July 3, 2013

Engineer granted rare summary judgement

Source: Beazley Pro, Summer 2013


After sustaining serious injuries in a fall in a sports facility parking lot, the plaintiff sued the property owner, who in turn filed a third-party action against our insured, an engineer. This suit against the engineer alleged that deficiencies and code violations in his design of the facility’s parking lot (specifically its handicap access ramp and lighting) were to blame for the fall. A site visit revealed that the lighting and lighting tower location in the parking lot were not as the engineer had specified. During
deposition, the paving contractor affirmed that he used the engineer’s plan for pricing only, not for construction. Hence, there was no causal connection between any design deficiencies in the engineer’s plans and the plaintiff’s serious fall and injuries. Counsel moved for summary judgment, which was granted in full.


Initially, the outcome of the case looked dismal for our insured. Potential exposure was estimated up to $300,000. After discovery, as defense counsel examined the evidence, including the engineer’s scope of work and design drawings, he realized that the contractor had deviated from our insured’s design. He also zeroed in on the fact that the insured did not supervise construction, nor did he have any contractual obligation to supervise construction as it was not in his scope of work.

Lessons learned:
(1) Never underestimate the value of experienced defense counsel.
(2) Clients should be meticulous in articulating their scope of work in contracts — and not set foot beyond the stated scope.…

May 21, 2013

Claim Scenario – Condo and Joint and Several Liability

Facts: Insured, structural engineer, designed a 2 story deck for a 3 unit condo complex. While standing on the deck, the railing came off and plaintiff fell 30 feet to the street making him paraplegic (he was intoxicated at the time of the incident). Claimed damages $37 million for future lost wages, pain and suffering, and medical expenses.

Claim against the insured: Unsafe design, details of connections or hardware were inappropriate or missing, didn’t do proper calculations for load and left it to the contractor to interpret, and insured improperly signed off on the drawings. The expert hired by the HOA criticized the insured’s design because it did not call for fasteners and the railing was only nailed in. The plaintiff’s expert took the position that it was within the structural engineer’s standard of care to make sure the plans are actually followed.

Defenses raised: Contractor did not build what was designed, in fact he did his own design/build of the deck. The HOA did not maintain the decks correctly (dry rot, paint, etc.) Motion for summary judgment to dismiss the case was filed, but denied because the court found that there was a triable issue of fact.

Liability concerns: Large damages alleged. Low liability case, but with high damage exposure. Joint and several liability concerns.

Policy Limit: $1 million per claim, $12,500 deductible.

Resolution: Global settlement $5,510,000. Insured contributed $650,000. Defense costs $200,000.…

March 13, 2013

Many Love Canal plaintiffs no longer live in Falls

Source: Buffalo News, March 11, 2013
Posted on:

Nearly one-third of the people who recently applied to join a Love Canal lawsuit no longer live in Niagara Falls.

And at least one of those people, according to a Buffalo News analysis of court records, never did live in the Love Canal neighborhood.

“I anticipate that we’re going to see some derivative claims filed in this lawsuit. That is, claims filed by people who never lived at Love Canal but who had parents or grandparents who lived near the Love Canal,” said Douglas A. Janese Jr., an assistant corporation counsel who is defending the city of Niagara Falls against the $113 million state lawsuit. “At this point, we have no way of knowing if these claims are legitimate or not. We may not know the real truth until we get these people in front of a jury.”

Because of the size and complexity of the case, legal experts predict that it’s going to take one to three years of pretrial wrangling before the case goes to trial.

The lawsuit has raised new questions about public safety in the neighborhood surrounding Love Canal, a 70-acre toxic landfill site surrounded by homes, playgrounds, baseball fields and senior citizen facilities.

While state and federal government officials insist the neighborhood is safe, attorneys for more than 600 plaintiffs claim that dangerous chemicals have leaked from the landfill onto the properties of nearby homeowners, creating a “public health catastrophe.”…

January 18, 2013

Honeywell Must Face New Claims In $20M Pollution Suit

Source: Law360, January 16, 2013
By: Sean McLernon

A New Jersey federal judge on Tuesday allowed property developers to add a new plaintiff and additional claims in a $20 million environmental cleanup suit against Honeywell International Inc., finding that the allegations are timely and relate back to the original complaint.

U.S. Magistrate Judge Douglas E. Arpert ruled that remedial activity at a former roofing and paving materials factory allegedly owned by Honeywell predecessor Warren Chemical and Manufacturing Co. in 1985 and 2000 did not trigger the Comprehensive Environmental Response, Compensation and Liability Act’s six-year statute of limitations for claims. The judge also said the new claims relate to the same conduct alleged in the original complaint and can move forward.

Queens West Development Corp. asked the court to replace the now-dissolved Avalon Riverview II LLC with AvalonBay Communities Inc. in the suit seeking to force Honeywell to pay the estimated $20 million the developers are spending to clean up the Long Island City, N.Y., site. Failing to initially include AvalonBay was an “inadvertent discrepancy” for which they should not be penalized, the developers said.

