Wade Clark Mulcahy LLP

News WCM Partner Fights on the Side of Angels and Against Policyholders. April 4, 2016 < Back Share to: Such was the mission tasked to Partner Bob Cosgrove when he was asked to be a panel speaker at a March 22, 2016 Anderson Kill sponsored seminar entitled "Fight Night: Attacking and Defending Insurance Claims." Mr. Cosgrove was asked to explain (to a pro policyholder audience) how and why insurance companies analyze claims and why, contrary to policyholder beliefs, such behavior is typically reasonable. Hopefully, the explanations stuck. For more information about this post, please e-mail Bob Cosgrove . Previous Next Contact

News Proof of Planted Tree Alone Does Not Create a Dangerous Condition (NJ) November 24, 2021 < Back Share to: It is long established precedent in New Jersey that residential landowners do not owe a duty to maintain their sidewalks for the safety of pedestrians, but commercial landowners and commercial tenants usually are bestowed a duty to maintain sidewalks for the benefit of the public. Still, a residential landowner can be liable for a sidewalk defect if the residential owner creates or exacerbates a dangerous sidewalk condition. In Mondie v. Linton, the plaintiff, while walking her dog, tripped and fell on a raised sidewalk slab in front of defendants’ home in Barnegat, New Jersey. She sued the residential owners and claimed that the owners created the differential sidewalk condition and therefore could potentially be liable. The evidence revealed that the defendants had owned the house, constructed in 1989, and Plaintiff further identified a pear tree located a few feet from the sidewalk adjacent to the differential sidewalk slabs, The plaintiff, through an expert, claimed that the tree had been planted either by the defendant owners or the developer who constructed the home and who was the defendants’ predecessor in title. Defendants acknowledged the tree’s presence but denied they ever planted it. On appeal of the trial court’s dismissal of plaintiffs’ complaint on summary judgment, the appellate division held the plaintiff could not show that the defendants or the previous developer planted the tree despite some case law indicating that a residential property owner may be liable for injuries sustained by a pedestrian if it can be shown that the owner planted a tree where he or she “could readily foresee … the roots of the tree extending underneath the sidewalk causing it to be elevated.” Nonetheless, and despite relying on an expert report, the appellate division found that the plaintiff could not prevail because she should not show that the defendants or their predecessors in title affirmatively planted the tree which might have raised the sidewalk. Notably, the court took issue with plaintiff’s expert who did not consider the distance from the tree to the sidewalk, whether and how the roots spread in the area under the sidewalk slab, or any explanation for how the tree raised the sidewalk. Thus, summary judgment for the defendants was affirmed. In these types of cases, it is important for the defense to highlight the deficiencies of plaintiffs’ proofs in order to obtain summary judgment. Thanks to Mike Noblett for his contribution. If you have any questions, please contact Matthew Care. Previous Next Contact

News PA Court – A Mere ROR Does Not Give the Insured the Right to Its Own Counsel. September 9, 2010 < Back Share to: One of the constant issues a carrier must face is whether, by issuing a ROR, it has granted the insured the right to choose its own counsel. In the case of Eckman v. Erie Ins., a Pennsylvania trial court was confronted with just this issue -- http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1202470836794. In Eckman, the carrier assigned defense counsel to represent Eckman in a defamation lawsuit (under a ROR) while it investigated coverage. The Eckmans objected and argued that the ROR created a conflict of interest between themselves, assigned defense counsel and the carrier. They argued that the ROR entitled them to choose their own counsel at Erie’s expense. The court rejected this plea. It held that in the absence of an actual conflict of interest, the Eckmans were not entitled to choose their own attorney since the assigned defense counsel (under PA’s rules of professional responsibility) was ethically bound to exclusively advocate on behalf of the insured client. If you have any questions about this post, please contact Bob Cosgrove at rcosgrove@wcmlaw.com . Previous Next Contact

News NJ Court Affirms PIP Insurer's Right To Settle Even If Policy Limits Are Exhausted For Other Claims December 21, 2009 < Back Share to: Marilus Rodriquez suffered personal injuries in a motor vehicle accident with medical bills for treatment totaling $623,677. The Allstate policy providing PIP benefits to her had $250,000 per accident limits. After Allstate paid $250,000, another unpaid provider, Endo Surgical sought additional benefits over the Allstate policy limits. It argued that while its demand for arbitration was pending, Allstate had a duty to notify it that the insured's PIP benefits were going to be exhausted. The appellate division rejected this argument and affirmed , finding that, absent bad faith, an insurer may settle with one claimant, notwithstanding that the settlement may exhaust the policy limits available for other claimants. http://www.judiciary.state.nj.us/opinions/a2146-08.pdf Previous Next Contact

