CM Report of Recent Decisions (2003v4)
2003 Volume 4
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
Bar Owner Not Liable for Patron's Off-Site Murder
The Supreme Court of Delaware recently ruled that a bar owner did not owe a duty to warn patrons of or to protect patrons from crimes associated with a public parking lot located behind the bar. Rhudy v. Bottlecaps Inc., 830 A.2d 402 (Del. 2003). Summary judgment for defendant was proper where plaintiffs failed to produce facts sufficient to create an inference that the bar owner controlled the parking lot or was responsible to patrons for criminal conduct in the lot.
Beware of the Coverage "Expert" - Legal Conclusions are Inadmissable in Coverage Cases Despite Federal Rule of Evidence 704
Federal Rule of Evidence 704 governs the proper scope of expert testimony, providing that an expert opinion may be admissible even if it embraces the ultimate issue to be decided by the trier of fact. In a number of insurance coverage cases, litigants have sought under Rule 704 to introduce expert testimony as to the applicability of policy exclusions and the existence of coverage. Courts have overwhelmingly held that such opinions are inadmissible, despite Rule 704’s language permitting expert opinions to embrace ultimate issues of fact.
California Supreme Court Holds One-On-One Customer Solicitation Does Not Constitute "Advertising" Within Scope of Advertising Injury Coverage
The California Supreme Court holds that the taking of a competitor’s customer list and the direct solicitation of customers from that list is not “misappropriation of advertising ideas” under the “advertising injury” coverage of a commercial general liability policy, declining to adopt a rule for reviewing “advertising” on a case-by-case basis and instead finding that direct solicitation of a competitor’s customers is not “advertising.” Hameid v. National Fire Ins. of Hartford, 71 P.3d 761, 1 Cal. Rptr. 3d 401 (Cal. 2003).
In U.S. Fire Ins. Co. v. Sovran Constr. Co., Inc., 854 So.2d 221 (Fla. App. 2003), a Florida appellate court reversed the trial court’s holding that a builder’s risk policy was a liability policy. Following the Florida Supreme Court’s decision in Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161 (Fla. 2003), the District Court of Appeal held that a builder’s risk policy is a property policy. The U.S. Fire court also followed the holding in Edward J. Gerrits, Inc. v. Nat’l. Union Fire Ins. Co. of Pittsburgh, PA, 634 So.2d 712 (Fla. App. 1994), that a builder’s risk policy is a first-party contract which does not indemnify a third party for faulty workmanship.
Four-Year Rather Than One-Year Tort Immunity Limitations Period Applies to Suits Involving Construction Injuries
The Illinois Appellate Court holds that an injured construction worker’s claim is subject to a four-year statute of limitations rather than the one-year limitations period under the Tort Immunity Act even where the site was controlled by a municipality. Hager v. Two-In-One Contractors, 797 N.E.2d 167 (Ill. App. 2003).
Illinois Appellate Court Holds That Building's Dilapidated Condition Rendered Collapse Non-Fortuitous
In Johnson Press of America, Inc. v. Northern Ins. Co. of New York, 791 N.E.2d 1291 (Ill. App. 2003), the Illinois Appellate Court, First District held that “[t]he dilapidated condition of the building demonstrates that the collapse of the building did not happen by chance or accident. It was expected. Since plaintiff [the insured] failed to establish a prima facie case that the loss was due to a fortuitous event, the insurer is not liable.”
New York Appellate Court Deems Pollution Exclusion Ambiguous --Finds Fact Question Presented as to Whether Asbestos Qualifies as a "Pollutant" Under Exclusion
Affirming the denial of insurer’s motion for summary judgment, the New York Appellate Division, Second Department holds that although asbestos may be a “thermal irritant” as listed in the policies’ pollution exclusion, failure to expressly include the term “asbestos” within the definition of “pollutant” creates ambiguity giving rise to a fact question as to whether asbestos is a “pollutant” within the meaning of the exclusion. Village Mall at Hillcrest Condominium v. Merrimack Mut. Fire Ins. Co., 766 N.Y.S. 2d 70 (N.Y. App. Div. 2003).
Q. Can an Employee Take Unauthorized Absence to Assist Domestic Partner? Illinois' Victims' Economic Security and Safety Act
Lets take this hypothetical case study. We will use the case study to analyze the new “Victims’ Economic Security and Safety Act” which was recently enacted by the Illinois State General Assembly as Public Act 93-0591.
In Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 2003 AMC 1521, 333 F.3d 383 (2d Cir. 2003), the Second Circuit Court of Appeals refused to vacate an arbitration award based on manifest disregard of the law, even though the award appeared to be inherently contradictory.
Plaintiff in Adams v. American International Group, Inc., 791 N.E.2d 26 (Ill. App. 2003), leave to appeal denied, 2003 Ill. LEXIS 2128 (Ill. Oct. 7, 2003), a proclaimed “nationwide class action,” sought to recover interest on the proceeds of the settlement of an underlying injury action which had been directed against defendant’s insured. Count I was based upon the Illinois Interest Act (815 ILCS 205/2) which provides for interest after payment is due upon any instrument in writing; Count II sounded in implied contract/unjust enrichment.
The Top 100 Ways to Build a Winning Recovery Case: Effective Claims Management of Subrogation Cases
CM partners Dean S. Rauchwerger and Robert A. Stern have compiled the “Top 100 Ways to Build a Winning Recovery Case.” This punchlist provides many valuable action items for maximizing effective management of subrogation files.
