Attorneys who practice out of the “virtual” office are becoming more common. Perhaps it is the overhead costs deterring some from shelling out for a physical address, or the ease with which one can practice entirely online, or maybe a bit of both. Whatever the reason, more and more attorneys, especially new bar admitees, are opting for the virtual office. But can an attorney practice entirely online, maintaining the client’s file online, and communicating only with the client via e-mail, all through a secure third -party vendor (i.e. cloud computing) and still be in compliance with his or her ethical obligations? This was the recent issue put before the California State Bar Standing Committee on Professional Responsibility and Conduct in Formal Opinion no. 2012-184.The issues decided in this opinion concerned an attorney who, through the firm’s website, assigned a password to each client who could then access their individual file online and communicate with the attorney via e-mail through the portal. The attorney may never meet in person with the client, or even communicate with them via telephone. All communications were to occur solely through the secure website.
With the DC Circuit having invalidated President Obama’s recess appointments to the National Labor Relations Board, employers are finding increasingly more ways to challenge the Board’s authority to act.The Court’s decision in Noel Canning v. NLRB held that the recess appointment of three Board members in 2012 were unconstitutional. Consequently, the Court held, the Board had no authority to decide pending cases because it lacked a quorum. Nearly 1600 published and unpublished Board decisions were declared void as a result.
In a unanimous decision, the Supreme Court affirmed both the lower court and Federal Circuit decisions rejecting Bowman’s patent exhaustion defense relating to his harvesting of second generation soybean seeds featuring Monsanto’s patented genetic trait.
Monsanto invented and patented a genetic alteration that allows soybean seeds to survive exposure to a certain herbicide. Monsanto sold its patented seeds to farmers, subject to a licensing agreement that only allows farmers to plant the seed for a single growing season. Thereafter, farmers have to purchase the patented seeds anew each year for planting. While farmers may sell the crop for consumption or processing, they are not allowed to save any of the harvested soybeans for replanting.
Bowman, a farmer, purchased seeds from an authorized Monsanto affiliate, subject to the aforementioned license for his primary soybean crop. However, in order to save money on a later season crop, Bowman purchased soybeans intended for consumption or processing from a grain elevator and replanted them, in the hopes that some contained the genetic trait of Monsanto’s patented seeds. After spraying the late season crop with the herbicide, some of the seeds survived, confirming Bowman’s suspicions. Bowman then harvested this second crop and replanted the resulting seeds with Monsanto’s patented genetic trait for eight subsequent late season plantings. Monsanto sued Bowman for patent infringement.
Bowman raised the defense of patent exhaustion, arguing that the prior authorized sale of the soybeans from a farmer to the grain elevator exhausted Monsanto’s patent rights to control what Bowman did with the soybeans and their seeds thereafter. The Federal Circuit, however, rejected this argument, holding that he had “created a newly infringing article” by replanting the progeny of Monsanto’s genetically altered seeds.
On appeal, the Supreme Court affirmed, holding that “the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission.” The Court confirmed its prior holding in Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008) that under the doctrine, “the initial authorized sale of a patented item terminates all patent rights to that item,” and reiterated that “the exhaustion doctrine is limited to the ‘particular item’ sold.”
The Court also rejected Bowman’s arguments that he was only doing what farmers have done with seeds for years and that the soybeans’ natural ability to self-replicate or “sprout,” like any other seed, is what “made” the additional soybean replicas – not Bowman. The Court held that Bowman’s actions in planting the seeds, spraying them with herbicide, and thereafter repeatedly harvesting them exerted control of the reproduction, constituting infringement.
Finally, the Court noted that its decision in this case is limited to the facts at hand, leaving open any further questions regarding the applicability of patent exhaustion to other self-replicating technologies.
FORGET EXHAUSTION, ARE SELF-REPLICATING TECHNOLOGIES SUBJECT TO SECTION 101 SCRUTINY?
With the recent uncertainty over Section 101 patent eligibility requirements, one might ponder the interplay between Section 101 and self-replicating technologies. This is especially true considering last Friday’s, evenly-split Federal Circuit decision affirming that certain system, method, and media claims directed to computer software for minimizing risk in financial trades were patent ineligible (see CLS Bank International v. Alice Corporation Pty. Ltd., 2011-1301 (Fed. Cir., May 10, 2013). But at the risk of causing even more tension over the issue, consider whether the progeny of Monsanto’s seeds should be susceptible to a Section 101 challenge.
