Monthly Archives: March 2018

Music School Denied Additional Insured Status For Negligent Mopping (NY)

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Additional insured endorsements often require a causal connection between the named insured’s acts or omissions and the loss in order to trigger coverage to the additional insured. The intention is to provide coverage to additional insureds exposed to vicarious liability while avoiding coverage for the additional insured’s own negligence.

In Hanover Ins. Co. v Philadelphia Indem. Ins. Co., the First Department determined whether the Manhattan School of Music was entitled to coverage as an additional insured under a policy issued to Protection Plus. In the underlying personal injury action, a security guard employed by Protection Plus alleged that he slipped and fell on a recently mopped floor while working at the Manhattan School. The testimony revealed that the Manhattan School was responsible for having wet-mopped the hallway floor prior to the plaintiff’s fall. The trial court found that the security company who employed plaintiff was equally liable with the music school.

The insurance policy at issue provided that additional insured coverage applied to “any bodily injury caused, in whole or in part,” by the “acts or omissions” of the named insured. The court determined that the language in the endorsement was intended to provide coverage for an additional insured’s vicarious or contributory negligence, and to specifically exclude coverage for the sole negligence of any additional insured.

Accordingly, when coverage is limited to an injury “caused, in whole or part” by the “acts or omissions” of the named insured, an additional insured is entitled to coverage only when the damages are the result of the named insured’s negligence or some other act or omission by the named insured. Here, there was no negligence by the named insured and because the additional insured Manhattan School caused the wet floor condition which caused the plaintiff’s fall, the Manhattan School was not entitled to coverage as an additional insured under the policy.

Thanks to Jorgelina Foglietta for her contribution to this post and please write to Mike Bono with any questions.

No Additional Insured Coverage for Grossly Negligent Strip Mall Owner (NJ)

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In Moran-Alvardo v. Nevada Court Realty, LLC, the plaintiff fell on snow and ice in the parking lot of a strip mall where Dunkin Donuts was a commercial tenant. Plaintiff sued Dunkin Donuts and the strip mall owner due to the injuries he allegedly incurred from the fall. Subsequently, the strip mall owner filed a third-party complaint against Dunkin Donuts pursuant to a contractual indemnification provision in its lease agreement.

In the trial court, the parties stipulated that the strip mall owner was contractually obligated to remove ice and snow in the area of plaintiff’s fall. According to plaintiff, snow and ice had not been “touched.” Thereafter, the trial court held that the strip mall owner’s failure to remove snow and ice three days after the last snow fall constituted gross negligence. The trial court also noted that the lease agreement indemnified the strip mall owner for negligence—but not gross negligence or willful misconduct. As such, Dunkin Donuts was relieved from its contractual responsibility to indemnify the strip mall owner, but Dunkin Donut’s insurer was still ordered to defend the strip mall owner.

The insurer challenged the trial court’s decision, finding that the strip mall owner was entitled to coverage under the policy’s additional insured provision. The insurer argued that it was irreconcilable to require it to provide coverage to the strip mall owner when the trial court already found that the strip mall owner was grossly negligent. Citing prior precedent, the insurer argued that its obligation to provide coverage to a named additional insured (the strip mall owner) must be “coextensive with scope of [the] tenant’s own liability.”

The Appellate Division held in favor of the insurer and reversed the trial court’s order that required defense of the strip mall owner. The Appellate Division reasoned that the lease agreement only obligated Dunkin Donuts to maintain a CGL policy naming the strip mall as an additional insured and the resultant policy expressly excluded the strip mall’s grossly negligent conduct.

Thanks to Ken Eng for his contribution to this post and please write to Mike Bono with any questions.

PA Court Holds Instagram Account Discoverable

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Pennsylvania law on the discoverability of social media records remains in flux, but a recent decision involving an auto accident and Instagram photos gives some guidance to circumstances in which a party may be compelled to provide discovery pertaining to social media content.

In Kelter v. Flanagan, plaintiff filed suit after suffering injuries in an automobile accident. Following the deposition of the plaintiff, defendant filed a motion to compel, seeking log-in information to plaintiff’s Instagram account.

Pennsylvania law states that relevant information may be obtained in discovery unless it is privileged. As held in previous cases, social networking accounts can be discoverable if it appears that they likely contain information that could be relevant, supported by the fact that there does not appear to be an expectation of privacy for social media accounts as because the account holder is sharing information with others in a public or quasi-public domain.

