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This Week's Feature
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Timing Is (Almost) Everything: Potential Exposure in Cases Involving Assignments and Covenants Not to Execute
By Louis C. Long
When a plaintiff grants a covenant not to execute against an insured’s personal assets in exchange for an assignment of the insured’s rights to proceed against the insurer, can the plaintiff recover from the insurer the entire amount of a subsequent judgment in excess of policy limits? The West Virginia Supreme Court of Appeals — customarily a court antagonistic to the interests of the insurance industry — surprisingly responded in the negative in Strahin v. Sullivan, 2006 W.Va. LEXIS 6 (W.Va. February 21, 2007).
[FULL STORY]
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Legal News
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Supreme Court Ruling: Ledbetter v. Goodyear Tire & Rubber Co., No. 05-1074
Title VII of the Civil Rights Act of 1964 requires that an individual wishing to challenge an allegedly discriminatory employment practice first file a charge with the Equal Employment Opportunity Commission ("EEOC"); the statute also imposes a limitations period, under which a plaintiff generally must file that charge within 180 days of when the "alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1). Lilly Ledbetter, a former employee of Goodyear Tire, alleged that she received poor work evaluations because of her sex and, therefore, was denied raises to which she was entitled. Ledbetter conceded that those actions took place more than 180 days before her charge was filed with the EEOC.
[FULL STORY]
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DRI News
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Powell Nominated for Federal Judge
William J. Powell, the administrative manager of the Martinsburg, West Virginia office of Jackson Kelly PLLC, has been nominated by President Bush to a seat on the United States District Court for the Northern District of West Virginia. The Senate must confirm the nomination. Mr. Powell’s current practice focuses on the defense of civil litigation and white-collar crime matters. He has been a DRI member since 1992. Mr. Powell is also a member of the Association of Defense Trial Attorneys, the Defense Trial Counsel of West Virginia and the National Association of Criminal Defense Lawyers.
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2007 Burton Award Law Firm Winners
Established in 1999, this unique national awards program was created to reward effective legal writing. This year, DRI members Kenneth Ross and George W. Soule of Bowman and Brooke LLP in Minneapolis were honored for their article, “Post-Sale Duties: A Minefield for Manufacturers,” published in the fall 2006 issue of In-House Defense Quarterly. Also, DRI member Dean L. Franklin of Thompson Coburn LLP in St. Louis co-authored another winning article, “Liability of Computer Maintenance Providers Under Copyright Law: Storage Tech. Corp. v. Custom Hardware Eng’g & Consulting, Inc.” Congratulations to the authors and their law firms!
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The Insurance Law Committee will present its teleconference "Duty To Defend, Settle & Indemnify & Ethical Considerations" on Tuesday, June 5 from 2:00 - 3:30 p.m. Central. This teleconference teaches fundamental insurance principles related to liability insurance. Topics include when and how the duty to defend is triggered in different states, what it does and does not entail (covered vs. non-covered vs. uncoverable claims), how it relates to the duty to settle, and the consequences of failing to defend or to settle. Click here to register or call KRM Information Services at 800.775.7654.
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Declaration of Candidacy Forms Due July 1
Four new Director Elected Nationally seats on the DRI Board of Directors, plus the office of Second Vice President, will be filled at the 2007 Annual Meeting in Washington, D.C., October 10-14. To be considered for either position, a DRI member must first file a Declaration of Candidacy form. For more information, please contact Nancy Parz at DRI headquarters: nparz@dri.org or 312.698.6224. Declarations are due by July 1, 2007.
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And The Defense Wins!
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On February 9, 2007, DRI member Jerry Fazio of Owen & Fazio, P.C. in Dallas, Texas, won a case at the Texas Supreme Court on behalf of his client, Jack in the Box, Inc. The court held that an employer in Texas that does not have workers' compensation has no duty to warn an employee of an obvious danger or one which is of "common knowledge.” The Texas Supreme Court reversed the Dallas Court of Appeals and affirmed the trial court's granting of summary judgment. (Jack In The Box, Inc. vs. Skiles, No.05-0911)
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The United States Court of Appeals for the Eleventh Circuit has affirmed a federal district court ruling in favor of Lil’ Joe Records Inc. in a copyright infringement case brought by Jeffrey Thompkins, a.k.a. rapper JT Money. Thompkins had sued Lil’ Joe Records, claiming that it did not legally hold the copyrights to songs made by his group, Poison Clan. “The trial and appellate courts both understood that the copyrights at issue here had properly been conveyed to our client,” said attorney David H. Levitt of Hinshaw & Culbertson LLP in Chicago, which represented Lil’ Joe Records.
[FULL STORY]
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Patrick A. Lanius of Lanius & Associates in El Dorado Hills, California, secured two medical malpractice defense victories recently. In the case of Sander vs. Carolyn Collins, M.D. and Cancer Care Consultants of Northern California, the plaintiffs contended that Carolyn Collins, M.D. breached the standard of care for medical oncologists in her assessment of Mr. Sander on November 29, 2004. Mr. Sander had been diagnosed with recurrent testicular cancer and had commenced chemotherapy treatment on October 18, 2004. He was set to undergo three cycles of chemotherapy involving the administration of VP16, Cisplatin and Bleomycin through a central venous catheter (CVC) previously threaded through his right internal jugular (IJ) and subclavian (SC) veins.
[FULL STORY]
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The Louisiana Supreme Court has reinstated a jury verdict in favor of Mitsubishi after two years of appeals. Mitsubishi was represented at trial and on appeal by Keith W. McDaniel and Lance B. Williams of McCranie, Sistrunk, Anzelmo, Hardy, Maxwell & McDaniel PC in Covington, Louisiana.
