Intervene At Your Own Risk (NY)

Often times, property owners in premises liability cases will look to push their liability off on to contractors that they hire to do work.  Ortiz v. City of New York is one example of how the intervening acts of a property owner can still lead to potential liability, despite the fact that the property owner hired a contractor. 

In Ortiz the City of New York moved for summary judgment against its snow removal contractor and that contractor’s subcontractor on the basis that one or both of those entities was liable for the plaintiff’s accident that involved a slip and fall on snow that remained in a City-owned bus shelter.  While the City is typically responsible for snow removal on public property, it had contracted out snow removal to Viacom who then subcontracted the work to Shelter Express.

The snowstorm at issue produced 10.4 inches of snow over two days.  After the snowstorm, Shelter Express performed snow removal pursuant to its contract.  One day later, the City did additional snow removal.  A few days later, before Ortiz’ accident, Shelter Express returned to the scene, but did not do any additional snow removal. 

In affirming the denial of the City’s motion, the First Department noted that a question of fact existed concerning whether the City’s intervening affirmative act of snow removal, if done negligently, was a proximate cause of plaintiff’s accident.  The City risked assuming liability by doing additional snow removal itself instead of calling Shelter Express back to the site.

Special thanks to Lora Gleicher for her contributions to this post.  For more information, please contact Nicole Y. Brown at

Mandatory Mediation Established for Sandy Claims (NJ).

NJ’s Department of Banking and Insurance is putting the finishing touches on a mediation program for all Sandy coverage disputes with a value of more than $1,000. The program would be mandatory for home, automotive and commercial insurers, but not flood or surplus lines insurers or risk retention organizations. The costs of the mediation would be borne by the insurer.
For more information about this post, please contact Bob Cosgrove at

What Does the Sequester Mean for the US Legal System?

Notwithstanding the fact that most Americans are not following it, the sequester, the across-the-board spending cuts that Congress and President Obama agreed to as part of a budget/debt ceiling compromise but never really wanted, is set to go into effect tomorrow. If that occurs, the federal judiciary is looking at cuts to as many as 4,400 employees (a cut that will affect judge’s law clerks) and, if funding is not restored, all civil jury trials might be suspended as of November 2013 (since there will be no money to pay jurors). Here’s hoping it doesn’t come to that, but appeals to the better angels of our nature are not always successful. In the meantime, be prepared for even slower justice, or the rough equivalent of justice that exists in the civil legal system.

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

Exposure To Lead Paint In Successive Tenancies Deemed One Occurrence (NY)

The Appellate Division, 4th Department recently held that the building’s insurer was only required to pay up to its limit on a single policy in a case where two successive tenants brought suit based on injuries allegedly suffered due to lead paint exposure in their apartment.

In November of 1991, Allstate issued to Tony Wilson an insurance policy with a per-occurrence policy limit of $500,000 that covered Wilson’s apartment building.  Wilson renewed the policy the next two years.  The policy contained a noncumulative clause that stated “[r]egardless of the number of insured persons, injured persons, claims, claimants or policies involved, our total liability…will not exceed the limit shown on the declarations page.  All bodily injury…resulting from one accidental loss or from continuous or repeated exposure to the same general conditions is considered the result of one accidental loss.”

In 1993, two children were allegedly injured as a result of lead paint exposure while living in one of Wilson’s apartments.  After they moved out, Wilson attempted to remedy the condition.  However, in 1994, two children of the subsequent tenant suffered the same alleged exposure.  Both tenants filed suit.  During the pendency of the lawsuit, the first tenants settled their case for $350,000.  Allstate then settled the second tenants’ case for $150,000, with the caveat that the second tenants would recover $500,000 if a court declared that Allstate was required to pay the full policy limit to the second tenants.  The second tenants then brought a declaratory judgment action entitled Nesmith v. Allstate seeking the appropriate declaration.  Allstate eventually moved for summary judgment, but the lower court denied its application.

On appeal, the Appellate Division noted that the issue was whether the policy required Allstate to pay a second full policy limit under these circumstances or whether the plaintiffs’ losses were encompassed by the $500,000 per occurrence policy limit.  The Appellate Division viewed the noncumulative clause as an unambiguous provision that Allstate had correctly interpreted.  Furthermore, the Court cited to several prior court opinions on Allstate’s noncumulative clause where those courts had foreclosed on the plaintiff’s ability to collect on consecutive policies.  Finally, the court likened this situation to that of asbestos exposure noting that the record established that the exposure to lead paint had to have originated from the same hazard.

Special thanks to Michael Nunley for his contribution to this post.  For more information, please contact Nicole Brown at

Expert Testimony Allowed In Motorcycle Collision Case (NJ)

An expert’s bare opinion that has no support in factual evidence or similar data is a mere net opinion that New Jersey courts have held to be inadmissible and not for the jury’s consideration.