Specifically, should the “natural law” exception to patent eligible subject matter apply to any progeny seed carrying Monsanto’s genetic trait? See e.g. Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012) (holding that claims directed to a method for measuring the dosage of medication in patients fell under “natural law” and were thus patent ineligible). In theory, Monsanto’s invention altering the genetics of the seed should be limited to just that – the alteration and subsequent first production of that very seed altered by humans. Thereafter, the seed’s ability to self-replicate is a natural occurrence – the seed now exists in nature, forever able to replicate with all its genetic traits without further human alteration/intervention (think Bowman’s sprout argument) – a replication process that normally no one would argue is patentable.
The Court’s decision in Monsanto, however, seems to put to rest any such possibility, dismissing Bowman’s attempt to raise the issue as an unsuccessful “blame the seed” argument. The Court further acknowledged the importance of incentivizing innovation in the field by protecting such technology. Nevertheless, others inventing self-replicating technologies should be cognizant of the Court’s statement limiting its decision to the specific facts presented in Monsanto (though only related to the issue of exhaustion) in light of the apparent expansion of Section 101 applicability.
In the meantime, perhaps Monsanto will consider inventing seeds that do not self-replicate in such a manner (seedless grapes, anyone?).
PATENT EXHAUSTION, GOING FORWARD
The Supreme Court’s recent decisions regarding intellectual property exhaustion, including Monsanto and an unrelated copyright case, shed light on the Court’s March 25, 2013 denial of a petition for certiorari requesting the Court address the extraterritorial reach of the patent exhaustion doctrine.
In Ninestar Tech. Co. Ltd. v. ITC, 667 F.3d 1373 (Fed. Cir. 2012), cert. denied 133 S.Ct. 1656 (2013), alleged infringer Ninestar purchased used/spent Epson ink cartridges in China, refilled them with ink, and then shipped them to the U.S. for resale. The ITC found Ninestar’s practice to be infringing upon Epson’s patents relating to the ink cartridges.
On appeal to the Federal Circuit, Ninestar asserted the defense of patent exhaustion, arguing that its purchase of the cartridges, even if overseas, exhausted Epson’s U.S. patent rights. The Federal Circuit, however, rejected the defense, applying Federal Circuit precedent that patent exhaustion does not apply to foreign sales of patented goods. Ninestar petitioned the high court seeking reversal and an expansion of the patent exhaustion doctrine extraterritorially.
While awaiting a decision on Ninestar’s petition, however, the Supreme Court issued a decision explicitly expanding the doctrine of first sale/exhaustion with respect to copyrights outside U.S. boundaries in Kirtsaeng v. John Wiley & Sons, Inc., 133 S.Ct. 1351 (2013). Kirtsaeng, a foreign student studying in the U.S., arranged for family members in Thailand to purchase English-language textbooks and ship them to him in the U.S. for resale. The foreign printed textbooks were much cheaper, and Kirtsaeng’s sale of the books at U.S. prices resulted in profit. The publisher of the books sued, asserting copyright infringement.
On appeal, Kirtsaeng successfully relied on the first sale doctrine, arguing that his family members’ authorized purchases of the textbooks exhausted any U.S. copyright restriction on their resale, use, and other enjoyment of the books. Agreeing with Kirtsaeng, the Supreme Court explicitly held that neither Congress nor the common law expressed any intent that the first sale doctrine should not apply to foreign sales of copyrighted works.
Based on Kirtsaeng, many believed the Supreme Court might grant Ninestar’s petition to address the similar issue of whether patent exhaustion applies to sales or purchases made outside the U.S., or that the Court might at least remand the case in light of Kirstaeng. But a mere six days after the release of its decision in Kirtsaeng, the Supreme Court denied Ninestar’s petition outright.
