking waiver when Dietz added a fifth vehicle to his automobile policy. After Liberty denied Dietz’s request for a copy of Liberty’s underwriting file, Dietz commenced the instant action, alleging claims for a declaratory judgment, breach of contract and bad faith. In support of its motion to dismiss, Liberty argued Dietz failed to state a bad faith claim upon which relief can be granted. In consideration of 42 Pa.C.S. § 8371 through the lens of the Court’s well-established standard of review, the Court determined Dietz failed to plead a claim for bad faith as the complaint contained no factual content indicating Liberty lacked a reasonable basis for denying his claim and that Dietz failed to show it either knew or recklessly disregarded its lack of reasonable basis. In addition, the Court concluded Dietz’s complaint, as pleaded, asks the Court to infer Liberty’s motive in refusing to produce its underwriting file was to deceive Dietz. Further, the Court cited other reasons why Liberty could have refused to produce a copy of its underwriting file, such as the fact that underwriting files often contain confidential business information. As the Court held the complaint failed to make any real factual averments, the Court granted Liberty’s motion and dismissed Dietz’s claim for bad faith. Ultimately, this case is a reminder of impact motions to dismiss can have on litigation in federal courts, and the premium courts place on well-pled complaints. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Shh! Police Telling A Preacher To Keep It Down Is Not A First Amendment Violation February 18, 2011 < Back Share to: In Costello v. City of Burlington, the US Court of Appeals for the Second Circuit examined whether a police officer violated a preacher’s First Amendment Rights when the officer told the preacher to lower his voice when preaching on at a pedestrian mall. The Preacher was shouting and yelling, and disrupting other pedestrians. When the preacher refused, the officer issued a written warning for violation of Burlington’s noise control ordinance. According to the officer, the preacher could be heard over 350 away. The Second Circuit upheld Burlington’s right to limit the preacher’s volume. The Court noted that Costello’s voice dominated the area, and impinged on the use of the neighborhood by others. Significantly, the office did not tell the preacher to stop speaking, but only to lower his voice. If you have any questions regarding this post, please contact David Tavella at dtavella@wcmlaw.com . http://pdf.wcmlaw.com/pdf/costello.pdf Previous Next Contact

News Preservation of Appellate Review – Is It Waived? July 21, 2023 < Back Share to: Dupree v. Younger, Case Number 22-210 (May 25, 2023) addresses the preservation of legal issues for appellate review. In Dupree, the U.S. Supreme Court found that a summary judgment motion “allows the district court to take first crack at the question that the appellate court will ultimately face: Was there sufficient evidence in the trial record to support the jury’s verdict?” The court also found that “[b]ecause the factual record developed at trial supersedes the record existing at the time of the summary judgment motion, it follows that a party must raise a sufficiency [of the evidence] claim in a post-trial motion in order to preserve it for appeal.” The court further found that a “repeat-motion requirement” would be an “empty exercise,” where the averse ruling is based on a purely legal issue because “a purely legal question is, by definition, one whose answer is independent of disputed facts” and, thus, “factual development at trial will not change the district court’s answer.” Applying this reasoning to the case at hand, the Dupree Court unanimously held that where an averse pretrial ruling is based on a purely legal issue, a litigant need not, to preserve the issue for appellate review, re-raise the issue at or after trial. The Take Away. Be careful! While Dupree eliminates the need to re-raise averse rulings on purely legal issues; to avoid waiver, and preserve appellate review of fact-based issues, one must re-raise the fact-based issue(s) at trial and by post-trial motion. Thanks to Charles "Chip" George for this post. Please contact Chip with any questions. Previous Next Contact

News Claim Against NJSEA For Escalator Collapse At Giants Stadium Reinstated By NJ App. Div. February 17, 2011 < Back Share to: In DiBartolomeo v. New Jersey Sports and Exposition Authority ( NJSEA), the Appellate Division reinstated a personal injury suit against the NJSEA for a 2006 escalator collapse at Giants Stadium after a New York Jets football game. Plaintiff claimed that as fans were exiting, the escalator buckled and the treads flattened causing patrons to slide down with bodies piling up at the bottom. The Appellate Division reversed summary judgment to the NJSEA finding that it was not entitled to immunity under the NJ Tort Claims Act. The court found that the stadium escalators could be found to pose a danger to the general public even when being used in a foreseeable manner. The potential dangerous condition was the NJSEA policy of operating the escalators that were rated for 300 lbs. per step, when it was foreseeable and likely that greater loads would be routinely applied. Please contact Robert Ball with any questions regarding this post. http://www.judiciary.state.nj.us/opinions/a2716-09.pdf Previous Next Contact

