|
|  |
|
|
|
This Week's Feature
|
Court Limits Use of "Known Loss" Doctrine
By John T. Harding, Morrison Mahoney LLP
Boston, Massachusetts
Reflecting a growing trend by courts to restrict an insurer’s reliance on the “known loss” doctrine to all but the clearest of cases, the First Circuit Court of Appeals recently vacated a grant of summary judgment for an insurer in a declaratory judgment action relating to coverage for a complex libel claim. Employers Reinsurance Corp. v. Globe Newspaper Co, Inc., et al., No. 08-1733 (1st Cir., March 19, 2009). In essence, the court held that even where an insured has knowledge of the relevant facts and a claim has been asserted prior to the issuance of the policy, the insurer cannot invoke the principle of “known loss” to defeat the claim. Given the narrow reading of the doctrine by the First Circuit, it appears that the principle would only apply if there has been an actual adjudication of the insured’s liability before the policy incepts: in other words, the fire must not only be in progress but have actually burned down the entire house for coverage to be barred.
[FULL STORY]
|
|
|
Legal News
|
California Appellate Court Again Strikes Down Class-Arbitration Waiver in Employment Agreement
On March 17, yet another California appellate court held that an employer could not enforce an employee’s agreement to arbitrate employment disputes on an individual basis. The plaintiff in Sanchez v. Western Pizza Enters., Inc., No. B203961, had filed a putative class-action lawsuit alleging that his employer did not adequately reimburse employees for driving expenses incurred in the performance of job duties; as a result, the plaintiff claimed, employees were paid less than the legal minimum wage. The decision is of interest to employers that use arbitration agreements with their California employees and, more broadly, to all businesses operating in California that use arbitration agreements. For the full report, click here. (Source: Mayer Brown LLP)
|
|
|
DRI News
|
Congratulations to Timothy G. O’Neill, the administrative partner of Snell & Wilmer LLP's Denver office, who was recently inducted as a Fellow of the American College of Trial Lawyers. Mr. O’Neill has been a DRI member since 1994.
|
An important decision in Beck v. Dombrowski has been rendered by the United States Court of Appeals for the Seventh Circuit. Particularly noteworthy is Judge Posner's citation with approval to an article authored by Steven Puiszis of Hinshaw & Culbertson in Chicago. Steve Puiszis is currently serving as the DRI State Representative for Illinois and has been an active DRI member. He was also a past president of the Illinois Association of Defense Trial Counsel. Congratulations to Mr. Puiszis. Click here to read the decision; page 13 contains the reference.
|
National Foundation for Judicial Excellence – Fifth Annual Judicial Symposium
Established in 2004, the National Foundation for Judicial Excellence (NFJE) is a not-for-profit organization dedicated to supporting an independent, well-informed judiciary in order to preserve excellence and fairness in the civil justice system. Its mission is to address important legal policy issues affecting the law and civil justice system by providing meaningful support and education to the judiciary.
[FULL STORY]
|
Commercial and Intellectual Property Litigation Symposium — Litigating the Financial Meltdown and Protecting Your Intellectual Property
April 22-24, 2009
Wyndham Chicago Hotel
Chicago, Illinois
DRI's Commercial and Intellectual Property Litigation Symposium presents a unique opportunity for high quality education and networking. You can earn 20 hours of MCLE, including 1 hour of ethics, while networking with colleagues specializing in these practice areas. You will hear from leaders in their fields about developing issues in business and intellectual property litigation. Beginning with a focus on litigation issues arising from disruption in the financial and credit markets, this three-day program will include in-depth discussions about a broad range of business and intellectual property litigation issues.
