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Archive for the ‘General Liability’ Category

Court Ruling Highlights Importance of Precise Policy Language Usage

Posted on: April 11th, 2018

By: America Vidana

In Mt. Hawley Insurance Co. v. Tactic Security Enforcement, Inc., No. 6:16-cv-01425 (M.D. FL. 2018), U.S. District Judge Paul Byron of the Middle District of Florida recently denied an insurance company’s motion for summary judgment, in which it relied on an exclusion to deny coverage to its policyholder. The policyholder and restaurant establishment, Que Rico La Casa Del Mofongo, had two negligence lawsuits filed against it for allegedly failing to prevent violent incidences from occurring on its premises.

The insurer denied coverage per an exclusion included in the policy prohibiting “operations involving bars, taverns, lounges, gentlemen’s clubs and nightclubs.” The Court, however, found that the insurer failed to clearly define the terms cited in the exclusion. It noted that the policyholder’s establishment was interchangeably referred to as a “restaurant,” and at other times as a “lounge.” Consequently, because the terms “bars, “taverns,” “lounges,” and “gentlemen’s clubs” were undefined, it deemed the entire exclusion as imprecise and inapplicable—unilaterally denying the insurer’s summary judgment.

The Court’s decision in Mt. Hawley significantly reinforces the principle that precise policy language is required before an insurer can deny coverage based on an exclusion. It also highlights the importance for a policyholder to read the entire policy to ensure there are no broad exclusions that could potentially bar coverage.

If you have any questions or would like more information, please contact America Vidana at [email protected].

Economic Resolution of Cases Through An Expedited Jury Trial

Posted on: March 16th, 2018

By: Melina Shahbazian

It is no secret that litigation is time consuming and extremely expensive. Sometimes, depending on the circumstances of the case, the lengthy costly litigation process is the only choice.  Other times, particularly with lesser value cases, the parties have the option of conducting expedited jury trials in civil cases.

California’s expedited jury trial is a consensual, binding jury trial before a reduced jury panel and a judicial officer. (Code Civ. Proc. § 630.01(a).) The trial is heard by eight jurors (instead of twelve), with six votes needed for a verdict. Each side is allowed to exercise up to three peremptory challenges (unless the court permits additional challenges), and is given five hours to put on their case, inclusive of jury selection.

The parties can request an expedited jury trial, by submitting a Consent Order to the court, no later than 30 days before any assigned trial date. (Code Civ. Proc. § 630.03(a); Cal. Rules Ct., Rule 3.1547(a).) The proposed Consent Order must confirm parties’ understanding and agreement to participate in an expedited jury trial, outline the roadmap for the trial, and their agreement to alter any procedures, such as method of presenting evidence, limitation of witnesses, and any agreements on damages. The parties could set a cap for damages by entering into a “High/Low Agreement” prior to trial which specifies a minimum amount of damages that a plaintiff is guaranteed to receive from the defendant, and a maximum amount of damages that the defendant will be liable for, regardless of the ultimate verdict. (CCP § 630.01(b).)

If the parties agree to an expedited jury trial, the verdict is binding and they waive their rights to an appeal. The verdict from an expedited jury trial can only be disregarded in the event of misconduct by a judicial officer or the jury, or corruption or fraud or some bad act that prevents a fair trial. Otherwise, the court will enter a judgment based on the verdict.

The expedited jury trial offers a streamlined method for handling civil actions to promote the speedy and economic resolution of cases and conserve judicial resources. Has it? Only time will tell.

If you have any questions or would like more information, please contact Melina Shahbazian at [email protected].

Non-Pennsylvanians Can Sue Pa. Businesses for Out of State Transactions Under the Pennsylvania Unfair Trade Practices Consumer Protection Law

Posted on: March 2nd, 2018

By: Erin E. Lamb

Citizens from outside Pennsylvania can now sue Pennsylvania businesses for transactions that occurred outside the commonwealth, under the Pennsylvania Unfair Trade Practices Consumer Protection Law (UTPCPL). The Pennsylvania Supreme Court, in a unanimous ruling, affirmed such to the U.S. Court of Appeals for the Third Circuit in the class action suit Danganan v. Guardian Protection Services. The Third Circuit had certified the question to the Supreme Court of Pennsylvania. Previously, the District Courts within the Third Circuit had held repeatedly that the UTPCPL only applied to Pennsylvania business regarding Pennsylvania transactions.

Plaintiff Jobe Danganan sued Pennsylvania-based UTPCPL under the UTPCPL after he continued to be billed for a home security system in a Washington, D.C., house aft he had moved and after he had cancelled the contract. The district court ruled against him and he appealed to the Third Circuit.

Danganan argued that the language of the UTPCPL, specifically the terms “person,” “trade” and “commerce,” did not denote a specific geographic requirement, according to the Supreme Court’s opinion written by Chief Justice Thomas G. Saylor. The Court agreed. “Respecting the specific terms employed by the UTPCPL, we agree with appellant’s observation that the plain language definitions of ‘person’ and ‘trade’ and ‘commerce’ evidence no geographic limitation or residency requirement relative to the law’s application,” Saylor said. However, the law does state that it applies to conduct that “directly or indirectly affect[s] the people of this commonwealth.” Saylor, writing for the Court, did away with that clause by stating “that phrase does not modify or qualify the preceding terms. Instead, it is appended to the end of the definition and prefaced by ‘and includes,’ thus indicating an inclusive and broader view of trade and commerce than expressed by the antecedent language.”

Saylor also said the statute is meant to be construed liberally as it covers an expansive breadth of conduct. “In this respect, we recognize, as we previously have, the wide range of conduct the law was designed to address, including equalizing the bargaining power of the seller and consumer, ensuring the fairness of market transactions, and preventing deception and exploitation, all of which harmonize with the statute’s broad underlying foundation of fraud prevention,” Saylor said.

This has far-reaching implications for Pennsylvania’s businesses, particularly in the context of class actions like the one at issue in this case. (Its application to a certain global telecommunications conglomerate that is the largest broadcasting and cable television company in the world by revenue certainly springs to mind.)

If you have any questions or would like more information, please contact Erin Lamb at [email protected].

Beware The Egg Shell Plaintiff

Posted on: February 13th, 2018

By: Jared K. Hodges

Recently, a jury from a historically conservative venue in Georgia awarded $2.7 million to a man who claims he was injured in a 4 m.p.h. rear-end collision. This unusual verdict should serve as an expensive reminder to insurance carriers, adjusters, and their counsel that not all low-speed, minor property damage incidents are alike.

Plaintiff Art Smith was 31 years-old when he was rear-ended in his Toyota Camry by John Bishop, who was driving a Ford F-150 pickup truck. Both Smith and Bishop were stopped at a traffic light in Cobb County, Georgia, when Bishop testified he “rolled into” Smith. Smith’s vehicle incurred merely $1,400 worth of damage, and he told the responding officers he was OK, before leaving the scene of the accident on his own.

The next day, however, Smith began experiencing stiffness in his neck, and he went to the emergency room. Smith underwent physical therapy and an MRI scan that revealed herniated discs in his neck, before he ultimately received cervical fusion surgery.

While Smith’s rapid spinal deterioration and treatment seems excessive given his young age, what Bishop could not have known, was Smith had undergone prior treatments for neck injuries several years before the accident. In Georgia, as in many jurisdictions, it is a tenant in torts that “a tortfeasor takes a plaintiff in whatever condition he finds him. A negligent actor must bear the risk that his liability will be increased by reason of the actual physical condition of the other toward whom his act [is] negligent.” AT Sys. Se., Inc. v. Carnes, 272 Ga. App. 671, 674, 613 S.E.2d 150 (2005). As the Smith case shows, the egg shell plaintiff is alive and well.

So many claimants and plaintiffs contend they are “egg shell plaintiffs,” it is easy for adjusters and defense counsel to become immune to these allegations, especially when there is minimal property damage, as there was in this case. Yet, insurers, adjusters, and defense counsel should remember that a tortfeasor takes a plaintiff in the condition where he finds him. If, for example, a plaintiff has a history of neck injuries that makes his neck susceptible to injury, it is possible a jury could find the defendant responsible for all subsequent neck treatments, even from an apparently minor injury-causing incident.

If you have any questions or would like more information, please contact Jared K. Hodges at [email protected]

Waymo v. Uber – Addressing the Stakes of Driverless Car Trade Secrets and Intellectual Property

Posted on: February 12th, 2018

By: Courtney K. Mazzio

The litigation surrounded a man named Anthony Levandowski, a former Waymo employee who took thousands of documents with him when he left Waymo in 2015 to pursue his own company. Uber purchased Levandowski’s company, giving Levandowski the lead role in its efforts to get their self-driving vehicle technology off the ground. At issue in the lawsuit between Uber and Waymo was the lidar laser sensor, which Levandowski had helped develop while at Waymo. In short, this technology measures distance to a target, and so, is used in the control and navigation of self-driving cars. As you might imagine, this technology in the infancy of the driverless car development was a highly coveted piece of intellectual property.

Settlement talks were initially in the billions, but the final figure was 245 million, or 0.34 percent of Uber’s current company valuation. The agreement also includes a provision to insure Waymo’s confidential information is not incorporated into Uber technology.

This settlement not only protects Uber’s driverless car momentum in their race to be the first taxi service to successfully utilize the technology at a relatively cheap price, but also maintains Waymo’s position at the forefront of the self-driving technology. To insure this position enjoys longevity, employees of Waymo can expect they will likely be tightening its control and security over confidential information and property developed within its walls.

If you have any questions or would like some more information, please contact Courtney Mazzio at [email protected].