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News NY's First Department: Site of insurance contract trumps site of injury. October 15, 2007 < Back Share to: In a silica exposure case involving parallel lawsuits in CA, PA and WV, NY kept control over the coverage disputes. http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=6986625 Previous Next Contact

News Plead it or Lose it: Failure to Plead Defamatory Statements Warranted Dismissal. January 28, 2013 < Back Share to: In Abakporo v. Daily News, et al., plaintiff sued the Daily News for two newspaper articles he alleged contained defamatory statements against him. He also sued for misappropriation of his image pursuant to Civil Rights Law §50. Though plaintiff annexed the articles to his complaint, his failure to specifically identify the defamatory statements was fatal to his claim. With respect to the Civil Rights Law, plaintiff failed to adequately allege facts to establish that the photograph accompanying the articles was used for advertising or trade purposes. Due to plaintiff’s pleading deficiencies, the Second Department affirmed the dismissal of his case. In evaluating a pre-answer motion to dismiss, courts will liberally apply the facts as alleged in the complaint. Where a party fails to allege defamatory statements in a defamation complaint, there can be no liberal application of the facts. As such, in evaluating defamation claims, the first inquiry must always be whether the complaint was appropriately pled, and whether a pre-answer motion to dismiss is feasible. For more information about this case, please contact Cheryl at cfuchs@wcmlaw.com .     Previous Next Contact

News Let the settling party beware… NJ enforces agreements October 17, 2011 < Back Share to: An insurer’s settlement of litigation is binding on its insured even where there is a substantial self – insured retention. During mediation of a claim by two boilermakers injured in a refinery explosion, the plaintiffs were offered $1.6 million. The parties agreed that a settlement would resolve all claims and cross claims pending in the litigation. However, the plaintiffs did not outright agree to the amount of the offer and continued to negotiate with the insurance adjuster - finally accepting $1.65 million. At that point, the settlement of the cross claims began to unravel. The defendants in the case included the owner of the refinery and the company it contracted to provide maintenance services along with two of its subcontractors. The maintenance contractor assumed the defense of the refinery owner and then sought defense and indemnification from its two subcontractors. Despite contractual provisions requiring the subcontractors to name the owner and contractor as additional insureds on their CGL policies, both insurers denied that such coverage had been secured. While one of the insurers participated in the settlement, the other chose not to contribute. The mediated settlement agreement included dismissal of all cross-claims including claims against both subcontractors for breach of contract. However, the contractor retained the right to pursue the non-participating subcontractor’s insurer in a separate declaratory judgment action. On second thought, the contractor, who had a substantial self insured retention, became concerned that, in the event the declaratory judgment failed, it would have no recourse for breach of contract against its subcontractor once the cross-claim was extinguished. A fight to enforce the term of the settlement agreement requiring dismissal of the cross-claim ensued. Even though the subcontractor had not contributed towards the settlement, the Appellate Division enforced the terms of the agreement requiring dismissal of the breach of contract cross-claim. In fact, the court considered this a non-factor in its decision. Instead, the court focused on the right of the contractor’s insurer to settle the case. Absent express language in the insurance policy requiring the insured’s consent to settle, an insurer has the right to control the terms of the settlement so long as it proceeds in good faith. Thus, notwithstanding the contractor’s self insured retention, its right to pursue the cross-claim against its subcontractor was extinguished by its insurance adjuster’s settlement agreement. See [i]Davis v. Valero Refining Co[/i], at http://www.judiciary.state.nj.us/opinions/a1337-10.pdf If you have any questions or comments about this post, please contact Denise at dricci@wcmlaw.com . Previous Next Contact

News PA Court Clarifies When Use Of Plaintiff's Behavior Can Be Used In Products Liability Cases September 28, 2010 < Back Share to: In a recent products liability case, the PA Superior Court clarified when a defendant in a products liability case can introduce evidence of the plaintiff’s behavior. In the case of Reott v. Asia Trend et. al., the court explained that there are only three limited circumstances when a defendant is permitted to introduce evidence of a plaintiff’s behavior in a strict liability products liability case. These are voluntary assumption of risk, misuse of the product and highly reckless behavior. This case involves a plaintiff, Duane Reott, who was injured while attempting to use a tree stand manufactured by the defendants. The plaintiff failed to use the device as prescribed by the instruction manual. However, the device also did not work properly. The issue at trial focused mainly on whether the wrongful use of the tree stand by the plaintiff counted as highly reckless behavior. The court was confronted with the issue of whether the defendants had met their burdens of proof. The court confirmed that highly reckless conduct is an affirmative defense that must be proven by the defendant by a preponderance of the evidence. In order to prove reckless conduct, the defendant must show that the plaintiff (1) knew of facts which created a significant risk of physical harm or that plaintiff “deliberately proceed to act, or failed to act, in conscious disregard of that risk,” and (2) that the plaintiff’s conduct was the sole or superseding cause of the injury. In this appeal the court ruled that the defense had not proven that Reott’s injury was the sole or superseding cause of his injury, thus he was entitled to a directed verdict on the issue. Thanks to Remy Lapidus for her contribution to this post. http://www.aopc.org/OpPosting/Superior/out/a25020_10.pdf Previous Next Contact