[FULL STORY]
|
Last Chance to Register for DRI Webcast: Implications of Supreme Court’s Preemption Decision in Wyeth v. Levine and Possible Strategies in Response
The United States Supreme Court’s recent decision in Wyeth v. Levine involved a critical issue of federal preemption of state tort claims. The Court held that federal law did not preempt plaintiff Levine’s state-law claim that labeling for the prescription drug Phenergan failed to adequately warn about the risks of a particular method of administration. But the ruling held open the possibility that preemption still would apply in future cases involving a different record. DRI’s March 27th webcast features Michael W. Davis, head of Sidley Austin LLP’s product liability and mass torts practice in Chicago and chair of DRI’s Drug and Medical Device Committee, and Rebecca K. Wood, a partner in the appellate and product liability practices at Sidley Austin LLP in Washington, D.C. Both represented DRI as amicus curiae in the U.S. Supreme Court in Wyeth v. Levine and Riegel v. Medtronic, Inc. Click here to view the program flyer, To register for the live webcast, click here.
|
Defending Damages Claims in Business Tort Cases
This new Defense Library Series publication tackles the difficult task of dealing with damages claims in cases in which business torts are alleged. The authors are experienced business litigators, who are also active members of the DRI Commercial Litigation Committee. The articles included in this publication address the following topics: Lost profits in business torts; Calculating damages for misappropriation of trade secrets; Potential impact of poaching (analysis of availability of punitive damages in corporate raiding cases);Damages in copyright and trademark actions; Corporate damages under Title VII and other civil rights statutes that apply to employment; Liquidated damages versus penalties; Damages for tortious interference; Prejudgment interest; The application of enhanced fines under the Alternative Fines Act for antitrust defendants. To pre-order your copy today, click here.
|
IADC Corporate Counsel College
April 23-24, 2009
The Ritz-Carlton, Chicago
Outside Counsel – register today for the 2009 IADC Corporate Counsel College, April 23-24 in Chicago. Inside Counsel - you can register only if you bring an Outside Counsel as your guest. People keep coming back to the Corporate Counsel College for its sophisticated content and interactive format. This year's program will address topics such as: • New ideas: Maximizing the in-house and outside counsel relationship • Practical guidance for managing e-discovery costs • A view from D.C. – How the new administration and Congress are likely to impact the business community • The state of the global insurance industry and how it impacts corporate America • Preparing for and dealing with government investigations • A review of Civil Justice Reform efforts in light of changes in Washington • Hot areas for class actions. Click here to download the brochure.
|
|
|
And The Defense Wins!
|
DRI member Deborah A. Kane, a partner in the Pittsburgh office of Weber Gallagher Simpson Stapleton Fires & Newby, LLP, scored a recent trial victory in a medical malpractice case in Jefferson County, Pennsylvania. The plaintiff, the daughter of the decedent, claimed that the defendant family practice physician failed to timely diagnose lung cancer.
[FULL STORY]
|
DRI Product Liability Committee members Philippa V. Ellis and Richard J. Baker of Owen, Gleaton, Egan, Jones & Sweeney, LLP in Atlanta, Georgia, obtained the dismissal of American Honda Motor Co., Inc. based on the Consumer Product Safety Act’s preemption of the plaintiff’s failure to warn claim. Whenever a consumer product safety standard has been created under the CPSA to address a risk of injury associated with a consumer product, the CPSA preempts any state law that prescribes any different requirements which are designed to deal with the same risk of injury associated with that product.
[FULL STORY]
|
Senior partner Brett Smith and senior associate Daniel Karp with Fee, Smith, Sharp & Vitullo LLP in Dallas, Texas, recently completed a jury trial in a wrongful death nursing home case in Marshall, Texas that resulted in a defense verdict. The surviving family of the deceased resident of the nursing home claimed that the nursing home was negligent in allowing the resident in question to develop skin ulcers, failing to notify the resident's physician as to significant changes in the condition of her skin and allowing sepsis to develop, allegedly resulting in the resident's death.
|
DRI members Michael E. Kujawa and Kyle T. Gray of Judge, James & Kujawa LLC in Park Ridge, Illinois, recently obtained a defense verdict and all special interrogatories in favor of Metra in a FELA case. The plaintiff, a Metra employed conductor, fractured his right ankle upon stepping down from a trap door onto Metra’s roadbed between two Metra tracks. The evidence at trial demonstrated that a temporary wooden crossing, which had been installed by Metra forces in the area of the plaintiff’s accident, had been removed by Metra 16 days prior to the plaintiff’s accident. Upon stepping down from the trap door between the tracks, the plaintiff, age 60, allegedly twisted his ankle in “soft dirt.”
