WCM, along with many international insurers and law firms, was pleased to act as a sponsor for the 2012 Wordings Specialists’ Gathering XX in London, England on November 9, 2012. An annual event, now in its 20th year, the Wordings Gathering brings together Underwriters, claims professionals and service providers from the Lloyd’s of London and London company markets to discuss differences in policy wordings — and hoist a pint or two in celebration.
In Ferguson v. Rochester City School District, an Appellate Division, Fourth Department case, the plaintiff commenced this action seeking damages for injuries she sustained when she slipped and fell on a snow and ice covered walkway on the defendant’s school premises. After trial, the jury found in favor of the defendant. On appeal, the plaintiff contended that the jury’s verdict was against the overwhelming weight of the evidence. In overturning the jury’s verdict, the Appellate Division was highly critical of the defendant’s arguments that it was either impossible to remedy the condition or that they had made reasonable and appropriate efforts to clear the snow and had no further obligation.
Here, notice of the condition was not an issue. Both the school’s head custodian and the plaintiff characterized the snow as hard, thick and rough. The plaintiff also had photographs of the location to buttress her claim. The defendant initially contended that by plowing and salting on the morning of the accident, they had satisfied any duty. However, the trial testimony by the defendant’s head custodian was that storms are “just part of mother nature;” they have no written procedures or usual practice for removing ice; and custodial employees “don’t remove the ice, [they] just spread the salt.” Further, he admitted the blade of the tractor was not effective in removing accumulated ice from the walkways and that they use no other tools or machines for that purpose. Finally, the head custodian stated that the storm occurred on a weekend and that the condition of the walkway had stayed the same from Monday until the Wednesday morning when the accident occurred. Moreover, the plaintiff’s meteorologist and the certified weather records for the date of the accident showed that the temperature was high enough that salting efforts would have been effective.
Taking all of this into account, the court held that while a failure to remove all snow and ice from a surface does not constitute negligence, where a defendant had ample opportunity to remedy the dangerous condition and the defendant’s remedial efforts are plainly insufficient to render the walkway reasonably safe, they would be found negligent. In light of this case, the message from the Appellate Division seems to be clear: you must try harder to clear the snow and ice.
Thanks to Michael Nunley for his contribution to this post.
http://www.nycourts.gov/courts/ad4/clerk/decisions/2012/10-05-12/PDF/0865.pdf
In Gibbs v. 3220 Netherland Owners Corp., the First Department recognized that just because an expert claims a building code was violated, it does not necessarily mean that there was a code violation, or that the expert is even assessing the correct code. The First Department upheld the trial court’s decision that the stairs on which Gibbs allegedly slipped and fell (leading from the first floor to the lobby) were not “exit” stairs within the meaning of two building code provisions. Thus, the expert’s opinion that the stairs violated relevant codes to “exit” stairs, failed to raise an issue of fact. The court further disparaged the expert by recognizing that an opinion regarding the absence of slip resistant material lacked probative value because the expert failed to identify any minimum requirement of non-skid material. The positive defense lesson to be learned is that simply because an expert is retained, it does not mean that a question of fact, sufficient to defeat a motion for summary judgment, will automatically be created.
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07196.htm
In Almonte v. Cauldwell-Wingate, Cauldwell was the general contractor for renovation of a New York courthouse. Cauldwell hired ASM Mechanical Systems as its HVAC contractor, who in turn subcontracted the work to Bradshaw Mechanical Co., Inc. The ASM/Bradshaw contract provided that “the Subcontractor agrees to indemnify and hold harmless the Contractor (insert any additional parties), their officers, directors, agents, employees and partners” for all claims arising from, in connection with, or as a consequence of the work on the construction site. No “additional parties” were inserted, nor did the contract anywhere refer to Cauldwell.
