News PA Appeals Court Holds that Statute of Repose Cannot be Tolled by Repairs November 23, 2022 < Back Share to: In Venema v. Moser Builders, the Superior Court of Pennsylvania (“Superior Court”) upheld the trial court’s decision to dismiss the plaintiff’s complaint with prejudice. The Superior Court affirmed the plaintiff’s claims were time-barred by the 12-year Statute of Repose for actions concerning construction defects. The subject premises in this case is located in Chester Springs, Pennsylvania and was constructed by Moser Builders (“Moser”) in 2003. A certificate of occupancy was issued for the residence on August 13, 2003. The residence was than purchased by the Plaintiffs’ Matthew Venema and Liza Squires (collectively “Plaintiffs”) in October 2004. Plaintiffs did not commence their suit against Moser until August 26, 2019. After Plaintiffs filed their complaint, Moser filed an answer contending Plaintiffs’ claims were barred by the Statute of Repose because over 12 years at passed since the date construction was completed and Plaintiffs’ complaint was filed. Moser filed a motion for judgment on the pleadings seeking a dismissal of all remaining counts in Plaintiffs’ complaint. Plaintiffs responded stating Moser had regularly made repairs to the home from 2004 until 2008 thus delaying the Statute of Repose. Moser replied arguing that the date the certificate of occupancy was granted is the date of completion for Statute of Repose purposes. The Superior Court reviewed the trial court’s decision to determine if the ruling was based on a clear error of law. “A defendant in a construction defect case has the burden of proving that the Statute of Repose precludes liability.” In order to bar a plaintiff’s claim three elements must be met: “(1) what is supplied [by defendant] is an improvement to real property; (2) more that twelve years have elapsed between the completion of the improvements to the real estate and the injury; and (3) the activity of the moving party must be within the class which is protected by the statute.” In this appeal, the only element at issue was the second element. Specifically, whether the clock started tolling upon the issuance of the CO or upon completion of repairs. The Superior Court affirmed the trial court’s ruling that the Plaintiffs’ claims are time barred stating a residence is unusable until a certificate of occupancy is granted. “The issuance of the certificate hinges on a satisfactory ‘final inspection’ showing that construction of the residence comports with the governing building codes.” Plaintiffs did not cite any statute or case supporting the idea that Moser’s repairs to the building delay the completion of the residence’s construction and toll the Statute of Repose. Rather, as the Supreme Court previously held that the Statute of Repose “generally may not be tolled, even in cases of extraordinary circumstances beyond a plaintiff’s control.” Therefore, the beginning of the tolling period was 2003 after the certificate of occupancy was granted and the trial court did not err in their decision. Thanks to Erin Russell for her contribution to this article. Should you have questions, contact Matthew Care. Previous Next Contact

News Bathroom Surveillance Program Invades Privacy (NJ) October 22, 2013 < Back Share to: Technology is supposed to make our lives more efficient, connected, and safer. Yet many new technologies have a darker side as well. The difficulty is deciding when our use of technology has crossed the line and invaded our cherished sense of privacy. In Soliman v. The Kushner Companies, the New Jersey Appellate Division explored the contours of this brave, new world. In Soliman, the managers of a commercial office building received complaints from their tenants about vandalism and damage that rendered the bathroom facilities unusable. In response, the managers installed video surveillance equipment and concealed cameras inside the bathroom smoke detectors in effort to deter the vandalism and capture evidence against the alleged vandals. The managers claimed that the cameras were only focused on the wash basin areas and it was undisputed that the surveillance program was not made known to anyone entering the bathrooms through signage or otherwise. A tenant's employee discovered the monitoring operation when the employee opened a closet door that was inadvertently left ajar and found video monitors displaying live video feeds from the building’s four bathrooms. The police were called and the county prosecutor’s office investigated this discovery. Ultimately no criminal charges were filed related to the video surveillance operation. Plaintiffs were employees of tenants and their families as well as others who had used the building’s bathrooms. They alleged that the defendants had invaded their privacy as well as intentionally or negligently inflicted emotional distress on them through the sub rosa video surveillance in the bathrooms. The lower court seemingly accepted the building’s explanation that the monitoring was limited to the wash basin area and dismissed the case. On closer review, the Appellate Division reinstated the counts related to invasion of privacy and punitive damages. In short, the court concluded that “a rational jury could find that shielding the cameras from detection by placing them inside facially innocuous yet ubiquitous safety devices, such as smoke detectors, is more suggestive of a sinister voyeuristic purpose than a good faith attempt at combating vandalism.” A key factual point was the absence of any signs announcing that the area may be under video surveillance, thus undermining the defendants’ professed goal of deterrence and strengthening the plaintiffs’ claims that they had a reasonable expectation of privacy when using the bathroom. Video surveillance is a powerful tool in the prevention and investigation of crime. However, bathrooms and other traditional areas of privacy are apparently poor venues in which to employ this intrusive tool. If you have any questions about this post, please email Paul at pclark@wcmlaw.com Previous Next Contact

