Monthly Archives: September 2013

Boxing Instructor Should Have Been Ready to Tumble

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Owners and managers of sporting facilities have a duty to maintain their premises in a reasonably safe condition. But that does not mean that those using the facilities can ignore the conditions they have seen before.

In Baccari v. KCOR, Inc., an experienced boxing instructor stepped into the ring to train his girlfriend during his spare time. During one of their training sessions, the instructor injured himself after stepping into a gap in the padding that was located under the canvas. The defendant moved for summary judgment, arguing that the doctrine of primary assumption of risk barred recovery. The Queens County Supreme Court disagreed, and denied the motion.

However, the Second Department reversed, holding that the doctrine of primary assumption risk “includes risks associated with any open and obvious conditions of the playing field, including risks arising from ‘less than optimal conditions.’” Key to the court’s ruling was the fact that the boxing instructor was familiar with the very ring in which he was injured, and even saw one of his students step into the gap on a prior occasion.

Baccari is not the only recent New York decision to absolve a defendant who maintained sporting facilities in less than ideal conditions. What is becoming increasingly clear in New York is that when sporting participants are aware that a facility is not as up to par as it should be, they should be prepared to use the facility at their own risk.

Of course, property owners and managers should not use Baccari as a license to neglect their facilities. The recent cases denying recovery for those injured in poorly maintained facilities have done so in situations where the plaintiffs have used the facilities before and were aware of those conditions. If the plaintiff had been someone other than an instructor familiar with that particular boxing ring, it is unlikely that the court would have knocked the case out.

Thanks for Mike Guavin for this post. If you have any questions, please email Paul at

 

We’ve Got You Covered: PA Superior Court Distinguishes Longstanding Interpretation of “Severability” Clauses

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Recently, the Pennsylvania Superior Court narrowly construed the “Separations of Insureds” clause of a commercial umbrella policy to overcome the presumption in PMA v. Aetna Casualty and Surety Ins. Co. that Employer’s Liability Exclusions are applicable to all insureds.

In Mutual Benefit Ins. Co. v. Politopoulos, property owners who leased space to a restaurant in which they were also corporate officers demanded coverage for an employee’s slip and fall as additional insureds under a commercial umbrella policy. Shortly thereafter, the insurer sought a judicial determination that no coverage was owed, arguing that under the Supreme Court’s precedent in PMA, all insureds were subject to the policy’s Employer’s Liability Exclusion. The trial court, albeit reluctantly, agreed with the insurer’s reliance on PMA and granted summary judgment in its favor.

Nevertheless, the owners appealed to the Superior Court and invited it to overrule or otherwise reinterpret PMA in light of more than forty years of intervening case law. Although declining the overture, the Court explained that the law in PMA was distinguishable insofar as the insurance contract at issue contained a materially different “Separation of Insureds” clause. Specifically, the Court explained that PMA operates to transpose the Employer’s Liability Exclusion to all remaining insureds even where the terms of the insurance contract provide coverage for each “severally and not collectively.” In contrast, the policy in Politopoulos stated that coverage applies “as if each named insured were the only named insured” and “separately to each insured against who a claim is made or suit is brought.” While similar in intent, the Court explained that the first provision’s use of “severally” legally implies a connection between the insureds whereas the second directs the courts to evaluate coverage as if the other parties did not exist. As a result, the Court reversed, concluding that the precise policy language in Politopoulos overcame the presumption in PMA such that coverage for the owners was entirely unrelated to the Employer’s Liability Exclusion.

By all accounts, PMA has long stood for the proposition that an exclusion or limitation of coverage applicable to one insured may inure to the detriment of another. However, the Superior Court, by way of Politopoulos, seems to have suggested that precise policy language reigns over all in coverage disputes notwithstanding oft-quoted rules of construction.

Thanks to law graduate Adam Gomez for his contribution to this post.  If you have any questions, please email Paul at .

New Jersey Court Favors New York in Coverage Dispute

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In Certain Underwriters At Lloyd’s , London, v. Books for Less, LLC et al, New Jersey’s Appellate Division affirmed the dismissal of this case on the basis of forum non conveniens. Lloyd’s commenced an action in New Jersey seeking a declaratory judgment against defendant Books For Less. One week later, Books For Less commenced an action against Lloyd’s and its insurance broker in New York and sought the dismissal of the New Jersey action based upon forum non conveniens. Books For Less was a New York limited liability company and its broker was a New York Corporation. The Lloyd’s policy insured a Books For Less warehouse in New Jersey and an office space in New York. Lloyd’s sought policy rescission after the warehouse sustained over $270,000 in damages and it learned that the warehouse had previously been damaged in 2009, which was not disclosed on insured’s application for insurance.

