Wade Clark Mulcahy LLP

Louisiana Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Contact Details 824 Elmwood Park Blvd, Suite 215, New Orleans, LA 70123 504 291 2054 504 324 0190 Attorneys and Professional Staff Jonathan H. Adams Counsel Chynna S. Demas Associate E. Alexis Bevis Partner

Florida Our Offices New York Pennsylvania New Jersey Florida Louisiana Texas Long Island London Wade Clark Mulcahy LLP – West Palm Beach WCM established its Florida office in 2021. Since then, the office has earned a strong reputation for handling a broad range of matters, including insurance defense, insurance coverage, commercial litigation, and appellate work. Led by two Board-Certified Trial Attorneys, our Florida team litigates cases in all state court vicinages throughout Florida, as well as in federal courts. Over the past year, the office has experienced significant growth—reflecting our unwavering commitment to achieving positive results through high-quality legal work, professional integrity, and outstanding client service. In addition to our litigation capabilities, the Florida office maintains a dedicated focus on insurance coverage and coverage litigation. Our team is well-equipped to handle the full spectrum of insurance matters, from cargo and jeweler’s block/specie to homeowner’s and general liability claims. Contact Details 1555 Palm Beach Lakes Blvd, Suite 580, West Palm Beach, FL 33401 561 231 2744 561 828 4620 Attorneys and Professional Staff Maria E. Dalmanieras Partner Helene E. Dalmanieras Paralegal Peter R. Restani Partner Chip M-P George Of Counsel

News Slippery Issues of Fact Denies Party “Borrowed Servant” Defense (PA) May 31, 2018 < Back Share to: On May 30, 2018, the Superior Court of Pennsylvania overturned a trial court’s granting of summary judgment in Gardner v. MIA Products Company et al. In the underlying facts of the case, plaintiff Eric Gardner was an employee of DelVal Staffing, a temporary employment agency, that assigned him to work at MIA Products as a packer in their food freezer. While working in the freezer, Gardner slipped and fell and suffered injuries. He received workers’ compensation benefits through DelVal and then filed suit against MIA Products alleging negligence. MIA Products moved for summary judgment on the basis that Gardner was a “borrowed employee” and therefore ineligible to file a tort action against it under Pennsylvania’s Workers’ Compensation Act, which the trial court granted. Gardner then appealed. Under Pennsylvania’s workers’ compensation law, employees are limited from suing their employers for injuries on the job, as workers’ compensation is meant to be the avenue for their recovery. These limitations can also extend to other entities that are not individuals’ direct employers and are termed the “statutory employer defense” and the “borrowed servant defense”. If a worker falls under either of these definitions, then the workers’ compensation limitation extends to them and prevents them from then suing that company that hired them. In Pennsylvania, the requirements to be a “statutory employer” are defined in the Workers’ Compensation Act. In this case, whether an individual is a “borrowed servant” is analyzed under the common law. To determine if a worker who is furnished by one entity to another becomes the employee of the company to whom they are loaned, courts look at whether the latter company has the right to control the work that is being done and the manner in which it is being performed, irrespective of whether control is actually exercised. Courts also look at other factors like the right to discharge the employee, the skill and expertise required for the work, and the payment of wages. In the instant case, the Superior Court overturned the trial court’s granting of summary judgment for MIA Products as it found there were still genuine issues of material fact as to who actually controlled Gardner as an employee. Though the court conceded that MIA Products personnel were present and directed Gardner on certain aspects of the job, they also cited deposition testimony that showed that DelVal personnel also transported Gardner to the site, provided work clothing, lockers for personal items, directed him on packing methods, provided a walkthrough of the facility, among other actions. As such, the court concluded that there were still issues as to whether Gardner was truly “borrowed” by MIA Products. This case demonstrates the important statutory employer and borrowed servant defense in Pennsylvania. These defenses can provide a company a complete defense in a case and bar a plaintiff’s claims against it if a court agrees, as tort claims against an employer are barred under Pennsylvania’s Workers’ Compensation Act. This case also demonstrates the difficulty with establishing the defenses, as well, as they are both very fact intensive with multiple elements to meet. In addition, if these defenses backfire then the record is set up to establish that a defendant exercised significant control over an area or plaintiff, thus possibly setting it up for more exposure. Thus, though the statutory employer and borrowed servant defenses are powerful in Pennsylvania, they do come with risks. Thanks to Peter Cardwell for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Subway False Advertising Suit Against Quiznos: Amateur Ad (Cold) Cuts Deep January 29, 2008 < Back Share to: Doctor's Associates, the owners of Subway, have commenced a lawsuit .against its competitor Quiznos based upon television commercials created by Quiznos as well as by amateurs in a 2006 ad campaign entitled "Quiznos vs. Subway TV Ad Challenge." Plaintiff charges defendants QIP Holder, a Quiznos subsidiary, and iFilm with making false claims and derogatory depictions of Subway sandwiches. The case is venued in the Federal District Court of Connecticut and will hinge upon the interpretation of the Lanham Act which prescribes trademark rights and the Communication Decency Act which safeguards the internet (commercials were posted on YouTube). http://www.nytimes.com/2008/01/29/business/media/29adco.html?_r=1&ref=business&oref=slogin Previous Next Contact

