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  • City of Whittier v. Everest National Insurance Co.

    January 25, 2024

    (Insurance Code Section 533 Barring Coverage of Willful Acts Does Not Apply to Exclude Coverage of Retaliation Claim Under Labor Code Section 1102.5 (c))

  • The Pep Boys Manny Moe & Jack Of California, LLC v. Old Republic Insurance Company

    January 23, 2024

    (Separate Aggregate Limits Were Afforded for Extended Policy Periods Under Excess Policies)

  • San Jose Sharks, LLC v. Superior Court

    January 23, 2024

    (COVID-19 Business Interruption Claim As Alleged in Complaint Satisfied the Direct Physical Loss or Damage Requirement in Commercial Property Policy, But Contamination Exclusion Barred Coverage of Claim)

  • Endeavor Operating Co. LLC v. HDI Global Insurance Company

    January 23, 2024

    (Business Interruption Claims Based on Shut-Down of Entertainment Venues Due to COVID-19 Do Not Satisfy Direct Physical Loss or Damage to Property Requirement in Commercial Property Policies)

  • JRK Property Holdings, Inc. v. Colony Insurance Company

    January 23, 2024

    (Judgment on the Pleadings in Favor of Insurers Reversed Based on Possible Physical Loss Caused by COVID-19 and Rejection of Application of Pollution Exclusion to Bar Coverage of Underlying Claim)

  • New York Team Secures Appellate Victory For Law Firm In Malpractice Case

    October 30, 2023

    New York Partner Peter Shapiro and Associate Abaigeal Franson prevailed on an appeal in the New York Appellate Division First Department. The client is an immigration law firm which was retained by a corporate client to assist with visa issues for an executive.

  • Bennett v. Ohio National Life Assur. Corp.

    September 28, 2023

    (Insured’s Action For Breach of Contract and Bad Faith Against Disability Insurer Not Time-Barred Because, Although Insurer Issued Claim Denial Letter Over Four Years Prior to Action, Insured’s Claims Did Not Accrue Until Insurer Ceased Paying Benefits Approximately One Year Before Insured Filed Suit)

  • Rosen-Wohl v. State Farm Fire and Cas. Co

    September 28, 2023

    (Homeowner Policy’s One-Year Limitations Clause Barred Insured’s UCL Action Effectively Seeking Policy Benefits, Even Though a Four-Year Limitations Period Ordinarily Applies To UCL Claims and the Insurer Briefly Reopened the Previously Denied Claim Within the One-Year Period in Response To Insured’s Inquiry)

  • Fischl v. Pacific Life Ins. Co.

    September 28, 2023

    (Trial Court Correctly Granted Summary Judgment To Life Insurer Because, While Regulations Require A Suitability Analysis To Be Conducted Before Variable Life Insurance Is Issued, They Permit An Insurer Issuing Such Insurance To Rely On The Suitability Analysis Conducted By A Licensed Broker Instead Of Conducting Independent Analysis)

  • People v. Discovery Radiology

    September 28, 2023

    (Allegations That Medical Corporations Falsely Held Themselves Out As Radiology Services Providers In Bills Submitted To Insurer Were Sufficient To Show Violations of Insurance Frauds Prevention Act and UCL, Regardless Of Whether Defendants Interfered With Physicians’ Decisions or Whether Maltreatment, Overtreatment or Overbilling Occurred)

  • Allied Premier Insurance v. United Financial Casualty Co.

    September 28, 2023

    (Failure to Cancel Certificate of Insurance Filed For Purpose of Proof of Financial Responsibility By Commercial Trucker Does Not Prevent Expiration of Commercial Auto Policy)

  • The Oregon Clinic PC v. Fireman’s Fund Insurance Company

    September 28, 2023

    (Under Oregon Law, Property Loss Based On Shutdown of Medical Clinics Did Not Constitute Direct Physical Loss Under Commercial Insurance Policy)

  • Sherlene Wong v. Stillwater Insurance Company

    September 28, 2023

    (Insurer Entitled to Summary Judgment Because Insureds Failed to Meet Their Burden of Establishing Direct Physical Loss Sustained by Embryos Caused by a Specific Peril Covered by Homeowners Insurance Policy)

  • Infinity Select Ins. Co. v. Superior Court

    September 28, 2023

    (Commercial Auto Liability Insurer Was Not Required to Afford Limits of $750,000 Required Under California Law for Motor Carriers of Property)

  • LaBarbera v. Sec. Nat'l Ins. Co.

    June 05, 2023

    (Plaintiff-Indemnitee Had No Standing as Third-Party Beneficiary to Sue Contractor’s Insurer Under CGL Policy’s Indemnitee Defense Provision Because Provision Bestowed Direct Benefits on Insurer and Insured-Contractor, and Merely Incidental Benefits on Plaintiff-Indemnitee, and Any Doubt That Plaintiff Was a Third-Party Beneficiary of Indemnity Defense Provision Would Be Resolved Against Plaintiff)

  • Glassman v. Safeco Ins. Co. of Am.

    June 05, 2023

    (Trial Court Correctly Denied Prejudgment Interest on Arbitration Award for Policy Limits in Ins. Code, § 11580.2, Subd. (F), Underinsured Motorist (UIM) Arbitration Because Total Amount of Damages Was Not Certain or Capable of Being Made Certain When Insured Made Offer to Compromise Under Section 998, Absent Evidence That Insurer Knew Damages Exceeded Policy Limits When It Rejected Offer)

  • Cal. ex rel. Sills v. Gharib-Danesh

    June 05, 2023

    (Required Filing of Complaint Under Seal in Qui Tam Action Under California False Claims Act and California Insurance Frauds Prevention Act, Ins. Code, § 1871 Et Seq. Tolled Mandatory Requirement to Bring Action to Trial Within Five Years, Because Complaint Could Not Be Served While Case Was Under Seal and Moving For a Stay Was Not Necessary Because Stay of Prosecution Was Accomplished by Operation of Statute and Would Have Been an Idle Act)

  • California Capital Insurance Company v. Employers Compensation Insurance Company

    June 05, 2023

    (General Liability Insurer’s Contribution Lawsuit Against Workers’ Compensation and Employers’ Liability Insurer Fails as It Did Not Insure Same Risk)

  • Santa Clara Valley Water District v. Century Indemnity Company

    June 05, 2023

    (No Duty to Indemnify Water District Under Excess and Primary Policies for Consent Decree Entered Without Notice to Insurer Under No Voluntary Payments Clauses in Policies)

  • Poonam Dua v. Stillwater Insurance Company

    June 05, 2023

    (Insurer Obligated to Defend Lawsuit Based on Frivolous Legal Theory, Notwithstanding That Indemnity Coverage Likely Not Provided by Homeowner’s Policy)

  • COVID-19 Insurance Block

    June 05, 2023

    There have been a number of cases in the past few months addressing coverage issues arising out of the COVID-19 pandemic. This article sets forth the main facts and holding in each of those cases. 

  • Louisiana Supreme Court Permits Plaintiffs to Pursue Separate Claims for Negligence Against Both Employee and Employer in Same Lawsuit

    January 12, 2023

    The Louisiana Supreme Court recently allowed a plaintiff to pursue claims for employer negligence while concurrently asserting claims for negligence against an employee in the same lawsuit, even though the employer has stipulated that it would be vicariously liable for the employee’s negligence.

  • Recent FMCSA Developments

    January 12, 2023

    Congress, in its Infrastructure Investment and Jobs Act, also known as the Bipartisan Infrastructure Law, required the Federal Motor Carrier Safety Administration (FMCSA) to establish an apprenticeship pilot program that would allow drivers between the ages of 18 to 20 with intrastate commercial driver’s license to operate interstate commerce under specific conditions.

  • The Federal Training Provider Registry and How It May Affect Negligent Hiring & Training Claims Against Commercial Drivers & Carriers

    January 12, 2023

    The Federal Motor Carrier Safety Administration (FMCSA) has implemented new rules affecting entry-level drivers who apply (or have applied) for the first time for a commercial driver’s license (CDL) on or after February 7, 2022.

  • Randle v. Farmers New World Life Ins. Co.

    December 21, 2022

    (Insurer and Agent’s Knowledge That Plaintiff Had Likely Assumed 100% Ownership of Her Former Husband’s Life Insurance Policy Pursuant to a Divorce Decree Precluded Summary Judgment for the Insurer, Which Paid Benefits to Sons Designated by Former Husband as Beneficiaries Despite Insurer and Its Agent’s Previous Representations to Plaintiff That No Beneficiaries Had Been Added)

  • Amy’s Kitchen, Inc. v. Fireman’s Fund Ins. Co.

    December 21, 2022

    (Costs Incurred by Food Manufacturer to Mitigate, Clean, Remove, and Test For COVID-19 Were Caused by “Direct Physical Loss” Under the Terms of the Policy’s Communicable Disease Extension)

  • Cell-Crete Corp. v. Fed. Ins. Co.

    December 21, 2022

    (Surety Entitled to Award of Fees and Costs as Prevailing Party in Action to Enforce Liability on a Bond, Even Though Surety’s Indemnitor Paid the Fees and Costs)

  • Thompson v. Crestbrook Ins. Co.

    December 21, 2022

    (Prior Judicial Determination That Underlying Complaint Asserting Violations of a Conservation Easement Did Not Allege an “Accident” Barred Plaintiff from Relitigating the Issue in a Subsequent Action Against Different Insurers Notwithstanding Plaintiff’s Presentation of New Factual Details and Intervening California Supreme Court Decision Holding Negligent Supervision Qualifies as “Accident”)

  • Tarrar Enterprises, Inc. v. Associated Indemnity Corporation

    December 21, 2022

    (Leave Granted to File an Amended Complaint Alleging Property Loss Caused by COVID-19 Government Shutdown Orders)

  • Apple Annie, LLC v. Oregon Mutual Insurance Company

    December 21, 2022

    (Absent Direct Physical Loss Sustained by Property, Business Income Coverage Is Not Afforded by Property Policy)

  • Yahoo, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

    December 21, 2022

    (The Phrase “Oral or Written Publication, In Any Manner, of Material That Violates a Person’s Right of Privacy” is Ambiguous, Such That It Can Include TCPA Claims Based on the Violation of the Right to Seclusion)

  • 24th & Hoffman Investors, LLC. v. Northfield Insurance Company

    December 21, 2022

    (Habitability Exclusion Applied to Exclude Coverage of Lawsuit Alleging Non-Habitability Claims That Were Included With Habitability Claims)

  • The Motor Vehicle Exclusion in a Homeowner’s Policy Does Not Exclude Coverage for Hot Car Deaths: Hermanson v. Century Nat'l Ins. Co. (Nevada)

    October 10, 2022

    Hermanson sued Century National alleging causes of action for 1) breach of contract, 2) breach of the implied covenant of good faith and fair dealing, and 3) unfair claims practices (pursuant to NRS 686A.310) for its failure to defend and indemnify him in relation to an underlying lawsuit. Century National removed the case to federal court and asserted a counterclaim for declaratory relief. 

  • Meeting the Jurisdictional Minimum for Removal to Federal Court: Walsh v. Safeco Ins. Co. of Am. (Arizona)

    October 10, 2022

    In Arizona, plaintiffs will often file coverage and bad faith matters in state court. Defendant insurers then typically seek to remove those matters to federal court, which is generally considered a better forum for insurance companies for a variety of reasons. Federal subject matter jurisdiction is almost always asserted through the diversity of citizenship of the parties.

  • Minimum Limits UM/UIM Policies: The Aftermath of Crutcher v. Liberty Mutual Ins. Co. (New Mexico)

    October 10, 2022

    There are two theories of coverage for uninsured/underinsured motorist (UM/UIM) coverage in the U.S.: (1) gap theory and (2) excess theory or floating layer theory. New Mexico is a gap theory jurisdiction with a recent twist.

  • Marina Pacific Hotel And Suites, LLC v. Fireman’s Fund Insurance Company

    July 20, 2022

    (Complaint Alleged Sufficient Facts Regarding Physical Loss Caused by COVID-19, Such That Order Dismissing Case Based on Demurrer Required Reversal Thereof)

  • United Talent Agency v. Vigilant Insurance Company

    July 20, 2022

    (COVID-19 Losses Resulting From Closure Orders And Presence of Virus Itself Does Not Constitute “Direct Physical Loss Or Damage”)

  • Certain Underwriters At Lloyd’s London v. ConAgra Grocery Products Company

    July 20, 2022

    (Insurance Code Section 553 Barring Coverage of Insured’s Willful Acts Applied to Exclude Coverage of Successor Company’s Liability Imposed for Conduct of Predecessor Company)

  • Maryam Ghukasian v. Aegis Security Insurance Company

    July 20, 2022

    (Intentional Grading and Clearing of Property Mistakenly Believed to be Owned by Insured Did Not Constitute Accident Under Liability Policy)

  • Musso & Frank Grill Co., Inc. v. Mitsui Sumitomo Insurance USA, Inc.

    July 20, 2022

    (Government Orders Requiring Shutdown of Restaurant Did Not Constitute Physical Loss of or Damage to Property at Insured Premises)

  • The Lookout - Trends to Watch: Autonomous Ships, Offshore Wind Industry

    June 24, 2022

    In this article - part of Lewis Brisbois' Marine & Energy newsletter, The Lookout - San Francisco Partner David E. Russo provides some thoughts on two areas of importance to the maritime industry - automonomous ships and offshore wind development.

  • The Oil Pollution Act of 1990: A History & Recent Developments

    June 24, 2022

    In 1851, the Limitation of Liability Act was passed in the U.S., which (among other things) applied to oil spills from vessels. Vessel owners were liable for incident-related costs only up to the post-incident value of the vessel. In 1924, Congress passed the first Oil Pollution Act, expanding vessel owner liability for intentional/deliberate discharges. Two very infamous and world-shocking incidents later evidenced the issues with this limited oil spill liability.

  • Fifth Circuit Overturns Own Precedent in Limitation of Liability Act Admiralty Case

    June 24, 2022

    The United States Court of Appeals for the Fifth Circuit recently overturned its own 2012 precedent in an admiralty case, finding a subsequent U.S. Supreme Court ruling superseded its previous case law.

  • Ninth Circuit Decision Leaves Third-Party Logistics Providers Exposed in Uncertain World of F4A Preemption

    May 26, 2022

    A recent decision out of the Ninth Circuit in Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016 (9th Cir. 2020) aims to impose enormous costs on the transportation industry, including freight brokers. Indeed, these are the very costs that Congress sought to avoid in enacting the Federal Aviation Administration Authorization Act of 1994, 49 U.S.C. § 14501(c)(1) (the F4A).

  • Identifying and Securing Crash Data from a Multitude of Sources

    May 26, 2022

    Those who practice transportation law are acutely aware of the accident investigation process. There are essential tasks that must be completed in short order, such as driver and witness interviews, obtaining crash reports, retaining the right accident reconstruction expert, and coordinating and completing inspections of the accident scene and involved vehicles. This article, however, is meant to serve as a reminder that our understanding of where crash data can be found must go beyond simply downloading an engine control or air bag control module.

  • Missouri Supreme Court Bars Disclosure of Defendant’s Medical Records

    May 26, 2022

    The Missouri Supreme Court recently addressed whether defendant motor-vehicle drivers may avail themselves of the physician-patient privilege to shield the disclosure of alcohol or drug treatment records from medical providers. Relatedly, the court also addressed whether affirmative defenses denying intoxication constitute a waiver of the privilege.

  • Social Media Research Leads to Summary Judgment Victory

    May 26, 2022

    Cleveland Partner Joseph Fiorello recently obtained a summary disposition (Michigan refers to summary judgment as summary disposition) victory for an insured motor carrier and driver in Monroe County, Michigan. The summary disposition motion was spearheaded by social media research of the plaintiff and the plaintiff’s family members who were identified in the plaintiff’s discovery responses.

  • HBO’s “Last Week Tonight with John Oliver” Paints Negative Image of Trucking Industry

    May 26, 2022

    Over the last couple months, the trucking industry received national and international attention as a result of the Canadian trucking convoy. Whether individuals were for or against the protest, it opened people’s eyes to the importance of the trucking industry, and to the fact that almost every product people take for granted was at some point transported via a truck driver.

  • Williams v. National Western Life Ins. Co.

    April 08, 2022

    (Insurer, Which Issued Annuities to Elderly Plaintiff on Applications Submitted by a Life Agent Under Insurance Code Section 1704.5, Was Liable for Agent’s Wrongful Actions in Procuring Unsuitable Annuities, Including Liability for Elder Abuse)

  • Ernst & Haas Mgmt. Co. v. Hiscox, Inc.

    April 08, 2022

    (Insured Entitled to Coverage Under Crime Policy’s "Computer Fraud" and "Funds Transfer Fraud" Provisions for Employee’s Wiring of Funds in Response to Fraudulent Actor’s Email Request)

  • American National Property and Casualty Company v. Brittney L. Gardineer

    April 08, 2022

    (Because Driver of Vehicle Did Not Qualify as An Insured Under Umbrella Policy, Exception to Exclusion in Policy Did Not Operate to Reinstate Coverage Under Such Policy)

  • Church Mutual Insurance Company v. GuideOne Specialty Mutual Insurance Company

    April 08, 2022

    (Absent Insured Status and Insurable Interest in Property by Church Entity, Insurer Was Not Entitled to Contribution or Subrogation Against Other Insurer)

  • Robert Westmoreland v. Fire Insurance Exchange

    April 08, 2022

    (Insured Limited to Cost of Replacing Building at New Location as Opposed to Estimated Cost of Replacement at the Original Insured Location)

  • Case Law: Select Decisions Through January 18, 2022

    January 19, 2022

    There is much variety among the insurance law decisions issued by Florida courts over the past year, although the majority of rulings fall under property insurance. There is an amusing quote from one of the Select Decisions: “As a general matter, insurance policies and insurance salesmen have long been the butt of jokes. The former are not known for beautiful prose nor the latter for exciting conversation.”

  • Florida Statutes: Bills to Watch In 2022

    January 19, 2022

    In the world of state legislation, it only matters when the Governor signs a bill into law. Therefore, please consider the bills described below as nothing more than a “heads up” of potential changes to Florida statutes. These bills are currently in the Florida House and Senate and are slated to be addressed in the 2022 Session.

  • Spotlight: Property Insurance Case to Watch

    January 19, 2022

    On December 21, 2021, the Florida Supreme Court accepted jurisdiction arising from State Farm Fla. Ins. Co. v. Parrish, 312 So. 3d 145, 151 (Fla. 2d DCA 2021), holding “[w]e certify conflict with Brickell, to the extent it holds that a public adjuster who has a contingency interest in an insured's appraisal award or represents an insured in an appraisal process can serve as a ‘disinterested appraiser’ under a policy's appraisal provision.”

  • CDC Issues Best Practices for Fleet Marijuana Policies

    January 18, 2022

    The CDC recently issued guidance to businesses developing marijuana policies, balancing state legalization efforts and fleet safety. Per the CDC, marijuana should be addressed in motor vehicle safety programs.

  • Mobile Carriers’ Phase-Out of 3G Networks May Require ELD Upgrade

    January 18, 2022

    The Federal Motor Carrier Safety Administration’s (FMCSA) Electronic Logging Device (ELD) rule applies to motor carriers and drivers who are required to keep records of duty service (RODS). An ELD automatically records a driver’s driving time and other aspects of the hours-of-service (HOS) records.

  • Interstate Household Goods Claims Belong in Federal Court and Are Preempted by Carmack

    January 18, 2022

    Phoenix Partner and Co-Chair of Lewis Brisbois’ Transportation Practice Julie E. Maurer and Partner Andrew Kleiner recently defeated a motion to remand to state court on behalf of an interstate moving company when the U.S. District Court for the District of Connecticut found removal was proper because the Carmack Amendment completely preempted the plaintiff’s state law claims arising out of an interstate household goods move.

  • Low Impact Collisions, Excessive Claims, and Biomechanical Experts

    January 18, 2022

    Across the United States, an increasing number of low impact collisions are ending up in litigation, with plaintiffs frequently alleging in excess of $50,000 in past medical expenses and often with surgical recommendations. Claims that used to have an emergency room visit and a little chiropractic treatment now have multiple epidural steroid injections, MRIs, and spinal fusion surgery recommendations.

  • CSAA Insurance Exchange v. Raed Hodroj

    December 28, 2021

    In CSAA Ins. Exch. V. Hodroj, 72 Cal.App.5th 272 (December 1, 2021), the California Sixth District Court of Appeal affirmed the trial court’s entry of summary judgment in favor of CSAA in connection with a dispute arising out the settlement of a bodily injury claim made by Raed Hodroj (“Hodroj”) against CSAA Insurance Exchange’s (“CSAA”) insured. The claim arose out of an automobile accident.

  • The Inns By The Sea v. California Mutual Insurance Company

    December 28, 2021

    In The Inns by the Sea v. California Mut. Ins. Co., 71 Cal. App.5th 688 (November 15, 2021), the California Fourth District Court of Appeal affirmed the trial court’s dismissal of a lawsuit filed by The Inns by the Sea (“Inns”) against California Mutual Insurance Company (“California Mutual”). The Inns’ lawsuit alleged that coverage was afforded under a commercial property policy issued by California Mutual for business income losses sustained as a result of government orders requiring the shut-down of commercial businesses so as to stop the spread of the COVID-19 virus.

  • The Travelers Indemnity Company Of Connecticut v. Navigators Specialty Insurance Company

    December 28, 2021

    In Travelers Indem. Co. of Conn. v. Navigators Specialty Ins. Co., 70 Cal.App.5th 341 (October 15, 2021), the California Fourth District Court of Appeal reversed the trial court’s order dismissing a lawsuit filed by Travelers alleging causes of action for declaratory relief, equitable contribution, and equitable indemnity against Navigators Specialty Insurance Company ((“Navigators”) and Mt. Hawley Insurance Company (“Mt. Hawley”).

