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Archive for the ‘General Liability’ Category

Wrongful Death Versus Survival In California

Posted on: December 11th, 2018

By: Matthew Jones

There are many differences between a wrongful death action and a survival action. A wrongful death action may be filed by the personal representative of the decedent’s estate or the decedent’s surviving spouse/children. A survival action may be filed by the estate’s personal representative or the decedent’s successor-in-interest. The determination of whether to file one action versus the other depends on whether the decedent immediately died from the alleged injuries/incident. If he/she did, then a wrongful death action is the proper claim. If he/she did not, then a survival action is likely the proper claim.

When defending against a wrongful death or survival action, it is imperative to keep in mind the types of damages available to the plaintiffs. In a wrongful death action, the plaintiffs are entitled to compensation for loss of support, loss of services, funeral and burial expenses, loss of companionship, and sexual cohabitation. In a survival action, the plaintiffs are entitled to a much different set of damages, specifically, those damages that would have been available to decedent had he/she survived the alleged injuries/incident. These damages may include medical expenses and loss of earnings, to name a few. The plaintiffs essentially step into the shoes of the decedent and assert the claims he/she would have had.

Despite the various damages that are recoverable in a wrongful death action, punitive damages are only available in a survival action. It is important to identify if punitive damages are alleged in the Complaint and determine the type of claim being asserted: wrongful death versus survival. If punitive damages are alleged and it is a wrongful death action, it is necessary to move to strike the claim or move for summary adjudication on the issue.

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

Protecting In-House Correspondence from Disclosure: The Troublesome “CC”

Posted on: November 28th, 2018

By: Jake Carroll

Commercial disputes present complex issues of causation—what caused the accident, who is responsible, what is impacting company revenue. But before the dispute even arises, in-house attorneys are frequently copied on correspondence with team members and employees evaluating and offering opinions on causation, performance, and potential costs. Then, when the dispute or accident ends up in litigation, the materials prepared by the employees are sought in discovery.

For example, what if an engineering firm learns that one of its employees improperly installed a part of the anti-corrosion system for a pipeline. The employee’s supervisor prepares an email detailing all instances of improperly installed systems in the last four (4) years by the employee and decides to cc in-house counsel. Is this email protected from disclosure if a lawsuit arises from the improperly installed pipe system?

Claims of privilege and work product are often asserted when an in-house attorney is included as a secondary recipient—or CC—on an email, raising the question of what exactly is covered by the attorney-client privilege and work-product doctrine. Resolving these issues can be costly in their own right, and have the potential to derail an otherwise straightforward dispute.

While there are some exceptions, the general rule is that the communications where in-house attorneys are only CC’d are not protected from disclosure under either the attorney-client privilege or the work-product doctrine.[1]

The attorney-client privilege protects confidential communications that are sent for the purpose of securing legal advice.[2] However, when an email is neither addressed to the in-house attorney, nor sent directly to the attorney, it is unlikely that the privilege applies.[3] Similarly, the work-product doctrine protects correspondence or reports prepared in anticipation of litigation.[4] When an in-house attorney is only CC’d on correspondence, the emails are neither work performed by the in-house attorney, nor work prepared at the direction of the in-house attorney.[5] Additionally, many of these emails are typically sent prior to litigation and are not protected.

Businesses would do well to remember that simply copying your in-house attorney on an email will not shield its disclosure during discovery. The impact of this fact is far-reaching. In the example above, not only would the other side have an admission regarding the mislaid pipe from the supervisor, the email has also identified other projects where the business may be vulnerable to suit to a plaintiffs’ attorney.

If a company wishes for correspondence to be protected from disclosure, the following tips, though not exhaustive, are helpful:

  1. The sender of the email should direct correspondence to in-house counsel in a separate email—not by CC—and for the express purpose of seeking legal advice on a potential issue. For example, starting the email with “legal advice needed” or “request for legal advice” will go a long way to preserving the privilege and are more effective than “I have a question” or “see below.” Such requests should also be addressed specifically to the in-house attorney or an attorney on the legal team, rather than being directed to other employees with just a cc to the lawyer.
  2. To protect the privilege when using emails, avoid communications with both business and legal purposes as much as possible.
  3. Limit long email chains. Besides being good business practice, in-house counsel should not let privileged discussions continue in a long email chain. Inevitably, as the discussion continues, the topic may stray away from the original question and new people may be added to the email string—risking the privilege protection.

