|
|  |
|
|
|
This Week's Feature
|
“LET’S GET PHYSICAL” — EXPANDING COVERAGE FOR INTANGIBLE HARMS
By John T. Harding
Morrison Mahoney LLP
Boston, Massachusetts
A fundamental requirement of virtually every CGL policy is that there must be “physical injury to tangible property” or “loss of use of tangible property that is not physically injured.” Related to these threshold requirements in the context of claims involving allegedly defective work are the so-called “business risk” exclusions that serve to deny coverage for claims that arise from the insured’s faulty workmanship, as compared with harm caused by a third party. However, in a recent decision issued by the First Circuit Court of Appeals, the court determined that intangible odors could satisfy the definition of what constitutes compensable “property damage” under a CGL policy. Essex Insurance Company v. BloomSouth Flooring Corporation, 562 F.3d 399 (1st Cir. 2009). In doing so, the court reversed a decision on summary judgment of a magistrate judge who found that Essex Insurance Company (Essex) was not obligated to defend or indemnify a contractor in connection with an underlying case alleging indoor air pollution from odor contamination caused by faulty installation of carpeting. If followed by other courts, the decision in BloomSouth clearly has the potential to give new meaning to the question: “What’s that smell?”
[FULL STORY]
|
|
|
Legal News
|
Supreme Court Decision: Atlantic Sounding Co., Inc. v. Townsend, No. 08-214
On June 25, 2009, in a 5-4 decision, the Supreme Court held that a seaman bringing suit under general maritime law for the willful failure to pay “maintenance and cure” (which includes medical care, a living allowance, and wages) may recover punitive damages.
[FULL STORY]
|
Certiorari Granted: ERISA—Deference to Plan Administrator’s Interpretation—Standard of Review
Employee retirement programs are governed by written plans that are regulated by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001 et seq. The default rule is that a plan administrator’s interpretation of an ERISA benefit plan, including benefit determinations under such a plan, is subject to de novo review in court. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), however, the Supreme Court held that if a plan grants the administrator discretionary authority to determine benefits, the administrator’s benefits determinations are entitled to judicial deference.
[FULL STORY]
|
Certiorari Granted: Arbitration Agreements—Labor Management Relations Act—Tortious Interference
On June 29, 2009, the Supreme Court agreed to resolve questions of both labor relations and arbitration law in a case involving a dispute over whether the parties entered into a collective bargaining agreement and a subsequent strike. Three years ago, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440 (2006), the Court held that when a party challenges the validity of an entire contract that contains an arbitration provision, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., requires the party to present those arguments to an arbitrator rather than a court. Buckeye’s holding has been applied to labor arbitration agreements as well.
[FULL STORY]
|
Oklahoma Passes Significant Tort Reform Legislation
By Craig T. Liljestrand and Paul M. Markese
Hinshaw & Culbertson LLP, Chicago, Illinois
The State of Oklahoma just recently passed sweeping tort reform legislation, which according to Governor Brad Henry (D), “[e]nacts reasonable and responsible reforms that improve the civil justice system without impairing a citizen’s constitutional right to have his or her legitimate grievances appropriately addressed in court.” The law entitled, The Comprehensive Lawsuit Reform Act of 2009, will, according to many Oklahomans, create jobs, increase health care accessibility in all corners of the state and show companies that Oklahoma is “open for business.” The new law contains strong improvements to a variety of tort reform principles, including class action reforms, product liability reforms, a cap on non-economic damages and asbestos/silica reforms.
[FULL STORY]
|
|
|
DRI News
|
Sports Law
On Thursday, June 18, 2009, Timothy Liam Epstein, an associate in SmithAmundsen’s Chicago office and chair of the firm's Sports Law Practice Group, appeared on Good Day Chicago. During the morning program, airing on Fox Chicago, Timothy discussed the recent allegations levied by the New York Times claiming Sammy Sosa tested positive for steroid use in 2003. In a 2005 hearing before Congress, through a statement read by his attorney, Sosa denied using illegal performance-enhancing drugs. A congressional committee is now looking into whether perjury charges should be brought against Sammy Sosa.
|
71 Days and Counting…
Only 71 discount days left to save $100 on your Annual Meeting registration. Don’t delay, register today!
|
NEW RELEASE!