[FULL STORY]
|
A state district court jury in Columbia, Missouri returned a verdict in favor of Ford Motor Company on January 29, 2009, in the case of Gessling v Ford Motor Co., et al. Ford was represented by DRI members David R. Kelly, Fred J. Fresard and David N. Lutz of Bowman and Brooke LLP in Minneapolis and Detroit and by Rod Loomer of Turner, Reid, Dunkin, Loomer and Patton in Springfield, Missouri. The plaintiffs were represented by Douthit, Frets, Rouse, Gentile & Rhodes LLC in Kansas City, Missouri.
[FULL STORY]
|
DRI wants to hear about your latest win! Send a short summary and recent photo of yourself to Barb Lowery by email (blowery@dri.org).
|
|
|
Legislative Tracking
|
Fueled by DRI’s Young Lawyers Committee, this week’s report highlights legislation from Idaho through West Virginia. The Young Lawyers Legislative Subcommittee is led by co-chairs Emily Turner Landry of Baker, Donelson, Bearman, Caldwell & Berkowitz, PC in Memphis, Tennessee and Sean W. Shirley of Balch & Bingham LLP in Birmingham, Alabama, plus vice-chair Paul A. Wilhelm of Dykema Gossett PLLC in Detroit, Michigan. Special thanks to these leaders, along with all of the other state contributors.
|
IDAHO (Contributor: David P. Claiborne, Ringert Law Chartered)
HB 0042
Amends Idaho Code 41-295
Amends existing law relating to the Investigative Section of the Idaho Department of Insurance to provide that the Investigative Section may assist law enforcement agencies in applying for, serving and executing search warrants for violation of the Idaho Insurance Code.
2/2/09 - referred to House Business Committee
2/26/09 - recommended DO PASS by committee
3/2/09 - returned to committee
HB 0053
Amends Idaho Code 39-7102 et seq.
Amends existing law relative to emergency hazardous substance response to allow recovery and reimbursement of response costs, and to allow recovery of prelitigation costs and attorney fees.
2/3/09 - referred to House Transportation and Defense Committee
HB 138
New Law
Creates a negligence cause of action against individual responsible for introduction of non-native species or subspecies to state of Idaho that then causes injury or death to another; provides that government employees shall not have sovereign immunity with respect to same.
2/17/09 - referred to House Resource and Conservation Committee
S 1004
Amends Idaho Code 18-4006 et seq.
Amends criminal vehicular manslaughter statute to require restitution in the form of child support for minor children whose parents are killed in an automobile accident.
2/5/09 - Passed Senate
2/6/09 - Referred to House Judiciary Committee
S 1030
New Law
Adds law making it a criminal act to use a cellular telephone while operating a motor vehicle, subject to some exceptions, unless using a hands-free device.
1/26/09 - referred to Senate Transportation Committee
S 1031
New Law
Adds law making it a criminal act to use a wireless communication device (e.g., email, text messaging) while operating a motor vehicle, subject to some exceptions.
1/26/09 - referred to Senate Transportation Committee
MONTANA (Contributor: Julie A. Lemmer, Alston & Bird LLP)
ENERGY POLICY
MT HB 660: Creates the Large Scale Energy Development Infrastructure Impact Act.
• Requires that an application for a permit for any large-scale energy development include an impact plan describing the economic impact the large-scale energy development will have on local government units; creates an energy development impact account to assist local governments in meeting the initial financial impacts of large-scale energy developments creating a demand for increased facilities and services.
• This bill was introduced on March 17, 2009 and set for hearing by the Appropriations committee on March 20, 2009.
NATURAL RESOURCE MANAGEMENT
MT SB 507: Revises laws related to treatment of river beds.
• This bill provides that any person using the bed of a navigable river must file for authorization of the use by lease, license or easement.
• This bill was introduced on March 13, 2009, and set for hearing by the Taxation committee on March 19, 2009.
TAXATION
MT HB 651: Relates to generally revising laws related to taxation.
