Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
Often, case law relating to insurance agent/broker E&O typically involves the procurement of property/casualty insurance or the handling of property/casualty claims. However, there have been some recent developments relating to the duties and responsibilities of life insurance agents/brokers that are important to note.
The increase in connectivity has greatly improved an attorney’s ability to represent her clients. From searching a party on social media, to quickly parsing through online materials, saves hours and hours of time. Furthermore, attorneys can leverage professional organization memberships to seek input from thousands of other practitioners on legal questions or strategic decisions. Thus, an attorney can investigate deeper than ever before and easily liaise with other practitioners. But, this cuts both ways. Attorneys must be aware that technological advances also mean that her own clients and experts are vulnerable, and they must take steps to protect confidential information as necessary.
July 4 is not the ideal time to consider insurance but for too many it is a reality. By way of a reminder, after voting for independence on July 2, 1776, in the midst of the American Revolution, Congress turned its attention to the Declaration of Independence. The document was a statement explaining this decision, which had been prepared by a committee led by Thomas Jefferson. Congress debated and revised the wording of the Declaration, finally approving it on July 4, 1776. The following year, Americans celebrated their independence with fireworks and the tradition continues today. Let’s celebrate our Nation’s birthday safely. Reportedly, there are more than $35 million in fire damages every July 4. On average, about 7 fireworks related deaths are reported each year (along with 20,000 injuries per year from BBQ grill accidents!). As we reflect on and enjoy the holiday, be smart and stay safe. Happy 4th of July from your friends at Professional Liability Matters.
It is no secret that parties more often settle than proceed through trial. While courts roundly applaud this as beneficial to both the system and litigants, it sometimes generates second guessing from the clients. As Larry David put it, “a good compromise is when both parties are dissatisfied.” It is therefore no surprise that many legal malpractice claims follow from settlements, despite the general principle that the settlement itself precludes such a suit. In a recent decision from the New Jersey Appellate Division, the court’s discussion of when this principle applies does little to pacify concerns of attorneys that their clients will settle and sue. Even well documented settlement agreements, and testimony reflecting a voluntary resolution, still can be undone via a malpractice complaint.
The risk of a malpractice claim is real. That’s the bad news. But, now that we have your attention, the good news is that insurance is available to defend and indemnify professionals who face malpractice claims. In order to receive coverage, however, professionals generally must disclose whether they are the subject of any potential claims when completing their applications. If an insurer discovers that a professional had knowledge of a potential claim, but failed to disclose it, it could rely upon the nondisclosure as a basis to disclaim coverage.
Employees should feel safe at work. But not everyone is that fortunate, including an assistant manager at a Burger King who was attacked at gunpoint when attempting to make a bank deposit on behalf of his employer. He allegedly suffered from PTSD and depression. Burger King denied his request for an accommodation by changing his work schedule prompting an interesting decision.
The smoking gun. That key piece of evidence that will conclusively prove your client’s case and guarantee victory may be out there. Truly dispositive evidence is rare, given that most cases turn on a series of events, an application of the law or several facts, as opposed to one document or one line of testimony. But what if you discover that key fact which is harmful to your own claim? It may be tempting to quickly settle the case without disclosing the smoking gun. Not so fast. A recent decision from the Western District of Pennsylvania has taken issue with that response from counsel for the plaintiff, and awarded sanctions for the failure to quickly dismiss the complaint.
No one is perfect. In the adversarial arena of litigation, attorneys are rarely willing to admit even having a weak legal argument, let alone an actual error. However, the American Bar Association recently issued an opinion which makes it an ethical duty for attorneys to disclose any material errors in representation to their clients.
Show of hands: who’d like to receive less pay for performing the same functions as your colleagues? The Equal Pay Act seeks to combat this issue and permits wage disparity only in the most limited of circumstances. In a recent federal decision, the court addressed whether an employer’s computation of salary based on a strict formula violated the Act when it resulted in disparate payment of female and male employees.
Third-party litigation funding is still in its relative infancy and yet it has blossomed into a massive industry. Litigation funding spans from payday-like loans for personal injury litigation to multi-million dollar intellectual property disputes. Many attorneys across the spectrum have commented on the issues that could arise from this new market, but malpractice lawsuits in connection with the funding itself are extremely rare. However, a recent suit filed in the United Kingdom could be a sign of things to come for those firms who are involved in the financing transaction itself.