Current Issues in Medical Liability and Health Care Law
Medical liability litigation attorneys and health care law attorneys face many varied and distinct issues. Often the separate roles of the health care law attorney and the medical liability litigation attorney become intertwined on overlapping issues, such as e-discovery and informed consent. This publication explores some of these overlapping issues in a comprehensive discussion aimed at providing a good factual background and practical tips for lawyers in both fields. Topics addressed include: the Stark Law; informed consent; Good Samaritan laws; the impact of e-discovery on health care litigation; EMTALA; the impact of Medicare liens on litigation and settlement; the Patient Safety Act; determining the value of medical services as they relate to a plaintiff's damages claim. Click here to order your copy today and for more information on this new publication!
|
|
|
And The Defense Wins!
|
DRI member Michael Gallagher of Hays, McConn, Rice & Pickering in Houston, Texas, teamed with a partner recently to successfully represent the Open Pines Condominium Owners Association, Inc. The plaintiffs own eight condominiums in the Open Pines subdivision in north Houston. In May 2006, following the annual meeting, the association decided to send out a special assessment to raise funds to repair the siding on each condominium. The plaintiffs paid approximately $18,000 of the special assessment, and then sued the association for breach of contract. The plaintiffs claimed that the May 2006 special assessment violated the condominium declaration and bylaws for Open Pines. The plaintiffs were represented by the Law Offices of Harrison R. Fisher, Sr.
[FULL STORY]
|
DRI member Kenneth C. (“KC”) Ward of the California law firm of Archer Norris obtained a defense verdict in a vehicular death case, Escamilla v. Cox Petroleum Transport in the Fresno County Superior Court of California. It all started when a drunk driver rolled his vehicle, which landed upside down in the middle of a rural unlit highway near Fresno, California. The defendant, the driver of a Cox Petroleum double tanker, braked sharply in an effort to avoid an overturned car. Unable to stop in time and prevented by oncoming traffic from moving to the left, he drove off road into a vineyard. By this action, the driver inadvertently struck the decedent who had abandoned his vehicle and was standing by the side of the road.
[FULL STORY]
|
Robert F. Parker, a partner in the Northwest Indiana firm of Burke, Costanza & Cuppy, LLP, teamed with an associate in the firm recently to successfully defend a nursing and rehabilitation facility in a slip and fall case tried in Valparaiso, Indiana. The claim arose when a hospice worker fell while entering the facility to attend a resident. She claimed that a rubber mat located at the entrance to the facility had a kink in it, causing her to trip and fall. Defense witnesses testified that there was no kink in the mat.
[FULL STORY]
|
DRI attorneys Jim Martin and Jeff Gibson of Macfarlane Ferguson & McMullen, P.A. in Clearwater, Florida successfully represented Morton Plant Hospital Association, Inc. in a medical malpractice case involving a patient with an atonic uterus. The plaintiff alleged that the failure of the obstetrical nurses in the post anesthesia care unit to adequately monitor the plaintiff caused her uterus to become distended and atonic. Additionally, she contended that her obstetricians failed to discover a cervical laceration which ultimately resulted in the loss of her uterus and premature ovarian failure.
[FULL STORY]
|
DRI members John Shaffery and John Grannis of Poole & Shaffery, LLP in Los Angeles recently scored a major appellate defense victory for their clients Baldor Electric, Extruded Metals, and Talco Metals in the case of Roberto Navarrette, et al. v. Armite Laboratories, Inc., et al. (Civil Appeal No. B203997). In this consolidated action, 217 plaintiffs alleged that they had sustained a wide variety of different illnesses and diseases, including pulmonary fibrosis, asthma, cancer, diabetes, pancreas damage, allergies, liver problems, osteoporosis, arteriosclerosis, emphysema, headaches, dizziness, high blood pressure, low blood pressure, and “disturbance in protein metabolism,” all as a result of their alleged occupational exposure to silica, metals, and other carcinogenic compounds and products while working at the former Price Pfister plant in Pacoima, California.
