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Archive for October, 2017

Home Run for Analysis of Use of Force During Medical Emergencies

Posted on: October 31st, 2017

By: Kevin R. Stone and Sara E. Brochstein

I’m bad at baseball.  When I step in the batter’s box, I might as well have two strikes against me before the pitcher unleashes his first fastball.  For me, it’s no big deal; I’m destined to strike out anyway.  The Sixth Circuit, however, recognizes that’s no way to treat law enforcement officers faced with the difficult choice to use force in response to medical emergencies.

In determining whether a Fourth Amendment violation has occurred in excessive force cases, the evidence must demonstrate that the officer’s actions were “objectively reasonable” under the totality of the circumstances.  The Supreme Court has provided three over-arching factors to consider in this analysis: (1) the severity of the crime; (2) whether the suspect actively resisted or evaded arrest; and (3) whether the suspect posed an immediate threat.  (The Graham factors.)

When responding to a medical emergency, however, two of those factors usually don’t exist: no crime (strike one) and, by extension, no resisting or evading arrest (strike two).  Thus, the officer’s choice to use force may rest on a single factor, which the officer may have to assess and act on in a split second.  Acknowledging that the Graham factors are not exhaustive and that medical emergencies create unique challenges for law enforcement officers, the Sixth Circuit, in Hill v. Miracle, established a list of additional non-exhaustive factors to consider when determining whether an officer’s use of force is objectively reasonable in such situations:

(1) Was the person experiencing a medical emergency that rendered him incapable of making a rational decision under circumstances that posed an immediate threat of serious harm to himself or others?

(2) Was some degree of force reasonably necessary to ameliorate the immediate threat?

(3) Was the force used more than reasonably necessary under the circumstances (i.e., was it excessive)?

The court explains: “If the answers to the first two questions are ‘yes,’ and the answer to the third question is ‘no,’ then the officer is entitled to qualified immunity.  These questions and answers serve as a guide to assist the court in resolving the ultimate issue of whether the officers’ actions are objectively reasonable in light of the facts and circumstances confronting them.”

The Sixth Circuit’s opinion drives home the principle that rote application of the Graham factors may cause an unfair strike out.  Objective reasonableness requires an examination of the totality of the circumstances and deserves a careful, fact-specific assessment in each case.  Whether other circuits will hit home runs and also apply these new factors remains to be seen.

If you have any questions or would like more information, please contact Kevin R. Stone at [email protected] or Sara E. Brochstein at [email protected].

Do You Like Piña Coladas? What Questions Can An Employer Ask in Light of Recent Bans on Requests for Salary History Information?

Posted on: October 31st, 2017

By: Laura S. Flynn

Massachusetts, Delaware, Oregon, California, New York City, Philadelphia and San Francisco have passed laws banning employers from asking applicants about their salary history. The intent behind the legislation is to discourage perpetuation of the gender wage gap. Many employers are unclear as to what they are allowed to ask potential employees.

Generally, an employer can ask an applicant about their expectations in regard to salary, benefits, bonuses and/or commission structures. An employer can inform the applicant of the anticipated salary range for the position. While an employer cannot ask about prior W-2s or earned commissions, they can ask about gross sales or revenue. In California, employers are allowed to ask about any financial benefits an applicant would have to forego in order to take the new job, such as unvested equity or a future bonus. An employer can also ask about competing or counter-offers. In addition to inquiring about skills and prior level of responsibility, the questions asked of an applicant should seek information relating to objective indicators of work productivity. For example, an applicant for a legal position could be asked about her billable hours, her average billable rate, number of trials, and information regarding her client base. The salary history bans may prevent employers from hiring employees at below market rates. However, the anticipated decrease in pay disparities will likely result in an overall economic gain for employers, as the discovery of pay disparities by employees negatively impacts morale, can cause productive employees to leave, and can subject an employer to charges of gender discrimination.

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


Ongoing … Ongoing … Gone! — California Finds Ambiguity in Additional Insured Endorsements Addressing Ongoing Operations

Posted on: October 30th, 2017

By: Zach Moura

In two recent published decisions, the California Court of Appeal held that additional insured endorsements (“AIE”) intended to limit coverage to damages sustained while the insured is performing ongoing operations were ambiguous.