  • Marissa Janney v. CSAA Insurance Exchange

    December 28, 2021

    In Janney v. CSAA In. Exch., 70 Cal.App.5th 374 (October 15, 2021), the California Third District Court of Appeal affirmed a summary judgment in favor of CSAA Insurance Exchange (“CSAA”) in connection with a breach of contract and bad faith lawsuit filed by Peggy Baltar in connection with CSAA’s adjustment of a property loss involving the destruction of Baltar’s home as result of the Boles fire in September 2014.

  • Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass’n (Colorado)

    November 03, 2021

    The Colorado Supreme Court recently determined that an insurer defending under a reservation of rights has the right to intervene in the litigation after its insured assigns its rights to bad faith claims against the insurer. Auto-Owners Ins. Co. v. Bolt Factory Lofts Owners Ass’n, 2021 CO 32, 487 P.3d 276.

  • Sciarratta v. Foremost Ins. Co. Grand Rapids Mich. (Nevada)

    November 03, 2021

    In Sciarratta v. Foremost Ins. Co. Grand Rapids Mich., 491 P.3d 7, 137 Nev. Adv. Rep. 32 (Nev. 2021), the Nevada Supreme Court recently held that a personal umbrella policy is not a “policy of motor vehicle insurance,” and therefore was not subject to a statutory requirement that such a policy’s exclusions be presented on a form promulgated by the Nevada Division of Insurance.

  • Gonzalez v. United Fin. Cas. Co. (Arizona)

    November 03, 2021

    The Arizona courts have held that auto policies that cover a driver or passenger when they enter a vehicle may be limited to the literal meaning of the act of entering a vehicle, excluding activities that may precede entering a vehicle, like addressing other prospective passengers in the same group of friends who are waiting to enter.

  • Crutcher v. Liberty Mutual Ins. Co. (New Mexico)

    November 03, 2021

    Insurers selling “minimum limits” uninsured/underinsured motorist (UM/UIM) auto policies in New Mexico must now provide adequate disclosure to their customers in the form of a policy exclusion describing the “illusory” nature of UIM coverage if they wish to continue to charge a premium for minimum limits UM/UIM coverage.

  • The Importance of “Seaman” Status for the Fledgling Offshore Wind Industry

    October 13, 2021

    National plans for the fledgling offshore wind industry are ramping up. In May 2021, the Biden Administration announced plans to promote development of wind farms off California’s Central Coast, with Governor Gavin Newsom supporting the plan. 

  • The Federal Maritime Commission’s Heightened Focus on Detention & Demurrage Fees

    October 13, 2021

    The rise (perceived or otherwise) in unjust and/or unreasonable demurrage and detention, or D&D, fees has been on the FMC’s radar for several years now, but recent actions on this issue have led to increased focus and oversight by the FMC. 

  • A Change in the Fifth Circuit Seaman Status Test?

    October 13, 2021

    The U.S. Court of Appeals for the Fifth Circuit recently issued an en banc ruling in Sanchez v. Smart Fabricators of Texas, LLC, 997 F.3d 564 (5th Cir. 2021) holding that an offshore welder assigned to a jack-up drilling rig was not a seaman within the meaning of the Jones Act. 

  • Mudpie, Inc. v. Travelers Casualty Insurance Company of America

    October 12, 2021

    (Because Claims For Damage As A Result Of COVID-19 Government Orders Preventing Operation Of Businesses Failed To Allege Direct Physical Loss Of Or Damage To Property Or Were Otherwise Excluded By The Virus Exclusion, Coverage Was Not Afforded Under Commercial Property Policies)

  • Vulk v. State Farm General Insurance Company

    October 12, 2021

    (Summary Judgment In Favor Of Insurer Affirmed As Insureds Failed To Show Misrepresentation Regarding The Amount Of Coverage Afforded For Homes Destroyed By Wildfire)

  • Nede MGMT, Inc. v. Aspen American Insurance Company

    October 12, 2021

    (Insureds Were Not Entitled To Independent Counsel For Defense Of Lawsuit Based On Insurer’s Reservations Regarding Excess Exposure And Punitive Damages)

  • Dennis Munden v. Stewart Title Guaranty Company

    October 12, 2021

    (Based On Idaho Insurance Interpretation Rules, Reversal Of Summary Judgment For One Insurer Required, But Not The Other Insurer)

  • Maryam Hedayati v. Interinsurance Exchange of The Automobile Club

    October 12, 2021

    (Judgment In Favor Of Insurer In Connection With Bad Faith Lawsuit Reversed Based On Questions Of Fact Related To Failure To Communicate Settlement Offer Terms To Insured And Unreasonable Claims Handling Conduct)

  • Michael Berg v. Pulte Home Corporation/St. Paul Mercury Insurance Company-Intervenor

    October 12, 2021

    (Insurer Subrogation Action Against Subcontractors Required Jury Trial To Determine Damages And Such Damages Were Properly Allocated to Breaching Subcontractors On A Several Basis)

  • Nautilus Ins. Co. v. Access Med., LLC (Nevada)

    August 17, 2021

    Many states allow insurers to recover case costs once a court determines that they had no duty to defend a policy holder, but only where certain conditions are met. In a recent 4-3 decision, the Nevada Supreme Court held that where an insurer pays to defend a policyholder against a lawsuit and that defense is ultimately not owed, the insurer is entitled to reimbursement of its defense costs, even where the insurance policy contains no reservation of rights.

  • Fid. Nat’l Title Ins. Co. v. Osborn III Partners LLC (Arizona)

    August 17, 2021

    Arizona courts continue to address the interplay between the parties’ competing duties, such as an insurer’s duty to defend, the insurer’s duty to indemnify, and the insured’s duty to cooperate. Where an insurer seeks a reservation of rights, Arizona courts reason that these duties paint an insured into a corner where they should be able to settle third-party claims.

  • Hart v. State Farm (New Mexico)

    August 17, 2021

    New Mexico courts continue to require insurance companies to afford insureds a fair opportunity to consider the actual cost of UM/UIM coverage by reforming policies that do not accurately reflect premium costs corresponding to available levels of UM/UIM coverage.

  • Wexler v. California Fair Plan Association

    July 27, 2021

    (Bad Faith Action Dismissed as Plaintiff Was Not an Insured and Had No Insurable Interest in Home Covered by Property Policy)

  • Truck Insurance Exchange v. Federal Insurance Company

    July 27, 2021

    (Insurer’s Anti-SLAPP Motion Denied Based on Alleged Fraud in Connection With Settlement of Claims)

  • Allied Premier Insurance v. United Financial Casualty Company

    July 27, 2021

    (Certified Question to California Supreme Court Regarding Whether Commercial Auto Policy Continues In Force, Absent Notice to DMV of Cancellation of Certificate of Insurance)

  • Adir International, LLC. v. Starr Indemnity And Liability Company

    July 27, 2021

    (California Insurance Code Section 5335(b) Bars Defense of Insured for Action Brought by the Attorney General’s Office for Violation of California’s Unfair Competition Law and False advertising Law)

  • Brett McIsaac v. Foremost Insurance Company

    July 27, 2021

    (Insurer is Entitled to Arbitrate Underinsured Motorist Claim, Irrespective of Pending Bad Faith Lawsuit)

  • Ted Antonopoulos v. Mid-Century Insurance Company

    July 27, 2021

    (Question of Fact Existed Relative to Whether Homeowner’s Policy Reinstated Without Lapse So as to Cover Fire Loss)

  • Louisiana Personal Injury Attorney Pleads Guilty in Staged Truck Accident Scheme

    July 01, 2021

    A New Orleans personal injury attorney was indicted by a grand jury in the United States District Court for the Eastern District of Louisiana on November 5, 2020 for wire and mail fraud based on his alleged role in filing lawsuits and obtaining settlements relating to staged accidents. In the indictment, the grand jury charged that the attorney conspired with a “slammer” and a “spotter” to stage at least 31 accidents.

  • DRIVE-Safe Act Seeks to Address Truck Driver Shortage

    July 01, 2021

    At present, CDL holders must be at least 21 years old to engage in interstate commerce. This could soon change if the DRIVE-Safe Act (S.659, H.R.1745), which has received bipartisan support, is greenlit by Congress. The legislation is aimed at addressing a nationwide shortage of drivers by allowing CDL holders aged 18 to 21 to engage in a two-step apprenticeship program that would ultimately permit them to cross state lines. 

  • Plaintiffs Seek to Hold Manufacturer Liable For Selling Truck Not Equipped With Forward Collision Warning, Automatic Emergency Braking Technology

    July 01, 2021

    On July 11, 2017, while traveling Westbound I-70, just west of Kansas City, Kansas, five motor vehicle occupants, traveling in three separate vehicles, died when the driver of a 2015 Freightliner Cascadia allegedly failed to timely apply his brakes so as to avoid a collision with the decelerating traffic. Rather than bringing suit against the driver of the Freightliner and his motor carrier employer, the heirs of the decedents undertook the novel charge of holding the manufacturer of the Freightliner liable.

  • Nevada Clarifies When Heightened Standard of Common Carrier Liability Applies

    July 01, 2021

    Long-standing case law in Nevada held that a common carrier owes a heightened duty of care to its passengers, at least for transportation-related risks. See Sherman v. S. Pac. Co., 33 Nev. 385, 405, 111 P. 416, 424 (1910) ("The rule . . . requires that a common carrier of passengers shall exercise more than ordinary care. It requires the exercise of extraordinary care, the exercise of the utmost skill, diligence, and human foresight.")

  • Commercial Motor Vehicle Drivers Are Not Held to a Higher Standard of Care

    July 01, 2021

    The overwhelming authority nationwide suggests that commercial motor vehicle drivers are held to the same standard of care as all other drivers – ordinary negligence. However, that has not stopped plaintiffs' attorneys from aggressively asserting that “professional drivers” should be held to a higher standard of care. 

  • Colorado Revised Statute Section 10-3-1118

    May 26, 2021

    (Asserting Failure to Cooperate as a Defense in Colorado Litigation)

  • Apollo Educ. Grp., Inc. v. Nat’l Union Fire Ins. Co. (Arizona)

    May 26, 2021

    (Whether Courts Should Assess Objective Reasonableness of Insurer’s Decision to Withhold Consent to Settle From Perspective of Insurer or Insured) 

  • Sanchez v. Essentia Ins. Co. (New Mexico)

    May 26, 2021

    (Insurer’s Seven-Month Delay in Providing Insured With Copy of Policy Incorporating Rejection of UM/UIM Coverage Does Not Provide Insured With Fair Opportunity to Reconsider Rejection)

  • Autonomous Vessels Are Now Receiving the Attention of the U.S. Navy

    April 29, 2021

    The U.S. Navy has requested nearly $580 million for fiscal year 2021 for the research and development of multiple types of autonomous vessels, which are described simply as unmanned vessels (UVS).

  • Does “General Average” or COGSA Apply to Limit Carriers’ Liability After Suez Canal Blockage?

    April 29, 2021

    Between March 23 and 29, 2021, the Suez Canal was blocked when Ever Given – a 1312-foot-long cargo ship – ran aground in high winds and a sandstorm, wedging itself across the canal. It took six days to free Ever Given, while hundreds of other ships carrying billions of dollars of cargo were prevented from timely navigating the canal.

  • COVID-19 Claims Under the Longshore and Harbor Workers’ Compensation Act

    April 29, 2021

    With the continued spread of COVID-19 and the likelihood of burgeoning claims, the Department of Labor has directed some guidance to employers and their insurance carriers for handling COVID-19 claims by longshoremen.

  • COVID-19 Jones Act Lawsuit Leaves Maritime Employer Liability Unclear

    April 29, 2021

    The widow of a sea captain recently settled a coronavirus-related maritime lawsuit – the first of its kind filed in Louisiana – leaving unclear the extent to which a maritime employer may be held liable in connection with contraction of the virus.

  • Planet Bingo LLC v. The Burlington Insurance Company

    April 01, 2021

    (Failure to Settle Based on Pre-Suit Offer to Settle Subrogation Claim Demanding Amount in Excess of Policy Limits Supported Bad Faith Claim Based on Opportunity to Settle Within Policy Limits)

  • Manny Villanueva v. Fidelity National Insurance Company

    April 01, 2021

    (Insurance Code Section 12414.26 Does Not Provide Immunity to Title Insurers For Charging Unauthorized Rates For Title Insurance)

  • Alexander Pinto v. Farmers Insurance Exchange

    April 01, 2021

    (Bad Faith Verdict Reversed as Plaintiff Failed to Include Instruction Requiring That Insurer Acted Unreasonably in Refusing to Accept Reasonable Settlement Demand)

  • William Gray v. Quicken Loans, Inc.

    April 01, 2021

    (Civil Code Section 2954.8 Does Not Require a Lender to Pay Interest on Insurance Proceeds Held in Escrow For Payment of Repairs For Damage Sustained by Home Covered by Property Insurance)

  • Thomas Guastello v. AIG Specialty Insurance Company

    April 01, 2021

    (Question of Fact Regarding When Property Damage Occurred Required Reversal of Judgment in Favor of Insurer)

  • Enactment of C.R.S. § 10-3-1117 (Colorado)

    February 02, 2021

    (Disclosure Requirements For Auto Insurers - First and Third-Party Claims)

  • Goldberger v. State Farm Fire & Cas. Co., 448 P.3d 302 (Ariz. App. 2019)

    February 02, 2021

    (Property Insurance Limitations For Animals Or Damage Caused By Animals)

  • Starr Indem. & Liab. Co. v. Young, 379 F. Supp. 3d 1103 (D. Nev. 2019)

    February 02, 2021

    (Insurer’s Obligations With Respect To The Independent Counsel Requirement)

  • Salopek, Tr. for Salopek Family Heritage Tr. v. Zurich Am. Life Ins. Co., 446 F. Supp. 3d 886 (D.N.M. 2020)

    February 02, 2021

    (Pre-Policy Behavior Is Not a Basis For a Bad Faith Claim) 

  • St. Mary & St. John Coptic Orthodox Church v. SBS Insurance Services, Inc.

    December 17, 2020

    (Because Residence Was Vacant For 60 Consecutive Days, Vacancy Exclusion in Property Policy Applied to Bar Coverage of Water Damage Claim Under Policy)

  • Auburn Woods Homeowners Association v. State Farm General Insurance Company

    December 17, 2020

    (No Duty to Defend HOA and Property Manager Under Policy Liability and D&O Coverage Parts For Lawsuits Which Failed to Allege Damages and Did Not Include Property Manager as an Additional Insured)

  • Truck Insurance Exchange v. AMCO Insurance Company

    December 17, 2020

    (Landlord Insurer Entitled to Contribution of Defense and Indemnity Costs From Restaurant Insurer Because Underlying Lawsuit Was Related to Use of Premises as Restaurant)

  • California Appellate Court Follows the Guidance of Dutra and Miles

    December 09, 2020

    In a decision handed down in mid-October, a California appellate court rejected a plaintiff’s entreaty to create a new maritime remedy. Instead, it adhered to the U.S. Supreme Court’s admonition in The Dutra Group v. Batterton, 139 S.Ct. 2275 (2019) that the courts should defer to Congress in fashioning relief. 

  • The Continuing Advance of Automated and Autonomous Vessels

    December 07, 2020

    In October 2019, San Francisco Marine & Energy Partner David Russo spoke at the BiLog Conference in La Spezia, Italy about the advent of autonomous and highly automated vessels. Beyond the numerous legal and technical issues raised by the advancement of this technology (discussed in this article), it was noted at the conference that this technology was accelerating. It was expected then that an extended Atlantic voyage would happen in 2020. That has now occurred. 

  • Safety Management Systems for Domestic Passenger Vessels

    December 07, 2020

    Recently, the U.S. Coast Guard issued a draft advance notice of proposed rulemaking regarding safety management systems to be required of domestic passenger vessels, including small passenger vessels (Subchapter K vessels). By doing so, the Coast Guard is seeking public comment about the scope, content, cost, and benefits of such a requirement. 

  • Michael A. Dones v. Life Insurance Company Of North America

    November 03, 2020

    (Questions of Fact Relative to Whether Life Insurer Waived Its Right to Contest Whether Policy Was in Place Required Reversal of Motion For Summary Judgment)

  • Axis Reinsurance Company v. Northrop Grumman Corporation

    November 03, 2020

    (Excess Insurer May Not Challenge Underlying Insurance Companies’ Payment of Unrelated Claims Due to Improper Coverage Determination)

  • Ghazarian v. Magellan Health, Inc.

    November 03, 2020

    (Question of Fact Existed Relative to Whether Health Insurer Acted in Bad Faith in Denying Medical Treatment, Requiring Reversal Of Motion For Summary Judgment Entered in Favor of Insurer)

  • Storm v. The Standard Fire Insurance Company

    November 03, 2020

    (Costs Were Properly Awarded Based on Offer of Judgment Under CCP 998 in Connection With Underinsured Motorists Arbitration Decision)

  • Charles Carter v. Pulte Home Corporation

    August 03, 2020

    (Intervening Insurer Is Not Entitled to Equitable Subrogation From Subcontractors in Connection with Costs of Defending Construction Defect Lawsuit)

  • SantaFe Braun, Inc. v. Insurance Company of North America

    August 03, 2020

    (Insured Entitled to Trigger Excess Coverage Upon Exhaustion of Scheduled Primary Policy, Irrespective of Other Available Unscheduled Primary Policies Covering a Continuous Loss)

  • Zurich American Insurance Company v. Ironshore Specialty Insurance Company

    August 03, 2020

    (U.S. Court of Appeals Certifies Questions to the Nevada Supreme Court Regarding the Duty to Defend and Burden of Proving Exception to Exclusion)

  • Nader Eghtesad v. State Farm General Insurance Company

    August 03, 2020

    (Judgment for Breach of Contract Reversed as Trial Court Should Have Granted Leave to Amend Complaint For Bad Faith)

  • Leonard Fadeeff v. State Farm General Insurance Company

    August 03, 2020

    (Genuine Dispute Rule Did Not Bar Claim For Bad Faith)

  • Pulte Home Corp. v. CBR Electric, Inc.

    August 03, 2020

    (Insurer Entitled to Maintain Subrogation Action Against Subcontractors for Reimbursement of Defense Costs Based on Indemnity Clauses in Contracts with Developer/General Contractor)

  • James Mosely v. Pacific Specialty Insurance Company

    August 03, 2020

    (Question of Fact As To Whether Coverage Afforded by Homeowners’ Policy Was Substantially Equivalent to Insurance Code Section 2071 Required Reversal of Summary Judgment)

  • How COVID-19 and the FMCSA Emergency Declaration Will Impact Motor Carrier Litigation

    May 19, 2020

    The Federal Motor Carrier Safety Administration (FMCSA) recently declared that a nationwide emergency continues to exist that warrants extension and expansion of Emergency Declaration No. 2020-002 under 49 CFR § 390.25, issued on March 13, 2020, expanded on March 18, 2020, extended and further expanded on April 8, 2020, and once again further extended on May 13, 2020, continuing the exemption granted from Parts 390 through 399 of the Federal Motor Carrier Safety Regulations (FMCSR) for the fifty States and the District of Columbia through June 14, 2020.

  • Interview: Telematics, Infotainment Systems, and the Adverse Distracted Driver

    May 19, 2020

    In this interview, Denver Partner Katherine Vaughn speaks with William Bortles, Principal Accident Reconstructionist at Kineticorp, to learn more about telematics and passenger vehicle infotainment systems.

  • Give Your Minority-Owned Small Business an Edge Through the USDOT Certification Program

    May 19, 2020

    If your small business is minority-owned, you may consider taking advantage of various programs dedicated to increasing your opportunities of being successful in this competitive marketplace. Becoming formally certified as a minority-owned business by the U.S. Department of Transportation (USDOT) may give you an edge in marketing your business to potential customers and even reduce your competition for public contracts.

  • Nevada Clarifies When the Heightened Standard of Common Carrier Liability Applies

    May 19, 2020

    The long-standing case law in Nevada was that a common carrier owed a heightened duty of care to its passengers, at least for transportation-related risks. Cases following this traditional rule reasoned that a common carrier must exercise extraordinary care because "the passenger places himself or herself in the care of that common carrier and is unable to use his or her own faculties to prevent or avoid accidents and so is forced to rely on the common carrier to ensure that accidents are avoided."

  • Defending Against Attempts to Hold CMV Drivers to a Higher Standard of Care

    May 19, 2020

    The overwhelming authority nationwide suggests that commercial motor vehicle drivers are held to the same standard of care as all other drivers – ordinary negligence. However, that has not stopped plaintiffs’ attorneys from aggressively asserting that “professional drivers” should be held to a higher standard of care.

  • 501 E. 51st St. Long Beach-10 LLC v. Kookmin Best Ins. Co., Ltd

    May 07, 2020

    (Genuine Dispute Doctrine Bars Bad Faith Claim in Connection With Property Loss)

  • Montrose Chemical Corporation Of California v. Superior Court

    May 07, 2020

    (Supreme Court Finds That Insureds Can Trigger Excess Insurance Policies on a Vertical Basis Without First Exhausting Lower Level Excess Policies on a Horizontal Basis)

  • Nicolette Lewis v. Liberty Mutual Insurance Company

    May 07, 2020

    (Third-Party Judgment Creditor is Bound by Forum Selection Clause Requiring Coverage Action to be Litigated in Australia)

  • Textron, Inc. v. Travelers Casualty And Surety Company

    May 07, 2020

    (Insured Was Not Collaterally Estopped From Relying on California Law Governing Trigger of Coverage for Asbestosis Claim Settlement)

  • Pacific Pioneer Insurance Company v. Superior Court

    May 07, 2020

    (Insurer May Appeal Default Judgment Entered Against Insured in Small Claims Court)

  • Philadelphia Indemnity Insurance Company v. SMG Holdings, Inc

    May 07, 2020

    (Arbitration Clause Applied to Third-Party Beneficiary Claiming Coverage Under Policy as an Additional Insured for Personal Injury Claim)

  • Travelers Property Casualty Company of American v. Kla – Tencor Corporation

    May 07, 2020

    (Underlying Antitrust Lawsuit Based on Fraudulent Procurement of Patent Did Not Constitute Potential Malicious Prosecution Triggering Duty to Defend Under Personal Injury Coverage Afforded by CGL Policy)

  • In Texas, a Question as to Whether a Golf Cart is an “Auto” or “Mobile Equipment” and the Use of Extrinsic Evidence

    February 18, 2020

    Texas Political Subdivisions Property/Casualty Joint Self Insurance Fund v. Pharr-San Juan-Alamo ISD addressed whether Texas commercial auto policies consider golf carts “autos” or “mobile equipment.” 

