In Viking River Cruises v. Moriana, B297327 (Cal. App. Sep. 18, 2020), the issue before the court was whether a pre-dispute arbitration agreement under the Federal Arbitration Act ("FAA") purporting to require arbitration of any such claim is valid. The decision effectively invalidates longstanding California law precluding arbitration of any Private Attorneys General Act (PAGA) claim, and will have massive positive repercussions in favor of employers.
- California School District Liable for Stabbing of Student on Campus After She Left School and Returned to Collect Books8.3.22
Schools must take reasonable steps to protect their students from foreseeable injury inflicted by third parties. A trip to Starbucks after track practice did not relieve the school of its duty to a student when she returned to school and was stabbed on campus. The school had a "special relationship" with the student under the law and owed her a heightened duty of care while she was present on campus during open hours.
The Arizona Supreme Court ruled that treating physicians who have personal and direct knowledge of the patient in question and who testify as to the standard of care, diagnosis, and treatment for that patient are not considered experts for purposes of the One Expert Rule. Further, the One Expert Rule's purpose is to reduce costs in presenting multiple expert witnesses rather than combating cumulative evidence, which is already addressed by Rule 403 of the Arizona Rules of Evidence.
People suffer injuries on other people's property all the time, but the responsibility to keep them safe may be legally delegated to an independent contractor. In this influential Washington court decision, Eylander v. Prologis Targeted U.S. Logistics Fund, No. 82834-7-I (Wash. Ct. App. Jul. 18, 2022), the court ruled that a landowner must take reasonable steps to ensure the safety of an independent contractor's employees on their property, but may delegate that duty if they exercise reasonable care to ensure that the independent contractor will protect their own employees against known or obvious dangers.
A mother's claim against the City of Peoria for an incident resulting in the death of her son was not invalidated due to the inclusion of a shortened settlement window in her notice of claim. The Arizona Supreme Court in James v. City of Peoria, No. CV-21-0125-PR (Ariz. Jul. 18, 2022), found that a notice of claim otherwise in compliance with A.R.S. §12-821.01 is not invalid because it attempts to set a deadline for settlement prior to the sixty-day period outlined by the statute. The action was a legal nullity.
In another defining decision regarding ostensible agency, the Court of Appeal in De Valle v. Doctors Med. Ctr. of Modesto, No. F082099 (Cal. Ct. App. Jul. 6, 2022) found in favor of a defendant hospital. Based upon this recent decision, a patient’s claim for injuries against a hospital based upon ostensible agency for negligent surgery performed by an independent contractor will fail when it is demonstrated that the patient had a pre-existing relationship with the physician, that such physician scheduled the surgery and selected the hospital where the surgery would be performed, and that the patient should have reasonably known that the hospital was simply the venue for the surgery.
A gym member's claim of negligence, gross negligence and premises liability was shot down by the court when it found that she signed a release of claims as part of her membership agreement. A slip and fall in the gym's sauna as a result of a burnt out light bulb did not rise to the level of gross negligence to subject the club to liability.
A court invalidated an arbitration agreement as unconscionable and adhesive where it was presented to an employee as a condition of employment. The agreement was found procedurally unconscionable because the employee spoke Spanish and was only provided documentation in English, without any offer of translation or assistance in understanding the document. The agreement was also found substantively unconscionable because it permitted the arbitrator to shift all attorney's fees and costs to the employee in the event the employee was the losing party and severely limited discovery.
Washington’s Court of Appeals held an owner of land who did not exercise control over the manner of work on a worksite was not vicariously liable for the death of an employee of one of its general contractors. The decision handed down on June 21, 2022, in Farris, et al. v. The Port Blakely Company, et al. is instructive on common law and regulatory scheme establishing the line dividing responsibility between landowners and contractors performing works of improvement.
