Author Archives: Brian Gibbons

Eight (Years) is Enough — Plaintiff’s Delinquent Discovery Finally Prompts Dismissal (NY)

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As every litigator is well aware, particularly in New York, the wheels of justice tends to turn slowly.  This concept was never more apparent than in the case of Harris v. Kay.  This 2019 First Department decision has a 2006 index number.  Plaintiff appealed from a 2017 order granting defendant’s motion to strike the complaint.  The Appellate Division found the trial court did not abuse its discretion in striking the complaint given plaintiff’s repeated, willful and contumacious refusals to provide discovery and comply with court orders over EIGHT years.

This decision goes to show the level of leniency courts grant plaintiffs before entertaining the sanction of dismissal.  Plaintiff’s response to defendants’ first set of interrogatories were served SIX years after the initial demands were made and the response failed to show a good-faith effort to address the requests meaningfully.  It is a point of great frustration for defendants when plaintiff’s initiate lawsuits and then fail to prosecute and it takes years of good faith letters and motion practice, only to get an inadequate response.  While this decision gives plaintiffs significant leeway, it is heartening to know there are limits to a court’s generosity.  Let’s hope more judges make the resolution to keep more stringent discovery schedules!

The salient point for defendants is simple — when plaintiffs fail to adhere to discovery orders, document those failures by publishing letters to the plaintiff.  The more failures documented, the more persuasive the eventual dismissal motion will be.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Plaintiff’s Slip-and-Fall Claim Put on Ice (NJ)

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During a snowy morning in February, plaintiff, a courier, was making his rounds delivering packages to residents. The previous night, several inches of snow had accumulated on the sidewalks abutting numerous residential properties. In the early morning hours, defendant Louis Gallo removed the snow from the sidewalk in front of his residential property using a shovel and a snow blower. Following this morning errand, Gallo went to work while snow continued to fall.

A couple hours later, plaintiff arrived at defendant Gallo’s property to deliver a package, while it was still snowing, and he slipped on ice that was concealed by snow. Plaintiff remained immobilized for a few minutes, and was subsequently taken to the hospital and diagnosed with a dislocated and fractured patella. Plaintiff filed a lawsuit against Gallo, claiming that his fall was caused by a hidden hazard in the form of ice underneath fresh snow on the sidewalk.

Following discovery, defendants filed for summary judgment. In his opposition, plaintiff argued that defendants created a greater hazard by shoveling the snow into mounds alongside the public sidewalk which then melted and refroze on the sidewalk. The trial court granted defendants motion for summary judgment and plaintiff appealed. The appellate court, citing Foley v. Ulrich, 94 N.J. Super. 410, 424 (App. Div.), held that a residential property owner does not owe a duty to the public where the property owner shovels the snow from the sidewalk, and ice forms on the sidewalk after the shoveled snow melts. The court reasoned that the danger to the safe use of the sidewalk which existed when plaintiff fell was solely caused by natural forces, i.e. the freezing and melting of snow. The court opined that this natural phenomenon would have occurred even if defendants had not shoveled the sidewalk.

Further, the court held that public policy supports shielding residential property owners from this form of liability as there is a societal interest in encouraging people to clear public sidewalks and avoiding the inequity of imposing liability on those who voluntarily choose to do so. Moreover, the undisputed testimony indicated that it continued to snow even after defendant shoveled the snow and additional snow accumulated – leading to the conclusion that defendants did nothing to create a new danger or hazard.  As such, the appellate court affirmed the trial courts holding granting summary judgment in favor of the defendants.

Putting aside the “storm in progress” aspect of this ruling, we expect the outcome may have been different in New York, where “freeze and thaw” conditions often prompt denial of summary judgment.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Wade Clark Mulcahy – 2018 Year in Review

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2018 was an exciting year for WCM.   First, we welcomed a new partner, Vito “Tony” Pinto as the new resident partner in our New Jersey office.  Tony brings 25 years of experience to WCM’s litigation practice, and possesses expertise in defense of premises liability, property damage, construction defect and environmental matters in state and federal courts. This year we also bid a fond farewell to Denise Ricci, our former NJ resident partner.   Denise has graduated to take up the noble endeavor of spending more time with grandchildren, in addition to other charitable works, and of course, we wish Denise all the best.

