Category Archives: New Jersey

Vacant Two-Family Home not “Commercial” for Purposes of NJ Sidewalk Liability

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In Vega v. Muthapandi, plaintiff alleged to have fallen due to snow on a sidewalk abutting a two-family house.  The defendant had recently purchased that two-family house which was vacant at the time of purchase.  The defendant was not residing in the house at the time of the fall, but neither was he renting out any portion of it.  The roof had also collapsed before plaintiff’s accident rendering the house uninhabitable.

The defendant moved for summary judgment, arguing that the house was not commercial.  In New Jersey, only “commercial” property owners are liable for failing to maintain an adjacent sidewalk.  The trial court agreed with the defendant and dismissed the complaint.

On appeal, plaintiff argued the property was commercial because the defendant did not actually intend to move into the property or, at the very least, there was a question of fact over what his intentions were.  Specifically, plaintiff argued that if defendant intended to rent out both units, then the house was commercial.

According to the Appellate Division, defendant was not liable because the property was vacant and uninhabitable.  Therefore, the reasons behind holding commercial property owners liable for sidewalk injuries were not present.  Those reasons include the ability to carry liability insurance and the implied invitation of the public to the commercial enterprise which requires the commercial owner to provide safe ingress and egress.

The problem for defendant in this case was that he did not reside in the house at the time of the accident.  The case law relative to residential v. commercial generally requires the owner to reside in the property to be deemed residential.  The Appellate Division crafted a simple explanation for finding that defendant had no liability.  Simply put, the property was vacant and no business was being conducted there.  Accordingly, it was not “commercial.”

Thanks to Michael Noblett for his contribution to this post.

 

 

 

 

New Jersey Court Finds Attorney Made Material Misrepresentation, Denying Coverage

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The New Jersey Appellate Division ruled that a legal malpractice insurer does not owe coverage to its insured for a legal malpractice suit related to its representation of a defunct investment firm sued for securities fraud.  In Ironshore Indemnity, Inc. v. Pappas & Wolf, LLC, the court determined that, in examining the totality of the circumstances, the law firm made material misrepresentations on its renewal application for insurance.  Specifically, the firm stated that it was not aware of any circumstance that could result in a professional liability claim against the firm.  However, partner Hercules Pappas admitted in a deposition several months prior that he was concerned about getting sued.  His attorneys, however, argued that he was not concerned about legal malpractice claims specifically, and instead was merely concerned in general about facing a lawsuit.

The Appellate Division examined New Jersey’s “subjective standard” in considering a challenge to an insured’s prior knowledge representation.  While the standard examines an individual’s state of mind, the court noted that, under New Jersey law, subjective intent may not be controlling when there are undisputed facts which reveal otherwise.  This prevents a court from “ignoring reality” by viewing the totality of the circumstances, and not isolated statements from the insured.

In examining the totality of the circumstances, the court found that Pappas knew of the potential relevant claims by his former client, Carr Miller Capital.  To that end, Pappas was aware of the legal issues facing to the investment firm, and testified that he was concerned about claims against him as an attorney because “things happened, lawsuits get filed and people get sued.”  Therefore the court held that Pappas made a material misrepresentation on its renewal application, which justified Ironshore’s denial of coverage.  The case provides an interesting insight to how New Jersey courts will examine the totality of the circumstances in a denial of coverage case.  While an insured may testify they are not aware of certain facts, a court will not hesitate to look at other factors when determining if they made a material representation.

Thanks to Douglas Giombarrese for his contribution to this post.

Plaintiff’s Gets Tangled in a “Net Opinion” (NJ)

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Expert reports can provide significant support for a party’s case- so long as the expert can provide the necessary support for his or her findings.  The conclusory remarks in plaintiff’s expert report were challenged in Perdomo v. Orgacki, when plaintiff submitted an expert report that defendant claimed should be barred as a net opinion.

In December 2010, plaintiff was a passenger in an automobile involved in an accident.
An MRI revealed that plaintiff sustained disc bulges that were attributable to the accident. Plaintiff’s expert, a chiropractor, had opined that there was some degree of permanency. Three years later, in November 2013, plaintiff was in a second accident, when she was rear-ended by an automobile driven by defendant. Subsequent MRIs revealed disc bulges in the same areas as found in her 2010 MRI results. The same chiropractor treated plaintiff for this subsequent accident, issuing a report that acknowledged his 2010 diagnosis of a low back injury with some degree of permanency. However, the doctor opined that plaintiff suffered further permanent partial impairment of her lower back that is 70% attributable to the 2013 accident.

