Attending CLM’s Professional Liability Conference in Boston July 26-28th? Be sure to connect with GVK Partner, Kenneth S. Merber, who is presenting on ‘How Technology has impacted the Duty to Defend and Duty to Indemnify in EPL Claims’ Friday morning. Ken can be contacted at kmerber@gvlaw.com 

For more information about CLM’s Professional Liability Conference visit CLM’s website. 

 

Gallo Vitucci Klar LLP is continuing its growth and expansion looking for junior to mid-level associates in the following offices and practice areas:

If you would like to join our team, please send a cover letter, resume, and writing sample to gvkcareers@gvlaw.com. If your credentials and interests appear appropriate for an open position, you will be contacted.

New and Improved GVK

(To view our newsletter in full click here.)

Calculated Growth and Expansion

The first quarter of 2017 has gotten off to a great start for GVK. We are proud to add to the depth of our services and we continue in our commitment to quality legal representation and efficient legal services for our clients. The GVK of today is comprised of over 65 attorneys in 4 offices including senior partners, seasoned litigators and bright new hires ready to tackle
issues big and small for our clients. Upgrading our infrastructure, launching a new website, inviting partners to join GVK in key management and client-based positions and the ability to offer clients non-traditional legal services are just some of the exciting changes we’ve seen at GVK in 2016.

Long Island Office

We recently opened the doors of a fourth office located at 100 Crossways Park West in Woodbury, Long Island. This new and modern space is set in the center of Long Island. Named Partner, Co-Founder and leader of the firm’s Transportation Department, Matthew J. Vitucci heads the new Woodbury office. Matt is joined by Alida A. Verdino, Partner and Professional Liability Specialist; Daniel P. Mevorach, Partner and Co-Chair of the Coverage Department; James P. Deegan, Partner and Senior Trial Counsel and Bill V. Kakoullis, Partner and Construction Accident Specialist.

Work Life Balance

GVK has always strived to better serve our clients and provide a healthy work-life balance for our staff. The opening of the Woodbury office is yet another example of our efforts. GVK attorneys are now closer than ever before to the Courts and clients located in Queens, Nassau and Suffolk Counties.

GVK Wins

Summary Judgment                                                                                                                                                                      

Associate, Rozaly Cohen was successful in Superior Court, State of New Jersey in dismissing all claims of punitive damages, costs and attorney’s fees against her client. The plaintiff alleged that the defendant’s actions against the plaintiff’s coop amounted to Consumer Fraud. Rozaly argued and the Court agreed that the relationship between the association and the coop shareholder is not that of the landlord tenant, and therefore, The Consumer Fraud Act does not apply.

Trial Win

Senior Trial Counsel and Partner Kenneth S. Merber obtained a defense verdict on behalf of a longtime GVK client and one of the largest property maintenance companies in the United States. In an alleged slip and fall by an employee at their offices, the plaintiff alleged that the matron of a GVK client failed to place a warning cone in the area of a recently mopped floor. RSD was alleged and both the plaintiff and his physician had previously testified that an amputation of plaintiff’s lower leg was sought to limit or end his constant pain. After the bifurcated trial, the jury returned a unanimous defense verdict in less than 30 minutes.

Trends in Litigation Defense & New Types of Insurance

Level Insurance is changing the scope of financial risk associated with civil litigation: but for whom?

With the advent of companies who provide to plaintiffs either pre-settlement or pre-verdict funds (with a hefty interest rate), the risk associated with civil litigation has consistently decreased for plaintiffs, while the risk associated with trial for the actual firm’s or attorneys trying the cases remained constant.

Is this the new trend in Insurance Litigation?                                                                                                                              

However, with the introduction of Level Insurance in 2016, where coverage is afforded to cover costs of trial in the event of a defense verdict; firms and attorneys alike are minimizing risk. Level does not analyze the merits of any particular case, as the policy is only paid out if the matter proceeds to trial and a jury awards no money to the plaintiff.
Level does not pay out for lawsuits that are dismissed or settled pre-verdict.

Is this going to increase motivation to take cases to verdict?

As a result, in 2017, we will likely see the number of cases that plaintiffs’ counsel recommend taking to trial increase, with little to no impact on the amount of low level cases plaintiffs take on or refuse to take on from the beginning.

On May 25, 2017, Chad Sjoquist obtained a unanimous defense verdict on behalf of a cooperative apartment building in a Labor Law 240(1) case. The case was tried before Justice Frank P. Nervo in the Supreme Court, New York County.