- Extended Statute of Repose for Injury or Wrongful Death Action is Not Applicable to Employer of Offender7.13.22
The standard statute of limitations for a party to bring a personal injury or wrongful death actions is two years. There are, however, circumstances in which the statute of limitations for such causes of action are extended. The victim of a felony in California, for example, has an extended statute of limitations in which to bring an action for personal injury or wrongful death against the person convicted of that felony. (Code Civ. Proc., § 340.3) In Cardenas v. Horizon, the California Court of Appeal made a notable ruling limiting the extended statute of limitations, holding such an extension does not apply to the convicted felon's employer. The Court further held that Labor Code section 2802, which allows an employee to be indemnified by his or her employer, does not apply to third parties in this circumstance.
The California Court of Appeal ruled that a general liability policy does not provide coverage to a homeowner who grades a neighbors' property because of a mistaken understanding of the property lines. The homeowner’s policy contained standard language creating coverage for property damage caused by an “occurrence,” which the policy defined as an “accident.” The insurer did not have a duty to defend the policyholder because a mistake as to property lines did not qualify as an accident and trigger coverage under the policy.
- In Negligence Suit for Failure to Test for THC, Texas Supreme Court Thwarts Attempt to Discover Information on Unrelated Drivers' Drug Use7.12.22
The Texas Supreme Court found in In re UPS Ground Freight, 65 Tex. Sup. Ct. J. 1532 (Tex. June 17, 2022) [20-0827] that a discovery request in a wrongful death action compelling production of the drug tests and other personal information of uninvolved UPS drivers was overbroad and prohibited by federal law.
- Texas Supreme Court Finds That a Corporation's Director Cannot Owe an Informal Fiduciary Duty To Benefit an Individual Shareholder7.12.22
Dick Poe was the only director of Poe Management, Inc. (PMI). As part of that role he authorized the issuance of 1,100 shares of PMI stock, which he purchased for $3.2 million. Prior to the issuance of these shares, Dick's son, Richard, was PMI's only shareholder. Richard did not have knowledge of the issuance until after Dick's death and at that point he brought suit to invalidate the share issuance.
In a recent decision, the Illinois Supreme Court found that an employer's acknowledgement of vicarious liability can no longer prevent a plaintiff from filing negligence claims directly against the employer. Prior to this decision, employers were shielded from independent, individual claims of negligence and could only be vicariously liable for the negligence of their employees, with certain exceptions. Employers and their legal counsel as well as insurance adjusters should take note of this important development.
- New Jersey Supreme Court Rules Mode of Operation Rule Does Not Apply to Sale of Produce in Sealed Containers6.22.22
New Jersey Supreme Court excludes application of rule relieving plaintiffs who bring premises liability claims against businesses that employ self-service models of the burden of proving actual or constructive notice of a dangerous condition to produce sold in sealed containers.
Senate Bill S74A, also known as the “Grieving Families Act” (“GFA”) is set to vastly expand compensable damages in wrongful death actions. Currently, compensable damages in these types of actions are limited to pecuniary loss only, such as pre-death medical expenses, funeral expenses and loss of financial support.
In the past several years, Florida homeowners have accounted for somewhere between 65 to 80 percent of all property lawsuits filed nationwide. In just this calendar year, insurers in the Florida market have either stopped writing business or have gone under. For instance, since February 2022, at least three insurers – Lighthouse Property Insurance, Avatar Property & Casualty, and St. John’s Insurance Co. – have been declared insolvent.
By way of a recent Arizona Supreme Court holding, Arizona law continues to support the legal conclusion that non-contracting parties cannot maintain a cause of action sounding in negligence for purely economic damages. Cal-Am Properties Inc. v. Edais Eng’g Inc., CV-21-0129-PR, 2022 WL 1613497, at *5 (Ariz. May 23, 2022).
In a trifecta of good news for defense attorneys, three separate cases in the New York Court of Appeals were decided in favor of insurers in bodily injury construction claims. Although it may not yet be considered a trend, a positive decision for the defense, especially in traditionally plaintiff-friendly counties, is good news for insurance companies and the attorneys who defend them.
- Massachusetts Supreme Judicial Court Holds that Three Prong Independent Contractor Test Applies to Franchises6.1.22
In a widely-anticipated decision, the Massachusetts Supreme Judicial Court unanimously held that where a franchisee is an “individual performing any service” for a franchisor, the three prong test set forth in the independent contractor statute applies to the relationship between a franchisor and the individual and is not in conflict with the franchisor’s disclosure obligations prescribed by the FTC Franchise Rule.