News WCM Wins Appellate Victory in $25 Million Art Loss February 1, 2013 < Back Share to: In March 2010, the now infamous art dealer Larry Salander pleaded guilty to a $120 million fraud scheme, admitting to stealing numerous works of art. Renaissance Art Investors LLC claimed that it was entitled to coverage for Salander’s theft of approximately $25 million in artwork under insurance policies issued by AXA Art Insurance Corporation. Wade Clark Mulcahy successfully obtained affirmance of the trial court’s decision that RAI is not entitled to coverage under the policies. RAI consigned its artwork to Salander, a principal of RAI, and the Salander O’Reilly Galleries LLC, a member of RAI. Ultimately, Salander and the Gallery betrayed RAI, stealing artwork valued at over $42 million. RAI made a claim to AXA under its commercial inland marine insurance policies, seeking indemnity for the theft. Litigation followed and the trial court awarded summary judgment in AXA’s favor, finding that there was no coverage for the loss under AXA’s policies. In a unanimous decision, the Appellate Division, First Department, recently ruled that the AXA policies contained an unambiguous dishonesty exclusion. The exclusion precludes coverage for losses arising from the dishonesty of an insured, anyone with an interest in the property, or anyone to whom the covered property is entrusted. The Court held that this policy exclusion applied to both Salander and the Gallery, who were entrusted with the artwork. In the decision -- which is sure to add another arrow to an insurance carrier’s quiver -- the First Department held that as a matter of law, insurance coverage only extends to fortuitous losses, even under all-risk policies. The Court further held that whether there was a fortuitous loss is a legal question to be resolved by a court. Applying this standard, the Court held that the fraud perpetrated by Salander and the Gallery, which resulted in the loss, was not fortuitous. In context, the Court suggests that even in the absence of an unambiguous exclusion, where the insured’s principal steals from the insured entity, the loss is not fortuitous and therefore not covered. Also of note, the Court held that RAI’s claim that AXA breached the implied covenant of good faith and fair dealing was duplicative of its breach of contract claim. Previous Next Contact

News COVID-19 Pandemic Claim For Damages Dismissed With Prejudice As Plaintiff Attempts To Flee To State Court (PA) October 1, 2021 < Back Share to: In the Eastern District of Pennsylvania case, Round Guys Brewing Company v. Cincinnati Insurance Company, Round Guys sought coverage for losses stemming from the omnipresent COVID-19 pandemic. Additionally, Round Guys attempted to remand the case back to Montgomery County, Pennsylvania, by arguing the case concerned matters of state law yet to be settled. In the next round, Chief Judge Sánchez addressed the merits of Plaintiff’s claims as compared to Defendant’s Motion to Dismiss. The court stated that the insurance policy was unambiguous in that it only covered valid claims with respect to “loss” as defined by the policy. Under Round Guys’ policy, a covered loss required an element of physical damage or loss. As numerous courts have held, government orders do not create a sufficient event that bypasses what is first necessary, nor does an order from the Governor suffice as physical damage. Chief Judge Sánchez also observed that the commonly absent “virus exclusion” in business interruption insurance contracts was an equally unappealing argument as it too would require a showing of direct physical loss to Plaintiff’s property. In the end, Defendant’s Motion to Dismiss was granted with prejudice, reinforcing the Eastern District as a favorable space for insurance companies to litigate when compared to the Pennsylvania Court of Common Pleas. Thanks to Richard Dunne for his contribution to this post. If you have any questions, please email Matthew Care. Previous Next Contact