  • Fifth Circuit Leaves Open Decision of Whether Liability Policies in Texas Afford Coverage of Punitive Damages

    February 18, 2020

    In Frederking v. Cincinnati Insurance Company, No. 18-50536 (5th Cir. July 2, 2019), the Fifth Circuit reversed a lower court ruling that resulted in a liability policy’s coverage of punitive damages.

  • Insured vs. Insured Exclusion Carve-Out Preserves Coverage for Private Equity Firm

    February 18, 2020

    In Prophet Equity LP v. Twin City Fire Ins. Co., the Fifth District Court of Appeals in Dallas, Texas held that the insureds were entitled to payment from the second-level excess carrier for the wrongful termination of the investment firm’s partner by the firm’s majority partner.

  • Fifth Circuit Finds Failure to Provide Notice of an Initial Claim Under “Claims Made and Reported” Policy May Preclude Coverage for Timely-Reported, Subsequent, Interrelated Claims

    February 18, 2020

    In ADI Worldlink, LLC. v. RSUI Idemnity Co., 932 F.3d.369 (5th Cir. 2019), the Fifth Circuit affirmed the judgment of the District Court for the Eastern District of Texas, finding that an “interrelatedness provision” of a claims made and reported policy, when read in conjunction with the policy’s notice requirement, precluded coverage for all wage claims against an insured, including those which were timely reported under a subsequent policy.

  • Richards v. State Farm Lloyds: The End of the World As We Know It?

    February 18, 2020

    The strongest and most emblematic pillar of Texas insurance law is the eight-corners rule, which prohibits the consideration of evidence extrinsic to the pleadings and insurance policy in determining an insurer’s duty to defend.

  • Texas Supreme Court Finds Appraisal Award Does Not Preclude Insurer’s Liability Under TPPCA

    February 18, 2020

    The Texas Supreme Court recently issued two opinions holding that an insurer’s payment based on an appraisal award (1) precludes an insured’s claim that the insurer breached contract by failing to pay the amount of covered loss, as well as statutory and bad faith claims when the only actual damages sought are loss of policy benefits (Ortiz v. State Farm Lloyds, _____ S.W.3d. ____; No. 17-1048, 2019 WL 2710032 (Tex. June 28, 2019)); but (2) does not, as a matter of law, preclude an insurer’s liability under the Texas Prompt Payment of Claims Act (TPPCA) or under the policy (Barbara Technologies Corporation v. State Farm Lloyds, ____ S.W.3d. _____; No. 17-0640, 2019 WL 2710089 (Tex. June 28, 2019)).

  • Interview: The Law Enforcement Perspective

    January 31, 2020

    Denver Partner Katherine L. Vaughn recently sat down with friend and colleague, Mark Savage, of the Colorado State Patrol (CSP) to talk to him about his work as an advocate for the motor carrier industry for Lewis Brisbois' January 2020 Transportation Law Update.

  • Third Party Fleet Tracking Companies Likely Have No Duty To Preserve Information If Based on Knowledge or Foreseeability Alone

    January 31, 2020

    In Florida, unlike parties to a claim, nonparties have no duty to preserve evidence based on knowledge or foreseeability of litigation. In a recent opinion, a Florida Court of Appeals was asked to examine whether the courts should recognize a common law duty for nonparty preservation of evidence based on the knowledge or foreseeability of litigation.

  • Drug and Alcohol Clearinghouse Open for Registration

    January 31, 2020

    The Federal Motor Carrier Safety Administration (FMCSA) has opened its Congressionally-mandated Commercial Driver’s License (CDL) drug and alcohol Clearinghouse portal. CDL holders, employers, medical review officers, and substance abuse professionals can register to create a secure account through the portal.

  • Transportation Collections 101: Judicial and Non-Judicial Remedies

    January 31, 2020

    The legal remedies that enable an aggrieved party to “collect” on an amount undisputedly owed generally arise from the enforcement of judgments and liens. This article does not address collections related to air or maritime transportation of goods, though such collections overlap and share similar concepts. The nuances of each remedy varies by jurisdiction, and are contingent upon the underlying legal right(s) asserted.

  • Initial Success for Challenges to California Assembly Bill 5 (AB-5) Codification of Dynamex Ruling

    January 31, 2020

    On January 8, 2020, Los Angeles Superior Court Judge William Highberger ruled that newly enacted statute AB-5 does not apply to motor carriers or independent owner-operator truck drivers, a notable success for the transportation industry in the first court ruling on the statute’s validity.

  • Travelers Property Casualty Company of America v. Workers’ Compensation Appeals Board

    January 15, 2020

    (Special Employer’s Insurer Not Liable for Workers Compensation Claim of Special Employee When General Employer’s Insurer Becomes Insolvent When Special Employer’s Insurance Policy Expressly Excluded Coverage for Special Employees, Even Though Endorsement Was Not Signed)

  • McHugh v. Protective Life Insurance Company

    January 15, 2020

    (The Statutorily Required 60-Day Grace Period Before an Insurer Can Terminate a Policy for Failure to Pay Premium Does Not Apply Retroactively)

  • Terrell v. State Farm General Insurance Company

    January 15, 2020

    (Business Pursuits Exclusion Applied to Bar Coverage of Personal Injury Lawsuit Brought by Tenant of Rental Property)

  • Southern California Pizza Company, LLC v. Certain Underwriters At Lloyd’s, London Subscribing To Policy Number 11epl-20208

    January 15, 2020

    (Duty to Defend triggered under EPLI Policy Based On Alleged Failure to Reimburse Business Expenses As Required by the California Labor Code)

  • California Insurance Guarantee Association v. San Diego County Schools Risk Management Joint Powers Authority

    January 15, 2020

    (Civil Court had Jurisdiction To Adjudicate Coverage Under Excess Workers' Compensation Policy)

  • Tyler v. United States Life Ins. Co.

    October 28, 2019

    (Insurer’s Denial of Long-Term Disability Benefits Where Job Accommodations Are Not “Realistically Available” May Expose Insurer to Bad Faith)

  • Enforceability of Anti-Stacking Provisions In Nevada - The Importance of Prominently Displayed Provisions

    October 28, 2019

    An anti-stacking provision in an insurance policy is enforceable in Nevada if three conditions are met – the provision is 1) clear, 2) prominently displayed, and 3) the insured did not pay a premium calculated for full reimbursement.

  • Fred Loya Ins. Co. v. Swiech

    October 28, 2019

    (Limitations On Insured’s Recovery of Punitive Damages Under UM/UIM Policies For Different Types of Losses)

  • Driver’s Criminal Charges Have Major Impact on Civil Litigation

    October 15, 2019

    When motor vehicle accidents result in criminal charges, there are major implications for related civil litigation, and coordination with the criminal defense team is essential.

  • How Much Control is Too Much Control? Issues with Using Independent Owner-Operators

    October 15, 2019

    An owner-operator is normally an independent driver that owns his or her own tractor(s) and solicits work from traditional carriers, such as long-hauls, moving household goods, and intermodal freight. They are an essential element in the transportation industry to assist with cyclical demand.

  • Canada’s ELD Regulations To Be Fully Implemented On June 12, 2021

    October 15, 2019

    On June 12, 2021, Canada will fully implement rules requiring the use of electronic logging devices, or ELDs, by Canadian motor carriers and drivers who are currently required to maintain paper logs, with some limited exceptions.

  • Pennsylvania Doctor Caught Falsifying DOT Medical Examinations, Drivers’ Medical Cards Invalidated

    October 15, 2019

    Recently, there has been a crackdown on physicians who falsify DOT medical examinations. One physician pled guilty to one count of making false statements in connection with a DOT medical examination and was sentenced to 3 years’ probation, a $1,000 fine, and a $100 special assessment.

  • Analysis: Will Personal and Advertising Injury Extend to Claims Under Illinois’ Biometric Information Privacy Act?

    September 26, 2019

    A three-judge panel of the Ninth Circuit U.S. Court of Appeals recently held that Illinois Facebook users may bring claims for privacy violations under state law for the use and storage of biometric information on the company’s platforms and servers. Patel v. Facebook, 18-15982, (9th Cir. Aug. 8, 2019). Three Illinois residents allege that “face templates” of them were created and used by Facebook without sufficient notice, agreement, and protection under the Illinois Biometric Information Privacy Act (BIPA), 740 ILCS 14/15.

  • Wisconsin Supreme Court Holds That Insurer’s Breach of Duty to Defend Does Not Expose It to Pay Another Insurer’s Pro Rata Share of Defense Costs

    September 26, 2019

    In Steadfast Ins. Co. v. Greenwich Ins. Co., 2019 WI 6, the Wisconsin Supreme Court reduced the recovery obtained by an insurer that defended its insured from another insurer that breached its duty to defend – requiring the plaintiff insurer to pay its pro rata share of the risk.

  • Missouri Appellate Court: Insurer’s 537 Protections May Not Apply to Underlying Arbitration

    September 26, 2019

    In Britt v. Otto, 2019 Mo. App. LEXIS 397 (Mar. 26, 2019), the Missouri Court of Appeals opened the door to an argument that an insurer’s statutory right to intervene in a liability lawsuit after a 537 notice may not apply as to an arbitration conducted to determine liability and damages. The Court of Appeals affirmed a ruling denying the insurer the right to intervene in the action to confirm the arbitration award of $5,998,027.

  • Indiana Appellate Court Puts Insurers at Risk for Claims That Policy Quote Was Misleading

    September 26, 2019

    In Metal Pro Roofing, LLC and Cornett Restoration, LLC, v. The Cincinnati Insurance Company, 18A-PL-2205, 2019 Ind. App. Lexis 355 (Ind. Ct. App. August 9, 2019), the court affirmed a trial court decision that a policy clearly did not cover a hacking loss, but reversed and remanded the case for further proceedings on a claim that the quote for the policy was misleading.

  • Illinois Appellate Court Holds Dispute Over Attorney’s Lien Not Covered Under Legal Malpractice Policy

    September 26, 2019

    In Illinois State Bar Asso. Mut. Ins. Co. v. McNabola Law Group, P.C., 2019 IL App (1st) 182386, the Illinois Appellate Court held that a malpractice insurer did not owe a duty to defend its insured attorney against his client’s motion to adjudicate (and defeat) his lien. The insurer did not dispute its obligation to defend a related malpractice suit.

  • McMillin Homes Constr., Inc. v. Nat'l Fire & Marine Ins. Co.

    September 13, 2019

    (“Care, Custody and Control” Exclusion in Commercial General Liability Policy Only Applies Where the Insured Has Exclusive or Complete Control Over the Damaged Property)

  • Jozefowics v. Allstate Ins. Co.

    September 13, 2019

    (Depositing a Check With the Bank Constitutes a Loss Of Possession by a Transfer Such That UCC 3-309 Does Not Apply)

  • People Ex. Rel. Allstate Ins. Co. v. Suh

    September 13, 2019

    (An Insurance Claim is Fraudulent Within the Meaning of Penal Code Section 550 when It is False or Fraudulent in Any Respect, Even If There is No Misstatement in the Facts of the Claim)

  • Pitzer College v. Indian Harbor Insurance Company

    September 13, 2019

    (Notice-Prejudice Rule is a Fundamental Public Policy Which Applies to Choice of Law and Consent Provisions in Policy)

  • State Farm Mutual Automobile Insurance Company v. Mizuno

    September 13, 2019

    (Question Certified to the Hawai’i Supreme Court – Is a Permissive User of a Vehicle Entitled to Uninsured Motorist Coverage When Struck as a Pedestrian While Returning to the Vehicle After Running an Errand?)

  • Universal Cable Productions, LLC v. Atlantic Specialty Insurance Company

    September 13, 2019

    (War Exclusions Did Not Apply to Bar Claim for Costs Incurred by a Television Production Company Due to Relocation From Israel)

  • Nautilus Insurance Company v. Access Medical, LLC at el

    September 13, 2019

    (Certified Question to the Nevada Supreme Court Relative to Whether an Insurer May Recover Defense Costs Incurred in Connection with a Claim Which Was Not Covered by Its Policy)

  • Michael Mazik v. Geico General Insurance Company

    September 13, 2019

    (Regional Liability Administrator’s Conduct as Managing Agent on Behalf of Insurer in Connection with Evaluating UIM Claim Based on Selective Review of Medical Records Justified Imposition of Punitive Damages Against Insurer)

  • Not So Fast on the Meal and Rest Periods… For Now

    June 18, 2019

    Many trucking companies were celebrating the recent decision by the Federal Motor Carrier Safety Administrator (the Administrator) when, in pure Heisman trophy fashion, the Administrator “stiff-armed” California meal and rest period laws on his way to the proverbial end zone.

  • National Odd Shoe Exchange v. Davis Trucking: Email Signature Blocks Can Make or Break a Forum Selection Clause

    June 18, 2019

    An Arizona court recently ruled that language included in a motor carrier’s email signature block became part of the operative contract between the parties. The language at issue referenced and incorporated standard terms and conditions into all business transactions, and was included in the motor carrier’s offer of services. The court held that the email signature block, and, consequently, the terms and conditions, became part of the contract between the parties when the offer was unconditionally accepted. Brokers and carriers should take note of the clear benefits of referencing and incorporating their preferred terms and conditions into all of their written communications.

  • $80 Million Verdict Against South Texas Trucking Company in Log Falsification Suit

    June 18, 2019

    On May 7, 2019 a jury in Hidalgo County, Texas, awarded $80 million in damages to trucker Lauro Lozano following his allegations that the trucking company he worked for forced him to falsify his logs so that he could continue driving in violation of federal hours of service requirements.

  • Best Practices for Vehicle Registration Through IRP

    June 18, 2019

    International Registration Plan (IRP) is a reciprocity agreement among states of the U.S., the District of Columbia, and provinces of Canada which recognizes the registration of commercial motor vehicles issued by other jurisdictions. Motor carriers register with and pay to one jurisdiction (their “base jurisdiction”). Registered motor carriers receive apportioned plates and are able to travel through all IRP member jurisdictions. Commercial motor vehicles either alone or used in combination weighing more than 26,000 pounds (11,794 kilograms), and traveling in two or more jurisdictions, are likely registered under IRP.

  • California Trucking Association Appeal Over Driver Classification Rejected by U.S. Supreme Court, but Challenges to Dynamex Ruling Remain

    June 18, 2019

    On March 18, 2019, the United States Supreme Court denied without comment a petition by the California Trucking Association (CTA), which sought to overturn a ruling by the Ninth Circuit permitting the California Labor Commissioner's Office to use a worker classification standard known as the Borello test in disputes before the California Department of Industrial Relations (known as Berman hearings). Berman hearings are administrative proceedings that address wage claims under the California Labor Code. The Borello test is a set of factors used to determine worker classification (employee or independent contractor) pursuant to S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.

  • Centex Homes v. R-Help Construction Company, Inc.

    May 24, 2019

    (Subcontractor obligated to defend general contractor pursuant to an indemnity clause requiring a defense for liability arising out of the work of the subcontractor)

  • The Insurance Company of The State Of Pennsylvania v. American Safety Indemnity Company

    May 24, 2019

    (Subrogated insurer was entitled to collect on judgment entered against insured pursuant to Insurance Code Section 11580 as coverage for property damage sustained by home in underlying construction defect lawsuit was covered by the insured subcontractor’s policy)

  • Comments On Multiple Occurrences

    May 24, 2019

    Set forth below are summaries of California cases finding multiple occurrences in the context of constructive defect related claims. 

  • Ruling For Hanover Insurance

    May 24, 2019

    Our attorneys in the Chicago and Seattle offices teamed-up to secure a summary ruling in favor of Hanover Insurance on the trigger of a lawyer's professional liability policy. 

  • Ingenco Holdings, LLC v. Ace American Insurance Company

    May 23, 2019

    (Question of fact related to damage sustained by a gas purification plant required reversal of summary judgment in favor of insurer under property policy.)

  • Western Heritage Insurance Company v. Frances Todd, Inc.

    May 23, 2019

    (Insurer may not prosecute a subrogation action against an implied insured under a lease clause for fire damage sustained by property)

  • Komorsky v. Farmers Insurance Exchange

    May 23, 2019

    (An umbrella policy did not afford uninsured motorist coverage to parties which did not qualify as insureds under the umbrella policy)

  • Deere & Company v. Allstate Insurance Company

    May 23, 2019

    (Once SIRs were exhausted in connection with claims covered by underlying umbrella policies, insured was not obligated to pay additional SIRs for new claims triggered under excess policies)

  • Westport Insurance Corporation v. California Casualty Management Company

    May 23, 2019

    (Government Code Section 825.4 Does Not Contain a Blanket Ban on a Public Entity Employee’s Insurer Contributing to the Employee’s Defense and Settlement Costs as a Co-Defendant in a Lawsuit Against the Public Entity)

  • Case v. State Farm Mutual Automobile Insurance Company

    May 23, 2019

    (Insurer Did Not Commit Bad Faith in Requesting a Determination of the Eligibility of Payment of Medical Expenses through Workers’ Compensation System Prior to Paying Uninsured Motorist Benefits)

  • Schultz v. GEICO Casualty Company

    April 23, 2019

    (Colorado Supreme Court Limits Availability of Independent Medical Examination in UM/UIM Bad Faith Litigation)

  • Centeno v. American Liberty Insurance Company

    April 23, 2019

    (Trend in Arizona Bad Faith Litigation of Plaintiffs Suing Insurance Company and Third Party Administrators)

  • Century Surety Company v. Dana Andrew

    April 23, 2019

    (“Good Faith” Breach of Duty to Defend May Leave Insurer Liable for Excess Judgment)

  • Dove v. State Farm Fire & Casualty Company

    April 23, 2019

    (Any Potential for Coverage Triggers Insurer’s Duty to Defend Until the Parties’ Rights and Responsibilities are Judicially Determined)

  • New California Case Applying One-Year Statute of Limitations to Malicious Prosecution Claims Against Attorneys

    April 01, 2019

    On March 28, 2019, Division Five of the First Appellate District Court of Appeal published its opinion in Connelly v. Bornstein (Mar. 28, 2019, No. A152375 ___ Cal.App.5th ___, clarifying that the one-year statute of limitations applies to malicious prosecution actions brought against attorneys. 

  • Impact of Driver-Tracking Technology on Wage and Hour Litigation

    March 14, 2019

    Technology has made monitoring and tracking drivers and loads more streamlined than ever. Trucking companies have more options than ever to monitor drivers, loads, and fleet performance.

  • New Prime v. Oliveira: Independent Contractor Truck Drivers Exempt From Arbitration Under The FAA

    March 14, 2019

    In an 8-0 opinion, the Supreme Court ruled that New Prime, a Springfield, Missouri-based interstate trucking company cannot force its drivers to settle disputes through arbitration. See New Prime, Inc. v. Oliveira, No. 17-340, 2019 WL 189342 (U.S. Jan. 15, 2019).

  • FMCSA Finds That California Rest Break Rules Are Pre-Empted

    March 14, 2019

    On December 21, 2018, the Federal Motor Carrier Safety Administration made an announcement that California’s state meal and rest break rules are pre-empted by the federal hours of service regulations.

  • Liability For Accidents Involving Autonomous Vehicles

    March 14, 2019

    The law related to civil liability for accidents involving autonomous vehicles is new and evolving. Various companies are developing autonomous vehicles, which will provide a great number of benefits.

  • Fifth Circuit Affirms Summary Judgment in Favor of Vessel Owner in Jones Act Claim Regarding “Prompt and Adequate Medical Care”

    January 31, 2019

    In December 2018, the Fifth Circuit in Randle v. Crosby Tugs, LLC affirmed the lower court’s granting of summary judgment related to the plaintiff’s claim of Jones Act negligence.

  • Fifth Circuit Upholds Ruling That Operator of Tug Is Also “Operating” Oil Barge Being Towed For Purposes of OPA ’90

    January 31, 2019

    (United States of America v. Nature’s Way Marine, LLC, Environmental Pollution Group, LLC, Fifth Circuit No. 17-60698, decided September 21, 2018)

  • Ninth Circuit Clarifies Necessaries For Purposes Of a Maritime Lien

    January 31, 2019

    In Bunker Holdings Ltd. v. Yang Ming Liberia Corp., the Ninth Circuit Court of Appeals clarified what it means to order necessaries “on the order of the owner of a person authorized by the owner” under 46 U.S.C. Sec. 31342(a), so as to permit the entity furnishing necessaries to have a maritime lien.

  • Travelers Property Casualty Company of America v. Engel Insulation, Inc.

    January 07, 2019

    (Insurer May Not Pursue Subrogation as to Rights of Insured Suspended Corporation)

  • T-Mobile Usa Inc. v. Selective Insurance Company Of America

    January 07, 2019

    (Certifying Question as to Whether an Insurer May Be Bound by Agent’s Representation of Coverage on Certificate of Insurance)

  • Pacificare Life & Health Insurance Company v. Jones

    January 07, 2019

    (Regulations Pertaining to Definitions of Insurance Code Section 790.03’s Terms Valid)

  • Lat v. Farmers New World Life Insurance Company

    January 07, 2019

    (Notice Prejudice Rule Required Insured To Pay Life Insurance Benefits As It Did Not Sustain Actual Prejudice As A Result Of Late Notice Of A Claim For Benefits)

  • Mark Alan Jones v. IDS Property Casualty Insurance Company

    January 07, 2019

    (Per Person Policy Limit Included Claim for Loss of Consortium)

  • Thee Sombrero, Inc. v. Scottsdale Insurance Company

    January 07, 2019

    (Diminution Of Value Of Property Based On Limitation On Permitted Use Constituted Loss Of Use Of Tangible Property Under GL Policy)

  • Villanueva v. Fidelity National Title Co.

