Wade Clark Mulcahy LLP

News Eagles Win! February 12, 2018 < Back Share to: Some of you may have heard that the Philadelphia Eagles just won their first Super Bowl. It's kind of a big deal down here in Philadelphia. So for those who have interest in such things, enjoy the pictures of the Eagles' celebratory parade that our very own Clayton Thomas took from our office windows. Previous Next Contact

News Do CGL Policies Now Insure Data Breaches? April 29, 2016 < Back Share to: The case that everyone is talking about is Travelers Indemnity v. Portal Health, a just released, unpublished Fourth Circuit opinion. The quick story is that the Fourth Circuit affirmed the trial court opinion and held that Travelers owed coverage (specifically defense) under a CGL policy for a data breach. The real story is a bit more nuanced. In the case, Portal Healthcare, a Virginia based company, was sued in NY in a class action lawsuit. In the lawsuit, patients of Glen Falls Hospital claimed that Portal Healthcare failed to safeguard medical records entrusted to Portal Healthcare by the hospital and instead allowed those records to be posted on the internet – accessible to everyone via a Google search. Portal Healthcare was insured by Travelers under two consecutive commercial general liability insurance policies – a 2012 policy and a 2013 policy. The Policies were not standard policies – rather they contained special endorsements that expanded the scope of personal injury, advertising injury and web site injury. Specifically, the 2012 Policy contained a Web Xtend Liability Endorsement that deleted and replaced the definition of Personal and Advertising Injury liability. The 2013 Policy contained an Amendment of Coverage B – Personal And Advertising Liability Endorsement that deleted and replaced the definition of Personal and Advertising Injury liability. Under both endorsements, the parties (and court) seemed to agree that coverage was triggered if the underlying complaint alleged: (1) injury arising out of the offense of “electronic publication of material that . . . gives unreasonable publicity to a person’s private life” (the language utilized in the insuring agreement of the 2012 Policy) or (2) injury caused by the offense of “electronic publication of material that . . . discloses information about a person’s private life” (the language utilized in the insuring agreement of the 2013 Policy). In respect of the first point, Travelers argued that, although the data was available to the general public, since Portal Healthcare did not intend to publish it, publication did not occur. This argument was rejected by the court which held that it was the fact of publication (and not the intent of publisher) that mattered. In respect of the second point, Travelers argued that there was no “publicity” given to a person’s private life as the leak was not intended to generate publicity. This argument was also rejected by the court which held that since the leaked data was available to the general public, publicity had occurred. All of this seems rather straightforward, so why all the fuss? It seems that a top sheet review might be to blame. When you look at the trial court’s decision and the policies themselves, you see that the Travelers’ decision to broaden the scope of potential claims that would qualify as “personal and advertising injury” is the root cause of the decision. So, it’s true that CGL policies might have more potential exposure to data breaches – but only if you enhance the coverages. For more information about this post please e-mail Bob Cosgrove. Previous Next Contact

News Egg Hatching: Will the Salmonella Scare Finally Result in Passage of New Food Regulation? August 25, 2010 < Back Share to: We have previously reported on the Food Safety Modernization Act -- http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=661. Conventional wisdom held that, in this election year, the Act was unlikely to make it out of Congress for a signature by the President. The recent salmonella egg recall (http://www.philly.com/philly/wires/ap/business/101258889.html) -- which apparently arises out of a company with a history of violations (http://www.washingtonpost.com/wp-dyn/content/article/2010/08/21/AR2010082102822.html) -- might change that. Political pressure for Congress to address the Act is mounting -- http://www.claimsjournal.com/news/national/2010/08/24/112696.htm. And, of course, class action lawsuits arising out of the egg recall are also hatching -- http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202470887062&slreturn=1&hbxlogin=1. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

