In the case of Secretary of Labor v. ConocoPhillips, the Third Circuit was faced with an internal dispute between the Secretary of Labor and the Occupational Safety and Health Review Commission. The dispute arose because the Secretary of Labor claimed that Conoco had committed nine “serious” asbestos violations whereas OSHA claimed that the violations were “not serous” because the Secretary failed to present evidence of possible employee exposure to asbestos in every case. The Third Circuit rejected OSHA’s interpretation of the evidentiary requirement and instead held that “demonstrating the possibility of harmful exposure to asbestos does not require case-specific evidence under this Court’s standard, where the Secretary demonstrates that (1) employees engaged in a particular type of asbestos work, (2) the work at issue is presumed to generate significant employee exposure to asbestos under the regulations, (3) the employer had actual or constructive knowledge of the violative conditions, and (4) regulations were violated.” No doubt plaintiffs will attempt to use this looser standard in proving asbestos cases in the future.
If you have any questions about this post, please contact Bob Cosgrove at .
In McConnell v. Santana, a wrongful death action, the defendant failed to answer the complaint and the plaintiff was granted a default judgment. When the defendant moved to vacate he also argued that the court lacked personal jurisdiction because he was never properly served. After a Traverse hearing, the court granted his motion stating in sum, the motion “to vacate a default is granted.” The court never stated whether or not the complaint was properly served. After trial, judgment was entered in favor of the plaintiff. The defendant then moved to vacate the judgment on the grounds that the court lacked jurisdiction because he was never properly served. The Appellate Division denied the motion. The court did not address the merits of the moving papers, rather the court reasoned that if the trial court had found that the defendant had not been properly served at the Traverse hearing, it would have had no authority to take any action other than to dismiss the complaint. Since the court did not dismiss the complaint, in effect, the Supreme Court found that service was properly effected.
Thanks to Bill Kirrane for his contribution to this post.
In Atashi v. Fred-Doug 117, LLC, the First Department reaffirmed the lower court’s dismissal of the plaintiff’s compliant, holding that the defendants did not create the alleged dangerous condition that caused the plaintiff’s accident, nor did they have actual or constructive notice. Atashi, a security guard at the defendants’ building, tripped and fell over a large flatbed dolly that tenants sometimes borrowed from the building staff. The court held that the presence of the dolly alone did not equate liability onto the defendants. Atashi conceded that the dolly was not in the hallway five hours prior to the accident, and he would have been the only employee on site that day responsible for inspecting the location on the defendants’ behalf. Thus, absent any evidence to establish that the defendants created the condition, or would have been made aware of the condition by another building employee, his complaint had to be dismissed.
Thanks to Lora Gleicher for her contribution to this post.
In Atashi v. Fred-Doug 117, LLC, the First Department reaffirmed the lower court’s dismissal of the plaintiff’s compliant, holding that the defendants did not create the alleged dangerous condition that caused the plaintiff’s accident, nor did they have actual or constructive notice. Atashi, a security guard at the defendants’ building, tripped and fell over a large flatbed dolly that tenants sometimes borrowed from the building staff. The court held that the presence of the dolly alone did not equate liability onto the defendants. Atashi conceded that the dolly was not in the hallway five hours prior to the accident, and he would have been the only employee on site that day responsible for inspecting the location on the defendants’ behalf. Thus, absent any evidence to establish that the defendants created the condition, or would have been made aware of the condition by another building employee, his complaint had to be dismissed.
Thanks to Lora Gleicher for her contribution to this post.
Although, unlike with stolen art, there is not a database setting out acts of fine art vandalism, according to the Washington Post, vandalism is a big problem — especially at museums. The problem is that the viewing public’s right or desire to see unprotected works conflicts with the best possible security options available to museums. The conflict is unlikely to go away anytime soon, but should be considered by fine arts underwriters.
For more information about this post or WCM’s fine arts practice, please contact Bob Cosgrove at .
In Louboutin v. Yves Saint Laurent America, Inc., 11 Civ. 2381 (S.D.N.Y. Aug. 10, 2011), Louboutin sued YSL for trademark infringement of its famous red soles. After some initial discovery, Louboutin moved for a preliminary injunction stopping YSL from using red soles in an upcoming fashion line. To obtain a preliminary injunction, Louboutin had to show a “likelihood of success on the merits.” In evaluating the history the red sole, the Court traced its history to “King Louis XIV’s red-heeled dancing shoes or Dorothy’s famous ruby slippers in ‘The Wizard of Oz.’ ” The court also found that in fashion, color serves ornamental and aesthetic functions vital to competition. Accordingly, the court found that Louboutin’s trademark was overly broad and its continuation would likely hinder competition. YSL did not move for summary judgment, but the court encouraged it to do so, and indicated on such a motion it would likely revoke Louboutin’s trademark.
We can bet that this decision won’t die down quietly, and will be appealed, as the red soles are “fashion to die for!”
Special thanks to Cheryl Fuchs for her contributions to this post. For more information about it, or WCM’s intellectual property practice, please contact Bob Cosgrove at .
We have reported on several occasions about how social media has been slowly changing the legal landscape, particularly in terms of instructions to be given to jurors during trial proceedings. While judges must always instruct jurors not to communicate with anyone about the pending proceedings, jurors have continuously failed to comprehend that the judge’s instructions also apply to Facebook and twitter.
California has decided to be proactive about such juror actions, and is amending its jury instruction to include a prohibition against “any form of electronic or wireless communication.” Violators potentially face six months in jail.
A “tweeting juror” in NY can be charged with criminal contempt, and very nearly was in the case of People v. Rios, 2010 WL 625221 (N.Y. Sup., 2010) during a well publicized arson trial in Bronx County.
