Monthly Archives: March 2012

Court’s Decision Shows “LOVE” to Sculptor (NY)

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Robert Indiana’s “LOVE” sculpture is very well known.  It is displayed in parks and museums throughout the world, and its image has been reproduced on postage stamps and the like.

Over the years, Indiana entered into a series of production agreements with John Gilbert, including a 2007 deal for the creation and production of a sculpture in Hindi script of the word love, which in Hindi, is “Prem.”  Three versions of the sculpture were depicted in the contact, and contract also included “derivate works” of those three versions.  The contract did not contain, however, any provision for a version with the English letters P,R,E and M, which a partner of Gilbert later designed.

Gilbert claims that he showed an English Prem version to Indiana, and that Indiana approved the design.  He also alleged that Indiana signed  — on a blank space on a page, and not the signature line — a certificate of authenticity to accompany the sale of such a version.  However, Indiana later disputed that he approved the design, calling it a “monstrosity.” Further, within a few days of signing the certificate, he denied that he was the creator of that piece.  Gilbert then filed suit, with the causes of action sounding in breach of contract, as he wanted to be able to sell the English Prem version as an authentic Indiana design.

Indiana eventually moved for summary judgment.  The Court found that there was no dispute about the fact that the English Prem version was not included in terms of the contract.  The Court also found that the Hindi version was completely different than the English version, could not be a derivative work, and therefore did not fit within the contract’s definition of  “Licensed Works.”

The Court also rejected claims that Indiana’s actions modified the Contract, particularly because the contract had a “merger clause” that provided “The Agreement contains the entire understanding between the parties.”   Neither an oral approval of the design or a signature of the Certificate of Authenticity, even if not in dispute, would serve to modify the written agreement.

The Court therefore dismissed the complaint — and thus the sculptures cannot be considered authentic Indiana works.

If you would like more information about this post, please write to Mike Bono at

 

US Supreme Court Issues Major Asbestos Decision.

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In the case of Kurns v. Railroad Friction, the US Supreme Court was faced with the preemptive scope of the Locomotive Inspection Act (LIA).  In a 6-3 decision, the Supreme Court affirmed the Third Circuit and effectively overruled the PA Supreme Court decision in Norfolk & Western v PA Public Utility Commission, 413 A.2d 1037 (pa. 1980).  In Norfolk, the PA Supreme Court held that PUC regulations affecting locomotives in interstate operation were not preempted under the BIA and the Supreme Court Napier opinion and thus state law tort claims could proceed.  The US Supreme Court disagreed and held that the the federal regulations preempted state law tort claims.  Does this (finally) mean a decrease in asbestos litigation?  Stay tuned to find out.

Special thanks to Clayton Thomas for his contributions to this post.  For more information, please contact Bob Cosgrove at .

 

 

“Employee Exclusion” Gains Further National Support

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The “Employee Exclusion” found in many CGL policies has been upheld for some time in New York.  Originally, it only applied to losses involving an employee of the named (or additional) insured, and over time the language was modified to extend the exclusion to claims involving anyone working on behalf or retained by the insured.

This modified language has also been upheld in New York, and recently, an Illinois federal court has recently followed New York courts in interpreting an Employee Exclusion in favor of the insurer. In Nautilus Ins. Co. v. Jona Enterprises, Inc., the insured, Jona, was a general contractor at a job site. Jona retained a subcontractor which in turn hired the injured worker.

The policy contained an Employee Exclusion that bars coverage for injuries to the insured’s employee, defined as “any person . . . hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.”

The court followed New York’s Appellate Division and ruled that the injured worker was the insured’s employee because he was “contracted for” the insured to work at the job site even though he was not paid by the insured.

Thanks to Mendel Simon for his contribution to this post.
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PA Supreme Court Expands Application of Separate Disease Rule.

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The Pennsylvania Supreme Court recently expanded the separate-disease rule in asbestos cases beyond the archetypal application that permits plaintiffs to prosecute one suit for non-malignant illnesses and one suit for malignant illnesses that may develop following the initial litigation. In the case of Daley v. A.W. Chesterton, et al, Herbert Daley and his wife filed suit in 2005 after he had contracted malignant pleural mesothelioma. However, Daley had previously sued for asbestos-related lung cancer in 1990. Consequently, the Philadelphia Court of Common Pleas granted summary judgment for the defendants in the 2005 case, noting that the separate-disease rule established by the 1992 Pennsylvania Supreme Court case of Marinari v. Asbestos Corp. did not allow for separate asbestos suits where each arises out of a distinct malignant illness. The Superior Court rejected the trial court’s interpretation of the separate-disease rule and vacated the order below because they considered the limitation reminiscent of the very dangers Marinari was designed to prevent.

On appeal, the Pennsylvania Supreme Court considered whether the Marinari separate-disease rule permits plaintiffs to bring separate lawsuits for more than one malignant disease allegedly caused by the same exposure to asbestos. In a 6-1 decision, Justice Debra Todd acknowledged that excerpts from cases decided after Marinari seem, in isolation, seem to advance an application of the “two-disease” rule espoused by the trial court. However, Justice Todd looked to the underlying rationale for the Marinari decision and read the rule as a wholesale repudiation of the then-existing “single action doctrine” that required plaintiffs to raise claims for all current and future damages they might develop as the result of exposure to asbestos. According to Justice Todd, the separate-disease rule was concerned with preventing “anticipatory lawsuits, protracted litigation, evidentiary hurdles, speculative damages, and excessive or inadequate compensation”— the same apprehensions that plague “situations where an asbestos plaintiff is diagnosed with a malignant disease, and later diagnosed with a separate and distinct malignant disease caused by the same asbestos exposure.” Thus, where denying the plaintiff relief for separate malignant illnesses creates the same unease that spawned the separate-disease rule in the first instance, the plaintiff may be afforded its benefit and given the opportunity to litigate them separately.   Good news for asbestos plaintiffs, but bad news for insurers.

Special thanks to Adam Gomez for his contributions to this post.  For more information, please contact Bob Cosgrove at .

 

New York’s Highest Court Finds Owners and Contractors Strictly Liable for Damage to Adjoining Buildings

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The Court of Appeals recently issued a decision in Yemen Corp. v. 281 Broadway Holdings addressing the Administrative Code of the City of New York section 27-1031(b).  Importantly, the Court determined that the statute imposes absolute liability on owners and contractors whose excavation work causes damage to an adjoining property.  Yemen is a property damage case that involved allegations that the defendant’s excavation (18 feet below curb level) shifted the plaintiff’s building out of plumb due to undermining of the existing footings and a loss of soil.  

Administrative Code 27-1031(b) provides:

When an excavation is carried to a depth of more than ten feet below the legally established curb level the person who causes such excavation to be made shall, at all times and at his or her own expense, preserve and protect from injury any adjoining structures, the safety of which may be affected by such part of the excavation as exceeds ten feet below the legally established curb level provided such person is afforded a license to enter and inspect the adjoining buildings and property.

In effect, this statute finds the duty to protect adjacent buildings during excavation to be absolute and unqualified.  Accordingly, in New York City, those who undertake excavation work rather than those whose interests and neighboring land is harmed by it should bear the cost if damage occurs.  The fact that a building may be in poor condition will not raise an issue of fact as to causation under the statute, although it is still relevant with respect to the measure of damages.  

Thanks to Bill Kirrane for his contribution to this post.

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