Almonte, a Bradshaw employee, fractured his wrist while working on the project and sued Cauldwell. Cauldwell impleaded several parties including Bradshaw. Bradshaw moved to dismiss the third-party complaint on the basis that there was no “grave injury,” and no contract requiring Bradshaw to indemnify Cauldwell. In opposition, Cauldwell argued that since it was the general contractor and ASM had no involvement after subcontracting to Bradshaw, it was the “Contractor” that supervised the project, and to whom Bradshaw owed indemnification. The court disagreed and stated, that “not only the intent to indemnify, but also the scope of the indemnification,” and the number and identity of the indemnitees, must be “unmistakably clear.” Accordingly, since the ASM/Bradshaw contract did not unmistakably require Bradshaw to indemnify Cauldwell, the court granted Bradshaw’s motion to dismiss Cauldwell’s third-party claims against it.
As noted by the court, in defending claimants’ employers, even if an indemnification provision exists, it is extremely important to ensure that the language is unmistakably clear. If your client did not intend to indemnify a party that has asserted claims against it, a motion to dismiss is likely warranted.
http://decisions.courts.state.ny.us/fcas/fcas_docs/2012OCT/3001103652010003SCIV.pdf
For more information about this case or WCM’s New York Labor Law practice, feel free to contact Cheryl at
Partner Bob Cosgrove and associate Remy Cahn were awarded summary judgment in a Philadelphia County, PA premises liability case. In the case of Moosudee v. City of Philadelphia, the plaintiff allegedly sustained injuries when she slipped or tripped down a flight of stairs while en route to the employee entrance at the Ritz Carlton in Philadelphia. She sustained multiple injuries and was unable to return to work as the result of her fall. She commenced a lawsuit against the City of Philadelphia, SEPTA, CCD and the Ritz alleging that their joint negligent maintenance of the public stairwell lead to her fall.
At the close of discovery, we moved for summary judgment based on the fact that there was no evidence that the Ritz owned, maintained or controlled the stairwell at issue. Judge Massiah Jackson agreed with our analysis and dismissed the plaintiff’s complaint, nothing that there was no evidence (despite the plaintiff’s protestations) that the Ritz had responsibility for the stairs.
Sandy has had a terrible impact on New York and New Jersey and initial damages estimates are in excess of 30 billion. One specific area of damages is in respect of fine arts. As this interesting piece makes clear, many lower Manhattan galleries and dealers were hard hit and while there should be insurance on the works themselves (although we all know what complications therein can exist — especially in respect of valuation), coverage for the businesses themselves might be lacking. Stay tuned for a flurry of claims!
For more information about this post, please contact Bob Cosgrove at .
In Rother v. Erie Insurance, Patrick Rother was injured in a car accident. At the time of the accident Rother was living with his mother but was driving his father’s car. Two weeks before the accident, Rother’s father had given him permission the use the car to commute to work for the indefinite future.
After Rother recovered liability benefits from the other driver’s policy, he and his mother initiated an action seeking a declaration that Erie Insurance was obligated to provide underinsured motorist coverage under his mother’s policy. Erie contended that coverage was excluded under the “regular use” exclusion in the policy. The trial court granted summary judgment in favor of Rother. Erie appealed.
On appeal, the Superior Court first noted that, generally, policy exclusions should be narrowly construed. Next the Court held that the duration of Rother’s use of the car was irrelevant in determining if the test for “regular use” had been met. Further, the fact that Rother’s father had placed restrictions on the use of the car would not preclude there being a finding of “regular use.” The Court held that the determining factor was there was no indication that Rother’s use of the car was on a temporary basis. As such, the test for “regular use” had been met and there was no coverage under Erie’s policy.
Thanks to Colleen Hayes for her contribution to this post.
Not a chance. Even with — power out; roadways and streets flooded and strewn with trees and crackling power lines; mass transit crippled; land line telephone service cut; and, cellular service spotty at best — WCM attorneys and staff “texted” themselves back to serving you, our clients, and your insureds. Or else, we did business the old fashioned way — meeting face-to face in small groups.
We give thanks that all WCM personnel got through Frankenstorm in good form, though many of us are still without heat or power in our homes and apartments. Our hearts go out to those who have suffered greatly, and we have resolved to help others in any way we can.
But we wanted everyone to know that we are fully back in business in New York, New Jersey and Pennsylvania and nothing has slipped between the cracks.
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