Author Archives: Brian Gibbons

Insurance Disputes Being Filed More Often in Federal Courts

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Lex Machina, a LexisNexis company, announced the release of its first annual Insurance Litigation Report, which encompasses data on more than ninety-three thousand insurance cases pending in federal court since 2009. The Insurance Litigation Report showcases data and tends involving disputes between an insurer and a policyholder, a beneficiary, or another insurer asserting the rights of a policy holder. The report includes analytics from both the broad insurance data set as well as five common insurance types: Automobile, Homeowners, Life, Uninsured/Underinsured, and Business Liability.

The report shows that there has been a major increase in the numbers of filed federal insurance cases in the last several years. The report also confirmed that federal courts are far more likely to rule in favor of insurers than claimants. The two areas that had the biggest jump were automobile claims and homeowner claims. Automobile claims rose by thirty nine percent, uninsured/underinsured motorist claims rose by fifty percent, and homeowner’s claims rose by eighty percent. While claims are going up, insurers tend to be satisfied due to the insurer friendly outcomes in federal courts.

For instance, insurers were victorious in eighty-five percent of duty to indemnify cases and in eighty percent of duty to defend cases. However, if cases went to trial, claimant prevailed more than fifty five percent of the time. We suspect the federal courts offer “incentives” to both plaintiffs and defendants, since plaintiff’s appreciate the expedited nature of federal courts, whereas, insurer-defendants enjoy the “friendly confines” of stricter federal courts and statically more favorable outcomes.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.

Attorney-Client Privilege Potentially Under Siege (NY)

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The Appellate Division, Fourth Department, recently issued a decision that will have severe ramifications on insurance carriers. In Rickard v. New York Cent. Mut. Fire Ins. Co., a supplementary UIM claim, the injured party served a notice to produce for New York Central Mutual’s entire claim file, including the portions of the file that were generated after the action was filed. New York Central Mutual, claiming that the material from after the action was filed is protected, moved for a protective order, or in the alternative, for an in-camera review of the materials. The trial court denied New York Central Mutual’s motion and granted Rickard’s cross-motion to compel the entire claim file. As a result of the trial court’s decision, New York Central Mutual appealed to the Appellate Division, Fourth Department.

The Fourth Department discussed how New York Central Mutual’s objection in response to Plaintiff’s notice to produce was overly broad, in that NYMC should have identified which specific document requests were “palpably improper” instead of asserting that all materials in the claim file generated after the commencement of this action were protected. In the end, the court held that New York Central Mutual failed to meet its burden to secure the protection they requested because of the breadth of the objection. The court said, deciding what parts of a claim file are protected is a fact-specific determination. They added that this will most likely result in an in-camera review.

This case goes against the prior holding of Lalka v. ACA Ins. Co., a 2015 Fourth Department case, where the court held that all documents in the claim file created after an action has commenced are protected from disclosure.

The concern going forward is that the courts will continue to chip away at the attorney-client privilege between insurance carriers and their attorneys. For now, when objecting to demands by citing attorney-client privilege, insurers and their attorneys would be well advised to note specific bases for their objections, rather than issue blunderbuss objections to all such demands.   Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

Danger at the Ballfield – Fan’s Fatal Fall Leads to Lawsuit

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On August 29, 2015, the Yankees were up 2-0 against the Braves when Alex Rodriguez was called to pinch hit.  Greg “Ace” Murrey, a 60-year old insurance agent, stood up with many fans to heckle the Bronx Bomber when he lost balance and toppled over the 30” railing to the lower deck.  He was transported to Grady Memorial Hospital and pronounced dead on arrival. Murrey’s fatal fall, the third to befell Turner Field since 2008 (although the 2013 incident was ruled a suicide) has spurred a lawsuit calling into question the appropriate height of guardrails.

According to the 1927 building code, railing heights were required to be a minimum of 26”.  Safety experts now argue that fans are bigger and more overzealous than they were 90 years ago, as such, these outdated safety recommendations need to reflect the changing landscape.  The Braves’ new stadium has 36” railings, but these plans were already in effect prior to Murrey’s fall.  A person’s center of gravity is typically about 39” high and OSHA research dating back to 1976 determined that a 42” railing would be above the center of gravity for 95% of adults.  The problem is compromising railing height with line of sight as fans won’t want to sit in the front row if the guardrail obstructs their view of the game.

Hall of Fame pitcher and president of the Texas Rangers, Nolan Ryan, appeared for a deposition in the Murrey lawsuit, based on remedial actions taken by the Texas Rangers for a similar problem.  Texas spent $1.1M in 2011 to raise their guardrails to 42” after a fan fatality.    In 2010, after the Texas fatality, Turner Field security sent an e-mail to the Braves’ VP of stadium operations who replied, “I hope our specs are not similar to theirs.”  The Texas guardrails were actually half an inch higher than the Braves’.

It is important to remember that the medical examiner found Murrey hyperventilated when he stood, causing his loss of balance.  Additionally, his blood alcohol level was a .104.  But his death comes in a wake of fan related injuries spurring a movement to increase fan safety.  In 2010 at Turner Field, a 6-year old girl sitting behind the Braves dugout was hit in the head by a foul ball, fracturing her skull in 30 places and causing traumatic brain injury.  That case was settled for an undisclosed amount, but baseball Commissioner, Rob Manfred, recommended all teams extend the netting behind home plate to either the near ends of the dugouts, or to any seat within 70’ of the batter’s box which is what all ballparks in Japan do.  The Murrey lawsuit seeks substantive change in railing heights, but also an undisclosed monetary amount for the value of his life.  It is unclear the path this lawsuit will take, but the Braves lost that game, 3-1.

And if I might editorialize for a moment, having been to hundreds of baseball games over the years, I’m always struck by the T-shirt cannon, which sends rolled-up T-shirts into the stands, some of which fall just short of the upper deck railings.  It’s incredibly lucky that no fan has fallen while reaching too far for a T-shirt.

A link to the Atlanta Journal-Constitution is here:  https://www.ajc.com/news/local/family-says-braves-mlb-knew-guardrails-unsafe-before-fan-fatal-fall/QTzudvDnyLRQePAxra5uCN/amp.html

Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

 

Court Puts Muzzle on Dog Bite Claim (NJ)

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Plaintiff, a certified dog groomer, had been grooming defendant’s Golden Retriever for three years. When defendants first brought their dog to plaintiff to be groomed, they provided notice that the dog was “a little problematic.” As such, plaintiff would place a muzzle on defendant’s dog during each grooming session. On June 6, 2013, plaintiff prepared to groom defendant’s dog just as she had done six or seven times prior. She placed a muzzle on the dog, and began to bathe him. There was no indication that he was agitated or aggressive. Suddenly, as plaintiff began to trim the hair around the dog’s rear, he pulled the muzzle off with his paw, whipped his head around, and sank his teeth into plaintiff’s left arm, causing ten puncture wounds. Plaintiff was hospitalized for six days and was out from work for approximately six weeks.

Following the close of discovery, defendants moved for summary judgment. The court, applying the Reynolds case, held in favor of the defendants, ruling that an independent contractor who agrees to care for a dog could not assert a claim against a dog owner unless the dog owner purposefully or negligently conceals a particular known hazard from the independent contractor.  Here, the court was satisfied that defendants provided notice to the plaintiff that the dog tended to be problematic. Additionally, the court noted that plaintiff chose to muzzle the dog each time he was groomed due to the warnings from the defendant.

Plaintiff appealed the ruling of the trial court, arguing that it erroneously held that the groomer assumed the risk of the dog bite and that the judge did not consider that defendants purposefully concealed the dog’s violent propensity from the plaintiff. Additionally, on appeal, plaintiff’s argued that there was no expert report likening dog groomers to veterinarians with regard to assumption of the risk of being bitten by a dog. Plaintiff noted that veterinarians must be licensed, while dog groomers do not need a license.