News First Department Denies Lifeline to Lifelock Inc.’s Attempt to Obtain Coverage for Deceptive Advertising Claims January 18, 2017 < Back Share to: On January 18, 2017, the First Department emphasized an important lesson in evaluating coverage: policy exclusions may apply based on the facts of the underlying claim, not on the specific causes of action pled. In Lifelock Inc. v. Certain Underwriters at Lloyd's, Lifelock Inc. provided anti-identity theft services, and was sued in a series of cases filed in 2008 stemming from allegedly false, misleading, or deceptive advertisements published as early as 2005. Consumer class actions followed on the heels of an FCC enforcement action, and were ultimately consolidated into one action. Upon receipt of notice of claims, Certain Underwriters at Lloyd’s of London denied coverage citing two exclusions barring coverage for (1) claims that commenced prior to the 2008 retroactive date of the policy, and (2) claims arising from unfair trade practices. Lifelock did not file a declaratory judgment action challenging the denial of coverage until 2013, when a structured settlement was reached in the consolidated class actions. Lloyd’s moved to dismiss the action based on the exclusions. In granting the motion, the court applied a “but for” test to the exclusions, and held they applied. The court found that though each consumer may have signed up for Lifelock’s services at varying points between 2005 and 2008, they did so because of deceptive advertisements that were published prior to 2008. Further, the allegation of deceptive advertisement underpinned each and every cause of action. Accordingly, Lloyd’s argued, and the Court ultimately held that the underlying facts, and therefore the claims, fell squarely within both exclusions. Often, a plaintiff may plead numerous causes of action that, individually, have different elements and require different standards of proof. From a coverage perspective in New York, though, the gravamen of the alleged injury is of critical importance. Thanks to Chris Soverow for his contribution to this post.   Previous Next Contact

News Plaintiff Skates Past Assumption of Risk Defense (NY) August 21, 2013 < Back Share to: Most people understand that when you participate in sports, you might get hurt. So in New York, the general law is that “a voluntarily participant in a recreational sporting event has no legal recourse for injuries caused by an occurrence or condition that was a known, apparent, or reasonably foreseeable consequence of such participation.” But the U.S. District Court for the Northern District recently issued a questionable decision in connection with a roller skating accident. In Diaz v. High Rollers Recreational Center, Inc., the plaintiff, while skating, noticed a young man with long hair “skating aggressively and at a higher rate of speed than the other skaters.” The man skated fast while cutting in and out of the path of other skaters, but his conduct was not reported to High Rollers’ staff. Eventually, this unidentified skater struck plaintiff from behind, causing her to fall and injure her ankle. Plaintiff sued High Rollers, claiming that High Rollers failed to properly supervise the skaters and allowed reckless skating. High Rollers argued that plaintiff assumed the risk of skating, and that in any event it provided adequate supervision and was not the proximate cause of plaintiff’s injuries. The judge found that the skater’s conduct was obvious to all at the skating rink, including High Rollers employees, and that a sudden collision is the type of risk typically assumed by skating participants. But the court found that a skater does not assume the risk of another skater’s reckless conduct and that the collision was not sudden but a foreseeable occurrence that could have been avoided with better supervision. Whether the defendant’s supervision was negligent was found to be an issue of fact to be determined by the jury. This type of incident strikes us as a risk typically assumed by skating participants and it seems that the court placed too great an emphasis on the “sudden” nature of the incident. We will continue to monitor this case to see if there is an appeal and if the outcome is any different. 