News NY Civil Trial Practice Update: Admissibility of Uncertified Police Reports November 25, 2020 < Back Share to: The Appellate Division of the Supreme Court of New York, Second Department’s recent ruling in Yassin v. Blackman, 188 A.D.3d 62 (2d Dep’t 2020) abrogates prior case law, which had previously held a party’s admission in an uncertified police report was admissible. Following Yassin, an uncertified police accident report no longer constitutes admissible evidence, absent a proper foundation for its admissibility. The Yassin Court, however, specifically noted that its holding involved a situation where a party affirmatively proffered an uncertified police accident report in support of a motion for summary judgment. By way of background, Yassin involved a personal injury action, wherein plaintiff alleged his taxi was negligently struck by a truck (owned and operated by separate defendants). The Supreme Court, Kings County granted plaintiff’s summary judgment motion on liability, supported by plaintiff’s affidavit and a copy of an uncertified police report. In brief, plaintiff’s affidavit averred he did not jut in front of the truck, in any fashion, but was stopped at a traffic light for a few seconds when he was rear-ended. The uncertified police accident report contained the trucker’s alleged admission that he side-swiped plaintiff’s taxi in an attempted pass. The trucker’s affidavit was submitted in opposition, essentially claiming plaintiff’s taxi was double-parked, but then cut off the trucker. On appeal, defendants contended the trucker’s affidavit raised a triable issue of fact as to whether plaintiff’s taxi cut off the truck. Plaintiff responded that the trucker’s affidavit should be disregarded as a feigned attempt to avoid the consequences of his admission contained in the police accident report. In reply, defendants argued, inter alia, the police accident report was inadmissible because it was not certified. The Appellate Division, Second Department reversed the trial court’s summary judgment order concluding triable questions of fact remained as to the trucker’s negligence. The Court discussed that statements recorded in police accident reports involve two levels of hearsay, each of which must satisfy a hearsay exception to render the statement in the report admissible. First, the report itself must be admissible. Properly certified police reports are admissible where the report is based upon the officer’s personal observations while carrying out police duties. CPLR 4518 (c) provides that the foundation for the admissibility of police reports (and other state records) may be laid through a proper certification. CPLR 4518 (c) is governed by the same standards as the business record exception. Thus, the certification must set forth the record was made in the regular course and it was the regular course of such business to make it, at the time of the act, transaction, occurrence, or event – or within a reasonable time, thereafter. Second, assuming there is a properly certified police accident report, the statement(s) contained within the report must satisfy a separate hearsay exception. Thus, the Court concluded that since the police report was not certified to begin with, and since a foundation for its admissibility had not been laid by some other method, the report and its contents constituted inadmissible hearsay. While it is true a party’s admission is an exception to the hearsay rule, the Court declared that a party’s admission contained within a police accident report may not be bootstrapped into evidence in this fashion. To avoid the evidentiary issues discussed in Yassin, New York trial practitioners seeking to proffer police accident reports and other business records should ensure these documents are certified. Thanks to John Amato for his contribution to this post. If you have any questions or comments, please contact Colleen Hayes. Previous Next Contact