Also in 2018, the New York office promoted Vincent Terrasi to partner.  Vincent’s trial experience and willingness to help younger attorneys make him an invaluable resource to WCM.  Finally, each of WCM’s three offices saw an associate promoted to the role of counsel — Heather Aquino in New Jersey, George Parpas in New York, and Colleen Hayes in Pennsylvania.  Congratulations to all on their well-deserved promotions.

On the legal front, WCM continued to demonstrate what our website has long advertised — results.   In addition to various trial and summary judgment victories, and a litany of favorable outcomes in defense and coverage matters, WCM also had a significant victory at the New York Court of Appeals which has changed the landscape of social media discovery.  In February, Mike Bono, Brian Gibbons and Chris Soverow obtained a unanimous reversal of a First Department decision in Forman v. Henkin, and as a result, civil defendants will now have access to a plaintiff’s social media platforms, with relevance trumping a plaintiff’s privacy interests.  Our earlier post on the decision is attached here.

Dennis Wade and Mike Gauvin also created new law in a matter of first impression in New York, which will be of specific interest to art and specie insurers across the United States.  In DAE Associates, LLC v. AXA Art Ins. Corp., the Appellate Division, First Department unanimously agreed with WCM’s argument that a fine arts dealer’s “all-risk” policy insuring against loss or damage to works of art does not provide coverage for defective title.  This decision brings clarity to title insurers, that they will not be forced to pay title claims they never agreed to insure.

We look forward to continuing to serve our clients in 2019 — the 25th anniversary of Wade Clark Mulcahy! — and wish all our clients, colleagues, friends and family a happy and healthy new year.

Hockey Player Assumed Risk of Injury in Fight (NY)

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Rodney Dangerfield once joked:  “I went to a fight the other night, and a hockey game broke out.”  But unlike Rodney, law and common sense received plenty of respect in Falcaro v American Skating Ctrs., LLC (2018 NY Slip Op 08469).

There, a hockey player was injured during an in-game fight during his amatuer league game, after a referee had pulled him off the pile.  In his lawsuit against the arena and others, the plaintiff claimed it was customary for fights to stop when a referee became involved.  Nevertheless, he kept on fighting and was injured.

Recognizing that a sports participant “consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport and generally flow from such participation,” the court granted the defendants’ motion for summary judgment.  According to the court, the risk of involving oneself in an ongoing fight were inherent in the risks of ice hockey and “perfectly obvious.”

The trial court actually denied the defendants’ summary judgment motion, but on appeal, the 2nd Dept. reversed, citing the primary assumption of risk doctrine.  So instead of a verdict in his favor, the plaintiff will have to settle for a 5-minute major.  Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

 

 

 

GEICO Challenges Deemer Statute in New Jersey

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Geico has challenged a New Jersey State Statute requiring auto policies issued out of state to provide a minimum amount of bodily injury liability coverage when the insured drivers are involved in accidents in New Jersey.  The case is Guerline v. Brian v. Richards, case number 081799, in the New Jersey Supreme Court.

As of December 7, 2018, the New Jersey Supreme Court justices had granted Geico’s petition for certification of a state Appellate Division panel’s August ruling directing the insurer to provide a minimum of $15,000 in bodily injury liability coverage for claims against its Florida-based policyholder who was involved in a motor vehicle accident in Newark, NJ in 2013.

Even though the Florida-based policyholder’s auto policy did not include any bodily injury coverage, the appellate panel found that, under a decades old New Jersey law dubbed the “Deemer statute,” Geico was still required to supply the minimum amounts of such coverage included in a standard auto policy issued in the Garden State ($15,000 per person or $30,000 for more than one person per accident).

The Supreme Court justices will decide the following question: Does the Deemer statute apply to an automobile insurance policy written in Florida for a Florida resident who had an accident in New Jersey, where the Florida policy did not include any bodily injury liability coverage?

