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.
GVK’s appellate practice chair, C. Briggs Johnson, recently secured a major appellate victory in a Labor Law action. In Vasquez v. Manhattan College (App. Div. First Department Case No.: 2023-01676), plaintiff alleged that he injured himself on a construction project when he fell off a ladder while removing asbestos for our client (and his employer) in the basement of Leo Hall, a building owned by Manhattan College in the Bronx. Plaintiff demanded $10.5 million dollars, and the College looked to our client to indemnify them for the accident. On appeal, we proved that no indemnity obligation existed regarding plaintiff’s accident.
GVK attorney Bryan Schwartz and his team successfully dismissed Manhattan College’s contractual indemnity claims against our client on the grounds that the newer agreement between the two only had an indemnity obligation running in favor of our client and not Manhattan College. Later, Manhattan College found another, older agreement covering asbestos work a year or so earlier at the College. The College argued that the older agreement was the main agreement between the College and our client, and that the newer agreement merely supplemented the older agreement.
The Appellate Division disagreed and found our arguments more persuasive: that the newer agreement was separately negotiated; that the newer agreement unambiguously provided no indemnification for the college; that the newer agreement covered a different portion of the Leo Hall building; that the newer agreement had a separate project cost; and the newer agreement made no reference to the older agreement that Manhattan College found.
This is yet another poignant reminder of how every word in a construction contract truly does matter, and it reinforces the immense value of having a skilled appellate practitioner to investigate and dissect every single word in such contracts, which can be the crucial difference between – as it was here – avoiding Labor Law exposure.
GVK recently obtained a dismissal of a plaintiff’s Labor Law 240(1) claim arising out of a tragic construction site accident with a demand of $30 million dollars. Plaintiff claimed that he injured himself on a construction project when he drove a scissor lift off a temporary ramp on a construction project located in Brooklyn. Our clients were the owner and general contractor for the building, which means that we were first in line for the potential and massive exposure of the extraordinary protections of Labor Law 240(1) (the falling object and falling worker statute in New York). GVK made several highly nuanced and sophisticated arguments in support of a dismissal of that claim.
And the Court accepted one of those arguments. Although plaintiff argued that because he fell from an elevation on a construction project that he was automatically entitled to summary judgment on liability under Labor Law 240(1), the Court relied on the ample case law from our memorandum of law showing that the temporary ramp off which plaintiff fell “was not a tool use in the performance of the plaintiff’s work. Rather, it was a ‘passageway’ from one place of work to another. “The distinction is critical”, the Court continued, “because an accident arising on such a passageway does not lie within the purview” of Labor Law 240(1). In other words, the ramp was not the functional equivalent of a safety device enumerated and required by Labor Law 240(1).
The decision emphasizes the importance of having skilled appellate and Labor Law attorneys in defending these types of cases, because these types of arguments can be (and often are) frequently overlooked. In this case, the decision has the potential to save our clients millions of dollars.
If you would like any more information about the decision and a copy of our briefs, or if you would like GVK to assist your client in the defense (including motion practice and any appellate work) in these types of high exposure cases in Labor Law matters, please feel free to contact: Howard Klar, Jay Rava, or C. Briggs Johnson at your convenience.
With the previous announced addition of the attorneys of Rubin, Fiorella, Friedman & Mercante LLP (“RFFM”) to Gallo Vitucci Klar LLP (“GVK”), we are excited by the expansion and strengthening of our New York No-Fault insurance law practice. Three new partners from RFFM, Charles T. Rubin, David Boucher, and Michael Tomsky, join as experts in the area of New York No-Fault law, enriching the firm’s capabilities and commitment to excellence in legal services. Additionally, Sarah Rubin joined GVK as a partner in late November 2023 from Lewis Brisbois where she served as Managing Attorney of the firm’s No-Fault department for almost 14 years and will also be a team manager, further strengthening the practice.
GVK’s No-Fault department is involved in all aspects of the practice, from submission of claims to litigation and larger scale coverage actions. GVK’s primary goal is to think outside the facially rigid rules imposed by regulation and to identify the avenues that provide clients with an extra layer of protection against specious claims. The firm regularly conducts SIU investigations as to the legitimacy of reported collisions and subsequent treatment by taking examinations under oath of claimants and medical providers. The firm has led the industry in initiating declaratory judgment actions, which have been an effective tool in cutting off claims and, at the same time, reducing fees and costs for its clients. The declaratory actions have been used to attack all claims resulting from a single accident or in larger actions relating to licensing and RICO violations by medical providers.
GVK also maintains an active litigation and arbitration practice and regularly conducts trial, arbitration hearings and appeals. This Team has obtained excellent results for its clients, particularly in defending fraud claims, including some of the leading New York State decisions on this issue. The Team has obtained favorable decisions, protecting insurers from having to justify examination under oath requests post hoc and piercing corporate veils of providers who seek to use the corporate entity to shield themselves from fraudulent behavior.
Additionally, the GVK Team regularly offers training seminars to insurance carriers, self insurers and to third party administrators. The seminars focus on recent trends in NY No-Fault law, proper claims handling and how to comply with the complex New York No-Fault statute and regulations.
The Team’s expertise lies in managing a substantial caseload of No-Fault matters for both traditional insurance companies and self-insured entities in a high-volume environment. The Team’s proactive insights and expertise make them influential contributors in the field of No-Fault Litigation.
On December 29, 2023, Governor Hochul vetoed the latest version of the “Grieving Families Act,” which the State Legislature passed in June 2023. She did so the day after the Legislature delivered the Act to her for consideration, despite intense lobbying efforts by organizations led by the Plaintiffs’ bar. It was reported that she declined to meet with the families of wrongful death claimants last week to discuss the legislation. The original Act was vetoed in January 2023.
The Acts attempted to expand damages recoverable in wrongful death suits where recovery is presently limited to the “pecuniary losses” of a decedent’s distributees, such as the decedent’s future lost earnings. Although case law allows recovery for a decedent’s pre-death conscious pain and suffering and for loss of parental support, guidance, assistance and inheritance, these damages are often difficult to prove. The original Act sought to permit a decedent’s survivors (vaguely defined as “close family members”) to recover for their own “emotional anguish” or pain and suffering and to extend the applicable statute of limitations from 2 to 3.5 years. It also sought to take immediate, retroactive effect in all pending wrongful death suits.
In vetoing the original bill, Governor Hochul noted her concerns with the scope, financial impact and other “significant unintended consequences” of the Act, including the expansion of the beneficiary class, and the impact of increased litigation, insurance and health care costs on lower-income families, small businesses, health care workers and municipal hospitals. She called for serious evaluation and study of the financial impact of these expansive changes on the statute. She agreed with opponents of the Act that NY State’s constitutional prohibition against limits on jury damage verdicts must be studied and considered. This refers to the fact that although most states allow for the expanded classes of beneficiaries and types of damage claims the Act sought to add, they all also have laws capping damage verdicts, which NY State does not.
The modifications made to the original Act to purportedly address the Governor’s concerns were limited and did not provide any indication that a “serious evaluation and study of the Act’s financial impact” on businesses, hospitals and municipalities had been conducted. The Plaintiffs’ bar has vowed to introduce yet another bill seeking to codify the attempted expansion of NY’s Wrongful Death Statute in the next Legislative session. We will continue to monitor their efforts.
Should you have any questions, please do not hesitate to contact Howard Klar or William Parra.