News NY: A&B Sub-Limit Applies To Primary But Not Excess Policy November 30, 2011 < Back Share to: It is a harsh reality that courts will give policyholders every benefit of the doubt in interpreting the terms, conditions and limits of policies of insurance. Insurers must be careful to place their insureds on notice of significant exclusions and limitations through the use of clear, concise and plain language in their policy forms. Even trickier, most states require that insurers timely advise their insureds and claimants if they conclude that the policy does not cover a particular claim or loss. What obligation does an insurer have if it does not deny coverage outright but seeks to enforce a significant sub-limit of liability? Is the insurer bound by the same rules that control when the insurer seeks to disclaim liability? Recently, in Santa v. Capitol Specialty Insurance, LTD., et al., plaintiffs filed suit against a Manhattan night club arising out of an alleged assault on plaintiffs. The third party administrator for the primary insurer became aware of the claim after it received the summons and complaint, which contained a specific count based on assault. Nine months later during discovery, the attorneys for the policyholder disclosed, for the first time, that the primary policy was subject to an assault and battery sub-limit of $50,000. The insurance disclosure also identified an excess policy with limits of $4,000,000 but made no reference to the sub-limit contained in the primary policy. The claimants protested that the primary insurer must provide its full policy limits because it failed to provide timely notice of the assault and battery sub-limit. Further, they argued that the excess insurer must make its full policy limits available because its policy did not contain any explicit exclusion or sub-limit for claims based on assault and battery. Of significance, the court held that the primary insurer was not subject to the normal rules requiring timely notice of disclaimer because it was not disclaiming or otherwise denying coverage. Rather, it was providing “the full measure of coverage available for the incident,” just with a reduced sub-limit of liability. On the other hand, the excess insurer did not fare as well. The court cited a number of problems with the excess insurer’s stance including its failure to exclude or specifically minimize its limits of liability for claims based on assault and battery. Further, the court was troubled by the excess insurer’s failure to put the claimant on notice of the sublimit when the insurance disclosure was furnished to the claimant’s attorney during discovery. The lesson of Santa is clear: while Santa may overlook minor errors in conduct and still arrive bearing gifts, insurers can expect no such generosity from the courts. Be clear, accurate and specific in the language contained in your policies and the disclosures made to your insureds and claimants. http://pdf.wcmlaw.com/pdf/santa.pdf If you have any questions or comments about this post, please contact Paul at pclark@wcmlaw.com Previous Next Contact