Appellate Division revokes case law carrying a presumption that third-parties or recording devices are allowed in the examination room for psychological defense medical examinations, but require plaintiffs to show “special circumstances” warranting third-party observation or recording of physical examinations.
After decades of debate, the reform of medical malpractice claims in California is finally coming to fruition. Legislators and interested parties on both sides of the MICRA debate have reached a compromise and agreed to a deal that will avert a planned ballot measure in the upcoming election.
A constant struggle for Florida insurers is how to handle partial claim payments when the Insured assigns benefits under the Policy to entities that are not a party to the insurance contract, like mold mitigation and testing vendors. This is especially true when there may be insufficient limits available due to a mold or water limitation, or when considering how to apply the deductible. A recent Fourth District Court of Appeal decision highlights the conflicting viewpoints on how an insurer should handle these disputes.
A football player injured during a game was barred from filing a claim against the school district and its employees after signing an express assumption of the risk agreement. The school followed all applicable CIF and school regulations regarding concussions and was not grossly negligent in its actions.
- Landowner Not Required to Warn of Open and Obvious Danger That Was Necessarily Undertaken by Employee to Complete His Work4.22.22
Generally, a property owner is required to warn contractors performing work on their property of dangerous conditions. Where the condition is open and obvious, however, this obligation is no longer required and the property owner will not be liable for any personal injuries or property damage that occur due to the known danger.
- Nurse Convicted in Criminal Proceedings for Medication Mistake Spawns Concern Among Medical Professionals4.22.22
In a fear-inspiring decision for medical professionals, a Tennessee jury recently found a nurse from Vanderbilt University Medical Center guilty of reckless homicide and gross neglect of an impaired adult patient. Criminal charges were filed against the nurse after she accidentally administered the wrong medication to a patient who later died. This case has wide-ranging implications for health care law and medical professionals across the country.
In a decision released on March 11, 2022, the California Court of Appeal held that Amazon was not immune from liability for failing to provide California Proposition 65 warnings on certain skin-lightening creams sold on its website. In Lee v. Amazon.com, Inc., Court of Appeal Case No. A158275, the Court held that a plaintiff was not required to show that Amazon had actual knowledge of the presence of mercury in the products it sold on its website and the Communications Decency Act did not protect Amazon from liability. The decision may have wide-ranging implications for e-commerce, requiring web retailers to issue warnings to California residents when manufacturers do not.
California Business and Professions Code 7031 is a provision prone to drawn out court battles with confusing fact patterns. In the recent case of Panterra GP, Inc. v. Superior Court, 74 Cal. App. 5th 697, 289 Cal. Rptr. 3d 743 (2022), review filed (Mar. 10, 2022), the justices were persuaded by the conclusion that the application of this section often results in a harsh outcome for many plaintiffs. Given that, they found that a licensed contractor who was not properly named in the contract could have its day in court to seek reformation of the contract to reflect the true intent of the parties.
The Supreme Court answered the Fifth Circuit’s certified question inquiring whether the employee exception in the Texas Anti-Indemnity Act (TAIA) permits additional insured coverage when an employee who was injured on the job site sues the additional insured for his personal injuries. Can the injured employee recover under these circumstances and is he a co-employer of the indemnitor under the Texas Workers’ Compensation Act (TWCA)?
Although surety companies are generally not liable for tort damages to a third party, Washington’s legislature has carved out a limited exception for the setting up and sitting of mobile homes. The Revised Code of Washington (RCW) establishes a per se violation of the Consumer Protection Act in situations where a bonding company does not perform a reasonable investigation to resolve the claims of third parties who have sustained injuries or other damages as a result of a faulty set-up of a mobile home. However, to access this exception, the injured party must make a claim against the bond by filing a lawsuit in superior court. A surety’s duty to investigate and resolve the claim is not triggered until such suit is filed.
