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Case Histories
- Admiralty and Marine Insurance
Major coverage victory for national pollution insurer:
Our client insured the barge Cynthia M for pollution liabilities. The
Cynthia M sank at its dock on the Hackensack River in New Jersey, laden
with a cargo of caustic soda which could have discharged into the river
and the surrounding wetlands. At the Coast Guard’s direction, the owner
salvaged the barge carefully, avoiding any pollution incident, and then
sent the bill to their Hull & Machinery underwriter, Global Insurance.
This company became insolvent. The owner then sued both Global and WQIS
for reimbursement. After a bench trial, the district court found for
WQIS, accepting our points that the salvage was ordered to prevent a
threat to navigation on a busy waterway, the threat of pollution had
been abated by sealing the Cynthia M’s tanks and valves, and that the
cost of salvage is the obligation of the hull underwriter, not the
pollution insurer. The Third Circuit affirmed. WQIS continues to cite
this landmark opinion throughout the Country, and uses it to support the
premium for an ancillary coverage, made available to its policyholders,
for salvage of a vessel involved in a pollution incident. The findings
of this case, in our favor, has saved millions of dollars for our
client.
Barge Cynthia M: Kearny Barge Co., Inc. v. Global Insurance Co., 943 F.Supp. 441, 1997 A.M.C. 715 (D.N.J. 1996), aff’d, 127 F.3d 1095 (3d
Cir. 1997)
Third Circuit rules that local trucker’s
excess coverage is primary, ocean carrier’s coverage is secondary
Our client, a containerized ocean carrier, retained us to protect it
from a $1,000,000 insurance coverage lawsuit by a trucker’s excess
insurer. The suit followed a 3 million-dollar settlement of a truck
accident case in California. The ocean carrier’s only connection to the
case was the fact that the truck was hauling an intermodal container and
chassis belonging to the client, at the time of the accident. The
trucker’s primary insurer agreed to defend and indemnify our client, and
paid its $1,000,000 policy limit as part of the settlement. In a
creative settlement agreement, Landmark American agreed that it would
pay the remaining $2,000,000 one year later, after pursuing “other
insurance” from our client and its own insurer, a unit of AIG. The
client’s policy had a $1,000,000 policy limit, subject to a $1,000,000
deductible. Landmark asserted that the policy extended to the trucker
(its insured), and that the deductible was “insurance,” too. If so, our
ocean carrier client would face a $1,000,000 liability. We argued that
the deductible does not constitute “other insurance” under New Jersey
law (where suit was brought) or California law (where the operative
facts arose). We also argued that the indemnity provision in the
equipment interchange agreement with the trucker bound all of the
trucker’s insurers, primary and excess. Finally, we argued that the
trucker’s excess insurance was primary in relation to the ocean
carrier’s own policy. The Third Circuit Court of Appeals agreed (also
finding that another insurer sued by Landmark, United National, had no
coverage at all). The Court, applying California law, ruled that
Landmark’s policy was primary to our client’s coverage. Since that
policy’s limit was ample to pay the judgment, our client and its
insurer, AIG paid nothing. Landmark had to pay the full $2,000,000
remaining in the settlement agreement.
Landmark American Ins. Co. v. United National Ins. Co., et al., etc.,
(3rd Cir. 1999)
Enterprising Pakistani fails in attempt to recoup future business
losses from shipping interests:
Syed Shah freely testified that he had twice entered the United
States illegally from Pakistan, via Mexico, and created a life for
himself here. Not content with the menial jobs he held for a few years,
Shah went into the used car exporting business. He had one customer, a
sheik in Dubai who agreed to purchase two or three Jeep Grand Cherokee
vehicles per month for his auto dealership, for 30 years, if Shah could
just demonstrate his reliability. Shah bought his first (and only) three
Jeeps from an auto auction, and on the very first shipment, a Customs
hold delayed the shipment from New York to Dubai. The Jeeps arrived one
month late, the sheik refused delivery, and the oral contract was
cancelled, according to Mr. Shah. Shah then sued his transportation
broker, the intermediary NVOCC (our client), the ocean carrier, and the
ocean terminal in New York, for $1.5 Million, the projected thirty-year
loss of profits to Mr. Shah. The federal court in New Jersey was not
impressed with Shah’s case, which was ultimately settled for a very
small figure. Our client contributed 5 percent of the settlement, less
than the cost of a day of trial. We never heard from the sheik in Dubai.
Syed Enterprises v. Sea Shipping Line, U.S. District Court, District
of New Jersey, 2004
Intermodal providers obtain
complete indemnity from truckers:
In our regular representation of intermodal
equipment lessors and lessees, we routinely need to seek
indemnity from truckers and others who have had accidents and
incurred liabilities while using intermodal containers and
chassis owned by our clients. We seek indemnification based upon
common law theories, and pursuant to contractual provisions such
as those found in equipment interchange agreements, and in the
Intermodal Interchange & Facilities Access Agreement (“UIIA”).
We proceed through litigation, often succeeding on motions for
summary judgment, and we also pursue the same remedies by
non-litigation means by presenting the evidence of the
agreements, and of investigative materials, to truckers’
insurers. Very often we are able to persuade the insurers to
agree to indemnify our clients, defend them in ongoing
litigation, and to reimburse them in full for amounts already
incurred for legal fees and expenses.
We invite inquiries about this interesting
area of our practice and will be pleased to provide specific
case references. You may all us at 201-848-6000 or e-mail
us at: info@thelanelawfirm.com
Successfully Obtained Reimbursement of Defense Costs for
International Corporation Engaged in the Business of Containerized Ocean
Transportation
Plaintiff allegedly sustained serious injuries when he was involved
in an automobile accident with a tractor that was hauling our client’s
intermodal ocean container. We obtained complete indemnity from the
trucker.
In defending the case we successfully moved for summary
judgment dismissing the plaintiff’s case, and obtaining an
order directing the trucker to indemnify our client for their defense
costs incurred in the defense of the action. We were able to prove to
the Court that our client was not negligent, did not exercise any
control over the trucker, and could not be held vicariously liable for
the actions of the trucker.
The trucker tried to argue that the driver of the tractor was not
working for them at the time of the occurrence. Through the use of
documented evidence maintained at the ocean terminal, we were able to
prove that the trucker both signed out our client’s container and
subsequently returned it to the terminal. We were also able to prove
that the trucker was contractually obligated to defend and indemnify our
client, and was obligated to reimburse our client for all their defense
costs.
Richard J. Bachmann v. Nelcido A. Liranzo, et al.,
Superior Court of New Jersey, April, 2007
- Trucking & Transportation
Transfer of Venue in Serious Trucking Accident Case
We were called in to coordinate all investigation and reconstruction
in a serious-injury trucking accident that occurred in New Jersey.
Witnesses included State Police, rescue crews, medical and hospital
personnel, and the truck driver and others, all of whom reside in New
Jersey. We developed a theory of indemnity against another company, also
located in New Jersey.