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 Issues Of Fact Paint Defendants Into A Corner Under Labor Law §241(6) (NY) December 17, 2021 < Back Share to: Recently, New Yorks’ Second Department analyzed the homeowner’s exemption under Labor Law §241(6). In Venter v. Cherkasky, plaintiff was a painter employed with a company hired by the defendant homeowners to paint and re-finish kitchen cabinets and a kitchen island in their home. In an unusual accident, the painter was injured when an electrical explosion occurred on the kitchen island as he was applying lacquer paint thinner to remove the paint. He asserted defendants violated Labor Law §241 by controlling and supervising his work which led to the injury. The defendant homeowners moved for summary judgment to dismiss the Labor Law §241 claim citing their exemption under the statute. The trial court denied summary judgment citing issues of fact on whether they supervised his work. Under the exemption of Labor Law §241(6), owners of 1 or 2 family dwellings are exempt from liability unless it can be proven the defendants directed or controlled the work being performed. The phrase “direct or control,” as used in Labor Law §241(6), “is construed strictly and refers to the situation where the owner supervises the method and manner of the work.” [Bulux v Moran, 189 AD3d at 762 (2d Dept. 2019)]. “The relevant inquiry is the degree to which the owner supervised the method and manner of the actual work being performed by the injured employee” [Rajkumar v Lal, 170 AD3d 761, 762 (2d Dept. 2019)]. Plaintiff testified that the defendant homeowner Betsy Cherkasky told him to apply the lacquer paint thinner to the kitchen island instead of sanding off the paint on the island as he did on the kitchen cabinets the previous day, as she did not want any more dust. Although the defendants testified they did not give plaintiff any instructions on how to do his work, and even submitted an affidavit from plaintiff’s employer to that effect, the trial court concluded that it was a triable issue of fact for a jury to determine. The Second Department agreed with the trial court’s reasoning and upheld the decision to deny summary judgment on that claim. The decision accentuates that any instructions given by a homeowner to a worker that can be related or connected to the injury arising from that work may create an issue of fact precluding exemption from liability under the Labor Law §241(6). A residential homeowner should avoid any instructions or comments to a worker on how, when or where to do their work. Simply put, leave the work to the professionals and their supervisors. Any deviation from that standard may lead to liability of the homeowners in a work-related accident under Labor Law §241. Thanks to Ray Gonzalez for his assistance with this article. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News Pennsylvania Court Provides Gateway for Insureds to Keep Lawsuits in State Court (PA) August 3, 2018 < Back Share to: The Eastern District of Pennsylvania recently issued a decision that may help insureds interested in having their cases heard in state court rather than allowing those cases to be removed to federal court. In Dominque Ellis v. Liberty Mutual Insurance Company, et al., a plaintiff defeated diversity by naming both the insurer and the claims adjuster as defendants. Initially, a lawsuit was brought by Dominique Ellis (“Ellis”) who was hit by a car while she was walking down the street. At the time, Ellis was insured by a Liberty Mutual auto insurance policy that listed her mother as the “named insured.” Since the motorist was underinsured, Ellis sought to recover medical expenses from Liberty Mutual. Liberty Mutual later denied her claim and Ellis sued both Liberty Mutual and the claims adjuster, Clare MacNabb (“MacNabb”). MacNabb was added to the lawsuit because Ellis claimed that she dragged her feet during a six-month investigation into whether Ellis lived at the address listed within the policy. Once MacNabb concluded that Ellis was being truthful about her address, she denied her claim on the ground that her medical expenses were less than the limit of the policy owned by the underinsured driver. Ellis alleged that the investigation was fraudulent and meant to intimidate her from pursuing her claim. Ellis’ lawsuit was brought in state court and consisted of three counts against Liberty Mutual: (1) an “underinsured motorist claim,” (2) a claim for bad faith insurance denial, and (3) a claim for violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). The UTPCPL claim was also brought against MacNabb. As both Ellis and MacNabb were residents of Pennsylvania, there was no diversity of citizenship grounds to remove that case to federal court. However, Liberty Mutual argued that MacNabb was fraudulently joined and removed the case to federal court. As a result, Ellis moved to remand the matter back to state court. The District Court granted the motion to remand, rejecting all three reasons asserted by Liberty Mutual to support that MacNabb had been fraudulently joined. First, the Court explained that claims under the UTPCPL against claims adjusters were “colorable under Pennsylvania law.” Under the law, UTPCPL claims against individual insurance claims representatives were allowed. Second, the Court determined that it was too early to tell whether Ellis’s claim was for mere nonfeasance. Ellis’ complaint alleged nonfeasance by MacNabb in MacNabb taking too long to investigate her claim and ultimately denying coverage. However, a UTPCPL claim requires malfeasance, rather than nonfeasance. The Court determined that Ellis’ complaint also supported “an inference of malfeasance” in that the adjuster’s investigation was intended to intimidate or harass Ellis. According to the Court, malfeasance may exist if an insurer conducted a post-loss investigation in an unfair or unreasonable manner. The Court noted that, at this stage, Ellis still had the opportunity to prove malfeasance by MacNabb and that to dive further into this issue would require an assessment of the merits of the claim itself. Finally, the District Court rejected Liberty Mutual’s argument that Ellis cannot maintain a claim under the UTPCPL because she did not purchase the insurance policy herself. The UTPCPL grants a claim to any person who, among other requirements, purchases or leases goods or services. In the instant matter, Ellis’s mother was the purchaser and the named insured. However, the Court determined that, although support that Ellis herself purchased the policy was “admittedly slim,” it should remain mindful that “all doubts should be resolved in favor of remand” and that remand was required if there was even a possibility that a state court would find the complaint stated a claim against MacNabb. The District Court thus concluded that the “lenient standard” had been satisfied and that it remained unclear whether Ellis had been making payments under the insurance policy. As a result, Ellis’s motion to remand was granted. Thank you to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions. Previous Next Contact

