The New Classic: Remote Depositions

In response to the COVID-19 pandemic, the Chief Justice of the Supreme Court of Georgia, issued an Order Declaring Statewide Judicial Emergency pursuant to OCGA § 38-3-61. That Order has been extended four times, with modifications.  The Statewide Judicial Emergency Order clarifies that while remote proceedings are encouraged litigants may expressly consent in the record to remote proceedings not otherwise authorized and affirmatively waive otherwise applicable legal requirements.

O.C.G.A. § 9-11-30(b)(4) states:  Notwithstanding the foregoing provisions of O.C.G.A. § 9-11-30(b), a deposition may be taken by telephone or other remote electronics means only upon the stipulation of the parties or by order of the court. For purposes of the requirement of the Civil Practice Act, a deposition taken by telephone or other remote electronic means is taken in the state and at the place where the deponent is to answer questions.

While opposing counsel may attempt to schedule a remote deposition during this pandemic, under Georgia law, one has a right to push back against taking a remote deposition. O.C.G.A. § 9-11-30 (b)(4), expressly states to proceed with a remote deposition all parties must agree. Furthermore, the agreement must be placed on the record. The attorney who is attempting to hold the remote deposition must show an exceptional good cause on how he/she will be prejudice if the deposition is rescheduled.

An option one can use, to place on the record your objection to participating in a remote deposition is to file a motion for Protective Order. A motion for a protective order should be filed as soon as a party learns it cannot comply with the discovery request and knows it needs a protective order. Millholland v. Oglesby, 115 Ga. App 715 (Ga. App.1967). A motion for protective order must be filed before the due date for the discovery or the date that the deposition is to be taken, and not afterwards. Id.

If you have an upcoming remote deposition (stipulated by all parties) scheduled, below are some practical tips to take prior to the scheduled deposition.

1. Virtual Deposition Vendor: use a vendor who has the capability to conduct the entire deposition remotely.

2. Equipment: all participants will need internet access on a computer/tablet with audiovisual capabilities.

3. Exhibits: while most vendors have exhibit sharing capabilities, counsel should prepare hard copies and send the exhibits to the witness and opposing counsel.

4. Recording: Counsel will need to hire a separate videographer to film the deposition if a recorded video deposition is needed.

5. Court Reporter: Counsel will need to notify the vendor which geographical location the court reporter will be located.

As more courts move towards remote depositions in light of the COVID-19 pandemic, know the rules for remote depositions in your jurisdiction.

Big Win for Canine Owners

Callahan & Fusco, LLC recently prevailed on a Motion for Summary Judgment to dismiss a premises liability matter pertaining to negligent ownership of a dog in the United States District Court of New Jersey.

This case arose from alleged injuries suffered by the plaintiff after she had arrived at defendant’s premises to attend a bridal shower.  Defendant had lent her farm property to her nieces as a venue.  The elderly plaintiff claimed that upon arriving at defendant’s driveway, she was caused to be knocked over by the insured’s dog, suffering a broken hip and requiring surgical intervention.  Prior to plaintiff’s fall, defendant had unleashed her dog who had been tethered to a tree; planning to take the dog with her to the store to get away from the commotion prior to the guests’ arrival.

Plaintiff in her Complaint alleged violation of municipal ordinances, common law strict liability, and negligent ownership of the dog in that defendant allowed the dog to freely roam her premises without a leash knowing the dog’s propensity to jump on people.

Following discovery, defendant moved for summary judgment, arguing that plaintiff had failed to provide any evidence for her claims. The Court issued a decision granting the motion. 

In its decision, the Court first analyzed the municipal leash law, which prohibited dogs to remain unleashed on public property.  The plaintiff argued that the imposition of this ordinance highlights the dangers of unleashing one’s animal.  The Court, though, agreed with our argument that just because a municipality had enacted an ordinance prohibiting conduct in certain locations did not mean that the prohibitive conduct was itself dangerous.  Thus, defendant had no obligation to leash her dog on her own property.

The Court also analyzed whether plaintiff had made her case for strict liability under the common law.  Under New Jersey law, strict liability will be imposed for injuries caused by a domestic animal whose owner knew of the animal’s dangerous propensities. See Hayes v. Mongiovi, 121 N.J. Super. 272, 275 (Dist. Ct. Nov. 1, 1972).  Plaintiff claimed that defendant’s decision to leash her dog was indicative of her knowledge as to the dog’s propensities.  The Court, though, found that plaintiff merely made allegations as to defendant’s purported knowledge which failed to create a genuine issue of fact.

Finally, the Court examined plaintiff’s common law negligence claim.  In negligence cases involving injuries caused by domestic animals, under New Jersey law, “the duty owed is ‘commensurate with the danger to others which will follow’ if the dog escaped from the owner’s control.” De Robertis v. Randazzo, 94 N.J. 144, 156 (1983).  Using this standard, the Court found no evidence that the dog was unruly or agitated prior to being unleashed.  Plaintiff also failed to present any evidence that the dog had a history of being overly affectionate or tended to act in a way that posed a danger to others.  Also, the court reasoned that the town’s ordinance allowed defendant to permit her dog to roam unleashed within the confines of her property.