Comparing the facts in Ninestar to Monsanto and Kirtsaeng, however, perhaps the Court was hinting that patent exhaustion was not the correct issue presented. Specifically, Ninestar’s purchase of the spent Epson cartridges and subsequent refilling of those cartridges before resale likely removed the products from any protection under the patent exhaustion or first sale doctrines. The refurbished cartridges were thus no longer the “particular item” (see above discussion) sold by Epson and initially purchased by Ninestar. In effect, Ninestar’s practice created a new instance of infringement, just like Bowman’s harvesting and reproduction of seeds constituted new infringement, or unauthorized copying of Monsanto’s patented seeds. In contrast, Kirtsaeng’s U.S. sales were mere resale of the same “particular items” initially purchased – Kirtsaeng did not run to Kinko’s/Fed Ex, so to speak, and make numerous unauthorized copies of the textbooks to sell.
Accordingly, though the issue of whether patent exhaustion reaches beyond the boundaries of the U.S. still lingers, what appears to be clear is that exhaustion will not save one from infringement liability where the accused instrumentality is not the “particular item” initially purchased.
In a decision issued on March 7, 2013, the Supreme Court of Florida reaffirmed Florida’s commitment to adherence to the economic loss rule in product liability litigation. In Tiara Condominium Association, Inc. v. Marsh & McLennan Companies, Inc. etc., et al., No. SC10-1022, the high court provides a helpful discussion of the origin and development of the economic loss rule. In summary, the economic loss rule is described as “the fundamental boundary between contract law, which is designed to enforce the expectancy interests of the parties, and tort law, which imposes a duty of reasonable care and thereby encourages citizens to avoid causing physical harm to others.” Thus, economic loss has been defined by Florida courts as “damage for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits – without any claim of personal injury or damage to other property.” In other words, economic losses are “disappointed economic expectations,” which are protected by contract law, rather than tort law.Despite the rule’s underpinnings in the product liability context, the economic loss rule has also been applied to circumstances when the parties are in contractual privity and one party seeks to recover damages in tort for damages arising in contract.
DRI and The National Academy of Distinguished Neutrals announced today that they are joining forces to provide you with access to the biographies and calendars of NADN members across more than 45 states.
All DRI members will now have immediate access to NADN's live database of more than 800 top-rated, litigator approved neutrals via www.dri.org/neutrals. This new DRI Neutral Database allows defense counsel to search by state, type of civil dispute, ADR practice expertise and other criteria important to defense counsel. Given NADN's rigorous due diligence interview procedures, DRI members are assured that the neutrals resulting from any searches are considered amongst the top ADR practitioners, as rated by both defense and plaintiff's attorneys in any given state. NADN.org's live calendar functionality will also prove useful to DRI members who may wish to confirm which of the top local mediators or arbitrators is available on a preferred date.
"DRI is excited about partnering with the NADN to make the Academy's database of neutrals available to our entire membership," said John R. Kouris, DRI Executive Director. "In addition to serving as a tremendous resource, the database will provide DRI members with great value."
"We're delighted to partner with DRI in providing defense firms with access to detailed biographies of the nation's top mediators and arbitrators," said Darren Lee, Executive Director of NADN. "Since 2008, we've sought the feedback of defense and plaintiff attorneys in many states in order to identify those neutrals that litigators trust to mediate or arbitrate their own cases. This project has allowed us to compile a terrifically useful roster of proven ADR practitioners - from solo practice mediators, to panelists with respected ADR organizations. We look forward to working with DRI in the years to come, providing its members with a reliable roster of the most experienced ADR attorneys."
The DRI neutral database is for members only - another great benefit of DRI membership. For more information on this benefit and other resources DRI offers to help grow your practice, visit www.dri.org or call our Customer Service Department at 312.795.1101.var addthis_pub="blogengineextensionaddthis";
In today’s connected society, it’s difficult to escape the necessity of joining the world of social media networking. For attorneys, social media may provide fast, easy, and economical means of reaching clients and potential clients and advertising their services. “Victory in court today! Contact me for a free consultation,” and “Just won a million dollar verdict! Tell your friends to check me out,” are examples of common social media postings utilized by attorneys to spread the word of their success and appeal to clients. But are such postings subject to the Rules of Professional Conduct regarding advertising? This was the issue recently decided by The State Bar of California Standing Committee on Professional Responsibility and Conduct.The Rules of Professional Conduct and the Business and Professions Code place numerous requirements and restrictions on attorney advertisements and communications. Rule 1-400 of the Rules of Professional Conduct entitled “Advertising and Solicitation” provides detailed requirements with which attorney advertising must comply. However, despite its title, it speaks in terms of “communications” rather than specifically “advertisements.” The rule defines a “communication” as “any message or offer made…for professional employment…directed to any former, present, or prospective client.” Furthermore, the Business and Professions Code defines an advertisement as any “communication…that solicits employment of legal services.” Therefore, when it comes to social media postings, because such postings are technically communications, they must be carefully analyzed to ensure that the rules are complied with. Despite the fact that these rules do not specifically refer to Facebook or Twitter postings, “there is little doubt that the restrictions [of the rules] indeed apply to computer-based communications.” (The State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion no. 2012-186.) In light of the foregoing, it was determined by the Standing Committee that the real issue when determining whether a Facebook or Twitter posting constitutes a communication within the meaning of the rules is whether the statement “concern[s] the availability of professional employment” of an attorney. (Rule 1-400(A).)
