Seth L. Laver, Author at Professional Liability Matters

December 17, 2018 Agents and Brokers

Insurance Agent Liability Limited in Illinois

The Illinois Supreme Court recently issued an opinion which impacts the timing of suits against insurance agents. In American Family Mutual Insurance Co. v. Krop, the policyholders were denied coverage in a lawsuit brought against their son for cyber-bullying. They responded with an action against their insurance agent, alleging that he failed to procure coverage for certain intentional acts despite their request to do so. Although the policyholders sought to impose a heightened fiduciary duty standard, the Court instead viewed the claim as one …

December 10, 2018 Agents and Brokers

Duty to Advise & Special Circumstances

The North Dakota Supreme Court recently affirmed the dismissal of a negligent failure to advise claim based on the failure to establish “special circumstances.” The decision is a nice win for insurance agents and brokers.

In Dahms v. Nodak Mutual Ins. Co., 2018 WL 6380779(Sup. Ct., North Dakota, Dec. 6, 2018), plaintiffs were homeowners who had afire that destroyed their garage and an “elaborate deck” they had constructed on it. While their homeowner’s policy provided coverage for the loss, the policy had separate limits …

November 27, 2018 Law Practice Management

NYC Issues Key Opinion on Litigation Financing

Litigation funding has grown exponentially in the past few years. However, the NYC Bar recently issued an opinion drawing a line in the sand when it comes to third parties entering into agreements with attorneys. After issuing its opinion, some of the largest financiers of complex litigation responded with sharp criticism of both the substance of the opinion and its effect of stalling progress in this area. However, the opinion also provides an opening that could lead to the eventual change in ethical rules that …

November 19, 2018 Employment Practices Liability

Sex Discrimination Claim Arising from No Severance

A severance package is pay and/or benefits employers pay employees following a termination or layoff. Often, the employee’s acceptance of the severance will include a release of any potential claims against the employer. Of course, severance packages are not required. In a recent decision, a court considered what happens when every departing employee is not offered a severance package. In Barbera v. Pearson Educ., Inc., the employer had a policy that provided severance pay for employees that were involuntarily terminated. The policy had certain …

November 12, 2018 Law Practice Management

Attorney Fee Waived for Failure to Advise of Billing Alternatives

The contingency based fee agreement is a common form of representation. There are clear benefits to this arrangement for both attorney and client. Of course there are also risks. In a recent decision in New Jersey, the court concluded that attorneys must properly advise clients about the various billing options before proceeding with an engagement. In this case, despite a written fee agreement, the court struck over $280,000 in legal fees and costs.

In Balducci v. Cige, an attorney handling a discrimination claim entered …

November 5, 2018 Legal Malpractice / Risk Management

Fee Dispute ≠ Malpractice

A New Jersey appeals court recently ruled that a disbarred attorney cannot sue his former attorney for malpractice in connection with a fee dispute. In an unpublished opinion in the case of Schildiner v. Toscano, the Appellate Division upheld a decision from the Essex County Superior Court dismissing the lawsuit filed by the disbarred lawyer (“Lawyer”), against the firm he hired, (“Law Firm”).

As reported by the New Jersey Law Journal (subscription required), the retainer dispute stemmed from Law Firm’s representation of Lawyer, who …

October 29, 2018 Coverage

Crime Policy Coverage: Direct Means Direct

In a recent decision, a Federal District Court grappled with the definition of “direct loss” under a commercial crime policy. The court in CP Food & Beverage, Inc. v. U.S. Fire Ins. Co., concluded that “direct means direct” and an insured’s losses from payment card charge-backs when certain employees made fraudulent charges on customers’ payment cards were only the “indirect” result of employee theft, and therefore not covered under the insured’s policy.

The facts are interesting. The insured operated a club (the “Club”) where …

October 22, 2018 Employment Practices Liability

ADA: How Reasonable is Reasonable?

How reasonable must a reasonable accommodation be? Is moving an employee’s work location reasonable? Is providing an employee an aide reasonable? Of course, the answer depends on the circumstances and that’s what makes ADA compliance often difficult for employers. Consider the recent example of Hill v. Assocs. for Renewal in Educ., Inc.

Mr. Hill was a single-leg amputee that taught in an after-school program. Hill’s accommodation requests included to be moved to a classroom on a lower floor as well as soliciting the help of …

October 15, 2018 Cyber-Liability / Law Practice Management

Data Breach and Insider Trading

Attorneys practicing in mergers and acquisitions are familiar with the sensitive nature of their work and the potential for abuse of the information obtained. In addition to being restrained from trading on that information themselves, they must take extensive precautions to ensure that they do not allow that information to slip to friends, family members, or colleagues. Unfortunately, one cannot assume that others won’t use that information to make trades that could ensnare both the attorney and firm in extensive criminal and civil litigation, regardless …

October 8, 2018 Insurance Products / Risk Management

The Benefits of Early Notice of a Claim

According to our friends at CPA Gold, LINK, from a purely risk management perspective, bringing your insurer into the claims process is extremely prudent and can save you a lot of money. Here are the reasons you should contact your insurer or agent sooner, rather than later: involvement of counsel, denial of coverage, deductible concerns and risk management. Each of these factors, and others, were addressed by CPA Gold and are absolutely worth considering.

Reporting a potential claim enables your malpractice insurer to work …