The appellate court held that the principles in Reynolds are not confined to veterinarians. Instead, the appellate court ruled that Reynolds applies to any independent contractor who agrees to care for a dog.  Further, the court cited plaintiff’s deposition testimony wherein she stated that she was in the commercial dog-grooming business, and being bitten by dogs “goes with the territory.” As such, the appellate court affirmed the trial court’s decision and plaintiff’s claims were dismissed.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

Substance of Pro Se Petition Rejected by Appellate Court (PA)

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On November 02, 2018, the Superior Court of Pennsylvania affirmed a judgment entered in the Chester County Court of Common Pleas denying a petition to vacate an arbitration award in Jenn-Ching Luo v. Lowes Home Centers LLC  The case arises out of a minor construction project gone wrong which resulted in property damage.  Jenn-Ching Luo (“Luo”) contracted with Lowe’s Home Centers, LLC (“Lowe’s”) to install a new residential roof, skylights and gutters.  Lowe’s hired Kolb Roofing Company to perform the installation, however, Luo claimed the installation did not protect against a brief rainstorm which caused damage.  Attempting to rectify the problem, Lowe’s hired Charles S. Ernst to evaluate the property damage, but Luo didn’t agree with his assessment.

Luo then proceeded to file suit in the Chester County Court of Common Pleas.  However, the original installation contract contained an arbitration provision and thus the case proceeded to arbitration.  The arbitrator found in favor of Luo and against Lowe’s and Walters in the amount of $2,034.07.  Luo was unsatisfied with this award and filed a petition pro se to vacate the award.  In doing so, Luo raised an astonishing 23 issues in her appellate brief.

In dismissing the appeal, the court cited a litany of errors and violations of the Pennsylvania Rules of Appellate Procedure.  Luo had failed to cite to any relevant legal authority, failed to divide her brief “into as many parts as there are questions to be argued,” failed to cite to the record and made a number of other errors not referenced in the opinion.  This case, while extreme, highlights the importance understanding jurisdiction-specific procedural rules and strictly adhering to them.  Failing to do so can have grave consequences including the potential for the dismissal of your case.

As anyone who does appellate work, civil or criminal, will tell you, a skilled adversary presents a challenge.  But a pro se adversary presents a more time-consuming challenge, because the attorney has to address all arguments, even nonsensical ones.  Here, Lowe’s had to oppose a 23 point appeal, on a $2,000 arbitration award.   “Judicial economy” usually takes a backseat when pro se litigants are involved.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

No Coverage for Damages from Carbon Monoxide (PA)

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A judge in the United States District Court Eastern District of Pennsylvania ruled that an insurance company does not have to indemnify a landlord whose tenants sued over carbon monoxide poisoning,

In Foremost v. Nosam, Foremost sought declaratory judgment stating that it did not owe a duty to defend or indemnify, Nosam LLC in the state court action based on a pollution exemption in its policy.

This case arose from the state court action in which plaintiff and her two children sued their Landlord and the building owner (Nosam LLC) after suffering carbon monoxide poisoning, allegedly from a faulty furnace in Sylvestre’s apartment.

The malfunction in the furnace was allegedly caused by a neighboring chimney collapsing and falling into the plaintiff’s chimney. This allegedly caused a blockage in the heating unit at the plaintiff’s residence, causing the emission of carbon monoxide.

Foremost disclaimed citing the policy which read “We will not pay for bodily injury or property damage…[arising out of the actual, alleged or threatened discharge, dispersal, release, escape of, or the ingestion, inhalation of absorption of pollutants.”  The underlying plaintiffs later claimed that the emission was caused by an accidental fire when the heating system was converted to a gas system, which would trigger the exclusion to the policy exemption.

The Court ruled, “ Although the underlying plaintiffs contend that they did not know the heating system had been converted to gas, there is no suggestion they did not knowingly and intentionally start the December 9, 2015, fire by turning on the furnace…There is no suggestion that any flames, or any part of, this controlled fire extended outside the sealed unit where it was designed to burn…Further, although the chimney collapse may have contributed to the buildup of carbon monoxide inside the residence, the unexpected collapse did not cause the fire. The fire, regardless of whether it was ignited by gas or oil, did not happen by chance or unexpectedly and was therefore not accidental. Although the buildup of carbon monoxide was accidental, it was not released by an accidental fire and the underlying plaintiff’s attempt to conflate the two requires a strained interpretation of that term.”

The salient distinction the Court makes is based on the carbon monoxide emission (obviously) being accidental, whereas the fire was started intentionally.  Because the fire was started intentionally, Formost’s policy exclusion applied, and Foremost owed no duty to defend or indemnify.  Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

Wade Clark Wins Summary Judgment in Bouncer Assault Case (NY)

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In Almendares v. Front Franklin Realty, Brian Gibbons and Chris Gioia recently obtained summary judgment for our client in an assault case venued in Nassau County.  The plaintiff alleged that he was assaulted by a bouncer at a Nassau County bar, and was hospitalized that evening.  Plaintiff alleged that he was punched in the face by the bouncer of the establishment, which caused him to fall down, hit his head, and be rendered unconscious.

Before the completion of depositions,we moved for summary judgment on behalf of the owner of the property, which leased the space to the bar, because our client was an “out of possession” landowner which did not hire or control the bouncer. The lease established that the property owner had nothing to do with the day to day operation of the bar.  Moreover, the owner asserted it did not hire or retain the bouncer.  The Court agreed with the argument of the owner, that further discovery would not change the clear and uncontroverted evidence that the property owner is not responsible for the bar owner, nor is it responsible for its employees or any assaults which may happen on its property.   Please email Brian Gibbons with any questions.

Insufficient Evidence on Aisle 5 (PA)

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On September 18, 2018, in Pace v. Wal-Mart Stores, District Judge Baylson for the Eastern District of Pennsylvania granted Wal-Mart’s motion for summary judgment against plaintiff’s slip and fall claim.

Plaintiff with his wife and two children was shopping as his local Wal-Mart store in Willow Grove, Pennsylvania when he slipped and fell on some grapes in the produce section. His injuries included lumbar spine sprain, lumbar radiculopathy, and a fracture of the right proximal fibula. plaintiff also had to undergo a total knee replacement, allegedly as a result of the incident.

Wal-Mart filed a motion for summary judgment, and Judge Baylson granted the motion because plaintiff presented no evidence that Wal-Mart had actual or constructive notice of the grape(s) on the floor of the produce aisle. Under Pennsylvania law, in order to recover in a slip and fall premises liability case, plaintiff must prove that either the defendant created the harmful condition or that defendant had actual or constructive notice of such condition. Judge Baylson held that plaintiff did not provide sufficient evidence to prove either causation or notice. Plaintiff argued that Wal-Mart may have created the hazardous condition because a video showed a Wal-Mart employee unloading boxes near the area where defendant fell. However, Judge Baylson stated that this was mere speculation and thus insufficient to prove that Wal-Mart created the dangerous condition. Furthermore, plaintiff did not offer any evidence showing that Wal-Mart had actual notice or that the grapes were present on the floor long enough that Wal-Mart should have known about their presence. However, plaintiff requested the court to find that his lack of evidence relating to notice was a result of Wal-Mart’s destruction of evidence and thus argued that Wal-Mart’s motion for summary judgment should be denied. Judge Baylson found that there was a lack of evidence of the existence of any footage and by extension lack of evidence of destruction of the footage; therefore, plaintiff’s mere claim of spoliation barred summary judgment in the case.  Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian GIbbons with any questions.

PA Court Dismisses Supermarket Slip & Fall Suit

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The Pennsylvania Superior Court recently affirmed a trial court’s granting of summary judgment in favor of the defendant grocery store in a slip and fall case.  In Barrios v. Giant Food Stores, plaintiff Rocio Barrios appealed the December 14, 2017 order granting of Giant’s motion for summary judgment.

On June 8, 2011, Barrios claimed that she was shopping at a Giant grocery store when she slipped and fell on a transparent wet substance in the aisle.  Employees from Giant admitted that they saw an orange-sized pool of clear liquid on the floor immediately following Barrios’ fall, however they were not certain of the origin.  Barrios alleged that the liquid was the result of a meat refrigerator case that was leaking, as her fall occurred near the end of the meat aisle. Surveillance video confirmed that Barrios fell near the end of the meat aisle and that, after being alerted to her fall, Giant employees came to her assistance and cleaned the liquid with paper towels.

