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News U.S. Supreme Court's Decision Not To Review Enron Case Sounds The Death Knell To Lawsuit January 24, 2008 < Back Share to: Enron investors' lawsuit, attempting to recoup losses from investment banks that did business with the defunct energy company, suffered a major setback when the United States Supreme Court refused to review a lower court's ruling which dismissed this theory of liability. Notably, a week earlier, in a different, but similar action involving investors of Charter Communications, the Supreme Court ruled investors in that case did not have a right to sue outside entities that did business with Charter Communications because those investors did not rely on the deceptive acts of those entities. http://www.nytimes.com/2008/01/23/business/23enron.html?_r=1&scp=2&sq=Enron&st=nyt&oref=slogin Previous Next Contact

News Lowering the Bar? (NY) February 6, 2019 < Back Share to: The Appellate Division, Second Department, recently took up the issue of whether a plaintiff involved in a motor vehicle accident may recover damages for lost earnings despite failure to prove a serious injury as defined by Insurance Law § 5102(d). In Gore v. Cardany 2018 NY Slip Op 08632 (2d Dep’t 2018), plaintiff was rear-ended by the defendant while stopped at a red light. Plaintiff then commenced an action to recover damages for personal injuries allegedly sustained to his neck, back and left shoulder. At the time of the accident, plaintiff was in the course of his employment as a bus driver, and sought additional damages for past and future lost earnings in light of his inability to work following the accident. Plaintiff was granted summary judgment on the issue of liability and the case proceeded to trial on the issue of damages. A Westchester County jury found that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law § 5102(d), awarding him nothing at all for pain and suffering. Despite concluding that plaintiff had not sustained a serious injury, however, the jury awarded plaintiff for past lost earnings in the amount of $156,000 and future lost earnings in the amount of $750,000 (over 15 years.) Defendant thereafter moved to set aside this portion of the jury verdict. The trial court agreed, setting aside the verdict as to all damages. On appeal, the Appellate Division reinstated the award for past lost earnings in the sum of $156,000, finding that plaintiff had established these damages with “reasonable certainty,” and as such, plaintiff had satisfied his burden of proof (see Lodato v. Greyhawk N. Am., LLC, 39 AD3d 494, 495; Harris V City Of New York, 2 AD3d 782, 784). Relying on provisions of the Insurance Law, the Court held that “a plaintiff is not required to prove that he or she sustained a serious injury as defined by Insurance Law §5102(d) in order to recover for economic loss exceeding $50,000 incurred as a result of a motor vehicle accident (see Insurance Law § 5104[a].” (Internal citations omitted). Thus, plaintiff’s own testimony that he had been unable to work because of the injuries sustained in the accident, together with submission of his W-2 forms, was sufficient to meet his burden of proof. By contrast, plaintiff failed to provide any competent medical evidence that he would be unable to perform any work in the future, and therefore failed to prove his damages for future lost earnings with the required reasonable certainty. Nevertheless, plaintiff was permitted to recover $156,000 for lost earnings despite failure to prove that he had sustained a serious injury under the Insurance Law. Thanks to Tyler Rossworn for his contribution to this post. Previous Next Contact