Defendant subsequently moved for summary judgment, arguing that plaintiff failed to establish through credible objective medical evidence that she sustained a permanent injury because of the accident. In the alternative, defendant moved to bar plaintiff’s expert report as a net opinion. The trial court ultimately barred plaintiff’s expert report as a net opinion, leading to plaintiff’s appeal.

The appellate court opined that an expert report must be grounded in facts or data derived from the expert’s personal observations, evidence admitted at trial, or data relied upon by the expert which is not necessarily admissible in evidence, but is normally relied upon by experts. The net opinion rule forbids admission of reports into evidence wherein an expert’s conclusions are not supported by factual evidence. Expert reports must give the why and wherefore of their opinions.

Based on this analysis, the appellate court held that the trial court properly barred plaintiff’s expert report as a net opinion, as he failed to explain why the 2013 accident resulted in a partial impairment of plaintiff’s lower back.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons with any questions.

SDNY Dismisses DJ Action for Death Benefits due to ERISA Preemption (NY)

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In Saini v Cigna Life Insurance Company of New York, plaintiff’s husband drowned in the pool of the apartment complex where they lived.  Plaintiff sought coverage from CIGNA for benefits under her deceased husband’s group accident policy, which CIGNA had issued to his late employer. However, in investigation of plaintiff’s claim’s, CIGNA’s expert found that plaintiff’s husband suffered a medical event prior to drowning, and “suffered an acute medical event that resulted in a sudden cardiac death prior to being found face down in the water.”

In turn, CIGNA denied plaintiff’s claim citing an exclusion from coverage in the policy that stated, “Benefits will not be paid for any covered injury or covered loss which, directly or indirectly, in whole or in part, is caused by or results from any of the following: Sickness, disease, bodily or mental infirmity, bacterial or viral infection or medical or surgical treatment thereof…”

Plaintiff filed a complaint to include causes of action under declaratory relief and equitable relief under ERISA (Sections 501(a)(1)(B), 501(a)(3)) and damages under New York Law (Section 2601 of the NYSIL and Section 349 of the GBL). CIGNA moved to dismiss plaintiff’s state law claims.

Judge Katherine Polk Failla, United States District Southern District of New York, granted CIGNA’s motion to dismiss the state law claims. First, plaintiff’s claims under NYSIL § 2601 were denied as the law specifically authorizes the New York Superintendent of Financial Services to bring a civil action to recover a money judgment as a penalty for any violation of the New York Insurance Law. Id. § 109(d). Plaintiff’s claims under this section were dismissed as New York Courts have made it clear that § 2601 does not create a private right of action.

Additionally, Judge Failla dismissed plaintiff’s state claims under GBL § 349 as the civil enforcement scheme under ERISA “completely preempts any state-law cause of action that duplicates, supplements, or supplants an ERISA remedy.” In the 2nd Circuit, such a claim is preempted if it is “brought (i) by an individual who at some point in time, could have brought his claim under ERISA § 502(a)(1)(B) and (ii) under circumstances in which ‘there is no other independent legal duty that is implicated by a defendant’s actions.’” The first prong entails a two-part inquiry, under which a court considers (i) whether the plaintiff is the type of party that can bring a claim pursuant to § 502(a)(1)(B), and (ii) “whether the actual claim that the plaintiff asserts can be construed as a colorable claim for benefits pursuant to § 502(a)(1)(B).”  Judge Failla stated that within this framework, ERISA preempts plaintiff’s GBL § 349 claim.

The Court is silent was to whether plaintiff had retained an expert to rebut CIGNA’s determination of a cardiac event, as opposed to accidental drowning, which could have potentially altered the Court’s decision on CIGNA’s coverage determination.  But given the broad language of the exclusion, we suspect the coverage determination would stand, regardless of a potential rebuttal expert’s conclusions.   Thanks to Jonathan Avolio for his contribution to this claim.  Please email Brian Gibbons with any questions.

Landlord Responsible for Burn from Uncovered Radiator (NJ)

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In J.H. v. R&M Tagliareni, LLC, the New Jersey Appellate Division analyzed whether a landlord owned a duty to protect a minor from a hot and uncovered radiator where it was part of the building’s entire heating system.

