Gallo Vitucci Klar LLP Partner, Michael E. Stern recently prevailed on a motion for summary judgment in the Southern District of New York before the Hon. Ona T. Wang. The lawsuit alleged strict liability for fire damage to vehicles owned and being shipped by Daimler Benz and the M/V HONOR.

The plaintiffs HDI Global SE, as subrogee of Daimler AG and Mercedes Benz USA LLC; and American Roll-on Roll-off Carrier, LLC, owner of the M/V HONOR sued International Auto Logistics, Inc. (“IAL”) claiming that one of the cars carried by M/V HONOR for IAL caught fire causing damage to automobiles owned by Daimler, and to the M/V HONOR. IAL was under contract with the US Department of Defense to arrange for the transportation of personally owned vehicles for service members. In February 2017, IAL delivered about 600 cars to ARC at Bremerhaven, Germany for shipment to the U.S. East Coast. One of the personally owned vehicles, a 2010 Nissan Rogue, caught fire causing damage to Daimler vehicles and the vessel. The origin of the fire was determined to have been the solenoid in the starter motor of the Rogue but the cause could not be determined. The plaintiffs argued that IAL should be held strictly liable for the damages based on the section of the United States Carriage of Goods by Sea Act which provides that a shipper of “goods of an inflammable, explosive, or dangerous nature” can be strictly liable for damages when the carrier “has not consented with knowledge of their nature and character” of the goods.

On the motion for summary judgment, Mr. Stern persuaded the Court that based on the applicable domestic and international codes governing the transportation of hazardous goods, automobiles are not goods of an “inflammable, explosive or dangerous nature” as that phrase is used in COGSA. The Court also ruled that the ocean carrier [ARC] had knowledge of the nature and risks associated with transportation of vehicles. As such, the Court denied plaintiffs’ motion for summary judgment and granted IAL summary judgment dismissing the strict liability claims of both HDI Global and ARC.

Gallo Vitucci Klar LLP Partner, Alan R. Levy recently prevailed on a 2-week bench trial in the Civil Part at the Supreme Court of the State of New York – New York County before the Hon. Dakota D. Ramseur, J.S.C. The lawsuit alleged interference of a commercial lease due to construction incidents had been pending in the New York State Courts for twelve (12) years, resulting in several Summary Judgment Decisions and two (2) Appellate decisions before finally going to Trial, which resulted in a “no cause” verdict on behalf of our commercial landlord clients.

Plaintiff operated a veterinary clinic which was a tenant on the first floor of a commercial building owned by our landlord clients, and alleged from 2010 – 2012, their veterinary operations were interfered with due to ongoing construction projects on the three floors above them. In 2012 (shortly after signing a 10-year lease extension), the Plaintiffs filed suit against the landlords seeking more than $10 million in alleged lost profits along with claims for damaged property, rent abatement, etc. Over the next twelve 12 years, after two (2) separate Appellate decisions in 2014 and 2019, the bulk of Plaintiffs’ claims were dismissed, leaving Plaintiffs to pursue the claim of seeking a full rent abatement for the construction period at Trial, which (after pre-judgment interest) would have added up to approximately $750,000 if Plaintiff had prevailed.  The subject lease agreement included a unique provision stating the tenants were entitled to withhold rent if “more than thirty percent (30%) of the demised premises is damaged or affected thereby and the demised premises cannot be open for business to the general public.” During Trial, Mr. Levy persuaded the Court to preclude Plaintiff’s unreliable evidence as to what percentage of the property had been damaged. In addition, Mr. Levy successfully used Plaintiff’s own financials/accounting documents to show that the Plaintiff’s business had always remained open during the construction period.

As a result, following 2-weeks of trial testimony and motion practice before Judge Ramseur, the Court issued a decision holding that Plaintiff was not entitled to any recovery and dismissed Plaintiff’s Complaint in its entirety.

The head of Gallo Vitucci Klar LLP’s Maritime Department James Mercante appeared on CBS news to discuss the container ship collision with the Key Bridge in Maryland, the potential malfunctions leading up to the collision and the legal implications to come. Mr. Mercante also discussed the tragic incident on Canada’s Corus/Global News Radio Network, Newsmax with Greg Kelly and The Dan Abrams show.

Mercante also provided insight for The Washington Post’s coverage of the NTSB‘s preliminary findings and for The Baltimore Sun.

See newest article from The Baltimore Sun here.

See CBS news interview here.

See The Dan Abrams Show interview here.

See article from The Baltimore Sun News here.

See article from The Washington Post here.

 

 

The plaintiff, a 25 year old female was a passenger in a vehicle driven by codefendant which was driven into the left rear of an 80K lb dump truck owed by HC Trucking and operated by its employee. The accident occurred at 11:45 p.m. on the southbound Garden State Parkway in Monmouth County NJ.  The occupants of the SUV were returning from a “club” in Hazlet NJ when the operator of the SUV struck the left rear of the dump truck at an estimated 75 m.p.h. The accident happened at the start of a construction zone where the far right lane was being shut down by a tapering, reflective cone line. Signs were posted at least a mile before the construction zone directing a left merge and reducing the speed limit to 45 m.p.h.

Plaintiff alleged that based on a statement provided by the driver of the SUV following the accident and other physical evidence, that the dump truck didn’t see the SUV and changed lanes causing the accident. The defense countered that the SUV was speeding, following to closely, and that the dump truck was not changing lanes when the accident happened.  Defendants maintained the SUV closed on the dump truck at a high rate of speed and failed to complete a left hand swerve to avoid the accident. The defense position was supported by expert testimony from an accident reconstructionist. Th expert had to concede that the damage to both vehicle would have been the same under either version.

At the scene, the SUV operator was observed with slurred speech, bloodshot,  watery eyes and an odor of alcohol from his breath. A blood draw taken 2 hours after the accident indicated the driver’s BAC was .057. The defense expert toxicologist was permitted to testify to the physiological changes a driver experiences at .057 which included reduced inhibition and reaction time, sedation and reduced judgment. As a side note, criminal charges against the SUV driver were reduced to a DWI plea. However, defense counsel was precluded from using the plea at the subsequent civil trial per New Jersey’s “Civil Reservation “ statute.

The plaintiff sustained a traumatic amputation of her dominant right arm just below the shoulder; multiple right rib fractures with a resulting pneumothorax; fractures of the left thumb, left mid radial and ulnar shafts, all of which required ORIF. She also sustained multiple fractured and an injury to her right breast necessitating reconstructive surgery and extensive facial scarring. Due to her young age she also underwent multiple surgeries including revascularization of the right arm using a left thigh vein graft  and skin grafting to repair scaring.

Prior to the trial, Patrick negotiated a “Hi-Lo” agreement with plaintiff’s counsel with a 400K low and a 1M high. Any amount in between the high and low would be calculated by multiplying the plaintiff’s total damages by our client’s percentage of liability.

Following a 2 hour deliberation, the jury found the SUV driver to be 95% negligent and the owner and operator of the dump truck to be 5%. The jury awarded $7,500,000.00 in total damages. If the “Hi-Lo” had not been entered into, Patrick’s clients share of the total damages would have  only been 375K.  Plaintiff’s declined an overture of a 500K offer to settle out during the trial.

On behalf of Gallo Vitucci Klar LLP, we are delighted to extend our congratulations to William E. Marsala (“Bill”) on his appointment as a judge of the New Jersey Superior Court.

Bill’s journey to this prestigious position is a testament to his qualifications, dedication, and reputation in the legal community. Recommended for a judgeship by New Jersey State Senator Kristin Corrado and subsequently nominated by Governor Phil Murphy, Bill’s nomination was met with unanimous approval by the New Jersey Senate Judiciary Committee. His confirmation by the New Jersey State Senate further underscores the trust and confidence placed in his abilities. Assigned to the Civil Division for the Passaic County Vicinage by the Chief Justice of the New Jersey Supreme Court, Bill’s appointment marks a significant milestone in his esteemed career.

Bill joined Gallo Vitucci Klar LLP as Of Counsel and has over 30 years of civil litigation experience representing insureds and self-insured in complex matters on a local, national and international basis. Bill represented clients in matters involving products liability, premises liability, liquor liability, workers’ compensation, catastrophic transportation, construction site accident and FELA issues in Federal and State Courts. He also has been involved in developing risk assessment and management programs which allow clients to anticipate, reduce and control their exposure.

We extend our warmest wishes to Bill as he embarks on this new chapter in his career. Congratulations, Bill, on this well-deserved accomplishment!

Written by Briggs Johnson

Since the Court of Appeals case in Rodriguez v. City of New York, 31 N.Y.3d 312, 320 (2018) (where the Court held that a plaintiff need not demonstrate his or her freedom from comparative negligence to win summary judgment on liability), we have found that some plaintiffs believe that when they have evidence of a defendant’s negligence, then plaintiff’s comparative fault is irrelevant no matter what.  We have also found plaintiffs taking this position even if all that remains is a damages only trial.  We can safely assume that some of our friends in the defense industry have been encountering the same problems in New York.  Worse yet, we have found that some trial judges agree with this position, or that this issue is not being properly addressed before trial.  We have some solutions.

What we try to do here at GVK is to address this issue head-on at the summary judgment stage by opposing or cross-moving against plaintiff, where appropriate: to have a finding that there is an issue of fact on whether plaintiff’s (or another party’s) own actions were the only or sole proximate cause of the accident (which necessarily means there is an issue of fact on whether our client’s negligence caused the accident); or, in the alternative, for a finding that comparative fault must be considered in the damages trial as mitigation device even if plaintiff’s negligence cannot be construed as the only cause of the accident (for example, Labow Law 240(1), where comparative negligence is irrelevant on liability).

And we have the case law to support both positions, which we will readily provide upon request.  As always, please feel free to reach out to us with any questions on this or any other issues that may arise, and that we might be able to assist you with.

Written by Bryan T. Schwartz and Roberto D. Uribe

The New Jersey Legislature passed a law raising the minimum insurance requirements for commercial trucks weighing over 26,001 lbs. to $1.5 million – doubling what is currently required under the FMCSA requirements. The law does not specify whether this requirement applies to intrastate New Jersey carriers only, to interstate motor carriers conducting business in the State, or those passing through the State. The increased insurance requirement goes into effect July 1, 2024.

The law signed by Gov. Murphy on January 16, 2024, states as follows:

Every owner or registered owner of a motor vehicle registered or principally garaged in this State shall maintain motor vehicle liability insurance coverage, under provisions approved by the Commissioner of Banking and Insurance, insuring against loss resulting from liability imposed by law for bodily injury, death and property damage sustained by any person arising out of the ownership, maintenance, operation or use of a motor vehicle wherein such coverage shall be at least….(4) for a commercial motor vehicle, an amount or limit of $1,500,000, exclusive of interest and costs, on account of injury to or death of, one or more persons in any one accident or for damage to property in any one accident…

While the law refers only to a “…registered owner of a motor vehicle registered or principally garaged in this State,” which would seem to indicate only those units registered in New Jersey, the bill also applies to “every owner,” which could include any power unit that travels into New Jersey or passes through New Jersey.

The current FMCSA standard requires motor carriers to maintain a minimum of $750,000 in liability insurance which has been the case since 1985. Although the FMCSA has considered increasing the minimum requirement, following a 2022 study, the agency could not justify the increase. For that reason, if the new law required interstate motor carriers doing business in New Jersey or passing through New Jersey, it would violate current federal law and open it up to challenges in the courts. In the event the law only applies to those intrastate motor carriers registered in New Jersey, it could cause them to move to surrounding states like New York or Pennsylvania where the insurance requirements follow current federal law.

Studies have not shown an increase in catastrophic tractor trailer related accidents in the Garden State, which is why doubling the insurance requirements simply appears to be arbitrary and possibly partially motivated by the plaintiffs’ bar.

Legal challenges are certain after July 1, 2024 and we will keep you updated. Please feel free to contact Bryan Schwartz (bschwartz@gvlaw.com) or Roberto Uribe (ruribe@gvlaw.com) with any questions.

By James E. Mercante, Featured in the New York Law Journal.

It is said that a collision at sea will ruin your whole day. It can also be fatal and ruin careers. One such collision punctu­ates this in a big, expensive, and tragic way. Ten Navy sailors died and 31 were injured. The two ships sustained millions in damage. The careers of the commanding and executive officers aboard the Navy war­ship ended on that fateful voyage—true to the adage that it takes years to build a reputation and minutes to destroy it.

The 9,000-ton guided-missile destroyer USS John S. McCain (the McCain) collided in the Singapore Strait with a 39,000-ton oil and chem­ical tanker Alnic MC (the Alnic). What resulted was a textbook case of maritime law involving issues of collision liability, apportionment of fault, federal admiralty procedure, choice of law, ship owners’ Petition for Exoneration from or Limitation of Liability and the preclusion against service members suing the military.

A five-day bench trial was held before Senior Judge Paul A. Crotty of the U.S. District Court for the Southern District of New York in November 2021. The massive case was split into two trial phases: Phase 1 being the trial to apportion liability between the tanker owner and the United States, and Phase II to adjudicate the death and injury claims. Crotty’s 49-page decision dated June 15, 2022, admirably navigates through the collision facts in minute by minute granular detail worthy of a movie script. In the Matter of the Complaint of Energetic Tank as Owner of the M/V ALNIC MC, for Exoneration from or Limitation of Liability, 607 F. Supp 3d 328 (SDNY 2021).

It’s hard to fathom a more comprehensive collision analysis. Indeed, the Navy took notice of this decision and has incorporated por­tions of Crotty’s collision analysis in its Bridge Resource Management training course taught to Surface Warfare Officers.

The awards for injury and death will be deter­mined by a jury in Phase II, which trial has yet to begin. Alnic’s appeal of Crotty’s apportion­ment of fault ruling was just argued in the U.S. Court of Appeals for the Second Circuit on Jan. 18, 2024 before Judges John Walker, Susan Carney and Michael Park. The decision is pending.

Casualty Facts

The Aug. 21, 2017, collision occurred in one lane of a traffic separation scheme within the Singapore Strait. As the trial testimony

Crotty ruled the Alnic to be 20% at fault while the McCain’s fault was 80%. Interestingly, Alnic’s fault included its post-impact omissions, which is rarely seen.

revealed, the McCain was cruising alongside and overtaking the oil tanker. Thus, the tanker had the right of way under navigation rules. The McCain lost steering and veered left sud­denly into the path of the tanker. Alnic’s bow pierced the McCain’s port side which flooded the McCain’s compartments with seawater within seconds. In re Energetic Tank, 607 F.Supp 3d at 329.

Prior to impact, the tanker captain was star­ing in the cross-hairs of a U.S. Navy warship cutting right across its bow. But the captain apparently froze. Crotty determined from the fact and expert testimony that the tanker kept steaming ahead in the direction of the McCain without timely reducing speed, stopping or tak­ing the ship off autopilot.

With the tanker still on autopilot, the Alnic’s bow was forced to its left due to the impact. The ship autocorrected to the right and sheered through the McCain’s hull, killing 10 unwary Navy sailors asleep in their bunks.

The injury claimants argued that the ship should have been placed in manual steering within a traffic separation scheme. This is not a foreign concept. The Board of Commis­sioners of Pilots in New York (on which the author serves) has a policy and procedure that requires all vessels navigating in pilotage waters to be manually steered “by an alert and attentive member of the vessel’s crew.” This includes cruise ships arriving in New York.

Alnic’s Limitation Action

The admiralty proceeding was commenced in New York by the tanker owner (Energetic Tank) filing a petition for exoneration from liability or to limit its liability to $16,768.00, which was the post-casualty value of the Alnic. 46 U.S.C. §30501. A limitation action is a stan­dard maritime defense afforded to any vessel owner, including a foreign ship owner who is either sued here or invokes United States as the jurisdiction.

