Bell & Clements Insureds

New York Comprehensive Insurance Disclosure Act Updates 2022

5/5/22

By: Nicholas J. Hubner New York enacted the Comprehensive Insurance Disclosure Act on December 31, 2021 (the “Act”). When originally signed, Governor Hochul requested that the Senate consider certain amendments to reduce or clarify the burden on litigants. The Act was amended on February 24, 2022, to address a variety of concerns with New York…

No more tears: Supreme Court rules damages for emotional distress are not recoverable under Title VI, Title IX, the Rehabilitation Act, or the Affordable Care Act

5/4/22

By: Michael M. Hill In a sea change for antidiscrimination laws, the Supreme Court ruled in Cummings v. Premier Rehab Keller, P.L.L.C. that, under certain federal statutes, plaintiffs cannot obtain damages for mental or emotional distress. The statutes implicated by this ruling are Title VI of the Civil Rights Act, Title IX of the Education…

U.S. Supreme Court Addresses Parameters of Free Speech

5/3/22

By: Doug Holthus On May 2, 2022, the United States Supreme Court announced its decision in Shurtleff v. City of Boston, et al., 596 U.S. _ (2022). The primary issue presented: the parameters of freedom of speech. The City of Boston, MA has a tradition. For many years, a flagpole erected outside of Boston’s City…

Avoid These Practitioner Pitfalls When It Comes to Trade-Secret Misappropriation Trials

5/2/22

By: Nancy M. Reimer and William A. Hadikusumo  A recent decision by the United States Court of Appeals for the Eleventh Circuit in Financial Information Technologies, LLC v. iControl Systems, USA, LLC, — F.4th — (11th Cir. Dec. 22, 2021) provides an all too real example of the oft-used idiom “do as I say, not…

Employer overcomes religious-based challenge to vaccine mandate

5/2/22

By: Janet R. Barringer On April 27, 2022, the United States Court of Appeals for the First Circuit Court ruled in Together Employees, by Individual Representatives v. Mass. Gen. Brigham Inc. (2022 U.S. App. LEXIS 11379), that a hospital system may require its workers to receive the COVID-19 vaccine over its employees’ religious objections as…

Elon Musk’s planned purchase of Twitter reignites questions of open source code security

4/29/22

By: Alexia Roney On April 25, 2022, Elon Musk sealed the deal to buy Twitter, Inc., for $44 billion. Among the changes to the platform, Musk has floated making the algorithm that prioritizes tweets “open source,” so the public could view and improve it. This generated articles in major news media over the security of…

Res Ipsa Loquitur: The Massachusetts Appeals Court reverses Summary Judgment in favor of allowing “a chair” to speak for itself

4/28/22

By: Sean P. Kelly In a recent Appeals Court decision, Kennedy v. Abramson, 100 Mass. App. Ct. 775 (2022), the Massachusetts Appeals Court reinforced the vitality of the doctrine of res ipsa loquitur as a means for plaintiffs to be heard in front of jury even where there is limited evidence of a prior defective…

Ohio Appellate Court addresses “Permanent and Substantial Deformity”

4/25/22

By: Doug Holthus Ohio Revised Code §2315.18 imposes certain limits upon the available recovery of personal injury compensatory (non-economic) and punitive damages awards. An exception to the cap on non-economic damages exists where the plaintiff can establish that the injury complained of constitutes a “(P)ermanent physical functional injury that permanently prevents the injured person from…

The Eleventh Circuit finds that a qualifying “excess judgment” for bad faith may be based on a consent judgment, rather than a verdict

4/22/22

By: Mary-Kate Planchet In Erika L. McNamara, Willard F. Warren and Kenneth Bennett v. Government Employees Insurance Company, 2022 U.S. App. LEXIS 9090 (11th Cir. Apr. 5, 2022), the United States Court of Appeals for the Eleventh Circuit determined whether a qualifying “excess judgment” for bad faith must be based on a verdict or may…

Massachusetts High Court Issues Two Important Wage and Hour Decisions

4/22/22

By: Jennifer Markowski, R. Victoria Fuller and Chris Redd The Massachusetts Supreme Judicial Court (“SJC”) recently issued a pair of decisions clarifying potential damages under Massachusetts’ wage and hour laws. Reuter v. City of Methuen addressed the appropriate measure of damages when an employer fails to timely pay wages. The Massachusetts Wage Act, M.G.L. c.…

