News OSHA Violation not Applicable to Produce Market Forklift Mishap (PA) November 9, 2017 < Back Share to: In Pennsylvania, in determining whether a duty exists in a negligence action, a court may look to a “legislative enactment or an administrative regulation” for the standard of conduct of a reasonable person. To that end, Pennsylvania courts sometimes rely on regulations by the Occupational Safety and Health Administration (“OSHA”), which is part of the US Department of Labor, to determine whether an employer has a duty in a negligence claim—after all, part of its mission is to assure safe working conditions by setting and enforcing standards. The question in Kovacevich v Regional Produce Cooperative Corporation was whether a policy in OSHA’s Field Inspection Reference Manual constituted an “administrative regulation,” thereby triggering a duty of care on defendant Regional Produce Cooperative Corporation (“RPCC”). Defendant RPCC is a management company that operated a wholesale produce market. Plaintiff was a tenant leasing space in the market. In February 2013, one of plaintiff’s co-workers drove a pallet jack full of fruit “forks first” into plaintiff’s back, causing serious injuries. The plaintiff relied on an OSHA regulation that provides that an employer must train and certify operators of powered industrial trucks, such as forklifts. Although RPCC did not employ the forklift operator, plaintiff argued that the market was a multi-employer worksite; per OSHA policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard if they are a “controlling employer.” According to plaintiff’s theory, since RPCC owned the market where industrial trucks operate, it had a duty to ensure operators were trained and certified. At the close of trial, the judge entered a nonsuit in favor of defendant RPCC, finding that a jury could not reasonably hold RPCC liable on its OSHA-based theory of premise liability. On appeal, the Superior Court affirmed the trial court’s ruling. The Superior Court relied on Supreme Court precedent which distinguishes between administrative regulations (which set standards of care) and guidance documents (which describe enforcement policies). The Superior Court deemed the “controlling employer” policy was not a regulation but an OSHA compliance directive and the directive’s intent was to guide OSHA regulators in dealing with multi-employer worksites by giving them the power to cite numerous employers for a violation if they have some level of control or responsibility over the worksite. Historically, courts have only applied the “controlling employer” directive to construction sites, where there are numerous contractors and subcontractors and here the court was not persuaded to extend the application to a produce market. Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Pennsylvania Law Stands Firm: Unlicensed Driver Exclusion Rejected For Medical Expense Coverage December 15, 2023 < Back Share to: Insurance policies often contain exclusion clauses designed to mitigate risks, yet the treatment of unlicensed drivers within these agreements remains a contentious issue. In particular, the denial of coverage for accidents involving unlicensed drivers has sparked legal debates across various states. The Superior Court of Pennsylvania held in Nationwide v. Castaneda that for the purposes of first-party medical expense benefits, unlicensed driver exclusions may not apply under Pennsylvania law. Nationwide Prop. & Cas. Ins. Co. v. Castaneda, 2023 PA Super 253, 2023 WL 8391516 (Dec. 5, 2023). In the underlying case, the daughter of the insured, with her mother’s permission but without a valid license, was rear-ended while operating her mother’s car. The daughter subsequently sustained severe injuries. The mother, under her auto policy, submitted a claim for first party medical expense benefits, which Nationwide denied under the policy’s “unlicensed driver exclusion”. The trial court agreed no coverage was owed. On appeal, the insured argued that even if the exclusion as written applied, the Motor Vehicle Financial Responsibility Law (“MVFRL”) made the exclusion invalid for the purposes of first party medical expense benefits . The Superior Court agreed. Citing to Section 1711 of the MVFRL, the court noted that it “specifically mandates that policyholders purchase, and insurers provide coverage for, first party medical expenses for injuries arising from the use of a motor vehicle”. Castaneda at 4. In other words, medical coverage was explicitly listed as the single benefit under Section 1711 that was to be considered a “Required Benefit”. The Court then dug into the intent of the General Assembly and remarked that by making medical expense coverage mandatory under the law, it was clearly intended to be treated differently from other first party benefit coverage. As the final nail in the coffin, the court cited to Section 1718 of the MVRFL, which sets out an enumerated list of limited circumstances when the insurer may exclude someone from the benefits of medical expense coverage. As an “unlicensed driver” exclusion was not part of the enumerated list written by the legislature, it could not be used as a means of denying “otherwise mandated coverage for first party medical benefits”. Id. at 6. The Court noted that if insurers could add to the statutory list of exclusions to deny coverage, the mandate would unreasonably be diluted to the point of losing its effect. In conclusion, because the insured’s medical expense claim did not fall under one of the limited exclusions set forth in Section 1718, Nationwide did not have a valid exclusion to rely on to refuse coverage in this limited context. The Superior Court was clear that their conclusion was to be read strictly within the confines of claims made for first party medical expense benefits. Insurers may still exclude benefits if injury arises out of intentional action by the insured, or other enumerated reasons set forth in 1718. Nationwide Property and Casualty Insurance Company v. Castaneda .pdf Download PDF • 195KB Previous Next Contact

