Art Thief Threatens to Sue Museum for Lax Security

In what can only be described as a novel approach to pending civil claims against him, a Romanian art thief who has admitted to stealing masterpieces by Gauguin, Monet and Picasso has threatened to sue the Dutch museum he took them from for making his robbery too easy. Radu Dogaru is among six Romanians arrested for last year’s “spectacular three-minute heist” from the Kunsthal museum in Rotterdam.

Despite the fact that the art had an estimated value of $24 million, apparently none of the paintings were equipped with an alarm.  As a result, Dogaru’s attorney told the court that the museum’s negligence ought to have “serious consequences,” and that his client was  considering hiring Dutch lawyers to bring a lawsuit against the museum for its comparative negligence for the potential civil claims faced by the thief.

Unfortunately, it seems his attorneys were not as creative in defending the criminal action, as Dogaru has already pleaded guilty and faces a maximum sentence of 20 years in prison.   Whether he takes a break from his incarceration to file his proposed lawsuit remains to be seen.

 

Storm “In Progress” Twelve Hours After Snow Stopped (NY)

The “storm in progress” rule provides that a property owner is not responsible for accidents occurring as a result of snow and ice accumulation on its premises until an “adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm.”  In Wei Wen Xie v Ye Jiang Yong, the Courts will provided an example of what constitutes  an “adequate period of time.”

Snow had been falling on February 10, 2010, during which the defendant homeowner shoveled his sidewalk between 5:00 and 8:00 p.m. The snow finally stopped around midnight that evening.  Thereafter, the plaintiff fell on ice in front of the residence at about 8:15 a.m. the following morning.  The homeowner moved for summary judgment and the trial court granted the motion.

In affirming the decision, the Second Department held that a “reasonably sufficient time had not elapsed after the cessation of the storm to permit him to remove any additional snow or ice that had accumulated after his initial snow removal efforts.”  Specifically, the time of 8:15 a.m., when plaintiff fell, was not sufficient time for the owner to remove the snow or ice, as the snow had stopped during the overnight hours.  The Court also confirmed that the owner’s prior snow removal efforts did not exacerbate the icy conditions, as the owner salted the area after his shoveling, and the plaintiff’s unsworn expert report failed to raise a triable issue of fact.

We do note, however, such circumstances may be fact specific, as this particular case was in regards to snow removal on a residential homeowner’s premises and the standard could be different in the case of a commercial property owner.

Thanks to Jung Lee for his contribution to this post.

Statute of Limitation Trumps Suit Limitation (PA)

The U.S. District Court for the Western District of Pennsylvania recently held that the state statute of limitations trumps any proposed suit limitation within an insurance policy. In Sigal v. General American Life Insurance Company, the plaintiff, Michael Sigal, brought suit alleging breach of contract and bad faith for two denials of his disability claims.

Sigal, who is a surgical ophthalmologist, learned that he was suffering from cardiac disease in 2001, two years after purchasing the insurance policies for his medical practice. His cardiologist determined that discontinuing the surgical portion of his practice would drastically reduce his stress levels, and thus keep his condition in check. In 2004, he made three claims under his disability policies, but all three claims were denied in 2005 since Segal had not actually suffered from “poor health” because of his condition as noted in the policy, and discontinuing his practice was deemed a “preventative measure.”

In 2010, Sigal was required to undergo bypass surgery, and submitted additional information regarding his 2004 claim. The insurer treated this information as an entirely new claim and again denied coverage. Sigal commenced suit shortly thereafter alleging bad faith and breach of contract. The court found that the statute of limitations for bad faith claims had run for and required dismissal of his suit. Although the policy itself specified that there was a three year suit limitation (which would allow for suit in 2013), the court held that the two year statute of limitations on a bad faith claim superseded the limitation within the policy.

Thanks to Thalia Staikos for her contribution to this post.

New Jersey Courts Further Clarify Occupancy

In Shah v. Phoenix Insurance Company, the Appellate Division again addressed the question of “occupancy” in determining whether parties are entitled to  uninsured motorist benefits.

The plaintiffs in Shah were injured when they were struck by a car while walking towards their vehicle, which was insured by the defendant insurer.  At the time of the accident, their vehicle was owned by the employer of one of the plaintiffs.  The employer, a corporation, was listed as a named insured on the policy issued by the defendant.  The uninsured motorist provision of the policy stated that if the vehicle owner is a corporation, anyone “occupying” the covered vehicle is considered an insured.

At the time of the accident, plaintiffs were approximately two car lengths away from their vehicle and had already unlocked the vehicle via the remote security system contained on the vehicle’s key.  Plaintiffs argued that they were entitled to named insured status under the policy, which provided a more flexible definition of “occupying” the vehicle to include “getting in”.

After considering the undisputed facts and reviewing the policy under the appropriate “plain language” standard, the lower court found that “occupying” meant to be physically inside the insured vehicle.  The Appellate Court affirmed the lower court ruling and referred to the line of cases where claims for uninsured motorist benefits were denied based upon the broken nexus between the injured party’s occupancy of the vehicle and the subsequent accident.

Thanks to Emily Kidder for her contribution to this post.