The plaintiff was a temporary worker for a small painting company that was retained by an apartment owner in our client’s building to repaint portions of the apartment. The plaintiff alleged that he fell from a ladder while sanding a closet ceiling. He claimed lumbar and cervical injuries with the need for a future surgery and initially demanded more than $2 million to settle the case. In addition to his alleged pain and suffering, the plaintiff claimed more than $400,000 in past and future medical expenses.

During the trial, Mr. Sjoquist raised significant questions regarding the plaintiff’s credibility. There were no other witnesses to the alleged accident, and Mr. Sjoquist used inconsistencies between the plaintiff’s deposition and trial testimony to convince a jury that the plaintiff could not prove that the alleged accident occurred or that he fell in the manner that he claimed.

On June 6, 2017, the Court of Appeals (New York’s highest court) made new law holding that an Additional Insured endorsement (such as CG 2033 07/04) affording coverage for liability “caused, in whole or in part by the ‘acts or omissions’ of the named insured” only apply when the named insured is the proximate cause of the liability to the additional insured.

This holding rejected a few years worth of intermediate court decisions holding that the endorsement was triggered when the named insured was a “but for” cause of the liability, and does not provide clear guidance on the law in situations involving injuries to employees of the named insured. And although this holding is more in line with both the language and the intent of the ISO endorsement, it will be difficult to implement because additional insured coverage will not be determined until after a jury verdict on proximate cause. In addition, it did not directly address duty to defend issues.

The decision arises from an underlying matter commenced in which the plaintiff, a New York City Transit Authority (“NYCTA”) employee, fell off of an elevated platform as he tried to avoid an explosion after a Breaking Solutions, Inc. (“BSI”) machine touched a live electrical cable buried in concrete at the excavation site.

The Burlington Insurance Company (“Burlington”), issued an insurance policy to BSI listing the New York City Transit Authority (NYCTA) and MTA New York City Transit (MTA) as additional insureds: “. . . only with respect to liability for ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ caused, in whole or in part, by: 1) Your acts or omissions; or 2) The acts or omissions of those acting on your behalf.”

Following discovery in the underlying matter, BSI was judicially determined to be free from fault and that the explosion was due to NYCTA’s negligence. It was determined NYCTA failed to identify, mark, or protect the electric cable, and also failed to turn off the cable power, and as a result the BSI machine operator could not have known about the location of the cable or the fact that it was electrified. As a result,Burlington sought a declaration that it did not owe NYCTA and MTA coverage as additional insureds under BSI’s policy on the grounds the accident was not caused BSI’s acts or omissions. The Supreme Court granted Burlington’s motion for summary judgment in the declaratory judgment action, holding that NYCTA and MTA were not additional insureds because the policy limited liability to instances where BSI, as the named insured, was negligent.

The Appellate Division reversed, denying plaintiff’s motion for summary judgment and to amend the complaint, and granting defendants’ cross motion for summary judgment, declaring that defendants were entitled to coverage as additional insureds under the Burlington policy. The court concluded that even though the named insured was not negligent, “the act of triggering the explosion . . . was a cause of [the employee’s] injury” within the meaning of the Additional Insured endorsement requirement that the accident be caused, in whole or in party, by BSI acts or omissions. The court also determined that as a consequence, it “necessarily follows that the anti-subrogation rule bars Burlington from recovering, as the City’s subrogee.”

The Court of Appeals agreed with Burlington’s argument that under the plain meaning of the endorsement, NYCTA and MTA are not additional insureds because the acts or omissions of the named insured, BSI, were not a proximate cause of the injury, i.e., the additional insured was the sole proximate cause of the injury. The court concluded that there is no coverage because, by its terms, the policy endorsement is limited to those injuries proximately caused by BSI, as it unambiguously states that an entity is “an additional insured only with respect to liability for ‘bodily injury’ caused, in whole or in part, by [BSI’s] acts or omissions.”

The Court rejected the defendants’ argument that that the terms “caused, in whole or in part” means “but for” causation, holding that “these words require proximate causation since ‘but for’ causation cannot be partial.” The Court also rejected defendants’ argument that the phrase “‘caused by’ doesnot materially differ from the phrase, ‘arising out of’ and results in coverage even in the absence of the insured’s negligence. See Regal Construction v National Union Fire Ins. Co. of Pittsburg, PA, 15 N.Y.3d 34, 38 (2010) (the phrase “arising out of” is “ordinarily understood to mean originating from, incident to, or having connection with”). The court concluded that BSI was not at fault, the employee’s injury was due to NYCTA’s sole negligence in failing to identify, mark, or deenergize the cable, and therefore was not caused, in whole or in part, by BSI’s acts or omissions.