Thus, the Court concluded that as a matter of law, no duty of care owed to Plaintiff was violated and a great result was achieved for our client, a caring and responsible dog owner.

Accuracy Leads to Successful Defense

It is a staple in insurance defense litigation for conflicts to arise concerning whether a landowner of a property is liable for maintaining the sidewalk versus the tenant, especially if the lease agreement contains specific indemnification language. A 2020 New York decision sheds light on this issue as well as the importance of having an accurate deposition testimony.

In Bullock v. 1585 Realty Co. LLC, plaintiff was injured when she tripped/fell on the sidewalk/cellar doors in front of Wine & Liquor, a tenant of 1585 Realty Co. LLC., who was the owner of that property. The landowner and tenant executed a lease agreement, which contained language that delegated the owner to maintain public portions of the building (both interior and exterior) and delegated the tenant to maintain the building in good condition (including the sidewalk). However, the lease agreement made it clear that the cellar/vault doors were not part of same. Additionally, a rider provided that the tenant was responsible to maintain and clean the storefront, street entrance, and passageways to and from the building.

Wine & Liquor filed a motion for summary judgment seeking dismissal of plaintiff’s complaint and defendant, 1585’s indemnification cross-claim. The Court denied the aforementioned motion and ruled that “A landowner may maintain an indemnification action against a tenant who agrees to maintain the property [Xiang Fu He v. Troon Mgmt., Inc., 34 N.Y.3d 167, 114 N.Y.S.3d 14, 137 N.E.3d 469 [2019]; see also Wahl v. JCNYC, LLC, 133 AD3d 552, 20 N.Y.S.3d 65 (1st Dept 2015]” (Bullock v 1585 Realty Co. LLC, 2020 NY Slip Op 32104[U] [Sup Ct, NY County 2020]). Further, the Court cited to plaintiff’s deposition testimony, where it was uncertain as to whether plaintiff stepped on the sidewalk or the cellar/vault doors (which was excluded from the lease). Since the deposition testimony was unclear as to the precise location of the fall, the motion was denied as to dismissal of the indemnification cross-claim.

In the arena of insurance defense, we represent both landowners and tenants in various disputes similar to the litigation above and come across analogous situations in numerous cases. However, we must ensure that while deposing the plaintiff (in a personal injury related matter), we accurately pinpoint the precise location of the alleged accident as it is imperative for our defense efforts/strategy for the case. As seen in the case above, it can make all the difference between a successful summary judgment decision on indemnification versus a mere failed attempt.

“No Double Dipping – Set It Off”

Florida’s Fourth District Court of Appeals (“4th DCA”) recently issued an opinion that significantly impacted a jury’s damages award. The court’s ruling represented a major win for the insurers, which successfully set off thousands in duplicated benefits.

In Liberty Mutual Insurance Company and Liberty Mutual Fire Insurance Company vs. Jeffrey H. Wolfson, Case Nos. 4D18-3652 and 4d19-118 (June 24, 2020), following a car accident, the insured (Jeffrey Wolfson) filed a claim under his UM policies with his insurers, which they did not pay. The insured filed suit. The sole issue presented to the jury related to the insured’s damages.  The jury awarded the insured a total of $1,579,629.00 (comprised of: $810,000 for loss of earning; $367,629 for medical damages; and $400,000 for pain and suffering). Post-verdict, the insurers filed a motion to set off from the verdict the amount of any settlements which duplicated any part of the verdict. Nationwide argued that it settled the insured’s UM claim for injuries and lost earnings for $100,000. The insured argued that no Florida Statute expressly authorized an UM carrier to obtain a set off for duplicated benefits paid by another UM carrier. Likewise, the insured settled his claim against AIG for $480,667.50. He argued that the AIG settlement did not duplicate the jury-determine benefits, as it related to his wife’s unpled loss of consortium claim and not injuries and lost earnings claims. The trial court denied the insurers’ motion for set off.

On appeal, the 4th DCA concluded that the set off of the AIG settlement was based on the settlement release’s plain language, which clearly and unambiguously stated it was only for the insured's benefit (“for the benefit of Jeffrey Wolfson”). As to the Nationwide settlement, the 4th DCA noted Section 627.727(1), Fla. Stat., (2018) (in relevant part): “The coverage described under this section shall be over and above, but shall not duplicate, the benefits available to an insured under any workers' compensation law, personal injury protection benefits, disability benefits law, or similar law…” While it does not define “similar law”, the 4th DCA found that because the section was legislatively enacted coverage, therefore personal injury protection benefits and disability benefits law are also legislatively enacted coverages. The 4th DCA concluded that the benefits provided under an UM policy cannot duplicate benefits already paid to an insured under another UM policy.  The 4th DCA affirmed the jury’s total award amount but remanded for the trial court to set off the settlement amounts, thereby enter a final judgement of $998,961.50. 

