Category Archives: Of Interest

WCM Legal Newswire by Wade Clark Mulcahy

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

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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.

A Matter Of Factual Causation (PA)

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In Mariana Koziar v. Neal T. Rayner and Andrea Rayner, the Pennsylvania Superior Court ruled that a plaintiff needed to establish factual causation, even when the defendant was found negligent and the plaintiff produced uncontroverted evidence of injury.

The plaintiff in this case, a house cleaner, slipped and fell as she exited a client’s garage door.  She severely injured her left ankle, requiring surgery, and subsequently sued the client/homeowners, alleging that the “lip” of the garage door was negligently constructed, and the driveway pavement was negligently maintained.  During trial, the jury heard differing accounts of how the accident occurred from the plaintiff herself.  At the trial’s conclusion, the jury returned a verdict in favor of the homeowners, finding that while they were negligent, their negligence was not the factual cause of the plaintiff’s injuries.

After the jury was discharged, the plaintiff filed a motion for a new trial, arguing the verdict was against the weight of the evidence.  The trial court granted the motion, and the homeowners appealed.  On appeal the plaintiff argued that when a jury finds a defendant negligent and concedes the existence of an injury, the jury is not permitted to find that the defendant’s negligence was not a substantial factor in bringing about the plaintiff’s injury.  The Superior Court rejected this argument, noting that Pennsylvania defines factual causation in the but for sense, and reversed the trial court’s order for a new trial.  The court concluded that while the jury could have found that the homeowners were negligent in any of the descriptions of the accident, it ultimately determined that the plaintiff had been negligent, herself.  The fact that there was uncontroverted evidence of an injury did not relieve the plaintiff of the burden to show factual causation.

Thus, this case illustrates the continued need of the plaintiff to carry his or her burden in order to prevail in an action.

Thanks to Robert Turchick for his contribution to this post.  Please email"> Colleen E.  Hayes with any questions.

Eastern District of Pennsylvania Grants Casualty Insurer’s Motion for Summary Judgment, Finding No Duty to Indemnify (PA)

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In Myers v. GEICO Casualty Insurance Co.., the Eastern District of Pennsylvania Court granted Summary Judgment in favor of a casualty insurance company, holding that it acted properly because the driver of the vehicle was not an insured under its policy.  In brief, Chapman and Bond had attended an event together and after entering the event venue, Chapman asked for the keys to Bond’s vehicle because she needed to retrieve something. Upon arriving to the vehicle, Chapman noticed a parking spot closer to the event venue and proceeded to move Bond’s car to the closer spot without obtaining permission from Bond. While moving the vehicle, Chapman was involved in a collision with Myers. Jasmine Tucker, Bond’s girlfriend, was the named insured on the GEICO Policy, while Bond was listed as an additional driver. Chapman was not named under the Policy in any capacity. Myers sued Chapman, Tucker and Bond alleging negligence. GEICO did not defend Chapman, determining that she was not covered under the Policy because she operated the vehicle without permission.

In determining whether Chapman was an insured under the policy, the Court looked to the terms of the Policy. The Policy stated the insurer would “pay damages which an insured becomes legally obligated to pay” because of injury or damages from the use or ownership of an “owned auto.” Under the policy, an “insured” included “any . . . person using the auto with your permission.” The omnibus clause of an automobile insurance policy designated an insured as “any person using the insured vehicle with the permission of the owner, the permission necessary to elevate the user to the status of an additional insured may be express or implied.”  The court determined that implied permission could be established through a relationship or conduct surrounding the incident that demonstrated both parties acquiesced.  In finding that Chapman was not an insured under the policy, the Court considered the lack of express consent and the fact that Chapman had never driven Bond’s car previously. The Court rejected Chapman’s argument that Bond’s conduct of giving Chapman the keys amounted to consent.

This opinion demonstrates that it is possible for individuals not named on an automobile insurance policy to be deemed “insured” if there is consent to operate the vehicle, whether express or implied. However, in order to establish implied consent, the court will look to all the factors surrounding the incident to determine the presence of mutual acquiescence.

Thanks to Rachel Thompson for her contribution to this post.  Please email ">Colleen E.  Hayes with any questions.

Reassertion of Importance: Extending Time to Answer (NY)

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In Lev Aminov, M.D., as Assignee of April Cuffy v. Allstate Ins. Co., the 2nd Department, Appellate Term held that a defendant’s attempt at vacating a default judgement and compelling plaintiff to accept its answer fell short.