In this case, plaintiff had publicly viewable Instagram posts showing her engaged in various physical activities after the accident. The posts included references to the plaintiff shoveling snow and going to the gym after the accident, although in her testimony she claimed that her injuries made her unable to engage in these activities. The judge explained that the posts were certainly relevant to establish the extent of her injuries and the success of her rehabilitation.

The defendant asked for further discovery on plaintiff’s Instagram account, but plaintiff opposed, arguing that defendants already had access to all of the information because her Instagram posts at the time of the deposition were maintained in a public account. The defendant argued that the plaintiff could switch her account to private access at any time, leaving the defendant with no access to the information contained in the posts. The defendant also raised concerns that previously public posts could be deleted.

The court found that the facts of this case established that there may be other relevant information about the plaintiff’s injuries contained in her Instagram account. The judge explained that the fact that there were some available public posts for a period of time did not eliminate the need for full access to plaintiff’s account, as the account could be converted to a private account, blocking the defendant’s access to the information. The judge further instructed the plaintiff not to remove any content from her Instagram account and defense counsel shall not share information gathered from plaintiff’s account with anyone not involved in the case.

Thanks to Chelsea Rendelman for her contribution to this post and please write to Mike Bono with any questions.

School Dodges Wrestling Hold Claim (NY)

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In Hale v. Holley Central School District, Plaintiff was injured when an 11th-grade classmate unexpectedly walked up behind him before gym class and put him in a chokehold, causing him to lose consciousness and fall face-first against the floor. Defendant Holley Central School District moved for summary judgment under the theory that there was insufficient notice that the student who placed plaintiff in a sleeper hold was dangerous or would have caused such injury. The lower Court disagreed and denied defendant’s motion. Defendant appealed to the Appellate Division, Fourth Department.

A school has a duty to adequately supervise the students in their charge, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision. Schools are not insurers of safety, however, as they cannot reasonably be expected to continuously supervise and control all movements and activities of students; therefore, schools are not to be held liable ‘for every thoughtless or careless act by which one pupil may injure another.’

As such, the Fourth Department ruled the lower court erred in denying summary judgment as there was no actual or constructive notice of the student’s behavior such that the student’s act could be reasonably anticipated. According to school records, the student never engaged in any disorderly or violent conduct in any previous gym class. Although the student had a disciplinary problem, the Fourth Department ruled that the student’s prior endangering conduct was too remote to provide defendant with sufficiently specific knowledge or notice.

Furthermore, the Fourth Department was not persuaded by plaintiff’s argument based upon the mixed grade levels in the gym class and, relatedly, the size differences between plaintiff and the other student. The evidence established that it was common for students to wait in the gym until all students exited the locker room before class began. The gym teacher usually would be in his office during this time period because his office had doors leading directly to both the gym and the locker room, which allowed him to monitor both areas simultaneously. Unlike cases in which there was a history of dangerous conduct, the Fourth Department concluded that there was nothing in the record that provided defendant or its gym teacher with specific knowledge or notice of previous dangerous circumstances or conduct.

Thanks to Paul Vitale for his contribution to this post and please write to Mike Bono with any questions.

Speculative Cause of Accident Falls Flat (NY)

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In Gani v Avenue R Sephardic Congregation, the plaintiff allegedly fell down an interior staircase in the defendant’s synagogue. The plaintiff filed a lawsuit in Kings County Supreme Court claiming the defendant’s negligence caused the accident and his personal injuries. The defendant moved for summary judgment dismissing the complaint, arguing that the plaintiff was unable to identify the cause of his fall. The Supreme Court granted the motion and the plaintiff appealed.

The Appellate Division’s decision recapped the law as it applies to real property landowners: “In a premises liability case, a defendant real property owner, or a party in possession or control of real property, who moves for summary judgment can establish its prima facie entitlement to judgment as a matter of law by showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence.”

However, the Court noted that there is another way to establish summary judgment: “a defendant can also establish its prima facie entitlement to judgment as a matter of law in a premises liability case by showing that the plaintiff cannot identify the cause of his or her accident.” This inability to identify the cause of the fall is fatal because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation.

The Appellate Division’s decision relied upon the plaintiff’s deposition testimony, which established that the plaintiff was unable to identify the cause of his fall. As such, the Appellate Division upheld the summary judgment finding of the trial court.

Thanks to George Parpas for his contribution to this post and please write to Mike Bono with any questions.

WCM Obtains Summary Judgment Dismissal in NJ Slip and Fall.

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Partner Paul Clark and associate Michael Noblett obtained a dismissal on summary judgment for Wells Fargo Bank. In Howard Stewart v. The Madison at Ewing Condo Association, plaintiff was injured after slipping on ice on the exterior balcony of a condo unit. The ice formed due to water leaking down from burst pipes which were in the unit above. That unit was owned by two individuals who had vacated and abandoned it. Those individuals had borrowed money from Wells Fargo to purchase their unit before they vacated it.