- Plaintiff Suing for Legal Malpractice Excused From Arbitration Costs Where Financially Unable to Pay4.10.22
A trial court that granted defendant’s motion to compel arbitration has jurisdiction to lift the stay where a plaintiff demonstrates financial inability to pay arbitrations costs. The trial court may then instruct the defendant to pay the plaintiff’s share of costs for arbitration, or agree to waive its right to arbitration.
A plaintiff suing for medical malpractice could not collect payment for her injuries under a settlement agreement, where she had not performed her end of the bargain. Specifically, the failure to execute a “more comprehensive settlement” addressing mutual confidentiality was non-performance by the plaintiff. The mutual confidentiality agreement did not prevent required public disclosures to the Medical Board as plaintiff claimed and it was not otherwise in violation of the Business and Professions Code. In addition, the defendant was not entitled to attorney fees for requests for admissions that went to the heart of the case and then used to demand attorney fees after prevailing on the issue.
- Previously Excluded Wrongful Death Beneficiaries Granted Their Day in Court After Washington Statute is Amended3.10.22
In 2019, the Washington State Legislature amended the wrongful death statute to include certain second tier beneficiaries, including siblings of the deceased. Previously, parents and siblings could only sue for wrongful death in Washington if they were financially dependent on the decedent. With the precedent set by the Washington Supreme Court in Kellogg v. Nat’l R.R. Passenger Corp., No. 99724-1, 2022 WL 552605 (Wash. Feb. 24, 2022), it is clear that Washington courts will now allow wrongful death cases to proceed for second tier beneficiaries who are not financially dependent on the decedent. Moreover, claims by second tier beneficiaries which are not yet time-barred may also proceed, even if the death occurred prior to the amendment of the wrongful death statute.
The New York State Supreme Court’s failure to give proper jury instructions regarding the substitution of an alternate juror as well as its failure to require that deliberations resume from the beginning after the alternate juror joined the jury, resulted in an invalid verdict which deprived the defendants of their constitutional and statutory rights.
In the case of Lydia Kaney v. Carol A. Custance, the California Court of Appeal provided great latitude to plaintiffs when it comes creating a triable issue as to causation where the plaintiff lacked any recollection of the incident, or knowledge of what may have caused the incident.
- First-to-File Rule under IFPA Does Bar Subsequent Qui Tam Actions Involving Different Victim Pools or Fraudulent Schemes Against Same Defendant3.7.22
The Insurance Fraud Protection Act (IFPA) did not prohibit subsequent qui tam lawsuits against the same defendant doctor when the actions involve different victim pools or schemes of fraudulent activity.
An employee who stepped outside for a smoke and to walk across the street for a sandwich on an unplanned break was entitled to workers compensation. The Pennsylvania Commonwealth Court found that these activities remained within his course of employment.
An employee who brought suit against his employer for multiple Labor Code violations was not held to the provisions of an arbitration agreement as several terms were skewed in favor of the employer. The court found that an agreement signed as a condition as employment as well as containing multiple unfair terms that were stacked against Plaintiff, rendered the contract as a whole unconscionable and unenforceable.
After appealing the trial court’s grant of summary judgment, a hospital manager will get her day in court. In Crabtree v. Jefferson Healthcare, the Court of Appeals (Div. 3) found that a genuine issue of material fact exists as to the reasons for the employee’s termination of a pregnant employee and subsequently, the case should be heard and decided upon by a jury.
At the close of 2021, Governor Hochul signed into law the New York 2022 Comprehensive Insurance Disclosure Act. This law provides for significant amendments to the Civil Practice Law and Rules (C.P.L.R.) and will greatly impact insurance carriers as well as defense counsel moving forward. The new law mandates certain insurance disclosure requirements that may have detrimental effects on the defense industry by opening up the flood gates to more litigation and inflated demands on settlement. It also imposes burdensome requirements within a short period of time to disclose actual insurance policies and other lawsuits that affect or implicate coverage.