News Broad Allegations of Injury Can Lead To Extensive Discovery January 7, 2011 < Back Share to: In DeLouise v. S.K.I Wholesale Beer Corp., the Second Department supported the defendant’s entitlement to obtain medical records related to the plaintiff’s prior injuries. In reversing the lower court’s denial of the defendant’s motion to compel the plaintiff to provide authorizations for certain medical and hospital records relating to the plaintiff’s previous medical conditions/injuries, the Second Department emphasized that a party waives the “physician-patient privilege by affirmatively putting his or her physical or mental condition in issue." DeLouise had made broad allegations of physical injuries and mental anguish, thereby putting his prior injuries and medical condition at issue. In fact, the court noted that the prior injuries and conditions were “material and necessary to [the plaintiff’s] claims of having sustained a serious injury within the meaning of Insurance Law § 5102(d), as well as to any claim of loss of enjoyment of life.” Thanks to Lora Gleicher for her contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09883.htm Previous Next Contact

News Pet Insurance on the Rise January 24, 2012 < Back Share to: Over the past fifteen years, the pet insurance industry has gone from virtually nonexistent to an estimated $880 million in premium revenues by 2014. As costs for veterinary services (and, more importantly, demand for veterinary services) has skyrocketed in recent years, so has the demand of insureds attempting to reduce their own costs for such procedures. Some companies offer monthly premiums for pet medical insurance, with a variable per-incident cap, depending on the amount of the premium. Such insurance makes pet owners more comfortable, rather than face the potential of an exorbitant bill for pet surgery. For example, the attached article references a cat undergoing kidney replacement surgery at a cost of $18,000. A pet insurance endorsement may not cover the entire cost of such a procedure, but it could certainly reduce the final bill. http://www.insurancejournal.com/news/east/2012/01/20/231917.htm Thanks to Brian Gibbons for his contribution to this post.   Previous Next Contact

News Gym Owner Found Not Liable For Treadmill Accident (NY) April 21, 2023 < Back Share to: New York gym and health club owners are held to the same duty of care as commercial landowners with regard to defective or dangerous conditions on their premises. In Alcantara v. Blink Fitness, the Supreme Court, New York County addressed whether a gym was negligent and responsible for an accident involving a treadmill. The plaintiff in that case was allegedly injured when she was “thrown off” a treadmill after it allegedly “sped up beyond her ability”. The gym moved for summary judgment, arguing that there was no defective or dangerous condition and that the gym lacked notice of any such condition. The Court observed that the gym was required to affirmatively demonstrate either (1) the absence of a defective or dangerous condition or (2) that it did not launch an instrument of harm and that they lack actual or constructive notice of a dangerous or defective condition. The Court held that there was no evidence that the treadmill malfunctioned and that the plaintiff “apparently pressed a control button that caused the machine to operate at a pace that apparently exceeded her ability to safely utilize the treadmill.” The Court added that the plaintiff had previously used the machine and that this was an “obvious risk” inherent in using this specific treadmill. The Court further found that there were no records of complaints regarding the treadmill and granted the gym’s motion. The Alcantara decision serves as a reminder that gym and health club owners are subject to the standard burden of proof and defenses in New York premises liability cases but may also have an “inherent risk” defense if the claim involves exercise equipment. Please contact Corey Morgenstern with any questions. Previous Next Contact

