Professional Liability Matters

April 8, 2019 Agents and Brokers

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 …

April 2, 2019 Employment Practices Liability

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.

The case involved a correctional officer who was injured during an altercation with an inmate. The injury required shoulder surgery and resulted in the employee returning to work in a light duty capacity. Thereafter the correctional officer …

March 25, 2019 Defenses

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.

Under A-4880, malpractice suits against licensed accountants, architects, engineers and land surveyors would also have to be filed within two years, and attorney fees could not be awarded in any action …

March 19, 2019 General

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 …

March 18, 2019 Design Professionals (A&E)

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.

If passed into law, Assembly Bill A3595 would provide for a 10-year statute of limitations for wrongful death, personal injury, and …

March 11, 2019 Engagement Letters / Risk Management

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.

In Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026 (App. Div. 2d Dep’t 2019) a client brought an action against a law firm alleging legal malpractice in a case where the client had …

March 4, 2019 Ethics / Risk Management

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 …

February 25, 2019 Defenses / Risk Management

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 …

February 18, 2019 Employment Practices Liability

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 …

February 11, 2019 Engagement Letters / Long Term Care

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 …