Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
A New Jersey appeals court recently ruled that a disbarred attorney cannot sue his former attorney for malpractice in connection with a fee dispute. In an unpublished opinion in the case of Schildiner v. Toscano, the Appellate Division upheld a decision from the Essex County Superior Court dismissing the lawsuit filed by the disbarred lawyer (“Lawyer”), against the firm he hired, (“Law Firm”).
In a recent decision, a Federal District Court grappled with the definition of “direct loss” under a commercial crime policy. The court in CP Food & Beverage, Inc. v. U.S. Fire Ins. Co., concluded that “direct means direct” and an insured’s losses from payment card charge-backs when certain employees made fraudulent charges on customers’ payment cards were only the “indirect” result of employee theft, and therefore not covered under the insured’s policy.
How reasonable must a reasonable accommodation be? Is moving an employee’s work location reasonable? Is providing an employee an aide reasonable? Of course, the answer depends on the circumstances and that’s what makes ADA compliance often difficult for employers. Consider the recent example of Hill v. Assocs. for Renewal in Educ., Inc.
Attorneys practicing in mergers and acquisitions are familiar with the sensitive nature of their work and the potential for abuse of the information obtained. In addition to being restrained from trading on that information themselves, they must take extensive precautions to ensure that they do not allow that information to slip to friends, family members, or colleagues. Unfortunately, one cannot assume that others won’t use that information to make trades that could ensnare both the attorney and firm in extensive criminal and civil litigation, regardless of intent. Accordingly, both formal and informal mechanisms are put in place to keep potential inside information from those who are not required to have it in their work.
According to our friends at CPA Gold, LINK, from a purely risk management perspective, bringing your insurer into the claims process is extremely prudent and can save you a lot of money. Here are the reasons you should contact your insurer or agent sooner, rather than later: involvement of counsel, denial of coverage, deductible concerns and risk management. Each of these factors, and others, were addressed by CPA Gold and are absolutely worth considering.
Claims in the long-term care industry have steadily continued to worsen for post-acute providers. According to a 2017 actuarial analysis conducted by AON, entitled “2017 Long-Term Care: General Liability and Professional Liability Actuarial Analysis,” the number of claims per 100 occupied beds rose from .71 in 2007 to .92 in 2012 to 1.03 in 2017. This same analysis found that the average amount to defend, settle, or litigate a claim rose from $165,000 in 2007 to $179,000 in 2012, to $223,000 in 2017. AON writes that it expects the number and size of claims to continue to increase in 2018.
Advancements in technology and software can help employers track employee productivity. But what happens when an employee’s medical condition influences her ability to use an employer’s technology? In Larson v. Oregonian Publishing, an Oregon Federal District court denied summary judgment to an employer in a disability discrimination lawsuit under the ADA under what’s known as the “cat’s paw theory”.
Many legal issues are easier to articulate than they are to resolve. For example, suppose State Y does not recognize a testimonial privilege but a witness is called to testify from State X which does recognize the privilege. Can the witness who holds the privilege claim it during litigation pending in State Y? Due to differing legal constructs applied by state courts, it can be an onerous task for counsel to determine whether certain documents or communications are considered privileged or are discoverable in interstate litigation.
In the professional liability world, errors occur. To quote Forrest Gump, “*%&# happens!” These errors can carry great consequences, and can include payouts by insurers under E&O policies. However, what happens when there is a possibility to rectify the error and place the would-be plaintiff in a position where they were before? Also, how conceivable is it to utilize funds from other sources as a means to bring closure to claims.
There is a growing phenomenon of securities class action and shareholder derivative suits arising from the #MeToo movement. Specifically, these suits address the alleged failure of corporations to disclose in public filings and/or prevent sexual harassment by corporate officers and directors. Moreover, the suits allege a corporate culture permitting such conduct to be engaged in. The latest suit targets a well-known pizza chain.