CM Report of Recent Decisions
2004 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.
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Articles in this report
Admiralty Law May Not Preempt State Law Claims For Punitive Damages Or Attorney’s Fees
In federal court, when matters of first impression arise relating to insurance questions, the court will often turn to the relevant state's insurance law for guidance.
All Is Not Lost Simply Because A Target Defendant Has No Assets - - Pull Out The Magnifier And Investigate The Corporate Connections Of Your Target For Alternative Deep Pockets!
In situations where the successor liability or piercing the corporate veil may be an alternative liability avenue, obtaining corporate and business records and condusting a thorough fact investigation are crucial.
Two recent CM appellate victories of note suggest that reviewing courts are turning a more critical eye toward jury awards unfounded in law or resulting from an improper focus of race.
The appellate court reversed and remanded the case for trial. In so doing, the court focused on the interplay of policy provisions which excluded loss consisting of or caused by “rust or other corrosion, mold, wet or dry rot,” “loss to … property consisting of or caused by collapse” and the policy’s additional coverage section which provided coverage for “the entire collapse of a covered building structure[,] the entire collapse of a part of a covered building structure[,] and direct physical loss to covered property caused by” the entire collapse of a covered building structure or a part of a covered building structure.
Clausen Miller Victory Makes New Law: Illinois Joins the Majority of Jurisdictions In Holding That A Fidelity Bond Does Not Cover Third Party Liability Occasioned By Employee Dishonesty
The Illinois Appellate Court recently joined the majority of state and federal jurisdictions in holding that a fidelity bond does not cover an insured’s liability to a third party occasioned by employee dishonesty because such losses are not “direct” under the plain language of the bond.
As a general rule, one who employs an independent contractor is not liable for the independent contractor’s acts or omissions.
In An Admiralty Action, The Court May Strike The Plaintiff’s Jury Demand At Any Time
Plaintiffs argued that the absence of a federal statute entitling them to a jury trial does not mean that jury trials in admirality cases are prohibited.
The decision of whether to admit expert testimony is within the sound discretion of the trial court, and a ruling will not be reversed absent an abuse of that discretion.
If a potential adversary or someone on behalf of a potential adversary is going to preserve evidence that you have an interest in, you must send a letter to that potential adversary, or to the entity acting on behalf of the potential adversary, clearly and unambiguously advising them that: (1) the evidence will be used in an impending litigation; (2) they have a duty to preserve the evidence for your benefit; (3) you are willing to pay for any storage costs, on a pro rata basis; (4) failure to preserve the evidence will constitute a breach of their duty to preserve the evidence; and (5) failure to preserve the evidence will result in a claim being filed against them in a court of law relative to their spoliation of the evidence.
New York's Highest Court Enlarges Malpractice Liability--Mother May Recover Emotional Damages When Medical Malpractice Causes Miscarriage Or Stillbirth
In a split decision, the New York Court of Appeals has held that, even absent a showing of independent physical injury to her, a mother may recover damages for emotional harm when medical malpractice causes miscarriage or stillbirth. In Broadnax v.Gonzalez, 2004 WL 635298 (April 1, 2004), the majority overturned the Court of Appeals’ opinion in Tebbutt v. Virostek, 65 N.Y.2d 931 (1985), which had held that emotional damages resulting from miscarriage or stillbirth could be recovered by a mother only where she herself suffered an independent physical injury as a result of the medical malpractice.
Pollution Exclusion Covers Bacteria Contaminated Food
The disagreement between the parties centered on the interpretation of the term “contaminant.”
Seventh Circuit Affirms Punitive Damages 37 Times Greater Than Compensatory Award
In upholding the amount of punitive damages awarded, the court explained that the term “punitive damages” implies punishment and “a standard principle of penal theory is that the ‘punishment should fit the crime’ in the sense of being proportional to the wrongfulness of the defendant’s action, though the principle is modified when the probability of detection is very low (a familiar example is the heavy fines for littering) or the crime is potentially lucrative (as in the case of trafficking in illegal drugs) . . . hence, punitive damages should be proportional to the wrongfulness of the defendant’s actions.”
The court looked to the relevant provisions of the Lloyd’s policy which states that coverage is triggered by “occurrences happening during the currency hereof.” Thus, it was clear to the court that the “occurrence” giving rise to the property damage must have taken place during the policy period; the policy, however, does not require that the resulting property damage take place during the policy period.”
Wear And Tear Exclusion In All-Risk Policy Precludes Coverage For Gas Leak Repairs
The trial court granted summary judgement to the insurer, a result which the appellate court affirmed.
“Pizza Exclusion” Barring Coverage For Delivery Man Invalid in Maryland
Arguments regarding denial of coverage for a particular class of individuals versus excluding coverage for particular acts have not met with success.