Protecting the attorney–client privilege and work-product privilege requires sound policies and procedures, a properly trained workforce and constant vigilance from the in-house attorney. But business that put procedures in place on the front end will find it well worth their time if and when a dispute arises.

If you need help with this issue, or any other commercial law questions, Jake Carroll practices construction and commercial law, is licensed to practice in Georgia and Florida, and is a member of Freeman Mathis & Gary’s Construction Law and Tort & Catastrophic Loss practice groups. He represents corporations and manufacturers in a wide range of litigation and corporate matters involving breach of contract, business torts, and products liability claims. He can be reached at [email protected].

 

 

[1] Minebea Co. v. Papst, 228 F.R.D. 13, 21 (D.D.C. 2005) (“A corporation cannot be permitted to insulate its files from discovery simply by sending a ‘cc’ to in-house counsel.”) (quoting USPS v. Phelps Dodge Refining Corp., 852 F.Supp. 156, 163-64 (E.D.N.Y.1994)).
[2] See e.g. Upjohn Co. v. U. S., 449 U.S. 383, 394-95 (1981).
[3] Id. at 394; In re Seroquel Prods. Liability Litig., 2008 U.S. Dist. LEXIS 39467, 2008 WL 1995058, at *4 (May 7, 2008) (explaining that “[t]here is general agreement that the protection of the privilege applies only if the primary or predominate purpose of the attorney-client consultation is to seek legal advice or assistance”) (quoting Paul R. Rice, Attorney-Client Privilege in the United States § 7:5).
[4] The work-product privilege is derived from the United States Supreme Court’s ruling in Hickman v. Taylor, 29 U.S. 495, 510-11, 67 S. Ct. 385, 393 (1947), and is codified in Fed. R. Civ. P. 26(b)(3).
[5] See Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1421-22 (11th Cir. 1994), opinion modified on reh’g, 30 F.3d 1347 (11th Cir. 1994) (recognizing that the work-product privilege protects from discovery “materials that reflect an attorney’s mental impressions, conclusions, opinions, or legal theories” that were prepared in anticipation of litigation and intended to remain confidential); cf. Hickman, 329 U.S. at 511, 67 S.Ct. at 393; Upjohn, 449 U.S. at 399, 101 S.Ct. at 687.

Who’s Liable for Letting the Dogs Out?

Posted on: October 23rd, 2018

By: Wes Jackson

“Cry ‘Havoc!,’ and let slip the dogs of war.”

William Shakespeare, Julius Caesar act 3, sc. 1.

 

Havoc indeed—in a case argued before the Georgia Supreme Court on October 10, two pit bulls slipped out of a tenant’s backyard gate with a broken latch and then mauled a woman walking her smaller dogs nearly two blocks away from the home. Police had to fatally shoot both dogs to end the attack, and the woman was life-flighted to a hospital where she stayed for seven days and was left disfigured after multiple surgeries.

The question before the Court was whether the landlord could be liable for the attack. The trial court entered summary judgment in the landlord’s favor because the plaintiff could not show the landlord had any prior knowledge of the dogs’ propensity for violence. The Georgia Court of Appeals reversed, holding that the question of the landlord’s liability should have been submitted to a jury.

The case exemplifies how thorny questions of proximate causation can jeopardize a defendant’s hopes at summary judgment. For example, the Court of Appeals found the trial court erred by failing to properly consider the fact that the landlord had known the gate latch was broken but failed to repair it. Additionally, the parties argued before the Court whether a landowner’s failure to keep the premises in repair could, as a matter of law, proximately cause an injury that happens more than two blocks away from the property. Given these arguments, the Supreme Court’s decision will likely either extend or limit the scope of landlords’ liability for injuries caused by their tenants or those that occur off the property.

The case is Tyner v. Matta-Troncoso et al., S18G0364. If you have any questions about this case or its impact on landlord liability, premises liability, or dog attack cases in Georgia, feel free to contact Wes Jackson at [email protected].

YMCA Owes No Duty To Provide Or Use AEDs When Renting Field To Private Soccer Club

Posted on: October 17th, 2018

By: Carlos Martinez-Garcia

California’s Fourth District Court of Appeal recently affirmed the trial Court’s order granting summary judgment in favor of the YMCA, disposing of a wrongful death lawsuit involving a patron who died of a heart attack on their property. The appellate court agreed YMCA had no statutory or common law duty to provide or utilize AED devices to an adult experiencing cardiac arrest, when that adult is a permissive user of the facility whose independent soccer club rented an outdoor portion of YMCA’s soccer field.

