Since 1978 in the case of Azzarello v. Black Brothers Co. Inc., the PA law on products liability cases is that a product is defective if it left the manufacturer “lacking any element necessary to make it safe or having any element making the product unsafe.” This strict liability standard is about to be revisited as the Supreme Court has just granted allocatur in Bugosh v. I.U. North America Inc.. In this case, the Court will decide whether to adopt the Restatement Third on Torts which employs a negligence standard in product defect cases.
Category Archives: Miscellaneous
New Jersey Supreme Court Allows Testimony Of Biomechanical Expert In Low Impact Crash Case.
In Hisenaj v. Kuehner, the Supreme Court found that expert testimony based on data from low impact crashes with human test subjects was properly admitted in a fender bender accident that resulted in a low jury verdict. The case was watched closely by both the plaintiff and defense bars and drew amicus curiae appearances from the Association of Trial Lawyers of America-New Jersey (ATLA) and the New Jersey Defense Association.
http://www.judiciary.state.nj.us/opinions/supreme/A-86-06%20Hisenaj%20v%20Kuehner.pdf
An Education In Pricing For U.S. College Students Studying Abroad
As a student at Wheaton College, Jennifer Bombasaro-Brady spent a semester studying in South Africa. Although away from the Wheaton campus, Ms. Bombasaro-Brady was still required to pay full tuition, room and board, despite the fact that the program she attended, without all the amenities provided at Wheaton, cost less. Accusing Wheaton of engaging in deceptive practice, the Bombasaro-Brady family has filed suit in Massachusetts state court. Meanwhile, the relationship between universities and study-abroad programs have already come under the scrutiny of the attorney generals of New York and Connecticut.
http://www.nytimes.com/2008/03/09/education/09studyabroad.html
Plaintiff’s Improper Use Of A Supplemental Bill Of Particulars And Punitive Damages Thwarted
On the eve of trial in the personal injury action Kraycar v. Monahan, plaintiff successfully moved for leave to serve a supplemental bill of particulars and for leave to serve an amended complaint seeking punitive damages. The Appellate Division, Second Department reversed since plaintiff improperly sought to introduce only new injuries with the supplemental bill of particulars. Moreover, since it was not established that defendant’s actions were willful or wanton negligence, plaintiff’s added claim for punitive damages was without merit, equally warranting a denial of that branch of his motion.
http://www.nycourts.gov/reporter/3dseries/2008/2008_01923.htm
Decedent Killed Sitting On Subway Tracks, A.D. Dismisses Case And Plaintiff’s Expert
In Mirjah v. New York City Transit Authority, plaintiff brought an action for wrongful death and personal injuries stemming from a July 15, 2000 accident whereupon plaintiff’s decedent was struck and killed by a subway train. Directly before his death, the decedent was determined to be intoxicated and was observed sitting on the tracks, facing the oncoming train, that was coming around a curve in the rain. The trial court denied defendant’s motion for summary judgment, apparently giving credence to the mathematical theory of Nicholas Bellizzi, plaintiff’s expert, that the defendant’s operator could have stopped the train without hitting the decedent.
The Appellate Division, Second Department reversed, finding Mr. Bellizzi’s conclusions to be “merely speculative” and unable to raise a triable issue of fact.
http://www.nycourts.gov/reporter/3dseries/2008/2008_01722.htm
Trial Attorney Ads Raise Pretrial Publicity Controversy.
Trial lawyer, Geoffrey Feiger, was indicted on charges of funneling $127,000 to former presidential candidate, John Edwards. His trial is scheduled to begin in Michigan in April.
Feiger is now accused of trying to taint the potential jury pool by running commercials comparing the Bush Administration to Nazis, and claiming that trial lawyers are under attack from the federal government. Feiger has appealed a recent decision ordering him to discontinue the ads on First Amendment grounds.
Semicolon Brings Victory to Insurer at World Trade Center
The Port Authority of NY and NJ owns the land at Ground Zero. Some of that land was under lease to Larry Silverstein when the planes struck on September 11.
The Port Authority had a policy at that time with Lloyd’s. Exclusion “f” in the Lloyd’s policy provided that the policy “does not cover” loss or damage to any property in respect of which any third party “has in force at the time of the loss, pursuant to a lease or other written agreement, valid and collectible insurance in favor of the insured or has otherwise indemnified the Insured against such loss or damage; except that if any person, firm or corporation is required pursuant to a lease or other written agreement to insure any property which would otherwise be covered by this Policy, and for whatever reason such property is not fully insured, then such property will be insured property under this Policy.”
Fact: Larry Silverstein had procured insurance in favor of The Port Authority but it was insufficient to cover the loss. Fact: Silverstein had agreed in a written lease to indemnify the Port Authority.
Based upon the existence of the indemnity agreement, Lloyd’s moved for a declaration that Exclusion “f” was triggered and that the loss or damage to the property leased to Silverstein was not covered under the Lloyd’s policy.
The Port Authority disagreed and pointed to the exception within Exclusion “f” and said that because the Silverstein property was “not fully insured,” the Port Authority property was “insured property under this Policy.”
The court ruled in favor of Lloyd’s and held that the exclusion was triggered because Silverstein had agreed to indemnify The Port Authority. The court rejected The Port Authority’s argument that because the exception was set off by a semicolon, it must be read to modify both the preceding indemnity clause as well as the preceding insurance procurement clause. The court ruled that “as a matter of law, Exclusion f as set forth in the Port Authority Policy removed the Silverstein property from coverage under the Port Authority Insurance as the Port Authority was indemnified with respect to the Silverstein property at the time of the loss…”
Certain Underwriters at Lloyd’s v. The Port Authority of New York and New Jersey. SDNY 05 Civ 5239. Decided 2/22/08.
Failing To Satisfy Condition Precedent Precludes Direct Action Against Insurer
In Guayara v. Hudson Insurance Company, plaintiff sought to enforce an unsatisfied judgment against the defendant’s insured. The Appellate Division, Second Department dismissed the case since plaintiff failed to follow Insurance Law § 3420(a) (2) that allows a direct action against an insurer only thirty-one (31) days after a claimant serves notice of entry of judgment upon the attorney for the insured, or upon the insured and its insurer. In this case, plaintiff merely sent a letter to the broker of the insured, which did not comply with the statutory requirements.
http://www.nycourts.gov/reporter/3dseries/2008/2008_01498.htm
EDPA — PA Law Governs PA Insurance Contract w/ California Based Claim.
In the case of PhotoMedex Inc. v. St. Paul Fire & Marine Ins. Co. , the tort action requiring indemnification originated in California, but the underlying insurance contract was issued in Pennsylvania. The question thus arose — which state’s law governs the Policy’s interpretation? The EDPA ruled that the law most connected to the insurance policy, not the underlying tort, was the one to be applied.
http://www.law.com/jsp/pa/PubArticleFriendlyPA.jsp?id=1203677127439
Family Of Fallen Firefighter Brings Suit For Fire At Deutsche Bank Building
Barbara Beddia Crocco, the sister of Robert Beddia, one of the two firefighters killed in the former Deutsche Bank building in lower Manhattan last August commenced a lawsuit against the building owner, the Lower Manhattan Development Corporation, and several contracting companies that worked on site. The claims are that the defendants created or were aware of the dangerous conditions that existed in the building, including dismantled fire connections, that caused the death of Mr. Beddia. Notably, Ms. Crocco did not sue the City of New York of The Fire Department of New York.
http://www.nytimes.com/2008/02/14/nyregion/14deutsche.html?_r=1&ref=nyregion&oref=slogin