Category Archives: Uncategorized

Lakers Toss Airball in Text Message Coverage Case

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It is pretty much a given that anywhere you go, everyone is always on their phones. At sports stadiums, teams encourage fan interaction with fan social media posts.  Stores send text message alerts of special promotions, and doctors’ offices and salons now confirm appointments by text.  But all of these new uses for phone communication carry potential implications for insurers and their insureds under the Telephone Consumer Protection Act (TCPA) which is meant to prevent unsolicited telephone communication with consumers. In fact, many insurance policies now carry specific TCPA exclusion endorsements or exclusions otherwise relating to privacy invasion.

The 9th Circuit recently had to grapple with determining whether an invasion-of privacy exclusion applied to exclude coverage for TCPA claims in the case of L.A. Lakers v. Federal Ins. Co.  In November 2012, Lakers fan David Emanuel sued the Lakers, alleging that he used his phone to put a personal message on the scoreboard during a game at Staples Center, but subsequently began receiving texts from an autodialer. Emanuel’s case was dismissed with prejudice on the grounds that he implicitly consented to receiving a confirmation text from the Lakers when he submitted his original message. The Lakers then settled with Emanuel after he appealed to the Ninth Circuit.

The Lakers then sued its insurer, Federal, for refusing in bad faith to defend or indemnify the Lakers in the Emanuel litigation.  The insurer moved to dismiss, arguing that the policy’s invasion-of-privacy exclusion precluded coverage because a TCPA violation allegation is, in effect, a claim for a privacy breach. The trial court agreed with the insurer and dismissed the Laker’s complaint, holding that TCPA claims fall within the directors-and-officers policy’s invasion-of-privacy exclusion, and that the team was therefore not entitled to coverage.

The Lakers appealed to the 9th Circuit, and a 2-1 circuit panel upheld the trial court judge’s decision for Federal, finding that because a TCPA claim is “inherently an invasion of privacy claim,” the lower court properly concluded that the underlying suit against the Lakers was excluded from coverage. Thus, the Court held, the insurer did not breach the policy, or the implied covenant of good faith and fair dealing, in declining to defend against or cover the underlying lawsuit.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono for more information.

 

High School Football Players Not Barred From Suing For Sideline Condition (NY)

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A recent NY case dealt with whether High School football players assume the risk of getting injured  on a steel plate on the sidelines. In September 2010, Andrew Deserto, Jr., a high school student in Goshen Central School District, allegedly was injured while playing in a varsity football game at Franklin D. Roosevelt High School, located in Hyde Park Central School District. Mr. Deserto allegedly was tackled by two players from the opposing team and forced out of bounds, causing him to hit his head on a steel plate covering a pole vault pit several feet from the football field sideline.

As a result of the accident, Mr. Deserto filed a lawsuit in Orange County Supreme Court against Goshen Central School Districk and Hyde Park Central School District, claiming the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the players.

Both school districts moved for summary judgment, arguing that the lawsuit should be dismissed because it was barred by the legal doctrine known as the primary assumption of the risk.

The Supreme Court did not agree that the case should be dismissed without a jury ruling on whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the football players.

The Supreme Court’s decision was appealed, and the Appellate Division focused on whether the risk at issue was a “commonly appreciated risk.” The Court’s decision held that “pursuant to the doctrine of primary assumption of risk, a voluntary participant in a sporting or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation.”

Further, participants in sporting events are “not deemed to have assumed the risks of reckless or intentional conduct, or concealed or unreasonably increased risks.”  In line with these principles, the Court ruled that “[a]n educational institution organizing a team sporting activity must exercise ordinary reasonable care to protect student athletes voluntarily participating in organized athletics from unassumed, concealed, or enhanced risks.”

Ultimately, the Appellate Division decided that the Supreme Court’s decision was correct in  determining that the defendants were not entitled to summary judgment because they failed to eliminate a triable issue of fact as to whether the placement of the steel plate in the vicinity of the playing field unreasonably increased the risk of injury to the participants.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono for more information.

