East Coast CM Report of Recent Decisions – 2019 Volume 2

July 31, 2019 / CM Reports

The Fine Line Between The Duty To Defend And The Duty To Indemnify

The United States Court of Appeals for the Second Circuit affirmed a May 22, 2018, decision and order of the United States District Court for the District of Connecticut that found the language of an indemnity provision in a contract did not obligate United Illuminating Company (“United”) to indemnify Metro North Transportation Authority and Metro-North Commuter Railroad Company (collectively “Metro- North”) for the cost of defending against a personal injury suit because the intent of the language was to provide indemnification only for injuries actually caused by Metro- North. Metro-North Commuter R.R. Co. v. United Illuminating Co., 2019 U.S. App. LEXIS 18312 (2d Cir. June 19, 2019).

New Jersey No Fault PIP Policy Coverage: Limit Or No Limit?

A March 26, 2019, decision by the New Jersey Supreme Court now bars injured motorists from making claims against their tortfeasors for any medical expenses beyond their chosen PIP policy coverage limit. Haines v. Taft, 237 N.J. 271 (2019).

Plaintiff ’s Social Media Photographs Subject To Review By A Defendant’s Data Mining Expert

In Vasquez-Santos v. Mathew, 2019 NY Slip Op 00541 (1st Dep’t January 24, 2019), the Appellate Division, First Department reversed an order from the trial court denying Defendant’s motion to compel access by a third-party data mining company to Plaintiff’s devices, email accounts, and social media accounts, so as to obtain photographs and other evidence of Plaintiff engaging in physical activities.

A Failure To Become “An Instrument For Good,” Is Insufficient To Impose A Duty Of Care On A Contractor Under The Espinal Exceptions

In Espeleta v. Synergy Resources, Inc., 2019 NY Slip Op 04138, Plaintiff was attending a work training program in the conference room at her employer’s office, when her ankle became entangled in wires, causing her to fall and injure herself. Thereafter, Plaintiff commenced a legal action against the company running the training program, Synergy Resources, Inc. (“Synergy”).

Clarifying The Standard For A Claim Of Work-Product Privilege

Recently, the Appellate Court in New Jersey clarified the standard when it comes to claiming work-product privilege to materials obtained prior to litigation. Paladino v. Auletto Enters, 2019 N.J. Super. LEXIS 81 (June 6, 2019). In Paladino, Plaintiff fell at Defendant’s catering facility while a guest at a wedding. She reported this accident to Defendant, who prepared an accident incident report and shortly after, Defendant gave notice to its insurer. The insurer then retained an investigator, who obtained photos of the scene and recorded witness statements from multiple employees of the facility.

New York’s Highest Court Holds A Rental Company Can Be Strictly Liable For A Design Defect Resulting I Injuries To A Renter

Several years ago, New York’s Highest Court recognized an exception to the
general rule of strict products liability for design defects. Specifically, the Court held that where the manufacturer offers a product with an optional safety device and the purchaser chooses not to obtain it, the manufacturer is not strictly liable for a design defect. See Scarangella v. Thomas Built Buses, 93 NY2d 655 (1999).

U.S. Court Of Appeals For The Third Circuit Holds Amazon Liable For Injuries To Purchaser Of Product

On December 2, 2014, Heather Oberdorf logged onto Amazon. She searched for dog collars. She decided to purchase a retractable dog collar listed on Amazon, and sold by a third-party vendor, “The Furry Gang.” The Furry Gang shipped the collar from Nevada to Plaintiff, who put the collar on her dog. On January 12, 2015, while walking her dog, the collar broke, and the leash recoiled into Plaintiff ’s eye, permanently blinding her in the left eye.

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