Monthly Archives: January 2013

Interesting Spin in Pennsylvania Blender Case

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In Pennsylvania, there is no statutory framework for Pennsylvania judges to determine general jurisdiction, so of interest was a recent case by Judge New of the Philadelphia Court of Common Pleas.  In Derringer v. Conair, the Court found that a Pennsylvania trial court lacked personal jurisdiction over a Delaware corporation headquartered in Connecticut. Sandra Derringer, a New Jersey plaintiff, was injured while using a Conair Smart Stick blender. She brought two actions against Conair, one in Pennsylvania and one in New Jersey.

Judge New dismissed the Pennsylvania action holding that Derringer failed to show that Conair purposefully distributed it’s products in Pennsylvania. He noted that the incident occurred in New Jersey, so there was no personal jurisdiction, and furthermore, the court had no general jurisdiction because there was no demonstrable evidence of continuous and systematic contacts between Conair’s business activities and Pennsylvania. Although Derringer demonstrated that stores in Pennsylvania sell Conair’s products, without proof of relationships between Conair and third-party Pennsylvania retailers, this evidence was insufficient to prove that Conair purposefully distributed the products into the “stream of commerce”.

Based on the lack of statutory guidance and limited case precedent, this case could prove useful when considering the issue of corporate jurisdiction. In adjudicating Derringer, Judge New looked to U.S. Supreme Court case law, specifically Goodyear Dunlop Tires Operations v. Brown, which held that merely putting products into the stream of commerce is insufficient to establish general jurisdiction. Non-resident corporations are only subject to general jurisdiction in circumstances where the corporations’ association with the state is so “continuous and systematic as to render them essentially home in the state.” Moving forward it appears that more Pennsylvania judges will start the fact-sensitive jurisdiction inquiry from this position.

Thanks to Remy Cahn for her contribution to this post.  If you would like more information please write to .

 

Winning One for the Gipper: The Looming Legal Threats to American Football.

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We, here at WCM, have previously referenced other people’s comments on the dangers of American football.  We got tired of tooting other people’s horns and so decided to create our own.  We are thus pleased to refer you to our essay Winning One for the Gipper: The Looming Legal Threats to American Football, which has just been published in the Pennsylvania Defense Institute’s quarterly magazine.

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

 

Failure to Read Policy No Longer Fatal in New York

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Everyone knows that insurance policies do not make for good beach reading.  Yet under long standing New York law, an insured was presumed to have read and understood the content of his or her insurance policy.  Traditionally, if an insured had not objected to the policy upon delivery, under most circumstances, the insured was barred from suing the insurance broker for procuring insufficient insurance.  Surprisingly, New York’s highest court recently declined to adopt this precedent  in American Building Supply Corp. v.  Petrocelli Group, Inc.

Plaintiff  hired the defendant, a broker, to obtain a commercial general liability policy that it was required to maintain pursuant to a lease.  According to the plaintiff, it requested insurance coverage for losses involving injuries to its employees.  Plaintiff allegedly advised the broker that only its employees used the insured building. But the policy contained an exclusion that provided: “This insurance does not apply to any actual or alleged ‘bodily injury’, ‘property damage’, ‘personal injury’ or ‘advertising injury’ to … A present, former, future or prospective partner, officer, director, stockholder or employee of any insured.”  Neither the plaintiff nor the broker read the insurance policy.

One of plaintiff’s employees was subsequently injured at the insured premises.  Plaintiff commenced an action against the insurer for coverage, but the appellate court upheld the exclusion.  Plaintiff then sued its broker for negligence and breach of contract, alleging the broker had procured insufficient insurance.  The broker moved for summary judgment, arguing that the plaintiff’s claim is barred because it accepted the policy without complaint.

The Court of Appeals rejected the broker’s argument.  The Court began by noting that it previously “left open the question of whether a plaintiff who has received an insurance policy and had an opportunity to read it and had not requested any changes is barred from recovery.”  While the Court recognized that an insured should read its policy (and the failure could lead to comparative fault), it also recognized that many insureds “look to the expertise of [their] broker[s] with respect to insurance matters.”  As such, the Court adopted the more “forgiving” rule, holding that an insured’s failure to read or comprehend an insurance policy does not bar an action for negligence against the insured’s insurance broker.

