CM Report of Recent Decisions (2008v2)
2008 Volume 2
A summary of significant recent developments in the law focusing on substantive issues of litigation and featuring analysis and commentary on special points of interest.
Download this publication as a PDF
Articles in this report
Gene Expression And Protein Profiling -- Can They Prove Causation In Toxic Tort Cases?
An exciting new development in toxic tort litigation is the use of gene expression and protein profiling to prove or disprove whether a toxic agent, such as benzene, has caused the claimant’s injury.
New York Appellate Court Reiterates Duty Of Insurer To Advise Insureds Of Their Right To Independent Counsel Where A Conflict Exists And That Failure To Do So Further Constitutes A "Deceptive Trade Practice"
A New York intermediate appellate court (Third Department) held that, where an insurer may face liability based upon some of the grounds for recovery asserted but not upon others, the insured defendant is entitled to be represented by an attorney of his or her own choosing at the expense of the insurer and that an insurer’s failure to meet its “affirmative obligation” to so inform the insured is further a deceptive trade practice under New York’s General Business Law, § 349.
Ninth Circuit Reiterates The Applicability Of Uberrimae Fidei To Marine Insurance And Mandates Utmost Good Faith In The Context Of Vessels Pollution Insurance, Absent Clear Policy Language Unequivocally Superseding The Good Faith Obligation
In Certain Underwriters at Lloyds, London v. Inlet Fisheries Corp., 518 F.3d 645 (9th Cir. 2008), and New Hampshire Ins. Co. v. C’est Moi, Inc., 519 F.3d 937 (9th Cir. 2008), the Ninth Circuit emphasized that the doctrine of uberrimae fidei requires that an insured fully and voluntarily disclose to the insurer all facts material to a calculation of an insurance risk, and held the principle applicable to vessel pollution insurance, as well as other marine insurance where a policy lacks any unequivocally superseding language.
Seventh Circuit Adopts New Standard For Reviewing Non-Economic Damage Awards
The United States Court of Appeals for the Seventh Circuit holds that in determining whether a non-economic damages award is excessive, the trial court on post-trial motion and the Court of Appeals on review should apply a comparison analysis.
Significant Recovery Opportunities Where An Insured Breaches Its Reimbursement Policy Obligations For Advanced Deductible, Self-Insured Retention, Or Other Fronted Costs, CM Report of Recent Decisions
When an insured fails to fulfill its contractual duties to reimburse its insurer, a right of recovery exists for amounts due under the policy.
The Supreme Court Establishes A New Standard For The Computation Of Punitive Damages Under Maritime Law: The Ratio Of Punitive to Compensatory Damages May Not Exceed 1:1
In Exxon Shipping Co., et al., v. Grant Baker, No. 07-219, 2008 U.S. LEXIS 5263 (June 25, 2008), the Supreme Court, addressed the appropriate measure of punitive damages under general maritime law and held that, in order to promote predictability and consistency in the computation of punitive damages, the ratio of punitive to compensatory damages should never exceed 1:1.
Waiver of Subrogation Provision Is Enforceable Against Gross Negligence Claim And Applies To Both The Work And Non-Work Property
The Nebraska Supreme Court holds in Lexington Ins. Co. v. Entrex Communication Services, Inc., 749 N.W.2d 124 (Neb. 2008), that a waiver of subrogation provision in a construction contract will bar claims of gross negligence. The court further held that the waiver applied to not only the property included within the Project/work, but other non-work related property.
What To Do If The Department Of Labor Knocks On Your Door
Wage and hour class actions are on the rise. In fact, such Fair Labor Standards (FLSA) lawsuits are up 120% since 2000! FLSA lawsuits now have surpassed the number of discrimination lawsuits filed per year.