News Louboutin's Ruby Soles May Soon Have More Company In Oz. August 15, 2011 < Back Share to: Christian Louboutin has made a good living understanding the psychology of shoes. His good fortune may be about to change. In Louboutin v. Yves Saint Laurent America, Inc., 11 Civ. 2381 (S.D.N.Y. Aug. 10, 2011), Louboutin sued YSL for trademark infringement of its famous red soles. After some initial discovery, Louboutin moved for a preliminary injunction stopping YSL from using red soles in an upcoming fashion line. To obtain a preliminary injunction, Louboutin had to show a "likelihood of success on the merits." In evaluating the history the red sole, the Court traced its history to "King Louis XIV's red-heeled dancing shoes or Dorothy's famous ruby slippers in 'The Wizard of Oz.' " The court also found that in fashion, color serves ornamental and aesthetic functions vital to competition. Accordingly, the court found that Louboutin's trademark was overly broad and its continuation would likely hinder competition. YSL did not move for summary judgment, but the court encouraged it to do so, and indicated on such a motion it would likely revoke Louboutin's trademark. We can bet that this decision won't die down quietly, and will be appealed, as the red soles are "fashion to die for!" Special thanks to Cheryl Fuchs for her contributions to this post. For more information about it, or WCM's intellectual property practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Trial Court Dismisses Insurers’ Declaratory Judgment Action Challenging Coverage for Child Victims Act Claims < Back Share to: On December 14, 2023, a New York County trial judge granted the Archdiocese of New York’s (“ADNY”) pre-answer motion to dismiss a declaratory judgment action filed by certain insurers challenging coverage for New York Child Victim’s Act (“CVA”) claims against ADNY. The CVA extends the statute of limitations for survivors of child sexual abuse for criminal and civil cases. In Century Indemnity Co. v. The Archdiocese of New York , Chubb and certain affiliates sought a declaration that they had no duty to defend or indemnify ADNY in over 1,000 CVA actions alleging sexual abuse that took place from the 1950’s to the 1980’s. The insurers issued numerous primary and excess policies from 1956 to 2003 and have been defending ADNY and other associated policyholders under a reservation of rights. The insurers claimed, among other things, that claims of sexual abuse did not trigger coverage because they were not accidents or “occurrences” caused by negligence, but instead alleged intentional torts and strict liability. The insurers also asserted notice and known loss defenses. ADNY argued that the complaint should be dismissed because it sought a blanket determination of no coverage for over 1,000 actions, each having their own unique facts, without citing any specific policy language, case facts or instances of late notice. ADNY further asserted that the insurers refused to adjust the claims on a case-by-case basis and that the complaint was riddled with conclusory allegations which were deficient as a matter of law. The insurers argued that the only question presented on a pre-answer motion is whether a proper case has been presented to invoke the court’s jurisdiction to issue a declaratory judgment, not whether they were entitled to a favorable declaration. The insurers further argued that they plead sufficient facts to put ADNY on notice that the policies only cover bodily injury caused by an accident and that publicly available information shows that the injuries caused by the alleged sexual abuse were intentional. The trial court disagreed and found that the allegations in the complaint were conclusory and that the insurers failed to set forth facts that would support declaratory judgment. Specifically, the Court found that the insurers failed to cite any specific facts or policy language or point to any underlying claims that are not premised on a theory of negligence. Rather, the Court observed that the “plain language” of the policies covers bodily injury and negligence and that it was “obvious” that the policies covered the CVA actions since they alleged negligence. The Court would not issue a blanket declaration of no coverage and that, at the very least, the insurers are obligated to defend ADNY in the lawsuits. The insurers have filed a Notice of Appeal. It remains to be seen how the Appellate Division will rule on the appeal given the liberal pleading rules in New York and the sweeping, conclusory nature of the complaint in the case. Coverage for New York CVA and related Adult Survivors Act (“ASA”) claims is a developing topic which raises a number of important issues which impact the insurance industry. WCM is actively monitoring the CVA and ASA litigation and will report on any significant future developments. Thank you to Brendan Gilmartin for his contribution to this post. Please contact Andrew Gibbs with any questions. Century Indem. Co. v. Archdiocese of NY .pdf Download PDF • 320KB Previous Next Contact

News Settlor, Beware (NJ) May 16, 2019 < Back Share to: In Estate of Atanasoski v Arcuri Agency Inc. , the New Jersey Appellate Division recently found that a third-party’s broker malpractice claim was completely vitiated based on her settlement with the insured. The background facts are as follows: Arcuri and Archer procured insurance for their client, Schripps – a bread delivery company – that included a $1 million commercial auto policy, and a $5 million excess policy that specifically excluded commercial auto liability. In July 2017, a Schripps commercial auto was involved in an accident, resulting in the death of a pedestrian. His widow, the Plaintiff, initiated a wrongful death suit, and quickly realized insurance coverage was limited to the $1 million auto policy. Thus, Plaintiff included claims of broker malpractice against Arcuri and Archer in the lawsuit, alleging it was professional negligence not to advise Schripps of the need for excess insurance on its business autos, particularly given that this was a delivery business, with commercial vehicles in constant use. Plaintiff ultimately settled with Schripps for $940,000, an amount within the commercial auto policy limits, and paid out under that policy. In the settlement agreement, Schripps expressly did not admit any liability for the fatal accident. The Appellate Division found that this settlement, clearly mooted the claims against the broker, because any potential excess coverage would not have been exposed based upon the set point of damages the parties agreed to therein. One must assume that Plaintiff was not aware of the risk she undertook by settling out with Schripps, the insured, within the policy limits of the primary policy. Accordingly, this case is a stark reminder that, in legal actions, one must fully evaluate all contingencies and the ripple effects of any settlement with one defendant. Thank you to Vivian Turetsky for her contribution to this post. Please email Colleen E. Hayes with any questions. Previous Next Contact