    September 24, 2018

    (Statutory Immunity Applies to Bar Causes of Action Predicated on Underwritten Title Company Charging for Services for Which No Rate Has Been Filed with the Department of Insurance)

  • Policy Interpretation - May Be Changing

    September 24, 2018

    In Liberty Surplus Insurance Corp. v. Ledesma & Meyer Construction Co., Inc., 5 Cal.5th 216 (2018), the California Supreme Court held, in answering a question certified to it by the United States Ninth Circuit Court of Appeals, that the employer’s (“Ledesma” or “L&M”) negligent hiring, retention and supervision of an employee (Hecht) who molested a student at a school construction site constitutes an “accident” as that term is used in the definition of “occurrence” in a general liability policy. In so holding, the Supreme Court found that the term “accident” is more comprehensive than the term “negligence” and includes negligence.

  • Additional Insured Endorsements - The Trend is Insured-Friendly

    September 24, 2018

    In Pulte Home Corp. v. American Safety Indem. Co., 14 Cal.App.5th 1086 (2017), the California Fourth District Court of Appeal affirmed the trial court’s decision that a duty to defend Pulte Home Corporation (“Pulte”) was triggered under three American Safety policies issued to subcontractors which included additional insured endorsements (“AIEs” or “endorsements”) affording coverage to Pulte for liability arising out of the named insured’s work, but only with respect to ongoing operations. Essentially, the Court of Appeal held that the language in the endorsements was ambiguous, such that a defense was owed to Pulte under the American Safety policies, notwithstanding American Safety’s attempt to limit coverage for Pulte to only the time that its named insured was working on a jobsite. 

  • Does Workers’ Compensation Cover Hate Crimes in the Workplace?

    August 14, 2018

    Hate crimes occur in the workplace in every state. However, across the nation there is very little case law explaining whether hate crimes are compensable under workers’ compensation law. California is one of the few states that has enacted legislation explicitly prohibiting the denial of workers’ compensation benefits based solely on an assailant’s hatred of an employee-victim based on their membership to a protected class. But most states’ workers’ compensation statues are not clear on whether hate crimes are compensable under workers’ compensation.

  • How Will California’s Formulary for Medication Impact California Claims?

    August 14, 2018

    Effective January 1, 2018, the Administrative Director of California adopted 23 new regulations, California Code of Regulations numbers 9792.27.1 through 9792.27.23, for the purpose of creating a “formulary for medication.” In the Administrative Director’s statement regarding the adoption of the formulary, the national and statewide issue of deaths related to the use of opioid medications was cited, as was the goal of providing “safer prescribing” of opioid pain relievers. The Administrative Director also cited the more general goal of “broadly updating” the Medical Treatment Utilization Schedule to allow patients to receive treatment which is “in accordance with the most recent standards of evidence-based care.”

  • Rhode Island Finds Date of Disablement as Trigger of Coverage in Repetitive Trauma Claims

    August 14, 2018

    The Appellate Division of the Rhode Island Workers’ Compensation Court recently took steps to clarify the sometimes vexing problem of which carrier is to be assigned liability in an occupational disease claim. In Auda Vielman v. Tiffany Co., W.C.C. 2013-0164, the court considered the claims of various insurers for a repetitive trauma which “occurred” over numerous years performing repetitive work as a jewelry assembler for the same employer.

  • Can Marijuana Intoxication Be a Viable Bar to Compensability?

    August 14, 2018

    With the increasing number of states legalizing marijuana, it’s clear that it will have an effect on the workplace injury compensability. While marijuana as a treatment for chronic pain has become a hot topic, a lesser known way in which marijuana can complicate the workers’ compensation system is less discussed: intoxication.

  • Rhode Island Reexamines Settlement Language

    August 14, 2018

    Settling workers’ compensation claims is often a method used to resolve difficult cases or those cases where high benefit exposure exists. The parties typically rely on standard and boilerplate settlement documents which have been previously approved by the court. The Appellate Division of the Rhode Island Supreme Court recently considered the use of such boilerplate language, and its decision on the use of certain standard language should cause all parties to consider and review their existing settlement documents more closely.

  • Is Marijuana Use Now an Acceptable Form of Treatment in California?

    August 14, 2018

    In 2016, California voters approved Proposition 64, the California Marijuana Legalization Initiative (CMLI), which legalized recreational marijuana in the state. The CMLI joins the Medical Marijuana Regulatory and Safety Act (MMRSA), a legislative package regulating medical marijuana consumption, and the Compassionate Use Act of 1996, which gives a person who uses medical marijuana a defense against specific state criminal charges for possession.

  • Jay Kramer Discusses “Hacktivism” with HealthcareInfoSecurity.com

    August 07, 2018

    New York Partner Jay Kramer was recently quoted by HealthcareInfoSecurity.com in the site’s article, “Boston Children’s Hospital DDoS Attacker Convicted.”

  • Fourth Circuit Affirms Conviction and Sentencing of Vessel Owner and Operator for Violations of APPS

    July 02, 2018

    On May 7, 2018, the Fourth Circuit in United States v. Oceanic Illsabe Limited affirmed the conviction and sentencing of a vessel owner and operator for violations of the Act to Prevent Pollution from Ships (APPS).

  • Court Rejects Argument That Forum Selection Clause Violates COGSA Because Forum Does Not Recognize In Rem Actions

    July 02, 2018

    On May 4, 2018, the Third Circuit in Liberty Woods International v. MV Ocean Quartz affirmed the District Court’s dismissal of the plaintiff’s action for cargo damages while onboard the MV OCEAN QUARTZ. The dismissal was based on the fact that the liability was governed under the carrier’s bill of lading, which contained a foreign forum selection clause for South Korea. The plaintiff appealed, arguing that section 3(8) of the Carriage of Goods by Sea Act (COGSA), which permits in rem suits, invalidates the South Korean forum selection clause because South Korea does not recognize in rem suits.

  • Lewis Brisbois Counsel Secures Dismissal LHWCA Complaint in New York

    July 02, 2018

    In Kopetic v. The Port Authority of New York & New Jersey (April 12, 2018), Lewis Brisbois’ client, a governmental entity who owns a container terminal in New York Harbor, was sued by an injured longshoreman who worked for the company operating the container terminal.

  • California Design Professionals’ Indemnity Obligations Limited Under 2018 Contracts

    June 18, 2018

    The California Legislature has narrowed the scope of enforceable indemnity agreements applicable to licensed architects, engineers, and land surveyors through its amendment of Civil Code § 2782.8. This represents an important development in the allocation of risk in the construction community, since Section 2782.8 previously limited indemnity clauses only as to design professional service contracts with local public agencies entered into on or after January 1, 2007. 

  • Lewis Brisbois Client Obtains Summary Judgment In New York Indemnity and Defense Claim

    June 18, 2018

    Lewis Brisbois recently obtained a summary judgment dismissal of a third-party suit alleging that the firm’s insured steel company client must indemnify and defend the general contractor in an injured worker's suit.

  • The California Supreme Court Weighs In On Residential Construction Defect Claims

    June 18, 2018

    In January of this year, the California Supreme Court finally decided the long-standing question of whether the “Right to Repair Act” (SB800) provides the sole remedy in California residential construction defect cases, or whether homeowners can also pursue common law remedies (such as strict liability, negligence, etc.) in McMillin Albany LLC v. Superior Court (2018) 4 Cal.5th 241.

  • California Supreme Court Holds That Contractors May Not Unreasonably Withhold Retention Payments

    June 18, 2018

    Until recently, there has been a split in the courts of appeal in California regarding the extent to which contractors are excused from the prompt payment requirement for retentions. One rule permitted contractors to withhold retention payments to subcontractors if there was any good faith dispute between them, whether or not the dispute was directly related to the work for which the retention was given. The other rule limited a contractor’s ability to withhold retention payments to good faith disputes which specifically involved the work for which the retention was held.

  • Federal Court Compels Arbitration of Contractor’s Claims Against Engineer

    June 18, 2018

    In a recent case, Lewis Brisbois successfully moved a federal court to compel arbitration of all of a contractor’s claims against an engineering firm and to preclude an interlocutory appeal of the ruling.

  • Drew Cass Published in New Mexico Law Review

    June 13, 2018

    Seattle Partner V. Andrew Cass recently co-wrote an article featured in the Summer 2018 issue of the New Mexico Law Review

  • Blockchain Tech After Murphy – A Good Bet?

    June 13, 2018

    In Murphy v. NCAA, 200 L. Ed. 2d 854 (2018), the United States Supreme Court held that provisions of the Professional and Amateur Sports Protection Act (PAPSA) – which prohibited the state authorization of sports gambling – were unconstitutional. 

  • All Green Electric, Inc. v. Security National Insurance Company

    June 12, 2018

    (Impaired Property Exclusion in Liability Policy Applied to Bar Coverage of Damages Arising Out of Negligently Installed Electrical Equipment for a Medical Scanner)

  • Nielsen Contracting, Inc. v. Applied Underwriters, Inc.

    June 12, 2018

    (Courts Can Determine Enforceability of Delegation Clauses Contained in Arbitration Provisions in a Reinsurance Participation Agreement When A Challenge Is Directed at Both the Delegation Clause and the Agreement as a Whole; Workers Compensation Carrier Required to Obtain Approval from the Department of Insurance of Reinsurance Participation Agreement Containing Arbitration Provisions)

  • Heckart v. A-1 Self Storage, Inc.

    June 12, 2018

    (Indemnity Agreement Sold in Connection with Rental of a Self-Storage Unit Did Not Constitute a Contract of Insurance Subject to Provisions of the Insurance Code and Title 10 of the Code of Regulations)

  • Dowdy v. Metropolitan Life Insurance Company

    June 12, 2018

    (Insured’s Pre-Existing Diabetes Not a Substantially Contributing Factor to Amputation of His Leg Post-Motor Vehicle Accident)

  • Liberty Surplus Insurance Corporation v. Ledesma & Meyer Construction Company, Inc.

    June 12, 2018

    (Negligent Hiring, Retention and Supervision of Employee Who Molested a Student Qualifies as an “Accident” Covered by Liability Policy)

  • Shelly Albert v. Truck Insurance Exchange

    June 12, 2018

    (Duty to Defend Underlying Lawsuit Alleging Interference With an Easement Is Triggered Under Personal Injury Coverage Afforded by Umbrella Policy)

  • David Doyle v. Fireman’s Fund Insurance Company

    June 12, 2018

    (First Party Property Policy Does Not Cover Fraudulent Sale of Purported Rare Wine)

  • Victaulic Company v. American Home Assurance Company

    March 19, 2018

    (Introduction Into Evidence of Denials in Response to Request for Admissions and Hostile Questioning of Witness by Trial Court, Along With the Mishandling of Witness’s Invocation of the Privilege Against Self Incrimination Required Reversal of Bad Faith Verdict in Favor of Insured)

  • Santa Clara Waste Water Company v. Allied World National Assurance Company

    March 19, 2018

    (Affirming Trial Court’s Grant of Orders for Prejudgment Attachment of Amounts Paid by Insurer on Noncovered Claim Where Insurer Proved “Probable Validity” of its Claims for Unjust Enrichment and Rescission)

  • McMillin Albany LLC v. Superior Court

    March 19, 2018

    (Right to Replace Act Is Exclusive Remedy for Construction Defect Actions Alleging Economic Loss or Property Damage)

  • Centex Homes v. St. Paul Fire and Marine Insurance Company

    March 19, 2018

    (Insured Is Not Entitled to Independent Counsel in Connection with the Defense of a Construction Defect Lawsuit)

  • Admiral Insurance Company v. Superior Court (Real Party in Interest a Perfect Match, Inc.)

    March 19, 2018

    (Letters Advising of Intent to File a Lawsuit Constituted Knowledge of Prior Incidents Barring Coverage of Later Filed Lawsuit Under Professional Services Policy)

  • Fifth Circuit Replaces 6-Factor Test of Maritime Contract Jurisdiction in Favor of 2-Factor Test in Kirby

    March 12, 2018

    In January 2018, the Fifth Circuit in In Re: In the Matter of the Complaint of Larry Doiron, Incorporated set aside the “confusing,” six-factor, fact-intensive test of maritime contract jurisdiction from Davis & Sons, in favor of the conceptual two-factor test laid out in Norfolk Southern Railway Co. v. Kirby.

  • Ninth Circuit Splits With Fifth Circuit in Deciding that Punitive Damages are Available in Unseaworthiness Cases

    March 08, 2018

    In January 2018, the Ninth Circuit in Batterton v. Dutra Group affirmed the lower court’s decision ruling that punitive damages are awardable to seamen in unseaworthiness actions. The Court relied on its 1987 decision in Evich v. Morris, where it “squarely held that ‘[p]unitive damages are available under general maritime law for claims of unseaworthiness’” and found that the U.S.

  • Fifth Circuit Re-examines Scindia Duties

    March 08, 2018

    In June 2015, an employee of Modern American Recycling Service (MARS) was killed when he stepped through an unmarked open hole on a platform. The hole was created by Manson Gulf, LLC during its decommissioning process of the platform.

  • Salyers v. Metropolitan Life Insurance Company

    December 13, 2017

    (Insurer Waived Enforcement of Provision Requiring Evidence of Insurability by Its Own & Employer’s Failure to Request

  • American Cargo Express, Inc. v. Superior Court

    December 13, 2017

    (California Self-Insurers’ Security Fund May Pursue Clients of Employee Leasing Business to Recover Excess Costs and Liabilities)

  • Citizens of Humanity v. Applied Underwriters, Inc.

    December 12, 2017

    (Nebraska Law Invalidating Arbitration Provision, in Conjunction with McCarran-Ferguson Act, Reverse Preempts Federal Arbitration Act)

  • Montrose Chemical Corporation of California v. S.C. (Canadian Universal Insurance Company)

    December 12, 2017

    (Supreme Court Accepts Petition for Review of Court of Appeal Decision Addressing the Trigger of Coverage Under Excess Policies)

  • McMillin Management Services, L.P. v. Financial Pacific Insurance Company

    December 12, 2017

    (Developer Qualifies as an Additional Insured Under Policies Limiting Additional Insured Coverage to Ongoing Operations Notwithstanding That Claims Against Developer Incepted After Completion of Homes)

  • The Travelers Property Casualty Company of America v. Actavis, Inc.

    December 12, 2017

    (Lawsuits Related to Opioid Painkillers Do Not Trigger a Duty to Defend Under CGL Policies As They Do Not Allege Facts Involving a Potential Accident And / Or Are Excluded By Products Exclusions)

  • California Court of Appeal Affirms That Unlicensed Contractor May Not Pursue Litigation

    December 05, 2017

    California’s Second District Court of Appeal recently threw out a potentially valid claim for breach of contract asserted by a contractor which failed to comply with the state’s contractor’s licensing requirements. The case is noteworthy not only for the holding, but also for the prominent defendant, Tesla founder Elon Musk’s SpaceX, a private space exploration company. 

  • Nevada High Court Rules that Homeowners Association Can Pursue New Purchaser Claims Under Original Chapter 40 Rules

    December 05, 2017

    The Nevada Supreme Court has found that homeowner associations have standing to pursue “representative” claims on behalf of any new purchasers who bought their units after the association had already initiated its lawsuit.

  • California Court of Appeal Finds Use of Term “Ongoing Operations” Ambiguous in Additional Insured Endorsement Favoring Developer

    December 05, 2017

    California’s Fourth District Court of Appeal in San Diego recently published a decision which benefits insureds and additional insureds, specifically developers and general contractors, at the expense of insurance companies. 

  • No Maritime Lien for the Replacement Cost of Inventory Not Delivered to Ferry

    November 30, 2017
  • Court Applies the Reasonable Foreseeability Test to the “Bare-Metal Defense” in Asbestos Case Under Maritime Law

    November 30, 2017
  • Eleventh Circuit Clarifies the Permissible Reach of Rule B

    November 30, 2017
  • Judge in New York’s Southern District Orders Rule B Attachment of Bank Accounts of Overseas Companies For Over $12.2M

    November 30, 2017
  • Zubillaga v. Allstate Indemnity Company

    September 27, 2017

    (Insurer Not Entitled to Summary Judgment on Bad Faith Claim Where Insured Introduced Evidence of Material Issue of Fact as to the Sufficiency of Insurer’s Investigation)

  • Tustin Field Gas & Food, Inc. v. Mid-Century Insurance Company

    September 27, 2017

    (Damage to a Fiberglass Sheath on a Gasoline Storage Tank Was, At Most, a Substantial Impairment to its Structural integrity, and Not Within the Limited Coverage for Collapse)

  • Hovannisian v. First American Title Insurance Company

    September 27, 2017

    (Title Insurance Obtained by Seller Does Not Provide Coverage for Title Defect Revealed after Foreclosure Sale to Buyer Absent Any Warranties as to Title)

  • Los Angeles Lakers, Inc. v. Federal Insurance Company

    September 27, 2017

    (Claim Under the Telephone Consumer Protection Act Is Per Se A Claim for Invasion of Privacy Within the Meaning of Policy Exclusion)

  • Global Modular, Inc. v. Kadena Pacific, Inc.

    September 27, 2017

    (Exclusions j.(5) and j.(6) Do Not Apply to Bar Damage Sustained by Non-Defective Work Performed by Subcontractor Which was Caused by the Subcontractor’s Defective Work and Delay Damages Assessed in Connection With Repairing Subcontractor’s Work Were Covered)

  • Montrose Chemical Corporation. v. Superior Court

    September 27, 2017

    (Application of Horizontal or Vertical Trigger of Coverage Under Numerous Excess Policies Depends on the Specific Language of Each Such Policy)

  • Pulte Home Corporation v. American Safety Indemnity Company

    September 27, 2017

    (Insurer Obligated to Defend Additional Insured General Contractor Under Endorsement Affording Ongoing Operations Coverage, Notwithstanding that Underlying Lawsuit Related to Homes Completed after Expiration of Insurer’s Policy)

  • Riddell, Inc. v. Superior Court

    September 27, 2017

    (Stay of Discovery Served by Insurers is Required Where Such Discovery Related to Factual Issues in Underlying Third Party Lawsuits)

  • Energy Insurance Mutual Limited v. Ace American Insurance Company

    September 27, 2017

    (Professional Services Exclusion Applied to Bar Coverage of Claims Arising Out of Pipeline Explosion)

  • Duarte v. Pacific Specialty Insurance Company

    September 27, 2017

    (Rescission of Liability Policy Barred Based on Ambiguous Questions in Application for Insurance)

  • Pa. Court Nixes $38.5M Award In Work Shooting Suit

    August 23, 2017

    On July 18, 2017, a Pennsylvania Superior Court reversed a $38.5 million punitive damages award in a fatal workplace shooting case. See Wilson v. U.S. Sec. Assocs., 2017 PA Super 226. A three-judge panel held that the claim for punitive damages was improperly allowed because it was introduced outside the statute of limitations. 

  • Texas Supreme Court Holds an Insurance Company’s Attorney Billing is not Discoverable on the Reasonableness of the Opposing Party’s Fee Claim

    July 13, 2017

    Following two hail storms which struck Hidalgo County in 2012, insured homeowners sued various insurers and claims adjustors, alleging underpayment of property damage claims and asserting statutory, contractual, and extra-contractual claims.

  • Indemnity? Insurance? Neither? Both? Fifth Circuit Denies Indemnity Claim but Remands for Determination of Additional Insured Coverage

    July 11, 2017

    A towing vessel damaged a Shell mooring line attached to a Shell a mobile offshore drilling unit in the Gulf of Mexico. After paying Shell’s damages, the towing vessel owner sued the owner of the assist towboat, claiming indemnity under the Master Service Agreement (“MSA”) between them. 

  • Lewis Brisbois Atlanta Coverage Team Makes New Law in Georgia

    July 11, 2017

    Atlanta Partner Seth Friedman and Associate Christopher Meeks obtained a ruling from the Georgia Court of Appeals that, absent very limited circumstances, third-party claimants do not have standing to bring a declaratory judgment action against an insurance company prior to obtaining a judgment against the insured. 

  • Louisiana Appellate Court Holds Exchange of E-mails Between Attorneys Insufficient to Bind Settlement

    July 11, 2017

    On May 11, 2017, the First Circuit Court of Appeals upheld the lower court’s denial of a Joint Motion to Enforce Settlement filed by Plaintiffs and Defendants/Appellants/JR Logging Inc., Jerry Avants, Jr. and Indemnity Insurance Company of North America. 

  • Louisiana Court Allows Recovery of Economic Loss in Admiralty Case, Refusing to Apply East River Doctrine

    July 11, 2017

    A helicopter ditched in the Gulf of Mexico due to engine failure. The pilot escaped unharmed, but the helicopter did not fare as well – it sank to the bottom. 

  • Texas Legislature Aims to Curb First-Party Property Insurance Abuses Occasioned by Weather Related events

    July 11, 2017

    It is no secret the state of Texas has experienced its fair share of foul weather and property damage claims within the last five years. In 2016, the state experienced one of, if not its most expensive hail and storm season in recent memory with an estimated half-a-million hail-damage claims alone. 

  • Fifth Circuit Upholds Order Requiring Seafood Company to Repay $1 Million Fraudulent Deepwater Horizon Claim

    July 11, 2017

    Appellant, Crystal Seafood Company, Inc. appealed an order of the lower holding the seafood processing company and two of its officers jointly and severally liable for a $1,034,228.42 payment received pursuant to a settlement of the company’s claim arising out of the Deepwater Horizon oil spill in April 2010. 

