The Firm prevailed on a motion for partial summary judgment today in the Superior Court of New Jersey, Law Division, Passaic County, when the Court entered a declaration that its insurance carrier client had no duty to cover the plaintiff-insured’s claim for costs associated with a sub-slab vapor mitigation system it installed to remove harmful vapors from a warehouse building located on a site undergoing environmental remediation. The issue was a matter of first impression, as the parties’ research revealed no reported cases in the United States that addressed whether costs to remediate indoor air fall under the “owned property” exclusion contained in standard Commercial General Liability policies. Plaintiff had argued that the exclusion should not bar these costs because indoor air is not “owned” by the landowner, instead falling under the state’s parens patriae protection. However, the Court agreed with the Firm that the “owned property” exclusion bars costs to cleanup an insured’s own property that have nothing to do with remediating third-party property; and here, the insured remediated its indoor air, not to remediate damage to third-party property, but solely to prevent harm to the building’s occupants. A copy of the Court’s order can be found here.
Fishkin Lucks scored a complete victory today in a construction defect case brought in the Pennsylvania Court of Common Pleas, Montgomery County, when plaintiffs withdrew their opposition to the Firm’s motion for summary judgment filed on behalf of its client, a leading manufacturer of flexible exterior wall systems. Plaintiffs brought claims against more than a dozen parties, alleging property damage and personal injuries due to water infiltration at their home. Plaintiffs attributed the water infiltration, in part, to defects in a stucco system allegedly manufactured and supplied by the Firm’s client. Following the completion of discovery, the Firm argued that the record evidence was insufficient to establish that our client’s stucco system had been installed on plaintiffs’ home or was a proximate cause of plaintiffs’ alleged damages and that, in any event, summary judgment was also appropriate solely on account of plaintiffs’ intentional spoliation of critical evidence. Plaintiffs withdrew their opposition to the motion after they received the Firm’s reply papers in further support of the motion, in which the Firm demonstrated that their opposition was based on misrepresentations, unsupported arguments and baseless allegations, and completely failed to challenge the substantial prejudice our client sustained due to plaintiffs’ spoliation of evidence, which prejudice we carefully detailed for the Court through expert testimony presented in the Firm’s moving papers. Following the withdrawal, the Court awarded our client summary judgment not only against plaintiffs’ claims, but against each co-defendant’s cross-claims.
Taking lead for a group of more than fifteen defendants, the Firm today defeated a motion to remand a significant toxic tort action from the United States District Court for the District of Maryland to the Circuit Court for Baltimore City. The Firm properly removed the case on behalf of its clients, a large independent energy exploration and production company and a global specialty chemicals company, even though plaintiff is a Maryland citizen and one of the named corporate defendants was alleged to be a Maryland corporation, arguing that the Maryland corporation had been dissolved and wound up for twelve years, was not subject to suit and had been fraudulently joined in an effort to defeat diversity jurisdiction. Plaintiff moved to remand, citing the high hurdle defendants face in demonstrating fraudulent joinder and speculating that the former Maryland corporation might not be fully wound up (and thus, was subject to suit) based on the possibility that it maintained insurance that covered plaintiff’s claims. On behalf of its clients and the other named defendants, the Firm opposed remand. The Firm not only obtained sworn testimony from former directors of the dissolved Maryland corporation stating that the corporation completed winding up twelve years earlier and had no known insurance policies to satisfy plaintiff’s claims, but cited case authorities holding that plaintiff’s mere speculation as to the existence of insurance was not sufficient to demonstrate that the former Maryland corporation was still in the process of winding up. In a well-written decision, the U.S. District Court (Russell, D.J.) agreed with the Firm’s arguments and denied remand to the notoriously plaintiff-friendly venue in Baltimore City. A copy of the Court’s decision can be found here.
Fishkin Lucks LLP is pleased to announce the elevation to Partner of Zachary W. Silverman, effective January 1, 2019. Zack is a commercial litigator who has consistently been recognized by his peers and clients as a result-driven, creative and pragmatic advocate. “Zack’s elevation to Partner is a significant milestone that could not be more well-deserved,” said Firm co-founder, Andy Fishkin. Added co-founder Steve Lucks, “Zack is a significant contributor to everything we do and his admittance to the partnership makes our Firm that much stronger.” Zack earned his J.D. from Georgetown University Law Center and his B.A., magna cum laude, from Duke University. He joined the Firm as a Counsel in April 2015, after spending over 7 years at two AmLaw 100 law firms.
The Firm prevailed today in a bench trial in the Superior Court of New Jersey, Hudson County (Costello, J.) on behalf our client, an international chemical distributor, in a dispute concerning the shipment and storage of various chemical products. Following extensive cross-examination of the plaintiff, during which we established that a prior agreement between the parties precluded any payments under the contracts at issue, the Court granted the Firm’s motion for directed verdict and dismissed the case in its entirety.
The Firm prevailed today in a commercial real estate litigation, in the Superior Court of New Jersey, Law Division, Hudson County, when it defeated defendant’s motion to dismiss an action the Firm brought on its client’s behalf to recover more than $15M in damages arising from defendant’s breaches of various representations and warranties in the parties’ contract of sale. After extensive briefing and a lengthy hearing before the Court in which the defendant argued that our client’s claims were barred by the “merger doctrine,” which typically extinguishes post-closing misrepresentation and breach of warranty claims, the Court agreed with the Firm’s arguments that there were questions of fact surrounding whether (i) the defendant seller fraudulently induced the Firm’s client to enter into the sale contract, (ii) the parties had modified the sale contract such that that representations and warranties “survived” closing, and (iii) a certain seldom-cited exception to the merger doctrine applied. On the basis of these findings, the Court denied the seller’s motion to dismiss in its entirety.