The Supreme Court of New Jersey’s decision will have a major impact on motor vehicle litigation in New Jersey. Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

 

 

 

 

WCM Wins Summary Judgment on Melted Ice Slip and Fall

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Recently, Mike Bono & Dana Purcaro of WCM obtained Summary Judgment for their client, in a decision issued by Judge Sherman in Supreme Court, Bronx County on the matter of Diplan v. Ergas, Index #605980/2014. Plaintiff was working at the defendant’s home as a housekeeper when she slipped and fell on water on the garage floor, which was a result of a bag of ice that was recently left in the garage and had begun to melt. The bag of ice was placed in the garage earlier that day by our clients’ daughter who did not permanently reside within the home.

Despite knowing that our clients’ daughter placed the ice in the garage prior to the accident, plaintiff never sought to depose her or amend their complaint to add her as a direct defendant in the action. At the close of discovery, we moved for SJ on the grounds that our clients did not create or have actual or constructive notice of the allegedly dangerous condition. We also pointed out to the court that the condition itself is not the type that would have been present for long enough to place constructive notice onto our clients.

Plaintiff opposed the motion stating that our clients were responsible for the placement of the ice in the garage as it is their home and they are responsible for the negligent conduct of anyone in their home. The Court rejected plaintiff’s argument, and found no triable issue of fact as to whether our clients caused the condition or had notice of the presence of melting ice in the garage. The Court also pointed out that the plaintiff failed to take testimony or amend the complaint to include the non-party daughter who put the ice in the garage despite having knowledge of her existence for several years prior to the submission of the motions.

Please email Dana Purcaro with any questions.

State Farm Must Defend Cyberbully Accused of Instigating Suicide (PA)

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While attending a Pennsylvania High School, Zach Trimbur repeatedly harassed his female classmate, both in person and online.  In a tragic turn, the classmate committed suicide. The classmate’s parents filed a suit in Pennsylvania state court, bringing claims of negligence and wrongful death and survival against Trimbur.

State Farm brought a declaratory judgment action after Trimbur’s parents asked State Farm to defend and indemnify him against the lawsuit by referring to their home insurance policy that provided personal liability coverage. State Farm’s policy covers the cost of defending against claims arising from “occurrences,” which Pennsylvania state law has defined as accidents.

However, on December 11, 2018, U.S. District Judge Mark Kearney sided with the insured and held that State Farm must pay for Trimbur’s defense. According to Judge Kearney, although Trimbur may have intended to hurt the girl, it is not conclusive that death by suicide was foreseeable from his cyberbullying. Judge Kearney further stated that “the true test of whether an accident occurred comes from when the situation is viewed from the perspective of the insured” and from Trimbur’s perspective, suicide was not foreseeable. Judge Kearney declined to answer whether State Farm must also indemnify Trimbur.  And with the duty to defend being broader than the duty to indemnify, indemnification is certainly on the table.  This question may remain unanswered until the close of discovery.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.

Workers’ Compensation Carriers can Subrogate against tortfeasor, even though Plaintiff Couldn’t (NJ)

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On December 14, 2015, David Mercogliano, an NJ Transit employee, was driving a car owned by NJ Transit when he was struck by another motorist. As a result of the accident, Mr. Mercogliano only suffered minor injuries and therefore his injuries did not overcome the verbal threshold.  He was barred from suing the other driver. However, he was still able to receive workers’ compensation benefits through NJ Transit’s workers’ compensation carrier. They paid out a total of $33,625 as compensation for his medical bills and indemnity benefits.

In an effort to recoup the money that was paid out, the workers’ compensation carrier filed a subrogation action against the driver of the other vehicle. A Superior Court judge granted summary judgment against the workers’ compensation carrier, ruling that the Automobile Insurance Cost Reduction Act barred the subrogation claim. The workers’ compensation carrier appealed this decision and the Appellate Division overturned the lower court’s ruling.

Last week, the three-judge panel held that even though Mr. Mercogliano could not recover benefits from his own automobile insurance or sue the other driver for non-economic damages, the workers’ compensation carrier had the right to file a subrogation claim.

