All articles by

 

Bond…Terminated Bond.

A New York court recently held that the termination condition in a fidelity bond applied to terminate coverage in respect of losses allegedly caused to an insured insurance company by the insured’s managing general agent. The Court found that termination was appropriate because the insured knew of the managing agent’s dishonest acts prior to applying for the bond.  

Timed Out: Continuous Rep Doctrine Denied in Maine

You generally know the drill: a plaintiff has limited time to file suit. Generally, the statutory period begins when the plaintiff knows or reasonably should know that she has been harmed and that the defendant caused that harm. You also generally know that statute of limitations defenses are not nearly that simple. There are variables including the discovery rule and the gist of the action doctrine which may impact the argument. The continuous representation doctrine is another wrinkle that could affect whether a malpractice claim is subject to dismissal pursuant to the statute of limitations. In a recent decision, the Maine Supreme Court affirmed a dismissal of a legal malpractice claim on statute of limitations grounds and refused to apply the continuous representation doctrine.  

Obesity ≠ Protected Class

Making fun of a co-worker’s weight may be rude, but is it illegal? A New Jersey court recently addressed claims of disability discrimination and hostile work environment by an employee complaining of comments made by co-workers about his weight.  

Escrow Agent Responsibilities: Robot or Rogue?

Real estate transactions occur all the time whether in the residential or commercial context. Notwithstanding a familial transfer, the arms-length transaction includes a buyer, a seller, and sometimes a bank or private money-lender who finances the deal. In some of those situations, there is also an escrow agent whose role is simply identified in the contract to be the “holder of the funds” while certain conditions are met post-contract. The escrow agent often keeps a fee for the services rendered, and becomes a mechanism for the issuance of a title insurance policy.  

Ambiguity in Arb. Agreement Cannot Be Construed as Consent to Class Arbitration

In Lamps Plus, Inc. v. Varela, the U.S. Supreme Court held that an ambiguous arbitration agreement cannot provide the necessary contractual basis for compelling class arbitration under the Federal Arbitration Act. This decision reverses the Ninth Circuit’s decision that permitted an employee’s data breach class arbitration to proceed.  

NY Nursing Home Litigation: Double Recovery?

An alarming trend has emerged among the plaintiff’s bar in Long-Term Care litigation. Plaintiffs are alleging a right to recovery for death, or other injuries, under both the negligence/wrongful death standards (i.e. pain and suffering and pecuniary loss), and the Public Health Law (§2801-d). Historically, when there is a death resulting from negligence, the recovery is limited to pecuniary loss, but, now the plaintiff’s bar is arguing that when an elderly person who was a resident of a nursing home dies, as a result of a violation of the public health law, the recovery for death should be whatever a jury determines life is worth, even when there is no provable pecuniary loss.  

Third Circuit Reaffirms Heightened Securities Fraud Standard

One of the most difficult aspects of defending investor misrepresentation claims is that they naturally occur after a financial calamity. In retrospect, there is almost always an argument that a statement here, or omission there, was "misleading" in light of the company's ultimate fate. It is for this very reason that common law imposes a heightened standard for investors attempting to bring such a claim for what is essentially statutory fraud. In a recent decision from the Third Circuit, the Court reiterated this heightened pleading standard, and the policy for doing so, in dismissing a complaint at the pleading stage.  

Duty to Read Defense

While the vast majority of states hold that an insurance broker cannot be absolutely shielded from his negligence in procuring coverage to the extent the insured failed to read the policy, there are still a few states where the "duty to read" can provide an absolute defense. One of those states is Mississippi. In a recent decision issued by the U.S. District Court for the Northern District of Mississippi, this rule was applied in a decision dismissing the case from federal district court based on fraudulent joinder.  

The Importance of Employment Job Descriptions

Employment job descriptions serve many purposes: to attract talented applicants, to inform employees of expectations. In addition, job descriptions are often critical in disputes between employers and employees. A federal appellate court recently ruled on a case where the words in job description helped bolster the employer’s defense.  