Material Misrepresentation About Claim Voids Coverage in PA – But Not In This Case

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In Penn Nat’l Security Ins. Co. v. Kapinus, a Pennsylvania court recently considered whether a material misrepresentation could void the policy even though the statement was made in connection with a claim rather that at the time of the insured’s initial insurance application. This declaratory judgment action arose out of a claim that, while accompanying his father to a construction site, claimant Tyler Kapinus was struck by his father’s company truck and was injrued. The insured owned an excavation and construction business and held a commercial automobile policy with Penn National Insurance Company.

Penn National filed a declaratory judgment action seeking a determination that its insurance policy did not provide coverage for the personal injury lawsuit at issue. Penn National argued that the policy precludes coverage if the insured made a material misrepresentation regarding a claim or fails to cooperate with the insurer in the investigation of the claim.

Penn National contended that the insured sought to avoid the application of the coverage exclusion for work-related injuries by making material misrepresentations and failing to provide pertinent information regarding the claim. The insurer stated that the insured falsely represented that his son never worked for his business and further refused to identify bank records which may reflect the son’s prior employment with the insured.

Tyler filed preliminary objections, arguing that the material misrepresentation exclusion only applies to false statements made by an insured to induce the issuance of a policy, not to subsequent fraud by an insured in connection to a claim. Tyler further contended that the duty to provide pertinent information regarding the claim only requires the insured to assist in defending against the merits of an underlying personal injury action and not to aid the insurer in developing a basis to deny coverage for that claim.

The court decided that the plain language of the policy provides that there is no coverage if the insured misrepresents a material fact concerning a claim under the coverage, and because the insured intentionally misrepresented his son’s work history, the insurer had a viable basis for denying coverage under the appropriate exclusion. However, the court disagreed with the insurer’s claim that the insured failed to cooperate with the investigation, concluding that the bank records were not relevant to the evaluation and defense of the son’s lawsuit.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono for more information.

This and That by Dennis Wade

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In 1L, a wise, legal writing adjunct professor gave me some excellent advice: “Don’t Let The Perfect Get In The Way Of The Good.” What he meant, of course, is writer’s block is most often a fear, an internal struggle to create the “perfect” argument, the telling analogy.  That mindset, he preached, inhibits the flow of what ought to be said. “Write, write–and then revise, revise, refine and refine again.”  The result, often, may not be perfect, but it will get the job done. I took that advice to heart.  And so, when my children complained about the difficulty of school essays, I would tell them: “Just do a ‘brain dump’ and see what comes out.  Then set it aside for a piece and return to the essay to revise and refine–and you’ll be surprised by what appears on the page.”

In Claims and Litigation all too often the Perfect does indeed get in the way of the Good. In fact, sports and what we do are closely analogous. Why do you think top performing athletes supplement coaches with sports psychologists? Golfer Jordan Spieth now works with Michael Phelps, who has enough Olympic gold around his neck to stoop with its weight (23 gold).  I could go on, with sport analogies, ranging from swinging a club to competitive swimming. A while ago, I read a book by Bob Rotella, a renowned sports psychologist, styled Golf Is Not a Game of Perfect. True, Rotella said, you could try to hit the “perfect” shot, say, a hook around a tree from the high rough.  But, he said, “What are the probabilities of success?”  Isn’t it smarter to play a safer shot into the fairway, he suggested, and hope for a good wedge into the green and a one putt par. Playing for Perfect might well take you out of tournament contention.

Outcomes in Claims and Law often turn on percentage plays. So, why get hung-up on the Perfect when the Good, most often, is what makes the difference between failure and acceptable loss ratios and happy clients?

A defense verdict, summary judgment awards and favorable DJ rulings are Perfect outcomes. But, like Rotella, our clients invariably ask us to “handicap” or assess the percentage of that Perfect outcome. I’ve never liked giving percentages. But discipline in the arena of litigation, just as discipline on the playing field, requires an honest assessment; it’s a matter of balancing risk versus potential reward.

Strive for the Perfect but don’t let it lead you to foolish decisions about managing risks in claims and litigated matters. And that’s it for this This and That. If you have thoughts on how best to balance the Perfect versus the Good, please email or call Dennis.