When the plaintiff brought suit in federal court in her home state of
Connecticut, our client instructed us to seek pro hac vice
admission in that court, and to move for a transfer to New Jersey, where
the accident occurred and where most of the witnesses reside. We
presented evidence and legal arguments that our client would be
prejudiced if the case were to stay in Connecticut. We also argued that
although plaintiff obtained follow-up medical care in Connecticut, the
crucial medical treatment was provided by a New Jersey hospital.
The Connecticut federal court held that although “the plaintiff’s
choice of forum is generally given considerable weight,” the balance of
factors weigh in favor of the trucking company. These include the
convenience of the witnesses and the parties, the location of relevant
documents and the operative facts, availability of process, and the New
Jersey court’s familiarity with applicable law. The transfer to New
Jersey will be a significant benefit to our clients.
Tentoni v. Jeffers, U.S. District Court, District of
Connecticut, Case No. 3:07-CV-1234 (Judge Peter C. Dorsey, April 8,
2008)
Federal Court Applies Course of Dealing Argument to
Limit Trucker’s Liability in Cargo Loss Claim
We successfully represented A.D. Transport Express,
Inc. in a $650,000 cargo loss lawsuit brought in federal court in New
Jersey. Travelers Insurance Company sued as subrogee of Summit
Transportation, Inc., a sophisticated warehousing, trucking, and
logistics business, to recover $650,000 after the theft of our client’s
truck and its cargo. Summit and A.D. Transport had a verbal agreement
for A.D. Transport to haul imported clothing products from the Summit
warehouse in New Jersey to Ann Klein, Inc., in Louisville, Kentucky.
Summit prepared the bills of lading, which contained no limitation of
liability.
For over three years, A.D. Transport carried three to
four shipments per week, a total of 650 shipments, without incident.
After each incident, A.D. sent Summit a freight bill accompanied by A.D.
Transport’s own bill of lading. That bill, which was issued after each
shipment, contained a very clear limitation of liability meeting all
requirements of the Carmack Amendment. If that bill of lading had been
utilized instead of the shipper’s bill, the limitation would have been
fully enforceable. The District Court ruled that this course of dealing
was evidence of the terms of the agreement between the parties,
including the limitation of liability. Judgment was entered in favor of
Travelers for $10,000, the limitation amount in the bill of lading.
Travelers a/s/o Summit Transportation, Inc. v.
A.D. Transport Express, Inc., 2007 WL 2571957 (US District Court,
District of New Jersey)
Successful Settlement of Claim for Retinal
Detachment
Plaintiff David Heller brought suit against our
client, a trucking and logistics company, arising out of an intersection
accident. He claimed that he sustained various soft tissue injuries,
including disc herniations. He also claimed that the accident was the
proximate cause of a detached retina for which he had emergency surgery.
That surgery occurred ten months after the accident with the onset of
symptoms just one week before the surgery. That set of facts did not
seem right to us. With our client’s authority, we went full swing into
our investigation. We learned that plaintiff had had an accident one
year before our accident. We also learned that plaintiff had been
severely myopic all his life and had worn glasses or contact lenses
since the age of six. Also, plaintiff underwent Lasik surgery just three
months before our accident. Our ophthalmological expert advised us that
these are all indications of a degenerative condition in the eye that
probably led to the detachment of the retina.
Finally, we learned that plaintiff had been in a third
automobile accident just about three months before the onset of the
retinal detachment. If the detachment was traumatic in origin, it was
that third accident that was a likely candidate. Our ophthalmologist
would have testified that in all probability the detachment was not
caused by any of the traumas, but rather by the degenerative condition
of the structures of plaintiff’s eyes. Plaintiff identified two
ophthalmological experts, both of whom somehow blamed our accident for
the retinal detachment. Neither of the two gave a strong explanation for
his opinion. Plaintiff’s demand just prior to trial was still in the
high six figures, while we had offered nothing. Just days before trial,
plaintiff’s counsel contacted us with a desire to settle. Their demand
began to tumble, but we did not budge until it was clear that we could
achieve an extremely successful settlement. The intense investigation
paid large dividends.
Heller v. Quinones and USF Distribution, Inc.
(New York Supreme Court, Bronx County, 2008)
Determined Defense Results in Voluntary Dismissal
for Ocean Carrier in Serious Injury Claim Arising from Intermodal
Accident
We obtained a voluntary dismissal in a very serious
injury case, when we persuaded plaintiff’s attorney that he could not
prove a case against our client, a steamship company. Plaintiff, a
semi-retired doctor who was devoting his retirement years providing
medical care to disadvantaged children in Bronx, New York, was on his
way to his home in New Jersey when he was run off the road by a
tractor-trailer. His car hit a utility pole. The plaintiff, a very
pleasant man, sustained severe injuries that would require multiple
surgeries, including emergency hip replacements. He will not work again.
The truck did not stop. However, the plaintiff, as he
testified at his deposition, thinks the trailer had the name of our
client on it. Therefore, plaintiff brought suit against our client. Our
client knew nothing of the accident but tried, unsuccessfully, to help
identify the trucker involved. In a court-mandated arbitration, the
arbitrator agreed that our client, which did not own the tractor or
control the truck driver, could not be liable for plaintiff’s
devastating injuries. The doctor and his attorney decided not to appeal
the arbitration decision, even though they had no one else to sue and no
legal remedy. Judgment of dismissal was entered upon the arbitration
award.
Witkowski v. Evergreen, Superior Court of New
Jersey, December 2006
Successful Dismissal of Wrongful Death Action on
Due Process Grounds and Personal Jurisdiction Grounds
Plaintiff’s Estate brought a wrongful death action
against our client in New Jersey for an accident which occurred in the
State of Florida. The decedent had resided in New Jersey and the Estate
attempted to obtain jurisdiction in the State by arguing that our client
utilized the New Jersey highways for part of his ongoing trucking
business.
We argued that the only true nexus to the State of New
Jersey was the decedent’s residence, and that the trucking company’s use
of the New Jersey highways was not sufficient to subject the company to
jurisdiction by the New Jersey Courts. Citing constitutional due process
grounds, the Court agreed with our position and dismissed plaintiff’s
complaint.
Prakash Pradhan, et al. v. The Estate of Michael
Pietrasz, et al., November 2006
Successful Defense of Trucker Through Summary Judge
Motion, Appeal
Our trucker client had a mechanical breakdown on the Bronx-Queens
Expressway in New York. He pulled his tractor-trailer off to the
shoulder safely, put out flares and reflectors, and called for help. The
time was about 4:00 a.m. In the dark and while still on the phone with a
towing company, the trucker saw a Jeep Liberty speed around a curve at
high speed and out of control, zig-zagging from right to left, and back
to the right, striking the rear of the trailer. The drunken driver of
the Jeep was not seriously hurt. His front-seat passenger, an attractive
young woman, suffered severe chest and facial injuries, underwent
surgery, and has significant facial scarring.