[FULL STORY]
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Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery via e-mail (blowery@dri.org) or fax (312.795.0747).
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SLG Spotlight
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FRANCHISE & DEALER LITIGATION SLG
As DRI’s Commercial Litigation Committee continues to grow, we want to reinvigorate the Franchise & Dealer Litigation SLG along with it. The goal of the Franchise & Dealer Litigation SLG is to provide a forum for in-house counsel and outside counsel to exchange ideas, network and gain knowledge concerning the myriad claims that arise in the course of the franchise and distribution relationship. With high stakes litigation between franchisors and franchisees becoming more prevalent, and with state legislatures and certain courts increasing the claims that are available to franchisees and blocking mandatory arbitration, the need for specialized expertise in this field is greater than ever before.
[FULL STORY]
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Legislative Tracking
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 Legislative Update — ASBESTOS/SILICA
Michigan
MI SB 552: Asbestos and Silicosis Compensation Fairness Act.
• A bill to amend 1961 PA 236, entitled "Revised Judicature Act of 1961," by amending section 5827 (MCL 600.5827) and by adding chapter 30 and section 5840; stating that a person shall not bring or maintain a civil action alleging an asbestos claim based on a nonmalignant condition unless the person makes a prima facie showing that the exposed person has or had a physical impairment resulting from a medical condition to which exposure to asbestos was a substantial contributing factor; and for related purposes.
• 05/25/2007 – Introduced; referred to Judiciary Committee.
PROFESSIONAL LIABILITY
Georgia
GA HB 221: Professional malpractice charges.
• An Act to amend Article 3 of Chapter 11 of Title 9 of the Official Code of Georgia Annotated, relating to pleadings and motions, so as to change certain provisions regarding when an affidavit is required to accompany an action for damages alleging professional malpractice; to provide procedures for the filing of an affidavit under certain circumstances; to provide for the timing of a defendant’s answer under certain circumstances; to correct a cross-reference; to provide for an effective date and applicability; to provide for related matters; to repeal conflicting laws; and for other purposes.
• 05/18/2007 – Signed by Governor; effective 07/01/2007.
TOXIC TORTS AND ENVIRONMENTAL LAW
Rhode Island
RI SB 397: Industrial property remediation and reuse.
• This act would provide civil penalties against any person, firm or business that violates the provisions of this chapter or the rules, regulations and orders issued pursuant thereto.
• 05/29/2007 – Senate passed as amended.
MISCELLANEOUS
Nevada
NV HB 483: Makes various changes to provisions pertaining to civil actions.
• An Act relating to civil actions; increasing the amount of the homestead exemption; providing that certain property of a judgment debtor is exempt from execution; increasing the amount of damages that may be awarded in certain tort actions brought against a governmental entity or its officers or employees; and providing other matters properly relating thereto.
• 05/28/2007 – Enrolled and delivered to Governor.
Oregon
OR HB 2345: Relating to dogs.
• Eliminates lack of foreseeability as defense in action against owner of dog that caused injury. Does not prevent owner from asserting other defenses or affect award of certain punitive damages.
• 05/24/2007 – Judiciary Committee recommendation: Do Pass with Amendments; to Second Reading.
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Quote of the Week
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It takes less time to do a thing right than it does to explain why you did it wrong.
—Henry Wadsworth Longfellow
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Vital Verdicts
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Employment — Executive’s firing was justified, judge says
A judge rejected the discrimination claims of a company executive who claimed he was fired over his fear of flying. Anthony Kuchta, then 39, was the vice president of sales in North America for Neopost Inc. Kuchta had a fear of flying that the company attempted to accommodate until February 2003 when the his position was eliminated and replaced with a vice president of direct sales position requiring frequent travel. Kuchta turned down the job and two others, claiming they were not comparable. Negotiations broke down and in May 2003, Kuchta was terminated. Kuchta claimed his fear of flying was the sole reason for his firing.
[FULL SUMMARY]
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Medical Malpractice ― Nurse not to blame for infant’s leg amputation, jury says
A jury rejected a couple's claim that their son's leg was amputated because of a nurse's negligent injection of vitamin K shortly after birth. The parents of Timothy Houston claimed that the nurse at Baptist Medical Center of the Beaches gave the injection in an artery, when it should have been administered into the muscle. Their attorney argued that this resulted in a clot in the iliac artery and pulmonary hypertension, which led to the amputation a month later.
[FULL SUMMARY]
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DRI CLE Calendar
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Duty to Defend, Settle & Indemnify & Ethical Considerations (teleconference)
June 5, 2007
Young Lawyers
June 7-8, 2007
San Diego Marriott Hotel, San Diego, California
Diversity for Success
June 14-15, 2007
The Fairmont Chicago, Chicago, Illinois
Insurance Bad Faith
June 21-22, 2007
Renaissance Washington, DC Hotel, Washington, DC
Discovery of Disaster Recovery, Legacy & Inaccessible Data (teleconference)
June 26, 2007
Construction Law
September 6-7, 2007
The Westin Kierland, Scottsdale, Arizona
Strictly Automotive
September 6-7, 2007
Hotel del Coronado, San Diego, California
Nursing Home/ALF Litigation
September 27-28, 2007
Bellagio, Las Vegas, Nevada
Preeminent Trial Lawyers ― Superstars of Trial
September 27-29, 2007
The Westin Michigan Avenue, Chicago, Illinois
For all other seminars and teleconferences, click here.
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Jury Instructions for Employment Defense Litigators
Understanding the New E-Discovery Rules
2007 Annual Meeting
October 10-14
Washington, D.C.
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