News Premises Liability Mode-Of-Operation Theory A Matter of Probability (NJ) October 30, 2013 < Back Share to: The mode-of-operation theory of liability for a premises liability action against a business is a tempting strategy. It absolves an injured plaintiff of the burden of proving that the business owner had notice of a dangerous condition in time to address it. As tempting as it is, it has its limitations. For one, the plaintiff must show that the alleged condition was related to the manner in which the business is conducted. Earlier this year, in February, we reported that the New Jersey Appellate Division issued an unreported decision, Cashour v. Dover Parkade, LLC, that limited application of the mode-of-operation theory where the plaintiff was unable to sustain a link between the object she slipped on and the defendant store's business operations. In that case, the plaintiff fell on a plastic bag that was in front of a store. However, she could not link the bag to the store's operations. Now the Appellate Division has issued a reported decision addressing this theory once again. In Arroyo v. Durling Realty, LLC, the plaintiff alleged that she slipped on a discarded telephone calling card left on the sidewalk in front of a convenience store. The plaintiff linked the cards to the store, noting that the phone cards were displayed on racks near the store's cash register next to the exit doors. She argued that due to the proximity of the cards to the door, the business should have foreseen that someone might buy a card, use it, and then immediately discard it on the sidewalk. With no real proof as to actual or constructive notice, the plaintiff's only chance was through this mode of operation argument. However, she had to convince the judges that "as a matter of probability, a dangerous condition is likely to occur as the result of the nature of the business." The judges were not persuaded. Since the patron would have selected the card, paid for it at the cashier, and left the store, the nexus between a self-service operation and the card on the sidewalk was too attenuated. Summary judgment was affirmed. This reported decision should help to clarify that notice is still a required proof burden for a claim against a retailer with limited exceptions. For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com . Previous Next Contact

Commercial Litigation Our commercial practice is built upon the results achieved for our insurance clients. Having seen our work in insured cases, many of our corporate clients have hired us to fight their battles outside the zone of insurance protection. They know we are a firm of trial lawyers rather than “litigators.” We see discovery as a means to an end, either a successful negotiation or a trial victory. Our clients like that approach and have retained us in cases across the spectrum of commercial disputes, including Breach of Contract, Intellectual Property, Employment, Construction, Regulatory, Compliance and Licensing Issues, Corporate and Fiduciary, and Directors and Officers. Practice Lead Robert J. Cosgrove Partner +1 267 239 5526 rcosgrove@wcmlaw.com Download Download

News Plaintiff’s Case Slips Away on Unsuccessful “Mode-of-operation” Theory (NJ) November 10, 2016 < Back Share to: The defense bar scored another small victory in the ever-evolving “mode-of-operation” argument which focuses on the manner in which a commercial establishment conducts its business. If argued successfully, a plaintiff may be relieved of the typical burden to prove notice if they can instead prove that the commercial defendant should have been aware of the reasonable possibility that a hazardous condition could be created solely based upon the defendant’s business practice. The plaintiff in Anderson v. Stop and Shop Supermarket Company, L.L.C. claimed to have slipped and fallen on a "semi-solid substance" on the grocery store aisle while shopping in the frozen food section. She could not identify the substance, where it came from, or how long it had been there. After the fall, the store manager was quickly notified. He found the floor to be dry and semi-solid substance free. He also testified that maintenance porters routinely walk the store monitoring for hazardous conditions. The defendant successfully moved for summary judgment arguing that the plaintiff could not prove that the store had actual or constructive notice of the presence of the substance which she claims caused her accident. On appeal, the plaintiff argued that the self-service nature of the store’s business practice warranted a finding of constructive notice. But the Appellate Division was not convinced. Prior decisions in this long line of cases have held a food store liable when a customer sustains injury due to a hazardous condition inside the store, such as a grape on the floor in the checkout area. However, the Court highlighted the plaintiff’s failure to demonstrate the necessary nexus between the hazardous condition and the defendant’s business operation. A grape, for example could reasonably be expected to fall onto the floor due to careless handling in the checkout area. On the other hand, the Anderson Court found it unreasonable to impute constructive notice for an unknown substance in an aisle containing packaged and sealed containers. Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information. Previous Next Contact

News Wade Clark Mulcahy Launches Louisiana Office with New Partner E. Alexis Bevis May 17, 2024 < Back Share to: ​ Wade Clark Mulcahy is pleased to announce the opening of its New Orleans Office led by experienced litigator, E. Alexis Bevis. The new Louisiana office strengthens the firm’s robust litigation practice and increases Wade Clark Mulcahy’s geographic presence. This is the firm’s third new office in eighteen months. “We are thrilled to open a New Orleans office and serve our clients’ needs in Louisiana,” says Bob Cosgrove, Wade Clark Mulcahy Managing Partner. “Alexis is the perfect attorney to lead WCM’s New Orleans Office.” Ms. Bevis regularly handles cases in state and federal courts in Louisiana. She concentrates her practice on defending general casualty and professional line carriers focusing on casualty, commercial, and complex litigation in the fields of transportation, energy, manufacturing, highway engineering, construction negligence, premises liability, product liability, cyber litigation, and catastrophic loss. Ms. Bevis received her bachelor's degree in Sociology with a focus in race and ethnic relations and women’s studies from The Pennsylvania State University - Schreyer Honors College. She earned her law degree from Loyola University College of Law in New Orleans, Louisiana. Wade Clark Mulcahy’s New Orleans Office is located at 824 Elmwood Park Blvd., Suite 215, New Orleans, LA 70123. About Wade Clark Mulcahy Since its founding in 1994, Wade Clark Mulcahy has achieved superior and cost-effective results for its insurance and corporate clients. With seven offices in England, Florida, Louisiana, New Jersey, New York, and Pennsylvania, Wade Clark Mulcahy effectively serves clients' needs in a variety of jurisdictions. WCM is a firm of trial lawyers who partner with our clients to devise effective strategies to manage risk and bring closure to complex matters. Previous Next E. Alexis Bevis E. Alexis Bevis Partner +1 504 291-2360 abevis@wcmlaw.com Contact

News No Picnic for Plaintiff - Tree Roots are Open and Obvious (NY) October 4, 2018 < Back Share to: In Ibragimov v Town of N. Hempstead, the plaintiff, while at a picnic at Whitney Pond Park in Nassau County New York, tripped on an exposed tree root and fell after getting up from a picnic table. He filed a lawsuit in Nassau County Supreme Court against the Town of North Hempstead claiming the Town was negligent in the maintenance of the picnic area and the tree root was dangerous. The Town filed a motion for summary judgment, arguing that the lawsuit should be dismissed because exposed tree root was an open and obvious condition which was inherent or incidental to the nature of the property; and that the exposed tree root was not inherently dangerous. The Supreme Court agreed with the Town of North Hempstead and granted the motion, dismissing the case. The plaintiff appealed the dismissal, and the Appellate Division, Second Department, reviewed the case. The Appellate Division affirmed that a landowner has a duty to exercise reasonable care in maintaining its property in a safe condition under all of the circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property. However a landowner has no duty to protect or warn against an open and obvious condition that is inherent or incidental to the nature of the property, and that could be reasonably anticipated by those using it. The Court ruled that the tree root fell within this principle, known as the “open and obvious” rule. The Appellate Division agreed with the Supreme Court’s decision and affirmed the dismissal of the lawsuit based upon the open and obvious nature of the tree root in the picnic area of the park. Thanks to George Parpas for his contribution to this post. Previous Next Contact

News WADE CLARK MULCAHY – On the Move September 23, 2016 < Back Share to: We are pleased to announce that, with effect from Monday, September 26, 2016, WCM will let its results speak for themselves from our new New York office at 180 Maiden Lane, New York, New York 10038. Our telephone number remains the same. We invite all of our friends who happen to be in the neighborhood to stop by and visit our new office which features cutting edge technology, ultra-modern design, and some really cool views of the Brooklyn Bridge and New York Harbor. Previous Next Contact

News New York Court of Appeals Takes on Late Notice…Again April 6, 2016 < Back Share to: Although the issue of late notice may have calmed in recent years, cases still bubble up through the judicial system and reach the Court of Appeals. In Spoleta Const LLC v Aspen Ins UK Ltd, the Fourth Department asked the Court of Appeals to review whether an additional insured provided sufficient notice to trigger coverage. Spoleta, the general contractor for a construction project, entered into an agreement with subcontractor Hub-Langie Paving. The agreement required Hub to defend and indemnify Spoleta as an additional insured for claims of bodily injury arising out of Hub’s work. Thereafter, an employee of Hub was injured at the worksite in 2008. Spoleta was first placed on notice of the accident in December 2009 when it received a notice of intent to make a claim from the worker’s attorney. On January 27, 2010, Spoleta sent a letter to Hub providing details surrounding the claim, and advising Hub of its contractual duties to defend under the Spoleta-Hub agreement. The January letter also requested that Hub place its insurance carrier on notice of the claim. The January letter and the Spoleta-Hub contract were timely forwarded to Aspen. After the worker commenced suit against Spoleta in April 2010, Spoleta requested defense and indemnification from Aspen as an additional insured under Hub’s policy. Aspen disclaimed additional insured coverage to Spoleta on the basis of late notice. Aspen argued that Spoleta received notice of the occurrence in 2009, but did not seek coverage as an additional insured until it was served with the complaint. Aspen argued that the January letter only provided notice of a claim for contractual indemnification, and it there was no indication that Spoleta sought additional insured coverage. Spoleta commenced a declaratory judgment action against Aspen, but the complaint was dismissed by the trial court on a pre-answer motion. On appeal, the Forth Department reversed, but granted leave to appeal in light of a dissenting opinion. At issue for the Court of Appeals was whether the January letter constituted proper notice of claim for additional insured coverage. The Court of Appeals affirmed the Fourth Department, and rejected Aspen’s argument that the January letter only provided notice of a contractual indemnity claim. The Court held that the January letter simply requested defense and indemnity under the Spoleta-Hub contract without having to specifically invoke either the agreement’s additional insured or indemnification provisions. Moreover, the Court held that Aspen was made aware of how, when and where the “occurrence” took place and the nature and location of the alleged injuries. As a result, the Court found that the January letter satisfied the notice requirements of the Aspen policy, and reinstated the complaint. This case demonstrates the Court of Appeals’ reluctance to allow an insurer to escape coverage on a technicality. Aspen believed that the sole purpose of the January letter was to place it on notice that Spoleta intended to make a contractual claim against Hub, and it was unaware whether Spoleta even qualified as an additional insured. Aspen even sent a letter to Spoleta acknowledging Spoleta’s contractual indemnification claim against Hub, and argued that it may have conducted its investigation differently if it knew Spoleta sought additional insured coverage. However, a review of the oral arguments shows that several judges on the Court found this argument to be highly tenuous since Aspen was in receipt of the Spoleta-Hub agreement where Spoleta was named as an additional insured. The judges focused on the fact that compliance with notice provisions are necessary because an insurer must have the opportunity to investigate an occurrence or claim to preserve its rights. Specifically, Judge Pigott stated the improbability of an insurer receiving notice of a claim and saying, “oh, well, we're not going to go and investigate this because they're saying they're looking for indemnification as opposed to [additional insured] coverage.” The decision seems to accept the realities of construction projects; where there may be multiple parties seeking additional insured coverage, but AIs may not know the proper insurer to tender. In a perfect world, an AI would use trigger words such as “pick up the defense and indemnification” or “we are tendering a defense and indemnification to you under the policy.” However, the decision in Spoleta adopts substance over form and makes clear that such words are not always necessary. Notice provisions may be satisfied by an AI as long as the AI states that it seeks defense and indemnification, provides necessary information regarding the “occurrence,” and advises the party to place its insurer or notice. Thanks to Dan Beatty for his contribution to this post. If you have any questions about this post, please email Brian Gibbons for additional information.   Previous Next Contact

News No Lost Wages For No Lost Work! November 17, 2023 < Back Share to: ​ In a recent decision out of the Superior Court of Pennsylvania titled: Butler v. Landmark Property Group, LLC , the Court refused to reverse a damages award in favor of the Plaintiff, specifically his claim for lost wages . The “Butlers,” husband and wife, appealed a judgement after trial, arguing that the jury award failed to accurately reflect medical losses and loss of income suffered by Mr. Butler. Specifically, Appellants argued that Mr. Butler suffered $115,000 in lost wages alone in 2018 and 2019. The Superior Court affirmed the decision, because there “was no evidence that [plaintiff’s] future earning capacity was impaired because of his ankle injury.” Id. at 3. In fact, the court noted that while Mr. Buter had testified that his leg pain was a “ten” and “could not get any worse”, he had returned to work several times through 2018 through 2021 after being cleared to do so. Id . It was not clear, despite his testimony of being in “excruciating” pain, that his damages rose to the requested amount provided his continuing work history. Id. The Court also agreed that the Butler’s expert had been unreliable at trial, as his statement that Buter could not work due to his ankle conflicted with the in fact that he was the exact same doctor who had cleared Buter to return to work multiple times through 2018. Id. This case reinforces the prospect that the credibility of witnesses and experts in personal injury cases matter when it comes to the ultimate award of damages. As the Superior court reinforced in its conclusion, “If the verdict bears a reasonable resemblance to the damages proven, we will not upset it merely because we might have awarded different damages.” Id at 4. Here, an uncredible witness and an inconsistent expert resulted in an award the trial court felt reasonable to the damages suffered, even if it was less than what plaintiff sought. Exposing such inconsistencies are critical to an effective defense at trial, especially when the “abuse of discretion” standard of review at the Appellate level remains a high bar to pass in PA courts. Butler v. Landmark Property Group LLC .pdf Download PDF • 327KB Previous Next Contact