Thanks to Biran Gibbons for his contribution to this post.
In Admiral Ins. Co. v. State Farm Fire & Cas. Co., the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows.
In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification.
On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&K requesting a copy of the file since it had no information on the accident.
On March 19, 2004, State Farm sent UCS, plaintiff, P&K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&K’s failure to give prompt notice.
Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In affirming the trial court’s decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later.
The moral of the story is — if you’re pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you’re going to be fighting a long legal battle.
Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM’s coverage practice, please contact Bob Cosgrove at .
In the case of Willingboro Mall v. 240/242 Franklin Avenue, et al., the plaintiff appealed from an order enforcing a settlement reached during a mediation session conducted pursuant to Rule 1:40-4. Plaintiff argued that the rule precludes enforcement of an oral settlement reached at a nonbinding mediation session. It also contended the alleged settlement was the product of coercion by the mediator. The facts giving rise to the appeal are as follows.
Plaintiff and defendants were commercial real estate entities who were involved in a default and foreclosure dispute. The parties were referred to mediation by the General Equity judge. The parties selected a retired Superior Court Judge as mediator, and attended a mediation session with their attorneys at the office of defendants’ attorney. After several hours, the parties agreed to a settlement. Counsel for defendants then wrote a letter to the General Equity judge to inform him that the parties had reached a settlement. The letter also stated the terms of the settlement.
Plaintiff refused to consummate the settlement and instead asserted that a final, binding settlement agreement had not been reached at the mediation session. Defendants then filed a motion to enforce the mediated settlement agreement, and supported the motion with a certification of their attorney and the mediator. A plenary hearing was conducted and a written opinion was issued, which found that the parties did in fact arrive at a settlement of the underlying case, and that the settlement was therefore binding.
On appeal, plaintiff argued that Rule 1:40-4(i) prevented enforcement of an oral settlement because the terms of the settlement were not reduced to writing at the mediation session, a copy of the writing was not provided to each party, and the parties did not affix their signatures to the writing at the mediation session. In addition, plaintiff argued that enforcement of a settlement reached at a mediation session is contrary to the non-binding nature of the mediation process.
The Appellate Division agreed with the trial court. It ruled that mediation is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. Rule 1:40-4 (i) does not prohibit the mediator or one of the parties from reducing the terms of the agreement to writing shortly after conclusion of the mediation session as occurred in this case. Specifically, the court noted that in this case, three days after the mediation session, defendants’ attorney prepared and sent a letter stating the terms of the agreement reached by the parties. Two weeks later, he sent another letter informing plaintiff that he had placed the sum required to resolve the dispute in an escrow account. The Appellate Court held that these writings, the first memorializing the terms of the settlement and the second notifying plaintiff of defendants’ action to consummate the settlement, were within the intention of the rule requiring the agreement to be reduced to writing.
Two important points bear mention here. First, sometimes attorneys (and litigants) are held to their word and bound by their verbal actions. Second, and perhaps more importantly, know your case and the attorneys. If the attorneys on the other side seem like the kind of folks who will try to weasel their way out of an agreement, don’t leave the mediation until a written agreement is finalized and signed by all parties. It might take a little bit longer, but it’s certainly worth the effort – in fact, we just did this on a case on Wednesday where a post mediation “agreement on written terms” seemed like it might be hard to come by. But that’s a story for a different day…
Special thanks to Sheila Osei for her contributions to this post. For more information about it, or WCM’s NJ practice, please contact Bob Cosgrove at .
In Admiral Ins. Co. v. State Farm Fire & Cas. Co., the plaintiff insurer sought a declaration that the defendant insurer was obligated to defend and indemnify plaintiff P&K Contracting in the underlying personal injury action. The relevant facts of that tender are as follows.
In October 2002, an employee of Shahid Enterprises, a subcontractor retained by P&K, was injured when he fell from a ladder. In 2003, the employee commenced a lawsuit. On September 22, 2003, United Claims Service, as authorized representatives of the plaintiff, sent a tender letter to Shahid demanding defense and indemnification.
On December 17, 2003, UCS sent Shahid a follow up letter with copies to State Farm, Shahid’s insurer. In the letter, UCS did not indicate when it first received notice of the incident or lawsuit. State Farm claimed it did not receive this letter until January 22, 2004, because the letter was forwarded to an inactive claims office. On February 5, 2004, State Farm wrote to UCS and P&K requesting a copy of the file since it had no information on the accident.
On March 19, 2004, State Farm sent UCS, plaintiff, P&K, and Shahid a letter wherein it reserved its right to deny defense and indemnity based on late notice. By letter dated April 13, 2004—now 113 days after UCS’ December 17, 2003 follow up letter—State Farm disclaimed coverage based on P&K’s failure to give prompt notice.
Both plaintiff and defendant moved for summary judgment and both motions were denied, as the Supreme Court found that triable issues of fact existed as to whether State Farm disclaimed coverage as soon as was reasonably possible. In affirming the trial court’s decision, the First Department focused on the fact that the December 17, 2003 follow up letter did not provide State Farm with any information regarding when P&K received notice of the incident or suit, and thus did not make it “readily apparent” that State Farm had the right to disclaim coverage. In reaching that conclusion, the court noted its disapproval of the policy of disclaiming now and investigating later.
The moral of the story is — if you’re pressing a tender, make sure you provide enough information for the tender to be analyzed. Otherwise, you’re going to be fighting a long legal battle.
Special thanks to Gabe Darwick for his contributions to this post. For more information about it, or WCM’s coverage practice, please contact Bob Cosgrove at .
