Has Football Been Saved?

Unfortunately, Labor Day is upon us here in the States and summer will (unofficially but practically) come to an end in just a few days. But every cloud has a silver lining and for many Americans, the start of the college and professional football seasons is that silver lining.

We, here, at WCM have previously commented on some of the challenges faced by football. Among those challenges was the federal class action lawsuit filed by former professional football players against the NFL for failure to warn about the risks of concussions. A key ruling was expected this week from USDC Judge Brody of the EDPA. But, instead of a ruling, we have received word of a $765,000,000 agreement in principle. The central aspects of the settlement are that: (a) the NFL is not admitting any wrongdoing; and (b) the settlement cost, for a league that generates $10,000,000,000 per year in revenue, is a mere rounding error.

The question that remains (and that is already being asked) is — what effect will this have on youth or amateur athletics? Our thought is that the absence of a NFL admission of wrongdoing will mean that business will continue as usual in the youth or amateur levels — especially in those parts of the country where football is king. This means that the focus of plaintiffs’ attacks will like be on youth and amateur leagues on a going forward basis.

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

Is the Lack of Personal Space a Hindrance to the London Market?

If you walk onto the floor of a typical American insurance company office, you will see a sea of cubicles (at least for those American insurers that still have offices and do not mandate telecommuting). The cubicles are usually personalized with such things as college football memorabilia, family photographs and, in the case of one claims representative we know, a large buzzard. Such a floor plan stands in marked contrast to a visit to the London marketplace where there are no cubicles, but rather row after row of office tables where colleagues sit side-by-side and face-to-face. Few personal mementos are visible. According to new research, the American approach might be better for personal health and productivity as the absence of office privacy “can lead to emotional exhaustion and burnout.” Is this a case of the American way being better, or simply a reflection of a stiffer constitution across the Pond? You make the call.

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

Is A-Rod Causing Problems Beyond Baseball?

Alex Rodriguez has caused a host of problems for baseball and the Yankees. It now appears he might be about to start causing insurers problems. The question is — how bespoke is the insurance policy such that the voiding of a $100,000,000 insurance contract is covered (or excluded) by the policy? Stay tuned to find out!

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

Surfing The Web: Authenticating Out-of-State Legal Documents

Many practitioners puzzle over how to admit in to evidence legal documents from other states.  But, in the digital age, there appears to be a ready answer to this dilemma.  

Judicial notice can be defined as the authority of the court to accept as fact certain matters that are of common knowledge from sources that guarantee accuracy or are official records — without the need for evidence establishing the facts.  But do digital records pulled off an official website qualify for judicial notice? 

Camilla Lowther Management v. Majestic Mills, 653137/11 (Feb. 11), appears to answer that question.  There the special referee took judicial notice of print-outs from a website, purporting to be complaints filed in a California court, which plaintiff was attempting to introduce into evidence.  The plaintiff provided the documents, along with an affirmation detailing the process he used to access and print the documents.  Plaintiff further affirmed that the documents were true and accurate representations of the records appearing on the official California court website. 

The special referee accepted the documents over objection, noting that the documents were a hearsay exception as a public record.  Furthermore, the special referee ruled that the safeguards regarding authenticity under CPLR § 4518(a) and New York Technology Law § 306 were met permitting the pleadings filed in the California court to be taken into evidence by judicial notice despite not being certified.

Special thanks to Johan Obregon for his contribution to this post.   For more information, please contact Dennis Wade at .

Cheryl D. Fuchs Becomes WCM Partner.

WCM is pleased to announce that, effective March 1, 2013, Cheryl D. Fuchs is a Partner. Ms. Fuchs, who is admitted in New York and New Jersey, has been a WCM attorney her entire legal career.  Cheryl’s practice focuses on the defense of N.Y. Labor Law, construction and premises liability cases as well as offering coverage advice across the spectrum of commercial general liability policies. Cheryl takes pride in her zealous advocacy for WCM clients and looks forward to serving your needs in the future.  

If you have any questions, please contact Diana Mauriello, Communications Director 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 .

What Do the Titanic and a Commuter Ferry Have in Common?

They might both get the benefit of the maritime Limitation of Liability Act, 46 U.S.C. §§ 30501-30512.