Honeywell argued that omitting AvalonBay from the initial suit prevents the new claims from relating back to the original allegations, but Judge Arpert said that the developers are not trying to “do an end run around the statute of limitations,” and are merely substituting a corporate parent for its subsidiary. The cases cited by Honeywell in arguing against AvalonBay’s inclusion only deal with complaints in which there was no error in selecting plaintiffs, according to the ruling

“Unlike a mistake, the putative plaintiffs in those cases had made an affirmative choice not to join the lawsuits in the outset,” the judge said. “In addition, unlike this case, the parties seeking to be added were entirely different parties, with interests independent from the other plaintiffs.”…

January 10, 2013

Lawsuits filed over building of Clint sewers

Source: El Paso Times, January 9, 2013
By: Mary Schladen

The town of Clint and a long list of residents and churches are suing a group of construction companies and engineering firms, arguing that since 2010 they pumped out too much water too fast from the area so that the ground has sunk, twisting and cracking dozens of buildings in the Lower Valley community.

The suit was filed Dec. 28. In it, 46 plaintiffs are suing five firms that are building a sewer system for the town.

They claim the engineers and builders negligently used a dewatering method that is inappropriate for an area with such a high water table and such loose soil.

Their work “resulted in extremely aggressive and reckless dewatering which lowered the water table and caused subsidence at the ground surface resulting in damage to the plaintiff’s properties,” a consultant’s report attached to the suit says.

Defendants named in the lawsuit — Red Cliff Inc., CEA Engineering Group Inc., Bain Construction Inc., CQC Testing and Engineering LLC, and Western Dewatering — could not be reached for comment. They also had not yet filed responses to the suit with the court hearing the case, County Court 3.

Dozens of buildings

Kathryn Snapka, a Corpus Christi attorney specializing in construction law, is representing all the plaintiffs except the town of Clint. On Monday, she said the defendants had not yet been served the suit, but they already had indicated that they did not believe they were responsible for damage to dozens of buildings in Clint.

“The reaction of the construction companies has been disappointing,” Snapka said.…

December 6, 2012

Mold economic injury claim rejected

Source:, November 2, 2012
By: Sean Wajert, Shook Hardy & Bacon LLP

The issue of mold-related litigation remains of interest to our readers, perhaps even more so in the aftermath of the widespread damage from Sandy. Recently a federal judge rejected claims alleging that Welk Resort San Diego allowed mold to grow in its rooms causing plaintiffs’ “Platinum Points” time share currency to lose value as a result. See Martinez v. The Welk Group Inc. et al., No. 3:09-cv-02883 (S.D. Cal.).

Plaintiff alleged economic damages stemming from defendants alleged failure to abate and disclose the presence of mold at the Welk Resort San Diego. (Younger readers may not recall, but born in a German speaking town in North Dakota in 1903, Mr. Lawrence Welk didn’t learn to speak English until he was 21. This gave him the accent that marked his signature line: “Wunnerful, wunnerful.” His Lawrence Welk Show was cheerful and wholesome with bubbles, the music that Welk called “champagne music,” and a parade of smiling dancers, singers and musicians that older audiences loved.)

Plaintiff purchased “Platinum Points” from Welk Resort Group, Inc. in 2007, which provided him with the opportunity to stay at Welk resorts around the world or at any other time-share resort that accepts such Platinum Points for vacation stays. At some point during the sales process, plaintiff allegedly asked, and the sales agent assured him the Resort was clean, safe, and well maintained. Plaintiff said he purchased his Platinum Points solely for the purpose of staying at the Welk Resort San Diego, which is located in Escondido, California, and has more than 650 units in three subdivisions: the Lawrence Welk Resort Villas, the Villas on the Green, and the Mountain Villas. During a visit to the Resort in 2009, plaintiff notified the front desk that his room smelled musty. Later in a utility closet, he found something that may have been mold, but he could not be certain. A neighbor later told him him that there was mold at the Resort.…

June 28, 2012

New York Court Clarifies Liability Threshold for Mold Infestation

By: Michael Zigelman, Esq. and Kirsten Ennis, Esq. of Kaufman Dolowich Voluck & Gonzo LLP

Although New York City real estate landlords and co-op and condo board members typically do not inhabit the properties they own and manage, a recent First Department decision gives them reason to fear the impact of mold infestation. After a 2009 New York Supreme Court decision holding that there is a lack of scientific evidence to support a finding that mold exposure can cause injury, landlords and board members were able to breathe easy. Now, however, the First Department has reversed this holding, thereby affirming the potential for liability as a result of mold infestation in New York City apartments. Cornell v. 360 W. 51st St. Realty, LLC, Nos. 113104/04, 4810, 2012 N.Y. App. Div. LEXIS 1614 (N.Y. App. Div. 1st Dep’t Mar. 6, 2012).

In Cornell, the First Department clarified its rule regarding causation. The Court held that it is “undisputed that exposure to toxic mold is capable of causing the types of ailments from which [Cornell] suffers.” Cornell, 2012 N.Y. App. Div. LEXIS 1614, at *19. In that case plaintiff contended that she suffered a body rash, shortness of breath, fatigue, disorientation, and headaches as a result of mold in her bathroom, a theory confirmed by experts at trial. The Court held that the trial court below misapplied Fraser v. 301-52 Townhouse Corp., a prior First Department decision holding that the plaintiffs failed to establish a causal connection between their injuries and alleged mold exposure. Fraser v. 301-52 Townhouse Corp., 870 N.Y.S.2d 266 (N.Y. App. Div. 1st Dep’t 2008). However, the court below failed to heed the Fraser caveat regarding its limited application, thereby necessitating the dismissal of plaintiff’s claims. The First Department noted that Fraser was incorrectly applied as a general rule that scientific evidence cannot confirm mold exposure as a cause of, inter alia, respiratory disease. Accordingly, the First Department’s decision in Cornell makes clear that it does not apply a categorical rule when evaluating whether a claimant’s alleged injuries were caused by mold exposure and, instead, will consider each matter on a case-by-case basis.

In light of the First Department’s proper interpretation of Fraser, New York Courts will not, as a matter of course, dismiss claims alleging injury due to mold exposure based on lack of causation. Instead, New York Courts will examine whether there was mold exposure, whether the alleged bodily injuries were caused by such exposure, and whether such causation is scientifically supported based on the relative injuries, expert testimony, and specific mold exposure in each case.

As a result, property owners and managers should be proactive regarding the presence of mold. The First Department’s decision can be expected to generate more claims, and it is critical that businesses are prepared.…

June 21, 2011

New Plaintiffs File Suit In CO Incident

Source:, April 17, 2009
By: Shawn J. Soper

Less than one week after the settlement of a $30 million wrongful death lawsuit filed last year by the family of two Pennsylvania tourists who died of carbon monoxide (CO) poisoning in a Boardwalk motel room in 2006, five separate plaintiffs inflicted with CO poisoning in adjacent rooms during the same incident filed suit in U.S. District Court.

On March 27, the case filed in U.S. District Court by the family of two victims who died of carbon monoxide poisoning at the Days Inn Oceanfront on the Boardwalk at 22nd Street was settled before reaching trial for an undisclosed amount. The 24-count federal suit was seeking $30 million from the various defendants including the Bay Shore Development Corporation, owner of the motel where the tragic incident occurred; Heat Transfer Products, Inc., the manufacturer of the faulty water heater deemed as the source of the CO leak; R.E. Michel Co. Inc., the Glen Burnie-based company that distributed the water heater; and All About Plumbing, the local company that purchased and installed the water heater in the Boardwalk hotel months before the incident.

Six days later on April 2, a total of 10 new plaintiffs filed suit in U.S. District Court naming the same defendants in the original case along with several others including parent companies and subsidiaries of motel’s ownership. Five of the plaintiffs were in the two of the rooms on the first floor of the motel and suffered directly from CO poisoning and were later hospitalized. The other five plaintiffs were either husbands or parents, or both, of the five victims and were indirectly affected by the incident.

The new suit includes 35 total counts, including premises liability charges against Bay Shore Corporation, Avis Budget Group, Wyndam Worldwide Corporation, and Days Inn Worldwide, Inc. Each of the five plaintiffs who suffered from CO is seeking $5 million collectively from the aforementioned defendants.

However, most of the counts listed in the suit are filed against the other defendants who allegedly had a hand, directly or indirectly, with the installation of the faulty water heater blamed for the tragedy. For example, each of the five victims is seeking $5 million collectively from the defendants on several counts including negligence, breach of express warranty, breach of implied warranty, and strict liability for a total amount sought of $25 million on each of the four counts.

Each of the husbands of the adult women afflicted with CO poisoning is seeking an additional $1 million for loss of consortium. The parents of the two teenage girls allegedly poisoned with CO are also seeking $100,000 each for medical bills for their children.…

May 9, 2011

$1.95 million awarded in hog farm suit

Source:  Joplin Globe (MO), May 7, 2011
Posted on:

Twelve Barton County plaintiffs, who alleged their way of life was turned upside down when a factory hog farm began operations in 2007 near their rural homes, were awarded $1.95 million in damages Saturday by a jury in Henry County.

In closing arguments Friday, the attorneys representing the plaintiffs, Charles Speer and Richard Middleton, had asked the jury to award $1 million in damages to each plaintiff. The attorneys also asked for punitive damages, but none were awarded.

Speer said the verdict was three times larger than the previous largest verdict by a jury in Henry County.…

March 28, 2011

Hundreds of gasoline spill cases settled, lawyers say

Source: Times Leader (Wilkes-Barre, PA), March 25, 2011
Posted on:

A Philadelphia law firm representing hundreds of plaintiffs in a 10-year-old gasoline spill lawsuit resolved all of their outstanding cases, according to the law firm’s public relations firm.

The Locks Law Firm represented more than 200 plaintiffs in the case in which Hazleton-area residents claimed they were sickened or that their properties were damaged by a spill that leaked hundreds of gallons of gasoline into the soil surrounding the Tranguch Tire and Service Center.

“Our clients in the Laurel Gardens section of Hazleton and Hazle Township deserve praise,” the law firm said in a press release issued Thursday. “Their lives were upended by gasoline contamination that affected their homes and their lives. Some died. All suffered nuisance and inconvenience to a significant degree.”…