This action was commenced on September 16, 2014 by service of the Summons and Complaint on an Allstate employee. A default judgement was entered on October 31, 2014, due to Allstate’s failure to appear or answer. Almost exactly one year later, Allstate moved pursuant to CPLR 5015(a)(1) and (4) to vacate the default judgement and compel plaintiff to accept defendant’s answer.

The court indicated that the law was clear on this issue. Allstate needed to “demonstrate both a reasonable excuse for the default and the existence of a potentially meritorious defense to the action.” Allstate offered an affidavit from a claims adjuster, but not from the individual who was served with the Summons and Complaint. The court also pointed out that it took Allstate eleven (11) months to move to vacate the default judgment. Taking these factors into consideration, the court concluded that Allstate did not provide a reasonable excuse for the default. Therefore, Allstate’s motion seeking to vacate the default judgement and compel plaintiff to accept its answer was denied.

Thus, this case illustrates the importance of timely filings, as well as the factual support likely needed to prevail in having a default judgment vacated.

Thanks to Marc Schauer for his contribution to this post.  Please email ">Colleen E.  Hayes with any questions.

An Insured’s Misrepresentations In Warranty Resulted In Disclaimer (NY)

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In Patriarch Partners, LLC v. Axis Insurance Company, the Second Circuit declined to alter its prior decision involving the interpretation of a policy warranty and its impact on coverage.  In so doing, the court implicitly incorporated the terms of the insured’s warranty, into the policy, to find there was no coverage for a multimillion dollar government investigation.

In 2011, Patriarch Partners, LLC, a private equity investment firm, obtained an excess directors and officers policy through Axis Insurance Company which provided $5 million in excess insurance.  Patriarch had $20 million in primary coverage.  Axis was concerned about potential new liabilities, thus, it required Patriarch to execute a warranty statement that would eliminate liability in the event Patriarch had prior knowledge of a claim.  Patriarch presented a warranty signed by its sole officer stating it was not aware of any “facts or circumstances that would reasonably be expected to result in a Claim.”  Unbeknownst to Axis (but not to Patriarch), the Securities and Exchange Commission had been investigating Patriarch as early as 2009.  In 2012, after the Axis policy took effect, the SEC served a subpoena on Patriarch.  Patriarch subsequently sought coverage for the costs related to the SEC’s investigation.

In the ensuing coverage action, the Second Circuit relied on the terms of the warranty and found that no coverage existed because Patriarch had been aware of facts and circumstances that could reasonably be expected to result in a claim.  The Second Circuit rejected Patriarch’s argument that it would have to have specific knowledge that the “claim” would reach the $20 million threshold, thus, triggering the Axis excess policy, in order for Axis to disclaim coverage on this basis. The court further rejected Patriarch’s argument that the relevant facts and circumstances had to be subjectively known by Patriarch’s founder, who signed the document, citing general principals of agency.  Interestingly, the court’s holding relied mostly on the warranty itself, even though the warranty was not directly incorporated into Axis’s policy.

Ultimately, this opinion highlights the importance of full disclosure in an insurance application or warranty in order for coverage to attach.

Thanks to Doug Giombarresse for his contribution to this post.  Please email ">Colleen E.  Hayes with any questions.

Second Circuit Rejects Ambiguity Argument Regarding Policy’s Action Over Exclusion (NY)

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An additional insured attempted to argue the “separation of insureds” clause rendered the Action Over Exclusion, an iteration of an employer’s liability exclusion, inapplicable, as it was not the employer of the claimant.  The Second Circuit disagreed based on the plain language of the exclusion.

In Endurance American Specialty Insurance Co. v. Century Surety Co., Hayden Building Maintenance Corp. was the general contractor on a construction project at which the plaintiff, who was an employee of Pinnacle Constr. and Renovation Corp., was injured.  Hayden sought coverage as an additional insured under the CGL insurance policy issued to Pinnacle by Century Surety Co.  Century denied coverage based on the policy’s Action Over Exclusion, which provided that there was no coverage for “bodily injury” to an “employee” of the named insured arising out of and in the course of employment by the named insured, or performing duties related to the conduct of the named insured’s business.  Hayden challenged the disclaimer, arguing the exclusion did not apply because Hayden did not employ the plaintiff and the policy’s terms must be applied separately to each insured seeking coverage as per the policy’s Separation of Insureds provision.