Justice Fahey, dissenting, wrote that the “bedrock principles of insurance contract interpretation demand that we conclude that defendants are entitled to coverage with respect to the underlying matter as additional insureds under the policy of insurance issued BSI.” He further wrote the endorsement confers additional insured status where the “mere acts of the named insured cause the bodily injury complained of. If the drafter meant for such status to be contingent upon a negligent act or acts of the named insured, acts or omissions, then the policy easily could have said as much….Similarly, if the drafter intended that coverage under the endorsement be contingent upon a showing of proximate cause, then the policy easily could have been written to contain that condition…. [therefore] there is no basis to apply a legal meaning, rather than a plain and ordinary meaning, to the word ‘cause’ in this context.”

While the effect of the Court’s decision in Burlington remains to be seen, the decision will likely require a judicial determination as to liability in the underlying bodily injury action before a declaratory judgment action involving similarly worded Additional Insured endorsements can be decided. Furthermore, it is possible courts will limit the holding in Burlington to apply only where the injured person is an employee of the party seeking additional insured coverage, as opposed to an employee of the named insured.

 

On June 1, 2017, Kenneth S. Merber obtained a directed verdict after a 3-week jury trial in the Supreme Court of the State of New York, County of Queens in a premises liability case brought against a New York City commercial building owner, its managing agent and maintenance contractors.

Ken successfully defended one of the world’s largest maintenance service contractors. The case was tried before the Hon. Carmen Velasquez. Plaintiff alleged the defendants were negligent and that they violated various provisions of the New York City Administrative Code. Plaintiff also relied upon the doctrine of res ipsa loquitor. Plaintiff alleged the defendants failed to address and remedy a recurring condition which caused repeated and extensive backups of the building’s plumbing system and its connection to the New York City sewer system. Plaintiff alleged that she sustained catastrophic life altering injuries including a concussion with loss of consciousness and multiple herniated discs for which she underwent multi-level discectomies, decompressions and fusion procedures with bone grafting and the placement of medical instrumentation.

Plaintiff had a poor result post-operatively including a non-union of the bone grafts. Plaintiff’s expert opined that the claimant requires additional surgeries including a revision of the previously performed discectomies and fusions.

Plaintiff incurred approximately $300,000 in past economic losses. Prior to the trial, Plaintiff’s demand was $6 million. Her demand was never reduced below $2 million. This was Ken’s second defense verdict in the past month.

 

Clark

Gallo Vitucci Klar LLP is proud to congratulate our newly promoted partner, Jessica A. Clark! Jessica began her career with GVK in 2010, and has since proven herself as a major asset to our team.

She has recently worked on two high-profile crane collapse cases, while also specializing in general litigation matters, including New York Labor Law and premises liability. In addition, Jessica has argued appeals in the First and Second Appellate Divisions of New York and has obtained many successful outcomes for our clients.

Since joining GVK, Jessica continues to be an integral component of our firm’s past, present and future ideals, vastly contributing to our recent growth and achievements.

 

Themis Advocates Group is excited to be hosting their 5th Annual Mock Trial Event in Chicago, IL. This year’s event will feature GVK attorneys, Ken Merber, Partner & Senior Trial Counsel, and Alida Verdino, Partner & General Liability and Professional Liability Specialist.

This year’s mock trial will follow a professional liability fact pattern. Themis Advocates Groups’ highly skilled and experienced attorneys will handle all aspects of the trial including Voir Dire, witness examinations, motions in limine, opening statements and closing arguments. The trial will include a randomly selected live jury as well as real-time jury on-screen analysis of witnesses. There will also be time allotted for jury consultant analysis and strategy discussions. There is no cost to claims professionals to attend. Beverage services and lunch will be provided, and a cocktail hour will follow.

For more details about this event and how to register, click here.

Gallo Vitucci Klar LLP is continuing its growth and expansion looking for 5 junior to mid-level associates in the following offices and practice areas:

If you would like to join our team, please send a cover letter, resume, and writing sample to gvkcareers@gvlaw.com. If your credentials and interests appear appropriate for an open position, you will be contacted.

Richard GonzalezAs head of GVK’s Maritime and Admiralty Practice Group; Lieutenant Commander Richard González, provides a unique ethos of realistic, well-rounded legal advice to insurers and insureds alike in the successful defense of all admiralty matters. Prior Lead Marine Investigator for US Coast Guard Richard’s rare combination of US Coast Guard Investigator and attorney ensures the very best defense for our clients from the moment GVK’s Maritime Emergency Response Team (MERT) arrives on the scene of a vessel casualty. Prior to joining the firm, Commander González served as lead marine investigator for the U.S. Coast Guard in New York and New Jersey, where he handled multiple high profile maritime accidents, casualties, and environmental pollution/crimes, including vessel groundings and collisions.

For more information about Richard’s experience and qualifications click here.