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 Let The Fact Finders Decide (PA) November 11, 2021 < Back Share to: In Daniel Spisak v. Advanced Auto Parts, Inc., Mr. Spisak brought a negligence claim against Advanced Auto Parts for failing to properly maintain its parking lot after a winter storm. On December 22, 2017, Mr. Spisak was dropping off a delivery of car batteries to an Advanced Auto Parts in Connecticut when he slipped and fell on an icy patch located in the company’s parking lot. Spisak sustained a number of serious injuries, including a broken arm which required the implementation of surgical hardware. To recovery medical expenses and lost wages, Spisak filed his “one-count Complaint” in which he “accused AAPI of negligent, careless, and/or unreasonable conduct in allowing dangerous conditions to remain on their property.” In the most recent filing associated with this case, Advanced Auto Parts filed a Motion for Summary Judgement, arguing it is entitled to a judgement in its favor as a matter of law. The Court in Daniel Spisak v. Advanced Auto Part denied defendant’s motion, ruling that material facts remained in dispute and should be decided by a fact finder at trial. Because the accident occurred in Connecticut, but the case was venued in Eastern District of Pennsylvania, the Court previously went through a conflict of law analysis determining which state law should apply. Under Connecticut law, the “Ongoing Storm Doctrine” applies, which states that a property owner “may await the end of a storm and a reasonable time thereafter before removing ice and snow outside walks and steps.” In Pennsylvania, “property owners have a duty to act within a reasonable time after notice of a dangerous accumulation of snow and ice…to remove such snow and ice.” The “Hills and Ridges doctrine” under Pennsylvania law requires plaintiffs in slip and fall cases to prove that snow and ice had “accumulated on the side walk in ridges or elevations of such size and character to unreasonably obstruct travel and constitute a danger to pedestrians,” and that the property owner was on notice of such a condition. Even though the Court’s previous conflict-of-law analysis warranted that Connecticut law control the matter, material facts would be in dispute under either State’s law. In short, because it was uncertain whether or not (1) Advanced Auto Parts employees were routinely inspecting the parking lot during and after the storm, (2) they were on notice of ice accumulation, and (3) the storm was active at the time of the fall, summary judgement was denied. Thanks to Brian Zappala for his contribution to this post. Please contact Heather Aquino 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 2nd Circuit Affirms Expansive Reading of “Arising Out Of.” July 24, 2009 < Back Share to: In the case of Turner Const v. Kemper Ins., American Manufacturers Mutual Insurance Company ("AMMIC") and Lumbermens Mutual Casualty Company ("LMCC") (collectively "Kemper") appealed from a district court order that required them to pay Turner Construction Company (“Turner”) more than $9,750,000 for damages resulting from a fire. The fire occurred at Manhattan's Central Synagogue as the partial result of the work of Kemper’s insured, Trident Mechanical Systems, Inc. ("Trident"). The court therefore held that the fire “arose” out of Trident’s work and thus awarded insurance coverage to Turner. The court ruled that the phrase “arising out of” only requires “that there be some causal relationship between the injury and the risk for which coverage is provided." http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=8778139 Previous Next Contact

News Manufacturer’s Substantial Business Supports Finding of Specific Jurisdiction April 2, 2021 < Back Share to: On March 25, 2021, the U.S. Supreme Court issued its decisions in Ford Motor Co. v. Montana Eight Judicial District Court et al., and Ford Motor Co. v. Bandemer. By way of brief background, in both cases, the states exercised jurisdiction over Ford in products-liability actions stemming from auto accidents. In both cases, the Ford involved in the accident was brought to the state via the used-vehicle market. Specifically, in Ford Motor Co. v. Montana Eighth Judicial District et al., the lawsuit alleged Markkaya Gullett (“Gullett”) was killed in Montana when a 1996 Ford Explorer malfunctioned; in Ford Motor Co. v. Bandemer, Adam Bandemer (“Bandemer”) asserted injuries stemming from a collision in Minnesota involving a 1994 Crown Victoria. In both lawsuits, Ford moved to dismiss for lack of personal jurisdiction. Ford argued that a state could only exercise jurisdiction over Ford if Ford’s conduct in that specific state gave rise to the plaintiff’s claims. In other words, Ford asserted that a causal link only existed if the vehicle involved in the accident was designed, manufactured or sold by Ford in the state where the specific accident took place. In both cases, Ford did not manufacture or sell the vehicles in the forum state where the accident took place; instead, the involved vehicle was brought to the state through resales and relocations by consumers. The Supreme Court in both states rejected Ford’s argument, since Ford’s activities in the state were sufficient to establish the necessary connection to the plaintiff’s claims that a defective Ford motor vehicle caused the in-state injury. In an 8-0 decision, the Supreme Court affirmed the Supreme Court of Montana’s and Supreme Court of Minnesota’s holdings that the connection between Ford’s activities in the forum state and the plaintiff’s claims was close enough to support specific jurisdiction, as Ford systematically served markets in Montana and Minnesota for the specific vehicles involved in the accidents. In doing so, the Supreme Court held that to establish personal jurisdiction over a non-resident defendant, plaintiffs no longer need to establish a causal link between the defendants’ actions and the plaintiffs’ specific cause of action. Put another way, a manufacturer’s business in the forum state supports a finding of specific jurisdiction. This decision is significant because it represents a departure from the Supreme Court’s previous holding that a corporation is not subject to a lawsuit in a state where it was not incorporated or headquartered unless the lawsuit arose “out of or relate[s] to the defendant’s contacts” with the state. While it is unclear how this decision will apply outside of this context, in cases where a defendant has significant operations in the forum state, the decision suggests significant weight will be given to the location of the accident and the plaintiff’s place of residence. Thanks to Lauren Berenbaum for her contribution to this post. Please contact Heather Aquino with any questions. Previous Next Contact