The passenger sued her drunken friend and our client. After discovery
was complete, we moved for summary judgment based on these undisputed
facts and favorable New York law. The motion judge denied our motion in
a one-line opinion, clearly not wanting to work hard on the decision. We
appealed to the Appellate Division, which held a pre-argument
conference, telling plaintiff’s counsel that we would likely win on
appeal. Soon afterward, we settled at a very reasonable figure. The
plaintiff settled with the Jeep’s drunken driver, who was driving a
company car at the time, for $1.9 million.
Chin v. Rivera, Supreme Court of New York, 2006
Precedent-affirming case -
Punitive Damages averted in serious injury claim against trucker:
Our trucking company client faced a serious punitive damage claim
arising from an accident occurring on a rural, curving road, in rainy
weather. Police investigation revealed that the truck’s empty flatbed
trailer swerved to its left, completely blocking the path of the
oncoming plaintiff’s passenger car. Plaintiff could not avoid striking
the trailer. In the resulting crash, plaintiff suffered severe and
debilitating fractures and will not be able to return to her former
position as a high-level radiology nurse at an area hospital.
Investigation also revealed that the driver of the truck had a poor
driving record, and was speeding at the time of the accident in an
unfamiliar locale. The police also determined that at least half of the
trailer’s tires were seriously worn, and that under DOT guidelines, the
trailer should have been placed out of service. Shortly before trial, we
moved for summary judgment dismissing the punitive damage claim. Senior
U.S. District Judge William C. Conner agreed with us that the
defendant’s conduct, though severe, did not arise to the level of
wantonness and moral culpability required under New York law for the
imposition of punitive damages. Even the combination of unsafe tires,
the driver’s past driving record, and his unsafe driving in bad weather
in unfamiliar surroundings, did not meet New York’s demanding standard.
Marcoux v. Farm Service & Supply, Inc., 283 F.Supp.2d 901 (S.D.N.Y.
2003)
Federal Court holds no duty owed by truck driver in unloading
accident
Our trucking company client was delivering a heavy transmission to an
automobile dealership. A dealership employee alleged that while he was
unloading the transmission from the truck with the driver’s assistance,
the transmission fell, injuring the employee’s leg and foot. He sued
both the trucking company and Ford Motor Company, the shipper, for his
damages.
We moved successfully for summary judgment. The federal court agreed
that there was no evidence of negligence on the part of the driver or
the trucking company, and that neither of them had breached any duty
owed to the plaintiff.
Anthony v. Con-Way Transportation Services, Inc., U.S.
District Court, Eastern District of New York
New York federal court holds Carmack Amendment applicable to
contract carrier:
Our client brokered a specialized load to a commercial trucker,
consisting of machinery which formulates cardboard cartons for high-end
retailers, such as Tiffany’s of New York. The machinery was picked up in
California, to be transported to upstate New York, but the trucker
suffered an accident in Virginia which greatly damaged the expensive
cargo. The shipper’s subrogated insurer sued both the trucker and our
client in New York federal court, asserting state-law claims of
negligence, conversion, breach of contract, bailment, and statutory
business-fraud claims. The trucker, a contract carrier, moved for
partial summary judgment, to dismiss the state-law claims. The federal
court granted the motion, holding that since the Interstate Commerce
Commission Termination Act, the Carmack Amendment applies to contract
carriers and common carriers alike. Carmack provides exclusive remedies,
and defenses, in motor carrier and railroad freight loss and damage
claims, and pre-empts all state-law claims. The trucker then acceded to
our demands for contractual indemnity and settled the claim, and also
reimbursed our client for legal fees incurred in defense of the lawsuit.
Travelers Ins. a/s/o Quality Carton v. North American Van Lines, U.S.
District Court, Southern District of New York, 2005
Hard work and surveillance limit serious injury claim at client’s
terminal
Plaintiff claimed that he was injured while loading his employer’s
truck at our trucking client’s premises. As a result of the incident,
plaintiff sustained a tri-malleolar fracture of the lateral and medial
malleolus, and the fibula of the left ankle, requiring surgical
intervention. He also claimed that as a result, he has permanent
physical limitations, and can work only at sedentary jobs, as his ankle
prevents him from engaging in strenuous activities. We were able to
prove that plaintiff’s own negligence was a significant factor in
causing the incident. With the aid of surveillance, we were also able to
disprove and minimize plaintiff’s claims regarding his limitations. The
matter was subsequently litigated to conclusion resulting in a net award
to plaintiff of only $29,657.53.
Garzon v. Conway Transportation, Supreme Court, New York County, 2004
Successful Defense of Trucker in 3-vehicle accident on major New
York highway - forceful accident reconstruction, effective no-fault
motion:
Suit was brought against our trucking client by the drivers of two
other vehicles involved in the accident. The lead driver-plaintiff,
Quintero, claimed that he was struck in the rear by our client’s
tractor-trailer, causing him to lose control, strike the center median,
and then collide with the vehicle driven by the second plaintiff,
Teodoru. The force of that impact propelled Teodoru’s vehicle into a
collision with the client’s tractor-trailer. Quintero claimed to have
sustained a torn meniscus requiring surgery, while Teodoru allegedly
sustained herniated discs, and an aggravation of a pre-existing knee
injury.
Our defense, supported by our superb accident reconstruction expert,
was that there had been no contact between our tractor-trailer and the
Quintero vehicle. In fact, Quintero had lost control while attempting to
pass our truck, and then hit the center median and, ultimately, the
Teodoru vehicle. Armed with that defense, we settled the Quintero claim,
at trial, for $18,000.
The Teodoru lawsuit was dismissed on a no-fault threshold motion, on
the ground that he did not suffer a “serious injury.” Teodoru appealed
to the New York Appellate Division, Second Department, arguing that his
serious-injury contention was supported by a finding of a significant
limitation of motion of the lumbar spine. In a unanimous decision, the
Second Department affirmed the dismissal, focusing on an unexplained gap
between the time Teodoru stopped treatment and the date that he obtained
a medical affidavit to oppose the summary judgment motion.
Quintero and Teodoru v. Crane, Supreme Court of New York, Appellate
Division, 2005
New Jersey Appellate Division limits reach of “Loading and
Unloading” coverage in Trucker’s insurance policy:
Our client’s truck driver suffered a back injury while unloading a
truckload of merchandise at a warehouse. He blamed the injury on an
electric pallet jack supplied by the warehouse, that lost its battery
charge during the operation, leaving the driver to have to maneuver the
loaded pallet jack without electrical power. The driver sued the
operator of the warehouse and also the maintenance contractor whose job
it was to keep the pallet jacks’ batteries charged. The two defendants
settled with the driver and then sued Travelers, the trucker’s insurer,
for reimbursement, claiming to be owed “loading and unloading” coverage.