On April 30, 2013, the California Court of Appeal, Second Appellate District, Division Three, issued its opinion in the matter of Corenbaum v. Lampkin. The opinion addresses an evolving issue in California regarding the admissibility of medical bills when the medical provider has agreed to accept less than the full amount billed in complete payment for services. The court categorically rejected plaintiff's arguments and held that the full amount billed for past medical services is irrelevant and therefore inadmissible to prove:- the value of the past medical services; - the value of past pain and suffering; - the value of future medical expenses; -the value of future pain and suffering.
No good deed goes unpunished when it comes to the United States Environmental Protection Agency’s (“U.S. EPA”) efforts to regulate climate change. Rather, U.S. EPA’s authority to regulate climate change (e.g. greenhouse gas emissions or “GHGs”) is currently being challenged by some States, while other States are simultaneously threatening to sue U.S. EPA for failing to act to address climate change.Since the United States Supreme Court’s decision in Massachusetts v. EPA, 127 S. Ct. 1438 (2007) holding that U.S. EPA could regulate GHG emissions under the Clean Air Act, various States and industrial groups have challenged U.S. EPA’s subsequent attempts to regulate GHGs. Most recently, on April 19, 2013, the Attorney General of Texas supported by 11 other state attorney generals, filed a petition for writ of certiorari to the United States Supreme Court claiming that U.S. EPA overreached its authority by regulating GHGs, and requested that the Court overrule its decision in Massachusetts v. EPA on the basis of the “absurd” and detrimental economic consequences of regulating GHGs under the Clean Air Act.
As a general proposition, a defendant at trial suffers unfair prejudice when the court does not permit the jury to learn of certain facts that, if disclosed, would reveal a witness’s bias or self-interest. If a witness with no apparent motive for lying gives strong testimony favoring one side at trial, that testimony may have a significant impact on the jury. It is for this reason that all potential bias or self-interest of both fact and expert witnesses must be vigorously explored during pre-trial discovery.In Polett v. Public Communications, Inc., No. 1865 EDA 2011, slip op. (Pa. Super. March 1, 2013), a verdict for a whopping for $27.6 million in the Court of Common Pleas of Philadelphia County, Civil Division, was reversed on multiple grounds. However, for purposes of this article, we focus on the finding by the Superior Court that it was error for the trial court not to permit the jury to learn that plaintiff’s treating physician, Dr. Richard Booth, an orthopedic surgeon, had been a named defendant earlier in the litigation and had entered into a tolling agreement with the plaintiffs. Under such a tolling agreement, a plaintiff can await the outcome at trial and decide afterward whether to pursue the party with whom she had entered into the tolling agreement. Dr. Booth's best protection against being sued at a later date was to ensure that the plaintiffs made a substantial recovery at trial. Is this self-interest? You bet!
