Legal Developments and Risk Management Tips Impacting the Professional Liability Community.
The below cases correspond with the December edition of Professional Liability Monthly and the analysis of each case. Click here for access to the newsletter. Cases are provided courtesy of LexisNexis. BECK & BECK, LLC v. COSTELLO LYKES V. YATES MICHAUD V. HAUSER SEVEN BRIDGES FOUND v. WILSON AGENCY SUTCH V. ROXBOROUGH MEM’L HOSPITAL WARD V. RAMSEY
As 3-D printing continues to grow in popularity, PL Matters wonders how this technology will impact the professional malpractice community. Now 3-D users may bring any virtual object to life by directing it to a specialized printer that prints in layers of rubber, plastic, paper or other materials. Once cost-prohibitive and mainly utilized by the medical field (to create prosthetics), the machines are now available to the public for personal and commercial use. But as the machines are more readily available, what happens when the end-product causes harm or injury?
Sitting down to dinner but still have a long to-do list from the office? Hear your work e-mails pinging as you watch the game? Not a problem that you can’t handle with your smartphone or tablet. Whatever your take on this 24/7 connectivity, it is undeniable that the proliferation of mobile devices has made working away from the office easier and perhaps expected by employers (and clients). While such a policy may result in an increase in productivity, it can also create a legal risk for employers, namely, unexpected claims for overtime pay.
Generally an attorney only owes a duty of care to her client. Thus, a predicate to a meritorious legal malpractice action is the existence of an attorney-client relationship. But, identifying this relationship and determining to whom that duty extends is not simple. A recent decision demonstrates that an attorney may be exposed to malpractice based on the expectations of non-clients.
Professional liability insurance policies cover professionals for claims arising within the agreed upon policy period. At first blush this appears to be a relatively simple concept but there is plenty of room for confusion which can result in a lack of coverage. What is a claim? The fact that a lawsuit was filed within a policy period does not necessarily mean that the “claim” giving rise to the lawsuit is covered under a PL policy. A perfect example of this issue was presented to the court earlier this month in Regency Title Co. v. Westchester Fire Ins., (E.D. Tex. Nov. 15, 2013) during which the USDC for the Eastern District of Texas considered the date on which a claim arises for purposes of triggering coverage.
The so-called “tripartite” relationship exists when an insurer retains defense counsel to represent the interests of the insured. Against this backdrop, it is relatively uncommon for an insurer to maintain a successful claim against defense counsel. In the majority of states, direct malpractice claims by an insurer are disfavored. The theory behind these decisions stems from the sanctity of the attorney-client relationship and a hesitation to interfere with defense counsel’s duty to the insured in the tripartite scenario. Accordingly, few claims of this nature succeed. A recent decision by the Washington Supreme Court is no exception.
Have you ever considered the consequences of a witness bringing her mobile phone to a deposition? May a deposing attorney ask a witness to retrieve information stored on a hand-held device during a deposition? Many lawyers may fail to anticipate the consequences of a witness bringing documents or other materials to a deposition and may overlook this issue when preparing the client. This lack of foresight can lead to unintended discovery disclosures.
Thanks to the developing news regarding the Miami Dolphins, workplace bullying has generated national attention. There has been considerable press of late concerning school bullying and its impact on children but it is now clearer than ever that in some environments, bullying can exist in the workplace and can cause serious damage to professionals and their employers.
We previously discussed the potential for a conflict arising when an attorney represents an employer and possibly an employee in the context of the Penn State/Sandusky scandal. The issue for the attorney is to delineate whether she represents the employer, the employee or both. An attorney cannot wear all the hats and therefore must disclose to an employee the possibility of a conflict. A recent decision from the California Court of Appeals demonstrates how easily a conflict may arise in this scenario.
The Family Medical and Leave Act (FMLA) provides job security to employees who require time away from work due to illness or the need to care for family. By some accounts, the FMLA is one of the most difficult employment laws for an employer to administer and therefore is a risk management “legal labyrinth.” In particular, the seemingly simple task of calculating the duration of FMLA leave can be daunting.