WCM Triumphant in Westfield Pizza Race

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Perhaps a little hyperbolic but at least we got your attention. But no one could question that the weather was perfect for the race participants in this year’s Westfield 5k Pizza run! The WCM New Jersey office had a great turnout with Paul Clark, Denise Ricci, Heather Aquino, Joe Broccoli, Ken Eng, Jorgelina Foglietta, and Mike Noblett flying the firm’s colors, and Carole Becca, Marie Lindner,Tiffany Braithwaite, Ann Marie Murzin, and Vivian Turetsky cheering the team on from the sidelines. Special kudos to Heather for completing the race while holding baby Ava!

Denise finished 4th in her age group with Jorgelina close behind.  Before the race began, there were rampant rumors that Paul Clark would not be participating in this years race due age-related infirmities. We were surprised to see Paul geared up and ready to go as the race was set to begin. Kudos to Joe Broccoli who put his peer pressure tactics to good use and persuaded Paul to run the race!

Mike Noblett and Ken Eng ran for the first time this year – with Mike completing the race as the quickest male at WCM (but with the worst athletic wear) and Ken not far behind (fun fact: Ken used to run cross country – but Paul still pulled ahead of him in the final sprint). Steve Kim finished the race with grace but rumor has it that he was got passed by several children running without their shoes tied.

After the race, the group gathered at Darby Road Public House & Restaurant for some food and libations. Perhaps there are some audience members who would like to join the team next year!

Thanks to Steve Kim for contributing this post.

Unavoidable Accident or Negligence… Only the Jury Knows For Sure (NY)

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A New York court recently fleshed out the concept of an unavoidable accident in a motor vehicle accident case in which the plaintiff sought summary judgment. The claim in Wood v. Deschamps arose out of a winter storm related motor vehicle accident. By all accounts, the plaintiff was entirely blameless in the accident. She had been proceeding at a reasonable speed, well below the posted limit, and within her lane of travel when the defendant’s vehicle fishtailed and entered her lane of travel. It had been snowing for some time with about 1.5″ accumulation on the ground.

The defendant had been traveling somewhat under the speed limit, in light of the weather conditions, but lost control of her vehicle as she rounded a bend. She agreed that the accident occurred quickly after she entered the plaintiff’s lane.

The defense fought plaintiff’s partial summary judgment motion on the issue of liability arguing that the emergency doctrine or unavoidable accident theory applied. The Court declined to extend the “emergency doctrine” to this situation finding that there had not been a sudden and unexpected event. Although the accident was certainly sudden, the factors leading up to it were not.  The defendant admittedly knew that it was snowing and that the roads were slick as she continued on her journey.

However, the Court found that a jury could conclude that the collision was an unavoidable accident if neither party was negligent. In this case, the plaintiff was clearly free from fault as she drove at a reasonable speed and maintained control of her vehicle when she was struck by a vehicle that fishtailed into her path of travel. Similarly, the Court found that a jury could find the defendant blameless if they believed that she was traveling in a reasonable and prudent manner given the weather conditions and that her loss of control was beyond her control.

Thanks to Christopher Gioia for his contribution.


For more information, contact Denise Fontana Ricci at .

 

Late Notice to Defendant Prompts Denial of Plaintiff’s Spoliation Motion (NY)

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The Suffolk County Supreme Court recently denied plaintiff’s motion seeking sanctions and an adverse inference against a defendant due to spoliation of a videotape of the subject incident in Fischetti v. Savnio’s Hideaway.

The claim arose in November 2014, from a slip and fall at defendant’s restaurant.  Plaintiff, a patron, fell down the front steps while leaving the restaurant and fractured her shin and wrist.  Plaintiff bought suit against defendant, restaurant, alleging that insufficient lighting and signage caused plaintiff falling down the steps.

At the time of plaintiff’s fall, the restaurant had 9 surveillance cameras situated around the premises, one of which captured the accident scene.  Approximately 90 days post incident, plaintiff sent defendant a “notice letter” of the suit, and requested all information be forwarded to defendant’s insurance carrier.

