Category Archives: Other Jurisdiction

Deliberations Continue in Fan Attack at Dodger Game

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Jurors in Los Angeles County resumed deliberations Monday to decide whether the Los Angeles Dodgers are civilly responsible for injuries caused to Bryan Stow on opening day in 2011. 

 

Shaw, a San Francisco Giants fan, attended the Giants-Dodgers game in Los Angeles, and was assaulted by multiple Dodgers fans, two of whom pleaded guilty to criminal charges after the assault.  Stow’s attorneys contend that the Dodgers’ security was inadequate, and that a “culture of violence” at Dodgers-Giants games proximately caused Shaw’s injuries.  Interestingly, Dodgers’ (former) owner Frank McCourt was involved in a very public and unpleasant divorce at the time, and has been accused of using Dodgers’ funds for personal expenses around the time of this assault – i.e., not using those funds for proper security.

 

Dodgers’ attorneys content that Stow was himself intoxicated (his BAC was .18, more than double the legal driving limit) and also, that the fault here lies with the criminals who committed the assault, not with the Dodgers.

 

Stow’s injuries are significant.   He is unable to walk without assistance, requires diapers on a daily basis, suffered various internal injuries, and will never be able to work again.  Of interest to those of us in litigation world is the quantum of future damages.  At the time of the accident, Stow, 45, was employed as a paramedic earning $114,000 per year.  His attorneys contend that future lost earnings, with annual increases through age 69, together with future life care, entitles plaintiff to $37 million in damages.

 

It will be interesting to see how the jury attributes fault here, and from there, how they comprehend future damages.  If the Dodgers’ lax security is deemed a proximate cause of the assault and injury to Stow, future pain and suffering, lost earnings and future medical care could be difficult to dispute, based upon the medical testimony given at trial.  

 

Should the jury fail to reach a verdict (they have been deliberating for six days already) the judge will be forced to declare a mistrial, and the entire trial will start over.  There are no do-overs in baseball, but there could be one here.

Facebook Post Upends Settlement

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A standard part of many settlement agreements is a confidentiality provision.  A recent case, Snay v. the Gulliver Schools, shows that in the internet age, a party can very easily learn that confidentiality has been breached.

Plaintiff Patrick Snay was the headmaster of the Gulliver Schools in South Florida. When Gulliver did not renew Snay’s contract, he sued, alleging age discrimination and retaliation.  The parties reached a settlement, and the school agreed to pay $10,000 in back pay to Snay, $80,000 in damages to Snay,  and $60,000 to Snay’s attorneys.

Part of the settlement agreement was a detailed confidentiality provision, which provided that Snay could not discuss the existence or terms of the agreement with anyone other than his attorneys, professional advisors or spouse.  A breach of the confidentiality provision would cause the $80,000 part of the settlement proceeds to be “disgorged.”

Only four days after the agreement was signed, Gulliver notified Snay that he had breached the agreement based on a Facebook post by Snay’s college-age daughter:

Mama and Papa Snay won the case against Gulliver. Gulliver is now officially paying for my vacation to Europe this summer. SUCK IT.

Snay’s daughter had approximately 1200 Facebook friends, many of whom were either current or past Gulliver students.

 

Snay filed a motion to enforce the agreement, and after conducting a hearing, the trial court ruled in Snay’s favor.  But the appellate court reversed and found that Snay violated the agreement – even though he only shared the terms with his daughter – because it lead to the exact harm the agreement sought to prevent.

Ah, the joys of parenthood in a world with social media!  Please write to Mike Bono for more information.

Lead! It’s Back.

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Or maybe it never really went anywhere.  But in either event, new research suggests that lead exposure can lead to violent crime, lower IQs, and even ADHD.  No doubt the plaintiffs’ bar is studying this research in an attempt to find new causes of action.  Just be grateful if your policy has a lead exclusion, and, if not, we’re here when you need us.

For more information about this post, please contact Bob Cosgrove at .

