In Bruinsma v. Simon Property Group Inc., defendants in a premises liability action attempted to move for summary judgment on the basis that the defect was “trivial.” However, the lower court found that defendants failed to demonstrate absence of constructive notice.

Plaintiff claimed she suffered injuries after she tripped and fell on what she described as a “bubble” on the floor of the Smith Haven Mall. Defendants moved for summary judgment claiming they had no notice of the defect, and that it was otherwise trivial, and thus not actionable.

The Supreme Court, Suffolk County, denied defendants’ motion. Defendant’s appealed and the Appellate Division, Second Department affirmed. It held that defendants failed to make a prima facie showing that the defect was trivial — stating: the court must look at “the width, depth, elevation, irregularity and appearance of the defect along with the time, place and circumstances of the injury” (citation omitted). Based on this analysis, the Second Department held the evidence in the record raised an issue of fact as to whether the defect was trivial, and affirmed the lower court’s decision.

Thanks to Alison Weintraub for her contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04942.htm

The World Trade Center bombing has spawned litigation concerning the scope of property coverage available to the site’s property owners and lessee as well as claims for bodily injury and property damages arising from the events of that tragic day. In breaking news, the City of New York and its contractors have reached a tentative revised settlement with the plaintiffs in the MC 100 litigation involving “on site, ground zero” bodily injury claims.

The new settlement proposal was presented to Judge Alvin Hellerstein of the U.S. District Court, Southern District of New York on June 10, 2010 and seemed to receive his blessing. The significant changes from the earlier proposal include: (1) increasing the total settlement package to $712.5 million from the previous $575-$657.5 million; and (2) reducing the plaintiffs’ attorneys fees to 25% from 33 %. The net result is that the pool of funds available to the MC 100 plaintiffs will be substantially increased between the additional money paid on behalf of the City and the 20 % reduction in attorneys fees. Judge Hellerstein has scheduled a “fairness hearing” on June 23, 2010 which will be open for comment by the attorneys, plaintiffs and members of the general public.

It is unclear how this settlement will affect the remaining MC 101, 102 and 103 dockets. However, it is fair to surmise that once the MC 100 litigation is resolved, the court will turn its attention to moving those other dockets to a conclusion either through settlement or a trial of several test cases.

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

J&J’s handling of the Tylenol recall in the 1980s is lauded as “the” model of how a company should handle a recall; indeed, even the US Department of Defense studies it — http://www.ou.edu/deptcomm/dodjcc/groups/02C2/Johnson%20&%20Johnson.htm! (Coincidentally, it was also the genesis of the effective commercialization of product recall insurance). However, it appears that J&J has forgotten its prior success and instead is seeking to write a new model of how not to handle a recall.

As we reported, earlier this year, J&J subsidiary McNeil Consumer Healthcare ran into a problem with some of its Tylenol products — http://www.wcmlaw.com/blog/Default.aspx?g=posts&t=486. In May, that same subsidiary was forced to institute a recall of 40 over-the-counter pain, fever, and allergy medications for infants and children, including certain forms of Tylenol, Motrin, Benadryl, and Zyrtec. As you can imagine, the FDA and Congress has been actively (and publicly) investigating these recalls. Rather, than cooperate with the investigations, it appears that J&J is stalling and refusing to provide requested information — http://www.nytimes.com/2010/06/11/health/11drug.html?ref=business. The relevant investigative agencies are now considering a more aggressive approach and a criminal inquiry has been opened. J&J seems unaware of the old axiom that the cover-up is always worse than the crime, except, of course, when it’s not.

If you would like to know more about this post, or WCM’s product recall practice, please contact Bob Cosgrove at .

In a recent unpublished New Jersey appellate decision, the court held that a plaintiff was barred from bringing a claim for UM benefits against his carrier under the entire controversy doctrine. Plaintiff, Harvey Johnson brought suit against defendant, Richard Dominques for injuries sustained in a motor vehicle accident. During the course of that litigation, plaintiff made a statement in court claiming that a ” phantom vehicle” contributed to the incident. At the conclusion of the trial, the jury found no cause for action, which was affirmed on appeal.