News It’s Not Your Fault (PA) February 22, 2019 < Back Share to: In Precision Underground Pipe Servs. v. Penn Nat’l Mut. Cas., Verizon entered into a contract with Parkside to install an underground conduit for Verizon’s fiber optic cable in Villanova, Pa. Under this agreement, Parkside was required to name Verizon as an additional insured and to indemnify Verizon. Parkside subsequently contracted with Precision to provide additional labor. Under this agreement, Precision was required indemnify Parkside and Verizon and name them as additional insureds on their Penn National policy. The Penn National policy included an “Automatic Additional Insureds-Owners, Contractors, and Subcontractors" endorsement, which stated the following would constitute an additional insured under the policy: “[a]ny person(s) or organization (s) . . . with whom you are required in a written contract or agreement to name as an additional insured, . . . caused, in whole or in part, by: (1) your acts or omissions; or (2) the acts or omissions of those acting on your behalf in the performance of your ongoing operations”. An employee of Precision suffered injury while working at the work-site and filed a complaint against Verizon and Parkside. Penn National refused to provide a defense and indemnity to Verizon and Parkside. In determining whether Verizon and Parkside were entitled to defense and indemnity, the court looked to the underlying complaint. The court reasoned the complaint lacked any indication that Precision committed any act or omission that lead to the plaintiff’s injury. Specifically, the plaintiff’s complaint alleged wrongdoing on the part of Verizon and Parkside but did attribute fault Precision. Therefore, the court concluded no additional insured coverage was provided under the policy because there were no allegations that the plaintiff’s injuries were caused by Precision. Thus, this opinion emphasizes the importance of scrutinizing the underlying complaint’s language when dealing with duty-to-defend matters. Thanks to Rachel Thompson for her contribution to this post. Please email Colleen Hayes with any questions. Previous Next Contact

News Is the Independent Medical Exam Landscape about to Change in Pennsylvania? February 8, 2019 < Back Share to: The Pennsylvania Supreme Court has granted the Third Circuit’s petition for certification of a question of law that has puzzled insurers and their attorneys. The issue is whether an insurer can mandate that claimants undergo an unlimited number of medical exams by a doctor of the carrier’s choosing -- without a court order -- before they can receive first-party medical benefits. Insurance companies such as Allstate have been including contractual provisions in their motor vehicle insurance policies that requires insured to submit to independent medical examinations by a physician selected by the insurer, "when and as often as the insurer may reasonably require," as a condition precedent to the payment of benefits. The problem is that these provisions may conflict with the Motor Vehicle Financial Responsibility Law (“MVFLR”), 75 Pa.C.S. Section 1796(a), which gives courts the authority to order such examinations. In Sayles v. Allstate, U.S. District Judge A. Richard Caputo of the Middle District ruled that Allstate’s policy provision conflicted with the state MVFLR because the plain language of Section 1796 prohibits precisely this type of provision. The plaintiff in Sayles argued that Allstate violated the MVFLR because it never petitioned the court to compel the independent medical exam. Allstate argued that the MVFRL does not mandate a court order and it only suggests when a court may order a person to submit to an IME. But there is no prohibition in the MVFLR that requires court intervention before an insurer requests medical examinations before paying 1st party benefits. Once the Pennsylvania Supreme Court rules on this question of law, both auto insurers and insurance attorneys will know how to proceed with respect to independent medical examinations, and whether court intervention will be necessary in advance of every such examination. Previous Next Contact

News NY Court of Appeals addresses high low agreements. September 22, 2007 < Back Share to: Court holds that whenever a plaintiff and a defendant enter into a high-low agreement in a multi-defendant action which requires the agreeing defendant to remain a party to the litigation, the parties must disclose the existence of that agreement and its terms to the court and the non-agreeing defendant(s). http://www.nycourts.gov/ctapps/decisions/jun07/89opn07.pdf Previous Next Contact

News US Supreme Court Issues Major Asbestos Decision. March 8, 2012 < Back Share to: In the case of Kurns v. Railroad Friction, the US Supreme Court was faced with the preemptive scope of the Locomotive Inspection Act (LIA). In a 6-3 decision, the Supreme Court affirmed the Third Circuit and effectively overruled the PA Supreme Court decision in Norfolk & Western v PA Public Utility Commission, 413 A.2d 1037 (pa. 1980). In Norfolk, the PA Supreme Court held that PUC regulations affecting locomotives in interstate operation were not preempted under the BIA and the Supreme Court Napier opinion and thus state law tort claims could proceed. The US Supreme Court disagreed and held that the the federal regulations preempted state law tort claims. Does this (finally) mean a decrease in asbestos litigation? Stay tuned to find out. Special thanks to Clayton Thomas for his contributions to this post. For more information, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .     Previous Next Contact