This decision will certainly have an impact on broker litigation in New York.  Thanks to Steve Kaye for his contribution to this post.  If you have any question, please wrote to Mike Bono at .

 

 

 

New FSMA Rules Finally Issued!

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At long last, the first two new FSMA rules have been issued.

The first rule requires manufacturers of processed foods sold in the United States to come up with ways to reduce the risk of contamination. The second rule targets E. coli in fruits and vegetables by targeting the “four Ws” — water, waste, workers and wildlife.

The only question now is – will Congress actually provide the funding necessary to implement the rules?

For more information about this post, please contact Bob Cosgrove at .

Pennsylvania Court Rules On The Effectiveness of An Insurance Policy’s Cancellation

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In Housing and Redevelopment Ins. Exchange v. Lackawanna Cty., the court was asked to determine if a commercial insurance policy was properly cancelled by an insured’s agent prior to suffering a loss.
In this matter, the insured owned a commercial property that was insured by Housing Redevelopment Insurance Exchange.  In February 2007, the property’s roof collapsed, due to snow, causing almost $2 million dollars’ worth of damage.

The insurance company filed a declaratory judgment action claiming that the policy had been effectively cancelled in January 2007; thus, the loss had occurred outside the policy period.  Specifically, the insurance company averred that the insured’s broker of record for the insurance policy, at the verbal instruction of the insured’s attorney, had cancelled the policy.

On this basis, the insurance company moved for summary judgment.  The court denied the insurance company’s motion finding, inter alia, that there was a genuine dispute as to whether the insured’s broker of record or attorney had authority to effectively cancel the policy.  This issue, the court concluded, went beyond policy interpretation and created triable issues of fact that needed to be addressed by a jury and not in a motion for summary judgment.

Thanks to Colleen Hayes for her contribution to this post.

Reasonable Inspections Trump 24-Hour Per Day Patrolling

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In Rodriguez v. NYCHA, the First Department reinforced well established precedent that a defendant is not required to patrol its halls and stairs 24-hours a day, looking for dangerous conditions. In Rodriguez, the plaintiff slipped and fell on a wet substance in a stairwell in defendant’s building. The court held that the defendant established its right to summary judgment with evidence that it neither created nor had notice of the allegedly hazardous condition. The court recognized that it was sufficient that the defendant’s caretaker inspected the stairwell twice every morning and once every afternoon, and promptly mopped any spills she found during her inspections. Indeed, the building was not required to patrol the staircase 24 hours a day.

 http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00013.htm

Lead! It’s Back.

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Or maybe it never really went anywhere.  But in either event, new research suggests that lead exposure can lead to violent crime, lower IQs, and even ADHD.  No doubt the plaintiffs’ bar is studying this research in an attempt to find new causes of action.  Just be grateful if your policy has a lead exclusion, and, if not, we’re here when you need us.

For more information about this post, please contact Bob Cosgrove at .

This New Year, Perhaps Tell Your Personal Trainer to “Butt Out”

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Many of us have already begun the annual pilgrimage back into crowded gyms with the intent to follow through on New Year’s resolutions.  But if you’re looking for a personal trainer to help guide you on your path to personal fulfillment, it may be a good idea to make sure he or she does not instead set you on a path to pain.

In a split decision, the Appellate Division, Third Department, has ruled that where a gym patron suffered a back injury while performing a squat exercise pursuant to a personal trainer’s written instructions, a jury should generally decide whether the patron assumed the risk of injury.

Under the well-settled doctrine of assumption risk, a person who voluntarily participates in a recreational activity is deemed to have assumed the inherent risks of that activity.