News Appellate Court Grants Product Recall Insurers Big Win. November 11, 2011 < Back Share to: There aren't many product recall decisions out there, but every once in a while they come along. In the Fresh Express case in California, contaminated spinach was at issue. The trial court ruled for the insured and awarded policy limits of $12,000,000. The case went up on appeal and the California appellate division has now justweighed in. The appellate division reversed the trial court. Of significance, the appellate division held that not every contamination is an insured event, i.e. not every contamination is accidental thereby triggering coverage. This is good news for product recall insurers as insureds (and courts) have a tendency to equate the two. For more information about this post or WCM's product recall practice, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News Failure to Memorialize Mediated Settlement in Writing Fatal to Motion to Enforce Settlement May 17, 2024 < Back Share to: In Napolitano v. European Construction Professionals LLC, et al., the Appellate Court granted two Plaintiffs’ appeals: one from a motion to enforce a settlement filed on behalf of Defendants, and one denying Plaintiffs’ motion for reconsideration. Plaintiffs hired Defendant European Construction Professionals to build a home on their vacant lot in Bayonne, New Jersey. The parties signed a construction contract, and European began work on the new construction in June 2014. By the fall of 2014, Plaintiffs noticed a significant delay in the progress the parties had agreed upon in their contract. In 2015, the City of Bayonne took notice that the house had failed multiple inspections and ordered Defendants to cease all work on the home. European was given a deadline of May 1, 2015 to remedy all deficiencies in the house, which they were unable to do. Plaintiffs filed suit, alleging breach of contract, breach of warranty, fraudulent misrepresentation, unjust enrichment, negligence, and multiple statutory violations. The parties attended a mediation in November 2022, which resulted in the mediator providing both parties a letter suggesting a settlement amount of $840,000. Plaintiffs’ and Defendants’ counsel initially expressed a willingness to discuss with their clients, but conversations tapered off when Defendants’ counsel had surgery. The parties never executed a formal settlement agreement and no release was circulated. Nonetheless, Defendants filed a motion to enforce the settlement, which Plaintiffs opposed. The trial judge found that the mediator’s 2022 letter constituted a “meeting of the minds” to which Plaintiffs were bound. On appeal, the Appellate Court found that the trial judge was mistaken in her conclusion. New Jersey’s prior case law holds that a settlement reached at mediation is not enforceable without a written agreement signed by each party. This case law applies regardless of whether the mediation was voluntary or court-ordered. While mediation can lead to early settlements prior to trial, it is imperative that lawyers follow the court rules properly and stay diligent with their deadlines regardless of any personal problems or difficulties. Napolitano v. European Construction Professionals LLC .pdf Download PDF • 130KB Previous Next Contact

News NY Holds No Duty For Health Club To Use Defibrillator February 7, 2011 < Back Share to: < ![CDATA[NY Holds No Duty For Health Club To Use Defibrillator]]> Previous Next Contact

News Naked Cowboy Files Legal Briefs February 15, 2008 < Back Share to: The "Naked Cowboy", a tourist attraction in NYC's Times Square for over a decade has sued Mars, Inc., the makers of M&Ms for trademark infringement over a billboard depicting an M&M in what appears to be the Naked Cowboy's unique outfit. http://www.cnn.com/2008/CRIME/02/14/naked.cowboy/index.html Previous Next Contact

News Cleaning Service Cannot Sue for Failure to Clean (NY) April 4, 2018 < Back Share to: In Rojas v 1000 42nd St., LLC, the Appellate Division, Second Department unanimously reversed a lower court ruling that denied defendant’s motion for summary judgment. In Rojas, plaintiff allegedly slipped and fell on a piece of cardboard in the basement of a residential building in Brooklyn. She testified that at the time of the accident, she was employed to clean the subject building, including the weekly removal of garbage and recycling from the basement. She was engaged in the performance of this task at the time of the accident and testified “there was a lot of garbage” in the basement, including “cardboard all around.” The Court acknowledged that while a landowner has a duty to provide workers with a safe place to work, one “need not guard against hazards inherent in the worker’s work.” The Court found defendants met their burden by showing the risk of slipping on cardboard was inherent in plaintiff’s work, relying on Wagner v Wody and Imtanios v Sachs. This is the first time the Court has ruled unanimously as both Wagner and Imtanios had dissenting opinions. In Wagner a sanitation worker was injured when a piece of glass in the garbage bag he was lifting pierced his leg. The Court found that a worker “may not hold others responsible if he elects to perform his job so incautiously as to injure himself.” In Imtanios, a porter was injured when he slipped on discarded computer parts. The Court found that defendants owed no duty to plaintiff to keep the floor clean as that would lead to the absurd conclusion that one was to hire a cleaning service to clean the premises for the cleaning service. It is refreshing to see courts using common sense in slip and fall cases brought by people hired to remedy the very condition that is the cause of their injury. Thanks to Mehreen Hayat for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Plaintiff Bitten By UM Decision (NY) September 19, 2013 < Back Share to: In Matter of Allstate v. Reyes, the Appellate Division, Second Department, was faced with an unusual case in which it had to determine just how liberally it was willing to interpret coverage provided in automobile policies for injuries arising out of the “ownership, maintenance, or use” of the motor vehicle. Deborah Reyes was walking in front of a Sunoco Mart in Poughkeepsie, New York, when she brushed past a parked car with its windows down. A Rottweiler poked its head out from inside the vehicle and bit Reyes on her right breast. Reyes brought an action against the owner of the vehicle, which was settled for $25,000 – the limits of the GEICO policy insuring the owner. Reyes next turned to her own auto insurer, Allstate Insurance Company, to recover under the supplementary uninsured/underinsured motorist endorsement. Determining that Reyes's injuries did not arise "out of the ownership, maintenance, or use of an underinsured vehicle," Allstate denied coverage. Reyes sought arbitration, which Allstate petitioned to permanently stay. But the trial court allowed the matter to proceed to arbitration because it held the injuries arose "out of the ownership, maintenance, or use of an underinsured vehicle." The Appellate Division, Second Department, reversed the trial court and held that the injuries were not covered under the Allstate policy. The court ruled that “[t]o satisfy the requirement that it arose out of the ‘ownership, maintenance or use of’ a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury.” The court found that Reyes’ injuries did not result from the vehicle itself or its inherent nature, but instead the dog was the cause of her injuries. Thanks to Steve Kaye for his contribution to this post. If you would like more information, please write to Mike Bono.     Previous Next Contact

