Civil rights jurisprudence seems to spend as much time discussing how much the lawyers get paid as the intricacies of the substantive law controlling those suits. The battleground is usually fought over what constitutes the “lodestar” and the extent to which the lodestar should be increased after considering a number of factors.

In Perdue v. Kenny A., the United States Supreme Court, in a 5-4 decision, put the brakes on routine fee enhancements. A brief word about the controlling terminology. Pursuant to 42 U.S.C. 1988, a prevailing party is entitled to reasonable attorneys fees in a civil rights case. The trial court must approve a “lodestar” amount, that is, a reasonable hourly rate in the prevailing market for similar cases multiplied by the reasonable number of hours spent on the matter. Thereafter, the courts routinely consider whether the lodestar should be enhanced by some percentage that reflects a number of factors including the complexities of the work or the superior performance of counsel.

In Kenny A., the Supreme Court set a high bar for fee enhancements. It noted that there is a “strong” presumption that the lodestar alone is adequate to compensate the prevailing attorney. Thus, fee enhancements of the lodestar should only be granted in “rare” and “extraordinary” cases. To overcome this hurdle, the fee applicant must satisfy the burden of demonstrating that the lodestar amount is insufficient compensation and the district courts must provide a detailed explanation of the objective factors used to justify any increase.

If you have any questions or comments about this post, please email Paul at

http://www.supremecourt.gov/opinions/09pdf/08-970.pdf

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

In Pusl v Means, 982 A 2d 550 (Pa Super 2009) plaintiff was awarded $100,000 damages from the tortfeasor. Prior to trial plaintiff recovered UIM policy limits of $75,000 from State Farm. The trial court granted defendant’s post trial motion to raise the defense of set off for plaintiff’s UIM settlement of $75,000 and proceeded to mold the verdict to $25,000.

On appeal, the Superior Court affirmed holding that section 1722 of the Pa MVFRL (75 Pa.C.S.A.sect 1722) was intended to bar double recovery and that plaintiff’s UIM settlement falls within the purview of that section’s first party benefits. The court also cited clear PA public policy against a person recovering twice for the same injury and rejected plaintiff’s argument that the set off violated the collateral source rule. Id at 557. The Court also noted that its holding was consistent with the equitable doctrine of subrogation, explaining that under existing law, State Farm had the right to subrogate against defendant tortfeasor in a separate action for the $75,000. paid under plaintiff’s UIM policy. The result of molding the verdict to $25,000 therefore ensures that plaintiff received the full amount of damages awarded to her by the jury, i.e. $25,000 from tortfeasor and $75,000 already recovered from State Farm. Id at 558.

On March 13, 2010 the PA Supreme court denied plaintiff’s petition for allocatur. Pusl v Means NO 512 WAL 2009.

http://pdf.wcmlaw.com/pdf/Superior Court Decision.pdf

http://pdf.wcmlaw.com/pdf/Supreme Court Decision.pdf

If you have any questions about this post, please contact Clayton Thomas at .

In Bowles v. Clean Harbors Environmental Services, Inc., Schenectady International, Inc. hired Clean Harbors Environmental Services, Inc. (defendant) to clean on-site bulk chemical storage tanks located at one of its facilities in Schenectady. However, Schenectady International’s policies provided that the cleaning could not take place until Schenectady International itself inspected the tank and issued a confined space permit.

Plaintiff, a safety technician at Schenectady International began to inspect the tank, and used a fiberglass ladder that had been propped against the tank rather than the ladder that was affixed to the tank. While plaintiff was on the fiberglass ladder, he reached over to place a meter on top of the tank, and the ladder kicked out from under him causing him to fall 10 feet to the floor and sustain injuries. Plaintiff and his wife sued under NY Labor Law §§ 200, 240 (1) and 241(6).

