In an unpublished opinion, the Appellate Division of the New Jersey Superior Court addressed yet another case in which an insured business owner sought coverage for losses allegedly suffered due to the presence of COVID-19 and Governor Murphy’s Executive Orders (“EOs”). In Fleming Ruvoldt PLLC v. Sentinel Insurance Company, Ltd. et. al., the plaintiff business owner filed multiple claims against the insurer, the insurer’s parent company, and the plaintiff’s insurance broker. As set forth more fully below, the Court affirmed the trial court’s dismissal of the coverage claims against the insurers and professional negligence claims against the broker. The Court did, however,
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NJ Appeals Court Applies Holding of Baldwin Shields v. Ramslee to Oral Lease Between Landlord and Tenant in Premises Liability Action for Slip and Fall on Snow and Ice
In a personal injury negligence case involving a slip and fall on leased property, the Appellate Division of the New Jersey Superior Court, relying on the precedential decision of Baldwin Shields v. Ramslee Motors, affirmed the trial court’s grant of summary judgment to a property owner on the basis that a commercial property owner can properly delegate the duty to remove snow and ice to a tenant. Clark & Fox was instrumental in obtaining the important holding in Ramslee by taking the case all the way to the New Jersey Supreme Court to secure liability protection for commercial landowners who
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NJ Trial Court Commits Plain Error in Failing to Make a Merits-Based Coverage Decision in Declaratory Judgment Claims Airing Out of Dog Bite Case
In a non-published opinion, the Appellate Division of the New Jersey Superior Court vacated a trial court’s dismissal of a plaintiff’s declaratory judgment against an insurer after conducting a de novo review and finding that the trial court committed plain error in entering summary judgment in favor of the insurer. As set forth below, the procedural background of Sanchez v. Fernandez is quite convoluted, but at the end of the day, the Appellate Court found that the trial court committed plain error in granting summary judgment to the insurer regarding coverage when issues of material fact existed. Plaintiff was injured
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NJ Appeals Court Confirms ACC Clause Excludes Coverage for Loss Caused by Water Seepage and Earth Movement
In Headley v. Stillwater Insurance Group (unreported), the trial court granted summary judgment to an insurer in a case involving coverage for the collapse of a home foundation. The policy at issue contained water and earth movement exclusions with an anti-concurrent clause (“ACC”). Such a clause precludes coverage for losses resulting in any manner from and excluded cause. The lower court held that the water and earth movement exclusions barred coverage for the loss due to the ACC clause. On appeal, the Appellate Division affirmed the decision and the insured’s case was dismissed. The insured’s home suffered property damage after
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NJ Appeals Court Finds Mode-of-Operation Principle Applicable to Self-Service Bagel Shop in Premises Liability Claim
In a premises liability case involving a slip and fall, the New Jersey Appellate Division reversed the trial court’s grant of summary judgment to a business owner on the basis that the court failed to apply the mode-of-operation standard to the facts of the case. In Aly v. A&H Bagels (unpublished), the Appellate Court determined that the self-service nature of the bagel store required the court to examine the store’s duty of care differently because of the inherent hazard caused by that type of business operation. In this case, Defendant owned a bagel shop where customers purchased products, such as
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NY Trial Court Enforces Vacancy and Water Damage Exclusions to Bar Coverage for Water Damage Claim
The Supreme Court-New York addressed a case where an insured sued an insurer after the insurer denied its claim for water damage to a restaurant caused by frozen pipe bursts in sprinkler pipes and domestic water lines. In Arrpei LLC v. Public Service Mutual Insurance Company (“Public Service”), the court granted summary judgment to the insurer on the basis that the policy’s Vacancy and Water Damage Provisions precluded coverage because it was undisputed that the restaurant had been vacant and without heat for several months before the loss. The facts regarding the loss are straightforward. Public Service’s policy contained a
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New York Trial Court Finds Policy’s Personal Liability Endorsement Excludes Insurer’s Duty to Defend Insured in Underlying PI Suit
In an insurance coverage action regarding an insurer’s duty to defend or indemnify defendant property owners in an underlying personal injury suit, the New York County Supreme Court determined that the suit was excluded from coverage and entered default judgment in favor of the insurer. Defendants, although properly served by the insurer, failed to enter appearances, so the insurer brought a motion pursuant to CPLR 3215 for default judgment and presented competent evidence that it had no duty under the facts of the case and language of the policy to defend or indemnify the defendants because the property where the
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Injured Plaintiff’s Case Doomed by Failure To Provide Evidence that Business Owner Had Actual or Constructive Notice of Dangerous Condition
In Sharif v. Dominant Domain, the NJ Appellate Division upheld the trial court’s grant of summary judgment to a business owner who was sued by a plaintiff injured in a slip and fall. Finding that plaintiff failed to offer competent evidence to demonstrate actual or constructive notice of a dangerous condition, the Court held that there was no genuine issue of material fact regarding notice of any hazard prior to plaintiff’s fall. In her deposition, plaintiff testified that she slipped and fell on ice while descending exterior stairs at the rear entrance of defendant’s commercial building. She had not seen
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NJ Appeals Court Holds that Only Drivers Convicted of DWI are Barred from Filing Suit for Loss Under Statute
In Castano v. Augustine, the New Jersey Appellate Division faced the legal question of whether a statute precluding intoxicated motor vehicle drivers from filing negligence actions applied to a situation where an allegedly intoxicated driver was neither charged with nor pleaded guilty to Driving While Intoxicated (‘DWI”). The statute, N.J.S.A.39:6A-4.5(b), states as follows: “Any person who is convicted of, or pleads guilty to, operating a motor vehicle in violation of [N.J.S.A.] 39:4-50, [N.J.S.A. 39:4-50.4a],[1] or a similar statute from any other jurisdiction, in connection with an accident, shall have no cause of action for recovery of economic or noneconomic loss
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New York Laborer Wins Summary Judgment Under Scaffolding Law for Injuries from Fall
A New York laborer won summary judgment against a property owner and general contractor under the “Scaffolding Law” (Labor Law § 240(1)) when he was injured after falling from a ladder. In Chornopyskyy v. 151 Ludlow Owner LLC, the Kings County Supreme Court entered summary judgment in plaintiff’s favor, holding that there was a violation of the Scaffolding Law that proximately caused plaintiff’s injuries. While the court noted that an accident alone does not establish a 240(1) violation, it found that plaintiff presented prima facie evidence to support his claim under the law. Plaintiff was working a construction project in
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