Boston’s Big Dig Spawns Big Malpractice

Boston’s “Big Dig” continues to spark lawsuits 15 years after construction was completed. The most expensive US highway project – in excess of $24 billion – the Big Dig rerouted a major highway in Boston into a 3.5 mile tunnel. The project was plagued by delay, leaks, design flaws, and substandard materials. Ten years after completion of the project, in 2006, 26 tons of ceiling tiles and concrete became dislodged, fell and killed one motorist, injuring others. Reportedly, the National Transportation …

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Status Update: Facebook “Likes” Receive Constitutional Protection

Social media issues arising out of the workplace are ever-changing. Your friends at Professional Liability Matters recently discussed the potential consequences to employees for posting objectionable personal information on Facebook. However, a novel decision from the Fourth Circuit Court of Appeals on Wednesday may turn the tables on employers who take retaliatory action against employees based upon their Facebook activity. Spoiler alert… Facebook “likes” are protected free speech under the First Amendment.

In Bland v. Roberts, 2013 U.S. App. LEXIS 19268 (Sept. 18, 2013), …

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Lack of Leg Waxing License Puts Coverage at Risk

The majority of professional liability lawsuits target attorneys, accountants, and physicians. But, there are a series of so-called “miscellaneous professionals” who also face malpractice exposure: marketing consultants, recruiters, travel agents…and even leg waxing professionals. Many professionals are licensed by the state to practice in their chosen field and the failure to obtain such a license may void any professional malpractice coverage.

A recent decision issued last month, involving the negligence of a beauty salon, highlights the potential liability facing all professionals and imparts important …

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Good At-Will Hunting: At-Will Employment Put to the Test

While most countries allow employers to dismiss employees only for cause, employment relationships are presumed to be “at-will” in all U.S. states except Montana.  As a result, most employers are well aware that employment relationships in the States may be terminated at any time, for any legal reason. But, the at-will presumption is a default rule that can me modified by contract whereby the employee may hold a reasonable expectation of continued employment. The modification of employment terms by way of contract was recently put …

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Law Firm Denied Coverage Due to “Fraud Exclusion”

Most professionals are governed by this universal rule: always act in the best interests of the client.  But, there is an unspoken footnote to that rule: unless the client engages in unethical, illegal or otherwise improper conduct. Make no mistake, when a professional cooperates in the client’s foul play, she is also exposed to liability and perhaps a denial of coverage due to a fraud exclusion existing in many professional malpractice policies.  This limitation became a reality for a Colorado law firm accused of assisting …

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Employee Fired for “Private” Facebook Post

Plaintiff Deborah Ehling thought she could comment freely on Facebook because she limited her posts to a restricted group of her “friends” and her posts were not available to the general public. She was wrong. When her employer learned of her controversial posts and terminated her, she thought she had recourse.  She was wrong.  In an important ruling for employers, the District Court of New Jersey recently dismissed Ehling v. Monmouth-Ocean Hospital Service Corp., et al., (August 20, 2013).  This case put to …

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Cleveland Indians Sue Insurance Broker following Wrongful Death Claim

It is generally understood that an insurance broker may be held liable for failing to obtain requisite insurance for the insured.  But, there is plenty of room for debate when the broker fails to obtain coverage for a third-party; i.e. an additional insured.  This issue was put to the test by the Cleveland Indians following the death of one of its patrons attending pre-game activities. According to the Sixth Circuit, the team stated a valid claim.

Cleveland Indians Baseball Co. v. New Hampshire, Ins.

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Dealing with the Problem Client

We’ve all been there. Inevitably, every professional encounters a client whose demeanor or attitude make the representation difficult. As a result, the professional may be tempted to ignore the situation and limit contact with these clients.  But, that would be a mistake.  Pursuant to a recent ethics ruling in Matter of Azar, DRB 13-041, the New Jersey Disciplinary Review Board determined that providing the cold shoulder to problem clients warranted disciplinary action.

In Azar, the Board evaluated three ethics grievances against an attorney.  In …

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Pleading the Fifth in the Civil Context

Dropping the nickel, a/k/a pleading the Fifth Amendment is most often referenced on TV dramas in a criminal setting.  Most civil practitioners do not encounter the Fifth and therefore may be unfamiliar with its role in civil litigation.  However, since the line between civil and criminal liability is not entirely clear in some scenarios impacting professionals, there may be situations when the Fifth is appropriate, albeit risky.

The Fifth Amendment to the U.S. Constitution provides that “no person shall be … compelled in any criminal …

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Fantasy Sports in the Workplace

Football season kicks off Thursday, September 5. As a result, millions of otherwise well-respected and seemingly professional Americans turn their attention to a grown-up version of make believe; a/k/a fantasy sports. Over 25 million Americans now belong to at least one fantasy football league and fantasy sports represent a multibillion dollar industry. Surveys suggest that many of those fantasy football participants access their league at the workplace, on equipment provided by employers. Most employers are cognizant of the importance of maintaining up-to-date computer use …

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