  • Fifth Circuit Upholds Dismissal of Louisiana Property Owner’s Suit Against Oil Company

    July 11, 2017

    In this case, Hess Corporation’s predecessor conducted oil operations on property located in Louisiana until 1971 and its oil and gas leases expired in 1973

  • In Texas, Surface Estate Owner Does Have the Ability To Allow Subsurface Horizontal Drilling Despite Separate Ownership Of The Mineral Estate

    July 11, 2017

    Anadarko wished to produce minerals beneath the Chaparral Wildlife Management Area controlled by the Texas Parks and Wildlife Department, which, though possible, was subject to considerable restrictions and expensive. 

  • Texas Appellate Court Advises if You Claim Under A Contract, You Are Subject To All Its Terms, Even Arbitration

    July 11, 2017

    This dispute arose out of Exxon’s attempt to obtain coverage as an additional insured under the umbrella policy issued to one of its contractors for its exposure arising from the April 2013 Exxon refinery fire which resulted in injuries to at least ten people, two of whom subsequently died. Exxon sued Lexington, as the umbrella carrier of Brock Services, who had three employees injured in the fire, for coverage. Lexington responded by moving to compel arbitration based on the arbitration clause in their policy. The trial court instead ruled the coverage dispute was easily determined “by a factual analysis requiring no interpretation of the policy itself,” and denied arbitration.

  • Fifth Circuit Makes Numerous Rulings Regarding Coverage for Insured’s Defense Costs and Denies Insurer’s Reliance on Billing Guidelines

    July 11, 2017

    In Aldous v. Darwin Nat’l Assurance Co., he plaintiffs, Charla Aldous and her law firm Charla G. Aldous, P.C. d/b/a Aldous Law Firm, sued their professional liability insurer, Darwin National Assurance Company, regarding defense costs Darwin owed, where plaintiffs’ attorney in the underlying malpractice suit also pursued claims for the insured and against the former client. 

  • Louisiana Court Finds Disputed Factual Issues In Maritime Negligence Case

    July 11, 2017

    In Ledet v. Parker Drilling Offshore USA, L.L.C., et al., following de novo review, the Louisiana First Circuit Court of Appeal found the trial court committed reversible error in resolving disputed factual issues and granting summary judgment in Defendants’ favor.

  • Laymon v. J. Rockcliff, Inc. – An Arbitration Clause Reminder

    July 07, 2017

    “California has a strong public policy in favor of arbitration,” and therefore, courts generally enforce arbitration clauses unless it is clear that the language of the clause does not cover the asserted dispute. 

  • SB 807 Will Allow More Texas Construction Disputes To Remain In Texas

    June 22, 2017

    On June 9, 2017, Texas Governor Greg Abbott signed SB 807 into law. In doing so, it will cause more litigation related to Texas construction projects to remain in Texas.

  • California Softens its Tough Licensing Law

    June 22, 2017

    Effective January 1, 2017, the Legislature has enacted a significant change to California’s strict contractor’s licensing law, providing some relief to contractors who have allowed their license to lapse through oversight or inadvertence – provided they can show that they acted “promptly and in good faith” in fixing the mistake. 

  • The State of Crawford in 2017

    June 22, 2017

    More than eight years ago, the California Supreme Court handed down Crawford v. Weather Shield (2008) 44 Cal.4th 541, holding that a contractual indemnitor must immediately assume an indemnitee’s defense, irrespective of whether it is determined that indemnity is actually owed.  

  • What Does Your Defense and Indemnity Construction Contract Mean in 2017?

    June 22, 2017

    California’s longstanding restrictions on defense and indemnity construction contracts have undergone several changes over the years with significant differences based upon the contract execution date.  

  • Is The Immediate Duty To Defend Gone? California Court of Appeal Holds That Attorney Invoices in Ongoing Litigation Are Privileged, Although Privilege Can “Expire” Upon Conclusion of the Case

    June 22, 2017

    Parties involved in California construction defect lawsuits over the past nine years are familiar with the following scenario: A developer/general contractor moves for summary adjudication of the contractual duty to defend owed by one or more subcontractors.   

  • California Court of Appeal Holds that Pre-Litigation Process In SB800 Applies To All Homeowner Defect Claims – Issue Before California Supreme Court

    June 22, 2017

    California’s Third District Court of Appeal recently clarified the scope of the Right to Repair Act, commonly known as SB-800 (“SB-800”).   

  • Knightbrook Insurance Company v. Payless Car Rental Systems

    June 20, 2017

    (Questions Regarding Application of Equitable Indemnity Principles Under Arizona Law Certified to Supreme Court of Arizona) 

  • Southern Insurance Company v. Workers’ Compensation Appeals Board

    June 20, 2017

    (Insurer Can Rescind a Workers’ Compensation Insurance Policy) 

  • Orzechowski v. Boeing Company Non-Union Long-Term Disability Plan

    June 20, 2017

    (California Insurance Code Section 10110.6 Voids Disability Plan’s Discretionary Clause) 

  • Pitzer College v. Indian Harbor Insurance Company

    June 20, 2017

    (California Supreme Court Grants Ninth Circuit’s Request to Respond to Certified Questions)

  • California Fair Plan Association v. Garnes

    June 20, 2017

    (Under Open Fire Insurance Policy, Insurer Required to Pay for the Cost of Repairing Kitchen Destroyed by Fire, Notwithstanding That the Cost of Such Repair Exceeded the Fair Market Value of the House)

  • Stein v. Axis Insurance Company

    June 20, 2017

    (Willful Misconduct Exclusion in Directors and Officers Policy Did Not Bar Insurer’s Obligation to Pay for Defense Expenses Incurred in Connection with Appeal of a Criminal Conviction Against the Insured)

  • Teleflex Medical Incorporated v. National Union Fire Insurance Company of Pittsburgh, PA

    June 20, 2017

    (Excess Insurer Breached the Implied Covenant of Good Faith and Fair Dealing By Failing to Defend or Agree to Contribute to a Reasonable Settlement Negotiated by the Insured and Primary Insurer)

  • Potential Unintended Consequences of the DOL Fiduciary Rule – Is an Overhaul in Order?

    April 11, 2017
  • Contract Calling for Work on Fixed Platform Deemed Maritime Contract

    April 03, 2017
  • Reconsidering Position on Covered Property Damage During Appraisal to Further Claim Resolution Does Not Warrant Bad Faith Damages

    April 03, 2017
  • “Turn-Around” Work Considered Part of Facility Owner’s Business In Establishing Tort Immunity for Statutory Employer

    April 03, 2017
  • Lewis Brisbois Successful in Getting Claims Against D&O Carrier Dismissed

    April 03, 2017
  • Louisiana Law Precludes Claim for Tortious Interference with Contract Against Employee Who is Not a Corporate Officer

    April 03, 2017
  • Unauthorized Debit Card Redemptions Are Not Covered by Computer Fraud Provision

    April 03, 2017
  • No Duty Owed By Architect To Adjacent Property Owner Under Louisiana Law

    April 03, 2017
  • Through a Condo Owner’s Looking Glass - A Shade of Green – or is that Gray?

    April 03, 2017
  • Collateral Source Rule Applies to Louisiana Workers’ Compensation Insurance Payments

    April 03, 2017
  • U.S. Fifth Circuit Finds no State or Federal Actionable Claims Against Oil and Gas Related Companies for Erosion of the Coastal Marsh

    April 03, 2017
  • Association of California Insurance Companies v. Jones

    March 16, 2017

    (Supreme Court Overturns Lower Courts’ Invalidation of 2011 Regulation regarding Replacement Cost Estimates)

  • Pitzer College v. Indian Harbor Insurance Company

    March 16, 2017

    (Question Regarding Whether California Notice-Prejudice Rule Applies to Bar Coverage Based on Insured’s Failure to Secure Consent for Remediation Costs Under First Party Pollution Policy Certified to the California Supreme Court)

  • Medina v. Geico Indemnity Company

    March 16, 2017

    (Non-Owned Vehicle Liability Coverage Is Not Afforded to Insured when Van Was Furnished for Business and Personal Use)

  • Special Room for One: Booking Requirements Under The Americans With Disabilities Act

    February 09, 2017
  • Recent Florida Case Law on Letters of Protection

    February 09, 2017
  • Avoiding Liability Arising from an E. Coli Illness Claim

    February 09, 2017
  • Federal Appellate Court Holds That Insurance Broker Owes No Duty of Care to Clients When Not Retained to Procure Specific Coverage

    January 11, 2017
  • New Court of Appeal Opinion Regarding Anti-SLAPP Timing

    December 28, 2016
  • Horiike v. Coldwell Banker - Dual Agent Liability

    December 22, 2016
  • Res Judicata Applied to FLSA Plaintiffs Based on Prior Opt-Out Class Action Settlement

    December 20, 2016
  • Motion to Compel Arbitration Should be Decided Before Conditional Certification of an FLSA Collective Action

    December 20, 2016
  • Fifth Circuit Finds Claims Against First-Party Insurer Time Barred Despite Absence of Written Denial

    December 20, 2016
  • Denial of Coverage for Temporary Substitute Automobile found to Violate Louisiana Public Policy

    December 20, 2016
  • Florida Supreme Court Holds Bad Faith By Insurer Not Required for Award of Insured’s Attorney’s Fees

    December 20, 2016
  • Texas Court Enforces Forum Selection Clause and Dismisses Case

    December 20, 2016
  • Fifth Circuit Interprets Collateral Source Rule to Limit Recovery by Plaintiff to Medical Expenses Paid by LHWCA Insurer

    December 20, 2016
  • Attorney Not Entitled to Defense Against Claim for Reimbursement of Fees

    December 20, 2016
  • Louisiana Court Refuses to Find Admiralty Jurisdiction over Personal Injury Occurring on a Trailered Vessel

    December 20, 2016
  • Florida Supreme Court Adopts Concurrent Cause Doctrine for Property Damage Claims With Multiple Causes

    December 20, 2016
  • California Appellate Court Analyzes When Attorney-Client Relationship Ends Stopping Tolling of Statute of Limitations For Legal Malpractice Claim

    December 13, 2016
  • The FCRA: A Little Planning Could Shield Employers from a Lot of Trouble

    December 13, 2016
  • Attorneys Liability Protection Society, Inc. v. Ingaldson Fitzgerald, P.C.

    December 12, 2016

    (Alaska Statute Denying Reimbursement of Defense Costs Incurred under Reservation of Rights in Defending Non-Covered Claims Preempted by LRRA) 

  • Nickerson v. Stonebridge Life Insurance Company

    December 12, 2016

    (Brandt Fees Constitute Compensatory Damages for Constitutional Analysis of Punitive Damages Award) 

  • Advent, Inc. v. National Union Fire Insurance Company of Pittsburgh, PA

    December 12, 2016

    (Because Named Insured Did Not Cause Job Site Personal Injury Accident And Named Insured’s Excess Policy Included a General Other Insurance Clause, Excess Insurer With Specific Excess Clause Is Not Entitled To Contribution For Settlement Of Personal Injury Lawsuit)

  • Tidwell Enterprises, Inc. v. Financial Pacific Insurance Company, Inc.

    December 12, 2016

    (Repeated Exposure to Heat Inside Fire Place Causing Damage to Surrounding Wood Timbers Triggered Potential Coverage Under General Liability Policy Notwithstanding that Actual Fire Took Place After Expiration of Such Policy)

  • Liberty Surplus Insurance v. Ledesma and Myer Construction

    December 12, 2016

    (Request For Certification Of Whether A Claim For Negligent Supervision Of Employee Related To A Claim For Intentional Conduct Of Such Employee Based On Sexual Molestation Constitutes An Accident Is Granted)

  • Mills v. AAA Northern California, Nevada and Utah Insurance Exchange

    December 12, 2016

    (Denial of Uninsured Motorist Claim is Proper Based on Cancellation of Automobile Policy)

  • Pre-Litigation Requirements For Condo Associations

    November 14, 2016
  • Two Year Statute Of Limitations Applies To Negligent Construction Defect Claims For Damage To Property

    November 14, 2016
  • Design Professional Protection Statute Withdrawn

    November 14, 2016
  • U.S. Antitrust Authorities Now Characterize Employee Wage-Fixing & No-Poaching Agreements Between Competitors As Criminal Behavior

    November 09, 2016
  • District Court Puts a Stop to the Importation of Products Liability Design Defect Principles Into the Consumer Fraud Context

    October 31, 2016
  • Supreme Court May Clarify Conspiracy Standard in Antitrust Class Action

    October 31, 2016
  • Washington Supreme Court Affirms Dismissal of Asbestos Related Wrongful Death Case on the Basis of the Statute of Limitations Over a Vigorous Dissent

    October 31, 2016
  • “Take-Home” Asbestos Exposures to be Taken Down a Notch?

    October 31, 2016
  • Texas Judge Dismisses 20,000 Cases Against BP in Benzene Release Lawsuit

    October 31, 2016
  • Challenging Whether Plaintiffs Pled Viable State Law Claims May be an Effective Strategy in Defending Consumer Data Breach Class Action Litigation Even Where Plaintiffs Can Meet Federal Article III Standing Requirements

    October 31, 2016
  • ‘Invitations To Collude’ Targeted By US And EU Enforcement

    October 07, 2016
  • Revisions to Madison County Standing Case Management Order For All Asbestos Personal Injury Cases: An Analysis and Summary

    September 30, 2016
  • A Strategy For Defeating Class Certification in Fair Debt Collection Practices Act Putative Class Actions

    September 30, 2016
  • All-Natural Class Action Suit in New York Federal Court Is Placed On Hold

    September 30, 2016
  • Court Rules That Website Did not Bind Consumers To Arbitrate Their Claims

    September 30, 2016
  • Maine Supreme Court Decision Clarified Causation in Asbestos Cases And Leaves Window Open for Sophisticated User Doctrine

    September 30, 2016
  • Update on Talc Litigation: “Made-for-Litigation” Testimony of Plaintiffs’ Experts Barred, Resulting in Dismissals

    September 30, 2016
  • Louisiana Court Upholds Application of Auto Exclusion in GL Policy for Inspection of Cargo Compartment of Delivery Truck

    September 27, 2016
  • Florida Federal Court Denies Bad Faith Failure to Settle Claim Where Insured’s Liability was Unclear

    September 27, 2016
  • Louisiana Supreme Court Adopts Pro Rata Approach to Defense Costs Allocation in Long Latency Cases

    September 27, 2016
  • Texas Court Rejects Policy Interpretation Extending Coverage To Well Blowout Expenses

    September 26, 2016
  • Fifth Circuit holds Floating Offshore Tension Leg Platform not a Vessel Under LHWCA

    September 26, 2016
  • Dueling Policies: When Excess Carriers Face Off In Mississippi

    September 26, 2016
  • Texas Supreme Court Reverses $71 Million Judgment and Upholds Policy Exclusion for Leased-in Workers

    September 26, 2016
  • Component Parts Not Covered After Removal From Scheduled Rig

    September 26, 2016
  • Louisiana Court Holds Documents Created by Loss Prevention and Claims Management Companies are not Protected as Work-Product

    September 26, 2016
  • Louisiana Court Upholds Award of $23 Million in Punitive Damages under General Maritime Law

    September 26, 2016
  • American Family Mutual Insurance Company v. Hansen

    September 22, 2016

    (Colorado Supreme Court Reverses Finding of Liability for Bad Faith Breach of Insurance Contract and Statutory Damages of Two Times the Cover Benefit with Unanticipated Holding that Insurance Policy was Unambiguous)

  • Demer v. IBM Corporation LTD Plan

    September 20, 2016

    (Skepticism of Perceived Financial Conflict of Independent Physician Consultants Reviewing Disability Claims) 

  • Truck Insurance Exchange v. Workers’ Compensation Appeals Board

    September 20, 2016

    (Notice to Employer Is Deemed Notice to Insurer, Defeating Argument of Laches as to Seven Year Delay in Filing Claim with Insurer) 

  • Travelers Casualty Insurance Company of America v. Hirsh

    September 20, 2016

    (Per Curiam Court Upholds Denial of Anti-SLAPP Motion while Concurring Judges Signal Willingness to Bar Future Anti-SLAPP Motions from Federal Court) 

  • People v. Lexington National Insurance Corporation

    September 20, 2016

    (Bail Forfeiture for Non-Appearance of Criminal Defendant Extends to Misdemeanor Charges) 

  • Baldwin v. AAA Northern California, Nevada & Utah Insurance Exchange

    September 20, 2016

    (Insurer Not Obligated to Compensate Insured for Lost Resale Value Upon Election to Repair Vehicle After Accident) 

  • Liberty Surplus Insurance Corporation v. Ledesma and Meyer Construction Company, Inc.

    September 20, 2016

    (Court of Appeals Certifies Question Regarding Whether a Claim for Negligent Supervision Constitutes an “Occurrence” as Defined in CGL Policies)

  • Barickman v. Mercury Casualty Company

    September 20, 2016

    (Insurer’s Refusal to Agree to Clause in Release Preserving Claimants’ Right to Restitution Constituted Bad Faith Entitling Third Party Claimants to Excess Judgment)

  • Ace American Insurance Company v. Fireman’s Fund Insurance Company

    September 20, 2016

    (Excess Carrier May Maintain Claim for Equitable Subrogation Notwithstanding the Absence of a Judgment in Excess of Primary Policy Limits)

  • Paslay v. State Farm General Insurance Company

    September 20, 2016

    (Question of Fact Existed Relative to Payment of Insurance Benefits Under First Party Property Damage Coverage Afforded by Homeowners Policy, However Claims for Bad Faith and Elder Abuse Were Barred by the Genuine Dispute Doctrine)

  • New CA Supreme Court Opinion on Anti-SLAPP Procedure Overturning the Mann Rule Regarding Mixed Causes of Action

    September 16, 2016
  • Recent TCPA Rulings Highlight Controversy Following Supreme Court’s Spokeo Decision

    September 12, 2016

    Reminiscent of the fable of the Elephant and the Blind Men, the United States Supreme Court’s splendidly opaque May 16, 2016 decision in Spokeo v. Robins has left counsel for both plaintiffs and defendants arguing that the decision supports their view of the requirement of “concrete and particularized” injury necessary to support Article III standing in Federal courts. 

  • 9th Circuit Rules Mandatory Class Action Waivers are Illegal in Morris, et al. v. Ernst & Young LLP, et al.

    August 31, 2016
  • Illinois Appellate Court Overturns Verdict in Asymptomatic Asbestos Case

    August 30, 2016
  • Retaining Fingerprint Information Does Not Necessarily Violate The Illinois Biometric Act

    August 30, 2016
  • When $100 Million Just Isn’t Enough – Court Rejects Uber’s Proposed $100 Million Class Action Settlement As Not Fair, Adequate and Reasonable

    August 30, 2016
  • A Look At Spokeo’s Impact On Consumer Financial Litigation

    August 30, 2016
  • Talc And The Possible Link To Cancer

    July 26, 2016
  • Oregon Court Of Appeals:  Manufacturers Are Liable For Asbestos-Containing Replacement Parts Sold By Others

    July 26, 2016
  • Ninth Circuit Holds That Fair Debt Collection Practices Act Requires Subsequent Collectors To Issue Rights Notices

    July 26, 2016
  • Approval Of Huge Class Settlement Reversed Based On Conflict Of Interest Of Class Counsel Representing Subclasses With Diverging Interests

    July 26, 2016
  • Even After Remijas V. Neiman Marcus, Courts Continue To Dismiss Data Privacy Class Actions For Lack Of Standing

    July 26, 2016
  • Now You See It, Now You Don’t – Trial Court Vacates Class Certification Post-Trial Wiping Out A $32 Million Award

    July 26, 2016
  • Crew Sublimit of Protection and Indemnity Policy Unambiguously Applied to Loss

    June 29, 2016
  • P&I Policy Does Not Cover Jones Act Seaman’s Land-Based Accident

    June 28, 2016
  • OCSLA Choice of Law Is Not Waivable, Inadvertently or Otherwise

    June 28, 2016
  • Louisiana Court Upholds Award of $309,174 in Attorneys’ Fees for Pursuit of Maintenance and Cure

    June 28, 2016
  • Responsible Party under OPA not responsible for damages resulting from government imposed Moratorium and Permitorium

    June 28, 2016
  • Third Party Claimant Denied Action for Bad Faith Without Valid Assignment Against Insurer

    June 28, 2016
  • Texas – Not a Direct Action State, Even for Third Party Beneficiaries

    June 28, 2016
  • Louisiana Statutory Employer Defense Not Contingent on Valid Indemnity

    June 28, 2016
  • Attorney-Negotiated Discounts Do Not Fall Within Collateral Source Rule

    June 28, 2016
  • D. Cummins Corporation v. United States Fidelity & Guaranty Company

    June 22, 2016

    (Controlling Shareholder Lacks Standing to Bring Declaratory Relief Action Against Subsidiary Corporation’s Insurer) 

  • California Insurance Guarantee Association v. Workers’ Compensation Appeals Board

    June 22, 2016

    (Agreement to Apportion Liability Among Multiple Insurers Does Not Terminate Joint and Several Liability) 

  • Nickerson v. Stonebridge Life Insurance Company

    June 22, 2016

    (Brandt Fees May Be Included In Calculation Of Punitive-Compensatory Damages Ratio In Determining Constitutionality Of Punitive Damages Awarded Against An Insurer, Notwithstanding Fees Award Made By Trial Court After Jury Verdict)

  • Certain Underwriters At Lloyds London v. Arch Specialty Insurance Company

    June 21, 2016

    (Primary Insurer Entitled to Contribution from Another Primary Insurer for Defense Cost Payments, Notwithstanding Clause in Insuring Agreement Requiring Payment of Defense Costs Only When There is No Other Insurance Affording a Defense)

  • U.S. Department of Justice Establishes Pilot Program to Encourage Companies to Self-Report Foreign