In a recent decision in Townsend v. Pierre, et al., the appellate court addressed whether the trial court correctly deemed the opinions of the plaintiff’s liability expert as being net opinions when it decided to bar that expert from testifying at trial.

The Townsend case involved a tragic collision between a motorcycle and a car at the intersection of Garfield Drive and Levitt Parkway.  This intersection was controlled by a stop sign, but the plaintiffs alleged that the adjacent property had overgrown bushes that obstructed Pierre’s vision whose intention it was to make a left turn onto Levitt Parkway. At her deposition, Pierre testified that when she initially stopped at the stop sign, the bushes obstructed her vision.  She then started inching up, stopping four times.  Once she had a clear view, she looked to her left, saw nothing and then started to turn.  At this point, the accident occurred.  Pierre’s front seat passenger acknowledged that Pierre did look to her left before turning and this prompted the passenger to do the same, but she denied any obstruction of her view.

The plaintiffs’ engineering liability expert opined that the bushes were negligently maintained and violated various standards and ordinances pertaining to height restrictions.  The expert determined that the stop sign’s location and the overgrowth of the bushes proximately caused the accident.  The property owners moved to bar the plaintiffs’ expert from testifying, arguing that his opinions lacked any factual basis since Pierre testified that her vision was not obstructed by the bushes at the time of impact.  The trial court granted the motion and held that the overgrown bushes were not a proximate cause of the accident.

The Appellate Court  reversed and held that whether Pierre had an unobstructed view is a credibility-based question of fact for the jury.  The appellate court further noted that the plaintiff’s expert’s opinion was also based on specifications in various ordinances, as well as measurements taken of the intersection.  While the court agreed that the unconditional admission of the expert’s opinion on causation would have been inappropriate, it noted that the expert could be presented with hypothetical questions at trial, coupled with a corresponding limiting instruction that would allow his opinion to be considered by the jury.

Special thanks to Heather Aquino for her contribution to this post.  For more information, please contact Nicole Brown at


Back to the Office: Is Yahoo’s Decision a Harbinger of Things to Come?

From what we hear, work-at-home policies are incredibly popular among insurance companies and their employees. To me (and I won’t use the royal “we” as I can’t speak for Dennis, Paul, Mike, etc.), I’ve always found the policy confusing (albeit cost effective to bean counters). Now certainly a part of my confusion can be attributed to the fact that I cannot imagine getting any work done at home with my four children under the age of 10, but I’ve often wondered (and opined out aloud to anyone who would listen) how work-at-home policies don’t: (a) engineer one’s own redundancy (since folks in India or the Philippines could work from home far more cheaply than an American or Englishman); and (b) stifle collaboration and training. Yahoo apparently shares my concerns as it has just abolished its work-at-home policy and ordered everyone to return to the office. This policy change does buck the modern trend but apparently Yahoo did it to foster a sense of community and innovation amongst employees. Interestingly, it appears that work-at-home employees are more “productive” but less “innovative.” Query whether insurance companies need “productive” or “innovative” employees. I think the answer is a bit of both, so perhaps, like an Aristotelian mean, insurance company employees should spend a few days a week at the office and be given the option to work at home for the rest of the week.

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

“Liar Liar Pants On Fire!” Public Figure Has Higher Burden In Defamation Action (NY).

In Farber v. Jefferys, plaintiff published multiple articles in nationally distributed magazines on the controversial debate on whether HIV causes AIDS, and won a journalism award on the issue.  Defendant made numerous statements on an Internet site regarding misstatements and misrepresentations in plaintiff’s articles, and used the term “liar” in reference to plaintiff’s work.  The court held that plaintiff was a limited public figure because she voluntarily injected herself into the debate.  As such, she was subject to the heightened standard of proving defendant acted with actual malice or gross irresponsibility.  Defendant provided documentation to support that his statements about plaintiff’s journalism was based on his research, articles signed by plaintiff’s critiques, and various studies plaintiff wrote about.  As such, the court concluded that defendant did not act with actual malice or gross irresponsibility, notwithstanding plaintiff’s assertion that the defendant was biased against her.  In addition, the court found that the word “liar” was not actionable because the broad context of the statement and surrounding circumstances lead to the conclusion that what was being read was “likely to be opinion, not fact.”  Accordingly, the First Department, affirmed the trial court’s pre-discovery dismissal of the case.

In analyzing defamation claims, one must focus on the allegedly defamed party, statements made and their context to ascertain the opposing party’s burden of proof in establishing their claim.  If the appropriate burden cannot be met, a pre-discovery motion to dismiss may be viable.