Georgia Sparks Further Cannabis Debate

4/20/22

By: Wayne S. Melnick and Carlos A. Fernandez The legalization of cannabis continues to cause chronic concern in Georgia. Recently, the State of Georgia and Patsy Austin-Gatson, Gwinnett County District Attorney, were named as defendants in a suit challenging the legality of commercial products containing cannabinoids derived from hemp. These hemp-derived products are not the…

PAGA Manageability Requirement: A Split of Authority in California

4/15/22

By: Adam G. Khan On March 23, 2022, the California Court of Appeal based in Orange County held in Estrada v. Royalty Carpet Mills, Inc., 2022 Cal. App. LEXIS 237 a trial court “cannot dismiss a PAGA claim based on manageability.”  The decision dealt California employers another blow in responding to Private Attorneys General Act…

New Bridge Projects Raise New Opportunities and Risk Considerations

4/14/22

By: Eric Asquith It made national news when the Fern Hollow bridge collapsed in Pittsburg, PA on January 28, 2022. Vehicles and a transit bus were on the bridge at the time of the collapse – 10 people were injured. The shocking aftermath of the collapse is seen in the photograph above. The National Transportation…

Georgia legislature passes amendment to O.C.G.A. § 51-12-33 impacting apportionment of fault against non-parties in single defendant cases

4/14/22

By: Tyler Connor In August of 2021, the Supreme Court of Georgia issued its controversial decision in Alston & Bird, LLP v. Hatcher Mgmt. Holdings, LLC, 312 Ga. 350, 862 S.E.2d 295 (2021). The Court ruled that under O.C.G.A. § 51-12-33(b), an action must have been “brought against more than one” defendant for any defendant…

California court holds that board diversity law violates equal protection

4/13/22

By: John Rubiner On September 30, 2020, California Governor Gavin Newsom signed into a law a bill (SB 979) that required publicly held companies headquartered in California to include board members from underrepresented communities. The law further required that, by the end of 2021, California-headquartered public companies have at least one director on their boards…

Kentucky’s Supreme Court examines the punitive damage “multiplier” in a case of first impression

4/12/22

By: Curt Graham In cases involving punitive damages, courts often look to the ratio between punitive damages and compensatory damages when evaluating the constitutionality of the punitive damage award. This ratio is called the punitive damage “multiplier.” In a case of first impression, Kentucky’s Supreme Court recently determined that the punitive damage multiplier should be…

Supreme Court clarifies “favorable termination” requirement for malicious prosecution claims

4/12/22

By: Steven L. Grunberg On April 4, 2022, the United States Supreme Court made it easier to bring a § 1983 claim for malicious prosecution by defining “favorable termination” to mean that the plaintiff’s underlying criminal prosecution ended without a conviction. The decision is available here.  Prior to this holding in Thompson v. Clark, the various…

Red flag: Ninth Circuit affirms summary judgment against football-related wrongful death claims

4/11/22

By: Sharlynne M. Mate In Archie v. Pop Warner, No. 20-55081; CD CA 2:16-cv-06603, the Ninth Circuit panel unanimously affirmed summary judgment against chronic traumatic encephalopathy wrongful death claims by the estates of two former youth football players. The players died in their mid-twenties, a decade after their participation in Pop Warner Football – a…

Ohio Appellate Court reviews standard for claiming peer review privilege

4/6/22

By: Shafiyal Ahmed In Stull v. Summa Health Sys., 2022-Ohio-457, the Ohio Ninth District Court of Appeals held that the Defendant Health System failed to establish that a physician’s residency file was privileged as a record within the scope of a peer review committee pursuant to Ohio Revised Code §2305.252.   The Plaintiff in Stull received…

Considerations for accountants in responding to a subpoena for client documents

4/6/22

By: Nancy Reimer and Lori Eller When a CPA or its firm is served with a subpoena requesting a client’s tax or financial information, there are best practices and steps they should take prior to responding to the subpoena. Federal and state law, as well as the American Institute of Certified Public Accountants’ (“AICPA”) Code…