When an insurer sues for rescission, the insured is generally responsible for omissions and misrepresentations on insurance applications. That being said, when a third party brokers the deal between the insurer and the insured, he too is potentially liable. A recent District Court case out of Northern California case illustrates how a broker can be held liable to the insured for those same omissions and misrepresentations in rescission actions.In James River Ins. Co. v. DCMI, Inc., 2012 WL 2873763 (N.D. Cal. July 12, 2012), James River Insurance Company brought suit against DCMI, a construction contractor, to rescind the insurance contract taken out. The insurer alleged that DCMI made material omissions and/or misrepresentations about prior claims or threatened litigation against them. DCMI, who used a broker, Powers & Company, to find James River Insurance Company, argued that they were not responsible for the omissions. DCMI cross-filed to include Powers & Company as a defendant in the suit. Powers & Company filed out the insurance application on behalf of DCMI. DCMI alleged that in doing so the broker neglected to explain material terms and used a pre-filled form. The cross-filing complained of breach of contract, negligence, and breach of duty. Powers & Company moved to dismiss the suit against them for a failure to state a claim regarding all three counts. The trial court denied the motion in relevant part. The court held that the breach of contract and negligence cause of actions were proper. In doing so, the court explained that under California law, an insurance broker has the general duties found in any agency relationship. This includes the duty to use reasonable care, diligence, and judgment in procuring the requested insurance coverage. Failing to properly fill out an application and explain material terms is a breach of said duty—a breach that can be an element within either cause of action. In ruling on the first claim, the court held that the use of a pre-filed form and then failing to explain key terms to a client could amount to breach of contract in a broker-relationship. The court explained that a breach of contract claim requires the showing of four elements: (1) the existence of a contract; (2) the plaintiff’s performance under the contract; (3) that the defendant breached the contract; and (4) the breach resulted in damage to the plaintiff. DCMI’s allegation of an arrangement and then the incorrectly completion of the forms was enough to survive a motion to dismiss. On the second claim, the court held that although an insured bears the responsibility of omissions in application as to an insurer, the broker can still be liable to the insured. A negligence claim requires the showing of three elements: (1) breach of duty; (2) causation; and (3) damages. The court acknowledged that when an insurer seeks to rescind the insured bears the responsibility of the application. However, the court explained that nothing prevents the insured from then recovering from the broker where the broker is liable. In this case, the use of a pre-filled application and then failing to explain key terms could amount to negligence. This case is significant because it shows just how far insurance broker liability can go. Even where the law already holds the insured responsible for rescission actions, a broker may be joined to the suit for his own negligence or breach arising out of the contract.
Recently, the U.S. District Court for the Western District of Louisiana issued the Benoit v. Neustrom opinion. 2013 U.S. Dist. LEXIS 55971 (decided April 17, 2013). Here, the parties sought approval that CMS' future interest could be fully satisfied by funding an MSA for less than full value of the Claimant's future medicals. The parties agreed to resolve a liability claim for a gross amount of $100,000. Defendant had an MSA allocation prepared, which concluded that the Claimant would be expected to incur between $277,758.62 to $333,267.02 in future injury-related care otherwise covered by Medicare. Additionally, Medicare had made conditional payments on the Claimant’s behalf totaling $2,777.88.The Court, having previous experience addressing MSA related questions, looked to the 11th Circuit decision in Bradley v. Sebelius for guidance. 621 F.3d 1330 (11th Cir. 2010). Bradley was an allocation case under the MSP with respect to conditional payments, holding that CMS must respect a judicial allocation based on the merits of the case. Applying the logic that CMS’ recovery can be fully satisfied by identifying that portion of an award which is intended to compensate a Claimant for medical expenses (past and future), the Court agreed with the parties in that an MSA did not need to be fully funded to satisfy Medicare’s interest. It did, however, disagree with respect to the dollar amount of the MSA.
The U.S. Supreme Court decided in Genesis Healthcare Corp. v. Symczyk, 569 U.S. ___ (2013), that a sufficient Rule 68 Offer of Judgment issued to a lone plaintiff in an FLSA collective action prior conditional class certification and joinder of opt-in plaintiffs moots the entire claim – even if the plaintiff rejects the Offer. The 5-4 opinion overruled the Third Circuit Court of Appeal, which held that such a mechanism frustrated the purpose of the FLSA’s collective action provision by allowing a defendant to “pick off” the named plaintiff prior to the conditional certification stage.Procedural History
On April 16, 2013, the U.S. Supreme Court issued its decision in US Airways, Inc. v. McCutchen (No. 11–1285), deciding the issue of whether equitable defenses, such as the principle of unjust enrichment, can override the reimbursement provision of a health benefits plan established under the Employee Retirement Income Security Act (ERISA). Specifically at issue in the case was §502(a)(3) of ERISA, which authorizes health-plan fiduciaries to bring a civil action to obtain appropriate equitable relief to enforce the terms of a plan. The Court held that such equitable defenses cannot override the clear terms of a plan.