For more information about this case, please contact Cheryl Fuchs at

Insurer Just In Nick Of Time Under Statute Of Limitations For Indemnity Loss (PA)

The statute of limitations, effectively the timeline gatekeeper of the courts, is an important consideration for anyone looking to bring a claim, as well as for those looking to defend one. A lawsuit is most appropriate when the evidence is still fresh, the related property or scene of an accident remains unchanged, and the memories of those involved have not yet begun to fade. The applicable statute of limitation is contingent upon the cause of action pled. In Lincoln General Insurance Co. v. Kingsway America Agency Inc., the court applied a statute of limitations analysis that allowed the insurance company to bring suit in an effort to collect losses it had incurred as a result of its agent’s sloppy (and expensive) mistakes.

Lincoln General was permitted to resume an indemnity suit against Kingsway America Agency, a brokerage firm, to recoup a settlement to the estate of a truck driver involved in a fatal accident. The language of the contract between the parties unambiguously provided that Lincoln General was to be indemnified by Kingsway America for both loss and liability claims. The crucial issue addressed by the court that ultimately led to Lincoln General’s success, surrounded the determination as to when the statute of limitations clock began to tick for each claim—a starting point which may differ depending on whether it is applied to a loss or liability provision.

The court determined that the statute of limitations for Lincoln General’s loss claim could not have begun until the company settled a claim made by its insured. With regard to indemnity against loss in Pennsylvania, the courts have agreed that the clock does not begin to tick until payment is made. In the case at hand, Lincoln General settled the claim brought by the truck driver’s estate for $1 million in September of 2007. It in turn brought suit against Kingsway America in June of 2011, after it determined that the broker’s failure to get a proper write-down resulted in its payment of the settlement. Since the indemnity suit was brought three months shy of the four year time frame permitted by the statute of limitations, Lincoln General appears to have just been saved by the bell.

Special thanks to Samantha Kaskey Berman for her contribution.  For more information contact Denise Fontana Ricci at


Mystery Photos Defeat Summary Judgment (NY)

To sustain a claim for a fall on an allegedly raised sidewalk, the plaintiff must show that the defendant owner had at least constructive notice of the condition.  However, in a recent case, beyond his testimony of the condition, the plaintiff had nothing more to establish the existence of the condition other than photos of unknown origin.  Without more substantial proof, the defendant filed for summary judgment.

In Molinari v. 167 Housing Corpthe plaintiff  testified as to the location and cause of his fall based on photos that he could not authenticate as to identity of the photographer or date taken. Nevertheless, he testified that the photos accurately depicted the condition of the sidewalk at the time of the accident.

 The First Department affirmed denial of the defendant’s summary judgment motion finding that his testimony that the photos fairly and accurately depicted the condition at the time of the accident was sufficient despite the lack of foundation as to who took the photos or when. Moreover, the Court opined that the condition depicted raised an issue of fact as to whether the defendants had constructive notice of the defect.

Special thanks to Georgia Stagias for her contribution.  For more information, contact Denise Fontana Ricci at


Employee Exclusion Ambiguous? Sometimes. (NY)

In Essex Ins. Co. v. George E. Vickers, Jr. Enterprises Inc., the insurer sought a declaration that it was not obligated to defend or indemnify its insured or the owner of a construction project for an incident involving one of a subcontractor’s employees.

The incident involved Miguel Pinon, an employee of Paul Michael Contracting, which was hired by George Vickers, the insured general contractor. On June 25, 2005, Pinon, while on his lunch break at a beach not far from the construction site, dove into the water and broke his neck. The Workers’ Compensation Board denied Pinon benefits on the basis that the accident did not occur in the course of his employment.

After Pinon sued, Vickers and Lynn sought indemnification and defense from Essex, who disclaimed on the basis that even though Pinon was not injured during the course of his employment, the employee exclusion still barred coverage. In opposition to plaintiff’s motion for summary judgment, Vickers and Lynn argued that the word “employee” in this context was ambiguous because the policy did not define “employee” and that it was open to interpretation as to whether the parties intended for a worker acting outside the scope of his employment to be considered an “employee” within the meaning of the employee exclusion. The Supreme Court agreed with the insured and proerty owner and denied the insurer’s motion. The Second Department affirmed.

Another issue that arose during the case was whether the property owner had been named an additional insured on Vickers’ policy. Vickers purchased a commercial liability policy from plaintiff ending March 25, 2004. Lynn was named as an additional insured on that policy. However, the renewal quotation for the policy beginning on March 26, 2004, stated “no additional insureds.” In the insurance application to renew the policy for 2005 to 2006, Vickers listed Lynn as an additional insured. However, the renewal quotation for that coverage period stated that the quote included “NO AI’s.”

The property owner moved for reform of the policy to add them as additional insureds based on mutual mistake. They argued that Vickers included them as additional insureds on the application for 2005-2006, that plaintiff did not refuse the request, and that plaintiff had previously granted Vickers’ request to add Lynn as additional insureds on the 2003-2004 policy. Once again, the Supreme Court and Second Department agreed with Lynn, the property owner, and granted their request for reformation.

Special thanks to Gabriel E. Darwick for his contribution.  For more information, contact Denise Fontana Ricci at