News Whistleblowers While You Work – Pennsylvania District Court Analyzes Whistleblower Claim and Grants Summary Judgment for Employer May 6, 2021 < Back Share to: Recently, the United States District Court for the Eastern District of Pennsylvania partially granted a Defendant’s motion for summary judgment on the basis that the Plaintiff lacked any reasonable belief that the company violated any law of the Sarbanes-Oxley Whistleblower (“SOX”) Act. In Ngai v. Urban Outfitters Inc., plaintiff, who was Director of Sourcing and Technical Design for Urban Outfitters, had made allegations of improper conduct by certain outside vendors Urban Outfitters worked with. Specifically, Plaintiff believed suppliers were purposely inflating production costs, paying kickbacks to senior executives, and creating conflicts of interest in violation of Urban Outfitter’s policies. Additionally, Plaintiff claimed his employer created a hostile work environment. Plaintiff complained to supervisors, then hired a lawyer, and five months thereafter, Plaintiff was terminated from his employment. Plaintiff sued, believing his termination was due to retaliation for his complaints of age and national origin discrimination. Defendant’s Motion for Summary Judgment was denied with respect to Plaintiff’s claim that his termination was motivated by age in violation of ADEA and his complaints about national origin and age discrimination. However, the Court held the Plaintiff failed to establish any reasonable belief his previous employer engaged in conduct under SOX. Section 806 of SOX prohibits publicly traded companies from retaliating against whistleblowers for providing information to their supervisors regarding any conduct which the employee reasonably believes constitutes a violation of various SOX sections. The Court determined Plaintiff failed to prove he had a subjectively reasonable belief of a violation because the Plaintiff believed he was reporting violations of company policies, not violations of federal statues covered by SOX. Therefore, the Court held summary judgment in favor of the Defendant’s regarding Plaintiff’s SOX claim. This decision highlights a whistleblower’s need to believe a violation of one of the provisions in SOX is reasonable, in addition to claiming a violation of company policies. Thanks to Madeline Troutman for her contribution to this post. Should you have questions, please contact Thomas Bracken. Previous Next Contact

News Follow WCM on Twitter @WadeClarkLaw August 30, 2018 < Back Share to: Wade Clark Mulcahy LLP was founded in 1994 -- long before LinkedIn, Twitter, Facebook, or regular use of email. Some of us even recall writing term papers on typewriters, and doing legal research with -- wait for it -- books! (We weren't equipped to copy our grammar school reports from the internet. Nope -- we copied them from the encyclopedia!) As technology progresses, WCM has continued to evolve. More and more courts require mandatory e-filing, and we are shifting toward being a completely paperless law firm across our New York, New Jersey and Philadelphia offices. Moreover, our law blog, Of Interest, has been active for years, providing weekly insights on current legal issues and cases that we think appeal to insurers and other interested parties. If you enjoy our weekly blog posts, then follow us on Twitter @WadeClarkLaw, or check out our LinkedIn page, Wade Clark Mulcahy LLP. We will be featuring similar articles and posts on Twitter, and occasionally commenting on news articles that are relevant to our industry. And if you're a regular #OfInterest reader, you know that Dennis Wade comments on This and That from time to time. We'll tweet those as well. And with regard to commentary on pertinent legal issues in the news (ala, "ripped from the headlines") we will be adopting time-tested pub rules: No religion, no politics. (There are certainly other social media forums for you can find your fill on that!) Please contact Brian Gibbons by email (or while we're at it, on Twitter @bgibbons35) with any questions. Have a happy and healthy Labor Day weekend! Previous Next Contact

