Forum Shopping? Choose Philadelphia

America's birthplace, home of the Liberty Bell, cheesesteaks and Rocky, the City of Brotherly Love is a destination for history, arts, culture…and personal injury cases. Once again, Philadelphia has been named America’s number one judicial hellhole in the annual ranking by the American Tort Reform Foundation for 2019. This is based on Philadelphia’s outrageous verdicts, amount spent on lawsuit advertisements, percent of out of state plaintiffs, and courts loosely applying venue rules.
Continue reading...

Attorney or Scrivener? LPL Claim Dismissed Due to Non-Representation Clause

A recent decision rendered by the New York Appellate Division, First Department, on October 17, 2019, held that the lower court properly dismissed a legal malpractice complaint on the ground that documentary evidence established there was no attorney-client relationship. In Seaman v Schulte Roth & Zabel LLP, 176 A.D.3d 538 (1st Dep’t 2019), the dispute centered on the enforceability of a “non-representation clause” disclaiming the existence of an attorney-client relationship and reaffirmed the importance of providing such clauses where an attorney seeks to limit potential exposure for work performed outside of an attorney-client relationship.
Continue reading...

LTC Risk Management Tool: Hip Protectors

Hip fractures are one of the most-common orthopedic injuries sustained by plaintiffs in long-term and elder care cases arising from falls. Long-term care ("LTC") facilities must endeavor to reduce fall-induced hip fractures through care-based interventions to optimize patient care, limit litigation, and decrease stress upon the health care system. The Journal of the American Medical Directors Association recently published a study, entitled "Effectiveness of Hip Protectors to Reduce Risk for Hip Fracture from Falls in Long-Term Care," which addresses the hip protector as an intervention to decrease hip fracture risk. The study concluded that LTC residents could anticipate a threefold decrease of the risk of sustaining a hip fracture if they wore a hip protector at the time of a fall.
Continue reading...

Missed Deadlines, No Communication Equals Disbarment

Deadlines are a way of life for most professionals, certainly attorneys. The practice of law involves tons of deadlines, many of which are subject to some form of extension, but an attorney must take active steps to either meet each deadline or see to it that the deadline is adjusted. An attorney's obligation of competency and communication require that counsel meet each deadline and inform her client when something goes wrong. In a recent disciplinary proceeding, an attorney was disbarred for failing to competently represent his client, failing to communicate, and then failing to participate in the disciplinary process.
Continue reading...

When Does an Occurrence Occur? Malicious Prosecution & Coverage

In this era of sophisticated DNA testing, exonerations of incarcerated individuals have become increasingly commonplace. The ensuing malicious prosecution lawsuits have justifiably resulted in high verdicts and settlements. The key issue for many municipalities is whether and under which policies of insurance is coverage triggered for these malicious prosecution claims. On November 21, 2019, the Supreme Court of Illinois, in Sanders v. Illinois Union Insurance Company, definitively determined that claims of malicious prosecution trigger coverage only under policies of insurance in effect on the date on which the prosecution was instituted, not on the date of exoneration, joining the majority of jurisdictions to so hold.
Continue reading...

Engagement Letter Defense Rejected

We often write about the importance of engagement letters, in fact we have an entire sub-category devoted to engagement letter defenses. That's because the engagement letter is the first line of defense. A letter that clarifies the accountant's obligations, scope of duties, identity of the client, billing terms and other key clauses is generally a must for most engagements. Accountants may also opt to include exculpatory language such as limitation of liability provisions, damages caps, or other contractual language which may aid in the defense of a lawsuit. Yet, according to a recent decision, the clause was not enforceable because it was not explicit and clear.
Continue reading...

No Coverage for the Guilty

We know this, but many of our clients don't: coverage is tricky. There are aspects of an insurance contract which may cut against instincts and societal expectations. For example, there are coverage implications when an insured apologizes for a perceived mistake. Anything that potentially jeopardizes the defense, including anything that can be perceived as an admission of liability, may result in a coverage denial. Along those lines, a recent decision highlights the coverage implications of a guilty plea in criminal proceedings.
Continue reading...

Duty to Defend Wire Fraud

In Quality Sausage Company, LLC, et al v. Twin City Fire Ins. Co., Civil Action No. 17cv111 (S.D. Texas, Sept. 18, 2019), one of the plaintiff corporations (Plaintiff) fell victim to a fraudster who submitted fraudulent wiring instructions via email to Plaintiff on behalf of one of Plaintiff's clients. Per those wire instructions, Plaintiff improperly transferred $1 million from the client’s account to the account of a sham company. Uh oh.
Continue reading...

New AOM Notices in NJ

Over the years, we've shared a bunch of posts regarding the nuances of Affidavit of Merit (AOM) requirements in professional malpractice actions. Of course, many states have enacted some version of an AOM requirement and we've discussed the significance and potential advantages from a defense perspective when a plaintiff fails to comply. By strict rule of law, the failure to timely submit an AOM should signal dismissal, but does it in practice? Does it seem like courts are a bit too lenient in permitting a malpractice claim to proceed despite a violation of the AOM requirements?
Continue reading...