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Archive for the ‘Tort and Catastrophic Loss’ Category

I CAN’T GET NO, SATISFACTION – The Doctrine of Accord & Satisfaction

Posted on: February 12th, 2020

By: Stacey Bavafa

There are two conflicting statutes that govern the issue of Accord and Satisfaction in California: California Code of Civil Procedure §1526 and California Commercial Code §3311.

Enacted in 1987, California Code of Civil Procedure §1526 states that when a check is tendered by a debtor in furtherance of settlement of a disputed claim, and the words “payment in full,” or other words of similar meaning are noted on the check, the acceptance of the check does not constitute an accord and satisfaction if the party accepting the check crosses out the satisfaction language on the check prior to its deposit. In other words, a Claimant could cross out the satisfaction language, cash the check, then continue to bring a claim for the balance they believe is owed.

In 1992, the California Legislature enacted §3311 of the California Commercial Code which contradicts California Code of Civil Procedure §1526 in that it states:

(a) If a person against whom a claim is asserted proves that (1) that person in good faith tendered an instrument to the claimant as full satisfaction of the claim, (2) the amount of the claim was unliquidated or subject to a bona fide dispute, and (3) the claimant obtained payment of the instrument, the following subdivisions apply.

(b) Unless subdivision (c) applies, the claim is discharged if the person against whom the claim is asserted proves that the instrument or an accompanying written communication contained a conspicuous statement to the effect that the instrument was tendered as full satisfaction of the claim.

(c) Subject to subdivision (d), a claim is not discharged under subdivision (b) if either of the following applies:

(1) The claimant, if an organization, proves that (A) within a reasonable time before the tender, the claimant sent a conspicuous statement to the person against whom the claim is asserted that communications concerning disputed debts, including an instrument tendered as full satisfaction of a debt, are to be sent to a designated person, office, or place, and (B) the instrument or accompanying communication was not received by that designated person, office, or place.

(2) The claimant, whether or not an organization, proves that within 90 days after payment of the instrument, the claimant tendered repayment of the amount of the instrument to the person against whom the claim is asserted. This paragraph does not apply if the claimant is an organization that sent a statement complying with subparagraph (A) of paragraph (1).

(d) A claim is discharged if the person against whom the claim is asserted proves that within a reasonable time before collection of the instrument was initiated, the claimant, or an agent of the claimant having direct responsibility with respect to the disputed obligation, knew that the instrument was tendered in full satisfaction of the claim.”

In essence, under California Commercial Code §3311, if a Claimant accepts and cashes a check marked with conspicuous language that the check was tendered in full satisfaction of the claim, the entire debt is discharged regardless of whether the Claimant had crossed out the satisfaction language on the check. The UCC defines conspicuous language as a “term or clause… so written that a reasonable person against whom it is to operate ought to have noticed it.”

So, which law controls?

A California Appellate Court – Woolridge v. J.F.L. Electric, Inc. (2002) 96 Cal.App.4th. Supp. 52, and a Federal District Court – Directors Guild of Am. v. Harmony Pictures, Inc., 32 F. Supp. 2d 1184, 1192 (C.D. Cal. 1998) acknowledged that when two statutes governing the same subject matter cannot be reconciled, the latter in time prevails. As such, both courts held that the provisions of §3311 supersedes §1526.

Therefore, when it comes to settling a claim, ensure the check itself or a written communication accompanying the check contains conspicuous language (e.g. “PAYMENT IN FULL”) to prevent any issues. Thereafter, if a Claimant accepts the check and cashes it, the entire debt is discharged. If a Claimant accepts the check, does not cash it, but instead holds onto it for a period of 90 days or more, the entire debt is discharged. If a Claimant wants to argue that they are still owed additional settlement funds, a remedy may be to file a Motion for Summary Judgment based on the Doctrine of Accord and Satisfaction, citing the statutes and case law above.

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

Undefeated Records: Good for Sports & Business

Posted on: November 1st, 2019

By: Brittany Kurtz

A contentious rivalry between divisional foes late in the season fueled a halftime bathroom brawl in December 2014 leading a Dallas Cowboys fan to file negligence claims against the Philadelphia Eagles organization and its security manager at Lincoln Financial Field. The Cowboys fan alleged a group of Eagles fans repeatedly taunted him, going so far as to grab his star-emblazoned hat and tossing it into a urinal, ultimately ending in an altercation with the Cowboys fan on the ground and surrounded by a handful of attackers. These attackers were never found, but the Cowboys fan alleged his injuries were caused by the Eagles organization and its security manager for failing to provide reasonable security within the bathroom.

Most surprising was the Cowboys fan’s favorable jury verdict in a Philadelphia courtroom. The Philadelphia Eagles organization appealed to the Superior Court as it believed the Cowboys fan failed to meet his burden of proving a duty owed by the organization regarding the security measures in place and was entitled to Judgement N.O.V.