 

Vandalism May Not Be What You Think It Is(NY)

For the first time, the Court of Appeals in Georgitsi Realty, LLC v. Penn-Star Insurance Company weighed in how broadly the term “vandalism” should be interpreted when used in a property insurance policy.  It appears that the Court’s broad interpretation of “vandalism” may expose property insurers to claims for damages allegedly caused by construction on neighboring properties.

The insured in Georgitsi owned a four-story brownstone in Park Slope, Brooklyn.  The insured procured a “named perils” property insurance policy from Penn-Star covering “direct physical loss or damage . . . caused by or resulting from” numerous perils, including “vandalism.”  The policy defines vandalism as “meaning willful and malicious damage to, or destruction of, the described property.”

The insured’s neighbor, Armory Plaza, Inc., began construction of an underground parking garage that began causing substantial damage to the foundation of the insured’s building.  The New York City Department of Buildings issued violations and “stop work” orders against Armory, and the insured obtained a temporary restraining order from the Supreme Court “to cease all construction and/or excavation work.” Armory ignored all of them.

Penn-Star rejected the insured’s claim so it sued its insurer, and the district court found in favor of Penn-Star, holding that Armory’s alleged conduct did not constitute “vandalism” under the policy.  The insured appealed to the Second Circuit, which certified the following two questions to the Court of Appeals:

  1. 1) “For purposes of construing a property insurance policy covering acts of vandalism, may malicious damage be found to result from an act not directed specifically at the covered property?”
  2. 2) “If so, what state of mind is required?”

In answering the first question in the affirmative, the Court held that there is no reason to limit the scope of the term vandalism to acts directed specifically at covered property.  The Court compared Armory’s “conscious disregard of likely damage to the building next door” to that of an “irresponsible youth who might dig a hole on the same property… whether in search of buried treasure or just for fun.”

Nevertheless, the Court ruled that a “malicious” state of mind in this context requires the same showing as that for punitive damages; the actor must demonstrate “such a conscious and deliberate disregard of the interests of others that [it] may be called willful or wanton” (citations omitted).   The Court reasoned that the term “malicious” distinguishes vandalism from ordinary tortious conduct, and thus prevents the insured from gaining more than he bargained for in the insurance contract.

The Second Circuit will now apply this ruling to the facts in the underlying case.  We will continue to follow the case to see what transpires, but it seems that a finding of vandalism is likely.
Thanks to Steve Kaye for his contribution to this post.

Denying Coverage Based On An Insured’s Untimely Report Must Be Assessed On A Case-By-Case Basis (PA)

The Pennsylvania Supreme Court recently held that an insurance company must prove prejudice before denying underinsured motorist benefits.  In Vanderhoff v. Harleysville Insurance, Forester Vanderhoff rear-ended a car driven by Ryan Piontkowski, while both vehicles were waiting at a busy intersection.  A factual dispute in the case was whether Piontkowski stopped suddenly to yield to an unidentified vehicle, which would have been considered an underinsured motor vehicle under the Motor Vehicle Financial Responsibility Law.

Almost eight months after the accident, Vanderhoff filed a claim for underinsured motorist benefits with his insurance company, Harleysville.  Vanderhoff’s policy, however, included a provision that required prompt notice and a 30-day reporting requirement for coverage to be triggered under the policy.  Furthermore, Vanderhoff had failed to allege the existence of the unidentified vehicle until several months after the accident had occurred.

The case went to arbitration and Vanderhoff was awarded $500,000.  However, Harleysville appealed the award citing Vanderhoff’s delay in reporting the accident and the unidentified vehicle.  Vanderhoff argued that Harleysville needed to show, with concrete evidence, that it was prejudiced by Vanderhoff’s actions.  Ultimately, the Pennsylvania Supreme Court held that, although an insured filing an untimely report was not in and of itself prejudicial, an eight month delay in reporting the alleged unidentified motor vehicle had in fact prejudiced the insurer.  The Court, however, noted a caveat to this ruling by stating that, in general, future cases involving untimely reporting should be examined on a case-by-case basis.

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

Claim of NJ Shooting Witness Barred By The Torts Claims Act

In the recent New Jersey unreported decision of Carl Mann, Jr. v. Officer Chad Walder, et al., the court considered whether a plaintiff’s claim for negligent infliction of emotional distress overcame the threshold criteria for maintaining an action under the Torts Claims Act.  This Act requires that the plaintiff show that he sustained a permanent injury and incurred medical expenses in excess of $3,600 in order to maintain his action.

Mann was 16 years old when he witnessed the fatal shooting of his uncle by the police.  Mann suffered no physical injuries, but claimed to have suffered extreme emotional damage as a result of the occurrence.  His expenses for his medical care totaled $187.  Mann eventually sued the officers to recover for his emotional injuries and ultimately offered an expert to support his claim.  While Mann’s expert opined that he suffered from emotional issues that affected his daily life, the expert’s report noted that Mann had graduated from high school, slept well at night without nightmares and had no difficulty performing his job functions.  The trial court granted summary judgment to the defendants based on Mann’s failure to meet the threshold requirements for maintaining suit under the Torts Claims Act.