The Superior Court explained the standard in Pennsylvania that, in order to recover damages in a slip and fall case, the plaintiff must prove that the store owner deviated from his duty of reasonable care under the circumstances and that the store owner knew or should have known that the harmful condition existed.  Furthermore, the plaintiff must show that the store owner either helped to create the harmful condition or had actual or constructive notice of the condition.  In this case, Barrios alleged that liquid came from a leaky meat refrigerator, and also cited repair records produced by Giant which showed that the meat refrigerator had been serviced by a repair company on April 26, 2011; June 10, 2011; and June 24, 2011; as support for her assertion that Giant had actual notice of the dangerous condition.

The court reasoned that, even viewing the facts in the light most favorable to Barrios, the mere presence of water on the floor does not prove that it came from the meat refrigerator.  Furthermore, even if the water on the floor came from the meat refrigerator, Barrios did not show that Giant had notice of the dangerous condition with adequate time to correct it.  Barrios presented evidence of a repair order two months before her fall that was unrelated to any leaking issue, and also repair records for two dates after her fall.  As the court pointed out, the fact that the meat refrigerator was serviced after Barrios’ fall did not constitute evidence that Giant had notice of a leak before Barrios fell.  Thus, the court concluded that Barrios’ theory relied on conjecture and speculation, and affirmed the trial court’s granting of summary judgment in favor of Giant.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Can Plaintiffs Pass the Parker Test?  The Future of Asbestos Litigation (NY)

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Back in 2017 in Matter of New York City Asbestos Litigation, the Appellate Division, First Department affirmed a trial court ruling that granted defendant Ford’s motion for to set aside the verdict.  And the Court of Appeals is set to rule on the admissibility of expert opinion in the underlying trial.

In the underlying action, decedent, Arthur Juni, passed away from mesothelioma allegedly caused by exposure to asbestos while he worked as an auto mechanic.  Decedent worked for non-party Orange & Rockland Utilities from 1966 – 2009, servicing predominantly Ford vehicles.  He was issued a respirator in 1988, but was exposed to asbestos for approximately 25 years prior to that.

The jury awarded decedent’s wife and administratrix $3M for her loss and $8M to the estate for pain and suffering.  The judge granted Ford’s motion to set aside the verdict for failing to quantify decedent’s exposure levels or provide scientific expression of his exposure level with respect to Ford’s products.  To be clear, a plaintiff must prove not only that mesothelioma was caused by exposure to asbestos, but also that exposure was to sufficient levels of the toxin to have caused the illness.  Due to studies that found mechanics working on friction products found no increased risk of mesothelioma and studies showing that only 1% of dust blown out from brake drums is comprised of asbestos, the trial court was not convinced with plaintiff’s experts that the cumulative exposure was sufficient to link decedent’s mesothelioma to the exposure.

Relying on Parker v. Mobil Oil Corp. which addressed a claim of years of workplace exposure to benzene in gasoline as a cause of acute myelogenous leukemia, New York established a rule in toxic tort cases that, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation).”  In a fractured opinion, the Court agreed that there is consensus in the scientific community as to general causation, i.e., the link between asbestos and mesothelioma, but felt decedent failed in proving he was exposed to a sufficient amount of visible fibers to cause the disease, or, in the alternative, that a sufficient amount of toxins existed in the inhaled “visible dust” to cause the disease.

Given the complexity of the inquiry, the Court of Appeals heard oral arguments on decedent’s final appeal and is due to decide this issue within the next month.  Associate Justice Feinman who authored the dissent at the 1st Dept. level, and has recused himself, but should his brethren follow his lead, an asbestos plaintiff would have to show (1) regular use by an employer of the defendant’s asbestos-containing product, (2) plaintiff’s proximity to that product, and (3) exposure over an extended period of time.  Should the Court affirm the First Department, plaintiffs would have an additional hurdle in proving a specific relation to the exposure and the disease.  In the instant case, the Court found the experts to be too general, subjective and conclusory to find that decedent’s exposure was a significant factor in causing his cancer.  The battle of the experts in these cases have an unenviable job of using mathematical modeling or qualitative comparisons to recreate conditions, often decades after exposure and explaining their findings in lay terms for their non-medical audience in judges and jurors.  The Court of Appeals then must balance the danger of accepting correlation as causation and creating an insurmountable standard that would deprive plaintiffs of their day in court.  This decision could be a game changer in the future of asbestos litigation.  Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.