Wednesday's United States Supreme Court opinion in Kiobel v. Royal Dutch Petroleum Co. et al., 569 U.S. ___ (2013), has confirmed that the Alien Tort Statute (ATS) has a limited scope and cannot open the doors of United States courts to lawsuits based on ordinary torts committed by companies outside the territorial confines of the United States. Although the Court did not meaningfully address the issue of corporate liability, its narrow holding all but guarantees that ATS will not become an issue in lawsuits against corporate clients in products cases.At first blush, Kiobel does not appear to be the type of case that would interest product liability lawyers. It involved Nigerian nationals who had obtained asylum in the United States suing foreign corporations that has allegedly aided and abetted the government of Nigeria in committing abuses against its citizens including, among others, extrajudicial killings, crimes against humanity, and torture. It goes without saying that "crimes against humanity" are topics that are generally outside the pale of the average civil defense attorney's resume. Representing clients in a global marketplace, however, often necessarily means representing clients who have potential exposure to liability abroad. Although your client may not be accused of crimes against humanity, the prospect of a German client with an American office being sued in America for building a product in Guatemala that injured someone in Japan is still daunting. Because ATS has a somewhat broad purpose: to permit federal courts to recognize "certain causes of action based on sufficiently definite norms of international law," 569 U.S. ___ (2013), it is conceivable that a clever plaintiffs' attorney would argue that principles of negligence or product liability were "sufficiently definite norms" of international law to warrant jurisdiction.
As was reported yesterday the plaintiffs in the 2011 landmark class action case Dukes v. Wal-Mart haven't given up and are now attempting to pursue regional class cases in federal courts in California, Tennessee, Texas, Florida and Wisconsin. In an attempt to overcome the issues raised by the U.S. Supreme Court, counsel for the Wal-Mart plaintiffs contend the narrower, regional classes pass muster because they are geographically focused and allegedly identify specific store, district and regional practices that led to the alleged discriminatory practices. Counsel for Wal-Mart contends the plaintiffs' class certification motion merely "recycles" arguments previously rejected by the high court, noting the remaining differences between the individual plaintiffs in each of the proposed classes.
Do these new regional classes meet the standards announced in Dukes v. Wal-Mart? How have the plaintiffs overcome the conflicts present in the initial classe, such as including female managers and their female subordinates in the same class?
In almost every case that crosses our desks these days, plaintiffs make an offer of settlement and set a time limit for acceptance, striking fear in the heart of my clients who then ask: will a court find that we acted in bad faith by refusing to settle within the time limit? The seminal case on this issue is Southern General Ins. Co. v. Holt, 262 Ga. 267, 416 S.E.2d 274 (1992). In Holt, the plaintiff’s attorney made a time-limited settlement offer for policy limits of $15,000. The plaintiff’s attorney advised the insurer the plaintiff’s medical bills totaled more than $10,000 and the lost wages exceeded $5,000. The letter included a doctor’s report indicating the plaintiff had a herniated disc, and included medical bills totaling over $6,000. The plaintiff’s attorney later sent proof of additional expenses of over $4,000. In a last letter to the insurer, the plaintiff’s attorney extended the offer to settle within policy limits for five additional days and included in the letter a certified copy of the plaintiff’s complete medical records. The insurer neither sought more time to evaluate the claim nor responded to the offer before it expired. The insurer offered to settle the case within limits only after the plaintiff’s attorney had withdrawn the offer. A jury returned a verdict in favor of the plaintiff for $82,000. The insured assigned to the plaintiff her claim against the insurer for negligent or bad faith refusal to settle within the policy limits. The plaintiff in this suit sought the excess of $67,000, plus interest.In the affirming the judgment for the amount of excess, the Georgia Supreme Court first noted the insurer may be liable to its insured for failing to settle a claim “where the insurer is guilty of negligence, fraud, or bad faith.” 262 Ga. at 268. While reiterating the equal consideration rule, the Court further stated “[a]n insurance company does not act in bad faith solely because it fails to accept a settlement offer within the deadline set by the injured person’s attorney.” Id. at 269. The Court, however, rejected the insurer’s argument “that an insurance company has no duty to its insured to respond to a deadline to settle a claim within policy limits when the company has knowledge of clear liability and special damages exceeding the policy limits.” Id. (emphasis in the original). The Court found the insurer did more than simply fail to settle within the time frame set by the plaintiff’s attorney. The insurer had information, including medical bills and documented lost wages, which showed special damages alone, exceeded the limits of the insured’s policy. The insurer’s claims representative acknowledged he had the information, but he testified he needed medical documents to support it. The Court noted, however, that neither the claims representative nor the claims manager requested an extension of time to evaluate the plaintiff’s claim. Thus, there was some evidence for the jury to conclude the insurer did not give equal consideration to the interest of its insured.