The Superior Court acknowledged the Philadelphia Eagles organization held its property open to the public for business purposes and would be subject to liability for negligent or intentional harmful acts of third persons which it must take reasonable precaution against that which might be reasonably anticipated. Generally, individuals are not liable for the criminal conduct of another absent a preexisting duty. However, the Eagles organization voluntarily undertook a duty to protect its business invitees, including Cowboys fans, from fighting during football games at Lincoln Financial Field. Therefore, the Eagles organization had a duty to protect its invitees against third party conduct when it had reason to anticipate such conduct.

The Superior Court determined the Eagles organization and its security management team as a matter of law did not have notice of violent assaults regularly occurring in its restrooms during games, therefore it was reasonable to not have a stationed security guard at the restrooms. The security logs only demonstrated the Eagles organization was on notice that there were persons who became incapacitated because of intoxication in the restrooms, not violence.

The Cowboys fan also alleged negligent operation of the security program in place as it is known that wearing opposing team apparel to an Eagles’ game is dangerous. However, the security team employs undercover guards wearing the opposing team’s gear in order to identify those members of the convocation of Eagles who harass fans of the opposing team to be addressed. Therefore, the Court determined the Cowboys fan failed to demonstrate the security program was conducted without reasonable care and that the Eagles organization should have reasonably anticipated violent assaults occur in the restrooms and should have been monitored by security. The Court vacated the judgment entered in favor of the Cowboys fan and remanded to the trial court for entry of judgment in favor Philadelphia Eagles organization and its security management team. Pearson v. Phila. Eagles, LLC, 2019 PA Super. 304 (October 11, 2019).

Record keeping played a critical role as the Superior Court relied heavily upon the security logs and documentation of the security team to determine whether the Philadelphia Eagles organization had notice of prior instances of violence occurring in its restrooms during games. Documentation provides objective evidence to the courts and juries which helps to provide them a clearer picture and, in this case, clearly showing a property owner’s lack of notice for third party violence towards its invitees in the restrooms.

If you have any questions or would like more information, please contact Brittany Kurtz at [email protected]

Georgia Federal Judge Enforces Contractual Liability Limitation, Cuts Jury Verdict in Half

Posted on: September 19th, 2019

By: Jake Carroll

A federal judge in Georgia enforced a limitation of liability clause in a construction contract for engineering services—reducing the jury’s award from $5.7 million to just over $2 million. See U.S. Nitrogen LLC v. Weatherly, Inc., No. 1:16-CV-462-MLB, (N.D.Ga. Sept. 16, 2019).

The case arose from the design and construction of an ammonium nitrate solution plant in Midway, Tennessee. The project owner, US Nitrogen (“USN”), hired Weatherly to provide engineering services related to the construction, and entered into a written contract.

Constructing the plant cost more money and took longer than the parties initially anticipated—to the tune of $200 Million. USN attributed more than $30 million of cost overruns and delays to Weatherly’s design, and brought suit against Weatherly for breach of contract, breach of warranty, professional negligence, negligent misrepresentation, and bad faith.

Following discovery, Weatherly moved for partial summary judgment, arguing that the contract contained an enforceable limitation of liability provision which capped the damages USN could seek to fifteen percent (15%) of Weatherly’s contract price. Weatherly also argued that the terms of the contract prevented USN from recovering consequential damages.

The court agreed with Weatherly—finding that USN could only recover up to $2,203,800 of the more than $30 million it was seeking—and the case proceeded to trial for the jury to determine the amount of damages incurred by USN as a result of Weatherly’s breach. Although the jury ultimately awarded $5,755,000 in damages, the court reduced the award to $2,203,800, pursuant to its earlier findings, and consistent with the terms of the contract. However, the judgment is not final: either party may still appeal the decision to the Eleventh Circuit Court of Appeals.

While Georgia courts have long recognized limitation of liability clauses as valid and enforceable, this case is another example of how carefully drafted contract language can mitigate future risk. Typically, a party’s exposure can be limited to the amount of compensation under the contract, or even less in Weatherly’s case. Such clauses are most frequently seen in contracts for services such as agreements with design professionals and testing laboratories. Nonetheless, there is no reason that they could not be included in general contracts and subcontracts.

If you have questions regarding this decision, or any other contract drafting questions, Jake Carroll practices construction and commercial law as a member of Freeman Mathis & Gary’s Construction Law, Commercial Litigation, and Tort and Catastrophic Loss practice groups. Mr. Carroll represents business and commercial entities in a wide range of disputes and corporate matters involving breach of contract and warranty, business torts, and products liability claims.