    May 17, 2016

    The United States Department of Justice (the “DoJ”) issued a memorandum on April 5, 2016 (the “Memorandum”) announcing a one-year pilot program[1] created to encourage companies to voluntarily self-report FCPA-related misconduct and to cooperate with the Fraud Section of the Criminal Division of the DoJ.[2] 

  • 2015 Year in Review: Interesting Developments

    May 01, 2016
  • Valuable Intellectual Property Assets that all Architectural Firms Should be Exploiting

    May 01, 2016
  • NJ: Failure to Provide Timely Notice Under “Claims Made” Policy Constitutes Breach of the Policy

    May 01, 2016
  • NY: Engineer/Controlled Inspector Denied Coverage Under General Liability Policy

    May 01, 2016
  • NY: Adverse Inference Charge Permitted Against Seller on Misrepresentation Claim Related to Defects

    May 01, 2016
  • Maryland: Economic Loss Rule Re-Affirmed

    May 01, 2016
  • NY: 9-Year Gap Between Design Professional’s Invoices Defeats Continuous Representation Doctrine

    May 01, 2016
  • New Jersey’s Often Confounding Affidavit of Merit Act

    May 01, 2016
  • FL Court Allows Insurer to Withhold Payment for Sinkhole Damage Repairs Until Contract is Entered

    March 31, 2016
  • Federal District Court in TX Dismisses Suit Against Claims Adjuster on Basis of Fraudulent Joinder

    March 31, 2016
  • Fact Findings of District Court Only Reversed on Appeal if Clearly Wrong

    March 31, 2016
  • 2016 Supreme Court Intellectual Property Cases

    March 29, 2016
  • Federal Fifth Circuit Finds Federal Jurisdiction over Oil Pipeline Pollution Suit

    March 28, 2016
  • Texas High Court Holds Loss-Of-Use Damages Available In Total Destruction Cases

    March 28, 2016
  • Insurers’ Oil Rig Coverage Trial Win Upheld By Federal Fifth Circuit

    March 28, 2016
  • Court Found Drill Ship Could be “Vessel in Navigation” Under Facts Presented

    March 28, 2016
  • Insurer Must Defend Additional Insured Based on Policy Alone, Without Reference to Contract

    March 28, 2016
  • Seaman Seeks En Banc Review of Employer Ruling In Transocean Pirate Attack Suit

    March 28, 2016
  • Claims Dismissed Against Deepwater Horizon Clean-Up Responders

    March 28, 2016
  • Nationwide Mutual Insurance Company v. Shimon

    March 28, 2016
  • Vardanyan v. AMCO Insurance Company

    March 28, 2016
  • Amco Insurance Company v. All Solutions Insurance Agency

    March 28, 2016
  • Haering v. Topa Insurance Company

    March 28, 2016
  • Nevada’s Cumis Rule: When Two Lawyers are Better than One

    March 15, 2016
  • “Am I My Brother’s Keeper” (Or, the Continued Evolution of Respondeat Superior Liability in Nevada)

    March 15, 2016
  • The Collateral Source Rule in Florida

    March 15, 2016
  • The California Innkeeper Statute Defense

    March 15, 2016
  • Summary Judgment on Maintenance and Cure Denied After Plaintiff Found at MMI and Question of Entitle

    December 23, 2015
  • Supreme Court of Texas Declines to Rule on Attachment of Excess Coverage

    December 23, 2015
  • A Federal Judge in Sinkhole Litigation applies Louisiana Law to one Excess Insurance Policy

    December 23, 2015
  • Louisiana Third Circuit Holds Accident Medical Expense Benefit Provision Ambiguous

    December 23, 2015
  • Texas Supreme Court Weighs In On Physical Injury Under CGL Policy - Incorporation or Actual Harm?

    December 23, 2015
  • Prompt Payment Required Under Policy Cannot Be Delayed Due to Potential for Contractual Indemnity

    December 23, 2015
  • Owner of Rig Lost in Hurricane Not Liable for Damage to Vessel that Later Allided with Sunken Rig

    December 23, 2015
  • LA Court Interprets “Arising Out Of” and “Additional Insured” Provisions in FEMA Trailer Contracts

    December 23, 2015
  • Failure to Accept or Deny Claim Within 15 Days of Receipt of Adequate Information Warranted Statutor

    December 23, 2015
  • Louisiana Third Circuit Affirms No Duty to Defend or Provide Coverage

    December 23, 2015
  • Grebow v. Mercury Insurance Company

    December 16, 2015
  • Underwriters of Interest Subscribing to Policy No. A15274001 v. ProBuilders Specialty Insurance Co.

    December 16, 2015
  • The Applicability Of California’s anti-SLAPP Statute to Alleged Legal Malpractice Actions

    December 02, 2015
  • The Virtues and Vices of Arbitrating Legal Malpractice Cases

    November 30, 2015
  • New California Court of Appeal Opinion Re: Howell and Payments from a Medical Finance Company

    October 30, 2015
  • California Court of Appeal Opinion Re: Howell Issues with an Uninsured Plaintiff

    October 09, 2015
  • California Court of Appeal Opinion Re: Code of Civil Procedure Section 998 Offers and Howell Issu

    October 09, 2015
  • Case Studies: The Illinois Vendor/Builder Exception To Premises Liability

    October 09, 2015
  • Texas Supreme Court: Relevant Evidence Of A Plaintiff’s Use Or Non-Use Of A Seat Belt Is Admissible

    October 09, 2015
  • Vargas: The Next Step in the ‘Peculiar’ Evolution

    October 09, 2015
  • 5th Circuit Declines to Use Period of Employment with Borrowing Employer to Determine Seaman Status

    October 01, 2015
  • Owner of Drilling Rig Not Liable for Injury Caused by Broken Flip-Flop

    October 01, 2015
  • On Katrina’s 10th Anniversary: MRGO Gone but Not Forgotten

    October 01, 2015
  • RSL Funding, LLC v. Alford

    September 28, 2015
  • First American Title Ins. Co. v. Spanish Inn, Inc.

    September 28, 2015
  • Fluor Corp. v. Superior Court

    September 28, 2015
  • 21st Century Insurance Company v. Superior Court

    September 28, 2015
  • Sequeira v. Lincoln National Insurance Company

    September 28, 2015
  • Hartford Casualty Insurance Company v. J.R. Marketing, L.L.C

    September 28, 2015
  • Williams v. National Union Fire Insurance Company of Pittsburgh, Pennsylvania

    September 28, 2015
  • Gradillas v. Lincoln General Insurance Company

    September 28, 2015
  • Kaady v. Mid-Continent Casualty Company

    September 28, 2015
  • Texas Case Warrants Over $4 Million in Attorneys’ Fees

    September 26, 2015
  • Warranty and Pollution Provisions of Marine Policies Upheld

    September 26, 2015
  • EPA Suit for CERCLA Cleanup Triggered CGL Insurer’s Duty to Defend

    September 26, 2015
  • Claims Made Policy’s Notice Provision Enforced By Texas Appeals Court

    September 26, 2015
  • Efforts Fail to Have Insurance Policy Buy Out Require Insured to Step into Shoes of Defunct Carriers

    September 26, 2015
  • Fifth Circuit Re-Visits Standing Law on Seaman Status

    September 26, 2015
  • Fifth Circuit Opens The Floodgates

    September 26, 2015
  • Recent Traffic Law Changes for NYC Drivers in Serious Accidents Can Impact Future Civil Litigation

    September 23, 2015
  • Dismissal Obtained in Trucking Rollover Accident Where Plaintiff Alleged Employer Misrepresentation

    September 04, 2015
  • New Case on Inadmissibility of Request for Admission Denials

    September 01, 2015
  • Shipping Between the United States and Canada: Does the Carmack Amendment Always Apply?

    September 01, 2015
  • New CA Court of Appeal Opinion Re: Legal Malpractice Statute of Limitations and Tolling

    August 27, 2015
  • New CA Court of Appeal Opinion Re: Attorney-Client Conspiracy Statute

    August 27, 2015
  • CA Court of Appeal Opinion re Causation in Legal Malpractice Action

    August 20, 2015
  • Texas Liability for Service of Alcohol to Minors

    July 14, 2015

    The Texas Alcoholic Beverage Code is the body of law which governs the sale of alcohol in the State of Texas. To legally purchase or consume alcohol in Texas, the law requires an individual to be over the age of 21.

  • NY Court Reaffirms Principle that Owner of Public Establishment Has No Duty to Protect Patrons

    July 14, 2015

    New York’s Appellate Division, Second Department recently reaffirmed the principle that an owner of a public establishment has no duty to protect patrons against unforeseeable and unexpected assaults.

  • Unreasonable Risks Of Harm In Texas Premises Liability Cases

    July 14, 2015

    In the typical Texas slip-and-fall or trip-and-fall case occurring on a business owner’s premises, the plaintiff is a business patron (invitee). This class of plaintiff is afforded the widest protection in a premises case.

  • Scheduled Policy Applied as Blanket Due to Ambiguous Policy Wording

    July 09, 2015
  • Borrowed Servant Doctrine Used to Avoid Vicarious Liability

    July 09, 2015
  • Gross Negligence Standard Reinforced in Context of Mardi Gras Immunity Statute

    July 09, 2015
  • No Coverage for $12 million Oil Well Loss As Claims Did Not Allege Property Damage

    July 09, 2015
  • Florida Construction Defect Notice Is Not A “Suit”

    July 09, 2015
  • Insured’s ACV Claim Reaches For The Stars, But Finds Them Falling…

    July 09, 2015
  • Law of the Case Doctrine Inapplicable: Policy Does Not Cover Rig Damages

    July 09, 2015
  • BP Drops Rehearing Motion For Transocean’s Policy After Settlement of Deepwater Claims

    July 09, 2015
  • Fifth Circuit’s Denial of Punitive Damages to Seamen in McBride Stands as Law of the Circuit

    July 09, 2015
  • Louisiana Supreme Court Provides Important Guidance on Bad Faith

    July 09, 2015
  • Jurisdiction: A Personal Matter—The Shrinking World of Jurisdiction in California

    July 02, 2015
  • Nevada Overhauls Construction Defect Laws For Residential Construction

    July 02, 2015

    Nevada’s construction defect laws – primarily NRS 40.600 et seq. -- have long been regarded as one (if not the) most plaintiff-friendly laws when seeking recovery for construction defects in residential construction.

  • Guam Industrial Services, Inc. v. Zurich American Insurance Company

    June 30, 2015

    (Costs to Recover Pollutants Sealed in Container Not Within Coverage for Pollution Remediation)

  • Stankova v. Metropolitan Property and Casualty Insurance Company

    June 30, 2015

    (Damage Caused by an Occurrence Excluded Under Standard Fire Insurance Policy Covered if a Covered Occurrence Was the Direct Cause of the Excluded Occurrence)

  • Prichard v. Metropolitan Life Insurance Company

    June 30, 2015

    (Standard for Review of a Denial of Disability Benefits Is De Novo When the Plan Documents Do Not Contain Grant of Discretion, Even Though SDP Does Contain Grant of Discretion)

  • Association of California Insurance Companies v. Jones

    June 30, 2015

    (Insurance Commissioner Does Not Have the Authority under UIPA to Promulgate a Regulation Providing Requirements Regarding Estimate Replacement Cost)

  • Centex Homes v. St. Paul Fire and Marine Insurance Company

    June 30, 2015

    (Developer Was Not Entitled to Independent Counsel Based on the Absence of an Actual Conflict of Interest Arising Out of Coverage Issues Related to An Insurer’s Reservation of Rights Agreeing to Defend Developer in a Construction Defect Lawsuit)

  • Albert v. Mid-Century Insurance Company

    June 30, 2015

    (Insurer Properly Denied Defense of Underlying Lawsuit For Intentional Tree Trimming Along Property Line)

  • Crown Capital Securities, L.P. v. Endurance American Specialty Insurance Company

    June 30, 2015

    (Exclusion In E & O Policy Barring Coverage Of Underlying Facts Or Circumstances Giving Rise To Later Reported Claims Applied To Bar Defense Of Subsequently Filed Claims Against An Insured Investment Advisor.)

  • Ong v. Fire Insurance Exchange

    June 30, 2015

    (Vandalism Exclusion Did Not Apply to Bar Property Loss Caused By Fire Started By Transient)

  • Break into Sports or Broke out of Sports?

    June 05, 2015
  • New Design Patent Law Streamlines International Patent Application Process

    June 05, 2015
  • Reassessing Options for Protecting IP Rights in Software Systems in the Wake of the Alice Decision

    June 05, 2015
  • Representations and Warranties Insurance in Deals: What Is It and Why Would You Need It?

    June 05, 2015
  • New Court of Appeal Opinion Re: Anti-SLAPP Motion and Mixed Causes of Action

    May 08, 2015
  • New CA Court of Appeal Opinion Regarding Mediation Confidentiality

    May 08, 2015
  • New Court of Appeal Opinion: Statute of Limitations for Misappropriation of Settlement Funds Claim

    May 08, 2015

    The Court of Appeal, Second Appellate District, Division One (LA), issued an opinion in Britton v. Girardi (Apr. 1, 2015, B249232) __ Cal.App.4th __, analyzing the statute of limitations in an action for misappropriation of and failure to account for settlement funds.

  • Indiana Supreme Court Leaves Door Open For Expanding Insurance Broker Duties

    May 08, 2015

    In March of this year, the Indiana Supreme Court issued a split decision in addressing a familiar fact pattern involving whether the extent of duty owed by an insurance broker included the duty to advise concerning the adequacy of coverage.

  • Representations and Warranties Insurance: What Is It and Why Would You Need It?

    April 22, 2015
  • Alterra Excess And Surplus Insurance Co. v. Estate Of Buckminster Fuller

    March 25, 2015

    (Intellectual Property Exclusion Applies to Bar Coverage of Underlying Lawsuit Based on Misappropriation of Name and Likeness)

  • Bonnie Dubeck v. California Physicians’ Service

    March 25, 2015

    (Health Insurer Waives the Right to Rescind Personal Health Policy Due to a Two Year Delay in Electing to Rescind Policy)

  • Jessica Gonzalez v. Fire Insurance Exchange

    March 25, 2015

    (Sexual Assault and Potential False Imprisonment Claim Did Not Constitute Personal Injury Caused by an Occurrence as Required by Primary Homeowners Policy, However, Because the Insured’s Personal Umbrella Policy Did Not Require an Occurrence In Order to Trigger Personal Injury Coverage, Trial Court is Required to Consider Whether The Duty to Defend is Owed Under the Umbrella Policy for the Underlying Lawsuit.)

  • Windsor Food Quality Company, Ltd. v. The Underwriters Of Lloyds Of London

    March 25, 2015

    (Contaminated Beef Provided by Supplier to Insured for Use in Manufacturing its Food Products Did Not Constitute an “Insured Product” Entitling Insured to Coverage for the Recall of Such Products Based on the Fear of Contamination.)

  • McMillin Companies LLC v. American Safety Indemnity Company

    March 25, 2015

    (The Trial Court’s Denial of Insurer’s Motion for Summary Judgment on Procedural Grounds Did Not Establish the Duty to Defend Under Insurer’s Policy. In Addition, the Insured Was Entitled to Try Its Claim For Damages Based on the Insurer’s Alleged Breach of the Duty to Defend, Not Withstanding That Insured Received Payment of Defense Costs From Other Insurers Exceeding Its Claim of Unreimbursed Fees and Damages.)

  • Coastal Surgical Institute v. Blevins

    March 25, 2015

    (Insurance Code Section 11583 Tolling Applicable Statute of Limitations Applies to Medical Malpractice Actions)

  • Fifth Circuit Accepts McCorpen Defense and Reverses District Court Award of Punitive Damages

    March 18, 2015

    Case:Meche v. Doucet
               5th Circuit Court of Appeals (Louisiana) 
               2015 U.S. App. LEXIS 946

  • Insurer Liable for $6.3 Million in Attorneys’ Fees and Costs in Katrina Coverage Dispute

    March 18, 2015

    Case: Cox Operating, LLC v. St. Paul Surplus Lines Insurance Company
               Civil Action No. 4:07-cv-02724
               Federal District Court, Southern District of Texas

  • TX Supreme Court Overrules Case Law & Allows Admissibility of Seat Belt Evidence to Apportion Fault

    March 18, 2015

    Case: Nabors Well Servs. v. Romero
               Texas Supreme Court
               2015 Tex. LEXIS 142  (2/13/15)

  • Louisiana Appellate Court Suggests Chandris’ 30% Rule for Seaman Status is Only a Guideline

    March 18, 2015

    Case: Baldwin v. CleanBlast, LLC
               Louisiana Third Circuit Court of Appeal
               2015 La. App. LEXIS 187 (La. App. 3 Cir. 02/04/15)

  • Federal District Judge Dismisses Coastal Erosion Lawsuit filed in LA Against Oil and Gas Industry

    March 18, 2015

    Case: Board of Commissioner of the Southeast Louisiana Flood Protection Authority – 
               
    East et al. v. Tennessee Gas Pipeline Company, LLC et al. 
               Federal District Court, Eastern District of Louisiana
               2015 U.S. Dist. LEXIS 18461 (2/13/15)

  • Yacht Club Sent Sailing Over Late Notice To Insurer

    March 18, 2015

    Case: Yacht Club on the Intracoastal Condo. Ass'n v. Lexington Ins. Co.,
               11th Cir. Court of Appeals (Florida)
                2015 U.S. App. LEXIS 293

  • Texas Supreme Court Restores Status Quo and Rejects BP’s Claim to Transocean’s Insurance

    March 18, 2015

    Case: In re Horizon
               Supreme Court of Texas
               2015 Tex. LEXIS 141 (2/13/2015)

  • Recent NY Case Regarding Cross-Claims For Common Law Indemnification and Summary Judgment

    March 06, 2015

    In another recent snow and ice case, the Appellate Division, Second Department addressed the important standards for cross-claims for common-law indemnification and summary judgment asserted by a co-defendant.

  • New York State’s Storm In Progress Doctrine

    March 06, 2015

    A defendant moving for summary judgment on personal injury claims predicated on snow and/or ice has the burden of establishing, prima facie, that it neither created the icy condition nor had actual or constructive notice of it. In New York, this burden may be met by present

  • Basics of Texas Tort Law

    March 06, 2015

    Joint And Several Liability

    Tex. Civ. Practice & Remedies Code §33.013

    Each liable defendant is jointly and severally liable for damages recoverable by the claimant if the defendant’s percentage of responsibility is greater than 50% or the defendant acted with specific intent to do harm and committed a felony (murder, kidnapping, etc.)

  • Case Study Regarding The Admissibility Of Standard Of Care Experts In Georgia

    March 06, 2015

    Jacqueline Toombs filed a medical malpractice case against Dr. Bruce Friedman, nurse practitioner Gena Markwalter and Acute Care Consultants, Inc. alleging that they were negligent in her husband’s post-surgical care. Charles Toombs, Jr. suffered a chemical burn to his left foot while at work in 2006. He underwent surgery at Doctor’s Hospital in Augusta, Georgia, to excise his wound and to apply a skin graft.

  • Edwards Wildman Palmer v. Superior Court

    February 23, 2015

    The attorney-client privilege has been a hallmark of Anglo-American jurisprudence for almost 450 years, yet its boundaries and confines remain subject to testing from litigants—including legal malpractice plaintiffs. Thus, the California Court of Appeal recently examined the applicability of the privilege in the context of intra-firm communications between attorneys regarding a dispute with a client in a subsequent action for malpractice by that client in Edwards Wildman Palmer LLP v. Superior Court (2014) 231 Cal.App.4th 1214.

  • Anten v. Superior Court

    February 11, 2015

    The Court of Appeal, Second Appellate District, Division One (LA) recently addressed the following issue: “[w]hen joint clients do not sue each other but one of them sues their former attorney, can the nonsuing client prevent the parties to the lawsuit from discovering or introducing otherwise privileged attorney-client communications made in the course of the joint representation?”

  • Brady, Vorwerck, Ryder & Caspino v. New Albertson’s, Inc.

    February 11, 2015

    In legal malpractice actions, jurisdictions have adopted differing approaches when applying the discovery rule to determine when a legal malpractice action accrues. In some jurisdictions, the statute of limitations for a legal malpractice action is deemed to begin to run when a claimant sustains some, but not necessarily all, damages.

  • Stephens & Stephens XII, LLC V. Fireman’s Fund Insurance Co.

    December 19, 2014

    (Insurer required to pay conditional actual cash value of property under commercial property policy pending insured’s actual repair of damaged property in order to claim full replacement cost coverage.)

  • Elliott v. Geico Indemnity Company

    December 19, 2014

    (Insured is not entitled to underinsured motorist benefits, wherein the total recovery made from third party motorist and her employer exceeded the available underinsured motorist limits afforded by insured’s policy.)

  • Graciano v. Mercury General Corporation

    December 19, 2014

    (Insurer’s response to policy limits demand within time limit set by third party claimant, notwithstanding claimant’s counsel’s failure to identify the proper insured and policy number, constituted good faith requiring reversal of underlying bad faith lawsuit judgment.)

  • Louisiana State Court Declares Unconstitutional New Bill Passed to Prohibit Coastal Erosion Lawsuit

    December 19, 2014

    Case: The Louisiana Oil & Gas Assoc., Inc. v. Hon. James D. Buddy Caldwell
               19th Judicial District Court, East Baton Rouge Parish, Louisiana

  • No Duty to Defend Well Blow-Out Suit Based on Professional Services Exclusion

    December 19, 2014

    Case: Nicklos Drilling Co. v. ACE American Insurance Co.
               U.S. District Court for the Southern District of Texas
               2014 U.S. Dist. LEXIS 156585 (S.D. Tex. 11/5/2014)

  • Fifth Circuit Permits Excess Carrier’s Bad Faith Claim Against Primary Insurer

    December 19, 2014

    Case:RSUI Indemnity Co. v. American States Ins. Co.
               United States Fifth Circuit Court of Appeals
               768 F.3d 374 (11/25/ 2014)

  • Louisiana Court Interprets Indemnity Provision in MSA Narrowly to Preclude Indemnity

    December 19, 2014

    Case: Underwriters at Lloyd's Syndicate 1036 v. Danos & Curole Marine Contrs., L.L.C.
              