Decedent Mr. Adeal Jabo was a member of a private soccer league (“The League”) which rented the YMCA’s enclosed soccer field independent of the YMCA’s memberships. The YMCA had defibrillator AEDs on its premises and regularly took AEDs to YMCA-led sport events, however, it did not bring AEDs to the League games since the games were independent of the YMCA. Mr. Jabo experienced cardiac arrest after a League game, later dying from the attack. Mr. Jabo’s on site medical care was limited to CPR despite AED devices available at the front desk of the YMCA.

The presence and use of AEDs at facilities are governed by CA Health & Safety Code section 104113 and Civil Code sections 1797.196 and 171421. “Health Studios” are required to acquire, maintain and train personnel on the use of AEDs.

Although the Appellate Court held the YMCA was a “health studio” towards its members, in this case it was renting a field to a nonmember League that did not choose to accept YMCA’s membership or regulatory practices. The Court narrowly construed the statutory language that imposes duties on Health Studios to its members. Consequently, the YMCA did not bring itself within the statutory definitions and duties applicable to “health studios” that are required to supply AEDs to ensure the safety of its members.

Next, the Court looked at Civil Code 104113, which outlines duties related to AEDs, and also grants immunities for not only the use of AEDs, but also their nonuse. The Court held that as a matter of law, Civil Codes 1797.196 and 171421 did not impose a duty on the YMCA’s employee to apply and activate an AED given the ‘nonuse’ portion of the statute, even though the YMCA had an AED on site to promote the safety of its members and other patrons on site.

Lastly, the Appellate Court determined that the YMCA had no common law duty to supply and implement an AED, because it did not take any action to increase risk of injuries to the Soccer League members, and the YMCA merely rented a portion of its property for the League’s independent use. Imposing a common law duty on the YMCA would improperly broaden the Legislative’s intent.

If you have any questions or would like more information, please contact Carlos Martinez-Garcia at [email protected].

Insuring Against Rule 68 Offers of Settlement

Posted on: June 28th, 2018

By: Matt Grattan

One tool defense lawyers in Georgia frequently use to induce settlements is an offer of settlement under O.C.G.A. 9-11-68.   Rule 68 allows either party to a tort action to serve a written offer to settle the claim, so long as the offer is made within a certain time and satisfies several other elements under the statute.  If a Rule 68 offer is properly made by a defendant and rejected, that code section allows a defendant to recover its post-rejection attorney’s fees and expenses from a plaintiff in the event the plaintiff does not recover at least 75% of the offered amount at trial.

It is easy to see how the fee-shifting provision in Rule 68 can provide defense attorneys with leverage during settlement negotiations.  Simply put, it forces plaintiffs to put some skin in the game.  Because paying the defendant’s attorney’s fees and costs can significantly reduce or even eliminate a plaintiffs’ award at trial (and in turn a plaintiffs’ attorneys’ fees), plaintiffs may be more inclined to settle rather than face such risks at trial.

The fee-shifting benefit from Rule 68, however, could potentially be diminished by companies like LegalFeeGuard.   Established in Florida in 2012 to combat that state’s offer of settlement statute, LegalFeeGuard has recently started offering insurance policies in Georgia that cover attorney’s fees and costs under O.C.G.A. 9-11-68.  LegalFeeGuard offers no-deductible policies with limits as low as $10,000 and as high as $250,000.   Policies are triggered by a judgment in a bench trial or the return of a verdict in a jury trial, and are available to plaintiffs and defendants for a wide array of cases, including personal injury, breach of contract, and intentional torts.

What does the availability of fee-shifting insurance mean for defense lawyers and their clients?  LegalFeeGuard recently launched in Georgia (and the author is unaware of any other similar companies), so it is tough at this point to determine what kind of impact fee-shifting insurance will have on litigation in Georgia.  But this is certainly a development for lawyers to keep an eye on (particularly since LegalFeeGuard claims on its website to have sold over 1,000 policies in Florida) as such insurance may persuade more plaintiffs to roll the dice and take their case to trial knowing the downside risk of paying fees and costs is reduced, if not altogether eliminated.

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