The Pennsylvania Superior Court Rules that Snow Contractors Qualify for Liability-Limiting “Hills and Ridges” Doctrine

Posted on: September 18th, 2019

By: Justine Baakman

A three-judge panel of the Superior Court of Pennsylvania recently reaffirmed a snow contractor’s protection from liability during ongoing snow events.  More specifically, the plaintiff initiated a personal injury suit in Pennsylvania state court after slipping and falling on snow in the early morning hours during an ongoing snow event.  The plaintiff arrived on the subject property – an industrial complex – around 5:30am on the date in question.  It was during his walk in the parking lot that he slipped and fell on unplowed snow totaling between 5 ½ and 6 inches.  Notably, the plaintiff did not dispute that his fall occurred during an ongoing snow event.

Prior to the start of the snow event at issue, the property owner had entered into a contract with a snow removal company to perform snow and ice removal services.  On the date at issue, that snow contractor had begun performing services approximately one hour prior to the plaintiff’s fall.  However, snow removal services were not fully completed by the time the plaintiff arrived on the property – primarily due to the ongoing nature of the snow event.

Following the close of discovery, the snow contractor filed a motion for summary judgment, arguing that the “hills and ridges” doctrine protected it from liability for the plaintiff’s alleged injury.  More specifically, the snow contractor argued that the “hills and ridges” doctrine – which protects owners or occupiers of land from liability for generally slippery conditions as the result of snow and ice if the owner or occupier has not permitted that snow and ice to unreasonably accumulate into ridges or elevations – protected it from liability for the plaintiff’s alleged injury as a function of the ongoing nature of the snow event in question.

After hearing oral argument on the issues, the trial court granted summary judgment in favor of the snow contractor.  The plaintiff appealed that ruling to the Pennsylvania Superior Court, arguing that the trial court erred in applying the “hills and ridges” doctrine to the snow contractor because the contractor did not own or occupy the land.  Therefore, the plaintiff argued, the snow contractor did not qualify for liability protection under the “hills and ridges” doctrine.

In reaffirming the trial court’s granting of summary judgment, the Pennsylvania Superior Court noted that it is well-established Pennsylvania law that an independent contractor in possession of an area of land necessary to perform its work under a contract replaces the owner of the property while performing that work.  During that time, the independent contractor assumes the responsibilities and obligations of the property owner while the property owner foregoes its right to possess and control the land.

As such, the Pennsylvania Superior Court reasoned, the snow contractor at issue was operating as an independent contractor in possession and control of the subject property at the time of the plaintiff’s fall.  Therefore, it was entitled to the protections offered by the “hills and ridges” doctrine to occupiers and possessors of land. As such, the snow contractor was entitled to the granting of summary judgment due to the ongoing nature of the snow event at issue.  The court’s decision was a key one for snow contractors, allowing them to continue to utilize this important defense.

If you have any questions or would like more information about the “hills and ridges” doctrine, please contact Justine Baakman at [email protected].

Massachusetts Appeals Court Rules No Immunity for Affirmative Act in Connection with Decedent’s Suicide

Posted on: September 4th, 2019

By: Eric Martignetti

In the recent decision of Williams v. Boston Public Health Commission, the Massachusetts Appeals Court partly reversed the trial court’s dismissal of claims brought by the plaintiff against the Boston Public Health Commission (“Commission”).

The plaintiff alleged negligence against the Commission arising out of the death of the plaintiff’s decedent.  As alleged in the Amended Complaint, the staff at a homeless shelter called 911 to report that the decedent was experiencing suicidal thoughts.  Boston EMS, which is under the control of the Commission, sent an ambulance to the shelter.  The responding EMTs did not restrain the decedent and did not have a police transport to the hospital.  When they arrived at the hospital, the EMTs opened the door to the ambulance, and the decedent ran into the street where she was killed by a car.

The Court stated that the Massachusetts Tort Claims Act (“MTCA”) immunizes public employers from “any claim based on an act or failure to act to prevent or diminish the harmful consequences of a condition or situation, including the violent or tortious conduct of a third person, which is not originally caused by the public employer or any other person acting on behalf of the public employer.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could not be held liable for its alleged failure to train or supervise the EMTs.

However, the Court stated that the MTCA does not immunize public employers from a claim “based upon the intervention of a public employee which causes injury to the victim or places the victim in a worse position than [she] was in before the intervention.”  G. L. c. 258, § 10(j).  Therefore, the Court held that the Commission could be held liable for placing the decedent in a worse position because the EMTs transported her from the shelter, where the staff was looking after her and securing help for her, to the hospital, where nobody was able to prevent her from killing herself.

The Court rejected the Commission’s argument that the alleged failure to protect the decedent is an omission from which the Commission should have immunity.  The Court concluded that although the failure to train and supervise was an omission, the transporting of the decedent to the hospital was an affirmative act.

The Court also rejected the Commission’s argument that the EMTs owed not duty to protect the decedent from her own conduct because there was no special relationship between her and the EMTs.  The Court concluded that EMTs have a duty of care to the patients they transport.

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