Plaintiff is a minor who sustained third-degree burns on his head, right cheek, and left arm while sleeping next to an uncovered radiator in defendant’s apartment building. The radiator was controlled by an on and off shut-off valve at its base inside the apartment unit. The heat flowing into the radiator could only be manually turned on or off at the shut-off valve and the unit did not possess a thermostat to regulate the amount of heat emitting from radiator. An investigation of the radiator revealed that it became unbearable to touch within two minutes of turning the shut-off valve to the on position. Plaintiff’s mother, on behalf of her minor son, subsequently filed suit against the landlord contending that the landlord was in control of the apartment’s heating system and failed to protect her son.

At the conclusion of discovery, the landlord moved for summary judgment arguing that it did not have notice of the allegedly dangerous condition. The trial court granted defendant’s motion holding that the landlord had no constructive or actual notice of the uncovered radiator and therefore violated no duty to plaintiff. In granting defendant’s motion, the trial court found that the tenants had exclusive control over the radiator’s shut-off valve. The trial court also reasoned that the landlord had not received any complaints of excessively hot radiators, was not aware that a young child was living in plaintiff’s unit, and did not violate any applicable codes.

On appeal, the Appellate Division reversed the trial court’s decision and held that the landlord owed a duty of care under a regulation requiring a building’s heating systems (i.e. the radiator) to be covered. The Appellate Division found that the shut-off valve was not sufficient to give the tenants control over the unit’s heating system because there was no control in actual temperature. The Appellate Division found the shut-off valve especially impractical when the tenants were sleeping. The Appellate Division also found that a simple radiator cover would have been enough to protect plaintiff from the burns that he sustained and that the landlord had notice of the dangerous condition because it delivered the unit to the tenants for rent.

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

No Cause of Action for “Negligent Misidentification”

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In Morris v. T.D. Bank, plaintiff alleged he was behind an individual in line at defendant’s bank.  That individual gave the bank teller a note demanding money as part of a hold-up.  After the robber left, another bank employee, believing plaintiff to be the robber, secured the bank and called the police.  The police then questioned plaintiff.  Plaintiff sued the bank for negligence, false imprisonment, assault and violation of the New Jersey Law Against Discrimination.  He alleged that as a result of defendant’s conduct, he suffered from emotional distress, poor sleep and fear of the police.

The court ruled that plaintiff’s alleged injuries did not result from defendant’s breach of the duty to maintain safe premises.  The court viewed plaintiff’s claim as one of “negligent misidentification” and held that no such cause of action has ever been recognized.

Thanks to Michael Noblett for his contribution to this post.

 

 

 

 

 

 

 

 

WCM Wins Summary Judgment in Trench Collapse Case (NJ)

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WCM’s Denise Fontana Ricci recently won summary judgment in a trench collapse case in which she defended a public college and the State of New Jersey in a claim by a contractor’s employee who was injured during a utility pipe replacement project. In Gage v. The College of New Jersey, et al., the plaintiff laborer was declared totally disabled, and workers’ compensation payments alone totaled over $150,000. The workers’ compensation bar prevented him from filing a civil suit directly against his employer, so he set his sights on the property owner for civil litigation.

As the case progressed, WCM identified contract terms and witness testimony that brought the claim within longstanding jurisprudence establishing that a landowner is under no duty to protect an employee of an independent contractor from the very hazard created by the doing of the contract work provided the owner does not maintain control over means and methods of the work. Gibilterra v. Rosemawr Homes, 19 N.J. 166, 170 (1955). This is precisely because a landowner assumes that the contractor, and by extension its employees, “are sufficiently skilled to recognize the dangers associated with their task and adjust their methods accordingly.” Accardi v. Enviro-Pak Systems Co., 317 N.J.Super. 457, 463 (App.Div. 1999).

Although the plaintiff argued that landowners may be liable when they retain control over the means and methods, there was no real evidence that the college exerted this control over the work. The contract was clear that the contractor was solely responsible for means and methods, and this governed the relationship of the parties throughout the project. Contract terms cited by plaintiff to cloud the issue were no more than quality control provisions. ”Developing a project and directing that it be completed within a certain timeframe and within certain specifications do not constitute interference with the project and remain within the ‘general supervisory power over the result to be accomplished rather than the means of the accomplishment.” Muhammad v. NJ Transit, 176 N.J. 185, 197 (2003).

The plaintiff also presented expert testimony to suggest that the industry standard places responsibility on a landowner to ensure work site safety. However, our Supreme Court has expressly found that no such duty exists. Thus, the expert’s opinion could not usurp the role of the court on this legal issue.