News Court of Appeals Deems A Tree Well Not To Be Part Of NYC Sidewalk June 4, 2008 < Back Share to: In Dzafer Vucetovic v. Epsom Downs, Inc., --- N.E.2d ----, 2008 WL 2242308 (N.Y.), 2008 N.Y. Slip Op. 04901, plaintiff was injured when he stepped into a defective tree well located on the sidewalk in front of the building owned by defendant. Plaintiff asserted that defendant, as the abutting landowner, violated section 7-210 of the Administrative Code of the City of New York that requires abutting landowners to maintain the sidewalk in a reasonably safe condition. Defendant successfully moved for summary judgment contending that the tree well was not part of the sidewalk as defined by the Administrative Code. In a 3-2 decision, the Appellate Division upheld the trial court's decision. Engaging in statutory interpretation, the Court of Appeals affirmed the Appellate Division's decision. Noting that earlier Administrative Code sections 16-123 and 19-152 imposed a duty upon abutting landowners to repair and maintain the sidewalk, these sections did not create tort liability upon these landowners for their failure to do so. The enactment of section 7-210 of the Administrative Code imposed tort liability upon abutting landowners and "mirrored the duties and obligations of property owners...as set forth in Administrative Code sections 19-152 and 16-123." Finding that Administrative Code sections 7-210, 16-123 and 19-152 neither define "sidewalk" nor mention tree wells, and guided by the principle that legislative enactments in derogation of the common law must be strictly construed, in "a close question" the Court found that the legislators did not consider tree wells when it shifted tort liability in creating section 7-210. Thus, as the Administrative Code is currently constituted, along with the curbstone of sidewalks, tree wells also remain the responsibility of the City of New York. http://www.nycourts.gov/ctapps/decisions/jun08/jun08.htm Previous Next Contact

News Winning One for the Gipper: The Looming Legal Threats to American Football. January 10, 2013 < Back Share to: We, here at WCM, have previously referenced other people’s comments on the dangers of American football. We got tired of tooting other people's horns and so decided to create our own. We are thus pleased to refer you to our essay Winning One for the Gipper: The Looming Legal Threats to American Football, which has just been published in the Pennsylvania Defense Institute’s quarterly magazine. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com .   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 Bar To Coverage! Assault & Battery Exclusion Upheld On Appeal NY) November 20, 2020 < Back Share to: Can a premises liability cause of action in a complaint based upon a shove down the stairs overcome an assault and battery insurance exclusion? In NHJB Inc v. Utica First Insurance Company, New York’s Appellate Division, Fourth Department heard argument over whether insurance coverage was properly denied when the policy involved an assault and battery exclusion but Plaintiff’s claim also included a premises liability cause of action. Here, a nightclub owner got into a physical confrontation with a patron that allegedly ended with the patron being pushed down a set of stairs by the nightclub owner. The patron later died from his injuries. The nightclub sought coverage from their insurer for the litigation brought by the decedent’s estate. The nightclub’s insurance provider disclaimed coverage based on the assault and battery exclusion within the policy. The nightclub then sued the provider for wrongful denial. Plaintiff moved for summary judgement, seeking a declaration that the insurance company was required to defend and indemnify the nightclub in the underlying litigation, while the insurance company cross moved to dismiss Plaintiff’s complaint. The trial court ruled in favor of Plaintiff and required the insurance company to defend Plaintiff at least through the completion of discovery. On appeal, the Court reversed and ruled that while Plaintiff’s 27th cause of action was based on premises liability, “all of the claims against plaintiffs in the underlying action are ‘based on’ or ‘arise out’ of the bar manager's assault” and that there would be no cause of action without the owner’s alleged assault and battery. Importantly, the Court also held that a determination on this issue did not need to wait until the close of discovery because whether an exclusion applies depends on the facts plead in the complaint, not its conclusory assertions. “Even if it were learned during discovery that there was a defect with respect to the stairs, the fact remains that, but for the bar manager's assault, decedent would not have fallen down the stairs.” The Court finally clarified that just because the Court had earlier ruled that there were sufficient facts plead for the premises liability claim to survive a motion to dismiss, holding that coverage did not apply was not contradictory. “There is a distinction between the ultimate liability of the insured and the insured's right to coverage based on the language of the insurance policy.” This case is a reminder that it is not the conclusory allegations or the titling of a cause of action that ultimately determines whether insurance coverage applies, but the underlying plead facts that allegedly give rise to those claims. Special thanks to Ryan Geib for his contribution to this post. If you have any questions, kindly contact Thomas Bracken. Previous Next Contact