Their rationale was all about legislative intent. The court said that the Workers’ Compensation Act applies, not the Automobile Insurance Cost Reduction Act. And if the legislature wanted to bar these claims they would have included that language in the AICRA, which was drafted 87 years after the WCA, but they didn’t.

What does this ruling mean? Well, if it is determined that a plaintiff’s injuries do not meet the verbal threshold in NJ, that doesn’t mean the insurance carrier is in clear. Yes, the insurance carrier won’t need to pay out non-economic damages to the plaintiff, but if the plaintiff was in the scope of his employment at the time of the accident, the motor vehicle insurance carrier needs to be aware of a potential subrogation claim from his employer’s worker’s compensation carrier.

Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Philadelphia Too Oppressive for Personal Injury Suit (PA)

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The Pennsylvania Superior Court recently affirmed a trial court’s ruling regarding the transfer of venue from Philadelphia County to Somerset County in Pennsylvania.  In Timothy Watson v. Nick J. Capo and National Delivery Systems, Inc., No. 983 EDA 2018 (PA. Super.), Watson sued Capo and Natl. Delivery Systems following a motor vehicle accident that occurred on the PA Turnpike in Somerset County.  Watson was driving a tractor trailer truck with a passenger, Cindy Weaver; and Capo was driving a tractor trailer owned by Natl. Delivery Systems.  Watson sustained various injuries and was taken to an emergency room in Somerset County.  Officers from Pennsylvania State Police, Somerset County investigated the accident scene and authored a report.

Watson commenced a lawsuit in Philadelphia County.  In response, Defendants filed preliminary objections to transfer the venue to Somerset County based on forum non conveniens.  Both Watson and his passenger reside in Maryland, Capo resides in Fayette County, PA; and Natl. Delivery Systems has a principal place of business in Ellicott City, Maryland as well as a Philadelphia Terminal in Philadelphia, PA.  Defendants argued that Philadelphia constituted an oppressive or vexatious forum because the accident occurred in Somerset County, police from Somerset County responded to the scene and drafted the report, Watson was treated at Somerset County Hospital, Somerset County Courthouse is 237 miles away from City Hall in Philadelphia, and the police officers as well as defendants would have to incur significant expenses for travel, lodging and missed work in order to appear in Philadelphia.  In opposition, Watson argued that Philadelphia was an appropriate venue for litigation and also attached an affidavit from Weaver stating that she would be more inconvenienced by having to travel to Somerset County rather than Philadelphia.  The trial court granted Defendants motion to transfer to Somerset County based on forum non conveniens.

On appeal, Watson asserted that the trial court erred and abused its discretion.  The Superior Court articulated the appellate standard of review for an abuse of discretion and stated that the trial court’s ruling must be reasonable in light of the peculiar facts and also that the lower court’s decision must stand if there exists any proper basis for the trial court’s decision to transfer venue.  The court further explained that, determining whether a forum is oppressive requires consideration of the totality of the circumstances and while distance between the two forums and disruption of the parties’ personal and professional lives are part of the equation, no one factor is dispositive.

The Superior Court agreed with the trial court’s determination that Defendants had met their burden of demonstrating that Philadelphia was an oppressive and vexatious forum.  In support of its decision, the Court cited the fact that Somerset County, where the accident took place and where the officers and initial medical treatment facility were located, was over 200 miles from Philadelphia.

In addition, the court noted that neither Watson nor the Defendants were from Philadelphia County, potential witnesses (including Capo and the responding police officers) suffered a greater hardship traveling to Philadelphia as opposed Somerset County, and the sole connection with Philadelphia is the fact that Natl. Delivery Systems occasionally conducted business in Philadelphia.  Thus, the trial court had a proper basis to grant Defendants’ motion to transfer and did not abuse its discretion.  This case illustrates the importance of utilizing the procedural tool of preliminary objections in Pennsylvania civil practice; as Defendants were successfully able to remove the case from the notoriously ‘plaintiff-friendly’ jurisdiction of Philadelphia County to a more conservative forum like Somerset County.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions