Expert Opinion Not Worth Bus Fare (NY)

In Salas v. Adirondack Transit Lines, Inc., a personal injury action, plaintiff sued the defendant bus company claiming they breached their duty to provide her with a safe place to disembark from their bus. The Second Department affirmed summary judgment in favor of the bus company and in doing so utterly rejected plaintiff’s expert affidavit submitted in opposition to the underlying motion.

Plaintiff’s expert claimed there is a standard operating procedure in the bus industry where the bus driver offers assistance and warnings to customers when they are boarding or alighting the bus. The Second Department rejected the expert’s affidavit, however, observing he didn’t establish a sufficient foundation to show such an industry standard or practice in fact existed, nor did they cite a regulation or statute the defendant violated to cause the accident.

Litigants can retain an expert to support almost any position for almost any issue, however, often the mere existence of an opposing expert report or affidavit is enough for a defendant to abandon their hopes of winning on summary judgment. While it’s true that courts are reluctant to break ties in Battles of Experts at the summary judgment phase, defendants should not abandon good motions in the face of an opposing expert opinion.

Rather, as Salas shows, a defendant can prevail outright even if plaintiff hires an expert in an attempt to defeat the motion if the expert does not provide a sufficient basis for their opinion—and if a defendant properly attacks that opinion on reply.

Thank you to Nicholas Schaefer for his contribution to this post. Please email Vito A. Pinto with any questions.

Even Great Facts Can Lead to Appellate Practice, or, There’s No Such Thing as a Slam Dunk (NY)

In Young v Associated Blind Hous Dev. Fund Corp., plaintiff sued for personal injuries following a trip and fall on a defective sidewalk. Plaintiff claimed that a sidewalk shed narrowed the plaintiff’s path and led her straight into a sidewalk defect. The subject of the appeal was the duty of a contractor related to a construction site.

Procida Construction contracted with the owner to repair the sidewalk. Notably, their contractual duties did not arise until after the construction project was completed and the sidewalk bridge was removed.

Procida was denied summary judgment in Bronx County Supreme Court despite irrefutable evidence that the sidewalk bridge was in place on the date of accident. Indeed, its placement formed the very basis of plaintiff’s claims against the scaffolding company. Moreover, the plaintiff testified that she could not see the sidewalk where she was walking, due to a visual impairment and because a pizza box she was holding obstructed her view. Notwithstanding, Procida’s motion for summary judgment was denied, even though it had no duty to repair the sidewalk until after the sidewalk shed was removed and despite plaintiff’s admitted visual impairments.

The Appellate Division, First Department reversed this egregious decision by finding that Procida showed that it was only contracted to make repairs to the sidewalk after exterior scaffolding and a sidewalk shed were removed upon completion of the renovation project. In opposition, neither plaintiff nor the other defendants raised a triable issue of fact as to whether the subject sidewalk was narrowed, forcing plaintiff to walk onto the defect. The court found that the record was bereft of evidence that the scaffolding and sidewalk shed diverted her toward the uneven sidewalk flag.

What would seem like a great set of facts for the defendant still resulted in a denial of summary judgment in the Bronx. But these actions present several opportunities for victory and counsel must be tenacious and stay the course and pursue every opportunity to win, at all times, even when the case takes an unexpected turn. And on occasion, the opportunity is a result of appellate practice.

Thanks to Vincent Terrasi for his contribution to this post. Please email Vito A. Pinto with any questions.

Clarification of Established Law Stacks Results in Favor of Policyholders (PA)

This blog post is a follow-up to the February 5, 2019 post on the Gallagher decision. What happens when an insured plaintiff wants to be able to retroactively apply a clarification that has come out of a recent decision? That is the question under discussion in the Eastern District of Pennsylvania case, Butta v. GEICO Casualty Co.. This case is an extension of the recent decision, Gallagher v. GEICO Indemnity Co., where the Pennsylvania Supreme Court decided that the “household exclusion” clause in vehicle insurance policies within the same household was a violation of the state’s Motor Vehicle Financial Responsibility Law (MVFRL), which was enacted in 1990.

In this case, the court discusses how the Gallagher decision has changed how stacking of vehicle insurance policies can be applied across different members of one household. Under § 1738 of the MVFRL, after paying a higher premium, members of the same household who have the same insured can stack their uninsured/underinsured insurance policies, so that if one member is in an accident, the coverage of other household members can be counted toward his or her claim. Insured parties can choose to waive this stacking feature. However, as opposed to stacking, some insurance companies have a provision in their policy where members of the same household cannot stack their insurance policies for their individual vehicles unless every vehicle is listed on every policy across the household. Gallagher challenged the “household exclusion” rule as imposing a de facto waiver and the court ultimately ruled that it was a violation of the MVFRL. In Butta, the plaintiff was injured in a motorcycle accident on a motorcycle that had underinsured coverage protection with Geico. The plaintiff lived with his parents who also had underinsured coverage through Geico for their own vehicles but had a “household exclusion” provision in their policies. The issue in this case is whether Gallagher could be applied retroactively since the plaintiff’s insurance claim occurred prior to the Gallagher decision in January 2019.

In order to make that decision, the court went through two analyses. First, it revisited previous court decisions that applied the household exclusion policy and prevented stacking coverage in vehicle accidents. Second, since it was making a decision based on a case that was decided in the Pennsylvania Supreme Court, the court had to address the issue of retroactive application from the perspective of the Pennsylvania Supreme Court. The defendant argued that the Gallagher decision could not be applied retroactively because the decision established a new rule of law. However, the court rejected this argument by stating that Gallagher does not change case precedent, but reflects what the MVFRL intended when it was introduced in 1990. The case does not deliver a new rule, but provides an explanation of what already existed under the statute. Additionally, the court states that the defendant based its arguments on non-precedential opinions, so there is no evidence that Gallagher was not meant to be applied retroactively. As a result, the plaintiff was able to apply Gallagher to his motorcycle accident.

This case is a lesson that sometimes in the law, it takes more discussion and court decisions before the rules are fully understood and before we get to the ultimate point that the legislature intended. Therefore, for certain parties, while it may seem that a rule of law is stacked against you, you may find over time that it actually falls in your favor.

Thanks to Gabrielle Outlaw for her contribution to this post. Please email Vito A. Pinto with any questions.

Updated Broker Liability Statutes in New Jersey, But No Alarming Changes (NJ)

The New Jersey legislature has recently enacted amendments to N.J.S.A.17L22A-26 and N.J.S.A.2AL53A-27, effective May 13, 2019. These amendments involve an update to the Affidavit of Merit Act as well as an update to language relating to insurance producers. As explained below, however, these updates have very little, if any, impact of broker liability in New Jersey.

First, the Affidavit of Merit (AOM) Act, which requires an affidavit of merit stating that in reasonable probability professional performance fell outside an acceptable standard, was slightly altered. As it relates to brokers, the AOM Act now requires that the affiant be licensed in both the current state and have practiced in the field for the five years immediately preceding the date of the occurrence. This is in direct contrast to the requirements for other categories of licensed persons which only requires an affiant to be licensed (in any state) and have practiced for at least five years (without the requirement of those five years immediately preceding the date of the occurrence). Significantly, this amendment only applies to the author of the affidavit and not the professional expert who is actually testifying at trial.

Second, language relating to insurance producers has been updated to include the following:

[A]n insurance producer shall exercise ordinary and reasonable care and skill in renewing, procuring, binding, or placing property and casualty insurance coverage … requested by an insured or prospective insured … [and] this section shall not limit or exempt an insurance producer from liability for negligence … or limit or prevent an insurance producer from asserting any defenses available at common law.

Prior to this amendment, broker liability standards were set by Aden v. Fortsch, 169 N.J. 64 (2001). Under Aden, the insurance brokers owe a duty or obligation to have and to use a degree of skill and knowledge which insurance brokers of ordinary ability and skill possess and exercise in the representation of a client. This standard should be used to judge insurance brokers in their placement and advise as to insurance policies.

N.J.S.A.2AL53A-27 also stated that if the conduct upon which the cause of action is based involves the wrongful retention or misappropriation of any money that was received by the insurance producer as a premium deposition or as a payment of a claim, that insurance producer is liable under the standard imposed on fiduciaries. However, the responsibility of a fiduciary standard is not new to insurance producers. Rather, the amendment only restates the known legal obligation of a fiduciary and has no impact on the “ordinary and reasonable care and skill” standard, as expressed in Aden. Specifically, Aden states the following:

That rule [that the conduct of a client in a professional malpractice claim is relevant only if the conduct of said client affirmatively impedes the professional in his or her performance] is premised on the heightened responsibilities of professionals in this State. Otherwise, the fiduciary relationship between the professional and the client may be undermined and professionals may be allowed to escape liability for their malpractice.

As such, the inclusion of a “fiduciary standard” more or less reflects the law already set out in Aden. As a result, upon review of these two amendments, it is clear that no real changes have occurred to broker liability law in New Jersey.

Thank you to Zhanna Dubinsky for her contribution to this post. Please email Vito A. Pinto with any questions.

The Weather Outside is Frightful (NJ)

In Dixon v. HC Equities Associates, LP, the plaintiff tripped and fell on an icy sidewalk while walking to her state-issued car. Although she wore boots and walked cautiously, her feet slipped on at least one inch of snow. At her deposition, she confirmed the snow started after she arrived at work that day and continued until her fall. The plaintiff sued the defendant owner for negligence, arguing HC Equities Associates, LP breached its duty of care in failing to remove snow and ice on the facility’s sidewalk, which proximately caused her injuries.

After the completion of discovery, the defendant owner moved for summary judgment. The argument was simple: there was no breach of a duty of care to the plaintiff because its duty to act in a reasonably prudent manner to remove or reduce the hazard (snow and ice) did not start until a reasonable time after the snow stopped. After oral argument, the trial court agreed that no rational jury could find defendant was negligent because the plaintiff fell during an ongoing snowstorm. Accordingly, the trial court granted summary judgment as a matter of law. The plaintiff appealed, arguing the duty should be expanded.

At common law, residential and commercial property owners did not have a duty to maintain public sidewalks abutting their premises free from snow and ice. Skupienski v. Maly, 27 N.J. 240, 247 (1958). An exception to maintain abutting sidewalks was carved out for commercial landowners in Stewart v. 104 Wallace St., Inc., 87 N.J. 146, 149-50 (1981), which Mirza v. Filmore Corp., 92 N.J. 390, 395 (1983) extended to snow and ice removal. A commercial owner’s responsibility therefore arises only if, after actual or constructive notice, he has not acted in a reasonably prudent manner under the circumstances to remove or reduce the hazard.” Mirza, 92 N.J. at 395.

On appeal, the Appellate Division reaffirmed the long-upheld principle that commercial property owners are not liable for clearing snow during a snowstorm. See Bodine v. Goerke Co., 102 N.J.L. at 642-43 (E. & A. 1926) (holding that a property owner could not be liable for ailing to remove slush or ice from the entrance to a store while the storm was still ongoing). After noting it was undisputed that the snowstorm was ongoing when the plaintiff slipped and fell, the defendant was not obligated to remove snow and ice until the precipitation stopped and it had a reasonable time to remove it. Therefore, the trial court’s grant of summary judgment was affirmed.

Thanks to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.

Holiday Party Goers and Party Hosts Beware (NY)

Social hosts and party rental companies need to be extra cautious in connection with the safety of their premises in order to avoid injuries by festive party goers. In Poliziani v. Culinary Institute of America, the appellate court reversed the order of the lower court which granted summary judgment to the defendant Culinary Institute of America dismissing the plaintiff’s personal injury complaint.

Here, plaintiffs were attending an event hosted by the Culinary Institute of America. After dinner, the plaintiff began dancing on a temporary dance floor. While dancing, the plaintiff fell, after she slipped on the beveled edge between the dance floor and the adjoining rug strikign her her head, injuring her right wrist and losing consciousness. Plaintiff subsequently commenced this action against the defendant and the company that provided the tent rental who also supplied the temporary dance floor. The defendants argued that they were entitled to summary judgment on the grounds that the beveled edge was not defective or hazardous, and constituted a nonactionable “trivial” defect. The Supreme Court granted this motion and the plaintiff now appealled.

The appellate court held that whether a dangerous or defective condition exists on the property of another so as to create an actionable issue of liability depends on the peculiar facts and circumstances of each individual case. A defendant who is seeking dismissal of a complaint on the basis that the alleged defect is trivial must make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect do not increase the risks posed by the equipment. The Court of Appeals held that even a physically small defect may be actionable, like a jagged edge or irregular rough surface, especially in situations where the defect is located where people are distracted from easily observing it (like in this case where people were not expected to look down at their feet). Thus, in reversing the trial court’s order of summary judgment in favor of the defendants, the appellate court concluded that there are triable issues of facts as to whether there was a dangerous condition created even by a small defect. As such, party goers and party hosts should remain diligent, as this case sets a clear warning that even small, relatively insignficant defects can give rise to liability.

Thanks to Nicole Lyalin for her contribution to this post. Please email Vito A. Pinto with any questions.

Slipped not Spoiled – Appellate Division Overturns Spoliation Charge in Slip and Fall Action (NY)

In Sarris v Fairway Group Plainview LLC, plaintiff was allegedly injured when she slipped and fell on ice in a parking lot outside the store operated by defendant.  Her counsel sent a demand to defendant to preserve “any and all video footage depicting the location of my client’s accident” and the Supreme Court ordered them to “preserve such footage of the incident, including the 24 hours preceding same”.

The store had four separate security cameras.  The store’s security manager testified that one camera showed plaintiff’s accident.  Footage from that camera, including the ten hours preceding the accident, were preserved.  The footage from the other cameras was automatically deleted after 30 days, the normal protocol for the cameras.

Plaintiff moved for spoliation of evidence against defendants for deleting the other videos.  The Supreme Court partially granted the motion partially, allowing for a negative inference charge to be given at trial.  The Appellate Division ruled that the Supreme Court improvidently exercised its discretion and overturned the ruling.  The Court held that the defendant was not on notice to preserve the other footage because it was only ordered to preserve the footage of the actual accident.

The case provides a valuable lesson for all litigants.  First, direct your clients to save as much as possible, if not for anything else to avoid unnecessary discovery litigation.  Second, when making requests for discovery, be as specific as you are able to be.  If you want all the security footage a party has, say that, don’t limit it to the accident where it occurred.

Thanks to Christopher Gioia for his contribution to this post. Please email Vito A. Pinto with any questions.

To Redact or Not to Redact? (PA)

In December 2015, Paige Barnard (“Barnard”) was involved in an automobile accident. At the time of the accident, she was insured by Liberty Mutual Insurance Corporation (“Liberty”) under her parents’ auto insurance policy. After receiving first party medical and income loss benefits for some time, Liberty ceased providing the benefits, as it determined, through a peer review organization, that Barnard’s treatment was no longer appropriate, necessary or reasonable.   Consequently, Barnard brought claims for, inter alia, statutory bad faith against Liberty.

After initial discovery was exchanged, Barnard served interrogatories and request for production of documents on Liberty.  After receiving Liberty’s responses, Barnard objected to, inter alia, Liberty’s redactions and privilege log, asserting she was entitled to the entirety of the documents’ contents. Liberty objected to the production of the documents, arguing the information and documents requested were privileged, not relevant to the instant matter, covered by attorney-client and work-product privileges, prepared in anticipation of litigation, and/or outside the scope of Federal Rule of Civil Procedure 26.  Accordingly, in Barnard v Liberty Mutual Insurance Corp., the U.S. District Court for the Middle District of Pennsylvania was tasked with determining whether Barnard was entitled to the requested documents and answers to her interrogatories.   Before making its determination, the Court directed Liberty to produce its documents alleged to contain privileged information to the Court for in camera inspection.

In pertinent part, the Court focused on whether Liberty was required to produce a copy of the peer review section of Liberty’s policy manual, copies of the policies and procedures that govern the way Liberty’s employees handle inquiries, and the entirety of its claim files, including logs and notes.

First, the Court held that Liberty was required to produce the peer review portion of its policy manual and the employee policy or procedures for handling inquiries.  In doing so, the Court explained that Liberty’s methods for handling its peer review process and policy and procedures governing the way Liberty’s employees evaluate inquiries about insurance policies were relevant to Barnard’s bad faith claim, as a departure from established procedure “is probative evidence” for Barnard to demonstrate Liberty acted in bad faith.  Nevertheless, the Court accepted Liberty’s contention that the foregoing documents contained confidential information, such as trade secrets and propriety information – accordingly, the Court ordered Barnard to keep the documents confidential.

Second, in regard to the question of whether Liberty was required to produce the entirety of its claim files, including logs and notes, the Court relied on Federal Rule of Civil Procedure 26(b)(3)(A), which shields from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative (including the other party’s attorney, consultant, surety, indemnitor, insurer, or agent”.   In addition, the Court noted that it is generally accepted in the Third Circuit that insurers cannot reasonably argue that claim files are accumulated in anticipation of litigation, particularly where insurers have a duty to investigate and make decisions with respect to claims by their insureds.  With this foundation, the Court held: (1) Liberty could have reasonably anticipated litigation once it received notice of Barnard’s dissatisfaction with the peer review process; (2) Liberty improperly redacted the claim status reports, as they were not mental impressions, conclusions, opinions, or trial strategies; and (3) Liberty’s claim notes made after Liberty learned of Barnard’s dissatisfaction were properly redacted as work product, but entries made before such notification were improperly redacted since they related to Barnard’s underinsured motorist claim and first-party benefits.

Finally, the Court held that Liberty was permitted to redact its mental impressions, conclusions, reserves, and opinions relating to the value or merit of the claim or defense in its financial documents.  In doing so, the Court reasoned that because Barnard’s bad faith claim focused on the denial of coverage (i.e., Liberty’s review process was biased and unfair) – as opposed to the value of the claim or Barnard’s estimate of liability – Liberty was not required to produce unredacted versions of its financial documents, such as information related to its reserves.

In sum, this discovery ruling illuminates the distinction between discoverable and non-discoverable information in the context of statutory bad faith claims against insurers.

Thanks to Lauren Berenbaum for her contribution to this post. Please email Vito A. Pinto with any questions.

Unlisted Vehicle Does Not Require Underinsured Policy Coverage (NJ)

The Appellate Division, in Katchen v. Government Employees Insurance Co., re-affirmed the need for clients to be proactive with personal insurance policies and attorneys to thoroughly review all client and carrier documentation at the start of every suit. In Katchen, the plaintiff filed for underinsured motorist benefits after being injured in a 2015 motorcycle accident with an underinsured driver whose policy had a 25,000 policy limit. Litigation ensued after GEICO denied coverage.

GEICO’s argument was clear: although Katchen owned and operated the motorcycle at the time of the incident, it was not specifically listed on his insurance policy. Since exclusions in the body of the policy specifically excluded underinsured motorist coverage involving a motor vehicle “owned by an insured and not described in the declarations,” GEICO argued the policy had a clear and easily understood exclusion that applied to the facts of the case.

Katchen cunningly countered by directing the court’s attention to the declarations page, which stated GEICO would “pay damages for bodily injury and property damage caused by an accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle arising out of the ownership, maintenance, or use of that vehicle.” Since the declarations page did not list any exclusions, according to Katchen, the insurance coverage followed the insured individual rather than the vehicle.

The majority of a split Appellate Division panel sided with GEICO, concluding the policy language, rather than the declaration page, controlled. According to the court, “the fact that the [vehicle] exclusion is not mentioned on the declaration sheet does not bar its enforcement,” as it does not automatically render the policy ambiguous. To rule differently, as the trial court did, would “eviscerate the rule that a clause should be read in the context of the entire policy” and needlessly complicate already-complex policies.

Judge Karen Suter’s strong dissent, arguing that coverage follows an insured rather than a vehicle identified in the policy, may offer a glimpse into how future courts may interpret similar exclusions when confronted with similar facts. Since the case was a published decision, however, it carries a weight that will hopefully influence other courts interpreting similar exclusions in other policies.

Thank you to Brent Bouma for his contribution to this post. Please email Vito A. Pinto with any questions.


Wade Clark Mulcahy’s New Jersey office led the way in Union County in participating in the annual Vincent J. Apruzzese High School Mock Trial Program which is sponsored by the New Jersey Bar Foundation.  The Mock Trial Program provides high school students in the state of New Jersey with an opportunity to develop their advocacy skills and to experience what it is really like to be a trial lawyer.  Teams are comprised of five individuals from each participating high school.  Two students act as attorneys while three students act as fact and expert witnesses.

Trials are conducted before experienced litigators who act as judges along with a student-comprised jury and often last three hours.  In order to make the experience more realistic, the trials are conducted in actual courtrooms in the Union County Courthouse so students are able to feel what is like to try a case in a courtroom.  The final round in the County is judged by a panel of sitting New Jersey Superior Court Law Division judges.  The ultimate champion from each County then participates in a statewide contest with the winner of the statewide contest then proceeding to the national competition to compete against winners from the other 49 states and the District of Columbia.

WCM’s New Jersey office had four of its attorneys participating as judges (Paul Clark, Tony Pinto, Mike Noblett and Brent Bouma) and was recognized by the state Bar Foundation for having the largest contingency of volunteer judges than any other firm in the County.   In their role as judges, WCM attorneys not only adjudicated the trial but also provided detailed feedback to the teams regarding their performances and provided our own insight into actual trials.  In other years, WCM attorneys have also participated in the program as team coaches for high schools, volunteering our time to meet with competing teams twice a week to assist with preparing the teams for their competition.  We were happy to participate in this worthy cause as a way to give back to our local community and to share our zeal and enthusiasm for trial advocacy.