Although the district court agreed with Hayden, the Second Circuit reversed and held the Action Over Exclusion unambiguously barred coverage.  In particular, the appellate court held the exclusion barred coverage for bodily injury claims brought by an employee of “the named insured,” as opposed to “the insured.”  The Court further observed the Action Over Exclusion specifically replaced the Employer’s Liability Exclusion, which used the term “the insured.”  The Second Circuit ultimately reversed “because to do otherwise would render the unambiguous language…a nullity.”

Insurance policies are arguably the most hyper-scrutinized class of contracts.  As a result, in evaluating coverage, it is critical to evaluate even the most minute distinction in policy terms.  Here, an endorsement altered an exclusion by redefining the pertinent class of insured by changing “the insured” to “the named insured.”

Thanks to Christopher Soverow for his contribution to this post.  Please contact ">Colleen E.  Hayes with any questions.

Improper Service: No Harm, No Foul (PA)

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A Pennsylvania Court determined that a plaintiff’s good faith attempts to effectuate service tolled the statute of limitations.

In Mandarano v Plink, the Pennsylvania Court of Common Pleas in Lackawanna County heard an interesting case regarding a failure to comply with the Pennsylvania service statute.  In Mandarano, the Plaintiff commenced a premises-liability action one day before the statute of limitations expired by serving the President of the Defendant company via a detective agency.  Under Pa.R.C.P. 400(a), original service in Pennsylvania is only to be effectuated by a Sheriff.  As a result, the Defendant filed preliminary objections seeking that the complaint be dismissed for failure to comply with Pa.R.C.P. 400(a).  The Defendant argued the statute of limitations is tolled only if the plaintiff makes a good faith effort to effectuate service of process on the opposing party, which he argued did not occur. Plaintiff countered, stating that Pa.R.C.P. 126 enables a court to “disregard any error or defect of procedure which does not affect the substantial rights of the parties.”

In analyzing the situation, the Court first relayed the standard for evaluating untimely service.  To warrant the dismissal of an action based upon the untimely service of original process, the record must reflect that either (1) plaintiff demonstrated an intent to stall the judicial machinery by delaying the proper service of process, or (2) the defendant was prejudiced by plaintiff’s failure to comply with the procedural rules governing service.  The type of prejudice required to warrant a dismissal based upon improper service of process involves a “substantial diminution of the defendant’s ability to present factual information in the event of trial which has been brought about by plaintiff’s delay” in the proper service of original process. The Court found no evidence of any prejudice nor that the plaintiff intentionally acted in a manner that was designed to stall the judicial process.  Moreover, since the Defendant’s officer was furnished with timely notice of the filing of this suit, the Court found that the purpose of the statute of limitations was satisfied.

This case poses an interesting situation, where the specific requirements of a statute were not met, but where the Plaintiff’s action complied with the spirit and purpose of the statute.  Most states contain statutes and regulations allowing Courts to disregard any defect of procedure that does not prejudice another party.  The Defendant could not provide any evidence that he was prejudiced, and the Plaintiff was allowed to proceed in his lawsuit.  There was no-harm, and, thus, the Court found no-foul.

Thanks to Malik Pickett for his contribution to this post. Please email ">Colleen  E. Hayes with any questions.

Intruder Alert: Blame the Landlord (NY)

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The decedent-plaintiff was delivering meals to the elderly at a New York Housing Authority-owned building.  He was in the building’s lobby when an unidentified assailant entered the building and fatally shot the plaintiff.  The Housing Authority moved for summary judgment, arguing that the building’s entrance door lock was functional at the time of the shooting.  The Supreme Court granted the motion and dismissed the plaintiff’s complaint.

On appeal, the Second Department clarified that a plaintiff could recover against a landlord when inadequate security is alleged only if the injury was caused by an intruder (not a tenant or a guest of a tenant) and only if the assailant gained access to the premises through a negligently maintained entrance.  Further, there must be a causal link between the landlord’s negligence and the attack.  In reviewing the record, the Second Department held that, while the front door lock was working at the time of the incident, there was still an issue of fact as to whether the accident was caused by a negligently maintained entrance.  In other words, given that the assailant entered through the front door, it was up to a jury to determine whether the landlord failed to provide proper protection to the plaintiff given that he somehow made it inside the building.

This Aminova, etc., et al. v. New York City Housing Authority decision calls into question whether a landlord has to go above and beyond when it comes to maintaining a safe premises.  Specifically, this decision seems to imply that a fully functioning door lock, which may have been left open/unlocked by a tenant, might not be enough security to protect a landlord from facing liability for injuries caused by non-tenants.  It also calls into question whether a landlord’s possible liability exposure is contingent on the landlord having notice of prior instances where intruders have entered a building or whether such prior breaches of the security system are not necessary in order to find liability against the landlord.