Both plaintiff and the homeowner association argued that Wells Fargo, as the mortgage loan lender, was liable because it knew the unit was vacant, but failed to enter the unit to winterize it. In our motion for summary judgment, we used case law dating back to 1941 to argue that Wells Fargo owed no duty to the plaintiff or the homeowner association where it did not manage or control the unit. Our argument was successful and the judge dismissed the case.

For more information about this post please e-mail Paul Clark.

WCM Partner Speaks to Academy of Experts in London.

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On March 14, 2018, WCM Partner Bob Cosgrove spoke to The Academy of Experts at Gray’s Inn, Inns of Court, London, UK. His presentation was entitled “I’m a Bit of an Expert: The Use of Experts in US Litigation.” The seminar explained the differences between US and UK approaches on experts and how that impacts the ultimate outcomes of litigation.

For more information about this post please e-mail Bob Cosgrove.

WCM Partner Speaks to Insurance Institute of London.

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On March 13, 2018, WCM Partner Bob Cosgrove spoke to the Insurance Institute of London in the Old Library at the Lloyd’s of London building. His presentation was entitled “Lost in Translation: Claims Handling in UK and USA Jurisdictions.” The seminar explored how language reflects culture which helps to explain why insurance claims are handled differently in the US as opposed to at Lloyd’s.
For more information about this post please e-mail Bob Cosgrove.

WCM Obtains Favorable Result in Queens, NY Labor Law Trial.

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Partner Bob Cosgrove obtained a favorable result in a Queens, NY Labor Law trial. In the case of Carlos Garcia v. Mark Boccia, et al., the plaintiff was a contractor who was injured while working on renovations at the defendants’ summer home. Specifically, Garcia fell from a roof and suffered burst fractures that rendered him unable to ever again work. To get around the restrictions of NY’s Labor Law single-family homeowner exception, Garcia claimed that Boccia told him that he planned to rent the house out. During trial, we were able to bring the plaintiff’s credibility into serious question and also present collateral evidence (including defendant wedding pictures) that on the date of the accident, the defendants intended to live there (and not use it for any commercial purposes).

Before the trial before Judge Esposito began, plaintiff made a demand of $4,400,000. Right before summation on the liability phase of the trial, the case settled for $100,000.

For more information about this post please e-mail Bob Cosgrove.

Settlement with Insurer Not a Basis for Dismissal of Claims Against Brokers

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In Prime Alliance Group Ltd v Affiliated FM Insurance Company, the insured, was the owner of a mixed use condominium and retail property in Manhattan.  The Property suffered significant flood damage during Superstorm Sandy in October 2012, and a claim (for upwards of $30M) was made to Affiliated.  Following Affiliated disclaimer of coverage for the property damage (the bulk of the claim), Prime Alliance sued alleging claims of breach of contract, bad faith and estoppel as against Affiliated, and claims of negligence and breach of contract against their retail insurance broker, Praxis, and claims of negligence against HUB, the wholesale insurance broker.  The claims asserted against HUB and Praxis were premised on the brokers’ alleged failure to procure adequate and requested insurance coverage.

Praxis and HUB moved to dismiss on the basis that a settlement reached between Prime Alliance and Affiliated mooted the separate claims against the broker defendants.  The lower court granted the motion since the insurer that settled with the Plaintiff and was no longer a party to the action, “and Affiliated is the only party which could (or would) raise a defense that the contract did not provide the flood coverage at issue, there can be no finding in this case contrary to plaintiff’s claim that the disputed coverage did in fact exist.  Thus, there can be no finding that Praxis [or HUB] was responsible for a lack of coverage.”

The Appellate Court disagreed, finding that Affiliated’s settlement with plaintiff left the question of the validity of its disclaimer entirely undecided, and provided no basis for the motions to dismiss and for summary judgment filed by the broker defendants.  Putting a fine point on the matter, the Appellate Division specifically stated that the decisions granting both the Praxis and HUB motions were based “on the incorrect premise that the plaintiffs’ settlement with Affiliated precluded the plaintiffs from pursuing their causes of action to recover damages for failure to procure insurance.”

The matter was to be reinstated in the New York Supreme Court for adjudication.  In the short term, this decision provides a sound argument to rebut an argument that a plaintiff’s settlement with their insurer effectively moots any claims for negligence asserted against brokers.

Thanks to Vivian Turetsky for her contribution to this post.