The tanker was Liberian-flagged and man­aged by a company based in Greece. In 1914, the U.S. Supreme Court made clear in litigation involving the sinking of the RMS Titanic that a foreign vessel owner is entitled to the same statutory maritime defenses afforded to a U.S. owner. Ocean Steam Navigation v. Mellar, 213 U.S. 718 (1914); See also, James E. Mercante, “In the Wake of The Titanic: An Unsinkable Law”, New York Law Journal, April 12, 2012. A limitation action allows all claims to be asserted in one proceeding against the vessel owner (like an interpleader).

Here, the claims included damages to both ships, multiple personal injuries and 10 fatali­ties. The military personnel were precluded by Supreme Court precedent (Feres Doctrine) from bringing suit against the United States for inju­ries arising out of or in the course of activity incident to military service. Feres v. United States, 340 U.S. 135 (1950).

To add insult to injury, the commanding officer was court-martialed and found guilty of der­eliction of duty. The executive officer and other senior ranking officers were disciplined, effec­tively ending Navy career paths. The Navy issued a scathing report that was admitted in evidence.

The Target-Joint and Several Liability

The petitioner (owner of the Alnic) fought vigorously at trial to prove the McCain was 100% at fault. This was the only outcome that would sit well with the tanker owner because the military personnel were barred from suing the United States, and therefore took aim at the tanker. But, more importantly, under the maritime law of joint and several liability, Alnic was well aware that had it been found even 1% at fault, the service member injury and death claimants would recover the entirety of the judgments from the tanker owner.

This scenario became a stark reality when Crotty ruled the Alnic to be 20% at fault while the McCain’s fault was 80%. Interestingly, Alnic’s fault included its post-impact omis­sions, which is rarely seen. After the crash, Alnic failed to timely stop engines, and took no action to switch to manual steering. The McCain’s faults were legion, including loss of steering, crew ignorance of the high tech steer­ing controls, multiple navigation rule violations, no danger signal sounded, unaware that one screen touch could have stopped the ship.

Pyrrhic Victory

The parties stipulated to the damages sus­tained to the two ships with the high-tech Naval warship McCain suffering $185 million in damages. The Alnic damages were only $442,445. Thus, while 20% apportionment of fault may seem like a win for the Alnic, it was far from it. Under joint and several liability, the tanker owner was obligated to pay 20% of the McCain’s $185 million in damages, amount­ing to nearly $37 million dollars. The United States (which had the larger allocation of fault) was obligated to pay the tanker 80% of its damages, only $354,000.

Accordingly, with the tanker owner also now facing the totality of the injury and death awards, the Alnic interests argued that despite the Feres Doctrine’s direct lawsuit preclusion, the Alnic should be entitled to contribution and/or indemnity from the United Sates for its 80% allocation of fault.

The district court rejected this argument and Alnic took this legal issue up on appeal together with the apportionment of 20% fault. Findings of fact as to apportionment of fault in a collision case are subject to the difficulty to surmount ‘clearly erroneous’ standard of proof on appeal. Crotty cited precedent that there is “no formula for apportioning liability.” The allo­cation requires consideration of matters not readily amenable to precise analysis but that percentages be accompanied by “sufficient explanation to provide a reviewing court with some general understanding of the basis for the decision.” 607 F.Supp 3d at 360.

Limitation Action

The district court also considered Alnic’s defense of limitation of liability to the tanker’s value. The act protects the vessel owner from unlimited vicarious liability for damages caused by on board negligence of the captain or crew. Tanden v. Captain’s Core Marina of Bridgeport, 752 F.3d 239, 244 (2d Cir. 2014).

The court ruled that petitioner having failed to prove at trial that it (as owners of the tanker) lacked privity or knowledge of the acts and omissions that led to the collision, Alnic’s peti­tion to limit its liability was denied. See 607 F.Supp 3d at 371. Lack of proper crew training and crew competence were shoreside man­agement issues.

Choice of law was and remains important in this case. The district court applied the federal maritime law of the United States in its collision liability analysis. But, despite the Alnic having chosen to file its petition here and all claims are by U.S. citizens, the court vowed to apply the law of Singapore to the injury and death claimants’ remedies. In the matter of Energetic Tank, 2020 WL 114517 (SDNY 2020). This issue was argued on appeal as well and awaits ruling, with claim­ants suggesting that U.S. law should apply as well to damages.

There has been a call on for quite some time for Naval Surface Warfare Officers to qualify and obtain licenses issued by the U.S. Coast Guard (like Merchant Mariners) to operate ships. The McCain and similar Navy ship col­lisions perhaps makes this a Mayday call. Meanwhile, the sailor families await their day in court and fair compensation for their loss.

Written by C. Briggs Johnson

New York’s highest Court (the Court of Appeals) has just announced a major expansion of Labor Law section 241(6) liability against those who own or perform general contractor services for buildings undergoing construction, excavation, or demolition.

In Bazdaric v. Almah Partner LLC, the Court expanded the scope of industrial code section 12 NYCRR 23-1.7(d) (i.e., the slip and fall code) by announcing that a “plastic covering” or tarp was a “foreign substance” within the meaning of that code.  This is a dramatic departure from the other specifically enumerated slippery conditions listed in that code (“Ice, snow, water, [and] grease), which all deal with liquid or transient conditions.   In other words, reading a plastic tarp as “any other foreign substance” seems to cut against the intent of the code at the time it was written.

And this is precisely what the defendants argued under the doctrine of ejusdem generis (that general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words).  The Court rejected that doctrine and held that “because it would have been impossible to operate the escalator” where plaintiff worked and fell “if covered with plastic”, that therefore the plastic tarp “was, by definition a substance foreign to the escalator.”

Of course, while many of us might disagree with that interpretation of the industrial code, it is now the law of this State.  It is therefore another crucial component to be aware of when defending construction accident cases going forward given the high exposure usually associated with those cases.

On February 16, 2024, following a re-trial, Matthew Vitucci obtained a defense verdict in Supreme Court, New York County before the Honorable James D’Auguste on behalf of our clients, a cooperative apartment owner and its property manager. Plaintiff alleged she was injured by falling snow and ice while walking on the sidewalk in front of our clients’ building. Plaintiff claimed she sustained severe brain injuries including concussion, post-concussion syndrome with severe cognitive after-effects including: loss of memory, inability to perform basic functions including reading, maintaining relationships and working at her job; plaintiff further alleged that she sustained additional injuries from the impact with the falling ice including loss of hearing, a dislocated jaw, injuries to the cranial nerves resulting in trigeminal neuralgia, fibromyalgia, and traumatic epilepsy with seizures.

Plaintiff brought a negligence action against the building owner and property manager, alleging that our clients had notice of a hazardous condition caused by snow and ice accumulating on exterior surfaces of the building. Plaintiff further argued that our clients should have installed ‘ice guards’ to prevent snow and ice from falling to the sidewalk below, and that our clients should have closed off the sidewalk around their building. The first trial, also handled by Mr. Vitucci, resulted in a verdict for the Defendants. Plaintiff successfully appealed the verdict arguing that certain video evidence was wrongfully precluded by the Court.

Mr. Vitucci argued during the initial trial that, in fact, the snow and ice had fallen from two New York City owned large trees that overhung the sidewalk. Furthermore, even if the snow and ice did come from the building, Mr. Vitucci argued our clients had no notice that such an event could occur as there had never been a similar incident prior to the date of loss. Therefore, our clients had no duty to install ice guards or close the sidewalk on the day of the accident.

During the re-trial, the defendant’s liability witnesses (the building doorman and property manager) both were subpoenaed by Plaintiff’s counsel and following harsh questioning, reversed their testimony at the earlier trial and related that the ice and snow did in all likelihood fall from the building, that there had been prior incidents at the building with falling ice causing the building to have to cordon off adjacent sidewalks, and that in view of a warmer weather forecast for the date of the accident that the sidewalk should have been shut in the hours prior to the 10 am incident.

Despite the damaging testimony, Mr. Vitucci argued that the Defendants could not be found to have acted unreasonably on the morning of the accident as the video that had been precluded in the first trial and introduced in the second, provided evidence that none of the buildings in the surrounding area had cordoned off their adjacent sidewalks on the morning of the accident either.

Plaintiff sought recovery of 4.6 million dollars for the injuries alleged. The jury returned a unanimous verdict for the Defendants after a twenty-minute deliberation.