In Pulte Home Corporation v. American Safety Indemnity Company, an appeal from a coverage action related to two underlying construction defect lawsuits, the Court of Appeal concluded the AIE did not expressly exclude the policies’ completed operations coverage. Pulte Home Corporation v. American Safety Indemnity Company (2017) 14 Cal.App.5th 1086.

In the underlying action, homeowners sued the general contractor and developer, Pulte Home Corporation, for alleged foundation, electrical, and waterproofing defects.

Several of Pulte’s subcontractors purchased CGL policies with American Safety Indemnity Company, including completed operations coverage. The AIE named Pulte as an additional insured “but only with respect to liability arising out of ‘your work’ … only as respects ongoing operations [or alternatively work ‘which is ongoing’] performed by the Named Insured for the Additional Insured on or after” the AIE’s effective date.

American Safety denied Pulte a defense to the lawsuits, arguing in the coverage action the AIE properly removed completed operations coverage for additional insureds. The trial court disagreed, ruling American Safety owed Pulte a duty to defend because the AIE’s reference to “ongoing operations” was ambiguous and failed to expressly exclude completed operations coverage.

The Pulte court affirmed the judgment, rejecting American Safety’s argument that the “ongoing operations” language constituted “a limiting term excluding completed-operations coverage”. The court’s final word on the issue can be read as an instruction to subcontractors and their insurers: “If the ‘ongoing operations’ language was meant by American Safety to preclude coverage for completed operations losses, it had to expressly state ‘that coverage was limited to claims arising from work performed during the policy period.’”  Id. at 1116.

In the other recent case construing ongoing operations language in an exclusion, Global Modular, Inc. v. Kadena Pacific, Inc., the Court of Appeal narrowly interpreted exclusions j(5) and j(6) of a standard ISO CGL, affirming a ruling finding of coverage for the additional insured. Global Modular, Inc. v. Kadena Pacific, Inc. (Sept. 8, 2017) 15 Cal.App.5th 127, 137.

In Global Modular, a general contractor (Kadena) hired to build a rehabilitation center subcontracted the tasks of building, delivering, and installing the modular units that comprised the rehabilitation center to Global Modular, Inc. Global delivered the units covered only by a ¾” sheet of plywood, as agreed (the roofing was to be completed by a different subcontractor). The units were delivered in October and November – not an ideal time to leave rooms exposed to the elements with only plywood for protection. (Global covered the units with tarps, which unsurprisingly did not save the units from interior water damage when the rain came).

In finding coverage, the Global Modular court held “the active, present tense construction” of the phrase “are performing operations” in exclusion j(5) of the ISO CGL only excludes damage caused during physical construction activities, as opposed to damage to any of an insured’s uncompleted work in progress. Id. at 139. The court also held the language “particular part” of exclusion j(6) refers to components of a structure, not the structure as a whole. The court noted that while the only arguably defective “parts” of Global’s work were the plastic tarps that failed to keep water out, it was not an undisputed fact the tarps were faulty or Global’s placement of them incorrect, and there was no allegation the items for which Kadena sought repair and replacement costs were themselves defective. Id. at 141.

The Global Modular court’s narrow construction of the AIE meant that exclusions j(5) and j(6) did not exclude coverage for water damage to the modular units’ interiors. And because Kadena incurred delay damages while it repaired property damage to which the CGL applied, the delay damages were covered under the policy’s insuring clause.


Pulte and Global Modular make clear that insurers in California intending to cover only ongoing operations must be aware that such limitations are out of favor, and if they intend to exclude completed operations must include language that clearly and expressly does so. Further, because the Pulte court relied in part on the developer/GC’s reasonable expectation of coverage from the AIE, a subcontractor’s insurer will need to take that into consideration when considering the wording of any exclusion it intends to rely on.