One year after the incident, the plaintiff filed a claim against his insurer, Allstate , for UM benefits. Allstate moved for summary judgment, arguing that the plaintiff’s claim was barred by the entire controversy doctrine and the motion was granted. On appeal, the court found that Allstate met the burden of demonstrating inexcuseable conduct by the plaintiff, as well as substantial prejudice. The court also held that the plaintiff failed to provide prompt notice of the claim, and that he knew at the time of the accident that the phantom vehicle could be implicated in the collision. As such, the court upheld dismissal of the claim against Allstate.

http://www.judiciary.state.nj.us/opinions/a4757-08.pdf

Thank you to Heather Aquino for this post.

In Tavella v. Skanska USA, Inc, the plaintiff, employed by third-party defendant Koehler Masonry, was injured during the course of his work on a construction project. Third-party plaintiffs Hazen and Sawyer brought a third-party complaint against Koehler, a subcontractor on the project, based on contractual indemnification.

Koehler moved to dismiss the third-party complaint because the indemnification provision cited by Hazen and Sawyer specifically stated that it applied only to the City of New York and Pegno/Tully, the prime contractor that hired Koehler to work on the project. Hazen and Sawyer argued that they were entitled to indemnification from Koehler because Koehler assumed Pegno/Tully’s obligations under the contract, including Pegno/Tully’s obligations to indemnify Hazen and Sawyer.

The Supreme Court, Kings County granted Koehler’s motion based on the fact that Koehler agreed to only indemnify Pegno/Tully and the City of New York. Moreover, the court held that the language in the subcontract which required Koehler to assume the duties that Pegno/Tully assumed was a general provision related to detail of the work. The indemnification provision was specific and it applied to only those contractors and entities named in the subcontract.

Thanks to Maju Varghese for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20206.htm

The New Jersey Automobile Insurance Cost Reduction Act ( AICRA) bars uninsured drivers from suing for personal injuries sustained in automobile accidents. In Aronberg v. Tolbert, the trial court granted summary judgment to the defendant’s dismissing a survival action brought by an uninsured decedent’s estate, but denied summary judgment as to the wrongful death action brought by his heirs. The Appellate Division affirmed, concluding that while the AICRA statutory bar may apply to survival actions brought on behalf of the decedent, it did not apply to a wrongful death action seeking damages for losses suffered by the decedent’s heirs.

http://www.judiciary.state.nj.us/opinions/a4896-08.pdf

In Nacherlilla v. Prospect Park Alliance (18455/05) a Brooklyn Judge issued an order compelling the deposition of a non-party insurance company. Plaintiff was injured in a horseback riding accident in Brooklyn’s Prospect Park. Clarendon Insurance Company had issued a policy to the stable, which Clarendon claimed was cancelled before the accident. When plaintiff learned of the insurance policy, plaintiff filed a claim with Clarendon, and issued a Subpoena to Clarendon for a non-party deposition.

In the motion to compel the deposition, plaintiff argued that the deposition was necessary to determine whether the cancellation was proper. In opposition, Clarendon argued that the Subpoena was defective because it did not identify the reasons or purpose for the deposition, and that plaintiff lacked standing to contest coverage because no judgment had been issued against the insured.

The court granted plaintiff’s motion to compel Clarendon’s deposition. The court did note, however, that Clarendon never sought to quash the So-Ordered Subpoena.

If you would like more information about this post, please contact David Tavella at .

The fight for additional insured coverage is central to the game of risk transfer. NY’s highest court, the Court of Appeals, has again weighed in on the subject.

