Associate Gabriel Darwick obtained summary judgment in a Kings County Labor Law suit. In Calciano v. 343 LLC, the plaintiff, an employee of our client, JM3 Construction, tripped and fell on a battery while attempting to walk down a staircase at a construction site. JM3, a carpentry subcontractor, was one of many contractors working at the building at the time of the accident.

The plaintiff sued the owner and general contractor, asserting violations of the Labor Law. The owner and general contractor, in turn, sued JM3, seeking contractual indemnification under the broad terms of the indemnity agreement in JM3’s contract with the general contractor.

We moved to dismiss the third-party complaint on the basis that the plaintiff’s accident did not “arise out of” JM3’s work. We argued that the general contractor could not trigger the indemnity provision because there was no causal relationship between JM3’s work and the accident. We pointed to the facts that: (a) JM3 was not working in the stairwell at the time of the accident, (b) the battery could have come from any one of the numerous subcontractors on the site, and (c) plaintiff, who was on the way to the bathroom at the time of the accident, was not performing any work when it occurred. The court agreed with our analysis and granted JM3 summary judgment.

Partner Robert J. Cosgrove and associate Colleen E. Hayes were awarded summary judgment in a Berks County, PA coverage dispute.  In the case of Kelly v. Nautilus Insurance Company, et al., the plaintiff, the administratrix of the estate of Justin Kelly, initiated a coverage and error and omissions lawsuit arising out of Justin Kelly’s fatal on-the-job accident.  At the time of the accident, Kelly was working as an independent contractor for the insured of our client, Nautilus Insurance Company (“Nautilus”).  When confronted with the claim, Nautilus disclaimed coverage on the basis of its broad employee exclusion that defined as “employees” individuals who were not on the direct payroll of the insured.  In light of the absence of coverage, to settle the underlying wrongful death action, the insured agreed to a $1,000,000 consent judgment (which was approved by the court) and assigned his rights against Nautilus and the insurance broker to Kelly’s estate.  Thereafter, Kelly’s estate initiated a declaratory judgment and errors and omissions lawsuit against Nautilus and claimed that the employee exclusion was overbroad and illusory and thus unenforceable as a matter of law.

At the close of discovery, we moved for summary judgment and argued that Nautilus’s broad employee exclusion was clear and unambiguous and thus should be applied to the facts of the case.  The trial court agreed with our analysis and dismissed all claims against Nautilus.  The case against the broker continues.

Partner Bob Cosgrove and associate Remy Cahn obtained a defense verdict in the case of Anthony Tosco, et al. v. Helen Kohler, et al., PA Court of Common Pleas, Lehigh County.  In the case, Tosco, a real estate developer, alleged that the historical farming practices employed by Kohler and her farming tenant Houstin Lichtenwalner had unreasonably and unnaturally diverted and increased the flow of water onto Tosco’s commercial property and thereby caused almost $300,000 in property damage.  At trial, we challenged the plaintiffs’ contentions and argued that the employed farming practices had not, in fact, changed the natural water patterns.  In a 10-2 decision, the jury agreed with our version of events and found in favor of our client.

Associate Lora H. Gleicher was awarded summary judgment in a Kings County, NY motor vehicle collision case. In the case of Delvalle v. Mercedes Benz, et al., the plaintiff, an employee of our client, King Freeze, allegedly sustained injuries when he was involved in a four-car, chain reaction motor vehicle accident. Our client was dragged into the case by the joinder defendant Mercedes Benz that argued that it was entitled to contribution and indemnification.

Prior to the close of discovery, we moved for summary judgment dismissing all claims against our client on the basis that, because Delvalle was a King Freeze employee who was acting within the scope of his employment when the accident occurred, NY’s Workers’ Compensation law barred claims for contrubution and common law indemnity unless a “grave injury” was involved (which was not the case here).

The trial court agreed with our analysis and dismissed Mercedes Benz’s claims.

Associate Lora H. Gleicher obtained a defense verdict in a Queens County, NY jury trial. In Brazile v. Pioneer Cleaning Maintenance Services, et al., the plaintiff allegedly slipped and fell as she was stepping over an eight-inch pile of snow on a sidewalk outside of The Bristal Assisted Living Center. Plaintiff claimed that our client, Executive Snow, negligently plowed snow from the parking lot onto the sidewalk and thereby caused the allegedly hazardous condition that caused the fall.

At trial, we focused on the accuracy of plaintiff’s version of the accident.  We capitalized on plaintiff’s testimony that she did not personally observe a snowplow pushing snow onto the sidewalk where she fell, but rather assumed this must have happened.  We also focused on the fact that plaintiff’s testimony was that the snow pile was eight inches high, when weather records only evidenced a ½ inch of snow on the day in question.

We further argued that that there was no evidence that our client had negligently performed its work.  In this regard, we emphasized that The Bristal Assisted Living Center had signed off on our client’s work as satisfactory after it was completed.

After getting the case, a Queens jury deliberated for a little over an hour.  The jury agreed with our theory of the case and granted us a defense verdict.

WCM is pleased to announce that, effective March 1, 2013, Cheryl D. Fuchs will be a Partner in WCM’s New York Office.

Ms. Fuchs joined WCM in 2005 after graduating law school.  Her practice focuses on the defense of N.Y. Labor Law, construction and premises liability cases as well as offering coverage across the spectrum of commercial general liability insurance policies.