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

The NAIC’s Insurance Data Security Model Law Takes a Step Closer to Becoming Reality & Law Firms Should Pay Attention

Posted on: October 27th, 2017

By: Glenn M. Kenna

On October 24, 2017, the National Association of Insurance Commissioners (“NAIC”) adopted the Insurance Data Security Model Law (“Model Law”). The Model Law includes rules covering a broad range of data security, security breach investigation, breach notification, and risk management issues related to nonpublic information. The Model Law applies to insurers, agents, and other entities licensed under state insurance laws (“Licensees”). The passage of the Model Law by the NAIC should be a concern to every law firm as the Model Law would apply to prevent Licensees from contracting with firms that do not have adequate data security measures in place.

In part, the Model Law mandates that Licensees develop, implement, and maintain comprehensive written information security programs to, among other things, protect nonpublic information from unauthorized disclosure. Under the Model Law, Licensees must require “Third-Party Service Providers” – broadly defined as any person, not otherwise defined as a Licensee, with access to nonpublic information due to its contract with the Licensee – to implement appropriate measures to protect and secure Nonpublic information that is accessible to, or held by, the Third-Party Service Provider. Nonpublic information under the Model Law includes any information that is not publicly available and which concerns a “Consumer which because of name, number, personal mark, or other identifier can be used to identify such Consumer in combination with any one or more of… (a)Social Security Number, (b) Driver’s license number or non-driver identification card number, (c) account number, credit, or debit card number, (d) any security code, access code, or password that would permit access to a Consumer’s financial account; or (e) Biometric records.” The Model Law further requires that the Licensee’s executive management or delegates report annually on the Licensee’s compliance.

Law firms can and should develop (and follow) robust data security programs compliant with the ever-increasing data security laws or risk being passed over by companies which are increasingly sensitive to their data security obligations and increasingly responsible for breaches by third party vendors. The NAIC’s passage of its Model Law follows implementation of New York’s data security law in March, which the Model Law closely follows. Much like the Model Law, the New York law requires law firms to comply with detailed data security rules imposed on them by Licensees. It is only a matter of time until the Model Law or similar regulations of broad application are passed by each state. Law firms that ignore the rapidly-changing data security landscape do so at their own peril.

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

Does Being Behind Bars Bar a Criminal Malpractice Claim?

Posted on: October 25th, 2017

By: Sara E. Brochstein

It is well established that in a legal malpractice action, a plaintiff has the burden of proving three elements: (1) an attorney-client relationship with the defendant attorney; (2) failure of the attorney to exercise ordinary care, skill, and diligence; and (3) that the attorney’s negligence was the proximate cause of the plaintiff’s damages.

Earlier this year, the Georgia Court of Appeals had the opportunity to address the first prong in relation to whether parents who had paid attorney fees to and communicated with the attorney who represented their son in a criminal matter had standing to bring a legal malpractice claim against the attorney on behalf of their son who died before the resolution of his criminal trial. Estate of Nixon v. Barber, 340 Ga. App. 103 (2017). The court concluded that no attorney-client relationship existed between the parents and the attorney. Thus, the claim was properly dismissed.

The estate did not preserve the next issue on appeal, and so the court did not have the chance to address what would have been an issue of first impression in Georgia. The issue (which has resulted in a split across the country) is what would the decedent’s estate have been required to prove in the malpractice action to recover damages from his former attorney? The majority of jurisdictions require that criminal malpractice plaintiffs prove exoneration or attainment of post-conviction relief, actual innocence, or both in order to successfully bring a criminal malpractice lawsuit. Nixon, 340 Ga. App. at 110, n.24. These jurisdictions include California, Florida, and Pennsylvania. A minority of jurisdictions choose not to enforce an innocent requirement for a malpractice plaintiff to bring a claim. Id. This remains an open question in Georgia.

If Georgia follows the majority trend, an estate representing someone who died after being convicted would likely be required to prove the decedent’s innocence in order to successfully bring a malpractice claim. This obviously gives rise to certain challenges for the estate. Even more complex is how the estate would pursue a malpractice claim where, as in Nixon, the decedent died before resolution of the criminal case. This scenario raises various questions, including whether the innocence element would be required of estates and what type of damages would be recoverable given the decedent had not yet been convicted. Could such an action even exist? It will certainly be interesting to see how the Georgia courts land on these issues in the future and we will continue to follow up with any developments.

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