The trial court held that the majority of the parties were companies with deep roots in New York. Moreover, in addition to the New Jersey warehouse, the policy also provided coverage to premises in New York and the policy was negotiated in New York. In addition, the broker refused to submit to New Jersey’s jurisdiction and the trial judge reasoned that the broker was a necessary and indispensable party.

The appellate court upheld the lower court’s decision as a reasonable exercise of its discretion. Moreover, it disagreed with Lloyd’s argument that the “first filed rule” favored retention of jurisdiction in New Jersey.

Books for Less provides an excellent examination of doctrine forum non conveniens. Actions will be directed to jurisdiction with the most significant interests and where most of the parties, witnesses, and evidence are located.

Thanks for Alison Weintraub for her contribution to this post. If you have any questions, please email Paul at .

Although Kings of Their Courtroom, Judges Cannot Be Comedians (NJ)

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After being admitted to the bar, Vincenzo August Sicari enrolled in acting classes and pursued dual careers, a plaintiff’s attorney by day and “Vincent August,” a stand-up comedian by night. Sicari maintains that he has two, carefully distinct identities and neither interferes with the other. For one thing, he refuses to do law jokes (which I’m sure is a challenge in it of itself).

Trouble occurred in 2008 when Sicari took office as a part-time municipal court judge in South Hackensack. He was forthcoming and immediately discussed his entertainment career with those who appointed him to the position. When he was asked to do an interview for a local paper, Sicari sought out the Advisory Committee on Extrajudicial Affairs to see if an interview was copasetic with his new judicial appointment. Unfortunately, it was not.

The Advisory Committee issued two opinions, an initial opinion and a supplemental opinion after Sicari asked for reconsideration of the initial opinion, both of which advised Sicari that his entertainment career was not compatible with judicial career. Sicari maintained that his two careers were separate and therefore did not create any ethical concerns. He appealed to the Supreme Court of New Jersey. The Court agreed with the Advisory Committee In the Matter of Advisory 2 Letter No. 3-11 and Opinion 2 No. 12-08 of the Supreme Court Advisory Committee on Extrajudicial Activities.

The reasoning behind the Supreme Court’s decision lies in Sicari’s actual work as a comedian. The Court watched numerous tapes of Sicari’s comedic work, and feared his work may bring his impartiality into question. The Court watched skits of Sicari playing a person engaged in racial profiling, a homophobic bar patron and even one about how much he hates kids. Sicari admitted his entertainment is inspired by current events as well as based on his personal experiences growing up in an Italian-American Catholic family, but also argued that he really believes Vincent August is a completely separate identity from Judge Sicari. The Court held that although his dual careers may be OK for a lawyer, they do not work for a judge.

The Code of Judicial Conduct subjects even part-time judge’s to a heightened ethical standard. Judges cannot pursue any activity, and particularly cannot pursue those that may put the judge’s impartiality on the line. The Court would not risk Vincent August’s audience commingling with Judge Sicari’s courtroom. While he sits as a municipal court judge, Sicari must put his entertainment career on hold.

Thanks to Anne Mulcahy for her contribution of this post.  If you have any questions — or jokes–, you can email Paul at

 

“Sending” School District Not Liable For Death of Disabled Student (NY)

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The educational environment in today’s schools has come a long way since the more traditional classrooms of the 1950s and 1960s where a premium was placed on memorization and good conduct. Recognizing that some students have different learning styles, physical needs or medical issues, school districts are now required to provide a free and appropriate education to all students including those with disabilities.

In light of this idealistic framework, what is the duty of care of a school district that contracts for special services with a private school as well as registered nurses who travel with and monitor a disabled student? Is the “sending” school district required to supervise the private “receiving” school or the nurses who provide monitoring services?

“No,” according to the Second Department in Begley v. The City of New York, The Forum School, et al. The facts of Begley are tragic. Jonathan Begley, age 9, suffered from asthma as well as allergies to a wide variety of food and substances. He was also diagnosed as autistic. When his local public school concluded that it could not meet his needs in district, it agreed to pay for a special school program at The Forum School as well as a registered nurse to monitor Jonathan on the bus to and from the school and during his school day. The nurses were found, interviewed and approved by Jonathan’s mother but paid by the New York Department of Education (“DOE”).  Jonathan went into anaphylactic shock while at school when he came into contact with an unknown allergen. His nurse initially gave him nebulizer treatment to assist his breathing and then a series of epi-pens when it was suspected that he was having an allergic reaction. 911 was called but, due to heavy call volume, EMTs did not arrive until 20 minutes later.

