Peter J. Biging

All articles by Peter J. Biging


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."  

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.  

#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.  

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.  

Case Study: Is a Broker a Fiduciary?

In a decision addressing the facts necessary to plead a breach of fiduciary duty claim against a broker, a California federal district court considered the difference between an “ordinary” broker-customer relationship, and one which rises to the level of a fiduciary relationship.  

Break Time is Over

Today’s employees demand flexibility. In turn, many employers are moving towards a “results orientation” business model and getting away from the standard 9-5 schedule. In other words, the employer cares less about when employees get the work done, and only cares that the work gets done effectively. Employment laws are only beginning to catch up to this shift in work hours. Take for example the recent decision where the Third Circuit confirmed that the FLSA requires employers to compensate employees for breaks of 20 minutes or less where the employer allowed employees the flexibility to log off their computers at any time they wished.  

Lessons from Largest U.S. Tax Fraud in U.S. History

If you are in the world of finance, accounting or tax chances are you have probably heard of Sam Wyly and his late brother Charles Wyly. In recent years, the business mogul brothers have been the hot topic of litigation as they battled with the IRS and SEC over alleged tax and securities fraud that may have spanned decades. In the most recent decision to come out of the Wyly saga, Sam Wyly was ordered by a Dallas bankruptcy court to pay $1.1 billion in back taxes, interest and penalties. While the litigation is noteworthy because of the massive amount of dollars involved, it can also provide some reminders for tax professionals, particularly those with sophisticated clients.  

Limitation on Liability Clause Not Enough to Protect Accountant

Here at PL Liability Matters we have written on numerous occasions about the importance of an engagement letter. The engagement letter is a critical tool for setting expectations and managing risks. As we have said before a well drafted engagement letter can deter malpractice claims and in meritless suits it can be “Exhibit A” to a dispositive motion. A case out of New York involving an accountant-client relationship demonstrates just that scenario. Unfortunately in this case, however, the court found that the engagement letter did not sufficiently limit the risk to the professional in order to avoid the malpractice claim.  

Drop Dead Deadlines – Impartial or Indiscriminate? 

The world of litigation is rife with deadlines. Even a meritorious argument or strong case can be derailed by failure to timely file pleadings and motions. This reality was illustrated in the recent case of Connolly v. 129 East 69th St. Corp. In this slip and fall case, a defendant moved for summary judgment to dismiss plaintiff’s case, and the trial court granted the motion. On appeal, however, the decision was reversed, as the court held the motion was filed one day after the motion filing deadline.  

Malpractice Claim Barred due to Mediation Confidentiality

Many litigants want their day in court; however, the vast majority of cases never make it to trial. Facing heavy dockets, courts are increasingly encouraging parties to resolve claims through ADR methods, like mediation. In order to foster successful mediation, several states have enacted mediation confidentiality statutes, which prevent mediation discussions from being admitted into court if the mediation is unsuccessful. While the purpose of these statutes is to encourage parties to speak openly with the mediator, confidentiality may have unforeseen consequences on the attorney-client relationship.  

Case Analysis: Defamation and Blogs

In the age of lawyering we now live in, law firms frequently use blog posts, Twitter and newsletters as a marketing tool and to provide content of interest to clients or prospective clients. These blogs and postings have become a tool not only for “reporting” in the broad sense, but also of showcasing an attorney’s depth of knowledge about a particular subject, and the fact that they have their fingers on the “pulse” of legal developments in their field as they happen. While blogging, tweeting, or e-mail blasts often implicate ethical questions, another concern is whether, and to what extent, they may create possible exposure for defamation.  

Paralegal Power! Appropriate Delegation = Client Satisfaction

The practice of law is changing. In particular, as a result of modern technology, attorneys’ reliance upon support staff is not what it used to be. This has impacted the role of paralegals, members of a dwindling field. Indeed, according to the 2012 Survey of Law Firm Economics, the average number of paralegals per law firm has dipped by over 30%. However, paralegals still play an important role in a law firm. If utilized effectively, paralegals have proven to be invaluable players who provide a key service to clients.  

S.O.L.: The Continuous Representation Doctrine

Statute of limitations laws are intended to protect defendants from stale and meritless claims. Moreover, these statutes pressure plaintiffs to institute supported causes of action while the evidence is ripe. Certainly, these statutes are an ally to the defense bar and can be a major obstacle for plaintiffs. A plaintiff asserting a professional malpractice claim may attempt to circumvent a time-bar defense through the continuous representation doctrine. The argument is that the continuing professional-client relationship delays the accrual of a claim. This theory was recently asserted successfully in New York against an attorney.  

NCAA Sports Probe Triggers Ethics Complaint

The NCAA has established strict rules to regulate the activities of student-athlete representatives, aka “boosters.” If a booster violates collegiate rules, the NCAA can take action to hold an athlete ineligible from competition or impose other sanctions upon the school. In a recent unexpected development, the NCAA was put on the defensive when its investigation of the University of Miami football program revealed that one of its own attorneys may have violated Florida's ethics rules.  

Tripartite Relationship Put to the Test

The so-called "tripartite" relationship exists when an insurer retains defense counsel to represent the interests of the insured. Against this backdrop, it is relatively uncommon for an insurer to maintain a successful claim against defense counsel. In the majority of states, direct malpractice claims by an insurer are disfavored. The theory behind these decisions stems from the sanctity of the attorney-client relationship and a hesitation to interfere with defense counsel’s duty to the insured in the tripartite scenario. Accordingly, few claims of this nature succeed. A recent decision by the Washington Supreme Court is no exception.  

Time to Revisit your Password

It is time to revisit your password because it may be susceptible to an easy hack. The risk of cyber loss is well documented. We’ve routinely warned of these risks previously and, no doubt, will continue to do so because cyber losses are reportedly increasing, and the cost to recover from a data breach can be staggering. All professionals maintain personally identifiable data that would be a goldmine to hackers. Most professionals - hopefully all – at the very least utilize the most fundamental type of security by storing electronic data in a password protected format. But, according to a recent survey, that password may need an update.  

Supreme Court Changes the Standard for Retaliation Claims

Often, it’s not the crime but the cover-up that will do you in. In some ways, that sentiment is applicable to retaliation claims for alleged discrimination in the workplace. Or at least it was, until the Supreme Court's recent decision in University of Texas Southwestern Medical Center v. Nassar. Previously, an employer facing a discrimination suit was susceptible to a retaliation theory despite establishing legitimate reasons for the alleged discriminatory conduct (usually terminating or demoting the employee). Specifically, so long as the plaintiff could show that the desire to retaliate for the employee's pursuit of a charge of discrimination was at least a “motivating factor” behind any adverse employment action, the employer could be held liable. Thus, the potential existed for an entirely well-intentioned employer to be held liable under this standard. Nassar addressed this potential and changed the rules.  

LinkedIn Escapes Cyber-Liability Exposure

In June 2012, the popular social networking website LinkedIn was hacked resulting in approximately 6.4 million passwords stolen from the website. Within hours of the incident, the passwords were posted on the internet and were used to direct traffic to fraudulent websites. The massive security breach also resulted in a class action lawsuit against "the world's largest professional network" in the Northern District of California. The plaintiff class alleged that LinkedIn failed to adequately and properly secure the personal information stored on its website. This is the classic example of cyber-liability exposure.