NJ Considering Bill to Shorten Malpractice Statute of Limitations

A measure that would shorten the statute of limitations for New Jersey malpractice claims against certain licensed professionals, including attorneys, from six years to two years, passed the Assembly Judiciary Committee on March 18 in Trenton. Although a small step, this is encouraging for many New Jersey professionals, and the attorneys who defend them.  

South Carolina High Court Allows Malpractice Claim by Insurer Against its Assigned Defense Counsel

Early March, in a narrow, carefully worded opinion, a divided Supreme Court of South Carolina ruled that a liability insurer may sue an attorney it retained to defend its insured where the attorney’s breach of its duty to the insured proximately causes the insurer damage. The decision adds South Carolina to the growing list of states that recognize a malpractice cause of action by an insurer against its assigned defense counsel. See Sentry Insurance Co. v. Maybank Law Firm, LLC, — S.E.2d —, 2019 WL 1119977, at…  

NY Considers Limiting Claims Against Design Professionals

The New York Legislature is considering whether to enact a statute of repose that would limit the time for filing a claim against builders and design professionals for construction defects. Assembly Bill A3595 would repeal Civil Practice Law & Rules (CPLR) § 214-d in its current form and reenact § 214-d to codify a statute of repose similar to a significant majority of states.  

Limiting Malpractice through Scope of Engagement

A recent NY Appellate Division decision serves as another reminder of the importance of carefully defining the scope of engagement in an engagement letter. This is because, under New York law, an attorney may not be held liable for failing to act outside the scope of their retainer.  

Are Litigation Funders Exposed?

Third-party litigation funders regularly argue before ethics committees, state bar associations and the media that this burgeoning field is a positive development in the practice of law. Primarily, some assert that their funding allows individuals and companies shut out of the court room by excessive litigation costs to "have their day in court" when they would otherwise have to bow out against the Goliath to their proverbial David. Of course, providing the necessary financial backing for a lawsuit is not done out of the goodness of funders' hearts. A portion of the proceeds from any settlement or award goes to the funder after the attorneys' fees and costs are paid. Although the latter is always negotiable, funders must therefore calculate at the outset the likelihood of victory, the amount expected in total, and what their hypothetical share would be.  

Pennsylvania Opens Door to Lawsuits Against Foreign Companies

The Due Process Clause of the Fourteenth Amendment to the US Constitution limits the authority of courts to exercise jurisdiction over non-resident defendants. Before a court can exercise personal jurisdiction over a party, the Constitution requires that the party have certain "minimum contacts" in the state where the court sits. Jurisdiction may be satisfied when the suit arises from the foreign person's activities in the forum state. Further, with respect to foreign companies, jurisdiction may be satisfied regardless of the nature of the lawsuit if the company has continuous and systematic contacts with the forum state or if it consents to jurisdiction there. Courts have been divided, however, as to what actions by a company constitute consent to jurisdiction in the forum state. For instance, does a foreign corporation's mere registration to conduct business in a state satisfy the constitutional threshold? In two recent decisions, the Pennsylvania Superior Court resolved that it does.  

When Workplace Gossip is Grounds for Title VII Claim

In less than 18 months of employment, Evangeline Parker received six promotions. Then rumors circulated that Parker’s precipitous rise through the ranks "must" have been because she was sleeping with her boss. When Parker complained about the rumors and confronted the employee who allegedly started the rumors, she was terminated. Reversing the district court’s dismissal of the lawsuit, the Fourth Circuit Court of Appeals, in Parker v. Reema Consulting Services, held that such rumors could form the basis of a sexual harassment claim in violation of Title VII.  