News NY's Second Dept. Rules Criminal Activity Must Be Similar to Support Verdict January 26, 2010 < Back Share to: In Beato v. Cosmopolitan Associates, LLC, the plaintiff, a tenant of defendant Cosmopolitan, was assaulted by a group of men in the lobby of the building. At trial plaintiff testified that he had previously complained to the building superintendent that a group of men was loitering in the lobby and he suspected they were selling drugs. The jury found in favor of plaintiff on the issue of liability and determined that defendant Cosmopolitan was 75% at fault. Plaintiff was awarded $1,500,000 for past pain and suffering, $250,000 for past medical expenses, $3,500,000 for future pain and suffering and $1,500,000 for future medical expenses. On appeal, defendant Cosmopolitan argued that on the issue of liability, the judgment was not supported by legally sufficient evidence. The court found for defendant Cosmopolitan and set aside the verdict. The court explained that a landlord is only liable for the safety of its tenants when third-party criminal conduct is reasonably predictable based on prior occurrence of the same or similar criminal activity. The court held that plaintiff’s testimony concerning his previous complaints of loitering and suspected sales of drugs in the lobby was not sufficient evidence to establish that the assault was reasonably foreseeable. Thanks to Katusia Lundi for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_00458.htm Previous Next Contact

News UK Product Manufacturer Stuck in NJ February 8, 2010 < Back Share to: The world is truly a global marketplace. Product manufacturers seek to sell their wares throughout the globe but are understandably concerned about being subjected to countless schemes of liability in the U.S. and beyond. What's a manufactuer to do? The most common answer is to associate with a foreign distributor who has the "boots on the ground" to sell the product and hopefully insulate the manufacturer from lawsuits in the foreign market. In Nicastro v. McIntrye Machinery America Ltd, the New Jersey Supreme Court wrestled with the question of whether a foreign manufacturer was subject to jurisdiction despite having insufficient contacts with the Garden State to satisfy the traditional tests of personal jurisdiction. In Nicastro, plaintiff lost 4 fingers while working on an allegedly defective recycling machine used to cut metal. The U.K. based manufacturer did not directly manufacture or market its equipment in New Jersey. However, it used an exclusive U.S. distributor who marketed McIntrye's machinery on a national basis. The manufacturer's president also attended several national trade shows in the U.S. over the years to support the sales effort of its distributor and was aware of the strategy of selling his company's equipment througout the U.S. Relying on the "stream of commerce" theory, the New Jersey Supreme Court ruled that the manufacturer was subject to jurisdiction and had to fight the case in a New Jersey court. Although its direct contacts with New Jersey were almost non existent, the Supreme Court noted that McInrye knew or should have reasonably known that the distribution of its product through a national distributor naturally lead to the sale of its machines to consumers in New Jersey. This knowledge was enough to support New Jersey's power to hear the case. The trend is for U.S. courts to support the exercise of jurisdiction over foreign manufacturers no matter have slim the reed supporting personal jurisdiction. The traditonal concepts of "minimum contact" or "presence within the state" are seemingly outdated given the outsourcing of product manufacturing beyond U.S. shores. A lesson learned: what the markets giveth, the courts (and juries) can taketh away. http://www.judiciary.state.nj.us/opinions/supreme/A2908NicastrovMcIntyreMachinery.pdf Previous Next Contact