CASES OF NOTE

PMB Secures Victory before the Supreme Court. January 29, 2009

The New Jersey Supreme Court in a unanimous decision, found in favor of PMB’s argument for Evanston Insurance Company. The briefing of this case before the Supreme Court was a collaborative effort of Anthony Pisciotti, William Buckley and Danny Lallis.

In November, 2008, Mr. Pisciotti advocated Evanston Insurance Company’s position before the New Jersey Supreme Court. At stake was a multi-million dollar excess policy exposure relating to a construction site accident involving an employee of Piermount Iron Works.

This litigation presented far-ranging questions of law for surplus lines insurers operating in New Jersey, including the application of Department of Banking and Insurance surplus lines notice of non-renewal provisions, excess insurer renewal procedures, duties of insurance agents, interpretation of Insurance Service Organization language and the effect of non-payment of premiums.

PMB’s arguments were opposed by counsel representing Piermount, counsel representing Traveler’s Insurance, the insurer of the general contractor on site, counsel for Insurex, the wholesale broker for Piermount, and counsel for Piermount’s retail insurance broker.

Piermount, Traveler’s, Insurex and Winograd argued that Evanston should be responsible for part of the settlement in this matter because Evanston did not send a non-renewal notice of its excess policy, even though Evanston offered Piermount a renewal quote but Piermount never responded. In its decision, the Supreme Court noted that neither the New Jersey surplus lines insurance regulations nor the subject policy language supported Piermount’s draconian remedy.

At the trial level, the Honorable Joseph Riva granted Evanston’s motion for summary judgment. The Appellate Division reversed the trial court which provoked the appeal to the Supreme Court. A copy of the Supreme Court opinion is attached for your reference. A video of the oral argument is also available upon request.

Pisciotti, Malsch & Buckley convinces Alabama Supreme Court to adopt User Responsibility Defense for Firearms Cases

PMB secured a landmark decision from the Alabama Supreme Court relating to the defense of defendants in firearms cases. PMB represented the distributor of a single action revolver in Alabama. The importer and manufacturer of the revolver were out of business, and the retailer took no active role in the defense.

Plaintiff was a male in his mid-fifties who allegedly dropped his single action revolver while attempting to install a gun rack. Testimony in the case established that the decedent knew not to keep the hammer of such a revolver on a loaded chamber, and knew how to safely handle the product. Likewise, plaintiff’s expert conceded that the revolver could be used safely and incorporated an adequate manual safety.

Prior to trial, summary judgment was entered by the trial court in favor of the distributor. The decision was appealed to the Alabama Supreme Court. The Alabama Supreme Court held that the trial court properly granted judgment for the defendant given the fact that the decedent knew how to safely handle the revolver but failed to, and also based on the plaintiffs’ expert’s concession that the revolver could be operated safely. Please contact us if you would like a copy of the Alabama Supreme Court Opinion. The opinion will present a significant roadblock for plaintiffs in future firearms cases in Alabama in which user handling is at issue.

Victory For California Retailer in Negligent Entrustment Case

PMB represented a firearms retailer in Orange County, California that legally sold a pump action shotgun to a nineteen year-old who, several days after the purchase, used the shotgun to murder two of his neighbors.

The Court originally denied the retailer’s motion to dismiss on the pleadings based on the plaintiffs’ argument that discovery could reveal that the retailer missed signs of the shooter’s mental instability and dangerous nature at the time of the sale.

After discovery, however, the Court granted summary judgment to the retailer based on the Protection of Lawful Commerce in Arms Act (PLCAA,) among other grounds.

Defense Verdict in New York Negligence Case

Pisciotti, Malsch & Buckley represented an upscale Manhattan restaurant in a personal injury matter tried in New York County in August, 2007.

The plaintiff, a children’s ministry director, alleged that while dining, she slipped and fell on water spilled by a restaurant employee. She claimed to have sustained severe knee injuries in the accident, including a dislocated patella. Plaintiff underwent two arthroscopic knee surgeries following her fall. Alleged future medical treatments include knee reconstruction and possible knee replacement.

Plaintiff sued the restaurant, alleging failure to adequately clean the spilled water and failure to adequately warn customers of the condition. Her attorney asked the jury to return a verdict of at least $860,000.

Jeffrey Malsch successfully argued that the restaurant was not at fault, and that the plaintiff fell for other reasons.

The jury returned a defense verdict in this one week trial after approximately two hours of deliberation.

Summary Judgment in Mold Case – Superior Court of New Jersey

Pisciotti, Malsch & Buckley represented a major insurer in a declaratory judgment action seeking coverage for alleged personal injuries due to mold exposure.

Six plaintiffs secured judgments against a building owner in the underlying matter, and then sought to execute the judgments against the carrier based on an assignment of rights. The litigation involved multiple insurance policy years, including several policies which did not have mold endorsements.

PMB was able to successfully argue that, as a matter of law, all of plaintiffs’ objective injuries occurred in policy periods which included mold exclusions. While opposing counsel sought to invoke the continuous trigger doctrine relating to the prior policy periods which did not include mold exclusions, we convincingly argued that New Jersey case law bases coverage solely on manifestation in matters of this type.

Defense verdict in partial amputation firearms case – Western District of Arkansas

Pisciotti, Malsch & Buckley represented the exclusive distributor of a muzzleloading rifle. The plaintiff, who blew up his rifle, claimed that the firearm failed using a recommended black powder substitute. Plaintiff asserted claims of design defect, manufacturing defect, negligence and breach of warranty. The plaintiff, in his late fifties, sustained amputation of three fingers and loss of use of his left hand.

The case was tried in June of 2007, in the Western District of Arkansas by Anthony Pisciotti and Jeff Malsch.

The jury found the rifle non-defective and returned a defense verdict on all claims. Plaintiffs asked the jury for $780,000. The defense verdict was returned in one hour.

Local counsel in the case stated that PMB’s trial presentation compared to the opposing counsel’s presentation was “like hitting a tack with a sledgehammer!”

Defense verdict in orthopedic case – Superior Court of New Jersey, Sussex Co.

Pisciotti, Malsch & Buckley obtained a defense verdict on behalf of two orthopedic surgeons after a one week trial in the Superior Court of New Jersey, Sussex County. Plaintiff alleged that the defendant surgeons failed to timely diagnose and perform a proper surgical repair of a ruptured tendon in her dominant hand. Plaintiff further alleged that the improper treatment left her with a permanent deformity and limited use of the hand. The defense successfully argued that there was no delay in diagnosis, that the surgery was properly performed, and that the poor surgical result was a product of the seriousness of the initial injury.

The case was tried by Bill Buckley in June of 2007. The jury returned a unanimous verdict in favor of the defendants after less than one hour of deliberations. Prior to trial, the plaintiff demanded $486,000 to settle the case. The defense did not make any settlement offers.

Blackwell v. Alamo Leather Goods, et al. – Settlement within policy limits in paralysis case

PM&B represented this firearms distributor in a personal injury action premised on products liability design defect causes of action. The plaintiff was a male in his early twenties who was paralyzed as a result of the allegedly defective product. Plaintiff’s damages expert estimated economic damages in excess of $5 million. The manufacturer was in bankruptcy at the time the case was instituted as a result of a $50 million, highly publicized, adverse products liability verdict. After extensive fact and expert discovery exposed weaknesses in plaintiff’s experts’ defect theories, PM&B effectively utilized the mediation process to achieve a settlement for less than the plaintiff’s medical expenses and well within the client’s insurance limits.

Doran v. Rifle Basix – Defense verdict

PM&B represented the manufacturer of a specialized rifle trigger. The plaintiff claimed that upon bolt closure, the rifle spontaneously discharged causing plaintiff’s left leg to be amputated just below the knee. Plaintiff was in his mid-30’s with a wife and young child. Plaintiff claimed that he resigned from his place of long-term employment as a result of this injury.

The case was brought in state court in Ward County, Texas (West Texas), plaintiff’s residence. After the completion of fact discovery and the start of expert discovery, the co-defendant owner of the rifle and installer of the trigger settled with the plaintiff. As a result of this settlement, complete diversity was created and PM&B removed the case to the United States District Court for the Western District of Texas. Plaintiff moved for remand claiming that while a release had been signed, the formal dismissal papers as to the non-diverse defendant had not been filed with the state court. The Court denied the motion to remand in a reported decision.

After mediation efforts were unsuccessful, Anthony Pisciotti and Jeff Malsch tried the case in December of 2005 before the Honorable Judge Robert A. Junell. The plaintiff asked the jury to deliver a verdict of $3 million in damages. The trial resulted in a defense verdict with judgment being entered dismissing all of the plaintiff’s claims. Plaintiff’s motion for a new trial was denied.

Feinberg v. Canario – Defense Verdict

PM&B obtained a no cause verdict in connection with a medical malpractice action tried for two weeks during February 2006 in the Superior Court of New Jersey, Essex County.  Plaintiff alleged that the client, a board certified orthopedist, failed to properly diagnose and treat multiple lumbar disc herniations resulting in the need for back surgery and severe permanent injuries.  Plaintiff made a settlement demand of $450,000 prior to trial.  The defense did not make any settlement offers.  The jury deliberated for approximately 1 hour and 15 minutes before returning their unanimous defense verdict.

Bruen v. Hooter’s Restaurant – Defense Verdict

Anthony Pisciotti secured a unanimous defense verdict in this case on April 26, 2006. Plaintiff, a patron at the Hooters Restaurant in New Castle, Delaware, was injured when struck by a falling sign. It was alleged that the sign was improperly installed and placed in a manner creating a hazard to customers. Plaintiff claimed that he sustained injuries to multiple cervical vertebral discs. This case was tried in Morris County. The jury deliberated for five hours before returning a verdict in favor of the restaurant.

Coppola v. Levine – Defense Verdict

Bill Buckley obtained a no cause verdict in favor of a urologist after a two and a half week trial in the Superior Court of New Jersey, Ocean County in November, 2006. The urologist and co-defendant radiation oncologist had treated plaintiff for prostate cancer with brachytherapy, the implantation of radioactive seeds into the prostate under ultrasound guidance. Plaintiff developed severe complications (all known complications of brachytherapy, including the development of a relatively rare fistula.) In order to avoid rectal side effects, physicians must keep an appropriate distance (5mm) between the posterior row of seeds in the prostate and the abutting rectal wall. The proper placement of the radioactive seeds is typically confirmed one month after implantation by a CT scan obtained by the radiation oncologist.

Plaintiff alleged that the radioactive seeds were implanted too close to the rectal wall, resulting in over radiation of the rectal mucosa and ultimately the fistula. The defendants maintained that the seeds were properly placed and that plaintiff had unfortunately developed a severe complication of the procedure. The defense argument was hindered by the fact that the post-implant CT scan had not been performed, so there was no way to definitively show that the seeds were properly positioned.

The defense was able to successfully argue that the radioactive seeds had been properly placed, even without the post-implant CT scan. The jury deliberated for approximately four hours before finding in favor of both the urologist and co-defendant oncologist.

For more information on these matters and how our experiences will benefit you or your client, please contact us.