During the course of discovery, plaintiff demanded disclosure of the video footage.  Defendant was unable to provide the surveillance footage as their surveillance system, per its programming, automatically recorded over the incident after two weeks.  Plaintiff then sought sanctions alleging that defendant negligently allowed for the destruction of the video.

The Court found that although the surveillance footage is highly relevant to plaintiff’s case, a defendant who destroys documents in good faith and pursuant to normal business practice should not be sanctioned unless the defendant is on notice that the evidence might be needed for future litigation.  Here, there was insufficient notice, as by the time plaintiff put defendant on notice, the video had already been destroyed. The Court went on to state that the “notice letter” sent by plaintiff, was insufficient as it neither cites the subject video nor requests the video to be preserved.

The Court’s ruling demonstrates the necessity of not only being specific in your demand letters, but of moving as quickly as possible at the inception of a cause of action,  to locate and preserve save any surveillance footage that may exist.  Thanks to Patrick Burns for his contribution to this post.  Please email Brian Gibbons with any questions.

To Remove or Not To Remove? Federal Court Beckons … (PA)

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Plaintiffs get to choose litigation venue by filing a complaint in any court that meets jurisdictional rules – State or Federal. While defendants have limited means to select venue, one consideration is whether a matter can be removed to federal court.  Particularly where an out of State defendant is involved in an action meeting diversity requirements, federal court may provide a more favorable venue.  However, the decision must be made quickly as the rule requires removal in thirty days from service of the complaint.

In JUDITH KOERNER v. GEICO, the defendant insurer removed a UIM claim to Pennsylvania Middle District Court only after the plaintiff amended the complaint some eight months into the State court litigation.  The insurer contended that the only after the amended complaint did the amount in controversy exceed the jurisdictional requirement of $75,000.  The plaintiff sought remand on the grounds that the removal came well after the allotted 30 days.

The plaintiff, Judith Koerner (“Korner”) alleged that she was injured in an auto accident, when objects from an unidentified vehicle were thrust into the roadway and forced her into a guardrail. As a result, she sustained injuries for which she sought uninsured motorist benefits from her insurer, Geico, which denied the claim.

Koerner filed her original complaint in Pike County Court of Common Pleas, without a quantification of damages, but demanded an unspecified judgment in the amount to cover damages she sustained in the accident. Nearly a year later, Koerner amended her complaint, adding individual counts for breach of contract and bad faith against Geico. Notably, Koerner alleged that Geico was liable for Pennsylvania common law and statutory bad faith damages, including punitive damages (which under Pennsylvania jurisprudence can be up to ten times the compensatory award).

Subsequent to Koerner’s amended complaint, Geico filed a notice to remove the case to federal court, based on diversity jurisdiction. In support of its notice, Geico stated that the policy’s UIM limit was $15,000, noting that the demand for punitive damages in Koerner’s amended complaint satisfied the jurisdictional requirement of a $75,000 amount in controversy. Geico argued that the removal was timely because it was not until the filing of the amended complaint that it could ascertain the amount in controversy as meeting the threshold for removal.

Koerner counter-argued that Geico’s petition to remove the case was untimely because Geico should have filed for removal within 30 days of filing the original complaint. Koerner relied on 28 U.S.C. § 1446(b)(3), which states:

(3) Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.

Although the original complaint did not allege damages in excess of $75,000, Koerner argued that under 28 U.S.C. § 1446(b)(3), Geico could surmise that the amount in controversy exceeded $75,000 prior to her amended complaint, based on “other papers” including medical reports.

The Middle District denied plaintiff’s motion reasoning that the use of the word “ascertain” in § 1446(b)(3) means that the thirty-day removal period is triggered only when the documents “make it `unequivocally clear and certain’ that federal jurisdiction lies.” Because Koerner provided no basis to conclude that medical records supplied in response to a request for production of documents makes the amount in controversy ascertainable—the documents did not “make it unequivocally clear and certain that federal jurisdiction lies.” This was particularly so when the operative complaint at the time only alleged with specificity that Koerner was entitled to uninsured motorist benefits from Geico and those benefits under the policy were $60,000 shy of the amount in controversy required for federal jurisdiction. Only when bad faith was alleged did Pennsylvania’s Bad Faith statute make punitive damages in issue and, in theory, increase the amount in controversy in excess of $75,000. Therefore, federal court jurisdiction was proper.

