One impact in the current economic environment is a rise in malpractice claims against real estate lawyers. As real estate prices continue to fall, more individuals and businesses are suing their attorneys for bad results. The ABA reports that malpractice claims against real estate attorneys have risen four percentage points in the last four years.

The current economic situation will likely bring errors and omissions and malpractice claims against attorneys, accountants, investment consultants, and other service professionals that deal with investments, businesses, real estate and the stock market. Carriers should be aware of the potential for an increase in E & O and D & O litigation in the near future.

David Fioravanti, who won $100,000 on the NBC reality show “The Biggest Loser”, has been indicted in Boston for an insurance scam involving alleged jewelry losses. According to authorities Fioravanti took out an insurance policy covering $63,000 in jewelry 2002. The following year he reported that the jewelry was lost when his apartment was burglarized and he collected on a $63,000 insurance claim. Months later he purchased insurance on the same jewelry from a different company and reported it stolen. That company canceled the policy when it learned about the prior claim. Undaunted, Fioravanti later insured the same jewelry with yet another company that reported his activity to law enforcement officials.

http://www.bostonherald.com/news/regional/general/view.bg?articleid=1122606

New York’s Labor Law Section 240 has been a troublesome statute for defendants. At times, its reach appears nearly limitless. Such is the case of Romero v. Trump Apartments. In Romero, plaintiff was employed as a day laborer who was assisting in the removal of a perimeter chain link fence. Standing on the ground, he held up the fence’s horizonal top frame, which was about 8 feet off the ground. During a mishap, this metal post became unmoored, falling less than 3 feet to strike plaintiff on the head.

Two issues confronted the court. First, was plaintiff engaged in work protected by Section 240? Second, did the accident involve an “elevation-related” risk bringing it within the scope of Section 240? Not surprisingly, the motion court held that the demolition of a fence triggered Section 240 because it involved the demolition of a “structure.” Further, although being struck by a falling object can trigger a Labor Law claim, the court ruled that a pipe falling 33 inches is not a de minimus distance. So much for the statute being limited to falls from a scaffold, ladder or a height. The practical effect was that plaintiff was granted summary judgment and the defendant was stripped of its right to claim that plaintiff was comparatively negligent to any degree.

Our advice is simple. Never underestimate the scope of Section 240 of the Labor Law. Its reach is expansive and the effect of its application ominous: a breach of the statute results in strict liability and the defendant cannot argue that plaintiff was comparatively negligent. The goal for owners and general contractors is to shift liability to those contractors who were responsible for directing, supervising, and controlling the activities that led to plaintiff’s injuries.

http://www.nycourts.gov/reporter/3dseries/2008/2008_51887.htm

Pennsylvania courts have long allowed expert testimony on the “each and every breath” theory of asbestos causation. Under this theory, experts have been allowed to opine that “each and every breath of asbestos is a substantial contributing factor in the causation of any asbestos disease.” Philadelphia trial court judge Allan Tereshko has just rejected this theory. In the case of In re Asbestos Litigation, Certain Asbestos Friction Cases Involving Chrysler, Judge Tereshko was asked to rule on the admissibility of plaintiffs’ experts who subscribed to the “each and every breath” theory. After conducting a Frye hearing, Judge Tereshko ruled that the experts’ methodologies underlying their “each and every breath” testimony was so flawed that the experts’ testimony had to be excluded.

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202424897755

An insurance agent visited his local movie theater in Manhattan and bought a bag of popcorn on his way to his seat. Halfway through the movie and halfway through his bag of popcorn, he broke a tooth on an unpopped kernel. When the theater owner declined to pay his $1,200 dental bill, he filed suit. In Kaplan v. American Multi-Cinema, Inc, the court awarded summary judgment to the movie theater, explaining that in cases involving objects imbedded in food (bones in a fish fillet, walnut shells in a cheese sandwich, etc.), the analysis used in New York is a “reasonable expectation” test. The court ruled that, alas, one must reasonably expect that not all kernels will pop. To avoid a popcorn injury one should perhaps “resist the urge to devour the bag by the handful in favor of a more cautious nibbling by the piece.”