CM Report of Recent Decisions (2007v1)
2007 Volume 1
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
Doctrine Of Superior Equitites Applied (But Questioned) In California Subrogation Case
Since 1938, California law has required that an insurer have superior equities in order to prevail in a subrogation action against a third party. In other words, although an insurer might have a subrogation interest in the insured’s claim against the party that caused the loss, it cannot enforce its subrogation rights unless it has equities superior to those of the wrongdoer.
Ensuing Loss Provision Does Not Expand Coverage
In a case of first impression in Indiana, the Indiana appellate court holds that third?party negligence that set into motion the efficient proximate cause of the insured Library’s loss of a historic building was clearly and unambiguously excluded from coverage under defendant’s all-risk insurance policy.
Idaho Supreme Court Holds That Property Damage Caused By Mold Is A Separate Loss Subject To Second Homeowner's Policy
The Supreme Court of Idaho holds that a mold outbreak at the insured’s home caused by inadequate repairs necessitated by prior water damage constitute a separate, second loss.
Illinois Appellate Court Holds Primary Carrier With Defense Obligation May Be Required To Pay All Defense Costs Under An "All Sums" Allocation And Then Seek Contribution From Other Parties
In Caterpillar, Inc. v. Century Indemnity Co., No. 3-06-0161, slip. op. (Ill. App. 3d Dist. Feb. 2, 2007), the Illinois Appellate Court, Third District found that in an asbestos coverage action, a primary insurer’s obligation to pay defense costs were to be allocated on an “all sums” basis.
The issue presented on appeal to the Ninth Circuit was whether theories of equitable tolling or equitable estoppel are available to Jones Act seamen so that an injured seaman could bring a claim for maintenance and cure more than three years after the alleged injury. At issue in this case were the competing doctrines, and interaction of laches and estoppel, combined with the text and purpose of the Jones Act.
Negligence By Nightclub Bouncers Who Accidentally Killed Patron They Were Ejecting Constitutes An "Accident"; Assault And Battery Exclusion Does Not Apply
In QBE Ins. Corp. v. M & S Landis Corp., 2007 WL 60995 (Pa. Super.), a Pennsylvania appellate court has ruled that a bouncer’s alleged negligence in causing a patron’s death constitutes an accident, and thus an “occurrence” under standard CGL policy language, and is not barred by policy’s assault and battery exclusion.
Proselytizing In The Workplace: Is This Religious Freedom?
Prohibiting workplace proselytizing may be risky for an employer. Federal law prohibits employers from discriminating against employees based on their religion. And, court decisions illustrate that employers must allow their employees to engage in certain religious observances or practices even if they conflict with the employers’ policies.
Recovery Opportunities Against Water Restoration Contractors For Deviations From Industry Good Practices & Standards Of Care
Entry of errant water into a building or other structure can lead to serious mold problems, physical damage, and substantial property and business interruption losses. This article provides a roadmap for developing viable recovery claims against restorative drying contractors involved in improper and careless restoration and remediation of water-damaged property.
Same Causation Standard Applies To Employers and Employees Under FELA (And Thus Jones Act)
The United States Supreme Court holds that the same causation standard applies to railroad negligence and employee contributory negligence under the Federal Employers Liability Act (“FELA”). Because the Jones Act specifically incorporates the liability standards applicable to railroad (FELA) accidents, the Sorrell resolution impacts general maritime law and admiralty practitioners.
In Parks Real Estate Purchasing Grp. v. St. Paul Fire and Marine Ins. Co., 472 F.3d 33, the Second Circuit held that the contact of airborne particulate matter dispersed from the collapse of the World Trade Center towers on September 11, 2001 with the insured’s building in lower Manhattan was the efficient proximate cause of the alleged damage to the building but that a question of fact exists as to whether the alleged damage was excluded “contamination” in the context of an all-risk property insurance policy.
Simple Practical Suggestions For Employees On Preserving Data
In earlier articles, we have written about the new federal rules of discovery which require companies and employees to preserve computer and other electronic data. Therefore, this article does not delve into all the legal issues or nuances. Rather, here are some quick, practical suggestions to give to your company’s employees, supervisors and managers. However, later in the event of an incident, follow up with more detailed questions and instructions.
U.S. Supreme Court Holds Juries Cannot Award Punitive Damages For Harm To Non-Parties
Decedent Jesse Williams was a heavy Marlboro cigarette smoker. His widow sued Marlboro's manufacturer, Philip Morris, for negligence and deceit. An Oregon state court jury found that smoking caused Williams' death; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that it was safe. The jury returned a verdict against Philip Morris on both claims; awarding $821,000 in compensatory and $79.5 million in punitive damages on the deceit claim.