Since our client’s deductible exceeded the settlement amount, we
intervened on their behalf and worked with Travelers’ counsel to defeat
the coverage claim. The Appellate Division held that the providing of
the pallet jack by the warehouseman, and the maintenance of the unit by
the contractor, were not “an integral part” of the unloading process.
Thus, the warehouseman and the contractor, and their general liability
insurers, were required to bear the expense of the settlement and the
defense of the truck driver’s lawsuit. This is a helpful clarification
of New Jersey’s wide-reaching and often confusing case law on the issue
of loading and unloading coverage.
Twin Oaks Bloc, Inc. v. Travelers Ins. Co., et al., etc., New Jersey
Appellate Division, 2003
Defense finding of no liability in serious truck accident case:
We successfully litigated a truck accident case, obtaining a decision
in favor of client. Plaintiff sustained serious injuries, including
tears of the anterior lip of the glenoid labrum and the coracohumeral
ligament requiring surgical intervention, as well as disc herniations in
the cervical and lumbar spines. She contended that our client’s driver
drove a tractor-trailer out of a parking lot, blocking plaintiff’s way
and providing plaintiff no chance to stop her vehicle. We proved that
plaintiff had ample distance to slow down, but could not do so because
she was speeding. We also established that plaintiff then tried to
swerve around our client’s tractor-trailer, ultimately coming into
contact with the tractor portion of the vehicle.
Ana Santos v. Penske Truck Leasing Co., Supreme Court, Queens County,
2002
Summary judgment for our trucking clients
Plaintiff allegedly sustained serious injuries in a multi-vehicle
collision and subsequently commenced suit against the operators of all
vehicles involved, including our client who was operating the lead
vehicle. On motion for summary judgment we were able to dismiss all
claims against our client arguing that he had been legally stopped in
traffic at the time of the collision.
Almonte v. Yutaka Chiba, et al., Supreme Court, Kings County, 2001
Plaintiff’s Expert Barred from Testifying Against Trailer
Manufacturer:
In a product liability claim against our client, a nationally-known
manufacturer of truck trailers, we moved successfully to bar the
testimony of plaintiff’s product liability engineering expert. As a
result, the lawsuit was dismissed with prejudice. The claim arose out
of a work-related injury sustained by a truck driver who had injured his
back and undergone multiple spinal surgeries, each leaving him worse off
than before. He claimed to be totally disabled as a result of the
wrenching of his back while attempting to close a roll-up door on a
trailer manufactured by our client and incorporating a door manufactured
by the co-defendant. Plaintiff’s engineer theorized that during a
morning of deliveries by the plaintiff, the tracks of the door, as well
as the rollers themselves, had become deflected by the shifting of
negligently-loaded cargo, causing the rollers to lodge and to lock the
door in an open position. Then, as the theory went, the cargo shifted
back, and so did the steel track. That’s why there was no evidence of
any damage afterward! The expert could not explain why this trailer had
been used for eight years without a hitch. A seven-hour deposition
provided ample support for the successful motion, and the trial judge (a
former plaintiffs’ attorney of note) was as incredulous as we were.
Stachow v. Consolidated Freightways, et al., Superior
Court of New Jersey, Middlesex County (2001)
Insurance Coverage for Construction Manager:
The client, a construction manager, faced significant exposure for
respiratory injury claims by workers employed by a subcontractor and
allegedly exposed to carbon monoxide fumes from a gasoline generator
operated in a closed basement area. The client’s insurers had disclaimed
coverage in timely fashion. Mr. Lane persuaded the CNA, the insurer for
the responsible subcontractor, to undertake the client’s defense and
indemnity. CNA took over and controlled the defense for nearly two
years, when it sought to disclaim by way of a declaratory judgment
action, raising the pollution exclusion for the very first time. On
motion for summary judgment, the Superior Court agreed that CNA had
waited entirely too long to raise the exclusion. The court confirmed
coverage and dismissed CNA’s action. Shortly afterward, CNA settled the
underlying claims for more than $1.5 Million, an exposure which
otherwise would have been faced by the client. CNA did not appeal.
CNA v. LMB, Superior Court of New Jersey, Middlesex County
Successful defense of engineering firm preparing property
condition assessment
A national real estate investment and property management firm
purchased a 326,000 square-foot warehouse in northern New Jersey. Our
client, a prominent engineering firm, prepared a property condition
assessment prior to the purchase. One and a half years later, a portion
of the roof of the warehouse collapsed as the result of a torrential
storm. The purchaser spent over $15,000,000 to repair and rebuild the
warehouse, and to remediate a problem with a natural cliff adjacent to
the building. With the aid of our engineering expert, we established
that the cause of the roof collapse, latent defects in the original
construction, could not possibly have been ascertained during our
client’s inspection of the building. The owner sued the original
architects and engineers, and the general contractor and subcontractors,
who constructed the building and who devised an allegedly inadequate
protective scheme for the adjacent cliff. On the day of trial, the case
settled for more than $10,000,000, with our client reluctantly
contributing a very miniscule percentage of that figure to avoid trial.
AMB Property, LP v. North Arlington Associates, Superior Court of New
Jersey, 2004
Sometimes a good settlement is the best strategy:
Our structural engineering client was engaged to design the
renovation of a warehouse to a retirement home. The owner required that
the design include as much open space as possible, which necessitated
removal of some existing concrete columns. Most could not be inspected
until demolition proceeded, and structural problems were noted when the
columns were removed. The problems, according to the owner, required
that the project be redesigned after some significant demolition of the
work already been performed, all at a claimed cost of $3.5 Million. The
Architect which had retained our client had already paid its policy
limit of $1,000,000 to the owner. We had an extremely cooperative and
helpful client, and we were aided by a structural engineering expert who
performed a powerful computer analysis. Armed as were, we negotiated a
settlement for less than ten percent of the redesign and remediation
costs being claimed.
Jewish Home at Rockleigh, Superior Court of New Jersey, 2002
Dismissal of claim against inspection engineers:
Our client performed soils testing for an addition to a school. The
client later determined that certain soils problems existed despite a
careful inspection, and brought the problems to the school board’s
attention before any construction began. Nevertheless, the school board
asserted a claim against the engineers for purported negligence and
breach of contract. When the claim reached the Superior Court, we moved
to dismiss because the school board had failed to serve an affidavit of
merit in the time required by New Jersey statute, attesting to the
validity of the claim. The school board countered, arguing that the
Affidavit of Merit Statute applied to personal injury claims, but not to
claims of commercial damage. The Superior Court ruled that the Statute
applies to professional claims regardless of the type of damages
claimed, and dismissed the complaint. By virtue of the Statute, a
dismissal for failure to provide an affidavit of merit is with
prejudice.