[FULL STORY]
|
Keep those defense wins coming! Send a short summary and recent photo of yourself to Barb Lowery by email (blowery@dri.org).
|
|
|
Legislative Tracking
|
FEDERAL: House Passes Clean Energy and Security Act
On June 26, 2009, the U. S. House of Representatives passed H. R. 2454, the American Clean Energy and Security Act of 2009. The bill, sponsored by Rep. Waxman of California, contains sweeping legislation intended “to create clean energy jobs, achieve energy independence, reduce global warming pollution, and transition to a clean energy economy.” The House passed the bill by a recorded vote of 219-212.
TENNESSEE (Contributor: Samuel P. Helmbrecht, Watkins & McNeilly, PLLC)
CONSTRUCTION LAW
HB1252/SB1417: Contractors (Amending TCA Tit. 47 Ch. 18, 25, Tit. 62, Ch. 6; Tit. 66 Ch. 34.
• As introduced, establishes as an unfair act under the Consumer Protection Act the practice of a general contractor requiring a subcontractor as a condition of being awarded a job to waive the subcontractor's lien rights.
• 2/18/09 - referred to Senate Commerce, Labor and Agriculture Committee.
• 5/4/09 - SB1417 passed in Senate.
• 5/7/09 - SB1417 received by House and substitutes HB1252.
• 5/21/09 - SB1417 passed in House.
• 6/4/09 - SB1417 signed by Senate Speaker.
• 6/8/09 - SB1417 signed by House Speaker.
• 6/23/09 - SB1417 signed by Governor.
EMPLOYMENT LAW
HB93/SB277: Hospitals and Health Care Facilities (Amending TCA 68-11-256)
• Requires criminal background checks to be conducted for direct care employees prior to employment instead of prior to employment or within seven days of employment.
• 3/3/09 - HB93 deferred in House Health & Human Resources Committee.
• 5/14/09 - HB93 passed in House as amended.
• 5/18/09 - HB93 received in Senate and substitutes SB277.
• 6/4/09 - HB93 signed by Senate Speaker.
• 6/8/09 - HB93 signed by House Speaker.
• 6/9/09 - HB93 signed by Governor.
[MORE]
|
|
|
Quote of the Week
|
You are never to old to set another goal or to dream a new dream.
—C.S. Lewis
|
|
|
DRI Cares
|
Bunkers in Baghdad, Inc. is a not-for-profit public charity founded by Joseph M. Hanna, a partner with Goldberg Segalla LLP in Buffalo, New York. Its purpose is simple — to collect golf balls and golf clubs and ship them overseas to soldiers stationed in Iraq and Afghanistan and to wounded veterans back here at home to aid in their rehabilitation. The idea was inspired by David Feherty’s 2007 article in Golf Magazine detailing his experiences on a USO tour in Iraq and Kuwait. The article described numerous makeshift driving ranges throughout Iraq, as golf has become a popular way to reduce stress for the soldiers.
[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
|
DRI's National Workers' Compensation Review
August 17-18, 2009
Orlando World Center Marriott, Orlando, Florida
Construction Law
September 10-11, 2009
The Palace Hotel, San Francisco, California
Nursing Home/ALF Litigation
September 10-11, 2009
The Westin Kierland, Scottsdale, Arizona
Strictly Automotive
September 24-25, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Appellate Advocacy
November 5-6, 2009
Hilton La Jolla Torrey Pines, La Jolla, California
Asbestos Medicine
November 12-13, 2009
Fontainebleau Miami Beach, Miami, Florida
For all other seminars, webconferences and webcasts, click here.
|
|
| |
|
|
Trucking Policyholder's Duty to Preserve Coverage
Defending Damages Claims in Business Tort Cases
|