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

When a Verdict’s Too Good to be True (NY)

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A recent Second Department decision in Avissato v McDaniel reminds defense practitioners the best time to settle a case may in fact be after an apparent victory.  The underlying fact pattern is a common one:  plaintiff was stopped at a red light when defendant driver rear-ended plaintiff’s vehicle.  Unsurprisingly, plaintiff prevailed on a summary judgment as to liability and the case proceeded to a trial as to damages.  2019 NY Slip Op 00084 (2d Dep’t. 2019).

The jury found the accident was the proximate cause of plaintiff’s injuries and resulted in a permanent consequential limitation of use of a body organ or member as a result of the accident—in other words, they found plaintiff’s injuries qualified as a serious injury under the Insurance Law, and that plaintiff would have symptoms moving forward into the future.

However, the jury award was for $12,500 for past pain and suffering and $12,500 for past medical expenses with no award for future damages.  Although plaintiff’s motion to set aside the verdict as against the weight of the evidence was initially denied, on appeal, the Second Department reversed and remanded for a new trial on the issues of damages for past and future pain and suffering.  The Second Department reasoned the verdict was inconsistent in awarding no damages for future pain, given their conclusion plaintiff had sustained a permanent injury, and that the award for past damages was too low.

We do not know the details of any settlement negotiations.  However, one suspects defendants were pleased with the jury verdict, despite the obvious inconsistencies it contained.  Instead of reaching an economical settlement at that point with the leverage of the verdict in their pocket, defendants are now faced with the costs of a second trial and opposing plaintiff’s successful appeal.  Even in a moment of victory, defendants should evaluate whether a settlement is the best option anyway.

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

“Fallin’ in the Rain” – Concert Venue’s Wet, Grassy Slope is not a “Dangerous Condition” (NJ)

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In Spigai v. Live Nation Worldwide, Inc., et al., the plaintiff and friends attended a concert at the PNC Bank Arts Center in Holmdel, New Jersey. After parking in one of the commuter lots, at the foot of a grassy hill, the plaintiff and her friends took a courtesy shuttle bus to the venue. Unfortunately for concertgoers, rain started early in the day and continued throughout the concert. After being separated, the plaintiff elected to walk with a crowd to her car rather than waiting for a shuttle. Although the commuter lot is accessible via a staircase, the plaintiff followed others down the wet, grassy slope to her vehicle. Mid-descent, she slipped and broke her leg. She subsequently filed suit against the owner and operator of the venue.

The PNC Bank Arts Center is owned by the New Jersey Turnpike Authority/Garden State Parkway (“Turnpike Authority”) and is operated by Live Nation Worldwide, Inc. (“Live Nation”). Following discovery, defendants moved for summary judgment. The Turnpike Authority argued it was immune from liability under the Tort Claims Act. Live Nation, for its part, argued it did not breach a duty of care to the plaintiff. Plaintiff, in opposition, relied on an affirmative expert report opining that defendants failed to adequately assess the risk of accidents, failed to have a surveillance plan, failed to provide physical barriers, and performed negligent crowd control. The trial court, unpersuaded by the affirmative expert, granted summary judgment to all defendants.

Plaintiff appealed, arguing the trial judge misapplied the summary judgment standard by refusing to submit the issue of liability to the jury. In upholding the trial judge’s ruling, the Appellate Division agreed that the grassy slope, even wet with rain, did not constitute a “dangerous condition.” Permitting the existence of a natural hill, on the land, made wet from the weather, was not palpably unreasonable. The Appellate Division further agreed that the obvious nature of the wet grass on the hill made it impossible for the plaintiff to recover against Live Nation, as its duty of care did not extend to warning the plaintiff that grass is slippery when wet or to take steps to prevent walking down the hill in the rain instead of using the provided staircase.

Despite plaintiff’s injury, the defendants provided adequate legal accommodations to concertgoers to account for their safety. Thus, although injuries may occur on commercial premises, it is important to conduct thorough investigations and establish a comprehensive record that accounts for any and all distractions and contributing factors. Here, by establishing that the plaintiff was on her cell phone, traversing a wet, grassy hill wearing flip-flops and carrying a chair and tarp, the facts aligned with premises liability case law to support granting summary judgment to each defendant.

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