Plaintiff’s Suit against Golf Course Not Up to Par (NJ)

Plaintiff, a New Jersey resident, visited Greenbrier golf course in West Virginia after seeing advertisements during golf events broadcast on national network television  and in nationally circulated golf magazines. While staying at Greenbrier, plaintiff slipped and fell on the golf course, suffering significant injuries. He treated for his injuries in New Jersey and New York City.

Plaintiff sued Greenbrier in New Jersey, and Greenbrier subsequently moved to dismiss based on lack of jurisdiction. During discovery, Greenbrier asserted it had no direct advertisements on any New Jersey television stations or in any New Jersey magazines. Its advertisements were limited to nationally televised media sources, national golf magazines, and social media pages. Greenbrier’s only direct contact with New Jersey was through letters and e-mails sent to New Jersey residents who had previously stayed at Greenbrier.

Following discovery exchange, Greenbrier renewed its motion to dismiss for lack of jurisdiction in New Jersey. The trial court, upon reviewing Greenbrier’s position, granted the motion and dismissed plaintiff’s claim because Greenbrier did not have any direct contact with New Jersey, and there was no evidence of the minimum contacts required from Greenbrier to permit New Jersey Courts to exercise jurisdiction over the golf course located in West Virginia.

Plaintiff filed a motion for reconsideration, arguing general jurisdiction, rather than specific jurisdiction, permitted their claims against Greenbrier in New Jersey courts. Even with the change in plaintiff’s legal position, Delgatto v. Greenbrier that general jurisdiction required systematic and continuous activity in New Jersey, and plaintiff failed to demonstrate such activity.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

A Potential (and Rare) Loss for a New England Patriot

New England Patriots defensive end, Deatrich Wise, Jr., filed suit against Lloyd’s of London for breach of his policy, which was designed to protect him from any loss of value in his capacity as an up-and-coming professional football player. Wise is claiming he is owed $600,000 after missing time due to injuries sustained on the field.

Lloyd’s contends that Wise Jr. never missed any full games, therefore, he is not eligible for coverage.  The basis for Wise’s claim is that due to the games he missed in his final season of college, as a result of hand and shoulder injuries, he signed a $3 million dollar contract with Patriots — substantially less then he would have made if he had not been injured in his final season in college.

Wise claims Lloyd’s is obligated to make up the difference between the $3 million and the $3.6 million trigger line in the policy.

Lloyd’s moved for summary judgment claiming that Wise misinterpreted the policy to account for how many plays he missed in his final college season. Lloyd’s claims that the amount of plays Wise Jr. missed is of no moment as the policy is only triggered by missed games and Wise Jr. did not miss a single game in his final season in college.  Wise Jr’s attorney stated that Wise missed 312 defensive plays during the season, a sum he asserted amounts to “5.2 games.”

Lloyd’s policy requires that the insured “be unable to participate for at least 28 days and in three regular and/or postseason games” to be eligible for coverage. Therefore, Lloyd’s claims that Wise Jr. did not satisfy the requirements under the policy, therefore Lloyd’s did not breach the contract.

The suit alleges that Wise Jr’s pre-season accolades projected him to be a first round draft pick and due to the injuries he dropped out of the first round to fourth round and lost a significant amount of money.  We suspect Wise Jr. has an uphill battle to survive a motion to dismiss.   Perhaps he can take solace in his championship ring for SB LIII.   Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

 

Plaintiff’s Death, before his Deposition, also Fatal to His Estate’s Cause of Action (NY)

The death of a plaintiff can be devastating to that decedent’s cause of action — especially where the decedent dies before being deposed, as in Thompson-Shepard v. Lido Hall Condominiums.  This 2019 First Department decision granted defendant’s motion for summary judgment because there was no way for the cause of plaintiff’s un-witnessed accident to be surmised.

Decedent was allegedly injured when he fell on the stairs at defendant’s premises.  His pre-deposition death, unrelated to the unwitnessed fall, precluded plaintiff’s estate from asserting a conclusive the cause of the accident.

Plaintiff attempted to remedy this defect by submitting an expert affidavit claiming that the irregular and excessive riser heights coupled with plaintiff’s testimony that she saw decedent’s leg lodged in a riser showed that the defective riser heights caused decedent’s accident.  The court found that the expert failed to raise an issue of fact as there was no witness to link the claimed defect to decedent’s accident as there was no sworn statement or testimony by decedent claiming he fell due to riser height.