Montville Board of Education, Superior Court of New Jersey, Morris
County, 2002
Exoneration of consultant in chemical plant explosion:
An explosion at a New Jersey chemical tank farm propelled a worker
200 feet into the air, and to his death. Our client, a consultant, had
just taken on management duties with respect to a renovation project on
which the worker had been engaged. He was in the process of identifying
the project, and meeting with the contractors, when the terrible mishap
occurred. Aggressive plaintiffs’ attorneys disclosed a history which
they asserted showed prior deficiencies and carelessness of very serious
and long-standing proportions, supporting punitive damage claims against
the owners and contractors. After years of pre-trial discovery by the
plaintiffs’ attorneys, and coverage litigation in three states, they
achieved a multi-million settlement, with details largely undisclosed.
We held our ground, because our client had done nothing wrong. Our
client was voluntarily dismissed, with no contribution to the
settlement, as part of the conclusion of the case.
Matuza v. Safety-Kleen Corp., Superior Court of New Jersey
Arbitration victory for civil engineer in $5 Million planned unit
development controversy:
A major New York-New Jersey contractor/developer brought a $5,000,000
arbitration demand against our client, the site and environmental design
engineer, with regard to a large planned-unit development in upstate New
York. The developer claimed that the engineer had delayed in procuring
environmental and other regulatory approvals, and had made numerous
design errors, all causing the multi-million dollar project to be
delayed beyond a peak selling period and into an economic downturn. The
Developer, represented by Peckar & Abramson, was able to establish a
loss of more than $5,000,000, but we were able to thwart his attempts to
place blame for the loss on the Engineer. Through a 35-session
arbitration lasting over 13 months, we were able to establish that the
Developer’s financing had been cut off by his surety company because
they viewed the project as ill-conceived, that the marketing plan was
flawed, and that that the real cause of the financial collapse of the
project was the severe real estate downturn of the late 1980s. A
three-arbitrator panel ruled unanimously in favor of our client. Client
was sued, because they were convinced that an error had been made.
Tennanah Lake Associates v. Erickson & Schmidt Engineers,
American Arbitration Association
Exoneration of testing engineer at mediation:
Plaintiff, a construction worker, suffered very serious and
debilitating injuries in a fall from structural steel which collapsed
when a temporary steel weld gave way. Our client, one of several
defendants, had been engaged to perform inspections of concrete,
reinforcing steel, soils compaction, and, commencing on a date after the
accident, structural steel, including welds. Through pre-trial
discovery, we were able to demonstrate that the custom and practice was
for the inspections to be made when requested by the owner’s
representative, that no such request had been made for inspection of the
temporary weld in question, and that the owner’s representative did not
even know the weld had been performed and thus could not have made a
request for an inspection. Moreover, we demonstrated that it is unusual
for temporary welds to be inspected, because the inspectors necessarily
get in the way of work-in-progress, and it is unsafe to do so. A
mediation led to a settlement in excess of $1,000,000. Our client was
dismissed from the lawsuit and made no contribution to the settlement.
McGregor v. Can-Do Construction, Inc., Superior Court of New Jersey,
Essex County, 2000
- Insurance Defense and General
Liability Defense
Successful Defense of Arbitration Claim Resulting
in Finding of No Liability
Claimant filed a PIP subrogation claim seeking
reimbursement of medical expenses paid on behalf of their insured.
Claimant alleged that their insured was injured when her vehicle was
struck by our client’s tractor trailer at an intersection in Paterson,
New Jersey. In defense of the claim we argued that there was no contact
between the vehicles and that the damage to claimant’s insured’s vehicle
was not consistent with their rendition of how the accident occurred. In
successfully arguing our position, we utilized photographs taken by the
claimant’s own insured, showing damage to her vehicle. We argued that
the damage shown in the photographs was not consistent with the type of
damage that would have occurred in an impact with a tractor trailer.
Coupled with testimony from our client, we were able to convince the
arbitrator that the contact never occurred and obtained a dismissal of
all claims against our client.
Nationwide Mutual Insurance Company v. Travelers
Insurance Company, et. al., November 2006
Dismissal of Arbitration Proceedings on Statute of
Limitation Grounds
Claimant filed a PIP subrogation claim seeking
reimbursement of medical expenses paid on behalf of their insured.
Petitioner argued that their insured was under continuing medical care,
and that their petition was timely filed because the last day of
treatment had fallen within the applicable statute of limitations.
In opposing the claim, we successfully argued that there was an
unexplained two year gap in medical treatment, and that the alleged
resumption of treatment could not extend the applicable statute of
limitations. The arbitrator dismissed petitioner’s claim in its
entirety.
GEICO v. Truck Claims, Inc., August 2006
Summary Judgment for Lessor in Claim by Warehouse Dockworker
Plaintiff claimed that he sustained serious injuries at his work when
he allegedly slipped and fell in a puddle of water in his employer’s
warehouse. He claimed that the puddle was formed from a leaking roof,
and that it was the responsibility of the building owner and landlord to
inspect the roof and repair the condition. He further claimed that the
landlord was on notice of the condition and did nothing to repair it.
Plaintiff allegedly sustained injuries to his cervical and lumbar spine,
shoulder, left knee and left ankle. His injuries allegedly kept him out
of work for almost two years.
We moved for summary judgment, establishing that the building owner
owed no duty to this plaintiff. The owner was an out-of-possession
landlord who had transferred exclusive control possession and control of
the premises to plaintiff’s employer under a lease which made the
employer responsible for making the repairs to the roof. The court
granted our motion dismissing the complaint with prejudice.
James Robinson v. M. Parisi & Son Construction, Supreme Court,
Queens County, 2006
Read
The Decision [PDF file]
Appellate court finds demolition contractor owed no duty to remove
snow and ice on church premises:
Our client was contracted to disassemble the parsonage at the
Reformed Church of Middleburgh, New York, to make way for new
construction. One wintry day, with no work being done and no contractors
present, the plaintiff happened upon the property to observe the work
for his own interest. While there, he slipped on snow and ice and
sustained injuries which aggravated pre-existing conditions, leaving him
in a disabled condition. Plaintiff was neither a church member or
employee, nor otherwise lawfully upon the land. The Church’s motion for
summary judgment was correctly granted, but our motion was denied. On
appeal, the Appellate Division dismissed the complaint against our
contractor-client, agreeing that our motion should have been granted by
the lower court, because our client owed no duty to the plaintiff to
remove snow and ice from the premises. His contract was limited to the
disassembling of the parsonage.
DeMarrais v. Swift, New York Appellate Division, 724 N.Y.S.2d 654 (2d
Dept. 2001)
New York County Defense Verdict:
Plaintiff, a very nice lady in her 70s, fell down a flight of stairs
at a popular New York restaurant, allegedly sustaining a debilitating
injury to the brachial plexus. She had successfully descended the
stairway to the restrooms below, and had just reached the top on her way
back to her table when she lost her balance and fell backwards. The
plaintiff claimed that the stairway violated building code requirements
for a number of reasons, chiefly by failing to have handrails on both
sides. The restaurant was in a very old building, and we argued that the
pertinent code did not require more than one handrail. Most telling was
plaintiff’s admission at trial, that she does not know what caused her
to fall. The jury returned a defense verdict despite the lady’s
appealing nature and her serious injuries.