Arbitration Ban in Nursing Homes? White House Reviewing Rule

The White House Office of Management and Budget ("OMB") is reviewing a final rule to reverse a 2016 regulation banning nursing home operators from entering into pre-dispute arbitration clauses with their residents as a condition of participating in Medicare and Medicaid. According to the OMB’s web site, the rule “removes provisions prohibiting binding pre-dispute arbitration and strengthens requirements regarding the transparency of arbitration agreements in LTC facilities.” Per the OMB, the rule facilitates “the resident’s right to make informed choices about important aspects of his or her healthcare” and eliminates unnecessary burdens on long-term care providers.  

The Importance of Quality IT in Litigation

One of the most important aspects of working with corporate clients is understanding the businesses. From general business functions to the overarching models, this knowledge can be extremely valuable in both transactional and litigation work. However, client technology is becoming more industry specific, often making it infeasible for attorneys to learn. It is in these cases that a quality IT team working on behalf of the firm is not only the most efficient way to service a client, but also may be a litigation requirement.  

Sexual Assault in Nursing Homes

On December 29, 2018, a 29-year-old woman in a vegetative and uncommunicative state gave birth to a baby boy. The woman had been in a vegetative state for at least a decade after a near-drowning incident which caused brain drainage. She had been a longtime resident of a healthcare facility in Phoenix. The employees of the nursing home only became aware that the resident was pregnant when she was found moaning and it was discovered that the resident was in active labor. Several news reports indicated that the resident required around the clock care and many individuals had access to her room. Since the incident, the facility has changed its policy regarding male employees entering a female resident’s room. It will now be required that a female staff member be present with a male staff member in a female resident’s room at all times.  

Lack of Training Deemed Adverse Action

What is an “adverse action”? In the workplace some may think that it is only when someone is fired. However, much more falls under the “adverse action” umbrella. What about denying an employee a training opportunity? A federal district court in New York recently analyzed this very issue. The case involved a longstanding employee that was placed into a different role but denied training opportunities that were offered to other employees. The plaintiff struggled in her new role and eventually commenced a lawsuit asserting many claims, including race discrimination.  

Is There a Duty to Advise?

The Alabama Supreme Court recently issued what could turn out to be an important decision on the duty to advise. The court in Somnus Mattress Corp. v. Hilson, 2018 WL 6715777 (Ala. Sup. Ct. Dec. 21, 2018) affirmed a decision dismissing claims against an insurance agent for alleged negligence in failing to advise a mattress manufacturer to purchase business interruption loss coverage. While the plaintiff manufacturer argued that the agent should be held responsible for the uninsured loss he suffered following a fire that destroyed his mattress factory, the Court held that an insurance agent/broker generally does not have a duty to advise and cannot be deemed to have assumed a duty to advise. The court laid out important exceptions to the rule: (1) the insurance agent/broker misrepresented the coverage in a manner that the insured could not have known from a reading of the insurance policy, or (2) the agent/broker and insured were in a "special relationship."  

Professional Liability Matters Named Best Niche and Specialty Blog of 2018!

We are pleased to announce that the Professional Liability Matters blog has been named among the best niche and specialty blog in the country earning 3rd place overall in The Expert Institute’s Best Legal Blog Contest for 2018! The Expert Institute — a leading legal service provider for identifying, verifying, and retaining expert witnesses — holds this annual contest to vet and recognize the best legal blogs out of the thousands that are on the web. In the 2018 Best Legal Blogs Contest — what…  

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 for breach of contract.  

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.  

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 underscore its conclusion.  

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 exceptions, including when the employee was terminated as a result of a sale or merger and was offered employment by the purchasing company.  

We Need Your Vote!

Attention blog readers! We are proud to announce that our Professional Liability Matters blog has made it to the voting round in The Expert Institute’s 2018 Best Legal Blog Contest! Over the past month, this contest received thousands of nominations, which were then narrowed to the “most exciting, entertaining, and informative legal blogs online today.” The polls are now open – if you like our blog, please consider voting. How it works: You can submit one vote per blog. In order to cast your vote,…  

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.  

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").  

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.   

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.  