Turkish Repatriation Efforts to Shake Art World?

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What’s old is new again.  Turkey (and all its prior iterations) has been at the forefront of Western history since Byzantium was founded in the 4th century.  Its treasures have been seized from other lands and its treasures have been seized from it.  Now, as this his NYT article makes clear, the Turks are in seizure mode.  They have commenced legal efforts to “take back” treasures of antiquity from their current Western occupiers, e.g. the Met, the Louvre and the Boston Museum of Fine Arts.  Can insurance claims be far behind?

For more information about this post, please contact Bob Cosgrove at .

Anti-Assignment Provisions Preempted by Bankruptcy Code in the Creation of Asbestos-Related Trusts

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According to a recent Third Circuit decision, asbestos defendants may properly transfer their insurance rights to personal-injury trusts created under § 524(g) of the Bankruptcy Code. In the case of In re: Federal-Mogul Global, Inc., Federal-Mogul, one of the nation’s largest automobile part manufacturers, had previously filed for Chapter 11 bankruptcy in the wake of over 500,000 pending asbestos claims. Pursuant to §524(g) of the Bankruptcy Code, Federal-Mogul incorporated the creation of a personal-injury trust into its reorganization plan. The trust was funded with numerous assets, but most notably included Federal-Mogul’s right to recover under a variety of insurance policies. Although the terms of reorganization contained “insurance neutrality”, a provision allowing insurers to assert any defenses available under the original agreements, it prohibited them from claiming that the rights were improperly transferred. Consequently, Federal-Mogul’s insurers sued, challenging the transfer of rights despite the existence of anti-assignment provisions in their contracts.

Following unfavorable decisions in the bankruptcy and district courts, Federal-Mogul’s insurers appealed to the Third Circuit where a three-judge panel considered whether the anti-assignment provisions were preempted by the provisions of the Bankruptcy Code. In an opinion penned by Judge Anthony Scirica, the Court of Appeals ultimately held that the transfer of insurance rights to the §524(g) trust was permissible because the Bankruptcy Code expressly preempts private contracts that include anti-assignment provisions. Initially, the Court noted that a similar issue had been reached in the case of In re: Combustion Eng’g, Inc., 391 F.3d 190 (3rd Cir. 2004), where the Third Circuit stated that “even if the subject insurance policies purported to prohibit assignment [of] . . . insurance proceeds, these provisions would not prevent the assignment of proceeds to the bankruptcy estate.”

However, the Court moved beyond the holding in Combustion Eng’g to examine the language and construction of § 1123(a)(5)(b) of the Bankruptcy Cole which provides for corporate reorganization by the transferring of property to one or more entities “notwithstanding otherwise applicable non-bankruptcy law.” While the insurers argued that a scarcity of legislative history required narrow preemption, Judge Scirica readily concluded that the “thin and vague legislative history . . . says nearly nothing about the intended preemptive scope of § 1123(a)” and was not enough “to overcome the plain and unambiguous meaning of the words Congress chose.” The Second Circuit then readily applied this preemption to insurance contracts founded on state law, consistent with the Supreme Court’s 1991 decision in Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 117.

Finally, the Court of Appeals touched upon certain policy considerations that supported preemption in this context. Specifically, the Court noted that assignment to a personal-injury trust did not impose a greater risk on insurers than they had originally bargained for, and that preemption furthered the Congressional design of § 524(g) by ensuring adequate compensation for asbestos litigants.

http://www.ca3.uscourts.gov/opinarch/092230p.pdf

 Thanks for Adam Gomez, law clerk, for this submission.  If you have any questions or comments, please email Paul at

Pink Slime: Cause for Concern for Product Recall Underwriters?

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Pink slime is all over the news these days.  It is the derogatory term for “meat product made by processing leftover beef trimmings.”  In other words, it’s meat filler made from leftovers with the addition of amonia.  It sure doesn’t sound very tasty, but it’s been in use for more than 20 years.  Public concerns about its safety have led some stores to offer free refunds/recalls.  A claim to the insurers of those stores or suppliers cannot be far behind.