News Mediation Agreements Are Binding in NJ. August 12, 2011 < Back Share to: In the case of Willingboro Mall v. 240/242 Franklin Avenue, et al., the plaintiff appealed from an order enforcing a settlement reached during a mediation session conducted pursuant to Rule 1:40-4. Plaintiff argued that the rule precludes enforcement of an oral settlement reached at a nonbinding mediation session. It also contended the alleged settlement was the product of coercion by the mediator. The facts giving rise to the appeal are as follows. Plaintiff and defendants were commercial real estate entities who were involved in a default and foreclosure dispute. The parties were referred to mediation by the General Equity judge. The parties selected a retired Superior Court Judge as mediator, and attended a mediation session with their attorneys at the office of defendants' attorney. After several hours, the parties agreed to a settlement. Counsel for defendants then wrote a letter to the General Equity judge to inform him that the parties had reached a settlement. The letter also stated the terms of the settlement. Plaintiff refused to consummate the settlement and instead asserted that a final, binding settlement agreement had not been reached at the mediation session. Defendants then filed a motion to enforce the mediated settlement agreement, and supported the motion with a certification of their attorney and the mediator. A plenary hearing was conducted and a written opinion was issued, which found that the parties did in fact arrive at a settlement of the underlying case, and that the settlement was therefore binding. On appeal, plaintiff argued that Rule 1:40-4(i) prevented enforcement of an oral settlement because the terms of the settlement were not reduced to writing at the mediation session, a copy of the writing was not provided to each party, and the parties did not affix their signatures to the writing at the mediation session. In addition, plaintiff argued that enforcement of a settlement reached at a mediation session is contrary to the non-binding nature of the mediation process. The Appellate Division agreed with the trial court. It ruled that mediation is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. Rule 1:40-4 (i) does not prohibit the mediator or one of the parties from reducing the terms of the agreement to writing shortly after conclusion of the mediation session as occurred in this case. Specifically, the court noted that in this case, three days after the mediation session, defendants' attorney prepared and sent a letter stating the terms of the agreement reached by the parties. Two weeks later, he sent another letter informing plaintiff that he had placed the sum required to resolve the dispute in an escrow account. The Appellate Court held that these writings, the first memorializing the terms of the settlement and the second notifying plaintiff of defendants' action to consummate the settlement, were within the intention of the rule requiring the agreement to be reduced to writing. Two important points bear mention here. First, sometimes attorneys (and litigants) are held to their word and bound by their verbal actions. Second, and perhaps more importantly, know your case and the attorneys. If the attorneys on the other side seem like the kind of folks who will try to weasel their way out of an agreement, don’t leave the mediation until a written agreement is finalized and signed by all parties. It might take a little bit longer, but it’s certainly worth the effort – in fact, we just did this on a case on Wednesday where a post mediation “agreement on written terms” seemed like it might be hard to come by. But that’s a story for a different day… Special thanks to Sheila Osei for her contributions to this post. For more information about it, or WCM's NJ practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News WCM Philadelphia Partner Becomes Treasurer of Philadelphia Association of Defense Counsel June 30, 2021 < Back Share to: On June 21, 2021, WCM Partner Colleen E. Hayes was elected to the position of Treasurer of the Philadelphia Association of Defense Counsel, one of the oldest local defense organizations in the country. Colleen is a partner in WCM’s Philadelphia office and serves clients in commercial coverage related matters. Colleen was also recently selected as a Pennsylvania Rising Star for 2021. She also is on the DRI’s Young Lawyers Steering Committee. Previous Next Contact

Job Listings Job Type Select Job Type Workspace Select Workspace Search Jobs Number of jobs found: 1 Litigation Paralegal West Palm Beach, FL, USA View Job