Following discovery, defendant moved for summary judgment, which the trial court granted by dismissing the complaint. The trial court found that the defendant had no authority to supervise or control plaintiff’s work and as such could not be liable under the relevant provisions of the labor law. Since the defendant had yet to even enter the property, and the record demonstrated that plaintiff’s employer, Schenectady International, rather than the defendant had control over the work plaintiff was doing, the defendant could not be liable under NY’s Labor Law provisions. Plaintiff appealed, and the Appellate Division, Third Department affirmed the lower court’s ruling.

Thanks to Alison Weintraub for her contribution to this post.

http://decisions.courts.state.ny.us/ad3/Decisions/2010/507791.pdf

Plaintiff Francine Guarciaro filed suit to recover damages for injuries she allegedly sustained in a motor vehicle accident. Interestingly, however, at the time of the incident she informed the responding officer that she was standing on the sidewalk when her vehicle was struck. Plaintiff presented a claim for uninsured motorist’s coverage to her insurer, State Farm Indemnity Company. Needless to say, State Farm declined to provide coverage, and the matter proceeded to arbitration. Plaintiff’s UM endorsement contained the following provision:

“Two questions must be decided by agreement between the insured and us:

1. Is the insured legally entitled to collect damages from the owner or driver of the uninsured motor vehicle or underinsured motor vehicle; and

2. If so, in what amount?

If there is no agreement, these questions shall be decided by arbitration upon written request of the insured or us……..The written decision of any two arbitrators shall be binding on each party unless the amount of the damages awarded exceeds the minimum limit of liability specified by the financial responsibility law of New Jersey. If the amount of the damages awarded in the arbitrator’s decision exceeds that limit, either party may, within 20 days of the arbitrators’ decision, demand a trial. If the demand is not made, the decision of the arbitrators is binding on each party.”

After the arbitration, State Farm rejected the award and requested a trial on all issues. Plaintiff’s counsel responded that, under the policy, State Farm was only entitled to a trial on damages.

In an unreported Appellate Decision, the court held that the language of the endorsement entitled State Farm to a trial on all issues. The court distinguished the language of the subject policy from other cases in which the construction of the endorsement provision limited the trial to the question of damages.

Specials thanks to Heather Aquino for her contributions to this post. If you have any questions, please contact Bob Cosgrove at .

In Simon v. Astoria Federal Savings, Justice Battaglia in Kings County rejected a property owner’s argument that the property owner is relieved from liability for injuries caused by negligence in removing snow from the abutting sidewalk if the property owner hired a contractor to clean the snow and the contractor entirely displaced the property owner’s duty to maintain the premises. The court noted that New York City’s “Sidewalk Law” places a non-delegable duty on the property owner to keep the abutting sidewalk free of snow and ice. While a snow removal contract may permit indemnification for any loss, it does not relieve the abutting property owner from liability to the plaintiff. Of course, the court also found that the contract did not entirely displace the owner’s duty regarding removal of snow from the sidewalk.

If you have any questions about this post, please email David Tavella at

That winning bid on eBay may cost you more than you think. In a case in Florida, a man bought a clock on eBay for $44. The clock arrived in three pieces that didn’t fit together, and apparently were not from the same model. The buyer received a refund and sent the clock back. He then posted a bad review of the seller: “Bad seller; he has the ethics of a used car salesman.”

The seller did not take the criticism kindly. The seller, a Miami Beach lawyer, sued for damages for ruining his 100 percent customer approval rating and commercial reputation. The seller is seeking $15,000 for defamation. The case is still winding its way through Miami-Dade County Court.

If you have any questions about this post, please email David Tavella at

The 9/11 tragedy has generated a cottage industry of litigation about the definition of the term “occurrence” in a property policy, the obligations of a long term tenant to rebuild property destroyed by terrorists and the liability of owners of property and their contractors to workers who claim to have been injured in the aftermath of the 9/11 attack. After years of litigation, the City of New York and its contractors announced a global settlement with thousands of plaintiffs who seek compensation for respiratory injuries allegedly caused by the effects of 9/11. The settlement fund could reach as much as $657,000,000 if accepted by over 98% of the claimants.