It also makes you think that maybe you want to stick with lamb or chicken for Easter or Passover dinner…

For more information about this post, please contact Bob Cosgrove at .

“Employee Exclusion” Gains Further National Support

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The “Employee Exclusion” found in many CGL policies has been upheld for some time in New York.  Originally, it only applied to losses involving an employee of the named (or additional) insured, and over time the language was modified to extend the exclusion to claims involving anyone working on behalf or retained by the insured.

This modified language has also been upheld in New York, and recently, an Illinois federal court has recently followed New York courts in interpreting an Employee Exclusion in favor of the insurer. In Nautilus Ins. Co. v. Jona Enterprises, Inc., the insured, Jona, was a general contractor at a job site. Jona retained a subcontractor which in turn hired the injured worker.

The policy contained an Employee Exclusion that bars coverage for injuries to the insured’s employee, defined as “any person . . . hired by, loaned to, leased to, contracted for, or volunteering services to the insured, whether or not paid by the insured.”

The court followed New York’s Appellate Division and ruled that the injured worker was the insured’s employee because he was “contracted for” the insured to work at the job site even though he was not paid by the insured.

Thanks to Mendel Simon for his contribution to this post.
If you would like more information, please write to .

$20 Million Pool Slide Verdict Upheld

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Have you noticed that fewer and fewer pools are built with diving boards or slides in recent years?  Verdicts like this may be a big reason why.  The family of Robin Aleo brought suit against Toys R’ Us in Massachusetts because Ms. Aleo suffered fatal head injuries when an inflatable pool slide collapsed in 2006.  A jury awarded the family $20 million in damages, and a Massachusetts Superior Court recently upheld the award.  This case involved an inflatable slide that collapsed, rendering Toys R’ Us and the manufacturer as potentially liable parties.  Diving boards and stationary slides, however, require contractors to install them, and the risk of potential suits seem to be outweighing the benefit of compensation for many contractors.  The result is fewer diving boards.  Ironically, one can surmise that the decreased use of diving boards may have created the impetus for Toys R’ Us to sell the inflatable slide that collapsed here.  Risk can be mitigated, not eliminated.

Thanks to Brian Gibbons for his contribution to this post.

Killer Whales Are Not People.

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We’ve been following the killer whales-as-people controversy.  The federal court has now weighed in.  Killer whales are not people.  So, they don’t get the benefit of the 13th Amendment’s prohibition against slavery.  Sorry, Shamu.

For more information about this post, please contact Bob Cosgrove at .

 

Fine Print Ramifications of Cruise Ship Contracts Continue: Victims of Costa Concordia Likely Will Not Find Relief in U.S. Courts

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The recent Costa Concordia shipwreck in Italian waters has raised the often discussed question of whether United States citizens can seek relief in U.S. Courts based on injuries occurring on cruise ships outside U.S.waters.  The Costa Concordia passengers’ tickets included language providing that all claims against it would be brought in the Courts of Genoa, Italy.  U.S.Citizens have challenged similar contracts in the past, arguing that to litigate in a foreign country would be too burdensome.  In August 2010, the Eleventh Circuit Court of Appeals affirmed a dismissal of a lawsuit against Regent Seven Seas Cruises, whose printed passenger tickets called for all claims not involving a U.S. Port to be brought in Paris.  The court found the argument that foreign litigation would be too burdensome not to be persuasive over the plain language of the contract.  Legal experts believe that this court precedent will continue to apply to the recent tragedy aboard the Costa Concordia.

http://www.insurancejournal.com/news/national/2012/01/17/231285.htm

For the complete Eleventh Circuit Court opinion,

http://www.ca11.uscourts.gov/unpub/ops/201010810.pdf

Thanks to Andrew Marra for his contribution to this post.