On appeal, Mann argued that he met the thresholds set forth in the Torts Claims Act.  However, the Appellate Court found that Mann’s subjective complaints of emotional distress did not constitute a permanent injury.  The court also disagreed with Mann’s argument that the value of the medical services he received was reduced by the fact that he was a Medicaid recipient.  Under the legislative mandate, the cost, rather than the value, of the treatment must be measured.  Ultimately, the Appellate Court upheld dismissal of Mann’s complaint.

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

Blake Labor Law Defense Stands: Plaintiff’s Own Negligence Bars Recovery (NY)

In Barreto v. Metropolitan Transportation Authority, the First Department upheld the lower court’s decision that granted the defendants’ summary judgment motions and denied the plaintiff’s cross-motion for partial summary judgment on his common-law negligence and Labor Law §§ 200, 240(1) and 241(6) claims.

Barreto was performing asbestos removal work below ground.  In order to do this work, he and his co-workers had constructed a wooden enclosure around the manhole cover that they then covered with plastic sheeting to protect the surroundings from asbestos contamination.  An opening was left in the enclosure to provide access to the manhole.  Inspectors from the Metropolitan Transportation Authority checked to ensure that the electricity had been turned off and an outside safety consultant monitored the below ground air quality.  Once approval was given permission, Barreto’s co-workers removed the cover and placed it outside the enclosure.  They then sealed the opening and descended through the manhole.  At the end of the shift, the workers removed their equipment from below ground, exited the manhole, replaced its cover and dismantled the containment enclosure surrounding the manhole.

Barreto was injured at the end of his shift, after climbing out of the manhole.  Instead of covering the manhole as he had been directed to, Barreto and his co-workers began dismantling the containment enclosure.  In the process of doing so, Barreto fell into the hole.  During discovery, Barreto conceded that earlier that day his supervisor had told him to cover the manhole before breaking down the enclosure.

The First Department noted that Barreto’s own actions were the sole proximate cause of his accident.  Barreto was provided with the perfect safety device — the manhole cover.  Yet, he chose not to use it and disregarded his supervisor’s explicit instructions.  Moreover, the court noted that since Barreto had just emerged from the manhole, he should have known that it was still open and should have avoided it.

In an attempt to defeat the defendants’ summary judgment motions, Barreto argued that a guardrail should have been placed around the manhole, but the court rejected this and also rejected Barreto’s argument that safety netting or a harness should have been provided.  Simply put, the manhole cover itself was sufficient.

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

Property Owners’ Creative Argument Unable to Chip Away at Sidewalk Liability

In Bednark v. City of New York, et al., the plaintiff tripped and fell on a cracked sidewalk while getting off a City bus.  Due to traffic concerns, the bus stopped approximately 55 feet from the bus stop.  The City moved for summary judgment arguing that under Administrative Code §7-210, the responsibility to maintain the sidewalk fell on the abutting property owners.  The property owners cross-moved arguing that they were not responsible for maintaining the sidewalk where plaintiff fell since it was used as a bus stop, and “[t]he City of New York … is responsible for the maintenance of bus stops within the City of New York, including the roads, curbs, and sidewalks attendant thereto.”

Regardless of where the bus actually stopped, the court noted that the definition of a bus stop was, “a location … designated by signage … to pick up or discharge passengers, which location includes five feet of the sidewalk and the gutter immediately adjacent to the curb for the portion of such curb.”  Since the sidewalk where plaintiff stepped off the bus and fell was 55 feet away from the bus stop, the duty to maintain that area fell on the abutting property owners.

While the property owners made a creative argument, at the end of the day, NYC Administrative Code §7-210 remains a powerful tool for plaintiffs and the City to place liability on the abutting property owner for sidewalk defects.

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Hot Cup of Tea and a Wobbly Table: Not a Recipe for Summary Judgment.

In Hassan v. Barnes & Noble Booksellers, Inc., the plaintiff was allegedly burned when a hot cup of tea fell off a wobbly table in a Barnes & Noble.  The plaintiff sued Barnes & Noble and Starbucks for serving tea that was too hot, improperly securing the lid, and allowing customers to use a wobbly table.  The court granted Starbucks summary judgment on the basis that it did not supply the tea (it supplied coffee products), did not train Barnes & Noble employees in preparation of the tea, and did not purchase or maintain the tables.  The court, however, denied Barnes & Noble’s motion since it failed to establish that it did not have constructive notice of the allegedly defective table.  To disprove constructive notice of a defective condition on its premises, a defendant must offer some evidence as to when the area in question was last cleaned or inspected relative to the time of the occurrence.  Barnes & Noble offered no evidence as to when the table was last cleaned or inspected relative to the time of the plaintiff’s accident. It therefore failed to meet its prima facie showing of lack of notice of the dangerous or defective condition. As such, the court did not need to consider the other points of contention regarding the temperature of the tea and the lid.

The moral is that in cases that rest on lack of notice, it is important to identify the routine inspections that occurred with regard to the defect early on in the case.  It is imperative that your witnesses are prepared to face the constructive notice challenge.  Without testimony of specific inspection, constructive notice will be difficult to disprove.

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