Lance Armstrong is riding a new tour these days, but instead of fresh air and the beautiful landscapes of France, this tour will be inside offices (lawyers’ offices) and courtrooms. Yes, it is the Tour de Courts. Since his confession to doping in an interview with Oprah Winfrey, his legal problems have compiled dramatically.One of the more public legal disputes is with SCA Promotions (SCA). SCA helps companies run promotions that involve large payouts – payouts that these companies would otherwise not be able to offer. For example, suppose a company sponsors a “half-court shot” during a local college game. A contestant is selected to make the shot. If that contestant makes the basket, he or she wins $250,000. The sponsoring company will pay a percentage of the total prize offering to SCA. If the basket is made, SCA pays the $250,000. It’s an insurance of sorts with the fees acting as a kind of premium.
On March 27, 2013, a jury in federal district court in Bridgeport, Connecticut awarded Cara Munn, a 20-year-old woman who formerly attended the Hotchkiss School in Lakeville, Connecticut, $41,750,000 in a case styled Orson D. Munn III et al. v. The Hotchkiss School, No. 3:09cv0919 (SRU). The case raises important issues concerning "duty" and "assumption of risk."The jury determined that Hotchkiss, a prestigious prep school, was negligent for two reasons: (1) in failing to warn plaintiff before or during a school sponsored trip to China during the summer of 2007 about the risk of insect-borne illness on the trip; and (2) in failing to ensure that plaintiff used protective measures to prevent infection by an insect-borne disease while visiting Mt. Pan in China.
In a decision made public on April 8, 2013, the United States District Court, for the Northern District of California, effectively put an end to fracking in the Monterey Shale Formation, for the time being, with its opinion in Center for Biological Diversity and Sierra Club v. The Bureau of Land Management and Ken Salzar, Secretary of the Department of the Interior, Case No. 11-6174 PSG. Although the Court made clear that the policy question of whether fracking is a good thing or a bad thing is outside the Court’s bailiwick, it is apparent from the Court’s decision that fracking may continue to be subject to intense judicial scrutiny.In this case, the plaintiffs challenged the decision of the Bureau of Land Management (“BLM”) and Interior Secretary Ken Salazar’s sale of four oil and gas leases for approximately 2,700 acres of federal land in Monterey and Fresno counties, in California. The Plaintiffs argued that the leases were sold in violation of the National Environmental Policy Act (“NEPA”) and the Mineral Leasing Act of 1920 (“MLA”). The Court found that the lease terms did not violate the MLA, but that the leases were issued in violation of NEPA.
The Connecticut Supreme Court is presently considering whether claims for breach of contract against a contractor for failing to properly construct a building may constitute an “occurrence” under a commercial general liability policy. At issue in Capstone Development Corp. v. American Motorists Ins. Co., No. SC 18886 are various questions certified from a federal district court in Alabama concerning the availability of insurance coverage for defects in the construction of buildings an the University of Connecticut.Meanwhile, the U.S. Court of Appeals for the Second Circuit has issued a new ruling calling into question an earlier precedent that insurers have relied on in disputing such claims. In Scottsdale Ins. Co. v. R.I. Pools, Inc., No. 11-3529 (2d Cir. March 21, 2013), the Second Circuit reversed a Connecticut District Court’s declaration that a liability insurer did not owe coverage for claims brought against its insured by purchasers of swimming pools for damage the purchasers sustained when cracks developed in their pools.