Thanks to Sathima Jones for her contribution.

For more information, contact Denise Fontana Ricci at

WCM Wins Dismissal Involving Overseas Trip Sponsored By Charitable/Religious Organization (NY)

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Senior Partner Paul Clark and Associate Peter Luccarelli III successfully convinced the Appellate Division, First Department to reverse a New York County trial court’s decision denying our client’s motion for summary judgment in an alleged sexual assault case. Lerner involved a claim of a 19 year old participant in an overseas trip by our client, a charitable and religious organization. At the end of the day’s sponsored activities, plaintiff and several other trip participants, all of whom were of legal drinking age, retired to the hotel bar. At the hotel bar, plaintiff met, and later left with other male hotel guests who were not members of the trip. Hotel personnel later found plaintiff disoriented in a hallway, and the investigating officers determined that she may have been sexually assaulted and possibly drugged by her assailants. Plaintiff filed suit against our client for allegedly failing to properly supervise her and prevent her assault at the Hotel after all sponsored activities were over.

We moved for summary judgment on the basis that there was no duty to supervise an adult who drank in a hotel bar not owned, maintained, or controlled by our client. We further argued that any duty of care owed by our client to plaintiff was severed by the acts of the criminal third-parties who were unknown to our client. The trial court initially denied our motion on the basis that our client failed to prevent plaintiff from drinking excessively. On appeal, the First Department unanimously reversed the trial court order and granted our motion for summary judgment. The First Department held that even assuming a duty to prevent an adult plaintiff from drinking excessively, there was nothing our client could have done to prevent plaintiff’s alleged assailants from perpetrating an unforeseeable—and unfortunate—criminal act against her.

If you have any questions about this post, please email Paul at .

Hotel Owed No Duty to Shooting Victims at Music Event (NJ)

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In Higgins v. Holiday Inn, the Appellate Division analyzed whether a hotel owed a duty to take reasonable precautions by providing security for an event held at the hotel.

For nineteen weeks, Disc Jockey Clarence Francis hosted and performed at a weekly “Caribbean Nights” event held at the hotel without any incidents of violence. However, on the twentieth week, plaintiffs were smoking outside the hotel when an unidentified, masked gunman approached and shot them, wounding them in their legs. Subsequently, plaintiffs sued the hotel and during discovery found information relating to criminal activity at the hotel, which included assault, robbery, and rape.

Plaintiffs argued that the hotel had a duty to provide security at the Caribbean Nights event because the hotel’s history of criminal activity created a reasonable foreseeable risk of harm to the plaintiffs. Specifically, plaintiffs contended that the circumstances involving the prior criminal activity at the hotel, the late hour, and the festive environment of the Caribbean Night event should have caused defendant to anticipate “loitering, under-age drinking, drugs and fights.” Thus, plaintiffs argued when these circumstances are considered together, they imposed upon the hotel a heightened duty to take safeguards against criminal acts of third parties, which include the shooting that caused plaintiffs’ injuries.

The Appellate Division disagreed with the plaintiffs, holding that there was no competent evidence supporting a finding that the hotel could have reasonably foreseen plaintiffs’ shooting. The court reasoned that during the nineteen prior Caribbean Night events there were no criminal incidents. Further, during the hotel’s entire ten-year history, there were no incidents of shooting. Although the hotel had some past criminal activity, the court found this history was not so “alarming” or “escalating” that it would be reasonably predictive that attendees at the event could be affected by such a random act of violence.

Thus, this case demonstrates that New Jersey courts utilize a “totality of the circumstances” analysis to determine an owner’s liability to prevent third-party criminal conduct on the owner’s premises.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono for more information.