News Negligent Lawyering Misses Statute of Limitations on Intentional Torts (NY) October 15, 2019 < Back Share to: Statutes of limitations can be tricky and it’s very important to ensure what category your claim falls or you may be SOL! This blunder was made apparent in the case of Potter v. Zucker Hillside Hosp. (2019 NY Slip Op 07304) Plaintiff, as guardian ad litem for Rodney Carter, commenced an action in October 2011 stemming from an incident in April 2009. Carter, a paranoid schizophrenic, was admitted as an in-patient at defendant’s hospital and claimed an employee beat him causing loss of vision in his left eye. Plaintiff’s complaint alleged that Carter was taken down, restrained, and controlled in a careless and negligent manner causing severe injuries and damages. Defendants were sued under a theory of respondeat superior. The hospital moved for summary judgment asserting that the cause of action was an intentional tort, not negligence or malpractice and thus, barred by the one-year statute of limitations. The Supreme Court agreed and granted defendant’s motion. Plaintiff appealed. The Second Department affirmed in a decision stating that a court’s job is to look at the substance of the allegations rather than the characterization. As New York does not recognize a cause of action for negligent assault, the one year statute of limitations for assault and battery would apply. As a practice point, it is always key to make sure plaintiff’s facts align with the theories alleged in the complaint. The court looked at Carter’s deposition testimony to establish that assault was the correct cause of action despite the plaintiff’s characterization of a negligent takedown. The law is often frustratingly form over substance; refreshingly, the Court looked at substance over form this time. Had plaintiff also pleaded a cause of action based upon negligent supervision or security -- which we understand was referenced, but not specifically pleaded -- the complaint may have survived dismissal. Thanks to Mehreen Hayay for her contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Covid-19 No Longer an Excuse, New Jersey Court Rules September 2, 2022 < Back Share to: In Hartford Underwriters Insurance Company v. Arch-Concept Construction, Inc., et al., plaintiff Hartford Underwriters Insurance Company (“Hartford”) provided workers compensation insurance to Arch-Concept Construction, Inc. (“Arch-Concept”). Hartford sued Arch-Concept over unpaid premiums. The parties settled under the terms that Arch-Concept was required to pay $275,000 over twelve quarterly installments. In the event the settlement agreement was breached, a consent judgment in favor of Hartford against Arch-Concept for $425,000, less any payments made under the agreement, would be entered. After Arch-Concept failed to timely remit payments, Hartford sued Arch-Concept seeking their consent judgment less the amount in payments previously remitted. Arch-Concept argued they were unable to make the remaining payments due to the COVID-19 pandemic and the shut-down of their business. A trial judge found in favor of Hartford, reasoning that Arch-Concept failed to prove that the doctrine of impossibility failed to excuse their non-performance of the settlement agreement. The Appellate court affirmed, stating that “the doctrine of impossibility is not applicable where the difficulty is ‘the personal inability of the promisor to perform.’” Additionally, “a party cannot render a contract performance legally impossible by its own actions.” Arch-Concept failed to provide any support of their inability to remit installments as promised and its principle never certified he was personally unable to make payment for any reason. Although the COVID-19 pandemic can certainly be argued as “an intervening event that was not within the original contemplation of the contracting parties,” or frankly any party for that matter, this case demonstrates a business cannot excuse their default by asserting the doctrine of impossibility without providing sufficient documentation. The Court did not provide examples of documentation that would suffice as support, but we surmise bank account statements could be a start. Thanks to Gina Rodriguez for her contribution to this article. Should you have any questions, contact Matthew Care. Previous Next Contact