In an important development, the United States Supreme Court agreed to review the California Court of Appeal opinion in Viking River Cruises v. Moriana, B297327 (Cal. App. Sep. 18, 2020), involving a motion to compel arbitration and California’s Labor Code Private Attorneys’ General Act (“PAGA”) statute. The issue before the court is whether a pre-dispute arbitration agreement under the Federal Arbitration Act (“FAA”) purporting to require arbitration of any such claim is valid. A favorable employer decision would invalidate longstanding California law precluding arbitration of any PAGA claim, and have massive positive repercussions in favor of employers.
At the close of 2021, the Nevada Supreme found NRS 52.380, which allowed observers and audio recording during physical or mental examinations without a prior showing of good cause, unconstitutional under the separation of powers doctrine. Notwithstanding the constitutional and legal reasoning behind the ruling the court’s decision represents an end to a nearly 3-year policy battle. The decision also has practical implications for practitioners involved in personal injury litigation in Nevada. Namely, the appropriate procedures for physical and mental examinations are exclusively found in Nevada Rule of Civil Procedure 35. This may not be a particularly groundbreaking legal development, but it provides Nevada practitioners with some much-needed clarity regarding independent medical examinations in civil discovery.
For over a year now, Americans with Disabilities Act (ADA) website accessibility cases in federal district courts in Florida, Georgia, and Alabama have been at a near standstill pending an appeal to the Eleventh Circuit Court of Appeals in the matter of Gil v. Winn Dixie Stores. The appeal sought review of a trial court’s judgment that Winn Dixie’s website violated the ADA by not providing sufficient technology to allow a vision-impaired customer access to the website’s virtual offerings that he would have then used in the physical store location. On April 7, 2021, the Eleventh Circuit vacated judgment, holding that under the ADA, Winn Dixie’s website was not a “place of public accommodation.” The decision at the Eleventh Circuit was reached by only a panel of three judges. The plaintiff then asked the Eleventh Circuit to rehear the case en banc, or to have all of the Eleventh Circuit judges decide the case again. On December 28, 2021, the Court granted plaintiff’s request but then dismissed the matter entirely.
The Massachusetts Supreme Judicial Court ruled that the COVID-19 emergency order which tolls the filing deadline for civil suits should apply to all civil cases and not be limited to those with a deadline within 3/17/20-6/30/20. This case is important to practitioners and those doing business in in Massachusetts because it clarifies the applicability and timing of several court orders that tolled statutes of limitations and court deadlines due to the COVID-19 pandemic impacting normal business and court operations in Massachusetts
- Washington State Supreme Court Weighs in on Spearin Doctrine and Limiting Contractor Liability for Construction Defects9.10.21
The Spearin Doctrine dictates that a project owner impliedly warrants that the plans and specifications it provides are accurate and suitable, and can protect a contractor against liability. Must a contractor prove that all of the construction defects are attributable to the owner's defective plans and specifications to prevail on this affirmative defense? The Washington State Supreme Court in Lake Hills Investments, LLC v. Rushforth Construction Co., Inc. d/b/a AP Rushforth, et al. answers this question and provides guidance on the application of the Spearin Doctrine in defending construction defect claims.
Corporate executives and their legal counsel should immediately take note of the recently amended rule of civil procedure in Florida, which now formally recognizes high level corporate officials as a protected party under the Apex Doctrine.
The 2021 Texas Legislative Session tackled the issue of sexual harassment in the workplace by passing two new pieces of legislation that go into effect on September 1, 2021. These laws create cause of action for sexual harassment in the workplace and also delineate protections for employees who work for smaller employers.
Colorado’s Supreme Court shined a bright light on the importance of risk management in the employment world this week. Examining the hot issue of vacation pay, this particular case offers excellent guidance to employers not only in Colorado, but nationally on the import of managing and dispersing employee unused vacation pay. Employers in Colorado will need to revisit their paid time off and vacation policies after the Colorado Supreme Court's recent decision in Nieto v. Clark's Market, Inc., wherein the court ruled that a former employee of Clark's Market was entitled to compensation for earned and determinable vacation pay, despite the presence of an agreement purporting to forfeit earned vacation pay, after separation from the company.