News Vague Policy Language Opens the “Floodgates” to Challenge Disclaimers (NJ) May 2, 2019 < Back Share to: In a recent decision by the New Jersey appeals court, the Court ruled that a homeowner disputing their insurance company’s decision to disclaim coverage for damage caused by a burst municipal water main was not barred by a water damage exclusion in his homeowner’s insurance policy. A three Judge panel reversed the trial court’s decision to grant Massachusetts Bay Insurance Co. summary judgment on plaintiff’s, Adrian Sosa, claim that he was wrongfully denied coverage for damage to his home caused by a burst municipal water main. Specifically, the Court held that the trial court improperly ruled that the plain language of the water damage exclusion in plaintiff’s policy, which excludes coverage for damage caused by surface water or by flood barred plaintiff’s claim seeking coverage. The decision indicates that the exclusion, as it was written into the policy, does not bar all claims from damage caused by water, only the types of damage highlighted in the policy regarding surface water and flooding. The Court further stated that neither of those categories fit plaintiff’s claim. Plaintiff’s claim indicates that his house was flooded, however, that did not mean the water was a flood as reasonably defined. The Court defined a flood as a general inundation and must affect a wide area, which is not what plaintiff claimed to have occurred. The Court noted “This definition is consistent with the view of other jurisdictions that a ‘flood’ connotes a great inundation or deluge affecting a broad area, and not the kind of localized water damage that a water-main break causes.” Thanks to Jon Avolio for his contribution to this post. Please email Brian Gibbons with any questions.   Previous Next Contact

News Underinsured Motorist Benefits Exempt from Pennsylvania’s Double Recovery Rule April 12, 2013 < Back Share to: Recently, the Pennsylvania Supreme Court denied allocatur in the case of Smith v. Rohrbaugh wherein the defendant-appellant contended that underinsured motorist (“UIM”) benefits should constitute first-party payments for the purposes of calculating double recovery under 75 Pa. C.S. § 1722. As a result, the Supreme Court implicitly affirmed the intermediate appellate court’s overruling of Pusl v. Means which had previously insulated defendants from jury verdicts less than the benefits received under a plaintiff’s own policy. In Smith, the plaintiff was rear-ended when the defendant failed to stop her vehicle in time, causing various damages including physical injuries and lost wages. The plaintiff initially filed a claim for UIM benefits against his own automobile policy and settled for $75,000 before instituting a lawsuit against the defendant. Following a jury trial in which the plaintiff was awarded roughly $50,000, however, the defendant filed a motion to mold the verdict to zero in consideration of the UIM benefits received by plaintiff. While the trial court granted the motion, the Pennsylvania Superior Court ultimately declined to equate the UIM benefits to first-party payments. Specifically, the Superior Court recognized that its previously controlling decision in Pusl v. Means was wrongly decided insofar as § 1722 of the Pennsylvania Code does not apply to UIM benefits. According to the court, § 1722 provides an exhaustive list of statutorily defined benefits that limit further recovery at law. Included among these benefits are “first-party payments” that are not statutorily defined as incorporating UIM benefits despite the courts’ colloquial tendency to use the terms interchangeably. As a result, the Superior Court expressly overruled its precedent in Pusl and thus removed safeguards that traditionally inoculated defendants from judgments not in excess of UIM benefits received. Although the Superior Court’s decision in Smith was rendered during the latter part of 2012, the Supreme Court’s recent denial of allocatur tacitly affirms the shift below and should caution defendants against relying exclusively on the double recovery rule as a means of limiting liability. Thanks to law clerk Adam Gomez for his contribution to this post. If you have any questions or comments, please email Paul at pclark@wcmlaw.com Previous Next Contact

News New Jersey Limits The Duty of Sports Operators and Owners April 22, 2008 < Back Share to: The danger of being struck by an errrant baseball or hockey puck during a game is a well recognized risk of injury to spectators. A field owner customarily satisfies its limited duty of care by providing protection in the most dangerous sections of the field or stadium. What is the duty of care during warmups before a hockey game where numerous pucks are shot and the attention of the fans may not be strictly on the ice? In Sciarrotta v. Global Spectrum, the New Jersey Supreme Court held that the "limited duty rule" applies to warmups as well as games. Thus, an owner/operator satisifies its limited duty by furnishing proper screening and protection in the most dangerous stadium areas. The Supreme Court found no meaningful distinction between injuries that are caused by objects leaving the field of play during practice or warm-ups as opposed to an actual game. http://lawlibrary.rutgers.edu/decisions/supreme/a-28-07.doc.html Previous Next Contact