It is crucial to remember in trip and fall cases that a plaintiff’s cause of action hinges on the cause of the accident.  When plaintiffs are unable to conclusively determine what caused them to fall, there is no way for defendants to be on notice.  As a practice point, locking in inconclusive testimony as to proximate cause is fatal to a plaintiff’s negligence action.   Thanks to Mehreen Hayat for her contribution to this post.  Please email Brian Gibbons with any questions.

Forman Decision Cited by First Department in Allowing Defendant’s Expert Access to Plaintiff’s Social Media (NY)

Last year, Wade Clark Mulcahy won a significant victory, both for our client and for the defense bar in general, in Forman v. Henkin In a unanimous reversal of the underlying First Department decision, the Court of Appeals held that a plaintiff’s social media posts are discoverable, so long as the defendant demonstrates some need for the materials therein.  The Court of Appeals held that social media relevancy trumps privacy interests, which thereby created new law in New York, and a new means for defendants to gauge plaintiffs’ damages claims.

Since the Forman decision in February 2018, we have been keeping tabs on how the various appellate divisions have been applying the new law.   Last week, the First Department not only followed Forman, but actually broadened a defendant’s rights, in Vasquez-Santos v Mathew.  The plaintiff in that case claimed an injury, and defense counsel became aware of photos of plaintiff playing basketball, which were posted on social media after the accident.  Plaintiff testified that even though the photos were posted after the accident, they had actually been taken before the accident, and therefore, were not relevant to damages.

Defense counsel wasn’t buying plaintiff’s account, and although counsel’s motion to compel was denied at the trial level, the First Department wasn’t buying it either.  The First. Department unanimously reversed the trial court, citing cited Forman in its decision.   The Court took the additional step of granting defendant access, through a third-party data-mining company, to plaintiff’s devices, email accounts, and social media accounts, to assist in defendant’s damages evaluation.

The fact that Forman is being followed and even broadened — particularly by the First Department — is welcome news for the defense bar, and illustrates the significance of WCM’s victory at the Court of Appeals last year.  Please call Mike Bono or Brian Gibbons with any questions about the Forman decision, and its impact on personal injury litigation.

Insurer Burned by Duty to Defend Following Gasoline Fire (PA)

The Pennsylvania Superior Court recently reversed a trial court’s granting of summary judgment in favor of an insurer in a declaratory judgment action and ruled that coverage was owed to an insured following a fire at a vehicle dismantling facility in Harrisburg.  In Tuscarora Wayne Ins. Co. v. Hebron, Inc., 2018 PA Super 270; No. 1591 MDA 2017, the court ruled in favor of the insured, Hebron, following Hebron’s appeal of summary judgment.

The underlying declaratory judgment action involved Hebron, a named insured on a commercial liability policy issued by TWIC.  Hebron dismantles and strips vehicles of their parts at a facility in Harrisburg, PA.  In May 2014, a fire broke out at Hebron’s facility when an employee was attempting to add fuel to a company truck that hauled broken down vehicles to Hebron’s plant, causing damage to Hebron’s facility.  The TWIC policy included an endorsement that excluded coverage for designated ongoing operations, including “vehicle dismantling.”  “Vehicle dismantling” was not defined in the policy.  TWIC filed a DJ action seeking a determination that coverage.  TWIC moved for summary judgment based on the exclusion, which Hebron opposed and also filed its own motion for summary judgment contenting that the plain language of the exclusion did not relieve TWIC of its coverage obligation.  The trial court granted TWIC’s motion for summary judgment and declared that defense and indemnity were not owed based on the “vehicle dismantling” exclusion because the refueling of a truck used to transport vehicles to Hebron’s facility to be dismantled was “incidental to the vehicle dismantling business.”  Hebron appealed and argued that the trial court committed errors of law in awarding summary judgment in favor of TWIC.

In its opinion regarding Hebron’s appeal, the court noted that, in Pennsylvania, courts will give effect to the plain language of a contract if the policy’s language is clear and unambiguous.  If, however, the language of the policy is ambiguous, the provisions must be construed in favor of the insured against the insurer and when an insurer bases a denial of coverage on a policy exclusion, the insurer bears the burden of establishing the exclusion’s application.  The Superior Court, viewing the facts in the light most favorable to Hebron (the non-moving party), also opined that the fire was not caused by the vehicle dismantling process itself, but rather it arose as a result of a faulty extension cord connected to a pump that sparked while Hebron’s own vehicle was being refueled.  Hebron was not actually dismantling a vehicle at the time of the fire and the dismantling process had already ended for the day, therefore the refueling of the truck was not “incidental to the vehicle dismantling business.”