    Louisiana Third Circuit Court of Appeal
               2014 La. App. LEXIS 2350 (10/1/2014)

  • Fifth Circuit Limits Effect of Contractual Liability Exclusion

    December 19, 2014

    Case: Crownover v. Mid-Continent Casualty Co.,
               5th Circuit Court of Appeals
               2014 U.S. App. LEXIS 20737 (10/29/2014)

  • Texas Appellate Court Upholds Ogea Rule and Requires Exhaustion of Additional Insured Coverage

    December 19, 2014

    Case: Hercules Offshore v. Excell Crane & Hydraulics, Inc.
               Tex. App. Houston 1st Dist.
               2014 Tex. App. LEXIS 12557 (11/20/2014)

  • “Other Insurance” Does Not Turn Potential Indemnity Claim Into Underlying Insurance

    December 19, 2014

    Case: In Re: Deepwater Horizon, Cameron Int’l Corp. v. Liberty Ins. Underwriters, Inc., a/k/a Liberty Int’l Underwriters, 
             
    2014 U.S. Dist. LEXIS 155043
              
    Federal Eastern District of Louisiana
              MDL No. 2:10-md-02179 (10/31/2014)

    Appeal: In Re: Deepwater Horizon, Cameron Int’l Corp. v. Liberty Ins. Underwriters, Inc., a/k/a Liberty Int’l Underwriters
                  Federal Fifth Circuit Court of Appeals
                  No. 14-31321

  • Federal Court Applies Bacteria Exclusion to Preclude Coverage for Legionnaires Disease Class Action

    December 19, 2014

    Case: Paternostro v. Choice Hotel Int'l Servs. Corp.
               Federal District Court, Eastern District of Louisiana
               2014 U.S. Dist. LEXIS 161157 (11/14/ 2014)

  • Federal District Court Sets the Stage for Review of Punitive Damages Constitutional Ceiling

    December 19, 2014

    CaseAllen v. Takeda Pharms. North Am., Inc. (In re Actos® (Pioglitazone) Prods. Liab. Litig.)
              Federal District Court, Western District of Louisiana, Lafayette Div.
              2014 U.S. Dist. LEXIS 152066 (10/27/14)

  • Fifth Circuit Rules that Punitive Damages are Not Available to Seamen

    December 19, 2014

    Case: McBride v. Estis Well Serv., L.L.C.
              United States Fifth Circuit Court of Appeals (en banc).
              768 F.3d 382 (5th Cir. La. 2014).

  • Carve Up Claims & Recover Fees for Your Client or Carrier – 91a Motion to Dismiss

    December 03, 2014

    Texas Rule of Civil Procedure 91a became effective March 1, 2013, and is similar to Federal Rule of Civil Procedure 12(b)(6); however, there are some key differences including, but not limited to, the requirement that the court award the prevailing party its costs and attorneys’ fees. TEX. R. CIV. P. 91a.7. Initially, Texas litigators shied away from using Rule 91a for fear of having mandatory fees imposed against their clients or carrier for filing the motion to dismiss. A body of law is slowly developing which interprets and strictly construes Rule 91a. As the common law evolves, it emboldens the Texas Defense Bar to take advantage of this powerful tactical cost shifting tool.

  • ‘Holt’ Demands: An Advancement, But Not a Categorical Solution

    December 03, 2014

    Plaintiffs frequently avail themselves of what has been labeled ‘Holt demands’ as was established in S. General Ins. Co. v. Holt, 262 Ga. 267 (1992). In Georgia, liability insurance providers owe a duty to an insured to act in good faith in settling their liability. ‘Holt’ demands are a means plaintiffs, through their attorneys, can set up and bring bad faith claims against their insurer if the insurer does not pay policy limits within the time specified in the pre-suit demand. Should the insurer not pay the policy limit demand within the deadline and the verdict ultimately exceeds the policy limit, the insured could file or assign the right to file an action for the entire amount of the judgment plus interest. This reality necessarily eradicates a defendant’s policy limits. In bad faith cases, juries determine whether the insurer acted in “bad faith” in rejecting the plaintiff’s pre-suit demand, consequently exposing the insured to a potential excess judgment.

  • Defending Property Owners in NY Against Trip & Falls Caused by Sidewalk Stones, Trees, & Tree Wells

    December 03, 2014

    Pedestrians trip and fall for many reasons. Some fall because they are clumsy or not paying attention, while others are caused to fall due to the condition of the sidewalk. The City of New York, as well as many other municipalities around New York State, is actively involved in the beautification of its sidewalks, including installation of decorative sidewalk stones or bricks. These cities also direct the planting of trees within dirt or grass-filled “tree wells” embedded in the sidewalk. However, because contractors do not install them correctly or due to the effects of weather, trees may break or die and tree wells and stones may become uneven, creating a tripping hazard and exposing the adjacent property owner to liability.

  • Sabia v. Orange County Metro Realty, Inc.

    November 21, 2014

    After the Court of Appeal reversed an order compelling arbitration, the California Supreme Court has granted the firm's petition for review in Sabia v. Orange County Metro Realty, Inc., et al., S220237. In Sabia, the plaintiffs in  a putative class action alleged they signed loan modification agreements that contained an arbitration clause that only required the plaintiffs to arbitrate their claims against the defendants (not vice versa).

  • Stine v. Dell’Osso

    November 20, 2014

    Last month, the California Court of Appeal, First Appellate District, Division One (San Francisco) issued an opinion in Stine v. Dell’Osso, 2014 Cal. App. LEXIS 1039, analyzing “whether a successor conservator can sue for legal malpractice committed in connection with the representation of a prior conservator, and if so, whether malfeasance while serving as conservator.” (Slip opn., p. 4.)

  • Grace v. Law

    November 20, 2014

    On October 21, 2014, in Grace v. Law, the New York Court of Appeals issued a ruling that clarifies an issue that had been somewhat unclear with respect to attorney malpractice litigation. The Court held that in a malpractice action arising from an underlying litigated matter, the failure of the malpractice plaintiff to pursue an appeal of the underlying adverse ruling will only bar a subsequent legal malpractice case if it can be determined that the appeal was likely to have succeeded.

  • Zucchet v. Galardi

    November 20, 2014

    New Court of Appeal Opinion re: Anti-SLAPP Statute in Malicious Prosecution Case Arising from Testimony in Criminal Prosecution

  • Schmidt v. Coogan

    November 20, 2014

    The Washington Supreme Court issued a divided opinion in Schmidt v. Coogan, 2014 Wash. LEXIS 838, which will significantly impact future legal malpractice cases in Washington. The long-running and convoluted case presented two questions of first impression: (1) whether the elements of legal malpractice include the collectability of an underlying judgment; and (2) whether emotional distress damages are available in legal malpractice cases. Answering the first question, the Court adopted the growing trend to make the uncollectability of a underlying judgment an affirmative defense that negligent attorneys must plead and prove.

  • Baek v. Continental Casualty Group

    October 15, 2014

    (Massage therapist did not qualify as an insured in connection with the sexual assault of a customer as his conduct did not occur in the course and scope of his employment by the named insured)

  • Mercury Casualty Company v. CHU

    October 15, 2014

    (Exclusion in automobile policy purporting to exclude coverage of lawsuit brought by non-relative resident against named insured is invalid and against public policy)

  • Scottsdale Indemnity Company v. National Continental Insurance Company

    October 15, 2014

    (Insurance policy scheduling tractor and trailer is deemed primary to policy affording coverage for tractor and trailer but not scheduling such vehicles)

  • Jon Davler, Inc. v. Arch Insurance Company

    October 15, 2014

    (Employment related practices exclusion applied to bar coverage of lawsuit filed by employees for sexual harassment, invasion of privacy and false imprisonment)

  • Douglas v. Fidelity National Insurance Company

    October 15, 2014

    (Question of fact regarding whether insurance services company producer was acting as an agent on behalf of homeowner’s insurer or broker on behalf of the insured required reversal of jury verdict in favor of insureds for bad faith and punitive damage as improper jury instructions relating to status of the producer impacted insurer’s affirmative defense of rescission)

  • Encompass Insurance Company v. Coast National Insurance Company

    October 15, 2014

    (Act of rescuing person from wrecked vehicle constitutes “use” under automobile insurance policies.)

  • Interstate Fire & Casualty Company, Inc. v. Roman Catholic Church Of The Diocese Of Phoenix

    October 15, 2014

    (Assault and battery exclusion applying to “any insured” barred coverage of the Archdiocese for sexual abuse claims)

  • Sutter Health v. Superior Court

    October 15, 2014

    (Class action based on breach of confidentiality of Medical Information Act arising out of the theft of a lap top computer containing medical information failed to state a cause of action absent an allegation that an unauthorized person had viewed the informational records)

  • “Open and Obvious” Conditions Result in Summary Judgment For Defendants In Two Recent New York Cases

    September 24, 2014

    Mathis v. D.D. Dylan, LLC and Benjamin v. Trade Fair Supermarket, Inc.

    In two recent decisions issued on the same day, the Appellate Division, Second Department granted summary judgment to defendants on the issue of whether a condition was open and obvious as a matter of law. Both decisions involved plaintiffs tripping over boxes. Notably, the Appellate Divisions of New York often hold that whether a condition is open and obvious is a question of fact for the jury.

  • New York Court Precludes Plaintiff from Raising Theory of Recovery in Opposition To Summary Judgment

    September 24, 2014

    Palka v. Village of Ossining

    The Appellate Division, Second Department recently reaffirmed the longstanding principle that a plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment if that theory is not contained within the complaint or bill of particulars. Notably, the Court did not allow the plaintiff to amend the pleadings on appeal, even though such leave is freely granted in New York.

  • California Supreme Court Decides Business Owner Does Not Have A Duty To Have External Defibrillator

    September 24, 2014

    Verdugo v. Target Corp.

    The California Supreme Court issued an opinion in Verdugo v. Target Corp. (June 23, 2014, S207313) ___ Cal.4th ___ , analyzing whether “the common law duty of reasonable care that common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency.” (Ibid.)

  • California Issues New Opinion Regarding Recovery of Past Medical Expenses

    September 24, 2014

    Ochoa v. Dorado (July 22, 2014, B240595) ___ Cal.App.4th ___

    The California Court of Appeal, Second Appellate District, Division Three (Los Angeles), issued an opinion in Ochoa v. Dorado (July 22, 2014, B240595) ___ Cal.App.4th ___, analyzing the issue of damages for past medical expenses. The court concluded “that (1) unpaid medical bills are not evidence of the reasonable value of the services provided and (2) no expert witness declaration is required for a treating physician offering an opinion based on facts acquired in the physician-patient relationship or otherwise acquired independently of the litigation, including, to the extent it is otherwise admissible, an opinion on reasonable value.” (Slip opn., p. 2.)

  • Nevada Supreme Court Declines to Extend Assumption of Risk Doctrine used in Sporting Venues

    September 16, 2014

    Recently the Nevada Supreme Court declined to extend the “primary assumption of the risk” doctrine used in sporting context to injuries suffered by an invitee at the Palms Casino Sports Book who was injured when a promotional model was tossing out free souvenirs.

  • Recent Developments On The “Same Level Rule” And New York Labor Law 240(1)

    September 16, 2014

    New York Labor Law § 240(1), commonly referred to as the Scaffold Law, provides that “all contractors and owners and their agents, except owners of one and two-family dwellings who contract for, but do not direct or control the work, in the erection, demolition, repairing, altering, painting, cleaning or pointing of a building or a structure shall furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders, slings, hangers, blocks, pulleys, braces, irons and other devices which shall be so constructed, placed and operated as to give proper protection to a person so employed.”

  • Outside Coverage Counsel’s File Discoverable in Bad Faith Litigation

    September 16, 2014

    Case: Willis v. Allstate Ins. Co.,
               Federal Court for the Southern District of Mississippi
               2014 U.S. Dist. LEXIS 64963

  • Section 905(b) of the LHWCA Applied to Void Indemnity Under Contract and Insurance Policy

    September 16, 2014

    Case: Holden v. U.S. United Ocean Servs., L.L.C.
              United States Court of Appeals for the Fifth Circuit (Louisiana)
              2014 U.S. App. LEXIS 15954

  • Texas Jury Award of Bad Faith Penalties Upheld by Appellate Court

    September 16, 2014

    Case: United National Insurance Company v. AMJ Investments, LLC
              Texas Court of Appeals
              2014 Tex. App. LEXIS 6969

  • Excess Policies Triggered for Hurricane Ike Claims Even Where Underlying Policies Were Exhausted

    September 16, 2014

    Case: Indem. Ins. Co. v. W & T Offshore, Inc.
               United States Fifth Circuit Court of Appeal (Texas)
               2014 U.S. App. LEXIS 11775

  • Total Pollution Exclusion Upheld Despite Endorsement Adding Coverage for Underground Resources

    September 16, 2014

    CaseLiberty Mutual Ins. Co. v. Linn Energy, LLC
               United States Court of Appeals for the Fifth Circuit (Texas law)
               2014 U.S. App. LEXIS 12353; 2014 WL 2925161

  • Louisiana High Court Upholds Enforceability of Claims-Made-And-Reported Policy Provisions

    September 16, 2014

    Case: Gorman v. City of Opelousas
               Louisiana Supreme Court
               2013-1734 (La. 07/01/14), 2014 La. LEXIS 1573

  • BP Bears Brunt of Liability for Macondo Spill and Accompanying Statutory Liability

    September 16, 2014

    Case: In Re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico on April 20, 2010
              Federal District Court, Eastern District of Louisiana
              MDL 2179 (Judge Barbier September 4, 2014)

  • Vernon v. Aacres All Vest, LLC

    September 10, 2014

    The Court of Appeals, Division II issued a published opinion today in Vernon v. Aacres All Vest, LLC, Cause No. 44328-7-II, affirming in apart and reversing in part a trial court decision summarily deciding wrongful death and survivorship claims. Henry David Vernon (“David”) was born severely disabled and was completely dependent on others for his health and personal care needs.

  • Old Republic Construction Program Group v. The Boccardo Law Firm, Inc.

    September 10, 2014

    Last week, the Court of Appeal, Sixth Appellate District (Santa Clara), issued an opinion in Old Republic Construction Program Group v. The Boccardo Law Firm, Inc., (June 27, 2014, H037989) __ Cal.App.4th ___, analyzing the anti-SLAPP statute.

  • Paramount Petroleum Corp. v. Super. Ct.

    September 10, 2014

    Today, the Court of Appeal, Second Appellate District, Division Three (LA), issued an opinion in Paramount Petroleum Corp. v. Super. Ct. (June 20, 2014, B253290) __ Cal.App.4th ___, analyzing whether summary adjudication can be granted in favor of a plaintiff on liability alone, leaving the resolution of damages to a later trial.

  • Dan’s Trucking, Inc. v. Kerr Contractors, Inc.

    September 10, 2014

    The Court of Appeals, Division II issued a published opinion on August 19, 2014 in Dan’s Trucking, Inc. v. Kerr Contractors, Inc., Cause No. 44342-2-II, which analyzes a request for a trial de novo following an arbitrator’s ruling awarding attorney fees.

  • Johnston-Forbes v. Matsunaga

    September 10, 2014

    The Washington Supreme Court issued an opinion on August 28, 2014 in Johnston-Forbes v. Matsunaga, Cause No. 89625-9, addressing the admissibility of biomechanical engineering expert testimony in an automobile collision case

  • Humphries v. Eighth Judicial District Court

    September 10, 2014

    In recent years, litigants in Nevada have encountered ambiguity in the law when determining whether or not a plaintiff was required to name additional cotortfeasors as defendants in order to avoid the prospect of dismissal for the failure to name a necessary and indispensable party.

  • Peake v. Underwood

    September 10, 2014

    In June 2014, the Court of Appeal, Fourth Appellate District, Division One (San Diego), issued an opinion in Peake v. Underwood (June 25, 2014, D061267) 227 Cal. App. 4th 428 (2014), analyzing Code of Civil Procedure Section 128.7, which provides a trial court with discretionary authority to impose sanctions when a party files a pleading that is factually or legally frivolous. (Slip op., p. 2.)

  • Beacon Residential etc. Assn. v. Skidmore, Owings & Merrill

    September 10, 2014

    The California Supreme Court recently issued an opinion in Beacon Residential etc. Assn. v. Skidmore, Owings & Merrill (July 3, 2014, S208173) 59 Cal. 4th 68 (2014), analyzing an issue that had not previously been decided by the California Supreme Court — whether an architect who provides services to a residential developer may be liable to the eventual purchasers of the residences for negligence in the rendition of those services in the absence of privity.

  • Moua v. Pittulo

    September 10, 2014

    In July, The California Court of Appeal, Second Appellate District, Division Two (Los Angeles), published its opinion in Moua v Pittulo: 228 Cal. App. 4th 107 (2014), thanks to the efforts of Los Angeles Lewis Brisbois partner Ken Feldman, who drafted a publication request on behalf of the Association of Southern California Defense Counsel.

  • Maslo v. Ameriprise Auto & Home Insurance

    July 15, 2014
  • Upasani v. State Farm General Insurance Company

    July 15, 2014
  • Regional Steel Corporation v. Liberty Surplus Insurance Corporation

    July 15, 2014
  • Hartford Casualty Insurance Company v. Swift Distribution, Inc.

    July 15, 2014
  • Street Surfing, LLC v. Great American E & S Ins. Company

    July 15, 2014
  • Pyramid Technologies, Inc. v. Allied Public Adjusters, Inc.

    July 15, 2014
  • Progressive Gulf Insurance Company v. Faehnrich

    July 15, 2014
  • Global Hawk Insurance Company v. Le

    July 15, 2014
  • 3rd Eye Cam: Unmatched Driver Monitoring & Fleet Management By Alliance Wireless Technology, Inc.

    July 07, 2014

    Alliance Wireless Technologies, Inc. (AWTI) is proud to introduce their new state-of-the-art technology, 3rd Eye Cam to the Commercial Trucking Industry.

  • Texas Hospital Liens

    July 07, 2014

    On May 16, 2014, the Texas Supreme delivered a decision which alters the practices of insurance companies and defense firms with regard to hospital liens.

  • Dodd v. Cruz: A Response to Attempts to Circumvent Howell and Corenbaum

    July 07, 2014

    The California's Second District Court Of Appeal’s issued an opinion in Dodd v. Cruz (Feb. 5, 2014, B247493) __ Cal.App.4th __, on February 5, 2014, holding that critical information from third party medical lien purchasers is discoverable because it is relevant to the "reasonable value" of past medical services provided.

  • When Goods Disappear or Are Damaged during Transportation, Whose Bill of Lading Controls Shipment?

    July 07, 2014

    It is common to have more than one transportation company involved in a shipment due to the increase in intermodal shipments, the expansion of the number of brokers, and the periodic lack of capacity that sometimes requires a carrier to outsource a shipment to another carrier.

  • Important Cases to Watch For in Future Issues

    July 01, 2014

    Important Cases to Watch For in Future Issues

  • Louisiana Law Now Allows Recovery of Exemplary Damages in Domestic Abuse Cases

    June 25, 2014

    Louisiana law allows recovery of punitive damages only if specifically provided by statute.

  • Florida High Court Strikes Down Medical Malpractice Cap in Wrongful Death Cases

    June 25, 2014

    Michelle McCall received prenatal care at a United States Air Force clinic. McCall died from severe blood loss following the birth of her child.

  • Louisiana Legislature Passes Bill to Retroactively Prohibit Coastal Erosion Lawsuit

    June 25, 2014

    On July 24, 2013, the Southeast Louisiana Flood Protection Authority – East filed a Petition in state court in the Civil District Court for the Parish of Orleans against 97 energy company defendants, claiming hundreds of thousands of acres of the coastal lands that once protected south Louisiana are now gone as a result of oil and gas industry activities.

  • When an “Other Adjoining Area” is Not a Covered Situs Under the LHWCA

    June 25, 2014

    This decision from the Fifth Circuit provides further direction as to whether the location of an injury that occurs on an “other adjoining area” satisfies the situs requirement of the jurisdictional component as defined by the Longshore and Harbor Workers’ Compensation Act (“LHWCA”).

  • Duty to Defend Terminates When Event Occurs which Establishes Policy Unambiguously Excludes Coverage

    June 25, 2014

    Twin City Fire Insurance Company (“Twin City”) issued a comprehensive general liability policy to its insured, a subcontractor on a Louisiana Department of Transportation and Development construction project.

  • Important Change to Texas Law Regarding Satisfaction of Hospital Liens

    June 25, 2014

    On May 16, 2014, the Texas Supreme Court delivered a decision which alters the practices of insurance companies and defense firms with regard to hospital liens.

  • Texas, not Maritime, Law Applied to Claim Arising from Intoxication on Chartered Fishing Boat

    June 25, 2014

    The underlying accident occurred in May 2008. Christopher and Denise Arthey, riding motorcycles, were struck head-on by a vehicle driven by David Huff in Port Aransas, Texas.

  • Macondo Well Was Source of Discharge for Purposes of CWA Civil Penalty Liability

    June 25, 2014

    At issue was the responsibility of BP and Anadarko, co-owners of the well and co-lessors of the block in which the well was located, versus Transocean, the owner/operator of the rig, Deepwater Horizon, for civil penalties stemming from Clean Water Act violations (§311) associated with the 2010 Macondo Oil Spill.

  • Texas Fortuity Doctrine Bars Coverage Under Protection & Indemnity Policy

    June 25, 2014

    Following a vessel collision, the Plaintiffs sued several parties, including the owner of the utility boat with which their chartered fishing boat collided and the owner’s insurers, alleging significant personal injuries.

