Facebook, Twitter, LinkedIn. We live a click away from publishing our thoughts
and impressions to an ever-expanding digital audience. But who is going to
respond to claims that we have defamed or infringed the intellectual property
rights of others? Good question. Many U.S. EPL insurers are expanding the scope
of their coverage to address Media Liability Risks. But to be sure, all
companies that use social media ought to have written protocols in place to
guide their employees on the Do’s and Don’ts of communicating in a digital
environment.

Plaintiff alleged that she sustained personal injuries when the escalator she
was riding suddenly began to shake, causing her to fall to the ground.
Defendants, owners and lessees of the premises, argued that they had no actual
or constructive notice that anything was wrong with the escalator, and were
therefore entitled to summary judgment. The First Department agreed, noting that
the plaintiff failed to raise a triable issue of fact as to defendants’ notice
of any defect. Further, plaintiff testified that she rode this particular
escalator often, knew of no complaints regarding its operation, and saw no
obvious and apparent problems with the escalator prior to her fall.

The
opinion was silent as to whether plaintiff had also brought suit against the
manufacturer or installer of the allegedly defective escalator, but the Court
granted the respective summary judgment motions of the lessees and owners of the
premises.

Thanks to Brian Gibbons for his contribution to this
post.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03967.htm

In Zapata v. Sutton, 2011 NY Slip Op 03962, defendant was sued after his car
collided with another car that had crossed over double yellow lines and into his
lane from the opposite direction. Defendant moved for summary judgment and the
court found that defendant could not be held responsible for any part of the
accident as he was “presented with an emergency situation not of his own making”
and had almost no time to react. As such, summary judgment was granted.

The appellate court affirmed, finding that plaintiff’s expert report was
nothing more than pure speculation and unsubstantiated by any facts and thus
failed to raise a triable issue of fact.

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03962.htm

Thanks
to Alison Weintraub for her contribution to this post.

The FDA has just released the first two FSMA rules.
The rules go into effect on July 3, 2011.

The first rule
allows the FDA to detain food it believes has been produced under insanitary or
unsafe conditions – and not just when the FDA has evidence that the food product
was contaminated or mislabeled so as to present a risk of adverse health
consequences or death.

The second rule
requires anyone importing food into the US to advise the FDA if any other
country previously refused entry to the same product.

Both regulations
should be factored into the underwriting decisions made by product recall
insurers as both regulations expand the scope of products that will never make
it to the end consumer.

For more information about this post, or WCM’s
product recall practice, please contact Bob Cosgrove at .

In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman
for false statements made during a local election campaign. Eckman presented the
claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a
reservation of rights. The ROR noted that intentional acts and punitive damages
were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead
demanded counsel of its own choosing. When that offer was rejected, Eckman
commenced a declaratory judgment action and sought injunctive relief to force
Erie to provide Eckman with counsel of Eckman’s choosing. In making its
argument, Eckman relied upon admittedly non-binding Pennsylvania case law and
suggested that “a conflict of interest is a conflict of interest, exclusive of
Pennsylvania case law.” Eckman argued that any attorney selected by an insurer
under a reservation of rights, and paid by that insurer, would ipso facto breach
his or her obligations to the insured/client.

Eckman’s claim was rejected
both by the trial court and the Superior Court. In a good result for insurers,
the court reasoned that a conflict of interest (such to support the assignment
of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with
controlling PA precedent and as the court rightfully noted, it is bound to
“follow controlling precedent as long as decision has not been overturned by the
Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not
automatically trigger a right to independent counsel.

If you have any
questions about this post, please contact Bob Cosgrove at .

In the case of Eckman v. Erie Insurance, Solid Waste Services sued Eckman for false statements made during a local election campaign. Eckman presented the claim to its homeowner’s carrier, Erie. Erie assigned defense counsel under a reservation of rights. The ROR noted that intentional acts and punitive damages were excluded from coverage. Eckman rebuffed Erie’s assigned counsel and instead demanded counsel of its own choosing. When that offer was rejected, Eckman commenced a declaratory judgment action and sought injunctive relief to force Erie to provide Eckman with counsel of Eckman’s choosing. In making its argument, Eckman relied upon admittedly non-binding Pennsylvania case law and suggested that “a conflict of interest is a conflict of interest, exclusive of Pennsylvania case law.” Eckman argued that any attorney selected by an insurer under a reservation of rights, and paid by that insurer, would ipso facto breach his or her obligations to the insured/client.

Eckman’s claim was rejected both by the trial court and the Superior Court. In a good result for insurers, the court reasoned that a conflict of interest (such to support the assignment of independent counsel) must be proven and cannot merely be presupposed. This decision is consistent with controlling PA precedent and as the court rightfully noted, it is bound to “follow controlling precedent as long as decision has not been overturned by the Supreme Court.” So, in Pennsylvania at least, a reservation of rights does not automatically trigger a right to independent counsel.

If you have any questions about this post, please contact Bob Cosgrove at .

In Hudson v. The Bank of New York, et. al., the New York Supreme Court, New York
County held that fact issued exist as to whether a listing agent hired by the
bank that took over a property through foreclosure owes a duty to a real estate
agent that was injured due to a stringer that broke on the wooden deck steps in
the rear of the house. While the court recognized that the listing agent would
not face liability unless they create of exacerbated a hazard, the court held
that the deposition testimony and the listing contract demonstrated that factual
issues existed as to the listing agent’s responsibility to inspect, maintain or
repair the property.

The court did, however, grant summary judgment to
both the listing agent and the bank/owner because, the court held, neither party
has notice of the potential hazard. There was no evidence that either party had
actual or constructive notice that there was a problem with the stairs.
Therefore, summary judgment was granted and the case dismissed.

For
further information regarding this post please contact David Tavella at .

www.wcmlaw.com/pdf/hudson.pdf