• This bill generally revises laws related to taxation, including providing rules for disclosures of a reportable transaction, and a penalty for failure to report a reportable transaction; providing a penalty for promoting abusive tax shelters; providing a penalty for a substantial understatement of a tax; providing penalties for failing to provide information or for filing a fraudulent return; providing for voluntary compliance programs; clarifying the interest rate on corporation license tax refunds; extending the time within which certain deficiencies may be assessed; requiring corporations to furnish other state returns and adjustments; requiring corporations to file information about state tax return items and filing positions taken in other states; requiring certain taxpayers that protest taxes assessed on certain centrally assessed property to support their asserted protest value with a written appraisal; and prohibiting the use of contingency fee appraisals in property tax appeals.
• This bill was introduced on March 12, 2009, and set for hearing by the Taxation committee on March 23, 2009
MT SB 504: Abolishes income tax with Revenue and Transportation Interim Committee designed replacement sales tax.
• This bill would repeal the Montana individual income tax, eliminating the tax effective January 1, 2012, providing sufficient time for the Revenue and Transportation Interim Committee to research and develop a statewide general retail sales and use tax as an alternative revenue source to the individual income tax.
This bill was introduced on March 10, 2009, and set for hearing by the Taxation committee on March 19, 2009.
[MORE]
|
|
|
Quote of the Week
|
You cannot shake hands with a clenched fist.
—Indira Gandhi
|
|
|
DRI Cares
|
DRI member Cheryl Kniffen, an associate at Thompson, Slagle & Hannan, LLC in Johns Creek, Georgia, serves as a board member with a group called Eternal Hope in Haiti, Inc. It is a Haitian non-governmental and charitable organization. Eternal Hope has dual purposes: (1) to support Hope Haven Orphanage, an orphanage for medically fragile children in the Cap Haitian area; and (2) to provide quarterly medical clinics in several different locations both inside the City of Cap Haitian and in the more remote areas outside Cap Haitian. After collecting donations and Christmas toys for the children, Ms. Kniffen spent seven days in Haiti (December 11-19, 2008) with her group, providing medical clinics to Haitian residents, most (if not all) of whom cannot afford medical care.
[FULL STORY]
|
Sending Your Submission
Are you or your law firm actively involved in community service or pro bono work? If so, DRI would like to hear about it. Please send a short article (750 words max) describing your involvement to Barb Lowery (blowery@dri.org). Representative submissions will be selected for inclusion in The Voice.
|
|
|
DRI CLE Calendar
|
Implications of Preemption Decision in Wyeth v. Levine and Possible Strategies in Response (webcast)
March 27, 2009
Insurance Coverage and Claims Institute
April 1-3, 2009
The Westin Michigan Avenue Chicago, Chicago, Illinois
Beyond a Great Lawyer: Masterful Marketing Skills for Your Practice (webconference)
April 14, 2009
Product Liability Conference
April 15-17, 2009
Hilton San Diego Bayfront, San Diego, California
Commercial and Intellectual Property Litigation Symposium
April 22-24, 2009
Wyndham Chicago, Chicago, Illinois
Life, Health, Disability and ERISA
April 22-24, 2009
Sheraton New York Hotel & Towers, New York, New York
Corporate Representative Deposition (webcast)
April 29, 2009
Employment Law
April 30-May 1, 2009
JW Marriott Orlando, Grande Lakes, Orlando, Florida
Electronic Discovery
May 7-8, 2009
Hilton New York, New York, New York
Culture Clash! Data Protection, Freedom of Information and Discovery — How to Protect Your Business in Transnational Disputes
May 13-14, 2009
Hotel Vier Jahreszeiten Kempinski, Munich, Germany
Drug and Medical Device Litigation
May 14-15, 2009
Sheraton New York Hotel & Towers, New York, New York
First Response — Extra-Record Discovery Request Post-Glenn (webcast)
May 20, 2009
Young Lawyers
June 4-5, 2009
Caesars Palace, Las Vegas, Nevada
For all other seminars, webconferences and webcasts, click here.
|
|
| |
|
|
Trucking Policyholder's Duty to Preserve Coverage
DRI Defense Practice Form Book
|