Plaintiff Dianne A. Layden took part in a personal training session at a fitness center with a personal trainer, defendant Angela Plante.  Prior to her training session, plaintiff advised Ms. Plante that she had a history of back problems.  Ms. Plante supervised plaintiff’s training session, and provided her with written instructions on how to repeat the exercises independently.  Plaintiff returned to the gym days later, and attempted to perform a weight-lift move known as a “Smith squat,” as described in the written instructions.  While performing the maneuver, plaintiff experienced back pain, which thereafter required surgery to correct two herniated discs.

Plaintiff commenced a lawsuit against the trainer, and the owner of the fitness center.  The defendants each moved for summary judgment based on the doctrine of assumption of risk.

The Third Department reversed the trial court’s decision granting the defendants summary judgment, and ruled that a jury should decide whether plaintiff assumed the risk of injury when attempting to perform the squat exercise.  The court noted that the application of the assumption of risk doctrine is typically a question of fact best resolved by a jury.  Specifically, the majority found that the plaintiff raised a question of fact as to whether the trainer’s potentially misleading directions “unreasonably heightened the risks to which [plaintiff] was exposed.”  Plaintiff’s experts testified that the trainer improperly instructed plaintiff to “stick her butt out” while performing the squats.  Instead, plaintiff’s experts averred that a person should maintain a straight back when performing Smith squats.

So this New Year, instead of assuming that your personal trainer will prevent you from getting injured, you may wish to simply tell him or her to “butt out” of your workout.

Layden v. Plante, 2012 WL 6698873, 2 (3d Dept. 2012).

http://www.nycourts.gov/reporter/3dseries/2012/2012_09126.htm

Many thanks to Steve Kaye, Jr. who assisted with this post.

 

NJ Court Directs PIP Claim to Arbitration

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In the recent unreported decision of Delpome v. Travelers Insurance Company, the court upheld an order granting First Trenton Indemnity Company’s motion to compel arbitration of the plaintiff’s claim for PIP benefits. Delpome sustained a cervical spine injury in a 2007 motor vehicle accident. At the time, Delpome was insured under a policy issued by First Trenton. First Trenton authorized treatment in the form of injections, but denied authorization for surgery. Accordingly, Delpome filed a complaint for PIP benefits. First Trenton eventually moved to compel arbitration pursuant to N.J.S.A. 39:6A-5.1 and N.J.A.C. 11:3-5.2. The court granted its motion and Delpome appealed.

The Appellate Court upheld the trial court’s decision, holding that the right to arbitration generally arises from the terms of the insurance contract between the parties. In this case, Delpome’s policy unambiguously stated that all disputes may be submitted through the Personal Injury Protection Dispute Resolution Process. Additionally, notwithstanding the language of the policy, First Trenton had a statutory right to arbitration of PIP disputes under NJ law.

Thanks to Heather Aquino for her contribution to this post.

 

Trivial Defect Not A Viable Summary Judgment Argument in NY

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In Scelzo v. Acklinis Realty Holding, LLC, et al., Scelzo was injured when she tripped on a tree well outside of a Best Buy store.   She eventually sued the landlord, its tenant and the general contractor who constructed the store.  All three entities moved for and were granted summary judgment.  On appeal, the First Department partially modified the trial court’s decision and reversed summary judgment in favor of the landlord, Acklinis Realty.

Acklinis Realty had attempted to prevail by arguing that the subject defect was trivial.  Under New York law, whether a defect is trivial is generally a matter for the jury in a personal injury action.  Here, the lease between Acklinis Realty and Best Buy placed the duty to maintain the sidewalk areas solely on the landlord, so summary judgment was appropriate for Best Buy.  Also, the general contractor was entitled to summary judgment, as there was no evidence that it had ever returned to the job site after it constructed the store 3 years before the plaintiff’s accident.  However, the Acklinis Realty was not so lucky.  The court held that the plaintiff’s photograph of the tree well, coupled with her testimony, sufficiently established a question of fact as to whether the defect was trivial.

While a trivial defect is a viable defense at trial, it generally is not a successful defense for summary judgment purposes.

Thanks to Michael Nunley for his contribution to this post.