Big Win for Business Interruption Insurance Carriers

Small businesses around the nation have suffered an enormous body blow, as a result of the COVID-19 pandemic. Beginning in mid-March, New York officials shut down all non-essential businesses to mitigate the spread of the coronavirus.

As a result, many small businesses have filed claims under their business interruption insurance policy. However, for most companies, business interruption insurance derives from their property policy. The property policy, in turn, requires that the covered property suffer a "physical loss or damage" before the insurance coverage will apply.  Two recent decisions have addressed the issue of whether COVID-19 sufficiently meets the standard for "physical loss or damage".

On July 1, 2020, a Michigan State Court handed down the first, substantive COVID-19 business interruption coverage decision of its kind. In Gavrilides Management Co. et al. v. Michigan Ins. Co., Judge Joyce Draganchuk sided with an insurance carrier on a threshold motion to dismiss, dismissing the complaint as a matter of law. Judge Draganchuk reasoned, “There has to be something that physically alters the integrity of the property.” 

Up until the Michigan decision, only one other U.S. Judge had ruled on the issue of business-interruption losses caused by COVID-19. In Social Life Magazine v. Sentinel Ins. Co., U.S. District Court Judge Valerie Caproni for the Southern District of New York denied a preliminary injunction requested by a magazine publisher to force its insurers to pay for financial losses caused by a coronavirus closure order.  Judge Caproni reasoned, “It damages lungs. It doesn’t damage printing presses.”

In response to the financial needs of many small business owners, the New York State Assembly introduced a bill (“10226-B”) and its identical companion Senate bill (“8211-A”), which would require certain commercial property insurance policies to cover business interruption during a period of a declared state emergency due to the COVID-19 pandemic. The bill would expressly void any exclusion in such a policy for losses based on a virus-caused disease. These requirements would extend to any policy meeting all of the following criteria:

1.     In force on or after March 7, 2020;

2.     Issued to an insured with fewer than 250 eligible employees (defined as employees working a “normal week of 25 or more hours”); and

3.     Covering business interruption.

The bill was returned to the Insurance Law Committee for review, which cited in its report, “While we recognize and appreciate the interest and need within the business and nonprofit sectors to address the availability of business interruption coverage for pandemics, we believe, unless amended, the bill would present numerous ambiguities in practice, raise potential questions of Constitutional interference with contract issues, and produce an unacceptable level of uncertainty and potential insolvency in insurance markets.” While small business relief is undeniably needed in New York and throughout the nation, the recent decisions in Michigan and New York create precedential case law that COVID-19 is unlikely to sufficiently meet the “physical loss or damage” requirement for coverage to apply.

Callahan & Fusco, LLC Secures Legal Malpractice Victory for Reputable South Florida Law Firm

Callahan & Fusco, LLC recently prevailed on a motion to dismiss a legal malpractice lawsuit in Palm Beach County, Florida circuit court.
 
Our client, a well-regarded South Florida law firm, secured a full defense verdict on behalf of its client. Despite this outstanding result, the law firm’s client sued, alleging negligence in the failure to secure attorney’s fees from offers of judgment which were deemed insufficient to serve as the basis of a fees claim by a circuit court.
 
The Plaintiff argued that he was unable to win a statutory fee claim because our client, despite winning a full defense verdict, was negligent in filing the fees claims. As support for this, Plaintiff attached the fees proposals and claims filed by our clients to the complaint, along with the circuit court order denying the fees claim and ruling the proposals for fees failed because they were ambiguous, contrary to the law which states any proposal seeking entitlement to fees must clearly state the scope of fees and litigation covered by the proposal. The Plaintiff’s Complaint did not allege that there was an appeal of the circuit court’s ruling and a final order; in fact, the evidence in the record showed Plaintiff had specifically instructed our client to not seek an appeal of the circuit court’s fees order.
 
After lengthy briefing and oral argument, the Palm Beach County circuit court agreed with Callahan & Fusco, LLC senior associate Neil W. Blackmon’s argument that Plaintiff had not established “redressable harm” in his pleading because he had pleaded merely the “possibility of negligence”, as opposed to actual negligence. The basis for this ruling was our argument that the Plaintiff attached court orders to his Complaint that were non-final orders that could be, and needed to be, appealed. We argued that the only way “litigational negligence” could be pled in a legal malpractice suit under Florida law is to show that an appellate court upheld the finding of the circuit court and as such, the Plaintiff’s inability to access fees was the result of attorney negligence, not judicial error. Callahan & Fusco, LLC successfully argued that in this case—it was not clear because this was an appealable order.
 
The Court granted the motion to dismiss, with the Judge’s ruling noting that he was particularly persuaded by the argument that Callahan & Fusco, LLC’s client likely would have prevailed on appeal, as the original circuit court judge found ambiguous an order that was quite clear. As such, the appeal mattered; and the Plaintiff had not established harm caused by attorney error in his pleading. This outstanding result ultimately led to the Plaintiff abandoning his pursuit of legal malpractice litigation against our client, a just reward for a law firm that secured a complete defense verdict.