News Trial Court's Setting Aside Jury Verdict Affirmed by NY App. Div. April 21, 2010 < Back Share to: In Beck v. Westchester County Health Care Corp., plaintiff underwent a surgical procedure at defendant’s medical center when she alleges to have contracted the Hepatitis C virus. At trial, plaintiff, who prior to the procedure tested negative for Hepatitis C, presented testimonial evidence that eight weeks after the procedure, she was diagnosed with the same Hepatitis C virus as the patient who immediately preceded her in the same operating room. Plaintiff also presented testimonial evidence that the incubation period for the disease coincided with the date of her injuries and that the amount and disposal of the narcotic administered by syringe on the previous patient. The jury found that the defendant medical center acted within good and accepted standards of care and treatment with respect to plaintiff. Plaintiff appealed the jury’s verdict. The court granted plaintiff’s motion to set aside the jury verdict and granted a new trial. The court found that the verdict was contrary to the weight of the evidence, which was in favor of plaintiff. Defendant’s appeal of the court’s decision was denied. Thanks to Katusia Lundi for her contribution to this post. http://www.nycourts.gov/reporter/3dseries/2010/2010_03051.htm Previous Next Contact

News No Flood Insurance... No Flood Coverage (NJ) June 9, 2017 < Back Share to: Risk transfer is only available if the transfer occurs before the risk becomes reality. Unfortunately for many, the recognition that there is a risk only comes after reality. Insurance brokers who deal in that risk transfer transaction are uniquely situated to bridge that gap. But exactly what can or should a broker do to ensure that a client understands the risk and purchases the proper insurance? In Satec, Inc. v. The Hanover Group, the plaintiff property owner appreciated the risk too late, but the court did not buy that its broker or insurer was to blame. Satec, Inc. owned property with a warehouse and business offices in a New Jersey flood zone. It consulted with an independent insurance broker, who obtained a proposal for property coverage from Citizens Insurance, a subsidiary of Hanover Insurance. Along with the proposal, the broker provided a letter with a recommendation that Satec carefully review the limits and, in particular, consider additional coverage. Significantly, the optional coverage included flood and earthquake coverage that was otherwise explicitly excluded from the property coverage in the proposal. Satec accepted the proposal without any additional coverage. Over the next four years, Satec renewed the policy annually. Before each renewal, the broker sent Satec a letter advising of the availability of flood and earthquake insurance, and Satec opted to renew the policy without this coverage. Of course, the inevitable happened when Hurricane Irene struck New Jersey. The property flooded with a resulting $2.3 million in damages. Satec filed a claim with Hanover that was denied as explicitly excluded by the policy. Satec then filed a complaint against Centric, Hanover, and Citizens. Satec alleged, among other things, a breach of contract, negligence, and professional malpractice. Upon the closing of discovery all defendants moved for summary judgment and, after precluding Satec’s expert’s testimony and opinion, the trial court granted the motion as to all defendants. On appeal Satec argued that (1) an insurance broker owes a fiduciary duty to advise the insured and no expert is needed to establish that the defendants breached this duty; (2) Satec’s expert opinion was valid; and (3) Hanover should be vicariously liable for the negligence of the independent broker, Centric. The appellate court acknowledged that an insurance broker does owe a duty to his principal to exercise diligence in obtaining coverage in the area his principal seeks to be protected. However, expert opinion is generally needed to establish a breach of this duty. Satec’s expert, while he was able to articulate a broker’s duty of care, failed to site any authority or industry standards beyond his personal experience; thus, rendering his opinion inadmissible. The court was not persuaded that the plaintiff could sustain the broker malpractice claim on the basis of common knowledge. This doctrine applies where "jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of specialized knowledge of experts." Rather, the court found that the field of insurance brokerage is beyond the ken of the average juror, and, thus, expert testimony is necessary. Satec also argued that the insurer should be vicariously liable for the failings of the broker based upon agency principles. Under this theory, it sought to impute any negligence of the broker in failing to properly assess and advise of its flood insurance needs. Significantly, the broker was an independent of the insurer and not an agent. New Jersey has long recognized that an independent broker’s actions are not imputed to an insurer. Basically, when an independent broker is making recommendations to a client, he is acting on behalf of that client, not the insurance companies. Thanks to Marcus Washington for his contribution. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com .   Previous Next Contact