Mercer County Superior Court Judge Walcott-Henderson granted summary judgment to all defendants, agreeing that no duty was owed to the plaintiff where there was no evidence the College controlled means and methods of its independent contractor. She decided the motion on this basis before even reaching New Jersey Tort Claims immunities.

Thanks to Brent Bouma for his contribution for this post.  Please write to Vito A. Pinto for further information.

Experts Require Objective Evidence to Survive Net Opinion Rule (NJ)

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Dining at the Cheesecake Factory is normally an enjoyable event.  However, in Piper v. The Cheesecake Factory a plaintiff in New Jersey filed suit for personal injuries after her lunch was ruined when a server allegedly dropped a plate onto the floor.  The dish shattered when it hit the floor, and the fragment allegedly struck the plaintiff in the left eye.  Noami Piper filed suit against the Cheesecake Factory claiming that the clumsy server caused her to suffer a corneal abrasion.

In support of her claim, the plaintiff served an expert report prepared by her treating ophthalmologist, Dr. Hitesh Patel.   Dr. Patel did not find any evidence of a foreign body in the plaintiff’s eye, or a corneal abrasion. However, in his report, Dr. Patel opined that, based on his experience with other patients, a trauma may have exacerbated the plaintiff’s pre-existing conditions and prolonged her discomfort.

N.J.R.E. 703 addresses the foundational requirements for expert testimony. It requires an expert to ground their opinion in facts or data derived from one of the following sources: (1) the expert’s own personal observations; (2) evidence admitted at trial; or (3) evidence of “the type . . . normally relied upon by experts.” However, an expert is also required to “give the why and wherefore” in support of their opinion.  In other words, an opinion consisting of “bare conclusions” or speculative hypotheses “unsupported by factual evidence” is inadmissible as a net opinion.

The Cheesecake Factory filed a motion for summary judgment, arguing that Dr. Patel’s report constituted an inadmissible net opinion.  The court agreed, and dismissed plaintiff’s complaint. On appeal, the court upheld the decision, finding that Dr. Patel’s report was not based on objective medical evidence.  Without a medical expert, the plaintiff could not satisfy her burden of proof with respect to the element of proximate cause.   This case is important, since it highlights the need for a medical expert to support their conclusion with objective evidence.

Thanks to Heather Aquino for her contribution for this post.  Please write to Vito A. Pinto for further information.

 

 

 

Deemer Statue Leads to Dismissal of Damages (NJ)

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In Sulpizi v. LM General Insurance, plaintiff appealed from the trial court’s dismissal of his claim for PIP benefits under the Deemer Statute, and the appellate court reviewed the lower court’s decision on appeal. Plaintiff, a resident of Pennsylvania, owned a vehicle that has a Pennsylvania automobile insurance policy provided by defendant. Plaintiff also owned a vacation home in New Jersey.

The underlying action arose when plaintiff was at his NJ home when he decided to mail a letter. He drove his car from his home and parked across the street from a mailbox. Plaintiff exited his vehicle and began to walk across the street towards the mailbox. As he crossed the street, he saw a pickup truck approaching him and he rushed to the side of the road. He tripped and fell on the curb near the mailbox resulting in personal injuries.

Plaintiff’s Pennsylvania automobile policy issued by defendant provided $5,000 in PIP medical benefit coverage. Plaintiff submitted a PIP claim to defendant for benefits exceeding $5,000, claiming he was entitled to $250,000 in additional coverage under the Deemer Statute. NJ’s Deemer Statute applies to out-of-state driver who are injured in accidents in New Jersey. Under the Deemer Statute, if you are an out-of-state resident and you are hurt in an accident in New Jersey, you will be subject to New Jersey’s restrictive limitation on lawsuit or “verbal threshold” if your insurance company is licensed to transact business in New Jersey.  The verbal threshold places limitations on the right to recovery for injuries sustained in a motor vehicle accident.

The appellate court reviewed whether the Deemer Statute requires coverage for a claim involving a pedestrian injured after parking his car and while walking across the street. The court determined that the coverage under the Deemer statute demanded a substantial nexus between the out-of-state vehicle and the accident for which benefits were sought. The court opined that because plaintiff never came into contact with the oncoming vehicle and was injured as he moved out of the way, there was no nexus between his use of his vehicle and the resulting injuries. The appellate court thereby afirmed the trial courts ruling and maintained the dismissal against defendant.  Thanks to Steve Kim for his contribution to this post.  Please email Brian Gibbons 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.