Professional Liability Professionals need to be confident that the attorneys retained to defend them know more than law; they must also know the nature of the business of the professional in order to mount a successful defense to malpractice or errors and omissions claims. WCM has that edge. Drawing on our background in property, casualty and insurance litigation, WCM attorneys have firsthand experience with the risks faced by professionals such as architects, accountants, attorneys, directors and officers, engineers, financial service professionals and insurance brokers and agents. WCM takes great pride in the fact that our practice in this area has grown from referrals within the professional network, many of whom have the choice of counsel in their professional insurance policy. And the successful outcomes that WCM attorneys have achieved fully justifies that choice. Practice Lead Michael A. Bono Executive Partner +1 212 267 1900 mbono@wcmlaw.com Download Download

News Court Says No to Neuropsychiatrist (NY) November 11, 2016 < Back Share to: In Scariff v Wall St. Mail Pick Up Serv., Inc., the court dealt with whether plaintiff’s expert neuropsychiatrist was able to testify at trial about plaintiff’s injuries. Neuropsychiatry is a branch of medicine that deals with mental disorders attributable to diseases of the nervous system. The plaintiff was struck by a vehicle driven by the defendant while walking across the street. During the damages phase of a jury trial, the plaintiff did not offer any testimony from her treating physicians. Instead, the plaintiff submitted the testimony of an expert neuropsychiatrist, who testified that the plaintiff had severe major depression as a result of the accident, and that she also had cognitive problems. But the trial court precluded the expert neuropsychiatrist from offering any testimony regarding the plaintiff's medical complaints or the accident history. The jury found that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d), and a judgment was entered in favor of the defendants and against the plaintiffs dismissing the complaint. The plaintiffs filed an appeal. The Appellate Division held the trial court’s ruling was proper. "A non-treating physician, retained only as an expert, may not testify regarding the history of an accident as related by the plaintiff or concerning the plaintiff's medical complaints. The expert may give an opinion based on an examination of the plaintiff." Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Sometimes, De Minimus Contacts Equals Maximum Damage Award! (PA) March 12, 2021 < Back Share to: In a recent en banc opinion, the Pennsylvania Superior Court found that a couple should not be prevented from suing in their choice of venue even where only a small percentage of the defendant company’s $1.4 billion in revenue is derived there. In Hangey, et al. v. Husqvarna Professional Products, Inc., et al. plaintiffs, husband and wife, brought suit after Mr. Hangey fell off a Husqvarna lawn mower and both of his legs were maimed when the lawn mower’s blades did not stop. Mr. Hangey purchased the lawn mower in Bucks County, Pennsylvania and the incident occurred at the Hangeys’ home in Wayne County, Pennsylvania. However, the Hangeys brought suit in Philadelphia County, Pennsylvania—which is known as an extremely favorable plaintiff’s forum. Husqvarna filed preliminary objections arguing—among other things—improper venue. Discovery revealed that Philadelphia did not fall within Husqvarna’s target market area, Husqvarna did not conduct regular business in Philadelphia, Husqvarna was not incorporated in Philadelphia, and only 0.005% of Husqvarna’s sales came from its authorized dealer in Philadelphia County. As such, the trial court granted Husqvarna’s preliminary objections raising improper venue. The Pennsylvania Superior Court, however, reversed the trial court’s decision in its en banc opinion. The Pennsylvania Superior Court reasoned that although Husqvarna’s business in Philadelphia could be categorized as de minimus, it was nonetheless regular, continuous, and habitual, and therefore sufficient for proper venue. The opinion indicated that trial court must consider several factors when considering appropriate venue and not just a defendant’s business revenue. Two judges on the Pennsylvania Superior Court dissented, saying that the trial court did not abuse its discretion and that the trial court has “considerable discretion” when determining proper venue. Thank you to John Lang for his contribution to this post. Should you have any questions, please contact Tom Bracken. Previous Next Contact