} }} < Back Litigation Paralegal Send Resume West Palm Beach, FL, USA Job Type Full Time Workspace Salary $70,000 - $90,000 About the Role Wade Clark Mulcahy LLP, a dynamic and collegial law firm with offices in New York, New Jersey, Pennsylvania, Louisiana, Florida, Texas, and London, seeks a Paralegal to join its defense litigation team in our West Palm Beach, Florida office. We are seeking a motivated and detail-oriented paralegal with 2+ years of civil defense litigation experience preferred. The ideal candidate is highly organized, thrives in a collaborative environment, and is capable of managing a fast-paced caseload while providing exceptional support to attorneys and clients. Requirements 2+ years of civil defense litigation experience preferred Associate's or Bachelor's degree required Paralegal certificate from an ABA-approved program preferred Job Responsibilities Obtaining, reviewing, and analyzing medical, financial, employment, tax, and other relevant records Preparing detailed medical and factual chronologies Organizing and maintaining electronic and physical case files Preparing trial notebooks, exhibits, and witness materials Compiling and analyzing evidence from discovery, records, transcripts, and databases Coordinating with clients, courts, opposing counsel, and expert witnesses Generating case status reports, logs, and indexes Conducting legal and medical research Reviewing expert materials, including prior testimony and publications Assisting attorneys with trial preparation and other litigation support needs Knowledge, Skills, & Abilities Obtaining, reviewing, and analyzing medical, financial, employment, tax, and other relevant records Preparing detailed medical and factual chronologies Organizing and maintaining electronic and physical case files Preparing trial notebooks, exhibits, and witness materials Compiling and analyzing evidence from discovery, records, transcripts, and databases Coordinating with clients, courts, opposing counsel, and expert witnesses Generating case status reports, logs, and indexes Conducting legal and medical research Reviewing expert materials, including prior testimony and publications Assisting attorneys with trial preparation and other litigation support needs What We Offer Comprehensive medical, dental, vision, and prescription coverage Generous paid time off and paid holidays 401(k) retirement savings plan Performance-based bonus opportunities Firm-sponsored voluntary benefits, including: Supplemental life insurance Flexible Spending Accounts (FSAs) Hybrid work schedule supporting work-life balance

News Pennsylvania Supreme Court Weighing Bad Faith (PA) November 27, 2019 < Back Share to: Back in April, we noted all eyes were on the PA Supreme Court to further clarify the bad faith standard with respect to insurance coverage in the lawsuit captioned: Berg v. Nationwide Mut. Ins. Co., Inc. On Thursday, November 21, oral arguments were finally held in this matter. During arguments, the PA Supreme Court was asked to consider whether the PA Superior Court abused its discretion by reweighing evidence relied upon by the trial court in its finding of bad faith on the part of an insurance carrier. By way of background, this lawsuit stems from a 1996 car accident involving Sharon Berg which led to well over a decade of litigation between Berg and her automobile insurer. The insurance company chose to send the vehicle for repairs rather than deem it totaled. Berg sued her insurer on the premise that the repairs were defective and the car was no longer crashworthy. One of the hotly contested issues became whether the insurer had, in bad faith, decided to repair the vehicle because it was half the cost of rendering it totaled, although the car was in fact totaled. A Berk’s County jury found almost entirely in favor of the insurer and only found it should pay $295 for violating the Pennsylvania Unfair Trade Practices and Consumer Protection Law. However, the trial judge found bad faith on the part of the insurer and added $18M in punitive damages and $3M in counsel fees to Berg’s verdict. Specifically, the trial judge cited to the insurer’s later decision to deem the car totaled, its failures to disclose information about the vehicle’s condition, abusing the discovery process, and its failure to negotiate in good faith. On appeal, the Superior Court found the evidence relied upon by the trial judge to be unconvincing and reversed the trial court’s verdict. Specifically, it found that there was no evidence that the insurer knew the vehicle was not safe to be put back on the road nor that it acted in bad faith, stating, “The trial court simply ignored a large body of evidence that rendered is finding unsupported.” In addition, the appellate court found bias on the part of the trial judge because of language in the judge’s opinion that appeared to condemn the insurance industry in broad terms. On Thursday, the PA Supreme heard oral arguments after granting Berg’s appeal. It will issue its decision on, among other things, whether the appellate court abused its discretion “by reweighing and disregarding clear and convincing evidence introduced in the trial court upon which the trial court relied to enter a finding of insurance bad faith.” Continue to stay tuned for the PA Supreme Court’s ruling and its impact on PA bad faith litigation. Thank you to Priscilla Torres for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact