LexisNexis® Legal Newsroom
Mealey's Insurance - EPA Letter Constitutes Suit, Triggers Carrier's Duty To Defend, New Jersey Judge Says

NEWARK, N.J. - A New Jersey judge on Aug. 30 granted an insured's motion for summary judgment after determining that a general notice letter issued by the U.S. Environmental Protection Agency constitutes a suit under the terms of insurance policies at issue and triggers the insurer's duty to defend (Cooper Industries LLC v. Employers Insurance of Wausau et al., No. L-9284-11, N.J. Super., Essex Co., Law Div.; 2016 N.J. Super. Unpub. LEXIS 2003).

Mealey's Insurance - Illinois Court Properly Found Contamination Suit Should Be Resolved In New Jersey

CHICAGO - The First District Illinois Appellate Court on Aug. 22 determined that a trial court did not err in dismissing an environmental contamination coverage suit filed by excess insurers because New Jersey, where a similar suit is pending, is the more appropriate venue to resolve the dispute (American Home Assurance Co., et al., v. National-Standard LLC, et al., No. 1-15-1363, Ill. App., 1st Dist., 1st Div.; 2016 Ill. App. Unpub. LEXIS 1733).

Mealey's PI/Product Liability - Concert Goers File Suit Against Rappers Over Railing Collapse

PHILADELPHIA - A group of plaintiffs on Aug. 24 sued rappers Snoop Dogg and Whiz Khalifa for contributing to the atmosphere that led to the collapse of a railing at a concert in New Jersey that caused several injuries (Michael Carpenter, et al. v. Live Nation Worldwide Inc., et al., No. 160803137, Pa. Comm. Pls., Philadelphia Co.).

Mealey's Litigation Procedure - Nickelodeon Privacy Plaintiffs Oppose Viacom's Summary Judgment Plan On Remand

NEWARK, N.J. - The plaintiffs in a privacy class action against Viacom Inc. and Google Inc. filed a letter in New Jersey federal court Aug. 19, taking issue with Viacom's efforts to file a prediscovery summary judgment motion to dispose of the remaining intrusion upon seclusion claim that was recently revived and remanded by the Third Circuit U.S. Court of Appeals (In Re: Nickelodeon Consumer Privacy Litigation, No. 2:12-cv-07829, D. N.J.).

Mealey's PI/Product Liability - New Jersey High Court Says Failure To Update Drug Labels Isn't Preempted

TRENTON, N.J. - The New Jersey Supreme Court on Aug. 22 affirmed trial court and appellate court rulings that failure-to-warn claims involving generic versions of the heartburn drug Reglan are not preempted if plaintiffs can show that the generic manufacturers failed to timely update their labels to warn that long-term use of the drug can result in permanent neurological injury (In Re: Reglan Litigation, No. 075269, N.J. Sup.; 2016 N.J. LEXIS 857).

Mealey's IP/Tech - Federal Circuit: DuPont Printing Plate Patents Invalid, Not Infringed

WASHINGTON, D.C. - A New Jersey federal judge's decision to grant a summary judgment of patent invalidity and noninfringement was affirmed Aug. 19 by the Federal Circuit U.S. Court of Appeals, which found that patent owner E.I. du Pont de Nemours & Co. failed to establish that an accused substrate is controlled by an accused adhesive drying process (E.I. du Pont de Nemours & Co. v. MacDermid Printing Solutions LLC, No. 15-1777, Fed. Cir.; 2016 U.S. App. LEXIS 15231).

Mealey's IP/Tech - Federal Judge Rejects Joint-Ownership Position Advanced In Patent Case

TRENTON, N.J. - A New Jersey federal judge on Aug. 17 turned away a request for dismissal of a patent infringement lawsuit based upon a claim of joint ownership by three defendants, finding instead that the plaintiff - as an exclusive licensee - can sue a patentee or an infringer (The Medicines Company v. Eagle Pharmaceuticals, et al., No. 16-569, D. N.J.; 2016 U.S. Dist. LEXIS 108855).

Mealey's PI/Product Liability - Appeals Panel Remands Case To Determine Scope Of New Jersey YMCA's Charitable Work

NEWARK, N.J. - A New Jersey appeals panel on Aug. 15 remanded a slip-and-fall case against a state YMCA facility, finding that more information about the scope of the facility's charitable, educational and religious works is needed to determine if it is entitled to absolute immunity from liability under the state Charitable Immunity Act (James F. Walters v. YMCA, No. A-1130-15T3, N.J. Sup., App. Div.; 2016 N.J. Super. Unpub. LEXIS 1904).