Thus, the Superior Court concluded that the trial court had committed an error of law and reversed the granting of TWIC’s motion for summary judgment.  The Superior Court went even further and also concluded that, because fire did not occur in the course of the vehicle dismantling process, the exclusion did not apply, and Hebron was entitled to defense and indemnity under the policy.  The court then granted Hebron’s motion for summary judgment declaring that TWIC was required to defend and indemnify Hebron under the policy.

This case illustrates the importance of clearly and unambiguously defining operative terms in commercial liability policies in order to avoid potentially adverse interpretations of exclusion language.  Moreover, we suspect Hebron retained a solid cause and origin expert to make the cause of the fire clear to the Court, and prompt coverage.   Excellent foresight.  Thanks to Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.

Insurer Attempts to “Sack” Coverage of Trademark Suit based on “Financial Quarterback” Term (PA)

Erie Insurance Exchange filed a complaint Monday alleging that it has no duty to defend or indemnify a financial planning company facing claims in federal court for willfully infringing a rival’s marketing slogan trademarks. According to Erie, their policy explicitly precludes coverage for claims of infringement of copyright, patent, trademark or trade secret. Jalinski Advisory Group, Inc. has been marketing itself as “the financial quarterback” since 2009, and it formally registered “financial quarterback” as a trademark in April 2010.

However, Franklin Retirement, Erie’s insured, started to brand itself as “your financial quarterback,” which Jalinski alleges is indirect violation of the trademarks. Erie agreed to represent Franklin under a reservation of its rights; however, Erie ultimately denied coverage.  Now, Erie seeks a Pennsylvania state judge to free it from providing coverage.

With regard to trademark litigation, it’s all about the litigation fees, since defense of trademark infringement is very fact-specific, time-consuming, and expensive.  (Dennis Wade’s “This and That” from January 4, 2019 also focused on trademark litigation, and the ensuing expense.)

Does use of the term “Your Financial Quarterback” constitute copyright infringement?   The only certainty is that the answer to the question will be expensive.   Thanks to Melisa Buchowiec for her contribution to this post.  Please email Brian Gibbons with any questions.

Police Escort in Funeral Procession Does Not Trigger “Emergency Doctrine” Defense (NY)

In State Farm v. County of Nassau, State Farm sought recovery for property damage as part of a subrogation claim, where its insured driver, Licata was driving when he came to a full stop at a “T” intersection. There was bumper to bumper traffic on both his right and left due to a funeral procession. After looking in both directions he started to make a left hand turn. During his turn, he was struck by a police car. Mr. Licata said that the police car did not have its siren or lights on. The police officer contradicted this account. He stated that he had his lights and sirens on because he was proceeding from the back of the funeral line to the front to help escort the vehicles through the intersection.

The court was presented with the question of whether the negligence or reckless disregard standard applied. The court held that no emergency existed when the police officer was escorting the funeral procession. Therefore, the ordinary negligence standard applied. The court noted that the police officers testimony was extremely credible and that they believed him when he said he had his siren and lights on prior to the impact. Unfortunately, for him it did not matter.

The takeaway from this case is a simple one. Not every time an officer has his or her lights and sirens on will it automatically be considered an emergency situation. It is going to depend on the specific facts and circumstances of the occurrence. Here, the court made it clear, a police officer escorting a funeral procession is not considered an emergency.

This case also has a thorough and interesting analysis pertaining to issues of law (applicability of emergency doctrine) and issues of fact (apportionment of fault.)   Thanks to Marc Schauer for his contribution to this post.  Please email Brian Gibbons with any questions.

NY Investment Firm Entitled to Entity Defense Costs for Lawsuits and SEC Investigations (DE)

A Delaware Court held that New York Investment Firm AR Capital LLC and Phoenix-based Vereit Inc., were entitled to entity defense costs in connection with lawsuits and U.S. Securities and Exchange Commission investigations.

This litigation, AR Capital v XL,  stems from an agreement between AR Capital LLC and Phoenix-based Vereit, Inc., a real estate operating company, according to Wednesday’s ruling by the Delaware Superior Court in Wilmington.

In 2014, an audit committee began a investigating reporting irregularities, and an SEC investigation followed.  Subsequently, shareholders filed a lawsuit which resulted in a class-action and seven opt-out actions. In turn, AR Capital retained two law firms to defend its interest and approximately 14.5 million in defense costs were incurred.

Primary and Excess insurance coverage through XL insurance was purchased by Vereit and the term was from February 2014 through February 2015. Vereit’s primary insurer, provided $10 million in coverage and seven excess insurers provided another $70 million in coverage. AR capital was an additional insured under the policies.