  • Syers Properties III, Inc. v. Rankin (A137610, May 27, 2014) __ Cal.App.4th ___

    May 29, 2014

    The California Court of Appeal, First Appellate District, Division Two (San Francisco) published its opinion in Syers Properties III, Inc. v. Rankin (A137610, May 27, 2014) __ Cal.App.4th ___, capsulizing several important holdings in attorney fee cases.

  • The Use Of Judicial Estoppel In California

    May 27, 2014

    The underlying facts of this case are that the Plaintiff, a 20 year old male, was in the process of being transported by ambulance from Imperial County to a facility in San Diego County for psychiatric evaluation under a 5150 hold.

  • Texas Claims Against Property Owners For Inadequate Security

    May 27, 2014

    In Texas, a hybrid of the standard premises liability claim is a claim against a property owner for inadequate security.

  • Defending Florida Cases Involving Open And Obvious Conditions

    May 27, 2014

    It is not uncommon for plaintiffs to trip over wheel stops in parking lots and these cases often result in lawsuits, especially with the large elderly population in the State of Florida.

  • Black Boarding Medical Specials In California-The Battle Wages On

    May 27, 2014

    This article discusses recent developments in an age old battle of precisely what can be put “on the board” at trial with respect to medical specials. Over the last 20 years, the answer has varied wildly.

  • Curb Jumping Liability For Private Landowners: ‘When A Car Becomes A Landowner’s Responsibility'

    May 27, 2014

    Landowners in California are often sued by members of the public who sustain injuries when a vehicle errantly jumps a curb or sidewalk and strikes those people.

  • Tanner Construction, Inc., et al. v. HUB International Insurance Services, Inc. (March 10, 2014)

    May 21, 2014

    The Third Appellate District Court of Appeal (Sacramento) issued an opinion in Mark Tanner Construction, Inc., et al. v. HUB International Insurance Services, Inc. , analyzing, among other things, specific duties owed by an insurance broker. The Court of Appeal held that insurance brokers owe a limited duty to use reasonable care, diligence and judgment in procuring the insurance requested by an insured.

  • Namikas v. Miller (May 7, 2014, B244685) __ Cal.App.4th __

    May 19, 2014

    Earlier this month, the California Court of Appeal, Second Appellate District, Division Six (Los Angeles) issued an opinion in Namikas v. Miller (May 7, 2014, B244685) __ Cal.App.4th__, analyzing a settle and sue case. The Court of Appeal held that plaintiff “failed to establish a triable issue of material fact as to whether, in the absence of the alleged negligence would have received a more favorable judgment or settlement.”

  • Roger Cleveland Golf Company, Inc. v. Krane & Smith, APC, et al. (April 15, 2014, B237424, B239375)

    May 19, 2014

    The California Court of Appeal, Second Appellate District, Division Three (Los Angeles) recently issued an opinion analyzing the applicable statute of limitations and tolling periods in a malicious prosecution cause of action.

  • Boshyan v. Private I. Home Inspections,  2014 IL App (1st) 131814-U (Ill. App. Ct. 2014)

    May 19, 2014

    The Illinois Appellate Court recently held that the trial court properly granted the defendant’s motion to dismiss breach of contract and negligence claims asserted by a home purchaser against a home inspector based on the provisions of the home inspection agreement that explicitly limited the recoverable damages to the cost of the home inspection.

  • Skaperdas v. County Casualty Insurance Company, 996 N.E.2d 766 (Illinois 4th Dist. 2013)

    May 19, 2014

    In Skaperdas v. County Casualty Insurance Company, 996 N.E.2d 766 (4th Dist. 2013), the Illinois Appellate Court held that the trial court erred in granting a motion to dismiss made by an insurer and broker with respect to whether an insurance agent owed a duty of care to the insured.

  • Melcher v. Greenberg Traurig, LLP, et al. 2014 N.Y. LEXIS 581; 2014 NY Slip Op 2213

    May 19, 2014

    In a recent decision, Melcher v. Greenberg Traurig, LLP, the New York Court of Appeals held, in distinguishing its own prior decision, as well as a number of cases in both the trial and appellate courts, that attorney deceit claims arising under Judiciary Law § 487 are subject to a six-year statute of limitations.

  • Voss v. The Netherlands Ins. Company (New York Court of Appeals Feb. 25, 2014)

    May 19, 2014

    It is well settled in New York that there is no “special relationship” between an insurance broker or agent and its client. The New York Court of Appeals, which is the state’s highest court, has held based on this rule that an insurance broker ordinarily has an obligation to obtain requested coverage for clients within a reasonable time or inform the client that the coverage cannot be obtained, but as a general rule the broker has no continuing duty to advise, guide or direct a client to obtain additional coverage.

  • The New Way You Sign – And You Didn’t Even Know It

    April 14, 2014

    You may be surprised to know that a quick, informal e-mail you send from your iPhone at a stoplight could be found to create a binding contract that results in liability for you.

  • Bock v. Hansen

    April 11, 2014

    (Insureds Can Sue Insurance Adjuster for Negligent Misrepresentation in Connection with Adjuster’s Own Wrongful Conduct)

  • North Counties Engineering, Inc. v. State Farm General Insurance Company

    April 11, 2014

    (Insurer is Obligated to Defend Engineering Company in Connection with Continuing Loss Triggering Coverage Under Policies Which Did Not Include Completed Operations Exclusions)

  • Mark Tanner Construction, Inc. v. HUB International Insurance Services, Inc.

    April 11, 2014

    (Insurance Broker Did Not Breach Its Duty of Care When It Failed to Advise Clients of the Financial Condition of Workers Compensation Self-Insured Program Which Became Insolvent)

  • Gaeton St. Cyr v. California Fair Plan Association

    April 11, 2014

    (California Fair Plan Properly Applied Policy Limits Under Property Policies Based on Actual Cash Value For Homes Destroyed by Fire in High Risk Area And Was Not Required to Pay Any Additional Amounts Based on Alleged Failure to Comply With The Standard Form Fire Policy Set Forth in Insurance Code Section 2071)

  • American States Insurance Company v. Travelers Property Casualty Company of America,

    April 11, 2014

    (Food Truck Constituted “Mobile Equipment” As Defined in General Liability Policy Such That Coverage Was Afforded Under the General Liability Policy For Injuries Caused by Equipment in the Truck)

  • R & R Pipeline, Inc. v. Bond Safeguard Insurance Company

    April 11, 2014

    (Because Contract Between Developer and Subcontractor Did Not Relate to Public Work Project, the Subcontractor was Entitled to Maintain Cause of Action for Recovery Under Labor and Material Bonds)

  • Hui v. Sturbaum

    April 11, 2014

    (Adjuster’s Statements to Department of Insurance and Plaintiff’s Counsel Constitute Protected Activity Under Anti-SLAPP Law and are Privileged Under Civil Code Section 47)

  • Transport Insurance Company v. Superior Court

    April 11, 2014

    (The Reasonable Expectations Of the Company Expressly Named As An Additional Insured Under An Umbrella Policy Must Be Considered In Connection With Determining Whether A Duty To Defend Is Owed Under Such Policy)

  • Jones Act Seaman Status Awarded to Vessel Repairer Operating a Land Based Crane at Time of Injury

    March 21, 2014

    Circumstantial evidence of negligence is enough and emotional damages resulting purely from another person’s injury are not compensable.

  • General Contractor Not an Additional Insured for Faulty Workmanship Under Subcontractor’s Policy

    March 17, 2014

    Fifth Circuit Court of Appeals addresses claims related to negligent construction of a condominium project.

  • A Forklift is a Motor Vehicle Under Louisiana’s UM Statute

    March 17, 2014

    Judge rules a forklift is a vehicle not designed for highway use or required to be registered and not subject to the compulsory liability insurance requirement under Louisiana law.

  • New York’s Highest Court Reverses Its K2 Decision

    March 17, 2014

    Breach of the duty to defend does not waive right to contest coverage.

  • Divided Louisiana Supreme Court Winds Its Way Through Louisiana’s Direct Action Statute

    March 17, 2014

    The Louisiana Supreme Court had the opportunity to consider the effect of dismissal of an insured during trial, without explicitly reserving rights against the insurer.

  • Texas Supreme Court Rules Faulty Workmanship Alone Does Not Fall Within Contractual Liability Exclus

    March 17, 2014

    Court holds that contractual agreement of a general contractor to merely perform its construction work in a good and workmanlike manner does not trigger the contractual liability exclusion of a commercial general liability insurance policy.

  • BP Can’t Re-Write Terms of Multi-Billion Dollar Settlement of Gulf Oil Spill Claims

    March 17, 2014

    March decision denies BP’s attempt to stop businesses from recovering economic damages from the settlement proceeds.

  • Applications of Joint & Several Liability in CA Personal Injury Lawsuits Involving Intentional Torts

    February 26, 2014
  • Joinder and Effects of Necessary and Indispensable Parties in Assault and Battery Cases in Nevada

    February 26, 2014

    In negligent security cases, where the plaintiff alleges that he or she was assaulted, the active tortfeasor who commits the battery may be brought in under Nevada Rule of Civil Procedure (“NRCP) 19(a) as an indispensable party to the lawsuit, even if the plaintiff did not name that party as a direct defendant.

  • New California Case Means Changes for Wrongful Death Claims

    February 26, 2014

    The new California case changes the objective standard to subjective one for determining putative spouse’s standing to assert wrongful death claims.

  • Statutory Immunity For A Landowner When An Injured Claimant Is Engaged In A Recreational Activity

    February 26, 2014

    Analysis of Civil Code Section 846 and its application as illustrated in recent cases

  • California Court Opinion Serves as Cautionary Tale for Attorneys who Jointly Represent Employers and

    February 24, 2014

    Los Angeles associates William Sung and Ryan T. Chai anaylze the ramifications of Yanez v. Plummer (Cal.App. Nov. 5, 2013). 

  • Florida’s New Limited Liability Company Act

    February 19, 2014

    Florida has a new Limited Liability Company Act.

  • Internet Consumer Protection Changes in China

    February 19, 2014

    On March 15, 2014, new data security and privacy requirements will take effect in China.

  • Brazil’s Internet Data Security Regulations

    February 19, 2014

    The Brazilian Congress has taken steps to implement its first comprehensive Internet and data protection regulations.

  • E.U. Proposes Data Protection Regulation that would Further the Gap Between U.S. Regulations

    February 19, 2014

    A European Parliament Committee approved an updated version of the E.U. Data Protection Regulation so that it could be socialized among member states in preparation for a vote this spring.

  • Rosita Smith v. JEM Group, Inc. 737 F. 3d, 636 (9th Circuit Dec. 12, 2013)

    January 22, 2014

    The Ninth Circuit Court of Appeals recently addressed important questions concerning the ability of attorneys in Washington State to require clients to arbitrate disputes concerning the legal services rendered.

  • Dennis Wise v. DLA Piper LLP (US) (California Court of Appeal 4th District October 8, 2013)

    January 22, 2014

    The California Court of Appeal recently addressed an important issue in the legal malpractice area. The Court held that the malpractice plaintiff cannot prevail based on allegations that the malpractice caused plaintiff to lose the right to collect on a recovery in a lawsuit without competent evidence that the judgment would have been collectible, as speculative expert testimony about collectability will not suffice when the evidence presented demonstrated that the judgment would not have been collectible.

  • Moon v. McDonald, Carano & Wilson, 306 P.3d 406, 129 Nev. Adv. Rep. 56 (2013)

    January 22, 2014

    The Nevada Supreme Court added to its slowly-growing body of legal malpractice statute of limitations jurisprudence in Moon v. McDonald, Carano & Wilson, 306 P.3d 406, 129 Nev. Adv. Rep. 56 (2013).

  • White Mountains Reinsurance Company of America v. Borton Petrini, LLP

    December 12, 2013

    (Insurer Which Received Assignment of Malpractice Claim As Part of Purchase of Another Insurer’s Assets Was Entitled To Maintain Such Claim Against Law Firm)

  • Berendes v. Farmers Insurance Exchange

    December 12, 2013

    (Farmers Automobile Policy Did Not Afford Underinsured Motorist Coverage To Deceased Pedestrian)

  • Farmers Ins. Exch. v. Superior Court (Jose Luis Cervantes Bautista – Real Parties in Interest)

    December 12, 2013

    (Auto Exclusion In Homeowners Policy Applied To Bar Coverage Of Wrongful Death Action)

  • San Diego Assemblers, Inc. v. Work Comp For Less Insurance Services, Inc.

    December 12, 2013

    (Broker Was Not Liable For Failing To Procure Insurance Beyond That Requested By Insured)

  • San Miguel Community Assoc. v. State Farm General Insurance Company

    December 11, 2013

    (Because Initial Complaint And Amended Complaint Only Requested Injunctive Relief, Rather Than Compensatory Damages In Connection With Underlying Action For Enforcement Of CC&Rs Against Condominium HOA, Insurer Was Not Liable For Bad Faith Denial Of The Tender Of Defense Of Such Complaints)

  • Aguilar v. Gostischef

    December 11, 2013

    (Insurer Obligated to Pay One Million Dollar Cost Bill Awarded in Underlying Personal Injury Lawsuit After Rejecting Settlement Demand in Excess of Policy Limits)

  • Reid v. Mercury Insurance Company

    December 11, 2013

    (Plaintiff Could Not Maintain Bad Faith Lawsuit Absent an Indication of Willingness to Settle Lawsuit Within Policy Limits)

  • SEC General Solicitation Rules

    November 21, 2013

    The new Regulation D General Solicitation Rules impose stricter verification requirements by stating that an issuer of securities must take reasonable steps to verify the accredited status of a potential investor in a deal.

  • American Safety Indemnity Company v. Admiral Insurance Company

    October 25, 2013

    The California Fourth District Court of Appeal affirmed the trial court’s entry of judgment which held that an insurer was obligated to pay for defense, notwithstanding $250,000 self-insured retention. 

  • Adamo v. Fire Insurance Exchange

    October 25, 2013

    The California Fourth District Court of Appeal affirmed the trial court’s entry of judgment which held that an insured was only entitled to lower limit for detached structure separated by clear space under homeowners policy.

  • Alexander v. Farmers Insurance Company, Inc.

    October 25, 2013

    The California Second District Court of Appeal affirmed the trial court’s order which held that it is within trial court’s discretion to adjudicate legal issues related to property loss before requiring appraisal of the damaged property.

  • Swanson v. State Farm General Insurance Company

    October 25, 2013

    The California Second District Court of Appeal affirmed the trial court’s judgement that the a insurer was entitled to appoint panel counsel and to control the defense of a lawsuit after withdrawing a reservation of rights which had created a conflict of interest entitling the insured to independent counsel.

  • Mount Vernon Fire Insurance Corp. v. Oxnard Hospitality Enterprise, Inc.

    October 25, 2013

    The California Second District Court of Appeal affirmed the trial court’s entry of summary judgment which held that assault and battery exclusion in policy unambiguously applies to bar coverage of injuries sustained by nightclub dancer caused by a third party patron.

  • Ventura Kester LLC v. Folksamerica Reinsurance Company

    October 25, 2013

    The California Second District Court of Appeal states that a commercial property policy afforded coverage for potential loss of rental income, notwithstanding that the rental agreement was not in place at the time when the building sustained damage as a result of vandalism.

  • Anderson Brothers Inc. v. St. Paul Fire and Marine Insurance Company

    October 25, 2013

    The United States Ninth Circuit Court of Appeals upheld a ruling that demand letters received from the EPA trigger duty to defend under liability policy promising to defend “suits” under Oregon law.

  • Federal Insurance Co. v. MBL Inc.

    October 25, 2013

    The California Sixth District Court of Appeal affirmed the decision that insurers’ reservations of rights regarding the number of occurrences, exclusion of damages outside policy periods and general reservation of rights does not trigger a right to independent counsel for the defense of underlying pollution claims.

  • Progressive Choice Insurance Co. v. California State Automobile Association Inter-Insurance Bureau

    October 25, 2013

    The California Second District Court of Appeal affirms the ruling that an insurer affording underinsured benefits was entitled to pro rata contribution from the insured’s direct carrier based on the absence of statutorily permitted exclusions barring coverage under the insured’s policy.

  • Zhang v. Superior Court

    October 25, 2013

    The California Supreme Court of Appeals held that the insured is not barred from prosecuting claims for breach of the California Unfair Competition Law based on violation of insurance Code Section 790, Et. Seq.

  • Robert Rodriguez v. AT&T Mobility Servicers LLC, No. 13-56149, (9th Cir., August 27, 2013)

    September 05, 2013

    Ninth Circuit holds that defendant’s burden of proof to establish amount-in-controversy is the preponderance of the evidence standard and that lead plaintiffs may not legally waive claims prior to class certification.

  • Arizona Supreme Court Further Clarifies the Availability and Use of the Economic Loss Doctrine

    September 05, 2013

    Sullivan v Pulte Home Corp., 2013 Ariz. LEXIS 162 (2013)

  • Supreme Court Makes Landmark Decision On Copyright Case

    August 20, 2013
  • Doing Business in Indian Country: A “Historic” Opportunity

    August 19, 2013
  • United States Supreme Court Reaffirms Landowner’s Rights in Recent Land-Use Decision

    August 19, 2013
  • “Trouble Ahead, Trouble Behind”

    August 19, 2013
  • Not So Generic – Intellectual Property Issues Surrounding Generic Top level Domain Names

    August 19, 2013
  • New York Court Finds that Digital Resale of Music Constitutes Copyright Infringement

    August 13, 2013
  • GoDaddy’s Ad Parking Not Registration and Not Entitled to Safe Harbor Protection

    August 13, 2013
  • Tenth Circuit Declares Use of Competitor’s Mark in Google® AdWords Does Not Create Confusion

    August 13, 2013
  • Fox Denied Injunction Against Dish Network’s “Hopper” Ad-Skipping Feature

    August 13, 2013
  • When Does Use Of A Name In Business Reach The Level Of “Use As A Trademark?”

    August 13, 2013
  • Jim Brown Loses While Ed O’Bannon Wins On Use Of Likeness Claims In Same Court Of Appeal

    August 13, 2013
  • The Ends Don’t Justify The Beans: Patented Seeds’ Ability To Make New Seeds Belongs To The Patentee

    August 13, 2013
  • Can Outside Attorneys and Accountants Be Held Liable under the Fair Labor Standards Act?

    August 07, 2013

    Can an employer who violates the Fair Labor Standards Act implead its attorneys, and seek to hold them responsible for any liability in the FLSA violation action brought by its employees? In this article, we discuss a recent New York federal court decision addressing this question, and the implications it holds for the future.

  • Sufficiency of Proof of Damages Caused by Malpractice Leading to “Forced”/“Reduced” Settlement

    August 07, 2013

    Legal malpractice cases continue to be brought based on alleged “forced” or "reduced" settlements allegedly caused by the firm’s malpractice. In this article, we discuss a significant California Court decision regarding proving damages in such cases.

  • City Of San Buenaventura v. The Insurance Company Of The State Of Pennslyvania

    August 05, 2013

    Policies affording coverage for occurrences taking place during policy periods did not afford coverage for the city’s negligent conduct taking place before the inception of the policies. 

  • Barnes v. Western Heritage Insurance Company

    August 05, 2013

    Medical Payments Coverage Owed By Insurer Notwithstanding Settlement of Personal Injury Lawsuit

  • Liberty National Enterprises, L.P. v. Chicago Title Insurance Company

    August 05, 2013

    Tortious Conduct in Connection With Acquisition of Title By the Insured Not Covered By ALTA Policy

  • Schaefer v. Elder

    August 05, 2013

    Contractor Entitled to Appointment of Independent Counsel Based on a Conflict Created By Discovery

  • Mt. Hawley Insurance Company v. Lopez

    August 05, 2013

    Insurance Code §533.5 Does Not Apply to Bar Defense of Criminal Actions Filed By Federal Government

  • Leroy Brown v. Mid-Century Insurance Company

    August 05, 2013

    Water Damage Exclusion in First Party Homeowners Policy Applied to Leaking Hot Water Pipe Damage

  • Travelers Property Casualty Company Of America v. Superior Court (Braum)

    August 05, 2013

    Vacancy Exclusion in HOA Policy Barred Coverage of Property Theft Claim

  • Kaiser Cement And Gypsum Corp. v. Insurance Company Of The State Of Pennsylvania

    August 05, 2013

    Coverage Not Triggered By Underlying Insurance Collectible by the Insured

  • Alliance of Nonprofits For Insurance Risk Retention Group v. Kipper

    August 05, 2013

    Risk retention group prohibited from issuing first dollar automobile liability. 

  • New Texas Rules Seek to Reduce Delay and Expense of Civil Litigation

    July 24, 2013

    The Texas Supreme Court released rules that establish mandatory expedited proceedings in civil actions seeking $100,000.

  • The End of Special Treatment for Exotic Imports Under Copyright Law?

    June 12, 2013

    On March 19, 2013, the U.S. Supreme Court released its anxiously-awaited decision in Kirtsaeng v. John Wiley & Sons, Inc. deciding one of the most important copyright cases in years. In its decision, the Court held that the so-called "first-sale doctrine" applies to copies of copyrighted works manufactured outside the United States. Though the result is tempered by other limitations on importation based in trademark and patent law, this decision could still have significant impact on U.S. commerce.

  • How Red Does The Flag Have To Be For Copyright Owners To Have Recourse Against ISPs?

    June 12, 2013

    The Digital Millennium Copyright Act (DMCA) contains “safe harbor” protection for Internet Service Providers (ISPs) from infringement claims asserted by copyright owners. In recent years there has been very high stakes litigation between large companies that own valuable copyrights and that believe ISPs are profiting from infringement of those copyrights, and the ISPs who claim that a narrowing of the statutory safe harbor that protects them would threaten the openness that people cherish about the world wide web.

  • ‘Tools of the Trade’ Dress: How to Claim Rights in Store Design

    June 12, 2013

    Do you want to prevent others from imitating the look and feel of your business establishments? Some recent legal authority provides useful guidance for how to go about it   --  and also what to avoid.