News First Department Finds Nine-Year-Old Cannot Assume Risk May 25, 2011 < Back Share to: In Smith v. City of New York, the First Department reversed the trial court’s granting of summary judgment in the case of a nine-year old boy whom broke his arm after falling from monkey bars during a City-run summer camp. Depositions revealed that campers were not allowed on the monkey bars, but the boy told his counselor, who was supervising a nearby basketball game, that he was going to play on the monkey bars. At his deposition, the boy gave contradicting testimony regarding his awareness of the dangers of playing on monkey bars, stating at one point that he knew of the dangers due to a previous monkey bar accident, and stating at another point that he did not think he could get hurt. Because of the contradictory testimony, the Appellate Division, First Department found that the boy did not fully appreciate the risks of his activity, and as such, could not have assumed the risk that his counselor would not supervise him. Thanks to Alex Niederman for his contribution to this post. http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04301.htm Previous Next Contact

News Subway: Eat Fresh, Stay Alert – Subway wins design defect claim on summary judgment (PA) September 1, 2016 < Back Share to: On July 14, 2016, the Philadelphia Court of Common Pleas granted the defendant’s, Bhagvati Krupa, Inc. t/a Subway (“Subway”), motion for summary judgment against the plaintiff’s claims based on a defective design argument in Santangini v. Bhagvatic Krupa, Inc t/a Subway. Specifically, on September 20, 2013, the plaintiff, Geraldine Santangini, was a customer in a Subway store located in Center City Philadelphia. After purchasing her food, the plaintiff went to the self-serve soda fountain to fill her drink. Thereafter, the plaintiff turned towards the door to leave the store, took a step and fell down two steps that led to the exit. The plaintiff alleged certain injuries as a result of the fall. The plaintiff filed suit against Subway for her injuries, alleging that the Subway restaurant was defectively designed. Notably, the plaintiff alleged, inter alia, that the Subway restaurant was defectively designed because there was an unguarded ledge directly next to the self-service soda machine and the design caused an overcrowded condition in certain areas. After discovery was completed, Subway filed a motion for summary judgment on the basis that the plaintiff failed to establish a prima facie case of negligence because the plaintiff did not obtain an expert to establish that the Subway was in fact defectively designed. In deciding the motion for summary judgment, the trial looked at whether the issue of negligence could be determined by a layperson or whether it required a special skill or knowledge. If the former was true, no expert would be needed; however, the latter would require an expert. Here, looking at the issue of whether the Subway store was defectively designed, the trial court found that expert testimony was “indispensable” for the plaintiff’s claims against Subway. Specifically, the trial court stated that there were too many variables to take into consideration for a layperson to make a sound and reasoned decision, such as whether designing a restaurant with a step drop off instead of a ramp or gradual incline was negligent. Accordingly, Subway’s motion for summary judgment was granted and the trial court urged the Pennsylvania Superior Court to uphold their decision on appeal. Thanks to Erin Connolly for her contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

News Corrosion Is Not An ‘Ensuing Loss’ From Sandy Floods October 7, 2016 < Back Share to: In the aftermath of Superstorm Sandy, Amtrak (a.k.a., National Railroad Passenger Corp.) sought coverage for widespread property damage sustained within its tunnels as a result of the incursion of seawater. Amtrak submitted claims under various policies, which covered the losses but only up to the combined $125 million flood sublimits for its policies. Amtrak argued that the sublimits should not apply because the definitions of “flood” in the policies were ambiguous, and the corrosion of the train tracks constituted a separate “ensuing loss” that was not subject to the sublimit. With respect to corrosion, Amtrak reasoned it was caused by a “chloride attack” that occurred only after the seawater evaporated, leaving salt residue to interact with oxygen on the rails. On September 7, 2016, in national-railroad-passenger-corp-v-aspen-specialty-insurance-co, the Second Circuit affirmed the district court’s ruling and held that the Amtrak was only entitled to coverage up to the flood sublimits of the insurance policies for Superstorm Sandy related losses. According to the Second Circuit, although three separate definitions of “flood” were at issue, each was unambiguous and the mere existence of different definitions did not render them ambiguous. As to the ensuing loss argument, the Court ruled that Amtrak’s broad interpretation would swallow the express and unambiguous purpose of the sublimit policy. Further, “chloride attack” was not an “ensuing loss” because “[t]he corrosion of Amtrak’s metal equipment cannot meaningfully be separated from water damage that is plainly subject to the flood sublimit, nor can it be attributed to a distinct ‘covered peril.’” Not only will this case be useful when interpreting what constitutes flood damage, but it has broad applicability in evaluating whether consequential damages or ensuing losses are covered as a separate event. At times, it is difficult from a metaphysical perspective to determine when one loss ends, and another begins. The analogy of evaporating sea water and resulting rust can certainly help in such circumstances. Thanks to Chris Soverow for his contribution to this post. Previous Next Contact