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 of intent. Accordingly, both formal and informal mechanisms are put in place to keep potential inside information from those who are not required to have it in their work.  

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.  

Long Term Care: Emerging Trends

Claims in the long-term care industry have steadily continued to worsen for post-acute providers. According to a 2017 actuarial analysis conducted by AON, entitled “2017 Long-Term Care: General Liability and Professional Liability Actuarial Analysis,” the number of claims per 100 occupied beds rose from .71 in 2007 to .92 in 2012 to 1.03 in 2017. This same analysis found that the average amount to defend, settle, or litigate a claim rose from $165,000 in 2007 to $179,000 in 2012, to $223,000 in 2017. AON writes that it expects the number and size of claims to continue to increase in 2018.  

Employee’s ADA Claim is Out of Sight

Advancements in technology and software can help employers track employee productivity. But what happens when an employee’s medical condition influences her ability to use an employer’s technology? In Larson v. Oregonian Publishing, an Oregon Federal District court denied summary judgment to an employer in a disability discrimination lawsuit under the ADA under what’s known as the “cat’s paw theory”.  

Privilege in Interstate Litigation

Many legal issues are easier to articulate than they are to resolve.  For example, suppose State Y does not recognize a testimonial privilege but a witness is called to testify from State X which does recognize the privilege. Can the witness who holds the privilege claim it during litigation pending in State Y? Due to differing legal constructs applied by state courts, it can be an onerous task for counsel to determine whether certain documents or communications are considered privileged or are discoverable in interstate litigation.  

The Sweetness of Quick Closure through Funds from Other Sources

In the professional liability world, errors occur.  To quote Forrest Gump, “*%&# happens!” These errors can carry great consequences, and can include payouts by insurers under E&O policies.  However, what happens when there is a possibility to rectify the error and place the would-be plaintiff in a position where they were before?  Also, how conceivable is it to utilize funds from other sources as a means to bring closure to claims.  

#MeToo & Securities Class Action Suits

There is a growing phenomenon of securities class action and shareholder derivative suits arising from the #MeToo movement. Specifically, these suits address the alleged failure of corporations to disclose in public filings and/or prevent sexual harassment by corporate officers and directors. Moreover, the suits allege a corporate culture permitting such conduct to be engaged in. The latest suit targets a well-known pizza chain.  

NY Comes Down Hard On Student Hazing

On August 13, 2018, New York State Governor Andrew M. Cuomo signed an anti-hazing bill targeting student hazing at higher education institutions. The bill amends the New York Penal Code and prohibits certain physical contact as well as the physical activity requirements traditionally found in many student organizations’ initiation ceremonies, and which frequently result in serious injury, and sometimes in fatalities.  

Lawyers on a Short Leash: Bar Admission Restrictions

Unlike most licensed professions, the practice of law can significantly restrict an attorney's geographic mobility. If an attorney wishes to move to another state, it typically requires at least one year of planning before the move is possible. This may include studying for and successfully taking the new state's bar examination, re-taking the Multistate Professional Responsibility Exam, and going through another character and fitness review. However, the Uniform Bar Examination is now used in the majority of states and there appears to be significant momentum toward a more relaxed approach to attorney licensing. While a recent decision by the Ohio Board of Commissioners on Character and Fitness may appear to be a halt on this new trend, it will likely also serve as one of UBE proponents' key examples of an arguably archaic system that must be changed.  

Abusive Patient Creates Hostile Work Environment

The customer isn't necessarily always right. Neither is a patient. In Gardner v. CLC of Pascagoula, LLC, the Fifth Circuit Court analyzed an employer’s alleged failure to respond to a complaint of inappropriate actions of a patient in an assistant living facility. The allegations are unsettling. Plaintiff worked as a Nursing Assistant with the responsibility of caring for patients including one suffering from dementia, who had a long history of violent and sexual behavior toward fellow patients and staff. While being cared for by Plaintiff, the patient repeatedly grabbed her private areas and asked for explicit sexual acts. This was a daily occurrence. Allegedly, Plaintiff's complaints to her employer were effectively ignored.   