Judge Alvin Hellerstein rejected the proposed settlement as inadequate and prohibited the parties from implementing several key provisions in the agreement. The City of New York disputes the court’s authority to approve the settlement or reject any provision in the agreement. The City has filed a notice of appeal with the Second Circuit in an effort to salvage the settlement as negotiated between the parties.

If you have any questions about this post, please email Paul Clark at

City of New York Appeal Pdf

Though GOL §5-322.1, provides that an indemnitee cannot be indemnified for its own negligence, there have always been certain situations where an indemnification provision — that would otherwise appear to be void — was upheld by courts because of its “saving language” or because of the specific facts of the case. An indemnification provision that seemingly indemnifies the indemnitee for its own negligence has been upheld so long as the provision has the saving language “to the fullest extent permitted by applicable law.” See, e.g., Dutton v. Charles Pankow Builders, 296 A.D.2d 321 (1st Dep’t 2002), appeal denied, 99 N.Y.2d 511(2003). In other situations flawed indemnification provisions (purportedly indemnifying an indemnitee for its own negligence) have been enforced where the indemnitee’s lack of negligence has been established as a matter of fact. See, e.g., Alesius v. Good Samaritan Hospital, 23 A.D.3d 508 (2d Dept. 2005).

In Hadzihasanovic v. 155 East 72nd Street Corp., 70 A.D.3d 637 (2d Dept. Feb. 2, 2010), defendants Dale and Stephen Hoffman purchased shares in a cooperative building and hired a contractor to perform certain alterations to their apartment. To gain the approval for the alterations, the Hoffmans signed an indemnification agreement in favor of 155 East 72nd Street Corp. (the building owner) and Wallack (the building manager). The plaintiff, a subcontractor’s employee, was injured while working in the apartment. He sued the Hoffmans, 155 Corp. and Wallack. 155 Corp. and Wallack asserted, a cross claim against the Hoffmans for contractual indemnification. Subsequently, the Hoffmans moved, for summary judgment dismissing 155 Corp. and Wallack’ cross claim for contractual indemnification, and 155 Corp. and Wallack cross-moved for summary judgment. The court granted the Hoffman’s motion and denied 155 Corp. and Wallack’s motion holding the the alteration agreement was void pursuant to GOL 5-322.1. The court found that “A broad indemnification provision in a lease, such as the alteration agreement here, which is not limited to the lessee’s acts or omissions, fails to make exceptions for the lessor’s own negligence, and does not limit the lessor’s recovery under the lessee’s indemnification obligation to insurance proceeds, is unenforceable pursuant to General Obligations Law § 5-321.”

While it is not clear from the decision whether the indemnification agreement had “saving language” or whether 155 Corp. and Wallack were free from negligence, it appears that the Second Department has revisited the issue–and is attempting to once again broaden GOL §5-322.1’s reach.

http://pdf.wcmlaw.com/pdf/GOL Opinion.pdf

Special thanks to Cheryl Fuchs for her contributions to this post. If you have any questions, please contact Bob Cosgrove at .

Bad enough the real estate market has been in tatters for the last few years. Realtors have also faced expanding liability to entirely new classes of plaintiffs during this time period. Does their duty of care extend to a family that rents a summer shore house for a mere 2 weeks?

A half-hearted “no,” according to the New Jersey Supreme Court. In an unusual procedural twist, the justices split 3 to 3 (with one justice obstaining), a result that led to the affirmance of the appellate division decision dismssing the case. The Supreme Court noted that the renters had been in the rental home for 9 days before the accident occurred, more than enough time to observe the alleged defectively designed deck stairs. Focusing on the tenant’s opportunity to inspect the premises, the majority stressed that it did not seek to absolve tenants from “personal responsibility for awareness of their surroundings and the dangers inherent in those surroundings.”

If you have any questions about this post, please email Paul Clark at

http://www.judiciary.state.nj.us/opinions/supreme/A9008ReyesvEgner.pdf