Futterman v. Lady Sunshine, Inc., Supreme Court, New York County
Bronx County Defense Verdict:
Plaintiff claimed that she was caused to sustain a fractured leg as a
result of a slip and fall incident on snow and ice on a perimeter
sidewalk to defendants premises. Issues at trial included whether there
was a special use of that sidewalk by defendant, and whether any snow
removal procedures had taken place prior to the incident. The matter was
ultimately tried to conclusion before a Bronx County jury, resulting in
a defense verdict.
Suero v. New York City Housing Authority, Bronx County
Successful defense on behalf of subcontractor in New York subway
construction claim:
Plaintiff alleged that she was caused to trip and fall on subway
stairs as a result of construction debris, sustaining a tri-malleolar
fracture of the left ankle requiring surgical intervention consisting of
the insertion of a plate and ten screws. The general contractor faced
strict statutory liability, and impleaded our client, a subcontractor on
the job site, asserting claims for contractual indemnity and breach of
contract). Through the course of discovery we were able to raise
numerous issues which shifted the focus of liability back to the general
contractor, and raised serious questions as to whether the accident
arose out of our client’s work. After we successfully opposed the
general contractor’s motion for summary judgment, the general contractor
settled the matter with plaintiff’s counsel for $117,500, with only a
very small contribution from our client.
Ali v. New York City Transit Authority, Supreme Court, New York
County, 2004
Successful defense of general contractor’s claim against
subcontractor for contractual and common law indemnity:
Plaintiff claimed that he was caused to trip and fall over a
defective condition on a subway platform that he contended was caused by
ongoing construction work. His injury, a fractured ankle requiring
surgical intervention, was complicated by pre-existing diabetes, causing
plaintiff to be hospitalized for 10 months and incurring a medical lien
in excess of $200,000. The general contractor brought suit against our
client, a subcontractor, seeking contractual indemnity and arguing that
the condition arose out of our client’s work. After completing
depositions, we were able to obtain an outright dismissal of all claims
against our client.
Diaz v. New York City Transit Authority, Supreme Court, New York
County, 2004
Successful defense of vision-loss claim - impleader of building
owner and tenant:
Plaintiff, a tile cutter, sustained a permanent injury to his eye,
resulting in vision loss, while assisting in the renovation of a
building situated on land owned by our client. We impleaded the owner of
the building, as well as the tenant who occupied the floor that was
being renovated. After completion of depositions, we were able to
persuade the third-party defendants to settle all claims directly with
plaintiff’s counsel, with no contribution from our client.
Lewis v. Nick & Duke, LLC, et al., Supreme Court, Kings County, 2003
Successful defense of New York Labor Law case with full
indemnification from subcontractor:
We successfully defended a land owner-contractor in a construction
accident case, in which plaintiff had obtained summary judgment against
our client under Section 240 of the New York Labor Law, which imposes
strict vicarious liability. We obtained a dismissal of all negligence
claims against our client, and successfully moved for summary judgment
against the sub-contractor for common law tort indemnity. Co-defendant
settled the case with plaintiff for $120,000 and subsequently reimbursed
our client for attorneys fees incurred in the defense of the action.
Vlasov v. Empire Homes Corp., Supreme Court, Westchester County, 2004
Dismissal of claim against New Jersey non-profit organization in
suit arising from child’s wheelchair accident resulting in severe leg
fracture:
A minor child suffering from cerebral palsy sustained a severe leg
fracture, requiring surgical repair, when his leg got caught in a
wheelchair. Suit was subsequently commenced on behalf of the minor
against our client, a non-profit organization that assisted the family
in obtaining the wheelchair, against the nurse who was caring for the
minor at the time of the occurrence, and against the nurse’s employer.
After attending an early mediation, we were able to obtain a dismissal
of all claims against our client.
Bachet v. People Care of New Jersey, Superior Court, Essex County,
2004
New Jersey jury finds no conscious pain and suffering in
unfortunate wrongful death accident case:
This case was tried on damages only, the sole issue being whether the
decedent, who died six days after the accident occasioned by our
client’s negligence, had sustained actual conscious pain and suffering
while in the hospital during those six days prior to his death. His
estate sued for economic damages, and for pain and suffering damages for
that time period. Our expert neurologist testified that throughout the
hospitalization, the decedent’s Glasgow Coma Scale score never exceeded
3 (on a scale of 1 to 15). Neurologically, this meant that the pain
“signals” could not reach the cortex – the portion of the brain which
detects pain – and that therefore the man did not suffer consciously
from the injuries. The jury agreed, and damages were awarded on the
lesser claim of loss of enjoyment of life for those six days, a figure
which our client had already offered.
Estate of Corrigan, Superior Court, Union County, 2000
Aggressive pursuit of co-defendant’s insurer despite disclaimer
for late notice:
Plaintiff Alexander worked for the general contractor doing
construction work at our client’s property. She claimed to have fallen
and sustained a severe wrist fracture, requiring surgery, while standing
on a barrel because she was not provided with a ladder to perform her
duties. She sued our client, and also sued her own employer, the
contractor (who had failed to provide worker’s compensation insurance).
The contractor failed to defend, and did not notify his liability
insurer until after a default judgment was entered. Not surprisingly,
the insurer disclaimed for late notice. The contractor never contested
the disclaimer.
As our client was an interested party, we commenced a third-party
action against the insurer, arguing that its disclaimer to plaintiff’s
employer was itself untimely under New York law. On that basis, the
insurer subsequently appeared in the action, and paid 75 percent of the
settlement.
Alexander v. LaSala, Supreme Court, Bronx County, 2002
Dismissal of suit against municipality for failure to file notice
of claim:
Plaintiff claimed that she sustained injuries when she fell upon an
uneven public sidewalk. She brought suit against our client, the
municipality where the sidewalk was situated. On our motion, the
Superior Court dismissed the complaint with prejudice. Plaintiff had
failed to file the requisite notice of claim prior to commencing suit
against the Borough, and had not petitioned the Court for an extension
of time to file the notice.
Acebo v. Borough of Sayreville, et al., Superior Court, Middlesex
County, 2002
Summary judgment granted in super market slip-and-fall claim:
Plaintiff, a patron at defendant’s supermarket, allegedly sustained a
lumbar herniated disc in a slip and fall incident on a foreign substance
located near one of defendant’s check out counters. On our motion for
summary judgment the court agreed that there was no evidence that the
condition was caused by our client, or that in spite of its close
proximity to the check out counter, that the substance was present for a
long enough period of time to place our clients on notice of the
condition. The Court granted our motion and dismissed plaintiff’s
complaint. There was no appeal of the decision.