XL insurance began providing coverage on behalf of 6 of AR Capital’s officers and directors, however, it denied coverage to the corporate entity.  AR Capital ended up filing suit against all the insurers and requested indemnification from Vereit.   AR Capital subsequently settled with XL and Beazley Insurance Co., which insured the first excess layer.

All the parties involved in the litigation came to an agreement that AR Capital may be entitled to partial coverage, however, there were disagreements  as to the entity coverage.

Finally, the court held AR was entitled to entity coverage based on policy language. AR Capital is to be paid for their claims up to the same amount Vereit has already been paid by the excess insurers. Thereafter, AR Capital and Vereit shall be paid defense costs as they are incurred and submitted (first in, first out.) said the ruling.  Some well-reasoned policy interpretation in the attached case.

Thanks to Jon Avolio for his contribution to this post.  Please email Brian Gibbons with any questions.

Cost-Effective ADR — Brought About by a Not-So Cost-Effective Appeal (PA)

On January 4, 2019, the Superior Court of Pennsylvania vacated a May 23, 2017 ruling in the Court of Common Pleas of Fayette County that overruled the preliminary objections of Golden Gate National Senior Care, LLC.  Those preliminary objections sought to compel arbitration.

At the trial court level, Golden Gate sought to enforce a compulsory ADR agreement signed by Mildred Snyder’s husband, Donald Snyder, upon Mrs. Snyder’s admission to the Golden Gate National Senior Care facility in 2006.  However, the trial court overruled their preliminary objections arguing there was no meeting of the minds as to the ADR agreement, Mr. Snyder lacked the authority to execute the agreement, and the agreement lacked consideration and was unconscionable.

The Superior Court quickly determined that lower court abused its discretion in overruling Golden Gate’s preliminary objections.  However, the Court first had to determine if it had authority to hear appeal of the interlocutory order.  In Pennsylvania, an appeal may be taken from a court order denying an application to compel arbitration made under 42 Pa.C.S.A. 7304.  The Pa. Supreme Court in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016) heard an appeal regarding the enforceability of an ADR provision similar to the provision in the present case.  Therefore, the Court ruled it could move forward with reviewing the interlocutory order.

Once the court overcame that procedural hurdle, the court quickly disposed of the arguments that the trial court made in declining to enforce the ADR provision as the lower court failed to provide sufficient justification for its actions.

Although Golden Gate prevailed on appeal, their frustration at the added expense of motion and appellate practice would be understandable, in light of the clear binding ADR language in the agreement.  Thanks to Garrett Gitler for his contribution to this post.  Please email Brian Gibbons with any questions.

Howdya Like Them Apples? (NY)

What’s worse than finding a worm in your apple?  Finding half a worm in your apple.  (Wait for laughter.)

Speaking of apples, apple-picking has become a common autumn activity, when orchards convince people to pick their own apples while taking in the ambiance.  But legal principles still obviously apply to orchard-owners and invitees.

A landowner’s duty to maintain property does not include warning or protecting from “open and obvious” conditions that are not inherently dangerous. In the event that there is a concealed or dangerous condition, the landowner then is required to warn of that condition.

Recently, the First Department extended the scope of open and obvious and inherently dangerous in its decision on Mangiafridda v. Masker Fruit Farms, Inc., App. Division 1st Dept. (Jan. 3, 2019)(not yet reported). In Mangiafridda, plaintiff was apple picking at defendants apple orchard when she tripped and fell due to a sloped and rocky roadway on the premises. The defendant moved for summary judgment arguing that the condition of the roadway was open and obvious, inherent in the nature of an apple orchard and that plaintiff could have reasonably anticipated that the roadway would not be smooth.

The lower Court granted the defendants motion and the Appellate Division affirmed. The Court found that not only was the roadway open and obvious but the defendant also posted warning signs regarding the sloped and rocky roadway. The Court found that the defendants did not have a duty to warn or protect of the condition, but even if they did, they met that duty by posting warning signs.

This decision diverges from the typical caselaw on this topic in that the Court found that the condition was “inherent to an apple orchard” not that it was “not inherently dangerous” which the typical standard is when assessing a property owner’s duty as it pertains to an open and obvious condition. This distinction, while slight, opens the door for defendants to argue that a condition is not dangerous if it is one that is “inherent to the location” of the accident and could have been anticipated to be present by the plaintiff. This distinction could be helpful to defendants where accidents occur due to inherent conditions or in typically dangerous circumstances.

Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.