The Second Department examined whether the DOE, as the “sending” school district, had a duty of care to supervise Jonathan who was not in its physical custody, care or control while attending The Forum School. Emphasizing that the DOE’s duty of care flowed from the school’s physical custody of and control over its students, the court concluded that the DOE did not breach any duty of care to Jonathan. The Second Department noted that the case might have been decided differently if Jonathan’s IEP failed to alert the “receiving” school that he had numerous allergies or that he required nursing services for his asthma and allergies.

Although his death was tragic, the DOE had strong facts that established that it appropriately evaluated Jonathan, referred him to a special school, and paid for ancillary nursing services at great cost to the “sending” school district. As noted in the decision, “this is not a case in which the DOE failed to properly identify, in its IEP, the child’s special needs, and the services necessary to provide the child with an appropriate education.”

If you have any questions about this post, please contact Paul at

NY Dealer Pleads Guilty In Fake Art Scheme

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We previously posted about the indictment of Glafira Rosales, the art dealer indicted by the US Attorney’s office in New York for her participation in an expansive scheme to sell fake art works to galleries, including the Knoedler Gallery.  Rosales has now plead guilty to a number of significant felonies, including conspiracy to sell the fake art, money laundering, and tax crimes.

Rosales claimed that she obtained the art — purported to be painted by Modernist masters such as Pollack and Rothko —  from two anonymous collectors from Switzerland and Spain.  Instead, all of the fake works were produced by a single painter who worked out of his garage in Woodhaven, Queens.  The paintings were then treated so that they would have the false patina of age.

According to the US Attorney’s office, Rosales was paid approximately $33.2 million for the fake art.  She agreed to forfeit that amount as part of her guilty plea, but it remains to be seen how much of that amount is actually recoverable.

We were interested to see how the US Attorney’s office was going to prove that the works were indeed fake, but that point is now moot.  Indeed, during her plea Rosales admitted that the paintings were “fakes created by an individual in Queens.”  No doubt her statement will be used by the plaintiffs in the civil lawsuits filed against Rosales and the galleries, and the question of interest to now follow is whether the galleries are found liable.

Please write to Mike Bono if you would like further information.

Abuse Is An Accident (NY)

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New York Insurance Law §3420(d)(2) requires that an insurer deny coverage as soon as reasonably possible.   The typical trigger for the statute to apply is for the claim to involve a personal injury.  But recently, an insurer presented a different defense, arguing that the statute was inapplicable because the injury did not involve an “accident.”

In Jewish Cmty. Ctr. of Staten Island v. Trumbull Ins. Co., the claimant alleged that he was abused by a community center’s employee who allegedly pulled down his pants and spanked him.  The insurer denied coverage to the community center pursuant to an exclusion that barred coverage for certain criminal acts.  However, the insurer did not issue the disclaimer until 105 days after receiving the claim.

The insured argued that the insurer waived its coverage defense  because a delay of 105 days under  §3420(d)(2) was not as soon as reasonably possible.  The insurer argued that the statute applied only to injuries that arise out of “accidents” and the criminal abuse of a minor was not an accident.

The court disagreed with the insurer and ruled that the community center was entitled to coverage.  In determining whether there was an “accident” under §3420(d)(2), the court looked to case law interpreting the policy definition of an “occurrence” or accident.  In that context, New York courts have held that an intentional act by the insured’s employee might still constitute an accident if, from the standpoint of the insured/employer, the incident was unexpected.  Here, the employee’s abuse was an  “accident” for purposes of an untimely disclaimer because, from the standpoint of the community center/employer, the employee’s abuse was unexpected.

Thanks to Mendel Simon for his contribution to this post.  If you would like more information please write to Mike Bono.

Plaintiff Bitten By UM Decision (NY)

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In Matter of Allstate v. Reyes, the Appellate Division, Second Department, was faced with an unusual case in which it had to determine just how liberally it was willing to interpret coverage provided in automobile policies for injuries arising out of the “ownership, maintenance, or use” of the motor vehicle.  Deborah Reyes was walking in front of a Sunoco Mart in Poughkeepsie, New York, when she brushed past a parked car with its windows down.  A Rottweiler poked its head out from inside the vehicle and bit Reyes on her right breast.