Eschweiler v. Associated Grocers, Civil Court, New York County, 2002
Plaintiff’s Expert Barred from Testifying Against Trailer
Manufacturer:
In a product liability claim against our client, a nationally-known
manufacturer of truck trailers, we moved successfully to bar the
testimony of plaintiff’s product liability engineering expert. As a
result, the lawsuit was dismissed with prejudice. The claim arose out
of a work-related injury sustained by a truck driver who had injured his
back and undergone multiple spinal surgeries, each leaving him worse off
than before. He claimed to be totally disabled as a result of the
wrenching of his back while attempting to close a roll-up door on a
trailer manufactured by our client and incorporating a door manufactured
by the co-defendant. Plaintiff’s engineer theorized that during a
morning of deliveries by the plaintiff, the tracks of the door, as well
as the rollers themselves, had become deflected by the shifting of
negligently-loaded cargo, causing the rollers to lodge and to lock the
door in an open position. Then, as the theory went, the cargo shifted
back, and so did the steel track. That’s why there was no evidence of
any damage afterward! The expert could not explain why this trailer had
been used for eight years without a hitch. A seven-hour deposition
provided ample support for the successful motion, and the trial judge (a
former plaintiffs’ attorney of note) was as incredulous as we were.
Stachow v. Consolidated Freightways, et al., Superior
Court of New Jersey, Middlesex County (2001)
- Insurance Coverage, Bad
Faith, and Suretyship
Marine Insurance
See the following cases under
Admiralty Law and Marine Insurance:
Kearny Barge Company, Inc. v. Global Insurance
Co.
Landmark Insurance
Company v. United National Ins. Co.
Construction Insurance
See the following case in the Construction Litigation section:
CNA v. LMB
Insurer not required to provide separate defense counsel to dual
insureds where policy limit far exceeds claim exposure:
Our client was sued by its named insured, a condominium association,
for bad faith, because the insurer refused to appoint separate defense
counsel to defend the association and its property manager (also covered
under the policy) in a personal injury suit. The underlying plaintiff
was a condominium owner injured in a fall on the premises. . The
insurer declined to follow the association’s demands that separate
counsel be appointed for it and the property manager, and that defense
counsel for the association pursue a cross-claim for indemnification
from the property manager. We defended the insurer, establishing that
there was no conflict between the association and the property manager,
that the value of the case was well below the $1,000,000 policy limit,
and that pursuing a cross-claim would be frivolous: the insurer would
still have to pay the judgment. The claim was settled by the insurer
for $34,500. In the bad-faith declaratory judgment action, the Superior
Court of New Jersey ruled that under the circumstances the insurer was
free to control the defense and settle the claim as it deemed best, that
there was no bad faith on the part of the insurer, and that the
declaratory judgment complaint should be dismissed.
Meadows at the Renaissance Condominium Association, Inc. v.
Philadelphia Indemnity Insurance Company, Superior Court of New Jersey,
2005
Successful Management of coverage issues, primary and excess, in
construction death claim; Insurer fully exonerated from Coverage in
wrongful death lawsuit in Bronx County:
Our client, a general liability insurer, insured the owner of a
building in lower Manhattan undergoing renovation. In the early stages
of demolition, a beam fell, killing a foreman employed by the general
contractor. Suit was soon commenced against the owner, for alleged
negligence and statutory causes of action. We had been retained within
days of the accident, and we were thus prepared to act immediately to
protect the insurer’s interests, through litigation if necessary. We
demanded that the primary and excess insurers for the general contractor
(immune from suit by its employee because of the worker’s compensation
exclusivity provisions) undertake the defense and indemnity of our
client’s insured, because the owner was an additional insured under
their policy, and because of an indemnity provision in the construction
contract. The contractor’s primary insurer agreed, providing a defense
under a reservation of rights. We then insisted, over vigorous
resistance, that their appointed defense counsel implead the contractor
to seek common-law and contractual indemnity, and thus to reach the
contractor’s excess and employee-liability coverages. The case was
ultimately settled for approximately $8.8 million. Our client, thus
fully exonerated, paid nothing, all without the need to commence
coverage litigation.
Wersan v. Downtown Development Corp., Supreme Court, Bronx County,
2004
Surety for estate administrator not responsible for breach of
fiduciary duty:
Beneficiaries of an estate brought suit in state supreme court in
Kings County, New York, for losses resulting from the alleged
defalcation of the estate administrator. The administrator, wishing to
protect his assets, persuaded the claimants to enter into a consent
judgment against him, to be funded by pursuit of a claim against the
administrator’s fiduciary bond. If the scheme worked, the administrator
would get away scot-free, and the claimants would collect from the
surety. The claimants then brought a proceeding in the Surrogate’s
Court to recover on the bond. We represented the surety and
successfully opposed the attempted collection in the Surrogate’s Court.
On appeal, the Appellate Division affirmed in an abrupt opinion holding
that no such recovery could be had without first obtaining a
determination of fiduciary liability in a separate proceeding in the
Surrogate’s Court. The scheming claimants received nothing.
In the Matter of Estate of Michael L. Guzzo v. United States Fire
Ins. Co., 739 N.Y.S.2d 615 (2d Dept. 2002)
No Coverage for Assault and Battery Lawsuit
We brought a declaratory judgment action for our insurance company
client against its insured, an auto repossession business, for a
declaration that no coverage was owed in respect of a lawsuit that
alleged in unusually explicit terms the purported unruly conduct of the
insured’s employees. They allegedly went to the claimant’s home at 2
a.m., banged on doors and windows, shined flashlights into the home,
used vile language, and misrepresented themselves as law enforcement
officers. The family sued the insured for trespass, unlawful entry,
false imprisonment, assault, and negligence. In our lawsuit we argued
that the claim, when distilled, involved assault and battery. The U.S.
District Court for the Southern District of New York agreed that under
New York law, the policy provides no coverage, because an assault and
battery incident is not an occurrence, because it is not an “accident.”
Moreover, the negligence claim was also not covered, as New York applies
the “but for” test: “if no cause of action would exist but for the
assault, the claim is based on the assault.” The district court thus
granted our motion for summary judgment.
First Financial Ins. Co. v. XLNT Recovery Specialist, Inc., 2000 WL
043499 (S.D.N.Y. 2000).
See the cases involving Architects’ and Engineers’ Liability
under Construction Litigation case histories
Attorneys held to share liability with real estate
broker:
We successfully defended a real estate broker in southern New Jersey,
accused of touting a parcel of unimproved land as perfectly suited for
commercial development. Unbeknownst to the realtor and the seller, the
land was virtually unbuildable, as some 90 percent of the parcel was
determined to be Wetland. The buyer sued the seller and our client. We
impleaded the buyer’s attorneys, alleging that the attorneys had the
primary responsibility to protect their client and to arrange for the
appropriate inspections and investigations before allowing their client
to make the purchase. The real estate attorneys moved for summary
judgment, urging that our claim against them failed to state a cause of
action. The Superior Court denied their motion, agreeing with us that
under recent New Jersey precedent, the real estate attorneys owed a duty
not only to the buyer-client, but also to the realtor, our client, to
investigate the transaction and counsel against it if the investigations
proves that the property cannot be used. A very favorable settlement
followed, with a very large contribution from the real estate attorneys’
errors and omissions insurer.