Five things California lawyers have to report to the State Bar

4/5/22

By: Gregory T. Fayard California lawyers have certain reporting obligations to the State Bar. These obligations are mandatory. The reporting must occur within 30 days of the event. Failing to report can lead to discipline, jeopardizing the lawyer’s law license. Here are five things California lawyers must report to the Bar (which they may not…

D.C. Circuit: The Second Most Important Court in America

4/5/22

By: Sun Choy With the nomination of Judge Ketanji Brown Jackson to the Supreme Court, the United States Court of Appeals for the District of Columbia Circuit is in the spotlight once again. If confirmed, Judge Jackson will join Chief Justice John Roberts, Justice Clarence Thomas and Justice Brett Kavanaugh as former D.C. Circuit judges.…

Updating Your California Employee Handbooks in 2022

4/4/22

By: Eileen P. Darroll Employee Handbooks protect employers from potential litigation. California has notoriously strict laws protecting employees; all businesses should regularly review handbooks for updates. If your business is based outside California, you should consider creating an addendum for California employees to mitigate the risk of litigation. In California, employers with at least five…

Significant Changes for Federal Contractors Likely Coming Soon

4/1/22

By: Amy C. Bender The U.S. Department of Labor has proposed the most sweeping changes to the regulations implementing the Davis-Bacon Act and Related Acts in 40 years. The Davis-Bacon Act requires the payment of locally prevailing wage rates and fringe benefits to all laborers and mechanics on contracts entered into with federal agencies and…

Protection of Private Information

3/30/22

By: Paul Boylan The Supreme Judicial Court for the Commonwealth of Massachusetts recently confirmed what it means for something to be confidential. The case is In the matter of Attorney Michael J. Kelley, SJC-13145, March 16, 2022.  Kelley confirms the long-standing principle in many jurisdictions that that protection of confidential information is not limited to…

SCOTUS has granted certiorari in The Andy Warhol Foundation case

3/29/22

By: Patrick Eckler The Supreme Court of the United States has granted certiorari in The Andy Warhol Foundation for the Visual Arts, Inc. v. Lynn Goldsmith, et al., on the following question: Whether a work of art is “transformative” when it conveys a different meaning or message from its source material (as this Court, the…

Congress Imposes New 72-Hour Reporting Requirement for Cyber Security Incidents

3/28/22

By: David Cole and Heather Kuhn President Biden’s promise to prioritize cybersecurity this year is beginning to take shape. On March 15, 2022, President Biden signed into law the Cyber Incident Reporting for Critical Infrastructure Act (“Cyber Incident Reporting Act”). Under the new law, certain businesses that are as “covered entities” and which are considered…

Chubb unit beats virus coverage suit brought by NJ apparel company

3/25/22

By: Edward Solensky Jr. In GK Trading LLC v. Chubb Group of Insurance Cos. et al., the SuperiorCourt of New Jersey dismissed an apparel company’s suit seeking to have a Chubbunit cover its losses arising from the coronavirus outbreak. Specifically, Plaintiffalleged that COVID-19 microbial matter attached to the surfaces within its CoveredLocations and thereby caused…

U.S. Women’s Soccer Team’s pay discrimination settlement is a good reminder for companies to assess their compensation systems

3/23/22

By: William H. Buechner, Jr. The U.S. Women’s National Team (“USWNT”) recently settled its highly publicized class-action lawsuit under Title VII and the Equal Pay Act against the U.S. Soccer Federation (“U.S. Soccer”). Under the terms of the settlement, the USWNT players will receive a total of $24 million, including $22 million in backpay and…

Florida Bad Faith: If Insurers Try Sometimes, They Just Might Find, They Get Summary Judgment

3/22/22

By: Matthew Boyer and Jessica Cauley On February 15, 2022, the Eleventh Circuit filed an unpublished opinion interpreting Florida’s bad faith law arising out of the United States District Court for the Southern District of Florida. Ellis v. GEICO Gen. Ins. Co., No. 21-12159, 2022 U.S. App. LEXIS 4180 (11th Cir. Fla., February 15, 2022).…