Reyes brought an action against the owner of the vehicle, which was settled for $25,000 – the limits of the GEICO policy insuring the owner.  Reyes next turned to her own auto insurer, Allstate Insurance Company, to recover under the supplementary uninsured/underinsured motorist endorsement.  Determining that Reyes’s injuries did not arise “out of the ownership, maintenance, or use of an underinsured vehicle,” Allstate denied coverage.  Reyes sought arbitration, which Allstate petitioned to permanently stay.  But the trial court allowed the matter to proceed to arbitration because it held the injuries arose “out of the ownership, maintenance, or use of an underinsured vehicle.”

The Appellate Division, Second Department, reversed the trial court and held that the injuries were not covered under the Allstate policy.  The court ruled that “[t]o satisfy the requirement that it arose out of the ‘ownership, maintenance or use of’ a motor vehicle, the accident must have arisen out of the inherent nature of the automobile and, as such, inter alia, the automobile must not merely contribute to the condition which produces the injury, but must, itself, produce the injury.”  The court found that Reyes’ injuries did not result from the vehicle itself or its inherent nature, but instead the dog was the cause of her injuries.

Thanks to Steve Kaye for his contribution to this post.  If you would like more information, please write to Mike Bono.

 

 

Release From Insured Does Not Bar Claims By Co-insurer (NJ)

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We previously posted about Potomac Ins. Co. of Illinois v. Pennsylvania Manufacturers Assoc. Ins., where the Appellate Division found that an insurer can pursue another carrier of a common insured for contribution to defense costs despite settlement by one insurer of the insured’s claim.  Now, the  New Jersey Supreme Court has upheld the decision allowing a claim of contribution as between two insurers sharing in the defense costs of a common insured.

The underlying case involves a claim by the Evesham Board of Education against its general contractor, Aristone, for allegedly defective construction in the building of the school.  Because the loss spanned a number of years, Aristone was insured by multiple carriers.

One of those carriers, Pennsylvania Manufacturers Association (PMA) disclaimed coverage, leading to a separate declaratory judgment action between Aristone and PMA.  PMA settled with Aristone for what it considered to be its share of defense costs and indemnity, in exchange for a release from its insured.

The settlement of the DJ prompted a settlement of the underlying case with the Board of Education.  But the carriers that had provided a defense, including One Beacon, looked to PMA to contribute to the defense costs. Taking the position that the settlement agreement with the insured shielded it from any claims of contribution for defense costs from any of the other insurers, PMA refused to pay, resulting in this litigation.

In upholding the Appellate Division’s ruling awarding a share of defense costs to OneBeacon by PMA, the Supreme Court determined the terms of PMA’s settlement with the insured did not consider or extinguish OneBeacon’s right to assert a claim for contribution.   Of note was the fact that One Beacon was not a party to the PMA settlement agreement with the insured, and the language of the agreement did not address One Beacon’s contribution rights.

In a case of first impression for the Supreme Court, the Court highlighted several public policy issues:  the value in conservation of financial resources and efficient dispute resolution, as well as the incentive for carriers to actively participate in litigation involving an insured.   It seemed apparent that the Court would have preferred that the insurers handled this matter globally rather than with parallel litigation.

Thanks to Emily Kidder for her contribution to this post.  If you would like more information, please write to Mike Bono.

Skeleton in Closet (Literally) Leads to PA Coverage Action

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Just in time for Halloween comes a bizarre coverage decision  from Pennsylvania.  There are any number of unusual substances that fall within the purview of “microorganism,” “seepage,” or “pollutants” exclusions for property damage. A corpse has now been added to that list by the United States District Court for the Eastern District of Pennsylvania. In Certain Underwriters at Lloyd’s London v. Creagh, et al., William Creagh discovered the decomposing body of one of his tenants, Arthur Doud, in Doud’s apartment. Because he had died about two weeks earlier, fluids seeped into the bathroom floor where he was found, contaminating the bathroom directly below.  Creagh’s costs to sanitize the affected areas of his building amounted to approximately $180,000.

Underwriters denied coverage for the expenses that Creagh incurred, and Creagh filed suit, with both parties moving for summary judgment. The court agreed with Underwriters and found that the damage fell within the microorganism exclusion since the fluids excreted from Doud’s body caused the growth of microorganisms within the apartment. Furthermore, the seepage of fluids from the body caused the damage and therefore the loss also fell within the seepage exclusion. The Court finally noted that although there was a potential that the organic materials in question fell under the pollutants exclusion, there was no need to rule on the issue given that Underwriters had already shown there was no issue of material fact as to whether the property damage fell within the microorganism and seepage exclusion.

Thanks to Thalia Staikos for her contribution to this post.  If you would like more information please write to Mike Bono.