MEDQ Litigation, Superior Court of New Jersey, 2004
- Commercial & Business
Litigation
New Jersey Superior Court Dismisses Lawsuit Against
California Produce Distributor for Lack of Jurisdiction
Our client, a California produce distributor, sold a load of broccoli
to its customer in Massachusetts. The customer arranged for
transportation through a broker but did not pay for any of the
transportation because one of the loads, not from our client, arrived
unrefrigerated and damaged. The broker sued the customer in New Jersey,
which had no connection with the transaction. The lawsuit also included
claims against all of the California growers, despite the clear
Non-Recourse wording on the Western Growers Association bills of lading
utilized in the transactions. Plaintiff’s attorney then began to harass
our client and its banking facilities for collection of the default
judgment. We appeared in the Superior Court, succeeded in lifting the
default judgment and then filing a motion to dismiss for lack of
jurisdiction. The Court granted that motion and also the customer’s
motion to dismiss for lack of jurisdiction. Plaintiff’s attorney gained
nothing by his questionable efforts.
Alliance Shippers, Inc. v. The Alphas Company, Inc.
(Superior Court of New Jersey, 2008)
Major coverage victory for national pollution insurer:
Our client insured the barge Cynthia M for pollution liabilities. The
Cynthia M sank at its dock on the Hackensack River in New Jersey, laden
with a cargo of caustic soda which could have discharged into the river
and the surrounding wetlands. At the Coast Guard’s direction, the owner
salvaged the barge carefully, avoiding any pollution incident, and then
sent the bill to their Hull & Machinery underwriter, Global Insurance.
This company became insolvent. The owner then sued both Global and WQIS
for reimbursement. After a bench trial, the district court found for
WQIS, accepting our points that the salvage was ordered to prevent a
threat to navigation on a busy waterway, the threat of pollution had
been abated by sealing the Cynthia M’s tanks and valves, and that the
cost of salvage is the obligation of the hull underwriter, not the
pollution insurer. The Third Circuit affirmed. WQIS continues to cite
this landmark opinion throughout the Country, and uses it to support the
premium for an ancillary coverage, made available to its policyholders,
for salvage of a vessel involved in a pollution incident. The findings
of this case, in our favor, has saved millions of dollars for our
client.
Barge Cynthia M: Kearny Barge Co., Inc. v. Global Insurance Co., 943 F.Supp. 441, 1997 A.M.C. 715 (D.N.J. 1996), aff’d, 127 F.3d 1095 (3d
Cir. 1997)
Arbitration victory for civil engineer in $5 Million planned unit
development controversy:
A major New York-New Jersey contractor/developer brought a $5,000,000
arbitration demand against our client, the site and environmental design
engineer, with regard to a large planned-unit development in upstate New
York. The developer claimed that the engineer had delayed in procuring
environmental and other regulatory approvals, and had made numerous
design errors, all causing the multi-million dollar project to be
delayed beyond a peak selling period and into an economic downturn. The
Developer, represented by Peckar & Abramson, was able to establish a
loss of more than $5,000,000, but we were able to thwart his attempts to
place blame for the loss on the Engineer. Through a 35-session
arbitration lasting over 13 months, we were able to establish that the
Developer’s financing had been cut off by his surety company because
they viewed the project as ill-conceived, that the marketing plan was
flawed, and that that the real cause of the financial collapse of the
project was the severe real estate downturn of the late 1980s. A
three-arbitrator panel ruled unanimously in favor of our client. Client
was sued, because they were convinced that an error had been made.
Tennanah Lake Associates v. Erickson & Schmidt Engineers,
American Arbitration Association
- Product
Liability - Federal Regulations
Complete Indemnification for Chassis Lessor in Accident
Involving Loss of Arm:
Our client, a major lessor of intermodal chassis, was sued by a truck
driver who lost his left arm at the shoulder when his tractor, hauling
the chassis and a shipping container, rolled over on a curved off-ramp
from the New Jersey Turnpike. The driver was ejected and pinned between
the truck and the guard rail, causing the serious injury. He claimed
that the chassis brakes did not perform properly and that the design and
maintenance of the chassis were faulty. He also sued the manufacturer,
as well as the ocean terminal that maintained the chassis. The
defendants all claimed that excessive speed, not a mechanical defect,
caused the accident. The defendants all had brake experts who reached
the same conclusion.
We pursued contractual indemnity from the trucker and insurance
coverage from its insurer. Initially, they both declined our claims.
They capitulated when they realized our earnest intent to move for
summary judgment and to commence a declaratory judgment action against
the insurer. The insurer accepted our tender and confirmed coverage, and
repaid our client for our prior legal bills. It then retained us to
continue the defense in this complicated case involving design,
manufacturing, and federal regulation issues. The case eventually
settled on very acceptable terms.
Leonel Sanchez v. Menu Foods, et al., Superior Court of New
Jersey, Hudson County, 2007
Victory in a Hard-Fought Will Contest Between Two Sisters:
This case had to take the cake - almost literally. Two adult sisters
had been warring for decades. Sister L had become estranged from Mom in
the 1970s, barring Mom even from seeing her grandchildren. Sister D,
our client, stayed with Mom, taking care of her into her later years.
In 1987, Mom went to her personal lawyer and arranged to put her home in
joint name with D, and also advised her attorney of her intent to place
most of her financial fortune in similar joint ownership, all with
rights of survivorship. At the same time, she had him prepare a will
that was quite fair to L, although the probate estate would be small
indeed. Mom lived a happy and active life, traveling to Europe,
attending theaters and garden shows, and doing her own gardening. Until
the time of her death in 2000, Mom was doing the cooking for D and her
husband, and had even traveled to Florida to visit a favorite brother
just three weeks before her unexpected death. She returned home, and
was cooking for D and D’s husband when she felt ill, went to lie down,
and passed away peacefully.
It was only then that Sister L discovered that Mom had depleted her
estate, giving most of it in joint tenancy to Sister D. Sister L
brought a federal court suit against D, alleging undue influence over
many years, culminating in the 1987 property transfers. It was then
that the witnesses favorable to D came forward in droves. They included
friends and siblings of Mom, her grandchildren, and even the ex-wife of
Mom’s son! All testified in depositions that Mom could not be
influenced by anyone. Her brother in Florida answered the question,
“Could your sister be influenced to transfer her wealth against her
will?”: “My sister, don’t be ridiculous!” The former
daughter-in-law, and two grandsons had produced a video of Mom’s life,
in the 1990s, featuring D and the daughter-in-law interviewing Mom,
Barbara Walters-style. Mom came across like the feisty, independent
(and thrice-married) woman that she must have been.
The federal court in New York dismissed the complaint upon motions
for summary judgment, in a most unusual opinion.
L.L. v. D.G., U.S. District Court, Eastern District of New
York, 2004
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