Mealey's Litigation Procedure - Federal Judge Refuses To Intervene In Foreclosure Action, Dismisses Case

TRENTON, N.J. - After finding that it would be improper to intervene in a state foreclosure-related action, a New Jersey federal judge on Aug. 16 dismissed a borrower's action against a bank in which he asserted a claim for violation of the Truth in Lending Act (TILA) (Abhi Barthakur v. Wells Fargo Bank, N.A., No. 15-8079, D. N.J.; 2016 U.S. Dist. LEXIS 108304).

Mealey's PI/Product Liability - Magistrate Judge Says Lack Of Tissue Bag For Morcellator Can Be A Product Defect

NEWARK, N.J. - A New Jersey federal magistrate judge on Aug. 11 allowed a plaintiff in a power morcellator case to amend her complaint to argue that the lack of a tissue bag is a defect (Sumaira Khan v. Karl Storz Endoscopy-America, Inc., et al., No. 15-7822, D. N.J.; 2016 U.S. Dist. LEXIS 106130).

Mealey's Toxic Tort/Environmental - Groups: Court Erred When It Dismissed Some Defendants In Lead Contamination Case

TRENTON, N.J. - Environmental groups that have sued NL Industries Inc. alleging lead contamination filed a brief in New Jersey federal court on Aug. 9, contending that when the district court granted summary judgment dismissal to some of the defendants, it made "clear legal and factual errors that warrant reconsideration" (Raritan Baykeeper Inc., et al. v. NL Industries Inc., et al., No. 09-4117, D. N.J.).

Mealey's Labor & Employment - 3rd Circuit Rejects FedEx Claims That Worker Unit Must Expand

PHILADELPHIA - The Third Circuit U.S. Court of Appeals on Aug. 9 granted a cross-petition by the National Labor Relations Board to enforce a decision finding a unit of FedEx Freight Inc. drivers at one of its New Jersey facilities to be proper, despite FedEx's claim that the unit must also include dockworkers (National Labor Relations Board v. FedEx Freight, Inc., No. 15-2585, FedEx Freight, Inc. v. National Labor Relations Board, No. 15-2712, 3rd Cir.; 2016 U.S. App. LEXIS 14593).

Mealey's Insurance - New Jersey Panel Allows Claims Related To Contamination That Predate Sale Of Company

TRENTON, N.J. - A company successor is entitled to allege claims for breach of contract and breach of the duty of good faith and fair dealing as long as those claims pertain to coverage for environmental contamination that predated the successor's acquisition of the insured's company, the Appellate Division of the New Jersey Superior Court said Aug. 4 (Haskell Properties LLC v. The American Insurance Co., et al., No. A-1452-14T2, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 1836).

Mealey's Insurance - Faulty Work's Consequential Damages Are Insured, New Jersey High Court Finds

TRENTON, N.J. - Consequential damages caused by the subcontractors' faulty workmanship constitute "property damage," and water damage from rain flowing into the interior of the property due to that faulty work is an "occurrence" under a commercial general liability insurance policy, the New Jersey Supreme Court ruled Aug. 4 (Cypress Point Condominium Association Inc. v. Adria Towers LLC, et al., No. A-13/14, N.J. Sup.; 2016 N.J. LEXIS 847).

Mealey's Insurance - Judge: Extraordinary Circumstances Excuse Untimely Filing Of Affidavits Of Merit

CAMDEN, N.J. - A New Jersey federal judge on Aug. 2 found that extraordinary circumstances excuse insureds' untimely filing of affidavits of merit in a Superstorm Sandy coverage dispute (Brian McMullin, et al. v. Harleysville Insurance Co., Inc., et al., No. 14-7537, D. N.J.; 2016 U.S. Dist. LEXIS 101491).

Mealey's IP/Tech - N.J. Man Sues Pokemon Go Developer For Placing Stops On Private Property

OAKLAND, Calif. - The developer of Pokemon Go, a popular "augmented reality" game that is played on smartphones, is liable for nuisance for placing virtual parts of the game known as "Pokestops" and "Pokemon gyms" on or adjacent to private property, a New Jersey man alleges in a class complaint filed July 29 in a California federal court (Jeffrey Marder, et al. v. Niantic, Inc., et al., No. 16-4300, N.D. Calif.).

Mealey's Litigation Procedure - N.J. Man Sues Pokemon Go Developer For Placing Stops On Private Property

OAKLAND, Calif. - The developer of Pokemon Go, a popular "augmented reality" game that is played on smartphones, is liable for nuisance for placing virtual parts of the game known as "Pokestops" and "Pokemon gyms" on or adjacent to private property, a New Jersey man alleges in a class complaint filed July 29 in a California federal court (Jeffrey Marder, et al. v. Niantic, Inc., et al., No. 16-4300, N.D. Calif.).

Mealey's PI/Product Liability - New Jersey Appeals Panel Vacates 2 $9M Accutane Verdicts, Orders New Trial

TRENTON, N.J. - A panel of the New Jersey Superior Court Appellate Division on July 22 vacated two $9 million Accutane bowel injury verdicts and remanded them for a new trial after finding that the trial court improperly allowed evidence of subsequent remedial action by defendant Hoffman-La Roche Inc. (Kathleen Rossitto v. Hoffman-La Roche Inc., et al., No. A-1236-13T1, Riley Dean Wilkinson v. Hoffman-La Roche Inc., et al., No. A-1237-13T1, N.J. Sup., App. Div.; 2016 N.J. Super. Unpub. LEXIS 1714).

Mealey's Insurance - Coverage Barred By CGL Policy's Professional Services Exclusion, Panel Affirms

TRENTON, N.J. - A New Jersey panel affirmed July 20 that commercial general liability coverage for an underlying negligence lawsuit against an engineering firm insured is barred by the policy's professional services exclusion (EIC Group LLC v. The Travelers Indemnity Company of America, No. A-2590-14T1, N.J. Super., App. Div.; 2016 N.J. Super. Unpub. LEXIS 1683).

Mealey's Toxic Tort/Environmental - Couple Appeals Paulsboro Train Derailment Vinyl Chloride Case To The 3rd Circuit

CAMDEN, N.J. - A couple that had its lawsuit against a group of railroad companies consolidated with other New Jersey residents filed a notice in New Jersey federal court on July 19 that it was appealing to the Third Circuit U.S. Court of Appeals the district court's rulings that granted the defendants' motions in limine to exclude the couple's experts. The experts had sought to testify on injury causation related to exposure to vinyl chloride caused by the derailment of a train carrying the chemical over a bridge (In Re: Paulsboro Derailment Cases, No. 13-784, D. N.J.).

Mealey's Insurance - Judge: District Court Lacks Subject Matter Jurisdiction Over Bad Faith Suit

NEWARK, N.J. - A federal judge in New Jersey on July 19 granted an insurer's motion to dismiss in an insurance breach of contract and bad faith lawsuit, ruling that an insured failed to show that the district court has subject matter jurisdiction over the action (Florence Hanson v. Allstate New Jersey Insurance Co., No. 15-8882, D. N.J.; 2016 U.S. Dist. LEXIS 93444).

Mealey's Insurance - Insured's Faulty Work Is Not Covered 'Property Damage,' Panel Upholds

TRENTON, N.J. - Allegations of an insured's negligent work that caused a collapse do not constitute covered "property damage" under commercial general liability insurance policies, a New Jersey appeals panel affirmed July 15 (New Jersey-American Water Co., Inc. v. Watchung Square Associates, LLC and Fidelity Corp. v. Vollers Excavating & Construction, Inc. and Frank Ferraro v. Salvatore Davino, et al. and Travelers Insurance Co., et al., Nos. A3436-13T1 & A-3445-13T1, N.J. Super. App. Div.; 2016 N.J. Super. Unpub. LEXIS 1639).

Mealey's Insurance - Judge Declines To Find Policy Voidable For Not Complying With N.J. Rule Of Court

NEWARK, N.J. - A New Jersey federal judge on July 14 rejected an attorney insured's argument that a professional liability insurance policy is voidable for failing to comply with the requirements of New Jersey Rule of Court 1:21-1B(a)(4), denying the insured's motion for summary judgment in a coverage dispute over client funds that were allegedly misappropriated by a legal assistant (Jill Cadre, et al. v. ProAssurance Casualty Co., No. 16-0103, D. N.J.; 2016 U.S. Dist. LEXIS 91925).

Mealey's Insurance - Insured Filed Superstorm Sandy Claim 11 Days Too Late, Federal Judge Rules

CAMDEN, N.J. - A New Jersey federal judge on July 14 held that the one-year statute of limitations under the National Flood Insurance Act (NFIA) was triggered on the date an insurer mailed its denial letter and not on the date the insured received the denial letter, finding that the insured filed his claim for Superstorm Sandy damage to his beach house 11 day too late (John Cholankeril Jr. v. Selective Insurance Company of America, No. 15-3269, D. N.J.; 2016 U.S. Dist. LEXIS 91457).

Mealey's Insurance - Insurer Paid Full Amount Of Mold Sublimit, Federal Judge Says; No Breach Of Contract

CAMDEN, N.J. - A New Jersey federal judge on July 12 determined that an insurer did not breach its contract or act in bad faith when handling its insureds' claims for water and mold damages because the insurer paid for some of the damages and paid the full amount of the mold sublimit under the policy (Warren and Maryann Andrews v. Merchants Mutual Insurance Co., No. 14-5147, D. N.J.; 2016 U.S. Dist. LEXIS 89997).