Agent/Broker Developments: Take Note

Often, case law relating to insurance agent/broker E&O typically involves the procurement of property/casualty insurance or the handling of property/casualty claims.  However, there have been some recent developments relating to the duties and responsibilities of life insurance agents/brokers that are important to note.  

Technological Advancements Complicate Confidentiality

The increase in connectivity has greatly improved an attorney's ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her own clients and experts are vulnerable, and they must take steps to protect confidential information as necessary.  

Here’s to an Uneventful July 4th

July 4 is not the ideal time to consider insurance but for too many it is a reality. By way of a reminder, after voting for independence on July 2, 1776, in the midst of the American Revolution, Congress turned its attention to the Declaration of Independence.  The document was a statement explaining this decision, which had been prepared by a committee led by Thomas Jefferson. Congress debated and revised the wording of the Declaration, finally approving it on July 4, 1776. The following year, Americans celebrated their independence with fireworks and the tradition continues today. Let’s celebrate our Nation’s birthday safely. Reportedly, there are more than $35 million in fire damages every July 4. On average, about 7 fireworks related deaths are reported each year (along with 20,000 injuries per year from BBQ grill accidents!). As we reflect on and enjoy the holiday, be smart and stay safe. Happy 4th of July from your friends at Professional Liability Matters.  

The Dreaded Settle and Sue: Alive and Well in New Jersey

It is no secret that parties more often settle than proceed through trial. While courts roundly applaud this as beneficial to both the system and litigants, it sometimes generates second guessing from the clients. As Larry David put it, "a good compromise is when both parties are dissatisfied." It is therefore no surprise that many legal malpractice claims follow from settlements, despite the general principle that the settlement itself precludes such a suit. In a recent decision from the New Jersey Appellate Division, the court's discussion of when this principle applies does little to pacify concerns of attorneys that their clients will settle and sue. Even well documented settlement agreements, and testimony reflecting a voluntary resolution, still can be undone via a malpractice complaint.   

Secrets Are No Fun, Especially When It Comes To Malpractice Coverage

The risk of a malpractice claim is real. That's the bad news. But, now that we have your attention, the good news is that insurance is available to defend and indemnify professionals who face malpractice claims. In order to receive coverage, however, professionals generally must disclose whether they are the subject of any potential claims when completing their applications.  If an insurer discovers that a professional had knowledge of a potential claim, but failed to disclose it, it could rely upon the nondisclosure as a basis to disclaim coverage.  

Whopper of a Tale: Burger King Employee Denied Accommodation

Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.  

Attorneys Can’t Bury the Smoking Gun

The smoking gun. That key piece of evidence that will conclusively prove your client's case and guarantee victory may be out there. Truly dispositive evidence is rare, given that most cases turn on a series of events, an application of the law or several facts, as opposed to one document or one line of testimony. But what if you discover that key fact which is harmful to your own claim? It may be tempting to quickly settle the case without disclosing the smoking gun. Not so fast. A recent decision from the Western District of Pennsylvania has taken issue with that response from counsel for the plaintiff, and awarded sanctions for the failure to quickly dismiss the complaint.  

Lawyers Must Admit Mistakes

No one is perfect. In the adversarial arena of litigation, attorneys are rarely willing to admit even having a weak legal argument, let alone an actual error. However, the American Bar Association recently issued an opinion which makes it an ethical duty for attorneys to disclose any material errors in representation to their clients.  

The Equal Pay Act & Salary History

Show of hands: who'd like to receive less pay for performing the same functions as your colleagues? The Equal Pay Act seeks to combat this issue and permits wage disparity only in the most limited of circumstances. In a recent federal decision, the court addressed whether an employer's computation of salary based on a strict formula violated the Act when it resulted in disparate payment of female and male employees.