News Plaintiff’s Claim Against Movie Theater Flops at Box Office (NJ) March 8, 2019 < Back Share to: Anyone who has gone to the movie theater to catch the latest flick knows to tread carefully when exiting the theater. No matter how many ushers and cleaning crew are available, it’s a challenge to keep the floors completely free of any loose popcorn, snacks, or general debris in between movie showings. In Frankel v. Edgewater Multiplex Cinemas, et. al., plaintiff filed a claim seeking damages for injuries sustained after a slip and fall in defendant’s movie theater. It was a crowded night at the theater, so plaintiff decided to sit in the dreaded first seat of the first row which was adjacent to an emergency exit door. When the movie ended, plaintiff attempted to exit towards the lobby, when he slipped and fell into the metal bar of the emergency exit door suffering a crush avulsion and laceration to his forehead. Plaintiff testified that he had seen “litter” when he first sat down in the theater before the movie began, but “paid it no mind.” However, plaintiff was unable to identify what he had fallen on at the time of the accident. The defendant indicated that not only did the theater have ushers that would clean the theaters between movie showings, a “breach person” is responsible for inspecting auditoriums each hour to check sound levels, lighting levels, cell phones, talking patrons, or any items posing a tripping hazard. The theater showed evidence that the breach person had inspected the theater on an hourly basis, including two inspections which took place approximately half an hour before plaintiff’s accident. The appellate court found that although there is a duty of care of business owners to eliminate dangerous conditions and keep the premises reasonably safe, plaintiff failed to show that defendant had actual or constructive knowledge of the dangerous condition that caused the accident. Plaintiff could not identify what he had slipped on, and therefore could not establish that defendants were aware of the condition that caused plaintiff to fall. As such, the appellate court affirmed the trial court’s decision and affirmed defendant’s dismissal from the lawsuit. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions. Previous Next Contact

News Duty to Defend Triggered with a “reasonable possibility” of Coverage (NY) October 14, 2022 < Back Share to: The Appellate Division (4th Dep’t) recently determined that even where a complaint does not include specific claims or allegations bringing it within the scope of a policy’s coverage, an insurer’s duty to defend may still be triggered if the complaint suggests a “reasonable possibility” that the claims may fall within the scope of the policy. In Main St. Am. Assurance Co. v. Merchants Mut. Ins. Co., the Court addressed this issue in a case involving a plaintiff who was injured during the course of his work as a subcontractor on a construction project. The subcontractor obtained insurance through Merchants Mutual Insurance Company for the contractor’s benefit. The policy with Merchants Mutual provided coverage to the contractor, but “only with respect to liability for ‘bodily injury’ . . . caused, in whole or in part, by . . . [insured’s] acts or omissions.” Merchants Mutual argued it did not have a duty to defend the contractor because the complaint alleged Labor Law violations on the part of the contractor, and not negligence by the subcontractor, as contemplated by the policy. The Appellate Division disagreed with Merchants Mutual, holding that even though the underlying complaint did not allege negligence by the subcontractor, it suggested a reasonable possibility that its negligence was a proximate cause of his injuries, thereby bringing the claim potentially within the policy. Accordingly, the Court held, Merchant Mutual’s duty to defend the contractor as an additional insured was triggered, despite the fact that the complaint did not actually allege that subcontractor had been negligent. This decision is somewhat troubling for insurers as it shows that a court may find a duty to defend even where the underlying complaint did not specifically include claims or allegations falling within the scope of a policy’s coverage. Thanks to Erin Gallagher for her contribution to this post. Should you have any questions, please feel free to contact Tom Bracken. Previous Next Contact