In the case of Regal Construction Corp. v. National Union Fire, 2010 NY Slip Op 04661 (6/3/10), URS was hired by the City of New York to serve as a construction manager. URS hired Regal as a prime contractor. Pursuant to contract, Regal was obligated to procure a CGL policy that named URS as an additional insured. The policy Regal obtained was with Insurance Corporation of New York and contained a limitation that URS was only an additional insured “with respect to liability arising out of [Regal’s] ongoing operations performed for [URS].” As luck would have it, Regal’s project manager, Ronald LeClair was walking through the job site when he slipped and fell on a URS improperly painted joist and injured his back. He thereafter commenced a lawsuit against the City and URS.

A coverage action ensued in which Insurance Corp argued that because the claim did not arise out of Regal’s work, but rather exclusively URS’s work [and negligence], there was no duty to defend or indemnify URS.

The Court of Appeals disagreed with URS. It held that the “phrase “arising out of” in an additional insured means:
“originating from, incident to, or having connection with” (Maroney v New York Cent. Mut. Fire Ins. Co., 5 NY3d 467, 472 [2005] ). It requires “only that there be some causal relationship between the injury and the risk for which coverage is provided” (id.) and the “focus of the inquiry “is not on the precise cause of the accident but the general nature of the operation in the course of which the injury was sustained” ([i]Worth, 10 NY3d at 416 [internal quotation marks and citation omitted]).

In light of this case law, the Court held that Insurance Corp was obligated to defend or indemnify URS even though the accident was solely the result of URS negligence.

If you would like more information about this post, please contact Bob Cosgrove at .

http://www.loislaw.com/advsrny/flwhitview.htp?lwhitid=9601301

On a construction project, AWL Industries was the general contractor. They hired Cole Mechanical as a subcontractor to do some of the work. The subcontract contained a promise by Cole that it would indemnify AWL under certain circumstances. AWL also required that Cole secure a performance bond and Cole secured the bond from Nova Casualty Company. The bond contained the following language: “Surety [i.e., Nova] upon demand of Obligee [i.e., AWL] may arrange for the performance of Principal’s [i.e., Cole’s] obligation under the subcontract.”

Cole defaulted on its contract and Nova stepped in and hired Nelson Air Device Corp to complete the work. Nova also hired a consultant to oversee Nelson’s work. An employee of the consultant was injured at the job site and filed suit against AWL.

AWL commenced a third party action against Nova, with claims for contractual indemnity and failure to obtain general liability insurance for the benefit of AWL. Nova moved to dismiss the third party action, saying that it had met its obligation under the bond by arranging for Nelson to step in and finish the work.

The court denied Nova’s motion, saying that the language of the bond was ambiguous. While Nova read the word “arrange” to mean that they only had to arrange to complete the work, the court said that another reading of the bond was that Nova had to “arrange” to take on all of Cole’s responsibilities under the subcontract, including the obligation to indemnify AWL.

Now a jury will decide what is a fair reading of the bond that Nova drew up.

Posted by Georgia Stagias.

http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04723.htm.

Legal blawgs (and lawyers) are always on the search for the next big thing. In the attempt to replace asbestos and lead as the source of many suits, many substances (e.g. mold, melamine and Chinese drywall) have been posited — with varying degrees of “success.” A new challenger for the crown has now emerged: cadmium. A rare metallic compound, cadmium is found in many electronics and batteries, and, is a common source of paint pigmentation. When consumed by humans — especially the young — it is potentially carcinogenic (although studies are conflicting) and can cause (among others) lung, kidney and gastrointestinal illnesses. It is in the latter regard that the consumer threat is the greatest. McDonald’s, for example, is about to embark on a $15,000,000 recall of “Shrek Forever After” drinking glasses because the glasses contain levels of cadmium above the ever lowering US regulatory standards. The potential for future recalls and the inevitable personal injury lawsuits seems quite real.

If you would like more information about this post, please contact Bob Cosgrove at .

http://www.nytimes.com/2010/06/05/business/05recall.html?scp=20&sq=new%20lead&st=cse