2019• Vol. 3 Coverage For Mischief And Vandalism Pennsylvania Superior Court Declares Trial Court Erroneously Exceeded Authority Under Unfair Trade Practice CM’s Spotlight On Diversity And Inclusion Initiatives A summary of significant recent developments in the law focusing on substantivet h issues of litigation and featuring analysis and commentary on special pointsAnniversary of interest. A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest. 2019 • Vol. 3 FEATURES DAMAGES 7 Pennsylvania Superior Court Declares That 16 CM NEWS The Trial Court Erroneously Exceeded Its Authority Under The Unfair Trade Practice And Consumer 18 Case Notes Protection Law When It Awarded Plaintiffs Quadruple Damages Under The Unfair Trade ARTICLES Practice And Consumer Protection Law COVERAGE by Yesy Sanchez 3 Coverage For Mischief And Vandalism Applies NEGLIGENCE Only To Human Conduct Connecticut Supreme Court Accepts The by Dawn Brehony 9 “Alternative Liability” Doctrine Shifting Burden 5 A Pennsylvania Superior Court Narrows Of Proof In Negligence Action To Defendants The “Business Pursuits” Exclusion When Plaintiff Cannot Prove Which Caused To Injuries That Have A Causal Relationship The Harm But Each One Could Have To An Insured’s Duties At Work by Elizabeth Zakheim by Ryan J. Weber SUBROGATION 11 New Jersey Appellate Division Upholds Subrogation Waiver Provisions REPORT STAFF In AIA Construction Contract EDITOR-IN-CHIEF by Kristian E. Alfonso Robert A. Stern CONTRIBUTING AND WORKERS’ COMPENSATION FEATURED ATTORNEYS 13 Third Department Addresses Retroactive Application Of Amendment To Workers’ Kristian E. Alfonso Compensation Law Involving Permanent Dawn M. Brehony Partial Disability And Labor Market Attachment Yesy Sanchez by Ian T. Williamson Ryan J. Weber Ian T. Williamson Elizabeth Zakheim Case Notes Attorney Melinda S. Kollross The CM Report of Recent Decisions is provided as a general information source and is not intended, nor should it be considered, the rendition of legal advice. Please contact us to discuss any particular questions you may have. © 2019 Clausen Miller P.C. 2 www.clausen.com COVERAGE Coverage For Mischief And Vandalism Applies Only To Human Conduct by Dawn Brehony The United States District Court for and malicious mischief.” Id. at *2. the Western District of Pennsylvania American Modern denied the claim held that acts of raccoons in causing on the basis that animal damage to damage to a dwelling cannot be dwellings is not covered in the list considered “vandalism and mischief” of perils and, as such, there is no so as to fall within the coverage coverage for the damage caused by afforded under a specified perils the raccoons. Id. at *3. Thereafter, dwelling policy. Capital Flip brought suit against American Modern for breach of In Capital Flip, LLC v. American contract and bad faith, and American Modern Select Ins. Co., 2:19-cv-180 Modern subsequently filed a motion Dawn M. Brehony (W.D.PA. 2019, Sept. 19, 2019), to dismiss. Id. is a senior associate at Clausen Miller P.C. in rejecting an insured’s argument in the New York office. She is a litigation that raccoon damage fell within a In opposition to American Modern’s attorney, representing domestic and foreign the policy’s coverage for “vandalism motion to dismiss, Capital Flip insurers in complex insurance coverage matters involving all aspects of general and malicious mischief,” Judge argued that the policy is ambiguous liability. She also prepares coverage analyses William A. Stickman agreed with because it does not specifically define and provides counseling on insurance the insurer that raccoons cannot, as “vandalism” or “malicious mischief,” coverage matters involving first- and third- party property and casualty, directors and a matter of law, engage in vandalism and because the terms are undefined, officers and professional liability claims. or perpetrate mischief—much less they may include damage caused by Her experience also includes representing with malice. raccoons and other animals. Id. a pharmaceutical manufacturer in pharmaceutical pricing litigation. [email protected] Plaintiff Capital Flip, LLC (“Capital Rejecting Capital Flip’s argument, Flip”) discovered that raccoons the Court explained that it is had entered a dwelling it owned well-established that a term is in the Pittsburgh area, causing not necessarily ambiguous if an substantial damage to the interior. insurance policy does not include The property was insured by a its specific definition. Id. at *5-6. dwelling policy issued by American The Court looks to both dictionary Modern Select Insurance Company definitions and specific legal usage (“American Modern”). The dwelling of the terms to show that they are policy offered coverage for certain inapplicable to animal behavior. Id. “perils insured against,” including at *6. The Court further looked to the “vandalism and mischief.” Id. at *2. Pennsylvania Crimes Codes, noting that the concepts of vandalism and Capital Flip made a claim under common law malicious mischief the dwelling policy, positing that are intertwined in the offense of the damage caused by the raccoons Criminal Mischief, which requires fell within the peril of “vandalism a human actor. Id. at *7. The Court www.clausen.com 3 COVERAGE explained, “animals are subject terms “vandalism” and “malicious only to the laws of nature, not the mischief” to encompass animal Pennsylvania Crimes Code or law behavior holding that, as a matter governing human conduct.” Id. of law, they can only apply to human conduct. Id. at *7-8. The Court further examined persuasive law from other jurisdictions on the In granting American Modern’s issue, explaining that such other motion to dismiss, the District Court courts have declined to interpret the reasoned that raccoons and their companions in the animal kingdom cannot formulate the intent needed to engage in vandalism or malicious misconduct, noting that “animals do not have conscious agency.” Id. at *9. Accordingly, the Court found that based on the plain and unambiguous language of the policy, there was no coverage under the policy for the raccoon damage to the dwelling. Learning Point: Courts continue to enforce unambiguous policy provisions declining coverage for vandalism and malicious mischief when alleged to have been caused by an animal. All the more reason to keep raccoons out of your house. 4 www.clausen.com COVERAGE A Pennsylvania Superior Court Narrows The “Business Pursuits” Exclusion To Injuries That Have A Causal Relationship To An Insured’s Duties At Work by Ryan J. Weber A Philadelphia Superior Court Nationwide brought this declaratory affirmed the trial court’s order judgment action to seek relief from denying summary judgment to its obligation to defend and/or the insurer, Nationwide Mutual indemnify its insured, Arnold, Insurance Company (“Nationwide”), in a separate lawsuit brought by and found the “business pursuit” CMC Engineering, Inc. (“CMC”) exclusion did not apply to an against Arnold and his attorney, insured whose alleged injurious Jon Pushinsky (“CMC Action”). actions did not arise from his job The CMC Action arose from the Ryan J. Weber at the Pennsylvania Department unsuccessful prosecution of a qui tam is an associate at Clausen Miller P.C. who graduated magna cum laude of Transportation (“PennDOT”). action brought by Arnold on behalf from Ohio University with a BBA in Nationwide Mutual Insurance of the United States against CMC Finance. He received a scholarship Company v. August W. Arnold, et al., and others where Arnold alleged that to New York Law School where he received his J.D. with honors and was 2019 Pa. Super. LEXIS 692 (July consultants who provided services to a member of both the law review and 11, 2019). The Court declined to PennDOT falsified their credentials the Center for Professional Values. At construe the “business pursuits” to qualify for higher pay rates. CMC Clausen Miller, Ryan focuses on both exclusion so broadly that allegations then brought suit against Arnold coverage and defense work in general and product liability. with any link to an insured’s work and Pushinsky for violations of the [email protected] would preclude coverage. Dragonetti Act, Abuse of Process and Intentional Interference of Nationwide issued an Umbrella Contractual Relations. Liability Policy to the insured, August W. Arnold (“Arnold”). The policy Nationwide filed a motion for provided coverage for a claims defense summary judgment which stated of a suit against the insured resulting the “business pursuits” exclusion in from an occurrence covered by the Arnold’s Umbrella Policy excluded policy. The definition of occurrence coverage for the CMC Action. under the policy included an accident Nationwide argued that the alleged which results in a personal injury actions by the insured which caused caused by the insured during the injury to CMC, namely the qui tam policy period. The policy specifically lawsuit initiated by the insured, arose excluded an occurrence arising out from his employment at PennDOT of the business pursuits or business where the insured had access to property of an insured. the documents and records which www.clausen.com 5 COVERAGE formed the basis of the qui tam incorrectly applied the two prong test The Superior Court found that much action. The Common Pleas Court by characterizing the qui tam action like in Ericksen, the actions taken by relied on the two prong test of as Arnold’s business pursuit. The Arnold that form the basis of the continuity and profit motive adopted Court found “it is clear that Arnold’s CMC Complaint occurred outside from the Third Circuit, and found the employment at PennDOT constitutes of his duties and responsibilities at “business exclusion” did not apply a business pursuit, as it is an activity PennDOT. Nationwide, 2019 Pa. and Nationwide had a duty to defend done with the requisite continuity and Super. LEXIS 692 at 5. The Court the insured in the CMC Action.