News Personal Injury Action Leads to Wrongful Death Action (NY) June 21, 2019 < Back Share to: In Halloran v Kiri, plaintiff-decedent, who was involved in a motor vehicle accident in 2007 injuring her left shoulder, underwent a number of surgeries to treat the injury. Over the course of the 5 years leading up to her death, plaintiff-decedent received prescriptions for narcotic pain medication from her treating orthopedic surgeon, a pain management specialist, and two other doctors before beginning treatment with defendant Kiri. Her previous treating physicians denied her requests for further prescriptions when decedent exhibited opioid-seeking behavior. Decedent first presented to Dr. Kiri in August 2012 with complaints of chronic pain. Dr. Kiri initially refilled decedent’s high-dose oxycodone prescription, then switched to fentanyl patches, but discontinued the prescription when decedent claimed a skin rash. Ultimately, Dr. Kiri restarted the high-dose oxycodone prescription, and eventually began prescribing decedent Xanax for anxiety as well. Dr. Kiri treated decedent for 14-months until her fatal accidental overdose, never lowering decedent’s prescriptions despite personal notes in decedent’s file stating that medication needed to be lowered. Plaintiff’s family sued asserting causes of action for wrongful death, medical malpractice, negligence, and lack of informed consent. Defendant moved for summary judgment dismissing the complaint on the grounds that decedent’s death was not proximately caused by Dr. Kiri’s acts or omissions. The lower court denied defendant’s motion. The Appellate Division, First Department, found that Kiri failed to meet his burden for summary judgment on causation as decedent's use of illicit drugs was not unforeseeable, and therefore her drug use was not an intervening cause and did not amount to a separate act of negligence that independently caused her death. The Appellate Division further found defendant’s policy argument that all doctors would have to become detectives before prescribing opioids unpersuasive, and opined that Kiri’s failure to obtain medical records, speak with decedent’s orthopedist, and heed signs of opioid abuse during his 14-month treatment of decedent raised an issue on deviation from accepted practice. Finally, the Appellate Division found that defendant’s expert’s opinions on informed consent were conclusory as they did not specify what risks should have been disclosed by Kiri to decedent before prescribing opioids and Xanax. This is a case of first impression in the appellate courts providing a malpractice cause of action for victims of opioid over-prescription which, given the opioid crisis, is likely to be further expanded or defined as new cases make their way to the appellate courts. Thanks to Margaret Adamczak for her contribution to this post. Please email Georgia Coats with any questions. Previous Next Contact

News App. Div: Detrimental Reliance Exception to Espinal Rule Can Be Inferred From Conduct of Contracting Party. July 6, 2012 < Back Share to: In All Am. Moving & Stor., Inc. v. Andrews, a property damage action arising out of a warehouse fire, defendant Allstate Sprinkler Corp entered into an inspection services contract with the tenant D'Agostino Supermarket. Allstate moved to dismiss the plaintiff-owner's action arguing that, under the Espinal v. Melville Snow Contractors decision, its contractual obligation to the tenant did not give rise to tort liability in favor of a third party. In affirming the denial of the motion, the First Department carefully analyzed the Espinal rule. There are three exceptions to the Espinal rule: 1) where a contracting party launches a force or instrument of harm, 2) where the party enters into a comprehensive and exclusive service agreement, and 3) where a third party has detrimentally relied on the continued performance of the contracting party's duties. The Appellate Division agreed that the first two exceptions where inapplicable. However, the Court held there was a question of fact as to whether the plaintiff, a beneficiary of the contract, detrimentally relied on Allstate's continued performance of its contractual duties. In doing so, the Court pointed to Allstate's admitted failure to inspect the sprinkler system for months before the fire and its failure to report to the owner that it had found the sprinkler system shut off during several inspections. Thus, rather than point to evidence that the owner had in fact relied on the contracting party, the Court utilized evidence of the contracting party's wrongdoing to infer that such reliance existed. Special thanks to Bill Kirrane for his contributions to this post. For more information about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact