In Kozma v. Starbucks Coffee Company et al., a 50-year old man slipped and fell after getting some coffee at Starbucks. The jury found Starbucks 60% liable and plaintiff 40% liable. Although the allocation of fault fell in plaintiff’s favor, the evidence that came out during trial, namely that plaintiff had prior work injuries similar to the injury claimed at the time of the Starbucks slip-and-fall, that plaintiff had traveled to both Florida and his home in the Poconos after the accident, and that he had even played a few rounds of golf, led the jury to return a verdict with no monetary damages awarded to the plaintiff.
Plaintiff disagreed, and appealed the verdict solely on the issue of damages, arguing that the instruction that the jury was allowed to return an award of zero dollars was erroneous. The Appellate Division found that the jury instructions were proper and deferred to the trial court jury and its “infusion of community notions of justice” into its verdict.
Thanks to Alison Weintraub for her contribution to this post.
In a stunning development, Judge Alvin Hellerstein has rejected the $575,000,000 settlement reached by the parties. Judge Hellerstein ruled that the settlement was “not enough.” It’s back to the drawing board in MC 100.
Plaintiff James Sinkaus was standing on a ramp at a work site. His co-workers were pushing some sort of cart up the ramp and the cart rolled over the plaintiff’s foot. The plaintiff filed a claim under Labor Law 240, claiming that this was a gravity-related accident.
The court rejected the plaintif’s claim, pointing out that the cart was going up and, of course, gravity operates in the opposite direction.
If you have any questions about this topic, please contact Georgia Stagias at
On August 29, 2005, New Orleans, Louisiana was devastated by Hurricane Katrina. During the course of the hurricane, hundreds of barges and vessels broke away from their moorings, causing substantial damage. Barge ING 4727 was one such barge which broke away during the storm. Afterwards, some theorized that Barge ING 4727 actually caused the breach in the levee on the Lower Ninth Ward of New Orleans. What followed was an onslaught of litigation for claims against several defendants, including Lafarge, a company which provides construction materials throughout the United States. Lafarge was the operator allegedly responsible for the terminal to which Barge ING 4727 was moored just prior to the storm.
Lafarge had primary insurance coverage through NYMAGIC, and excess coverage through AHAC, NACA, and American Club. Upon learning of the potential casual connection between the barge and the breached levee, Lafarge took proactive steps to begin preparing a defense against any potential litigation. Thus, Lafarge hired two large (and thus very expensive) national law firms (Goodwin Proctor and H&K), as well as a local counsel (Chaffe), to begin assessing their potential mass tort liability. Upon notification that Lafarge had retained the three aforesaid firms, NYMAGIC informed Lafarge that they could not commit to paying for firms which they did not appoint, and instead offered a list of six New Orleans firms to handle the case. Lafarge declined to consent to the representation of any of the named firms, and instead continued to utilize their self-selected attorneys.
Three separate declaratory judgment actions were filed in the United State District Court for the Southern District of New York seeking coverage. The District Court granted the American Club’s Motion for summary judgment in the matter, holding that coverage was not afforded under that excess policy. Furthermore, the court held that the excess carriers were obligated to cover Lafarge. Lastly, the district court held that the primary and excess carriers were obligated to cover the legal fees earned by Goodwin Proctor and H&K. An appeal resulted.
On appeal, NYMAGIC, Lafarge, AHAC, and NACA argued that the American Club Policy covered Barge ING 4727. Lafarge also challenged the District Court’s holding that the primary and excess policies did not cover the legal fees earned by Chaffe; and the court’s refusal to award attorneys fees in connections with the motions for summary judgment. Finally, NYMAGIC, AHAC, and NACA challenged the decision that excess polices were triggered, and that the primary and excess policies covered the legal fees earned by Goodwin Proctor and H&K.
The Second Circuit has now ruled. It first examined the excess policy issued to Lafarge by American Club. Although there was no explicit endorsement naming Barge ING 4727 as a vessel covered under the policy, Lafarge argued that the barge was automatically covered pursuant to the following provision: If Lafarge…acquires an insurable interest in any vessel in addition to or in substitution for those set forth herein, through purchase, charter, lease or otherwise,… . The appellate court declined to confer a broad interpretation of the phrase “or otherwise”, as such a broad interpretation would effectively nullify two entire phrases in the policy. The court also considered extrinsic evidence which revealed that the clause was never intended to cover barges such as Barge ING 4727. Ultimately, the court held that “otherwise” did not include the kind of relationship associated with a ship owner’s bailment to a terminal operator. Thus, the appellate court upheld the district court’s decision to grant summary judgment on behalf of the American Club.
Next, the appellate court held that the primary and excess carriers were liable for the fees payable to Goodwin Proctor and Chaffe which were incurred prior to September 28, 2005. After that date, Lafarge acted in bad faith by failing to consider the list of firms proposed by NYMAGIC; thus, the insurers were not liable for any amounts incurred after that date. The court also held that the fees earned by H&K were recoverable because they were retained on a temporary basis for an investigative mission. Lastly, the appellate court found that the District Court did not abuse its discretion by denying Lafarge’s motion for attorney’s fees, as the denial was not based upon any attempt by the insurers to avoid their duty to defend Lafarge.
Special thanks to Heather Aquino for her contributions to this post. If you have any questions about its contents, please contact Bob Cosgrove at .
Oprah Winfrey has become one of the world’s biggest and richest celebrities based on the power of her words and personality. That power has now landed her in hot water.
As has been well-documented, Oprah founded OWLAG, a South African boarding school for impoverished children. She hired Lerato Nomvuyo Mzamane, a Lesothon by birth, who worked at a prestigious Philadelphia school, to effectively operate the academy.
Shortly after OWLAG opened, allegations of abuse/misconduct by staff members surfaced. When the allegations of misconduct went public, Oprah placed Mzamane on leave. Oprah also held a press conference in which she conveyed her disappointment in the persons she had appointed to run OWLAGI. Mzamane never returned to the school.
Unsurprisingly, Mzamane has now found it difficult to find a job back in the US. So, she did what any good American would do — she filed a lawsuit alleging defamation and other tortious acts by Oprah. The lawsuit was filed in USDC in Philadelphia.
At the close of discovery, Oprah moved for summary judgment. In a 126 page decision that includes a lengthy conflict of law analysis, Judge Robreno denied Oprah’s motion and held that there were questions of fact that only a jury could decide.
The trial is now set to begin on March 29. We shall see if Oprah’s words again carry the day.
Federal courts have had strict e-discovery rules since the 2003 Zubulake decision . New York’s state courts may soon be joining the parade. A report has been issued recommending changes and additions to how courts handle e-discovery. Key recommendations include: an addition to the Preliminary Conference form to highlight e-discovery issues and responsibilities; consideration of a court rule requiring counsel appearing at the preliminary conference to be competent to discuss client technology systems; a pilot project designating e-discovery specialists to assist judges in supervising and resolving protracted e-discovery disputes; pilot projects in selected courts regarding disclosure of e-discovery issues and e-discovery compliance.
E-discovery is here to stay, and all counsel, and their clients, must be prepared.
For more information about this post, please contact David Tavella at
In Growney v. Glassman, plaintiff appealed from summary judgment and a denial of reconsideration based on plaintiff’s failure to satisfy the verbal threshold. Plaintiff’s medical expert changed his mind concerning the permanency of plaintiff’s injuries after summary judgment was granted , citing an examining physician’s note that “there appears to be a mildly displaced fracture in the sacrum”. The Appellate Division held that the note fell short of the standard for admissable testimony, which must be based on reasonable medical certainty or probability. Further, since the information was available before summary judgment was decided, it failed to provide an appropriate basis for reconsideration.
In Credit Suisse First Boston v. Lehman, et al, the plaintiff’s had sought in excess of $5.5 million in damages from an insurance broker represented by WCM partner, Robert Ball, and a wholesaler. Plaintiffs alleged that the insurance broker and wholesaler failed to procure the appropriate insurance policies to cover a New Orleans hotel owned by Credit Suisse which was the subject of multiple mold claims.
After a 6 week trial, the jury found the insurance broker negligent , but that the negligence did not proximately cause any alleged damages. On appeal , the New Jersey Appellate Division affirmed the verdict finding no error in the jury charge, ” little question” that the insurance policies procured required the carrier to defend and indemnify Credit Suisse, and that Credit Suisse’s decision to settle the underlying claims without suing the insurance carrier ” highly questionable”. The latter point had been the basis of WCM’s lack of proximate cause argument to the jury.
If you have any questions regarding this trial or appeal , please contact Robert Ball in our New Jersey office.
The 9/11 terrorist attacks have generated much litigation. In a just announced $657,000,000 settlement, one piece of the litigation, the MC 100 on-the-pit litigation has just settled — pending approval from the court and the 10,000 plaintiffs. The court will now be free to turn its focus onto the MC 102 and MC 103 litigations which involve the 3,000+ plaintiffs who worked on the post 9/11 clean-up of buildings outside of the immediate WTC zone. There are a number of outstanding questions. Will the settlement be anywhere near as large? How will any future settlement be funded in those cases involving private landowners, contractors and vendors? At the least, the framework for this MC 100 settlement will shape the template used in any potential settlement of the off site (MC 102) and combination (MC 103) litigations. Stay tuned as the details and framework of the MC 100 settlement become public.
For more information about this post, please contact Paul Clark at
In Steadfast Insurance Company v. The AES Corporation, currently set for trial in Virginia state court next month, an Alaskan village sued Exxon Mobil and other oil and gas companies alleging the defendants caused harm to their village by contributing to global warming. Steadfast, an insurer of one of the oil companies, filed a declaratory judgment action seeking a declaration that it owed neither defense nor indemnity because the CGL policy at issue did not cover global warming claims for three reasons: (1) global warming is not an “occurrence”, as defined in the policy; (2) global warming began before the policy date; and (3) the pollution exclusion applies. What will the judge and jury decide? Stay tuned for more details!
If you have any questions about this post, please contact Bob Cosgrove at .
Special thanks to Christopher O’Leary for his contributions to this post.