For those of you who haven’t been following the story (or forget that Manhattan is an island), here’s the background.  On January 9, a commuter ferry called the SeaStreak Wall Street was transporting commuters to lower Manhattan.  The ferry (for reasons that are unclear) lost control and crashed into a pier; more than 50 people were injured.  Claims very quickly have followed.  In anticipation of lawsuits, SeaStreak filed a proactive complaint in New Jersey federal court and alleged that under the Limitation of Liability Act, SeaStreak’s liability is limited to the value of the vessel (i.e. $7.6 million) – assuming liability is first found.  Anyone who wishes to contest SeaStreak’s position must file a claim by May 16.  Although no formal claims have yet been filed, counsel for the injured passengers are alleging that SeaStreak “was going too fast, utilized unsafe docking procedures and had an inadequately trained and supervised crew.”  These facts might establish “privity or knowledge” and thus defeat the Limitation of Liability Act.  The defense worked for the Titanic so, it just might work here as well; although notwithstanding this week’s deep freeze, we are unaware of the existence of icebergs in New York harbor.

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

This New Year, Perhaps Tell Your Personal Trainer to “Butt Out”

Many of us have already begun the annual pilgrimage back into crowded gyms with the intent to follow through on New Year’s resolutions.  But if you’re looking for a personal trainer to help guide you on your path to personal fulfillment, it may be a good idea to make sure he or she does not instead set you on a path to pain.

In a split decision, the Appellate Division, Third Department, has ruled that where a gym patron suffered a back injury while performing a squat exercise pursuant to a personal trainer’s written instructions, a jury should generally decide whether the patron assumed the risk of injury.

Under the well-settled doctrine of assumption risk, a person who voluntarily participates in a recreational activity is deemed to have assumed the inherent risks of that activity.

Plaintiff Dianne A. Layden took part in a personal training session at a fitness center with a personal trainer, defendant Angela Plante.  Prior to her training session, plaintiff advised Ms. Plante that she had a history of back problems.  Ms. Plante supervised plaintiff’s training session, and provided her with written instructions on how to repeat the exercises independently.  Plaintiff returned to the gym days later, and attempted to perform a weight-lift move known as a “Smith squat,” as described in the written instructions.  While performing the maneuver, plaintiff experienced back pain, which thereafter required surgery to correct two herniated discs.

Plaintiff commenced a lawsuit against the trainer, and the owner of the fitness center.  The defendants each moved for summary judgment based on the doctrine of assumption of risk.

The Third Department reversed the trial court’s decision granting the defendants summary judgment, and ruled that a jury should decide whether plaintiff assumed the risk of injury when attempting to perform the squat exercise.  The court noted that the application of the assumption of risk doctrine is typically a question of fact best resolved by a jury.  Specifically, the majority found that the plaintiff raised a question of fact as to whether the trainer’s potentially misleading directions “unreasonably heightened the risks to which [plaintiff] was exposed.”  Plaintiff’s experts testified that the trainer improperly instructed plaintiff to “stick her butt out” while performing the squats.  Instead, plaintiff’s experts averred that a person should maintain a straight back when performing Smith squats.

So this New Year, instead of assuming that your personal trainer will prevent you from getting injured, you may wish to simply tell him or her to “butt out” of your workout.

Layden v. Plante, 2012 WL 6698873, 2 (3d Dept. 2012).


Many thanks to Steve Kaye, Jr. who assisted with this post.


Surrender to Sandy?

Not a chance. Even with — power out; roadways and streets flooded and strewn with trees and crackling power lines; mass transit crippled; land line telephone service cut; and, cellular service spotty at best — WCM attorneys and staff “texted” themselves back to serving you, our clients, and your insureds. Or else, we did business the old fashioned way — meeting face-to face in small groups.

We give thanks that all WCM personnel got through Frankenstorm in good form, though many of us are still without heat or power in our homes and apartments. Our hearts go out to those who have suffered greatly, and we have resolved to help others in any way we can.

But we wanted everyone to know that we are fully back in business in New York, New Jersey and Pennsylvania and nothing has slipped between the cracks.

Your Friends at WCM